Central Administrative Tribunal - Delhi
Mohammad Gulraiz Hasan vs The Lt. Governor Of Delhi on 8 October, 2014
Central Administrative Tribunal
Principal Bench
OA NO. 689/2013
Order Reserved on: 11.07.2014
Pronounced on: 08.10.2014
Honble Mr. V. Ajay Kumar, Member (J)
Honble Mr. V.N. Gaur, Member (A)
Mohammad Gulraiz Hasan
s/o Shri Mohammad Gulbeg Hasan
r/o O/9 Street No.17, Brahampuri,
Delhi-110053.
- Applicant
(By Advocate: Sh. Deepak Verma)
Vs.
1. The Lt. Governor of Delhi,
NCT of Delhi, Raj Niwas,
Delhi.
2. The Commissioner of Police,
MSO Building, Delhi Police HQs,
I.P.Estate,
New Delhi-110002.
3. Deputy Commissioner of Police (HQs),
Recruitment Cell, 9th floor,
Delhi Police HQs, I.P.Estate,
New Delhi-110002.
- Respondents
(By Advocate: Sh. Amit Anand)
ORDER
Honble Shri V.N.Gaur, Member (A) The applicant has filed this OA with the following prayer:
(i) Quash & set aside the letter no. 591/Rectt.Cell(AC-I)/PHQ dated 17.1.2013 (Anneuxre-A1).
(ii) direct the respondents to conduct the Typing test for the applicant for recruitment to the post of Head Constable (Ministerial) in Delhi Police and,
(iii) appoint the applicant to the post of Head Constable (Ministerial) w.e.f. 08.01.2003 when the results are declared with all consequential benefits and if necessary to create a supernumerary post.
(iv) any other or further relief the Honble Tribunal may deem fit and necessary in the interest of justice along with exemplary cost in favour of applicant.
2. The applicant had applied for the post of Head Constable (Ministerial) under OBC category in Delhi Police in response to the advertisement published on 10.04.2010 by Delhi Police and appeared in the Physical Endurance and Measurement Test (PE&MT). On qualifying the same he was issued roll no. for appearing in the written test which was held on 05.05.2012. The applicant was declared qualified for appearing in the typing test on computer. According to the applicant he did not receive any information with regard to the typing test organized by respondent no.3. Only through some other sources, he came to know about typing test being conducted starting from 23.11.2012. He rushed to the Delhi Police on 29.11.2012 requested them in writing to allow him to appear in the typing test that was still in progress. As he received no response to his letter, he submitted representation to Commissioner of Police the next day with a request to allow him to appear in the typing test. But that also did not elicit any response. Later in response to an RTI query the applicant was informed that respondent no.3 had intimated the dates of typing test to the candidates who successfully cleared PE&MT by sending letter through UPC, uploading the information on internet and publishing the dates in leading newspapers. The admit cards were also issued on the same day. Earlier postponement of written test on 05.02.2012 to 05.05.2012 was also conveyed to the candidates by same means.
3. Learned counsel for the applicant stated that it was the responsibility of Delhi Police to ensure that applicant was informed of typing test through a proper and legally recognized mode postal service, i.e., by registered post or speed post. In the RTI the Delhi Police had stated that the letters were sent under UPC while in the counter it has been admitted that the information was sent to the applicant through ordinary post. It clearly showed a lack of seriousness and non-application of mind on the part of the respondents in dealing with the applicant who was an unemployed youth from minority community of OBC. The learned counsel contended that the law obligated such letters to be sent through reliable means of communication to ensure delivery of letter to the applicant. In this connection, he referred to Section 27 of the General Clauses Act stating that wherever the concept of sending a document by post was involved, it pre-supposed that the document was sent to the person, to whom it is to be sent, by way of letter properly addressed, pre-paid and posted by registered post. The language of Sec. 27 made it clear beyond doubt that wherever any Central Act authorized the sending of a document to a person by post, it had, in order to constitute sending by post in accordance with law, to be done in the manner contemplated by Sec. 27.
4. Leaned counsel further submitted that the applicant had approached the respondents even before the typing test was over on 30.11.2012. Had the respondents dealt with the matter with more sensitivity they would have responded to the request of the applicant dated 29.11.2012 and allowed him to appear in the typing test which was going on. However, they chose not to respond and thus denied his legitimate right to compete in the written test after having qualified in the physical endurance test and written test. Responding to the submission by the learned counsel for the respondents that the recruitment process was closed and the selected candidates had already been appointed, learned counsel referred to this Tribunals order dated 04.11.2009 in OA 1567/2009 where direction was issued to appoint the applicant against the post of TGT in any available vacancy, and if need be even by creating a supernumerary post.
5. The learned counsel for the respondents denied any procedural lapse on the part of the respondents in issuing the call letter for the typing test and stated that there was no provision in the rules specifying the mode of sending such call letters. It was stated that the information regarding the typing test was also uploaded on the website well in time and it was the duty of the applicant to have followed it up through that website. Giving the numbers, the learned counsel stated that the 2,21,349 candidates had been called for PE&MT of which 1,06,192 participated, 66,345 qualified the same and were called for the written test, 58,468 participated and 2551 candidates qualified. In the typing test on computer 2551 candidates were called, 2062 were present and 489 absent and 705 qualified. In computer formatting test 705 candidates were called, 693 were present, 12 absent and 549 candidates qualified. This data would show that through the same method of dispatch of call letter, putting the information on website and publishing information in the newspapers such a large number of candidates could appear in the selection process at various stages. Specifically for typing test on computer 2551 candidates were called and 2062 candidates turned up which show that there was nothing wrong with the method followed by the respondents.
6. Respondents had issued the call letters on 02.11.2012 for the test commencing on 23.11.2012, giving sufficient time for the information to reach to the applicant. The respondents had considered the representation submitted by the applicant and rejected the same as it was found to be without any merit. With regard to the discrepancy vis-`-vis the information filed under RTI regarding mode of dispatch of letters, learned counsel stated that it was inadvertently mentioned that letters were dispatched under UPC as the same could not be true since the system of UPC was discontinued for the last few years. The learned counsel also submitted that the process of recruitment under the advertisement of 2010 had already been completed and the 118 unfilled vacancies have been carried over to the notification issued in the year 2013 and as such no relief is possible to the applicant.
7. We have heard the counsels of both the sides and perused the record. The main issues are whether
(i) the respondents are bound to issue call letter through registered post/speed post;
(ii) Whether a presumption can be raised that a letter issued by ordinary post in the normal course would have been received by the applicant, and
(iii) if the letter issued by ordinary post has not been received by the applicant, it gives a right to the applicant to seek holding of typing test especially for him even after the whole process of selection has been completed.
8. The learned counsel for the applicant has relied upon sec 27 of the General Clause Act to emphasize that the law pre-supposes that the act of sending a document by post means registered post. For reference the sec 27 is reproduced below:
27. Meaning of service by post Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, where the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
9. Although no regulation governing the recruitment process of Delhi Police has been filed specifying the method to be adopted for sending call letters, it can be safely presumed that given the present state of technology sending a hard copy of call letter by post is unavoidable even if other more advanced hi-tech methods like email, publishing on the web etc are gradually gaining currency. These latter methods can be only supplemental and not a replacement of the physical form of call letter for many years to come. The applicant has also given examples of all letters issued by some other recruitment agencies where the call letters were issued through registered post. However, in the absence of any statutory provision in the case of the recruitment by the respondents in this case posting of letters by ordinary post cannot be said to have vitiated the recruitment process. The statistics quoted by the respondents itself shows that the present method of issuing call letters can be considered as satisfactory. If the General Clauses Act raises a presumption of delivery of a letter when it is posted by a registered post, the Section 114 of the Evidence Act also enables the Court to raise such a presumption if there is nothing to show that the normal process was affected deliberately or otherwise. Section 114 of the Evidence Act is reproduced below:
114 Court may presume existence of certain facts. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations The Court may presume
(a) That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;
(b) That an accomplice is unworthy of credit, unless he is corroborated in material particulars;
(c) That a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration;
(d) That a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things usually cease to exist, is still in existence;
(e) That judicial and official acts have been regularly performed;
(f) That the common course of business has been followed in particular cases;
(g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;
(h) That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him;
(i) That when a document creating an obligation is in the hands of the obligor, the obligation has been discharged.
10. The proposition that sending by post would always mean sending by registered post was discussed by Honble Calcutta High Court in Sukumar Guha vs Naresh Chandra Ghosh And Anr., AIR 1968 Cal 49 and held that it would be wrong to suggest that presumption can be raised only for posting by registered post as mentioned in Section 27 of General Clauses Act and such presumption cannot be raised even under Section 114 of Evidence Act in case of ordinary post or certificate of posting, the relevant portion of judgment is reproduced below:
11. Mr. Mukherjee's criticism of that finding based on presumption under Section 114, Evidence Act is two-fold. First he says that presumption can be raised only when service has been by sending by Registered Post as Section 27 of the General Clauses Act provides. Even then, according to Mr. Mukherjee's contention, such presumption is rebutted when the defendant deposes in witness box and denies that the letter sent to him by post had been delivered to him, Reliance is placed on the decision in the case of Gobinda Chandra Saha v. Dwarka Nath. 19 Cal WN 489: (AIR 1915 Cal 313).
12. Mr. Milter points out that the decision in 19 Cal WN 489: (AIR 1915 Cal 313) was when Section 106, T. P. Act did not contain that part which now provides sending by post to the party. The phrase was added by Section 54 of amending Act XX of 1929 obviously to give effect to the decision reported in ILR 46 Cal 458: (AIR 1918 PC 102) Harihar Banerji v. Ramshashi Roy, which held that service by post is a recognised mode and pointed to the presumption arising from the fact of putting a notice to quit into post office. It is to be remembered that provisions regarding such presumption existed in Indian Law in Section 114, Evidence Act (illustration (f)) since 1872 and in Section 27, General Clauses Act since 1897. In Section 114, Evidence Act it was "may presume" while in Section 27, General Clauses Act "the service shall be deemed to be effected". But both the presumptions are rebuttable by proving the contrary.
13. At one stage Mr. Mukherjee faintly suggested that because Section 27, General Clauses Act, raises a presumption only for "posting by Registered Post", it should be held that presumption cannot be raised even under Section 114, Evidence Act in case of ordinary post or Certificate of Posting. In view of the history of legislation that added the relevant phrase in Section 106, T. P. Act and the language of the phrase that says only "sent by post" in the relevant part, I unhesitatingly reject that argument of Mr. Mukherjee and hold that though presumption under Section 27, General Clauses Act can only arise when the notice is sent by Registered Post, there may arise a presumption under Section 114, Evidence Act when notice is sent by ordinary post or under Certificate of Posting. (emphasis added)
11. The question of presumption of service of a document sent by post was dealt by Honble Delhi High Court in Sky Land International Pvt. Ltd. vs Kavita P Lalwani, 191 (2012) DLT 594, and Honble High Court after discussing the various judgments of Honble Supreme Court held that if the common course of business has been followed in particular cases, Section 114 of Evidence Act would enable the Court to presume that the communication would have been delivered at the address of the addressee. The relevant portion of the judgment is reproduced below:
14. Presumption of service of notice of termination 14.1 Section 27 of General Clauses Act, 1897 Section 27 of the General Clauses Act, 1897 provides that service of a notice shall be deemed to be effected by properly addressing, pre-paying and posting the notice by registered post. Section 27 of the General Clauses Act incorporates a presumption of law. A presumption of law with regard to service would arise when a notice to quit under Section106 is sent by registered post. There is a clear distinction between the presumption that may arise under Section 114 of the Evidence Act and the one arise under Section 27 of the General Clause Act. The former is presumption of fact which the Court may, but is not bound to, raise whereas the latter incorporates a presumption of law and the Court has no option but to raise such a presumption if the conditions of the provision are satisfied. The Section reads as under:-
Section 27. Meaning of Service by post - When any (Central Act) or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
14.2 Section 114(f) of Indian Evidence Act, 1872 Section 114(f) of the Indian Evidence Act provides that upon being shown that a letter has been posted, the Court may draw a presumption that the letter was received by the addressee. Section 114 of the Evidence Act incorporates presumption of fact and provides that the Court may presume the existence of probable facts regard being had to the common course of natural events, human conduct and common sense in relation to the facts of the particular case. Section 114 of the Indian Evidence Act, 1872 covers a wide range of presumption of facts which can be used by the Courts in the course of administration of justice. According to illustration (f) to the Section, the Court may presume ''that the common course of business has been followed in particular cases". Section 114 entitles a Court to presume that a common course of business was followed so that if it is proved a postal cover duly addressed was sent by registered A.D. post, having regard to the common course of events, it would have been received by the addressee or if it is returned with the endorsement by the postal authorities that it was refused, that it was so tendered and refused. This would raise a presumption of fact. If however, it is shown at the same time that the common course was interrupted by an extraordinary situation, the presumption would not be available. It therefore, provides that in considering whether common course of business had been followed or not, the Court shall also have regard to such facts as are set out in relation to each of the illustrations. The fact relevant to illustration (f) runs thus:
The question is, whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbances.
X X X X 14.4. In Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808, the Supreme Court held that the illustrations mentioned in Section 114 of the Indian Evidence Act are based upon human experience and have to be applied in the context of the facts of each case. The illustrations are merely examples of circumstances in which certain presumptions may be made and other presumptions of a similar kind in similar circumstances can be made under the Section itself. The Supreme Court held as under:-
24 ...The Court may, of course, presume, as mentioned in Section 114 of the Indian Evidence Act, the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The illustrations mentioned in that Section, though taken from different spheres of human activity, are not exhaustive. They are based upon human experience and have to be applied in the context of the facts of each case. The illustrations are merely examples of circumstances in which certain presumptions may be made. Other presumptions of a similar kind in similar circumstances can be made under the provisions of the Section itself. Whether or not a presumption can be drawn under the Section in a particular case depends ultimately upon the facts and circumstances of each case. No hard and fast rule can be laid down. Human behavior is so complex that room must be left for play in the joints. It is not possible to formulate a series of exact propositions and con-flue human behavior within strait-Jackets. The raw material here is far too complex to be susceptible of precise and exact propositions for exactness here is a fake.
(Emphasis supplied) 14.5. In Tukaram Ganpat Pandare v. State of Maharashtra, (1974) 4 SCC 544, the Supreme Court held that Section 114 of the Indian Evidence Act enables the Court to use common sense as a judicial tool to do justice. The Supreme Court held as under:-
11. Section 114, Evidence Act, enables the Court to presume the existence of probable facts, regard being had to human conduct and the common course of events, and common sense being used as a judicial tool.
14.6 In Narayan Govind Gavate v. State of Maharashtra, (1977) 1 SCC 133, the Supreme Court held that the function of presumptions under Section 114 of the Indian Evidence Act is to fill up the gap in evidence. The Supreme Court held as under:-
21. ...Section 114 of the Evidence Act covers a wide range of presumptions of fact which can be used by Courts in the course of administration of justice to remove lacunae in the chain of direct evidence before it. It is, therefore, said that the function of a presumption often is to "fill a gap" in evidence.
14.7 In Har Charan Singh v. Shiv Rani, AIR 1981 SC 1284, the Supreme Court held that a presumption of service can be drawn under Section 27 of the General Clauses Act, 1897 and Section 114(f) of the Indian Evidence Act, 1872. The observations of the Supreme Court are reproduced hereunder:-
7. Section 27 of the General Clauses Act, 1897 deals with the topic - 'Meaning of service by post' and says that where any Central Act or Regulation authorises or requires any document to be served by post, then unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting it by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. The section thus arises a presumption of due service or proper service if the document sought to be served is sent by properly addressing, pre-paying and posting by registered post to the addressee and such presumption is raised irrespective of whether any acknowledgement due is received from the addressee or not. It is obvious that when the section raises the presumption that the service shall be deemed to have been effected it means the addressee to whom the communication is sent must be taken to have known the contents of the document sought to be served upon him without anything more. Similar presumption is raised under Illustration (f) to Section 114 of the Indian Evidence Act whereunder it is stated that the Court may presume that the common course of business has been followed in a particular case, that is to say, when a letter is sent by post by pre-paying and properly addressing it the same has been received by the addreseee. ...It would, therefore, be reasonable to hold that when service is effected by refusal of a postal communication the addressee must be imputed, with the knowledge of the contents thereof and in our view, this follows upon the presumptions that are raised under Section 27 of the General Clauses Act, 1897 and Section114 of the Indian Evidence Act.
(Emphasis supplied) 14.8 In M/s Madan and Co. v. Wazir Jaivir Chand, AIR 1989 SC 630, the Supreme Court held that a notice sent by registered post is presumed to have been delivered to the addressee under Section 27of the General Clauses Act. The observations of the Supreme Court are reproduced hereunder:-
6. ...All that a landlord can do to comply with this provision is to post a prepaid registered letter (acknowledgement due or otherwise) containing the tenant's correct address. Once he does this and the letter is delivered to the post office, he has no control over it. It is then presumed to have been delivered to the addressee under Section 27 of the General Clauses Act. Under the rules of the post office, the letter is to be delivered to the addressee or a person authorised by him. Such a person may either accept the letter or decline to accept it. In either case, there is no difficulty, for the acceptance or refusal can be treated as a service on, and receipt by, the addressee... In this situation, we have to choose the more reasonable, effective, equitable and practical interpretation and that would be to read the words "served" as "sent by post", correctly and properly addressed to the tenant, and the word "receipt" as the tender of the letter by the postal peon at the address mentioned in the letter. No other interpretation, we think, will fit the situation as it is simply not possible for a landlord to ensure that a registered letter sent by him gets served on, or is received by, the tenant.
(Emphasis supplied) 14.9 In C.C. Alavi Haji v Palapetty Muhammed, (2007) 6 SCC 555, the Supreme Court held that due service is presumed under Section 114(f) of the Indian Evidence Act and Section 27 of the General Clauses Act when a notice sent by registered post is returned with a postal endorsement "refused or "not available in the house or "house locked or "shop closed or "addressee not in station. The observations of the Supreme Court are reproduced hereunder:-
13. According to Section 114 of the Act, read with illustration (f) thereunder, when it appears to the Court that the common course of business renders it probable that a thing would happen, the Court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114enables the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Consequently, the court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, Section 114 enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised under Section 27 of the G.C. Act is a far stronger presumption. Further, while Section 114 of Evidence Act refers to a general presumption, Section 27 refers to a specific presumption...
12. In this case the respondents had also produced a copy of page no.43 of the dispatch register showing dispatch of call letters for typing test for Head Constable (Ministerial) by AWO/GPO including the roll number of the applicant. There is no reason for a presumption that the letter to the applicant was not posted. The applicant has been receiving all the communications right from the PE&MT test, written examination etc. through the same means of communication at the same address. There is nothing to indicate that at the stage of typing test the system stopped functioning. We also note that 2551 people, who qualified in the written examination were called for typing test/formatting test on computer and 2062 people turned up. It is also significant to note that out of 499 vacancies advertised, only 381 vacancies could be filled up. Considering these facts it can be safely deduced that there was no abnormality or disturbance in the common course of business and there is nothing to show that there was any attempt to deprive the applicant of his chance to appear in the typing/formatting test on computer by not sending the call letter.
13. The learned counsel for the respondents has also submitted that the unfilled vacancies for that recruitment year had already been carried over to the next recruitment year and the recruitment process is underway. In Shankarsan Dash vs. Union of India, AIR 1991 SC 1612, the Honble Supreme Court has held that even a successful candidate in a competitive examination does not acquire an indefeasible right to be appointed. The applicant in the present OA who had not even reached the stage of empanelment, can not ask for organizing a typing test only for him as matter of right when nothing abnormal has been established in the whole process of issuing and dispatching the call letters. The order passed by this Tribunal in OA 1567/2009 which has been relied on by the applicant is not relevant to this case as the candidature of the applicant in that OA had been rejected on the ground of non-eligibility despite the fact that the applicant had secured more marks than the last selected candidate. The facts of the OA 455/2014, another case relied on by the applicant are also not comparable. These orders therefore do not help the case of the applicant.
14. It is needless to emphasize that the applicant also had to keep himself abreast of notification on the website and keep himself alert by being in touch with other sources who ultimately gave him information about tests being conducted on 29-30 Nov 2012. Thus, we do not find any merit in the prayer of the applicant especially at this stage when the entire selection process is complete to direct the respondents to hold a special test for him for selection for the post of Head Constable (Ministerial).
15. In view of the discussion and reasons stated above, the OA is dismissed. No costs.
(V.N. Gaur) (V. Ajay Kumar) Member (A) Member (J) sd