Punjab-Haryana High Court
Narender Kumar vs Haryana Public Service Commission on 5 April, 2013
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
CWP No.6238 of 2013 (O&M)
Date of Decision: 5.4.2013.
Narender Kumar --Petitioner
Versus
Haryana Public Service Commission
& another --Respondents
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA.
Present:- Mr. S.K. Singla, Advocate.
Mr. S.P. Chahar, Advocate.
Mr. Raje Ram Kaushik, Advocate.
Mr. Anil Kumar, Advocate.
Mr. H.N. Mehtani, Advocate for the H.P.S.C.
***
TEJINDER SINGH DHINDSA.J This order shall decide CWP Nos. 6238, 6194, 5777 & 6409 of 2013.
The challenge in all these petitions is to the action of the Haryana Public Service Commission (hereinafter to be referred as the Commission) in rejecting the applications of the petitioners for appearing in the main examination of the Haryana Civil Services (Executive Branch) & Allied Services on the ground that the same were received after the stipulated cut off date i.e. 14.2.2013.
Brief facts that would require notice are being extracted from CWP No. 6238 of 2013.
The Commission issued Advertisement No.5/2011 inviting applications for recruitment to various posts in the Haryana Civil Services (Executive Branch) & Allied Services. The scheme of selection envisaged a CWP No.6238 of 2013 (O&M) -2- Preliminary Examination for screening purpose only followed by a Main Examination and Viva Voce. The Preliminary Examination was conducted by the respondent-Commission and the result thereof was declared on 4.5.2012. The petitioners in all these writ petitions could not qualify the Preliminary Examination. On account of the fact that certain discrepancies were noticed in the question papers, aggrieved candidates approached this Court in terms of filing a number of writ petitions. The matter was finally settled in terms of judgement dated 3.12.2012 while disposing of L.P.A. No.1338 of 2012 titled as H.P.S.C Vs. Jitender Kumar & another and other connected L.P.As. In pursuance to the directions issued by this Court the respondent-Commission published a revised result of candidates having qualified the Preliminary Examination on 31.1.2013. The Roll Numbers of all the petitioners figured in such revised result. The candidates in such revised result were informed that the application forms for the Main Examination were being dispatched by 4.2.2013 through registered post. The candidates were directed to submit such application forms duly filled in to the Commission's office either personally or through bearer or through registered post/courier etc. up to 14.2.2013 by 5.00 P.M. The pleaded case of the petitioners is that the application forms were received by them between the dates 6.2.2013 to 9.2.2013 and were in turn duly filled up and dispatched by registered post without any delay on different dates between 8.2.2013 to 10.2.2013. However, the applications submitted by the petitioners have been rejected by the respondent- Commission on the ground that the same were received only on 18.2.2013 as opposed to the last date stipulated i.e. 14.2.2013. Representations submitted by the petitioners have also been rejected by the Commission CWP No.6238 of 2013 (O&M) -3- citing the reasons of late receipt of application forms i.e. after the cut off date and the petitioners having failed to produce any documentary proof of having delivered the applications in Commission's office on or before 14.2.2013.
It has been argued on behalf of the petitioners that the action of the Commission smacks of arbitrariness. It has been argued that the petitioners in the light of the revised result issued on 31.1.2013 stand duly qualified in the Preliminary Examination and they are, accordingly, vested with a right to appear in the Main Examination which is now slated for 3.4.2013. The contention raised is that the application forms for appearing in the Main Examination were received on 6/7.2.2013 and were duly filled up and dispatched through registered post without any delay and as such the petitioners cannot be penalized on account of any delay that has occurred on the part of the postal authorities in delivering the application forms beyond the stipulated cut off date i.e. 14.2.2013. An additional argument has been raised in CWP No. 6194 of 2013 titled as Vivek Hooda Vs. H.P.S.C to the effect that the time frame stipulated in the revised result dated 31.1.2013 itself was unreasonable. It was argued that in terms of such time frame, whereby the application forms were to be dispatched by 4.2.2013 and were to be received back till 14.2.2013, i.e. to entail a two way postal transmission, time period was too short and the Commission has acted unreasonably. Motives have also been attributed to the Commission by asserting that fixing of such short time frame was a "well conceived strategy" to exclude the petitioners from the benefit of the revised result that had been declared in pursuance to the directions passed by this Court. The plea of discrimination has also been raised by adverting to the result of the CWP No.6238 of 2013 (O&M) -4- Preliminary Examination that was declared first in point of time i.e. 4.5.2012, wherein a time frame of almost four weeks had been stipulated for the qualified candidates to submit the application forms for the Main Examination.
Learned counsel for the petitioners would argue that the Commission has acted unfairly in so far as the candidates, who stand qualified in the revised result as a ten days time frame only for receipt of application forms was provided and the same has worked to the clear detriment and prejudice of such candidates. Reliance has also been placed by Mr. S.K. Singla, learned counsel appearing for the petitioner in CWP No. 6238 of 2013 upon a Division Bench judgement of the Hon'ble Allahabad High Court rendered in case of Ramendra Srivastava Vs. State of U.P., 2009 (5) ALL. L.J 432, whereby the State Public Service Commission therein had been directed to accept the form of a candidate for the Main Examination that had been dispatched in time but on account of a delay attributable to the Postal Department had reached beyond the last date stipulated for submission of such application form. It had been held that on equitable grounds a candidate cannot be penalized for the fault of the Postal Department.
Per contra, Mr. H.N. Mehtani, learned counsel appearing for the Commission would submit that the Commission had declared the revised result vide Press Note dated 31.1.2013 and it had been specifically mentioned therein that the application forms for the Main Examination were being dispatched by 4.2.2013 and the candidates had been called upon to submit their application forms duly filled in at the Commission's office up to 14.2.2013 by 5.00 P.M positively failing which the application forms would CWP No.6238 of 2013 (O&M) -5- not be entertained and would be rejected outrightly. The Press Note also categorically mentioned that the Commission would not be responsible for any delay on the part of postal authorities/courier service etc. Mr. Mehtani would refer to the written statement to apprise the Court that the revised result had been published in six newspapers i.e. The Hindustan Times, The Times of India, The Tribune, Dainik Bhaskar, Dainik Jagran and Aaj Samaj on 1.2.2013. The stipulation as regards submission of application forms by the candidates up to 14.2.2013 by 5.00 P.M was carried even in the aforenoticed publications. Details have been furnished in the written statement that out of the 835 successful candidates as per revised result declared on 31.1.2013, 720 application forms were duly received in the office of the Commission by 14.2.2013 and 65 application forms including those of the petitioners were received after 14.2.2013 and were, accordingly, rejected in the light of the clear stipulation in the Press Note dated 31.1.2013. 50 candidates out of the 835 successful candidates chose not to apply for the Main Examination. Mr. Mehtani would vehemently argue that the stipulation as regards the cut off date would have to be strictly adhered to and there would be no scope of any relaxation thereof. Counsel would argue that the delay in receipt of the application forms in the office of the Commission was attributable to the Postal Department. Counsel would place reliance upon a Full Bench judgement of this Court rendered in case of Rahul Prabhakar Vs. Punjab Technical University, Jalandhar and others, 1997 (3) R.S.J 475 and a judgement of the Hon'ble Apex Court in Institute of Chartered Accountants of India Vs. Inder Chand Jain, J.T. 1991 (4) S.C 39 to contend that no right vested with the petitioners on account of late receipt of the application forms and equity in such matters CWP No.6238 of 2013 (O&M) -6- had no role to play.
Having heard learned counsel for the parties at length and having perused the pleadings on record, this Court is of the considered view that even though, the action of the respondent-Commission may seem harsh at first blush, yet, the rejection of the application forms of the petitioners on account of receipt of the same beyond the cut off date stipulated, is well founded and warrants no interference.
A Division Bench of this Court in case of Saurabh Aggarwal Vs. Kurukshetra University, 1995 (1) R.S.J 801 had taken a view that the delay caused by the postal authorities in delivering an application beyond the cut off date cannot be a ground for denying to a candidate the right to take an examination. This is the same view that was taken even by a Division Bench of Hon'ble Allahabad High Court in the case of Ramendra Srivastava (supra) i.e. the decision upon which reliance was placed upon by the learned counsel appearing for the petitioners. A Full Bench of this Court in Rahul Prabhakar's case (supra) examined the precise question of an application having been received by the university after the expiry of the time fixed on account of a postal delay and the consequences emanating therefrom. While overruling the view taken in Saurabh Aggarwal's case (supra), it was held as follows:-
"17. Validity or otherwise of the Information Brochure and its binding nature has to be examined by the generality of cases it covers and not by the inconvenience or resultant prejudice that may be caused to persons who could not strictly adhere to its terms. In this connection, we consider it appropriate to recall the observations made by Krishna Iyer, J., in R.S. Joshi Vs. Ajit Mills, AIR 1977 Supreme Court 2279, "A law has to be adjudged for its constituality by the generality CWP No.6238 of 2013 (O&M) -7- of cases it covers not by the freaks and exceptions it martyrs."
If the argument advanced by the learned counsel is accepted, or if the principles stated by the Division Bench in Saurabh Aggarwal's case (supra) are followed then consequence will be to amend the provision contained in the Brochure. If the provision contained in the Information Brochure is found to be unsustainable, the same can be struck down by this Court in exercise of the powers under Article 226 of the Constitution of India. By striking down the provision in the Brochure, the petitioner will not be getting any benefit. So this Court will have to amend the provision contained in the Brochure or in other words re-write the same. This Court is not to venture such a course of action. High Court cannot assume the role of rule making authority and re-write the rule nor can this Court in exercise of the powers under Article 226 of the Constitution substitute its views to that of the competent authority which framed the Brochure.
18. In view of what has been stated above, we hold that the date and time for the receipt of the application forms by the Co-ordinator, CET 1997, is fixed in the Information Brochure. It is not to be altered by that Court in exercise of the powers under Article 226 of the Constitution of India. We also hold that law settled by a Division Bench in Saurabh Aggarwal Vs. Kurukshetra University, 1995 (1) SLR 80=1995 (1) RSJ 801 and the decision in Anurag Sharma Vs. Regional Engineering College Kurukshetra and others, 1996 (1) RSJ 795 do not lay down the correct law and we overrule the same.
19. Civil Writ Petition Nos. 6453 of 1997 and 6525 of 1997 which are referred to the Full Bench also raises the same issue. Applications sent by the petitioners in these writ petitions did not reach the Co-ordinator, CET 97, before 5 p.m. On 21.3.1997. Consequently, in the light of the decision in CWP No. 5281 of 1997, petitioners in these writ petitions are also not entitled to any of the reliefs asked for." CWP No.6238 of 2013 (O&M) -8-
Adverting back to the facts of the present case the stipulation in the Press Note dated 31.1.2013 i.e. the revised result issued by the Commission was in the following terms:-
"Application forms for the Main Examination are being dispatched by 4th February, 2013 at their last available addresses through registered posts. Those candidates who have changed their postal addresses may contact Commission's office immediately. The above mentioned candidates are directed to submit their application forms duly filled into the Commission's office at personal level/through bearer or through registered post/courier etc. up to 14th February, 2013 by 5.00 P.M positively, failing which their application forms will not be entertained and shall be rejected outrightly. Commission will not be responsible for any delay on the part of postal authority/courier etc. The Main Examination will be held after 15th of March, 2013."
The language employed in the stipulation as regards the time frame was categoric and unambiguous. The application forms duly filled in were to reach the Commission's office at personal level/through bearer or through registered post/courier up to 14.2.2013 by 5.00 P.M failing which the application forms were to be rejected outrightly. The Commission in the Press Note itself unequivocally had put the candidates to notice that it will not be responsible for any delay on the part of the postal authorities/courier etc. As per dictum laid down by the Full Bench of this Court in Rahul Prabhakar's case (supra) such time frame and stipulation of cut off date of 14.2.2013 would require strict adherence. No deviation therefrom would be permissible. Answering the prayers of the petitioners in the affirmative would amount to relaxation of the last date stipulated by the Commission and this Court would refrain from doing so while exercising its writ CWP No.6238 of 2013 (O&M) -9- jurisdiction under Article 226 of the Constitution of India.
Even the submission raised on behalf of the petitioners that the time frame laid down by the Commission itself was unreasonable, is without merit. The present petitioners were the beneficiaries of a revised result declared on 31.1.2013 in pursuance to directions issued by this Court. Their eagerness to await the revised result and their anxiety to participate in the Main Examination cannot be downplayed. The petitioners were expected to be extra vigilant in so far as submission of their application forms for appearing in the Main Examination prior to the last date stipulated i.e. 14.2.2013 by 5.00 P.M. Even if, any one of the petitioners entertained an apprehension about there occurring any delay in respect of an application form being sent through registered post, it was open for such application form to be delivered personally or through bearer. Suffice it to observe that out of the 835 successful candidates in the revised result 50 chose not to apply. The mere fact that out of the remaining 785 candidates, the Commission had received 720 applications prior to the stipulated cut off date would be a clear pointer that the time frame stipulated by the Commission was sufficient. All the 835 candidates as per revised result have been treated equally by the Commission and have been placed on the same pedestal. It would not lie in the mouth of the petitioners to raise the plea of discrimination as such.
For the reasons recorded above, I find no merit in the instant writ petitions and the same are, accordingly, dismissed.
Petitions dismissed.
(TEJINDER SINGH DHINDSA) JUDGE 5.4.2013.
lucky Whether to be reported? Yes.