R.C Patnaik, J.:— The petitioner serving as Medical Officer in the Primary Health Centre, Kotpad in the district of Koraput, made an application to take the entrance examination for selection of candidates for undergoing Two-Year P.G Course in one of the Government Medical Colleges in the State pursuant to admission notice which stipulated that applications in the prescribed form should reach the Convenor-Principal, M.K.C.G Medical College, Berhampur by 30-5-88 during office hours by registered post only. He posted his application on 27-5-88 at the post-office located in the campus of M.K.C.G Medical College, Berhampur. Though the post-office is located at a distance of 100 yards from the office of the Convenor, the application sent by registered post was received in the office of the Convenor on 1-6-88. His application was treated as not to have been received within the time stipulated, i.e, by 30-5-88. Hence, he was not allowed to take the examination.
The petitioner has filed this writ application for a declaration that his application in the facts and circumstances should be deemed to have been received in the office of the Convenor by the stipulated date and for a mandamus or an appropriate order directing the opposite parties to admit him to the course.
2. The short question that arises, therefore, is if in the facts and circumstances, the application was received by the Convenor on 27-5-88 or 1-6-88. It is contended by Mr. R.K Mohapatra, the learned counsel for the petitioner, that when the admission notice as per Annexure-5 stipulated that application should be delivered by despatching the same “by registered post only and not by any other manner”, the post-office acted as the agent of the addressee and delivery to the post-office on 27-5-88 was delivery to the Convenor on that date.
Mr. R.K Patra, the learned Additional Government Advocate appearing for the opposite parties, however, submitted that the petitioner should have despatched his application sufficiently ahead of time taking into account the postal delays that sometimes occur. The opposite parties were not responsible for the delivery of postal article on 1-6-88. Since the application was not received in the office of the Convenor by 30-5-88 during office hours but on 1-6-88, there was no illegality in the rejection of the application.
3. Counsel have referred us to and relied upon some authorities which we shall notice and consider by and by. The principle that can be culled from the decisions may be stated in the following manner. Where delivery can be made in a mode at the option of the sender, the agency through which delivery is made acts as the agent of the sender whereas if delivery is made by way of despatch in the mode stipulated or prescribed by the addressee, the agency through which the article is dispatched acts as the agent of the addressee.
4. In Commr. of Income-tax, Bombay South v. Ogale Glass Works Ltd., AIR 1954 SC 429, the question was whether the sale proceeds were received in British India? Were the sale proceeds received in British India where the cheques were delivered? It was observed:
“….. There can be no doubt that as between the sender and the addressee it is the request of the addressee that the cheque be sent by post that makes the post office the agent of the addressee.
After such request the addressee cannot be heard to say that the post office was not his agent and, therefore, the loss of the cheque in transit must fall on the sender on the specious plea that the sender having the very limited right to reclaim the cheque under the Post Office Act, 1898, the Post Office was his agent, when in fact there was no such reclamation. Of course if there be no such request, express or implied, then the delivery of the letter or the cheque to the post office is delivery to the agent of the sender himself.
Apart from this principle of agency there is another principle which makes the delivery of the cheque to the post office at the request of the addressee a delivery to him and that is that by posting the cheque in pursuance of the request of the creditor the debtor performs his obligation in the manner prescribed and sanctioned by the creditor and thereby discharges the contract by such performance (see S. 50 of the Contract Act and illustration (d) thereto).”
In Indore Malwa United Mills Ltd. v. Commr. of Income-tax (Central), Bombay, AIR 1966 SC 1466, it was held:
“……. Now, if by an agreement, express or implied, between the creditor and the debtor or by a request, express or implied, by the creditor, the debtor is authorised to pay the debt by a cheque and to send the cheque to the creditor by post, the post office is the agent of the creditor to receive the cheque and the creditor receives payment as soon as the cheque is posted to him.”
The same view was also taken in Jagdish Mills Ltd. v. Commr. of Income-tax, AIR 1959 SC 1160. In Kirloskar Bros. Ltd. v. Commr. of Income-tax, Bombay, AIR 1952 Bom 306, it was held that it was only in those cases where the receiver nominated the post office as his agent that the posting of letter constituted the receipt of it by the receiver at the time and at the place where the letter was posted. Where the post office was not nominated as an agent of the receiver, then by posting the letter the sender constituted the post office his agent and when the letter was delivered to the receiver, it was delivered by the agent of the sender and not of the receiver.
A Bench of this Court in Ananda Sahu v. State of Orissa, (1979) 48 Cut LT 217 followed the aforesaid decisions in a case arising under the Orissa Development of Industries, Irrigation, Agriculture, Capital Construction and Resettlement of Displaced Persons (Land Acquisition) Rules, 1950 where objection to award of compensation could be made within seven days from the receipt of notice under R. 5. Objection was sent on the day following the receipt of notice by registered post but was received by the competent authority two days beyond the prescribed period. The question that arose for consideration was if the delivery to the post office was delivery to the competent authority? It was found that the claimants could make their written objection through post. This Court held in the circumstances that the post office acted as the agent of the competent authority and delivery to the post office on 24-8-1955 was delivery to the competent authority and was, therefore, within the time prescribed.
5. Para 6.3 of the prospectus as well as the admission notice stipulated that the application could only be sent “by registered post only and not by any other manner”. Hence, the petitioner could not have been delivered his application in the office of the Convenor even if he wanted to. He had to post and did post in the post office located inside the campus of the College barely 100 yards away from where the office of the Convenor is located. By requiring the applicant to send his application through post, the Convenor nominated the post office as his agent. Therefore, if the application was received in the office of the Convenor on 1-688, the petitioner cannot suffer. It should be deemed to have been delivered on 27-5-88. Haging Regard to the distance that the letter was to travel, posting three days before cannot be Considered to be unreasonable. The petitioner, therefore, should not suffer for the time the letter took in its journey of 100 yards from the post office to the office of the Convenor.
6. By order dt. 10-6-88, the petitioner was permitted to appear at the entrance examination. By order dt. 19-7-88 his result was directed to be published and it was further directed that if he was found to be qualified for admission on the basis of his performance in the said examination, a seat in the subject or speciality shall be kept reserved for him till disposal of the writ application. We therefore, direct that if the petitioner would have been admitted to the Two-year P.G Course on the basis of his result at the entrance examination had not his application been rejected, he should be admitted to the course.
7. In the result, the writ application is allowed. There would be no order as to costs.
A.K Padhi, I.:— 8. I agree.
Petition allowed.