1

A.F.R.

Chief Justice's Court

Civil Misc. Writ Petition No. 20841 of 2009

Neena Chaturvedi vs. Public Service Commission, Uttar Pradesh.

*****

Counsel for the petitioner:Mr. N.L. Pandey, Advocate.

Counsel for the respondent:Mr. M.A. Qadeer, Sr. Adv., with

Mr. Iqbal Ahmad Siddiqui, Adv.

Hon'ble Ferdino I. Rebello,CJ

Hon'ble Dilip Gupta,J

Hon'ble Sanjay Misra,J

(Delivered by Hon'ble F.I. Rebello,C.J.)

The petitioner pursuant to an advertisement, which had invited

applications for the post of Lecturer in Government Intermediate

College, which were to be received in the office of the Commission till

20

th

February, 2009 either by speed post or by hand, sent his application

by speed post on 17

th

February, 2009, which was received in the office of

the Commission on 21

th

February, 2009. The petitioner had prayed for a

mandamus to direct the Commission to accept the application form and

allow the petitioner to participate in the process of selection. In that

petition, by order dated 28.05.2009, the present reference.

2.A learned Single Judge of this Court, in this case, reported as

Neena Chaturvedi vs. U.P. Public Service Commission, Allahabad

[2009 (3) ESC 2082 (All)] has been pleased to refer the matter for

consideration by a larger Bench. Some of the relevant paragraphs read as

2

under:-

“49. Although I am conscious about the legal

proposition that a little difference in the facts or

additional facts may make a lot of difference in

presidential (precedental) value of a decision but

having regard to the facts and circumstances of the

case, I am of the considered opinion, that in such

cases the moving factor or decessive factor is not

prescription of one mode or several modes by the

addressee to send the articles to him rather it is

express or implied authorisation by the addressee

to send the articles to him by post, ultimately

decides the issue and makes the post office an

agent of the addressee. It is immaterial that the

addressee has provided any other or more alternative

modes to the sender including through post-office to

send the articles to the addressee. In my opinion,

prescription of such other alternative mode for

sending the articles to addressee would not change

the legal position stated herein before. However, in

cases where addressee does not prescribe any

modes for sending the articles to him and merely

time for receipt of the articles is fixed/prescribed

and sender chooses by his own to send the articles

to the addressee through registered post, in that

eventuality alone the post office would continue to

act as agent of the sender and not of addressee and

for any delay in transit the addressee would not be

responsible for simple reason that in such

situation it can not be held that addressee has

3

expressly or impliedly authorised or requested the

senders to send the articles through registered

post.

50. In view of aforesaid discussion, in my

opinion, the decisions rendered by Division Benches

of this Court in Ram Autar Singh v. Public Service

Commission, U.P., Allahabad and others, 1987

UPLBEC 316 (by Hon'ble Mr. Justice B.N. Misra and

Hon'ble Mr. Justice A.P. Misra), in Anupam v. Public

Service Commission, U.P. Allahabad and another,

W.P. No. 57508 of 2005 decided on 4.10.2005 (by

Hon'ble Mr. Justice Amitava Lala and Hon'ble Mr.

Justice Prakash Krishna), in Adil Khan v. State of U.P.

and others, W.P. No. 23152 of 2006 decided on

5.5.2006 (by Hon'ble Mr. Justice S.R. Alam and

Hon'ble Mr. Justice Sudhir Agarwal) require re-

consideration by Larger Bench/Full Bench

comprising of at least three or more than three judges

of this Court in the light of decisions rendered by

Hon'ble Apex Court in M/s. Ogale Glass Works Ltd.

case (supra), Jagdish Mill's case (supra), Indore

Malwa United Mill's case (supra), Unit Trust of India

v. Ravinder Kumar Shukla's case (supra) and in

Bhikha Lal's case (supra) decided by Full Bench of

this Court in context of questions formulated by me

in preceding part of this Judgement.

51. Since the postal service constituted under

the provisions of Indian Post Office Act 1898 is

entrusted public service and stood test of time,

therefore, having regard to the facts that the questions

involved in the case have wide impact upon the large

4

public interest touching the fundamental rights of the

candidates under Articles 16 and 21 of the

Constitution of India, an authoritative decision is

required to be rendered by Full Bench of this Court

comprising of at least three or more than three judges

so that the matter may be set at rest for all the times

to come in future. The Hon'ble the Chief Justice is

requested to constitute a Full Bench of this Court

comprising of at least three or more than three judges

for deciding the questions formulated by me in

preceding part of this judgment as early as possible.”

3.Though the precise question has not been formulated, considering

paragraphs 49, 50 and 51 and the reliance placed on the Full Bench

judgment of Bhikha Lal and others v. Munna Lal, 1974 A.L.J.470

(FB) and Commissioner of Income Tax, Bombay v. M/s Ogale Glass

Works Ltd. AIR 1954 SC 429, and the question referred for

consideration by the learned Judge in answering the issue before him

and which reads as under:-

“Whether in given facts and circumstances of the

case, the post office is agent of the addressee

(Commission) or sender and as to whether the

petitioner can be made to suffer on account of default

of the post office in delivering the application form of

the petitioner to the Commission after last date of

receipt of application form which was sent by the

petitioner within prescribed time?”

5

4.The learned Judge whilst answering the issue apart from other

reasons was pleased to observe as under:-

(i) I am of the considered opinion, that in such cases

the moving factor or decessive factor is not

prescription of one mode or several modes by the

addressee to send the articles to him rather it is

express or implied authorisation by the addressee

to send the articles to him by post, ultimately

decides the issue and makes the post office an

agent of the addressee. It is immaterial that the

addressee has provided any other or more alternative

modes to the sender including through post-office to

send the articles to the addressee. In my opinion,

prescription of such other alternative mode for

sending the articles to addressee would not change the

legal position stated herein before.

(ii). In cases where addressee does not prescribe

any modes for sending the articles to him and

merely time for receipt of the articles is

fixed/prescribed and sender chooses by his own to

send the articles to the addressee through

registered post, in that eventuality alone the post

office would continue to act as agent of the sender

and not of addressee and for any delay in transit

the addressee would not be responsible for simple

reason that in such situation it can not be held that

addressee has expressly or impliedly authorised or

requested the senders to send the articles through

registered post.”

6

5.The question that can be formulated for consideration would be

“when applications are invited, one through post office and the other by

any other means or only through post, does the post office become the

agent of the addressee, because there is express or implied authorisation

by the addressee to send the articles by post.”

6.Sri M.A. Qadeer, learned Senior Counsel, appearing for the U.P.

Public Service Commission has raised a preliminary objection that

considering the judgment in Ram Autar Singh v. Public Service

Commission, U.P., Allahabad and others, 1987 U.P.L.B.E.C., 316,

unreported judgments in Anupam v. Public Service Commission, U.P.

passed in Writ Petition No. 57508 of 2005 decided on 4.10.2005, in

Smt. Pooja Singh v. Public Service Commission & others passed in

Writ Petition No. 67808 of 2006 decided on 13.12.2006, in Adil Khan

v. State of U.P. & others passed in Writ Petition No. 23152 of 2006

decided on 5.5.2006, the issue which has been referred by the learned

Single Judge for consideration to a Larger Bench stands concluded and,

therefore, he submits that considering the law declared by the judgement

of a Bench of five Judges of this Court in Rama Pratap Singh and

others v. State of U.P. and others, A.C.J. 1995 page 200 and the

Supreme Court in Bharat Petroleum Corpn. Ltd. v. Mumbai

Shramik Sangha and others (2001) 4 S.C.C. 448, Pradip Chandra

Parija and others v. Pramod Chandra Patnaik and others (2002) 1

7

S.C.C. 1 and Central Board of Dawoodi Bohra Community and

another v. State of Maharashtra and another AIR 2005 Supreme

Court 752, and Official Liquidator v. Dayanand and others (2008) 10

SCC 1, the learned Single Judge could not have directly referred the

matter to the Full Bench even if he held a different view. Only if the

learned Single Judge had come to a conclusion that there were two

conflicting views of learned Single Judges, then only a reference could

have been made for referring the matter to a Bench of two Judges or at

the highest, if there had been two conflicting judgments of two Division

Benches, the matter could have been referred to the learned Chief

Justice for constitution of a larger Bench. Judicial discipline requires

that a learned Single Judge is bound by the judgment of a Larger Bench.

7.On the other hand, Mr. N.L. Pandey, learned counsel appearing on

behalf of the petitioner submits that the learned Single Judge was right

in referring the matter to a Larger Bench considering the Full Bench

judgment in the case of Bhikha Lal and others v. Munna Lal 1974

A.L.J. 470 (FB) and the judgment of the Supreme Court in

Commissioner of Income Tax, Bombay v. M/s Ogale Glass Works

Ltd. AIR 1954 SC 429 and other judgments referred to.

It is further submitted that what is binding on a learned Judge is

the ratio decidendi of the judgment. Considering the Full Bench

judgment in Bhikha Lal (supra), M/s. Ogala Glass Works Ltd. (supra),

and Commissioner of Income Tax, Bihar & Orissa v. M/s Patney and

8

Company, AIR 1959 SC 1070, the learned Single Judge was well within

his jurisdiction to have referred the matter to the learned Chief Justice

for constituting a Larger Bench.

8.Learned Counsel has placed reliance on the judgments in the case

of Dalbir Singh and others v. State of Punjab, (1979) 3 S.C.C. 745.

Our attention has been drawn to Paragraph 22 of the said

judgement, which reads as under:-

“22. With greatest respect, the majority

decision in Rajendra Prasad case (supra) does not

lay down any legal principle of general applicability.

A decision on a question of sentence depending upon

the facts and circumstances of a particular case, can

never be regarded as a binding precedent, much less

'law declared' within the meaning of Article 141 of

the Constitution so as to bind all courts within the

territory of India. According to the well-settled theory

of precedents every decision contains three basic

ingredients:

(i) findings of material facts, direct and

inferential. An inferential finding of facts is the

inference which the Judge draws from the

direct, or perceptible facts;

(ii) statements of the principles of law

applicable to the legal problems disclosed by

the facts; and

(iii) judgment based on the combined effect of

(i) and (ii) above.

For the purposes of the parties themselves and their

9

privies, ingredient (iii) is the material element in the

decision for it determines finally their rights and

liabilities in relation to the subject-matter of the

action. It is the judgment that estops the parties from

reopening the dispute. However, for the purpose of

the doctrine of precedents, ingredient (ii) is the vital

element in the decision. This indeed is the ratio

decidendi. It is not every thing said by a Judge when

giving judgment that constitutes a precedent. The

only thing in a Judge's decision binding a party is the

principle upon which the case is decided and for this

reason it is important to analyse a decision and isolate

from it the ratio decidendi. In the leading case of

Qualcast (Wolverhampton) Ltd. v. Havnes LR

1959 AC 743 it was laid down that the ratio

decidendi may be defined as a statement of law

applied to the legal problems raised by the facts as

found, upon which the decision is based. The other

two elements in the decision are not precedents. The

judgment is not binding (except directly on the

parties themselves), nor are the findings of facts. This

means that even where the direct facts on an earlier

case appear to be identical to those of the case before

the Court, the Judge is not bound to draw the same

inference as drawn in the earlier case."

Learned counsel further draws our attention to paragarph 59 of the

judgment in Bhavnagar University v. Palitana Sugar Mill (P) Ltd.

and others, (2003) 2 S.C.C. 111, which is as under:-

10

“59. A decision, as is well known, is an

authority for which it is decided and not what can

logically be deduced therefrom. It is also well settled

that a little difference in facts or additional facts may

make a lot of difference in the precedential value of a

decision. [See Ram Rakhi v. Union of India, AIR 2002

Del 458 (FB), Delhi Admn. (NCT of Delhi) v.

Manohar Lal, (2002) 7 SCC 222, Haryana Financial

Corpn. v. Jagdamba Oil Mills, (2002) 3 SCC 496 and

Nalini Mahajan (Dr) v. Director of Income Tax

(Investigation), (2002) 257 ITR 123 (Del)].

9.We have heard learned counsel. Let us first address to the issue of

ratio decidendi and per incuriam.

10.How can the ratio decidendi be ascertained from a decision has

been very clearly dealt with in Krishna Kumar Vs. Union of India,

AIR 1990 SC 1782. The observations made by Hon'ble Apex Court in

para 18 and 19 of the decision are as under:-

"18. The doctrine of precedent, that is being bound

by a previous decision, is limited to the decision itself

and as to what is necessarily involved in it. It does not

mean that this Court is bound by the various reasons

given in support of it, especially when they contain

"propositions wider than the case itself required." This

was what Lord Selborne said in Caledonian Railway

Co. v. Walker's Trustees (1882 (7) AC 259) and Lord

11

Halsbury in Quinn v. Leathem (1901) AC495 (502). Sir

Frederick Pollock has also said: "Judicial authority

belongs not to the exact words used in this or that

judgment, nor even to all the reasons given, but only to

the principles accepted and applied as necessary

grounds of the decision.

19. In other words, the enunciation of the reason or

principle upon which a question before a Court has

been decided is alone as a precedent. The ratio

decidendi is the underlying principle, namely, the

general reasons or the general grounds upon which

the decision is based on the test or abstract from the

specific peculiarities of the particular case which gives

rise to the decision. The ratio decidendi has to be

ascertained by an analysis of the facts of the case and

the process of reasoning involving the major premise

consisting of a pre-existing rule of law, either

statutory or judge - made, and a minor premise

consisting of the material facts of the case under

immediate consideration. If it is not clear, it is not the

duty of the Court to spell it out with difficulty in order

to be bound by it. In the words of Halsbury, 4th Edn.,

Vol. 26, para 573:

"The concrete decision alone is binding between

the parties to it but it is the abstract ratio decidendi,

as ascertained on a consideration of the judgment in

relation to the subject-matter of the decision, which

alone has the force of law and which when it is clear it

is not part of a tribunal's duty to spell out with

12

difficulty a ratio decidendi in order to be bound by it,

and it is always dangerous to take one or two

observations out of a long judgement and treat them

as if they gave the ratio decidendi of the case. If more

reason than one are given by a tribunal for its

judgment, all are taken as forming the ratio

decidendi."

11.On the issue of per incuriam, we may refer to the judgment of the

Supreme Court in Punjab Land Development and Reclamation

Corporation Ltd. v. Presiding Officer, Labour Court (1990) 3 S.C.C.

682. More specially paragraph 40, to point out as to when a judgment

can be said to be per incuriam, which is as under:-

“40. We now deal with the question of per

incuriam by reason of allegedly not following the

Constitution Bench decisions. The Latin expression

per incuriam means through inadvertence. A decision

can be said generally to be given per incuriam when

this Court has acted in ignorance of a previous

decision of its own or when a High Court has acted in

ignorance of a decision of this Court. It cannot be

doubted that Article 141 embodies, as a rule of law,

the doctrine of precedents on which our judicial

system is based. In Bengal Immunity Company Ltd. v.

State of Bihar, AIR 1955 SC 66, it was held that the

words of Article 141, “binding on all courts within

the territory of India”, though wide enough to include

the Supreme Court, do not include the Supreme Court

itself, and it is not bound by its own judgments but is

13

free to reconsider them in appropriate cases. This is

necessary for proper development of law and justice.

May be for the same reasons before judgments were

given in the House of Lords and Re Dawson's

Settlement Lloyds Bank Ltd. v. Dawson, (1966) 1

WLR 1456, on July 26, 1966 Lord Gardiner, L.C.

Made the following statement on behalf of himself

and the Lords of Appeal in Ordinary:

“Their Lordships regard the use of

precedent as an indispensable foundation upon

which to decide what is the law and its

application to individual cases. It provides at

least some degree of certainty upon which

individuals can rely in the conduct of their

affairs, as well as a basis for orderly

development of legal rules. Their Lordships

nevertheless recognise that too rigid adherence

to precedent may lead to injustice in a

particular case and also unduly restrict the

proper development of the law. They propose,

therefore, to modify their present practice and,

while treating former decisions of this House

as normally binding, to depart from a previous

decision when it appears right to do so.

In this connection they will bear in mind

the danger of disturbing retrospectively the

basis on which contracts, settlements of

property and fiscal arrangements have been

entered into and also the especial need for

certainty as to the criminal law.”

14

12.A judgment, therefore, can be said to be per incuriam if through

inadvertence a Court has acted in ignorance of a previous decision of its

own or when a High Court has acted in ignorance of a decision of the

Supreme Court or through inadvertence did not consider a relevant

statutory provision or rule or was oblivious of the relevant provisions of

law, so that in such cases some part of the decision or some step in the

reasoning on what it is based is found on that account to be

demonstratively wrong. [see A.R. Antuley v. R.S. Nayak and another,

AIR 1988 SC 1531, Punjab Land Development and Reclamation

Corporation Ltd. (supra)].

13.Once the ratio decidendi is ascertained, the learned Judge is

bound to follow the judgments of larger Benches. The issue of per

incuriam would only arise if from the ratio of judgments of larger

Benches it is found that those Benches did not consider the principles as

set out in paragraphs 11and 12 of this judgment.

14.We may also refer to the following paragraph in the judgment in

the case of Official Liquidator v. Dayanand and others, (2008) 10

SCC 1, which is as under:-

“78. There have been several instances of

different Benches of the High Courts not following

the judgments/orders of coordinate and even larger

Benches. In some cases, the High Courts have gone to

the extent of ignoring the law laid down by this Court

without any tangible reason. Likewise, there have

been instances in which smaller Benches of this Court

15

have either ignored or bypassed the ratio of the

judgments of the larger Benches including the

Constitution Benches. These cases are illustrative of

non-adherence to the rule of judicial discipline which

is sine qua non for sustaining the system. In

Mahadeolal Kanodia v. Administrator General of W.B.

AIR 1960 SC 936, this Court observed: (AIR p. 941,

para 19)

“19... If one thing is more necessary in law

than any other thing, it is the quality of

certainty. That quality would totally disappear

if Judges of coordinate jurisdiction in a High

Court start overruling one another's decisions.

If one Division Bench of a High Court is

unable to distinguish a previous decision of

another Division Bench, and holding the view

that the earlier decision is wrong, itself gives

effect to that view the result would be utter

confusion. The position would be equally bad

where a Judge sitting singly in the High Court is

of opinion that the previous decision of another

Single Judge on a question of law is wrong and

gives effect to that view instead of referring the

matter to a larger Bench. In such a case lawyers

would not know how to advise their clients and

all courts subordinate to the High Court would

find themselves in an embarrassing position of

having to choose between dissentient judgments

of their own High Court.”

15.Let us first find the ratio of the judgment in Bhikha Lal (supra)

16

applying the test laid down in Dalbir Singh (supra) and Krishna

Kumar (supra).

16.The judgement in Bhikha Lal (supra) had been considered by the

learned Division Bench of this Court in the case of Ram Autar Singh v.

Public Service Commission. U.P., Allahabad and others, 1987

U.P.L.B.E.C. 316. We may gainfully refer to paragraphs 6 & 7 of the

said judgment, which reads as follows:-

“6. Learned counsel appearing for the

petitioner has urged that as there was no negligence

or default on the part of the petitioner, there can be no

justification for rejection of his application merely

because it reached the Commission after expiry of the

last date. As despatch of application forms by post

was recognised by the Commission as one mode of

delivery of application forms from the candidates to

the Commission, the postal authorities became the

agents of the Commission and delivery to the postal

authorities would amount to receipt by the

Commission. In support of this contention reliance is

placed on a Full Bench decision of this Court

reported in 1974, Allahabad Law Journal, 470. The

facts of the case before the Full Bench are clearly

distinguishable from the facts of the present case.

That was a case of remission of rent by the tenant to

his landlords. The amount of rent due to be paid by

the tenant to the landlords was a petty sum of Rs. 35/-

and after discussing several cases of the Supreme

17

Court and of the courts in England and keeping in

view the peculiar facts and circumstances of the case,

the Full Bench finally came to the conclusion, on the

facts and in the circumstances of the case, the tenant

respondent could not be said to have committed a

default under Section 3 (1) (a) of the Act in respect of

the payment of Rs. 35/- which he sent to the

plaintiffs-landlords by a money order well within

time but which had reached the landlords after the

expiry of thirty days.

7. On careful consideration we are of the opinion

that the principles enunciated in respect of landlord

and tenant in the aforesaid Full Bench decision do not

have any application to the facts of the present case.

In our view the facts and circumstances of the present

case do not warrant application of the law of contract.

We have already stated that in the present case the

Commission had clearly notified that the closing date

for receipt of applications completed in all respects

was 14-7-1986 and that applications received beyond

that date were not to be accepted. Therefore, even if

we were to hold that the advertisement was to be

construed as an offer, as the term is understood in the

law of contract, the said offer was clearly notified to

lapse owing to the passing of time. Acceptance

cannot be said to have been completed on mere

despatch. It would have been complete only if it had

reached the offer or before the offer had lapsed on

expiry of the time prescribed.” (emphasis supplied)

In Bhikha Lal (supra), the question for consideration was

18

whether the tenant, who after having sent a money order for the rent due

to the landlord well within time but which reached the landlord after

expiry of 30 days, could be said to be a defaulter. The learned Full

Bench was in that context considering the issue as to whether the postal

authorities can be said to be the agent of the landlord.

After analysing various judgments referred to therein, the

principle deducible which can be noted is that where a creditor had

authorized explicitly or impliedly payment by money order, through the

post office and the debtor does dispatch the money order, the post office

becomes the agent of the addressee (landlord). The Court observed “As

far as the question under consideration before us is concerned, it strikes

me that there is no material difference or distinction between a payment

by cheque and a transaction where payment is made by a money order.”

Thereafter, after considering the law, the Court held “if there is an

express or implied request by the landlord for payment of the amount

claimed as arrears of rent, through a money order, the payment to the

post office is payment to the payee unless by subsequent action under

Section 44 of the Post Office Act the remitter cancels the money order.

Various judgements were considered. As to what would be express or

implied request, the Court held that two principles emerge, which we

may further reproduce as under:-

“22. From an analysis of these decisions two

principles emerge : The first is that if the creditor and

the debtor reside at two different places served by

19

postal system, from the very fact that the creditor

makes a demand through the post, an authority to the

debtor to meet his obligation through the post is

implied. This principle, to my mind is the foundation

of the decision in Norman v. Rickets which as already

stated above, has met the approval of the Supreme

Court. From the facts of the case, as reported it does

not appear that there was any evidence showing that in

any earlier transaction the debtor had met her

obligations to her creditor by post. The only two

circumstances present before the Court were : firstly

that the creditor and the debtor resided at two different

places in England and, secondly, that the creditor had

made the demand for payment by means of a letter sent

through the post. Thus, it appears to me that the Court

in this case inferred an implied authority to the debtor

to send the cheque by post merely because a demand

had been made by post. This principle to my mind is

based on sound logic. If a trader sends me a reminder

of an outstanding bill through a messenger, in the

absence of any intention expressed to the contrary, I

believe I would be justified in assuming that the trader,

by implication has authorised me to send the amount

outstanding through that messenger. Extending this

principle, if a creditor who resides in a different town,

makes a demand from his debtor by means of a letter

despatched through the post he impliedly invites the

debtor to meet his obligations through the post. In this

connection it may be borne in mind that “the

government exercises a governmental power for the

public benefit in the establishment and operation of the

20

postal money order system and is not engaged in

commercial translations, notwithstanding it may have

some aspects of commercial banking”. (Corpus Juris

Secundum, Vol. 72, page 298) and further that the

State has a monopoly in post offices as a consequence

of which the debtor has no choice as between

competing postal organizations.

23.Another principle that emerges from the two

Supreme Court decisions cited above is that if the

debtor and the creditor reside in two different places,

served by post offices and payments have to be by

cheques, then in the absence of anything to the

contrary, an implied agreement can be culled out

authorising the debtor to despatch the cheques through

the post office which will be treated as the creditor's

agent. This has come to be recognized as payment

“according to the course of business usage in general”.

This principle can be extended to the case of payments

made through money orders. If the creditor and the

debtor reside at two different places so that the debtor

cannot reasonably be expected to make cash payments

personally or through a messenger, then in the absence

of a stipulation to the contrary it may be assumed that

the debtor is impliedly authorized to pay his debt

through money orders. In such cases deposit of the

cash at a postal money order office will be treated as

payment to an agent of the creditor made in

accordance with “the ordinary usages of man-kind” to

borrow the words used by Lord Herschell in Henthorn

v. fraser, (1892) 2 Ch. D. 27.

21

The Court also held that what was material was that the

Commission had specified a date for receipt of applications and as such

acceptance could not be said to have been completed on mere dispatch

but would be completed if it had reached by the time specified. This is

the ratio of that judgment.

It is therefore clear that the Full Bench was not considering an

issue of an invitation to apply but a case where a money order was sent

through post and in those circumstances held that there was an implied

or express agreement to send the money through post and in such cases,

the postal authorities can be said to be the agent of the landlord

(addressee). It is in that context the Court held that in such

circumstances, the tenant cannot be said to be a defaulter.

17.In Ram Autar Singh (supra), the question for consideration

before the Court was rejection of the petitioner's application to appear at

the competitive examination for recruitment to the post of Munsif on the

ground that the application was received beyond the last date fixed by

the Commission. The judgment in Bhikha Lal (supra) was considered

and distinguished on the ground that the principle enunciated in respect

of the landlord and tenant in the Full Bench decision, does not have any

application to the facts of the case. The learned Bench proceeded to hold

considering that closing date for the receipt of application completed in

all respects was 14.7.1986 and that the applications received beyond that

date were not to be accepted. “Therefore, even if we were to hold that

22

the advertisement was to be construed as an offer, as the term is

understood in the law of contract, the said offer was clearly notified to

lapse owing to the passing of time. Acceptance cannot be said to have

been completed on mere despatch. It would have been complete only if

it had reached the offer or before the offer had lapsed on expiry of the

time prescribed.”

18.In the case of Pramod Kumar Singh v. State of U.P. and

another, [(2006) 1 UPLBEC 152], the judgement considered Ogale

Glass Works Ltd., (supra), Indore Malwa United Mills Ltd. v. The

Commissioner of Income-tax (Central) Bombay, AIR 1966 S.C.,

1466, Unit Trust of India v. Ravinder Kumar Shukla and others,

(2005) 7 S.C.C. 428.

In Pramod Kumar Singh (supra), the issue again was non

receipt of the application by the Commission sent through post where

post was one of the methods for applying. After considering various

judgments of this Court and the Supreme Court, the Court observed as

under:-

“9. Therefore, what we get from the above analysis?

We get the answer that either in the law or in the

contract or in the advertisement or in the necessary

document if mode is prescribed, such mode will be

the guiding principle in determining the issue as

regards service. If the mode is one, one has no other

alternative but to follow the same. If the mode is

more than one then the alternative mode can be

23

exercised. If one chooses to apply adopting one mode

and failed to exercise other mode, the responsibility

lies with the sender not with the addressee because

the post office is the agent only in respect of one

mode. In the instant case fault might have been

committed by the post office be it agent of either of

the parties or be it a public service mechanism. But so

far as the Commission is concerned, it is not at fault

whenever more than one mode is prescribed in the

advertisement. Frankly speaking we are very much

sympathetic to the candidate, who lost the

opportunity of making application, but we are sorry to

say that we can not render any equitable justice in

favour of the petitioner against the Commission in

such circumstances.”

19.Anupam (supra) was again a case of non acceptance of the

application by the Public Service Commission as it had reached beyond

the prescribed period. There were two modes for making applications.

The Court observed as under:-

“...When two modes are prescribed by the

Commission and one mode is availed, the same is the

risk and responsibility of the sender himself. Writ C

cannot evaluate amount of risk and responsibility to

compensate the petitioner. If the petitioner is entitled

any compensation in accordance with law from the post

office, he can seek advise for the same but Commission

can not be held responsible by extending time for

availing the postal mode only.

24

….Therefore, what we get from the above

analysis? We get the answer that either in the law or in

the contract in the advertisement or in the necessary

document if mode is prescribed, such mode will be the

guiding principle in determining the issue as regards

service. If the mode is one, one has no other alternative

but to follow the same. If the mode is more than one

then the alternative mode can be exercised. If one

chooses to apply adopting one mode and failed to

exercise other mode, the responsibility lies with the

sender not with the addressee because the post office is

the agent only in respect of one mode. In the instant

case, fault might have been committed by the post

office be it agent of either of the parties or be it a public

service mechanism. But so far as the Commission is

concerned, it is not at fault whenever more than one

mode is prescribed in the advertisement.”

20.The law thereafter was revisited in the case of Adil Khan (supra).

In Adil Khan (supra), the issue again was similar, i.e. non receipt

of application sent through post. There was more than one mode for

submission of forms. The learned Division Bench applied the ratio in

Ram Autar Singh (supra) and agreed with the view taken in Anupam

(supra). Reference was made to the judgment in Akhilesh Chandra

Maurya vs. State of U.P.- Writ Petition No. 7892 of 2005 decided on

10.4.2006, where it was held that postal department is an agent of the

Commission and in case the form is received beyond time due to postal

delay, the same cannot be rejected. The Bench also considered Shashi

25

Bhushan Kumar vs. Higher Education Service- Writ Petition No.

40351 of 2000, decided on 12.9.2000, where the view had been taken

that when the advertisement prescribed no other mode except agency of

post office for entertaining application forms of the prospective

candidates, the post office becomes the agent of the addressee. This

judgment was distinguished on the basis of only one mode and not more

than one mode as in the present case.

Paragraphs 6 to 9 of the aforesaid judgment are as under:-

“6. As per the ratio of AIR 1980 SC 431, Union

of India v. Mohd. Nazim, a post office accepts

responsibility of the sender when it accepts postal

articles to send to the addressee. It is a public service.

It can neither be treated as agent like common carrier

nor it enter upon any contract by the acceptance of

postal article either with the sender or addressee.

However, in a recent judgment dated 19

th

September,

2005 in Appeal (Civil) No. 1691 of 2005, Unit Trust

of India v. Ravinder Kumar Shukla, etc. etc., the

Supreme Court held that in the absence of any

contract or request from the payee, mere posting

would not amount to payment. In cases where there is

not contract or request, either expressly or impliedly,

the post office would continue to act as an agent of

the drawer. In that case the loss is of the drawer. If

two situations are seen side by side, the question or

responsibility will be understandable. In the instant

case, request is there on the part of the addressee.

Therefore, the addressee is responsible provide post

26

office alone has been made agent for the purpose of

receiving application as per the request. There the

shoe pinches. When two modes are prescribed by the

Commission and one mode is availed, the same is the

risk and responsibility of the sender himself. Writ

Court can not evaluate amount of risk and

responsibility to compensate the petitioner. If the

petitioner is entitled for any compensation in

accordance with law from the post office, he can seek

advise for the same but the Commission can not be

held responsible by extending time for availing the

postal mode only. It has argued that if someone is

stationed in a far away place and is not able to come

to file such application personally, second mode

cannot help such candidate. We can understand the

agony but in such case we can not compel the

Commission for accepting application because post

office is agent only in respect of service through it.

Moreover, according to us, question is not the

distance, but non-availability of other mode.

Commission is to discharge public duty to all. It can

not find out individual difficulty to meet the same.

Otherwise it will become never ending process. Two

very important Supreme Court judgments have been

referred herein. First one is reported in AIR 1996 SC

1466 (V 56 C 288), The Indore Malwa United Mills

Ltd. v. The Commissioner of Income-tax (Central)

Bombay. This is in respect of Income Tax Act but

even therein the Supreme Court categorically held as

follows:-

“If by an agreement, express or implied, by the

27

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.” (Emphasis supplied)

Therefore, the mode of sending the cheque was only

by post.”

7. In AIR 1954 SC 429 (Vol. 41, C.N. 104),

Commr. of Income tax, Bombay South, Bombay v.

Messrs Ogale Glass Works., Ogale Wadi, the Supreme

Court held again in a case of Income Tax Act and

Contract Act about sending cheques by post, as

under:-

“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.” (Emphasis Supplied)”

“8. Again in this case we find that a request

was made by the addressee to the sender to send the

cheque by post and for the same he could not avoid

the responsibility. Sometimes in the cases between

28

landlord and tenant we find notice is required to be

served by post in accordance with law and if not

served following such prescription, such notice can

not be construed as a valid notice.”

“9. Therefore, what we get from the above

analysis? We get the answer that either in the law or

in the contract or in the advertisement or in the

necessary document if mode is prescribed, such mode

will be the guiding principle in determining the issue

as regards service. If the mode is one, one has no

other alternative but to follow the same. If the mode is

more than one then the alternative mode can be

exercised. If one chooses to apply adopting one mode

and failed to exercise other mode, the responsibility

lies with the sender not with the addressee because

the post office is the agent only in respect of one

mode. In the instant case fault might have been

committed by the post office be it agent of either of

the parties or be it a public service mechanism. But so

far as the Commission is concerned, it is not at fault

whenever more than one mode is prescribed in the

advertisement. Frankly speaking we are very much

sympathetic to the candidate, who lost the opportunity

of making application, but we are sorry to say that we

can not render any equitable justice in favour of the

petitioner against the Commission in such

circumstances.”

21.In Adil Khan (supra), Ram Autar Singh (supra), M/s Ogale

Glass Works Ltd. (supra), Sri Jagdish Mills Ltd. v. The

Commissioner of Income Tax, Bombay North, Kutch and

29

Saurashtra AIR 1959 SC 1160, Indore Malwa United Mills (supra)

were considered and the view taken in Ram Autar Singh (supra) and

Anupam (supra) was approved.

22.The learned Judge in his judgment has proceeded to distinguish

Ram Avtar Singh (supra), Smt. Pooja Singh (supra), Anupam (supra)

and Adil Khan (supra). Once the learned Judge found that the

judgments which he had considered and distinguished or found as per

incuriam, had been considered and distinguished by larger Benches even

in the opinion of the learned Judge wrongly, then the judgments cannot

be said to be per incuriam. The judgments were not rendered in

ignorance of the judgments of the Supreme Court or of this Court. It is

nobody's case that the judgments of the Division Bench of this Court

had been passed in ignorance of any provision of law, which had to be

considered for the purpose of considering the issue. The doctrine of per

incuriam, therefore, was not applicable. In these circumstances, the

learned Judge considering the binding precedents, ought not to have

proceeded to direct a reference.

23.Apart from that, the learned Benches, which had taken the view

that in the case where there was more than one mode of receiving

application, then in that case, the post office would not be an agent of

the addressee and had also relied upon the judgments of the Orissa High

Court in Dr. Annada Prasad Pattnaik Vs. State of Orissa and others,

reported in AIR 1989 ORISSA 130, a Full Bench of Madras High Court

30

in R. Vinothkumar v. The Secretary, Selection Committee,

Sabarmathi Hostel, Kilpauk Medical College Hostel Campus,

Kilpauk, Madras & Others, reported in 1995-1-L.W. 351 and the

judgment of Andhra Pradesh High Court in V. Ramesh V. Convenor,

EAMCET-1995, Jawaharlal Nehru Technological University,

Hyderabad, reported in AIR 1997 ANDHRA PRADESH 79.

24.Let us now consider the ratio of the Supreme Court Judgments

which were considered by the learned Single Judge in Ogale Glass

Works Ltd. (supra). A finding was recorded that considering the usage

in general the parties must have intended that the cheques should be sent

by post which is the usual and normal agency for transmission of such

articles. Apart from that it was observed that implication of an

agreement arising from such business usage the assessee expressly

requested the Government to “remit” the amount of the bills by cheques.

This clearly amounted in effect to an express request by the assessee to

send the cheques by post.

Then after considering English Law, the Supreme Court was

pleased to observe as under:-

“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

31

fall on the sender...”

Secondly, the Court observed as under:-

“...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

Section 50 of the Indian Contract Act and illustration

(d) thereto)”

The matter was again considered in M/s Patney and Con.

(supra) wherein it was observed by the Supreme Court that if it is

shown that the creditor authorized the debtor either expressly or

impliedly to send a cheque by post the property in the cheque passes to

the creditor as soon as it is posted. Therefore the post office is an agent

of the person to whom the cheque is posted if there be an express or

impliedly authority to send it by post. But in the absence of such request

the post office cannot be constituted as the agent of the creditor.

In Shri Jagadish Mills Ltd. (supra) the Supreme Court once

again observed that where, however, on the facts and circumstances of

the case an implied request by the creditor to send the cheque by post

can be spelt out, the Post Office would be constituted the agent of the

addressee for the purposes of receiving such payment.

32

In The Indore Malwa United Mills Ltd. (supra) the Supreme

Court reiterated that if by an agreement, express or implied, by the

creditor, the debtor is authorized 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 Supreme Court examined all the earlier judgments referred to

in Unit Trust of India vs. Ravinder Kumar Shukla and others, (2005)

7 S.C.C. 428. A finding was recorded that there was no proof of any

contract or request by payees for sending the amount by post nor any

proof of a practice from which such request could be implied. In such

circumstances, the Court observed that, thus the law is that in the

absence of any contract or request from the payee, mere posting would

not amount to payment. In cases where there is no contract or request,

either express or implied, the post office would continue to act as the

agent of the drawer. In that case the loss is of the drawer.

In all the judgments except in the case of Ravinder Kumar

Shukla (supra), a finding was recorded that either there was an express

or implied agreement between the parties to send the cheque by post.

25.The principle, therefore, from these judgments is clear that as

between the sendor (debtor) and the creditor (addressee), if the creditor

agrees, expressly or impliedly that the cheques should be sent by post,

then in that event on the debtor sending the cheques by post, the post

33

office becomes the agent of the creditor. Similarly when offers are

invited generally through advertisement or otherwise to reach the

offeror, then on acceptance of the offer communicated through post, the

post office becomes the agent of the offeror on the day the acceptance is

posted.

26.It is true that the judgments of co-ordinate Benches of other High

Courts, at the highest, are persuasive and not binding precedents.

However, the learned Judge ought to have noted that once the larger

Benches of this Court had considered those judgments and placed

reliance on the ratio decidendi, the learned Judge ought to have, as

a matter of judicial propriety, followed the view taken by the larger

Benches of this Court, even if he had reservation on the law laid

down.

27.We may note that the High Court of Orissa in Dr. Annada

Prasad Pattnaik (supra) had taken the view that 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 despatched acts as the

agent of the addressee.

28.The judgment of the Full Bench of the Madras High Court in R.

Vinothkumar (supra) noted that the decision of the Supreme Court had

not answered the issue of construction of a clause stipulating a

34

condition, the non-fulfilment of which has the effect of denying an

applicant the benefit of consideration of his application. The Court

noted that the receipt of the application within the stipulated time being

a condition for the very exercise of power by the competent Selection

Authority, there is neither any scope for such Authority, even if it so

desires, to exercise the power in respect of such an application belatedly

received nor could this Court compel the exercise of power by such

Authority notwithstanding the non-fulfilment of the condition precedent

for its exercise. The Court further noted that the normal expectation of

the applicant that his application may reach the Authority in time or the

actual lapse in the postal services resulting in the belated delivery of the

envelope containing the application cannot be used as lever against the

Selection Authorities. The Full Bench after considering the law and the

judgments of the Supreme Court proceeded to hold that as per the

principle evolved in the Common Denominator decisions of the Supreme

Court, as reflected in the decision of the Division Bench of Orissa High

Court, such post office must have to be construed to have been

constituted as the agent of the sender/applicant and not the agent of the

addressee/Directorate. Only if the post office is being constituted as the

agent of the addressee, the receipt of application by such agent, long

prior to the last date of receipt of applications would tantamount to the

receipt of application by the Principal/addressee/Directorate.

29.The Andhra Pradesh High Court in V. Ramesh (supra) relied on

35

the judgment of the Madras High Court in R. Vinothkumar (supra) and

agreed with the view taken by the majority and the judgment of

Janarthanam, J. We may only note that in the case before the Andhra

Pradesh High Court, it was the department, which had used the agency

of the post office to send a communication to the addressee to appear for

the examination, which he did not receive in time.

30. The law on the acceptance of application through post, when it is

one of the modes for applying as set out in the case of Ram Avtar Singh

(supra) and its ratio that for acceptance to be completed, it must reach

within the time stipulated, is being followed in the State for the last over

23 years and is being reiterated from time to time. In these

circumstances, in our opinion, the learned Judge totally misdirected

himself in law, firstly, in distinguishing the judgments and secondly, in

not following them and referring the matter to a larger Bench.

31.That being the position, considering the law declared by the

Supreme Court in Bharat Petroleum Corpn. Ltd. (supra), Pradip

Chandra Parija (supra) and Central Board of Dawoodi Bohra

Community (supra), the learned Single Judge could not have made the

reference, which we hold, is not maintainable.

32.Having said so, to re-state the law, we may revisit the issue. In the

instant case, the applicant applied to a body which has invited

applications by a cut-of-date. Even if the post office was an agent, all

that the agent agrees to do is to deliver the letter or parcel within the

36

reasonable period of time as noted by the Division Bench in the case of

Pramod Kumar Singh (supra).

33.Apart from that insofar as the entire process of recruitment is

concerned, may be in the office of respondent or any other body, which

invites applications, if view is accepted that the post office becomes the

agent of the addressee, the very process of recruitment itself would be

frustrated. A contract between the sender and the post office cannot bind

the addressee. Even otherwise accepting a proposition that the post

office becomes the agent of the body which invited the applications

would lead to manifest inconvenience and absurdity. For how long

would such body have to wait for receipt of applications sent by post to

conduct the interview, or hold the examination and what happens in

cases where the application is lost through transit. Therefore when

applications are to be received by a particular cut off date assuming that

there is an offer and acceptance, receipt of the application by that cut off

date only would make the acceptance complete.

34.Let us consider some statutory provisions. Section 4 of the Indian

Post Office Act, 1898 sets out that whenever within India, posts or postal

communications are established by the Central Government, the Central

Government shall have the exclusive privilege of conveying by post,

from one place to another, all letters except for which is set out

thereunder.

By virtue of Section 6, the Government shall not incur any

37

liability by reason of the loss, misdelivery or delay of, or damage to, any

postal article in course of transmission by post except in so far as such

liability may in express terms be undertaken by the Central Government

as provided in the Act.

Under The General Clauses Act, 1897, in Section 27 it is provided

where any Central Act or Regulation made after the commencement of

this Act authorizes 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 (emphasis supplied).

Similar in so far as The Uttar Pradesh General Clauses Act, 1904

is concerned, Section 27 is identical except for the words “Central

Government Act”, the expression used is the “Uttar Pradesh Act” which

authorizes or requires any document to be served by post the expression

used is ‘in the ordinary course of post’.

Section 114 of The India Evidence Act, 1872 illustration (f) reads

as under:-

“(f) That the common course of business has

been followed in particular cases.”

We may also reproduce Section 4 of the Indian Contract Act,

38

which reads as under:-

“4. Communication when complete. The

communication of a proposal is complete when it

comes to the knowledge of the person to whom it is

made.

The communication of an acceptance is

complete,--

as against the proposer, when it is put in a

course of transmission to him, so as to be out of the

power of the acceptor;

as against the acceptor, when it comes to the

knowledge of the proposer.

The communication of a revocation is

complete,--

as against the person who makes it, when it is

put into a course of transmission to the person to

whom it is made, so as to be out of the power of the

person who makes it;

as against the person to whom it is made, when

it comes to him knowledge.”

Thus considering that the post office has an exclusive privilege,

letters sent through post office in cases covered by the General Clauses

Act and the U.P. Act, the delivery is effected when the letter would be

delivered in the ordinary course of post and considering Section 4 of the

Indian Contract Act as against the acceptor, when it comes to the

knowledge of the proposer.

35.We may now consider the Postal Rule in English Law as stated in

39

HALSBURY’S Laws of England, Fourth Edition Reissue, which states

as under:-

“In modern times, contracts negotiated at a

distance tended to be made by correspondence

exchanged through the post administered by the Post

Office. Except as stated below, all communications

with respect to the formation of a contract which are

sent through the medium of the Post Office have the

legal effects previously outlined. However, where

such a communication is sent through the medium of

the Post Office, there is said to be a general rule that

a properly-addressed postal acceptance is complete

when the letter of acceptance is posted….

The following consequences are said to follow

from this ‘postal rule’ : (1) a postal revocation of an

offer only takes effect on receipt, provided that the

revocation is communicated, so that an acceptance

posted at any time before that receipt prevails ; (2) a

postal acceptance takes effect on posting even though

accidentally lost or delayed in the post ; and (3) a

postal acceptance of an offer relating to title of goods

takes effect in priority to another contract affecting

the same subject-matter but made after posting of the

first acceptance.”

In para 677, it is set out as under:-

“It is presumed that, unless the offeror

exclusively prescribes some different mode of

acceptance, an offer made through the post may be

40

accepted by post. Furthermore, even where an offer is

not made by post, if the circumstances are such that it

must have been within the contemplation of the

parties that, according to the ordinary usages of

mankind, the post might be used as a means of

communicating the acceptance, the offer may be

accepted by a letter sent through the post. Such

posted acceptances prima facie take effect on

posting...”

This rule has been described as under:-

“Various unconvincing reasons for the postal

rule have been judicially suggested. First, it has been

argued that, if the rule did not exist, no contract could

ever be completed by post because neither party

should be bound until he knew the other had received

his communication. Secondly, it has been explained

on the basis that the Post Office is the common agent

of both parties ; but, of course, the Post Office is only

the agent to carry not to receive, the communications.

Thirdly, it has been said that English law favours the

offeree because it is the offeror who ‘trusts the post’.

Fourthly, by way of explanation it has been argued

that the offeror must be considered as making the

offer all the time his offer is in the post, and therefore

the agreement is complete as soon as the acceptance

is posted. In truth, the rule is an arbitrary one, being

little better than the possible alternatives ; and it is,

perhaps, linked with the Post Office practice that a

posted letter cannot be retrieved.”

41

36.In CHITTY ON CONTRACTS Thirtieth Edition, Volume I, the

posting rule which is discussed under the heading under Sub-Chapter of

“THE ACCEPTANCE”, CHITTY describes Acceptance as under:-

“An acceptance is a final and unqualified

expression of assent to the terms of an offer. The

objective test of agreement applies to an acceptance

no less than to an offer. On this test, a mere

acknowledgement of an offer would not be an

acceptance; nor would a person to whom an offer to

sell goods had been made accept it merely by

replying that it was his “intention to place an order”

or by asking for an invoice…

The posting rule has been described as under:-

“An acceptance sent by post could take effect

when it is actually communicated to the offeror, when

it arrives at his address, when it would in the ordinary

course of post have reached him, or when it is posted.

Each of these solutions could cause inconvenience or

injustice to one of the parties, especially when the

acceptance is lost or delayed in the post. In English

law, what is usually regarded as the general rule is

that a postal acceptance takes effect when the letter of

acceptance is posted...

It is then observed as under:-

42

“The posting rule applies only if it is

reasonable to use the post. This will normally be the

case if the offer itself is made by post. It may be

reasonably to use the post even though the offer was

made orally if immediate acceptance was not

contemplated and the parties lived at a distance...

The posting rule can be excluded by the terms

of the offer. The posting rule is essentially one of

convenience. The English authorities support its

application in three situations namely, Posted

acceptance preceded by uncommunicated withdrawal;

Acceptance lost or delayed in the post; Priorities;

Misdirected letter of acceptance.”

The law thus emanates from an offer made. Generally speaking,

an agreement is reached when an offer made by one of the parties (the

offeror) is accepted by the other (the offeree or acceptor). Such an

agreement may, however, lack contractual force because it is incomplete,

because its terms are not sufficiently certain, because its operation is

subject to a condition which fails to occur because it was made without

any intention to create legal relations. An agreement may also lack

contractual force on the ground of want of consideration.

The learned author then notes, that there is, however, a distinction

between an offer and invitation to treat when the parties negotiate with a

view to making a contract, many preliminary communications may pass

between them before a definite offer is made. One party may simply ask,

or respond to, a request for information, or he may invite the other to

43

make an offer. A communication by which a party is invited to make an

offer is commonly called an invitation to treat. It is distinguishable from

an offer primarily on the ground that it is not made with the intention

that it is to become binding as soon as the person to whom it is

addressed simply communicates his assent to its terms. A statement is

clearly not an offer if it expressly provides that the person who makes it

is not to be bound merely by the other party’s notification of assent but

only when he himself has signed the document in which the statement is

contained.

Advertisements intended to lead to the making of bilateral

contracts are not often held to be offers. Thus a newspaper advertisement

that goods are for sale is not generally an offer; an advertisement that a

scholarship examination will be held is not an offer to a candidate.

37.In this respect, we may consider the judgment in Rooke v.

Dawson [1895] 1 Ch. 480.

In that case, the CHITTY, J. held as under:

“In that case the defendants sent out a circular as

follows: “We are instructed to offer to the wholesale

trade for sale by tender the stock in trade of” A.,

amounting to so and so, “and which will be sold at a

discount in one lot. Payment to be made in cash.” It

was held that this did not amount to a contract or

promise to sell to the person who made the highest

tender. The judgment of the Court was that this was, to

use Mr. Justice Willes’ words (1): “A mere

44

proclamation that the defendants are ready to chaffer

for the sale of the goods, and to receive offers for the

purchase of them.” Applying the principles of that case

to the present, is there a contract ? In my opinion there

is nothing more than a proclamation that an

examination for a scholarship will be held, and there is

no announcement that the scholarship will be awarded

to the scholar who obtains the highest number of

marks. Consequently by coming in and submitting to

the examination the Plaintiff did not do that which

resulted in a contract.”

This therefore would be an authority for the proposition that a

newspaper advertisement inviting applications for scholarship, is not an

offer.

38.The various judgments which have been considered would

indicate that the postal rule normally applies when there is a case of

offer and acceptance. The judgments of our Supreme Court are in a set

of cases of an agreement between the debtor and the creditor that the

cheque should be sent by post. It is in these circumstances that courts in

India applied the postal rule, whereby the Post Office becomes an agent

for the addressee (creditor) in those circumstances.

39.If applications are invited by addressee for an interview or

recruitment from eligible members from the general public, by

advertisement either expressly by one mode or more, one of which is

post office, when an applicant chooses to send his application through

post, though the letter is posted in time but delivered late after last date

45

of receipt, the question that arises for consideration is:-

“On an offer being made by advertisement, and

an acceptance is sent by post, when does the

acceptance become complete, on the date of receipt

of the acceptance in the post office or its receipt by

the addressee”

On an advertisement being issued by the offeror inviting

applications through post and the sender (applicant) sends application

through post (acceptance) but the same does not reach by the date

mentioned in the advertisement, will the postal rule apply? The offeror

in such cases, apart from inviting applications also lays down as one of

its terms, that applications have to be received by a particular date. The

offer therefore made if any, is receipt of the application through the post

by a particular date.

The postal rule however applies, the moment an acceptance is

posted through post, then the post office becomes the agent of the

addressee (offeror). An advertisement inviting applications for

examination or recruitment is merely an invitation to offer and not an

offer itself. The person who sends his application by post or by any other

mode assuming it is based on an offer, must send the acceptance by the

particular date, in terms of offer. If it does not reach by that date, there

can be no acceptance and the postal rule would not apply.

40.In Household Fire Insurance v. Grant (1879) 4 Ex D 216, the

Court considering the rule held that as a rule, a contract formed by

46

correspondence through the post is complete as soon as the letter

accepting an offer is put into the post, and is not put to an end, in the

event of the letter never being delivered. After considering the rule, the

court noted “that the implication of a complete, final and absolutely

binding contract being formed, as soon as the acceptance of an offer is

posted, may in some cases lead to inconvenience and hardship. But such

there must be at times in every view of the law. It is impossible in

transactions which pass between parties at a distance, and have to be

carried on through the medium of correspondence, to adjust conflicting

rights between innocent parties, so as to make the consequences of

mistake on the part of a mutual agent fall equally upon the shoulders of

both.” The Court then held “at the same time I am not prepared to admit

that the implication in question will lead to any great or general

inconvenience or hardship. An offerer, if he chooses, may always make

the formation of the contract which he proposes dependent upon the

actual communication to himself of the acceptance”.

41.In Holwell Securities Ltd. v. Hughes, [1974] 1 All ER 161, the

Court of appeal held, that the rule that an acceptance of an offer could be

effected, so as to constitute a binding contract, merely by posting a letter

of acceptance, did not apply when the express terms of the offer

stipulated that the acceptance had to reach the offeror. Thus the postal

rule does not apply in cases when the express terms of the offer specify

that the acceptance must reach the offeror. In the same judgement

47

LAWTON LJ. held that it also does not operate if its application would

produce manifest inconvenience and absurdity, quoting opinion set out

in Cheshire and Fifoot’s Law of Contract.

In Holwell Securities Ltd. (supra), the issue was 'acceptance by

post'. The question was whether mere acceptance of an offer constituted

binding contract by posting a letter of acceptance. The Court of appeal

speaking through Lawton, J. observed as under “Does the rule apply in

all cases where one party makes an offer which both he and the person

with whom he was dealing must have expected the post to be used as a

means of accepting it? In my judgment, it does not. First, it does not

apply when the express terms of the offer specify that the acceptance

must reach the offeror. The public nowadays are familiar with this

exception to the general rule through their handling of football pool

coupons. Secondly, it probably does not operate if its application would

produce manifest inconvenience and absurdity”. This was based on the

opinion set out in Cheshire and Fifoot's Law of Contract.

The court then observed that such an interpretation would be

subject to inconvenience and absurdity and then observed “In my

judgment, the factors of inconvenience and absurdity are but illustrations

of a wider principle, namely, that the rule does not apply if, having

regard to all the circumstances, including the nature of the subject-matter

under consideration, the negotiating parties cannot have intended that

there should be a binding agreement until the party accepting an offer or

48

exercising an option had in fact communicated the acceptance or

exercise to the other

42.That the English Postal rule will apply in India, has been accepted

by the Supreme Court in M/s Ogale Glass Works Ltd. (supra) where

the Court rejecting the argument that English principles would not apply

observed “It is, however, not necessary to pursue this line of reasoning

any further for the principles underlying the English decision are clearly

consonant with the provisions of the Indian Law”.

43.If the postal rule is made applicable in matters of inviting

applications to appear for an examination or for an interview, and

applications are to be sent by post, even if one application does not reach

in time on account of postal delay to scrap the examination or hold

special examination in such cases would produce manifest

inconvenience and absurdity.

44.In ANSON'S LAW OF CONTRACT edited by A.G. Guest, 26

th

Edition, the postal rules has been explained as where the terms of the

offer expressly or impliedly indicate that it is to be accepted, not by the

performance of some act or forbearance, but by a return promise given

by the offeree, the general rule is clear: acceptance must be

communicated before it can take effect. But in certain exceptional cases

the law, for reasons, of convenience, is prepared to hold that the offeror

is bound though the acceptance has not reached him. This is so where it

is reasonable for the offeree to notify his acceptance by post or telegram.

49

Learned author notes that logic of this rule may be questioned and

various attempts have been made to justify this rule analytically. After

considering various lines of reasons, the author observes that the better

explanation would seem to be that the rule is based, not on logic, but on

commercial convenience. If hardship is caused, as it obviously may be,

by the delay or loss of a letter of acceptance, some rule is necessary, and

the rule at which the Courts have arrived is probably as satisfactory as

any other would be. It is always open to the offeror to protect himself by

requiring actual notification of the acceptance, and the nature of the offer

or the circumstances in which it was made may indicate that notification

is required.

45.Even in respect of an agency the same is based on the principle,

that the Principal is bound by the acts of the agent. Rule of agency in a

case of merely inviting offers normally would not apply if a date for

receipt of the acceptance is set out. Therefore, in such cases, if at all the

law of agency applies it would be between the sender and the post office

by virtue of the fact that the sender delivers the letters or articles to the

post office. The post office is bound as an agent of the sender to deliver

it to the addressee.

46.In our opinion, therefore, though as earlier pointed out the

reference itself is not maintainable,t we have clarified the law so as to

avoid multiplicity of proceedings.

47.The reference is answered in the negative.

50

48.Reference is answered accordingly.

Date:13

th

August, 2010

RK/

(Ferdino I. Rebello,CJ)

(Dilip Gupta,J)

(Sanjay Misra,J)