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Judgment
P. S. Mishra, C.J.—The petitioner-appellant, who, it is not in dispute, is entitled to admission in any of the Engineering Colleges of the State on a reserved seat for N.C.C. ''C'' candidates, has failed to take the benefit for, according to him, he was not informed that he was required to report on 15-10-1995 for such admission. He has moved this Court under Art. 226 of the Constitution of India and sought a writ in the nature of mandamus or direction declaring the action of the respondent in not giving admission to him and providing seat accordingly as illegal, arbitrary and violative of Art. 14 of the Constitution of India. It is not in dispute that the petitioner-appellant applied for entrance examination for admission to the Engineering course and secured the rank of 16413 in the entrance examination. As a holder of N.C.C. ''C'' Certificate, however, he qualified for being given a seat, but, according to him, he received no intimation to the said effect. He came, however, to learn that he was denied the seat for his not being present at the lime of interview for granting admission on 15-10-1995 only after his filing the Instant petition in the Court seeking the Courts intervention for the said purpose. He has alleged, when he learnt that candidates obtaining ranks from 224 to 5,500 were being offered seats, he visited the University and was informed that the candidates with N.C.C. ''B'' Certificate, who were holding the rank of above 18000 were granted admission in the Engineering College. He, being the holder of N.C.C. ''C'' Certificate, has the priority, which, according to him, has been ignored by the respondent.
The above facts are not disputed in the counter-affidavit. It is, however, stated that the candidates belonging to N.C.C. category and physically handicapped were sent communication letters, followed by telegrams, requiring them to appear on 15-10-1995. Since the petitioner-appellant failed to appear on the said date, other candidates who attended the interview were considered and were granted admission. Thus, all the seats reserved for N.C.C. category have been filled. Since, however, petitioner-appellant also made a request for allotment of a payment seat, he was called for interview on 2-11-1995 and offered a payment seat available on that date. On verification and as stated in the counter-affidavit, however, there is no material to know as to whether any call letter was ever sent to the petitioner-appellant. Telegram, however, was given to him on 12-10-1995. It has transpired the same has not been delivered to him and as per the affidavit and information furnished on behalf of the respondent, the telegraph department has informed that the same could not be served upon the petitioner-appellant for the reason of service error. Learned single Judge, how ever, has taken the view that since intimation was sent by the authorities to the petitioner-appellant because the telegraph department failed to serve the same, the respondent cannot be held responsible. Since facts are not in dispute, it is required to be examined whether non-service of any intimation upon the petitioner-appellant has resumed in denial of any right to him and whether the respondent, for the said lapse, can be held responsible. We could have chosen this case as one to advert to certain questions as to the accountability of the respondent for not securing the service of the intimation issued by it for the appearance of the petitioner-appellant for interview on 15-10-1995, had our attention been not drawn to a learned judgment of a Full Bench of the Madras Court in the case of Vinothkumar R. v. Secretary, Selection Committee, Sabarmathi Hostel, K.M.C. 1995 (1) Mad LW 351. Madras Court Full Bench decision has resolved a controversy and the conflict which existed between two Division Bench judgments of the Court i.e., R. Maheswari Vs. Secretary Selection Committee, Tamil Nadu Professional Courses, Madras and another, and Anil Latha Gold v. Govt. of Tamil Nadu 1994 (2) Mad LW 686. Sri-nivasan, J. as he then was, in his dissenting judgment has reiterated that the principle of agency shall be attracted when the respondent would choose the post office to carry its message and in the case before him even when prospectus provide that applicants could send their applications by post or deliver in person before the competent authorities. The majority, however, constituting the Full Bench in the words of Janarthanam, J. has stated the law in these words,
"If conditions or stipulations are contained in the prospectus with an option being given to applicants to send the applications either in person or by registered post and if an applicant prefers to send the application by registered post, by handing over the same at a post office some days earlier to the last date of receipt of applications and once such an option is exercised, it goes without saying that as per the principle evolved in the Common Denominator decisions of the Apex Court of this country, 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 application by the Principal/addressee/Directorate. In such a situation, the decision arrived at by the latter Division Bench of this Court cannot at all be stated to be in tune with the principle, as evolved by the Supreme Court, as indicated earlier."
The above, in our view, is the correct statement of the legal consequences of an agent getting involved in carrying a message from one person to another and in the instant case, the telegraph department/postal department was chosen as its agent by the respondent to carry the intimation for delivery to the petitioner-appellant for his appearance at the interview on 15-10-1995. The judgment of the Supreme Court in the Common Denominator decisions has been analysed in some details by Janarthanam, J. in his judgment to which Raju, J. has concurred and when we view the facts of this case, we are inclined to conclude unhesitatingly that in the instant case, the lapse of the telegraph department resulting in noncommunication of the date for the interview to the petitioner-appellant has to be construed as the lapse of an agent of the respondent and the Principal i.e., respondent must take the responsibility/liability of the lapse of the agent. Going by the above, we have to hold that non-appearance of the petitioner-appellant for the interview on 15-10-1995 has been caused on account of the lapse of the respondent and thus the respondent has the liability to make good the loss caused to the petitioner-appellant. The application of the petitioner-appellant, for the said reason, has to succeed. The respondent has a duty to provide to the petitioner-appellant a seat before the person ranking next to him in order of merit and since persons who have ranked below him have been given free seats, allotment of a payment seat to the petitioner-appellant is not justifiable under any law. In view of the above, the impugned judgment has to be set aside.
In the result, the appeal is allowed. The impugned judgment is set aside. The writ petition is allowed and a mandamus issued to the respondent to compensate for the loss caused to the petitioner-appellant by providing to him a free seat in any of the Engineering Colleges in the State. No costs.
Appeal allowed.