SUJATA KHAMARI Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS writ petition has been filed with a prayer to quash the order of the Chief District Medical Officer, Bargarh dated 18.7.2011 under Annexure -4 by which Opposite party No.5 -Mamata Ratha was selected for opening of 24 hours Day and Night Medicine Shop inside the campus of C.H.C., Bheden in the district of Bargarh on the ground that such selection is illegal being contrary to the guidelines issued by the Government in H&F Welfare Department. Further prayer of the petitioner is for issuance of necessary direction to opposite parties to declare the petitioner as selected candidate for opening of 24 hours Day and Night Medicine Shop in the campus of the said C.H.C.

(2.) PETITIONERS case in a nutshell is that an advertisement was published by the Chief District Medical Officer (in short "C.D.M.O."), Bargarh on 17.03.2011 in the daily news paper, namely "The Samaja" inviting application for opening of 24 hours Day and Night Medicine Store inside the Hospital Campus of C.H.C., Bheden in the district of Bargarh. In the advertisement it had been clearly mentioned that the selection will be made as per the guidelines issued by the Government in Health and Family Welfare Department and the shop in question is reserved for women candidate only. Pursuant to the said advertisement, the petitioner having all requisite qualifications and satisfying all the criteria contained in the advertisement submitted her application. She has passed Diploma in Pharmacy in the year 2009 and is a registered Pharmacist. She is an unemployed having no source of income. Opposite party No.5 had also submitted her application along with the petitioner. In the said selection, opposite party No.5 was selected vide order dated 18.7.2011 and opposite party No.3 -C.D.M.O., Bargarh issued a direction to opposite party No.5 to execute the agreement with him. Hence, the writ petition.

(3.) MR . Muduli, learned Addl. Standing Counsel appearing for Opp. Parties 1 to 4 -State authorities reiterating the stand taken in the counter affidavit submitted that the petitioner has not approached this Honble Court with clean hands. The petition is an abuse of judicial process for which it is liable to be dismissed with cost. Selection process has been made legally and no injustice has been caused to the petitioner. The application of the petitioner was rejected due to non -submission of required document i.e. Solvency Certificate of her own and Income Certificate from the concerned Tahasildar, which are very much relevant and mandatory for the purpose of opening of 24 hours Day and Night Medicine Shop by a Pharmacist claiming to be unemployed. The petitioner does not possess all the requisite qualifications. The petitioner with her application dated 24.3.2011, which was received in the office of the C.D.M.O., Bargarh on 26.3.2011, did not submit the Solvency Certificate which is mandatory requirement on the part of an applicant to open a 24 hours Day and Night Medicine Shop. Along with the application dated 24.3.2011 the petitioner submitted a report of the Revenue Inspector and an undertaking to produce the Solvency Certificate as soon as possible. The Solvency Certificate dated 26.3.2011 annexed at page 13 of the writ petition belongs to the father of the petitioner and not of the petitioner. It is further contended by Mr. Muduli that no Solvency Certificate was produced before opposite party No.3 till 20.4.2011, when the Selection Committee met for selection. The statements made at serial Nos.5 and 6 of the Application Form at page 8 of the writ petition do not tally with the original application. It is submitted that Serial No.4 of the application form at page 8 of the writ petition provides for submission of an affidavit by the registered Pharmacist indicating that the applicant is unemployed and an Income Certificate from the concerned Tahasildar. In the instant case, the petitioner has not submitted the Income Certificate of her own from the concerned Tahasildar. Rather, petitioner submitted an Income Certificate of her father -Magan Khamari which is evident from page 12 of the writ petition. Petitioner has failed to fulfill the criteria as mentioned at serial Nos. 4 and 6 of the Application Form by not submitting the required documents. The Selection Committee consisting of six members under the Chairmanship of the C.D.M.O., Bargarh in its meeting held on 20.4.2011 found that the petitioner had not produced the Solvency Certificate, either with her application or till 20.4.2011. Due to oversight, a typographical error has crept in, in the short listed statements of candidates at column Nos. 11 and 12 in respect of the present petitioner. Column No.11 should have been blank and Column No.12 should have been mentioned as "No". Mentioning "Yes" at Column No.11 is an inadvertent mistake and contrary to the documents filed by this petitioner. Therefore, the Committee found the petitioner not to have fulfilled the criteria for her selection to open the 24 hours Day and Night Medicine Shop inside the campus of CHC, Bheden. Though the petitioner is an unemployed registered Pharmacist and as per the Government guidelines dated 28.1.2004 preference should have been given to her, but she has not fulfilled the mandatory criteria. Therefore, she was not considered as a suitable candidate. Accordingly, the application of the petitioner was rejected. Opposite party No.5 fulfilled all the criteria laid down by the State and also submitted all the required documents. Though opposite party No.5 is not a registered Pharmacist, but along with her application she submitted her willingness to run the 24 hours Day and Night Medicine shop by engaging registered Pharmacist. Opposite party No.5 along with her application submitted her Solvency Certificate as well as other documents like affidavit regarding willingness of engaging a registered Pharmacist as required against column No.5 of the application form. Except opposite party No.5, no other applicant has submitted Solvency Certificate. The case of opposite party No.5 was considered as there was no unemployed registered Pharmacist available to be considered for selection. Accordingly, Opposite party No.5 has been selected by the Selection Committee to open the 24 hours Day and Night Medicine Shop in the campus of CHC, Bheden. The documents filed at pages 13, 14 and 17 having been manufactured/prepared for the purpose of this case; the said documents cannot be relied upon.