SUVENDRA KUMAR PATTNAIK Vs. STATE

JUDGEMENT

(1.) The order passed by the State Government in favour of opposite party No. 5 to open a 24 hours medicine store in the campus of the Sub-Divisional Hospital, Kamakhyanagar, is the subject-matter of challenge in this writ application.

(2.) The petitioner's case; in brief, is that an advertisement was issued in daily "Sambad" dated 27-11-1991 inviting applications from the intending persons for opening of a day and night medicine store in the premises of the Sub-Divisional Hospital, Kamakhyanagar, and applications were required to be filed within fifteen days from the date of publication of the advertisement. The advertisement has been annexed as Annexure-1. In pursuance of the advertisement, the petitioner submitted his application in the prescribed pro forma within the stipulated time, copy of which has been annexed as Annexure-2. Along with the petitioner, 25 others had submitted their applications pursuant to the advertisement under Annexure-1 and it has been averred that opposite party No. 5 was not one of the applicants. The Government in the Health Department had issued a circular dated 10-7-1991 indicating the procedure to be followed for selecting persons for opening such medical shops. The said circular has been annexed as Annexure-3. The circular contains the criteria for selection as well as the procedure to be followed. In accordance with the said procedure, the Chief District Medical Officer in consultation with the Hospital Advisory Committee was required to send the names of 3 persons in order of preference giving reasons for such placement to the Director of Health Services of Director of Medical Education and Training, as the case may be, for a final decision. In accordance with the aforesaid prescribed procedure, the Hospital Advisory Committee in respect of Kamakhyanagar Sub-Divisional Hospital met on 25-9-1992 and discussed the merits of all the applicants and recommended the name of the petitioner along with two others in order of preference and the petitioner's name found place at serial. No. 1. The said recommendation has been annexed as Annexure-4. That recommendation had been made to the Director of Health Services. Though under the prescribed procedure, the Director of Health Services was to take a final decision in the matter, but to the utter surprise of the petitioner, it is the Government in the Health Department took the final decision in the matter and selected opposite party no. 5 as per Government letter dated 18th of December, 1992, annexed as Annexure-5. On the basis of the aforesaid Government order under Annexure-5, opposite party No. 3 made a communication to opposite party No. 4 indicating that opposite party No. 5 has been selected for opening of the medicine store which order has been annexed as Annexure-6. The petitioner further avers that the prescribed procedure which had been issued on 10-7-1991 under Annexure-3 .was substituted by Government Circular dated 18-11-1992, annexed as Annexure-7, legality of which is also challenged in the writ petition. It is contended that when the advertisement was issued and when applications were filed and further when the applications were considered, Annexure-3 was in force and, therefore" the final decision should have been taken in accordance with the said Annexure3. The revised procedure cannot have any application to the facts and circumstances of the present case. According to the petitioner, the entire procedure was changed just to allot the shop to opposite party No. 5 and the said decision, therefore, is vitiated.

(3.) A counter affidavit has been filed by the Under Secretary to the Government of Orissa in Health Department on behalf of opposite party No. 1 and the stand taken in the counter affidavit is that the revised procedure having come into force since 18-11-1992 and no decision prior to that date having been taken with regard to the allotment of the 24 hours medicine store at Kamakhyanagar, the Government took the final decision in accordance with the revised procedure. It is also contended that the petitioner was even otherwise not eligible to be selected in accordance with the old procedure. An averment has also been made that there was no Advisory Committee existing to make the recommendation in question. On behalf of opposite party No. 5 also a counter affidavit has been filed denying the allegations made in the writ petition and it has been contended that since opposite party No. 5 had the qualification as a pharmacist and he fulfilled all the norms and conditions, he has been duly selected by the State Government in accordance with the prescribed procedure. The said opposite party No. 5 has made an assertion that the local M.L.A. had pressurized the local officers to give a recommendation in favour of the petitioner and that is the reason why even though the petitioner did not have the prescribed qualification, yet the recommendation had been made in his favour. The Establishment Officer of the Directorate of Health Services has also filed a counter affidavit on behalf of opposite party No. 2. It has been stated therein that pursuant to the advertisement issued, applications were received by the C.D.M.O. and those applications were placed before the Hospital Advisory Committee on 25-9-1992 for taking a decision in the matter and in accordance with the decision of the said Advisory Committee, the petitioner was at serial No. 1. But since the Government in the Health Department desired, the entire file dealing with the subject along with the recommendation of the C.D.M.O. was sent to the Government and then all the original applications were also sent to the Government and in view of the Government order, opposite party No. 5 has been permitted to open the shop in question. It has also been stated in the said counter affidavit that in view of the revised procedure for consideration issued on 18-11-1992 substituting paragraph 4 (iv) of the earlier circular dated 10-7-1991, it is the State Government who has the power to decide and accordingly the State Government has decided and thus there is no infirmity with the decision taken on behalf of the petitioner, a rejoinder affidavit has been filed denying the allegations made in some counter affidavit that the local M.L.A. had pressurized the local officer to make the recommendation in favour of the petitioner.