GEETANJALI PATNAIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) Selection of opposite party No. 7 for opening the second day and night medical store inside hospital premises of the District Headquarters Hospital at Balasore is under challenge in this writ application by the petitioner who was one of the applicants. The primary challenge is on the ground that her application has been rejected on untenable premises and opposite party No. 7 has been selected on unsustainable grounds and on extraneous considerations.

(2.) A brief reference to the factual aspects would suffice:The Chief District Medical Officer, Balasore (hereinafter referred to as 'the CDMO') invited applications from lady candidates for opening of day and night second medical store inside the hospital premises of the District Headquarters Hospital at Balasore by issuing an advertisement which was published on daily "The Prajatantra" on 20th May 1994. Applications complete in all respects were required to reach the CDMO, Balsore within fifteen days from the date of publication in the said newspaper. Certain criteria for submission of applications were indicated which essentially are as follows:(i) A person having requisite qualification may apply for running a medical store in Government Hospital;(ii) A person to be considered eligible for the purpose shall be a registered Pharmacist either with Degree or Diploma in Pharmacy. But a person who can engage a pharmacist irrespective of whether he himself is a pharmacist or not may be considered;(iii) An unemployed person having previous experience of running medical store shall be given preference and all other things being equal, persons who have crossed the age limit for entry into Government service shall be given preference.Petitioner submitted an application on 3-6l994. She submitted a certificate to the effect that she is a Graduate of Arts, has appointed a pharmacist and also certificates of experience of having worked in a drug shop. According to her, she was 31 years of age at the time of submission of application and had crossed the outer age-limit fixed for entry into Government service. Opposite party No. 7 were also one of the applicants, and was 25 years of age at the time of her making the application. Officer of the CDMO, Balasore intimated the Director of Health Services, Bhubaneswar about the applications received. He was intimated by letter dated 17-6-1994 that the petitioner had submitted four sheets of enclosure whereas opposite party No. 7 had enclosed one sheet. By letter dated 26-8-1995 issued by the Under Secretary to the Government, Health Department addressed to the CDMO, Balasore selection of opposite party No. 7 as a suitable candidate was intimated.

(3.) The petitioner's grievance is that opposite party No. 7 has been selected on irrelevant considerations, and her case has not been duly considered. It is further submitted that there was no stipulation in the advertisement that any person whose relative is operating another shop is disentitled. The conditions of the advertisement were not complied with by opposite party No. 7. There was no material before the opposite parties 1 and 2 to come to a conclusion that opposite party No. 7 was a physically handicapped person. The certificate which has been annexed to the counteraffidavit merely shows that it has been issued by a Senior Orthopedic Specialist. It was stated therein that opposite party No. 7 was suffering from lumber spondylitis and rheumatoid arthritis which results physical disability for free movement, and she has been advised to do sedentary work. By no stretch of imagination the same can be considered certificate regarding physical disability. There was no indication in the advertisement that preference would be given to a physical handicapped person. The so-called physical disability certificate was not filed along with the application. In the matter of grant of largesse by the State, fairness is the key factor and in the case at hand all the norms have been thrown to wind to bestow benefit on opposite party No. 7 on irrelevant considerations and with ulterior motives.In the counter-affidavit filed, the State of Orissa represented by its Secretary, Department of Health, and the Under Secretary to Government, Department of Health have taken the stand that the petitioner has not come to this Court with clean hands. Her husband was operating the first day and night medical shop inside the hospital campus and the selection of petitioner would have led to monopoly which is contrary to State's objectives to provide employment facilities to more unemployed persons to earn their livelihood. It is further stated that opposite party No. 7 was a physically handicapped person and therefore, was given preference. Though there was no certificate enclosed to the application form, in view of the undertaking given by opposite party No. 7 in the application to abide by the terms and conditions that would be fixed by the Government in terms of the advertisement, she was considered suitable. It is stated that there was no stipulation in the advertisement to submit documents along with the application. Therefore, her application was not a bald application as stated by the petitioner. Petitioner has not crossed the age of entry into Government service since she was 31 years and the upper age-limit for entering the Government service is 32 years. It is also relaxed by five years in respect of woman candidates.