RABINDRANATH MAHAPATRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) Petitioner calls in question decision taken by the Health and Family Welfare Department of the State Government to grant licence for opening of a twenty-four hours day and night medical store inside Agarpada Community Health Centre in favour of opposite party No. 5. Said opposite party was selected on the basis of a re- commendation made by the concerned Advisory Committee on 22-8-1994. Basic grievance of petitioner is that opposite party No. 6 is the husband of opposite party No. 5 and he played a vital role in changing the norms of selection and participated in the process of selection of his wife.

(2.) Background facts as projected by the petitioner are essentially as follows :Government in Health and Family Welfare Department have prescribed guidelines of selection for opening medical stores in the campus of Medical College Hospitals/ District Headquarters Hospitals and Hospitals equivalent to them and Sub-Divisional Hospitals of the State. In its circular dated 10-7-1991, Government in Health and Family Welfare Department intimated the Director of Health Services, Orissa, the Director of Medical Education and Training, Orissa, all the Chief District Medical Officers, all the Superintendents of Medical Colleges, Chief Medical Officer, Capital Hospital, and the Drugs Controller, Orissa, about the decision of the State Government fixing the criteria and rules and procedure for opening of medical stores at different places as indicated above. In the said circular it has been specified that in respect of twenty-four hours day and night medical stores, the criteria for selection shall be as specified in the circular. After selection the selected persons are required to furnish an undertaking to strictly comply with the provision of Drugs and Cosmetics Act, 1940 (in short, 'the Act'). Subsequently, by letter dated 13-5-1993, the procedure was revised. It was specified that twenty-four hours medical stores shall be opened only in the campus of Medical College/District Headquarters Hospitals/ Hospitals equivalent to District Headquarters and Sub-Divisional Hospitals. It was made clear that the other hospitals and medical institutions will not have this facility. In the said letter it was set out that the Superintendent, Chief District Medical Officer, and the Chief Medical Officer concerned shall at the outset assess the need for having a twenty-four hours medical store in the campus of his hospital. If the need is found to be imperative, the concerned official shall make an order to that effect in the connected file and issue advertisement at least in two local dailies inviting applications from eligible persons. The criteria for selection was indicated at para. 5 of the latter. Subsequently, by letter dated 9-11-1993 revised procedure for opening of medical stores was prescribed, providing that 30 per cent of the twenty-four hours medical stores within a district was reserved for ladies and such stores were to be identified by the Chief District Medical Officer and advertisement was to be issued accordingly. By letter dated 26-5-1993 the Government Order dated 13-5-1993 was modified to the extent that (a) a person having the requisite qualification may apply for running a medical store in Government Hospital; (b) a person to be considered eligible for the purpose shall be a registered Pharmacist either with a 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; and (c) an unemployed person having previous experience of running a medical store shall be given preference. Subsequently by office order dated 4-2-1994, Government in Health and Family Welfare Department decided to run one day and night (24 hours) medical store in each of the Community Health Centres of the State. Accordingly instructions were issued. The conditions laid down in Government Orders dated 13-5-1993 and 26-5-1993 and the order dated 9-11-1993 were made operative to medical stores to be opened in the Community Health Centres. Again vide Office Order dated 26-2-1994 instructions were issued in partial modification of the Government Order dated 4-2-1994, and it was laid down that since the Community Health Centres do not have required funds to meet the expenditure for publication of advertisement in local dailies, it may not be possible for them to publish the advertisement in time through the Information and Public Relation Department. Moreover, the area of operation of the Community Health Centres being small, it is not necessary to issue advertisement in the newspapers. So far as the Community Health Centres are concerned, it was laid down that applications may be invited by publishing notice in the notice board of the Community Health Centres. However, other terms and procedures as well as the criteria for selection is indicated in the earlier Office Orders were not modified.

(3.) Petitioner is running a medical store adjacent to the campus of Agarpada Community Health Centre, and the said medical store is being run by him since last many years with a valid licence under the Act. In fact several other medical stores adjacent to the Community Health Centre at Agarpada cater to the needs of patients attending the said Centre. Petitioner came to know from the notice board of the Community Health Centre that applications had been called for from persons intending to run twenty-four hours day and night medical store to be allotted inside the campus of the Centre. On coming to know of the above notice, petitioner filed an application on 10-7-1994 giving the details of his experience of running medical store and also furnished the other details on the basis of which he staked his claim for being selected to run the store. After receipt of his application, the Medical Officer in charge of the Agarpada Community Health Centre asked the petitioner to remain present at the said Centre at 11.30 a.m. on 8-8-1994 for consideration of his application for selection and recommendation for opening a day and night medical store by the Advisory Committee of the centre. The petitioner duly appeared on the date and time fixed, but the meeting could not be held due to lack of quorum. Petitioner was informed that the meeting would be held on a subsequent date, and he would be informed about the date and time of the meeting. He was never informed about any subsequent meeting. Since no notice was received by him, he approached opposite party No. 4 and to his utter surprise came to know that the Advisory Committee had already taken a decision on 22-8-1994 to recommend the name of opposite party No. 5 for opening 24 hours medical store in the campus of Community Health Centre at Agarpada. No notice of such meeting was issued to the petitioner or to any other applicant. Petitioner wanted a copy of the purported decision taken by the Advisory Committee and made a formal application in that regard. But the same was refused and the petitioner was intimated by letter dated 14-11-1995 that he cannot be supplied with the copy of proceeding unless he gets permission from the Chief District Medical Officer, Bhadrak. Petitioner approached the C.D.M.O. (opp. party No. 3) to grant him permission, which was refused on the ground that he is not entitled to copy of the decision. However, petitioner managed to get a copy of the resolution of the Advisory Committee of Agarpada Community Health Centre dated 22-8-1994. On perusal of the copy of said resolution, he came to know that the Advisory Committee had taken a decision on 22-8-1994 recommending the name of opp. party No. 5 for opening a day and night medical store without any notice to the petitioner and other applicants. To his utter shock and dismay, he noticed that the Advisory Committee consisted of the husband of opposite party No. 5, who is opposite party No. 6. In the Advisory Committee meeting opposite party No. 6, who acted as Chairman being the Member of Legislative Assembly (M.L.A.) of the area, managed to push through his wife's case and influenced the authority concerned to issue necessary order in favour of opposite party No. 5. It was noticed by the petitioner that the criteria for selection had been so fixed, that others were to be eliminated, and only opposite party No. 5 would hold the field. Petitioner came to know that the recommendation of the Advisory Committee had been accepted by the State Government. He has moved this Court for interference on the ground of mala fides and apparent illegalities.