Orissa High Court
Sujata Khamari vs State Of Orissa And Others on 16 November, 2012
Author: V.Gopala Gowda
Bench: V.Gopala Gowda
HIGH COURT OF ORISSA: CUTTACK
W.P.(C) No. 21315 of 2011
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
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Sujata Khamari
D/o- Sri Magan Khamari,
Vill/P.O. Kudopali (Guniapali),
P.S. Bheden, Dist. Bargarh. ... Petitioner
-Versus-
State of Orissa and others
... Opp. Parties
For Petitioner : M/s. A.A. Das, M.B. Ray,
A.K. Behera, B.K. Parida,
S. Mohanty & B. Sahu.
For Opp. Parties : Mr. P.K. Muduli,
Addl. Standing Counsel
(for O.Ps. 1 to 4)
Dr. B.R. Sarangi (for O.P. 5)
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P R E S E N T:
THE HONOURABLE THE CHIEF JUSTICE SHRI.V.GOPALA GOWDA
AND
THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA
Date of Judgment: 16.11.2012
B.N.Mahapatra,J. 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
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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. Petitioner's 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 &
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
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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. Asim Amitav Das, learned counsel appearing for the
petitioner submitted that the petitioner having all the requisite
qualifications had satisfied the criteria contained in the advertisement.
Referring to the guidelines issued by the Government of Orissa in Health
& Family Welfare Department vide letter dated 28.1.2004, it is submitted
that the applicant should be an unemployed registered Pharmacist and if
no registered pharmacist applies, then those applicants who are willing to
engage registered pharmacist may be considered. Since the petitioner is
an unemployed registered Pharmacist and there was no other applicant,
who is unemployed registered Pharmacist, the petitioner should have been
selected. Therefore, among all the applicants, the petitioner is the only
eligible candidate who is an unemployed registered Pharmacist having
Diploma in Pharmacy, but opposite party No.5 does not possess such
qualification nor she is a registered Pharmacist. As per the guidelines, the
petitioner stands in a better footing than opposite party No.5 as would be
evident from the testimonials and other relevant documents furnished.
The petitioner is not only more qualified than opposite party No.5, but also
she is unemployed registered Pharmacist. Concluding his argument, Mr.
Das submitted to allow this writ petition by granting the reliefs as prayed.
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4. 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
Hon'ble 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
24.3.2011the 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 5 Committee met for selection. The statements made at serial Nos.5 & 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 & 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 & 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, 6 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 & 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.
5. Mr. B.R. Sarangi, learned counsel appearing for opposite party No.5 while supporting the stand taken by opp. Parties 2 & 3-State 7 authorities and referring to the counter affidavit submitted that the petitioner has not fulfilled the eligibility criteria as provided in notification No.2731(4)/H. dated 28.1.2004 and letter No. 22424/H. dated 15.9.2005 and corrigendum issued vide letter No.5837/H. dated 28.2.2006. To judge the suitability of the candidate the C.D.M.O., Bargarh constituted a Selection Committee taking into account other five Medical Officers, out of which three were Asst. District Medical Officers, one Medical Officer and District Malaria Officer in which the C.D.M.O. was the Chairman. Pursuant to the advertisement, nine applications were received which were placed before the Selection Committee for determination of inter-se merit to judge the suitability and to find out the most eligible person to be selected for opening of 24 hours medicine store within the C.H.C. campus, Bheden. After thorough scrutiny of applications, opposite party No.5 was selected and petitioner's application was rejected due to non-submission of Solvency Certificate. In her application, which was received in the office of the C.D.M.O.,Bargarh on 26.3.2011 the petitioner had submitted a Solvency Certificate. She had submitted an R.I. report with an undertaking. Apart from this, the petitioner had furnished the Income Certificate of her father-Magan Khamari though the Income Certificate of the petitioner was required to be attached in the said application form. Therefore, the income certificate of father cannot be taken into consideration for selection of petitioner. In the application form attached 8 to the writ petition it is stated that the "Solvency Certificate" attached, but in the original application form, the same has not been mentioned. Thus, the petitioner has not approached this Hon'ble Court with clean hands. The Solvency Certificate issued in the name of father cannot be taken into consideration in the selection process of the petitioner. The petitioner is now continuing her higher study in B. Pharma 3rd year 5th Semester bearing Roll No.1023252007 in the Pharmaceutical College, Samaleswawri Vihar, Tingipali, Barpali in the District of Bargarh under BPUT. In respect of his contention, Mr. Sarangi submitted a certificate issued by the Principal of the above said Pharmaceutical College which is annexed as Annexure-F/5.
6. On the above rival contentions of the parties, the following questions arise for consideration by this Court:
(i) Whether the candidature of the petitioner can be rejected on the ground of non-submission of Solvency Certificate and Income certificate of her own?
(ii) Whether the conditions stipulated at paragraph 6 of the guidelines issued by the Health and Family Welfare Department dated 28.1.2004 to the extent of production of Solvency Certificate and the condition stipulated in para-2 (ii) read with corrigendum dated 28.2.2006 issued by the Government of Orissa in H&F Welfare Department that Pharmacist claiming to be unemployed should furnish Income Certificate from the 9 Tahasildar of the Tahasil to which she belongs and consequently such condition stipulated again in Serial Nos. 4 & 6 of the Application Form are valid ?
(iii) Whether the Solvency Certificate of the father of a candidate can be taken into consideration for the purpose of making selection of an applicant for opening of Day and Night Medicine Shop and the Solvency Certificate in the name of the applicant is necessary for the purpose?
(iv) Whether in the fact situation of the case, selection of
opposite party No.5 who is not an unemployed
registered Pharmacist contravenes the criterion
stipulated in paragraph 4(ii) which provides that if no registered Pharmacist applies, only then those willing to engage registered Pharmacist may be considered; and therefore, selection of opposite party No.5 is valid?
(v) What order ?
7. Question nos. (i), (ii) and (iii) being interlinked, they are taken together. To deal with the above questions, it is necessary to extract here some of the relevant paragraphs of the guidelines dated 28.1.2004, Letters dated 15.9.2005 and 28.2.2006.
Guideline dated 28.1.2004:
"4. The criteria indicated below should be followed in regard to selection of candidates to open a medicine shop within the premises of hospitals.
(i) The allottee should be an unemployed registered pharmacist.10
(ii) If no registered pharmacist applies, only then those willing to engage registered pharmacists may be considered.
(iii) Young persons who are just above the maximum age limit admissible for Government employment and just below 45 years may be given preference over older persons xx xx xx
6. The Superintendents/Chief District Medical Officers/Chief Medical Officer shall verify the solvency certificate and assess the applicant's capability to run the medicine shop."
Letter dated 15.9.2005:
"2.(ii) Regarding submission of certificate by the applicant claiming to be unemployed Pharmacists, it is clarified that the Pharmacists claiming to be unemployed should furnish an affidavit to the effect that he is unemployed along with an income certificate from the Tahasildar under whose jurisdiction, the medical institution is situated. It is further clarified that on selection of the applicant for opening of a medical store, if it is subsequently detected that the applicant has made a false certificate and false affidavit, the permission so granted, shall be cancelled and he will be liable for other legal action as per law. This is in partial modification of the para 4 of the aforesaid guideline."
Corrigendum dated 28.2.2006:
"The relevant portions appearing in the Second part of the first sentence of the Government Letter No. 22424 dated 15.9.2005 under Para-2(ii) may be read as Pharmacists claiming to be unemployed should furnish affidavit to the effect that he is unemployed along with an Income Certificate "from the Tahasildar of the Tahasil to which he belongs" in place of "from 11 the Tahasildar under whose jurisdiction the Medical Institution is situated."
8. It is not in dispute that the petitioner is an unemployed registered Pharmacist. Therefore, she satisfies the first criterion No.4(i) of the guideline dated 28.1.2004. Merely because, she is a student of 3rd year 5th Semester of B. Pharma, that will not alter her status of unemployed registered Pharmacist. Had she been selected for opening of 24 hours Day and Night Medicine Shop in question, an option would have been left with her to leave the study if the same would have not been completed. Therefore, on the above ground her candidature cannot be rejected as alleged by opposite party No.5. However, in fact her candidature has been rejected on the following two grounds; (i) she has not furnished the Income Certificate from the Tahasildar of the Tahasil to which she belongs in her name along with the application as required against column No.4 of the Application Form which is in conformity with the guideline; (ii) she has not furnished Solvency Certificate in her name along with the application as required against Column No.6 of the Application Form which is also in conformity with the guideline. The question now arises as to whether the opp. Parties-authorities are justified to stipulate such condition in the guideline on the basis of which the application form has been prepared. If we look to the criterion under clause no. 4(i) of guideline dated 28.1.2004, it would show that the allottee should be an unemployed registered 12 Pharmacist. Such being the requirement, the further requirement of furnishing Income Certificate as well as the Solvency Certificate in the name of such unemployed registered Pharmacist is totally impracticable and unrealistic. Opp.party-Government authority cannot stipulate any condition asking a candidate to do certain thing which is not possible. As per clause 6 of the guideline dated 28.1.2004, the Superintendent/Chief District Medical Officer are required to assess the applicant's capability to run the medicine shop. Therefore, in the guideline some stipulation should be made requiring the applicant to produce consent certificate from relatives, bankers, financier willing to finance the applicant, if she is selected for opening of 24 hours Day and Night Medicine Shop. Otherwise also the applicants, belonging to the lower strata of the society, who by dint of their own efforts, have acquired Pharmacy qualification and are eligible to be selected pursuant to the advertisement for opening of 24 hours Day and Night Medicine Shop shall be deprived of their right on the ground that they do not have any ostensible source of income or any solvency of their own. In a democratic socialistic country, where equal treatment is the basic structure of the Constitution, the people belonging to lower strata of the society should not be discriminated on the ground of their weak financial status.
9. In view of the above, the condition stipulated in the guideline needs to be amended and rejection of petitioner's application on the 13 ground of non-production of Income certificate and Solvency Certificate in her name is not justified.
10. Question no.(iv) relates to legality of selection of opposite party No.5. Admittedly, opposite party No.5 is not a registered Pharmacist. Paragraph 4(ii) of the Guideline dated 28.1.2004 says that if no registered Pharmacist applies only then those willing to engage registered Pharmacist may be considered. Therefore, the question of selection of opposite party No.5 for opening of 24 hours Day and Night Medicine Shop arises only when no registered pharmacist applies. In the instant case, undisputedly the petitioner is an unemployed registered Pharmacist, who applied for opening of 24 hours Day and Night Medicine Shop. Therefore, selection of opposite party No.5 is bad in law and rejection of the application of the petitioner is also bad in law, which liable to be quashed.
11. In the fact situation, we direct the Government in Health & Family Welfare Department to delete the impracticable and unrealistic condition from the guidelines framed by it and frame appropriate guideline keeping in view our observations made above for the purpose of selection of 24 hours Day and Night Medicine Shops in the campuses of Medical Hospitals in the State including the C.H.C., Bheden and ensure that on the basis of such guideline the befitting candidate/candidates is/are selected for the above purpose within a period of eight weeks from the date of receipt of this judgment.
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12. With the aforesaid observations and directions, the writ petition is allowed by quashing the selection of opposite party No.5 and also the rejection of the application of the petitioner.
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B.N.Mahapatra, J.
V. Gopala Gowda, C.J. I agree.
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Chief Justice
Orissa High Court, Cuttack
Dated 16th November, 2012/ss