Orissa High Court
Chinmay Kumar Majhi, Nilamani Naik And ... vs State Of Orissa And Ors. on 28 May, 2001
Author: P.K. Misra
Bench: P.K. Misra
JUDGMENT P.K. Misra, J.
1. These three writ applications are directed against the same order passed by opposite party No. 1 permitting opposite party No. 5 to open Day and Night Medicine Store within the area of Community Health Centre at Baragaon. They have also prayed for a direction to make fresh selection after issuing fresh advertisement. Since questions raised in all the writ applications are same and the impugned order is the same, all the writ applications were heard together and shall be governed by this common Judgment.
2. Pursuant to the decision of the Government, the Chief District Medical Officer, Sundargarh, instructed the concerned Medical Officers to publish notices in the notice-board inviting applications from applicants for establishing Day and Night Medicine shops at different places including within the compound of the Community Health Centre, Baragaon within the district of Sundergarh, Subsequently, the State Government framed and issued a 'revised policy relating to establishment of such 24-Hours Medicine Shops at different places, which was circulated by letter dated 28-4-1998 (Annexure-2 in O. J. C. 4434/2000). Opposite party No. 5 was selected for establishing the Day & Night Medicine Shop within the area of Community Health Centre. Baragaon as per the decision of the State Government communicated vide letter dated 7-1-2000 (annexed as Annexure-3 fo O. J. C. No. 4434/2000). The said selection/appointment is sought to be challenged in all the three writ applications mainly on the allegation that the procedure contemplated in Annexure-2 regarding issuance of notice and publication of the advertisement had not been followed, nor any decision had been taken by the Director, Health Services, to establish the Shop. It is also alleged that opposite party No. 3 was selected at the behest of the then Health Minister in an arbitrary manner. The main contention is that due to non-publication of the notice in the newspapers as well as in different places contemplated in Annexure-2, the petitioners could not submit their applications.
3. Counter affidavit has been filed on behalf of opposite party No. 5 challenging the assertions made in the writ petitions regarding alleged mala fides of the concerned Minister. It has been also indicated therein that along with opposite party No. 5, five other applicants had filed their applications and as opposite party No, 5 was the most experienced person, he had been validly selected.
No counter affidavit has been filed on behalf of the State Government and other officials. However, the file has been produced.
4. It is contended by the counsel for the petitioner that the policy decision under Annexure-2 was in supersession of all previous circulars and as such the guidelines indicated in Annexure-2 should have been followed. It is submitted that as per paragraph-2 of the Policy decision in Annexure-2, the proposal for opening of medicine shops within the campus of Community Health Centres (C. H. C.) and Upgraded Public Health Centres (U. P. H. C.) has to be approved by the Director of Health. Services and in the present case, without any such approval, the decision had been taken to establish the medicine shop. Even though no counter has been filed on behalf of the State Government and. in the absence of any assertion contra, it should be taken that no such approval had been taken, this contention advanced by the learned counsel for the petitioners cannot be accepted. The aforesaid policy decision was circulated by letter dated 28-4-1998. In the present case, as per the existing policy decision, the proposal had been mooted and necessary notices had been published and as such, the requirement under Annexure-2 that the proposal for opening of such shops should be finalised by the Director is of no relevance in the present case.
5. The main contention raised by the learned counsel appearing for the petitioners relates to question of non-publication of the notice in any newspaper, or in local public offices, such as Block Office, N. A. C. Office, Police Station, et cetera. In the present case, the Chief District Medical Officer by his letter dated 6-4-1998 had directed all Medical Officers concerned to publish the notice in notice-board. This was in accordance with the existing circular. Since by the time the changed policy decision came into effect, steps had already been taken for issuing notice in accordance with the existing policy decision, non-following with the procedure as contemplated in Annexure-2 cannot vitiate the action which had already been initiated under the existing Circular.
6. The petitioners have stated that no notice at all was published in the notice-board. However, this assertion has been denied by opposite party No. 5. Moreover, it appears from the counter affidavit of opposite party No. 5 as well as from the file produced, five other applicants filed applications in the prescribed proforma. The assertion to the effect that no notice whatsoever was pasted in the notice-board cannot be accepted,
7. The petitioners have contended that even though the proposal had been initiated prior to the revised policy decision, for the subsequent stages the revised policy should have been followed. Even assuming that the revised policy decision should have been followed, the petitioners would not have , benefited in any manner. In the original policy decision it had been indicated that preference would be given to registered and qualified Pharmacists. In fact, in the subsequent policy decision, this aspect has been made much more clear as clause (i) of paragraph-4 of Annexure-2 indicates that "the allottee should be an unemployed registered pharmacist" and clause (ii) indicates that "if no registered pharmacist applies, only then those willing to engage registered pharmacist may be considered". It is thus obvious that even if the revised procedure would have been followed, the present petitioners in all the three writ applications admittedly not being registered Pharmacists could not have got precedence over opposite party 'No. 5. It is apparent from the file produced that out of the six applicants, four applicants including opposite party No. 5 were registered pharmacists and out of them opposite party No. 5 was selected because he had wider experience of nine years compared to the experience of others. Moreover, none of the other registered pharmacists-applicants had challenged the selection of opposite patty No. 5, Since no useful purpose would have been served so far as petitioners are concerned, even by following the revised procedure, at their behest the selection of opposite patty No. 5 need not be interfered with.
8. In the writ petition it had also been indicated that the selection had been made under the influence of the then Minister. Law is well settled that when mala fides are alleged, the person against whom such allegations are made should be impleaded as a party. In the present case, the then Minister of Health having not been impleaded as a party, the allegations of mala fides of the then Minister are of no avail so far as the present petitioners are concerned.
9. In view of the aforesaid discussion, I do not find any merit in the three writ applications, which are accordingly dismissed. There will, however, be no order as to costs.
10. Writ applications dismissed.