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2006 DIGILAW 422 (ORI)

Biranchi Narayan Nanda v. State of Orissa

2006-05-19

P.K.MOHANTY, R.N.BISWAL

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JUDGMENT R. N. BISWAL, J. — In this writ petition the petitioner has challenged the advertisement dated 11.8.1998 published in Oriya daily “The Sambad” calling applications from intending persons for opening a 24 hours “day and night” medicine store in the campus of the Sub-divisional Hospital, Kamakhyanagar, in the district of Dhenkanal. 2. As per the writ petition, in response to an earlier advertisement made in the same Oriya daily, “The Sambad” dated 27.11.1991 inviting applications from intending candidates for opening a day and night medicine store in the same campus, the petitioner made an application in the prescribed manner within the stipulated time. During pendency of the application of the petitioner and the applications of other applicants, Subash Kumar Patnaik, an outsider made two representations in July 1992 and September, 1992 to the Minister of Health, on receipt of which he directed the Joint Secretary, Health Service to consider the case of the petitioner favourably. Accordingly, the State Govt. ille¬gally granted permission to Subash Kumar Patnaik for opening of the medicine store, which was challenged by one Suvendra Kumar Patnaik in O.J.C. No.9607 of 1992, wherein this Court vide Judg¬ment dated 5.8.1993 allowed the writ petition, set aside the order passed in favour of Subash Kumar Patnaik and directed to reconsider the applications in the light of the revised proce¬dure. 3. After the matter was remitted back for reconsideration, the Govt. vide order dated 25.8.1995 (Annexure-6) again illegally selected Subash Kumar Patnaik to open the day and night medicine store, a copy of which is Annexure-6. Being aggrieved with the said order, the petitioner along with one Gauranga Charan Sethi filed O.J.C. No.6310 of 1995 before this Court. Smt. Jayanti Sahu also challenged the said order in a separate O.J.C. bearing No.6484 of 1995. This Court vide a common judgment dated 24.12.1997 set aside the order of selection of Subash Kumar Patnaik and directed the Govt. to take a decision afresh, taking all relevant aspects into consideration, a copy of which is Annexure-7. After the common judgment was rendered in O.J.C. Nos. 6310 of 1995 and 6484 of 1995, Opp.Party No.3, the C.D.M.O., Dhenkanal published the impugned advertisement dated 11.8.1998, a copy of which is Annexure-10. 4. to take a decision afresh, taking all relevant aspects into consideration, a copy of which is Annexure-7. After the common judgment was rendered in O.J.C. Nos. 6310 of 1995 and 6484 of 1995, Opp.Party No.3, the C.D.M.O., Dhenkanal published the impugned advertisement dated 11.8.1998, a copy of which is Annexure-10. 4. It is the specific case of the petitioner that to deprive him of being allotted with the medicine store in ques¬tion, opp.party No.3 intentionally and illegally changed the previous eligibility criteria and prescribed that preference would be given to young unemployed registered pharmacists who were just above the maximum age limit for entry into Govt. serv¬ice and were below 35 years of age. If the said criterion is allowed to be retained in the impugned advertisement, then natu¬rally, the petitioner who is on the wrong side of 35 years would be disqualified for the purpose. Under such circumstances the petitioner has filed the writ petition to quash the advertisement in Annexure-10 and to direct the Opp.parties to implement the common order dated 24.12.1997 passed in O.J.C. Nos. 6310 of 1995 and 6484 of 1995. 5. In their counter affidavit opp.Party No.1 contended that the writ petition was not maintainable and that since the petitioner had not come in clean hand, the same should be dismissed. It is further averred therein that, pursuant to the advertisement dated 27.11.1991, twenty-six applications were made and after scrutiny 13 applicants, including the petitioner and Subash Kumar Patnaik were found eligible, of whom the latter was selected. So, it is wrong to say that Subash Kumar Patnaik was not an applicant. One Suvendra Kumar Patnaik challenged the said selection order, in O.J.C. No.9607 of 1992 wherein this Court vide order dated 5.8.1993 quashed the selection and directed the State Government to consider the applications afresh with revised procedure. Accordingly the applications were considered and Subash Kumar Patnaik was again selected and licence was issued in his favour. The present petitioner along with one Gaurang Charan Sethi filed O.J.C. No.6310 of 1995 and Smt. Jayanti Sahoo filed O.J.C. No.6484 of 1995 challenging the selection of Subash Kumar Patnaik. Both the writ petitions were disposed of by a common judgment on 24.12.1997. Pursuant to the said decision, a fresh advertisement in Oriya daily “The Sambad” dated 11.8.1998 was published fixing the eligibility criteria on the basis of the revised circular of the Government. Both the writ petitions were disposed of by a common judgment on 24.12.1997. Pursuant to the said decision, a fresh advertisement in Oriya daily “The Sambad” dated 11.8.1998 was published fixing the eligibility criteria on the basis of the revised circular of the Government. So there is no illegality in the advertisement. Accordingly opp.party No.1 pressed to reject the writ petition. 6. Opp.party No.3 in her counter affidavit contended that the advertisement dated 11.8.1998 published in Oriya daily “The Sambad” was in accordance with the Govt. circular and as such there was no illegality. She refuted the allegation of foul play and accordingly pressed to reject the writ petition. 7. Learned counsel appearing for the petitioner submitted that as per the common judgment dated 24.12.1997 delivered in O.J.C. Nos.6310 of 1995 and 6484 of 1995, the Opp.Parties ought to have taken a fresh decision and selected the most suitable applicant amongst the applicants who applied in response to the advertisement dated 27.11.1991. Instead, a fresh advertisement was published with some more eligibility criteria, pursuant to an administrative order of the Government. So, the writ petition should be allowed and the opp.parties should be directed to select the most suitable applicant out of the applicants who had applied, in response to the advertisement made in the Oriya daily “The Sambad” dated 27.12.1991. In other words, as per the submis¬sion of learned counsel for the petitioner an administrative order cannot nullify the judicial finding of a competent Court. In support of his submission he relied upon the decisions State of Bihar and another v. Radha K. Jha and others, AIR 2002 SC 2755 and V. Parukutty Mannadissiar and another v. State of Kerala and others; AIR 1990 SC 817 . 8. Drawing our attention to paragraph-9 of the judgment dated 24.12.1997, delivered in O.J.C. Nos.6310 of 1995 and 6484 of 1995, learned Addl. Standing Counsel submitted that pursuant to the said observation, fresh advertisement was made in Oriya daily “The Sambad” dated 11.8.1998 and as such no illegality whatsoever had been committed by the opp.parties. The relevant portion of paragraph- 9 reads as follows : “In view of the fallacy in the decision making process, non-consideration of respective merits selection of Subash Kumar Patnaik cannot be maintained, and is set aside. Let a fresh decision be taken by the Govt. The relevant portion of paragraph- 9 reads as follows : “In view of the fallacy in the decision making process, non-consideration of respective merits selection of Subash Kumar Patnaik cannot be maintained, and is set aside. Let a fresh decision be taken by the Govt. after taking into consideration all relevant aspects.” In the decision State of Bihar and another v. Dr. Radha Krishna Jha and others cited supra the apex Court held : “We find force in the submission made on behalf of the Lab-Assistants that in case the State wanted to take a stand that the decisions of the Supreme Court and that of the Patna High Court in the case of Sindheswari Prasad Singh (supra) did not apply to the facts of the present case, they could not say so by means of an administrative order passed on their representation in the teeth of the judicial finding in the judgment of the learned single Judge dated 7.9.1995 in C.W.J.C. No.387/95 that the said two decisions had full application to the present case.” Similarly in the decision V. Parukutty Mannadissiar and another v. State of Kerala and others cited supra the Apex Court held : “We would like to reiterate that the appellants are entitled to return of 92 acres of land and not 80 acres. This is on the ground that the direction of the High Court in the first appeal became final and in terms of such direction 92 acres were to go back to the appellants. Government had no authority to alter the decision by an administrative order as has been done on 22.5.1992.” So as per the aforesaid decisions rendered by the Supreme Court a judicial finding cannot be altered by an administrative order. 9. In the case at hand, the main grievance of the peti¬tioner is that after the common judgment delivered on 24.12.97 in O.J.C. Nos. 6310 of 95 and 6484 of 1995 the State Government by an administrative order altered the eligibility criteria by limiting the age of the applicants. But in Government circular dated 10.7.1991 (Annexure-3), it was prescribed that those who do not have possibility of employment in the Government (since they have crossed the minimum age limit) would be given preference. 6310 of 95 and 6484 of 1995 the State Government by an administrative order altered the eligibility criteria by limiting the age of the applicants. But in Government circular dated 10.7.1991 (Annexure-3), it was prescribed that those who do not have possibility of employment in the Government (since they have crossed the minimum age limit) would be given preference. So it cannot be said that this criterion was prescribed subsequent to the common judgment delivered in O.J.C. Nos.6310 of 1995 and 6484 of 1995 and as such the decisions cited on behalf of the peti¬tioner are not applicable to the present case. 10. Admittedly the criterion with regard to age was not fixed in the first advertisement dated 27.11.91. In paragraph 9 of the common judgment dated 24.12.1997 in O.J.C. Nos.6310 and 6484 of 1995 it was observed that “In view of the fallacy in the decision making process non-consideration of respective merits, selection of Subash Kumar Patnaik cannot be maintained and is set aside. Let a fresh decision be taken by the Government after taking into consideration all the relevant aspects”, which im¬plies that Government had to take fresh decision in selecting the most suitable applicant from amongst those who made applica¬tions pursuant to the advertisement dated 11.8.1998 and as such no fresh advertisement ought to have been published for the purpose. Generally a candidate/applicant has a right to be con¬sidered in accordance with the terms and conditions set out in the advertisement. In the case at hand since there was no eligi¬bility criterion with regard to age of the applicants in the first advertisement and in terms of the decision rendered in the common judgment in O.J.C. Nos.6310 and 6484 of 1995 the Govern¬ment ought to have selected any one of the eligible applicants amongst those who applied for the allotment of a day and night medicine store in Kamakhyanagar hospital campus, but it has not been done so. 11. Therefore, the writ application is allowed and the impugned advertisement (Annexure-10) is hereby quashed. The opp.party No.1 is directed to select the most suitable applicant from amongst those applicants who applied in response to the advertisement dated 27.11.1991, in terms of the common judgment dated 24.2.1997 rendered in O.J.C. Nos.6310 and 6484 of 1995. This exercise be completed within a period of three months hence, since the matter is already inordinately delayed. P. K. MOHANTY, J. I agree. This exercise be completed within a period of three months hence, since the matter is already inordinately delayed. P. K. MOHANTY, J. I agree. Application allowed.