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2010 DIGILAW 598 (ORI)

Sarada Prasanni Sahoo v. State of Orissa

2010-08-20

C.R.DASH, L.MOHAPATRA

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JUDGMENT L. MOHAPATRA, J. : All the three writ petitions relate to opening of second 24 hours medicine store inside the campus of the District Headquarters Hospital at Jagatsinghpur. The peti¬tioner in W.P.(C) No. 10911 of 2008 and petitioner in W.P.(C) No. 6892 of 2009 had submitted their applications in pursuance of the notice issued by the Chief District Medical Officer, Jagatsingh¬pur published in a news paper on 6.4.1998 whereas the petitioner in W.P.(C) No. 15210 of 2008 had not filed any application in pursuance of such notice, but claims that had afresh notice been issued in terms of the 2004 guidelines, she could have applied for the same. For the above reason, all the three writ applica¬tions were heard together and are disposed of in this common judgment. 2. The facts leading to filing of the three writ applications are that the Chief District Medical Officer, Jagat¬singhpur vide notice dated 6.4.1998 published in the daily “Prajatantra” invited applications from the candidates (ladies only) desirous of opening the second 24 hours medicine store inside the campus of District Headquarter Hospital at Jagatsinghpur. The intending applicants were required to file their applications on or before 30th April, 1998 and it was also stipulated in the said notice that the person selected to open the medicine store shall have to abide by the existing rules and regulations as has been fixed by the Government from time to time. In pursuance of the said notice, Sarada Prasanni Sahoo (petitioner in WPC No. 10911 of 2008) and Puspalata Swain (peti¬tioner in WPC No. 6892 of 2009) submitted their applications. As it appears, a decision having been taken to select Mrs. Prativa Khandual, opposite party No. 4 in WPC No. 10911 of 2008, a writ petition vide OJC No. 12366 of 1998 was filed before this Court by Miss. Sarada Prasanni Sahoo. While admitting the said writ petition, as an interim measure, the Court directed that any approval made shall be subject to the result of the writ peti¬tion. As a result of the interim order, the State-opposite par¬ties did not take any further step and the matter remained as such till the said writ petition was disposed of on 18.7.2005 on the basis of the submission made by the learned counsel for the State. As a result of the interim order, the State-opposite par¬ties did not take any further step and the matter remained as such till the said writ petition was disposed of on 18.7.2005 on the basis of the submission made by the learned counsel for the State. The order passed in the said writ petition is quoted below: “The writ petition has been filed in respect of opening of 24 hours Medicine Shop inside the campus of District Hospital, Jagatsinghpur. The guidelines were issued on 28.04.98 in this regard Learned Additional Government Advocate fairly submits that those guidelines are no more in force and the new guideline has been issued under which the selection is being made. Therefore, the writ petition has become infructuous by efflux of time and the same is dismissed as such.” After disposal of the aforesaid writ petition, opposite party No. 1 wrote a letter on 19.7.2008 to opposite party No. 2 referring to the earlier letter dated 6.6.98 of the C.D.M.O. wherein it was pointed out that the Government have been pleased to select opposite party No. 4 to open the second 24 hours medi¬cine store inside the campus of the District Headquarters Hospi¬tal, Jagatsinghpur. Challenging selection of the said opposite party No. 4, these writ applications have been filed. It is the case of the petitioners that as per new guidelines and clarifica¬tion dated 15.9.2005, selection has to be finalized by the Dis¬trict Level Committee chaired by the Collector or ADM, in absence of the Collector, the CDMO, ADMO (Medical) and any other district level officer to be nominated by the Collector as members of the committee. The earlier recommendation having been made on the basis of 1998 guidelines, the same had spent its force. The selection should have been made in terms of 2004 guidelines instead of reviving the applications received in pursuance of the notice in Annexure-3 published in terms of 1998 guidelines. It is also the case of the petitioners that some clarifications were made in 2004 guidelines in 2005 and, therefore, under no circum¬stances, the State-opposite parties could have considered the applications received in pursuance of the notice by C.D.M.O. in the year 1998 for the purpose of selection of the candidates under 2004 guidelines clarified in 2005. 3. It is also the case of the petitioners that some clarifications were made in 2004 guidelines in 2005 and, therefore, under no circum¬stances, the State-opposite parties could have considered the applications received in pursuance of the notice by C.D.M.O. in the year 1998 for the purpose of selection of the candidates under 2004 guidelines clarified in 2005. 3. This being the submission of the learned counsel appearing for the petitioners, the learned counsel for the State submitted that there is no difference between 1998 and 2004 guidelines and, therefore, instead of inviting applications afresh, a decision had been taken to consider those applications received in 1998 under 2004 guidelines. 4. Undisputedly the petitioners in the aforesaid two writ petitions and opposite party no. 4 as stated above had submitted their applications in pursuance of the notice in Annexure-3. Annexure-4 shows the statement giving details particulars of the applicants and the names of all the three applicants appear in the list. When a decision was taken to select Mrs. Prativa Khan¬dual-opposite party no.4, a writ application was filed before this Court by Miss. Sarada Prasanni Sahoo vide O.J.C. No. 12366 of 1998. When the case was taken up on 18.5.2007, it was contend¬ed by the learned Additional Government Advocate that 1998 guide¬lines are no more in force and new guidelines have been issued in 2004 and the selection is to be made under the new guidelines of 2004. On the basis of such submission of the learned Additional Government Advocate, the writ petition was dismissed as infructu¬ous. Having said so before the Court, the State-opposite parties could not have considered the applications received in pursuance of Annexure-3 as those applications were required to be consid¬ered under the 1998 guidelines. By the time, the writ application was disposed of, 2004 guidelines had already come into force with the clarification in 2005. 5. On perusal of the guidelines formulated in 2004, we find that the selection process prescribed therein is completely different than that of 1998 guidelines and under 2004 guidelines a committee consisting of the Collector or A.D.M., in absence of the Collector as Chairman, the CDMO/ADMO (Medical) and any dis¬trict level officer nominated by the Collector shall be the members of the committee and this committee shall select the candidate for opening of a Second 24 hours medicine store. This provision was absent in 1998 guidelines. This provision was absent in 1998 guidelines. Moreover, the learned Additional Government Advocate having made a submission before the Court that selection is being made under the new guidelines of 2004, there is absolutely no scope on the part of the State authorities to consider the applications submitted in pursuance of Annexure-3 in the year 1998. It was the duty of the State-opposite parties to call for applications afresh under the 2004 guidelines as clarified in 2005. Had that been done, Miss. Jyosh¬narani Sahoo petitioner in W.P.(C) No. 15210 of 2008 could have submitted her application. Interestingly, we further find that though the selection of opposite party no. 4 has been made under the 2004 guidelines as stated by the learned counsel for the State, the terms and conditions of 1998 guidelines have been directed to be complied with. 6. For the reasons stated above, we allow all the three writ applications, set aside the action of the State opposite parties in selecting opposite party no.4, namely, Mrs. Prativa Khandual for the purpose of opening of a second 24 hours medicine store inside the campus of the District Headquarters Hospital at Jagatsinghpur and direct the State authorities to invite applica¬tions afresh in terms of 2004 guidelines as clarified in 2005 and select a candidate in terms of the aforesaid guidelines. C.R. DASH, J. I agree. Applications allowed.