Gayatri Devi Pansari Vs. State of
Orissa & Ors [2000] INSC 213 (11 April 2000)
S.S.Ahmad, Doraswami Raju
Raju, J.
Special leave granted.
The appellant herein was selected to open a
24 hours Medical Store in the Campus of Sub-divisional Hospital, Patnagarh,
District Bolangir, Orissa, pursuant to the advertisement made by the Government
of Orissa published on 12.10.96 inviting applications from the unemployed
registered Pharmacists (Gents and Ladies) or persons having medical shops, who
have engaged registered Pharmacist/person who undertakes to engage a registered
Pharmacist. It appears, apart from the appellant and the fifth respondent
herein who was the writ petitioner before the High Court, three others also
submitted their applications. The first respondent by the orders dated 12.5.97
selected the appellant taking into account the guidelines governing such
selection, the revised and latest of which were said to have been issued on
26.5.97. The selection of the appellant, apart from the fact that she was found
eligible, was on account of preference shown to her as a lady applicant in
furtherance of and giving effect to the Policy-decision of the Government to
provide self-employment opportunities to ladies. Pursuant to such selection and
in compliance with the terms of the orders as communicated by the Chief
District Medical Officer, the appellant appears to have not only deposited the
required fee of Rs.50,000/-, but executed the necessary Agreement on 22.5.97
and commenced operating the day and night Medical Store.
Aggrieved, the fifth respondent herein, the
unsuccessful applicant, filed a Writ Petition OJC No.7778/97 before the High
Court challenging the selection of the appellant mainly contending that she was
not eligible or qualified for the same and that extraneous considerations
weighed with the selection by the authorities. Respondents 1 to 4, the
authorities of the State, have filed a common Counter Affidavit opposing the
Writ Petition and justifying the selection of the appellant. The appellant, who
was arrayed as fifth respondent before the High Court, also filed a separate
Counter Affidavit denying the allegations made against the appellant and the
contentions raised by way of challenge to her selection. The sum and substance
of the stand taken for the respondents in the High Court was that not only the
appellant was fully qualified and eligible for being awarded the right to run
the Medical Store in question, but that she being a lady and the Policy of the
Government also being to accord preference to lady candidates even by providing
for a reservation of 30% of the day and night medical shops in the District to
lady candidates, no exception could be taken to the selection of the appellant.
Reliance in this regard, to justify the preference, was placed on the
Government Order dated 9.11.93, which was said to have issued on 27.11.93, and
the relevant portion of which reads as follows :- 30% of the 24 hours medical
stores within a district shall be reserved for ladies. The C.D.M.O. concerned
should identify the medical stores which would be reserved exclusively for
ladies and issue advertisement accordingly.
Similarly 30% of the 24 hours medical stores
of all Medical College Hospitals taken together shall be reserved for ladies.
The D.M.E.T. shall identify the medical stores to be exclusively reserved for
ladies. If no lady candidate is willing to run any such store a fresh
advertisement shall be issued inviting applications from general public
irrespective of sex for allotment of medical store.
The Division Bench of the Orissa High Court
by its Order under challenge in this appeal purported to not only doubt the
claim made that the appellant was a registered Pharmacist under the Orissa
Pharmacy Council, but also observed that the controversy about the claim of the
appellant being a qualified Pharmacist need not be gone into and that the same
was not relevant too, in the opinion of the High Court, so far as the present
Writ Petition was concerned. Such a view seems to have been taken for the
reason that her case was not considered solely on the ground of being a
qualified Pharmacist, but also on account of the preference given to her, as a
lady candidate. Thereupon, the High Court proceeded to consider the claim based
on such preference in terms of the Order of the Government, noticed supra, and
ultimately, the High Court arrived at the conclusion that the question of
reservation envisaged under the Government Orders referred to above, would
arise only after the Medical Store for the purpose of reservation as
contemplated in the Government Order is identified and specified. Since the
Department has not undertook any such exercise in this case and the Medical
Store in question was not one of the identified or specified stores for
purposes of reservation in favour of a lady, the selection of the appellant, in
the opinion of the High Court, stood vitiated.
While quashing the selection of the
appellant, the High Court directed the authorities to consider the matter
afresh taking into account the respective merits, acceptability of the
application and all other relevant factors, if need be and advised to do so, by
calling for fresh applications, too.
Aggrieved, the above appeal has been filed.
While issuing notice, status quo was ordered to be maintained and the appellant,
indisputably, running the Medical Store in question. The respondents in the
appeal have filed their respective replies. The appellant has also filed her
rejoinder.
The learned senior counsel appearing for the
appellant contended that the appellant, a Pharmacist duly registered under the
Pharmacy Act in another State, in this case the State of Madhya Pradesh, whose
Registration Certificate is valid till 2000 and who is entitled to conduct the
business in Pharmacy even in a different State, satisfy the norms and the
eligibility criteria for being selected and awarded her the right to run the
Medical Store in question, particularly when she was entitled under Section 32
of the Pharmacy Act, 1948 to get her name registered as Pharmacist by virtue of
her having been registered as such in a different State for which she was said
to have applied even as early as in 1988 in the State of Orissa by paying the
necessary fee. It was also contended that the High Court committed an error in
adjudging the issues on the out dated guidelines contained in the Government
Order dated 13.5.93 ignoring the revised and latest Orders, which rendered
eligible for being considered not only a registered Pharmacist, but a person
who can engage a Pharmacist irrespective of whether he himself is a Pharmacist
or not. Adverting to the reason assigned that in the absence of proper
identification and specification of the Medical Store in question, the
appellant could not have been selected as against the reserved quota of 30%
envisaged for ladies, the learned senior counsel for the appellant contended
that it proceeded on a wrong understanding of the purport of the orders and
that even in the absence of actual identification of any particular Store for
reservation, showing of preference to a lady candidate cannot be said to be per
se a vitiating factor having regard to the above Policy of the Government, which
has been duly declared in the Government Order itself and that, therefore, the
order of the High Court is liable to be set aside. Equities have also been
urged by pleading investment of substantial amount running to few lakhs and the
running of the Store all along. The learned counsel appearing for the
authorities of the State of Orissa also joined hands with the learned senior
counsel for the appellant in defending the action of the Government.
Per contra, the learned counsel for the fifth
respondent herein, who succeeded before the High Court, reiterated the reasons
urged and assigned in the Order of the High Court and contended that the order
of the High Court does not suffer any infirmity in law to warrant interference
in this appeal. Argued the learned counsel further, that the appellant could
not claim herself to be a registered Pharmacist within the State of Orissa,
which, according to the fifth respondent, is a must to render her eligible for
being selected for the assignment in question.
Our attention has been invited to the
provisions contained in the Pharmacy Act, 1948. Even, at this stage, we may
indicate that neither such a claim has no basis or support in the advertisement
calling for applications or criteria governing such selection as was in force,
in terms of the Government Order dated 26.5.97, which held the field of
selection.
We have carefully considered the submissions
of the learned counsel appearing on either side. In our view, the challenge to
the order of the High Court is well merited.
Even from the gist of the criteria for
selection as found noticed in paragraph 2 of the order of the High Court, it
could be seen that a person could be considered eligible for the purpose
whether he is a registered Pharmacist himself or even if he can engage a
Pharmacist irrespective of whether he himself is a Pharmacist or not. An
unemployed person, who had previous experience of running a Medical Store,
could be given preference. If that be the position, dehors the controversy as
to whether the appellant was a registered Pharmacist within the meaning of
Section 2(i) of the Pharmacy Act with the Council at Orissa, she cannot be
rendered ineligible, particularly having regard to the factual position
disclosed in this case that the appellant was a registered Pharmacist in the
State of Madhya Pradesh and a Certificate of such registration valid upto 2000
A.D. has been placed on record and that she can also engage any body else. Even
in the Writ Petition filed before the High Court, the petitioner therein (the
fifth respondent herein) seems to have stated in paragraphs 10, 12 and 13 of
his Petition that the appellant was owning a shop, but sold the same since she
could not manage it to some other person. In addition to this, the Certificate
of the Drug Inspector, Balangir Range, placed on record also disclosed that the
appellant was being engaged as a Pharmacist at M/s Mukesh Medicals since
06.04.1994. In the light of such factual details disclosed, the appellant could
not be considered to be ineligible either for applying or her claims being
considered for selection for the purpose on hand.
The High Court also did not purport to negate
her claims once and for all on such a ground.
Coming to the question of the alleged
illegality or impropriety, if any, involved in the selection of the appellant
by showing preference to her as a lady candidate, we are of the view that the
High Court was too technical and pedantic in construing the Government Orders
dated 9.11.93 issued on 27.11.93 and relying upon the rhetoric of the same to
invalidate the selection of the appellant. The High Court should have construed
the order of the Government by keeping in view the purpose and substance as
well as the object underlying the same, more with a view to promote the same
rather than stifle it. In our view, the High Court has completely overlooked
and also failed to keep into consideration the substantial difference involved
between a case of reservation on the one hand and an instance of showing a
preference on the other. As the relevant portion of the orders extracted by the
High Court itself disclosed if only the Medical Store for the purpose of 30% of
reservation is identified and specified, the question of inviting applications
from members of both sexes for the purpose did not at all arise and such
identified and specified Medical Stores could be allotted for being run only
from out of the lady applicants and that even the advertisement to be issued
has to be only for inviting applications from ladies, for such identified and
reserved shops. So far as the case in question is concerned, it could be seen
that the applications were invited from both gents and ladies. It is only
because the store was not actually exclusively reserved for being run by the
ladies that applications were invited from members of both sexes and finding
that among the applicants there was a lady, duly eligible, preference came to
be shown in the matter of selection. It is not the case of the fifth respondent
that the ladies otherwise have been already selected and allotted shops against
the 30% reserved quota in the District or that if any further preference is
shown to the appellant for being a lady candidate, it will exceed and offend
the 30% quota of reservation. The Policy of the State Government, indisputably
being to provide 30% of the 24 hours Medical Stores within a District in favour
of ladies by virtue of specific orders passed, therefore, that would itself
provide sufficient and valid as well as legal basis for extending preference in
favour of a lady applicant, as long as the ceiling limit is not violated.
Otherwise, by the mere fact of any lapse or omission on the part of the
ministerial officers to identify a shop, the legitimate claims of a lady
applicant could not be allowed to suffer defeating the very purpose and object
of reservation itself. The view taken by the High Court has the consequence of
overriding and defeating the laudable object and aim of the State Government in
formulating and providing welfare measures for the rehabilitation of women by
making them self-reliant by extending to them employment opportunities.
Consequently, we are of the view that the High Court below ought not to have
interfered with the selection of the appellant for running the 24 hours Medical
Store in question.
For all the reasons stated above, the order
of the High Court is hereby set aside, the Writ Petition filed in the High
Court shall stand dismissed and the appeal shall stand allowed. No costs.
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