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PETITIONER: STATE OF ORISSA & ANR.

       Vs.

RESPONDENT: RADHEYSHYAM MEHER & ORS.

DATE OF JUDGMENT14/12/1994

BENCH: FAIZAN UDDIN (J) BENCH: FAIZAN UDDIN (J) AGRAWAL, S.C. (J)

CITATION:  1995 AIR  855            1995 SCC  (1) 652  JT 1995 (1)   196        1994 SCALE  (5)288

ACT:

HEADNOTE:

JUDGMENT: FAIZAN UDDIN, J.: 1.    Leave granted. 2.     The short question that arises for our  consideration in  this  appeal is whether the impugned order of  the  High Court  of Orissa dated 27.9.93 passed in O.J.C  No.  5435/93 directing  the  appellants not to take any decision  on  the advertisement  dated  27.7.93 issued by  the  Superintendent C.D.M.O, Bolangir to settle the shop with any one to hold  a medical store inside the hospital premises, Patnagarh  could be sustained in the absence of any material to show that the said  decision of the Government is arbitrary or opposed  to any rule or regulations in that behalf. 3.     The brief facts leading to this appeal under  Article 136  of  the Constitution are that the State  Government  of Orissa with a view to streamline the existing procedure  for opening   of  24  hours  medical  stores  in  the   college, Hospitals, etc. and in supersession of previous instructions took a decision that 24 hours medical stores shall be opened in  the campus of the hospitals which shall remain open  for all the 24 hours with a view to make the medicines available to the patients at competitive price.  Consequently, a  memo dated  23.5.93 was issued to all the  D.M.E.T./   D.H.S./D.C and all Superintendents of Medical Colleges of the State  of Orissa  as  well  as to all C.D.M.O’s  and  C.M.O’s  in  the capital hospital, Bhubaneshwar to assess the need for having 24 hours medical 197 stores in the campus of the respective hospitals and if  the need  is found to be imperative they shall make an order  to that  effect and issue advertisement  inviting  applications from  eligible  persons. According to the  instruction,  the said  applications  have  to  be  sent  to  the  authorities mentioned in the aforesaid memo who in turn have to  forward the  same to the Government alongwith  their  views/comments for  a  final decision at the Government level.  It  was  in

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pursuance  of  this memo  that  the  Superintendent/C.DM.O., Bolangir issued an advertisement inviting applications  from the intending shop owners to open a medical store inside the premises  of  the Sub Divisional Hospital,  Patnagarh  which shall be kept open day and night for the purposes of helping the  patients in getting medicines without  any  difficulty. The  respondents  No. 1 to 7 who are  having  their  medical stores  across the road in front of the main gate No.  2  of the  hospital filed the Writ Petition in the High  Court  of Orissa  challenging  the said advertisement  issued  by  the Superintendent/C.D.M.O.  on  the ground that  if  a  medical store  is opened inside the premises of  the  Sub-Divisional Hospital  which is a small hospital having a  provision  for only 30 beds, there will hardly be ’any business to  sustain them.  The respondents also came forward with an offer  that the  petitioners No. 1, and 4 to 7 (who are respondents  No. 1, 4 to 7 herein) whose medical stores arc near the gate  of the  hospital shall keep their medical stores open  day  and night  and that they are willing to give an  undertaking  to that  effect to the Superintendent/CDMO, Bolangir. The  said petition  was contested by the appellants herein by  stating that  the  said  advertisement was issued  in  view  of  the Government policy to open the medical shop within the campus of the hospital in public interest and specially to make the medicines available to the patients even at odd hours. 4.    It appears that during the course of arguments in  the petition  before  the High  Court  the  Superintendent/CDMO, Bolangir was personally present in the Court who in response to  certain questions put by the learned Judges stated  that the whole purpose of the advertisement is to make  available medicines  to the patients day and night. However, the  High Court  allowed the petition of the respondents and  directed that  no  decision shall be taken on  the  advertisement  to settle  the shop with anyone to hold a medical store  inside the  premises of the Sub-Divisional Hospital,  Patnagarh  if the  petitioners (Respondents No. 1, 4 to 7 herein) give  an undertaking to the C.D.M.O, Bolangir within 10 days  stating that each one of them shall keep his shop open day and night and shall make the medicines available to the patients.  The High  Court  further  directed  that in  the  event  of  any violation  of  this condition and if  the C.DM.O.  comes  to know   that  the  ailing  patients  of  the   Sub-Divisional Hospital, Patnagarh are not getting medicines because of the closure of the shops it would be open to him to  readvertise the  settlement  of  medical  store.  The  appellants  being aggrieved by the said order have preferred this appeal. 5.      Learned   counsel  appearing  for   the   appellants vehemently  urged  before  us that  the  said  advertisement inviting  applications  . for settling the shop  to  have  a medical  store  inside the hospital premises was  issued  in pursuance of the Government policy and with the sole  object to make the medicines available to the patients even at  odd hours and, therefore, the High Court 198 should not have interfered with the administrative  decision of  the  Government taken in the public  interest.  We  find considerable force and much substance in these submissions. 6.      In  the  aforesaid background  the  question  arises whether,  in the absence of any rule or regulation  to   the contrary,  can  the power of the State be  abridged  on  the basis  of an individual interest of certain trader, even  to the  extent of restricting the State’s capacity  to  advance larger  public  good.  It can hardly be  disputed  that  the consideration  of  availability  of  the  medicines  to  the patients  should be the uppermost consideration as  compared

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to  the right of a person to derive income and make  profits for his sustenance by running a medical store for the reason that the medical stores arc primarily meant for the patients and not the patients for the medical stores or those who run the  same.  The  submission of the  respondents  that  if  a medical  store is opened within the campus of the  hospital, the same  will jeopardise their interest adversely affecting their  business  and that they will not be able  to  sustain themselves  could  not  be a valid ground  to  disallow  the appellants  to  open  a shop  within  the  hospital  campus. Undoubtedly,  the  opening  of a medical  store  within  the hospital  campus  will  provide  a  great  facility  to  the patients who may not be having any attendant of their own in the hospital for their assistance at odd hours in the  event of  an emergency to go out to purchase the medicines.  There may  be  patients having an attendant who may  not  find  it convenient  or safe to go out of the campus to purchase  the medicines   in  the  night  hours.   In  these   facts   and circumstances  the  paramount consideration  should  be  the convenience  of  the  patients  and  protection  ’of   their interest  and  not the hardship that may be  caused  to  the medical store keepers who may be having their shops  outside the hospital campus. Thus the intention of the appellants to open  a  medical  store within the  hospital  campus  is  to salvage  the  difficulties of the patients admitted  in  the hospital and this object of the appellants has direct  nexus with  the Public Interest particularly that of the  patients and,  therefore, the High Court should not  have  interfered with  the  decision of the State Government  to  settle  the holding  of  a  medical  store  in  the  Hospital  premises. However,  if the respondents so choose, they may keep  their medical  stores also open day and night.   Consequently  the impugned order could not be sustained. 7. In the result  the appeal  succeeds and is hereby allowed.  The impugned  order of  the High Court dated 27.9.93 is set aside and  the  writ petition  filed  by  the  respondents  is  dismissed.    We, however, make no order as to costs. 199