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PETITIONER: GAYATRI DEVI PANSARI

       Vs.

RESPONDENT: STATE OF ORISSA & ORS.

DATE OF JUDGMENT:       11/04/2000

BENCH: S.S.Ahmad, Doraswami Raju

JUDGMENT:

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

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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

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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

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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

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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.