Full Judgment Text
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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
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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
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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.
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