JUDGMENT
Pasayat, J.
1. Order of the Government of Orissa in the Health and Family Welfare Department dated 12-5-1997 selecting Gayatri Devi Pansari (opposite party No. 5) to open a 24 hours Medical Store in the campus of Sub-Divisional Hospital, Patnagarh is under challenge. Petitioner was one of the applicants and has assailed the relection of opposite party No, 5 on the ground that the same was illegal on various grounds; primarily because she was not eligible and/on qualified and extraneous considerations have weighed while making the selection. The State of Orissa and its functionaries have supported the selection, as also the selected person (opposite party No. 5). The impugned order dated 12-5-1997 is Annexure 5 to the writ application.
2. Background facts necessary for disposal of the writ application arc essentially as follows :
Procedure for opening of medical stores in the campus of Medical College Hospitals/District Headquarters Hospitals and Hospitals equivalent to them and sub-divisional hospitals of the State were formulated by the State at different points of time. So far as the case at hand is concerned, the guidelines applicable are those contained in the G.O. No. 17782-H, dated 13-5-1993 read with Order No. 19665/H, dated 26-5-1993 issued by the State Government. The criteria for selection were as follows, as per the first G.O,
(i) Any person having the requisite qualification may apply for running a Medical Store in Government Hospital.
(ii) A person to be considered eligible for the purpose shall preferably be registered Pharmacist either with a degree or diploma in Pharmacy. But a person who can engage a Pharmacist irrespective of whether he himself is a Pharmacist or not may also be considered.
(iii) A person having previous experience of running a Medical Store shall be given preference if he can furnish documents in support of that. But he will get lower priority vis-a-vis applicant who is a registered Pharmacist.
(iv) All other things being equal persons who have crossed the age limit for entry into Government service shall be given preference.
These criteria were substituted by G.O. No. 19665 dated 26-5-1993 and the substituted criteria read as follows :
(i) Any person having the requisite qualification may apply for running a medical store in Government Hospital.
(ii) A person to be considered eligible for the purpose shall be a registered Pharmacist either with a degree or diploma in Pharmacy. But a person who can engage a Pharmacist irrespective of whether he himself is a Pharmacist or not may be considered.
(iii) As unemployed person having previous experience of running a medical store shall be given preference.
3. Petitioner’s ease is that though his case was sponsored by the Chief District Medical Officer (in short, ‘CDMO’), the Director of Health Services, the Secretary, Health and the Minister, Health without any rhyme or reason and without taking into consideration the criteria fixed, passed orders selecting opp. party No. 5. Specific reference is made to Clause 5(ii) dealing with eligibility criteria. It is stated that opposite party No. 5 was not a registered Pharmacist either with a degree or diploma in Pharmacy, and therefore, she was not eligible to be considered.
The stand of opposite parties on the other hand is that the opp. party No. 3 was a registered Pharmacist and in any event a person who can engage a Pharmacist can be considered, whether he himself is a Pharmacist or not. Further opp. party No. 5 being a lady applicant preference was given to her. According to them the scope for judicial review of administrative action is very limited, and there being nothing illicit in the selection, there is no scope for judicial review of the order passed by the competent authority.
4. In view of the controversy referred to above, two aspects are to be considered. First aspect concerns the scope of judicial review, and second one the factual aspects.
5. The scope of judicial review in matters of administrative decisions has been highlighted by the Courts in many cases. In recent times the distinction between administrative orders and judicial or quasi judicial orders have practically ceased to exist in view of primacy of the Rule of law. The point that falls for determination is the scope for judicial interference in matters of administrative decision. Administrative action is stated to be referable to broad area of Governmental activities in which the repositories of power may exercise every class of statutory function of executive, quasi-legislative and quasi judicial nature. It is trite law that exercise of power, whether legislative or administrative, will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary. (See State of U. P. v. Basusagar Power Co., AIR 1988 SC 1737.) At one time, the traditional view in England was that the executive was not answerable where its action was attributable to the exercise of prerogative power. Professor De Smith in his classical work ‘Judicial Review of Administrative Action’ 4th Edition at pages 285-287 states the legal position in his own terse language that the relevant principles formulated by the Courts may be broadly summarised as follows. The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it; to must not act under the dictates of another body or disable itself from exercising a discretion in each individual ease. In the purported exercise of its discretion, it must not do what it has been forbidden to do, nor must it do what it has been authorised to do. It must act in good faith, must have regard to all relevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not arbitrarily or capriciously. These several principles can be conveniently grouped in two main categories; (i) failure to exercise a discretion; and (ii) excess or abuse of discretionary power. The two classes are not, however, actually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account, and where an authority hands over its discretion to another body insets ultra vires.
The present trend of judicial opinion is to restrict the doctrine of immunity from judicial review to those class of cases which relate to deployment of troops entering into international treaties, etc. The distinctive features of some of these recent cases signify the willingness of the Courts to assert their power to scrutinise the factual basis upon which discretionary powers have been exercised. Judicial review has developed to a stage today when, without reiterating any analysis of the steps by which the development has come about. One can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground is ‘illegality’, the second ‘irretionality’ and the third ‘procedural impropriety’. These principles were highlighted by Lord Diplock in Council of Civil Service Union v. Minister for the Civil Services, (1984) 3 All ER 935. If the power has been exercised on a non-consideration or non-application of mind to relevant factors, the exercise of power will be regarded as manifestly erroneous. If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous such exercise of power will stand vitiated. (See Commissioner of Income -tax v. Mahindra and Mahindra Ltd., AIR 1984 SC 1182.) The effect of several decisions on the question of jurisdiction has been summed up by Grahme Aledous and John Alder in their book ‘Applications for Judicial Review, Law and Practice’ thus :
“There is a general presumption against ousting the jurisdiction of the Courts, so that statutory provisions which purport to exclude judicial review arc constructed restrictively. There are, however, certain areas of Governmental activity, national security being the paradise, which the Courts regard themselves as incompetent to investigate, beyond an initial decision as to whether the Government’s claim is bona fide. In this kind of non-justiciable area judicial review is not entirely excluded, but very limited. It has also been said that powers conferred by the Royal Prerogative of the House of Lords in Council of Civil Services Union v. Minister for the Civil Service this is doubtful. Lord Diplook, Scorman and Roskill appeared to agree that there is no general distinction between powers, based upon whether their source is statutory or prerogative but that judicial review can be limited by the subject-matter of a particular power, in that case national security. Many prerogative powers are in fact concerned with sensitive, non-justiciable areas for example foreign affairs, but some arc reviewable in principle, including the prerogative relating to the civil service where national security is not involved/ Another non-justiciable power is the Attorney-General’s prerogative to decide whether to institute legal proceedings on behalf of the public interest.”
Also see Padfield v. Minister of Agriculture. Fisheries and Food, L.A., (l968) AC 997 and Council of Civil Service Union v. Minister for the Civil Service, (1984) 3 All ER 935 (ML). The Court must while adjudicating validity of an executive decision grant a certain measure of freedom of play in the joints to the executive. The problems of Government are practical ones and may justify, if they do not require, rough accommodations; illegal, it may be and unscientific. But even such criticise should not be hastily expressed. What is best is not discernible, me wisdom of any choice may be disputed or commenced. Mere errors of Government are not subject to judicial review. It is only palpably arbitrary exercise which can be declared void. Only when the action of the administrative authority is so unfair or unreasonable that no reasonable person would have taken that action, can the Court intervene. White fair-play is an essential ingredient in accepting and in awarding a contract, similarly ‘fair-play in the joints’ is also a necessary concomittant for administrative body functioning in an administrative sphere or quasi administrative sphere.
Discretion, Lord Hansfield stated in classic terms in John Wilke’s case, (1770) 4 Hurr 2528, must be a sound one governed by law and guided by rule, not by humour. Lord Denning put it eloquently in Breen v. Amalgamated Engineering Union, (1971) 1 All ER 1148, that in a Government of Laws “there is nothing like unfettered discretion immune from judicial reviewable”. Courts stand between the executive and the subject alert to see that discretionary power is not exceeded or misused. Discretion is a science of understanding to discern between right or wrong, between shadow and substance, between equity and colourable glosses and pretences and not to do according to one’s wills and private affections. Lord Brightman elegantly observed in the case of Chief Constable of North Wales Police v. Evans, (1982) 3 All ER 141 that:
“Judicial Review, as the words imply is not an appeal from a decision, but a review of the matter in which the decision was made.”
In a recent decision of Tata Cellular v. Union of India, (1994) 6 SCC 651 : (AIR 1996 SC 11), the Apex Court classified the grounds of challenge as under:
“Therefore, it is not for the Court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under :
(i) Illegality : This means the decision maker must understand correctly the law that regulates his decision-making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness.
(iii) Procedural impropriety.”
The action of the State, the instrumentality, any public authority or person whose actions bear insignia or public law element or public character are amenable to judicial review and the validity of such action would be tested on the anvil of Article 14 of the Constitution. The classic passage from the judgment of Lord Greone M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, (1948) I KB 223 eloquently states the position in law. The same reads as follows:
“It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word ‘unreasonable’ in a rather comprehensive sense. It has frequently been used as a general description of the things that must not be done. For instance, a person entrusted with the discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said to be acting ‘unreasonably’, Similarly there may be something so absurd that no sensible person could never dream that it lay within the powers of the authority.”
These aspects have been highlighted by one of us (A. Pasayat, J.) in Geetanjali Patnaik v. State of Orissa, represented through its Secretary, Department of Health, (1996) 81 Cut LJ 540 : (AIR 1996 Orissa 157) and Sri Rama Ballav Rath v. State of Orissa, represented by the Secretary to Government, General Administration Department, (1996) 81 Cut LT 841. Keeping in view the limited scope of judicial review in administrative matters, it is to be seen how far the orders passed by the authorities can be maintained on the touchstone of sustainability.
6. Vital question is whether the selection was done after due and proper application of mind. Petitioner’s case is that opp. party No. 5 being not a registered Pharmacist was not eligible to be considered. Opposite party No. 5 claims to be a registered Pharmacist. As indicated supra, the stand of opposite parties is that even though opposite party No. 5 was not a registered Pharmacist, there was nothing wrong in considering her because Clause 5(ii) itself provides that a person who can engage a Pharmacist irrespective of whether he himself is a Pharmacist or not may also be considered. Both the State and its functionaries and opposite party No. 5 have filed counter-affidavits with reference to several documents including the letter of the Directorate of Drugs Control, Orissa dated 26-2-1993 to claim that opposite party No. 5 is a registered Pharmacist. Though it cannot be disputed that a person who is not a registered Pharmacist, can be considered yet emphasis seems to be on the applicant being a registered Pharmacist either with a degree or diploma in Pharmacy. It is clear from a reading of Clause 5(ii). There is no bar on consideration of a case of a person who can engage a Pharmacist, but it is clearly spelt out that a person to be considered eligible for the purpose of selection shall be registered Pharmacist. On the scales of preference when contest is between a registered Pharmacist and a person who can engage a Pharmacist, certainly the balance tilts in favour of the former. The controversy seems to be whether opp. party No. 5 was a registered seems to be whether opp. party No. 5 was a registered Pharmacist. ‘Registered Pharmacist’ is defined in the Pharmacy Act, 1948 (in short, ‘the Act’) in Clause (i) of Section 2. Same reads as follows :
“(i) ‘registered Pharmacist’ means a person whose name is for the time being entered on the register of the State in which he is for the time being residing or carrying on his profession or business of Pharmacy.”
‘Register’ as referred to in the definition, means a register of Pharmacist prepared and maintained under Chapter IV of the Act. Orissa Pharmacy Council Rules, 1970 (in short, ‘Orissa Rules’) deal with mode of registration and the manner of registration.
7. Rule 64( 1) of the Drugs and Cosmetics Rules, 1945 (in short, the ‘Drugs Rules’) deals with a qualified person. In the counter-affidavit filed by opposite party Nos. 1 to 4 it has been stated that opposite party No. 5 has been registered under the Orissa Pharmacy Council as a Pharmacist. She being the only lady applicant, the opposite parties have rightly decided to give priority to a lady applicant in the field of self-employment. It has been stated that in OJC No. 1264 of 1994 the prayer was rejected in an identical case. In the counter-affidavit filed by opposite party No. 5, it is stated that she has been registered as aregistered Pharmacist under the M. P. Pharmacy Council, and she had applied to Orissa Pharmacy Council for registration on 20-10-1984 and has been engaged as a Pharmacist at M/s. Mukesh Medicals. At/P.O. Patnagarh in the district of Balangir since 6-4-1994. It is stated that the petitioner has been recognised as a registered Pharmacist by the Drugs Inspector, and reliance is placed on the certificate issued by the Drugs Inspector for her having Madhya Pradesh Pharmacy Council Regn. No. 11713 dated 27-1-1984 and she being engaged as a Pharmacist with effect from 6-4-1994. She has relied that the certificate issued by the M.P. Pharmacy Council, Bhopal vide Annexure B-5 to see that she is a registered Pharmacist. Merely because opposite party No. 5 has been registered as a Pharmacist under M.P. Pharmacy Council as indicated above, she cannot be automatically treated as a registered Pharmacist under the Orissa Pharmacy Council. In fact the opposite parties have not placed any material to show that opposite party No. 5 is a registered Pharmacist under the Orissa Pharmacy Council. The opposite party No. 5 has fairly aaccepted that she has not been registered under the Orissa Pharmacy Council Act. To that effect the counter filed by opposite party Nos. 1 to 4 is false. The counter-affidavit filed by opposite party Nos. 1 to 4 is full of misleading statements and the assertion that opposite party No. 5 is registered under the Orissa Pharmacy Council is not factually correct. Similarly OJC No. 1764 of l994 was not rejected but was allowed. More care and caution should be taken by the Government officials while swearing affidavits, because they run the risk of facing stringent action if the statements made are found to be false and misleading.
8. It has to be noted at this stage that ‘qualified person’ is conceptually different from a ‘registered Pharmacist’. Though some controversy has been raised by the petitioner about the opposite party No. 5 being a qualified Pharmacist, we do not think it necessary to go into that question because that is not relevant so far as the present writ application is concerned. Her case was not considered solely as qualified Pharmacist. It is stated by learned counsel for State that in view of the Government Order dated 9-11-1993 issued on 27-11-1993 as a lady candidate she was given preference. The sub-para on which emphasis has been laid 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 reservedexclusively 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 witling to run any such store a fresh advertisement shall be issued inviting applications from general public irrespective of sex for allotment of medical store.”
A bare perusal of the Government Order shows that reservation has to be made only after the medical store is identified and specified. That was not done in the present case, and therefore, the Government Order dated 9-11-I993 is not relevant so far as the present case is concerned. Selection of opp. party No. 5 is clearly vitiated. Accordingly, we quash her selection. A fresh decision shall be taken in accordance with law taking into account respective merits, acceptability of the application and all other relevant factors. If the authorities are so advised, and it is so deemed just and and proper, fresh application may be called for. We express no opinion in that regard,
The writ application is allowed to the extent indicated above. No costs.
S.C. Datta, J.
9. I agree.