PETITIONER: STATE OF ORISSA Vs. RESPONDENT: RADHEYSHYAM MEHAR 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:
The Judgment of the Court was delivered by
FAIZAN UDDIN, J.- Leave granted.
2. The short question that arises for ourconsideration
in this appeal is whether the impugned order of the High
Court of Orissa dated 27-9-1993 passed in OJC No. 5435 of
1993 directing the appellants not to take any decision on
the advertisement dated 27-7-1993 issued by the
Superintendent CDMO, Bolangir to settle the shop with anyone
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 super session of previous
instructions took a decision that 24 hours medical stores
shall be opened in the campus of the hospital 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 13-5-1993 was issued to all the
DMET/DHS/DC and all Superintendents of Medical Colleges of
the State of Orissa as well as to all CDMOs and CMOs in the
Capital Hospital, Bhubaneswar to assess the need for having
24 hours medical 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 along with their
views/comments for a final decision at the Government level.
It was in pursuance of this memo that the
Superintendent/CDMO, 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. Respondents 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/CDMO 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
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with an offer that Petitioners 1 and 4 to 7 (who are
Respondents 1, 4 to 7 herein) whose medical stores are 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 1, 4 to 7 herein) give an
undertaking to the CDMO, 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 CDMO 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 re-advertise 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 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
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 are 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
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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 storekeepers 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 27-9-1993 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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