Full Judgment
M.M. Das, J.
1. The petitioners have filed this Writ Petition seeking to challenge the order dated 21.2.2004 (Annexure-6) passed by the Collector, Kalahandi-Opp. Party No. 5 postponing the last date of receipt of applications for opening 'Day and Night' medicine shop.
2. In the Writ Petition, the petitioners have alleged that Opp. Party No. 5-Collector had no jurisdiction to postpone the last date of receipt of applications as the Collector was not the authority who issued the advertisement inviting applications. It is further stated in the Writ Petition that the Order of the Collector under Annexure-6 is contrary to the policy of the Government with regard to opening of 'Day and Night' medicine shop as is revealed from Annexure-3.
3. An advertisement/notice dated 31.1.2004 (Annexure-4) is alleged to have been notified by affixing it in the Notice Board of the Office of the Medical Officer, Taluk Hospital, Kesinga N.A.C., Kesinga Police Station and also in the Notice Board of the Director of Health Services, Orissa. In the said advertisement, applications in the prescribed form were invited from the persons interested for opening 'Day and Night' medicine shop inside the campus of Taluk Hospital, Kesinga. The last date for receiving the applications was fixed as 7.2.2004, but it appears that about a fortnight thereafter, the Collector, Kalahandi passed an order on 21.2.2004 to the following effect :
'On receipt of numbers of complaints, the last date of receipt of applications for opening of day and night medicine shop inside the Area Hosp. CHC-I, UGPHC CHC-II campus of the following institutions as are extended up to 8.3.2004, 5 p.m.
1. Area Hospital, Kesinga
2. CHC-I, Borda
3. UGPHC-Jaipatna/Koksara/M. Rampur/Biswanathpur
4. CHC-II Th. Rampur/Chapuria.'
4. Being aggrieved by the above order passed by the Collector-Opp. Party No. 5, the petitioners, who submitted their offers in the prescribed format, in response to the advertisement dated 31.1.2004 (Annexure-4), have preferred this Writ Application under Article 226 of the Constitution. It is alleged by the petitioners that the order under Annexure-6 is without jurisdiction as the Collector had no authority to extend the cut off date fixed in the advertisement for receipt of the applications, which was issued by the Chief District Medical Officer, Kalahandi and this was done only to show undue favour to certain persons who did not submit their offers within the stipulated date.
5. Mr. Rao, Learned Counsel for the petitioners submitted that even assuming that the Collector had the jurisdiction to extend the time for receipt of the applications as invited under the advertisement, the said extension order having been passed after expiry of the last date fixed for receiving the applications i.e., after 7.2.2004, the action of the Collector is arbitrary and illegal inasmuch as the order passed by the Collector under Annexure-6 appears to be an out-come of non-application of mind and/or tented with malafide.
6. A counter affidavit has been filed by Opp. Party No. 5-Collector, where it has been admitted that nine applications to the Director of Health Services, Orissa, but since subsequently complaints were received by the Collector commonly alleging that the advertisement was not widely published and most of the people were unaware of such advertisement, the C.D.M.O. apprised the Director, Health Services in this regard and the Director instructed him to take up the matter with the Collector, Kalahandi. It is only after that, considering the said objections filed by various persons and also taking into consideration the letter dated 20.2.2004 of the Chairman, N.A.C., Kesinga, wherein he intimated the C.D.M.O., Kalahandi that the advertisement in question was not published in the Notice Board of the N.A.C., Kesinga, the order under Annexure-6 extending the last date for receipt of applications was passed.
7. A counter affidavit has also been filed on behalf of the Director of Health Services, Orissa-Opp. Party No. 3. It appears from the said counter that Opp. Party No. 3 has taken a stand that the advertisement issued under Annexure-4 by the C.D.M.O., Kalahandi was without prior approval of the Director of Health Services and therefore, the said advertisement dated 31.1.2004 and the subsequent extension of the last date suffer from procedural infirmity.
8. We are constrained to note that this is a 3rd case made out by the Director of Health Services which is neither the case of the petitioners nor supports the case of the Collector-Opp. Party No. 5 as stated in his counter affidavit. From the guideline/policy decision of the Government as per Annexure-3 with regard to opening of a 'Day and Night' medicine shop, we do not find any stipulation that the advertisement calling for applications should be published only after taking prior approval of the Director, Health Service. We, therefore, repel the stand taken by the Director, Health Service-Opp. Party No. 3 in that regard.
9. Considering the complaints raised from various quarters alleging that the advertisement inviting applications dated 31.1.2004 was not given wide publicity for which may intending applicants could not submit their offers and more specifically the letter of the Chairman, Kesinga N.A.C. dated 20.2.2004 addressed to the C.D.M.O., Kalahandi stating that the said advertisement was not affixed to the Notice Board of the N.A.C. and the fact that the Collector being the Co-Chair Person of the Zilla Swasthya Samiti associated with all medical institutions under the C.D.M.O., Kalahandi and further the instruction of the Director, Health Services to the C.D.M.O., Kalahandi to take up the matter with the Collector, Kalahandi, we do not find any irregularity with the action of the Collector, Kalahandi, in extending the time for receiving offers pursuant to the advertisement dated 31.1.2004. We are also of the view that by extending the time for accepting offers neither any prejudice has been caused to the petitioners nor any of their rights either constitutional or statutory has been infringed...
10. In the case of G.J. Fernadez v. State of Karnataka, AIR 1990 SC 958, the Apex Court while dealing with a similar question as to whether a party can challenge the relaxation of time schedule in ana advertisement inviting tender held as follows ;
'It is true that the relaxation of the time schedule in the case of one party does affect even a person like the appellant in the sense that he would otherwise have had one competitor less. But, the rule of invalidation of a grant on account of deviation from professed standard will be readily applied by Courts to a case where a person complains that a departure from the qualifications has kept him out of the race, injustice is less apparent where the attempt of the applicant before Court is only to gain immunity from competition.'
11. Applying the above ration to the present case, we are of the view that attempt of the petitioners in this writ application is to ward off all the applications who submitted applications subsequently, from the arena of competition. We are, therefore, not inclined to interfere with the matter but in the circumstances of the case, we direct that the concerned authorities, i.e., the C.D.M.O., Kalahandi/ Director of Health Services, Orissa will consider all the applications/ offers filed by the Writ Petitioners as well as others, within the extended period i.e., 8.3.2004 and take appropriate action in selecting the most eligible offer therefrom for opening 'Day and Night' medipine shop in the campus of Taluk Hospital, Kesinga, within a period of six weeks from the date of communication of this order to them.
12. A free copy of this order will be handed over to the Learned Addl. Government Advocate who shall ensure compliance of the above direction.
With the aforesaid observations and directions, the Writ Application is disposed of.
Sujit Barman Roy, C.J.
13. I agree.