2000 Supreme(SC) 755

2000(5) Supreme 53
SUPREME COURT OF INDIA
(From Orissa High Court)
S. Saghir Ahmad & Doraiswamy Raju, JJ.
Gayatri Devi Pansari -Appellant
versus
State of Orissa & Ors. -Respondents
Civil Appeal No. 2580 of 2000
(Arising out of SLP (C) No. 9367 of 1998)
Decided on 11-4-2000
Counsel for the Parties :
For the Appearing Parties : M.N. Krishnamani, Sr. Advocate, Rajiv S. Roy, J. Mohapatra, P.K. Mullick, Jana Kalyan Das, Shiva Pujan Singh, Advocates.

Headnote:Gender reservation-Government hospital-Permission to run 24 hours pharmacy by unemployed pharmacist-Government s policy of reserving 30% vacancies for lady candidates-Appellant lady pharmacist-Registered out side State-Selection Committee finding appellant eligible selecting her to give effect to policy decision of Government to provide self employment to ladies-Store in question not exclusively reserved for ladies-Preference given to lady candidate not in excess of 30% quota-Selection could not be interfered with.

       Held : 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 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. It 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 6.4.1994. 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 pardon 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 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. (Paras 8, 9 & 10)