JUDGMENT

FAIZAN UDDIN, J. :- 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 Art. 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 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 13-5-93 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.Os and C.M.Os in the capital hospital, Bhubaneshwar 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/C.D.M.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 Nos. 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 Nos. 1, and 4 to 7 (who are respondents Nos. 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/C.D.M.O., 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/C.D.M.O., 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 Nos.1,4 to 7 herein) give an undertaking to the C.D.M.O., Bolangir within 10 days