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State of Jammu and Kashmir v. Vichar Kranti International and Ors. - (Supreme Court) (21 Oct 2016)

Regulation of private practice by govt. doctors is subject matter of separate Rules, circular issued under J&K Govt. Employees (Conduct) Rules 1971 not applicable to govt. doctors



A Writ Petition was instituted in public interest before High Court of Jammu and Kashmir by Respondents seeking to challenge a Circular dated 11 August 2005 issued by Government of Jammu and Kashmir in its Education Department. Circular adverted to the provisions of Rule 10 of the Jammu and Kashmir Government Employees (Conduct) Rules 1971 which prohibits a government servant from taking up any assignment without the permission of the competent authority. The circular recorded that complaints were received to the effect that officials of the Education Department were indulging in coaching activities in private institutions.

Division Bench held that Rule 10 of Rules 1971 does not empower government to issue general instructions of this nature allowing teachers in government schools to pursue private assignments. In the view of the High Court, it was only in exceptional situations that the power under Rule 10 could be utilized to grant permission for engaging in any other trade, business or employment. On these grounds, the circular dated 11 August 2005 was quashed and set aside. State has challenged judgment of Division Bench. Grievance is that, directions issued by High Court, proceeded on basis that, circular also regulated government medical doctors engaging in self-employment or other activities. It was urged that, Rules governing private practice by government doctors were not placed before the Court. Hence, without considering those rules, the High Court has issued a blanket direction erroneously on the basis that the circular of 11 August 2005 also covered the services of medical doctors.

Section 13 of the Jammu and Kashmir Public Men and Public Servants Declaration of Assets and Other Provisions Act 1983 stipulates that no public servant, whether on leave or in active service, shall practice any profession or carry on any trade or business, directly or indirectly or undertake any other employment without the previous permission in writing of the Prescribed Authority. In exercise of powers conferred by Section 16(2)(b) of Act, the State Government issued a notification, bearing SRO-156 dated 23 April 1984 permitting private practice by government doctors, subject to its terms. The permission granted by the above notification for government doctors, engaging in private practice was withdrawn by government orders dated 31 May 1986 and 05 June 1986 (Government order No. 340-GR-HME of 1986). Subsequently, on 23 January 1987, State Government issued SRO-42 to regulate the conduct of private practice by government doctors. The above Rules were challenged before the Jammu and Kashmir High Court in Sukesh Chander Khajuria v. State and Ors. Subsequently, by a notification dated 04 August 1995, the Jammu and Kashmir Government Doctors (relaxation of restrictions on private practice) Rules 1987 were rescinded. Once again on 23 April 1998, a fresh government order-SRO 132 was issued by the State Government formulating Rules for regulating private practice by government doctors.

High Court proceeded erroneously on basis that, circular dated 11 August 2005 which was impugned before High Court, dealt with issue of whether government doctors should be permitted to engage in private practice. Plainly, circular dated 11 August 2005 was issued by Education Department and applied exclusively to officials in schools engaging in private assignments outside school hours. Circular had no application to government doctors. Regulation of private practice by government doctors is subject matter of separate Rules framed by the State Government. Neither were those Rules under challenge before the High Court nor did the High Court had the benefit of evaluating Rules before it proceeded to decide the case. High Court was not appraised of the relevant statutory Rules which govern the field.

Quality of medical care in government hospitals across state of Jammu and Kashmir is a matter which should receive attention and oversight in exercise of jurisdiction under Article 226 of Constitution. Respondents have placed on record a report of Estimates Committee of the Jammu and Kashmir Legislative Assembly on unprecedented neonatal/infant deaths which took place in January-May 2012 in GB Pant (Children) Hospital, Srinagar. There is a need for constituting a Committee of Experts to scrutinize the conditions in public-government hospitals in the state. The High Court would be at liberty to constitute a Committee of medical experts and administrators. Impugned judgment of High Court was set aside insofar as it dealt with the Regulation of private practice by government doctors. The proceedings shall stand restored to the High Court for hearing afresh.

Relevant : Sukesh Chander Khajuria v. State and Ors.  MANU/JK/0017/1994


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