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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No .10286    OF 2016 [Arising out of SLP (C) No. 16885 of 2012]

STATE OF JAMMU AND KASHMIR                 .... APPELLANT

VERSUS

VICHAR  KRANTI  INTERNATIONAL & ANR         ......RESPONDENTS  

J U D G M E N T

Dr D Y CHANDRACHUD, J

Leave granted.

Delay condoned.

A Writ Petition was instituted in the public interest before the High Court

of Jammu and Kashmir by the respondents seeking to challenge a circular dated

11  August  2005  issued  by  the  Government  of  Jammu  and  Kashmir  in  its

Education Department. The circular adverted to the provisions of Rule 10 of the

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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. Accordingly, the circular

contained the following directions:

“In  order  to  safeguard  the  public  interest  i.e.,  the academic work in the schools it is hereby directed that no  official  shall  undertake  any  activity/assignment including teaching in a private institution or coaching centre  unless  permission  is  obtained  from  the competent authority to do so. It is further directed that no  such  permission  shall  be  available  two  hours before the opening of the school and two hours after the  school  gets  closed.  It  is  further  directed  that  it shall  be  the  responsibility  of  the  Chief  Education Officers,  Zonal  Education  Officers,  Principles  of Higher Secondary Schools and Headmasters of High School  to  be  on  the  lookout  so  that  none  of  the members  of  the  Education  Service  (Gazetted  or Non-Gazetted)  indulges  in  any  activity  on  this account which is in violation of the prescribed Code of Conduct or these instructions. In the first instance, the said officers shall  take such action as they may deem appropriate  to  prevent  such activities  in  their area and in case of failure to stop such activities the matter shall be brought to the notice of the concerned Chief Education Officer who will  in turn take it  up with  the  Director  School  Education  and  District Magistrate for appropriate action.  

Besides challenging the above circular dated 11 August 2005, the respondents

sought a prohibition on private tutoring by government teachers. In addition, the

respondents also prayed for a complete ban on private practice by government

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doctors including those working in medical colleges. The reliefs which were

sought in the Writ Petition read as follows:    

“a)  Take  steps  for  improving  the  purpose  of Government Schools;

b)  Ban  completely  private  tutoring  by  Government teachers both gazetted and non-gazetted cadre;

c)  Ban  Private  practice  by  Government  Doctors including those working in Medical Colleges. Ensure that  even in  private  schools  the  teachers  which are appointed  should  bear  minimum  qualification  of being  trained  graduates…Certiorari  quash  circular No.  Edu/PS/C/S/11/05  dated  11th August  2005  as being arbitrary, illegal and unconstitutional.”  

2 The writ petition was disposed of  by a Division Bench of the High Court

by a final judgment on 18 November 2011. The Division Bench held that Rule

10 of the Jammu and Kashmir Government Employees (Conduct) Rules 1971

does not empower the 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. Having set aside the circular, the High Court

also issued the following directions:

“With  the  above  said  directions,  this  writ  petition stands disposed of  by  setting  aside  that  part  of  the instructions  contained  in  circular  No. Edu/PS/C/S/11/05 dated 11.08.2005 granting general

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permission/authority to the officials of the Education Department  and  Medical  Department  to  grant permission  to  all  the  teachers  and  Doctors respectively  to  engage  themselves  by  way  of self-employment or in the form of accepting part time employment  in  private  coaching  centres  two  hours before the opening of the school and two hours after the closing of the schools and private practice by the doctors,  with  other  directions  stated therein.”(emphasis supplied)

3 The State has challenged the judgment of the Division Bench. During the

course of  the hearing,  learned Counsel  appearing on behalf  of  the State has

urged that the State is not aggrieved by the directions of the High Court in their

application to teachers, insofar as the circular dated 11 August 2005 was set

aside.  The  circular,  it  has  been  submitted,  was  issued  by  the  Education

Department and specifically dealt with the issue of whether officials engaged in

schools  could  be  permitted  to  take  up  private  assignments.  However,  the

grievance  is  that  the  directions  issued  by  the  High  Court  which  have  been

extracted  above,  proceeded  on  the  basis  that  the  circular  also  regulated

government medical doctors engaging in self-employment or other activities. It

was urged that the 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.

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4 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 the 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,  the  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 Ors1. By a judgment and order dated 14 February 1994,

a Division Bench of the High Court dismissed the Writ Petition, observing as

follows:

1

MANU/JK/0017/1994

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“27…..Whether  private  medical  practice  should  be allowed to doctors in Government service or not is a policy matter. Policy decisions have to be taken by the Executive and not by Courts. Courts can only indicate the legal position. The legal position is that the State has power to ban private practice as well to allow it. When it will allow and when it will ban it is for the Government to decide and not for the Courts. “

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.

5 There is merit in the contention which has been urged on behalf of the

State Government that the High Court proceeded erroneously on the basis that

the circular dated 11 August 2005 which was impugned before the High Court,

dealt  with  the  issue  of  whether  government  doctors  should  be  permitted  to

engage in private practice. Plainly, the circular dated 11 August 2005 was issued

by the Education Department  and applied exclusively to  officials  in schools

engaging  in  private  assignments  outside  school  hours.  The  circular  had  no

application  to  government  doctors.  The  regulation  of  private  practice  by

government doctors is the 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  the  rules  before  it

proceeded to decide the case.

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6 In  the  circumstances,  we  are  of  the  view  that  there  is  merit  in  the

grievance of  the State  Government  in  regard to  the correctness  of  the view

which has been formulated by the High Court. The High Court was not apprised

of the relevant statutory rules which govern the field. An order of remand would

hence be necessitated to enable a fresh consideration of the issue by the High

Court.  

7 Quite  apart  from the  issue  of  whether  government  doctors  should  be

allowed  to  engage  in  private  practice,  there  are  other  and,  perhaps  more

fundamental aspects which would arise from the Public Interest Litigation that

was  instituted  before  the  High Court.  The basic  issue  which requires  to  be

addressed  is  the  availability  of  infrastructure  and  facilities  in  government

hospitals  across  the  state  of  Jammu and  Kashmir  and  the  facilities  for  the

treatment  of  patients.  The  respondents  would  be  at  liberty  to  move  an

appropriate application before the High Court for amending the Writ Petition to

adduce pleadings and for claiming appropriate reliefs in that regard. However,

independent  of  that,  we are  of  the  view that  the  quality  of  medical  care  in

government hospitals across the state of Jammu and Kashmir is a matter which

should receive attention and oversight in the exercise of the jurisdiction under

Article  226.  In  particular,  we  emphasise  the  following  issues  which  would

require careful scrutiny and such remedial directions as may be necessitated on

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the basis of the material which may become available to the High Court. The

areas of concern include:

(i) The availability of adequate infrastructure in government hospitals;  (ii) The availability of essential equipment for treatment; (iii) The availability of staff-medical, para medical and of a supporting nature;  (iv) Enforcement of conditions of hygiene to secure proper medical treatment

facilities; and (v) The availability of essential medicines.

8 The  Respondents  have  placed  on  the  record  a  report  of  the  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.  We  would  commend  to  the  High  Court  the  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. The Committee

shall submit a report on the state of public - government hospitals in the state

and covering among other things, the areas which have been emphasised above.

The High Court would be at liberty, after scrutinizing the report of the Expert

Committee and upon hearing the relevant stakeholders including the state, to

issue appropriate directions and monitor compliance. The hospitals which are

conducted by the state and by public agencies cater to medical needs of the

poorest  strata  of  society.  The  need  for  ensuring  proper  medical  care  of  a

requisite standard has to be duly addressed.  

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9 We hence remand the proceedings back to the High Court for considering

both aspects of the matter, as highlighted above. To facilitate this exercise, the

impugned judgment and order of the High Court dated 18 November 2011 is set

aside insofar as it deals with the regulation of private practice by government

doctors.  The proceedings shall  stand restored  to  the  High Court  for  hearing

afresh having regard to the observations made above.  

10 The Civil Appeal is accordingly disposed of.     

         ........................................CJI   [T S  THAKUR]  

          ...…..........................................J  [A M  KHANWILKAR]

................................................J  [Dr D Y  CHANDRACHUD]

New Delhi October 21, 2016