STATE OF J & K Vs VICHAR KRANTI INTERNATIONAL
Bench: T.S. THAKUR,A.M. KHANWILKAR,D.Y. CHANDRACHUD
Case number: C.A. No.-010286-010286 / 2016
Diary number: 15041 / 2012
Advocates: ASHOK MATHUR Vs
DEEPAK GOEL
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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