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Sunday, October 23, 2016

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. 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.=2016 Oct. http://judis.nic.in/supremecourt/imgst.aspx?filename=44258



                                                                  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 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 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  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.

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
Ors[1]. By a judgment and order dated 14 February 1994, a Division Bench  of
the High Court dismissed the Writ Petition, observing as follows:

“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.

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  the  basis
of the material which may become available to the High Court. The  areas  of
concern include:

The availability of adequate infrastructure in government hospitals;

The availability of essential equipment for treatment;

The availability of staff-medical, para medical and of a supporting  nature;


Enforcement of conditions of hygiene  to  secure  proper  medical  treatment
facilities; and

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.

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
-----------------------
[1]







      [2]MANU/JK/0017/1994


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