IMPORTANT POINT
Court cannot decide an issue which is not before it.

JUDGMENT

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 o