Back
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
S.C. Mathur,S.M. Rizvi, JJ.
Sukesh Chander Khajuria - Appellant
Versus
State & Ors. - Respondent
OWP No. 407/1992
Decided On : 14 February, 1994
PRIVATE MEDICAL PRACTICE - BAN - RELAXATION - VALIDITY - GOVERNMENT DOCTORS - JAMMU AND KASHMIR PUBLIC MEN AND PUBLIC SERVANTS (DECLARATION OF ASSETS AND OTHER PROVISIONS) ACT, 1983 (V OF 1983) - JAMMU AND KASHMIR MEDICAL EDUCATION (GAZETTED) SERVICE RULES, 1979 - MEDICAL COUNCIL OF INDIA RULES - CONSTITUTION OF INDIA, ARTS. 19(1)(G), 21 - JAMMU AND KASHMIR CONSTITUTION, SEC. 24.
Fact of the Case:
Petitioner, an activist and president of several social organizations, filed a writ petition in public interest seeking a ban on private medical practice by doctors in the service of the State Government and for creation and assurance of proper, adequate, and hygienic medical facilities for the citizens of the State.
Finding of the Court:
1. The impugned SRO No. 42 dated 23.1.1987, which permits private practice by government doctors, is not contrary to the statutory provisions of the Jammu and Kashmir Public Men and Public Servants (Declaration of Assets and Other Provisions) Act, 1983 (V of 1983) and the Jammu and Kashmir Medical Education (Gazetted) Service Rules, 1979. 2. The Medical Council of India Rule 2, which enjoins that the teaching staff of all departments of a medical college shall be non-practicing, does not necessarily lead to the de-recognition of medical colleges in the State for permitting private practice. 3. The impugned SRO is not vague or ambiguous as it clearly defines the terms and conditions for private practice by government doctors. 4. Allowing private practice at any time of the day is not unreasonable as it provides an additional avenue for medical services and does not minimize the facility of medical service or patient care. 5. The State Government has the power to ban or allow private practice, and the decision to do so is a policy matter within the executive's domain.
Issues: 1. Whether the impugned SRO No. 42 dated 23.1.1987, which permits private practice by government doctors, is contrary to the statutory provisions of the Jammu and Kashmir Public Men and Public Servants (Declaration of Assets and Other Provisions) Act, 1983 (V of 1983) and the Jammu and Kashmir Medical Education (Gazetted) Service Rules, 1979? 2. Whether the Medical Council of India Rule 2, which enjoins that the teaching staff of all departments of a medical college shall be non-practicing, necessarily leads to the de-recognition of medical colleges in the State for permitting private practice? 3. Whether the impugned SRO is vague or ambiguous? 4. Whether allowing private practice at any time of the day is unreasonable? 5. Whether the State Government has the power to ban or allow private practice?
Ratio Decidendi: 1. The Jammu and Kashmir Public Men and Public Servants (Declaration of Assets and Other Provisions) Act, 1983 (V of 1983) and the Jammu and Kashmir Medical Education (Gazetted) Service Rules, 1979 do not prohibit private practice by government doctors. In fact, Section 13 of the 1983 Act empowers the State Government to grant permission to government servants, including government doctors, to undertake private practice. 2. Medical Council of India Rule 2, which enjoins that the teaching staff of all departments of a medical college shall be non-practicing, does not confer any power to de-recognize medical colleges for permitting private practice. 3. The impugned SRO clearly defines the terms and conditions for private practice by government doctors, making it neither vague nor ambiguous. 4. Allowing private practice at any time of the day is not unreasonable as it provides an additional avenue for medical services and does not minimize the facility of medical service or patient care. 5. The State Government has the power to ban or allow private practice, and the decision to do so is a policy matter within the executive's domain.
Final Decision: The writ petition was dismissed, and the impugned SRO No. 42 dated 23.1.1987, which permits private practice by government doctors, was upheld.
Government doctors likely to be affected by the petition fall in two categories: (1) those posted at Primary Health Centres and Hospitals, (2) those posted at institutions imparting medical education. Doctors belonging to the second category are governed by Jammu and Kashmir Medical Education (Gazetted) Service Rules, 1979. Said doctors alongwith other Government servants are governed by Jammu & Kashmir Public Men & Public Servants (Declaration of Assets and ether provisions) Act, 1983. According to the petitioner, under both these statutory provisions it was not permissible for the doctors in the employment of the State Government to indulge in private practice, yet the said doctors indulged in private medical practice which resulted in deterioration of services which they were required to render to the citizens of the State a Government or public servants. Their indulgence in private medical practice was ignored as they had as powerful political lobby. On 7.3.1986 Governors rule was imposed in the State and Shri Jagmohan was appointed the Governor. He took note of the malaise and on 3I.5.1986 Government order was issued imposing ban on private medical practice by the said doctors. This Government order was challenged by Dr. S.N. Dhar and several other Government doctors through writ petition No: 663/1986. These Government doctors invoked Art 19(l)(g) of the Indian Constitution to assail the ban. They asserted that the private practice did not interfere with the efficient discharge of their official duties. This petition was contested on behalf of the State and was dismissed by a Division bench on 17.10.1986. Governors rule ended and democratic government was installed and Government doctors political lobby again became active. They succeeded in obtaining SRO No: 42 dated 23.1.1987 which permitted them to do Private practice along-with their jobs as Government servants. This is the order which is under challenge in the present petition.
The first ground of challenge raised by the petitioner is that SRO dated 23.1.1987 is contrary to the statutory provisions and the same cannot therefore be sustained. The statutory provisions relied upon by the learned counsel for the petitioner are the Act of 1983 and the Rules of 1979 mentioned hereinabove. In the Rules reliance has been placed by the learned counsel on Rule 15(1) which reads as follows:
"15 (1) Unless otherwise directed by the Government by any general or special order no member of the service shall undertake private practice. Every such member shall be entitled to a monthly non-practising allowance at such rate as may be determined by the Government from time to time."
(emphasis supplied)
1979 Rule deal with doctors appointed in the institutions imparting medical education. Their appointment may be in the teaching wing, administrative or general wing. On the basis of the provisions contained in rule 15(1), the submission of the learned counsel is that doctors belonging to second category cannot do private practice.
In view of the emphasised portion in rule 15(1) we are unable to uphold the submissions of the learned counsel. In view of the emphasised portion the bar on private practice will apply only in the absence of any general or special order. Once such an order is issued permitting private practice, the bar on private practice contemplated by rule 15 (1) would stand lifted. In the present case the bar stood lifted by the impugned SRO No. 42 dated 23
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
