Sr. No. 208

HIGH COURT OF JAMMU AND KASHMIR

AT JAMMU

CJ Court

Case: WP(C) PIL No. 24 of 2020

Sughandha Sawhney. …Petitioner(s)/Appellant(s)

Through: Sh. Ajay Gandotra, Advocate &

Ms. Sughandha Sawhney-petitioner

present in person.

v/s

Union Territory of J&K & another

…. Respondent(s)

Through: Sh. D.C. Raina, AG with

Sh. Ravinder Gupta, AAG

Sh. H.A. Siddiqui, Sr. AAG.

CORAM:

HON’BLE THE CHIEF JUSTICE

HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

ORDER

01.

Heard Sh. Ajay Gandotra, learned counsel and Ms. Sughandha

Sawhney, who herself is a petitioner and Sh. H.A. Siddiqui, Senior Additional

Advocate General for the respondents. Sh. D.C. Raina, Advocate General has

also appeared on behalf of the Union Territory.

02.

The petitioner is a student of law and has invoked the extra-

ordinary jurisdiction of this Court in Public Interest for issuing directions to the

respondents to frame a policy putting a complete ban on private practice of the

doctors who are the members of the Jammu and Kashmir Medical Education

(Gazetted) Service ; to regulate the fee structure of the doctors practicing on

the private side in accordance with the fee structure prescribed by the

government ; and to impose restrictions on medical students who pass out from

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the Government Medical/Dental Colleges of the Union Territory of Jammu and

Kashmir and Ladakh for serving at any place outside the Union Territories.

03.

The submission is that 8Right to Health9 has been recognized as a

part of fundamental right and, as such, if these maladies are allowed to

continue, the people at large of the Union Territories would continue to suffer.

04.

The petitioner herself has enclosed a set of rules known as The

Jammu and Kashmir Government Doctors (Relaxation of Restrictions on

Private Practice) Rules, 1998 which inter-alia vide Rule 4 provides that no

person who is a member of the service shall undertake private practice during

the office hours ; on the day of admission of patients in his unit or attending to

emergencies and so on.

05.

Rule 5 of the aforesaid rules lays down that no member of the

medical service or the Government Doctor who is permitted to undertake

private practice under these rules, shall charge consultation fee at a rate higher

than the rate prescribed.

06.

The aforesaid Rules further by Rule 7 provides penalty for

violation of the said rules. It envisages that any member of the service or the

Government Doctor who violates any of the provision of the said rules shall be

punishable Under Section 15 of Jammu and Kashmir Public Men and Public

Servants Declaration of Assets and other Provisions Act, 1983 read with Rule

30 of the Jammu and Kashmir Civil Services (Classification, Control and

Appeal) Rules, 1956.

07.

In view of the aforesaid rules, the government has already put a

reasonable restriction on the private practice and has prescribed fee structure

and the violation thereof has been subjected to penalty and punishment.

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08.

In view of the aforesaid Rules, the prayer No. 1 and 2 as made by

the petitioner regarding framing of policy or putting restriction or ban on the

private practice and regulating the fee structure of the doctors has been

adequately taken care of and the violation thereof has been made punishable.

09.

Accordingly, in the aforesaid facts and circumstances, in regard to

the first two prayers, when the adequate Rules are already in place, there is no

purpose in issuing any further mandamus or direction to the respondents to

frame any policy or rules in regard thereto.

10.

If the petitioner feels that anyone is violating the Rules, she may

make a complaint to the competent authority