STATE OF JAMMU AND KASHMIRversusVICHAR KRANTI INTERNATIONAL & ANR.

                              [2016] 9 S.C.R. 750


A                    STATE OF JAMMU AND KASHMIR
                                        v.
              VICHAR KRANTI INTERNATIONAL & ANR.
                       (Civil Appeal No. I 0286of2016)
B                             OCTOBER21,2016
           [T. S. THAKUR, CJI, A. M. KHANWILKAR AND
                     DR. D. Y. CHANDRACIIUD, JJ.)
        Constitution of India - Art.226 - Public Interest Litigation -
  High Court while setting aside a circular applicable to governme/11
C school teachers, issued blanket direction with respect to government
  doctors as well 011 the basis that the impugned circular also covered
  services of government doctors - Propriety of - Held: The circular
  in question was issued by the Education Department of the State
  and applied exclusively to officials in schools engaging in private
D assignments outside school hours - It had no application to
  governmelll doctors - Regulation of private practice by government
  doctors is the subject mailer for separate rules which were neither
  under challenge before High Court nor did the High Court had the
  benefit of evaluating the rules before it proceeded to decide the
  case - Matter remanded back to High Court for afresh consideration
E of the issue - In addition, High Court also directed to consider the
  more fundamental and basic issue of availability of infrastructure
  and facilities in government hospitals across the appellant-State
  and take remedial actions as necessitated - Jammu and Kashmir
  Government Employees (Conduct) Rules, I 97 I - r. I 0 - Jam mu and
F Kashmir Public Men and Public Serva111s Declaration of Assets and
  Other Provisions Act, 1983 - s. 16(2j(b) - Jammu and Kashmir
  Govem111e111 Doctors (Relaxation of Restrictions on Private Practice)
  Rules, 1987 - Sen1ice law - Education service/Medical service -
  Hospitals - Hospital Administration.
            The respondents filed a writ petition challenging a circular dated
G
    11 August 2005 issued by the Government of Jammu and Kashmir in its
    Education Department. The circular adverted to the provisions of Rule
    I 0 of the Jammu and Kashmir Government Employees (Conduct) Rules,
    1971 which prohibited a government servant from taking up any
    assignment without the permission of the competent authority. The High
H
                                       750
    STATE OF JAMMU AND KASHMIR v. VICHAR KRANTI                                 751
               INTERNATIONAL & ANR.

Court disposed of the writ petition by setting aside the circular.               A
       In the present appeal, the State contended that it was 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 grievance of
the State was that the High Court issued a blanket direction erroneously
on the basis that the circular of 11 August 2005 also covered the services       B
of government doctors.
       Disposing of the appeal, the Court
       HELD: 1. The High Court proceeded erroneously on the
·basis that the circular in question dealt with the issue of whether
 government doctors should be permitted to engage in private                     c
 practice. Plainly, the circular was issued by the Education
 Department and applied exclusively to officials in schools
 engaging in private assignments outside school hours. It had no
 application to government doctors. The regulation of private
 practice by government doctors is the subject matter of separate                D
 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. 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 afresh consideration of the issue                E
 by the High Court. [Puas 5, 6][756-C-F]
       2.1 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              F
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. However, independent of that, the
quality of medical care in government hospitals across the state                  G
of Jammu and Kashmir is a matter which should receive attention
and oversight in the exercise of the jurisdiction under Article
226. [Para 7][756-G, H; 757-A, BJ
       2.2 In particular, the following issues require careful scrutiny
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752           SUPREME COURT REPORTS                       [2016) 9 S.C.R.



A · and such remedial directions as may be necessitated on the basis
    of the material which may become available to the High Court:
             (i) The availability of adequate infrttstructure in
               government hospitals;
             (ii) The availability of essential equipment for treatment;
B
             (iii) The availability of staff-medical, para medical and of a
               supporting nature; ··
             (iv) Enforcement of conditions of hygieneto secure proper
               medical treatment facilities; and
c            (v) The availability of essential medicines. [Para 7][757-
               B-D]
             2.3 There is a need for constituting a Committee of Experts
      to scrl!tinize the conditions in public-government hospitals in the
      State. The High Court would be at liberty to constitute a
D     Committee of medical experts and administrators. The
      Committee shall submit a report on the state of public-
      government hospitals in the State. 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
 E
      hospitals which are conducted by fbe 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. [Para 8][757-E-G]
            Sukesh Chander Khajuriq v. State and Ors. MANU/
 F
            JK/0017/1994 - referred to.
           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10286
      of2016.
            From the Judgment and Order dated 18.11.2011 of the High Court
 G    of Jammu & Kashmir at Jammu in WP (PIL) No. 6 of 2011.
            Sunil Fernandes, Ms. Astha Sharma, Puneeth K. G., Advs., for
      the Appellant.
            Anupam Raina, Deepak Goel, Advs., for the Respondents.
           ·The Judgment of the Court was delivered by
H
    STATE OF JAMMU AND KASHMIR v. VICHAR KRANTI                            753
                INTERNATIONAL & ANR.

      DR. D. Y. CHANDRACHUD, J. I. Leave granted.                           A
      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 Depart1nent. The circular adverted       B
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         c
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            D
      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                 E
      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
      (Gazet1ed or Non-Gazetted) indulges in any activity on this
      account which is in violation of the prescribed Code of               F
      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             G
      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
                                                                            H
754            SUPREME COURT REPORTS                          [2016] 9 S.C.R.


A     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           b) Ban completely private tutoring by Governmentteachers
            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
 c          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
 D    High Court by a final judgment on 18 November 2011. The Division
      Bench held that Rule l 0 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. Jn the view of the High Court, it
 E    was only in exceptional situations that the power under Rule I 0 could be
      utilized to grant permission for engaging in any other trade, business or
      employment. On these grounds, the circular dated 11August2005 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
 F
            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
 G          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)
 H
       . STATE OF JAMMUAND KASHMIR v. VICHAR KRANTI                                755
      INTERNATIONAL & ANR. [DR. D. Y. CHANDRACHUD, J.]

        3. The State has challenged the judgment of the Division Bench.             A
 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
                                                                                    B
 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             c
 before the Court. Hence, without considering those rules, the High Court
 has issued a blanket direction erroneously on the basis that the circular
 ofl I 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           D
  that no pub Iic 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 I 6(2)(b) of the Act, the State Government issued a notification,
  bearing SR0-156 dated 23 April 1984 permitting private practice by                E
  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 SR0-42 to regulate the              F
  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'. By a judgment and order dated
  14 February 1994, a Division Bench of the High Court dismissed the
  Writ Petition, observing as follows:
                                                                                    G
         "2 7..... 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
  I   MANU/JK/0017/1994
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756            SUPREME COURT REPORTS                           [2016] 9 S.C.R.



A           legal position is that the State has power to ban private
            practice as well to allow it. When it wi II allow and when it
            wi II ban it is for the Government to decide and not for the
            Courts."
             Subsequently, by a notification dated 04 August 1995, the Jammu
 B    and Kashmir Government Doctors (relaxation ofrestrictions 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
c     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
 D    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
 E    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.
 F    An order of remand would hence be necessitated to enable afresh
      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
 G    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
 H
    STATE OF JAMMU AND KASHMIR v. VICHAR KRANTI                                757
  INTERNATIONAL & ANR. [DR. D. Y. CHANDRACHUD, J.]

appropriate reliefs in that regard. However, independent of that, we are        A
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
                                                                                B
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;               c
      (iii)The availability of staff-medical, para medical and of a
          supporting nature;
      (iv)Enforcement of conditions ofhygieneto secure proper medical
          treatment facilities; and
                                                                                D
      (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
                                                                                 E
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 pub Iic - government hospitals in the state and covering among
other things, the areas which have been emphasised above. The High               F
Court would be at liberty, after scrutinizing the report of the Expert
Committee and upon hearing the relevant stakeholders includingthe 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
                                                                                 G
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
                                                                                 H
758             SUPREME COURT REPORTS                            [2016]9 S.C.R.


A     private practice by government doctors. The proceedings shall stand
      restored to the High Court for hearing afresh having regard to the
      observations made above.
             I 0. The Civil Appeal is accordingly disposed of.
      Divya Pandey                                                Appeal disposed of.
B