STATE OF JAMMU AND KASHMIR versus VICHAR KRANTI INTERNATIONAL & ANR.
[2016] 9 S.C.R. 750, Supreme Court of India, 2016
Outcome: Disposed off
Segment: Issues
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[2016] 9 S.C.R. 750 
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 
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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 
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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 
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case - Matter remanded back to High Court for afresh consideration 
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 
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 
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 
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STATE OF JAMMU AND KASHMIR v. VICHAR KRANTI 
751 
INTERNATIONAL & ANR. 
Court disposed of the writ petition by setting aside the circular. 
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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 
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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 
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 
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 
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 
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 
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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SUPREME COURT REPORTS 
[2016) 9 S.C.R. 
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of the material which may become available to the High Court: 
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(i) The availability of adequate infrttstructure in 
government hospitals; 
(ii) The availability of essential equipment for treatment; 
(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 
(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 
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 
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/ 
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 
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of Jammu & Kashmir at Jammu in WP (PIL) No. 6 of 2011. 
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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
STATE OF JAMMU AND KASHMIR v. VICHAR KRANTI 
753 
INTERNATIONAL & ANR. 
DR. D. Y. CHANDRACHUD, J. I. Leave granted. 
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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 
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 
(Gazet1ed 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 
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[2016] 9 S.C.R. 
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private practice by government doctors including those working in medical 
colleges. The reliefs which were sought in the Writ Petition read as 
follows: 
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"a) Take steps for improving the purpose of Government 
Schools; 
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 
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 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 
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 
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)
. STATE OF JAMMUAND KASHMIR v. VICHAR KRANTI 
INTERNATIONAL & ANR. [DR. D. Y. CHANDRACHUD, J.] 
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 
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 
that no pub I ic 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 
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 
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: 
"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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[2016] 9 S.C.R. 
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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." 
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Subsequently, by a notification dated 04 August 1995, the Jammu 
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 
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 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 
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
STATE OF JAMMU AND KASHMIR v. VICHAR KRANTI 
INTERNATIONAL & ANR. [DR. D. Y. CHANDRACHUD, J.] 
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: 
(i) The availability of adequate infrastructure in government 
hospitals; 
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(ii) The availability of essential equipment for treatment; 
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(iii)The availability of staff-medical, para medical and of a 
supporting nature; 
(iv)Enforcement of conditions ofhygieneto secure proper medical 
treatment facilities; and 
(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 
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 I ic - 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 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 
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 
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[2016]9 S.C.R. 
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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. 
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