ASHUTOSH GUPTA Vs. STATE

JUDGEMENT

(1.) Petitioners are senior faculty members in different disciplines in Government Medical College, (GMC) Jammu. Through the medium of instant petition they seek quashment of Government Order No. 43/HME of 2013 dated 17.01.2013 by virtue whereof private practice of Heads of the departments (HODs) in GMC, Associated Hospitals and Dental Colleges of the State has been banned.

(2.) Petitioner-1 is Professor in the department of Radiation Oncology. Being the senior most faculty member in the aforesaid department, he has been given the charge of HOD. Petitioner-2 is the senior most Professor in department of Cardio Thoracic Surgery and has been given the charge of HOD. Petitioner-3 is Professor in the department of Surgery. Petitioner -4 is the senior most Professor in department of ENT and has been given the charge of HOD. The case set up by the petitioners for quashment of impugned order is that their services are governed by the Jammu and Kashmir Medical Education (Gazetted) Service Recruitment Rules, 1979 (hereinafter called the rules), which classifies the posts into three categories viz teaching wing, administrative wing and general wing. The teaching wing includes Principals, Professors, Associate Professors, Assistant Professors, Lecturers, Registrars and Demonstrators. However, no post of "HOD" is envisaged under these rules. Over the years, it has become a precedent to give charge of HOD to the senior most faculty member irrespective of his designation. No additional benefits are available to senior most faculty member assuming the charge of HOD. The duties discharged by the senior most faculty member as HOD includes fixation of roster for a fixed period wherein he appoints the senior most members of his faculty including himself as heads of various units. This besides the teaching job assigned to him. The service conditions of petitioners are governed by the 1971 rules. Other legal provisions relating to their conduct are Jammu and Kashmir Public Men and Public Servants (Declaration of Assets and other Provisions) Act 1987, Section 13 whereof places restrictions on practicing of any profession, carrying on any trade or business or undertaking any other employment without previous permission in writing of the prescribed authority irrespective of the fact whether such public servant is on leave or in active service. Section 15 of the aforesaid Act renders contravention of Section 13 punishable under Section 168 of RPC. Rule 10 of Government Employees Conduct Rules also places restrictions on public servants in engaging in any trade or business or undertaking any other employment. Having regard for the deficient health services, Government issued SRO 42 dated 23.06.1987 by virtue whereof the Jammu and Kashmir Doctors (Relaxation of private practice) rules 1987 were framed to relax the prohibitory clauses contained in the aforesaid Act of 1983. These rules were framed keeping in view the suggestions made by committee of Experts constituted by the Government pursuant to the Judgment passed by the Jammu and Kashmir High Court in case of Doctor S. N. Dhar decided on 17.10.1986. In terms of SRO 42 dated 23.06.1987 permission was granted for private practice to the members of Jammu and Kashmir Medical Education (Gazetted) Service subject to certain restrictions contained therein. Thus, the private practice continued till 1995 when Government came up with SRO 196 dated 04.08.1995 rescinding SRO 42 with immediate effect. In 1998, Government came up with SRO 132 dated 23.04.1998 in terms whereof members of Medical Education (Gazetted) Service were granted permission for private practice. This was to remove hardship faced by the general public in consequence of issuance of SRO 196. This practice continued till passing of impugned Government order dated 17.01.2012 in terms whereof it was ordered that HOD's in GMC, Associate Hospitals and Government Dental Colleges of the State shall not indulge in private practice. The impugned order is assailed on the following grounds:-

(3.) Petitioners accordingly seek quashment of impugned order as being discriminatory and violative of Article 14 of Constitution of India.