SUKESH CHANDER KHAJURIA Vs. STATE

JUDGEMENT

(1.) A single individual, Sukesh Chander Khajuria, has filed this writ petition seeking 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. The petition has been claimed to have bee filed in public interest. The petitioner has claimed himself to be a social activist and President or member of several social organisations. A few facts necessary for the disposal of the writ petition may be stated :

(2.) Government doctors likely to be affected by the petition fall in two categories : (1) those posted at Primary Health Centers and Hospitals; (2) the posted at institutions imparting medical education. Doctors belonging to the second category are governed by Jammu and Kashmir Medical Education (Gazetted) Service Rules, 1879. Said doctors along with other Government servants are governed by Jammu and Kashmir Public Men and Public Servants (Declaration of Assets and Other 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 Government or public servants. Their indulgence in private medical practice was ignored as they had a powerful political lobby. On 7-3-1986 Governor' rule was imposed in the State and Shri Jagmohan was appointed the Governor. He took note the malaise and on 31-5-1986 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. 668/1986.*These Government doctors invoked Article 19(1)(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 State and was dismissed by a Division Bench on 17-10-1986.* Governor' 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.

(3.) The first ground of challenge raised by the etitioner 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 :