JnK debarred from taking steps against HODs indulging in private practice: Court

Srinagar: Justice M.K Hanjura elaborating on the ban on private practice by HoDs in Medical Education last week ordered that no coercive steps shall be taken against the petitioners in terms of the order bearing No. 43-HME of 2013 dated January 17, 2013, Circular No. 2-HME of 2016 dated June 13, 2016, and Circular No. PS/MC/17/1555-59 dated January 19, 2018.

The court issued this order in response to a petition filed by Prof. (Dr.) Shaukat Jeelani and others challenging the above-stated circulars and order.

Earlier, Justice Hanjura responding to the petitioner Counsel Z.A Shah observed that the petitioners had raised a debatable question, which needed investigation and the decision to be left in the hands of the court., Therefore, the judge felt that it would be appropriate to admit this petition for hearing and wait for the respondent’s response. On having said this the judge admitted the petition and issued post admission notice to respondents.

Senior Advocate Shah submitted that in terms of the Jammu and Kashmir Government Doctors (Relaxation of Restriction on Private Practice) Rules, 1998, a Professor can indulge in ‘private practice’ and, if he/she decides to hold his/her clinic in the Nursing Home, his/her fee is fixed by the Government.

The petitioners on their behalf submitted that keeping in mind their seniority all of them were entitled to private practice. They have proceeded to state in their petition that the Government specifies a post for the purpose of banning ‘private practice’. The post of ‘Professor’ is not mentioned in the impugned order or in the Rules of 1998 they added.

The petitioners further reiterated that since the post of HOD was not included as a post like that of principal and others, therefore, the impugned order/circulars is/are without jurisdiction, as the Rules authorize the Government to ban the practice of a doctor who is holding a particular post.

The petitioners further submitted that the power to ban ‘private practice’ can only be specified in the rules and not otherwise and, as such, the impugned order is, patently bad. It has also been stated that Rule 15 of the Jammu and Kashmir Medical Education (Gazetted) Service Rules, as constituted vide SRO 517 dated September 19, 1979, provides that the Government may, by a general or by a special order, allow the members of the service to undertake ‘private practice’. These Rules also provide that such a member shall be entitled to a monthly non-practicing allowance at such rate as may be determined by the Government from time to time reported State Times.