Private practice by HoDs: HC debars State from taking coercive steps -
Private practice by HoDs: HC debars State from taking coercive steps
Posted 28 Mar 2018 03:02 PM

Justice M.K Hanjura on Tuesday 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 regarding ban on private practice by HoDs in Medical Education.
The court issued this order in a petition filed by Prof. (Dr.) Shaukat Jeelani and others challenging aforesaid circulars and order.
Earlier, Justice Hanjura after hearing Z.A Shah Senior Advocate for the petitioners observed that petitioners have raised a debatable question, which needs investigation and decision in the hands of this Court, therefore, it shall be appropriate to admit this petition for hearing and seek response from the respondents. There upon, the court 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 stated that all of them are Professors and, on the face of such a position, they are entitled to ‘private practice’. They have proceeded to State that the Government has to specify 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. The petitioners reiterate that since the Head of the Department (HoD), whatever be its meaning, is not a post like that of Principal and others, the impugned order/circulars is/are without jurisdiction as the Rules authorise the Government to ban 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 monthly non-practicing allowance at such rate as may be determined by the Government from time to time.

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