GOVERNMENT OF BALOCHISTAN, DEPARTMENT OF HEALTH through Secretary, Civil Secretariat, Quetta vs Dr. ZAHIDA KAKAR and 43 others

SARDAR MUHAMMAD RAZA KHAN, J.--- Government of Balochistan through Secretary Department of Health has filed this appeal after leave of the Court, challenging the order dated 4-9-2000 of High Court of Balochistan whereby, after a detailed discussion on the subject, the writ petition filed by 44 respondents was admitted to full hearing. During writ petition an interim order, dated 30-3- 2000 was initially passed in favour of the writ petitioners which remained in field up to 4-9-2000 and onwards. The petitioner Government is also aggrieved of the injunction aforesaid.

2. Brief facts of the case are that the respondents were appointed by the Provincial Government as Medical Officers on contract basis, purely temporary in nature, for a period of six months extendable for a period of two years, the last extension having expired on 31-3-2000. On the event of such expiry the services, of all the respondents were terminated. It was, however, notified that such doctors may apply for their selection to the Public Service Commission which had already advertised the posts at Government requisition.

3. The grievance of the respondents is that the Government had earlier undertaken to award 5 to 10 per cent extra marks in view of the experience attained due to contract employment. This was seriously objected to by the Public Service Commission as the so-called promised concession was not governed by any statutory rules or regulations governing' the functional conduct of the Commission. Respondents filed a petition under Article 199 of the Constitution seeking following reliefs:-- "(a) That the action of the respondents, whereby the petitioners are not being given preference as well as additional marks, is illegal void, without lawful authority, and of no legal effect.

(b) That the petitioners are entitled to be given preference at the time of regular appointment and they are also entitled to additional marks and the respondents be directed to fulfil such commitment.

(c) That in the alternate, a direction may be given to the Government to regularize the services of the petitioners by absorbing them on permanent basis as has been done in case of other doctors.

(d) That during the pendency of the petition, the Government may be restrained from taking any adverse action against the petitioners in any manner whatsoever. It is further prayed that till the disposal of this petition, the Public Service Commission may be restrained from continuing the process of appointment pursuant to their advertisement No,1 of 2000."

4. The writ petition along with an application for interim relief was heard by the High Court on 30-3- 2000 when the maintenance of status quo was ordered. This ad interim order continued till the admission of writ petition for regular hearing and was finally confirmed. It led to the filing of present appeal.

5. It is an admitted fact that the service of the respondents was on purely temporary basis and specifically on contract. Such appointment terminates on the expiry of contract period or any extended period on choice of the employer or appointment authority. Prima facie, it does not create any vested right

6. If a concession in the competitive examination of 5 to 10 per cent of marks is given to any candidate, his marks might increase in mathematical progression but his ranking on merit qua the other candidates shall always increase by geometrical progression. It thus, would tantamount to conferring predetermined undue advantage to one category of candidates over the rest of the candidates which, by all canons of justice, is a glaring discrimination.

7. We would also not be wrong in taking judicial notice of the fact that in judicial department the Judges are appointed some times on ad hoc basis and at times on contract basis, subject to confirmation by the Public Service Commission but when open competition is held by the Public Service Commission through competitive examination, they are not given any preferential treatment.

8. Anyhow, there are instances when Public Service Commission, while advertising certain posts, provides for some experience of the nature desired. In that case the experience of any candidate is taken into consideration without discrimination. If any experience is demanded by the Public Service Commission itself during open competition, that being of general nature and applicable to every candidate, is neither objectionable nor discriminatory.

9. For the foregoing reasons, we believe that the interim order passed by the High Court has apparently resulted in disturbing the normal functions of the Government as well as the Commission. It also has blocked the chance of early competitive examination for candidates at large, other than the respondents. Consequently, the appeal is accepted, the impugned interim order issued with effect from 30-3-2000 up to 4-9-2000 and continuing thereafter are hereby set aside and withdrawn.