JAWAD HASSAN, J. Through this single judgment, we intend to decide this instant Intra Court Appeal filed under Section 3 of the Law Reforms Ordinance, 1972 (the "Ordinance" ) as well as I.C.A.No.3205 of 2020, I.C.A.No.3207 of 2020, I.C.A.No.3214 of 2020, I.C.A.No.3219 of 2020, I.C.A.No.3224 of 2020, I.C.A.No.3227 of 2020, I.C.A.No.3231 of 2020, I.C.A.No.3233 of 2020, I.C.A.No.3235 of 2020, I.C.A. No.3237 of 2020, I.C.A.No.3240 of 2020 and I.C.A.No.3243 of 2020 as these are the outcome of impugned consolidated order dated 01.11.2019 passed in Writ Petition No.254853 of 2018 by the learned Single Judge (the "Impugned Order" ) whereby the Constitutional petition filed by the Respondents was disposed of with direction to the Respondent No.1 to regularize their services from their initial appointment.
A. BACKGROUND OF THE CASE
2. Relevant facts of the case are that the Respondents of this appeal as well as connected appeals (hereinafter to be referred as "the Respondents") having qualification of F.Sc and B.Com applied for the post of ESE (Science- Math) under Recruitment Policy , 2011. They were appointed on contract basis however , during training, their contracts were terminated on the ground of not having required academic qualification for the aforesaid post which was B.Sc instead of B.Com. Being aggrieved of their termination of contracts in year 2013, they have been in litigation till now. The matter was time and again remanded by the Court for its decision and ultimately it resulted into dismissal of the Respondents by the Appellants.
B. APPELLANTS' ARGUMENTS
3. Barrister Hassan Khalid Ranjha, appeared on behalf of the Appellants inter-alia contended that the impugned order is against law and facts; that the impugned order is the result of mis-reading and non-reading of record; that the impugned order is against the recruitment policy and criteria laid down for selection of candidates for the post of ESE (Science-Math) wherein prescribed qualification for aforesaid post was fixed as B.Sc in relevant subjects instead of B.Com; that the learned Single Judge in Chamber did not consider the fact that there was no provision in the Recruitment Policy-201 1 for giving retrospective effects to appointments hence the Respondents cannot claim to be adjusted under the repealed/previous Policy 2016-2017; that it was also not considered that contracts of B.Com degree holders, who were given appointment as ESE (Science-Math) in violation of Recruitment Policy , has expired in year 2017 therefore, there was no justification to restore their appointments and allow them to continue as ESE (Science-Math), under Recruitment Policy , 2011. He relied on "FEDERA TION OF PAKIST AN through Secretary Law, Justice and Parliamentary Affairs Versus MUHAMMAD AZAM CHA TTHA" (2013 SCMR 120), "TRUSTEES OF THE POR T OF KARACHI Versus SAQIB SAMDANI" (2012 SCMR 64) and "MUHAMMAD YASIN Versus FEDERA TION OF PAKIST AN through Secretary , Establishment Division, Islamabad and others" ( PLD 2012 SC 132 ).
C. RESPONDENTS' ARGUMENTS
4. On the other hand learned counsel for the Respondents controverted the arguments advanced by the learned Law Officer however , reiterated the grounds as taken in writ petition. The counsels prayed for dismissal of Appeal on the ground that there is no illegality or perversity in the impugned order which has rightly been passed.
5. We have heard the arguments and have perused the record.
D. LITIGA TION HIST ORY OF THE CASE
6. For the decision of lis in hand it is imperative to mention the relevant details with regard to initiation of the litigation between the parties. The fact of recruitment for the post of Elementary Secondary Educators (Science- Math) under Recruitment Policy , 2011 is not disputed at all hands. In year 2013, some candidates having B.Com degree filed W.P.No.1002 of 2013 on the basis of discrimination; the said writ petition was disposed of with direction to the Appellant No.1/School Education Department to decide the matter afresh and pursuant to which the candidates not having the prescribed qualification were rejected.
(i). First Round of Litigation
7. In terms of abovesaid rejection, those candidates who possessed unrequired academic qualification were issued show cause notices on 11.03.2013 and said notices were challenged through W.P.No.3089 of 2014 but the said petition was dismissed vide judgment dated 20.05.2016 with the following observation: "The Petitioners have relied upon sever al recruitment policies to urge the point that the degree of B.Com was accepted for the post of ESE (Science-Math). However , none of the recruitment polices show that B.Com was accepted for the teaching position of Math or Science. The entire case of the Petitioners is based on the fact that they were hired and then subsequently their contracts were terminated"
8. The said judgment was assailed in I.C.A.No.1 142 of 2016 but appeal was disposed of on 28.03.2017 with the observation that "the orders impugned in the writ petitions and the ICAs are set-aside and the cases of the appellants are remitted to the Secretary School Education for decision afresh in accordance with law" Pursuant to order passed in aforesaid ICA, the Appellant No.1 rejected the case of the Respondents on 18.07.2017 on the ground that restoration of contract is not possible as duration of contract appointment is going to expire on the same year .
(ii) Second Round of Litigation
9. The order dated 18.07.2017 was again challenged in W.P.No.56915 of 2017 and vide order dated 08.03.2018, while allowing the petition, the matter was remanded to the Appellant No.1 which was heard second time by the aforesaid Appellant and ultimately it resulted into dismissal of representation vide order dated 06.08.2018.
(iii). Third Round of Litigation
10. Being dissatisfied from the order dated 06.08.2018, the Respondents challenged aforesaid order through W.P.No.254853 of 2018 pursuant to which the impugned judgment dated 01.11.2019 was passed and said judgment has been challenged by the Appellants through the instant I.C.A.
E. ANAL YSIS OF THE CASE
11. The Respondents filed first Writ Petition No.3089 of 2014, titled "Muhammad Farooq Asghar etc Versu s District Coordination Officer etc" regarding consideration of B.Com degree under the Recruitment Policy , 2011- 2012. However , vide judgment dated 25.05.2016 that writ petition was dismissed being meritless. The Respondents challenged the above-stated judgment in I.C.A.No.1 142 of 2016 and vide order dated 28.03.2017, the appeal was disposed of with direction to the Appellant No.1 for decision afresh in accordance with law. The Appellant No.1 in compliance of the order dated 28.03.2017, passed order dated 18.07.2017 with the observation that "contract appointment under Recruitment Policy , 2011-2012 is going to expire in the current year 2017, therefore, restoration of contract appointment or extension in contract is not plausible".
12. The Respondents filed second Writ Petition No.57448 of 2017, titled "Noureen Fatima Versus Secretary Education School, Civil Secretariat, Lahore etc" for non-compliance of directions issued in I.C.A.No.1 142 of 2016, which was allowed and matter was again remanded to the Appellant No.1 to decide it keeping in view the directions already issued by Division Bench of this Court dated 28.03.2017 and also the fact that new recruitment policy of including B.Com as basic qualification, would be applied to the Respondents. The Appellant No.1 once again in compliance of directions, passed order dated 06.08.2018 with the observation that the "applicants applying under a specific Recruitment Policy are dealt under that specific policy e.g. in the instant case, the Petitioners' cases can be dealt, considered and decided under Recruitment Policy , 2011. No wrong order/action can be set as precedent for others. Hence the orders dated 06.09.2013, 20.05.2014, 18.07.2017, 05.10.2017 and 18.10.2017 issued by the Secretary School Education are in accordance with the law/rules/policy and the dictum laid down by the Hon'ble Supreme Court of Pakistan in Civil Petition No.23 of 2012".
13. The Respondents filed third Writ Petition No.254853 of 2018, titled "Muhammad Amir Hayat etc Versus Province of Punjab etc" for declaring order dated 06.08.2018 as illegal and a request for regularization was also made. Vide order dated 01.11.2019, the said writ petition was disposed of with direction to the Appellants to pass an order for regularization of the services of the Respondents from their initial appointment.
F. DETERMINA TION BY THE COUR T
14. Before proceeding further , it is to be cleared that the question, whether the requirement of requisite academic qualification was fulfilled/considered by Appellants for the recruitment of ESE (Science-Math) under the Recruitment Policy , 2011, is of no importance because the Appellants in year 2012 issued letters of appointment in either way to Respondents pursuant to which they started performing their duties and ultimately their contracts were expired in year 2017.
15. The learned Single Judge in Chamber in the impugned order observed as under: "The Petitioners were required to be appointed and regularized under the old Recruitment Policy on the basis of their basic qualification of B.Com. which had remained the precise discussion before this Court in all the previous writ petitions, therefore, no new ground could be taken to frustrate the orders of this Court, which have attained finality .
In this view of the matter , the order dated 30.10.2019 and previous orders dated 08.07.2019 as well as 06.08.2018 are hereby set-aside and the Respondent -Secretary is directed to pass an order for regularization of the services of the Petitioners from their initial appointment".
16. Perusal of above order clearly manifests that the learned Single Judge in Cham ber directed the Appellant No.1 to pass an order for regularization of services of the Respondents from their initial appointment. The litigation history of the case clearly exposes that it was started in the year 2013 and still continuing by one way or the other and the Respondents performed their duties during pendency of litigation till the expiry of their contracts.
17. It evinces from the perusal of record annexed with the instant Appeal and the Writ Petition, that the Appellants published an advertisement in the newsp aper to recruit ESE (Science-Math) in BS-09. In the advertisement, the applications from the candidates having BSc (2nd div) with at least three subjects out of Chemistry , Zoology , Botany , Physics Math, Math-A & Math-B OR BA/BSc/BS (Honors) (2nd div) and F.Sc with Physics Chemistry , Biology/Math OR Bs.Ed (2nd div) in Science Subjects, were invited however , the Respondents of this appeal as well as connected appeals, having B.Com degree applied for the post of ESE (Science-Math) under Recruitment Policy , 2011-12 and ultimately they were given Letters of Agreement in the year 2012 issued on different dates for temporary appointment for a period of five years. It is imperative to mention the dates of issuance of letters of agreement given to the Respondents of this appeal as well as of connected appeals. The details are as under: ICA # Name of the Respondent(s) Date of Contract 3201-20 Muhammad Amir Hayat 17.03.2012 -do- Asad Riaz 17.03.2012 -do- Sumbal Javed 13.02.2012 3205-20 Mudasar Rubbani 26.06.2012 -do- Rizwan Afzal 10.02.2012 -do- Mariam Tariq 10.02.2012 -do- Iftkhar Ahmad 10.02.2012 -do- Ansar Iqbal 10.02.2012 3207-20 Muhammad Ahmad Azad 17.02.2012 -do- Waseem Hassan 17.02.2012 -do- Asif Javed 17.02.2012 -do- Abdul Razzaq 17.02.2012 -do- Ali Asghar 17.02.2012 -do- Sadaf Naaz 23.02.2012 -do- Abdul Rehman 17.02.2012 3214-20 Muhammad Zahid 17.02.2012 3219-20 Kiran Noreen 11.02.2012 3224-20 Asima Musawar 13.02.2012 3227-20 Asma Anwar 13.02.2012 3231-20 Sidra Batool 13.02.2012 3233-20 Anam Ilyas 23.02.2012 3235-20 Hameed Asghar 17.03.2012 3237-20 Ayesha Ajmal 18.05.2012 -do- Sehrish Jameel 13.02.2012 -do- Saira Khalid 13.02.2012 -do- Muhammad Rehan 17.03.2012 -do- Tahir Usman 17.03.2012 -do- Umar Hayat 17.03.2012 -do- Safdar Maseeh 17.03.2012 -do- M. Hafeez Akram 17.03.2012 -do- Muhammad Kamal Ali 17.03.2012 -do- Ansa Aslam 26.04.2012 3240-20 Saba Latif 3243-20 Muhammad Naeem Akhtar 17.05.2012
18. The terms and conditions with regard to period of their contracts were as under .
"Period of Contract Your appointment will be purely on contract basis for a period initially five years and the tenure may be extended for further five years on the basis of good performance. Those selected candidates who do not possess professional qualification will have to acquire the requisite qualification within three years otherwise, their contract will not be extended".
19. Admittedly , the Respondents, having B.Com qualification, applied for the ESE (Science-Math) and subsequently accepted the offer of the contractual employment with the Appellants. It was specifically stated that the letter of appointment does not confer any claim/right to permanent employment with the Appellants.
Furthermore, the contracts of the Respon dents had already expired before passing of the order dated 28.03.2017.
However , the Division Bench remitted the matter to the Respondent No.1 for decision afresh in accordance with law pursuant to which the order dated 08.07.2017 was passed by the Appellant No.1 refusing to restore the contract appointment or extension in contract on the ground that the duration of contract appointment under Recruitment Policy 201 1-2012 is going to expire in the year 2017.
20. During the whole process of litigation, the main pivotal point regarding the terms and conditions of contractual appointments was overlooked. It has also not taken into consideration and determined that (i) whether a contractual employee has a vested right for regularization/extension of the emplo yment contract and (ii) whether contractual terms can be enforced under the Constitutional jurisdiction of the High Court?
It is settled law by now that contractual employees could not claim extension of the contract as a matter of right rather it was the prerogative of the competent authority either to dispense with services of such employee or continue with the same by extending the contract. In the case in hand, the contract s of the Respondents expired in year 2017 and no extension was made by the Appellants thereafter meaning thereby the competent authority does not want to extend the contracts of the Respondents as the same had already expired. Reliance is placed on "MUBASHAR MAJEED Versus PROVINCE OF PUNJAB and 3 others" (2017 PLC (C.S.) Lahore 940).
Furthermore, the Respondents, after accepting terms and conditions of their contract employment had submitted their joining report and the Respondents had no right to claim extension in their contract period as a vested right.
Reliance is placed on "DR. ABID ALI Versus CHIEF SECRET ARY, GOVERNMENT OF PUNJAB and 3 others"
(2017 PLC (C.S.) Lahore 488). It is also to be noted that the Respondents had been appointed on contract basis for a specific period of five years which they had completed in 2017 and therefore, no vested right could be claimed by them keeping in view the terms of their contractual engagement. Reliance is placed on titled "AZHAR HAYAT Versus CHAIRMAN KARACHI POR T TRUST and others" (2017 PLC (CS) Karachi 632).
21. In the case of "IPC through Secretary Versus ARBAB ALTAF HUSSAIN" (2014 SCMR 1573 ), the Hon'ble Supreme Court has held that "services of contractual employees of the board were not governed by any statutory rules and thus their constitutional petitions filed before the High Court were not competent; secondly , the employment of the said employees was contractual in nature and their services were terminated after due notice as per their contractual terms and conditions of service. Even on such account the constitutional petitions before the High Court were incompetent and had to fail". Additionally , in the case titled "KAMRAN AHMAD Versus WAPDA", (2014 PLC (CS) Lahore 332), it was held that the "Petitioner employee was governed under the terms and conditions of contract appointment letter , and terms and conditions of contract of his service were not enforceable through constitutional petition".
22. The whole case of the Appellants is that the contracts of the Respondents had expired in year 2017 hence there was no justification to restore or extend the same while the stance of the Respondents is that their case has not properly been decided in the light of directions issued by the learned Division Bench as well as learned Single Bench. In case of "M. NAZIR AHMAD Versus MUHAMMAD ASLAM and others" (2013 SCMR 363) it was held that "An employer has the discretion to formulate appropriate policy viz.a.viz job qualification and criteria for various positions in line with its peculiar requirements and organizational structure hence no person had a vested right to be appointed on a post rather the author ities made a selection for the post as per criteria set out in Rules/policy and had to find the most suitable candidate for the job who could capably discharge the duties".
23. Recently , the Hon'ble Supreme Court of Pakistan in "Miss NAUREEN NAZ BUTT Versus PAKIST AN INTERNA TIONAL AIRLINES through Chairman, PIA and others" (2020 SCMR 1625 ) by upholding the judgment of Division Bench of this Court "PAKIST AN INTERNA TIONAL AIRLINES Versus NAUREEN BUTT" (2017 PLC (C.S.) 923) has held that "the established law is that a contract employee, whose period of contract employment expires by afflux of time, carry no vested right to remain in employment of the employer and the Courts cannot force the employer to reinstate or extend the contract of the employee".
24. It is settled law that on the decisions of authority with regard to a policy matter , Courts will not ordinarily interfere. However , Courts do not abdicate their right to scrutinize whether the policy has been formulated keeping in mind all relevant facts and whether it is beyond the pale of discriminations or unreasonableness on the basis of the material on record. Unless the policy or action is inconsistent with the Constitution and the laws are arbitrary or irrational or there is abuse of power , the Courts do not interfere with such policy matters. The High Court while exercising jurisdiction under Article 199 of the Constitution, does not interfere in the transparent policy decisions of the executive body , aimed to achieve the best possible results in managing its affairs and the Court has very limited jurisdiction for examining such criteria. Such exercise of power cannot be interfered with.
25. In the impugned order , the learned Single Judge in Chamber has not taken into consideration that qualification of the Respondents is B.Com whereas the required qualification for recruitment as ESE (Science-Math) as per Recruitment Policy , 201 1 was as follows: BSc (2nd div) with at least three subjects out of Chemistry , Zoology , Botany , Physics Math, Math-A & Math-B OR BA/BSc/BS (Honors) (2nd div) and F .Sc with Physics Chemistry , Biology/Math OR BS.Ed (2nd div) in Science Subjects as mentioned above
26. Furthermore, as per aforesaid Recruitment Policy , it was prerogative of the Appellants to scrutinize the documents and if anything found contra ry to advertisement, the candidates will be found ineligible and their candidature will be cancelled/withdrawn even they were recruited, under training or further posted anywhere. It depicts from the record that the qualification of the Respondents, as mentioned above, was not in line with the advertisement.
27. So far as the contention of the Respondents that the Appellants did not comply with the orders of this Court passed from time to time, the same has no force as the Court has not specifically ordered for recruitment or regularization etc of the Respondents except the impugned order . The Appella nt No.1, in compliance of the directions issued by the Court, from time to time, has thrashed out the matter and passed a comprehensive orders which shows that the motive of the Resp ondents is nothing else but just to drag the department into litigation in order to get orders in their favour . To the extent of regularization of the Responden ts, the findings of learned Single Judge in Chamber , are not sustainable as when the contractual appointments of the Respondents were terminated in the year 2013, there remains no claim with regard to extension of contract or regularization of service.
28. Further , it was made clear in the letter of appointment that the appointment does not confer on the Respondents any claim/right to permanent employment with the Appellants. In the above situation, the Respondents have themselves accepted all the terms and conditions of their appointment, they cannot claim their regularization from this Court rather has rightly been considered to be out of service on the expiry of their contract employment as settled by the parties under the terms of the letter of appointment.
29. Despite of this, the Respondents have alleged discrimination on the part of the Appellants for giving appointments to other candidates having different qualification criteria for the post of ESE (Science-Math), suffice it to say if the Respondents are allowed to appear in such test despite not having required qualification then such flexibility would also require that similar benefits be also extended in favour of those candidates who did not pass the prescribed test and the same would be a massive violation of Recruitment Policy and the principles enunciated under Article 25 of the Constitution. In case of "ASADULLAH MANGI and others Versus PAKIST AN INTERNA TIONAL AIRLINES CORPORA TION and others"( 2005 SCMR 445), the Hon'ble Supreme Court has held that "Equality of citizens" does not mean that all laws must apply to all the subjects or that all subjects must have the same rights and liabilities. The conception of equality before the law does not involve the idea of absolute equality among human beings which is a physical impossibility . The Article guarantees a similarity of treatment and not identical treatment. The protection of equal laws does not mean that all laws must be uniform: It means that among equals the law should be equal and should be equally administered and that, the like should be treated alike, and that there should be no denial of any special privilege by reason of birth, creed or the like and also equal subjection of all individuals and classes to the ordinary law of the land.
In the aforesaid judgment it was further held as under: "Discrimination always involves an element of unfairness and bias and it is in that sense that the expression as to be understood. The factum of bias could not be substantiated by any convincing evidence. A Court of Law cannot exercise unfettered or unrestricted powers to administer supposed equity not base d on justiciable foundation and it must be satisfied before exercising its power that some illegal wrong has been inflicted or is about to be inflicted on the Appellants".
30. In "Brig. (Retd.) F.B. Ali and another Versus The State" (PLD 1975 SC 506), the Court considered the scope of Fundamental Right No.15 of the previous Constitution of 1962 which is similar with Article 25 of the present Constitution, 1973 and made following observations: "Equal protection of the laws does not mean that every citizen, no matter what his condition, must be treated in the same manner . The phrase `equal protecti on' of the laws means that no person or class of persons shall be denied the same protection of laws which is enjoyed by other persons or other class of persons in like circumstances in respect of their life, liberty , property , or pursuits of happiness. This only means that persons, similarly situated or in similar circumstances, will be treated in the same manner . Besides this, all law implies classification, when it applies for' a set of circumstances, it creates thereby a class and equal protection means that this classification should be reasonable. To justify the validity of a classification, it must be shown that it is based on reasonable distinctions or that it is on reasonable basis and rests on a real or substantial difference of distinction. Thus different laws can validly be made for different sexes, for persons in different age groups e.g. minors or very old people; different taxes may be levied from different classes of persons on the basis of their ability to pay. Similarly , compensation for properties acquired may be paid at different rates to different categories of owners. Such differentiation may also be made on the basis of occupations or privileges or the special needs of a particular locality or a particular community . Indeed the bulk of the special laws made to meet special situations come within this category".
31. In "ISLAMIC REPUBLIC OF PAKIST AN through Secretary , Ministry of Interior and Kashmir Affairs, Islamabad Versus Abdul Wali Khan, M.N.A. former President of Defunct National Awami Party" (PLD 1976 SC 57), the Court while dealing with reference made by the Government against National Awami Party , touched upon the question of protection of law and made following observation: "What is unreasonable in one given set of circumstances may well be reasonable in another different set of circumstances. In order to test the reasonableness of such restrictions, therefore, no general standard exists. It will depend upon a variety of circumstances including the interest and urgency of the action proposed and the nature of the safeguard, if any , provided to prevent possibilities of abuse of power".
32. For what has been discussed above, the impugned order is not sustainable and calls for interference by this Division Bench; consequently the instant Intra Court Appeal as well as connected Appeals are hereby allowed in terms of judgment 2020 SCMR 1625 , mentioned supra, and the impugned order is set aside.