Tariq Saleem Sheikh, J. The Petitioner was recruited as Elementary School Educator (ESE : Science-Math) at Jalilpur , Tehsil Zafarwal, on contract for a period of five years (extendable for further five years subject to good performance) under the Recruitment Policy 2014. She joined her duty on 24.8.2015. In the year 2020 Respondent No.1 referred her case to the Scrutiny Committee for regularization under the provisions of the Punjab Regularization of Service Act, 2018. During the course of its proceedings the said Committee found that the Petitioner did not have the prescribed academic qualifications at the time of her appointment. Consequent thereupon it refused to recommend her regularization and Respondent No.1 terminated her contract vide Order No.825 dated 9.7.2020. The Petitioner filed an appeal before Respondent No.2 which was dismissed vide Order dated 8.3.2021. Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"), she lays challenge to Orders dated 9.7.2020 and 8.3.2021 and the Scrutiny Committee' s refusal.
2. The counsel for the Petitioner contends that the Petitioner was B.Sc. (Math A-Course and Math B-Course) in third division. She applied for the post of ESE (Science-Math) in due course and qualified the NTS with 55/100 marks. The District Recruitment Committee, Narowal, headed by the District Coordination Officer scrutinized her record and interviewed her and on its recommendations she was appointed on merit. She did not play foul at any point of time and has served the Government for five long years honestly and efficiently . During this period she also got the B.Ed and M.Sc. (Physics) degrees. The counsel argues that the Respondents cannot be permitted to take an objection at this stage that Petitioner did not fulfil the academic qualification prescribed by the Recruitment Policy 2014 which required that the ESE (Science-Math) should be a graduate in second division at least.
3. The Assistant Advocate General contends that this petition is not maintainable inasmuch as the Petitioner was a contractual employee and is governed by the principle of master and servant. She has no right to seek reinstatement even in the event of arbitrary dismissal. Her remedy , if any, is a suit for damages before the Civil Court. On merits he submits that Respondent No.1 has dismissed her from service on a valid charge after due process so no exception can be taken thereto.
Determination
4. The Assistant Advocate General' s objection relating to maintainability of this petition deserves a short shrift. It is true that a contractual employee has no right to invoke the constitutional jurisdiction of the High Court but the present case has another limb. The Petitioner has been declined regulariz ation in terms of the Punjab Regularization of Service Act, 2018, which gives her an independent cause of action. This Court is competent to examine whether this has been rightly done.
5. The courts in our country strongly disapprove the condition in the Recruitment Policy which stipulates that the candidates having any third division in their academic career are not eligible to apply for a particular post. In Muhammad Rafique and others v. Secretary Schools, Government of Punjab, Lahore and others [2019 PLC
(CS) 699] this Court ruled that such condition is not only unreasonable but also harsh and irrational and violative of Articles 9 & 18 of the Constitution. The Government of the Punjab challenged this judgment through ICA Nos.
246371/2018 and 246373/2018 which were dismissed by a learned Division Bench of this Court vide consolidated order dated 20.1 1.2018. Relevant excerpt is reproduced below: "On the face of it this clause appears to be harsh, unreasonable and violative of the fundamental rights of citize ns as it not only prohibits the applicants possessing 3rd division in his/her entire acad emic career to apply for a job in the Education Department despite having 2nd or even 1st division in subsequen t academic career but also it is against the fundamental rights as guaranteed under Article 18 of the Constitution of the Islamic Republic of Pakistan, 1973. Even otherwise, the above condition has not been prescribed by any law, rather it has been prescribed through a policy formulated by the administrative department which is not permissible under the Constitution. It has rightly been observed by the learned Judge in Chambers that restricting an applicant having 3rd division in his/her entire academic career to apply for a post in the Education Department means that it is presumed that a candidate who has secured 3rd division once in his/her lifetime can never improve his/her educational career in future. It is very ironical that on the one hand the Education Department allows the candidates having 3rd division to get admission in their institutions for further education but on the other hand the same department is denying them to apply for the jobs in their own department. Learned counsel for the appellant has failed to cite any law disentitling a person who obtains 3rd division that he/she cannot apply for the job.
"The clause impugned in writ petition is denial of right of livelihood and to compete for job in government department which is a vested right for persons and this right cannot be denied by framing such policy ."
6. In ICA Nos. 246371/2018 and 246373/2018, supra, the learned Division Bench also considered the question as to whether the above holding amounts to interference in policy matters and ruled that the court could lawfully intervene if the policy violated the fundamental rights guaranteed by the Constitution or was otherwise in conflict with any provision of law .
7. The above-mentioned views were reaffirmed by another Division Bench of this Court in ICA No. 246372/2018 (titled: "Government of the Punjab v . Mst. Razia Sultana and others" ) decided on 17.4.2019.
8. The Recruitment Policy 2014 provided that the candidate for the post of ESE (Science-Math) should have at least second division in B.Ed./M.S.Ed./M.Ed./M.A. (Edu). Admittedly , the Petitioner did not fulfil the eligibility criterion but it is also a fact that she neither played fraud nor made any misrepresentation while applying for the aforesaid job. The District Recruitment Committee (headed by the District Coordination Officer, Narowal) scrutinized the record, called her for interview and finally recommended her appointment. Interestingly , Letter of Appointment dated 25.5.2015 issued to her contained complete detail of her acade mic record, including the marks she obtained in B.Sc.
9. The Petitioner 's Letter of Appointment expressly stated that the selected candidates who did not possess the requisite qualification must acquire it within three years from GCET otherwise their contract would be terminated.
This constitutes an acknowledgment on the part of the Respondents that she was being hired despite her ineligibility - albeit subject to certain condition. They are now estopped from claiming that her recruitment was1 2 3 4 illegal. If there is any deviation from the Recruitment Policy 2014, it will not impact the Petitioner though the officers responsible therefor would be liable to disciplinary action. Reliance is placed on Muhammad Zahid and 29 others v. Azad Government of the State of Jammu and Kashmir and 6 others [2013 PLC (CS) 295]; Abdul Jabbar and 180 others v. Secretary , Health Department, Government of Balochistan and others [2015 PLC (CS)
953]; and Muhammad Ghazi v . Additional Secretary Health, Punjab, Lahore and others [ 2016 PLC (CS) 190 ].
10. The Petitioner has submitted documents which reflect that in the year 2015-2016 she did B.Ed. securing 845/1250 marks (First Division) and in 2017-2019 passed M.Sc. (Physics) with 707/1200 marks and GPA 2.7 (B Grade). Thus, she acquired the requisite qualification within the period stipulated in her Letter of Appointment. In the circumstances, there was no occasion for Respondent No.1 to terminate her contract.
11. The Petitioner has a right to be considered for regularization in terms of the Punjab Regularization of Service Act, 2018. There is no impediment thereto. Accordingly , Respondent No.1 is directed to place her case before the Scrutiny Committee forthwith which shall formulate its recommendations in the light of this judgment. Respondent No.1 shall then take further steps in accordance with law .
12. This petition stands accepted with the above directions. {{FOOTNOTE}} See: Aurangzeb v. Messrs Gool Bano Dr. Burjor Ankalseria and others (2001 SCMR 909); Federation of Pakistan, Chamber of Commerce and Industry , Karachi v. Ali Ahmed Qureshi (2001 SCMR 1733 ); and Pakistan T elecommunication Co. Ltd. v . Iqbal Nasir and others ( PLD 201 1 SC 132 ). Unreported case Clause 4(a)(iii) of the Recruitment Policy 2017-18 reads as under: "(iii) Applicant having any 3rd division in his/her entire career will not be eligible to apply against the posts advertised under the policy , ibid." Unreported case