Muzamil Hussain etc. vs Govt Of Punjab etc.

Stereo H C J D A 38.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT LAHORE.

JUDICIAL DEPARTMENT.

W.P. No.32004/2013.

Muzammmil Hussain etc. Vs. Government of Punjab etc.

JUDGMENT

Date of Hearing 12.03.2014.

Petitioners by: M/s Muhammad Tariq Bashir Awan and Sheikh Aftab Ahmad, Advocates, for the petitioners. Respondents by Mr. Khawar Ikram Bhatti, Addl. A.G.

ABID AZIZ SHEIKH-J., Through this constitutional petition, the petitioners are seeking directions against the respondents to modify the Policy regarding maximum age limit for recruitment to the post of SESE (Physical Education) and petitioners’’ (male candidates) age limit be extended from 35 to 38 years as already fixed for female candidates.

2.Brief facts are that the respondents through advertisement published in newspaper invited applications for recruitment to the post of SESE (Physical Education). In the said advertisement, maximum age limit for male candidates was prescribed as 35 years whereas for female candidates it was 38 years. The prescribed qualification for the said post was M.A/M.Sc in Sports Sciences Physical Education. The petitioners being graduates having one year Diploma in Physical Education applied for the said post, however, their applications were not considered as they were not M.A./M.Sc. Some of similarly placed candidates filed writ petition No.29117/2013 before this Court wherein the respondents

agreed to entertain the applications of the candidates who were having qualification of B.A. with one year Diploma in Physical Education. Accordingly the petitioners were qualified to apply for the post, however, their applications were not entertained by the respondent No.3 on the ground that petitioners being more than 35 years are overage. The petitioners have assailed the Policy of maximum age limit of 35 years for male candidates on the ground that maximum age limit for similarly placed female candidates is 38 years in pursuance to Punjab Women Empowerment Package, 2012 (PWEP, 2012) which is discriminatory.

3.The learned counsel for the petitioners argued that fixation of maximum age limit for initial recruitment to the post of SESE for women being 38 and for male candidates 35 years is violative of Article 25 and 27 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution). Adds that petitioners are entitled to be treated same as of female candidates and their maximum age limit is liable to be extended to 38 years. In this regard reliance is placed on Pakistan International Airlines Corporation through Chairman and others Vs. Samina Masood and others (PLD 2005 SC 831), Sherin Dokhat Vs. Government of Pakistan etc. (1995 PLC (CS) 251), Mrs. Azra Sahi and 3 others Government of Pakistan through Secretary, Ministry of Defence, Aviation Division, Rawalpindi and 2 others (2004 PLC (CS) 206), Zohra and 5 others Vs. The Government of Sindh, Health Department through its Secretary, Sindh Secretariat, Karachi and another (PLD 1996 Karachi 1) and Shrin Munir and others Vs. Government of Punjab through Secretary Health Lahore and another (PLD 1990 SC 295).

4.Conversely the learned counsel for the respondents submits that the Government of Punjab is competent to determine the manner for filling of vacancies under Rule 18(1) of the Civil Servants (Appointment and Conditions of Service) Rules, 1974 which provides that initial appointments to all posts shall be made in the manner to be determined by the Government. Submits that the maximum age limit for all the male candidates was fixed 35 years without discrimination, however, for women under the (PWEP, 2012), a notification dated 21.05.2012 was issued where under section 23 of the Punjab Civil Servants Act, 1974, the Government of Punjab relaxed the prescribed upper age limit up to 03 years across the board for female candidates, hence Article 25 and 27 of the Constitution is not violated. Submits that the said amendment was to protect the right of female candidates and this being a policy matter cannot be subject to judicial review. In this regard, reliance is placed on Mian Muhammad Afzal Vs. Province of Punjab and others (2004 SCMR 1570), Miss Sultana Khokhar and 2 others Vs. The University of the Punjab, through its Registrar (PLD 1962 SC 35), Executive District Officer (Revenue), District Khushab at Jauharabad and others (2011 SCMR 1864), Syed Mahmood Akhtar Naqvi and others Vs. Federation of Pakistan and others (PLD 2013 SC 195), Muhammad Farid Khatak and others Vs. Chief Secretary, Government of N.W.F.F. and others (2009 SCMR 980) and Muhammad Mohsin Ghuman and others Vs. Government of Punjab (2013 SCMR 85).

5.Arguments heard. Record perused.

6.The primary question which needs deliberation is whether the relaxation in the upper age limit up to 03 years across the board for female candidates through notification

dated 21.05.2012 would amount to violation of Articles 25 and 27(1) of the Constitution. In this context it is expedient to reproduce Articles 25 and 27 (1) as under:- Article 25: (1)“All citizens are equal before law and are entitled to equal protection of law.

(2)There shall be no discrimination on the basis of sex.

(3)Nothing in this Article shall prevent the State from making any special provision for the protection of women and children.”

Article 27(1). “No citizen otherwise qualified for appointment in the service of Pakistan shall be discriminated against in respect of any such appointment on the ground only of race, religion, caste, sex residence or place of birth....”

The perusal of aforesaid Articles 25 of the Constitution makes it evident that there will be no gender based discrimination, however, Article 25(3) provides that this Article shall not restrain the State from making special provision for protection of women and children. The perusal of notification dated 21.05.2012 shows that the same was issued by the Governor Punjab in exercise of powers conferred upon him u/s 23 of the Punjab Civil Servants Act (VIII) of 1974 whereby amendment was made in Punjab Delegation of Powers (Relaxation of Age) Rules, 1961 and upper age limit upto 3 years across the board for female candidates over and above any age relaxation in column 4 shall appear as part of advertisement. It is admitted position that the said notification was issued under the Punjab Women Empowerment Package, 2012 (PWEP, 2012). This notification squarely falls within the parameters of Article 25(3) wherein the Constitution itself recognized creation of classification and special provisions for the protection of

women and children. The obvious reason for giving such concession of 03 years age relaxation only to female candidates is to enable the women to join professional career after marriage, child bearing and other family responsibilities. This age relaxation in favour of females through the aforesaid notification does not discriminate against the petitioners rather it is an affirmative action on the part of Government to protect the women by creating job opportunities for women so they can apply for jobs and join profession after being settled in their marriage life. This act of the government cannot be held to be violative of either Article 25 or 27 of the Constitution because classification is reasonable and it has a nexus with the object sought to be achieved. Article 25 deals with every kind of State action in relation to the citizen of this country and every sphere of the activity of the State is controlled by Article 25(1) and therefore there is no reason to exclude employment under the State from the ambit of Article 25(1), however, at the same time Article 25(3) permits special provisions for women. Both Articles 25(1) and 25(3) go together. To say that job opportunities for women under Article 25(3) cannot be created would be to cut at the very root of the underlying inspiration behind Article 25(3). Making Special provisions for women in respect of employment or posts under the State is an integral part of Article 25(3), which power is not whittled down in any manner by Article 25(1) or Article 27(1) of the Constitution. Further Article 25(3) being beneficial and special provision, its scope is wider than the provision of Article 27(1) which even otherwise does not prohibit such affirmative act to protect the right of women.

7.The august Supreme Court while interpreting Article 25(3) in Shrin Munir etc. v. Government of Punjab etc. (PLD 1990 SC 295) held as under:-

“Clause (2) of Article 25 prohibits distinction on the basis of sex alone. However, the very next clause (3) controls the rest of Article 25 by providing that “nothing in this Article shall prevent the State from enacting any special provision for the protection of women and children”. It implies, therefore, that while the difference on the basis of sex can be created and maintained, it shall be done only in those cases where it operates favourably as a protective measure for and not against women and children. The field of prohibition, of adopting sex, as a criteria for making a distinction, is thereby reduced to only that category wherein sex is adopted as a standard for discriminating against females generally and against males only if it is not as a measure protective of females”.

In a similar case Nazar Elahi Vs. Government of Punjab and others (2013 CLC 1457), this Court found that relaxation of three years age limit for women comparing to male candidates for appointment against a particular post will not violate Article 25 and 27 of the Constitution. It is expedient to reproduce the relevant extract:-

“The question which also needs to be answered is whether the action undertaken by the Government is permissible affirmative action to protect women. In the instant case the PWEP was introduced under Article 25 (3) of the Constitution. As part of the PWEP female candidates were given an age relaxation up to three years, for fresh induction, over and above the normal age for the purpose of encouraging employment in the public sector and to enable women to join professional career after marriage and child bearing. In the instant case, as explained by the learned Law Officer and provided for in the PWEP the intention of the PWEP is to give women an equal opportunity to apply for jobs given that a certain amount of their time may have been utilized for marriage and child bearing. The aim therefore is to provide women a level playing field so that they have equal

representation and opportunities in the different activities of national life. To my mind the Government has a compelling reason for undertaking affirmative action by allowing age relaxation up to 38 years for female candidates. The decision to offer female candidates a three year age relaxation is taken to remedy an imbalance. And finally, even though it suggests different treatment the object is to promote gender equality.

This Court in the case of Miss. Rabia Khan and 3 others Versus Province of Sindh and 3 others (2012 YLR 1801) also held as under:-

“Furthermore the reliance placed on Article 25 of the Constitution, is also misplaced. Clause (2) of this Article prohibits gender based discrimination, but clause (3) allows positive discrimination for the “protection” of women. Now fundamental rights serve as a check on State power, i.e. they prohibit the relevant organ of the State from doing what it otherwise could do (whether in the exercise of legislative or executive power). In other words, fundamental rights do not confer powers on the State; they derogate from its powers and draw a line which cannot be crossed”.

8.If a special provision is made for protection of women, the petitioners cannot raise grievance that they have been discriminated. In the case law relied upon by the petitioners, it was either the females who were being discriminated against the male or plea of discrimination was agitated against the similarly placed male citizens and in none of the cases referred, it was held that no law can be made for protection of women under Article 25(3) of the Constitution, therefore, the case law relied is inapt to the facts and circumstances of this case. The petitioners could not point out any discrimination against them comparing to similarly placed male candidates for the post of

SESE.

9.For the reasons discussed above, I am of the considered view that no case of discrimination is made out. The relaxation of 03 years age limit in case of women is protected under Article 25(3) of the Constitution as it is to promote the participation of women in all parts of national life. Therefore, I find no substance in this petition which is dismissed.

(ABID AZIZ SHEIKH)

JUDGE.

Approved for reporting.

JUDGE.

Riaz Ahmad