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Petitioner: Muhammad Siddique VS Respondent: Secretary Education, etc
Court Name: Lahore High Court Judge(s): Muhammad Shan Gul Title: Muhammad Siddique vs Secretary Education, etc Case No.: W.P. No.15834 of 2014 Date of Judgment:2021-11-03 Reported As: 2021 LHC 5915 Result: Petition allowed
JUDGMENT
JUDGMENT MUHAMMAD SHAN GUL, J:- We have before us a situation in which the respondent Provincial Government is only looking at the skin of a beneficial provision while refusing to consider the soul of the said Rule. 2. Through the present petition the refusal of the Administrative Department in extending the same benefit to a widower as it does to a widow in terms of Rule 17-A of the Punjab Civil Servants (Appointment & Condition) of Service Rules, 1974 has been brought under challenge. This petition proceeds on the basis that, prima facie , there is no legal warrant to deny the benefit afforded by this rule to a widower when the same rule is applicable in the case of a widow . The present petitions seeks to challenge this gender discrimination which obtains in the matter of interpretation and application of Rule 17-A of the Punjab Civil Servants (Appointment & Condition) of Service Rules, 1974. Learned counsel for the petitioner has argued that eclipsing a widower of a deceased female civil servant from consideration for the grant of benefit under Rule 17-A of the Punjab Civil Servants (Appointment & Condition) of Service Rules, 1974 is contrary to the rights guaranteed under the provisions of Articles 4, 25(3) and 27 of the Constitution of Islamic Republic of Pakistan, 1973 as the same amounts to gender discrimination which is certainly not consistent with the intent or the purport of providing equal treatment to people belonging to all genders and both sexes. Learned counsel for the petitioner submits that the purpose and sweep of Rule 17-A of the Punjab Civil Servants (Appointment & Condition) of Service Rules, 1974 is to provide a lifeline to the family members of a deceased civil servant who are left with no means of livelihood after the death of a civil servant and this can be also achieved if a job is offered to either of the surviving spouse and that depriving a widower of the benefits of Rule 17- A of the Punjab Civil Servants (Appointment & Condition) of Service Rules, 1974 tantamount to downright discrimination. 3. This petition was filed in 2014 by the husband of a deceased Secondary School Teacher , who applied for being appointed under Rule 17-A of the Punjab Civil Servants (Appointment & Condition) of Service Rules, 1974 as a
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Junior Clerk but who was refused on the pretext that the said Rule only allowed for appointing a widow of a deceased civil servant who dies while ins service and not a widower of a deceased female civil servant. 4. While respondents were directed to file suitable replies, a written discourse in terms of Order 27-A, CPC was also ordered to be brought on the file from the office of the Advocate General, Punjab. It was on 17.6.2021 that the matter was placed before this Bench and immediately the respondents were sensitized to submit a report revealing reasons and rationale behind encouraging such gender discrimination and so as for them to provide the legal basis for countenancing different strokes for widows and widowers. It was only after three orders passed by this Court, more in the nature of reprimand that the Regulations Wing of S&GAD, Province of Punjab, as also the office of the Advocate General, Punjab woke up from their slumber and submitted the discourse sought for which is now a part of the record of this case. Considering the legal importance of the matter M/s Abuzar Salman Niazi and Faiz Ullah Khan Niazi, Advocates High Court were asked to assist this Court as friends of the Court. 5. After having heard learned counsel for the petitioner , the learned Amicus as also the learned Addl. Advocate General who has also addressed arguments in terms of Order 27-A, CPC and having perused the reply-cum- discourse submitted by the Regulations Wing of S&GAD, this Court is now in a position to pass a judgment in the matter . Rule 17-A of the Punjab Civil Servants (Appointment & Condition) of Service Rules, 1974 "17.A. Notwithstanding anything contained in any rule to the contrary , whenever a civil servant dies while in service or is declared invalidated/incapacitated for further service, one of his unemployed children **or his widow/wife may be employed by the Appointing Authority against a post to be filled under rules 16 and 17 for which he/she possesses the prescribed qualification and experience and such child **or the widow/wife may be given 10 additional marks in the aggregate by the Public Service Commission or by the appropriate Selection Board or Committee provided he/she otherwise qualifies in the test/examination and/or interview for posts in BS-6 and above." 6. In a recently reported judgment of this Court "Muhammad Ijaz v. Government of the Punjab through Director General Fisheries, Punjab, Lahore and 32 others" (2021 PLC (C.S.) 1154) Rule 17-A of the Punjab Civil Servants (Appointment & Condition) of Service Rules, 1974 has been interpreted as follows:- "It is manifest from a reading of the Rule in question that the scope and sweep of Rule 17-A has been widened horizontally as also vertically in that besides extending the basis of entitlement from death only to incapacitation and invalidation and enlarging those eligible and entitled from unemployed children to wife/widows as well, on the way also granting more respectability and improvement in grade and status, the Rule has indeed come of age, so to speak, and the special beneficial purpose and rationale behind insertion of Rule 17-A is much more conspicuous now. It may be mentioned here that the Rule is not based on largesse or state bounty since there is a consideration involved and which is bartering of years of service resulting in death or permanent incapacitation of the father or husband of a person who seeks benefit of Rule 17-A. What is also evident is that the Rule begins with a non-obstante condition and, therefore, has to be applied and enforced to the exclusion of all other subordinate legislation, what to speak of instructions and notifications." 17. What is, however , absolutely unarguable, is the fact that Rule 17-A is a piece of beneficial legislation. It is a Rule which purports to confer a benefit on a class of persons. Examples of such laws are public assistance laws, laws on unemployment relief, etc. It is trite that beneficial legislation should be interpreted in a purposive or teleological manner as opposed to the strict literal approach because such a purposive approach would advance the objects of such welfare legislation. This purpose oriented approach encourages a liberal construction to promote its objects . Words occurring in Rules of liberal import such as social welfare and unemployment relief Rules are not to be shrunk to Lilliputian dimensions. In constructing such Rules, the imposture of literal construction must be avoided. What is relevant is the color , the content and the context of such enactments. In the words of the Indian Supreme Court (1980 (4) SCC 443 Surendra Kumar), "Semantic luxuries are misplaced in the interpretation of bread and butter enactments ." Welfare enactments
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must, of necessity , receive a broad interpretation. Where an enactment is design ed to give relief to a particular group or class of persons, the Court is not to make inroads by making etymological excursions." 7. In view of what has been noted in this precedent case and in line with the ever expanding reach and sweep of Rule 17-A the interpretation accorded to the said Rule which is under challenge in the present matter indeed comes across as misdirected, misaimed and violative of the concept of "unemployment relief and assistance " which are the focus, unarguable aim and hallmarks of Rule 17-A. 8. The object of the Rule manifestly rooted in provision of bread and butter to the deserving, how can the benefit emanating out of such rule not be exten ded to an unemployed previously dependent widower of a female civil servant? The widower is as inherently deserving of the special treatment contemplated by the rule as is a widow . The rule has as its ultimate aim, the provision of immediate relief to the family of a civil servant who dies while in service. Men and women can both be civil servants. There is no acknowledged disentitlement barring a woman from gaining employment as a civil servant. The object, purpose, rationale, ethos nay the spirit behind the insertion of Rule 17-A is premised and focused on providing immediate relief for the immediate family of a civil servant who dies in service irrespective and regardless of sex and gender . A woman being as much a civil servant as a man! The realm and reach of the rule is concentrated on provision of relief without any regard for gender . The interpretation accorded by the executive to deny relief is based on a literal and myopic reading of the rule without any regard to its purpose. This is indeed wrong and incorrect. Rather beneficial rules such as the one under consideration are deserving of purposive interpretation and liberal construction so as advance and promote and not retard or kill its object. The rule is not concerned with the gender of the recipient of its benefit which in all fairness is triggered and accrues on the death of a civil servant while in service. The teleol ogical methodology may indeed lead to an interpretation in favour of a widower which would also be in line with the ef ficacy of the rule. 9. M/s Abuzar Salman Niazi and Faiz Ullah Khan Niazi, the learned Amicus have drawn the attention of this Court to the purpose and ethos behind insertion of Rule 17-A of the Punjab Civil Servants (Appointment & Condition) of Service Rules, 1974 and submit in unison that the said Rule is beneficial in natur e aimed at providing bread and butter to the bereaved family of a deceased civil servant. In their opinion, the distinction drawn in the Rule between a widow and widower is indeed unconstitutional because the same does not measure up to the requirements of Article 25(3) of the Constitution. In this regard, they have relied upon a judgment reported as "Shrin Munir and others v. Government of Punjab through Secretary Health, Lahore and another" (PLD 1990 SC 295) paragraph No.16, "16. 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 or 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 a measure protective of females . Discrimination against a group or an individual implies making an adverse distinction with regard to same benefit, advantage or facility . All pervasive nature of this constitutional provisi on is self-evident. In interpreting Constitution and also in giving effect to the various legislative measures, one distinction has to be consistently kept in view and it is that classification based on reasonable considerations is permissible and not violative of the principle. This aspect of the matter was dealt with in a case in the Indian Jurisdictio n in Kathi Raning Rawat v. State of Saurashtra (AIR 1952 Supreme Court 123) in the judgment of the Chief Justice in the following words: Thus, Article 25(3) is a provision which allows for discriminatory legislation only in the form of affirmative action, for the purposes of protection of a certain disadvantaged class of society . It is clear that Article 25(3) of the Constitution allows for positive discrimination in favour of women and children. However , what Article 25(3) certainly does not do is allow for negative discrimination against men. The purpose of Article 25(3) is to protect women or give them preferential treatment. However , reading Article 25(3) so as to
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negatively discriminate against men would be to give it an interpretation such that it would be repugnant to Article 25 as a whole. " 10. In view of the submissions made by the learned Amicus, Rule 17-A of the Punja b Civil Servants (Appointment & Condition) of Service Rules, 1974 does not qualify the test set forth in this preceden t case by the Hon?ble Supreme Court of Pakistan because in the present matter before this Court distinction based on sex does not operate favourbaly as a protective measure in favour of women. In view of Article 25(3) of the Constitution, Rule 17-A cannot be employed to exclude widowers from the application of the Rule thereof. 11. The learned Amicus have maintained , by placing reliance upon Article 25(3) of the Constitution that in order to exclude the male counterparts from the application of Rule 17-A of the Rules of 1974, there does not seem to be an adequate enough reason. The reason for this is that the denial does not translat e into preferential treatment for women. 12. They state that in men and women both can contest in the 51 of the Constitution only provides for reserved seats for women. This could be argued to be in accordance with Article 25(3) of the Constitution since women are being given preferential treatment in contrast to men. However , if men were all together denied the right to contest elections for a seat of the National Assembly and only women were allowed, the same would not amount to preferential treatment, but would rather mean outright negative discrimination against men. The same is also in direct contrast to the provisions of Article 25 of the Constitution. 13. Similarly , while interpreting Rule 17-A of the Rules of 1974, it must be kept in mind that Article 25(3) cannot be interpreted in a manner that it expressly bars men from availing its benefit. Any such interpretation would amount to discrimination. 14. According to them what must also be considered is who would be discriminated against if such an interpretation of Rule 17-A of the Rules of 1974 is adopted. It would be both men and women (the widower and the deceased female civil servant) who are being treated in a discriminatory manner . 15. The widower (male) shall be treated in a manner that is discriminatory due to the reasons aforementioned i.e., that the effect of such an interpretation would be to negatively discriminate against him by expressly excluding him from availing the benefit of Rule 17-A of the Rules of 1974 without any additional resultant protection for women. 16. The deceased civil servant (female) is also being treated in a discriminatory manner because, firstly , the benefit? in Rule 17-A is being derived from the demise, or incapacitation, of a civil servant and if the words wife/widow? are interpreted so as to exclude the male counterparts, then the spouse of a female civil servant would be denied the benefit of Rule 17-A of the Rules of 1974. Secondly , purpose behind the insertion of Rule 17-A into the Rules of 1974 seems to be that some benefit, or support, is provided to the dependents? of the deceased civil servant. Following this, the underlying presumption, if the respondents? interp retation of Rule 17-A is adopted, is that a spouse of a female civil servant cannot be dependent on her (so as to be able to avail the benefit of Rule 17-A) since she is a female, and the spouse is a male. Such an interpretation is inherently discriminatory against females as a whole, and the deceased female civil servant in the instant matter . 17. Furthermore, this Court in "Muhammad Uneeb Ahmed v. Federa tion of Pakistan through Secretary , Ministry of Science and T echnology , Islamabad and others" ( 2019 MLD 1347 ) has stated that: "What needs to be seen is whether the classification impugned before this Court could be termed reasonable or not. Article 25 apart from stipulating equality and equal protection of law to all citizens, expressly prohibits discrimination and provides that the State may make special provisions for protection of women and children. A valid classification test of any enactment would be that the regulation/rule must not be arbitrary in nature. It must be founded on intelligible differentia which distinguishes persons or things that are grouped together from others not falling in that group, but such differentia must have a rational relation to the object sought to be achieved by the enactment in question. The rule is well settled that a State may classify persons for purpose of legislation and pass laws applicable only to persons and objects within designated class according to the public object, it has in view. What is prohibited is class legislatio n against some and favouring others, which has happened in the instant case where the State is favouring one class at the cost of elimination of the other ."
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18. The learned Amicus have referred to the case of Weinberger v. Wiesenfeld, 420 U.S. 636 (1975), a case where the issue under consideration was whether a man was entitled to child care after his wife had died. The father in this case was the sole provider for the child and Social Security survivors' benefits were made available to widows but not to widowers . The court found that this provision was based on gender-based discrimination. The relevant paragraphs are reproduced below: "We do not see how the fact that social security benefits are "noncontractual" can sanction differential protection for covered employees which is solely gender based. From the outset, social security old age, survivors', and disability (OASDI) benefits have been "afforded as a matter of right, related to past participation in the productive [420 U.S. 636, 647] processes of the country ." Appellant seeks to characterize the classification here as one reasonably designed to compensate women beneficiaries as a group for the economic difficulties which still confront women who seek to support themselves and their families. The Court held in Kahn v. Shevin, 416 U.S., at 355 , that a statute "reasonably designed to further the state policy of cushioning the financial impact of spousal loss upon the sex for which that loss imposes a disproportionately heavy burden" can survive an equal protection attack. See also Schlesinger v. Ballard, 419 U.S. 498 (1975). But the mere recitation of a benign, compensatory purpose is not an automatic shield which protects against any inquiry into the actual purposes underlying a statutory scheme. Here, it is apparent both from the statutory scheme itself and from the legislative history of 402 (g) that Congress' purpose in providing benefits to young widows with children was not to provide an income to women who were, because of economic discrimination, unable to provide for them selves. Rather , 402 (g), linked as it is directly to responsibility for minor children, was intended to permit women to elect not to work and to devote themselves to the care of children. Since this purpose in no way is premised upon any special disadvantages of women, it cannot serve to justify a gender - based distinction which diminishes the protection afforded to women who do work. Given the purpose of enabling the surviving parent to remain at home to care for a child, the gender -based distinction of 402 (g) is entirely irrational. The classification discriminates among surviving children solely on the basis of the sex of the surviving parent. Even in the typical family hypothe sized by the Act, in which the husband is supporting the family and the mother is caring for the children, this result makes no sense. The fact [420 U.S. 636, 652] that a man is working while there is a wife at home does not mean that he would, or should be required to, continue to work if his wife dies. It is no less important for a child to be cared for by its sole surviving parent when that parent is male rather than female. And a father , no less than a mother , has a constitutionally protected right to the "companionship, care, custody , and management" of "the children he has sired and raised, [which] undeniably warra nts deference and, absent a powerful countervailing interest, protection." Stanley v. Illinois, 405 U.S. 645, 651 (1972). Further , to the extent that women who work when they have sole responsibility for children encounter special problems, it would seem that men with sole responsibility for children will encounter the same child-care related problems." 19. The learned Amicus have also referred to a case decided by the South African constitutional court. It may be mentioned here that the South African Constitution carries a provision in the form of its Article 9(2) which is very similar to Article 25(3) of the Constitution of Islamic Republic of Pakistan, 1973. They have relied on Fraser v Children' s Court [1997] ZACC 1 in which the Constitutional Court of South Africa sought to decide whether section 18(4)(d) of the Child Care Act which imposed requirement of the consent of the mother to give up children born out of wedlock for adoption was discriminatory to the father of the child under the South African Constitution. The relevant paragraphs of the Constitutional Court are as follows: "20. There can be no doubt that the guarantee of equality lies at the very heart of the Constitution. It permeates and defines the very ethos upon which the Constitution is premised. In the very first paragraph of the preamble it is declared that there is a ". . . need to create a new order . . . in which there is equality between men and women and people of all races so that all citizens shall be able to enjoy and exercise their fundamental rights and freedoms". Section 8(1) guarantees to every person the right to equality before the law and to equal protection of the law. Section 8(2) protects every person from unfair discrimination on the grounds of race, gender , sex, ethnic or social
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origin, colour , sexual orientation, age, disability , religion, conscience, belief, culture or language. These specified grounds are stated to be without derogation from the generality of the provision. Section 8(3)(a) makes it clear that nothing in sections 8(1) or (2) precludes measures designed to achieve the adequate protection or advancement of persons or groups or categories of persons disadvantaged by unfair discrimination, in order to enable their full and equal enjoyment of all rights and freedoms. Consistent with this repeated commitment to equality are the conditions upon which there can be any justifiable limitation of fundamental rights in terms of section 33 of the Constitution. In order for such a limitation to be constitutionally legitimate it must be "justifiable in an open and democratic society based on freedom and equality". 24. Apart from the fact that the impugne d section unfairly discriminates between some matrimonial unions and others, it might also be vulnerable to attack on other grounds. A strong argument may be advanced in support of other attacks on the section made in terms of section 8 of the Constitution on the grounds that its effect is to discriminate unfairly against the fathers of certain children on the basis of their gender or their marital status. 25............ Every mother is given an automatic right, subject to section 19, to withhold her consent to the adoption of the child and that is denied to every unmarried father , regardless of the age of the child or the circumstances. This could lead to strangely anomalous and unfair results. The consent of the father to the adoption of such a child would be unnecessary even if the child is eighteen years old, has the strongest bonds with the father and the mother has not shown the slightest interest in the nurturing and development of the child after the first few months. On those facts the mother?s consent would, subject to section 19 of the Act, always be necessary , but not that of the father . It may be difficult to find justification in terms of section 33 of the Constitution for this kind of discrimination." 20. Having heard the learned Amicus, it may now be appropriate to look at the regarding interpretation of gender in statutes: RULE REGARDING INTERPRET ATION OF GENDER IN ST ATUTES 21. Section 13 of the General Clauses Act 1897 states that: "In all (Central Acts) and regulations, unless there is anything repugnant in the subject or context - words importing the masculine gender shall be taken to include females, and words in the singular shall include the plural,…
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