' SARDAR MUHAMMAD RAZA KHAN, J:---Pakistan International Airlines Corporation have filed these appeals against a common judgment dated 22-8-2001 rendered by the High Court of Sindh whereby different writ petitions filed by the respondents/Air Hostesses were accepted. In another Civil Petition No,3332 of 2003, the PIA seek leave to appeal against the judgment dated 29-10-2003 of Lahore High Court, Rawalpindi Bench whereby a similar writ petition filed by Mrs. Azra Sahi and 3 other Air Hostesses was accepted. Common question of law and fact being involved, all the matters are taken up together.
2. The appeals and petition arise in the background that according to Regulation 25 of Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985, an Air Hostess was to retire on attaining age of thirty, five years extended from time to time to forty five years; whereas, their other colleagues in pay groups I to IV were to retire on attaining the age of sixty. Such difference in retirement age has been challenged by numerous Air Hostesses before Karachi as well as Lahore High Court under Article 199 of the Constitution on the sole ground that the difference, being a discrimination based on sex, was in utter violation of Article 25 (2) of the Constitution. Their. Stance has been accepted by both the High Courts.
3. The impugned Regulation 25 runs as follows:- "25. Retirement from Service.--(1) An employee shall retire from the service of the corporation in accordance with the retirement regulations framed, from time to time.
(2) Unless otherwise regulated by the competent authority.
(a) an employee in pay groups I to IV other than an Air Hostess or an employee of the Security Division shall retire from service on completion of the sixtieth year of his age;
(c) an Airhostess shall retire from service on completion of thirty fifth year of her age, unless the competent Authority may, in the interest of corporation, direct that she shall retire from service on such date before or on completion of the fortieth year of her age as the competent authority may determine.
(d)
(3)
(4)
(5).
4. Before that Mr. Aftab Gul, learned Advocate Supreme Court for the PIAC commenced his arguments, learned counsel for the respondents Mr. Abdul Mujeeb Pirzada raised a preliminary objection that the appeals and the petition filed by PIAC directly before this Court were not maintainable under section 3 of the Law Reforms Ordinance, 1972 and that the proper course, if at all, for the PIA was to file an Intra-Court Appeal before the same High Courts. For facility of reference, section 3 of Ordinance, 1972 is reproduced below:-- "3. Appeal to High Courts in certain cases:
(1) An appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a Single Judge of that Court in the exercise of its original civil jurisdiction.
(2) An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under clause (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan not being an order made under subparagraph (i) of paragraph (b) of that clause: ' Provided that the appeal referred to in this subsection shall not be available or competent if the application brought before the High Court under Article 199 arises out of any proceedings in Which the law applicable provided for at least one appeal or one revision or one review to any Court, Tribunal or Authority against the original order.
(3). No appeal shall lie under subsection (1) or subsection (2) from an interlocutory order or an order which does not dispose of the entire case before the Court."
5. Mr. Aftab Gul and Mr. Muhammad Yawar Ali, Bar-at-Law, learned counsel for the PIA maintained the view that as the proceedings before the High Court pertained to a law which provided for at least one appeal, revision or review to any Court, Tribunal or Authority against the original order\ no appeal could lie to a Bench of two or more Judges of the same High\ Court and that those filed before -this Court are, therefore, maintainable. Learned counsel for the respondents countered the view with the argument that as the jurisdiction exercised by both the High Court's was undoubtedly a Constitutional jurisdiction and as the decisions rendered were by a Single Judge, the appeal was bound to be filed before a Division Bench of the same High Court. First, we have to see as to what the text law lays down in this behalf.
6. Section 3 of Law Reforms Ordinance, 1972 as reproduced above, provides in subsection (1) that an appeal from a decree or final order made by a Single Judge of High Court shall lie to a Bench of two or more Judges of the same High Court in case the judgment rendered is in the exercise of its original civil jurisdiction. In the instant case, the judgments rendered are not in the exercise of original civil jurisdiction but Constitutional jurisdiction, hence, subsection (1) of section 3 of Ordinance, 1972 is not applicable.
7. Subsection (2) of section 3 of the Ordinance provides that if a judgment by a Single Judge of a High Court is rendered under clause (1) of Article 199 of the Constitution, excepting sub-paragraph
(i) of paragraph (b) of that clause, the appeal shall also lie before a Bench of two or more Judges of the same High Court. The perusal of Article 199 clause (1) of the Constitution.-- "199. (1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,-
(a) on the application of any aggrieved party, make an order--
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or
(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or
(b) on the-application of any person, make an order:--
(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or
(c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II."
Would indicate that all orders passed under sub-Article (1) of Article 199 of the Constitution shall be appealable under section 3(2) of Law Reforms Ordinance, 1972 before a Bench of two or more Judges of the same High Court provided that it is not an order of the nature of habeas corpus described in sub-paragraph (1) of paragraph (b) of the Article. The regulation challenged before the High Court in the instant case squarely fell under clause (1)(c) of Article 199 of the Constitution and, hence, was appealable through an Intra-Court Appeal before two or more Judges of the same High Court. In view of section 3 subsection (2) of Ordinance, 1972, the instant appeals and petition are not maintainable before this Court, the impugned judgment being given in relation to a writ defined under Article 199(1)(c) of the Constitution.
8. Both the learned counsel for PIA wanted to derive benefit from proviso to subsection (2) of the section 3 of Ordinance,1972, canvassing the view. That the petitions brought before the High Court under Article 199 of the Constitution arose out of proceedings in which the law applicable provided for at least one appeal, revision or review. They were presumably of the view that the proceedings before High Court were referable to service"laws where provision of appeal was available and, hence, the petitioners could not have challenged the final order before the same Court and that the present appeals were competent. After examining the law strictly with reference to the matter in dispute, we are of the view that the appellants and the petitioner cannot avail any benefit of the aforesaid proviso; firstly, because the petitions before the High Court could not be identified with "any proceedings" and secondly, that such writ petitions were not directed against any original order of any departmental authority against whom any appeal could lie in the proceedings relevant to such law. The respondents have directly challenged the vires of a regulation enforcing their fundamental rights conferred by Article 25 of the Constitution, not capable of being identified with "any proceedings" taken under any other law where any original order had been passed by any authority. We are of the considered view that the impugned judgments, falling within the ambit of the proviso, were appealable before a Bench of two or more Judges of the same High Court under subsection (2) thereof and appeals and the petition before this Court are not maintainable.
9. Mst. Karim Bibi v. Hussain Bakhsh PLD 1984 SC 344 was placed reliance upon. In this case, this Court has elaborately discussed section 3 of Law Reforms Ordinance, 1972 with particular discussion on "the proceedings" referred to in proviso to subsection (2) thereof. The principle discussed therein is in consonance with what we have arrived at but the conclusion was based on a dispute arising from proceedings under Displaced Persons (Compensation and Rehabilitation)
Act of 1958 and where the authorities concerned had also passed different orders. In the instant case, the conditions are not covered by proviso to subsection (2) of section 3 of the Ordinance, 1972.
10. The second controversy raised by both the learned counsels for P.I.A. Was that the matter brought about by the respondents before the High Courts essentially related to the terms and conditions of service and, hence, in view of newly added section 2-A of Service Tribunals Act, 1973, the remedy of the respondents lay before the Federal Service Tribunal and not before the High Court. In this behalf as well, we feel ourselves in disagreement with the learned counsel on two-fold ground. Firstly, that at the time of filing the writ petitions no order, whether original or appellate, made by a departmental authority against the respondents was in field within the contemplation of section 4 of the Service Tribunals Act, 1973 so as to be challenged before the Tribunal. Secondly, the age of retirement fixed by Regulation 25 of Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985, was a term and condition of the service of the respondents. Had this term and condition been violated by the department, the respondents would have had the right to challenge the same before the Tribunal.
11. Conversely, the situation in hand is quite the reverse because the vires of the very term and condition arising out of Regulation 25 is challenged for being violative of Article 25 of the Constitution and for being a discrimination purely based on sex. This challenge as such and singularly could not have been brought before the Tribunal, which in turn, had no authority to create a term and condition. It could only go into the question of violation or otherwise of an existing term and condition which may be challenged by a civil servant on numerous available grounds including one of being discriminatory. But that discrimination is referable only to the final order passed by a departmental authority within the purview of section 4 of the Service Tribunals Act. In the instant case, there was no order passed by the departmental authority original or appellate in violation of the already existing terms and conditions of service and thus, for getting a term and condition struck down on the basis of being, violative of the fundamental rights guaranteed by the Constitution , the respondents could only resort to the High Court under Article 199 of the Constitution.
12. Reliance was placed on Abdul Bari's case PLD 1981 Kar. 290 where the departmental authority had passed a final order retiring a civil servant before- completion of 60 years of his age. In the given circumstances the jurisdiction of High Court was rightly excluded. When once an existing term and condition is violated by the department, it can be challenged before the Tribunal on numerous grounds available inclusive of the vires of such term and condition. In the present case, no terms and conditions already existing are violated by the department and thus the resort could only be had to the High Court under Article 199 of the Constitution, especially, when the term and condition is challenged on the single ground of being ultra vires the Constitution.
13. Similar was the question in I.A. Sherwani v. Government of Pakistan 1991 SCMR 1041 where certain retried civil servants Were positively discriminated in the payment of enhanced pension. In that case too, there was a final order passed by a departmental authority. In case of Raziuddin v.
Chairman PIAC PLD 1992 SC 531, a specific order existed qua removal from service which could not be challenged anywhere except before the Service Tribunal. In the instant case, there is no order, of either removal or retirement from service. Similar were the conditions in Muhammad Anis v. Abdul Haseeb PLD 1994 SC 539 and Syed Asghar Ahmad Naqvi v. Province of Sindh PLC 1996 (C.S.) 803, where specific order of the departmental authority happened to be challenged and was held to be within the jurisdiction of the Tribunal.
14. On the other hand, this Court, in Dr. Muhammad .Tahir Achakzai v. Government of Balochistan 1999 SCMR 1989 (c), had held that a Service Tribunal cannot independently exercise jurisdiction regarding the vires of Service Rules, if there is no controversy before it relating to the violation of terms and conditions of service of any of a rule required to be exaniined independently without such rule being aggrieved civil servant. In the instant case as well, the question of vires violated by the departmental authority. We are, therefore, of the considered view that when a civil servant challenges the vires of law or rule being ultra vires the Constitution without the same having been violated by the departmental authority, the remedy lies before the High Court under Article 199 of the Constitution and not before the Service Tribunal.
15. Lastly, we come to the question of the merit of the case as to whether Regulation 25 aforesaid is violative of Article 25(2) of the Constitution. Article 25 of the Constitution reads as under:-- "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 alone.
(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children."
The law laid down by this Court in- various judgments including Government of Balochistan v.
Azizullah Memon PLD 1993 SC 341, Asdullah Mangi v. PIAC 2005 SCMR 445(e) is that equal protection of law does not envisage that every citizen is to be treated alike under all circumstances. It, on the other hand, strictly provides that persons similarly situated or similarly placed, are to be treated alike. This Court has further laid down that reasonable classification is permissible but it must to be founded on reasonable distinction commonly known as intelligible differentia. An intelligible differentia distinguishes persons that are grouped together from those who have been left out.
16. Deriving wisdom from the precedent eases of this Court and applying the same to the case of present respondents, we are of the view that had the Air Hostesses been singularly placed altogether in a different group, the fixation of their retirement age at a-different level from other groups of employees of P.I.A. Would not have been a discrimination,being intra sex and not inter sex. Learned counsel for the appellants-petitioner were strongly of the view that the difference of retirement age qua the Air Hostesses applied only to the .Group of Air Hostesses and thus was intra sex and not inter sex.
17. We are afraid, the argument advanced by the learned counsel though apparently quite logical in principle yet was not squarely applicable to the present case because the factual matters practically display altogether a different picture. The Air Hostesses are not a group, as such, but their nomenclature actually is Cabin Crew, also described as Pursers and senior Pursers. In this description and even in view of impugned Regulation 25, the cabin crew includes male stewards as well as Air Hostesses, performing exactly the same duties and belonging exactly to the same pay groups Ito IV.
18. What we are practically confronted with is proved, rather admitted situation, that cabin crew consisting of male stewards and female Air Hostesses are in one and the same group performing exactly the same duties. Though belonging to the same category yet being differently treated, is not a distinction based on intelligible differentia but clearly is a distinction based on sex. In the same functional group, performing exactly the same duties and belonging to same pay group, the retirement age of Air Hostesses being fixed differently is nothing but a discrimination resorted to for the only reason that they are females. What the learned counsel for the petitioner called an intelligible differentia is nothing but a differentia based on sex, glaringly offending the provisions of Article 25(2) of the Constitution. We believe, nothing could be a discrimination based on sex better than what we have found in the present case where people similarly placed exactly in the same group are discriminated only for being females. Both the High Courts have rightly discussed the principle involved and have rightly accepted the stance of the respondents.
19. It would not be out of place to mention that one Miss Shirin Dokht a senior Purser in the PIA had challenged the vires of Regulation 25 before Karachi High Court through a writ petition which was accepted and the provisions of Regulation 25 were declared ultra vires the Constitution in Miss Shirin Dokht v.. Government of Pakistan 1995 PLC (C.S.) 251. This judgment was challenged by PIA before this Court in Civil Appeal No,484 of 1994 and Civil Appeal No,234 of 1995 which were withdrawn by the department on 5-3-1996 entering into compromise with Miss Shirin Dokht. It was undertaken through the offer dated 30-11-1995 that in view of the Sindh High Court decision aforesaid there will be no discrimination on the basis of sex against Miss Shirin Dokht and that the age of retirement for both, male and female cabin crew shall be the same, subject of course, to medical fitness as per PIAC standard whereafter Miss Shirin Dokht was to be offered a ground job in the same pay group.
20. No doubt in the aforesaid writ petition the relief was given to Miss Shirin Dokht but at the same time Regulation was declared to be ultra vires the Constitution. The status of res in the aforesaid writ petition was the retirement as such of all female cabin crew being ultra vires the Constitution apart from the subjective interest of Miss Shirin Dokht. So far as the subjective interest of Miss Shirin Dokht was concerned, it can be treated as judgment in personam but so far as the vires of Regulation 25 are concerned, the adjudication was conclusive objectively and, hence, was judgment in rem. The point involved stands elaborately discussed by this Court in Pir Bakhsh v.
Chairman Allotment Committee PLD 1987 SC 145. We hold without having two opinions that the judgment in case of Miss Shirin Dokht qua the vires of Regulation 25 was a judgment in rem appeal against which was withdrawn by PIA L before this Court. We do believe that the question of Taw settled up to the High Court in that case could be varied by this Court in some other case but, in view of the circumstances discussed above, we do not propose to hold differently.
21. Consequently, the appeals in hand are hereby dismissed and leave to appeal is refused in Civil Petition No,3332 of 2003 on merits as well as on the ground of non-maintainability. While directing that there shall be no discrimination between the retiring age of female and male cabin crew belonging to the same group, we may remark that if any member of the cabin crew at certain age does not physically fulfil the requirements of the department concerning flying duties, they may after Medical examination, be entrusted any other duties/ground duties in the same pay group.