ZUBDA-TUL-HUSSAIN, J. - One Mst. Shazia Begum W/o Abdul Karim was employed in Education Department as Class IV employee. During her posting in Government Girls Primary School, Basti Gulzar Mahal, Bahawalpur, she was medically examined by a Medical Board of Bahawal Victoria Hospital, Bahawalpur. The Medical Board found her to be incapacitated and declared her to be invalidated in Category BEE for further service. Invalidation Certificate (Annexure-A), had been issued by the Medical Board on 17.9.2006. Consequently on the basis of the Invalidation Certificate she was retired from service.
2. After the retirement of Mst. Shazia Begum, her daughter, namely, Nazia Naeem, by invoking the provisions of Section 17-A of the Punjab Civil Servants (Appointment & Conditions of Service) Rule, 1974, made an application dated 22.10.2007 to the Deputy District Education Officer (Female), Bahawalpur, seeking her appointment in place of her mother. On the same subject she also addressed another application, dated 13.12.2007, the Executive District Officer (Education), Bahawalpur. She was responded by letter dated 18.12.2007, issued by the Office of the E.D.O.
(Education), Bahawalpur, informing her that she being married daughter of the invalidated Government Servant was not entitled to be appointed under Rule 17-A of the Punjab Civil Servants (Appointment & Condition of Service) Rules, 1974. The petitioner's representation/appeal to D.C.O., Bahawalpur against the order of the E.D.O. (Education), Bahawalpur, was also turned down on 8.5.2008. Failing to get her statutory right on executive side, she invoked the Constitutional jurisdiction of this Court by filing Writ Petition No. 2123/08 which was disposed of by this Court on 13.11.2008 directing the respondents to examine the case of the petitioner and if she possessed the prescribed qualification she may be provided employment in terms of Section 17-A/'b/d.
3. The above-said order dated 13.11.2008 being not complied with as directed by this Court, the petitioner filed the contempt petition (Cr. Org. No. 26/09) against the respondents. The respondent No. 2 appeared before this Court, and produced a copy of order dated 12.1.2009, passed by -the Executive District Officer . (Education), Bahawalpur, wherein by relying upon letter No. SOR- III(S&GAD)2-32/2004(P), dated 13.9;2004, the request of the petitioner for appointment was declined on ,the ground that she being a married woman was not entitled to be benefited by Rule 17-A of the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974. This being the position, this Court vide order dated 3.2.2009, disposed of the contempt petition, with an observation that if the petitioner is aggrieved by the aforesaid order she may challenge the same before the appropriate forum.
4. Facing the above situation, the petitioner has filed the instant petition seeking a direction to the respondents for her appointment in place of her mother under Rule 17-A ibid, on the ground that she is the only daughter of her mother who has been declared incapacitated for further service, she possesses the prescribed qualification for the post, she has illegally been refused appointment on .The basis of only being female married child of the incapacitated government servant, there is no' distinction provided in the Rule amongst "male" or "female" or, as applied in the case of the petitioner, "married"; of "unmarried" and the so-called interpretation of Rule by the respondents has no backing of law rather refusal to appoint the petitioner under Rule 17-A was contrary to law and the Constitution.
5.In parawise comments submitted by respondent No. 2, Deputy District Officer Education (W-EE), Tehsil Bahawalpur, the only stance taken by him is that in view letter No. SOR-III, (S&GAD) 2- 32/2004 (P),-dated' 13.9.2004, issued by - the Section Officer (R-III), of Government of. The Punjab, Service & General Administration Department, the petitioner being a married daughter of the incapacitated government servant, she as - per the policy/instructions contained in the afore-said letter was not entitled to claim appointment under Rule 17-A.
6. In the above-said letter referred to and relied upon by respondent No. 2 in parawise comments, it has been stated that married son of the government servant is entitled to be appointed under"
Rule 17-A but married daughter is not entitled. The instructions/policy letter dated 13.9.2004 is not only against the spirit of statutory Rules, on the face of it seems to be unlawful and violative of Articles 25 and 27 of the Constitution of Islamic Republie of Pakistan, 1973 which provide equal protection of Iaw to every citizen of this country and prohibits any distinction and discrimination on the basis of sex alone. Two persons similarly placed cannot be treated differentially on the basis of gender only. No doubt Reasonable classification is not prohibited by the Constitution but it must not offend the spirit of the Constitution. Creating distinction between "married son" and "married daughter" of the incapacitated government servant for the purpose of application of Rule 17-A of the Punjab Civil Servants (Appointment &' Conditions of Service) Rules, 1974, was against law and the express provisions of the Constitution.
7. Besides the above legal position, it is also well- settled law that policy or instructions do not override the statutory provisions of law or Rules framed on the. Subject, In this view of the matter any instructions/policy framed against the statutory law or against any provision of the Constitution of Islamic Republic of Pakistan, 1973, has no legal effect and is not binding on the public functionaries in discharge of their official duties as the dictates of law, justice and equity require exercise of power by all concerned to advance the cause of justice and not to thwart it.- Even otherwise it is an obligatory duty of every public functionary to act in accordance with law and not to interpret the law by his on conceptions. Accordingly, the afore-mentioned letter No. SOR-III (S&GAD)2-32/2004(P), dated 3.9.2004, relied upon by respondents is declared to be illegal and ultra vires of the provision of Section 17-A ibid as well as Articles 25 and 27 of the Constitution of Islamic Republic of Pakistan, 1973,
8. The nutshell of the above discussion is that the petitioner being daughter of the incapacitated government servant is lawfully entitled to be appointed in place of her mother under Rule 17-A ibid. Her petition is thus accepted and the respondents are directed to give appointment to the petitioner by extending her the benefit of Rule 17-A of the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974.