AYESHA A. MALIK, J. --- Through this petition the Petitioner has impugned the proclamation wherein a relaxation of age was offered to female candidates but the same relaxation of age was not offered to male candidates. The Petitioner claims that he is being discriminated against which is .
In contravention to Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution).
2. The basic facts are that through a proclamation in the newspaper applications were invited for the posts of Educators. As per clause 3 of the proclamation the maximum age for a candidate is 35 years, inclusive of five years age relaxation. The Government of Punjab granted a further age relaxation upto three years to female candidates in terms of the Punjab Women Empowerment Package, 2012, meaning thereby that female candidates upto the age of 38 were eligible to apply for the post of Educator. The Petitioner moved an application to the Respondent No. 1 to request for an age relaxation of three years being similar to that which was being offered to female candidates. The Petitioner's request was not considered. The Petitioner made several requests to the Respondent No. 1 and ultimately filed the instant petition before this Court.
3. Written reply has been filed by .The Respondents No. 2 and 3 as well as by the Respondent No. 1.
In terms of the replies filed, it is stated that the Petitioner cannot be considered for age relaxation on account of the Recruitment Policy, 2011 wherein it is stated that the maximum age limit is 35 years of age across .The board and no further age relaxation will be allowed. It is further explained that the age relaxation offered to female candidates is on account of the Punjab Women Empowerment Package, 2012 (PWEP). Hence in terms of the replies filed the age relaxation is offered only to female candidates under the PWEP.
4. The case of the Petitioner, as argued by the learned counsel is that every citizen is equal before the law and is entitled to equal protection of the law. Furthermore, in terms of Article 27 of the Constitution, no citizen otherwise qualified for appointment in the service of Pakistan shall be discriminated against in respect of any such appointment on the ground of race, religion, cast, sex, residence or place of birth. Learned counsel argued that it is the fundamental right of the Petitioner to be given the same treatment as that of the female candidates and that there is no justification for giving only female candidates an age relaxation of three years. He argued that this act of the Respondents is discriminatory and offends Article 27(1) read with 25(1) of the Constitution.
5. Learned Law Officer argued that the Punjab Women Empowerment Package, 2012 was introduced in terms of Article 25(3) of the Constitution. It represents a concerted effort on the part of the Provincial Government to acknowledge the mandate of Article 25(3) read with Article 24 of the Constitution. The PWEP is protected under Article 25(3) of the Constitution and represents an affirmative action on the part of the Government to protect the rights of women. He placed reliance on case titled Miss Rabia Khan and 3 others v. Province of Sindh (2012 YLR 1802) and Syeda Sadia and 2 others v. Baha-ud-Din Zakria University through Vice Chancellor and 3 others (2011 YLR 2867) in support of his contention that Article 25(3) of the Constitution provided for affirmative action for the protection of women.
6.. I have heard the learned counsels and have reviewed the record available on the file.
7. The point that needs consideration in this case is whether the age relaxation of three years provided for in the proclamation, for the benefit of female candidates violates Article 27(1) of the Constitution. Article 27 of the Constitution reads as follows:--- "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, case, sex residence or place of birth .......... Article 25 of the Constitution being the equal protection article reads as follows:--- "(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."
8. It is clear from reading both the Articles that there shall be no gender based discrimination.
Article 25 ensures equal treatment under the law however Article 25(3) provides that nothing in this Article shall prohibit the State from making special provisions for the protection of women and children. This means that the Constitution has given the State a remedial power to protect women and children notwithstanding the fact that everyone is to be treated equally under the law. Article 25 of the 'Constitution guarantees equal protection to every citizen and also requires that the State undertake affirmative action for the protection of women and children. Therefore the Constitution has itself recognized and created a classification which needs special protection. Hence an act of the Government which aims to protect women and children will be an affirmative action which does not offend Article 25(1) and equal treatment. The next question is whether Article 27 is offended by the age relaxation offered to female candidates. Article 27(1) provides that no citizen shall be discriminated against in respect of any appointment he is otherwise qualified for only on the ground of race, religion, case, sex or place of birth. Article 27 provides for a safeguard against discrimination in service. The safeguard ensures that the State will not commit gender based discrimination. However this Article does not prohibit affirmative action to protect the female gender. The age relaxation offered to females under PWEP does not discriminate against the Petitioner but in fact is part of an affirmative action to protect women by creating opportunities for women' professionally so that they can apply for jobs keeping in view the time spent for responsibilities such as marriage and children. Affirmative action for women and children is the remedial power given to the Government to equalize opportunities by creating special dispensation or special standards for them so as to equalize their opportunities. A similar view was considered in 2012 YLR 1801 (Supra) where it was held that:- "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".
9. 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 upto three years, for fresh induction, over and, above the normal age for the purposes 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 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 upto 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.
10. I am of the opinion that the age relaxation for female candidates meets the standard of a permissible affirmative action, hence is protected under Article 25(3) of the Constitution. I am also of the opinion that the age relaxation offered to female candidates does not violate Article 21(1) of the Constitution. In fact it promotes the full participation of women in national life as contemplated under Article 34 .Of the Constitution, which provides that steps shall be taken to ensure full participation of women in all parts of National Life.
11. Therefore I find that no discrimination is made out against the Petitioner on account of the fact that the Petitioner is not offered the three years age relaxation which female candidates are give.
Petition dismissed.