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 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 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 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 ."
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 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, and vice versa ." [emphasis added] Similarly , Section 12 of the Punjab General Clauses Act, 1956 states that: "In all [Punjab Acts], unless there is anything repugnant in the subject or context -
(1) Words importing the masculine gender shall be taken to include female; and
(2) Words in the singular shall include the plural, and vice versa " [emphasis added]
22. Furthermore, in the seminal text on statutory interpretation "Reading Law The Interpretation of Legal Texts - Antonin Scalia & Bryan A. Garner" the rule regarding interpretation of gender is given, at Page 129, as follows: "In the Constitution, the President is referred to many times with the pronouns he, him, and his. These references, by common grammatical understanding, refer to a President of either sex, Grammarians and lexicographers have traditionally held that the masculine includes the feminine: He, him, and his are considered third-person singular common-sex pronouns - but only when the context calls for this understanding. English-language texts are rife with the generic-masculine pronoun. In recent decades, there has been a concerted effort among writers and editors, particularly in academic legal writing, to eradicate this convention. But it persists.
Does the principle that the masculine includes the feminine include the reverse? Does the new politically correct "generic-feminine" pronoun (Every judge who recuses herself is subject to this rule) include the masculine? Yes - at least in texts adopted in the age of political correctness ." [emphasis added]
23. Thus, as a rule of interpretation, the words wife/widow? used in Rule 17-A of the Rules of 1974 will necessarily include the male counterparts.
24. It is evident that the learned Amicus have supported the petitioner in establishing before this Court that Rule 17- A in its present form is violative and derogatory of Article 25(3) of the Constitution and that the same needs to suitably amended so as to not be rendered ultra vires in the presence of Articles, 4, 25(3) and 27 of the Constitution.
25. On the other hand, the Regulations Wing of the S&GAD as also the learned AAG in terms of his discourse under Order 27-A CPC have, both, presumed for reasons only known to them that women, even in the present day world, are more vulnerable than men and, therefore, not similarly situated or similarly placed as men. Even more ridiculous is the self-assumed presumption of the respondents that a widower can never be dependent upon a deceased wife and hence the facility of benefit of Rule 17-A of the Punjab Civil Servants (Appointment & Condition) of Service Rules, 1974 cannot and should not be extended to a widower . This, it is stated with regret is absolutely presumptuous, gratuitous and equally unwarranted in the present day modern world where women as a group have moved on and liberation and emancipation of women has come of age.
26. The learned Addl: Advocate General in his attempt in terms of Order 27-A CPC has referred to the prevalent social setup in Pakistan and on the basis thereof has stated that it is men who are bread-earners in Pakistan and not women. This without any empirical evidence is absolute rubbish and in a country which has twice been led by a woman Prime Minister it does not behove the provincial government to adopt such a lame stance. Equally disturbing is the argument of the learned AAG that had the word spouse? has been used instead of widow then the facility and benefit of Rule 17-A of the Punjab Civil Servants (Appointment & Condition) of Service Rules, 1974 may have been extended to a widower as well. This argument is fallacious and nave on more grounds than one.
First of all, there is no legislative intent involved in the matter because these Rules have been made by the Executive Branch of the State by way of delegated legislation and no legislative intent of the Parliament or the Provincial Assembly is involved in the matter . The term widow has been used and employed by some official of the Regulations Wing of the Services & General Administration Department of the Provincial Government whose acquaintance with legal drafting and romance with linguistics is neither known or acclaimed and arguably dodgy!
27. This argument also does not sit well with the beneficial nature and the bread and butter ethos of the Rule in question. Most importantly , the timing of introduction of the said Rule is very relevant i.e. 24.08.1974 and which makes us move over to look at the historical perspective. It is a fact that at the time of introduction of Rule 17-A of the Punjab Civil Servants (Appointment & Condition) of Service Rules, 1974 the country had not seen or encountered Benazir Bhutto and Malala Yusufzai was not even born then!
HIST ORICAL PERSPECTIVE
28. As famously said by Oliver Wendell Holmes Jr, "The life of the law has not been logic; it has been experience ".
What this means is that a nation's law embodies the story of a nation's developme nt through many centuries, and law cannot be dealt with in isolation as if it contains only the axioms and corollaries of a book of mathematics.
29. The Rules of 1974 were introduced at a time when women in government service were almost non-existent.
Pakistan's gender disparities in education and government service spheres before 1974 are well-documented. At the time the Rules of 1974 were enacted, women were seen as a vulnerable segment of the society in need of social welfare support. Article 25 of the Constitution took birth in 1973 which stipulated that "there shall be no discrimination on the basis of sex alone". This showcased a change in attitudes of the policy makers. All government services were gradually opened to women including the district management group and the foreign service (in the civil service), which had earlier been denied to them.
30. According to the report of the Asian Development Bank titled "Women in Pakistan" (July 2000 ), the overall literacy rate of Pakistan at the time of the writing of the aforesaid report was 45%, with 56.5% males and 32.6% females being literate. In the largest province of Pakistan, Punjab, the literacy rate of males in 1975 was 31.6% whereas the literacy rate for females in the same time period was 12.6%. In 1995, in the same province (Punjab), the literacy rate of males was up to 50% whereas the literacy rate of females had almost doubled to 24.9%.
Considering the same time period (1975-1995), the literacy rate of males increased by almost 53% and the literacy rate of females increased by almost 73%.
31. In 1998-1999, the female enrolment rate was higher than the male enrolment rate at the primary (4.6% male and 8% female), secondary (1.2% male and 6.8% female), and high school levels (7.4% male and 8.3% female).
The same report showcases that in 1996, females had a better pass percentage than men in matric and intermediate examinations.
32. Taking into account the fact that a period of 20 years has elapsed since the writing of the aforementioned report, it would not be out of place to state that the participation of women in all spheres of life has increased manifold. The cultural prescription of gend er roles is not the same as it was in 1974. If the purpose of the Rules of 1974 was to give women an equal footing when it came to participation in the civil service and workplace, that purpose is now obsolete. Long gone are the days when only a man could be the sole breadwinner of a family , conversely , in the 21st century a woman can also be the sole earner of a household and as such, an untimely death of the same woman could raise significant financial dif ficulties for her family .
33. The friends of the court have been very helpful in providing the report of the Asian Development Bank titled Women in Pakistan? on which reliance is placed with advantage.
34. The presumption that women are generally not bread-earners, therefore, is not correct and, hence, the blanket embargo placed on a widower in terms of Rule 17-A of the Punjab Civil Servan ts (Appointment & Condition) of Service Rules, 1974 is indeed harsh and disproportionate. This element of discrimination and arbitrariness gathers strength when considered in the context of a Notification dated 20.8.2007 issued by the same S&GAD, Province of Punjab according to which:- NO.SOR-III(S&GAD)2-10/2007 Dated Lahore the 20th August, 2007 Subject: APPOINTMENT UNDER RULE 17-A OF THE PUNJAB CIVILS SERV ANTS (APPOINTMENT AND CONDITIONS OF SERVICE) RULES, 1974.
I am directed to invite your kind attention to Rule 17-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, which reads as under:- "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."
Provided further that one child or widow/wife of a Government servant who dies while in service or is declared invalidated/incapacitated for further service shall be provided a job against posts in BS-1 to 5 and the posts of Junior Clerks (BS-7) in the department in which the deceased Government servant was working, without observance of formalities prescribed under the rules/procedure. Provided such child or the widow/wife is otherwise eligible for the post.
2. A question has arisen that if both the husband and wife are in Govern ment service and die during service, whether or not the benefit of provision of job under Rule 17-A ibid can be availed by two children of the deceased civil servants.
3. It is hereby clarified that if both the husband and wife are in Governmen t service and both die during service, the benefit of provision of employment under Rule 17-A of the rule ibid may be extended to one unemployed child of the deceased husband and one unemployed child of the deceased wife."
35. On the strength of the above Notification it can be safely stated that refusing a surviving husband the benefit of Rule 17- A of the Punjab Civil Servants (Appointment & Condition) of Service Rules, 1974 would mean that the expression whenever a civil servant dies? is construed by the government to mean only a male civil servant.
This approach is not only unjust and invidious and even prejudiced for both the deceased woman civil servant and her surviving spouse but also manifestly of fensive to the Notification dated 20.8.2007 highlighted above.
36. Equally , it is also strange that while most of other benefits after the death of a civil servant are available equally to all female members of a civil servant irrespective of gender , and while government itself acknowledges through Notification dated 20.8.2007 that even the children of a female deceased civil servant can attain benefit in terms of Rule 17-A of the Punjab Civil Servants (Appointment & Condition) of Service Rules, 1974, an absolute ouster of a widower in this context is neither understandable nor based on a justifiable rationale and, therefore, not worthy of being encouraged or perpetuated.
STATUS OF OTHER BENEFITS FOR F AMIL Y OF DECEASED CIVIL SER VANT
37. Rule 17-A is an advantage attached with service which is intended to be extended to alleviate the financial hardship that the family of a deceased civil servant is likely to face after his death. Other such protections afforded to Civil Servants of the Government of Punjab are Pension, Gratuity under the Punjab Civil Servants Act, 1974 or Welfare fund paid to the families of a civil servant in case of his death under The Punjab Government Employees Welfare Fund Ordinance, 1969.
38. The Punjab Civil Servants Act, 1974 does not make any distinction and declares the family of a deceased civil servant entitled to receive pension and gratuity .
18. Pension and gratuity .-
(2) In the event of death of a civil servant , whether before or after retirement, his family shall be entitled to receive such pension, or gratuity , or both, as may be prescribed.
What constitutes family? is defined in The Punjab Government Employees Welfare Fund Ordinance, 1969, which again makes both wife and husband entitled to receive the fund in case of death of their spouse.
2. Dfinitions.- In this Ordinance, unless the context otherwise requires, the following expressions shall have the meanings hereby respectively assigned to them:
2. (a) "family" in relation to a Government servant means his or her:
(i) wife or wives or husband , as the case may be;
39. Till 1997, despite their being no statu tory distinction, the pension of a deceased female civil servant was only paid to her husband for a period of 10 years. Later , through Notification No.FD-SR-III-4-1 14/89 dated 15.01.1997, a husband was declared entitled to receive pension for life just like a widow of a deceased male civil servant!
40. Denial of a job under Rule-17-A is not a measure conforming with Article 25(3) but is rather outright discrimination (i) against female civil servants whose job does not carry the same perks and advantages and hence, points towards less recognition of their service to the state compared to their male counterparts i.e. terms and conditions of service of both genders are different (ii) against surviving husbands who despite being in similar position (surviving spouse of a civil servant) are treated dif ferently than widows.
41. In neighboring India, equal right of employment on compassionate and sympathetic grounds for the surviving husband and wife of a deceased civil servant stands founded on the basis of Article 39 of the Indian Constitution which speaks about promotion of social and economic wellbeing of people. In the case of Pakistan Article 38 of the Constitution provides as follows:-- "Article 38: Promotion of social and economic well-being of the people The State shall- a. secure the well-being of the people, irrespective of sex, caste, creed or race, by raising their standard of living, by preventing the concentration of wealth and means of production and distributi on in the hands of a few to the detriment of general interest and by ensuring equitable adjustment of rights betw een employers and employees, and landlords and tenants. b. provide for all citizens, within the available resources of the country , facilities for work and adequate livelihood with reasonable rest and leisure. c. provide for all persons employed in the service of Pakistan or otherwise, social security by compulsory social insurance or other means.
On the basis of this Article and the command that it contains, Rule 17-A of the Punjab Civil Servants (Appointment & Condition) of Service Rules, 1974 in so far as it denies beneficial employment to a widower may require a rethink on the part of the rule makers.
42. There have been cases in India where employment was sought by persons not strictly governed by beneficial rules allowing such compassionate employment but the courts relied not on the letter of the Rule but the reason behind enactment of the Rule coupled with the constitutional command of promotion of social and economic wellbeing to provide relief in the case of death of the bread earner , be it a man or woman.
43. In (1993) 2 GLR 1663 (Pravinchandra Jeram Sindhal vs Gujarat State Road Transport) the petitioner (son of deceased civil servant) was refused employment after the death of his father while in service because the applicable rules only allowed such employ ment if request for the same was made within 5 years of death of the civil servant. Petitioner at the time of his fathe r?s death was minor and applied after attaining majority age i.e after the lapse of 5 years.
6. Having heard the learned Advocates for the respective parties at length, it clearly appears that the stand taken by the respondent-Corporation in not giving appointment to the petitioner on compassionate grounds under the clever disguise of some rules is something contrary to the very basic humanistic policy/philosophy of providing employment to the needy and starving members of the family which has lost the only bread-winner! It is hardly required to be highlighted that the underlying philosophy of providing employment on compassionate grounds is just to mitigate the hardships arisen out of the sudden demise of the only bread-w inner of the concerned families.
This is the only object which ought to have been properly considered while entertaining such applications for appointment on compassionate grounds. It may also be stated that a person having served in a department, if he was the only bread-earner and dies while on duty, his heirs can certainly hopefully look at the concerned department for legitimate reward of being appointed on compassionate ground in token of respect, appreciation of services rendered to it. Such humanistic appointments on compassionate ground should never be taken as some mercy shown to some beggar , rather it is the duty of concerned department to see that the deceased employee who was as good as its family member , his heirs are not let down and rendered destitute in absence of the deceased, viz., the only bread-winner . Thus, when the Court finds that such rules more hinder than help and are more or less unnecessary noose round the neck of a person who cannot be otherwise denied the benefit under the Compassionate Scheme, then the same has to be either liberally construed, and if not, may be required to be cut and scrapped to save their bright sides from being eclipsed by inconsistent rules.
In fact, having accepted in principle and accordingly practiced the benign social welfare policy of giving suitable job to the dependent of the sole bread-winner employee who dies in harness, the same can never be permitted to be shelved merely on the ground of some technical shortcomings of not complying with the relevant rules. This Court feels that whenever any department is be faced with a situation, viz., the philosophy and spirit of employing dependent of the sole bread-winner on compassionate ground as against the technical pedantic approach of taking too narrow and shallow view of the matter while interpreting such rules, the guiding principle should be, not to be swayed by form, by way of technicalities , but rather the substance of providing bread and butter , otherwise what happens is that the lofty policy in substance remains where it is, and the technicalities take driver's sit and deny all the benefits of the said policy to the deserving families. Under such type of cases, the scale of justice should tilt towards the humanistic approach, rather the technical one."
44. In 1991 (2) ALT 679 (Miss. Rekha Kumari And Anr. vs. Managing Director , A.P.), where the Claim of a sister of a deceased female civil servant to employment was rejected by the employer , "4. .............Here is a case where out of two sisters and a widowed mother , one sister died in service while working as an Attender with the first respondent-Corporation leaving behind her younger sister and her widowed mother .
None of them is an earning member . They come from a very poor family . One can well visualize the 'stark' level of poverty' to which they must have been reduced consequent upon the only earning member of the family , namely , elder sister dying in service. In all the circumstances, this is a fit case where we would strongly recommend to the State Government to relax the G.O. in question and grant relief in favour of the first appellant, younger sister of the deceased ."
45. In (JON MAHANT A Vs. THE ORIENT AL INSURANCE CO. LTD.) HIGH COUR T OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH), where in terms of applicable rules, brothers and sisters of unmarried government employees were entitled to seek employment following the death of the said employee but siblings of married employees were not so entitled, the bifurcation was held to be "28. In this regard, one may refer to the decision of the Hon'ble Supreme Court in Budhan Choudhry v. State of Bihar , (1955) 1 SCR 1045 : AIR 1955 SC 191 : 1955 Cri LJ 374 wherein it was held as follows:
5. ............ In order , however , to pass the test of permissible classification two conditions must be fulfilled, namely , (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases; namely , geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration...
29. In the present case the differentia is that the category of brothers and sisters of an unmarried deceased employee are eligible to apply for compassionate appointment, and the other category of brothers and sisters of a married deceased employee are not eligible for compassionate appointment. Thus, the differentia is clearly discernible. One set of brother and sister of an unmarried deceased employee and another set of brother and sister of a married deceased employee. We have to now examine whether this differentia has a rational nexus with the object sought to be achieved by the legislation."
"As mentioned above, the brothers and sisters of an unmarried deceased employee are made eligible for appointment under the Scheme for the reason that an unmarried deceased employee cannot be expected to have any spouse or any son or daughter who are the preferred family members for appointment under the scheme.
For the same reason, brother and sister of a married deceased employee are not made eligible for appointment under the scheme on the ground that the deceased married employee would normally have a spouse and son or daughter , in which event, the benefit cannot be extended to the brother or sister .
Apparently , though this classification seems to be reasonable, on a closer scrutiny , it is found to be not so, as in the present case, and this classification cannot be said to have a rational nexus to the object sought to be achieved. We have already seen that the deceased sister of the petitioner , though married did not leave behind any spouse as her husband predeceas ed her and she also did not have any son or daughter . Under such circumstances, where the deceased employee did not leave behind any spouse or son or daughter , depriving the benefit of opportunity of appointment under the scheme to the brother and sister of such deceased married employee, who were wholly dependent on her, would clearly do great injustice to such brother and sister as in the present case . As we have already discussed above, the purpose of this beneficial scheme is to render assistance to the dependent family members on the death of the deceased employee. By denying opportunity to apply for compassionate appointment under the scheme to the dependent brother and sister of a deceased married woman, who died as an issueless widow , it certainly cannot be said to be in consonance with the avowed policy of giving financial assistance by appointment to the dependent family members of the deceased employee . The object of compassionate appointment, as we have noticed earlier , is to save a family from economic distress and to provide succor in the time of need. It must, therefore, be examined whether the differentia is intelligible and reasonable, if so, whether such differentia has any rational nexus with the object of the policy for compassionate appointment. Seen from this perspective, though the aforesaid classification does seem to be reasonable yet it does not seem to have any reasonable or rational nexus with the avowed purpo se of such classification. If the avowed purpose is to give assistance to the wholly dependent family members of a deceased employee, one fails to understand, why one category of brothers and sisters, if wholly dependent upon the deceased employee, should be deprived of the benefit of comp assionate appointment merely because their brother/sister employee was married, when brothers and sisters of an unmarried employee are made eligible for appointment under the Scheme .
In the opinion of this Court, the aforesaid classification does not overcome the test of reasonable classification having intelligible differentia as it cannot be said to have a reasonable nexus to the purpose of the Scheme, hence such classification is violative of Article 14 of the Constitution of India. One similarly situated category of wholly dependent family members have been denied the benefit only on account of the marital status of the deceased employee which has no reasonable nexus with the purpose of the legislation, that is, to offer assistance to the dependent family members of a deceased employee ."
46. In "Pakistan Engineering Co. Limited Lahore through Managing Director v. Fazal Beg and others" (1992 SCMR 2166 ) where the definition of workman given in Industrial Relations Ordinance, 1969 included the employee (Respondent No.1 in the case), however , Standing Order Ordinance, 1968 didn't include the said Respondent No.1 and hence, his appeal before Labour Appellate Tribunal was dismissed, The Hon'ble Supreme Court held, "The basic and first principle to be kept in view in construing a beneficial legislation is to interpret its provision to advance its purpose rather than thwart or subvert it by specious sophistry . The idea behind the legislation was to safeguard the rights and interests of workmen . Workman was defined to mean a person employed to do any skilled or unskilled, manual or clerical work for hire. The work performed was to involve physical exertion more or less, distinct from intellectual or the one involving decision -making at a higher or lower level It would appear to be travesty of thought to say that a Jama dar drawing about 4 or 5 hundred rupees per month at the relevant time was not a workman under one statute, though he was so in another when both intended to achieve the same purpose ".......18 . In 1990 PLC (C.S) 749, it has been held at paragraphs No.7 and 9 that, "the beneficial legislation is to be given a benevolent interpretation."
47. In "Commissioner Inland Revenue Zone-II , Regional Tax Office, Multan v. Mrs. Ambreen Fawad C/O Pak Arab Fertilizers Limited, Multan" (PLD 2014 Lahore 72) while quoting from N.S. Bindra it has been held as follows:- "A statute which purports to confer a benefit on individuals or a class of person s, by reliving them of onerous obligations under contracts entered into by them or which tend to protect persons against oppressive act from individuals with whom they stand in certain relations, is called a beneficial legislation.......In interpreting such a statute, the principle established is that there is no room for taking a narrow view but that the court is entitled to be generous towards the persons on whom the benefit has been conferred. It is the duty of the court to interpret a provision, especially a beneficial provision, liberally so as to give it a wider meaning rather than a restrictive meaning which would negate the very object of the rule. It is a well-settled canon of construction that in constructing the provision of beneficent enactments, the court should adopt that construction which advances, fulfils, and furthers the object of the Act rather than the one which would defeat the same and render the protection illusory ...... Beneficial provisions call for liberal and broad interpretation so that the real purpose, underlying such enactments, is achieved and full effect is given to the principles underlying such legislation."
48. In "Mst. Bashiran Bibi and another v. Government of Punjab through Secretary of Communication and Buildings, Lahore and others" (2000 PLC (C.S.) 467), a case which is quite similar in facts to the case before this Court and in which the daughter of a woman government employee who had retired upon being declared invalid had applied for a job and who was refused a job on account of a misconceived interpretation of Rule 17-A of the Punjab Civil Servants (Appointment & Condition) of Service Rules, 1974 that a daughter of a female government employee is not entitled to such a benefit, it was held by the Hon?ble Court that:- "The benefit granted by the Government would be availed by the child of a Government servant, whether male or female. The letter issued by respondent No.4 refusing the job opportunity to the petitioner No.2 is contrary to the aforesaid Notification of the Government and in violation of the Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 enshrines that:-- Article 25 Equality of citizen.--(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; and (3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children.
7. Article 25 of the Constitution guarantees to all citizens of Pakistan equality before law and equal protection of law. The guarantee of equal protection of the law requires that all persons shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabiliti es imposed. The phrase "equal protection of law" envisaged by Article 25 of the Constitution means that no perso n or class of persons would be denied the same protection of law, which is enjoyed by persons or other class of persons in like circumstances in respect of their life, liberty , property or pursuit of happiness. Persons similarly situated or in similar circumstances are to be treated in the same manner . Article 25 of the Constitution further provided that there shall be no discrimination on the basis of sex alone and has given power to the State for making special provisions for the protection of women and children and any discrimination on rights of women or on the basis of sex alone. The arbitrary discrimination on the basis of sex alone is prohibited by this Article. In this context reference can be made to a case of "Mussarat Uzma Usrnani and another v. Government of Punjab through Secretary Health, Lahore and another (PLD 1987 Lahore 178) and Shrin Munir and others v. Government of Punjab through Secretary Health, Lahore and another (PLD. 1990 SC 295). "
8. Article 27 of the Constitution contemplates that:-- Article 27 Safeguard against discrimination in services. --(I) "No citizen otherwise qualified for appointment in service of Pakistan snail be discriminated against in respect of any such. appointment on the ground only of race, religion, caste, sex, residence or place of birth.
Articles 25 and 27 of the Constitution safeguard against discrimination in services."
49. In "Muhammad Huzair Qureshi v. Province of Punjab through Secretary S&GAD , Lahore and another"
(2015 PLC (C.S.) 1483 ), it has been held at paragraphs No.8 and 10 as follows:- "8. I am of the considered opinion that Rule 17-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 was designed to lessen the sufferings of an invalid, if anyone of his family takes over and steps in his shoes, his miseries would be considerably reduced. It goes without saying that the Rule in question is a kind of remedial enactment. Remedial acts have been defined by Crawford on Statutory Construction in the following words:--- "Remedial acts are those enacted in order to improve and facilitate remedies already existing for the enforcement of rights and for the redress of wrongs or injuries as well as to correct defects, mistakes and omissions in a former law."
10. In the case of "International Ore and Fertilizers (P) Ltd." (1987) 4 SCC 203" it was observed that in construing a remedial statute, it should be given the widest operation its language would permit. The court should construed the phraseology of the statute so as to give the most complete remedy intended by the statute and so that the purpose of the legislation may be allowed to be achieved rather than frustrated."
50. As a result of the discussion made above, it is evident that Rule 17-A of the Punjab Civil Servants (Appointment & Condition) of Service Rules, 1974 in its present form and manner in which the same has been interpreted in the present case requires a rethink on the part of the executive because in its present form it is discriminatory and, therefore, hit by Articles 4, 25(3) and 27 of the Constitution. It requires to be suitably amended by the executive.
51. The blanket and outright embargo and refusal of employment to a widower is bad in law and violative of the Constitution. A more balanced and nuan ced approach may require structured discretion being injected into Rule 17-A with reference to employing a widower by way of compassionate employment. It is suggested that the rule may allow for compassionate employment for a widower who is not employed or who is employed at a place and post which is clearly inferior in rank and perks to that formerly occupied by the deceased female civil servant. This is not meant to be exhaustive but only a suggestion which can be built upon while making suitable amendments to the rule in question. Denial by the executive on the basis of the existing Rule 17-A of the Punjab Civil Servants (Appointment & Condition) of Service Rules, 1974 to a widower of a deceased woman civil servant is not a measure possibly protective of females because it is not as if widowers were to be accommodated by way of compassionate employment then women would not be able to get jobs and since this is not the case, negative discrimination against men may not be worthy of being countenanced and in the absence of any justifiable rationale or reasonable basis the rule in its present form will be hit by the ethos of the non-discrimination clause contained in Article 25 read with Article 27 of the Constitution. The Rule in its present form is discriminatory for a widower as also for the deceased female civil servant.
52. In view of what has been noted above, Rule 17-A in its present form in so far as it denies employment to a widower is declared to be discriminator y and offensive to Articles 4, 25 and 27 of the Constitution and the respondents are directed to bring about suitable amendments in Rule 17-A so as to bring it in line with the constitutional mandate. In the meanwhile, respondents are directed to consider the case of the petitioner for compassionate employment in terms of Rule 17-A of the Punjab Civil Servants (Appointment & Condition) of Service Rules, 1974.
53. This constitutional petition is allowed in the above terms.