' This petition under Article 199 of the Constitution of Islamic Repulic of Pakistan, 1973, relates to appointment of a Lambardar of Chak No,471/GB, Tehsil Samundri, District Faisalabad. This post fell vacant on account of death of permanent Lambardar of the village viz. Muhammad Bakhsh, the father of the petitioner, who died on 9th August, 1985, leaving behind him only four daughters of which Mst. Nasreen Iqbal, the petitioner herein is the eldest.
2. Twenty-one persons including the petitioner applied for appointment to the aforesaid post.
Initially, on 28th July, 1986, Shafaat Ali, respondent No,2, was appointed as the Lambardar for this estate by the Assistant Commissioner/Collector, Jaranwala. This order was challenged by the petitioner in appeal before the Commissioner and then in revision before the Member, Board of Revenue, which were dismissed on 8th December, 1986 and 4th February, 1987, respectively. The petitioner thereupon applied for review of the aforesaid order. It appears that two other candidates, namely, Muhammad Arif and Shafaat Ali had also filed revisions before the Member, Board of Revenue. The review application of the petitioner and the revisions of Muhammad Arif and Shafaat Ali were heard together by the Member, Board of Revenue, who vide his order dated 8th October, 1989 accepted the same, on the ground that the Assistant Commissioner/Collector, Jaranwala, had no jurisdiction to appoint Lambardar for Chak No, 471/CB, which fell in Tehsil Samundri. This order was challenged by respondent No, 2 by filing Writ Petition No, 250/90 which was admitted to regular hearing, but has since been disposed of as having become infructuous.
3. In the post remand proceedings, the Deputy Commissioner/District Collector, Faisalabad, proceeded to appoint the petitioner as Lambardar on 4th September, 1990. This order was challenged by respondent No, 2 by filing an appeal, which was dismissed by the Commissioner, Faisalabad, on 11th March, 1991. Aggrieved by that order, respondent No,2, went to the Board of Revenue by filing a revision petition, which was accepted primarily on the ground that according to rule 19 (2) of the Punjab Land Revenue Rules, 1968 a female cannot ordinarily be appointed as Lambardar. This order of the Member, Board of Revenue, has been assailed by the petitioner by filing this petition.
4. In support of this petition, Syed Jamshed Ali, the learned counsel for the petitioner raised the following contentions:-
(i) That the learned Member, Board of Revenue having himself held that the appointment of the Lambardar was to be made according to rule 19(2) of the Punjab Land Revenue Rules, 1968, has acted without any lawful authority in ignoring the rule of primogeniture, according to which the petitioner was entitled to be appointed Lambardar in place of her father. Reliance has been placed on Mushtaq Hussain v. Mst. Naseem Akhtar etc. (PLD 1982 SC 271); Ilahi Bakhsh v. Member (Revenue), Board of Revenue (1988 CLC 161) and Ch. Saghir Ali v. Member, Board of Revenue and others (1993 CLC 858).
(ii) That even rule 19(2) of the Punjab Land Revenue Act, 1967, which provides that a female should not ordinarily be appointed as Lambardar, is violative of Article 25 (2) of the Constitution of Islamic Republic of Pakistan, which prohibits discrimination on the ground of sex alone.
(iii) That the order passed by the Member, Board of Revenue, is arbitrary and discriminatory in nature, inasmuch as the Member, Board of Revenue, has himself, in another matter, held that a female could be validly appointed as a Lambardar under the Rules.
5. Learned counsel appearing on behalf of respondent No,2 has been heard in reply. He has defended the impugned order of the Member, Board of Revenue, by contending that respondent No, 2 being a female could not have been appointed as Lambardar in preference to respondent No,2.
6. There is no dispute between the parties on facts. It stands admitted that Muhammad Bakhsh, the father of the petitioner was the permanent Lambardar of Chak No, 471/GB, Tehsil Samundri, District Faisalabad, and it was on account of his death that the post fell vacant on 9th August, 1985. It is also not denied that the petitioner is the eldest daughter of Muhammad Bakhsh.
7. In the impugned order, the Member, Board of Revenue, has himself observed, and rightly so, that as appointment in question was that of the successor Lambardar, it was to be made in accordance with rule 19 of Punjab Land Revenue Rules, 1968. Sub-rule (1) relates to those estates, which are owned chiefly or altogether by the Government and is, therefore, not applicable.
According to sub-rule (2) of rule 19, in other estates, primarily it is a right of the nearest eligible heir according to the rules of primogeniture to be appointed as Lambardar against a vacancy which had occurred due to the death of his predecessor. The rules of primogeniture also apply even in cases where a female is to be appointed. No detailed discussion on this subject need be made in view of the pronouncement of this Court in Ch. Saghir Ali v. Member, Board of Revenue and others (1993 CLC 858), wherein after considering in detairthe various aspects of the matter including the definition of 'primogeniture', it was opined that the applicability of rule 19(2) is not confined to only cases where a male is appointed as an heir of the deceased Lambardar but this principle is applicable to the cases of a female also. Same view was taken in Ilahi Baksh v. Member (Revenue), Board of Revenue (1988 CLC 161). The appointment of a female as Lambardar on the rule of primogeniture was approved by the Supreme Court in Mushtaq Hussain v. Mst. Naeem Akhtar etc. (PLD 1982 SC 271). It follows, therefore, the petitioner was clearly entitled to be appointed as Lambardar, being the nearest heir of the deceased.
8. It is, however, to be noted that clause (d) of sub-rule (2) of Rule 19 provides that ordinarily no female should be appointed as Lambardar. The relevant clause reads as under:-- "(d) A female is not ordinarily eligible for appointment to the office of a headman, but may be appointed, when she is the sole owner of the estate, for which the appointment has to be made, or, for special reasons."
9. The learned counsel for the petitioner has strenuously argued that this sub-rule is violative of the fundamental right enshrined in Article 25 of Constitution of Islamic Republic of Pakistan, 1973, is to the following effect:- "25. Equality of citizens.---(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."
10. While construing this Article, the first thing which is significant is that though sub-Article 1 emphatically forbids discrimination and guarantees equality before law, yet by a specific mandate in sub-Article (2), discrimination on the ground of sex alone is forbidden. It is also to be noticed that neither in the Constitution of Islamic Republic of Pakistan, 1956, nor in the 1962 Constitution, there was a specific provision in the nature of sub-Article (2) which for the first time was enacted in the Interim Constitution of 1972 and was retained in the Constitution of 1973. This reflects the anxiety of the Constitution-makers to ensure equal treatment to woman and their abhorence against discrimination on the basis of sex.
11. Sub-Article (2) of the Constitution of Islamic Republic of Pakistan, 1973, fell for consideration before the Supreme Court of Pakistan in Shrin Munir and others v. Government of Punjab through Secretary, Health, Lahore and another (PLD 1990 SC 295), wherein Shafi-ur-Rehman, J. Speaking for the Court observed:- "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 of 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 not as 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 provision is self- evident."
' It is also useful to refer to the judgment of this Court in Mussarat Uzma Usmani and another v.
Government of Punjab through Secretary, Health, Lahore and another (PLD 1987 Lahore 178), which was approved by the Supreme Court of Pakistan in Shrin Munir's case (supra). In the case before this Court, Mr. Justice A.S. Salam (as his Lordship then was) in his illuminatory judgment on the subject made very strong observations in the following words:- "Article 25 of 1973 Constitution is clear, categorical and unambiguous altogether. It lays down that all are equal, there shall be no discrimination on the basis of sex alone and that the State may make laws for the protection of women . All are equal, man and woman, neither man nor woman shall be discriminated against, laws may be made for protection of women -- not against them."
12. Viewed from this angle, it is but obvious that clause (d) of sub-rule (19) clearly offends against the command of sub-Article (2) of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. On its plain wording, the only ground for non-appointment of a female as a Lambardar is her sex.
' The discrimination is so obvious that it calls for no further comment except for notice may be taken of the argument of the learned counsel for the respondent that clause (d) is not violative of sub-Article (2) of Article 25 of the Constitution, as it does not completely forbid the appointment of female Lambardar, but merely provides that ordinarily a female should not be appointed. This argument, on the face of it, is fallacious as the clause in question certainly places females at a disadvantage.
13. In Sally M. Reed v. Cecil R. Reed, Administrator etc. (1971) 404 US 71), the provisions of Idaho Probate Code, which provided for giving mandatory preference to male applicant over female applicants while being appointed as descendants of estates was challenged as being violative of the equality clause in the United States Constitution. While striking down this provision, the United States Supreme Court observed that as it gave mandatory preference to members of a sex over members of the others, it was hit by equal protection clause of the 14th Amendment of United States Constitution. It is interesting to notice that at the relevant time, there was no specific provision in the United States Constitution, prohibiting discrimination on the ground of sex alone, though such a provision was later on introduced by 27th Amendment to the Constitution.
14. Learned counsel for the petitioner has pointed out and rightly so, that this rule though framed in 1968 is a mere re-production of the Punjab Land. Revenue Rules, 1910, which was framed under the Punjab Land Revenue Act, 1887. It is to be noted that at that time, there was no Constitutional provision forbidding discrimination on the basis of sex. Moreover, the general rule applicable at that time was the customary law which even deprived the females of their right of inheritance.
Unfortunately, while reframing the rules in 1968, no effort was made by the rules making authority to bring the same in accord with the changed socio-economic conditions of the society. If there is no prohibition, and indeed there is none, for a female to occupy various high offices and to work and perform functions in different fields, it is not understandable as to why she should not ordinarily be appointed as a Lambardar.
15. As has been pointed out by learned counsel for the petitioner, the post of a Lambardar is no more ceremonial in nature as in addition to the commission which is payable to a Lambardar on the various Government dues collected by him, grant of 100 Kanals of land is also attached to that post. The refusal to appoint a female as Lambardar merely on account of her sex would amount to deprivation of that property. In the face of clear provisions of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, such injustice cannot be allowed to prevail.
16. As has been observed by the Supreme Court in Miss Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416), the principles of policy as enumerated in Chapter 2 of Part II of the Constitution though not enforceable per se by the Courts, have to be kept in mind and given due regard while interpreting the Constitution and the law. Article 34 of the Constitution provides that "steps shall be taken to ensure full participation of women in all spheres of national life".
17. It is also interesting to notice that the Member, Board of Revenue, has himself in another case which related to appointment of Lambardar of Chak No, 180/EG, Tehsil and District Vehari (R.O.R. No, 895 of 1991) on 6th June, 1992, had upheld the appointment of female as a Lambardar by inter alia observing that the right of a female is fully guaranteed under Article 25(2) of the Constitution of Islamic Republic of Pakistan, 1973, holding that there shall be no discrimination on the basis of sex alone. This order passed by the Member, Board of Revenue, was upheld by this Court in Ch. Asghar Ali v. Member, Board of Revenue and others (1993 CLC 858).
18. Learned counsel for respondent No,2 has objected to the maintainability of this petition arguing that Article 199 of the Constitution cannot be invoked in a matter of Lambardari. This argument of the learned counsel stands repelled by the pronouncement of the Supreme Court in Haji Noorwar Jan v. Senior Member, Board of Revenue, N.-W.F.P., Peshawar and 4 others (PLD 1991 SC 531).
' For the reasons aforesaid, this petition is allowed, clause (d) of sub-rule (2) of rule 19 of the Punjab Land Revenue Rules, 1968, is held to be ultra vires the Constitution and is, therefore, of no legal effect and the order of the Member, Board of Revenue dated 13th December, 1992 is declared to be without lawful authority with the result that the order of the Collector dated 4th September, 1990 and that of the Commissioner dated 11th March, 1991 stand restored.
' There shall be no orders as to costs.