' The petitioner, holder of F.A. With Diploma in Designing from National College of Arts, was appointed in the Punjab Small Industries Corporation on 31st of May, 1977. Thereafter, she was promoted on the 17th of July, 1983 as Assistant Director (Design) in B.S.-16 and successfully completed her probationary period. An advertisement appeared in the National Dailies The Pakistan Times" and "The Nawa-i-Waqt" on 6th of May, 1986 for the post of Designer/Modeller in BPS-17 and restricted it to the "male only".
2. Grievance is voiced that respondent No,4, a Matric with Diploma from National College of Arts, who is much junior to the petitioner, was selected in a discriminatory manner. The petitioner joined respondent-department on 31st of May, 1977 while respondent No,4 joined on the 15th of September, 1983. Even as Assistant Director (Design) the petitioner ranked senior to respondent No,4. It is argued that without any valid reason the petitioner has been discriminated only on ground of her sex and the post has been arbitrarily reserved for 'male only' in clear violation of Articles 25 and 27 of the Constitution of Islamic Republic of Pakistan, 1973. It is further argued that the objection taken in the parawise comments as well as during the course of arguments that the petitioner did not apply for the post is contradictory in nature and is devoid of any force. How could the petitioner have applied for this post when the advertisement in clear terms reserved the same for male only. Even otherwise the representation made by the petitioner to this effect was not considered.
3. The learned counsel appearing for the respondents has taken a preliminary objection that the writ petition suffers from laches. A further argument has been advanced that the nature of job is such that it is not possible for a female to effectively perform duties attached to it Reliance has been placed upon Mrs. Raghubans Saudagar Singh v. The State of Punjab and others (AIR 1972 Punjab & Harayana 117).
4. I have given my anxious consideration to the entire facts of this case.
' Article 25 of the Constitution of Islamic Republic of Pakistan which provides for 'Equality of Citizens' is as under:-- "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."
' In American Constitution Amendment XIV corresponds to this Article which is as under:-- "Section 1.--All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction of equal protection of the laws."
' Article 27 of the Constitution also needs to be mentioned as it has provided safeguard against discrimination in services. It is as under:- "Safeguards against discrimination in service.---(1) 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, caste, sex, residence or place of birth; ' Provided further that, in the interest of the said service, specified posts or services may be reserved for members of either sex if such posts or services entail the performance of duties and functions which cannot be adequately performed by members of the other sex.
' American Civil Rights Act, 1964 has similarly taken care of discrimination in employment and section 703 of it provides as under:- "(a) It shall be an unlawful employment practice for an employer--
(1) to fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, colour, religion, sex or national origin... ...
(e) Notwithstanding any other provision of this title, (1) it shall not be an unlawful employment practice for an employer to hire and employ employees on the basis of religion, sex or national origin in those certain instances where religion, sex or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise "
' Article 34 of the Constitution under the Chapter of Principles of Policy has provided for the full participation of women in national life. It is as under:-- "Full participation of women in national life.---Steps shall be taken to ensure full participation of women in all spheres of national life."
' There was time when job opportunities were limited for women and it was considered that women physical structure and her duties towards home as a mother would not allow her to render strenuous work and undertake prolonged duty hours. XIIth Amendment providing for equality of citizens was made in the year 1868 in the American Constitution. Even thereafter the American Courts gave narrow construction interpretation to equal protection clause. In 1872 in the case of Bradwell v. Illionis 16 Wall 130 (1872) the Supreme Court upheld a State Law barring licence to practice law to the women.
5. This concept has now changed tremendously. Position of women has markedly improved in recent decades. They have excelled in different walks of life and are successfully performing all those functions which earlier were totally reserved for men. In IDA Phillips v. Martin Marietta Corporation (400 US 542, 27 L Ed. 2d. 613, 91 S Ct 496 a woman with pre-school age children was informed by a Corporation with which she sought employment that it was not accepting job application from women with pre-school age children although it did employ men with pre-school age children. The petitioner challenged this action on the ground that she had been denied employment because of her sex. The Supreme Court held that the impugned action of the Corporation had violated the protection against discrimination on the ground of sex.
6. In Reed v. Reed 404 U.S 71 (1971), the Court unanimously invalidated an idaho statute that required that males be preferred to females as administrators of decedent's estates. Sex was not found to be rationally related to an individual's ability to administer an estate, and the legislation was thereby seen as an arbitrary legislative choice in violation of the equal protection clause. In Government of Pakistan v. Zafar Iqbal and 3 others 1992 CLC 219 while considering the equality clause the Division Bench held as under:-- "The doctrine of equality before the law and equal protection is the anchor-sheet of our Constitution. It prescribes that every citizen of the State is to be equally treated and is to enjoy equal protection. This principle nullifies and makes void the State actions which infract these principles unless and until the State can show reasonable classification. The equal protection theory prevents discriminate treatment of individual or a group of individuals at the expense of other individuals or classes of the people similarly situated. Even handed, fair treatment to every citizen is ordained by the Constitution."
' Mr. Justice A.S. Salam as he then was in a case titled Mussarat Uzma Usmani etc. v. Government of Punjab etC. (PLD 1987 Lahore 178) while declaring the restriction placed upon girl students to compete on open merit seat as invalid/illegal interpreted Article 25 of the Constitution in the following words:-- "The provision is clear, categorical and unambiguous altogether. It laid down that all are equal, there shall be no discrimination on the basis of sex alone and that the State may mate law 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 woman--not against them. How the petitioners, girls are being treated equally when they were being denied admission even though they have nearly hundred marks more than the boys? Are they not being discriminated against only because they are girls? If they were boys with their marks they would have been given admission. They are not being given their due muchless is law made for their protection. There is clear violation of the Constitutional mandate."
' The learned Judge after elaborate discussion declared that the action of the Authorities denying the girls students equality before law, equal protection of law and discrimination on the ground of sex in competing for the open merit seats in the Medical Colleges, contrary to the Constitution. This judgment of the learned Judge was affirmed by the Hon'ble Supreme Court in Shrin Munir etc. v.
Government of Punjab etc. PLD 1990 SC 295.
7. The second proviso to Article 27 of the Constitution has created an exception that certain specified posts or service in the interest of State service may be reserved for members of either sex, if such posts or services entail the performance of duties and functions which cannot be adequately performed by members of the other sex. This proviso has created an exception to the mandate of the Constitution that like must be treated alike. In order to justify the exclusion of a person on the ground of sex from the employment the exclusion must have reasonable relation nexus to the successful performance of the job concerned. It must be of such a character or nature which could not have been possibly performed by the other sex. The reasons must be explicit. Here in this case it is pertinent to mention that nothing was placed on record alongwith comments by the department showing the nature of the job. However, during the course of arguments certain documents have been brought on record simply stating that since the incumbent has to deal with the labour class and has also to undertake extensive travelling, as such, a male officer can effectively perform the duties attached to the job of Modller/Designer while female who have got domestic responsibilities, would not be in a position to stay late hours. A further reason has been advanced that since the Designer is also required to work in the processing of the films with the photographer in the dark-room, a woman incumbent cannot be deputed for such duties. These are hardly any reason for restricting this job to the male only. Gone are the days when the women were totally restricted to the household boundaries. The petitioner, who has got vast experience in designing, has been denied the opportunity to compete for this job on invalid grounds. By no stretch of imagination it can be said that a female cannot perform these functions effectively. The petitioner, who has been working in this very job for the last many years, have been denied the chance to compete in clear violation of Constitutional mandate. The reasons advanced by the learned counsel for the respondents at this belated stage are not convincing. The job is not of a such nature which cannot be effectively performed by a female.
' As far as the ground of laches is concerned, that would not be attracted in this case. The petitioner has been making representation before the departmental authority for the redress of her grievance and none of them brought any result. Even otherwise the impugned action being completely discriminatory cannot be condoned simply on the ground of laches. It has been held in Pakistan Post Office v. Settlement Commissioner and others 1987 SCM R 1119 as under:-- "In the case of laches, however, the principles of condonation would be totally different. It being in the field of equity, it will not be denied; where either the negligence is not culpable vis-a-vis the merits of the case; or, when there is no equity in favour of the party who would be the gainer in case the condonation is denied.
' It is also for the very same reason that bar of laches in equitable jurisdiction has rightly been equated with principle of estoppel and not the statutory bar of limitation. See Mst. Noor Jehan Begum v. Abdul Majid Shaida and another Law Notes 1967 (N.U.C.) SC 15--Civil Review Petition No,K- 3 of 1967 in Civil Appeal No,K-39 of 1965, decided on 14-4-1967. In the present case no question of estoppel arises. The change of position by the transferee was pendente lite. He cannot take any advantage of this principle either. And the writ petition could not be dismissed except on grounds of merits.
' The next aspect relates to the nature of the order impugned before the High Court in its writ jurisdiction. We agree that the mere fact that the order is void would not necessarily displace the bar of laches in equitable jurisdiction. The rule is that if it is a just and proper order then notwithstanding, it being otherwise void, it need not be set aside in writ jurisdiction, if the same was filed after inordinate delay. See S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore and another 1978 SCM R 367. On the other hand, if it is a void order and is also unjust and improper besides being illegal, the High Court will have no hesitation in setting it aside despite the objection regarding laches. It is so because the High Court would then be acting on a still higher principle than that of laches that injustice is not perpetuated with the blessings of the Court in its discretionary jurisdiction, as the discretion to dismiss a writ petition cannot be exercised in aid of injustice." (Underline is mine)
This being the position simply because the petitioner approached this Court 1-1/2 years after the appointment of the respondent, she cannot be non-suited. Resultantly, for what has been stated above the writ petition is accepted and the action taken pursuant to the advertisement appointing respondent No,4 is declared to have been made without lawful authority and of no legal effect.
Respondents Nos. 1 to 3 are directed to fill this vacancy in accordance with law and rules by giving opportunity to the all concerned. There shall be no order as to costs.