1. ' MRS. MAJIDA RAZVI, J.---Petitioner Sherin Dokhat a Senior Purser in the employment of respondents 2 and 3, through this Constitution petition has challenged the vires of Regulation No, 25 of the Pakistan International Airlines Corporation Employees (Service and Discipline) Regulation, 1985 being violative of the Fundamental Rights provided under the Constitution of the Islamic Republic of Pakistan, 1973 and as such, are illegal, unlawful and of no legal effect.
2. ' The brief facts of the case, according to the petitioner, are as under: ' The petitioner was appointed as a Flight Stewardess in Pakistan International Airlines Corporation
(PIAC) and was posted in the Flight Service Department on a salary of Rs,455 (consolidated) and house rent allowance of Rs,30 in the scale of pay of Rs,350-25-655 with a probationary period of 3 months vide appointment letter dated 22-5-1967. In the appointment letter respondents 2 and 3 had informed the petitioner that it reserves the right to terminate the services of the petitioner at any time without assigning any reason whatsoever by giving one month's notice or salary in lieu of such notice as and when the respondents considered it desirable. The respondents vide their letter dated 13-11-1967 confirmed the petitioner as an Airhostess with effect from 18-5-1967 in the grade of Rs,355-25-655. In the said letter it was also stated that the petitioner's services may be terminated in accordance with the rules governing "unconfirmed employees". Subsequently the petitioner was served with another letter dated 15-11-1972 whereby she was informed that she was appointed as an Airhostess on a contract for a period of three years with effect from 18-5-1967 (vide letter dated 22-5-1967). In this very letter the petitioner was informed that as her employment had expired and the terms of her employment have been fulfilled, the services of the petitioner were terminated with effect from 1-11-1972. It was further stated that without prejudice to the validity of the termination of her employment with respondent 2, the Corporation was prepared to consider her re-employment on permanent basis on the terms and conditions setforth in the letter dated 15-11-1972. In paragraph 2(d) of this letter the terms and conditions of the service of the petitioner were described as the same as Service Code and Management decision notified from time to time.
3. It was further stated that in case the above conditions are acceptable to the petitioner then she should indicate her consent by signing the duplicate copy of the letter and return the same to the respondent. The petitioner accepted the said offer and continued to serve the respondents 2 and 3 and received various letters of her good performance, and in appreciation of her services she was promoted from Pay Group V to Pay Group VI as Senior Purser with effect from 15-10-1979. This promotion was intimated to the petitioner vide letter dated 18-10-1979. In the said letter of promotion the petitioner was required to remain on probation for a period of six months and the confirmation was subject to receipt of satisfactory report from her selection head. Subsequently, the petitioner was confirmed as Sr. Purser with effect from 15-10-1979 vide letter dated 2-6-1981.
4. ' It is submitted by the petitioner that by virtue of the confirmation of the petitioner as a Sr. Purser her duties, functions and assignments stood altered from those of Airhostess to Sr. Purser as she was to supervise the Airhostesses while they performed duties on board and monitor the comfort of the passengers.
5. ' According to the petitioner, the supervisory duties assigned to her as a Sr. Purser eliminates the gender element as a purser could be male or female and she, as a Sr. Purser, was performing the supervisory duties which fall in the same class as that of the male employees of the same Group/Class.
6. ' On 13-6-1990 an Administration Order No, 39 of 1993 was issued by and on behalf of respondents Nos. 2 and 3 whereby Regulation No, 25(2) of the respondents' rules and regulations were amended and according to the said Regulation, it was ordered as follows: "Regulation 25(2)(a).--All employees other than Airhostess shall retire from service of the Corporation on completion of the sixtieth year of age.
(b) An `Airhostess' shall retire from service on completion of 35th year of her age, unless the competent authority, may, in the interest of the Corporation direct that she will retire from service on such date before or up to the completion of the fortieth year of her age."
7. ' According to the petitioner, this Regulation though provides that "An Airhostess" shall stand retired after attaining the age of 40 years," the same is being applied to her in spite of the fact that she is holding a post of "Senior Purser" in Group VI. The petitioner has contended that she is being discriminated on the basis of sex as all other employees of respondents Nos. 2 and 3 were required to retire from the service of the Corporation on completion of the sixtieth year of age while the petitioner has been specified to retire on her being 40 years of age.
8. ' During the course of arguments the learned counsel for the respondents Nos.
2. And 3, Mr. G.M. Qureshi has supplied us a copy of Administration Order No, 20 of 1991, according to which the Management has approved to revise "the retiring age" of Female Cabin Crew from 35 years already extendable to 40 years to 45 years non-extendable." According to him, since the petitioner falls under the category of "Female Cabin Crew", she stands retired at the age of 45 years.
9. ' Mr. Abdul Hafeez Pirzada, learned counsel for the petitioner, has argued that Regulation 25 of PIAC Employees (Service and Discipline) Regulations, 1985 is not in conformity with Constitutional laws and transgresses the limits and therefore is' ultra vires of Article 25 of the Constitution and the same is illegal, without lawful authority and of no legal effect. He has also taken the ground that the petitioner is being discriminated and victimised on the basis of sex, being female, which is ultra vires of Article 25(2) of the Constitution.
10. ' According to him, sections 30 and 31 of the PIAC Act (Act XIX of 1956) (Pakistan Code Volume XII) provides the framing of the PIAC regulations by the Board of Directors pursuant to the powers as contained in section 30 which provides that for framing such regulation the same are required to have a previous sanction of the Federal Government which are required to be gazetted and be laid before the National Assembly in terms of section 31 of the Act. According to the learned counsel, the very Administration Order 35/90, spelling out Regulation 25(2) with regard to retirement age of PIA employees, which are brought in line with the amendment in section 13 of the Civil Servants' Act, is violative of the amendment made in section 13 of the Civil Servants Act as the retirement age of Senior Purser neither have a previous sanction of the Federal Government, nor the same has been gazetted and/or placed before the National Assembly.
11. ' It is further submitted by the counsel for the petitioner that once the petitioner has passed from Group V to Group VI as a Sr. Purser, the gender 'element having gone away, the same age limit will be applicable to her as that of other male Sr. Pursers. He has argued that while the petitioner was in Group IV as Airhostess, she was allowed to participate in Union Activities, but - once she has moved from Group IV to Group VI, she had to stop participating in the Union activities. This shows that having achieved the post of a supervisory nature, where there is no element of sex mentioned either in description or otherwise, she is to be treated at par alongwith the other male colleagues whether it is a question of duties or a question of the age of superannuation. The petitioner has prayed as under: "(a) Declare that Regulation 25 of the Pakistan International Airlines Corporation Employees (Service and Regulations) is ultra vires of Article 25 of the Constitution of the Islamic Republic of Pakistan.
(b) declare that the petitioner cannot be retired up her exceeding the age of forty-five years and is further entitled to serve the Corporation of the respondents Nos. 2 and 3 up to her age of superannuation if she is otherwise capable of performing her normal duties.
(c) restrain the respondents, their servants, agents and all persons acting through or under them from retiring the petitioner from her service as an Airhostess with the Corporation of the respondents Nos. 2 and 3.
(d) declare that the petitioner cannot be discriminated on the basis of her sex being a female.
12. (d-1)declare that the order of retirement dated 16-1-1992 to be illegal, unlawful and of no legal effect and further direct the respondent to dig the petitioner into service without any break in her service career.
(e) To grant cost of the petition.
(f) To grant any other relief or reliefs as deemed fit and proper in the circumstances of the case."
13. ' The learned counsel for the petitioner has relied on the case of Shahabuddin Haider v. Chairman, PIAC and others (PLD 1992 SC 532). In the said case where an employee of PIAC had filed an appeal against his removal from service. The said employee was served with a show-cause notice under section 10(2) of the Act of the PIAC Employees (Service and Discipline) Regulation, 1985 and Regulation 1988, stating therein that: "the competent Authority being satisfied that reasonable grounds exist for removing/retiring them from the service of the Corporation, it proposes to remove them from the service of the Corporation after giving them an opportunity of being heard in person and payment of wages for the period of 90 days."
14. ' The employees/appellants took, amongst other, the following plea: ' That section 10(2) is violative of the fundamental rights guaranteed by the Constitution as well as of the Islamic concept of justice."
15. ' The learned counsel has also relied on the case of Inamur Rehman v. Federation of Pakistan (1992 SCM R 563) wherein it was held as under: "The cardinal principle of interpretation is that law should be saved rather than destroyed and the Court must lean in favour of upholding the Constitutionality of a legislation. (Mehreen Zaibun Nisa v. Land Commissioner, Multan PLD 1975 SC 397. There can be no cavil against this proposition as it is well-recognised rule of Constitutional interpretation that there is a presumption in favour of the Constitutionality of a legislative enactment but if there is on the face of a statute no classification at all and no visible differentia, with reference to the object of the enactment as regards the person or persons subjected to its provisions, then the presumption is displaced. We cannot be asked to presume that there must be some undisclosed or unknown reasons for subjecting certain individuals to discriminatory treatment, for, in that case we will be making a travesty of the fundamental right of equality before law enshrined in the Constitution. Reference was also made by him to Jibendra Kishore v. Province of East Pakistan PLD 1957 SC (Pak.) 9; Waris Meah v. The State PLD 1957 SC (Pak.)
157. The propositions relied upon are also undisputed that equality before law as contemplated by Article 25 does not mean equality of operation of legislation upon all citizens of the State. But in this case it has been demonstrated that certain individuals or a group of people, without any rational basis have been denied the equal protection of law in the matter of litigation available to the generality of the other citizens of the State."
16. ' The Hon'ble Court was further pleased to hold that: "We have already referred to the dictum laid down by this Court in Abul Maudoodi v. Government of West Pakistan PLD 1964 SC 673 to the effect that where certain rights which are violated are still capable of being in force and there was something still left to be done under the impugned legislation when the fundamental rights have been restored, then the Court would be bound to give effect to such fundamental rights and save a citizen from being denied the benefit of the same."
17. ' According to the learned counsel now that the fundamental rights have been restored the action ofthe PIAC in the present case is void, and unconstitutional as it violates Article 25 of the Constitution.
18. ' The learned counsel has also relied on the case of Darshan Masih v. The State (PLD 1990 SC 513 and 621) and on the case of Ghulam Sarwar Naqvi (PLD 1990 SC 1), wherein leave to appeal was granted to consider whether co-sharer, who is brother, could claim adverse possession against his sister and oust her from inheritance. The Hon'ble Court, quoting the last Khutba of the Holy Prophet (Peace be upon Him) observed: "One injunction clearly prescribed that men have rights quo women and they have similar rights qua men."
19. ' The Hon'ble Court had observed that: ' For further study of similar questions reference may be made to the Sunnah injunction contained in the 'Sayings of Muhammad' (Peace be upon Him) edited and translated by Mirza Abu'l Fadl and recently published by the National Hijra Centenary Committee with an illuminating detailed forward by late Mr. A.K. Brohi; together with a ;meaningful introduction."
20. ' In short it was observed that it is duty of the State to protect the women and children and not to deprive them of their rights.
21. ' In the case of Darshan Masih (supra), it was observed by the Hon'ble Court that: "Article 25 relating to equality, particularly in the protection of law and bar against discrimination on the basis of sex, as also the safeguards for women and children, amongst others, are applicable to the various aspects of the matter. However, it is a different matter that fundamental rights are more directly attracted than the other and some elements involved in any one of them are relevant while the others are meant for other situations."
22. ' The learned counsel has also relied on the case of Government of Balochistan v. Azizullah Memon and others (PLD 1993 SC 341), where their Lordships have held: "Thus, the substantive and procedural law and action taken under it can be challenged as violative of Articles 8 and 25."
23. ' There should be a nexus between the classification and the objects of the Act. This principle symbolises that persons or things similarly situated cannot be distinguished or discriminated while making or applying the law. It has to be applied equally to persons situated similarly and in the same situation. Any law made or action taken in violation of these principles is liable to be struck. If the law clothes any statutory authority or functionary with unguided and arbitrary powers enabling it to administer in a discriminatory manner, such law and action taken under it can be challenged as violative of Articles 8 and 25."
24. ' It was also argued by the learned counsel that the PIAC Rules do not have statutory force as they were not placed before the National Assembly. According to him, although the injunction was granted by the Court, still the respondent proceeded to retire the petitioner.
25. ' We have heard the arguments of the learned counsel of both the petitioner and the respondents and have perused the documents on the record. We also enquired from Mr. G.M. Qureshi, the learned counsel for the respondents Nos. 2 and 3, if the words "Female Cabin Crew" has been defined anywhere in the respondents' Rules, but this is not the case.
26. ' It is an admitted fact that the petitioner had been serving with the respondents with a clean record and as such she was re-employed on contract, confirmed and promoted as Senior Purser and continued till she was retired forcibly. The respondents have nowhere shown any other ground except that the petitioner being a female purser, is forced to retire at the age of 45 years. The action of the respondents is in clear violation of Articles 25 and 27 of the Constitution as both the Articles guarantee that: "(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 ' and ' Article 27 which safeguards against discrimination in services."
27. No doubt the Regulations framed by PIAC do not have a statutory force. They can, however, be treated as departmental instructions and, therefore, are binding on the respondents Nos. 2 and 3.
28. In the present case, the change pertaining to the terms and conditions of the service of petitioner to her disadvantage, which cannot be done in an arbitrary manner. Reliance may be placed on the case of Mst. Amina Rehman v. PIAC (Civil Appeal No, 238-K of 1992) decided by the Supreme Court of Pakistan on 28-11-1993.
29. ' In view of the Articles 25 and 27 and the law laid down by the Supreme Court, we have no doubt in our mind that this is a clear case of discrimination on the basis of sex and sex alone. The petition is allowed as prayed with no order as to costs.
30. ' The above are the reasons in support of the short order announced in Court on 22-8-1994.