' ZAHID KURBAN ALAVI, J.---By a short order we had allowed the above petitions and the following are the reasons for the same.
2. Briefly the facts of the case in all the petitions are that the petitioners are the members of the Cabin Crew (Female) in the Pakistan International Airlines Corporation. They have been recruited and are guided by the Employees Services and Discipline Regulation. Apparently a Regulation No,25 was passed which created a restriction on the number of years that the Cabin Crew shall serve whereafter she shall be retired. Through this regulation she was to retire on attaining 35 years age, however, provision was given for extension up to 40th years. On the other hand all male crew members who served on the same Air Lines would retire on attaining the age of 60 years. This formed the basis of the case of Shirin Dokht v. Government of Pakistan which was thereafter reported in 1995 PLC (C.S.) 251. In this reported case the learned Division Bench came to the conclusion, which is as follows:-- "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.
' No doubt the Regulation framed by P.I.A.C. 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. 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. Arnim Rehman v. P.I.A.C. (Civil Appeal No,238-K of 1992) decided by the Supreme Court of Pakistan on 28-11-1993.
' 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 cut case of discrimination on the basis of sex and sex alone. The petition is allowed as prayed with no order as to costs.
' The above are the reasons in support of the short order announced in Court on 22-8-1994. Petition accepted."
3. An appeal was filed by the respondent against this judgment before the Hon'ble Supreme Court but it was withdrawn, and therefore, for all practical purposes the case is on all fours and hence binding upon the respondents.
4. Apparently in spite of the decision mentioned above the respondents have decided to retire the petitioners as according to the petitioner the judgment of the Division Bench mentioned above pertained to the individual petitioner and was not applicable to the present petitioners. A circular was issued, dated 2nd March, 1998 by the Administrative Manager which has stated clearly that the P.I.A. Management recommended to the Board of Directors for enhancing the retirement age from 45 to 50 but the Board did not consider the same and were of the opinion that they should be retired at the age of 40 years. Apparently there is certain confusion prevailing internally with the respondent No,1 which has led to this decision. Interestingly enough, the Administration has continuously talked of the legal position but the minutes from the. Legal Department, dated 5th January, 1999 clearly reflects mala fide on the part of the respondent No, 1 . They have realized that they should have continued to challenge the decision of the Sindh High Court before the Hon'ble Supreme Court and that there was technical mistake of withdrawing the case from the Hon'ble Supreme Court. They now feel that the present petition would give them a good opportunity to challenge this matter once again before the Hon'ble Supreme Court on the presumption that the Sindh High Court would allow this petition. In this way they would be able to perhaps rectify the position and ensure that they could retire the ladies. It would be appropriate to reproduce the observation of the General-Manager of Legal Services.
"Having considered this matter carefully, we are of the opinion that in the matter of retirement age of female Cabin Crew the relevant Rule as well as the decision of the Board in the 21st meeting should be upheld by maintaining the retirement age at 45 years. Further, all the female Cabin Crew who have already attained the age of (sic) retired from service with immediate effect with all applicable terminal benefits. It is almost certain that all of them will follow the example of Miss Shirin Dokht and relying on the judgment dated 89-1991 of, the Sindh High Court approach the said Court by way of a Constitutional petition alleging discrimination on the basis of sex and claiming that their retirement was in contravention of Articles 25 and 27 of the Constitution. It is likely that the Sindh High Court may grant them relief by following its judgment in the case of Miss Shirin Dokht. In that case, it will be a fit case to go on to the Supreme Court by way of a Civil Petition for Leave to Appeal which is likely to be admitted for regular hearing and eventually granted. The last word on the retirement age of the female Cabin Crew is to be delivered by the Honourable Supreme Court and since in a number of cases it has already been held that classification of different employees for Department at different age levels was not discriminatory or in contravention of Articles 25 and 27 of the Constitution. We are of the opinion that P.I.A. Would have a fair chance of success in the apex Court."
5. We are shocked at the attitude of top personal of the Airlines of our country and the type of people who run it and their thinking. The thinking should be based upon rational approach to resolving the problems of the subordinates. Time and again this High Court is burdened with work purely on account of myopic thinking of the agencies and the petitioners do not have a choice but to approach Courts of law to get relief. It is also noted with certain concern that, orders passed by this Court are not allowed to be implemented in fact at times it has come to our knowledge that the orders are blatantly violated. A Division Bench of this Court had already given a decision where the principle of discrimination has been clearly decided. Perhaps the respondents should obtained legal opinion from sources that believe in legal and just disposition of law. Indeed one cannot but look on this whole scenario and come to simple conclusion of clear cut mala fide.
6. Even during the course of the arguments the learned counsel appearing on behalf of the respondent refused to dilate on the merits of the case and insisted that the matter should be decided by the Service Tribunal. Time and again we are confronted with such type of arguments where great emphasis is laid on the fact that the High Courts have no jurisdiction to look into the matter by virtue of an enactment.
7. On the merits of the case the counsel for the respondents has not put forward any arguments. In fact he has confined his arguments to the fact that this Court has no jurisdiction as the case falls within the ambit of Service Tribunal. In this respect, the learned counsel insisted that there are citations of several Courts including the case of Asadullah Rashid v. Haji Muhammad Munir (1998 SCMR 2129) where it was held that even if the order falls within the ambit of mala fide, ultra vires or corum non judice it was challengable before the Service Tribunal and jurisdiction of Civil Courts was barred under Article 212 of the Constitution of the Islamic Republic. Of Pakistan, 1973. This judgment was passed by a three-member Bench of the Hon'ble Supreme Court. Against this the counsel appearing on behalf of the petitioners has relied upon the case of Benazir Bhutto v.
Federation of Pakistan (PLD 1988 SC 416), which is a Full Bench judgment where the scope of Articles 199 and 184(3) of the Constitution have been discussed at length. In this judgment while discussing public interest litigation and litigation involving important public issues the Hon'ble Supreme Court has observed that the scope of Article 199 is wider and there is no prescribed limitation to its jurisdiction. The learned counsel has also relied on the famous case of I.A. Sherwani v. Government of Pakistan (1991 SCMR 141). This was a judgment given by a six-member Bench where they have discussed at length Article 212 of the Constitution. In the lengthy discussion they have held that the provisions of Services Tribunal Act can only be invoked against a final order and where no such final order exists but where vires of a Rule or Regulation is challenged then the Courts would have jurisdiction. They have further observed that all citizens are equal before Law and are entitled to equal protection of law. The principles of equal protection have been given in detail in the said judgment. In the case of Dr. Muhammad Tahir Achakzai v. Government of Baluchistan (1999 SCMR 1689) once again the Hon'ble Supreme Court has observed that the question regarding vires of a service rule cannot be taken up by Service Tribunal.
8. In several other unreported cases pertaining to this Court Division Benches have held that indeed matters pertaining to the Service Rules or the terms and conditions of service should be referred to the Service Tribunal but they have also observed that this can only be done when a final order is passed. Any matter that is challenged by way of an appeal has to have a final order passed. If no such final order exists and merely an enactment or a general act and its vires are challenged then this Court would have jurisdiction.
9. Considering the above decisions, we are of the view that we have jurisdiction to hear this matter as the petitioner has assailed Regulation 25 of the Pakistan International Airlines Corporation