Justice Syed Mansoor Ali Shah. PHOTO: LHC
ISLAMABAD:
The Supreme Court, setting aside a K-P service tribunal order, has ruled that marriage could not deprive a woman from appointment under quota reserved for the children of civil servants who die or become incapacitated while in service.
“If a son’s marriage does not disqualify him or interrupt the flow of financial benefit to the family, there is no rational basis to hold that a daughter’s marriage should have that effect,” says a 10-page judgement authored by Justice Syed Mansoor Ali while directing the department concerned to restore the petitioner’s appointment with all back-benefits.
He wrote the judgment while adjudicating a question: whether marriage can disqualify a daughter from appointment under the quota reserved for the children of civil servants who die or become incapacitated while in service.
“The relief contemplated by the Rule flows to the family through the appointed child — whether son or daughter — and the daughter’s marital status bears no nexus to the object of the rule. Any interpretation that denies her this opportunity offends the guarantees of equality and non-discrimination under Articles 25 and 27 of the Constitution and perpetuates a stereotype the Constitution itself rejects,” reads the judgement.
The mother of the petitioner, Farakh Naz, was an employee at the Education Department, Government of K-P, who retired from service on medical grounds on April 27, 2022. As a consequence, the petitioner was appointed as a Primary School Teacher (Basic Pay Scale-12) at Government Girls Primary School, Tatar Khel, District Karak, Khyber-Pakhtunkhwa, under the deceased or incapacitated employee’s quota under Rule 10(4) of the Khyber-Pakhtunkhwa Civil Servants (Appointment, Promotion, and Transfer) Rules, 1989.
The petitioner was performing her duties, when the District Education Officer, District Karak, suddenly withdrew the petitioner’s appointment order without issuing a show-cause notice by saying that the benefit of appointment under the quota is not available to a female who has contracted marriage.
Petitioner approached K-P Service Tribunal but her plea was dismissed. A division bench of the apex court comprising Justice Shah and Justice Aqeel Ahmad Abbasi has noted that the rule contemplates appointment of a child of a deceased or incapacitated civil servant to provide financial relief to the affected family in recognition of the parent’s service to the state.
“Its purpose is not to assess the dependency or economic condition of individual children but to ensure that the benefit of employment reaches the family of the civil servant who has died or become incapacitated during service.
“In this context, a son and a daughter stand on an equal footing. Both can transmit the intended economic relief to the family, and the choice of either fulfils the object of the Rule. The assumption that a daughter, by reason of her marriage, ceases to be connected with or concerned for her parental family is misconceived and rests on outdated social stereotypes.”
The court has noted that “we must also strongly dispel, once again, the regressive notion reflected in the clarifications issued by the Establishment Department of the Government of Khyber-Pakhtunkhwa, which state that a married woman is no longer “a liability” of her father.
“Such a statement is deeply insensitive, for it unpersons a woman. The very use of the term “liability” to describe a woman reflects a patriarchal rigidity of thought that has no place under our Constitution. We are astonished that such a term could find its way into official correspondence in the 21st century, more so in a republic that constitutionally guarantees equality, dignity, and respect to all its citizens irrespective of gender.
The judgement notes that the Constitution is gender-neutral in its recognition of fundamental rights and does not draw a distinction between a man and a woman, or a son and a daughter, in the enjoyment of their entitlements (Article 25).
“Indeed, it goes further and consciously discriminates in favour of women by directing the State to take special measures for their protection and advancement (Articles 25, 27, and 34).”
“This constitutional framework acknowledges that women have historically faced systemic disadvantage and therefore deserve additional support to ensure substantive equality. Yet, despite this constitutional protection, the petitioner has been denied her rightful claim to the quota reserved for the children of a deceased or incapacitated parent on the ground of her marriage — a denial that stands in stark contradiction to both the text and spirit of the Constitution.”
