Judge Syed Mansoor Ali Shah. PHOTO: LHC
ISLAMABAD:
The Supreme Court, setting aside a KP service tribunal order, has ruled that marriage cannot disqualify a woman from being appointed under quota reserved for children of civil servants who die or become incapacitated while in service.
“If a son’s marriage does not disqualify him or cut off the flow of financial benefits to the family, there is no rational basis for assuming that a daughter’s marriage should have that effect,” a 10-page judgment authored by Justice Syed Mansoor Ali said, while directing the concerned department to restore the petitioner’s appointment with all back pay.
He wrote the judgment while adjudicating a question: whether marriage can disqualify a daughter from being appointed under the quota reserved for children of civil servants who die or become incapacitated while in service.
“The relief contemplated by the rule flows to the family through the designated child – whether son or daughter – and the daughter’s marital status has no bearing on the purpose of the rule. Any interpretation denying her this option violates the guarantees of equality and non-discrimination under Articles 25 and 27 of the Constitution and construes the Constitution itself as a stereotype,” the Constitution says.
The petitioner’s mother, Farakh Naz, was an employee of the Education Department, Government of KP, who retired from service on medical grounds on 27th April 2022. The petitioner was consequently appointed as Primary School Teacher (Basic Pay Scale-12) at Government Girls Primary School, Tatar Khel, de Pakhhyber District, or Karakh Khel, District Karakkhwaber District, or incapacitated employees’ quota under Rule 10(4) of Khyber-Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer), 1989.
The petitioner was performing his duties when the District Education Officer, District Karak, suddenly withdrew the petitioner’s order of appointment without issuing a show cause notice by saying that the benefit of appointment under the quota is not available to a woman who has entered into marriage.
The petitioner approached the KP Service Tribunal but her plea was rejected. A division bench of the apex court comprising Justice Shah and Justice Aqeel Ahmad Abbasi observed that the rule contemplates appointing a child of a deceased or incapacitated public servant to provide financial assistance to the concerned family in recognition of the parent’s service to the state.
“Its purpose is not to assess the dependency or financial condition of individual children, but to ensure that the benefits of employment reach the family of the serviceman who has died or become incapacitated during service.
“In this context, a son and a daughter are on an equal footing. Both can transfer the intended financial relief to the family, and the choice of either fulfills the purpose of the rule. The assumption that a daughter, because of her marriage, ceases to be associated with or care about her parental family is misconceived and rests on outdated social stereotypes.”
The court observed that “we must once again strongly dispel the regressive view reflected in the clarifications issued by the Establishment Division of the Government of Khyber-Pakhtunkhwa which states that a married woman is no longer ‘a duty’ to her father.”
“Such a statement is profoundly insensitive because it depersonalizes a woman. The very use of the term ‘responsibility’ to describe a woman reflects a patriarchal rigidity of thought that has no place under our Constitution. We are amazed that such a term could find its way into official correspondence in the 21st century, more so in a republic that respects constitutional dignity, respect for all citizens, and respects the respect and quality of all its citizens. gender.
The judgment notes that the constitution is gender neutral in its recognition of fundamental rights and does not differentiate between a man and a woman or a son and a daughter in the enjoyment of their rights (Article 25).
“Indeed, it goes further and deliberately discriminates in favor of women by requiring the State to take special measures for their protection and promotion (Articles 25, 27 and 34).”
“This constitutional framework recognizes that women have historically faced systemic disadvantages and therefore deserve additional support to ensure real equality. Yet, despite this constitutional protection, the petitioner has been denied her rightful claim to the quota reserved for children of a deceased or incapacitated parent because of a denial of her marriage which is both inconsistent with and contrary to the spirit of her constitution.”
