Amir Hani Muslim, J.--This appeal, by leave of the Court, is directed against judgment dated 6.7.2010 passed by a learned Division Bench of the Lahore High Court, Lahore, whereby the Intra Court appeal filed by the Respondent No, 1 was allowed.
2. Brief facts of the case are that the Respondent No, 1, being blind, applied for the post of Subject Specialist (Female) BS-17 advertised by the appellant on 18.2.2007, under 2% quota reserved for disabled. In the said advertisement total number of posts was shown as 238 while the seats reserved for disabled were only 5. The appellant qualified the written test and was also called for viva voce. After conduct of interview, a merit list was raised and the Respondent No, 1 was placed at Serial No, 11 of the list. The appellant recommended candidates at Serial No, 1 to 5 (Respondents No, 2 to 6) of the list for appointment as subject specialist because there were only 5 posts reserved for disabled females. The Respondent No, 1 could not succeed in getting her appointment.
3. Being aggrieved, the Respondent No, 1 filed Writ Petition No, 9931 of 2009 which was dismissed.
She assailed the said judgment in Intra Court Appeal, which was allowed by a learned Division Bench of the Lahore High Court, by the impugned judgment.
4. Leave to appeal was granted by this Court on 28.3.2001 to consider, inter alia, "as to whether the merit list prepared on the basis of which Respondents No, 2 to 6 have been appointed and Respondent No, 1 ignored, is violative of the relevant instructions and rules and whether the learned High Court, could in constitutional jurisdiction issue direction for appointment of Respondent No, 1 over and above the 2% quota reserved for the disabled."
5. The learned Additional Advocate General, submits that inter se merit of disabled female candidates was prepared in conformity with the instructions and guidelines issued from time to time by the appellant. He further submits that the Respondent No, 1 was placed at Serial No, 11 of the list whereas the seats reserved for disabled were only 5. The appellant rightly recommended Respondents No, 2 to 6 for appointment as they were above than the Respondent No, 1 in order of merit. It was next contended that the learned High Court has wrongly directed the appellant to accommodate the Respondent No, 1 for appointment as Subject Specialist overlooking her merit position.
6. As against this, the learned counsel for Respondent No, 1 has contended that the Respondent No, 1 was not provided services of amanuensis of her choice in time. He further contended that she was not allowed 45 minutes extra time which was requirement in her case as she was completely blind.
According to the learned counsel if services of amanuensis of her choice were provided in time she would have secured more marks in the written test. He, in support of the impugned judgment, has submitted that in such like circumstances, the learned High Court was justified in directing the appellant to recommend Respondent No, 1 for appointment as Subject Specialist.
7. We have heard the learned counsel for the parties and have perused the available record. During hearing of the case, we required the representative of the appellant to place before us the policy under which they have appointed disabled candidates. We also directed him to place before us the entire record of the examination pertaining to the Respondent No 1. We were informed that original record is not available as the case pertained to the year 2007. According to the representative of the appellant the guidelines were incorporated in the advertisement itself. He has placed before us the chart in which the detail of the marks secured by the disabled candidates, who qualified the interview in various subjects for the post of Subject Specialist BS-17 (Female) has been given. On examination of list, we find that Respondents No, 2 to '6 namely Mst. Shazia Aslam d/o Aslam Khan, Sadia Rashid d/o Rashid Ahmad Mian, Rehana Balqees d/o Haq Nawaz, Tahira Rafique d/o Rafique Ahmed and Mst. Farzana d/o Muhammad Ali have obtained more marks than the Respondent No, 1 and in between the Respondents No, 2 to 6 and the Respondent No, 1, candidates namely Rahat Mukhtar d/o Mukhtar Ahmed, Batool Farhat d/o Syed Rang Shah, Sobia Rabbani d/o Ghulam Rabbi and Shahnaz Saeed d/o Saeed Ahmad have also secured higher marks than the Respondent No, 1 Mst. Aisha Nawaz d/o Ahmad Nawaz. It is not the case of the respondent that marks she has secured were more than the marks of those candidates who are not a party to these proceedings, and on merit she was placed at Serial No, 6, The Respondent No, 1, who has been directed to be accommodated by the impugned judgment, ought to have placed on record the material before the learned High Court reflecting that her merit was above than the candidates who were appointed by the appellant.
8. The case of Respondent No, 1 revolves around the issue of non-providing of amanuensis and granting her concession on the ground of serious disability. It appears that the learned Division Bench of the High Court was influenced by the guidelines and instructions for District Assessment Board for Rehabilitation of the Physically Disabled, while recommending the appointment of the Respondent No,
1. These guidelines and instructions issued by the Board were independent and degree of disability was not made criterion for appointment of Subject Specialist either in the advertisement or otherwise. It merely provided that the person who claims any concession on disability should obtain such certificate. In the present case, the Respondent No, 1 was completely blind and those candidates who were recommended for appointment did not have the same degree of disability which the Respondent No, 1 has.
9. In this respect, the appellant must formulate rates and policy wherein it should also keep into consideration the degree of disability while providing opportunity to disabled persons for appointment against different posts. The case of the Respondent No, 1, whose merit was at Serial No, 11, cannot be given preference in the manner by equating him at par with the Respondents No, 2 to 6 who have already been appointed as their names appeared at Serial Nos, 1 to 5 of the merit list ignoring other disabled candidates who have secured more marks than the Respondent No, 1 and on merit list they were placed at Serial Nos, 6 to 10.The contention of the learned counsel that if the Respondent No, 1 was provided the services of amanuensis and extra 45 minutes, she would have secured more marks. Such a plea was neither raised by the Respondent No, 1 in her writ petition nor in the Intra. Court Appeal. Therefore, we cannot allow her counsel to raise this plea at this stage. Even otherwise, we cannot, on presumption, recommend a candidate to be appointed on such a plea. We also cannot substitute the policy of the Government in such like matters by introducing a new formula to the disadvantage of the rest of the candidates who were declared successful by securing more marks.
The policy of the Government cannot be interfered with unless it is shown that such policy was violative of the fundamental rights. We do not find any justification in maintaining the impugned judgment of the learned High Court, which is not legally sustainable for reasons stated hereinabove.
11.The above are the reasons for our short order dated 23.6.2011, by which the appeal was allowed and the impugned judgment of the Lahore High Court was set aside.