Ch. Muhammad Ibrahim Zia, J.-- This appeal by leave of the Court is filed from the judgment of the High Court dated 23.12.2015 through which the writ petition filed by appellant, herein, has been dismissed.
2. The facts of the case are that the appellant, herein, filed a writ petition before the High Court claiming therein that the Government of Azad Jammu and Kashmir vide notification dated 20.06.2005 directed all the departments of Civil Services to secure the quota reserved for disabled persons but Education Department issued the advertisement dated 10.11.2015 in violation of said notification. In the advertisement dated 10.11.2015, no quota for disabled persons has been incorporated The appellant prayed that the advertisement dated 10.11.2015 may kindly be declared as illegal. She also sought a direction for calculation of quota of disabled persons for the post of Junior Teacher in accordance with law. The learned High Court after necessary proceedings, dismissed the writ petition in limine through the impugned judgment.
3. Raja Sajjad Ahmed Khan, Advocate, the learned counsel for the appellant submitted that through the impugned judgment the learned single Judge of the High Court has dismissed the writ petition in limine. The conclusion drawn appears to be based on misconception of facts and the legal propositions involved in this case. According to the nature of the case, the comments on behalf of Azad Jammu and Kashmir Government are of vital importance but no comments on behalf of Azad Government have been filed. The comments have been filed only by the Divisional Director Education Elementary and Secondary (Female), Muzaffarabad Division. This aspect has also not been properly appreciated by the learned Judge that without filing of comments on behalf of necessary party the disposal of writ petition may result into miscarriage of justice. He further argued that it has also been misconceived that the appellant has marginalized the subject-matter only to the extent of District Neelum, whereas, the fact is that the appellant has prayed for implementation of Government notification as a whole without restriction to the extent of any District. In the comments filed by the Divisional Director Education, the factual proposition of 2% quota of disabled persons has been admitted. According to the notification, the Government has formulated a policy that all the departments on the strength of total available vacancies shall calculate the quota of disabled persons, whereas, the impugned order of the High Court clearly connotes that calculation of 2% quota of disabled persons shall be made on District level which is neither consistent with the Government policy nor the facts averred in the writ petition, therefore, the impugned judgment is not maintainable. He further submitted that it is now almost universally accepted and established principle of law that the disabled persons have right of special accommodation in the service. Thus, without proper application of judicial mind and appreciation of the propositions involved in this case, dismissal of writ petition in limine is unwarranted, and against the principle of law. This Court in number of cases relating to quota fixed for different classes has laid down the principle of law that the concerned authorities have to strictly adhere to the quota and violation is not allowed. The recent latest judgment has been handed down in the case titled Saadia Shamshad and others vs. The Secretary Education & others (Civil Appeal No. 245/15 decided on 23.11.2015), wherein, the proposition of teachers' son quota was involved. He further submitted that there is plethora of judgments on the subject.
Reference may be made to Faisal Iqbal vs. Deputy Director Commercial & others [2014 SCR 553], Mushtaq Ahmed vs. Agriculture Department and others [2004 SCR 293], Shafqat Hayat vs. Muhammad Shahid Ashraf & others [2005 SCR 57], Mubarik Hussain vs. Azad Jammu and Kashmir Public Service Commission & others [2005 SCR 93]. Therefore, while accepting this appeal and recalling the impugned judgment, the writ petition may be admitted for regular hearing.
4. Conversely, Ch. Shoukat Aziz, Additional Advocate-General, the learned counsel for the respondents submitted that the impugned judgment is quite legal one and consistent with the statutory provisions of law. No doubt 2% quota for disabled person in the service is fixed but at the same time it has to be calculated according to number of posts. It has been rightly observed that if the number of posts is below 50 the question of implementation of 2% quota does not arise as the petitioner has failed to bring on record the facts and figures justifying that there has been any violation of 2% quota. He further submitted that after due compliance of law and advertisement of the posts, the candidates have been selected merit in whose favour legal rights have been accrued but due to interim injunction in this litigation they are suffering and despite selection on merit they could not get the fruit of their eligibility. Moreover, they have also not been arrayed as party, therefore, the restriction on issuance of appointment order by interim injunction is required to be removed and this appeal is liable to be dismissed.
5. We have considered the arguments of the learned counsel for the parties and also gone through the record made available. It is now almost settled that the Government notification or policy laid down regarding quota in the service fixed for different classes, has to be strictly adhered to and implemented. The main proposition involved in this case is implementation of 2% quota for disabled persons in the light of policy laid down by the Government vide notification dated 20.06.2005. The examination of record reveals that only Divisional Director Elementary & Secondary Education (Female) has submitted the comments through which some facts relating to junior teachers (general line) posts of District Neelum have been brought on record whereas, prima facie, according to the phraseology of the notification dated 20.06.2005, the calculation of quota has to be made on the strength of the available vacancies as a whole in the department. The learned High Court while attending this aspect has observed that as the appellant-petitioner has only furnished the detail of the posts relating to the District Neelum, therefore, she has marginalized the subject matter only to the extent of District Neelum, hence, the petition is not maintainable. In our opinion, at preliminary stage, in view of the phraseology of the notification dated 20.06.2005, such conclusive observation by itself is not a proper course. The appellant-petitioner has approached the Court for issuance of direction for implementation of notification dated 20.06.2005. According to this notification, it is the duty of the department to determine the correct quota of disabled persons and in case of failure, the selection authority, such like Public Service Commission, may return the requisition, thus, while taking into consideration the phraseology of the notification as a whole, it is the duty of the respondents to satisfy the Court regarding the determination of quota of disabled persons. As it has also been observed that on behalf of Government or department neither any comments have been filed nor any facts and figures have been bought on record.
Prima facie, the appellant has an arguable case so the dismissal of writ petition in limine is not proper.
6. It appears that while dismissing the writ petition in limine, the learned High Court has mainly relied upon the comments filed by the Divisional Director in which the posts of junior teachers (general line) advertised through advertisements (annexed with the writ petition as Annexure "PC" and "PC/4") have been referred, whereas, the other advertisements, specially, regarding the posts of primary teachers (annexed as "PC/1", "PC/2", "PC/3" and "PC/5"), have not been considered.
Moreover, the appellant has not specifically claimed implementation of the notification only to the extent junior teachers rather her claim is against the posts of all cadres which also include the posts of primary teachers. These facts and documents have not been properly appreciated by the High Court.
7. So for as the argument of the learned counsel for the respondents regarding the filling of advertised vacancies of the junior teachers (general line) is concerned, it has weight as the candidates who appeared in response to the advertisement have not been arrayed as party in this petition, moreover, it has yet to be established that whether any post of junior teachers (general line) for disabled person is available or not? In case of availability of the post of disabled persons, it is also yet to be determined that at which level the quota of disabled persons has to be implemented, therefore, in this state of affairs the candidates who have been selected on merit in due course of law cannot be deprived of their legal right. Thus, the authority may take necessary steps for filing the advertised vacancies. However, it is further clarified that in case of availability of the post of disabled person, it has to be separately advertised and in that case the authority will be bound to appoint the candidate selected in due course of law.
8. Although, for doing complete justice, this Court has power to decide the matter itself in case of availability of necessary material but as the writ petition has been dismissed in limine and the parties have not been provided an opportunity to bring on record the necessary material relating to the subject matter by filing written objections and replication etc., therefore, only option left with us is to remand the matter to the High Court. As in the light of the principle of law enunciated by this Court in a number of cases, the quota fixed for different classes has to be strictly adhered to and in this case the implementation of 2% quota of disabled person is involved which appears to be legal proposition of public importance and requires detailed deliberation, therefore, for consideration of the propositions involved the writ petition is admitted for regular hearing while recalling the impugned judgment. Consequently, the writ petition is remanded to the High Court for deciding the same on merits according to law after completion of required proceeding of filing the written statement, replication etc., if so required and hearing the parties.
For the above stated reasons this appeal stands accepted with no order as to costs.