"It is not the eyes that are blind, but the hearts"
Holy Quran (22:46)
' Petitioner has permanent visual impairment or Bilateral Permanent Blindness which in ordinary parlance means that the petitioner is physically blind.' This disability did not dissuade the petitioner from becoming a Hafiz-e-Quran and pursing higher education and successfully obtaining Bachelor of Arts (Honours) in English from Forman Christian College, Lahore in the year 2012. He also holds a Braille Proficiency Certificate from the Directorate of Special Education, Government of Pakistan dated 26-2-2016. According to the Disability Certificate dated 17-12-2016 the Assessment Board for the Disabled Persons' has recommended that the petitioner is "fit for job consistent with his experience."
2. In response to a public advertisement in the year 2013, for the entry test for recruitment of educators, in all districts of Punjab; issued by National Testing Service (NTS) on behalf of School Education Department, Government of Punjab, the petitioner applied {{FOOT NOTE}}
1. As per the Disability Certificate issued by the Assessment Board for the Disabled Persons District Lahore, Social Welfare Women Development and Bait-ul-Maal, Government of Punjab dated 5-5- 2012 read with the Revised Disability Certificate dated 17-12-2016.
2. ,Social Welfare Women Development and Bait-ul-Maal. Government of Punjab. {{FOOT NOTE}} and successfully passed the NTS test. Thereafter, the local government advertised various posts of educators including the post of Senior Elementary School Educator ("SESE"). Having passed the NTS test the petitioner thought that he was eligible to apply for the said post, till he realized that the advertisement itself barred blind persons from applying. Upon further inquiry the petitioner found out that the bar is contained in the "Recruitment Policy-2013 for Educators" ("Recruitment Policy") dated 31.07.2013.
3. The petitioner has challenged the Recruitment Policy before this Court on the ground that the definition of disabled person in the Recruitment Policy is against the definition of a disabled person as given in Section 2(c) of the Disabled Persons (Employment and Rehabilitation) Ordinance, 1981 ("Ordinance"). It is submitted that the petitioner is entitled to be considered on open merit at par with the other candidates and in addition to that a person with disabilities enjoys a 3% special quota under Section 10 of the Ordinance. He submits that the Recruitment Policy is violative of the fundamental rights and hence unconstitutional,
4. Learned Law Officers and the learned counsel for respondent Local Government alongwith the Deputy Secretary, School Education Department, present in Court, submit that it is not possible for a blind teacher to "control the class" or maintain discipline, therefore, he is not eligible to apply for the said post. Furthermore, the right of the petitioner to seek employment has to be proportionately balanced with the rights of the children to get proper education, while the right to education is the dominant right. While supporting the Policy, they submitted that Courts cannot interfere in Policy matters and placed reliance on Executive District Officer (Revenue), District Khushab at Jauharabad and others v. Ijaz Hussain and another (2011 SCMR 1864), Aqsa Manzoor v. University of Health Sciences, Lahore through Vice-Chancellor and 3 others (PLD 2006 Lahore 482), Lt. Muquddus Haider v. Federal Public Service Commission through Chairman, Islamabad (2008 SCMR 773), Punjab Public Service Commission and another v. Mst. Aisha Nawaz and others (2011 SCMR 1602) and Mian Muhammad Afzal v. Province of Punjab and others (2004 SCMR, 1570).
5. I have heard the arguments and have gone through the record, the supporting materials and case law relied upon by the parties.
6. Facts are admitted and have been briefly narrated above. At a subjective level, the question before this Court is the legality of the r f Recruitment Policy that has deprived the petitioner, a blind man, from applying for the post of SESE in spite of having successfully qualified the NTS test, a pre- requisite for applying for the above post. But, viewed objectively, the question of more importance is, whether a person with disabilities, enjoys protection under the Constitution?
7. Taking up the question of maintainability of the petition first. It has been argued by the Respondents that Courts do not interfere in policy matters, hence this Court cannot examine the impugned Recruitment Policy and as a result this petition is not maintainable. Generally, governmental policy is enforceable against a citizen when it is translated into legislation, subordinate legislation or executive' action. Any such legislation or executive action is then subject to judicial review. Policy is, generally, a guideline for the internal working of the Government, however, if the Policy impinges upon the fundamental rights of a citizen, it can be judicial reviewed, like any other legislation or executive action. Reliance is placed on Human Rights Case No, 14392 of 2013 (2014 PTD 243), Messrs AlRaham Travels and Tours (Pvt.) Ltd. v. Ministry of Religious Affairs, Hajj, Zakat and Usher through Secretary and others (2011 SCMR 1621), Messrs Shaheen Cotton Mills, Lahore and another v. Federation of Pakistan, Ministry of Commerce through Secretary and another (PLD 2011 Lahore 120) and Wattan Party through President v. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad and others (PLD 2006 SC 697). It has been argued in this case that the Recruitment Policy has deprived the petitioner of his right to life including right to livelihood, right to dignity and right to equality. Additionally, this case also revolves around interpretation of fundamental rights in the context of persons with disabilities. The case laws relied upon by the learned counsel for the respondents have been considered and have little relevance to the case in hand because they turn on totally different factual matrices. For these reasons, the Court can examine the said Policy and, therefore, the instant petition . Is maintainable.
8. At the very outset it is important to examine the meaning of disability. Disability means lacking one or more physical powers, such as the ability to walk or to coordinate one's movements, as from the effects of a disease or accident, or through mental impairment.' A disabled person under the Ordinance is defined as a person who on account of injury, disease or congenital deformity, is handicapped for `117 undertaking any gainful profession or employment in order to earn his livelihood and includes a person who is blind, deaf, physically {{FOOT NOTE}}
3. Collins English Dictionary Cornplete and Unabridged, 12th Edition 2014 HarperCollins Publishers, quoted at URL http://www.Thefreedictionary.Com/disabled {{FOOT NOTE}} handicapped or mentally retarded.' According to the UN Convention on the Rights of Persons With Disabilities- CRPD" or "Convention") ratified by Pakistan in 2011, persons with disabilities include those who " have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others. Disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others. Disabilities is an umbrella term, covering impairments, activity limitations, and participation restrictions. An impairment is a problem in body function or structure; an activity limitation is a. Difficulty encountered by an individual in executing a task or action; while a participation restriction is a problem experienced by an individual in involvement in life situations. Disability is thus not jst a health problem. It is a complex phenomenon, reflective interaction between features of a persons's body and features of the society in which he or she lives.'
9. As a matter of ,background, around 10 per cent of the world's population, or 650 million people, live with a disability. They are the world's largest minority. Eighty per cent of persons with disabilities live in developing countries, according to the UN Development Programme (UNDP). Ninety per cent of children with disabilities in developing countries do not attend school, says UNESCO. The global literacy rate for adults with disabilities is as low as 3 percent, and 1 per cent for women with disabilities, according to a 1998 UNDP study. An estimated 386 million of the world's working-age people are disabled, says the international Labour Organization (ILO). Unemployment among the disabled is as high as 80 per cent in some countries. Often employers assume that persons with disabilities are unable to work.' In Pakistan, estimates of the number of persons living with disabilities vary between 3.3million and 27million, depending on whether they are based on government statistics (the last census which measured the prevalence rates was taken in 1998) or whether they come from other agencies.
10. In Pakistan, there is no comprehensive law protecting the rights of persons with disabilities. The one and only piece of legislation {{FOOT NOTE}}
4. Section 2(c) of the Ordinance.
5. World Health Organization. (2016) Disabilities, Retrieved on December 19, 2016 from http://www.Who.intitopicS/disabilities/en/
6. Moving from the margins - Mainstreaming persons with disabilities in Pakistan. British Council Si The Economist Intelligence Unit -2014 {{FOOT NOTE}}