Syed Mansoor Ali Shah, C.J:- FACTS {{FOOT NOTE}} 1 Moving from the margins -Mainstreaming persons with disabilities in Pakistan (A custom research report produced for the British Council, August, 2014) {{FOOT NOTE}} Petitioners are visually impaired and suffer from bilateral blindness, however, undeterred by this, petitioners continued their education. Petitioner no.1 holds a Master's degree in Political Science from G.C. University, Lahore and Petitioner no.2 an M. Phil in English Literature, from G.C. University, Faisalabad. Both the petitioners applied in response to the public advertisement put up by the Federal Public Service Commission ("FPSC") for the Competitive Examination for Central Superior Services-2014 ("CSS") in the daily newspapers dated 01.10.2013.
Both the petitioners passed the written examination, medical examination, physical assessment and viva-voce and secured 22 and 12 position, respectively. Petitioner no.1 opted for Foreign Service of Pakistan ("FSP") as his first preference, while Petitioner no. 2 opted for Pakistan Administrative Service ("PAS") as his first preference (and FSP was his third choice). However, for the purposes of this petition both the petitioners pray for allocation to FSP. Despite securing 22 and 12 positions in all Pakistan and being entitled to the said services on merit in the Punjab quota, the petitioners were deprived of the same and were instead allocated Information Group ("IG") vide Press Note dated 30.04.2015 issued by FPSC.
2. The Petitioners have challenged the allocation of Information Group instead of Foreign Service of Pakistan to them and as a consequence the vires of Rule 9(ii) of the Rules for Competitive Examination (CSS ) 2014 ("CSS Rules ") that deprives them of this opportunity . In the connected petition the same petitioners simply challenge the vires of Rule 9(ii) to the extent of imposing a restriction on a person with disab ilities to join other Occupational Groups/Services, except the four permitted Occupational Groups.nd th nd th
3. Rule 9 (ii) of the CSS Rules provides that a candidate with disabilities, in order to be allocated FSP, has to fall within 7.5% All Pakistan merit quota and otherwise can only be considered for the following Occupational Groups: i. Commerce & Trade Group (CTG) ii. Pakistan Audit & Accounts Service (P AAS) iii. Information Group (IG) iv. Postal Group (POSTG)
ARGUMENTS
4. Learned counsel for the petitioners submits that impugned Rule is unconstitut ional, in as much as, it offends constitutional values and fundamental rights of the petitioners guaranteed under Articles 9, 14, 25 and 27 of the Constitution of Pakistan, 1973. It is further submitted that the impugned Rule also offends the Convention on the Rights of Persons with Disabilities & Optional Protocol ("CRPD") ratified by Pakistan in the year 201 1.
5. Learned Deputy Attorney General for Pakistan alongwith Departmental Representatives support the said Rule and submit that a disabled candidate can only be considered for Foreign Service of Pakistan if he falls within the 7.5% All Pakistan merit quota. Otherwise, a disabled candidate is only allowed to compete for four Occupational Groups mentioned above.
OPINION OF THE COUR T
6. The statutory architecture supporting the Competitive Examinations for the Central Superior Services (CSS) begins with section 5 of the Civil Servants Act, 1973 which provides for appointments to All Pakistan Service or civil service of the Federation to be made in the prescribed manner. Under Section 25, the President or any other person authorized by the President may make Rules for carrying out the purposes of the Act. Rule 10 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 (Rules made by the President) provides that initial appointment to the All Pakistan Services shall be made on the basis of the tests and examinations to be conducted by the Federal Public Service Commissio n. These Rules do not provide any other qualification or disqualification for joining an All Pakistan Service. Section 7 of the Federal Public Service Commission Ordinance, 1977 ("Ordinance ") describes the functions of the Federal Public Service Commission (" FPSC ") to be as follows;
7. Functions of the Commission:-
(1) The functions of the Commission shall be:-
(a) to conduct tests and examinations for recruitment of persons to (ii) All Pakistan Services, the civil services of the Federation and civil posts in connection with the affairs of the Federation in basic pay scales 16 and above or equivalent; (1a) ...
(b) to advise the President :
(i) on matters relating to qualification s for and method of recruitment to, services and posts referred to in clause (a);
(ii) on the principles to be followed in making initial appointments to the services and posts referred to in clause (a) and in making appointments by promotion to posts in BS- 18 and above and transfer from one service or occupational group to another; and
(iii) on any other matter which the President may refer to the Commission ; and
(c) to hold examinations for promotion for such posts as the Federal Government may, from time to time, by notification in the official Gazette, specify.
Explanation:- In this section, "recruitment" means initial appointment other than by promotion or transfer . ...
7. FPSC is to conduct tests and examinations and advise President on matters relating to qualifications for and methods of recruitment to and on the principles to be followed in making initial appointments. FPSC is primarily an apex-testing centre for recruitment by the Federation. It only conducts tests and examinations. In other matters it simply advises the President. The advice of the FPSC to the President, if approved or accepted, can only be binding on the prospective candidates once translated into law through promulgation of Rules under section 25 of the Civil Servants Act, 1973.
8. It is useful to mention how persons with disabilities have been considered for the purposes of the CSS examination. One Dr Amir Ali Majid (Barrister) of Mansfield Law Society , London Metropolitan University , UK wrote to the President of Pakistan vide letter dated 9.9.2002 regarding inclusion of visually impaired people of Pakistan in the competitive examinations. The relevant extract of the letter is as follows; A Burning Issue of W elfare of Blind People in Pakistan The enclosure to this letter shows that visually impaired people of Pakistan are prevented from gaining employment by the Federal Civil Service Commission by operating a patently retrograde rule whereby they cannot take any competition examination with the help of an amanuensis. This state of affairs is so bad that a father of a blind Pakistani postgraduate (who was forbidden to participate in a competition examination) has told me that his son is contemplating suicide because he sees no chance to progress in his life.
Whilst in countries like UK, visually impaired persons are being appointed to judicial posts and the establishment is willing to give them Cabinet offices, the said approach of the Federal Commission to the employment of blind people is nothing but a disgrace to the image of Pakistan.
This matter does not call for any debate and does not justify waste of any time. To prevent continuing damage to disabled people, and to curtail any infliction of further despair on this vulnerable group, may I urge upon General Sahib to take remedial action with the brigade speed and most humbly request the other recipients of this letter to do their best to see this retrogressive policy removed from the Commission rules.
9.This was followed by a request by Sir John Wall, CBE and President of the European Blind Union, UK in his letter to the President of Pakistan dated 7.4.2003 which stated as follows: Issue of W elfare of Blind People in Pakistan I was very concerned to learn that visually impaired graduates in Pakistan are unable to progress, in the employment field. As the enclosed communication of Dr. Majid, dated 9 September 2002 shows, it is a matter which calls for the most urgent action.
The issue is clearly set out in Dr. Majid' s letter . I very much hope that you will be kind enough to initiate the appropriate action to remedy this wrong and let me know of it.
10. As a result, Summary dated 16.06.2004 was prepared for the Cabinet. The relevant extract states as under: No.1/4/2002-T -V GOVERNMENT OF P AKIST AN CABINET SECRET ARIA T (Establishment Division)
SUMMAR Y FOR THE CABINET SUBJECT :- Permission to take Competitive Examination Conducted by the FPSC - Case of Visually Impaired Persons. ...
2. The FPSC have no objection if the government allows visually impaired persons to compete in the Competitive Examinations provided they are considered for sedentary posts only by fixing their special quota (Annex-IV) . The Ministry of Women Development, Social Welfare and Special Education has endor sed the proposal and suggested amendment in the relevant rules (Annex-V) . Health Division have also endorsed the proposal to the extent of specific jobs but have reservations about a blanket provision to induct such persons (Annexure-VI) . Ministry of Law, Justice and Human Rights hold that quota for disabled in the vacancies filled through the FPSC is not inconsistent with the provisions of the Constitution (Annex-VII) .
3. Keeping in view the above facts, it is proposed that visually impaired persons may be allowed to compete (on an experimental basis) through the CSS against the vacancies of following Services/Occupational Groups;
(a) Commerce and Trade Group;
(b) Pakistan Audit and Accounts Service;
(c) Information Group; and
(d) Postal Group. ....
GOVERNMENT OF PAKISTAN CABINET SECRETARIAT ESTABLISHMENT DIVISION SUMMAR Y FOR THE PRIME MINISTER Subject: COMPETITIVE EXAMINA TION 2007 - ALLOCA TION OF MISS SAIMA SALEEM TO THE FOREIGN SERVICE OF P AKIST AN.
Rule 9(ii) of the Competitive Examination Rules, 2007, of the Federal Public Service Commission (FPSC), provides for eligibility of disabled candidates falling in the category of physically impaired, hearing speech impaired (deaf & dumb) and visually impaired (blind) for selection against the posts in the following groups / services (Annexure-I): i. Commerce & Trade Group ii. Pakistan Audit & Accounts Service. iii. Information Group iv. Postal Group 2. A visually impaired candidate (Miss Saima Saleem, Roll No.2219) has secured 6 position in the order of merit of finally qualified candidates in the Competitive Examination, 2007. She has opted for Foreign Service of Pakistan (FSP), as her first preference, in addition to the four services earmarked for disabled candidates. Her performance in viva-voce before Selection Board of the Commission was found excellent as she demonstrated a commendable command on various national and international affairs. This extraordinary capability renders her a highly suitable candidate for appointment to Foreign Service of Pakistan. If allocated to the FSP, she is likely to create a favourable impression of Pakistan to the world community viz-a-viz gender equality and treatment to the handicapped persons.
3. The Federal Public Service Commission (FPSC) has recommended that Miss Saima Saleem, who falls within the allocation zone of Foreign Service of Pakistan, may be considered for appointment in the Foreign Service of Pakistan (FSP) in relaxation of Cabinet decision in case No.159/18/2004, dated 4-8 2004 (Annex-II).
4. Establishment Division endorses the recommendation made by the Federal Public Service Commission
(FPSC) and proposes that Miss Saima Saleem, may be allocated to the Foreign Service of Pakistan (FSP) in relaxation of the aforementioned Cabinet decision and provisions incorporated in rule 9(ii) of the FPSC Competitive Examination Rules, 2007. Approval may also be accorded to the proposal that , in future, if a physically impaired, hearing/speech impaired (deaf & dumb) and visually impaired (blind) candidate secures a position within overall merit quota, on all Pakistan basis, may be allocated to the Foreign Service of Pakistan on the basis of his/her choice.
5. Approval of the Prime Minister is solicited to the proposal at para-4 above in terms of Rules 15 (1) (a) of the Rules of Business, 1973 (Annex-III).11. According to the learned standing counsel, the summary was approved and found its way in clause 9 (ii) of Appendix-I of the CSS Rules, 2005 dated 18.04.2005. Thereafter , in the year 2008, a visually impaired candidate, one Miss Saima Saleem, secured 6th position, in order of merit, in the CCS examinations -2007 on All Pakistan basis. FPSC through its letter written in the year 2008, proposed to the Federation that she be allowed to join FSP in relaxation of Rules. As a consequence, Establishment Division moved a Summary to the Prime Minister on 23.02.2008. The relevant extracts of the summary are as follows:
12. The Summary was approved on 14.03.2008 by the Prime Minister . Thereafter , CSS Rules under the Ordinance were amended. Rule 9 (ii) of the Rules for Competitive Examination (CSS) -2014 ("Rules-2014 ") as it stands today , states as under: Rule 9 (ii). Disabled candidates in the categories of physically impaired, hearing/speech impaired (deaf & dumb) and visually impaired (blind) are allowed to compete for Competitive Examination against four Occupational Groups/Services viz: (a) Commerce & Trade Group (b) Pakistan Audit & Accounts Service (c) Information Group &
(d) Postal Group. Disabled candidates securing a position against prescribed 7.5% merit quota on all Pakistan basis may be considered for allocation to Foreign Service of Pakistan on the basis of his/her choice.
13. Rule 9 (ii) has been framed under sections 7-A and 10 of the Ordinance which state as follows:th No.F.2/20/2014-CE. In pursuance of Rule 15 of Competitive Examination (CSS), 2014 (bearing NO.F .2/1/2014-CE, dated 19.09.2013), it is announced for general information that the number of vacancies, including carried over vacancies, to be filled on the basis of the final result of Competitive Examination (CSS) 2014, in accordance with Government policy on Merit/Provincial/Regional/W omen and Minorities quotas, are as follows:- Subject: 7-A Conduct of Business of Commission, etc:- The Chairman of the Commission may, with the approval of the Federal Government, make rules for regulating the conduct of the business of the Commission; and such rules may provide for any of the functions of the Commission specified by it being performed by a Committee composed of two or more members constituted by the Chairman for the purpose.
10. Rules:- The Federal Government may, by notification in the official Gazette, make rules, for carrying out the purposes of this Ordinance.
14. In the present case Competitive Examinations for the Central Superior Services (CSS) for the year 2014 were publically advertised in national dailies on 1.10.2013. The overall Group wise allocation on All Pakistan Merit and in Punjab for CSS-2104 is as follows as per letter dated 27-4-2015 issued by the FPSC.
FEDERAL PUBLIC SER VICE COMMISSION Aga Khan Road, Sector F-5/1 **** Islamabad, the 27 th April, 2015 PRESS NOTE Subject: COMPETITIVE EXAMINA TION (CSS) 2014 -NUMBER OF V ACANCIES ALLOCA TED T O VARIOUS OCCUP ATIONAL GROUPS/SER VICES IN ACCORDANCE WITH THE LAID DOWN MERIT/PROVINCIAL/REGIONAL WOMEN AND MINORITIES QUOT AS.
No.F.2/20/2014-CE. In pursuance of Rule 15 of Competitive Examination (CSS), 2014 (bearing NO.F .2/1/2014- CE, dated 19.09.2013), it is announced for general information that the number of vacancies, including carried over vacancies, to be filled on the basis of the final result of Competitive Examination (CSS) 2014, in accordance with Government policy on Merit/Provincial/Regional/W omen and Minorities quotas, are as follows: QUOT A FRESH VACANCIESCARRIED OVER VACANCIESTotal V acancies Merit 7.5 % All Pakistan Merit PAAS=1, PCS=1, PAS=2, FSP=1 , IRS=5, IG=1, MLCG=1, OMG=4, PSP=3 Nil19 Punjab 50%Open MeritPAAS=6, PCS=6, PAS=1 1, FSP=B , IRS=27, IG=1, MLCG=1, OMG=22, PSP=15, POSTG=4RCTG=1 101+1= 102 Women PAAS=1, PCS=1, PAS=2, FSP=1, IRS=3, OMG=3, PSP=1Nil 12 Minorities PCS=1, FSP=1, IRS=1, MLCG=1, OMG=1, PSP=1PAAS=1, IRS=4, OMG=5, POSTG=1, RCTG=16+12=18
15. The above shows that within ALL PAKISTAN MERIT (top 7.5 %) PAS has two seats and FSP has only one seat. While in the 50% quota for Punjab, PAS has 11 seats and FSP has 8 seats on open merit.
16. The extract of the result of the petitioners announced through Press Note dated 30-4-2015 issued by FPSC is as follows: {{TABLE}} FEDERAL PUBLIC SER VICE COMMISSION Aga Khan Road, F-5/1 Islamabad the 30 April, 2015. PRESS NOTE Subject: - COMPETITIVE EXAMINATION (CSS), 2014 FOR RECRUITMENT TO POSTS IN BS-17 UNDER FEDERAL GOVERNMENT .
No.F.2/4/2015-CE. The roll numbers and names of 377 candidates who have finally qualified the CSS Competitive Examination 2014, are given in the following statement (in order of merit). Out of 377 qualified candidates, 233 have been recommended by the FPSC for appointment to posts in BS-17 under the Federal Government in the Group/Service mentioned against each:- M. No.Roll No.Name Domicile Group/Service allocated 1.11864 Javeria Maqbool PUNJAB PAS 2.1010 Hafiz Karim Dad PUNJAB PAS 3.11839 Jannat Hussain NekokaraPUNJAB PAS 4.7155 Tabinda Tariq KPK PAS 5.12677 Muhammad Anas IqbalPUNJAB PAS 6.6776 Sarah Rehman Sindh UrbanPASth
7. 15238 Syed Aadil Iftikhar PUNJAB PAS
8. 6873 Shahnawaz Khan KPK FAP
9. 19615 Muhammad Raza TanveerKPK PSP
10. 10492 Asadullah PUNJAB PAS
11. 12431 Mohammad Mohsin SalahuudinPUNJAB IG
12. 4853 Faisal Majeed PUNJAB IG
13. 10768 Bilal Hassan PUNJAB PAS
14. 16811 Minah Shahbaz PUNJAB FSP
15. 9951 Ahmad W aleed PUNJAB FSP
16. 22645 Muhammad Abdullah MahmoodPUNJAB PAS
17. 13391 Muhammad Shayan Ali JawaPUNJAB PAS
18. 20788 Tillat Jan KPK PAS
19. 13412 Muhammad Sohaib ButtPUNJAB PAS
20. 13169 Muhammad Nabeel RiazPUNJAB PAS
21. 13561 Muhammad W aqar AzeemPUNJAB PSP
22. 6152 Muhammad YousafPUNJAB IG {{TABLE}}
17. The above shows that Petitioner no.2 secured 12 position in all Pakistan. His first preference being PAS, he fell at serial no. 11 amongst the candidates who had opted for PAS as their first preference. After filling the All Pakistan Merit quota of PAS i.e., 2 seats, the petitioner stood at serial no. 9 against the PAS quota for Punjab i.e., a total of 11 seats. Similarly, Petitioner no.1 secured 22 position in all Pakistan and FSP being his first preference he stood at serial no. 4 amongst the candidates who opted for FSP. After filling the All Pakistan Quota on Merit in FSP i.e., one seat, Petitioner no.2 stood at no. 3 of the FSP Group against 8 seats of FSP allocated to Punjab on open merit. If the petitioners were not visually impaired and were it not for Rule 9 (ii) of the CSS Rules, petitioners were entitled to be allocated the Occupational Group of their choice in open merit quota reserved for Punjab.
Rule 9 (ii)
18. In the wake of the above legal structure and facts, it is important to review the constitutionality and legality of Rule 9 (ii) of the CSS Rules. For the purposes of this judgment both the petitioners are being considered for the Occupational Group of FSP as per their prayer in the instant petition.
Constitutional Challenge
19. Rule 9(ii) allows a person with disabilities to be considered for FSP if he falls within 7.5 % quota on all Pakistan basis, but is not allowed to be considered against open merit in the provincial quotas. "Disability" for the purpose of Rule 9(ii) and this case includes physically impaired, hearing/speech impaired (deaf & dumb) and visually impaired (blind).
20. Petitioners having obtained 22 and 12 positions in all Pakistan are fully entitled and qualified to be allocated to FSP under the Punjab quota. No plausible explanation has come forth to justify denial of allocation ofth nd nd th FSP from the Punjab quota to the petitioners except Rule 9(ii) of the CSS Rules. While a candidate with disabilities can join FSP against the All Pakistan merit quota, he cannot on the basis of the same result join the quota allocated to the Province of Punjab. To allow a person with disabilities, one category of merit based quota, but deny the same person another category of merit quota, is outright discriminatory. It is painful to observe that a person with disability is first allowed to sit the competitive examination at par with the others, but when he scores and is entitled to allocation in the FSP in the provincial quota, he is denied the same on the pretext that he could only avail the All Pakistan Merit quota of 7.5%. Neither the Constitution nor the Act or the Ordinance permit or support such a classification, hence Rule 9(ii) is devoid of any reasonable classification and is therefore discriminatory, offending article 25 of the Constitution. Rule 9(ii) also underrates a person with disabilities, hurting his self-esteem and dignity, thereby offending article 14 of the Constitution. Logic and wisdom, if any, behind this exclusion totally fails me. Infact on 5.12.2016, Ms. Iqra Ashraf, Assistant Director, Ministry of Foreign Affairs appeared before the Court and submitted that other than the requirement of CSS Rules, which are binding, a visually impaired person can work at the Foreign Office, provided he/she is given the requisite facilities. Instead of providing facilitation or equal opportunity, Rule 9(ii) is an impediment in mainstreaming persons with disabilities in our society.
21. Rule 9 (ii) allows only FOUR choices of Occupational Groups for persons with disabilities. The four Occupational Groups are as follows: i. Commerce & Trade Group (CTG) ii. Pakistan Audit & Accounts Service (PAAS) iii. Information Group (IG) iv. Postal Group (POSTG)
22. According to the Summary for the Cabinet dated 16.6.2004, it was proposed that persons with disabilities be considered for sedentary posts. As a result the above four Occupational Groups were made available for persons with disabilities. Departmental Representatives were repeatedly asked to provide job description or scope of work of all the Occupational Groups, but they failed to do so. Infact they stated that there is no job description of these Occupational Groups. Hence, there is no statutory instrument that describes the scope of work of any Occupational Group. Therefore, to say that sedentary posts are only available in the above four Occupational Groups is not borne out from the record or any statutory instrument. It appears that these four Groups have been simply cherry-picked without much thought or rationale.
23. The Federal Government seems to have missed out on the understanding of the constitutional values and fundamental rights provided under the Constitution. It is also convincingly visible that the Federal Government is not aware of the UN Convention of the Rights of Persons with Disabilities ("CRPD " or "Convention") which has been duly ratified by Pakistan in 2011. Our Constitution is prefaced by timeless and immutable constitutional values, which reflect the will and resolve of the people of Pakistan. Principles of democracy , freedom, equality , tolerance and social justice, the guarant eed fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality . These constitutional values, inter alia, flow into fundamental rights, like the right to life (Article 9), the right to dignity (Article 14) and the right to equality (Article 25) making our Constitution evergreen, organic and a living document.
24. Fundamental rights under the Constitution do not distinguish between a person with or without disabilities. It recognizes the inherent and inalienable dignity of all human beings as the foundation of freedom, justice and peace. Right to life and right to dignity are the epicenters of our constitutional architecture. Right to life recognizes the importance of accessibility to physical, social, economic and cultural environment, to health and education and to information and communication. Such a right enables persons with disabilities to fully enjoy all human rights and fundamental freedoms. Every human being has the inherent right to life and to ensure its effective enjoyment, this incudes persons with disabilities, at par with the others. Right to life and right to dignity are deeply interwoven. "The right of dignity reflects the 'recognition that a human being is a free agent, who develops his body and mind as he wishes, and the social framework to which he is connected and on which he depends. Human dignity is therefore the freedom of the individual to shape an individual identity. It is the autonomy of the individual will. It is the freedom of choice. Human dignity regards a human being as an end, not as a means to achieve the ends of others... human dignity is the dignity of each human being 'as a human being.' This is the source of the viewpoint that human dignity includes the equality of human beings. Discrimination infringes on a person's dignity. Human dignity assumes equality of the (other) rights that people have and equality of opportunity and benefits. Second, human dignity is a person's freedom of will. This is the freedom of choice given to people to develop their personalities and determine their own fate. People are spiritual entities who enjoy the freedom to develop themselves. This is the source of my view that at the core of human dignity is the autonomy of the individual.
Human dignity is infringed if a person's life or physical or mental welfare is harmed. The purpose of the constitutional right to human dignity is to realize the constitutional value of human dignity. Thus its purpose is to realize a person's humanity. The dignity of a human being is his free will; the freedom to shape his life and fulfill himself. It is a person's freedom to write his life story." The Constitution abhors discrimination and holds that all citizens are equal before the law and are entitled to equal protection of law. Inherent in Article 25 is the recognition that discrimination against any person on the basis of disability is a violation of the inherent dignity and worth of a human being. Article 25 of the Constitution promotes inclusiveness, effective participation and recognizes human diversity in a society. {{FOOT NOTE}} Aharon Barack- Human Dignity - The Constitutional Value and the Constitutional Right . Cambridge 2015. Pp.85, 86 & 144. {{FOOT NOTE}}
25. Every person is entitled to all the rights and freedoms set forth therein, without distinction of any kind. Our Constitution embodies universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms. It applies equally to persons with disabilities, guaranteeing them full enjoyment of their fundamental rights without discrimination. The triangular construct of the right to life, dignity and equality under the Constitution provides a robust platform for mainstreaming persons with disabilities. Fundamental rights are the heart and soul of a living Constitution and must at all times be ready to embrace and protect the sensibilities and sensitivities of the people. They must be progressively and purposively interpreted to advance the frontiers of freedom, individual autonomy and free choice. Such vibrance and vitality is the hallmark of a living constitution in a democracy. See Pakistan Tobacco Co. Ltd. and others v. Government of N.W.F.P. through Secretary Law and others (PLD 2002 SC 460) and Reference No.01/2012 (Reference by the President of Pakistan under Article 186 of the Constitution of Islamic Republic of Pakistan, 1973) (PLD 2013 SC 279).
26. While the constitutional values and fundamental rights under the Constitution do not distinguish between a person with or without disabilities, the Constitution goes further . It provides that adequate provisions shall be made to safeguard the legitimate interests of the minorities and backward and depressed classes . "Depressed class" has not been defined under the Constitution. So in our society , where State does not provide any meaningful infrastructural, financial or social support for persons with disabilities, persons with disabilities are marginalized, under-privileged, lacking choice, autonom y and opportunity; resulting in limited access to employment and good quality of life. They stand deprived of the social and economical benefits enjoyed by other citizens and tend to live or survive on the margins of the society . According to a custom research report produced for the British Council in 2014, titled Moving from the margins - Mainstreaming persons with disabilities in Pakistan , the main findings regarding persons with disabilities in Pakistan are as follows: I. Pakistan needs to move away from a culture of sympathy and pity. Although there is an overarching culture of sympathy for persons with disabilities and there is a desire to help, the focus continues to be on a charity or medical approach to disability . What is needed instead is a shift to a rights-based approach, which recognizes that persons with disabilities should be empowered. Disability is a diversity that needs to be accepted.
II. Negative attitudes in society hamper finding a life partner . Marriage is an important social institution in Pakistan, and marriage prospects are different for men and women with disabilities. Where men with disabilities2 2 have better access to education and employment opportunities, they have some marriage prospects. Women, who are seen as caretakers of the household, face a more dif ficult time in finding a partner .
III. The legal framework in Pakistan is weak as far as protecting the rights of persons with disabilities is concerned. There is only one law especially targeted at persons with disabilities, the Disabled Persons (Employment and Rehabilitation) Ordinance 1981. It specifies that employers with 100 workers or more must ensure that at least 2% of their total workforce consists of persons with disabilities, or pay a levy. Unfortunately , the monitoring and implementation of this law has been weak. Several investigations found that many large, private companies and public agencies are not meeting this requirement.
IV. Pakistan ratified the CRPD in 2011, but little has happened by way of polic ies and strategies in line with the CRPD framework. Part of this is the result of the 18th Amendment to the Constitution of Pakistan of 2010, which devolved powers to the provinces. Several plans and policy papers, as well as pending legislation that was being drafted and discussed at the federal level, became the responsibility of the provinces and have since been largely ignored. That said, government agencies consulted for this study recognize that changes need to be made, and provinces are making strides in different ways. The Punjab government, for example, is focusing on expanding educational services for persons with disabilities, and the Khyber Pakhtunkhwa government is looking to provide more in the way of employment support.
V. Education for persons with disab ilities is largely limited to special education schools, which are inadequate and of low quality . According to interviews with government officials, there are 330 special education schools in Islamabad, Punjab, Sindh and Khyber Pakhtunkhwa provinces. Most of these schools are in urban areas, which makes education for person s with disabilities in rural areas a challenge. Some interviewees estimate that as many as 50% of children with disabilities have access to such schools, but even where there is access, quality of education is lacking. The fees for private schools can be up to 15 times higher than for public schools, making them only accessible to wealthi er families. With limited primary and secondary school education, few students go on to university . There are vocational institutes run by the government and non-governmental organizations (NGOs), but interviewees suggest that these are insuf ficient and varying in quality of education.
There is a bidirectional link between disability and poverty , and inclusion of persons with disabilities in schools is key in breaking the vicious cycle. vi. Persons with intellectual disabilities are often entirely omitted from policie s and strategies. Identification mechanisms are weak and often focused on physical impairments. There is also a shortage of mental health professionals trained to identify and rehabilitate persons with varying degrees of intellectual disorders: according to a 2008 World Health Organization (WHO) report, there are only 0.49 trained psychologists and psychiatrists for every 100,000 in Pakistan. vii. There are limited employment oppo rtunities for persons with disabilities. This stems from several issues:
(a) limited access to quality education, which later leads to limited skills for the labour market; (b) limited support for job seekers, from searching for a vacancy to drawing up a rsum and related professional documents; and (c) the attitude of businesses regarding the empl oyment of persons with disabilities. Howe ver, there are positive examples in Pakistan of local and international companies that have successfully built an inclusive workforce.
Persons with disabilities are, therefore, a class of people who are not at par with the others, a class of people who are deprived and depressed economically , socially and even emotionally . Under the Constitution, the State has to make adequate provisions so that the legitimate interests of a depressed class are safeguarded. All those interests, which can mainstream a person with disabilities in the society and make him feel equal with others around him are legitimate interests. This constitutional value is captured by the Convention.
Disability , Occupational Groups and the UN Convention.
27. 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 impair ment. A disabled person under the Ordinance is defined as a person who on account of injury , disease or congeni tal deformity , is handicapped for undertaking any gainful profession or employment in order to earn his livelihood and includes a person who is blind, deaf, physically handicapped or mentally retarded. According to CRPD persons with disabilities include3 4 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 results from the interaction between persons with impairments and the attitudinal and environmental barriers that hinder their full and effective participation in society on an equal basis with others.
Disabilities is an umbrella term, covering impairments, activity limitations, and {{FOOT NOTE}} Collins English Dictionary - Complete and Unabridged, 12th Edition 2014 HarperCollins Publishers, quoted at URL http://www .thefreedictionary .com/disabled section 2(c) of the Ordinance. {{FOOT NOTE}} participation restrictions. 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 just a health problem. It is a complex phenomenon, reflecting the interaction between features of a person' s body and features of the society in which he or she lives.
28. The Convention promotes, protects and ensures the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and promotes respect for their inherent dignity . The relevant provisions of the Convention are instructive, hence relevant portions are reproduced hereunder:- Preamble
(a) Recalling the principles proclaimed in the Charter of the United Nations which recognize the inherent dignity and worth and the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world,
(b) Recognizing that the United Nations, in the Universal Declaration of Human Rights and in the International Covenants on Human Rights, has proclaimed and agreed that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind ,
(c) Reaffirming the universality , indivisibility , interdependence and interrelatedness of all human rights and fundamental freedoms and the need for persons with disabilities to be guaranteed their full enjoyment without discrimination,
(d) .......
(e) ......
(f) ......
(g) Emphasizing the importance of mainstreaming disability issues as an integral part of relevant strategies of sustainable development, {{FOOT NOTE}} World Health Organization. (2016) Disabilities, Retrieved on December 19, 2016 from http://www .who.int/topics/disabilities/en/ {{FOOT NOTE}}
(h) Recognizing also that discrimination against any person on the basis of disability is a violation of the inherent dignity and worth of the human person ,
(i) Recognizing further the diversity of persons with disabilities,
(j) Recognizing the need to promote and protect the human rights of all persons with disabilities, including those who require more intensive support ,
(k) Concerned that, despite these various instruments and undertakings, persons with disabilities continue to face barriers in their participation as equal members of society and violations of their human rights in all parts of the world,
(m) Recognizing the valued existing and potential contributions made by persons with disabilities to the overall well-being and diversity of their communities, and that the promotion of the full enjoyment by persons with disabilities of their human rights and fundamental freedoms and of full participation by persons with disabilities will3 4 5 5 result in their enhanced sense of belonging and in significant advances in the human, social and economic development of society and the eradication of poverty ,
(n) Recognizing the importance for persons with disabilities of their individual autonomy and independence, including the freedom to make their own choices,
(o) Considering that persons with disabilities should have the opportunity to be actively involved in decision-making processes about policies and programmes, including those directly concerning them,
(p) Concerned about the difficult conditions faced by persons with disabilities who are subject to multiple or aggravated forms of discrimination on the basis of race, colour , sex, language, religion, political or other opinion, national, ethnic, indigenous or social origin, property , birth, age or other status,
(v) Recognizing the importance of accessibility to the physical, social, economic and cultura l environment, to health and education and to information and communication, in enablin g persons with disabilities to fully enjoy all human rights and fundamental freedoms ,
(x) Convinced that the family is the natural and fundame ntal group unit of society and is entitled to protection by society and the State, and that persons with disabilities and their family members should receive the necessary protection and assistance to enable families to contribute towards the full and equal enjoyment of the rights of persons with disabilities,
(y) Convinced that a comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities will make a significant contribution to redressing the profound social disadvantage of persons with disabilities and promote their participation in the civil, political, economic, social and cultural spheres with equal opportunities, in both developing and developed countries.
Article 3 (General Principles)
The principles of the present Convention shall be:
(a) Respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons;
(b) Non-discrimination;
(c) Full and effective participation and inclusion in society;
(d) Respect for dif ference and acceptance of persons with disabilities as part of human diversity and humanity;
(e) Equality of opportunity;
(f) Accessibility;
(g) Equality between men and women;
(h) Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.
Article 4 (General obligations)
1. States Parties undertake to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability . To this end, States Parties undertake:
(a) To adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention;
(b) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities;
(c) To take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes;
(d) To refrain from engaging in any act or practice that is inconsistent with the present Convention and to ensure that public authorities and institutions act in conformity with the present Convention;
(e) To take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise;
(f) To undertake or promote research and development of universally designed goods, services, equipment and facilities, as defined in article 2 of the present Convention, which should require the minimum possible adaptation and the least cost to meet the specific needs of a person with disabilities, to promo te their availability and use, and to promote universal design in the development of standards and guidelines;
(g) To undertake or promote research and development of, and to promote the availability and use of new technologies, including information and communications technologies, mobility aids, devices and assistive technologies, suitable for persons with disabilities, giving priority to technologies at an affordable cost ;
(h) To provide accessible information to persons with disabilities about mobil ity aids, devices and assistive technologies, including new technologies, as well as other forms of assistance, support services and facilities ;
(i) To promote the training of professionals and staff working with persons with disabilities in the rights recognized in the present Convention so as to better provide the assistance and services guaranteed by those rights.
Article 5 (Equality and non-discrimination)
1. States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law .
2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and ef fective legal protection against discrimination on all grounds.
3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.
4. Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention Article 27 (W ork and Employment)
1. States Parties recognize the right of persons with disabilities to work, on an equal basis with others; this includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities. States Parties shall safeguard and promote the realizati on of the right to work, including for those who acquire a disability during the course of employment, by taking appropriate steps, including through legislation, to, inter alia:
(a) Prohibit discrimination on the basis of disability with regard to all matters concerning all forms of employment, including conditions of recruitment, hiring and employment, continuance of employment, career advancement and safe and healthy working conditions;
(b) Protect the rights of persons with disabilities, on an equal basis with others, to just and favourable conditions of work, including equal opportunities and equal remuneration for work of equal value, safe and healthy working conditions, including protection from harassment, and the redress of grievances;
(c) Ensure that persons with disabilities are able to exercise their labour and trade union rights on an equal basis with others;
(d) Enable persons with disabilities to have effective access to general technical and vocational guidance programmes, placement services and vocational and continuing training;
(e) Promote employment opportunities and career advancement for persons with disabilities in the labour market, as well as assistance in finding, obtaining, maintaining and returning to employment;
(f) Promote opportunities for self-employment, entrepreneurship, the developme nt of cooperatives and starting one's own business;
(g) Employ persons with disabilities in the public sector;
(h) Promote the employment of persons with disabilities in the private sector through appropriate policies and measures, which may include af firmative action programmes, incentives and other measures;
(i) Ensure that reasonable accommodation is provided to persons with disabilities in the workplace ;
(j) Promote the acquisition by persons with disabilities of work experience in the open labour market;
(k) Promote vocational and professional rehabilitation, job retention and return-to -work programmes for persons with disabilities.
(emphasis supplied)
29. Under CRPD, "Discrimination on the basis of disability " means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation. According to the Convention "Reasonable accommodation " means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden , where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedom. Reasonable accommodation can be by providing a conducive working environment through assistive technolo gy, which is an umbrella term that includes assistive, adaptive, and rehabilitative devices for people with disabilities and also includes the process used in selecting, locating, and using them. Assistive technology promotes greater independence by enabling people to perform tasks that they were formerly unable to accomplish, or had great difficulty accomplishing, by providing enhancements to, or changing methods of interacting with, the technology needed to accomplish such tasks. Assistive Technology is a generic term for devices and modifications that help overcome or remove a disability . Reasonable accommodation is not different from "adequate provisions" envisaged in the preamble to the Constitution. Meaningful employment is a legitimate interes t of a person with disabilities. Therefore, the Convention and the Constitution stand hand in hand to promote the cause of mainstreaming persons with disabilities.
30. Right to life, right to human dignity and right to non discrimination guarantee that adequate provisions or reasonable accommodation be provided by the State. "There should be a full recognition of the fact that persons with disability are integral part of the community, equal in dignity and entitled to enjoy the same human rights and freedoms as others." Our Constitution promotes and protects the human rights of all persons inclusive of persons with disabilities. The constitutional values of social, economic and political justice recognize free choice and individual autonomy for all. It also provides that adequate provisions shall be made to safeguard the legitimate interests of the depressed class. Our Constitution is a living document and provides a bold and a passionate {{FOOT NOTE}} Jeeja Ghosh & Anr vs. Union of India & Ors (AIR 2016 SC 2392) {{FOOT NOTE}} constitutional support for persons with disabilities. The wisdom of the Convention is already embedded in the soul of our Constitution and can easily be rediscovered by purposively interpreting the Constitution. Reliance is placed on Hafiz Junaid Mahmood v Government of Punjab and others (PLD 2017 Lahore 1 ).
31.This constitutional construct creates an obligation on the State and other institutions of the State to make all possible endeavours to mainstream persons with different abilities and to embrace the diversity in the society . The State and its institutions are under a constitutional obligation to go the extra mile and ensure, within the means available, that person with disabilities get reasonable accommodation in order to enjoy their fundamental rights in the same manner as enjoyed by other citizens of Pakistan. It is for the State and its institutions to provide the architecture, the structure, the assistive and adaptive technology , the system, the equipment and the facilitative support to persons with disabilities, so they can actualize their constitutional rights and freedom.
32. It is not the case of the Federal Government that reasonable accommodation cannot be provided or that it is disproportionate, or burdensome or expensive. Infact, the record shows that the Federal Government has never thought of mainstreaming such persons or opening the Central Superior Services to such persons. This cuts out a merciless image of the Government, who has failed to realize that in considering the social integration of people with disabilities, access to employment is often considered to be of a particular importance. There are a number of reasons for it, including the need for a good or at-least an adequate income and the self-respect gained through being self-supporting. In addition, employment can provide a structure to the day and sense of purpose and often a sense of identity, as well as, providing the opportunity to make social contact. Therefore, persons with disabilities have all the right to apply for all categories of posts. Unless the Federal Government, while strictly adhering to the requirement of the Constitution and the Convention, has solid reasons, supported by data, to6 6 7 exclude persons with disabilities from a particular category of service. It must be remembered that exclusion of a person with disabilities from any form of employment is an exception rather than a rule.
33. The Federal Government is bound to provide Reasonable Accommodation through assistive technology to protect and safeguard the fundamental rights of persons with disabilities rather than oust them from services without any rational application of mind or without considering the nature of the service. Values of social and economic justice read with article 37 (f) of the Constitution provides that State should enable the people (inclusive of people with disability) of different areas, through education, training, agricultural and industrial development and other methods, to participate fully in all forms of national activities, including employment in the service of Pakistan.
34.The present case reflects of an insensitive Government, especially when it has ratified the Convention in the year 2011. Federal Government has failed to show that efforts were made to mainstream disabled persons into CSS. They also failed to explain why four particular Occupational Groups have been selected for persons with disabilities.
35. For the above reasons, Rule 9(ii) to the extent of FSP i.e., denying the petitioners the provincial quota, is discriminatory, and offends human dignity and is violative of articles 14 and 25 {{FOOT NOTE}} Assistive Technology for Visually Impair ed and Blind People. Marion A Hersch, Michael A Johnson. Springer .
P.670 {{FOOT NOTE}} of the Constitution. The limitation of only four Occupational Groups for persons with disabilities is discriminatory . As a consequence Rule 9 (ii) of the CSS Rules is declared to be unconstitutional and illegal. The Federal Government is free to formulate a more inclusive recru itment policy keeping in view the principles laid down in this judgment and the provisions of the Constitution and CRPD.
Rule 9 (ii) - Ultra vires the Ordinance
36. There is another dimension to this case. Rules under section 7-A of the Ordinance (above) are supposed to deal with the internal governance and business of the Commission in order to effectively achieve its main purpose under the Ordinance i.e., conduct tests and examinations and advise the President when required. Rules under Section 10, on the other hand, are to be framed to carry out the purposes of the Ordinance. The main purpose of the Ordinance being to conduct tests and examinations for recruitment, any Rule framed under Section 10 can only elaborate and provide further details regarding how to conduct tests and examinations. These Rules cannot transgress the mandate of the Ordinance and instead proceed to set restrictions and thresholds for any class of candidates to enter the civil service, in this case the disabled persons. Federal Government under section 10 can only further the purposes of the Ordinance and no more. Section 7 lays down the purpose of the Ordinance and nowhere does it empower FPSC to set new qualifications or impose restrictions on any class of candidates. It is important to highlight that the Commission can only advise the President regarding qualifications or methods of recruitment under section 7(1)(b) but cannot itself lay down qualifications/ restrictions or methods of recruitment for any class of candidates. As stated above, the advice made to the President by FPSC under section 7 of the Ordinance, if accepted, can only find its way into law through Rules promulgated under the Civil Servants Act, 1973 and not through the Rules under the Ordinance, because the Rules to be promulgated under the Ordinance cannot go outside the purpose of the Ordinance, which is to conduct tests and examinations and advise the President. Rule 9(ii) of the CSS Rules framed under sections 7A and 10 of the Ordinance transgresses the scope of the Ordinance and is therefore ultra vires section 7 of the Ordinance.
37. It has also been discovered from the summaries placed on the record, that one Saima Saleem, a visually impaired person was allowed allocation of FSP on all Pakistan merit basis in relaxation of the CSS Rules. Without disputing her candidature, the legal process adopted in this regard warrants an observation. The Federal Government does not enjoy the power to relax Rules framed under sections 7A or 10 of the Ordinance. The power to relax Rules is a specific statutory power and that too must be exercised transparently and through structured discretion. There is no provision of law that allows the Federal Government to relax Rule 9(ii) to consider the case of one candidate. Reference has been made to Rule 15 (1) (a) of the Rules of Business, 1973 for allowing7 relaxation in CSS Rules. Rule 15(1)(a) provides that "No order shall be issued without the approval of the Prime Minister in cases involving important policy or departure from important policy." Relaxation of Rule 9(ii) requires statutory authority and in its absence, relaxation is not permissible. Departure from a policy under Rule 15(1)(a) is an executive decision, which cannot authorize or amount to relaxation of subordinate legislation. This observation is prospective and does not have a bearing on the case of Saima Saleem or others who already stand appointed on the basis of such relaxation in the FSP.
CONCLUSION
38. For the above reasons Rule 9 (ii) of CSS Rules is declared to be unconstitutional and without lawful authority and is hereby struck down. Federal Government is directed to allocate two seats to the petitioners in the FSP at the earliest and if no such posts are available, the respondents are directed to create two new posts to adjust the petitioners in order to uphold their fundamental rights guaranteed under the Constitution and to redress the unconstitutional deprivation they have faced since 2014.
39. Federal Government is also directed to move to a more inclusive policy . While Rule 9(ii) has been struck down, the Federal Government is free to formulate Rules to offer all or any Occupational Services to persons with disabilities in All Pakistan Service, after thoroughly assessing the possibility of providing reasonable accommodation, as discussed in the judgment and the Convention. Let these Rules be formulated before the next CSS competitive examinations, so that citizens who suffer from disabilities are mainstreamed and given a fair chance to become a part of All Pakistan Service. This will give then an opportunity to enjoy life with honour and live with dignity in the society .
40. The instant petition, as well as, connected W .P. No.8157/2016 are allowed for the above reasons.