KHADIM HUSSAIN TUNIO, J.---Allegedly , petitioner applied for the post of School Teacher in disabled quota, obtained 67 marks and was ranked No. 3 on the merit list issued by the N.T.S, while there were a total 218 vacancies for the post of Junior School Teachers. Admittedly , he approached Respondent No. 3 for the issuance of appointment letter as he had qualified the written test, however his request was turned down. Consequently he approached Respondent No. 2, proclaimed such facts and appealed for issua nce of directions regarding the appointment letter , however was paid no heed.
2. When met with such circumstances, the petitioner sought to file the present petition under Article 199 of Constitution with the following prayers: "Declare that the act of the Respondents for not issuing the appointment order to the Petitioner for recruitment to the post of Junior School Teacher against disable quota and intending to issue the same to influential persons on the recommendation of the Politicians of Ruling Party , which is illegal, improper , ab initio void and against the principles of natural justice, hence the same is liable to be declared as null and void.
To direct the Respondents to issue appointment order to the Petitioner for recruitment to the post of Junior School Teacher against disable quota, as the Petitioner has successfully qualified the same and his name is appearing at Serial No. 3 of the Merit List.
To grant interim injunction thereby restraining the Respondents from issuing appointment order to influential persons on the recommendation of the Politicians of Ruling Party or otherwise, through themselves, their agents, and servants or any other agency acting on their behalf till final disposal of instant petition.
To grant any other relief, which this Hon'ble Court deems fit and proper in circumstances of the case.
To award the costs of this petition."
3. Counsel for the petitioner argued that the respondent No. 3 was duty bound to issue the appointment letter; that the respondents kept the petitioner on false hopes; that the petitioner has been deprived from legal, lawful, valuable, fundamental and constitutional rights.
4. Learned state counsel along with respondents stated that there were 22 posts locations approved by the World Bank (Donor Agency) received through RSU, Education and Literacy Department, Government of Sindh in Taluka Faiz Ganj wherefrom the petitioner belongs to accordingly 2% Disabled Persons Quota, not a single post was left as 2% of a total of 218 seats is 4 (approx.) and all four candidates were chosen from different locations i.e. 1 from Khairpur , 1 from Kingri, 1 from Mir Wah and 1 from Kot Diki; that the last candidate appointed scored 82 whereas petitioner could not attain a spot in the merit list; that NTS is not competent to prepare final merit list, hence claims of the petitioner are to no avail.
5. Before proceeding any further towards merits of the case, it needs to be reiterated that when it comes to fundamental rights , the constitution provides equal protec tion to every single 'citizen'. The term `citizen ', nowhere, permits possibility of any discrimination on count of caste, colour creed or even disability rather places every single 'citizen ' on equal stand. It may well be added that because of typical thinking, prevailed in our culture, the person with a 'disability ', unfortunately , is not viewed 'equal' hence, in our view, would fall within meaning of 'oppressed classes' . For which, the Article 2-A of Constitution (Objective resolution) includes: "WHEREAS adequate provisions shall be made to safeguard the legitimate intere sts of minorities and backward and depressed classes."
6. None can deny the fact that the Government has / had been taking initiatives thereby making provisions so as to give an advantage to persons with disability . Such legislation includes Disab led Persons (Employment and Rehabilitation) Ordinance. Such legislation has been in line with referred principle of objective resolution, therefore, same needs to be in addition to already available rights which one (disable), being a citizen, enjoys. This court recently passed judgment in a similar issue in Muhammad Yousaf's case in which it has been held as under: "Fundamental rights under the Constitution do not distinguish between a perso n 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 epicentre 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 enjoym ent, this includes persons with disabilities, at par with the others. Right to life and right to dignity are deeply interwoven"
7. In the case of Junaid Mahmood v. Government of Punjab PLD 2017 Lahore 1, while dealing with similar issue it was observed as:- "20. The Constitution abhors discrimination and holds that all citizens are equal before 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 violative 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. Non-discrimination as a fundamental right guarantees elimination of discrimination at all levels and, therefore, mandates that reasonable accommodation be provided by the State and other institutions, to actualize his constitutional goal and avoid exclusion of persons with disabilities from effective participation in the society . 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 an freedoms as others. Our Constitution promotes and protects the human rights of all persons inclusive of persons with disabilities. The constitutional values of social, economi c and political justice recognize free choice and individual autonomy for all. Our Constitution is a living document and provides a bold and a passionate constitutional support for persons with disabilities."
8. From above, it may safely be conclude d that a disabled person shall not be made subject to any discrimi nation while considering him for employment rather every possible effort needs to be taken so as to accommodate him. In short, it shall be at discretion of the disable person to apply for his recruitment as an 'ordinary citizen' on open merits if disability , otherwise does not disqualify him or to apply under special provisions. Such choice of the disabled person , however , would not relieve the institution / establishment of its obligation to consider all possible means to accommodate such disabled person , if possible.
9. Reverting to merits of the case, it needs not be reiterated that right to life, as guaranteed by Article 9 of the Constitution, shall always fail in standing well with its objective if one is denied or deprived of any of such thing which otherwise makes his life complete (meaningful). Reference may be made to the case of National Engineering Services Pakistan (NESP AK) (Pvt.) v . Kamil Khan Mumtaz 2018 SCMR 21 1 wherein it is observed as:- "72. It is now well established that right to life as envisaged by Article 9 of the Constitution includes all those aspects of life which go to make a man's life meaningful, complete and worth living."
10. We, without any hesitation, will say that an employment always helps one in claiming his life meaningful and complete , therefore, such right (right to livelihood/employment) needs to be considered as an essential part of the term 'life' . Reference may well be made to the case of Pir Imran Sajid and others v. Managing Director/General Manager and others 2015 SCMR 1257 wherein it is held as:- "9. It is now well established that right to life as envisaged by Article 9 of the Constitution, includes the right to livelihood and as lad down in the case of Abdul W ahab (supra), the 'right to livelihood."
11. It is not a matter of dispute that petitioner did qualify and was placed in merits list at Sr.No.3. It is also not a matter of dispute that there were 22 posts /locations approved by the World Bank (Donor Agency) received through RSU, Education and Literacy Department, Government of Sindh in Taluka Faiz Ganj, therefore, the petitioner was entitled for his recruitment on 'open merits' .
12. Be that as it may, the respondents have taken the plea that petitioner was not considered on his being disabled person because per ratio of 2% there were only four (4) posts out of total posts i.e. 228 and that all four candidates were chosen from different locations i.e. 1 from Khairpur , 1 from Kingri, 1 from Mir Wah and 1 from Kot Digi. We are unable to understand that if the recru itment was being made on 'Taluka basis' , as admitted by respondents that there were '22 posts' in Taluka from where the petitioner applied, then why the ratio of 2% was not applied against such number of posts. It may well be added that per recruitment policy on 'need basis' the person of other Taluka is not entitled for his recruitment against vacant posts available in other T aluka.
13. To properly appreciate such claimed policy , we would add that there can he no denial to the fact that there exists a considerable percentage of disabled persons who, normally are not supported / backed to enjoy equal treatment and opportunity therefore, to have the typical thinking changed the term 'disabled' persons' has been substituted in recent enactment 'Sindh Differently Able persons (Employment, Rehabilitation and Welfare)
Act, 2014' with term 'differently able' . The section 2(d) of the Act reads as:- "differently able persons " means a person who, on account of injury , disease or congenital deformity , is challenged for undertaking any gainful profession or employment in order to earn his livelihood and includes a person who is blind, deaf, physically challenged or mentally challenged;"
Such enactment, so appears from objective of the Act, is meant to provide opportunities of employment, rehabilitation and welfare of ` differently able' person. The same reads as:- WHEREAS it is expedient to provide for the employment, rehabilitation and welfare of differently able persons and for matters connected therewith.
Therefore, it was always obligatory upon the institutions / establishments to give effect to said object and even to look for all possible means to give benefit of above mandatory provision to differently able persons.
14. Let's see what the act says about rights of differently able persons towards their recruitment. The section 8 of the Act reads as:- "(1) Not less than two percent of the total number of the persons employed by an establishment at any time shall be differently able persons ....
(2) The differently able persons employed against any post in pursuance of subsection (1) shall be entitle d to the terms and conditions which are not less favourable than those of the other persons employed by the establishment against similar posts.
(3) When calculating the percentage of the posts in an establishment for the purpose of employment of differently able persons, the fraction of 0.5 and above shall count as a whole number .
15. No doubt, per said provision the fraction of 0.5 or above shall count as a 'whole number' but this prima facie was aimed where 'posts/jobs' are filled in an 'institution' on open merits without 'limitations' of `Taluka (s) / UC(s) '. However , since prima facie, the policy of recruitment is different in 'Education and Literacy department' and its appointments are made on 'need basis' in Taluka / UC which (availability of posts) normally would not exceed '50' hence the application of Section 8 of the Act shall loose its vitality . In addition to above, if such stand of the respondents is accepted the differently able persons shall have to compete on district / division level while the normal persons shall have to compete at their own taluka / UC level only. Such policy prima facie would not be in line with criterion, detailed for applicatio n of Article 25 of the Constitution, in the case of Pakcom Limited v.
Federation of Pakistan PLD 201 1 SC 44 as:
(i) Reasonableness of classification is a matter for the Court to determine and when determining this question, the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and to sustain the classification, they must assume the existence of any state of facts which can reasonably be conceived to exist at the time of the legislation.
(ii)The classification will not be held to be invalid merely because the law might have been extended to other persons who in some respect might resemble the class for which the law is made because the legislature is the best judge of the needs of particular classes and the degrees of harm so as to adjust its legislation according to the exigencies found to exist
(iii) One who, assails the classification must show that it does not rest on any reasonable basis.
(iv) Where the legislature lays down the law and indicates the persons or things to whom its provisions are intended to apply and leaves the application of law to an administrative authority while indicating the policy and purpose of law and laying down the stand ards or norms for the guidance of the designated authority in exercise of its powers, no question of violation of Article 25 arises. In case, however , the designated authority abuses its powers or transgresses the limits when exercising the power the actual order of the authority and not the State would be condemned as unconstitutional.
(v) Where the State itself does not make any classification of persons or things and leaves it in the discretion of the Government to select and classify persons or thing, without laying down any principle or policy to guide the Government in the exercise, of discretion, the statute will be struck down on the ground of making excessive delegation of power to the Government so as to enable it to discriminate betw een the persons or the things similarly situated. ( Ziaullah Khan v . Government of Punjab PLD 1989 Lah. 554 )
16. From above, it is quite clear that the authorities may frame any policy however same must pass the test of its being 'reasonable '. Legally , the differently abled persons have been provided some privileges / advantages but policy of letting 'normal' persons to compete on taluka/UC while differently abled persons on District/Division level cannot be accepted as 'reasonable' .
17. Further , be that as it may, such policy , if allowed to prevail, would not only be at disadvantage of differently able persons but would also be against objec t of said special enactment. It needs not be reiterated that in case of Junaid Mahmood supra, it has been held that: "20. ...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."
Thus, if the recruitment in Education and Literacy department is made on basis of `Talukas/UCs' then the department is required to give all possible relaxation in fraction of ratio of "0.5 percent" to '0.2 or above' so that such police be not at cost of disadvantage of differently able persons or objective of the Act but could promote and help in achieving the object thereof i.e. to "employment, rehabilitation and welfare of dif ferently able persons".
18. It may well be added that to frame policy is domain of the executives but where same is likely to become neck- breaker or absolute hurdle in achieving an otherwise specific object of a lawful commandment because of new situation / circumstance then a departure thereof can well be made or even it can well be suitably amended. The enactment of the Differently able person Act is prima facie with an object to ensure otherwise fundamental rights of a specific class of people i.e. 'differently able persons' therefore, present policy , so being claimed by respondents, i.e. to consider appointment of 'normal persons' on Taluka/UC basis while that of differently able persons on District / Division level, cannot he approved. Reference may well made to the case of Abdul Karim Nausherwani v. State 2015 SCMR 397 wherein it is observed as:- "8. True that elected governments are required to follow the policy once formulated by it for the benefit of public at large but policy cannot be placed on high pedestal than a binding law more so, such policies are framed and formulated so that the public at large get the benefit of the same. If at any point of time the policy becomes neck breaker or absolute hurdle to manage the crises like situation where public at large is the victim of the policy in a newly emerged situation, then such government has a right and privilege to make a departure from the police and even to suitably amend the same. For this very reason if any departure has been made from the policy then laid down, it would not attract penal provision....."
19. Accordingly , the Education and literac y department, Government of Sindh, shall consider the above aspect and set a healthy precedent thereby going a little further to help the differently able persons an ease to get employment in Education and Literacy department. In other words, when 'appointments are to be made in Education and Literacy department on need basis then possible measures needs to be made to suitably give advantage of Section 8 of the Act to differently abled persons because legally a policy should not be in contravention to an 'ACT' nor it should at cost of advantage / privilege, provided by the ACT. We would also add that an 'ACT' would prevail over the policy because policy can never legally subvert the consequences / effects of an ACT, however with regard to teaching recruitment condition of NTS/IBA exam will remain intact. If possible the fraction of '0.5' or above percent may also be brought down to '0.2' or above or as is found reasonable for achieving the object and purpose of 'ACT'. The Advocate General shall convey copy of this judgment to the Secretary Education and Literacy department, Chief Secretary Government of Sindh so that the anguish and pain of persons, likely to arise from such discriminatory policy , falling within meaning of dif ferently able persons.
20. The statement filed by Respondent No. 3 provides a chart, which relates to Taluka-base list. For instance Taluka Khairpur , Faiz Gang, Gambat, Kingri, Mir Wah, Kot Diji, Nara and Sohho Dero have their respective number , derived out of the total seats of 218 of District/Division Khairpur . No doubt Taluka Khairpur contains a merit list of Union Council as well as the candidate securing highest marks should be on the top of the list but when the policy talks that the vacancy shall be filled on need basis then such need should be specified before and at the time of issuance of public notice/advertisement. This filling up of vacancy on need basis cannot be done at the time of tabulation. The need basis should be so transparent as it leaves no question as to why a candidate from any union council is appointed against another candidate of another union council who has secured higher marks. We appreciate, if in future such modus-operandi be exercised so that process be seen as transparent.
21. From the above, it can safely be held that a vested right has been accrued in favour of the petitioner which cannot be deviated from by the Respondents. The Petitioner after passing all the tests was successful candidate in disable quota, therefore, we allow the petition and direct the respondents to appoint the petitioner as Junior School Teacher as and when a vacancy falls vacant.