The grievance of the petitioner highlighted in the instant writ petition is that he was candidate for the post of ESE
(Arts) against disable quota, but his candidature was not taken into consideration on the pretext that "disability certificate " was not presented within cut date. As such, by filing the instant petition, the petitioner has made following supplication:- " that while accepting this petition, the respondents No.1 to 4 may kindly be directed to issue appointment letter in favour of the petitioner to the post of ESE (Arts) being obtained 62.929 Marks interview, so he is eligible, entitled and fit for getting the said post, also passed the interview and other tests in this regard, in the interest of justice."
2. Respondent No.2 in the comments has maintained that during scrutiny process, it was revealed that disability certificate was furnished by the petitioner after the cut date and as such it was absolutely contrary to the rules/recruitment policy and the advertisement and as such his candidature was rightly rejected.
3. Arguments heard; record perused.
4. Before proceeding with the case, it will be appropriate to examine the sufferings of special persons and the efforts of the Government to rehabilitate them in the society. A disabled person is an individual, whose prospectus of securing, retaining and advancing in suitable employment are substantially reduced as a result of physical or mental impairment. Being responsible citizens of the of Islamic Republic of Pakistan, obtained in the name of Islam in order to spend our lives according to the injunctions of Islam, we should not forget the golden principle of "live for humanity" which is the most important commandment of Allah Almighty and His Prophet Muhammad (Peace Be Upon Him). Undeniably, the State functionaries at all levels are answerable for their dealings towards others (public), they all responsible to look after, protect and safeguard interest of masses especially weaker segment of society i.e. children, women and special persons. Therefore, we should be more careful for the rights of those, who are at the mercy of the society and the State to get basic needs for respectable livelihood.
Worth mentioning that Pakistan is a signatory of the Convention on the Rights of Persons with Disabilities (CRPD) since September , 2008. The purpose of the convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities and to promote respect for their inherent dignity . The role of the Government in providing rights to the people with special needs is to give them legislative protection and institutional facilities for proper education, health, training and rehabilitation so that they could also serve their country as much as possible. In order to overcome vulnerability and with a vision to provide encouraging environment to the persons with disabilities for their empower ment without any discrimination, promulgation of Disabled Persons (Employment and Rehabilitation) Ordinance, 1981, National Policy for Persons with Disabilities, 2002, National Plan of Action for Persons with Disabilities, 2006, Special Citizen' s Act, 2008, Special Citizens (Right to Concession to Movement) Act, 2009 may be considered measures to bring disabled persons into main stream of life. However , it is observed with sorrow that still due to weak enforcement mechanism the service quota specified for the disabled persons is not being followed and even in several departments of the Government, the seats reserved for them are not properly filled. Needless to mention that any hostile or discouraging behaviour of the society may spoil their lives by reducing their potential of doing well and may disintegrate them from the society , who already somehow suffer from inferiority complexes. If their cases are not dealt with this perspective they might be forced to live on charity and Zakat and even begging, which will not only be against dignity of man rather would be violative to the concept of "Islamic Welfare State". Reference in this regard may be made to case Hafiz Junaid Mahmood vs. Government of Punjab and others (PLD 2017 Lahore 1) and Muhammad Yousaf and another vs. Chairman, Federal Public Service Commission and 4 others (PLD 2017 Lahore 406). Although Pakistan is a developing country with a lot of challenges, but this does not mean that we can afford to ignore millions of Pakistanis [with disabilities] who are currently out of sight but who, if given a chance, could contribute significantly to the nation as a whole.
5. Now adverting to the present case, the petitioner has submitted his application for the post of ESE (Arts) by appending relevant documents, except disability certificate on 21.01.2018 (last date for submission of applications), whereas, he submitted his disability certificate to the respondent at the time of scrutiny of documents. His candidature was rejected by the respondents on the ground that he had failed to submit complete documents within target date. This stance of the respondents, to my view, is not correct, fair and in consonance with law/rules and the recruitment policy . It has been held time and again that date for filing applications mentioned in advertisement is an administrative act, as such same could not be considered to be substantive cut-off date or a date after which case of a candidate could not be process ed. As noticed above, the petitioner had submitted his application to the respondents by making substantial compliance. The respondents did not appreciate that in such eventuality "Doctrine of Substantial Compliance" is attracted. In case Parks and Horticulture Authority vs. Muhammad Saleem (2018 PLC (C.S.) 12 ), a learned Division Bench of this Court has held as under:- "The Doctrine of substantial compliance/ performance is a legal principle which states that if a good faith attempt is made to perform the requirements of the agreement even if it does not precisely meet the terms of the agreement or statutory requirements, the performance will still be considered complete if the essential purpose is accomplished. In the impugned order the learned Single Judge has fortified his view by citing judgments of the Hon'ble Supreme Court of Pakistan i.e. Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others (2012 SCMR 455) and Global Textile Mills Ltd. v. Superintendent of Central Excise Circle II (1993 SCMR 900)."
6. Moreover , the Advertisement did not specify or underline importance of date fixed therein for filing applications, therefore, same would have no more importance than that of administrative convenience. The relevance and importance of the date for inviting applications to the post of Elementary School Educator (Arts) was primarily meant to ascertain as to who were the persons, interested in the job, so that they could come forward and apply for the same by a given date. In this case, the actual cut-off date was the date when evaluation process was set in motion. The petitioner appeared in N.T.S. and secured 60 marks in written test and he also passed the interview and had thus legitimate expectation that his case would be considered for evaluation but he was ignored for appointment. The petitioner had supplied documents at the stage when evaluation process was set in motion and as such his vested right could not be taken away by the respondents, therefore, the impugned action of the respondents is in flagrant violation of the legal principle noted above. Reliance in this regard can be placed on case M.Nazir Ahmad vs. Muhammad Aslam and others (2013 SCMR 363), Miss Breshna Haq Tareen vs. Selection Committee, Bolan Medical College Quetta and others (2005 SCMR 351), Mst. Nusrat Rafi vs. Executive District Officer (Education), Faisalabad and 3 others (2010 PLC (C.S.) 257) and Jahanzaib Malik vs. Balochistan Public Procurement Regulatory Authority through Chairman Board of Directors and others (2018 SCMR 414). The facts of Jahanzaib Malik' s case are identical to the facts of the case in hand, wherein the following principle has been laid down:- "7. There is no denial of the fact that the petitioner was at the top of the list on the basis of his performance in the test and interview. Further, he was selected on the basis of his MBA degree. The documents examined by us also indicate that the petitioner has completed his degree in January, 2014 with an cumulative Grade Point Average ("GPA") of 3.19. However, the degree was formally issued on 7th of March, 2015 for reasons beyond the control of the petitioner. The degree itself shows that the petitioner has successfully completed the requisite course work and examination in the academic year 2014. The transcript issued by the Institute of Business Administration, Karachi also verifies the fact that the petitioner had completed his degree in January, 2014. That being the case, Respondents Nos.1 and 2 were justified in considering the petitioner as duly qualified on the basis of his MBA degree from IBA.
8. The fact that the degree was formally issued in year 2015 is not in the facts and circumstances of the present case of much significance. The degree itself shows that the petitioner had successfully completed the requisite course work and examination in the academic year 2014. This is further substantiated by the Transcript of Credit issued by the Institute of Business Administration, Karachi which shows that the petitioner had completed his degree in January , 2014 with an cumulative GP A of 3.19." (emphasis supplied by me).
7. In view of case-law referred supra, it is established that the petitioner has made substantial compliance of the advertisement by supply of copy of disability certificate just at the stage of scrutiny of documents. The petitioner could not be blamed for such delay, as it was beyond his control to produce the copy of disability certificate on cut date, which was provided by the competent authority later on. Moreover, the respondents have not taken into consideration that the petitioner was disabled. It is hard fact that such candidates due to various handicaps cannot move freely. Thus, it is obligation of society as noticed above to facilitate such persons to enable them to get education/jobs and other necessities of life with much convenience. Any bureaucratic treatment with such special persons is even against the mandate of the Constitution of Islamic Republic of Pakistan, and law of the land.
Obviously, for the above good and cogent reasons, the disable quota has been allocated for special persons and the same has to be implemented meticulously and any violation of the same by the executive cannot be approved by constitutional courts on the principle of judicial scrutiny as the courts always have power to 'hear a voice of grievance'. The power assumed by the courts is always backed by the principle 'to provide an opportunity for the victim of an infringement to challenge that infringement'. Needles to mention that inaction on the part of government functionaries is always amenable to power to judicial scrutiny available to the constitutional courts of the country under Articles 184(3) and 199 of the Constitution of the Islamic Republic of Pakistan, 1973.
8. As intimated by the departmental representative in attendance, out of five seats reserved for disable quota, only two candidates were appointed. However he claims that three vacant seats have been returned. Such conduct is also of fensive to the rights of special persons.
9. In view of above discussion, instant petition is allowed and the Chairman, District Recruitment Committee/Deputy Commissioner, Rahim Yar Khan (respondent No.1) is directed to take-up the case of the petitioner and issue appointment letter, if he fulfills the merit in accordance with law/rules within 30 days, from the date of receipt of order of this Court under intimation to this Court through Deputy Registrar (Judicial). Even if for any valid reason, creation of new post is required, the respondent No.1 will timely take all necessary steps in this regard.