WIQAR AHMAD, J. Petitioner is aggrieved of denial of respondents in respect of his appointment on the post of Primary School Teacher (hereinafter called as "PST" ) in the two percent quota reserved for special persons.
2. Petitioner has contended in his writ petition that respondent No. 3 i.e. District Education Officer (M) Malakand invited applications for the posts of PST by publishing proclamation in daily newspapers. He applied for appointment against the posts, qualified his NTS test and was placed on the 4th position of the provisional merit list of special persons. He further contended that the three special persons ahead of him had also been able to get appointed on merits, therefore he becam e on top of the merit list of special perso ns with 110. 63 marks. He was denied appointment and instead respondents No. 4 to 5 have been appointed with 109.64 marks, 109.61 marks and 108.45 marks. Feeling aggrieved therefrom petitioner has invoked constitutional jurisdiction of this Court with the following prayer; "It is therefore very humbly prayed that, on acceptance of this writ petition; a. The impugned order dated 15.07.20 20 to the extent of appointment of respondent No. 6 at GPS Parlai Khpa (Thana) may kindly be declared illegal upon the right of petitioner , be set aside. b. The respondent No. 4 may kindly be directed to appoint the petitioner on PST on 2% quota reserved for special persons as applied for .
Any other relief not specifically but this august Court deems proper may also be granted."
3. Respondent No.3 was directed to file his para-wise comments, which have accordingly been filed. Merit position of the petitioner was not disputed by respondents, they have instead forwarded a reason that disability certificate had been issued to him, by District Officer Social Welfare, Special Educat ion and Women Development Department Malakand, after the cut-of f date given in the advertisement i.e. 10.06 .2019. He was accordingly not found eligible for appointment.
4. Learned counsel for petitioner relied upon judgments of Hon'ble Apex Court rendered in the case of "Jehanzeb Malik vs Balochistan Public Procurement Regulatory Authority" reported as "2018 SCMR 414", the case of "Muhammad Nazir v/s Muhammad Aslam and others" reported as 2013 SCMR 363 and contended that when a degree obtained after the cut-of f date can be considered, then why not a certificate of disability issued after the cut- off date be considered, when a person is in-fact a special person.
5. Learned Astt: A.G submitted in rebuttal that the cut-of f date given in the advertisement was 10.06.2019, the disability certificate had been issued on 10.03.2020 while the date of interview was 07.07.2020 and appointments had been effected on 15.07.2020. Learne d Astt: A.G submitted that a person not qualified on the cut-of f date given in the advertisement cannot be considered for appointment as per standing practice of the department.
6. We have heard arguments of learned counsel for petitioner , learned Astt:A.G for official respondents and perused the record.
7. Perusal of record reveals that it is not disputed that petitioner has been ahead of respondents No. 4 to 6, who have been appointed. Respondents have raised no objection vis-a-vis eligibility of the petitioner for appointment on the subject post except that the disability certificate had been issued to the petitioner on 10.03.2020, which was after the cut-of f date given in the advertisement and could not therefore be conside red. It is evident from minutes of the Departmental Selection Committee that it had met on 07.07.2020, by which date disability certificate had duly been issued and presented to them. It is mentioned in minutes of the Departmental Selection Committee that the certificate had been produced before the selecting authorities but it was not considered for the only reason that same had been issued after the closing date of 10.06.2019. In our view, it has not been a reason sufficient for disqualifying the petitioner in the process of recruitment. In the case of "Jehanzeb Malik vs Balochistan Public Procurement Regulatory Authority" reported as "2018 SCMR 414" Hon'ble Apex Court had considered a degree of MBA issued to petitioner in the said case, after the cut-of f date given in the advertisement, to be valid for the purpose of appointment. Relevant findings of the august Court in said case are reproduced hereunder for ready reference; "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 degr ee. The documents examined by us also indicate that the petitioner has competed his degree in January , 2014 with an cumulative Grade Point Average ("GP A") 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 had 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 & 2 were justified in considering the petitioner as duly qualified on the basis of his MBA degree from IBA."
In the case in hand it is not denied that petitioner has been a special person having a physical disability . Mere procuring of certificate after the cut-of f date would not therefore debar him from appointment, when he was otherwise entitled to be appointed on the post of PST. It has also been mentioned in minutes of Departmental Promotion Committee that CNIC of the petitioner had not been bearing the disable logo. When the disability certificate was produced by the petitioner during the process of recruitment, and it has nowhere been disputed that petitioner has been a special person, then the disability certificate issued by the competent forum was a sufficient proof of the fact of disability of the petitioner , which should have been considered by the appointing authority . We find denial of respondent No. 3 to the petitioner for appointment on the post of PST, as inappropriate, irrational and violative of the rights of petitioner to be treated in accordance with law. Resultantly , we allow the instant writ petition and grant the relief as prayed for .
8. Learned Astt:A.G was asked to verify from department whether any vacant seat was available with the department, so as to appoint the petitioner without disturbing respondent No. 6, who has also been a special person. He took some time and thereafter informed this Court that two seats were still vacant with the department.
In circumstances of the case, we would therefore direct that petitioner shall be appointed without removing respondent No. 6.