SYED ARSHAD ALI, J. Through the instant writ petition, the petitioner seeks the constitutional jurisdiction of this Court with the following prayer:- "It is therefore, most humbly prayed that the impugned order dated 09.6.2017 may kindly be declared as illegal, unconstitutional and ineffective upon the rights of the petitioner. That the respondents may please be directed to appoint the petitioner against the post of S. S. T. (BPS-16) being eligible candidate. Any other remedy which this august Court deems fit that may also be awarded in favour of the petitioner."
2. It is averred in the petition, that the petitioner is highly qualified and holding Master Degree in Arabic from the University of Peshawar and also possess a degree of Bachelor of education. The petitioner is also blind by her both eyes and thus is a disable person, however, despite the fact that she topped the merit list, she was ignored and the respondent No. 4, Mst. Bibi Aisha was appointed against the post of S.S.T.
3. The respondents were put to notice, out of whom, the respondent No. 3 i.e. District Education Officer (F), Malakand appeared and contested the petition by filing her written comments. It is alleged in her comments that according to the rules the person cannot be appointed against the quota of disable, whose disability making hindrance in performance of his/her duties, therefore, the petitioner being completely blind could not perform her duties efficiently and the second point which was raised in the said comments that although the petitioner was granted 108.48 marks, however, the said calculation was incorrect because in that calculation the petitioner was awarded marks for acquiring Master Degree, which in-fact she had obtained on 30.12.2016 after the cut-off date for submission of applications i.e. 30th September 2016, therefore, after deduction of her marks she was no more on the top of the merit list.
4. Arguments heard and record perused.
5. It is evident from record that the respondents had advertised various posts of Secondary School Teachers (S.S.T.) through an advertisement published in Daily "Mashriq" on 6th September 2016. According to the advertisement, the cut-off date for receiving applications was 30th September 2016. The petitioner as well as the respondent No. 4 had applied for the said post against the quota reserved for the disabled candidates. According to the record, the written test was conducted on 4th December 2016, however, the record is silent that on which date the documents of the candidates were evaluated for awarding marks to each candidate. The petitioner had obtained her master degree dated 30.12.2016 by securing 699 marks out of 1100 marks. However, the evaluation chart, which is available on the record clearly shows that these 699 marks of the petitioner are duly reflected in the said chart which she has obtained in her Master of Arabic examination, therefore, the only inference is that at the time of evaluation of her documents 9.53 additional marks were awarded to her in respect of her Master Degree in Arabic and thus her total score was 108.48 marks. Whereas the second candidate Bibi Aisha had obtained 104.23 marks, she was also holding a Master Degree. The respondents have refused her appointment against the post of S.S.T on two grounds. Firstly, that the petitioner is blind by her two eyes, therefore, she would not be able to perform her duties and secondly that the petitioner had obtained her Master Degree on 30.12.2016 after the cut-off date provided in the advertisement i.e. 30th September 2016.
6. According to the Esta Code Khyber Pakhtunkhwa Appointment and Promotion Rules 2011, which envisages that the Department shall earmark 2% quota to the disabled candidate, which reads as under:- Notwithstanding anything contained in any rule for the time being in force, two percent of all posts in each basic pay scale to be filled in by initial recruitment shall be reserved for disabled candidates.
True, that the Department has discretion that if a candidate is unable to perform the required duty due to his/her disability, then he/she can be refused appointment, however, the said discretion should be exercised fairly and in a meaningful manner. Blindness per se is not that hindrance which will hamper a teacher to perform her teaching duties. If a blind candidate can obtain a higher education then a question arises that why not he/she will be able to teach the other students efficiently. Even in recent past the Hon'ble Lahore High Court has appointed a Civil Judge who was blind by his both eyes. In this regard, reliance is also placed on Hafiz Junaid Mahmood's case (PLD 2017 Lahore 1). In the said case the Hon'ble Judge His Lordship Syed Mansoor Ali Shah while relying on the certificate of an Assessment Board has held that the petitioner with a permanent visual impairment is fit for job consistent with his experience. Furthermore, the Respondent has obtained no expert opinion on the issue that whether a blind person is able to teach. Therefore, this objection of the Respondent that a blind cannot teach is fallacious and hold no ground.
7. Moving forward to the second objection of the respondents that since the petitioner had obtained her degree on 30.12.2016 after the cut off date, therefore, marks for the said additional qualification should not have been counted in her favour. We have closely perused the advertisement which does not envisage that any qualification obtained after the cut-off date shall not be considered at the time of evaluation of the candidature of the person for the post. The respondents could not place before us any rules or regulation envisaging that the person acquiring qualification after the cut-off date will not be entitled to additional marks for the said qualification. It is further evident from record that the Notification of appointment of respondent No. 4 was issued on 09.06.2017, however, it is evident from quantification of academic record of the petitioner for evaluation of marks that her marks of Master Degree i.e. 699 were duly counted 'and accordingly additional marks were given to her. Therefore, the only inference is that the evaluation of the candidature of the petitioner as well as respondent No.4 were made after the acquisition of their degrees. Since at the time of evaluation of her candidature she was holding the qualification of Master Degree in Arabic, therefore, initially additional marks were rightly given to her.
It is by now settled that when the rules regarding an issue relating to award of additional marks on obtaining higher education training is silent regarding the cut-off date of the acquisition of the said training/degree, then the department shall award the candidates additional marks for the said additional qualification, if the same is available in her favour on the date of quantification of his/her candidature. In this regard, reliance is placed on "Jehanzeb Malik v. Balochistan Public Procurement Regulatory Authority" (2018 SCMR 414), wherein in Para No. 7 of the judgment it was held:- "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 had successfully completed the requisite course work and examination in he 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."
Further reliance can also be placed on Muhammad Nazir Ahmad v. Muhammad Aslam and others (2013 SCMR 363) and Mst. Nusrat Rafi v. Executive District Officer (Education) Faisalabad and 3 others (2010 PLC (C.S.) 257 ).
8. Therefore, both the grounds which prevailed before the Respondents for rejection of the petitioner for appointment against the post of S.S.T were uncalled for, hence, on acceptance of this petition, the impugned order dated 09.6.2017 is set aside and the respondents are directed to appoint the petitioner against the post of S.S.T with immediate effect.
However, it is noted that Respondent No. 4 was appointed against the said post after test and interview and with a transparent process of appointment. Therefore, she has also acquired a right to continue her job under the principles of Locus poenitentiae. In this regard, reliance is placed on "Chairman Selection Committee- Principal, King Edward Medical College Lahore and 2 others v. Wasif Zamir Ahmad and another (1997 SCMR 15)" wherein it was held by the august Supreme Court that:- "We have heard the learned counsel for the parties and have also perused the record with their assistance. We do not find any substance in the arguments of the learned counsel for the petitioners and as such, these are repelled. The above narration of facts demonstrates that respondent No. 1 was presumably given admission on merits by the competent College Authorities after considering his case.
The requisite fee was accepted by them in lien of valid receipts. He was directed to join 1st year class of M. B. B. S. It is admitted that the respondent is likely to complete the second year course of M.B.B.S. This being the position, by lapse of time, the respondent had obtained a valid right to continue his studies. In the given situation; he could not be held to be at fault. It is well-settled that once a right is created in favour of a litigant, in due course of time, it cannot at all be taken back arbitrarily. In the case in hand, admission was given to respondent No. 1 by accepting his credentials and in the result, necessary dues were accepted by the concerned authorities. The learned High Court was eminently justified in accepting the plea of respondent No. 1 to meet the ends of justice. The petitioners cannot be allowed to approbate and reprobate in the same breath. To begin with, they accepted respondent No. 1 to be entitled to get admission and at the belated stage, they took a turn by stating that respondent No. 2 had been accommodated by giving admission instead of respondent No. 1. This was not possible for the petitioners to do so under the settled law. If this was so, it surely occurred because of their negligence for which the respondent not be held responsible. The decision of the petitioners to give admission to the respondent No. 1 as implemented in letter and spirit. He, therefore, cannot be deprived of his vested right which he had earned on basis of act of the petitioners.
Similarly in "Mst. Attiya Bibi Khan and others v. Fede ration of Pakistan through Secretary of Education (Ministry of Education), Civil Secretariat, Islamabad and others (2001 SCMR 1161)" the august Supreme Court, while dealing with the alike matter , held that:- "it is noted that, the phrase "till a decisive step is taken" is very important. There is no doubt that relevant authority can recede before "decisive step" is taken. In these cases, admissions were granted to the candidates, in accordance with the prospectus, and the results were communicated to them before the writs were filed. They had not committed any wrong. Thus, decisive steps in these matters were already taken and thereafter steps contrary to their interest could not be taken. The principle of "locus poenitentiae" is attracted in these matters.
Therefore, the Respondents shall not disturb the appointment of respondent No.4.