Tariq Saleem Sheikh, J. The Petitioner and her husband Abdul Haseeb Amin are visually impaired persons. On 1.12.2020 the Petitioner was appointed as Senior Special Education Teacher (Visually Impaired Field) in BS-17 on a five-year contract and posted at the Government Special Education Centre, Phalia, District Mandi Bahauddin. On the other hand, Amin is serving as Naib Qasid (BS-1) and is presently posted in the Finance Department, Punjab Civil Secretariat, Lahore. The Petitioner applied to the Secretary Special Education (the "Secretary") for her transfer to Lahore against a vacancy which occurred on the superannuation of Mrs. Tehmina Shahid but he did not attend to her request. She filed Writ Petition No.16818/2021 in this Court which was disposed of vide Order dated 11.3.2021 with a direction to the Secretary to decide her representation. The latter rejected it by Order dated 29.4.2021 on the ground that the Government had imposed a ban on all kinds of transfers. In the month of July 2021 the said embargo was lifted whereupon the Petitioner tried to apply for transfer through the online portal but it was dysfunctional so she couldn't get through and moved a written application to the Secretary . In the meanwhile, she learnt that a post had become vacant at the Government Secondary Institute for the Blind, Sheranwala Gate, Lahore, owing to the promotion of the incumbent. She immediately made a representation to the Secretary but he ignored it. The Petitioner approached this Court through Writ Petition No. 50317/2021 complaining against his inaction. This Court, vide Order dated 13.8.2021, directed the Secretary to decide her aforesaid representation in accordance with law within 15 days. The Secretary heard the Petitioner and, vide Order dated 23.9.2021, rejected it on two grounds: first, as per Transfer Policy-2020 the Government could consider teachers' requests for transfer only during summer vacations subject to the condition that the applicant had served at least three years at the current place of posting. Secondly , there was once again a ban on transfers and postings. Accordingly , the Secretary advised the Petitioner to apply through the online portal at the appropriate time. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"), assails the vires of Order dated 23.9.2021 (the "Impugned Order").
2. The counsel for the Petitioner contends that the Secretary has passed the Impugned Order without considering the relevant law and facts. The Wedlock Policy entitles the Petitioner to be trans ferred and posted at the same station as her husband. Further , the Petitioner is a special person and clause 10(b) of her contract contains a specific stipulation that the Competent Authority shall allow one-time transfer during five years as a special dispensation and a woman employee may be allowed an additional chance of transfer to the place of residence of her husband. As regards the online portal, the counsel contends that it was officially opened from 12.7.2021 to 8.8.2021 but was dysfunctional which could be got confirmed by this Court. The Petitioner , therefore, made a written application to the Secretary which he rejected on 29.4.2021. Subsequently , when the vacancy accrued at the Sheranwala Gate institute the said portal was closed so it was not possible for her to apply online.
3. The Assistant Advocate General contends that the question of posting/transfer relates to terms and conditions of service of a civil servant. Hence, this petition is not maintainable and the Service Tribunal has exclusive jurisdiction in the matter in terms of Article 212 of the Constitution. On facts the Law Officer submits that the Impugned Order is well reasoned and no exception can be taken thereto. The Petitioner should apply for transfer through the online portal when it would be opened next summer as per Transfer Policy-2020. The Secretary cannot entertain any application delivered by hand or through post during the year .
4. I first take up the objection regarding maintainability of this petition. It is true that all transfer matters fall within the ambit of "terms and conditions of service" and the Service Tribunal has exclusive jurisdiction in respect thereof under Article 212 of the Constitution. This case, however , involves interpreta tion of fundamental rights with reference to persons with disabilities so the objection is overruled.
5. The International Bill of Human Rights, which contains the United Nations Charter , the Universal Declaration of Human Rights and the two International Covenants of Human Rights , forms the foundation of international human rights law. On 13 December 2006 the United Nations General Assembly adopted the Convention on the Rights of Persons with Disabilities (CRPD) and its Optional Protocol (A/RES/61/106) which was opened for signatures on 30 March 2007. "It takes to new height the movement from viewing persons with disabilities as 'objects' of charity , medical treatment and social protection to viewing persons with disabilities as 'subjects' with rights, who are capable of claiming those rights and making decisions for their lives based on their free and informed consent as well as being active members of the society. The Convention is intended as a human rights instrument with an explicit social dimension. It adopts a broad categorization of persons with disabilities and reaffirms that all persons with all types of disabilities must enjoy all human rights and fundamental freedoms. It clarifies and qualifies how all categories of rights apply to person with disabilities and identifies areas where adaptations have to be made for persons with disabilities to effectively exercise their rights and areas where their rights have been violated, and where protection of rights must be reinforced."
6. Disability is an evolving concept. In Malik Ubaidullah v. Government of Punjab and others (PLD 2020 SC 599) the Hon'ble Supreme Court of Pakistan held that "there are two main threads to the concept of disability: the medical model and the social model. Both models regard disability as a difficult predicament commonly faced by people; however , while the medical model looks at disability as a condition requiring medical intervention, the social model looks at it as a condition that requires the transformation of societal attitudes and State policies. The medical model views disability as an impairmen t due to various health - related factors which can be identified and eradicated through medical treatment. On the other hand, the social model identifies systemic barriers, negative attitudes and exclusion by society and argues that societal attitudes and environment are the main barriers for people with disabilities."
7. The CRPD aims to ensure full measure of human rights and fundamental freedoms for all persons with disabilities and, to this end, promotes the following principles:
(a) Respect for inherent dignity , individual autonomy including the freedom to make one's own choices, and independence of persons;
(b) Non-discrimination;1 2 3 4 5
(c) Full and ef fective 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.
8. Article 27 of the CRPD obligates the State Parties to recognize the right of persons with disabilities to work with others on an equal basis and sets out a non-exhaustive list of steps, including legislation, which they should take for this purpose. Clause (i) of Article 27 requires the State Parties to ensure that reasonable accommodation is provided to persons with disabilities in the work place. This provision is reinforced by Article 5(3) which stipulates that denial of reasonable accommodation constitutes a discrimination on the basis of disability . The expression "reasonable accommodation", according to Article 2 of the Convention, 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 freedoms."
9. The UN Committee on the Rights of Persons with Disabilities provides authoritative guidance to the States about the provisions of the CRPD through its General Comments to enable them to fulfil their obligations. General Comment No.6 (2018) explains that reasonable accommodation duties are different from accessibility duties although both aim to guarantee accessib ility. The duty to provide accessibility through assistive technologies is an ex ante duty whereas the duty to provide reasonable accommodation is an ex nunc duty. The Committee elucidates:
(a) As an ex ante duty, accessibility must be built into systems and processes without regard to the need of a particular person with a disability , for example, to have access to a building, a service or a product, on an equal basis with others. State Parties must set accessibility standards that are developed and adopted in consultation with organizations of persons with disabilities, consistent with article 4(3) of the Convention. The duty of accessibility is a proactive, systemic duty;
(b) As an ex nunc duty, reasonable accommodation must be provided from the moment that a person with a disability requires access to non-accessible situations or environments, or wants to exercise his or her rights.
Reasonable accommodation is often but not necessarily requested by the person who requires access, or by relevant representatives of a person or a group of people. Reasonable accommodation must be negotiated with the applicant(s). In certain circumstances, the reasonable accommodation provided becomes a collective or public good. In other cases, the reasonable accommodations provided only benefit the applicant(s). The duty to provide reasonable accommodation is an individualized reactive duty that is applicable from the moment a request for accommodation is received. Reasonable accommodation requires the duty bearer to enter into dialogue with the individual with a disability . It is important to note that the duty to provide reasonable accommodation is not limited to situations in which the person with a disability has asked for an accommodation or in which it could be proved that the alleged duty bearer was actually aware that the person in question had a disability . It should also apply in situations where a potential duty bearer should have realized that the person in question had a disability that might require accommodations to address barriers to exercising rights.
10. The Committee has enumerated the key elements in General Comment No.6 that guide the implementation of the duty to provide reasonable accommodation. These include:
(a) Identifying and removing barriers that have an impact on the enjoyment of human rights for persons with disabilities, in dialogue with the person with a disability concerned;
(b) Assessing whether an accommodation is feasible (legally or in practice) - an accommodation that is legally or materially impossible is unfeasible;
(c) Assessing whether the accommodation is relevant (i.e., necessary and appropriate) or effective in ensuring the realization of the right in question;6 7 8
(d) Assessing whether the modification imposes a disproportionate or undue burden on the duty bearer; the determination of whether a reasonable accommodation is disproportionate or unduly burdensome requires an assessment of the proportional relationship between the means employed and its aim, which is the enjoyment of the right concerned;
(e) Ensuring that the reasonable accommodation is suitable to achieve the essential objective of the promotion of equality and the elimination of discrimina tion against persons with disabilities. A case-by-case approach based on consultations with the relevant body charged with reasonable accommodation and the person concerned is therefore required. Potential factors to be considered include financial costs, resources available (including public subsidies), the size of the accommodating party (in its entirety), the effect of the modification on the institution or the enterprise, third-party benefits, negative impacts on other persons and reasonable health and safety requirements. Regarding the State party as a whole and the private sector entities, overall assets rather than just the resources of a unit or department within an organizational structure must be considered;
(f) Ensuring that the persons with a disability more broadly do not bear the costs;
(g) Ensuring that the burden of proof rests with the duty bearer who claims that his or her burden would be disproportionate or undue.
11. In Vikash Kumar v. Union Public Service Commission (AIR 2021 SC 2447) the Supreme Court of India held that the principle of reasonable accommodation envisages a considerate society which creates conditions conducive to the growth and fulfilment of the people with disabilities at every stage of their lives. In this regard the policy makers have a heavier responsibili ty. They are required to comprehend disability in all its dimensions and to design measures which are proportionate to their needs and aspirations. Even if he is a class of his own, his needs must be met.
12. The European Social Charter also contains special provisions for the persons with disabilities and guarantees them the right to independence, social integration and participation in the life of the community . To this end, Article 15(1) requires the State Parties to provide them education and vocational training. Article 15(2) calls upon them to promote their access to employment and adjust the working conditions to their needs and Article 15(3) urges them to promote their social integration and participation in the life of the community through measures, including technical aids, aiming to overcome barriers to communication and mobility and enabling access to transport, housing, cultural activities and leisure.
13. The Sustainable Development Goals have ushered in a new era of global deve lopment. "Leave no one behind" is the overarching principle of these goals. Although all the goals are universal (i.e. they include everybody without an exception), disability is referenced in various parts thereof. It is more explicit in five goals which relate to education, growth and employment, inequality , accessibility of human settlements and monitoring of the SDGs.
14. Pakistan has ratified core internation al human rights treaties/conventions that cover diverse areas, including civil and political rights, the rights of children, women and persons with disabilities. On 5 July 2011 she ratified CRPD. The general rule is that the provisions of a treaty are not automatically incorporated into municipal law and a country' s legislature must enact law to implement them. In Pakistan, even where such legislation has not been passed, the courts are required to interpret and apply every statute, as far as its language admits, in accordance with the principle of comity of nations and established rules of international law. Reliance is placed on The Hanover Fire Insurance Company v. Messrs Muralidhar Banechand (PLD 1958 SC 138), Al-Jehad Trust through Habibul Wahab Al-Khairi, Advocate, and 9 others v. Federation of Pakistan through Secretary , Ministry of Kashmir Affairs, Islamabad and 3 othe rs (1999 SCMR 1379 ) and Human Rights Case No.29388-K of 2013 (PLD 2014 SC 305 ).
15. Our Constitution does not distinguis h between the persons having disabilitie s and others. In Hafiz Junaid Mahmood v. Government of Punjab and others (PLD 2017 Lahore 1) Syed Mansoor Ali Shah, C.J. held that our constitutional values, which are highlighted in its preamble, include democracy , freedom, equality of status, equality of opportunity , equality before law, tolerance, social and economic and political justice, and freedom of thought, expression, belief, faith, worship and association (subject to law and morality). These values are9 10 preserved by way of fundamental rights which provide a "robust platform for mainstreaming persons with disabilities." His Lordship added: "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."
16. In Malik Ubaidullah v. Government of Punjab and others (PLD 2020 SC 599) the Hon'ble Supreme Court has held that the concept of reasonable accommodation articulated in CRPD should be followed in Pakistan in true spirit inasmuch as we have ratified the Convention.
17. The principle of reasonable accomm odation also lies at the heart of this case. On 22.12.2021 the Secretary Special Education appeared before this Court and stated that the Petitioner 's request for transfer has to be considered in accordance with the Punja b Government' s Transfer Policy-2020 and he had no authority to deviate from it. In the circumstances, this Court directed the Chief Secretary , Punjab, to personally look into the matter .
18. The Chief Secretary has submitted his report which is placed on record. According to him, the Transfer Policy- 2020 of the Special Education Departme nt, which was approved by the Provincial Cabinet in its meeting held on 17.12.2020, prescribes the following mechanism/criteria for transfers and postings of teachers:
(a) The requests for transfer would be entertained only during summer vacations as per schedule notified by the Department every year;
(b) Every teacher must serve at least three years at the place where he/she is posted;
(c) No transfer shall be made except against a vacant post;
(d) The post-specific criteria for posting/transfer would be as under: i) Service in far flung area 30 marks ii) Seniority 10 marks iii) W edlock 15 marks iv) Compassionate grounds 10 marks v) Disability 20 marks vi) Academic results 15 marks
19. The Chief Secretary has further stated that the following amendments have been proposed in the Transfer Policy-2020:
(a) The points/marks for compassionate grounds are sought to be increased from 10 to 20 with these stipulations: i) If the male applicant is widower and the female applicant is widow or divorced, he/she will get 20 marks subject to production of death/divorce certificate and no marriage certificate; or ii) If an applicant has child/children suffering from severe illness/disability and that illness/ disability is verified by the medical specialist and countersigned by concerned Medical Superintendent of the relevant district; or iii) If the spouse of an applicant (whether he/she is disabled or not disab led) is suffering from severe illness/disability and that illness/disability is verified by the medical specialist/Standing Medical board and countersigned by concerned Medical Superintendent of the relevant district and he/she produces Disability Certificate, then the applicant will get 20 marks.
(b) The points/marks for "Wedlock" have been proposed to be enhanced from 15 to 20 subject to the conditions mentioned hereunder: i) All claims for transfer on wedlock basis , when both husband and wife are Gove rnment servants, are subject to availability of the post and production of Nikah Nama and certificate issued by the respective department. ii) The applicant shall be eligible to get 20 marks if he/she applies for transfer on wedlock basis.
(c) The points/marks for disability have been proposed to be enhanced from 20 to 30 with the condition that: The disability for this purpose will be counted which hinders mobility . A disabled applicant shall get 30 marks subject to production of disability certificate from the Standing Medical Board.
20. This Court has been apprised that the proposed amendments have been submitted to the Chief Minister for approval in terms of Rules 5(b) and 14(1) of the Punjab Government Rules of Business 2011. Further , the Administrative Department has been directed that if delay is anticipated in the approval of the proposed amendments, the order of the Chief Minister may be sought for relaxation of policy and ban on transfer so that the Petitioner 's case may be reconsidered.
21. The Government should be sensitive to the needs of the citizens with disabilities. This case illustrates how it is failing in its duty. The authorities did not realize that the Transfer Policy should be more accommodative until this Court expressed concern. Anyway , since the matter is now before the Chief Minister , I would direct him to consider the above-mentioned proposals expeditiously , including those which specifically relate to the Petitioner .
22. This petition is disposed of with the above direction. Muhammad Akram Malik v. Province of Sindh through Chief Secretary , Government of Sindh, Karachi and 2 others [2002 PLC (CS) 1037]; Muhammad Ibrahim v. Secretary to Government of Sindh and 3 others [2014 PLC (CS) 234]; and Aftab Muhammad Khan v. The Federation of Pakistan through Secretary Ministry of Commerce and 2 others [2019 PLC (CS) 1483]. International Covenant on Civil Political Rights (ICCPR), and International Covenant on Economic, Social and Cultural Rights (ICESCR). https://www .un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities.html Preamble of CRPD. Article 3 of CRPD. Established under Article 34 of CRPD https://www .ohchr .org.en/treaty-bodies/crpd/general-comments Available at: CRPD/C/GC/6 See Sustainable Development Goals 4, 8, 10, 1 1 & 17. Manual on Mental Health and Mens Rea, Justice Project Pakistan, p. 37