1. SYED SHAHID BAHAR, J.---The titled writ petition has been filed by the petitioner by invoking extra- ordinary jurisdiction of this Court provided under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, for redressal of alleged grievance of the petitioner.
2. Facts and the ensuring proceedings relating to the petition in hand:-- The petitioner is 1st Class Subject of the State who claims to be qualified as F.Sc. 1st Division. In response to the advertisement by the University of Health Sciences (UHS) for the purpose of admission quo MBBS/BDS for the session 2021-22 the petitioner amongst other desirous candidates applied against the seats of Azad Jammu and Kashmir Medical College for, session 2021-22 as well as against the reserved seats for Azad Jammu and Kashmir Nationals in different Medical Colleges of Pakistan. The petitioner having requisite qualification submitted an application before the concerned quarter. Consequently, an entry test for the purpose was conducted amongst all desirous candidates against the seats reserved in Azad Jammu and Kashmir Medical College Muzaffarabad as well as other Medical Colleges in Pakistan (in reserved seats for the Subjects of the State). The petitioner further averred that she simultaneously applied against the general seats (reserved for District Muzaffarabad) besides others against the disable quota. Resultantly, as claimed by the petitioner, she obtained 153 out of 210 marks. While the respondents have already chalked out guiding policy notification dated 12.09.2017 for the purpose of evaluating and adjudicating the matters quo disability of candidates and to determine their rights quo admission in Medical Colleges inter-alia other matters regulating and governing such-like matters wherein complete mechanism has been provided for the purpose that too an appellate forum has also been recognized for the safe administration of administrative justice among the contesting candidates. It is further submitted that she is suffering from the disease of visual disability since last 03 years and despite fact by suffering from the same disease she passed higher and secondary exams by obtaining approximately 90% marks. As per her claim she is qualifying against the post reserved for disabled candidates. She was denied to get admission to the aforesaid seat which act of the respondents in view of the petitioner is violative of law, mala fide and ultra vires guidelines envisaged in the said guiding policy notification dated 12.09.2017 (listed with the petition in hand). It is further contended that against the denial of admission in Medical College she opted to file an appeal against the aforesaid decision before the respondent No.2 i.e. Secretary Health in view of clause (i) of Disability Board envisaged in the policy which has not been decided, hence, the captioned appeal.
3. After necessary proceedings, the writ petition was admitted for regular hearing and application for cad-interim relief was also allowed vide order dated 09.12.2021. Against the aforesaid order, respondent No.5 namely Syeda Fatima Zahra (who is also a contesting candidate for quota reserved for candidates having different abilities) filed a petition for leave to appeal before the Hon'ble Supreme Court of Azad Jammu and Kashmir in resultant of which the Hon'ble Apex Court vide order dated 17.12.2021 kept in abeyance the order of this Court through order dated 09.12.2021 and ultimately remanded the case to this Court with consent of the parties for expeditious disposal of the lis within 10 days vide order dated 01.02.2022, hence, the captioned writ petition is being taken up for expeditious disposal accordingly.
4. As previous order of this Court (i.e. Admission of the writ petition) is no more in field, hence, de novo proceedings are requirement of law from initial ebb.
5. Keeping in view the time frame for adjudication of the instant lis i.e. 10 days, having heard both the learned counsel for the parties and perusal of record I am inclined to admit the instant writ petition for regular hearing. Preliminary arguments heard and record zealously perused.
6. Submissions advanced by the learned counsel for the petitioner: - Raja Nasir Latif, the erudite advocate during course of arguments preferred an application for seeking an amendment of formal nature quo adding an additional prayer in the prayer clause seeking adjudication of an appeal (pending adjudication before the respondent No.2). The learned counsel for the respondent No.5 did not oppose the said application which was allowed and the petitioner was directed to file an amended writ petition on the same date i.e. 04.02.2022. Learned counsel staunchly argued that the petitioner has been discriminated and dealt with an arbitrary manner by the respondent-authority after qualifying the test for the slot of reserved seat for a person having different abilities. He further contended that the petitioner has got accrued rights in her favour which cannot be snatched by the respondents at random which act of the respondent is in contravention of the uniform guiding policy notification dated 12.09.2017 (having chalked out by the respondents themselves and has got sanctity of law) as well as akin to denial of fundamental rights enshrined in the Interim Constitution, 1974. Learned counsel further contended that the petitioner is justified to ask for adjudication of her appeal (pending adjudication before the respondent No.2) and beseeched acceptance of the writ petition.
7. Submissions advanced by the learned counsel for private respondent:- While in juxtaposition Mst. Kokab-al-Saba Rohi, erudite advocate for the respondent No.5, by controverting the arguments advanced by the learned counsel for the petitioner tenaciously opposed the stance of the petitioner and vehemently argued that the petitioner has got no locus- standi to file the instant writ petition. She further argued that the petitioner has already been declared incompatible by the Medical Board which is sole prerogative and domain of the said relevant authority and therefore, the matter merits no indulgence at all, that too when appeal of the petitioner is pending adjudication before the respondent No.2 as well.
8. After hearing both the erudite counsel for the parties, the instant writ petition was admitted for regular hearing and the learned counsel for the respondents was directed to file written statement and other record (if any) on 04.02.2022 and the case was fixed for final arguments on 08.02.2022.
9. Keeping in view the peculiar circumstances of the case quo admission in Medical College on the strength of reserved quota for the candidate having different abilities, at the outset, I deem it proper to refer the uniform guiding policy notification dated 12.09.2017 made by the official respondents which caters the situation efficaciously and judiciously. Relevant abstract of the aforesaid policy is reproduced hereunder:- "(22) Disability Board will consist of one Chairman and Five members as below; i)Principal/Chairman JAC (Chairman) ii)One faculty member from General Surgery (Member) iii)One faculty member from Medicine (Member) iv)One faculty member from Orthopedics (Member) v)One faculty member from E.N.T. (Member) vi)One faculty member from Ophthalmology (Member) vii)One additional female member from the faculty (Member) viii)Any consultant relevant to the disability of the person to be examined.(Co-opted Member)
10. Selection will be made from AJ&K State Subject (Domicile of any district of Azad Jammu and Kashmir, excluding Refugees-1947 and 1989).
11. Order No. (24)1/2016 dated 06.01.2017 shall stand amended to the extent of the following: After notification and communication of decision of the Disability Board, appeal against the decision of Disability Board could be made to the Secretary Health with THREE working days. No appeal shall be entertained after this.
12. On receiving an appeal, the Secretary health will re-visit decision by constituting an Appellate Medical Board consisting of three specialists of that specific disability as demand appropriate i.e. Experts for physical disability (Medicines, Surgery, and Allied, Orthopedics), experts for visual disability (Ophthalmology), experts for hearing disability (ENT). This appellant Medical Board is responsible to make recommendations with SEVEN days. Decision of Appellate Medical Board will be final and cannot be challenged."
13. The relevant abstract of the abovementioned policy notification unequivocally reveals and divulges the wisdom of the policy makers under which a specific right of appeal has been given to the aggrieved student before Secretary Health against the decision of the Disability Board and complete mechanism/road map for adjudication and disposal of an appeal has been envisaged in the aforesaid policy as well, that too the right of an appeal taking breath from the policy notification issued by the Competent Authority can safely be termed as a substantive right for the purpose.
14. Modus operandi for adjudication of the aforesaid appeal is well-rationalized and structured at the scale and compass of administrative justice as it. is incumbent upon the respondent secretary at the eve of receiving an appeal to constitute a Medical Board consisting of three specialists of that specific disability as deem appropriate and the Medical Board is responsible to make decision within 07 days and finality has been given to the said decision as per policy notification dated 12.09.2017.
15. As per pleaded stance of the petitioner, in my estimation the petitioner has already approached at an appellate forum by preferring an appeal on almost same grounds agitated herein before this Court and after institution of an appeal before an appellate forum (pending adjudication) petitioner's simultaneous approach to switch over from there by filing the instant writ petition for adjudication of the technical matter is not tenable in toto.
16. In backdrop of the factual matrix of the case and saga of the surrounding circumstances oozing from the pleadings of the parties I am of the considered opinion that it is a matter requiring deliberation and adjudication by the technical experts having adequate knowledge and acumen in the field in order to adjudicate compatibility or incompatibility of a candidate or for that matter to differentiate the proposition in light of the set principles of medical jurisprudence and other enabling laws and the policy making authority on the yardstick and rationale of the same to adjudicate the disputes in proper manner. Therefore, it is premature to seek judicial review over the matter which is yet to be decided by the proper forum.
17. Before parting with the judgment, I would like to take up the pivotal point involved in the lis; in essence quota for disabled persons in educational intuitions keeping in view its chronological background.
18. Word "disability" in legal parlance: Firstly, this Court has to dig out and describe the word "disability" in its legal parlance. In this regard suffice it to refer dictionary meaning of the word "disability" enunciated in Black's Law Dictionary 11th Edition i.e. (i). the inability of one person to alter a given relation to another person; (ii). an objectively measurable condition of impairment, physical or mental especially one that prevents a person from engaging in meaningful work (also termed handicapped/incapacity).
19. Furthermore, different kinds of disability have also been envisaged in Black's Law Dictionary which are numerically fourteen in number i.e.:-- 1.Absolute disability; 2.Developmental disability; 3.Intellectual disability; 4.Legal Disability; 5.Partial disability; 6.Permanent disability; 7.Personal disability; 8.Physical disability; 9.Short term disability; 10.Temporary disability; 11.Temporary total disability;12.Total disability; 13.Canonical disability; 14.Civil Disability; Concept of disability means lacking one or more physical powers as the ability to walk or to coordinate one's movements, as from the effects of a disease or accident or through mental impairment. According to the UN Convention on the Rights of Persons with Disabilities (CRPD) ratified by Pakistan in 2011, persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in integration with various barriers may hinder their full and effective participation in society on an equal basis with others.
20. The Azad Jammu and Kashmir Medical College Muzaffarabad has chalked out uniform policy notification for admissions (having sanctity of law) wherein concept of reserve quota for the candidates with% different abilities generally known as disabled persons has been manifested and usual word of disable seats and likewise disable category is being used and employed therein.
21. Even for that matter in all other statutory rules and policies identical/similar word is used. At the outset, words such as disability, disable, physically handicapped and emotionally retarded on the very face of it sound pejorative and such words deeply bruise and offend human dignity of persons having different abilities (particularly against the young generation who are at the grooming stage of their careers in vast field of competition). The Hon'ble Apex Court of Pakistan in the case titled Malik Ubaidullah v. Government of Punjab reported as [PLD 2020 SC 599] (Vertical precedent) has efficaciously dealt with the matter and directed both the Federal and Provincial Governments to discontinue the use of such words in official correspondence, directives, notifications and circulars and shift to "persons with different abilities".
22. Likewise in a horizontal precedent of Lahore High Court titled Barrister Asfandyar Khan Tareen v.
23. Government of Punjab and others reported as [PLD 2018 Lahore 300] same observation was made by the Lahore High Court that pejorative words like crippled or disabled seriously offend the right to be a person thereby infringing constitutional guarantees like right to life, right to human dignity and right to non-discrimination of persons with disabilities, thereby violating Articles, 9, 14 and 25 of the Constitution, 1973.
24. In saga of the above discussion I myself feel that words such as disability, disorder, physically handicapped etc. employed in different statutory rules and policy notifications/government circulars are directly in contravention to the constitutionally guaranteed rights i.e. fundamental right No.1 and right No.15 and the said unpleasant words sound unhealthy classification resulting mental agony to the people having different abilities. Hence, 'having burdened with heavy responsibility quo enforcement of Constitutional fundamental rights of the subjects of the State I direct the Government of Azad Jammu and Kashmir and to all other functionaries of the Government including AJ&K Medical College to do needful regarding substitution of words "disability", "physically handicapped". "crippled" etc. with "differently abled persons" or "persons having different abilities" wherever it is written in such like rules and Policy notifications etc. in order to mentally uplift people with different abilities in our societal fabric and bring them at par with the general public. As the candidates/people having different abilities should have been treated as a preferred segment of society particularly in a situation when on account of having different abilities they instead of losing their hearts remain steadfast and show resilience by zealously competing in different walks of the life.
25. Now dealing with the proposition in hand, it transpires from the record and pleadings of the parties that the appeal of the petitioner is pending adjudication before the appellate authority i.e. respondent No.2 who is under legal obligation to constitute Medical Board comprising three members for adjudication of an appeal by either way, therefore, for the safe administration of justice it is not appropriate to pre-empt and sit over the decision of the appellate forum (requiring professional and technical acumen which is yet to be divulged) that too when the same is a disputed question of fact requiring detailed probe and evidence. I am not inclined to decide the entire controversy myself albeit depending, upon facts of the each case sometimes this Court can enter into the factual realm of the case by deciding such controversies as well. Therefore, in my estimation the only relief beseeched by the petitioner which seems to be maintainable is the direction to the respondent No.2 (appellate authority) quo deciding her appeal in accordance with the scheme of policy notification and principles of law. This view is supported by the case law titled Muhammad Arshad Mirza v. DG WA and 4 others reported as [2004 YLR 2108] wherein it has categorically been laid down that the High Court has ample jurisdiction to give direction to public functionaries to act in accordance with law.
26. I am also fortified to follow the ratio decidendi of the case law of the Hon'ble Apex Court i.e. vertical precedent in the case titled Maulana Ghulam-ud-Din v. Azad Government and others reported as [1998 SCR 194], wherein writ of mandamus was issued to the appellate authority for deciding appeal of the petitioner (therein). Besides other vertical precedents, notification dated 12.09.2017 is a law which provides a remedy of an appeal to the aggrieved one under Rule 5 sub-rule (22) clause (a) of the said policy notification wherein complete mechanism has been provided for its disposal, vertical precedent in this regard is case law titled Muhammad Riaz Khan v. IGP and others reported as [2010 SCR 131] wherein it has been laid down as under:- "Administrative instructions issued by the authority competent to alter or amend the rules can be as effective as statutory rules."
27. Thus the main plank on which the case of the petitioner rests and rotates around is adjudication of an appeal sub-judice before the respondent No.2.
28. The compendium of the above discussion is that the respondent No.2 is directed to decide/adjudicate the appeal of the petitioner expeditiously by either way, after complying with all the prerequisites envisaged in the policy notification dated 12.09.2017 strictly prior to finalization of the admissions by providing an opportunity of hearing to the respondent No.5 as well The instant writ petition is disposed of in the supra indicated manner.
29. NOTE:- (Copy of the judgment shall be served upon to the Secretary Services and General Administration as well as to the Secretary Law for compliance of underlined para at pages Nos.10 and 11 of the judgment i.e. substitution of words "disability", "physically", "handicapped etc." with "differently abled persons" or "persons having different abilities" wherever it is written in suchlike Rules/Policies and notifications etc.)