MUHAMMAD NAEEM ANWAR, J. By invoking the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, through instant petition, the petitioner seeks the following relief: "It is, therefore, most humbly prayed that on acceptance of this writ petition the action and inaction of the respondents by not appointing the petitioner under 2% disable quota 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 in light of Rule 10 Sub-Rule (5) against any one of the three posts i.e. A.T, Qari and T.T; that any other relief deems fit in circumstances of the case may also be awarded in favour of petitioner."
2. Arguments heard and record perused.
3. It appears from the record that pursuant to the advertisement of respondent No.3 i.e., District Education Officer (Male), District Chitral Lower, the applications were invited for the posts of Theology Teacher (BPS-15), Arabic Teacher (BPS-15) and Qari/Qaria (BPS-12) etc. which were to be submitted before 10th of June, 2019. In terms and conditions of the advertisement at serial No.3, it was categorically mentioned that 2% of the posts shall be filled from the disable quota/candidates, on the certificate issued by Standing Medical Board. Accordingly, the petitioner applied for all the three posts i.e., TT, At, and Qari in consonance with the procedure. The factum of disability, requisite certificate was not only properly mentioned in the petition but the disability certificate annexed with the petition was also admitted by the respondents in their comments. Respondent No. 3 in his comments contended that owing to non-availability of the post in term of 2% disable quota for the posts applied by the petitioner, he was not appointed. Record promulgates that for the post of A.T, the petitioner was at serial No.2 while one Ali Rahman was at serial No.1 of the merit list who has submitted an affidavit that due to his appointment as P.S.T, he relinquishes his right for his appointment as Arabic Teacher. Record further transpires that for the post of Qari, except petitioner none else is in the merit list competing with him whereas, for the post of T.T, there were seventeen candidates in the merit list, wherein the present petitioner was at serial No.5. For redressal of his grievance the petitioner has submitted representation but no heed was paid to it.
4. Furthermore, respondent No.3 has submitted a report of the Committee regarding appointment of various cadre teachers in Elementary and Secondary Education under 2% disable quota. The particulars of total sanctioned posts, upgraded posts, remaining posts with all break up mentioned in said report is reproduced as under: Sr. #Cadre.Total No. of sanctioned postsNo.33 % upgraded post No. of remaining posts No. of post under 2% disabled quota No. of employees already appointed under 2% disabled quota Shortfall Excess Remarks 1SST (Gen)325 0 325 6.5 3 3.5 0 2SST (B+C)86 0 86 1.72 1 0.72 0 3SST (P+M)86 0 86 7.72 1 0.72 0 4C.T 475 36 318 6.36 9 0 2.64 5P.E.T 110 36 74 Quoa does not Exist 6D.M.109 36 73 As above 7A.T 117 39 78 1.56 3 0 1.44 8T.T 178 59 119 2.38 6 0 3.62 9Qari60 20 40 0.80 2 0 1.20 10P.S.T 548 0 548 10.96 11 0 0.04
5. When the learned A.A.G was asked about the total strength of the sanctioned posts, he after proper calculation submitted that there were 2094 sanctioned posts in the establishment, wherefrom 36 appointments have been made against disabled quota. But contended that the post for which the petitioner applied; the respondents have already made appointment against the quota reserved for disabled persons. Section 10 (1) of Khyber Pakhtunkhwa Disabled Persons (Employment and Rehabilitation) (Amendment) Act, 2012 manifests that not less than two percent of the total number of persons employed by an establishment at any time shall be the disabled persons. It is not disputed that petitioner has applied in the prescribed mode. This controversy has been put to rest B by the Hon'ble Supreme Court in the case of Sajjad Ali v. Vice-Chancellor through Registrar University of Malakand at Chakdara, Dir Lower and others (20202 SCMR 124) wherein, while interpreting section 10 (1) of the Act (supra) it was ruled that under section 10, the quota for disabled persons in an establishment is calculated on the basis of the total number of persons employed by the establishment and not on the basis of the number of posts advertised at a given time. Rule 23(5) of Khyber Pakhtunkhwa Disabled Persons (Employment and Rehabilitation) Rules, 1991 provides that when any establishment employs a disabled person referred to it by the Manger, it shall inform the Manager of such employment on a Form PCRDP-V.
After the receipt of such information from the establishment the manger shall make suitable entries on the statement (PCRDP-IV) and also send a copy thereof to the social welfare officer concerned. The manager shall also strike of the name of the disabled person so employed from the register (PCRDP-II) and sub rule (6) is to the effect that in the event of the establishment not employing a disabled person in accordance with recommendation to the manager, it shall send a report to this effect together with the reasons for non-compliance in form PCRDP-V to the social welfare officer, with a copy thereof to the Manager.
6. In the case of "Malik Ubaidullah v. Government of Punjab and others" 2021 PLC (C.S.) 65 the question whether the quota of 02 percent shall be filled for any particular post or 02 percent would be calculated against the total sanctioned posts in an established, thus, it was observed that: "Summarizing the above we hold that: (i) The 2% (and now 3%)24 Disability Quota is to be calculated on the basis of the total sanctioned posts of the establishment. (ii) In order to ensure fair and equitable representation of persons with disabilities (PWDs) in every tier of the establishment, the total Disability Quota is to be further apportioned and allocated amongst different categories of posts in the establishment. The determination of different categories is on the basis of their distinct qualifications, selection criteria and separate merit list. (iii) In ease the sanctioned strength of a post is less than 50. it will be for the establishment to allocate seat(s) from the overall Disability Quota against such a post. (iv) if a particular post is not fit for a PWD, the establishment may shift the Disability Quota and adjust it against another post in the establishment so that the overall Disability Quota is not disturbed and maintained at all times.
(v) The advertisement for any category of post must clearly provide the total Disability Quota for that category of posts and the number of seats vacant under the said Disability Quota at the time of the advertisement."
Therefore, when it comes to the proposition articulated by the apex Court, 02 percent of total strength i.e. 2094 sanctioned posts, was 41.88 and still there remain 5.88 posts for disabled persons which are yet to be filled. Legislature has enacted a law in order to provide for employment, rehabilitation and welfare of disabled persons in the country. The "Disabled Persons (Employment and Rehabilitation) Ordinance" was enacted in 1981 as a presidential ordinance. This law was promulgated during the "International Year for Disabled Persons" in 1981 to provide support to the disabled persons in finding employment in government as well as commercial and industrial establishments. After devolution of the subject of labour in 2011, the province Khyber Pakhtunkhwa has adopted the Ordinance of 1981, which was amended in the year 2012 and the rules were framed. Government of Pakistan has also ratified 'ILO Convention on Vocational Rehabilitation and Employment of Disabled Persons'. Similarly, in the last year, it has also ratified the UN Convention on the Rights of Persons with Disabilities. The Constitution requires that public functionaries, deriving authority from or under law, are obliged to act justly, fairly, equitably, reasonably, without any element of discrimination and squarely within the parameters of law, as applicable in the given situation. Any deviation therefrom can be corrected through appropriate orders, under Article 199 of the Constitution.
7. In the case titled "Brig. Muhammad Bashir v. Abdul Kareem" (PLD 2004 SC 271) the Hon'ble Supreme Court had held that there is ample power vested in the High Court to issue directions to an executive authority when such an authority is not exercising its power bona fide for the purpose contemplated by the law or is influenced by extraneous and irrelevant considerations. Where a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, the High Court in the exercise of its writ jurisdiction has ample power to grant relief to the aggrieved party. Provisions of Article 199 of the Constitution of Islamic Republic of Pakistan have intended to enable High Court to control executive so as to bring it in conformity with law. With the expanding horizon of Articles dealing with Fundamental Rights, every executive action of the Government or other public bodies, if arbitrary, unreasonable or contrary to law, is now amenable to the writ jurisdiction of the Superior Courts and can be validly scrutinized on the touchstone of the Constitutional mandates. Reference may be given to "A Regd. Society v. Union of India" (AIR 1999 SC 2979).
8. Admittedly, the petitioner fulfills the requisite criteria for his appointment against the posts of A.T and Qari, thus, the respondents were required to appoint him under 2% disable quota either against the post of A.T or Qari, as the case may be. Insofar as, the submission of the learned A.A.G, regarding bifurcation of different cadres posts pertaining to the total strength of establishment is not only against the mandate of section 10 of the amended Act of 2012 but also against the clear verdict of the Supreme Court of the country, thus the contention of the respondents and arguments of the learned AAG are misconceived and untenable.
9. In view of the above, we feel no hesitation to direct the respondents No.2 to consider the petitioner for his appointment either against the post of A.T or Qari under the quota reserved for disabled persons, which is still to be observed/fulfilled, in accordance with law, without any delay.