LAL JAN KHATTAK, J. Through this judgment, we shall also decide the connected Writ Petition bearing No.2697-P/2020 titled "Latif Ullah v. DEO (M) Nowshera and others" as common question of law and facts is involved in both the petitions wherein the petitioners have prayed for issuance of writs directing the respondents to appoint them as Theology and Arabic Teachers, respectively.
2. It is the petitioners case that the respondent department advertised the posts of Theology and Arabic Teachers pursuant to which they applied for their appointments against the disabled persons quota, however, they were declined such recruitment against which they have preferred these petitions.
3. Parawise comments were called for from the respondents which have been so furnished wherein issuance of the desired writs have been opposed.
4. Arguments heard and record available gone through.
5. It is the respondents point of view that in the case of Muhammad Israr (W.P.No.5715-P/2019) up till now 49 posts of Theology have been filled on open merit and on appointment of the 50th one, the 2% quota reserved for the disabled persons will be observed by appointing one disabled person.
While in the connected case of Latif Ullah (W.P.No.2697-P/2020) the department's stance is that up till now 02 disabled persons have been appointed against total 146 appointed on open merit and that when strength of the appointees on open merit will reach to 150 then a seat will be reserved for the appointment of 3rd disabled person against the quota.
6. Above calculation worked out by the department is not correct as same is not only against the law on the subject but in utter disregard to the judgments of the Hon'ble Supreme Court of Pakistan and of this court as well. According to section 10(1)(3) of the Disabled Persons (Employment and Rehabilitation) Ordinance, 1981, while calculating the percentage of the posts in an establishment for the purpose of employment of disabled persons, the fraction of 0.5 and above shall be counted as a whole number. Above provision of law came up for discussion before the Hon'ble Supreme Court of Pakistan in Civil Petition No. 140-L of 2015 decided on 14.07.2020 and while dealing with the issue, the Apex Court held in para 15 of its judgment that there may arise a situation when the posts in a particular category are less than 50, in that case it will be up to the establishment to allocate Disability Quota to respective categories of posts even though they are less than 50 posts in a particular category in order to maintain the overall Disability Quota of the establishment. This court too in a judgment delivered in W.P.No.2121 of 2006 decided on 10.07:2007 has taken the same view by holding that; "The requirement of satisfaction of reserved quota shall have to be implemented when the total number of strength in a cadre exceed 25, because it will be more than the 5% which hat to be read as a complete unit. Thus the 26th seat in a cadre cannot be filled unless a disabled person is accommodated and if the total number of strength is more than 75, the quota in the strength shall be more than 1.5 percent and therefore two seats have to be reserved for disabled persons.
Similarly, if the number of total strength exceeds 125, 3 persons from the disable quota have to be appointed and accordingly in a cadre having more than 175 seats, four disabled persons shall be entitled to be appointed. When the seat is reserved for a particular class of persons, the appointment of another person against such a vacancy shall be violation of Scheme of Reserved Seats. Thus, in the cadre, 115 male Arabic Teachers of the District of Nowshera, two-persons must be physically disabled or such seats shall be kept vacant till the availability of such persons. Any appointment against such seats shall be violative of the principle of reservation of quota."
7. As in W.P.No.5715-P/2019, up till now 49 posts of Theology Teachers have been filled on merit and none has gone to the disabled persons while in the connected petition 146 posts have gone to open merit against the two to the disabled persons. therefore, in light of the above discussion, we accept both the petitions and direct the respondents to appoint the petitioners as Theology Teacher and Arabic Teacher, respectively against the 2% disabled persons quota forthwith.