ALI BAQAR NAJAFI, J. Through this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 petitioner has challenged Rule 1042(c) of Pakistan Prisons Rules prescribing vision "without glasses" as ultra vires of the Constitution with a direction to respondent No.2 to issue appointment letter to the petitioner.
2. Brief facts giving rise to the filing of this Constitutional petition are that petitioner applied for the post of Assistant Superintendent Jail (BS-16) with the medical certificate issued by the Services Hospital, Lahore dated 08.02.2017 in response to the advertisement No. 411/2017 published by the Punjab Public Service Commission with the following criteria:- i. Bachelor Degree (2nd Division) from recognized University and ii. Physical Standards Height173 cm Chest 85 cm without expansion and 90 cm with expansion.
VisionRight 6/6 without glass Left 6/6 without glasses The petitioner appeared in the examination and secured 13th position but the appointment letter was not offered to him on the grounds that his eye sight was 6/6 with glasses whereas it should have been 6/6 without glasses. The petitioner filed representation dated 18.04.2017 before respondent No.2 which was rejected on 21.06.2017 on the grounds that in the light of Punjab Prisons Service Rules, 2010 and as per Rule 1042(c) of the Pakistan Prisons Rules, 1978 a person having 6/6 vision with glasses is not eligible for the post of Assistant Superintendent Jails, hence this writ petition.
3. In the report and parawise comments, it is reiterated that as per the medical certificate submitted by the petitioner, his eye site is 6/6 with glasses whereas under the advertisement published under Punjab Prisons Service Rules, 2010 and under Rule 1042 (c) of Pakistan Prisons Rules, 1978 the required eye sight vision of both eyes is 6/6 without glasses. The impugned letter dated 21.06.2017 issued by respondent No.3, therefore, was lawful as the petitioner has not fulfilled the laid down criteria/terms and conditions as the nature of job of Assistant Superintendent Jails is sensitive and the condition of sharp and accurate eye sight imposed in the Rules ibid is lawful.
Lastly, while negating the impression of discrimination submits that one Sajjad Raza, was rightly appointed as he had fulfilled the criteria for the said post having 6/6 vision of both eyes without glasses. Places reliance upon Khadim Hussain v. Secretary Ministry of human Rights, Islamabad and others (PLD 2020 Islamabad 268) and prays for dismissal of the writ petition.
3. Arguments heard. File perused.
4. The main controversy raised before this Court is simply whether Assistant Superintendent Jails (BS-16) must have a 6/6 eye sight without glasses. A plain reading, in this context, of the relevant rules reveals that it is an essential condition, and by knowing this as mandatory, the petitioner preferred to apply and also passed in the written test. One may convincingly argue that since perfect eyesight was the requirement of job and anybody not fulfilling this requirement cannot be selected. The possible reasons which may be advanced is that the nature of job of a jail staff requires an Assistant Superintendent Jail to have an accurate eye sight which rules out the possibility of visual distortion for any mistaken identity ever essential to maintain discipline and orderly environment inside jails. But every legislature must have an intelligible rational behind which, of course, changes with the efflux of time. At the time of amendment of the relevant statute the weak eye sight was considered as a handicap in the jail service as a disciplinary force.
However, then the physical requirements were readjusted with the introduction of modern technology. Owing to different reasons, the use of glasses was no more considered as absolute bar for the recruitments of both officials and officers in the disciplinary forces all over the world.,
5. Pakistan is a signatory of the United Nations Convention on the Rights of Persons with disabilities, 2007 and according to Article 1 (Purpose)
"Persons with disabilities include those who have long-term physical, mental, intellectual of sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on the equal basis"
If 6/6 both eye sight (without glasses) is considered a permanent disability of candidates then they should be treated as such. But if it is not, then such persons are to be treated at par with other human beings as normal to lead a normal life.
6. Likewise, in Islamabad Capital Territory Rights of Persons with Disability Act, 2020 the disability defined in Section 2(f) is "disability" means a long term physical or mental condition that limits a person's movement, senses or activities and shall include physical, mental, intellectual and developmental disorders or sensory impairments which in interaction with participate fully and effectively in day to day performance and interaction with others on an equal basis"
This definition does not cover the 6/6 eye sight in both eyes with glasses as disability.
7. Under Punjab Police Rules, Volume 2 Chapter 12 (Appointments and Enrolments) general condition as prescribed for the recruitments.
APPENDIX No. 12.16.
"Points to be observed by Medical Officers in examining Police recruits.---Medical Officer will satisfy themselves regarding each candidate on the following points in the order given. If a disqualifying defect is noticed, the recruit register (form No. 12.13) will be completed and the recruit rejected without further examination:-
(a) that the vision is up to the following standard:- The recruit must be able to read the Test Dot Card at a distance of ten feet without any mistake, with each eye without spectacles. Failure to do this renders him unfit. Each eye must have a full field of vision as tested by hand movements. Squint or any other morbid condition of the eyes or eye-lids liable to the risk of aggravation or recurrence will render him unfit.
For those who can read English the test should be the Snellen's type and the standard - Right eye.... V = 6/6 JI} without glasses Left eye .... V = 6/6 JI} (Underlining is for emphasis).
For illiterates the split ring test as used in the North-Western Railway should be employed. This corresponds to the Snellen's type.
8. However, Under the Punjab Prisons Department Service Rules, 2010 following amendments were made:-
(1) At Sr. No. 6. (Deputy Superintendent of Jail (BS-17)):
(a) for the entries in column 5, the following shall be substituted:
(i) Master's degree (second division) in any discipline of Social Sciences Including Public Administration or Business Administration or Economics or Sociology or Psychology Work or Criminology or Political Science from a university recognized by the Higher Education Commission; or
(ii) LLB (second division) from a university recognized by the Higher Education Commissions".
(b) or the entries in column 7, the following shall be substituted:
(i) 25% by initial recruitment on the recommendations of the Punjab Public Service Commission; and
(ii) 75% by promotion on the basis of seniority-cum-fitness from amongst the Assistant Superintendents of Jail (BS-16) with five years' regular service.",
(C) in column 9, for the existing figure "28", the figure "30" shall be substituted,
(2) At Sr. No. 8. [Assistant Superintendent of Jail (BS-16)1:
(a) for the entries in column 5, the following shall be substituted: "(i) Bachelor's degree (second division) from a university recognized by the Higher Education Commission;
(ii) physical standard (Height: 173 cm, Chest: 85 cm without expansion and 90cm with expansion); and
(iii) vision 6/6 bolt eyes without glasses.".
(Underlining is for emphasis).
(b) for the entries in column 7, the following shall be substituted: "(i) 25% by initial recruitment on the recommendations of the Punjab Public Service Commission;
(ii) 60% by promotion on the basis of seniority-cum-fitness from amongst the Chief Warders (BS- 9) other than those who qualified Elite Training Course, besides having:
(a) five years' regular service as such with satisfactory record; and
(b) Qualified mandatory course for promotion prescribed for Assistant Superintendent of Jail (BS- 16) at the Punjab Prison Staff Training Institute, Lahore or National Academy for Prisons Administration, Lahore or Punjab Prisons Staff Training College, Sahiwal.
(ii) 15% by selection on merit from amongst the Chief Warders (BS-9 ) who have:
(a) Qualified Elite Training Course;
(b) Academic qualification of Bachelor's degree (second division) from a university recognized by the Higher Education Commission;
(c) five years/ regular service as such with satisfactory record; and qualified mandatory course for promotion prescribed for Assistant Superintendent of Jail (BS-16) at Punjab Prison Staff Training Institute, Lahore or National Academy for Prisons Administration, Lahore or Punjab Prisons Staff Training' College, Sahiwal.
(e) in columns 8 and 9: for the existing figures "20" and "27", the figures "21 and "30" shall be substituted respectively.
(3) At Sr. No. 10. [Chief Warder (BS-9)]:
(a) the entries in columns 5, 8 and 9 shall be omitted; and
(b) for the entries in column 7, the following shall be substituted: By promotion on the basis of seniority-cum-fitness from amongst the Head Warders (BS-7) as follows:
(i) 25% on the basis of selection on merit from amongst the Head Warders (BS-7) who have:
(a) qualified Elite Training Course;
(b) Bachelor's degree (second division) from a university recognized by the Higher Education Commission;
(c) five years regular service as with satisfactory record; and
(d) Qualified mandatory course for promotion prescribed for Chief Warder (BS-9) at the Punjab Prison Staff Training Institute Lahore or National Academy for Prisons Administration, Lahore or Punjab Prisons Staff Training College, Sahiwal
(ii) 75% by promotion on the basis of seniority-cum-fitness from amongst the Head Warders (BS-7) other than those who qualified Elite Training Course besides having:-
(a) five years' regular service as such with satisfactory record; and
(b) qualified mandatory course for promotion prescribed for the Chief Warder (BS-9) at Punjab Prison Staff Training Institute: Lahore or National Academy for Prisons Administration, Lahore or Punjab Prisons Staff Training College, Sahiwal
(4) At Sr. No. 12 [Head warder (BS-7A fix the entries in column 7, the following shall be substituted: "By promotion on the basis of seniority-cum-fitness from amongst the Warders (BS-5) as follows:
(i) 15% by selection on merit from amongst the Warders (BS-5) who have:
(a) qualified Elite Training Course;
(b) Higher Secondary School Certificate (second division) from a recognized Board;
(c) five years' regular service as Such with satisfactory record; and
(d) qualified mandatory course for promotion prescribed for Head Warder (BS-7) at the Punjab Prison Staff Training Institute, Lahore or National Academy for Prisons Administration Lahore or Punjab Prisons Staff Training College Sahiwal.
(ii) 85% by promotion on the basis of seniority-cum-fitness amongst the Warders (BS-5) other than those who qualified Elite Training Course besides having:
(i) five years' regular service as such with satisfactory record; and ii) qualified mandatory course for promotion prescribed for Head Warder (BS-7) at the Punjab Prison Staff Training Institute, Lahore or National Academy for the Prisons Administration, Lahore or Punjab Prisons Staff Training College, Sahiwal.
(5) At Sr. No. 14.[Warder (BS-5)]:
(a) for entries in column 5, the following shall be substituted:
(i) Secondary School Certificate (second division) from a recognized Board;
(ii) physical standard (height: 170 cm, chest minimum girth of 80 cm without expansion and 85 cm with expansion); and
(iii) vision 6/6 both eyes without glasses.".
(Underlining is for emphasis).
(b) for the entries in column 7, the following shall be substituted:
(i) 95% by initial recruitment; and
(ii) 05% by initial recruitment from amongst the Ex-Military Personnel with ten years' service in Pakistan Army having Discharge certificate graded as "Good".
(C) for the figures "20" and "25" in columns 8 and 9, the figures "18 "and "28- shall be substituted respectively.
9. A perusal of these provisions reveals that for Assistant. Superintendent Jail (BS-16) and for Warder (BS-5) the 6/6 eye sight of both eyes without glasses is prescribed qualification. However, no such qualification is prescribed for Deputy Superintendent Jail and Head Warder. Under Rules 1045, 1046 and 1047 following are the functions of Assistant Superintendent Jails:- "Rule-1045. (i) The Assistant Superintendent shall perform such duties as the Superintendent may prescribe in writing in his order book. The duties shall be clearly prescribed and shall be changed periodically to afford them every opportunity to acquire a thorough training and all round experience of every detail of prison management.
(ii) The following duties shall ordinarily be allotted to the Assistant Superintendents:-
(1) Direct change of a Section of the prison including the prisoners confined therein and the Government property that may be located there.
(2) Admission, transfer and release of prisoner.
(3) Award of Ordinarily remission to prisoners.
(4) Appeals and petitions of prisoners.
(5) Supervision of factories.
(6) Supervision and drill of warder Guard.
(7) Supervision of cook-house, issue of rations to the cooks and the examination of cooked food and its distribution.
(8) Supervision of interviews and letters of prisoners.
(9) Search of Prisoners and building under their charge.
(10) Maintenance of registers pertaining to their duties and responsibility for their correctness.
(11) Maintenance of report book when incharge of a factory or circle to record discharge of their daily duties, and any important matter concerning their duties which may be necessary to bring to the notice of the Superintendent.
(12) Presence and supervision at distribution of meal and at evening lock-up.
(13) Night round on turn and search of relieving and relieved night guard once a week.
(iii) The Assistant Superintendents shall perform all other duties as are prescribed in the various chapters of the Prison Rule. Leave on Fridays and public holidays: Rule 1046. (i) In prisons where there are two or more Assistant Superintendents, one Assistant Superintendent may have the day off in rotation on Fridays.
(ii) On Fridays and public holidays the Deputy Superintendent shall arrange duties of Assistant Superintendents in such a way that one officer is always present inside the prison from unlocking to lock-up. All Assistant Superintendents shall attend the evening lock-up.
Rule 1047. Every Thursday evening the Assistant Superintendents incharge of circles shall hold a parade of the prisoners confined in their circles and shall:-
(a) carefully inspect every prisoner;
(b) examine and check the clothing bedding, utensils and history tickets of every prisoner;
(c) check the barrack register and satisfy themselves that every prisoner is present or accounted for; and satisfy themselves generally that everything is in proper order. They shall record - in their report book the shortages (if any), the state of clothing, cleanliness of barracks and yards and any other matter of important relating to prisoners of their circle.
10. A perusal of the said provisions reveals that the nature of job of Assistant Superintendent Jail does not require the perfect eye sight since the official is not required to fulfil any responsibility without power glasses with slight weakness of eyes.
11. Globally speaking, at least 2.2 billion people have a near or distance vision impairment.
International classification of disease classifies vision impairment into two groups; i.e. distance and near presenting vision impairment. The mild means visual acuity worse than 6/12 to 6/18, whereas moderate is visual acuity worse than 6/18 to 6/60. A severe means 6/60 to 3/60 and the blindness is worse than 3/60. An example may be cited of Australian model where the police officials may use contact lenses and glasses to correct a vision impairment. However, the active frontline members of Fire Brigades, Defence Force Personnels, Air Force staff Pilots and traffic controller, must have perfect vision.
12. In Abdul Wahab and others v. HBL and others (2013 SCMR 1383) it was held that although the eligibility criteria cannot be bypassed only on the sympathetic grounds, but the interpretation of any statutory provision of the Constitution is the responsibility of the Courts under judicial review on the touch stone of the fundamental rights. Under Article 18 of the Constitution, the petitioner is entitled to carry on in service of the Provincial Government without discrimination. Article 18 (c) of the Constitution is reproduced as under:- Freedom of trade, business or profession "18. Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business: Provided that nothing in this Article shall prevent--
(a) the regulation of any trade or profession by a licensing system; or
(b) the regulation of trade, commerce or industry in the interest of free competition therein; or
(c) the carrying on, by the Federal Government or a Provincial Government, or by a corporation controlled by any such Government, of any trade, business, industry or Service, to the exclusion, complete or partial, of other persons."
This article was interpreted in Government of Pakistan through Secretary, Ministry of Commerce and another v. Zamir Ahmad Khan (PLD 1975 Supreme Court 667), where the word lawful business had been explained at page 672 and it was held that only lawful professions as opposed to illegal professions are protected under Article 18 of the Constitution, which is reproduced as under:- .............."Therefore, on the wording of Article 18 of the Constitution, the right to enter upon a profession or occupation or to conduct trade or business can hardly be described to be a Constitutional or fundamental right when such right may be denied by law. In this respect our Constitution stands in sharp contrast with the corresponding provision of the Indian Constitution which omits the use of word "lawful" in the relevant provision."
Similar interpretation was made in Arshad Mehmood and others v. Government of Punjab through Secretary, Transport Civil Secretariat Lahore and others (PLD 2005 Supreme Court 193) where it was held in para 23 that although the right of profession under Article 18 of the Constitution is not absolute and is subject to regulation which should be reasonable and must not be arbitrary or of excessive nature and that the Court can always look into such restriction. Relevant extract of para 23 is reproduced as under:- "23. It is well settled law that the right of trade/business or profession under Article 18 of the Constitution is not an absolute right but so long as a trade or business is lawful a citizen who is eligible to conduct the same cannot be deprived from undertaking the same, subject to law which regulates it accordingly.........."
While emphasizing upon the Constitutional rights, in Messrs Al-Haram Travels and Tours (Pvt.)
Ltd. and others v. Ministry of Religious Affairs, Hail, Zakat and USHR through Secretary and others (2011 SCMR 1621) it has been held by the Supreme Court that Constitution is a living organism and has to be interpreted as such. Paras 33 and 34 are reproduced as under:- "33. The Constitution is a living organism and has to be interpreted keep alive the traditions of the past blended in the happening of the present and keeping an eye on the future as well. The Constitution must be interpreted keeping in view the entire canvas of national fabric, be it political, social, economic or religious.
34. It is a well settled principle that Constitution is to be interpreted liberally and saved from cosmetic circumscribed and construction. It is not a document of past or present but so it is to be interpreted in manner to meet the changing conditions of socio-religion and economic dynamics of the State."
It was also held in the same judgment that in such like satiations, the writ is competent. Para 50 is reproduced as under:- "50. As regards the contention of the learned counsel that the High Court cannot interfere with the policy matters its jurisdiction, we have some reservations, if the policy in conflict with any provision of or is violative the fundamental rights citizen, same be question before Court in its jurisdiction.
Reference can be made to Watan Party v. Federation of Pakistan (PLD 2006 Supreme Court (sic) and Shaheen Cotton Mills v. Federation of Pakistan (PLD 2011 Lahore 120)."
13. For the foregoing reasons, this writ petition is allowed and the condition of 6/6 of both eye sight (without glasses) as mandatory for the Assistant Superintendent Jails is set aside being violative of Article 18 of the Constitution. Resultantly, the petitioner shall be entitled to be considered notwithstanding having 6/6 eye sight with glasses (without glasses) a slight weakness, if otherwise found eligible for the post of Assistant Superintendent Jails.