MALIK MUHAMMAD AWAIS KHALID, J:- Through the instant writ petition, the petitioner has impugned the advertisement dated 28.9.2023 being published by respondent No.5 as well as the recruitment process undertaken by the respondents where 3% disabled persons quota of total sanctioned and overall strength of the cadre post i.e. Junior Clerks has been unlawfully ignored.
2. Learned counsel for the petitioner has argued that the petitioner is a disabled person who was fully eligible for the post of Junior Clerk but the respondents while making such advertisement/ appointments did not follow the quota reserved for such persons. Further submits that it is duty of the respondents to maintain 3% disabled persons quota of total sanctioned and overall strength of the cadre post i.e. Junior Clerks under Section 10 of the Disabled Persons (Employment and Rehabilitation) Ordinance, 1981 (XL of 1981) ('The Ordinance') and Clause 9 of Recruitment Policy, 2022 and to make appointments of only disabled persons under the said quota to secure the ends of justice. Learned counsel for the petitioner relies on the judgments Sajjad Ali vs. Vice Chancellor through Registrar University of Malakand at Chakdara,Dir Lower and others (2020 SCMR 124) and Peerzada Waqar Alam vs. National Accountability Bureau (NAB) through Chairman, Islamabad and others (2023 SCMR 742). He further relies on 'The Ordinance'; 'The Punjab Empowerment of Persons with Disabilities Act, 2022 (XLII of 2022) ('The Act 2022') and 'Convention of the Rights of Persons with Disabilities and Option Protocol' ('Convention').
3. Learned AAG has informed the Court that there is no such advertisement in the field yet and has relied on The State of Kerala vs. Leesamma Joseph (AIR 2021 SC 3076).
4. I have heard the arguments of learned counsel for the petitioner as well as learned AAG on behalf of the respondents and perused record as well as the case law cited by both sides.
5. The Constitution of the Islamic Republic of Pakistan, 1973 ('The Constitution') has guaranteed the right to life and to participate in every sphere of it without any discrimination. Constitutional right of equality applies to persons with disabilities and guaranteeing them full enjoyment of their fundamental rights without any biasness. The protection of the right to life, dignity and equality under the Constitution provides a sturdy platform for mainstreaming persons with disabilities. The Constitution safeguards, promotes and protects the human rights of all citizens inclusive of persons with disabilities. It also extends that adequate provisions shall be made to ensure the legitimate interests of such class. The Constitution is a living document and confers a positive ardent constitutional support for persons with disabilities.
6. It is the obligation of the State under the Constitution to make all possible endeavours to mainstream persons with different abilities and to embrace the diversity in the society. It is pertinent to discuss the right of employment guaranteed to disabled persons. In this regard, Article 27 of the Convention specifies as under:- "Article 27 (Work and employment):
1. States Parties recognize the right of persons with disabilities to work, on an equal basis with others; this includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities. States Parties shall safeguard and promote the realization of the right to work, including for those who acquire a disability during the course of employment, by taking appropriate steps, including through legislation, to, inter alia:
(a) Prohibit discrimination on the basis of disability with regard to all matters concerning all forms of employment, including conditions of recruitment, hiring and employment, continuance of employment, career advancement and safe and healthy working conditions;
(b) Protect the rights of persons with disabilities, on an equal basis with others, to just and favourable conditions of work, including equal opportunities and equal remuneration for work of equal value, safe and healthy working conditions, including protection from harassment, and the redress of grievances;
(c) Ensure that persons with disabilities are able to exercise their labour and trade union rights on an equal basis with others;
(d) Enable persons with disabilities to have effective access to general technical and vocational guidance programmes, placement services and vocational and continuing training;
(e) Promote employment opportunities and career advancement for persons with disabilities in the labour market, as well as assistance in finding. obtaining, maintaining and returning to employment;
(f) Promote opportunities for self-employment, entrepreneurship, the development of cooperatives and starting one's own business;
(g) Employ persons with disabilities in the public sector;
(h) Promote the employment of persons with disabilities in the private sector through appropriate policies and measures, which may include affirmative action programmes, incentives and other measures;
(i) Ensure that reasonable accommodation is provided to persons with disabilities in the workplace;
(j) Promote the acquisition by persons with disabilities of work experience in the open labour market;
(k) Promote vocational and professional rehabilitation, job retention and return-to-work programmes for persons with disabilities.
2. States Parties shall ensure that persons with disabilities are not held in slavery or in servitude, and are protected, on an equal basis with others, from forced or compulsory labour."
7. The Wisdom of the Convention is already embedded in our Constitution and statutory framework. There is statutory mechanism for the protection of rights of employment of disabled persons. Earlier, Section 10 of 'The Ordinance' dealt with the rights of the disabled persons which reads as follows:- "10. Establishments to employ disabled persons.- (1) Not less than "[three percent] of the total number of persons employed by an establishment at any time shall be disabled persons whose names have been registered with the Employment Exchange of the area in which such establishment is located and against whose names in the register maintained under section 12 an endorsement exists to the effect that they are fit to work.
(2) The disabled persons employed against any post in pursuance of sub-section (1) shall be entitled to the terms and conditions which are not less favourable than those of the other persons employed by the establishment against similar posts.
(3) When calculating the percentage of the posts in an establishment for the purposes of employment of disabled persons, the fraction of 0.5 and above shall count as a whole number."
The said Ordinance has now been repealed with the promulgation of new law i.e. 'The Act 2022'.
Section 31 of the Act 2022 deals as follows:- "31. Establishments to employ persons with disabilities.- (1) Not less than three percent of the total number of persons employed by an establishment at any time shall be persons with disabilities;
(2) The recruitment against reserved posts under subsection (1) shall be made in accordance with the procedure, criteria and qualification as may be notified by the Council from time to time for each category of persons with disabilities: Provided that persons with short-term or temporary disabilities shall remain unqualified for recruitment against the posts reserved under subsection (1); Provided further that the reserved posts shall be divided equally amongst visually impaired persons, hearing impaired persons, persons with other physical disabilities, and intellectually impaired persons.
(3) When calculating the percentage of the posts in an establishment for the purposes of employment of Persons with Disabilities, the fraction of 0.5 and above shall count as a whole number.
(4) Such persons with disabilities whose names have been registered with the Unit and declared fit to work shall be employed by the establishments as per quota mentioned in subsection (1).
(5) A person with a disability employed against any post in pursuance of subsection (1) shall be entitled to such terms and conditions as are not less favorable than those of the other persons employed by the establishment against similar posts."
And its Section 2(q) also defines the disabilities of a person in the following words:- "2(q) "person with disabilities" means a person who has a long-term physical, mental, intellectual or sensory impairment which in interaction with various barriers may hinder his full and effective participation in society on an equal basis with others, and shall include a person with any of the long-term disabilities specified in the Schedule."
8. While fortifying the findings, in a case of Muhammad Yousaf and another vs. Chairman, Federal Public Service Commission and 4 others (PLD 2017 Lahore 406), precisely refers that disability means lacking one or more physical powers, such as the ability to walk or to coordinate one's movements, as from the effects of a disease or accident, or through mental impairment. Hence, a 'disabled person' refers as a person who on account of injury, disease or congenital deformity, is handicapped for undertaking any gainful profession or employment in order to earn his livelihood and includes a person who is blind, deaf, physically handicapped or mentally retarded. Disabilities cover impairments, activity limitations, and participation restrictions. Impairment is a problem in body function or structure; an activity limitation is a difficulty encountered by an individual in executing a task or action; while a participation restriction is a problem experienced by an individual in involvement in life situations. Disability is thus not just a health problem rather is phenomenon casting the responsibility over the society in which he or she lives.
9. It is the obligation of the respondents to publish the advertisement whereby the above quota of the disabled persons be fixed but the department through the Chief Executive Officer, District Education Authority, Bahawalpur/respondent No.5 in his written reply has submitted that the petitioner being disabled/special person demands job for the post of Junior Clerk which has not been advertised since 2022 to date and when the Government of the Punjab accords sanction for appointment of Junior Clerk, the same will be made as per Recruitment Policy 2022. It is duty of the respondent/department to follow the law as cited above but there is unreasonable delay of 3 years on their part which has affected the right to life of the petitioner. To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen as guaranted by the 'Constitution' which shelter an individual in the manner of his life, liberty, honour, reputation and property. Writ of mandamus in Pakistan is a judicial intervention under Article 199 of the 'Constitution' to prevent miscarriage of justice or institutional failure, especially in cases of significant public interest or where government agencies have failed to fulfil their legal duties.
10. In the case of Malik Ubaidullah vs. Government of Punjab and others (2021 PLC (C.S) 65), Hon'ble Supreme Court elaborates disability with reference to the 'Constitution' in the following words: "13. Our Constitution, as a whole, does not distinguish between a person with or without disabilities.
It recognizes inherent dignity of a human being; equal and inalienable rights of all the people as the foundation of freedom, justice and peace. Every person is entitled to all the rights and freedoms set forth therein, without distinction of any kind. It, therefore, applies equally to persons with disabilities, guaranteeing them full enjoyment of their fundamental rights without discrimination. The triangular construct of the right to life, dignity and equality under the Constitution provides a robust platform for mainstreaming persons with disabilities. The purpose of the constitutional right to human dignity is to realize the constitutional value of human dignity; to realize a person's humanity; his free will; the freedom to shape his life and fulfill himself. It is a person's freedom to write his life story. Such vibrancy and vitality is the hallmark of a living constitution in a democracy."
11. The August Supreme Court of Pakistan in the case of Mubarik Ali Babar vs. Punjab Public Service Commission through its Secretary and others (2023 SCMR 518), has held the following on this proposition:- "8. In order to actualize the constitutional mandate and the vision of our founding father, we have the Disabled Persons (Employment and Rehabilitation) Ordinance, 1981 ("Ordinance") which, post 18th amendment, has translated into provincial laws. Provisions of the Ordinance are pari materia to the Punjab Law. Section 10 of the Ordinance, as applicable in Punjab, provides that not less than three percent (3%) of the total number of persons employed by an establishment at any time shall be PWDs in the manner and procedure provided under the said Ordinance."
"9. ..................................................."
"10. The argument of the petitioner that in case the said seats are not filled by PWDs and the Non- Muslim minority in a particular year, the said seats should be opened and made available to general quota. This is not permissible as it would offend constitutional values, fundamental rights and the Principles of Policy as discussed above. The seats earmarked for minorities or PWDs must be retained and carried forward. This quota is their constitutional right and cannot be reversed or made available to other citizens."
12. This concept of the employment to the disabled persons has been discussed and acknowledged in the Halsbury's Laws of England (Forth Edition) Chapter 'Contract of Employm ent' as follows:- "218. The Disabled Persons (Employment) Acts 1944 and 1958; Code of Practice Provision is made by the Disabled Persons (Employment) Acts 1944 and 1958 to enable disabled persons to secure employment or work on their own account. A register of disabled persons has been established by the Secretary of State; and an employer who has a substantial number of employees has a duty to give employment to a quota of persons registered as handicapped by disablement. Certain classes of employment have been designated as affording specially suitable opportunities for the employment of disabled persons; and special provision is made for enabling registered persons who are seriously disabled to obtain employment or work on their own account under special conditions.
In addition to the statutory provisions, there is a Code of Good Practice on the Employment of Disabled People, which sets out specific and realistic objectives for which employers, employees and their representatives can aim and gives details of the assistance available to help achieve such objectives."
13. The employment is a key factor in the empowerment and providing equal opportunities to the people with disabilities in life. Hence, the statutory protection given to them must rigorously be followed so they cross all social and practical barriers that prevent them from joining in the mainstream of the society. Resultantly, they can sustain themselves along with their families while coping with recent modern challenges successfully.
14. Rule 10 of the Punjab Rules of Business 2011 ('Rules 2011') casts upon duty and responsibility on the Secretary concerned to ensure the implementation of statutory mechanism supra for ensuring good governance and upholding the fundamental rights of the petitioner.
Rule 10 of 'The Rules 2011' is reproduced below:- "10. Functions of Secretary:- (1) A Secretary shall: (a) the official head of the Department and be responsible for its efficient administration and discipline, for the conduct of business assigned to the Department and for the observance of laws and rules, including these rules, in the Department."
Therefore, the Secretary concerned shall take stock of the matter and adhere the statutory framework to reserve the employment quota of disabled persons while advertising the said posts expeditiously. The respondents are directed to submit compliance report to this Court through the Deputy Registrar (Judicial).
15. This writ petition is, therefore, disposed of in the above terms.