IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

 

Constitution Petition No. D- 659 of 2022

 

                                                                                    Present:

                                                                                                                Mr. Justice Salahuddin Panhwar,

                                                                                                                Mr. Justice Abdul Mobeen Lakho

 

                                               

1.      For orders on office objection at Flag ‘A’.

2.      For hearing of CMA 2521/2022 (S/A)

3.      For hearing of main case.

 

 

Date of hearing.                  15.03.2023

 

Petitioner Inayat Hussain present, in person

Mr. Ali Raza Balouch, Assistant Advocate General Sindh alongwith Zarina Channa DEO (Primary) Ghotki and Diyawar Hussain Head Master on behalf of DEO (Elem/Sec:& Higher Secondary) Schools Ghotki @ Mirpur Mathelo

-.-.-.-.-.-.-.-.-

 

 

ABDUL MOBEEN LAKHO, J-        Through this petition, petitioner has prayed for the following reliefs:

 

(i)              To direct the respondents to appoint the petitioner for the post of JEST/PST on disable quota on production of disability CNIC and disability Certificate as he has successfully passed the JEST/PST test conducted by SIBA in flying colours and not discriminate him.

 

(ii)            Interim orders are solicited whereby restraining the respondents from making fresh appointment in disable quota for the post of PEST/PST in Ghotki District, till final disposal of the petition.

 

 

2.         Petitioner in this petition has stated that advertisement for recruitment to the posts of teachers was published in different newspapers by the Education Department and pursuant to such advertisement, he applied for the post of JEST and PST on “disabled quota” and he was issued Admit slip, he appeared in the test and declared as successful candidate as he passed the Junior Elementary School Teacher (JEST) and Primary School Teacher (PST) test by obtaining 40 and 46 marks respectively with the expectation that he would be offered either the post of JEST or PST, but to dismay, he did not receive the offer letter. The petitioner thereafter, approached respondents, who verbally asked him that since he has not produced disability certificate as well as disability CNIC, therefore, his case could not be considered. Later on, the petitioner, after obtaining Certificate and CNIC with regard to his disability, again approached respondents but they refused to entertain the same, though 5% quota was reserved for disabled candidates, but petitioner has been deprived of from his fundamental rights, guaranteed under the Constitution of Pakistan and such refusal on their part, is clear violation of law and rules hence, he finding no alternate and efficacious remedy has preferred instant petition.

3.         We have heard petitioner in person, learned AAG as well as perused the material available on record.

4.         A citizen who suffers from a Locomotor disability has travelled to this Court with the grievance that he was denied the appointment to either post, JEST or PST. The case has run its course through the judicial system as an individual grievance. But its contours present portents of the aspirations of a whole class of persons whose daily engagement with physical disability defines their continuing quest for dignity. Through a maze of statutes, rules, and regulations, the case raises core issues about the actual realization of equal opportunity and access to the disabled. It tests what the law professes with how its ideals are realized. The language of our discourse, as much as its outcome, should generate introspection over the path which our society has traversed and the road that lies ahead in realizing the rights of the disabled. Voices such as those of the petitioner are a constant reminder of the chasm between the law and reality. But they also provide a platform for change and evolution towards a better future. The petitioner has a disability in the form of Locomotor. The petitioner was also   required to appear for selection to the post of PST/JEST conducted under the auspices of SIBA. In order to obtain a disability certificate, he approached the Director General Sindh Persons with Disabilities Protection Authority (SPDPA), Karachi. By a communication dated 09th November 2021, such disability certificate was issued to him. The fundamental postulate is based on the principle of equality and non-discrimination. The obligation on the government to ensure that persons with disabilities enjoys (i) the right to equality; (ii) a life with dignity; and (iii) respect for their integrity. The fundamental postulate of equality and non-discrimination is made available to persons with disabilities without constraining it with the notion of a benchmark disability. There is a critical qualitative difference between the barriers faced by persons with disabilities and other marginalized groups. In order to enable persons with disabilities to lead a life of equal dignity and worth, it is not enough to mandate that discrimination against them is impermissible. That is necessary, but not sufficient. We must equally ensure, as a society, that we provide them the additional support and facilities that are necessary for them to offset the impact of their disability. The principle of reasonable accommodation captures the positive obligation of the State and private parties to provide additional support to persons with disabilities to facilitate their full and effective participation in society. For the present, suffice it to say that, for a person with disability, the constitutionally guaranteed fundamental rights to equality.

 

5.         Admittedly, the petitioner appeared and was declared successful in the written examination. However, Education Department after the written test, scrutinized the record of the petitioner and found that petitioner was not eligible as, he did not possess the requisite disability certificate as well as disability CNIC before the cut-off date. Therefore, the petitioner was held not to be eligible for the subject post and his candidature was declined accordingly.

6.         Reason for declining the candidature of the petitioner that he has failed to submit disability certificate at the time of advertisement is irrelevant as disability itself is sufficient and even, it was verified by the committee. As a general principle if, a person fails to obtain disability certificate that shall not be made the cause for his disqualification for the job, as disability itself is a certificate enough for his not being able to perform daily errands in time; if any disabled person has failed to arrange certificate within time making it purely a technical irregularity which shall not disentitle him to be appointed on the post reserved for disabled person.

7.         The august Supreme Court of Pakistan in Civil Petition No.140-L of 2015 by allowing leave to appeal have observed as under;

“In the present case the Disability Quota for 252 posts 27 of SESE [Arabic] is 5 posts but only one post out of this 26 Dr. K. Thiyagu, Assistive Technology & Inclusive Education, Laxmi Book Publications, 2014 27 In the year 2009 C.P. No.140-L of 2015 12 Disability Quota has been filled by Mst. Asma Qasim. Therefore, respondents are directed to reconsider the case of the petitioner, preferably alongwith the other applicants with disabilities who had applied for the said posts (if they can be reached out) and fill the Disability Quota for SESE [Arabic] only if petitioner and other applicants (if any) meet the selection criteria fixed for the said post. Let this exercise be completed within a period of one month from the receipt of this judgment through a speaking order. For the above reasons the impugned orders of the High Court are set aside. This petition is converted into an appeal and allowed in the above terms.”

 

8.         Further, we are of the considered view that undue suspicion about the disabled engaging in wrongdoing is unwarranted. Such a view presumes persons with disabilities, as a class, as incompetent and incapable of success absent access to untoward assistance. The disabled confront stereotypes in several aspects of their day to day lives. One of them is that they do not perform as well as others. Like other stereotypes, this one is also totally flawed and contrary to reality. Such an ableist premise is inconsistent with the approach to disability enshrined in the UNCRPD and the RPwD Act 2016.

9.         The petitioner present in person and he seems to be disable as he is unable to walk without support. Petitioner is having Disability Assessment Certificate dated 09.11.2021 issued by the concerned committee hence, the same shall be verified by the committee. The petitioner has secured 47 marks in PST and 40 marks in JEST hence, D.R.C of Primary and Secondary shall be re-scheduled for petitioner’s case within one month. The case of petitioner shall be considered in view of above aspects and he shall be given appointment order.

 

10.          The petition is disposed of in the above terms.

 

                                                                                                    J U D G E

 

                                                                                                 J U D G E

 

 

 

 

 

 

 

 

 

 

Ihsan/PA.