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HAFIZ JUNAID MAHMOOD versus GOVERNMENT OF PUNJAB

r Article 199 - Constitutional Application - Retention - Public / Government Policy - Judicial Review - Scope - Government policy is enforced against a citizen when it is usually translated into a legislative, subordinate legislation or executive action. And was subject to such legislation or executive action at the time. Judicial Review - The policy was, in general, a guiding principle for the internal functioning of the government; however, if such a policy imposed on a citizen's basic rights, then it could be judicially reviewed, as in any other law. Instrumental or executive action, [p 8] an Executive District Officer (Revenue) in Joharabad, Khushab District and other V Ijaz Hussain and another 2011 SCMR 1864; Vice Chancellor by Aqsa Manzoor University of Health Sciences, Lahore and 3 Other PLD 2006 LA 482. Lieutenant Haider Haider vs. Federal Public Service Commission Chairman, Islamabad 2008 SCMR 773M Punjab Public Service Commission and another vs. Mr. Ayesha Nawaz and others 2011 SCMR 1602 and Mian Muhammad Afzal v. Punjab and other 2004 S. CMR 1570 Reef Human Rights Case No. 14392 2013 (PTD 243); 2011 SCMR by Messrs. El Raham Travels and Tours (Pvt.) V Ministry of Religious Affairs, Hajj, Zakat and Usher Secretary and others. 1621; Messrs. Shaheen Cotton Mills, Lahore and another v. Federation of Pakistan, Ministry of Commerce and another PLD 2011 la. 0 and the Watan Party through the President vs. Federation of Pakistan Cabinet Committee on Privatization, Islamabad and other PLD 2006 SC 697 rel

P L D 2017 Lahore 1

Before Syed Mansoor All Shah, CJ

Hafiz JUNAID MAHMOOD—Petitioner

versus

GOVERNMENT OF PUNJAB and others—Respondents

Writ Petition No.2565 of 2014, heard on 19th December, 2016.

(a) Constitution of Pakistan—

—Art. 199— Constitutional petition— Maintainability— Public/ Government policy—Judicial review—Scope—Government policy was generally enforceable against a citizen when it was translated into legislation, subordinate legislation or executive action, and such legislation or executive action was then subject to judicial review— Policy, generally, was a guideline for the internal working of the Government, however, if such Policy impinged upon the Fundamental Rights of a citizen, then the same could be judicially reviewed, like any other legislation or executive action, [p. 8] A

Executive District Officer (Revenue), District Khushab at Jauharabad and others v. Ijaz Hussain and another 2011 SCMR 1864; Aqsa Manzoor v. University of Health Sciences, Lahore through Vice-Chancellor and 3 others PLD 2006 Lah. 482; Lt. Muquddus Haider v. Federal Public Service Commission through Chairman, Islamabad 2008 SCMR 773; Punjab Public Service Commission and another v. Mst. Aisha Nawaz and others 2011 SCMR 1602 and Mian Muhammad Afzal v. Province of Punjab and others 2004 SCMR 1570 ref.

Human Rights case No. 14392 of 2013 (2014 PTD 243); Messrs Al-Raham Travels and Tours (Pvt.) Ltd. v. Ministry of Religious Affairs, Hajj, Zakat and Usher through Secretary and others 2011 SCMR 1621; Messrs Shaheen Cotton Mills, Lahore and another v. Federation of Pakistan, Ministry of Commerce through Secretary and another PLD 2011 Lah.'120 and Wattan Party through President v. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad and others PLD 2006 SC 697 rel

(b) Words and phrases—

—“Disability ” and “disabled person ”—Meanings— “Disability ” meant 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—“Disabled person” was a person who, on account of injury, disease or congenital defÓrm;ity, was handicapped for undertaking any gainful profession or employment in order to earn his livelihood and included a person who was blind, deaf , physically handicapped or mentally retarded—Persons with disabilities included those who had long-term physical, mental, intellectual or sensory impairments, which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others—“Disability” was an evolving concept and resulted from interaction between persons with impairments and attitudinal and environmental barriers that hindered their full and effective participation in a society—“Disabilities” was an umbrella term, covering impairments, activity limitations and participation restrictions—Impairment was a problem in body function or structure—Activity limitation was difficulty encountered by an individual in executing a task or action, while a participation restriction was a problem experienced by an individual in involvement in life situations—“Disability” was not just a health problem, and was a complex phenomenon reflecting the interaction between features of a person's body and features of the society in which he or she lived. Ip. 9] B

(c) Constitution of Pakistan—

—Arts. 9, 14, 25, 8, 2A, 4 & Preamble—United Nations Convention On The Rights Of Persons With Disabilities, Ratified by Pakistan in 2011—Fundamental Rights in the context of persons .with disabilities—

Constitutional values of universality, indivisibility interdependence and interrelatedness of all human rights and fundamental freedoms— Concept of “reasonable accommodation” for disabled persons— Constitutional obligations of the State with regard to disabled persons—Scope—Constitution proactively reached out to persons with disabilities with force and vigour and the wisdom of the United Nations Convention On The Rights Of Persons With Disabilities, was already embedded in the soul of the Constitution and could be easily rediscovered by using principles of the said Convention to purposively interpret the Constitution—Right to life, dignity and equality were further emboldened, illuminated and vitalized when interpreted in the context of the said Convention—Right to life and dignity were epicenters of the Constitutional architecture and recognized the importance of accessibility to physical, social, economic and cultural environment, to health and education, and to infÓrm;ation and communication—Fundamental right to life, therefore, enabled persons with disabilities to fully enjoy all human rights and fundamental freedoms, and a disabled person, like every human being, had an inherent right to life and its effective enjoyment at par with others— Right to life and dignity of a person with disabilities could only be realized if the State and its institutions took steps provide “reasonable accommodation” that would facilitate and ensure that a person with disabilities could enjoy life with honour and dignity like others— Inherent in Art. 25 of the Constitution was the recognition that discrimination against any person on basis of disability was a violation of the inherent dignity and worth of a human being—Article 25 of the Constitution promoted inclusiveness, effective participation and recognized human diversity in a society and therefore mandated that reasonable accommodation be provided by the State and other institutions to actualize such Constitutional goal and to avoid exclusion of persons with disabilities from effective participation in the society— Constitutional values of social, economic and political justice recognized free choice and individual autonomy and therefore, there existed a bold and passionate Constitutional support for persons with disabilities—State and its institutions had a Constitutional obligation to ensure, within means available, that a person with disabilities got reasonable accommodation and to provide the architecture, structure, assistive and adaptive technology, system and equipment and facilitative support to persons with disabilities in • order to enable them to actualize their Constitutional rights and freedom. [pp. 18, 19] C, E, F, G & H

Pakistan Tobacco Co. Ltd. and others v. Government of N.-W.F.P. through Secretary Law and others PLD 2002 SC 460; Reference No.01/2012 (Reference by the President of Pakistan under

Article 186 of the Constitution of Islamic Republic of Pakistan, 1973 (PLD 2013 SC 279); M/s. Entertainment Network (India) Ltd. v. Millieum Chennai Broadcast (Pvt) Ltd. 2008 (13) SCC 30; Aharon Barrack-Human Dignity—The Constitutional Value and the Constitutional Right. Cambridge 2015 P.144 and Jeeja Ghosh and

another v. Union of India and others AIR 2016 SC 2392 rel.

(d) Constitution of Pakistan—

—Preamble & Art. 8—Fundamental Rights guaranteed by the Constitution—Nature—Interpretation of Constitutional provisions containing Fundamental Rights—Fundamental Rights were the heart and soul of a living Constitution and must at all times, be ready to embrace and protect the sensibilities and sensitivities of the people— Fundamental Rights must be progressively and purposively interpreted to advance frontiers of freedom, individual autonomy and free choice, and such vibrance and vitality were the hallmark of a living Constitution in a democracy, [p. 18] D

Pakistan Tobacco Co. Ltd. and others v. Government of N.-W.F.P. through Secretary Law and others PLD 2002 SC 460 and Reference No.01/2012 (Reference by the President of Pakistan under Article 186 of the Constitution of Islamic Republic of Pakistan, 1973 (PLD 2013 SC 279) rel.

(e) Constitution of Pakistan—

—Arts. 9, 14 & 25—Recruitment Policy (2013) For Educators, Para. 4D—Disabled Persons (Employment and Rehabilitation) Ordinance (XL of 1981), Ss. 10, 2(c) & Preamble—United Nations Convention On The Rights Of Persons With Disabilities, Ratified by Pakistan in 2011—Vires of Recruitment Policy (2013) For Educators, Para. 4D—Constitutional obligations of the State with regard to disabled persons—Interpretation of Arts. 9, 14 & 25 in the context of Constitutional protections of disabled persons—Recruitment to public/Gov eminent posts for disabled persons—Reasonable

accommodation for disabled persons—Scope—Petitioner, who had permanent visual impairment, impugned the Provincial “Recruitment Policy-2013 for Educators ”, which barred blind persons from applying to posts of educators—Contention of the Provincial Government, inter alia, was that it was not possible for a blind teacher to use the blackboard to teach or to control the classroom—Validity— Fundamental Rights to life, dignity and equality mandated that State and its organs should make serious endeavors to provide reasonable accommodation to persons with disabilities so that they can be mainstreamed and made useful and productive members of the

society—Impugned recruitment policy was devoid of any such thought or realization and lacked openness, inclusiveness and accessibility for persons with disabilities—Provincial Education Department, in the present case, had failed to consider that the petitioner could have been made able enough to teach with the help of assistive technology and qualification of the petitioner was not otherwise questioned—Ability to use a blackboard and maintain discipline could be easily achieved through assistive technology and additional human resource— Department did not take the plea that reasonable accommodation could not be provided or that the same was burdensome or cumbersome and paid no heed to the rights of the petitioner under the Constitution, United Nations Convention On The Rights Of Persons With Disabilities, And The Disabled Persons (Employment and Rehabilitation) Ordinance, 1981—High Court observed that the impugned Recruitment Policy to the extent of its Para. 4D, impaired Fundamental Rights of the petitioner and was accordingly declared unconstitutional and illegal and hoped that Provincial Government will set a healthy precedent for others to follow—Advocate General shall place the judgment before the authorities, so that the anguish and pain of persons with disabilities in the Province was redressed and the Government succeed in making the Province a disability sensitive Province—High Court directed the Provincial Government and the Provincial Education Department to reframe the relevant portion of the impugned Recruitment Policy accordingly, keeping in view observations of the High Court and the wisdom of the United Nations Convention On The Rights Of Persons With Disabilities— Constitutional petition was allowed, accordingly, [pp. 21, 22] I, J & L

Assistive Technology for Visually Impaired and Blind People. Marion A Hersch, Michael A Johnson. Springer, p.670 rel.

(f) Constitution of Pakistan—

—Arts. 25, 9 & 14— Disabled Persons (Employment and

Rehabilitation) Ordinance (XL of 1981) S. 10—United Nations Convention On The Rights Of Persons With Disabilities, Ratified by Pakistan in 2011—Fundamental Rights in the context of persons with disabilities—Recruitment to public/Government posts for disabled persons—Establishments to employ disabled persons—Reserved quota for employment of disabled persons—Nature—Scope—Interpretation of Fundamental Rights in the light of United Nations Convention On The Rights Of Persons With Disabilities, indubitably showed that a person with disabilities could not be debarred from applying on open merit for the general seats and the three percent quota under the Disabled Persons (Employment and Rehabilitation) Ordinance, 1981 was an

additional benefit and did not restrict a person with disabilities to apply for the general quota—To restrict a person with disabilities to a limited quota of three percent, which may or may not be available, depending on the sanctioned posts, would amount to depriving equality, accessibility and opportunity to a person with disabilities and offended Art. 25 of the Constitution—Such restriction was opposed to the Constitutional mandate and the United Nations Convention On The Rights Of Persons With Disabilities. [p. 22] K

(g) Constitution of Pakistan.—

—Art. 199—Recruitment Policy (2013) For Educators, Para. 4D— Civil Procedure Code (V of 1908) Ss. 35 & 35A—Constitutional petition—Awarding of costs to petitioner—Scope—Petitioner, who with permanent visual impairment had to approach the High Court to impugn the Recruitment Policy of a Department of the Provincial Government under Art. 199 of the Constitution could be awarded costs, which were to be paid to the petitioner by the Provincial Government, [p. 22] L

Kawas B. Aga and another v. City District Government, Karachi (CDGK) through Nazim-e-Ala and others PLD 2010 Kar. 182; The Postmaster-General, Northern Punjab and (AJ&K), Rawalpindi v. Muhammad Bashir and 2 others 1998 SCMR 2386; Province of Sindh through Secretary, Home Department and others v. Roshan Din and others PLD 2008 SC 132; Inayatullah v. Sh. Muhammad Yousaf and 19 others 1997 SCMR 1020; Mst. Afsana v. District Police Officer, (Operation), Khairpur and 5 others 2007 YLR 1618 and M.D., Tahir, Advocate v. Federal Government and others PLD 1999 Lah. 409 rel.

Harris Azmat and Ali Khalid Sindhu along with Petitioner in person.

Anwaar Hussain and Ahmad Hassan Khan, Assistant Advocates-General, Punjab.

Iftikhar Ahmad Mian for Respondent No.2.

Rana Muhammad Younus Aziz, Senior Law Officer, School Education Department.

Zubair Khan, Deputy Secretary, School Education Department, Government of Punjab.

Tariq Ismail, Litigation Officer, Social Welfare Department, Punjab.

Iqbal Hussain, EAD o/o EDO (Education) Lahore.

Date of hearing: 19th December, 2016.

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