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MUHAMMAD YOUSAF versus CHAIRMAN, FEDERAL PUBLIC SERVICE

Section 7A and 10 Rules for Competitive Examination (CSS) 2014, UN Convention on the Rights of Persons with Disabilities, ratified by Pakistan in 2011 - Constitution of Pakistan, Arts 14, 25 and 199 - Civil Service - Recruitment - Federal Public Service Commission occupation Allotment of occupational groups disabled ason reasonably disabled disabled accommodation for disabled people human dignity unrecognizable - Citizenship equality - Constitutional petition - Applicants who were visually impaired, R 9 (ii) Disregarding the legal status and constitutional status of the Competitive Examinations (CSS), 1, whereby the disabled (visually impaired) Being a mere four professional groups, they could take the competitive exams, and if they were not weak, the rest - excluded from the applicants - would be included in the open merit quota allocated for Punjab. Was entitled to be allocated to a professional group of choice for the Rules 9 (H) Competitive Examination (CSS), 2014, the person with disabilities is allowed to be considered for FSP if he / she If it falls in the quota of 7% based on the whole of Pakistan but it is not allowed to be considered against the open merit in the provincial quota. And to allow a person with a disability a variety of merit-based quotas, but denying the same person, another type of merit quota was gross discrimination, neither the Constitution nor the Federal Public Service Commission Ordinance 1977 or the Civil Servants Act, 1973. This type of rating is allowed. 9 Rule 9 (ii) of the Competitive Examinations, therefore, did not exclude any reasonable classification and discrimination, which criminalized Article 25 of the Constitution, and, moreover, it did not constitute a conviction.

PLD 2017 Lahore 406

Before Syed Mansoor Ali ShaCJ

MUHAMMAD YOUSAF and another—Petitioners

versus

CHAIRMAN, FEDERAL PUBLIC SERVICE COMMISSION and 4 others-- Respondents 

Writ Petition No. 7572 of 2016, heard on 11th january, 2017

(a) Federal Public Service Commission Ordinance (XLV of 1977) 

--Ss. 7-A & 10-- Rules for Competitive Examination (CSS) 2014, United Nations Convention On The Rights Of Persons With Disabilities, Ratified by Pakistan in 2011—Constitution of Pakistan, Arts. 14, 25 & 199—-Civil Service—Recruitment—Federal Public Service Commission—Allocation of occupational groups—Disabled persons—Reasonable classification—Accommodation for disabled persons—Inviolability of dignity of man—Equality of citizens— Constitutional petition—Petitioners, who were visually impaired, impugned the legality and constitutionality of R. 9(ii) of the Rules for Competitive Examination (CSS), 2014, whereby being disabled (visually impaired), they could only compete in the competitive examination aeainst four occupational groups, and were excluded from the rest— Validity—Petitioners, if they were not visually impaired, were entitled to allocation in a occupational group of their choice in the open merit quota reserved for Punjab—Rule 9(H) of the Rules for Competitive Examination (CSS), 2014 allowed a person with disability to be considered for FSP if he/she fell within the 7.5% quota on all-Pakistan basis but was not allowed to be considered against open merit in the Provincial quota; and to allow person with disabilities one category of merit based quota but% deny the same person another category of merit quota was outright discriminatory and neither the Constitution nor the Federal Public Service Commission Ordinance, 1977 or the Civil Servants Act, 1973 permitted such a classification—Rule 9(ii) of the Rules For Competitive Examination (CSS), 2014 was therefore devoid of any reasonable classification and discriminatory, offending Art. 25 of the Constitution, and furthermore, also underrated a person with disabilities, by hurting his/her self esteem and dignity and thereby offended Art. 14 of the Constitution—High Court observed that contention that sedentary posts were only available in the four occupational groups mentioned in R. 9(ii) of the Rules for Competitive Examination (CSS), 2014 was not borne out from any record or statutory instrument and lacked rationale—Rules framed under S. 7-A of the Federal Public Service Commission Ordinance, 1977 were supposed to deal with, among other things, internal governance, and the Rules under S. 10 of the said Ordinance were to be framed to carry out the purpose of the Federal Public Service Commission Ordinance, 1977, which was to conduct tests and examination for recruitment— Any rule framed under said S. 10 could only elaborate and provide further details regarding conducting of tests and examinations and could not transgress the mandate of the Federal Public Service Commission Ordinance, 1977 and could not set restriction and thresholds for any class of candidates to enter civil service, which in• the present case was disabled persons—High Court observed that R.9(ii) of the Rules for Competitive Examination (CSS), 2014 framed under Ss. 7-A and 10 of the Federal Public Service Commission Ordinance, 1977, transgressed the scope of the Federal Public Service Commission Ordinance, 1977 and was ultra vires to the same—High Court further held that being in violation of Arts.14 and 25 of the Constitution, R.9(ii) of the Rules for Competitive Examination (CSS), 2014 was unconstitutional and was accordingly struck down—High Court further observed that the Federal Government was free to fÓrm;ulate a more inclusive recruitment policy keeping in view of the observations of the High Court, the Constitution and United Nations Convention On The Rights Of Persons With Disabilities, Ratified by Pakistan in 2011 and after thoroughly assessing the possibility of providing reasonable accommodation to disabled persons—Constitutional petitions were allowed, accordingly. [pp. 420, 421, 433, 434, 435] A, B, C, D, P, Q, R & S

Moving from the margins-Mainstreaming persons with disabilities in Pakistan (A custom research report produced for the British Council, August, 2014). rel.

(b) Constitution of Pakistan-

—Arts. 9, 2A, 14, 25, 8, 4 & Preamble—United Nations Convention On The Rights Of Persons With Disabilities, Ratified by Pakistan in 2011—Nature of Fundamental Rights under the Constitution— Fundamental Rights in the context of persons with disabilities— Constitutional protections for disabled persons—Constitutional values of universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms—Concept of “reasonable accommodation'9 for disabled persons—Nature of “human dignity ”— Legitimate interests of a person with disabilities—Constitutional nexus with the United Nations Convention On The Rights Of Persons With Disabilities, Ratified by Pakistan in 2011—Obligations of the State with regard to disabled persons, in the context of recruitment to civil service, extensively discussed. [pp. 421, 422, 423, 425, 431, 432, 433] E, F, G, H, I, K,L,M.N&0

Aharon Barack-Human Dignity-The Constitutional Value and the Constitutional Rights. Cambridge 2015, pp.85, 86 & 144; Pakistan Tobacoo 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;Moving from the margins-Mainstreaming persons with disabilities in Pakistan; Collins English Dictionary-Complete and Unabridged, 12th Edn. 2014 Harper Collins Publishers, quoted at URL

http://www. thefreedictionary. com/disabled; Word Health Organization. (2016) Disabilities, Retrieved on December 19, 2016 from

http://www/who.int/topics/disablities/en/; Jeeja Ghosh and another v. Union of India and others AIR 2016 SC 2392;Hafiz Junaid Mahmood v. Government of Punjab and others PLD 2017 Lah. 1 and Assistive Technology for Visually Impaired and Blind Peole. Marion A Hersch, Michael A Johnson. Springer, P.670 rel.

(c) Words and phrases —

—11Disability"—Meaning of—Nature and concept of the word “disability”—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 is a person who on account of injury, disease or congenital defÓrm;ity, was handicapped from 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—Per United Nations Convention On The Rights Of Persons With Disabilities, persons with disabilities include 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 the interaction between persons with impairments and the attitudinal and environmental barriers that hindered their full and effective participation in society on an equal basis with others—“Disabilities” was an umbrella term, covering impairments, activity limitations, and participation restrictions— Impairment was a problem in body function or structure; an activity limitation was a 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 but also 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, [p. 425] J

Collins English Dictionary-Complete and Unabridged, 12th Edn. 2014 (c) Harper Collins Publishers, quoted at URL

(d) Federal Public Service Commission Ordinance (XLV of 1977)—

—Ss. 7-A, 10 & Preamble—Conduct of Business of Federal Public Service Commission—Rules framed under Ss. 7-A & 10 of the Federal Public Service Commission Ordinance, 1977—Scope—Rules under S.7-A of the Federal Public Service Commission Ordinance, 1977 were supposed to deal with the internal governance and business of the Federal Public Service Commission in order to effectively achieve its main purpose under the Federal Public Service Commission Ordinance, 1977 which was to conduct tests and examinations and advise the President when required—Rules under S.10 of the Federal Public Service Commission Ordinance 1977, on the other hand, were to be framed to carry out the purposes of the Federal Public Service Commission Ordinance, 1977 and any Rule framed under said section could only elaborate and provide further details regarding how to conduct tests and examinations—Such Rules could not transgress the mandate of the Federal Public Service Commission Ordinance, 1977 and could not proceed to set restrictions and thresholds for any class of candidates to enter the civil service—Federal Government under S.10 of the Federal Public Service Commission Ordinance 1977 could only

further the purposes of the Federal Public Service Commission Ordinance, 1977 and no more, and S.7 of the same lay down the purpose of the Ordinance and nowhere did it empower the Federal Public Service Commission to set new qualifications or impose restrictions on any class of candidates. [p. 434] Q

Petitioners represented by:

Sardar Faiz Rasool Jabani, Rana Moazzam Siddique, Yousaf Naseem Chandio, Usman Nawab and Dildar Hussain, Advocates along with Petitioners in person.

Respondents represented by:

Nasar Ahmad, Deputy Attorney General of Pakistan.

Ms. Hina Hafeezullah Ishaque, Standing Counsel for Pakistan. Nasir Saeed Akhtar Warriach, D.S., Establishment Division. Haroon Rashid, Assistant Director, FPSC, Islamabad.

Ms. Riffat Butt, Deputy Legal Advisor, Ministry of Foreign

Affairs.

Ms. Iqra Ashraf, Assistant Director, Ministry of Foreign

Affairs.

Research assistance by:

Qaisar Abbas and Mohsin Mumtaz, Research Associates and Civil Judges, Lahore High Court Research Centre (LHCRC).

Date of hearing: 11th January, 2017.

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