Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Hafiz JUNAID MAHMOOD VS Respondent: GOVERNMENT OF PUNJAB and others
Court Name: Lahore High Court Judge(s): Syed Mansoor Ali Shah Title: Hafiz JUNAID MAHMOOD vs GOVERNMENT OF PUNJAB and others Case No.: Writ Petition No,2565 of 2014 Date of Judgment:2016-12-19 Reported As: PLJ 2017 Lahore 187, PLD 2017 Lahore 1 Result: Petition allowed
JUDGMENT
JUDGMENT SYED IVFANSOOR ALI SHAH, C.J.---Petitioner has permanent visual impairment or Bilateral Permanent Blindness which in ordinary parlance means that the petitioner is physically blind. This disability did not dissuade the petitioner from becoming a Hafiz-e-Quran and pursing higher education and successfully obtaining Bachelor of Arts (Honours) in English from Forman Christian College, Lahore in the year 2012. He also holds a Braille Proficiency Certificate from the Directorate of Special Education, Government of Pakistan dated 26-2-2016. According to the Disability Certificate dated 17-12-2016 the Assessment Board for the Disabled Persons has recommended that the petitioner is 'fit for job consistent with his experience." 2.In response to a public advertisement in the year 2013, for the entry test for recruitment of educators, in all districts of Punjab, issued by National Testing Service (NTS) on behalf of School Education Department, Government of Punjab, the petitioner applied and successfully passed the NTS test. Thereafter, the local government advertised various posts of educators including the post of Senior Elementary School Educator ("SESE"). Having passed the NTS test the petitioner thought that he was eligible to apply for the said post, till he realized that the advertisement itself barred blind persons from applying. Upon further inquiry the petitioner found out that the bar is contained in the "Recruitment Policy-2013 for Educators" ("Recruitment Policy") dated 31.07.2013. 3.The petitioner has challenged the Recruitment Policy before this Court on the ground that the definition of disabled person in the Recruitment Policy is against the definition of a disabled person as given in section 2(c) of the Disabled Persons (Employment and Rehabilitation) Ordinance, 1981 ("Ordinance"). It is submitted that the petitioner is entitled to be considered on open merit at par with the other candidates and in addition to that a person with disabilities enjoys a 3% special1 2
---
## Page 2
quota under section 10 of the Ordinance. He submits that the Recruitment Policy is violative of the fundamental rights and hence unconstitutional. 4. Learned Law Officers and the learned counsel for respondent Local Government along with the Deputy Secretary, School Education Department, present in Court, submit that it is not possible for a blind teacher to "control the class" or maintain discipline, therefore, he is not eligible to apply for the said post. Furthermore, the right of the petitioner to seek employment has to be proportionately balanced with the rights of the children to get proper education, while the right to education is the dominant right. While supporting the Policy, they submitted that courts cannot interfere in Policy matters and placed reliance on 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 Lahore 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). 5. I have heard the arguments and have gone through the record, the supporting materials and case law relied upon by the parties. 6. Facts are admitted and have been briefly narrated above. At a subjective level, the question before this Court is the legality of the Recruitment Policy that has deprived the petitioner, a blind man, from applying for the post of SESE inspite of having successfully qualified the NTS test, a pre- requisite for applying for the above post. But, viewed objectively, the question of more importance is, whether a person with disabilities, enjoys protection under the Constitution? 7. Taking up the question of maintainability of the petition first. It has been argued by the Respondents that courts do not interfere in policy matters, hence this Court cannot examine the impugned Recruitment Policy and as a result this petition is not maintainable. Generally, governmental policy is enforceable against a citizen when it is translated into legislation, subordinate legislation or executive action. Any such legislation or executive action is then subject to judicial review. Policy is, generally, a guideline for the internal working of the Government, however, if the Policy impinges upon the fundamental rights of a citizen, it can be judicial reviewed, like any other legislation or executive action. Reliance is placed on Human Rights case No,14392 of 2013 (2014 PTD 243), Messrs Al-Raham Travels and Tours (Pvt.) Ltd. v. Ministry of Religious Affairs, Hall, Zakat and Ushr 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 Lahore 120) and Wattan Party through President v. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad and others (PLD 2006 SC 697). It has been argued in this case that the Recruitment Policy has deprived the petitioner of his right to life including right to livelihood, right to dignity and right to equality. Additionally, this case also revolves around interpretation of fundamental rights in the context of persons with disabilities. The case laws relied upon by the learned counsel for the respondents have been considered and have little relevance to the case in hand because they turn on totally different factual matrices. For these reasons, the Court can examine the said Policy and, therefore, the instant petition is maintainable. 8. At the very outset it is important to examine the meaning of disability. 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. A disabled person under the Ordinance is defined 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. According to the UN Convention on the Rights Of Persons With Disabilities ("CRPD" or "Convention") ratified by Pakistan in 2011, persons with disabilities include those who have long-term physical, mental,3 4
---
## Page 3
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 is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others. Disabilities is an umbrella term, covering impairments, activity limitations, and participation restrictions. An 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. It is a complex phenomenon, reflecting the interaction between features of a person's body and features of the society in which' he or she lives. 9.As a matter of background, around 10 per cent of the world's population, or 650 million people, live with a disability. They are the world's largest minority. Eighty per cent of persons with disabilities live in developing countries, according to the UN Development Programme (UNDP). Ninety per cent of children with disabilities in developing countries do not attend school, says UNESCO. The global literacy rate for adults with disabilities is as low as 3 per cent, and 1 per cent for women with disabilities, according to a 1998 UNDP study. An estimated 386 million of the world's working-age people are disabled, says the International Labour Organization (ILO). Unemployment among the disabled is as high as 80 per cent in some countries. Often employers assume that persons with disabilities are unable to work. In Pakistan, estimates of the number of persons living with disabilities vary between 3.3 million and 27 million, depending on whether they are based on government statistics (the last census which measured the prevalence rates was taken in 1998) or whether they come from other agencies. 10.In Pakistan, there is no comprehensive law protecting the rights of persons with disabilities. The one and only piece of legislation that exists for persons with disability was passed in 1981 and focuses on employment and segregated education (in the form of special education schools). In the 33 years since then only minor adjustments have been made to the law, and it continues to be poorly implemented. Meanwhile, a number of policies and plans have been drafted, but once again, they remain only on paper. The law, policies and plans squarely underline a medical and charity approach to disability. 11.Globally, and in Pakistan, policy approaches to disability have largely been focused on rehabilitation, welfare handouts and related charity. This has been changing since the UN Convention on the Rights Of Persons With Disabilities which offers a blueprint for a rights-based approach to mainstreaming persons with disabilities. Pakistan ratified the CRPD in 2011, but progress around building an inclusive society has been slow. The Convention, which became operational in 2008, is the first human rights treaty of the 21st century and the first UN treaty protecting the fundamental rights of persons with disability. In line with the general discourse around development-related issues today, the treaty is a move towards viewing disability from a rights-based approach. UN Convention on the Rights Of Persons With Disabilities 12. The Convention promotes, protects and ensures the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and promotes respect for their inherent dignity. The relevant provisions of the Convention are instructive, hence relevant portions are reproduced hereunder:- Preamble (a) Recalling the principles proclaimed in the Charter of the United Nations which recognize the inherent dignity and worth and the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world.5 6 7 8 9
---
## Page 4
(b) Recognizing that the United Nations, in the Universal Declaration of Human Rights and in the International Covenants on Human Rights, has proclaimed and agreed that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, (c) Reaffirming the universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms and the need for persons with disabilities to be guaranteed their full enjoym ent without discrimination, (g) Emphasizing the importance of mainstreaming disability issues as an integral part of relevant strategies of sustainable development, (h) Recognizing also that discrimination against any person on the basis of disability is a violation of the inherent dignity and worth of the human person, (i) Recognizing further he diversity of persons with disabilities, (j) Recognizing the need to promote and protect the human rights of all persons with disabilities, including those who require more intensive support, (k)Concerned that, despite these various instruments and undertakings, persons with disabilities continue to face barriers in their participation as equal members of society and violations of their human rights in all parts of the world, (m)Recognizing the valued existing and potential contributions made by persons with disabilities to the overall well-being and diversity of their communities, and that the promotion of the full- enjoyment by persons with disabilities of their human rights and fundamental freedoms and of full participation by persons with disabilities will result in their enhanced sense of belonging and insignificant advances in the human, social and economic development of society and the eradication of poverty, (n) Recognizing the importance for persons with disabilities of their individual autonomy and independence, including the freedom to make their own choices, (o) Considering that persons with disabilities should have the opportunity to be actively involved in decision-making processes about policies and programmes, including those directly concerning them, (p) Concerned about the difficult conditions faced by persons with disabilities who are subject to multiple or aggravated forms of discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national, ethnic, indigenous or social origin, property, birth, age or other status, (v) Recognizing the importance of accessibility to the physical, social, economic and cultural environment, to health and education and to information and communication, in enabling persons with disabilities to fully enjoy all human rights and fundamental freedoms, (x) Convinced that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State, and that persons with disabilities and their family members should receive the necessary protection and assistance to enable families to contribute towards the full and equal enjoyment of the rights of persons with disabilities, (y) Convinced that a comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities will make a significant contribution to redressing the profound social disadvantage of persons with disabilities and promote their participation in the civil, political, economic, social and cultural spheres with equal opportunities, in both developing and developed countries. Article 3 (General Principles) ' The principles of the present Convention shall be: (a)Respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons; (b)Non-discrimination;
---
## Page 5
(c)Full and effective participation and inclusion in society; (d)Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity; (e)Equality of opportunity; (f)Accessibility; (g)Equality between men and women; (h)Respect for the evolving capacitated of children with disabilities and respect for the right of children with disabilities to preserve their identities. Article 4 (General obligations) 1. States Parties undertake to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. To this end, States Parties undertake: (a) To adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention; (b) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities; (c) To take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes; (d) To refrain from engaging in any act or practice that is inconsistent with the present Convention and to ensure that public authorities and institutions act in conformity with the present Convention; (e) To take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise; (f) To undertake or promote research and development of universally designed goods, services, equipment and facilities, as defined in Article 2 of the present Convention, which should require the minimum possible adaptation and the least cost to meet the specific needs of a person with disabilities, to promote their availability and use, and to promote universal design in the development of standards and guidelines; (g)To undertake or promote research and development of, and to promote the availability and use of new technologies, including information and communications technologies, mobility aids, devices and assistive technologies, suitable for persons with disabilities, giving priority to technologies at an affordable cost; (h)To provide accessible information to persons with disabilities about mobility aids, devices and assistive technologies, including new technologies, as well as other forms of assistance, support services and facilities; (i)To promote the training of professionals and staff working with persons with disabilities in the rights recognized in the present Convention so as to better provide the assistance and services guaranteed by those rights. Article 5 (Equality and non-discrimination) 1. States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law. 2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds. 3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided. 4. Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention Article 27 (Work and Employment) 1. States Parties recognize the right of persons with disabilities to work, on an equal basis with
---
## Page 6
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 employm ent, including conditions of recruitment, hiring and employment, continuance of employm ent, 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. ' (emphasis supplied) 13.Under CRPD, "Discrimination on the basis of disability" means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation. The Convention explains that "Reasonable accommodation" means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedom. The Convention also defines "Communication" to include languages, display of text, Braille, tactile communication, large print, accessible multimedia as well as written, audio, plain-language, human-reader and augmentative and alternative modes, means and formats of communication, including accessible information and communication technology. 14.Reasonable accommodation can be through assistive technology, which is an umbrella term that includes assistive, adaptive, and rehabilitative devices for people with disabilities and also includes the process used in selecting, locating, and using them. Assistive technology promotes
---
## Page 7
greater independence by enabling people to perform tasks that they were formerly unable to accomplish, or had great difficulty accomplishing, by providing enhancements to, or changing methods of interacting with, the technology needed to accomplish such tasks. Assistive Technology is a generic term for devices and modifications (for a person or within a society) that help overcome or remove a disability. The first recorded example of the use of a prosthesis dates to at least 1800 BC. The wheelchair dates from the 17th century. The curb cut is a related structural innovation. Other examples are standing frames, text telephones, accessible keyboards, large print,, Braille and speech recognition software. 15.The term adaptive technology is often used as the synonym for assistive technology; however, they are different terms. Assistive technology refers to "any item, piece of equipment, or product system, whether acquired commercially, modified, or customized, that is used to increase, maintain, or improve functional capabilities of individuals with disabilities," while adaptive technology covers items that are specifically designed for persons with disabilities and would seldom be used by non-disabled persons. In other words, "assistive technology is any object or system that increases or maintains the capabilities of people with disabilities," while adaptive technology is "any object or system that is specifically designed for the purpose of increasing or maintaining the capabilities of people with disabilities." Consequently, adaptive technology is a subset of assistive technology. Adaptive technology often refers specifically to electronic and information technology access. Many people with serious visual impairments live independently, using a wide range of tools and techniques. Examples of assistive technology for visually impairment include screen readers, screen magnifiers, Braille embossers, desktop video magnifiers, and voice recorders. The Convention provides that no one can be discriminated on the ground of disability and obligates the State to take steps to provide reasonable accommodation in order to provide inclusion and access to persons with disabilities in the society. Our Constitution 16.Our Constitution is prefaced by timeless and immutable constitutional values, which reflect the will and resolve of the people of Pakistan. These preambular constitutional values provide that principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be observed. Wherein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality. These constitutional values, inter alia,…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.