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Petitioner: MUHAMMAD YOUSAF and another VS Respondent: CHAIRMAN, FEDERAL PUBLIC SERVICE JUDGMENT
Court Name: Lahore High Court Judge(s): Syed Mansoor Ali Shah Title:MUHAMMAD YOUSAF and another vs CHAIRMAN, FEDERAL PUBLIC SERVICE
JUDGMENT
Reported As: PLD 2017 Lahore 406 Result: Petition allowed Judgment JUDGMENT Pakistan is a developing country with a lot of challenges: .... But this does not mean that we can afford to ignore millions of Pakistanis [with disabilities] who are currently out of sight but who, if given a chance, could contribute significantly to the nation as a whole.' SYED MANSOOR ALI SHAH, C.J.-FACTS Petitioners are visually impaired and suffer from bilateral blindness, however, undeterred by this, petitioners continued their education. Petitioner No,1 holds a Master's degree in Political Science Moving from the margins -Mainstreaming persons with disabilities in Pakistan (A custom research report produced for the British Council, August, 2014) from G.C. University, Lahore and Petitioner No,2 an M. Phil in English Literature, from G.C. University, Faisalabad. Both the petitioners applied in response to the public advertisement put up by the Federal Public Service Commission ("FPSC") for the Competitive Examination for Central Superior Services-2014 ("CSS") in the daily newspapers dated 01.10.2013. Both the petitioners passed the written examination, medical examination, physical assessm ent and viva-voce and secured 22nd and 12th position, respectively. Petitioner No,1 opted for Foreign Service of Pakistan ("FSP") as his first preference, while Petitioner No,2 opted for Pakistan Administrative Service ("PAS") as his first preference (and FSP was his third choice). However, for the purposes of this petition both the petitioners pray for allocation to FSP. Despite securing 22nd and 12th positions in all Pakistan and being entitled to the said services on merit in the Punjab quota, the petitioners were deprived of the same and were instead allocated Information Group ("IG") vide Press Note dated 30.04.2015 issued by FPSC.
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2. The Petitioners have challenged the allocation of Information Group instead of Foreign Service of Pakistan to them and as a consequence the vires of Rule 9(ii) of the Rules for Competitive Examination (CSS) 2014 ("CSS Rules") that deprives them of this opportunity. In the connected petition the same petitioners simply challenge the vires of Rule 9(ii) to the extent of imposing a restriction on a person with disabilities to join other Occupational Groups/Services, except the four permitted Occupational Groups. 3. Rule (ii) of the CSS Rules provides that a candidate with disabilities, in order to be allocated FSP, has to fall within 7.5% All Pakistan merit quota and otherwise can only be considered for the following Occupational Groups: i. Commerce and Trade Group (CTG) ii. Pakistan Audit and Accounts Service (PAAS) Information Group (IG) iv. Postal Group (POSTG) ARGUMENTS 4. Learned counsel for the petitioners submits that impugned Rule is unconstitutional, in as much as, it offends constitutional values and fundamental rights of the petitioners guaranteed under Articles 9, 14, 25 and 27 of the Constitution of Pakistan, 1973. It is further submitted that the impugned Rule also offends the Convention on the Rights of Persons with Disabilities and Optional Protocol ("CRPD") ratified by Pakistan in the year 2011. 5. Learned Deputy Attorney General for Pakistan along with Departmental Representatives support the said Rule and submit that a disabled candidate can only be considered for Foreign Service of Pakistan if he falls within the 7.5% All Pakistan merit quota. Otherwise, a disabled candidate is only allowed to compete for four Occupational Groups mentioned above. OPINION OF THE COURT 6. The statutory architecture supporting the Competitive Examinations for the Central Superior Services (CSS) begins with section 5 of the Civil Servants Act, 1973 which provides for appointments to All Pakistan Service or civil service of the Federation to be made in the prescribed manner. Under Section 25, the President or any other person authorized by the President may make Rules for carrying out the purposes of the Act. Rule 10 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 (Rules made by the President) provides that initial appointment to the All Pakistan Services shall be made on the basis of the tests and examinations to be conducted by the Federal Public Service Commission. These Rules do not provide any other qualification or disqualification for joining an All Pakistan Service. Section 7 of the Federal Public Service Commission Ordinance, 1977 ("Ordinance") describes the functions of the Federal Public Service Commission ("FPSC") to be as follows; 7. Functions of the Commission:- (1) The functions of the Commission shall be:- (a) to conduct tests and examinations for recruitment of persons to (ii) All Pakistan Services, the civil services of the Federation and civil posts in connection with the affairs of the Federation in basic pay scales 16 and above or equivalent; (la) ... (b) to advise the President: (i) on matters relating to qualifications for and method of recruitment to, services and posts referred to in clause (a); (ii) on the principles to be followed in making initial appointments to the services and posts referred to in clause (a) and in making appointments by promotion to posts in BS- 18 and above and transfer from one service or occupational group to another; and (iii) on any other matter which the President may refer to the Commission; and (c) to hold examinations for promotion for such- posts as the Federal Government may, from time to time, by notification in the official Gazette, specify.
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Explanation:- In this section, "recruitment" means initial appointment other than by promotion or transfer. 7. FPSC is to conduct tests and examinations and advise President on matters relating to qualifications for and methods of recruitment to and on the principles to be followed in making initial appointments. FPSC is primarily an apex-testing centre for recruitment by the Federation. It only conducts tests and examinations. In other matters it simply advises the President. The advice of the FPSC to the President, if approved or accepted., can only be binding on the prospective candidates once translated into law through promulgation of Rules under section 25 of the Civil Servants Act, 1973. 8. It is useful to mention how persons with disabilities have been considered for the purposes of the CSS examination. One Dr Amir Ali Majid (Barrister) of Mansfield Law Society, London Metropolitan University, UK wrote to the President of Pakistan vide letter dated 9.9.2002 regarding inclusion of visually impaired people of Pakistan in the competitive examinations. The relevant extract of the letter is as follows; A Burning Issue of Welfare of Blind People in Pakistan The enclosure to this letter shows that visually impaired people of Pakistan are prevented from gaining employment by the Federal Civil Service Commission by operating a patently retrograde rule whereby they cannot take any competition examination with the help of an amanuensis. This state of affairs is so bad that a father of a blind Pakistani postgraduate (who was forbidden to participate in a competition examination) has told me that his son is contemplating suicide because he sees no chance to progress in his life. Whilst in countries like UK, visually impaired persons are being appointed to judicial posts and the establishment- is willing to give them Cabinet offices, the said approach of the Federal Commission to the employment of blind people is nothing but a disgrace to the image of Pakistan. This matter does not call for any debate and does not justify waste of any time. To prevent continuing damage to disabled people, and to curtail any infliction of further despair on this vulnerable group, may I urge upon General Sahib to take remedial action with the brigade speed and most humbly request the other recipients of this letter to do their best to see this retrogressive policy removed from the Commission rules. 9. This was followed by a request by Sir John Wall, CBE and President of the European Blind Union, UK in his letter to the President of Pakistan dated 7.4.2003 which stated as follows: Issue of Welfare of Blind People in Pakistan I was very concerned to learn that visually impaired graduates in Pakistan are unable to progress, in the employment field. As the enclosed communication of Dr. Majid, dated 9 September 2002 shows, it is a matter which calls for the most urgent action. The issue is clearly set out in Dr. Majid's letter. I very much hope that you will be kind enough to initiate the appropriate action to remedy this wrong and let me know of it. 10. As a result, Summary dated 16.06.2004 was prepared for the Cabinet. The relevant extract states as under: No,1/4/2002-T-V GOVERNMENT OF PAKISTAN CABINET SECRETARIAT (Establishment Division) SUMMARY FOR THE CABINET SUBJECT:- Permission to take Competitive Examination Conducted by the FPSC - Case of Visually Impaired Persons. 2. The FPSC have no objection if the government allows visually impaired persons to compete in the Competitive Examinations provided they are considered for sedentary posts only by fixing their
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special quota (Annex-IV). The Ministry of Women Development, Social Welfare and Special Education has endorsed the proposal and suggested amendment in the relevant rules (Annex-V). Health Division have also endorsed the proposal to the extent of specific jobs but have reservations about a blanket provision to induct such persons (Annexure-VI). Ministry of Law, Justice and Human Rights hold that quota for disabled in the vacancies filled through the FPSC is not inconsistent with the provisions of the Constitution (Annex-VII). 3. Keeping in view the above facts, it is proposed that visually impaired persons may be allowed to compete (on an experimental basis) through the CSS against the vacancies of following Services/Occupational Groups; (a) Commerce and Trade Group;' (b) Pakistan Audit and Accounts Service; (c) Information Group; and (d) Postal Group. 11. According to the learned standing counsel, the summary was approved and found its way in clause 9 (ii) of Appendix-I of the CSS Rules, 2005 dated 18.04.2005. Thereafter, in the year 2008, a visually impaired candidate, one Miss Saima Saleem, secured 6th position, in order of merit, in the CCS examinations -2007 on All Pakistan basis. FPSC through its letter written in the year 2008, proposed to the Federation that she be allowed to join FSP in relaxation of Rules. As a consequence, Establishment Division moved a Summary to the Prime Minister on 23.02.2008. The relevant extracts of the summary are as follows: GOVERNMENT OF PAKISTAN CABINET SECRETARIAT STABLISHMENT DIVISION SUMMARY FOR THE PRIME MINISTER Subject: COMPETITIVE EXAMINATION 2007 - ALLOCATION OF MISS SAIMA SALEEM TO THE FOREIGN SERVICE OF PAKISTAN. Rule 9(ii) of the Competitive Examination Rules, 2007, of the Federal Public Service Commission (FPSC), provides for eligibility of disabled candidates falling in the category of physically impaired, hearing speech impaired (deaf and dumb) and visually impaired (blind) for selection against the posts in the following groups / services (Annexure-I): i. Commerce and Trade Group ii. Pakistan Audit and Accounts Service. iii. Information Group iv. Postal Group 2. A visually impaired candidate (Miss Saima Saleem, Roll No,2219) has secured 6th position in the order of merit of finally qualified candidates in the Competitive Examination 2007. She has opted for Foreign Service of Pakistan (FSP), as her first preference, in addition to the four services earmarked for disabled candidates. Her performance in viva-voce before Selection Board of the Commission was found excellent as she demonstrated a commendable command on various national and international affairs. This extraordinary capability renders her a highly suitable candidate for appointment to Foreign Service of Pakistan. If allocated to the ,FSP, she is likely to create a favourable impression of Pakistan to the world community vis-a-vis gender equality and treatment to the handicapped persons. 3. The Federal Public Service Commission (FPSC) has recommended that Miss Saima Saleem, who falls within the allocation zone of Foreign Service of Pakistan, may be considered for appointment in the Foreign Service of Pakistan (FSP) in relaxation of Cabinet decision in case No,159/18/2004, dated 4-8-2004 (Annex-II). 4. Establishment Division endorses the recommendation made by the Feideral Public Service Commission (FPSC) and proposes that Miss Saima Saleem, may be allocated to the Foreign Service of Pakistan (FSP) in relaxation of the aforementioned Cabinet decision and provisions incorporated in rule 9(ii) of the FPSC Competitive Examination Rules, 2007. Approval may also be accorded to the proposal that in future, if a physically impaired, hearing/speech impaired (deaf
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and dumb) and visually impaired (blind) candidate secures a position within overall merit quota, on all Pakistan basis, may be allocated to the Follign Service of Pakistan on the basis of his/her choice. 5. Approval of the Prime Minister is solicited to the proposal at para-4 above in terms of Rules 15 (1) (a) of the Rules of Business, 1973 (Annex-III). 12. The Summary was approved on 14.03.2008 by the Prime Minister. Thereafter, CSS Rules under the Ordinance were amended. Rule 9 (ii) of the Rules for Competitive Examination (CSS) -2014 ("Rules- 2014") as it stands today, states as under: Rule 9(ii). Disabled candidates in the categories of physically impaired, hearing/speech impaired (deaf and dumb) and visually impaired (blind) are allowed to compete for Competitive Examination against four Occupational Groups/Services viz: (a) Commerce and Trade Group (b) Pakistan Audit and Accounts Service (c) Information Group & (d) Postal Group. Disabled candidates securing a position against prescribed 7.5% merit quota on all Pakistan basis may be considered for allocation to Foreign Service of Pakistan on the basis of his/her choice. 13. Rule 9 (ii) has been framed .Under sections 7-A and 10 of the Ordinance which state as follows: 7-A Conduct of Business of Commission, etc:- The Chairman of the Commission may, with the approval of the Federal Government, make rules for regulating the conduct of the business of the Commission; and such rules may provide for any of the functions of the Commission specified by it being performed by a Committee composed of two or more members constituted by the Chairman for the purpose. 10. Rules:- The Federal Government may, by notification in the official Gazette, make rules, for carrying out the purposes of this Ordinance. 14. In the present case Competitive Examinations for the Central Superior Services (CSS) for the year 2014 were publically advertised in national dailies on 1.10.2013. The overall Group wise allocation on All Pakistan Merit and in Punjab for CSS-2104 is as follows as per letter dated 27-4- 2015 issued by the FPSC. FEDERAL PUBLIC SERVICE COMMISSION Aga Khan Road, Sector F-5/1 Islamabad, the 27th April, 2015 PRESS NOTE Subject: COMPETITIVE EXAMINATION (CSS) 2014 - NUM BER OF VACANCIES ALLOCATED TO VARIOUS OCCUPATIONAL GROUPS/SERVICES IN ACCORDANCE WITH THE LAID DOWN MERIT/PROVINCIAL/REGIONAL WOMEN AND MINORITIES QUOTAS. No,F.2/20/2014-CE. In pursuance of Rule 15 of Competitive Examination (CSS), 2014 (bearing No,F.2/1/2014-CE, dated 19.09.2013), it is announced for general information that the number of vacancies, including carried over vacancies, to be filled on the basis of the final result of Competitive Examination (CSS) 2014, in accordance with Government policy on Merit/Provincial/Regional/Women and Minorities quotas, are as follows:- QUOTA FRESH VACACIES CARRIED OVER VACANCIESTotal Vacancies Merit 7.5% All Pakistan MeritPAAS =1, PCS =1, PAS =2, FSP = 1, IRS=5, IG =1, MLCG =1, OMG=4, PSP = 3Nil 19 Punjab Open Merit PAAS =6 PCS =6, PAS =11, FSP=8, IRS =27, IG- 1, MLCG =1 OMG=22, PSP =15, POSTG =4RCTG =1 101 +1 = 102
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Women PAAS =1, PCS =1, PAS =2, FSP = 1 , IRS =3, OMG =3, PSP = 1Nil 12 Minorities PCS =1, FSP = 1 , IRS;= 1, MLCG =1, OMG =1, PSP = 1PAAS =1, IRS =4, OMG =5, POSTG=1, RCTG-=16+12=18 15 The above shows that within ALL PAKISTAN MERIT (top 7.5%) PAS has two seats and FSP has only one seat. While in the 50% quota for Punjab, PAS has 11 seats and FSP has 8 seats on open merit. 16 The extract of the result of the petitioners announced through Press Note dated 30-4-2015 issued by FPSC is as follow: FEDERAL PUBLIC SERVICE COMMISSION Aga Khan Road, F-5/1 Islamabad the 30th April, 2015. PRESS NOTE Subject:- COMPETITIVE EXAMINATION (CSS), 2014 FOR RECRUITMENT TO POSTS IN BS-17 UNDER FEDERAL GOVERNMENT. No,F.2/4/2015-CE. The roll numbers and names of 377 candidates who have finally qualified the CSS Competitive Examination 2014, are given in the following statement (in order of merit). Out of 377 qualified candidates, 233 have been recommended by the FPSC for appointment to posts in BS-17 under the Federal Government in the Group/Service mentioned against each:- .M.No Roll No. Name DomicileGroup/Service allocated 1. 11864 Javeria Maqbool PUNJAB PAS 2. 1010 Hafiz Karim Dad PUNJAB PAS 3. 11839 Jannat Hussain Nekokara PUNJAB PASS 4. 7155 Tabinda Tariq KPK PAS 5. 12677 Muhammad Anas Iqbal PUNJAB PAS 6. 6776 Sarah Rehman Sindh Urban PAS 7. 15238 Syed Aadil Iftikhar PUNJAB PAS 8. 6873 Shahnawaz Khan KPK FAP 9. 19615 Muhammad Raza Tanveer KPK PSP 10. 10492 Asadullah PUNJAB PAS 11. 12431 Mohammad Mohsin SalahuddinPUNJAB IG 12. 4853 Faisal Majeed PUNJAB IG 13. 10768 Bilal Hassan PUNJAB PAS 14. 16811 Minah Shahbaz PUNJAB FSP 15. 9951 Ahmad Waleed PUNJAB FSP 16. 22645 Muhammad Abdullah MahmoodPUNJAB PAS 17. 13391 Muhammad Shayan Ali JawaPUNJAB PAS 18. 20788 Tillat Jan KPK PAS 19. 13412 Muhammad Sohaib Butt PUNJAB PAS 20. 13169 Muhammad Nabeel Riaz PUNJAB PAS 21. 13561 Muhammad Waqar Azeem PUNJAB PAP 22. 6152 Muhammad Yousaf PUNJAB IG
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17. The above shows that Petitioner No,2 secured 12th position in all Pakistan. His first preference being PAS, he fell at serial No, '11 amongst the candidates who had opted for PAS as their first preference. After filling the All Pakistan Merit quota of PAS i,e,, 2 seats, the petitioner stood at serial No, 9 against the PAS quota for Punjab i,e,, a total of 11 seats. Similarly, Petitioner No,1 secured 22nd position in all Pakistan and FSP being his first preference he stood at serial No, 4 amongst the candidates who opted for FSP. After filling the All Pakistan Quota on Merit in FSP i,e,, one seat, Petitioner No,2 stood at No, 3 of the FSP Group against 8 seats of FSP allocated to Punjab on open merit. If the petitioners were not visually impaired and were it not for Rule 9(ii) of the CSS Rules, petitioners were entitled to be allocated the A Occupational Group of their choice in open merit quota reserved for Punjab. Rule 9 (ii) 18. In the wake of the above legal structure and facts, it is important to review the constitutionality and legality of Rule 9 (ii) of the CSS Rules. For the purposes of this judgment both the petitioners are being considered for the Occupational Group of FSP as per their prayer in the instant petition. Constitutional Challenge 19. Rule 9(ii) allows a person with disabilities to be considered for FSP if fie falls within 7.5 % quota on all Pakistan basis, but is not allowed to be considered against open merit in the provincial quotas. "Disability" for the purpose of Rule 9(ii) and this case includes physically impaired, hearing/speech impaired (deaf and dumb) and visually impaired (blind). 20. Petitioners having obtained 22nd and 12th positions in all Pakistan are fully entitled and qualified to be allocated to FSP under the Punjab quota. No plausible explanation has come forth to justify denial of allocation of FSP from the Punjab quota to the petitioners except Rule 9(ii) of the CSS Rules. While a candidate with disabilities can join FSP against the All Pakistan merit quota, he cannot on the basis of the same result join the quota allocated to the Province of Punjab. To allow a person with disabilities, one category of merit based quota, but deny the same person another category of merit quota, is outright discriminatory. It is painful to observe that a person with disability is first allowed to sit the competitive examination at par with the others, but when he scores and is entitled to allocation in the FSP in the provincial quota, he is denied the same on the pretext that he could only avail the All Pakistan Merit quota of 7.5%. Neither the Constitution nor the Act or the Ordinance permit or support such a classification, hence Rule 9(ii) is devoid of any reasonable classification and is therefore discriminatory, offending Article 25 of the Constitution. Rule 9(ii) also underrates a person with disabilities, hurting his self-esteem and dignity, thereby offending Article 14 of the Constitution. Logic and wisdom, if any, behind this exclusion totally fails me. In fact on 5.12.2016, Ms. Iqra Ashraf, Assistant Director, Ministry of Foreign Affairs appeared before the Court and submitted that other than the requirement of CSS Rules, which are binding, a visually impaired person can work at the Foreign Office, provided he/she is given the requisite facilities. Instead of providing facilitation or equal opportunity, Rule 9(ii) is an impediment in mainstreaming persons with disabilities in our society. 21. Rule 9 (ii) allows only FOUR choices of Occupational Groups for persons with disabilities. The four Occupational Groups are as follows: i. Commerce and Trade Group (CTG) ii. Pakistan Audit and Accounts Service (PAAS) iii. Information Group (IG) iv. Postal Group (POSTG) 22. According to the Summary for the Cabinet dated 16.6.2004, it was proposed that persons with disabilities be considered for sedentary posts. As a result the above four Occupational Groups were made available for persons with disabilities. Departmental Representatives were repeatedly asked to provide job description or scope of work of all the Occupational Groups, but they failed to do so.
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Infact they stated that there is no job description of these Occupational Groups. Hence, there is no statutory instrument that describes the scope of work of any Occupational Group. Therefore, to say that sedentary posts are only available in the above four Occupational Groups is not borne out from D the record or any statutory instrument. It appears that these four Groups have been simply cherry-picked without much thought or rationale. 23. The Federal Government seems to have missed out on the understanding of the constitutional values and fundamental rights provided under the Constitution. It is also convincingly visible that the Federal Government is not aware of the UN Convention of the Rights of Persons with Disabilities ("CRPD" or "Convention") which has been duly ratified by Pakistan in 2011. Our Constitution is prefaced by timeless and immutable constitutional values, which reflect the will and resolve of the people of Pakistan. Principles of democracy, freedom, equality, tolerance and social justice, the 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, flow into fundamental rights, like the right to life (Article 9), the right to dignity (Article 14) and the right to equality (Article 25) making our Constitution evergreen, organic and a living document. 24. Fundamental rights under the Constitution do not distinguish between a person with or without disabilities. It recognizes the inherent and inalienable dignity of all human beings as the foundation of freedom, justice and peace. Right to life and right to dignity are the epicenters of our constitutional architecture. Right to life recognizes the importance of accessibility to physical, social, economic and cultural environment, to health and education and to information and communication. Such a right enables persons with disabilities to fully enjoy all human rights and fundamental freedoms. Every human being has the inherent right to life and to ensure its effective enjoyment, this includes persons with disabilities, at par with the others. Right to life and right to dignity are deeply interwoven. "The right of dignity reflects the 'recognition that a human being is a free agent, who develops his body and mind as he wishes, and the social framework to which he is connected and on which he depends. Human dignity is therefore the freedom of the individual to shape an individual identity. It is the autonomy of the…
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