2023 P L C (C.S.) 426
[Balochistan High Court]
Before Naeem Akhtar Afghan and Zaheer -ud-Din Kakar, JJ
GUL MIR KHAN and 2 others
Versus
GOVERNMENT OF BALOCHISTAN through Secretary Education Balochistan
Quetta and 4 others
Constitutional Petition No.234 of 2016, decided on 18th January, 2021.
(a) Civil service ---
----Appointment to advertised post ---Scope ---Two of the petitioners claimed employment in
Education Department as Junior Vernacular Teacher (JVT) against the posts reserved for
disabled pe rsons ---Validity ---One post of JVT was available for disabled person ---One of the
petitioners had secured 40.04 marks, the other had secured 43.93 marks and the person who
was appointed as JVT had secured 48.78 marks ---Since the appointment against one pos t
reserved for disabled person as JVT had been made on merits and the petitioners had secured
marks lesser than the appointed disabled person, therefore, petitioners were not entitled for
the relief claimed ---Constitutional petition was dismissed to their extent.
(b) Civil service ---
----Appointment to advertised post ---Scope ---Petitioner claimed employment in Education
Department as Junior Education Teacher (JET) against the posts reserved for disabled
persons ---Petitioner had qualified the National Testi ng Service (NTS) test and was entitled
for appointment as JET against the post reserved for disabled person but he was not issued
appointment order by the competent authority and his appeal before the Divisional
Complaint Redressal Cell was rejected on the ground that the degree issued by the concerned
University was not recognized by the Higher Education Commission ---Counsel for Higher
Education Commission had not only confirmed that the University was accredited and
recognized by the Higher Education Comm ission but had also verified the degree of the
petitioner ---Disability Certificate of the petitioner was got verified by the High Court, it was
held that petitioner was entitled to the relief claimed for ---Constitutional petition to his
extent was accepted .
Muhammad Aamir Rana, Muhammad Arif Achakzai and Haq Dad Baloch for
Petitioners Nos.1 and 2.
Abdul Zahir Kakar and Noor Muhammad Kakar for Respondent No.3.
Zahoor Ahmed Baloch, Assistant Advocate General (A.A.G.) assisted by Lal Jan,
DEO Zhob, Musa Kh an, DEO Sherani, Mushtaq Hussain, Assistant Director (Judicial)
Quetta for Respondents Nos.1, 2, 4 and 5.
Naimatullah Achakzai along with Ahsan Hameed, Assistant Director HEC, Regional
Centre, Quetta for Higher Education Commission.
Date of hearing: 26th November, 2020.
JUDGMENT
NAEEM AKHTAR AFGHAN, J. ----In the instant constitution petition, the
petitioners have claimed the following relief:
"a. Set aside the impugned order 04/01/2016 passed by Divisional Complain Redressal
Cell whereby the appeals filed by the petitioners were rejected.
b. Direct the respondents to calculate the quota of disabled persons on the basis of total
sanctioned strength in the light of Section 10 of the Disabled Persons (Employment
and Rehabilitation) Ordinance, 198 1 as well as in view of Rule 13 of Balochistan
Civil Servants (Appointment) Rules, 2009.
c. Direct the respondents to issue appointment letters to petitioners for the posts they
have applied for i.e. Petitioners Nos. 1 and 2 be appointed as JVT in District Zhob
while petitioner No.3 be appointed as JET in District Sherani.
d. Grant any other relief which this Hon'ble court may deems fit and proper in favor of
petitioner, in the interest of justice."
2. The petition has been contested by respondent No.1 by filing para -wise comments.
3. In pursuance of order dated 17.9.2018, the respondent No.1 submitted cadre wise
detail of total existing vacancies of District Zhob and Sherani on 30.10.2018.
4. By filing CMA dated 15.7.2020, the respondent No.4 also placed o n record the details
of the sanctioned posts of District Sherani, District Zhob and copy of appointment orders
dated 12.11.2016 and 8.11.2015.
5. The petitioner No.3 also placed on record copy of application submitted by him to
Social Welfare Department fo r issuance of Disability Certificate and recommendation of the
Assessment Board, the certificate dated 1.9.2020 issued by Deputy director Social Welfare
Department and copy of judgment dated 14.7.2020 passed by Hon'ble Supreme Court in
Civil Petition No. 1 40- L of 2015.
6. After hearing learned counsel for the petitioner, learned counsel for respondent No.3
and learned AAG, we have perused the available record. Petitioners Nos.1 and 2 are claiming
employment in Education Department as Junior Vernacular Teac her (JVT) from District
Zhob against the posts reserved for disabled persons while petitioner No.3 is claiming
employment in Education Department as Junior English Teacher (JET) from District Sherani
against the posts reserved for disabled persons.
7. The 2% quota (now 5% vide Notification dated 08.11.2018) of the disabled persons in
the Province of Balochistan as prescribed by section 10 of the Disabled Persons
(Employment and Rehabilitation) Ordinance, 1981 read with rule 13 of the Balochistan Civil
Serva nts (Appointment, Promotion and Transfer) Rules, 2009 is to be calculated on the basis
of total sanctioned posts of the establishment.
8. In the case of Malik Obaidullah v. Government of Punjab (Civil Petition No. 140 -L of
2015) decided on 14.7.2020, the f ollowing criteria has been laid down by the Hon'ble
Supreme Court for allocation of total disability quota against different categories of posts in
the establishment:
"18. Summarizing the above we hold that: (i) The 2% (and now 3%) Disability Quota
is to be calculated on the basis of the total sanctioned posts of the establishment. (ii)
In order to ensure fair and equitable representation of persons with disabilities PWDs)
in every tier of the establishment, the total Disability Quota is to be further
appo rtioned and allocated amongst different categories of posts in the establishment.
The determination of different categories is on the basis of their distinct
qualifications, selection criteria and separate merit list. (iii) In case the sanctioned
strength of a post is less than 50, it will be for the establishment to allocate seat(s)
from the overall Disability Quota against such a post (iv) if a particular post is not fit
for a PWD, the establishment may shift the Disability Quota and adjust it against
another post in the establishment so that the overall Disability Quota is not disturbed
and maintained at all times. (v) The advertisement for any category of post must
clearly provide the total Disability Quota for that category of posts and the number of
seats vacant under the said Disability Quota at the time of the advertisement."
9. In the light of above judgment passed by Hon'ble Supreme Court, we have scrutinized
the available data of posts of District Zhob and District Sherani with the assistance of le arned
counsel for the petitioners, learned AAG, DEO Zhob and DEO Sherani.
According to calculation of posts reserved for disabled persons on the basis of
sanctioned posts for the financial year 2014 -2015 viz -a-viz advertised posts for recruitment
through NTS, for which applications were received till 30.12.2014, one post of JVT was
available for disabled person in District Zhob.
According to test result, in District Zhob, the petitioner No.1 secured 40.04 marks,
petitioner No.2 secured 43.93 marks and one Jalat Khan son of Karim Khan secured 48.78
marks. Having secured marks higher than petitioners Nos.1 and 2, Jalat Khan son of Karim
Khan was appointed as JVT from District Zhob against the post reserved for disabled person.
10. The appeals filed by pet itioners Nos.1 and 2 have been dismissed by the Divisional
Complaint Redressal Cell Zhob Division vide minutes dated 14.12.2015 issued on 4.1.2016
in the following words:
"Appeal is rejected, as the total post of JVT was 52 out of which one post has been
worked out against the disabled quota and the first position holder was issued
appointment order."
11. Since the appointment against one post reserved for disabled person from District
Zhob as JVT has been made on merits and the petitioners Nos.1 and 2 had secured marks
lesser than the appointed disabled person i.e. Jalat Khan son of Karim Khan, therefore it is
concluded that petitioners Nos.1 and 2 are not entitled for the relief claimed for in the instant
constitution petition.
12. According to calculatio n of posts reserved for disabled persons on the basis of
sanctioned posts for the financial year 2014 - 2015 viz -a-viz advertised posts for recruitments
through NTS, for which applications were received till 30.12.2014, one post of JET is
available for disa bled person in District Sherani.
As per record the petitioner No.3 has qualified the NTS test and is entitled for
appointment as JET against the post reserved for disabled person for District Sherani but the
petitioner No.3 was not issued appointment order by the competent authority and the
grievance of petitioner No.3 has also not been redressed by the Divisional Complaint
Redressal Cell, Zhob Division as the appeal filed by petitioner No.3 Muhammad Amin was
rejected for the following reason:
"Appeal is rejected, that the degree issued for Al -Hamd Islamic University is not
recognized by HEC. "
13. During pendency of the instant constitution petition, a query was made by this Court
with regard to B.Ed degree of petitioner No.3.
On 2.9.2020 learned counsel for HEC placed on record letter
dated 1.9.2020 issued by HEC confirming that Al -Hamd Islamic University was
accredited and is recognized by HEC since April 2005.
The B.Ed degree of petitioner No.3 has also been verified by HEC.
14. The Disability Certificate of petitioner No.3 was also got verified by this Court. It has
been confirmed by the Assessment Board of Social Welfare Women Development and
Special Education Department, Government of Balochistan that petitioner No.3 is suffe ring
from hyperextension of both legs (i.e. not folding/flexing congenitally). In this regard
certificate dated 1.9.2020 has also been issued by Deputy Director, Social Welfare and
Special Education/Literacy and Non -Formal Education Zhob.
15. Record also t ranspires of letter dated 6.4.2016 written by DEO Sherani to the Director
Education Schools Balochistan to the effect that petitioner No.3 has passed the NTS test and
so far no disabled person has been appointed in District Sherani against the post reserve d for
disabled person in pursuance of the advertisement made for recruitment.
16. In view of all the above, it is concluded that petitioner No.3 is entitled for the relief
claimed for in the instant constitution petition.
For the above reasons, the consti tution petition is accepted to the extent of petitioner
No.3 Muhammad Amin son of Sehat Khan. Respondents Nos.1 and 5 are directed to issue
appointment order of Petitioner No.3 as JET against the post reserved for Disabled Persons
of District Sherani.
The constitution petition is dismissed to the extent of petitioners Nos.1 and 2.
SA/82/Bal. Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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