PLJ 2023 Quetta 39 (DB)
Present : NAEEM AKHTAR AFGHAN AND ZAHEER -UR-DIN KAKAR , JJ.
GUL MIR KHAN and others --Petitioners
versus
GOVERNMENT OF BALOCHISTAN through Secretary Education Balochistan Quetta Civil
Secretariat Quetta and others --Respondents
C.P. No. 234 of 2016, decided on 18.1.2021.
Disabled Persons (Employment, Rehabilitation) Ordinance, 1981 (XL of 1981) --
----S. 10--Balochistan Civil Servants Appointment Promotion and Transfer Rules, 2009, R. 13--
Reservation of posts f or disabled person-- Applications for appointment of JVT --Issuance of
disability certificate --Recommendations of assessment board--Entitlement for appointment--
Appointment against one post reserved for disabled person from District Zhob as JVT has been
made on merits and Petitioner Nos. 1 & 2 had secured marks lesser than appointed disabled
Petitioner Nos. 1 & 2 are not entitled for relief claimed for in instant constitution petition --
Petitioner No. 3 has qualified NTS test and is entitled for appointment as JET against post
reserved for disabled person for District Sherani but Petitioner No. 3 was not issued appointment
order by competent authority--Disability Certificate of Petitioner No. 3 was also got verified by
High Court --No disabled person has been appointed in District Sherani against post reserved for
disabled person in pursuance of advertisement made for recruitment --Petitioner No. 3 is entitled
for relief claimed for in instant constitution petition --Order accordingly.
[Pp. 42 & 43] A, B, C, D & E
M/s. Muhammad Aamir Rana, Muhammad Arif Achakzai & Haq Dad Baloch, Advocates for
Petitioner Nos. 1 & 2.
M/s. Abdul Zahir Kakar & Noor Muhammad Kakar , Advocates for Petitioner No. 3.
Mr. Zahoor Ahmed Baloch, Assistant Advocate General (AAG) assisted by M r. Lal Jan, DEO
Zhob, Mr. Musa Khan, DEO Sherani, Mushtaq Hussain, Assistant Director (Judicial) Quetta for
Respondent Nos. 1, 2, 4 & 5.
Mr. Naimatullah Achakzai , Advocate a/w Ahsan Hameed, Assistant Director HEC, Regional
Centre, Quetta for Higher Educati on Commission (HEC).
Date of hearing: 26.11.2020.
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 &
Rehabilitation) Ordinance 1981 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 No. 1 & 2 be appointed as JVT i n 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 on 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
Welfa re Department for 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 Civi l
Petition No. 140- 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. Petitioner Nos. 1 & 2 are claiming employment in Education Department as Junior Vernacular Teacher ( 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 di sabled persons.
7. The 2% quota (now 5% vide Notification dated 08.11.2018) of the disabled persons in the
Province of Baloehistan as prescribed by Section 10 of the Disabled Persons (Employment & Rehabilitation) Ordinance, 1981 read with Rule 13 of the B alochistan Civil Servants
(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 following 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%) Dis ability 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 apportioned 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 learned 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 r ecruitment 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 Petitioner Nos. 1 & 2, Jalat Khan son of Karim Khan was appointed as JVT from District Zhob against the post reserved for disabled person.
10. The appea ls filed by Petitioner Nos. 1 & 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 Petitioner Nos. 1 & 2 had secured marks lesser than the appointed disabled person i.e . Jalat Khan son of Karim Khan, therefore it is concluded that
Petitioner Nos. 1 & 2 are not entitled for the relief claimed for in the instant constitution petition.
12. 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 recruitments through NTS,
for which applications were received till 30.12.2014, one post of JET is available for disabled 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 D ivisional Complaint Redressal Cell, Zhob Division as the
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 pendenc y 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 a ccredited 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 & Special
Education Department, Government of Balochistan that Petitioner No. 3 is suffering 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 transpires 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 reserved for disabled person in pursuance of the advertisement made for recruitment.
16. In view of all the above, it is concluded that Peti tioner
No. 3 is entitled for the relief claimed for in the instant constitution petition.
For the above reasons, the constitution petition is accepted to the extent of Petitioner No. 3
Muhammad Amin son of Sehat Khan.
Respondent Nos. 1 and 5 are directe d 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 Petitioner Nos. 1 & 2.
(Y.A.) Order accordinglyThis 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,
let us know.