2016 PLP (C (PLC(CS))

SHAH KHAWAR, J.

The instant writ petition pertains to a controversy according to which Principal Medical College Dera Ghazi Khan/respondent No.3, advertised certain vacant positions in Dera Ghazi Khan, Medical College, Dera Ghazi Khan on 19.03.2012 including the posts of Junior Clerks and Store Keepers amongst others. The basic qualification for the post of Junior Clerk was Matric with typing speed of 25 words per minute and qualification of Matric with three years experience for the post Store Keeper. In Column No.15 of the terms and conditions of recruitment, 2% quota was allocated for the handicap. It was further mentioned that in such case recognized Medical Board Certificate must be accompanied and a separate application for the reserved seat of handicap may be made. The petitioner as well as respondent No.8, Muhammad Jamshaid (who has been proceeded ex parte) being disabled, applied for the said two posts.

2. The petitioner's case is that he is fully covered under the definition of disabled persons as defined in Section 2(c) of the Disabled Persons (Employment and Rehabilitation) Ordinance, 1981 (hereinafter called as Ordinance, 1981). In accordance with Section 12 of the Ordinance, 1981, any disabled person desirous of being employed or otherwise rehabilitated may have his name registered in the register maintained by an Employment Exchange in such form and in such manner as may be prescribed by the [Government] and the Employment Exchange shall refer all names so registered to the Provincial Council.

3. The petitioner who was registered as a disabled person with the Employment Exchange, applied for the said posts through the said Employment Exchange.

4. On the other hand, respondent No.8, did not resort to this mandatory provisions of law and directly applied for the said two posts. It is necessary to mention the nature of disability of the petitioner and respondent No.8.

5. The disability of the petitioner has been assessed by District Assessment Board, Dera Ghazi Khan on 23.12.2004 as "P. traumatic ankylosis (R) ankle." In Column No.10 of the said Certificate, he has been declared as disabled person and fit for work. The said certificate has been countersigned by the Manager Employment Exchange Dera Ghazi Khan, Principal Government Technical Training Institute Dera Ghazi Khan and District Social Welfare Dera Ghazi Khan on 12.07.2005.

6. So far as disability of respondent No.8 is concerned, his disability certificate was issued by the Assessment Board for the disabled person of District D.G. Khan which does not contain any date of issue and registered number. Meaning thereby, that he was not registered as a disabled person in terms of Sections 10 and 12 of the Ordinance, 1981.

7. The grievance of the present petitioner is that he fulfilled all the codal formalities as provided in the Ordinance, 1981 applied for the said post through the Employment Exchange as provided in the law, whereas respondent No.8 did not meet the same. After applying for the said post, the petitioner filed application before respondent No.3 to provide him the merit list but same was not provided. The petitioner contended that the posts as advertised, including the posts of Junior Clerks and Store Keepers were filled up by the respondents without informing the petitioner, hence deprived him of his valuable right. The respondent No.8 was so appointed, over and above the petitioner.

8. Report and parawise comments were requisitioned. The same were filed on behalf of respondent No.3, Principal D.G. Khan Medical College D.G. Khan. In the parawise comments, the prayer made by the petitioner was vehemently controverted and appointment of respondent No.8 was justified. The respondent No.3 stated that the petitioner did not fulfill the requisite experience of three years of Store Keeper and rather did not appear in typing test meant for the post of Junior Clerk. In response to the same, the petitioner contended that he was never informed through a public notice or any personal service regarding any date of typing test. He further contended that even otherwise, 683 applicants out of 960 did not appear for typing test.

9. Heard. Record perused.

10. The perusal of the record reflects that the petitioner admittedly a disabled person was registered in the Employment Exchange in terms of Section 10 of the Ordinance, 1981 and also resorted to the provisions of Section 12 of the Ordinance, ibid, whereas respondent No.8 was not registered as such and the disability certificate on the basis of which he was considered and appointed does not bear date, registered number and cause of disability. Moreover, in Column No.12 of the said certificate, there is no clearly mentioned that respondent No.8 was fit to work or not. As both of the columns are blank, prima facie, it seems that the present petitioner had precedence, over respondent No.8 and had a superior right to be considered against the vacant posts reserved for disabled persons. Rather respondent No.8 was proceeded ex parte and did not appear in the proceedings, but learned counsel appearing on behalf of respondent No.3 fully supported the appointment of respondent No.8. When confronted, the learned counsel for respondent No.3 could not assign any reason as to why the application of respondent No.8 for employment was not declined as he did not fulfill the mandatory requirement of Sections 10 and 12 of the Ordinance, 1981. Rather the learned counsel insisted that in the advertisement, no such requirement was specifically mentioned and the provisions of Ordinance, 1981 could not be pressed into service in the case of respondent No.8.

11. Contentions raised by learned counsel for respondent No.3 are not convincing. To regulate, the employment of disabled against reserve quota, the legislatures enacted Disabled Persons (Employment and Rehabilitation) Ordinance, 1981.The preamble of the Ordinance, 1981, is quite relevant which is reproduced herein under:- "WHEREAS it is expedient to provide for the employment, rehabilitation and welfare of disabled persons and for matters connected therewith."

12. The registration of disabled persons desirous of being employed are required to get them registered before the Employment Exchange and the Employment Exchange shall refer all names so registered to the Provincial Council. In subsection (3) of Section 12 of the Ordinance, 1981, it is mentioned that:- "if the disabled person is considered by the Provincial Council fit to work, it shall so inform the Employment Exchange indicating the nature of work for which he may be employed or the trade or vocation in which he may be trained, and an endorsement to that effect shall be made against his name in the register."

13. Admittedly, respondent No.8 is not registered and has not resorted to the mandatory provisions of the Ordinance, 1981, so the petitioner had a superior right to be considered and appointed against one of the vacancies of Junior Clerk or Store Keeper.

14. The petitioner has prayed that the appointment of Muhammad Jamshaid respondent No.8 on reserve/disable quota may be declared as null and void and present petitioner may be appointed in his place as Junior Clerk/Store Keeper. Since respondent No.8 has been appointed and a right has been accrued in his favour, he could not be made to suffer due to irregularities and illegalities committed by the Selection Committee. The Selection Committee was responsible to adopt due diligence at the time of scrutinizing the cases of disabled candidates. It seems that the Recruitment Committee did not follow the provisions of Ordinance, 1981, due to which the petitioner has been deprived of his valuable right to be employed against one of the said vacant posts.

15. By partially allowing the instant writ petition, respondent No.3 is directed that whenever any vacancy occurs in future, the petitioner shall be considered and appointed on priority basis and if some post of Junior Clerk/Store Keeper is still vacant against the disabled quota, the petitioner may be appointed against the same.

16. With these observations and directions, the instant writ petition stands disposed of. SA/M-313/L Order accordingly.