Stereo. H C J D A 30.

Judgment Sheet

IN THE LAHORE HIGH COURT LAHORE

JUDICIAL DEPARTMENT

Case No: W.P. No.7572/2016

Muhammad Yousaf, etc. Versus Chairman, FPSC, etc.

JUDGMENT

Date of hearing 11.01.2017

Petitioners

represented by:

M/s. Sardar Faiz Rasool Jalbani, Rana

Moazzam Siddique, Yousaf Naseem

Chandio, Usman Nawab and Dildar Hussain

Advocates alongwith petitioners in person.

Respondents

represented by:

Mr. Nasar Ahmad, Deputy Attorney General

for Pakistan.

Ms. Hina Hafeezullah Ishaque, Standing

Counsel for Pakistan.

Mr. Nasir Saeed Akhtar Warriach, D.S.,

Establishment Division.

Mr. Haroon Rashid, Assistant Director,

FPSC, Islamabad

Ms. Riffat Butt, Deputy Legal Advisor,

Ministry of Foreign Affairs.

Ms. Iqra Ashraf, Assistant Director, Ministry

of Foreign Affairs.

Research

assistance by:

M/s. Qaisar Abbas and Mohsin Mumtaz,

Research Associates & Civil Judges, Lahore

High Court Research Centre (LHCRC).

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.1

Syed Mansoor Ali Shah, C.J:-

FACTS

1 Moving from the margins -Mainstreaming persons with disabilities in Pakistan

(A custom research report produced for the British Council, August, 2014)

W.P. No.7572 of 2016 2

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 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 assessment

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.

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.

W.P. No.7572 of 2016 3

3. Rule 9 (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 & Trade Group (CTG)

ii. Pakistan Audit & Accounts Service (PAAS)

iii. 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 & Optional

Protocol (“CRPD”) ratified by Pakistan in the year 2011.

5. Learned Deputy Attorney General for Pakistan alongwith

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

W.P. No.7572 of 2016 4

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;

(1a) …

(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.

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

W.P. No.7572 of 2016 5

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

W.P. No.7572 of 2016 6

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 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.

….

W.P. No.7572 of 2016 7

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

ESTABLISHMENT DIVISION

…….

SUMMARY FOR THE PRIME MINISTER

Subject: 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 & dumb) and

visually impaired (blind) for selection against the posts in the

following groups / services (Annexure-I):

i. Commerce & Trade Group

ii. Pakistan Audit & 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 viz-a-viz gender equality and

treatment to the handicapped persons.

W.P. No.7572 of 2016 8

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 Federal 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 & dumb) and visually impaired (blind) candidate

secures a position within overall merit quota, on all Pakistan basis,

may be allocated to the Foreign 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 & dumb) and visually

impaired (blind) are allowed to compete for Competitive Examination

against four Occupational Groups/Services viz: (a) Commerce &

Trade Group (b) Pakistan Audit & 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

W.P. No.7572 of 2016 9

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 –

NUMBER 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

VACANCIES

CARRIED

OVER

VACANCIES

Total

Vacancies

Merit

7.5 %

All

Pakistan

Merit

PAAS=1, PCS=1,

PAS=2, FSP=1,

IRS=5, IG=1,

MLCG=1,

OMG=4, PSP=3

Nil 19

W.P. No.7572 of 2016 10

Punjab

50%

Open

Merit

PAAS=6, PCS=6,

PAS=11, FSP=8,

IRS=27, IG=1,

MLCG=1,

OMG=22,

PSP=15,

POSTG=4

RCTG=1 101+1=

102

Women PAAS=1, PCS=1,

PAS=2, FSP=1,

IRS=3, OMG=3,

PSP=1

Nil 12

Minorities PCS=1, FSP=1,

IRS=1, MLCG=1,

OMG=1, PSP=1

PAAS=1,

IRS=4,

OMG=5,

POSTG=1,

RCTG=1

6+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 follows:

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 Domicile Group/Service

allocated

1. 11864 Javeria Maqbool PUNJAB PAS

2. 1010 Hafiz Karim Dad PUNJAB PAS

3. 11839 Jannat Hussain

Nekokara

PUNJAB PAS

4. 7155 Tabinda Tariq KPK PAS

5. 12677 Muhammad Anas

Iqbal

PUNJAB PAS

6. 6776 Sarah Rehman Sindh Urban PAS

W.P. No.7572 of 2016 11

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

Salahuudin

PUNJAB 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

Mahmood

PUNJAB PAS

17. 13391 Muhammad

Shayan Ali Jawa

PUNJAB 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 PSP

22. 6152 Muhammad

Yousaf

PUNJAB IG

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 Occupational Group of

their choice in open merit quota reserved for Punjab.

W.P. No.7572 of 2016 12

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 he 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 &

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

W.P. No.7572 of 2016 13

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. Infact 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 & Trade Group (CTG)

ii. Pakistan Audit & 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. 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 the record or any

statutory instrument. It appears that these four Groups have

been simply cherry-picked without much thought or rationale.

W.P. No.7572 of 2016 14

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 incudes 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

W.P. No.7572 of 2016 15

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 individual will. It is the

freedom of choice. Human dignity regards a human being as an

end, not as a means to achieve the ends of others… human

dignity is the dignity of each human being ‘as a human being.’

This is the source of the viewpoint that human dignity includes

the equality of human beings. Discrimination infringes on a

person’s dignity. Human dignity assumes equality of the (other)

rights that people have and equality of opportunity and benefits.

Second, human dignity is a person’s freedom of will. This is the

freedom of choice given to people to develop their personalities

and determine their own fate. People are spiritual entities who

enjoy the freedom to develop themselves. This is the source of

my view that at the core of human dignity is the autonomy of

the individual. Human dignity is infringed if a person’s life or

physical or mental welfare is harmed. The purpose of the

constitutional right to human dignity is to realize the

constitutional value of human dignity. Thus its purpose is to

realize a person’s humanity. The dignity of a human being is

his free will; the freedom to shape his life and fulfill himself. It

is a person’s freedom to write his life story.2” The Constitution

abhors discrimination and holds that all citizens are equal

before the law and are entitled to equal protection of law.

Inherent in Article 25 is the recognition that discrimination

against any person on the basis of disability is a violation of the

inherent dignity and worth of a human being. Article 25 of the

Constitution promotes inclusiveness, effective participation and

recognizes human diversity in a society.

2 Aharon Barack- Human Dignity – The Constitutional Value and the

Constitutional Right. Cambridge 2015. Pp.85, 86 & 144.

W.P. No.7572 of 2016 16

25. Every person is entitled to all the rights and freedoms set

forth therein, without distinction of any kind. Our Constitution

embodies universality, indivisibility, interdependence and

interrelatedness of all human rights and fundamental freedoms.

It applies equally to persons with disabilities, guaranteeing

them full enjoyment of their fundamental rights without

discrimination. The triangular construct of the right to life,

dignity and equality under the Constitution provides a robust

platform for mainstreaming persons with disabilities.

Fundamental rights are the heart and soul of a living

Constitution and must at all times be ready to embrace and

protect the sensibilities and sensitivities of the people. They

must be progressively and purposively interpreted to advance

the frontiers of freedom, individual autonomy and free choice.

Such vibrance and vitality is the hallmark of a living

constitution in a democracy. See Pakistan Tobacco Co. Ltd.

and others v. Government of N.W.F.P. through Secretary Law

and others (PLD 2002 SC 460) and Reference No.01/2012

(Reference by the President of Pakistan under Article 186 of the

Constitution of Islamic Republic of Pakistan, 1973) (PLD 2013

SC 279).

26. While the constitutional values and fundamental rights

under the Constitution do not distinguish between a person with

or without disabilities, the Constitution goes further. It

provides that adequate provisions shall be made to safeguard

the legitimate interests of the minorities and backward and

depressed classes. “Depressed class” has not been defined

under the Constitution. So in our society, where State does not

provide any meaningful infrastructural, financial or social

support for persons with disabilities, persons with disabilities

are marginalized, under-privileged, lacking choice, autonomy

and opportunity; resulting in limited access to employment and

W.P. No.7572 of 2016 17

good quality of life. They stand deprived of the social and

economical benefits enjoyed by other citizens and tend to live

or survive on the margins of the society. According to a custom

research report produced for the British Council in 2014, titled

Moving from the margins - Mainstreaming persons with

disabilities in Pakistan, the main findings regarding persons

with disabilities in Pakistan are as follows:

i. Pakistan needs to move away from a culture of

sympathy and pity. Although there is an

overarching culture of sympathy for persons with

disabilities and there is a desire to help, the focus

continues to be on a charity or medical approach to

disability. What is needed instead is a shift to a

rights-based approach, which recognizes that

persons with disabilities should be empowered.

Disability is a diversity that needs to be accepted.

ii. Negative attitudes in society hamper finding a life

partner. Marriage is an important social institution

in Pakistan, and marriage prospects are different for

men and women with disabilities. Where men with

disabilities have better access to education and

employment opportunities, they have some

marriage prospects. Women, who are seen as

caretakers of the household, face a more difficult

time in finding a partner.

iii. The legal framework in Pakistan is weak as far as

protecting the rights of persons with disabilities

is concerned. There is only one law especially

targeted at persons with disabilities, the Disabled

Persons (Employment and Rehabilitation)

Ordinance 1981. It specifies that employers with

100 workers or more must ensure that at least 2% of

their total workforce consists of persons with

disabilities, or pay a levy. Unfortunately, the

monitoring and implementation of this law has been

weak. Several investigations found that many large,

private companies and public agencies are not

meeting this requirement.

iv. Pakistan ratified the CRPD in 2011, but little has

happened by way of policies and strategies in

line with the CRPD framework. Part of this is the

result of the 18th Amendment to the Constitution of

Pakistan of 2010, which devolved powers to the

provinces. Several plans and policy papers, as well

as pending legislation that was being drafted and

discussed at the federal level, became the

W.P. No.7572 of 2016 18

responsibility of the provinces and have since been

largely ignored. That said, government agencies

consulted for this study recognize that changes need

to be made, and provinces are making strides in

different ways. The Punjab government, for

example, is focusing on expanding educational

services for persons with disabilities, and the

Khyber Pakhtunkhwa government is looking to

provide more in the way of employment support.

v. Education for persons with disabilities is largely limited

to special education schools, which are

inadequate and of low quality. According to

interviews with government officials, there are 330

special education schools in Islamabad, Punjab,

Sindh and Khyber Pakhtunkhwa provinces. Most of

these schools are in urban areas, which makes

education for persons with disabilities in rural areas

a challenge. Some interviewees estimate that as

many as 50% of children with disabilities have

access to such schools, but even where there is

access, quality of education is lacking. The fees for

private schools can be up to 15 times higher than for

public schools, making them only accessible to

wealthier families. With limited primary and

secondary school education, few students go on to

university. There are vocational institutes run by the

government and non-governmental organizations

(NGOs), but interviewees suggest that these are

insufficient and varying in quality of education.

There is a bidirectional link between disability and

poverty, and inclusion of persons with disabilities in

schools is key in breaking the vicious cycle.

vi. Persons with intellectual disabilities are often entirely

omitted from policies and strategies.

Identification mechanisms are weak and often

focused on physical impairments. There is also a

shortage of mental health professionals trained to

identify and rehabilitate persons with varying

degrees of intellectual disorders: according to a

2008 World Health Organization (WHO) report,

there are only 0.49 trained psychologists and

psychiatrists for every 100,000 in Pakistan.

vii. There are limited employment opportunities for persons

with disabilities. This stems from several issues:

(a) limited access to quality education, which later

leads to limited skills for the labour market; (b)

limited support for job seekers, from searching for a

vacancy to drawing up a résumé and related

professional documents; and (c) the attitude of

businesses regarding the employment of persons

with disabilities. However, there are positive

examples in Pakistan of local and international

W.P. No.7572 of 2016 19

companies that have successfully built an inclusive

workforce.

Persons with disabilities are, therefore, a class of people who

are not at par with the others, a class of people who are

deprived and depressed economically, socially and even

emotionally. Under the Constitution, the State has to make

adequate provisions so that the legitimate interests of a

depressed class are safeguarded. All those interests, which can

mainstream a person with disabilities in the society and make

him feel equal with others around him are legitimate interests.

This constitutional value is captured by the Convention.

Disability, Occupational Groups and the UN Convention.

27. 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.3

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.4

According to CRPD persons with disabilities include those who

have long-term physical, mental, 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 results from the

interaction between persons with impairments and the attitudinal

and environmental barriers that hinder their full and effective

participation in society on an equal basis with others. Disabilities is

an umbrella term, covering impairments, activity limitations, and

3 Collins English Dictionary – Complete and Unabridged, 12th Edition 2014 ©

HarperCollins Publishers, quoted at URL

http://www.thefreedictionary.com/disabled

4 section 2(c) of the Ordinance.

W.P. No.7572 of 2016 20

participation restrictions. 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.5

28. 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,

(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 enjoyment without discrimination,

(d) …

(e) …

(f) …

(g) Emphasizing the importance of mainstreaming disability

issues as an integral part of relevant strategies of sustainable

development,

5 World Health Organization. (2016) Disabilities, Retrieved on December 19,

2016 from http://www.who.int/topics/disabilities/en/

W.P. No.7572 of 2016 21

(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 the 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 in

significant 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

W.P. No.7572 of 2016 22

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;

(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 capacities 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

W.P. No.7572 of 2016 23

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 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 employment,

including conditions of recruitment, hiring and employment,

continuance of employment, 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

W.P. No.7572 of 2016 24

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)

29. 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.

According to the

Convention "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

W.P. No.7572 of 2016 25

fundamental freedom. Reasonable accommodation can be by

providing a conducive working environment 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 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 that help overcome or remove a

disability. Reasonable accommodation is not different from

“adequate provisions” envisaged in the preamble to the

Constitution. Meaningful employment is a legitimate interest

of a person with disabilities. Therefore, the Convention and the

Constitution stand hand in hand to promote the cause of

mainstreaming persons with disabilities.

30. Right to life, right to human dignity and right to non-

discrimination guarantee that adequate provisions or

reasonable accommodation be provided by the State. “There

should be a full recognition of the fact that persons with

disability are integral part of the community, equal in dignity

and entitled to enjoy the same human rights and freedoms as

others.”6 Our Constitution promotes and protects the human

rights of all persons inclusive of persons with disabilities. The

constitutional values of social, economic and political justice

recognize free choice and individual autonomy for all. It also

provides that adequate provisions shall be made to safeguard

the legitimate interests of the depressed class. Our Constitution

is a living document and provides a bold and a passionate

6 Jeeja Ghosh & Anr vs. Union of India & Ors (AIR 2016 SC 2392)

W.P. No.7572 of 2016 26

constitutional support for persons with disabilities. The

wisdom of the Convention is already embedded in the soul of

our Constitution and can easily be rediscovered by purposively

interpreting the Constitution. Reliance is placed on Hafiz

Junaid Mahmood v Government of Punjab and others (PLD

2017 Lahore 1).

31. This constitutional construct creates an obligation on the

State and other institutions of the State to make all possible

endeavours to mainstream persons with different abilities and to

embrace the diversity in the society. The State and its institutions

are under a constitutional obligation to go the extra mile and

ensure, within the means available, that person with disabilities get

reasonable accommodation in order to enjoy their fundamental

rights in the same manner as enjoyed by other citizens of Pakistan.

It is for the State and its institutions to provide the architecture, the

structure, the assistive and adaptive technology, the system, the

equipment and the facilitative support to persons with disabilities,

so they can actualize their constitutional rights and freedom.

32. It is not the case of the Federal Government that reasonable

accommodation cannot be provided or that it is disproportionate,

or burdensome or expensive. Infact, the record shows that the

Federal Government has never thought of mainstreaming such

persons or opening the Central Superior Services to such persons.

This cuts out a merciless image of the Government, who has failed

to realize that in considering the social integration of people with

disabilities, access to employment is often considered to be of a

particular importance. There are a number of reasons for it,

including the need for a good or at-least an adequate income and

the self-respect gained through being self-supporting. In addition,

employment can provide a structure to the day and sense of

purpose and often a sense of identity, as well as, providing the

W.P. No.7572 of 2016 27

opportunity to make social contact.7 Therefore, persons with

disabilities have all the right to apply for all categories of posts.

Unless the Federal Government, while strictly adhering to the

requirement of the Constitution and the Convention, has solid

reasons, supported by data, to exclude persons with disabilities

from a particular category of service. It must be remembered that

exclusion of a person with disabilities from any form of

employment is an exception rather than a rule.

33. The Federal Government is bound to provide Reasonable

Accommodation through assistive technology to protect and

safeguard the fundamental rights of persons with disabilities

rather than oust them from services without any rational

application of mind or without considering the nature of the

service. Values of social and economic justice read with article

37 (f) of the Constitution provides that State should enable the

people (inclusive of people with disability) of different areas,

through education, training, agricultural and industrial

development and other methods, to participate fully in all forms

of national activities, including employment in the service of

Pakistan.

34. The present case reflects of an insensitive Government,

especially when it has ratified the Convention in the year 2011.

Federal Government has failed to show that efforts were made

to mainstream disabled persons into CSS. They also failed to

explain why four particular Occupational Groups have been

selected for persons with disabilities.

35. For the above reasons, Rule 9(ii) to the extent of FSP i.e.,

denying the petitioners the provincial quota, is discriminatory,

and offends human dignity and is violative of articles 14 and 25

7 Assistive Technology for Visually Impaired and Blind People. Marion A

Hersch, Michael A Johnson. Springer. P.670

W.P. No.7572 of 2016 28

of the Constitution. The limitation of only four Occupational

Groups for persons with disabilities is discriminatory. As a

consequence Rule 9 (ii) of the CSS Rules is declared to be

unconstitutional and illegal. The Federal Government is free to

formulate a more inclusive recruitment policy keeping in view

the principles laid down in this judgment and the provisions of

the Constitution and CRPD.

Rule 9 (ii) - Ultra vires the Ordinance

36. There is another dimension to this case. Rules under section

7-A of the Ordinance (above) are supposed to deal with the

internal governance and business of the Commission in order to

effectively achieve its main purpose under the Ordinance i.e.,

conduct tests and examinations and advise the President when

required. Rules under Section 10, on the other hand, are to be

framed to carry out the purposes of the Ordinance. The main

purpose of the Ordinance being to conduct tests and examinations

for recruitment, any Rule framed under Section 10 can only

elaborate and provide further details regarding how to conduct tests

and examinations. These Rules cannot transgress the mandate of

the Ordinance and instead proceed to set restrictions and thresholds

for any class of candidates to enter the civil service, in this case the

disabled persons. Federal Government under section 10 can only

further the purposes of the Ordinance and no more. Section 7 lays

down the purpose of the Ordinance and nowhere does it empower

FPSC to set new qualifications or impose restrictions on any class

of candidates. It is important to highlight that the Commission can

only advise the President regarding qualifications or methods of

recruitment under section 7(1)(b) but cannot itself lay down

qualifications/ restrictions or methods of recruitment for any class

of candidates. As stated above, the advice made to the President by

FPSC under section 7 of the Ordinance, if accepted, can only find

its way into law through Rules promulgated under the Civil

W.P. No.7572 of 2016 29

Servants Act, 1973 and not through the Rules under the Ordinance,

because the Rules to be promulgated under the Ordinance cannot

go outside the purpose of the Ordinance, which is to conduct tests

and examinations and advise the President. Rule 9(ii) of the CSS

Rules framed under sections 7A and 10 of the Ordinance

transgresses the scope of the Ordinance and is therefore ultra vires

section 7 of the Ordinance.

37. It has also been discovered from the summaries placed on

the record, that one Saima Saleem, a visually impaired person was

allowed allocation of FSP on all Pakistan merit basis in relaxation

of the CSS Rules. Without disputing her candidature, the legal

process adopted in this regard warrants an observation. The

Federal Government does not enjoy the power to relax Rules

framed under sections 7A or 10 of the Ordinance. The power to

relax Rules is a specific statutory power and that too must be

exercised transparently and through structured discretion. There is

no provision of law that allows the Federal Government to relax

Rule 9(ii) to consider the case of one candidate. Reference has

been made to Rule 15 (1) (a) of the Rules of Business, 1973 for

allowing relaxation in CSS Rules. Rule 15(1)(a) provides that “No

order shall be issued without the approval of the Prime Minister in

cases involving important policy or departure from important

policy.” Relaxation of Rule 9(ii) requires statutory authority and in

its absence, relaxation is not permissible. Departure from a policy

under Rule 15(1)(a) is an executive decision, which cannot

authorize or amount to relaxation of subordinate legislation. This

observation is prospective and does not have a bearing on the case

of Saima Saleem or others who already stand appointed on the

basis of such relaxation in the FSP.

CONCLUSION

W.P. No.7572 of 2016 30

38. For the above reasons Rule 9 (ii) of CSS Rules is declared to

be unconstitutional and without lawful authority and is hereby

struck down. Federal Government is directed to allocate two seats

to the petitioners in the FSP at the earliest and if no such posts are

available, the respondents are directed to create two new posts to

adjust the petitioners in order to uphold their fundamental rights

guaranteed under the Constitution and to redress the

unconstitutional deprivation they have faced since 2014.

39. Federal Government is also directed to move to a more

inclusive policy. While Rule 9(ii) has been struck down, the

Federal Government is free to formulate Rules to offer all or any

Occupational Services to persons with disabilities in All Pakistan

Service, after thoroughly assessing the possibility of providing

reasonable accommodation, as discussed in the judgment and the

Convention. Let these Rules be formulated before the next CSS

competitive examinations, so that citizens who suffer from

disabilities are mainstreamed and given a fair chance to become a

part of All Pakistan Service. This will give then an opportunity to

enjoy life with honour and live with dignity in the society.

40. The instant petition, as well as, connected W.P.

No.8157/2016 are allowed for the above reasons.

(Syed Mansoor Ali Shah)

Chief Justice

Iqbal/*

APPROVED FOR REPORTING

Chief Justice

W.P. No.7572 of 2016 31

Stereo. H C J D A 30.

Judgment Sheet

IN THE LAHORE HIGH COURT LAHORE

JUDICIAL DEPARTMENT

Case No: W.P. No.8157/2016

Muhammad Yousaf, etc. Versus

Chairman, FPSC, etc.

JUDGMENT

Date of hearing 11.01.2017

Petitioners

represented by:

M/s. Sardar Faiz Rasool Jalbani, Rana

Moazzam Siddique, Yousaf Naseem

Chandio, Usman Nawab and Dildar Hussain

Advocates alongwith petitioners in person.

Respondents

represented by:

Mr. Nasar Ahmad, Deputy Attorney General

for Pakistan.

Ms. Hina Hafeezullah Ishaque, Standing

Counsel for Pakistan.

Mr. Nasir Saeed Akhtar Warriach, D.S.,

Establishment Division.

Mr. Haroon Rashid, Assistant Director,

FPSC, Islamabad

Ms. Riffat Butt, Deputy Legal Advisor,

Ministry of Foreign Affairs.

Ms. Iqra Ashraf, Assistant Director, Ministry

of Foreign Affairs.

Research

assistance by:

M/s. Qaisar Abbas and Mohsin Mumtaz,

Research Associates & Civil Judges, Lahore

High Court Research Centre (LHCRC).

Syed Mansoor Ali Shah, C.J:- For the reasons recorded

in my judgment of even date passed in W.P. No.7572/2016, this

petition is allowed in terms thereof.

(Syed Mansoor Ali Shah)

Chief Justice Iqbal*