Case BriefsForeign Courts

Supreme Court of Pakistan: While deciding the instant issue concerning the manner of allocation of 2% Disability Quota for employment under the Disabled Persons (Employment and Rehabilitation) Ordinance, 1981, the Full Bench of Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ., observed that use of words like “disabled,” “physically handicapped” and “mentally retarded” in official correspondence, directives, notifications and circulars, etc. deeply bruise and offend human dignity of persons with different abilities; therefore the Bench directed the Federal and the Provincial Governments to discontinue the use of the aforementioned words and replace them with “persons with disabilities” or “persons with different abilities”.

The Court further held that the Government and the establishment concerned must make provisions for the accessibility and social acceptability of persons with disabilities at the workplace, otherwise, the Disability Quota and the purpose of the 1981 Ordinance will stand frustrated and serve no useful purpose.  

The petitioner had applied for the post of Senior Elementary School Educator Arabic (SESE [Arabic]) on the disability quota in pursuance to the advertisement put out by the Education Department, Local Government, Multan. According to the advertisement, a total of 81 posts of SESE [Arabic] were advertised with 42 posts in the female category and 39 posts in the male category at the Girls and Boys schools, respectively. One Mst. Asma Qasim was appointed against the said post under the Disability Quota and the petitioner failed to secure a position. Aggrieved of not being offered a place the petitioner challenged the selection process under Disability Quota before the High Court by invoking its constitutional jurisdiction. The Disabled Persons (Employment and Rehabilitation) Ordinance, 1981 requires that 2% of the total number of persons employed by an establishment at any time shall be “disabled persons”.

Upon perusal of the facts and the averments, the Court deemed it fit to comprehend the concept of disability and the allocation mechanism of disability quota under the 1981 Ordinance. The Court referred to the UN Convention on the Rights of Persons With Disabilities (CRPD) ratified by Pakistan in 2011, which states that, ‘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’.

The Court further noted that as per the International Labour Organisation, an estimated 386 million of the world’s working-age are PWDs with unemployment as high as 80 percent in some countries. It was also observed that vis-à-vis disability, there has been a paradigm shift in the approach i.e. there has been a rise of inclusion and rights-based approach towards the issue and the disabled persons by virtue of being a human have the right to enjoy life, liberty, equality, security and dignity.

It was further noted by the Bench that the Constitution of the Islamic Republic of Pakistan does not distinguish between a person with or without disabilities. It recognizes the inherent dignity of a human being; equal and inalienable rights of all the people as the foundation of freedom, justice and peace. After examining the concept at length, the Court went on to elucidate the mechanism of allotting disability quota as per the Ordinance of 1981.

After a detailed scrutiny of various facets of ‘disability’ the Court held as follows –

  • Disability Quota is to be calculated on the basis of the total sanctioned posts of the establishment
  • 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.
  • 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.
  • 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.[Malik Ubaidullah v. Government of Punjab, 2020 SCC OnLine Pak SC 2, decided on 14-07-2020]

*Sucheta Sarkar, Editorial Assistant has put this story together

Case BriefsHigh Courts

Jharkhand High Court: Dr S.N. Pathak, J., dismissed a writ petition as he was of the view that the transfer of the petitioner was proper and no interference was necessary.

In the pertinent case, the petitioner moved to this Court challenging the order of transfer dated 24.05.2019, whereby he has been transferred from SBI, Singh More Branch, Ranchi to SBI, Tupudana, Branch as per extant instruction of 5 years transfer policy. It is a specific case of the petitioner that he is a disabled person.

Pawan Kumar Pathak, counsel for the petitioner, had submitted that a petitioner is a differently-abled person and as per the Circular F.No. 302/33/2/87 SCT (B) dated 05.03.1988, the physically handicapped employees of Bank in all cadres should normally be exempted from routine periodical transfer and as such, the petitioner has been transferred in complete violation of the statutory provisions. Rajesh Kumar, counsel of the opposite party submitted that the petitioner has been transferred as per the extant instruction of 5 years transfer policy and upon due consideration to his physical disability, the petitioner has been transferred to Tupudana Branch, which is nearby Branch from his place of stay and only 3.5 km away from Singhmore Branch and said Tupudana Branch is situated on the ground floor making it convenient for the petitioner and as such, order of transfer is fully justified.

The Court held that the order of transfer requires no interference since the order has been passed upon due consideration of the petitioner’s disability. The Court also observed that transfer is an incident of service; no right has accrued to an employee to stay at a particular place. Further, petitioner cannot be exempted from the transfer policy  since, no statutory provisions have been violated and the petitioner has been transferred to Tupudana Branch after giving due consideration to his physical disability, which is just 3.5 km from the Singhmore Branch and it is running its business in the ground floor which makes it more convenient to the petitioner to work there with ease.[Satish Kumar Singh v. SBI, 2019 SCC OnLine Jhar 1359, decided on 12-09-2019]

Case BriefsHigh Courts

Kerala High Court: The Court deciding an issue on arbitrariness of the cap imposed on financial concessions for the differently abled persons held that the concession granted by the Government was a privilege and hence, Article 14 of the Constitution  was not invalidated by a reasonable condition imposed.

The facts of the case were, the Kerala Government by Government Order dated: 31.03.1998 provided for tax concessions for certain motor vehicles, including luxury cars, being purchased by differently abled persons. Later, the Government imposed a cap of Rs 5 lakh on the value of the vehicle entitled for exemption. The appellant in the present case, suffered from 100% disability and was  totally wheelchair dependent and his son was specially abled. Given the needs of the family, he decided to buy a ‘bigger car’.

The cap came to be impugned by the appellant by a writ petition, which upon consideration was dismissed by a Single Judge. Thus aggrieved, the question came for consideration before the Division Bench.

It was argued that the imposition of a cap and limiting the value of purchase amounted to arbitrariness and fell foul of Article 14. It was submitted that the imposition of the cap with the view to prevent misuse of the privilege was irrational.

The Division Bench of Antony Dominic and D. M. Naidu, JJ  acknowledged the grounds of reasonableness and non-arbitrariness in classification of discrimination in terms of Article 14 of  the Constitution and held that the a privilege is different from a right. Dismissing the appeal, it was held  that the issue involved only a concession in the form of financial incentive for the physically challenged and therefore, the Government was justified in imposing suitable conditions, and the contentions of discrimination or unreasonableness did not apply. [C.H. Moideen Kunhi v. State of Kerala, 2016 SCC OnLine Ker 5340 decided on June 7, 2016]