Asghar Khan Vs Univeristy of Peshawar and others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, PESHAWAR

(Judicial DePartment)

'W.P.No.2920+12024.

Asghar I(han

Versus

University of Peshawar and others

JUDGMBNT

For petitioner: IVIr. Nazir Ahmdd, Advocate.

For respondents IU/S Ktralid Rahman and Ishtiaq Ahmad, Advocates.

Date of hearing: 27.11.202!, dt rr rs

Dn Khurshid labal,l.-

1.Dr. Asghar Khan, the petitioner, serves as a lecturer in the Department of Regionat Studies at the (respondent)-Universrty of Peshawar. He has invoked Article 199 of the Constitution, seeking the full range of benefits afforded to individuals referred to as'odifferently abled persons," a phrase aptly coined by the Latrore High court in Barrister Asfandyar Khan's Coser (201S). The petitioner asserts his entitlement to these benefits under the Disabled Persons (Employment and Rehabititation) Ordinance, 1981 (hereinafter referred to as the Ordinance), the Income Tax Ordinance, 2001, as well as relevant judgments of the SuPreme Court.

2.The petitioner began his service as a lecturer in 20 I 5. However, as early as August 17,2006, he had obtained a formal "Report of Assessment of the Registered Disabled Person" issued by the District Assessing Board of Mardan. Based on this report, the Secretary ofthe Provincial Council for the Rehabilitation of Disabled Persons, I Bmrister Asfanyar Khan Tareen and others v. Government of Punjab, PLD 2018 Lahore 300.

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operating under the Directorate of Social Welfare, NWFP (now Khyber Pakhtunkhwa), issued a communication (No. 872) on August 19,2006. This document recommended the petitioner consideration for employment under the2Yo quota reserved for the differently abled individuals, as stipulated in Section l0 of the Ordinance.

3.The petitioner earned a PhD in 2018, during his tenure as a lecturer. He contends that he subsequently requested specific benefits from the respondent-university, including promotion, allocation of university accommodation, and exemptions from income tax, among other entitlements. However, these requests reportedly elicited no favorable response.

4.The petitioner alleges that the respondent-university has failed to act in accordance with the law and has subjected him to discriminatory treatment, conilavening Articles 4 and 25 of the Constitution. He further asserts that the university has not adhered to the principles of fairness, justice, and transparency, which are essential to good governance.

5.The respondent-university submitted its comments, asserting that the petitioner is not an aggrieved party, as no vested rights of his have been infringed. It contended that the petitioner did not initially seek employment under the quota reserved for the differently abled persons and that promotions are governed by applicable regulations.

The respondent-university further contended that accommodation is allocated, and tax exemptions, are granted, strictly in accordance with the law.

6.In his comments, the respondent # 3 submitted that the petitioner should utilize the online system to formally approach the Commissioner of Inland Revenue, who is authorized to consider his request for exemption under Section 159 of the Income Tax Ordinance,z}}L In this context, the respondent # 3 challenged the maintainability of the petition, invoking the doctrine of availability of an alternative remedy. Expounding on this position, the respondent #

a tax exemption lies 3 stated that the burden of proving entitlement to squarely on the petitioner and that such exemptions must be

interpreted strictty in accordance with the law'

7.Advocate Nazir Ahmad, representing the petitioner, mainly to reiterated the key grounds outlined in the petition. He referred specific provisions of the ordinance and cited two supreme court judgments of 2020: Dr. Shahnau,a* (unreported) and Sajjad Ali (SCMR ZO2O)3, as well as a Lahore Higlr Court decision in the case of Barrister Asfandyar Khana (2018). On behalf of the respondent- university, Advocate Khalid Rahman, the university's legal advisor, recapped the comments previously submitted. Meanwhile, Mr. Ishtiaq

Atrmad, representing the respondent # 3, stated succinctly that the petitioner should submit a formal application to the Commissioner concerned for consideration of the requested t3;r exemption.

8.We have carefully reviewedthe record, the applicable larvs, the relevant case law, and all other materials presented before us' g. To begin with, we shall address the objection raised by the respondent-university, asserting that the petitioner was not appointed under the quota reserved for the differently abted persons' A similar

objection was examined, albeit from a slightly different perspective, in the case of Junaid (Latrore, zol7\,In that case, the respondent had contended that the petitioner, also a differently abted individual, Furthermore, not apptied for the position under the designated quota. grounds related to the maintainability of the petition was contested on the recruitment poticy chaltenged in the constitutional petition' policy Specifically, the respondent argued that the recruitment to which the excluded the visually impaired individuals-the category petitioner in that case belonged-on the premise that such individuals could not effectively control the classroom or maintain discipline' The

of Pakistan and others,

Dr. Shahnqwaz Munami and others v. The Federal Government Constitutional Petition No. 64 of 2013, date of hearing 14.07.2020. of Malakand at Chakdara,

Sajjad Ali v. Vice-Chancellor through Registrar Univers itY Dir Lower and others,2002 SCMR 124.

o Asfandyqr, suPra note 1.

t uLtr, iunaid Mahmoodv. Government of Punjab,PLD 2017 Lahore 1

v objection thus extended to the jurisdictional competence of the court, as the respondent considered the recruitment policy an internal administrative matter. After a thorough examination of the Ordinance in light of the Constitution and the United Nations Convention on the Rights of Persons with Disabilities, 2008 ("Convention"), ratified by Pakistan in 2011, the court concluded that the Ordinance does not bar a differently abled individual from competing for ajob on open merit.

The court cautioned that interpreting the Ordinance to impose such a resffiction would contravene Article 25 of the Constitution. Addressing the policy objection, the court ruled that any policy adversely affecting the fundamental rights of a citizen, whether codified in a statutory law or reflected in an executive policy, would warrant judicial review as an exception. We hold the considered view that the human rights implications of this matter require further elaboration, which we will address later in this opinion. For now, it is sufftcient to conclude that the present petition is maintainable' By the same reasoning, the existence of an alternative remedy for seeking tu<

exemption cannot be invoked as a ground to challenge the maintainability of this petition.

10.A closer look at the legal framework would show that Pakistan iritroduced the Ordinance in 1981. It is worth appreciation inasmuch as it reflects the State's welfarist approach as its preamble exhorted person and "the employment, rehabilitation and welfare of disabled matters connected therewith." The National council has, thus, to

..formulate policy" to achieve the above refered objective (section 4). goal set in whether and how far flre State has been able to achieve the concern is the Ordinance is anybody's guess. What is of more serious the ordinance's standing after the convention vis-i-vis Pakistan's international human rights obligation. In this context, it was observed has in Junaidthat despite some "minorpolicy changes, the ordinance charity remained a poorly implemented iaw with a "medical and approach to disability."6It may be inferred from the court's view that

the ordinance is focusing on improving functioning rather than

Ibid. Para 10.

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v enhancing capabilities of the differentty abled persons. The convention could be read as aiming at ensuring ttrat like every human person, the differently abled persons are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.T T\eKP was the first to go for a provincial law

in2}l2,following the Convention, but by way of amendment of the Ordinance. The 2Ol2 KP taw substituted section 6 of the Ordinance as follows:

Functions of Provincial council. Provincial council shall- -The

(a)undertake appropriate projects for these purposes;

(b)issue directions to the Employment Exchanges and other bodies for the implementation of the projects; and (c) from time to time take stock of the extent of functional disabilities disabled Persons.

I 1. The KP, thus, has retained the same welfarist approach with no worthwhile evidence of its implementation even in its present form' The draft "Khyber Pakhtunkhwa Empowerment of Persons with Disabilities Act, 2021' is yet to be introduced.s ln recent years Punjab, Islamabad Capital Tenitory (ICT), Sindh and Balochistan have introduced laws in the years 2022,2020 and 2018, ffid 2017, respectivety. These laws, having almost the same texts, aspiringly seek nexus with the Convention and Islamic teachings; recognize and urge protection and promotion of a vast ffiray of human rightse, notably the right to a dignified life and equality of opportunity in the entire gamut of the life of the differently abled persons. While these laws are yet to achieve their goals,the2012 KP law is very vague in its expression (section 4) and limited in scope.

Right to

Also called ttre right to development. See, the 1986 Declaration on the Development # 4t128 passed by the UN Gereral Assembly' il-tdsri,ww.otrct'.orienlinstrum$tr-mectranismyinstruments,tdectaration-rieht- development Accessed on 23.12-2024.

Bffip*er. 'Ashfaq Yusufzai, 'Draft law in KP to make life of Persons with Disability convenient'. 03 Nov. 202 I . Access ed I 5'12'2024' tilfi.t, equality Uefoie; privacy; access and mobility; protection-from abusive' violent rehabilitation;

*J intof.r*t bel'raviour; equatity in education, employment, healthand political i"a.p.oa*t fiving in tor-*ity; rights of accommodation, home, family purtiliputio", o*rling of property, aclcess to-justice; participation in sports, culttyal and Lcreaiional facilitieJ; protection in risk and disaster situation.

t2. Coming to the main core of the controversy, the respondent- university is a' G overnment Establishment' under clause' c' of section 4 of the 2oL2 KP law. on facts, it doesn't deny the petitioner's assertion that he is a differently abled person amongst its employees' A bare perusal of the respondent-university's comments would amply show that its policy doesn't seem to move beyond the consideration of the 2 o/o quota in the recruitment, ffid that, too, at the initial recruitment only. Its contention that the petitioner didn't apply for the job against the differently abled quota suggests that in its own estimation, the benefits the petitioner prays for, are dependent on appointment against the reserved quota only. As noted above with reference to the Junaid case, above, the 2012 KP law, doesn't put any restriction on a differently abted person to apply for a job against the merit quota. It follows that the mere fact that the petitioner has got his job on open merit shouldn't justiff depriving him for other benefits, which the law otherwise offers. The reason is that the statute needs to be interpreted in the context of the constitutionally guaranteed fundamental rights, such as, the right to life and equality before law (articles 9 and 25). The position of the respondent-university that the petitioner has not a vested right is against the letter and spirit of the KP law, the constitution and the Convention.

13.While issuing its Junaidruling in20l6,the Lahore High court observed that a comprehensive national law is missing and that the Ordinance is poorly implemented. Indeed, both the laws are awfully deficient on human rights perspective. The introduction of provincial laws since 2}l6is a remarkable change. However, the court inJunaid underscored the need of a shift in the implementation of the laws from the myopic approach of rehabilitation and charity to a human rights- based approach. The convention has adopted the following key principles of the right-based approach:

a. Respect for inherent di$ity individual autonomy, including the freedom to make one's own choices' and indePendence of Persons;

b. Non-discrimination;

c.Fullandeffectiveparticipationandinclusionin societY;

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d. Respect for difference and acceptance of persons with disabilities as part of human cliversity and humanitY;

e. EqualitY of oPPortunitY;

f. AccessibilitY;

g. EqualitY between men and women;

L Respeci for the evolving capitation of children with disabilities and respect and respect of children with disabilities to preserve their identities (article 3)'

14.The Convention sets out general obligations of the States parties to take all appropriate legislative, administrative and other measures for implementation of the rights of the differently abled persons it recogrrizes (article 4). It enjoins State parties to treat differently abled persons equally before and under the law without discrimination and prohibits all discrimination on the basis of disability, and guarantees for such persons equal and effective legal protection against discrimination. In a bid to promote equality and non-discrimination, it also obliges the State parties to take all appropriate steps to ensure provision of reasonable accommodation' It defines, in article 2, reasonable accommodation [A]s necessary and appropriate modification and ffirm.nts 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 iquul basis with others of all human rights and fundamental freedoms [.]

15.In article 2T,theConvention sets out specific obligations ofthe State parties in the area of work and employment. It reads:

Articl e 27 -Work and emPloyment

1.States Parties reco gnizethe 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 acceptei-in a labotr market and work environment that is open, inclusive and accessible to persons \ryith disabilities. States Parties shall safeguard and promote the rcalization 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 discrin irruiion 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 favotrable conditions of work, including equal opportunities and equal

v remuneration for work of equal valuo, safe and healthy working conditions, including protection from harassment, and the redress of grievances;

c. Enstrre 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 prograrnmes, placement services and vocational and continuing training;

e. Promote employment opportturities and career advancement for persons with disabilities in the labotr 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 progralnmes, 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 labotrr market; k. Promote vocational and professional rehabilitation, job retention and return-to-work programmes for persons with disabilities.

2.States Parties shall ensure that persons with disabilities are not held in slavery or in servitude, and are protected, on an equal basis with others, from forced or compulsory labour.

6.The principles the Convention pronounces are fully compatible with our constitutional values, notably the fundamental rights bestowed on the people of Pakistan. Both the Convention and our constitution espouse the universality, indivisibility, interdependence and interrelatedness of all human rights for every one with absolutely no exception to the differently abled persons. Our higher courts have been progressively and purposively interpreting the constitution to give meanings to fundamental rights and freedoms. Reliance is placed otr, for example, Pakistan Tobacco lzoozlto and Presidential Reference (ZOtg).tt

to Pakistan Tobacco Co. Ltd. And others v. Government of N.W.F.P. tltrough Secretary Lsw and others, PLD 2004.

rr Reference No. 0l/2012 @eference by the Fresident of Pakistan under Article 186 of Islamic Republic of Pakistan, |973,PLD2013 5C279.

v 17 . Key features of rights-based approach are that firstly, human rights noflns and values enunciated in all human rights instruments, shall form the basis of the State's laws, policies and guidelines for the institutions concerned. Secondly, the sfrength of this approach lies in the fact that it considers human rights as legal claims and human beings as right-holders of such claims. Thirdly, the State is under an obligation to protect and fulfil such legal claims through various institutions, including most notably courts and other law enforcement authorities. Methodotogically, it seeks 'to bridge the schism'I2 amongst the categories (also called generations) ofhuman rights: civil and political (seen as precise in substance and enforceable through specific State institutions coercively) ; economic, social and cultural; and, peoples/groups rights (both considered as mere entitlements or goals, capabte of enforceable through policy). As the realization of rights of the differently abled persons through an efficient and effective implementation mechanism is ofvital importance' we would venture to dilate upon the nature of State's obligations.

18.Human rights community describes three categories of obligations: to respect, to protect, and to fulfil. The obligation to respect requires that State to refrain from any interference with the rights of the differently abled individuals. Both these two categories are negative in nafure, implying non-intervention or inaction on the part of the State and third parties. It means that the respondent- university being recognized as a 'Government Establishment' (under section 4, clause c, of the 2Ol2 W law) has an obligation to refrain from violation of the petitioner rights. The obligation to protect enjoins the State with a duty to prevent violation by third parties. The obtigation to fulfil obliges the State to formulate s comprehensive policy which includes'appropriate legislative, administrative, budgetary, judicial and other measures towards thercalization of their human rights. The obligations to respect and protect are also called s.R. Osmani, 'An Essay of Human Rights Approach to Development' in Arjun Sentgupta, et ai, (eds.), RbJtections of thi Nght to Darclopmen, New Delhi, Sage,2006, pp 110-26, at 12.

v perfect obligation, whereas the tast category is known as the imperfect obligation. The Convention and the provincial laws except that of the 2012 KP law, declare all the three generations of human rights enforceable through both perfect and obligations of rights of the differently abled persons.

19.The right based approach could be linked to the capability approach as referred to in para 10, above. The rights-based approach and the capability approach shares significant philosophical and practical common ground, both focusing on enhancing human digntty, freedom, and well-being. F,stablishing a link between these two approaches reveals their complementary nature in advancing human development. A stuctured connection between the two includes philosophical underpinning in which rights-based approach emphasizes flrat individuals are entitled to certain fundamental rights by virtue of their inherent dignity. The capability approach centres on the ability to achieve rather than a mere functioning, its exponent Amartya Sen explained it:

A functioning is an achievement, whereas a capability is the ability to achieve. Functioning are different aspects of living conditions. Capability, in contrast, are notions of freedom inthe positive sense: what real opportunities you have regarding the life you may lead.l3

20.It highlights the importance of removing balriers-social, economic, cultural and political-that limit these freedoms. Both approaches aim to empower individuals but from different angles: the rights-based approach guarantees entitlements, while the capability approach ensures the actual realization of freedoms.

21.Finatty, we would consider the petitioner's contention that the respondent-university's refusal to grant him the requisite benefits is against good goYernance. In broader context of perfect and imperfect human rights obtigations, good governance and the rule of law are Amarlya Sen, 'Lives and Capabilities', in Geoffiey Hawthorn (ed.) The Standard of Living,Cambridge University Press, 1987, pp 20-38.

v very much relevant concepts. According to the UN Office of the High Commissioner for Human Rights (OHCHR).

Governance refers to all processes of governing, the institutions, processes and practices through which issues of common concern are decided upon and regulated. Good governance adds a normative or evaluative attribute to the process of governing. From a human rights perspective, it refers primarily to the process whereby public institutions conduct public affairs, manage public resources and guarantee the realization of human rights.14

22.The rule of law means the fulfilment of the formal procedures of the legal system.l5 In this formal sense, the rule of law includes well-defined rights and duties and efficient judicial mechanism for enforcing them. A broader view of the rule of law seeks to ascertain whether laws are just, fair and equitable.l6 This view stands for looking at the legal system in socio-cultural and political contexts. Thus, the rule of law is 'a principle of governance in which all persons, institutions, and entitle, public and private, including the State itself, are accountable to laws.rT

23.The respondents didn't meaningfully rebut the good governance or say the rule law contention of the petitioner. We are of the view that the prayers of the petitioner merit acceptance.

24.Consequent upon our above discussion, we have reached to the conclusion that the petitioner is a differently abled person/employee of the respondent-university. The mere fact that he was not offered his job against the reserved quota is not sufficient to dislodge his case. Despite the vague 2012Y\P law, the respondent-university has perfect (specific/legal) as well as imperfect obligation (policy formulation for About Good Govemance: OHCHR and Good Governance.

https://www.ohchr.org/en/good-governance/about-good-governance Accessed and Adminismtive Reforms in Post-Conflict " nicnarO Sannerholm, 'Legal, Judicial Template', Journal of Conflict & Security Law l2(l) Socities: Beyond the Rule of Law 2007,65-94, at74.

Brian Z. Tamanatra, On the Rule of Law: History, Politics, Theory, Canrbridge, Carnbridge University Press, 2004, pl3.

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UN Secretary Geniral Report, Rule of Law and Transitional Juslice in Conflict and P os t-C onfl i ct Soc i eties, UN Doc. 5.2004/6 I 6, 23.04.2004.

realizationof all differently abled persons) human rights obligations as per the diktat of good governance and the rule of law'

25.We allow the petition and direct the respondent-university to provide the benefits to the petitioner as prayed for by formulating a policy within 06 months from the date of receipt of a copy of this judgment. For tur exemption, we direct the petitioner to approach the concerned oflice of the Inland Revenue Office' a Announced.

Dt:27.1 1.2024. ;4

JUPGE

(D.B)

Hon'ble Mr. Justice Syed Arshad Ali Hon'ble Mr. Justice Dr. Khurshid lqbal