Aamir Tufail Chaudhary V Government of Punjab and 2 others (letter of appointment withheld due to a disability)

Case No. W.P. No.109335 of 2017

Lahore High Court

Date of decision: 03.01.2018

The petitioner, an advocate of the High Court, who suffered from visual impairment was registered with the Provincial Council for Rehabilitation of Disabled Persons (PCRDP). He applied for the position of the Deputy District Public Prosecutor (DDPP). This had been advertised by Respondent No. 2 in the Department of Respondent No.3. The petitioner cleared all the relevant tests, obtained a certificate from the PRCDP and was interviewed after which his name was recommended by Respondent No.2 for the position he had applied for. Part of this recommendation included a condition which required all individuals with disabilities to be re-examined by a special medical board. Following this, Respondent No. 2 recommended the petitioner’s name for the position but despite repetitive requests by the petitioner, no letter of appointment was issued to him, while all other selected candidates were issued joining letters.

The petitioner then filed a petition against this delay but withdrew it once the Respondents assured him that they would be issuing him his appointment letter, which they did later. This letter however, was accompanied with a condition that required a clearance from the special medical board to determine the respondent’s suitability for the position. The composition of this medical board was dictated by the respondents and it cleared the petitioner for the position to which he had been selected. After this, the respondents refused to appoint the petitioner, who then appealed to the department. This appeal was decided by Respondent No. 3 by an order in which he was to be reexamined by a special medical board before he could be awarded his letter of appointment. This was challenged in the following petition.

The petitioner argued that since the medical board had already cleared him for his position as a DDPP, a decision which was never challenged, the requirement to appear for re-examination before a special medical board was mala fide. He further argued that he had been selected on merit and it was therefore, his right to be appointed for the job. This refusal was unfair, biased, discriminatory and violated is right to dignity. As the respondents had agreed to his appointment before, they were now estopped by their own words and actions. The petitioner requested that the refusal of his appointment be set aside and that he be appointed to the post he was selected for. (The following cases were cited as supportive binding precedent: Hafiz Junaid Mahmood Versus Government of Punjab and others (PLD 2017 Lahore 1), Muhammad Yousaf and another v. Chairman Federal Public Service Commission and 4 others (PLD 2017 Lahore 406), Bashir Ahmed Solangi v. Chief Secretary, Government of Sindh, Karachi and 2 others (2004 SCMR 1864), Mst. Basharat Jehan v. Director General (2015 SCMR 1418), Mst. Saima Hameed v. Executive District Officer (Health) Pakpattan Sharif and 2 others (2011 PLC (C.S) 351), Zakir Muneer v. Executive District Officer (Health) Abbottabgad and 3 others (2011 PLC (C.S.) 1651), Munawar Hassan v. Chief Secretary, Government of Balochistan and 3 others (2017 PLC (C.S.) 81) & Jawad Ali and others v. Superintendent Jail and others (2017 PLC (C.S.) 587).

Denying the petitioner’s allegations, the respondents stated that since the order disputed was not discriminatory as despite repeated letters, the respondent had refused to appear before a special medical board for the verification of his disability and suitability for the job. The medical board which had cleared him previously was not a special medical board and was therefore not capable of deciding the petitioner’s suitability for his job. Should the petitioner appear before the special medical board now, the petitioners would deal with him according to the rules of procedure of their department.

The court stated that the petitioner had a disability certificate and had presented himself before a medical board constituted according to the requests of the respondents. Requesting another examination before a special medical board was therefore a mala fide act, probably a reaction to the initial appeal filed by the petitioner and were therefore judicially estopped from issuing further letters requesting re-examination, owing to their own inconsistent behaviour and presentation of contradictory facts.

The court, relying on Bashir Ahmed Solangi v. Chief Secretary, Government of Sindh, Karachi and 2 others (2004 SCMR 1864), held that a vested right had accrued in favour of the petitioner, who had done all he was supposed to, including refusing a position in another department, to be available for this job. This right could not then be ignored by the respondents or be extinguished by the refusal to issue an appointment letter. Referring to Muhammad Yousaf’s case the court stated that fundamental rights could not be varied on the basis of a disability, as the constitution recognises the right to equal treatment before the law, the inviolable dignity of a person and the right to fully enjoy one’s life. Referring to the petitioner as ‘differently abled’ rather than ‘disabled’ the court, relying on the Hafiz Junai Mahmood case, stated that it was the responsibility of the state (and its institutions) to mainstream such people and to ensure their reasonable accommodation. The court stated that it was the respondent’s responsibility to ensure that the petitioner was accommodated in his work environment.

Cases following the facts of this case and the court’s observations were cited. These included Mst. Saima Hameed v. Executive District Officer (Health) Pakpattan Sharif and 2 others (2011 PLC (C.S) 351), Zakir Muneer v. Executive District Officer (Health) Abbottabgad and 3 others (2011 PLC (C.S.) 1651), Munawar Hassan v. Chief Secretary, Government of Balochistan and 3 others (2017 PLC (C.S.) 81) & Jawad Ali and others v. Superintendent Jail and others (2017 PLC (C.S.) 587).

The petition was therefore approved and the respondents were directed to permit the petitioner to join his position as a DDPP within ten days.