By Sanjeev Sirohi*
The Supreme Court of Pakistan on July 14, 2020 has very in a laudable judgment Malik Ubaidullah vs Government of Punjab etc in Civil Petition No. 140-L of 2015 (on appeal from the order of Lahore High Court dated 02.12.2014, passed in ICA No. 336/2013) directed the Government of Pakistan and its agencies to desist forthwith from using the words like “disabled”, “physically handicapped” and “mentally retarded” for persons with different abilities.
The more socially acceptable term is persons with disabilities or persons with different abilities. Thus we see that even in Pakistan there is a paradigm shift in the way the Pakistan Supreme Court has went on to rule in this particular case! This is certainly welcome as the whole world has now started to recognize that the use of such words like “disabled”, “physically handicapped” and “mentally retarded” constitute an affront to them and they must be avoided always!
In this noteworthy judgment, Justice Manzoor Ahmad Malik and Justice Qazi Muhammad Amin Ahmed set the ball rolling by observing in para 1 that, “The Petitioner applied for the post of Senior Elementary School Educator Arabic (“SESE[Arabic]”) on the disability quota (“Disability Quota”) in pursuance to the advertisement put out by the Education Department, Local Government, Multan. According to the advertisement, in addition to the other posts, a total of 81 posts of SESE [Arabic] were advertised with 42 posts in female category and 39 posts in the male category at the Girls and Boys schools, respectively. Thereafter, only one Mst. Asma Qasim was appointed against the said post under the Disability Quota and the petitioner failed to secure a position. Admittedly, Mst. Asma Qasim with 62.78 Marks topped the merit list for the post of SESE [Arabic] under the Disability Quota and the petitioner with 43.53 Marks could not be offered a post. 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. His writ petition was dismissed vide order dated 28.10.2013 and so did his appeal before the High Court (ICA) vide impugned order dated 01.12.2014.”
It then stated in para 2 that, “After hearing the parties and having gone through the record, the legal question that arises in this case is the manner of allocation of 2% Disability Quota for employment under the Disabled Persons (Employment and Rehabilitation) Ordinance 1981 (“Ordinance”). (The Federal Law is now a Provincial Law after the Disabled Persons (Employment & Rehabilitation (Amendment) Act, 2012, however, as this case pertains to a period before 2012, therefore, the Federal Law would apply in the present case). The Ordinance requires that 2% of the total number of persons employed by an establishment at any time shall be “disabled persons”. (As described in the statute. The more socially acceptable term is persons with disabilities or persons with different abilities.). In order to fully understand the allocation mechanism of the Disability Quota under the Ordinance, it would be useful to first understand and the concept of Disability and the importance of role of employment in the lives of persons with disabilities (“PWDs”) as compared to persons without disabilities.”
While dwelling on the concept of disability, it expounded in para 3 that, “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. (Collins Dictionary – complete and unabridged, 12th edition 2014). According to the UN Convention on the Rights of Persons With Disabilities (“CRPD” or “Convention”) ratified by Pakistan in 2011, 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.”
To put things in perspective, it then brought out in para 7 that, “According to International Labour Organization (ILO) an estimated 386 million of the world’s working-age are PWDs. The unemployment among the PWDs is as high as 80 percent in some countries. Often employers assume that persons with disabilities are unable to work. In Pakistan, estimates of the number of persons living with disabilities vary between 3.3 million and 27 million. (Moving from the margin – Mainstreaming persons with disabilities in Pakistan. British Council & The Economist Intelligence Unit – 2014).”
While underscoring the pivotal role of employment in people’s lives, it envisaged in para 8 that, “Employment is equally important to all people, without it, social inclusion and economic independence are unlikely to be achieved. Among the crucial social functions that employment can facilitate are financial independence and social inclusion. It has also been found to improve social status, provide social support and enable workers to make a contribution, thereby leading to an increase in self-worth. Employment has the potential to improve a person’s financial situation, open up opportunities for social contact, build (new) friendships and increase people’s self-esteem. By contrast, unemployment can cause not only poverty and social exclusion but also result in a lower sense of self-worth. The effects of unemployment on physical health like symptoms of somatization disorder, depression and anxiety were significantly greater in unemployed than employed individuals. The situation for people with disabilities may have consequences of a greater extent as they tend to be looked upon as dependents of their families and relatives and are not expected to be gainfully employed or independent. Work has been, and will undoubtedly continue to be, central to all human societies.”
The Bench concedes in para 9 that, “One of the major difficulties faced by persons with disabilities is that employers have the erroneous assumption that these people will probably underperform in most areas of their duties – something which is actually not the case. Another plausible issue is that when the majority of workplaces are not made accessible to people with disabilities, employers will feel that they will have to make an unwarranted investment to provide facilities for people with disabilities, and some do not believe in the employment potential of such people.”
It then held in para 17 that, “In the present case the posts advertised for SESE (Arabic) were 81 which allows for one post in the Disability Quota, while if the Disability Quota is worked out on the total sanctioned strength of the posts of SESE [Arabic] it comes to 5 posts (see chart above) and 4 more PWDs could have been appointed against the said posts against the advertisement in question. Filling the Disability Quota on the basis of advertised posts is, therefore, detrimental to the interest and welfare of the persons with disabilities; is against the letter of the law and offends their fundamental right to life and livelihood and their right to dignity.”
It stated in para 18 that, “Summarizing the above, we hold that: (i) the 2% (and now 3%) [After the Disabled Persons (Employment & Rehabilitation) (Amendment) Act, 2012] Disability Quota is to be calculated on the basis of the total sanctioned posts of the establishment. (ii) 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. The determination of different categories is on the basis of their distinct qualifications, selection criteria and separate merit list. (iii) In case the sanctioned strength of a post is less than 50, it will be for the establishment to allocate seat(s) from the overall Disability Quota against such a post. (iv) 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. (v) 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.”
It held in para 19 without mincing any words that, “It is also observed that words like “disabled”, “physically handicapped” and “mentally retarded” deeply bruise and offend human dignity of persons with different abilities. The Federal Government and the Provincial Governments are directed to discontinue the use of these words in official correspondence, directives, notifications and circulars and shift to “persons with disabilities” or “persons with different abilities”. The view taken by the Lahore High Court in Barrister Asfandayar Khan case [Barrister Asfandayar Khan Tareen, etc. v. Govt of the Punjab, etc. (PLD 2018 Lahore 300)] is approved and must be given effect to.”
In essence, the judgment vociferously accepts the rights of persons with disabilities and persons with different abilities, which is quite refreshing, in the sense that it directed the Government of Pakistan and its agencies to desist forthwith from using the words like “disabled”, “physically handicapped” and “mentally retarded” for persons with different abilities and instead use the more socially acceptable term that is persons with disabilities or persons with different abilities. Persons with disabilities or persons with different abilities must be encouraged and admired so that they are motivated to further do better and there has to be zero tolerance for any sort of discrimination against them on any ground whatsoever! Only then can we call ourselves “civilized”!
*Advocate based in Meerut