AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR Versus ISMA SHARIF
CH. MUHAMMAD IBRAHIM ZIA, C.J.--- The titled appeal by leave of the Court has been directed against the judgment dated 08.03.2018, passed by the Azad Jammu and Kashmir High Court in Writ Petition No.95 of 2018.
2. The facts forming the background of the captioned appeal are that Isma Shareef, respondent No.1, herein, filed a writ petition under section 44 of the Azad Jammu and Kashmir Interim Constriction Act, 1974, before the High Court on 15.01.2018. It was alleged that she applied for admission in MBBS for academic year 2017-18, against the quota reserved for disabled persons. The Joint Admission Committee placed her at serial No.9 of the merit-list, The candidate listed at serial No.1 was selected against the quota of District Poonch, whereas, the candidates placed at serial Nos.2, 4 and 8 were not found suitable/ disable. It was stated that now the candidate who has been placed at serial No.3 is at the top and the other candidates mentioned at serial Nos.5, 6 and 7 are at serial Nos.2, 3 and 4. It was further stated that the name of the respondent No.1, herein, is now at serial No.5 at the said merit list. It was claimed that as per admission policy 4 seats have been allocated to the disable students, out of which three seats have been allocated in medical colleges of Azad Jammu and Kashmir and one for the Medical Colleges of Pakistan. It was further claimed that previously 9 seats were reserved for the students of Indian Held Kashmir, however, in session 2016-17, no student could obtain admission in any medical college of AJ&K against the said quota for the reason that the Indian Ministry of Foreign Affairs did not issue the N.O.C. It was stated that in view of the fact, vide notification dated 31.01.2017, these seats were allocated to the quota of refugees of 1989 on onetime basis upon the recommendations of Ministry of Foreign Affairs Government of Pakistan. It was further stated that 9 seats which were reserved for the students of Indian Held Kashmir have now been given to the refugees of Jammu and Kashmir to be filled in through Ministry of Foreign Affairs Government of Pakistan. It was claimed that the action of the respondents for reserving limited seats for disable students and 9 seats for the refugees of the Jammu and Kashmir through Ministry of Foreign Affairs, Government of Pakistan is illegal and against the norms of justice. A direction was also sought for increasing the quota allocated to the disable persons as has been increased in the medical colleges of Punjab, from 1% to 3%.
3. The writ petition was contested by the other side by Filing written statement on several grounds. After hearing the parties, the learned High Court through the impugned judgment dated 08.03.2018, accepted the writ petition directing respondent No.1, therein, to modify clause 8.3 of the admission policy by raising quota of disable persons from 1% to 2% within a period of 2 weeks and consider respondent No.1, herein, for admission in medical college against the said quota. The prayer of respondent No.1, herein, against 9 seats reserved for the students of Indian Held Kashmir was rejected.
4. Sardar Shoukat Ali, Advocate, the learned counsel for the appellants after discussion of the facts submitted that the impugned judgment of the High Court is against law and principle of administration of justice. He submitted that on the point of parity with Punjab and vires of clause 10 of the Admission Policy, 2017 the writ petition has been dismissed and to this extent the judgment has attained finality as the respondent has not challenged the same. Only the proposition of validity of the direction issued by the High Court in the impugned judgment is involved. He submitted that the learned High Court on the basis of some circulars has observed that 2% quota is allocated in services. This observation appears to be misconceived as according to law the circular has no legal status, Moreover, in the Azad Jammu and Kashmir according to the enforced law only 1% quota is reserved that too for services and not for educational institutions. However, already the seats have been reserved for the category of disabled persons. The issuance of direction on the basis of the referred circulars has no legal backing and against law. Therefore, while accepting this appeal and recalling the impugned judgment to the extent of direction the writ petition filed by the respondent may kindly be dismissed.
5. Conversely, Kh. Attaullah Chak and Syed Hazoor Imam Kazmi, Advocates, the learned counsel for the contesting respondent forcefully defended the impugned judgment and submitted that according to the enforced law 2% quota is reserved. They further argued that the spirit of the Constitution demands rehabilitation of special/disabled persons as State responsibility. The learned High Court has rightly issued the direction which does not suffer from any legal infirmity. They further argued that the appellants have wrongly calculated the quota. According to the quota reserved for the disabled persons at least ten seats have to be allocated. As an alternate they submitted that there are some vacant seats against the quota reserved for the students of Indian Occupied Kashmir and other categories. The appellants should have to accommodate the deserving students against such vacancies. They further submitted that after the disastrous earthquake in the Azad Kashmir the number of disabled persons has increased which demands enhancement of the quota for disabled persons. This appeal has no substance and liable to be dismissed.
6. We have considered the arguments of learned counsel for the parties and gone through the record made available. The respondent has filed the writ petition before the High Court with the following prayers:--
"In view of the above, it is most respectfully prayed on behalf of the petitioner that this Hon'ble Court may very graciously be pleased to issue the following writs:--
(i) Respondents be directed to allocate 3% quota for disabled persons in the Medical Colleges of Azad Jammu and Kashmir and Pakistan Clause 8.3 of admission policy be declared illegal and ab initio void.
(ii) That in item No.10 of admission policy 09 seats reserved for Students from Indian Occupied Kashmir be distributed/allocated in the units of AJ&K and other categories according to population.
(iii) Respondents be directed to nominate petitioner for admission in Medical College, Muzaffarabad against the quota of handicap students."
The learned High Court has dismissed the writ petition to the extent of clause 10 of the Admission Policy, 2017 as prayed in the prayer clause (ii) of the writ petition. Same like, the principle of parity has also been repelled, thus, to this extent the judgment has attained finality as these findings have not been challenged by the respondent. The only proposition which requires resolution is whether the direction given by the High Court in the impugned judgment for modifying clause 8.3 of the Admission Policy and enhancing the disabled candidates quota from 1% to 2% is according to law or not.
7. The learned High Court has based these findings on some circulars. One of the circulars is of 04.10.2012 in which there is no reference of percentage of the quota. The other circular in which 2% quota is mentioned is issued by the Staff Officer; of the Chief Secretary which refers the Notification No.7-5/13/86-AJK dated 04.08.1990, whereas, this notification is regarding the framing of the rules. The careful examination of the framed rules reveals that there is no provision mentioning the percentage of quota for the disabled persons. Even we ourselves have attempted to search and discover any such notification. The concerned rules framing department i.e. Services and General Administration Department has also been consulted. In this regard, the Additional Secretary Services and General Administration Department (Mehrban Hussain Chaudhary) appeared with record and submitted that except the provisions of section 8 of the AJ&K Council Disabled Persons (Employment and Rehabilitation) Act, 1986 no other notification or provision in this context is holding the field. It will be useful to reproduce here section 8 which reads as follows:--
"8. Establishment to employ disabled persons.---(1) Not less than one percent of the total number of persons employment by an establishment at any time shall be disabled persons whose names have been registered with the Employment Exchange of the area which such establishment is located and against whose names in the register maintained under section 10 an endorsement exists to the effect that they are fit to work.
8. So far as the circular regarding 2% quota, referred by the High Court in the impugned judgment, is concerned, the Additional Secretary Services and General Administration Department has also submitted the copy of another circular, dated 26.12.2015 (which is made part of the record) wherein it has been clarified that only 1% quota is reserved in Azad Jammu and Kashmir for disabled persons. We have also found at page 68 of the file of the High Court a certificate mentioning 3% quota allegedly issued by the Deputy Secretary (Rules) S&GAD. The certificate is without any number or date. The Additional Secretary S&GAD after examination of the certificate and record observed that the document appears to be fake and tampered. It has neither been issued from his office nor signed by any of the officer of the department.
9. In the light of survey of statutory provisions dealing with the subject-matter and hereinabove stated reasons, we have reached the conclusion that except the provisions of section 8, reproduced hereinabove, no other notification or statutory provision exists or enforced in the Azad Jammu and Kashmir providing 2% quota for disabled persons in the services. In this state of affairs, the conclusion drawn by the High Court regarding 2% quota for disabled persons in Azad Jammu and Kashmir appears to be result of misconception, hence, not sustainable.
10. So far as the argument of learned counsel for the appellants that the quota relates only to the services and it is not for educational institutions, is concerned, this argument is not available to the appellants for the reason that according to the policy and practice the quota of 1% is already admitted and executed. Even otherwise, the purpose of enforcement of Act, 1986 (supra) cannot be strictly confined to the services because the intention of the legislature is to provide law for employment, rehabilitation and welfare to the disabled persons.
11. We have noticed that the Act, 1986 (supra) provides comprehensive mechanism for achieving the purpose of enforcement of this Act but it appears that despite framing the rules for carrying out the purpose of this Act further practical steps for establishment of Board etc. are not visible and the required bodies are not functional. While taking notice of this situation, we deem it appropriate in the public interest to call comments from the Secretary AJ&K Council that what steps have been taken by the Council in this regard. The office is directed to maintain separate file in this context. Notice shall be issued to the Secretary AJ&K Council to submit a detailed report containing; (i) the steps taken for carrying out the purpose of Act, 1986 and rules made thereunder, (ii) the practical steps for constituting the Board as required under section 3 of the Act, 1986, (iii) establishment of Employment Exchange etc, and (iv) if such bodies are functioning, their details. The report shall be submitted before next date of hearing to be fixed and communicated by the office.
12. So far as the arguments of learned counsel for the respondents that due to unprecedented disastrous Earthquake, the number of disabled persons has increased which demands for increase in quota for disabled persons upto more than 3% as prevails in Punjab, is concerned, we have no quarrel with the submission but it is the job of the Government, executive or legislature and the Court cannot legislate. However, as the argument has substance, thus, it is desired that the concerned authority and legislative bodies should take necessary steps in this regard.
13. The other contention of learned counsel for the respondents is that there are some vacant seats against other quota and the respondent can be accommodated. It is also the job of concerned authorities and if any such eventuality exists the concerned authority may consider the case of the respondent on sympathetic basis.
14. In view of the hereinabove discussion, the direction issued by the High Court is not sustainable. Therefore, while accepting this appeal the same is recalled.
This appeal stands accepted in the above terms with no order as costs.
HBT/37/SC(AJ&K) Appeal accepted.