G.M. Lodha, J.
1. The yawning gap between legislation and its implementation has not only Handicapped but crippled the humanitarian relief of employment intended to be given to the physically handicapped persons, in Rajasthan, by the Rajasthan Employment of the Physically handicapped Rules, 1976, hereinafter called 'the Rules of 1976', making the rules 'dead letter'.
2. In this age of ultra advanced science and technology a man can reach space in hours but the mighty bureaucracy of Rajasthan have not even earmarked 2% posts for handicapped after more than three years, inspite of the fact that this period witnessed an important political change. The Head of Departments; who constitute 'top brass' of bureaucracy; apathy towards this great social welfare legislation remained static, & unchanged. The dogmatic approach, the snail moving lethargy, and the inhuman indifference bordering on abhorrence and hatred for God cursed physically handicapped, continues unabated. Such is the tragic, pathetic, sad situation which poses the billion dollar question, what are we about as posed by Justice there in the prohibition case P.N. Kaushal v. Union of India : 1SCR122 , What Justice Iyer said about Article 47 orphanage in the Punjab Government, can well be said about Article 41 in relation to the Rajasthan State.
3. A physically handicapped petitioner could not get relief from alleged administratively and mentally handicapped respondents, and wants employment relief from this Court. The respondent's submission is that this Court has got judicial handicap to grant all the relief's which are claimed. This writ petition, therefore, is a pathetic battle of handicaps, by a physically handicapped, against an administrative handicapped Government being fought in a 'judicial forum' of legal and constitutional limitations.
4. Whether under Article 226 of the Constitution, for governance of Article 41, the rules framed under Article 309, can be enforced by an issuance of writ or direction, is the precise question to be answered.
5. Let me now state facts. A physically handicapped teacher has filed this writ petition having failed to get any relief under the Rules of 1976 from the State functionaries.
6. On 25th September, 1976, the Governor of Rajasthan promulgated the Rajasthan Employment of the Physically Handicapped Rules 1976 for providing employment and reservation of services. The object of the Rules is 'o provide employment by reservation and earmarking of posts and relaxation of physical and medical standards for physically handicapped persons.
7. A physically handicapped has been defined in Sub-rule (v) of Rule 2 which is as under:
(v) 'physically handicapped' means and Includes the following categories of physically handicapped persons:
(A) Blind: The blind are those who are suffering from any of the following conditions:
(a) total absence of sight.
(b) Visual acquits not exceeding 6/60 or 20/200 (anellan) in the better eye with correcting lenses.
(c) Limitation of the field of vision, sub standing at angle of 20 degrees of worse.
(B) Deaf: The deaf are those in whom the sense of hearing is non-functional for the ordinary purpose of life generally loss of hearing at 70 decibles or above at 500, 1000 or 2000 frequencies will make residua] hearing non-functional and will include deaf-mute persons.
(C) Ortherpaedically handicapped : The orthopaedically handicapped are those who have a physical defect or deformity which cause an interference with normal functioning of bones, muscles and joints.
(D) Speech Defective : A person suffering from aphasia (Complete loss of speech but sense of hearing normal) or whose speech is not clear and or normal.
It was then provided that physically handicapped persons shall be eligible for appointment for any service of post earmarked under Rule 4 of these Rules, provided he fulfills the qualifications laid down in the relevant rules or laid down by the Government in consultation with the Director of Medical & Health Services, Rajasthan and where no service rules have been framed for the post, he is eligible under these Rules and is able to perform the duties of the post irrespective of disability.
8. Clause (4) which is 'heart and soul' of these Rules costs a legal duty on each Head of the Department or in the absence or that on the Govt. to earmark from to time to time 2% of the posts in such category of posts where the handicapped may suitably be employed & posts so earmarked shall be treated as reserved for employment of handicapped. After the p ms or category of posts are so ear-marked, they were to be notified to the Government Department of Personnel and the Director. An elaborate procedure was laid down in Rule 4 for conveying information pertaining to the post of reservation and employment of handicapped as on 31st March each year and also for carrying forward vacancies, which remain unfilled on account of non-availability of the physically handicapped persons of that category, for a period of three years. These vacancies if they remain unfilled after having carried forward for a period of three years, would legally lapse under Sub-clause (3) of Rule 4. The Rules also provide for the consultation with the Rajasthan Public Service Commission or the High Court where ever it is necessary for the purposes of relaxing certain conditions of physical and medical examinations, with due regard to the nature and functional requirement of service or category of posts.
9. The Director of Social Welfare Department is required to make proper arrangements under Rule 5 for finding opportunities for employment to such disabled persons giving information and collecting the same district wise and also in registration of such physically handicapped persons. Rule 6 provides or procedure for registration and Rule 7 for ascertaining the degree of disability and functional capacity of the physically handicapped and relaxation from medical examination on appointment in Government service. The other Rules then provide for relaxation in age and concessions of providing Government accommodations etc.
10. A preliminary objection has been filed by the State which is nothing but a confession of the administrative handicap of the State functionaries in their failure to provide 2% reservation earmarking posts and providing relaxation of physical and medical standards as contemplated by Rule 4 The State submits that since that has not been done in the RAS so far as the writ application should be rejected.
11. In my opinion, the State functionaries have failed to perform their duties, which are not required to be performed as discretionary one, optional one; but which are not only legally enjoined upon them by Rule 4 of these Rules but also by the mandate of the Constitution under Article 41, where the State is required to make effective provision securing right to work and to public assistance in cases of unemployment and disablement.
12. The founding fathers of the Constitution by enacting the directive principles of the State policy enjoined upon the state, the Constitutional duty to make effective provisions for securing the right to work in cases of persons having rabblement By Article 37 of Fart IV these directive principles of the State policy have been declared to be fundamental in the governance of the country and it has been laid down that it shall be the duty of the State to apply these principles in making laws.
13. Justice Iyer in a recent judgment of P.N. Kaushal's case : 1SCR122 , observed that these directive principles of the State policy should be treated at the highest pedestal. Time and again the Hon'ble Supreme Court has emphasized necessity of the State to observe and implement the directive principles of the State policy inspite of the fact that court cannot enforce them in the way the same can be done for fundamental rights. However, they have been held to be more fundamental for the governance of the State. They are not audible ideals only for the purposes of preaching to people or for worshipping them as rituals, without having any intention of enforcing them for the benefit of the people.
14. The State functionaries of Rajasthan have treated the above Rules of 1976 as 'dead letter meant for being kept for exhibition in social welfare library shelves telling the people of the State that the State is very keen to provide benefit to the handicapped people by keeping them on the statute book But without even providing for the basic earmarking of the 2% reserved posts for a long period of almost more than three years. It is note-worthy that even the carrying forward rule provides maximum three years and it earmarking would have been done in the beginning in 1978 several handicaps persons would have then employed But this gross indifference, demolition of duty and the poor homage which the mate functionaries have paid to Article 41 of the Constitution by non earmarking of 2% reservations for disabled persons, the State functionaries have, virtually undone whatever was sought to be done by the Government while Promulgating these Rules under Article 309 of the constipation.
15. Whereas the State functionaries should have become vigilant and started hectic efforts to remove this lacuna and undue lapse of three yea a most curious feature of this case is that instead of becoming ago logistic and realizing their mistake, they arc using it as a preminary objection for creating still handicap to a handicapped person by making unsuccessful attempt for throwing the petitioner out from temple of justice. This attitude of the State functionaries, is not only extremely sad but it deserves to be taken note of by all those who are concerned for not only making the laws but getting them administered as 'watch dogs.' of the Constitution, in all the three wings of the State i.e. the Executive, the Legislature, and the Judiciary. It is a pity that even to them whom the God has curbed with handicaps the State functionaries instead of healing UP the wounds by providing relies which the law has enjoined upon them have trivet to inflict 'insult on injury' by making mockery of Rule 4 of these Rules for last three years
16. A legal mandate having been given by the legislature, it was legal duty of the State functionaries and the Government under Rule 4 to earmark 2% of the post in the various departments of the State for the handicapped i.e. blind, deaf, orthopaedically handicapped and speech defective persons. The reservation for the employment of physically handicapped persons having not been done so far, after more than three years of the coming into force of these Rules, the entire statute has remained dead and inanimate for all intents & purposes in the State. That being so, not only the preliminary objection of the State is liable to be rejected but after using all restraint which this Court is required to have, I am constrained to observe that there is no escape but to deprecate it. How can the State be allowed, to take advantage of its own slackness, indifference inaction, apathy towards functioning The State not only owes to the legislature which has made the law but also to this Court to explain why this law which was made on September 25, 1976 and which arouse hopes in the mind of several handicapped persons for new avenues of employment in the spirit of Article 41 of the Constitution, has not only been not enforced but has virtually been made dead?
17. The petitioner who is admittedly handicapped person and irrespective of the controversy whether he could have been accommodated or appointed or promoted in the RAS or RES cadre, on which I would revert a little later, he has certainly got a legal right to invoke Article 226 of the Constitution and remind this Court of its constitutional obligation and rule of law to issue appropriate directions to the respondents to enforce the rules made for his benefit and the benefit of several others who are similarly handicapped, as the petitioner.
18. The case of the petitioner is that the Rajas than Public Service Commission invited applications in March, 1977 for emergency recruitment to posts of the Rajasthan Administrative Service The petitioner applied and appeared for the said examination in July August, 1977. He also appeared in the examination conducted for the posts of Head Master, Secondary Schools, Assistant Head Masters Dy District education Officers, in December, 1977. The petitioner sent the certificate of Dr. P.K. Sethi, to show that he was physically handicapped, to the Rajasthan Public Service Commission on 27th January, 197P.
19. The petitioner passed the written test for the RAS examination result of which were declared on 2-2-1978 The Rajasthan Public Service Commission advised the petitioner to write to the Secretary, Department of Personnel, Rajasthan, Jaipur on 14 the February, 1978 for registration as orthopaedically handicapped & for making reservation of seats in the RAS emergency recruitment. The Department of Personnel advised the petitioner to re-write to the Rajasthan Public Service Commission and the petitioner thereupon wrote to the Commission for considering him against the quota of handicapped persons. The Rajasthan Public Service Commission vide its letter dated 23rd March, 5978 advised the petitioner that no intimation of reservation for handicapped persons having been received by the Commission, the petitioner should contact the Government.
20. The petitioner then met the Hon'ble Minister for Education and prayed for reservation of posts for handicapped persons in the Education department. Hin'ble Education Minister advised the petitioner to write to the Education Commissioner and she petitioner then moved the Education Commissioner on 27th February, 1978. The petitioner also moved the Director of Social Welfare department for registration of his name amongst physically handicapped persons. But neither his name was registered nor any reservation as required under the law was made by the Government.
21. The petitioner personally met the various authorities including the Hon'ble Chief Minister & urged upon them to take appropriate and early stepts for providing reservation to the handicapped persons. But nothing came out of these efforts.
22. The petitioner was interviewed by the Rajasthan Public Service Commission for the Rajasthan Administrative Service emergency recruitment and since there was no reservation of seats or posts for handicapped persons the petitioner was not given the benefit. He met the same fate in the interview held by the Education department in the absence of the reservation for the handicapped persons made by the Government.
23. It was after the fail ire of the above efforts that the petitioner has filed this writ petition and his grievance is that inspite of the requirement of the rules, the Government functionaries are throwing him from 'pillar to pole' and 'pole to pillar' and already the reservation quota of 1976 has expired because the maximum limit of carrying forward is three years.
24. Where as petitioner's case is that he is a handicapped person falling in the category (c) of Sub-rule (5) of Rule 2 being or the paedically handicapped lie is entitled to be absorbed in the 2% reserved quota of service which be claims in the RAS & RES cadre of the State. The respondent's sole contention, is that no such reservation has been done ear milking 2% of the in posts any of the service in Rajasthan so far. This is a defenceless defence which is untenable in law.
25. I have already mentioned above, that on a plain and simple reading of Rule 4 and the scheme of the Rules, it is amply clear that this is legal duty of the State functionaries to ear mark these posts and make reservations 2% and this should have been done from 1976 itself because each year's vacancy is to be carried forward and after three years they lapse. This shows that time is essence of the scheme of Rule 4 and has got great importance for providing relief to the handicapped persons. That having not been done the State functionaries mentioned in Rule 4 will haw BOW to do it within a period of four months from today and after having car-marked such 2% of the posts as contemlated be Rule 4, they shall have to further provide employment to the physically handicapped persons by treating the posts so created with effect from the year 1977 as the rules were promulgated in September 1976 and some time was bound to be stakes by the state functionaries to create reservation.
26. The petitioner who is undoubtedly a handicapped person would be entitled to have the benefit of such reservations in the employment either in the categories, for which he has prayed or for such other categories of equally important posts which may be provided by the State functionaries on an objective consideration of the physical handicap of the petitioner in pursuance of the consideration which may be under Rule 7 and other Rules of these Rules of 1976
27. Mr. J.S. Rastogi, learned Government Advocate appearing for the respondent submitted that in the matter of the cadre of RAS the State Government has received the opinion of the administrative heads that physically handicapped persons, by and large, cannot be employed because of the type of the functions, which the R.A.S. officers are required to discharge, Since no such Government decision has been taken so far, though some correspondence has ensued in between the department concerned, it would be premature to consider the validity of any such decision, if taken, as this stage. However, I am of the opinion that such a blanket decision would be traveling on a very thin line of validity, if taken, because it is well known fact that the handicapped persons in the categories mentioned in Clause (v) have been functioning very successfully on much more senior post than that of the R.A.S cadre and discharging many important functions in variour other spheres of life
28. Dr. Hellen Keller, a world renouned lady of the U.S.A. inspite of being blind, deaf & dumb, became an international figure as the champion of the handicapped She toured the entire world and met all the statement. She opened institutions for the blind at various places in the world and wrote a classic book 'The story of my lift' Ralph Barton Perry' in his introduction to this book wrote 'it is true that Hellen Keller is 'handicapped' as indeed, who is not But that which distinguishes her is not her handicap but the extent to which she has overcome it and even profited by it. She calls for sympathy and understanding, but not for pity No one can know her or read her without feeling admiration and gratitude'. Unable to hear, and unable to see, Dr. Hellen Keller discovered the would through her finger sips and her achievement of difficult goals and her loving kindness have made her life an inspiration & a blessing to countless people all the world over. Eleanor Roosevelt wrote 'in her life, & happiness in life Miss Keller has taught an unforgettable lesson to the rest of us who have not had such difficulties to over come'.
29. Some of the best poets of the world happen to be blind. 'Soordas' and 'Milton' have made poetry great by their brilliance and richness of thoughts & language. Edison, a great scientist & inventor was deaf Byron a great poet of England was lame. Maharaja Ranjit Singh a great warrior and administrator was handicapped in eye sight 'Taimoor Lung', Mangolian warrior, was lame The speech impediment of 'Winston Chunchil' never prevented him from being a great parliamentarian, and leading England as the war time Premier even when Her Hitler & the Nazis of Get many ran/tacked England by waves of bombardments in second world war.
30. Mr. Brail of U.S.A, a blind had a great distinction of inventing script for the blind. With the aid of this Brail's script, Mr. Sadhen Gupta, an eminent advocate of Calcutta rose to the status of an eminent parliamentarian in the Indian Parliament and is functioning & discharging the duties of Additional Advocate General in West Bengal. The achievement of Mr. Mukat Behanilal Bhargava, a renouned & eminent advocate of India is phenomenal and wonderful, as even without 'Brail's script 'his excellent fetes of oratory and advocacy inspite of his being blind, are based on his commendable miraculous memory, which may be remembered by jurists, Parliamentarians historians, and above all handicapped as 'Bhargava Memory' like 'Brail's script' for all times to come In addition to his being one of the most talented brilliant & eminent advocate, he was one of the founder father of the Constitution in the Continent Assembly and eminent parliamentarian for about two decades from Rajasthan.
32. The above illustrations of Dr Hellen Keller. Snordas. Milton, Edison, Byron. Rannt Singh and Tairooor Lung, Winston Churchil and Brail, Sadhan Gupta Bhargava & Joshi, are a few out of lakhs of victims of the curse of God, cruelty' of nature or man, accidents or disease who holier all handicaps, crossed all hurdles and reached the top of eminence and success the dissections which they crew, the wonders and miracles of theirs amply respells the objection or the respondents that physically handicapped persons cannot discharge functions of the RAS & RES officers Primarily it is for the author rinse mentioned in Clause (7) and other Rules of these Rules to examine each category of service but so far as the RES & RAS generally is concerned, it can be said without fear to contradiction that a physically handicapped person falling in this category can very well discharge the function of an educationalist, in much more important cadre, than the RES only. An orthopaedically handicapped person, would not suffer any handicap whatsoever if he is brilliant teacher and is required to perform and discharge the duties of a Head-Master or a Principal Lecturer or a Professor, similarly in the R.A.S. cadre, there are several posts, for example, in the Secretariat as Assistant Secretaries of other functionaries where such a defect will have no relevancy and would net create any impediment or hurdle in the discharge of duties. Similarly in the Directorate of various departments, posts of Assistant Director are also adorned by the RAS cadre. There are several such posts and it is not necessary to enumerate them here but the above examples have been giver only for the purpose of illustration.
33. In this view of the matter, as I have mentioned above, the State Government would be traveling on a very thin line of validity, if they debar the handicapped persons from the posts of the RAS cadre or the RES cadre. It is therefore, expected that the State Government and its functionaries with an objective approach, always remain conscious of the constitutions mandate of Article 41, notify 2% of the post ear marked for these handicapped persons for their employment.
34. There was some discussion and debate during arguments, on the point whether a persons who is already in employment, can be given benefit of this provision. Ultimately, it was conceded that under Rule 14 persons who were already in employment of the Government but suffered physically handicap after employment, can also be given advantage of these provisions. Of course the persons who are handicapped earlier and who want fresh employment, are primarily the person for whom these rules have been enacted. Thus, both the categories of the handicapped persons who either are handicapped earlier to the employment and want employment under these rules or those who get physically handicapped during the employment, can avail of the 2% earmark vacancies for employment, which includes promotion also.
35. The petitioner as per medical certificate produced by him Annexure 1, was operated upon in the year 1959 after his employment, due to which he was left with a permanently stiff hip, and has got a limp on account of which he cannot swat or sit cross-legged on floor. Thus he is entitled to get benefit of Rule 14. Since, 2% vacancies have not been, earmarked so far, no direction can be given by this Court to provide him employment that includes promotion on a higher post. However, as I have already mentioned above this Court is not only competent but constitutional duty is enjoined under Cart, due to which not only it could but it should issue direction in such cases for the enforcement of Rule 4 of the above Rules of 1976.
36. The writ application is, therefore, accepted. The respondent directed to earmark vacancies of 2% of the posts in the State Government departments by directing each head of the department or where there is not head of department, the 'Government its lf, on which post the blind-deaf/orthopaedically handicapped and speech defective persons may suitably be employed and then to treat the post so earmarked as reserve for the employment of the physically handicapped. The respondents are further directed) tales active, immediate and prompt steps to enforce these Rules, both in letter and spirit. The earmarking of 2% as contemplated by Rule 4 should be completed within a period of four months from today. The respondents would further provide employment on these reserved posts for the physically handicapped persons by creating these posts from the year 1977 and carrying them forward as per rules for a further period of three years. It is further directed that the petitioner on the creation of such reserved posts would be considered and provided suitable employment which would include promotion with effect from the date of his application to the Government i.e. 28-1-1978
37. Before parting with this judgment, I may again observe that in tiers of providing relief to those who have been cursed by the nature or god and are physically handicapped, the respondent State and its functionaries should take a very liberal and beneficial attitude of the entire matter. This case should not be treated as a legal battle between a citizen & the State, cadge one who is already handicapped and has mustard up courage to come this Court, should be respected by the State which represents all the fortunate to viewed & unprivileged rich and poor, highly placed persons and the down fodder' Such physically handicapped persons who are lowest in the require best of the attention of the State which is a social welfare State & which ordain to the Constitution given by the founding father is committed to do justice social, economic and political to all citizens of this State.
38. Let it not be said that the enactment of these rules in 1976 for the handicapped, was only a lip sympathy to Article 41 of the Constitution. Let for said that the enactment of this law was made only for the purpose of public consumption for preaching and propaganda and not for enforcing it, Implementing it and giving relief to those who really deserve.
39. This is one of those cases far and few between which has come light to this Court and has been commented upon but there are thousands and thousands of citizens, poor, down trodden, less privileged, unremorseful who can never approach the court for getting relief. If the State takes his document in the right perspective indicated above, for doing social justice d acts with speed and promptness, this physically handicapped petitioner as Id be successful in removing the administrative handicap of the State functionaries exhibited so far by non-enforcement of these Rules. The writ petition, therefore succeeds as petitioner would get costs from the respondents.