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ibrahim Khan Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 1036/80
Judge
Reported in1983WLN56
Appellantibrahim Khan
RespondentState of Rajasthan and ors.
DispositionPetition allowed
Cases ReferredP.N. Kaushal v. Union of India
Excerpt:
constitution of india - article 41 and rajasthan employment of physically handicapped rules, 1976--blind person appearing at rjs examination--application not in candidate's hand in technical and does not debar from appearing in examination--failure to permit a blind person from appearing in examination in disobedience of law--it is flagrant disregard of directions of high court.;there is no prohibition for appearing in the examination and the mere fact that the application was not written by the petitioner, himself, in his own hand writing is too technical to debar a handicapped from examination, particularly in the face of article 41 of the constitution and the rules of 1976 in respect of handicapped persons.;the petitioner deserves to be employed. the failure of the commission to permit.....g.m. lodha, j.1. astrology of blind the petitioner, the respondent and a court of law.2. a god cursed blind citizen is the petitioner before the court of law, which again is supposed to do justice, with godess of justice again being blind. the relief claimed in this writ petition is again rotating in a blind sane because the state has chosen to remain blind and not to respond by giving reply or relief to a blind citizen, even though about 3 years have passed since the petitioner knocked the doors of the temple of justice. the tell tale of woe and suffering of the petitioner would have created compassion and sympathy in any one's heart but inspite of tall claim of giving relief to handicapped and enactment of the rules in 1976 for reservation to the physically handicapped people of.....
Judgment:

G.M. Lodha, J.

1. Astrology of blind the petitioner, the respondent and a Court of law.

2. A God cursed blind citizen is the petitioner before the court of law, which again is supposed to do justice, with Godess of justice again being blind. The relief claimed in this writ petition is again rotating in a blind Sane because the State has chosen to remain blind and not to respond by giving reply or relief to a blind citizen, even though about 3 years have passed since the petitioner knocked the doors of the temple of justice. The tell tale of woe and suffering of the petitioner would have created compassion and sympathy in any one's heart but inspite of tall claim of giving relief to handicapped and enactment of the Rules in 1976 for reservation to the physically handicapped people of Rajasthan, the State has not chosen to examine the writ petition a copy of which was sent to the State by this Court with notice and to take some steps to make the Rules 1976, a reality rather than a mirage.

3. That this should happen even after two successive judgments of this Court in 1979 WLN 582 Suraj Prasad Chaturvedi v. State of Rajasthan decided on 6-10-1979 and 1981 RLW 345 Miss Kum Kum Jhatani v. State of Rajasthan, is still more alarming.

4. In Suraj Prassed Chaturvedi's case this Court took pains to point out to the State that there exists Article 41 under the Indian Constitution and it is not charity or pity for the poor or handicapped, but is the solemn duty not statutory only but a constitutional one under Article 41 of the Constitution of India to provide employment to the disabled handicapped citizens. It has again fallen to deaf ears what I said in Chaturvedi's case '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 it not be said that the enactment of this law was made only for the purpose public consumption for preaching and propoganda and not for enforcing it, implementing it and giving relief to these who really deserve.

5. Realising the gravity of the situation and the apathy with which some of bureaucracy have been neglecting the handicapped, I have observed as under:

Before parting with this judgment, I may again observe that in matter of providing relief to those who 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 and the State, because one who is already handicapped and has musterd up courage to come to this Court should be respected by the State which represents all the fortunate, privileged and unprivileged rich and poor, highly placed persons and the down trodden, Such physically handicapped persons who are lowest in the ladder, require best of the attention of the State which is a social welfare State and which according to the Constitution given by the founding fathers is committed to do justice social, economic and political to all citizens of the State.

I have further observed as under:

The yawning gap between legislation and its implemention has not only handicapped but crippled humanitarian belief of employment tended 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'.

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 polical change The Head of the 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, and pathetic situation which poses the billion dollar question, what are we about as posed by Justice Iyer in the prohibition case P.N. Kaushal v. Union of India 1979 WLN 582. What Justice Iyer said about Article 47 orphanage in the Punjab Government, can well be said about Article 51 in relation to the Rajasthan State..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 reliefs 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.

6. The echo of this judgment was again visible and audible in Miss Kum Kum Jhalani's case. I commenced the judgment with Justice Krishna Iyer's theme of social justice and after extracting justice and after extracting Justice Shelat's comments, I started mentioning the tragic tale of again a handicapped lady, who prayed for the relief under Article 226 of the Constitution.

7. To remind the State and its functionaries of the feeling of serious anguish and agony of this Court on account of non-observance of the constitutional mandates and virtually scrapping of the reservation Rules of 1976, i may again state what I said in Miss Kvm Kum Jhalanfs case:

The prospect of realising social justice is remote unless Articles 39 go into militant potion and unless there is a committed cadre of civil servants. The neutral civil service abhorrence to peoples demands, contradicts social justice.

The above observation of Mr. Justice V.R. Krishna Iyer (1) aptly apply to the present tragic tale of a physically handicapped lady, a victim of injustice at the alter of bureaucracy's apathy and abhorrence for God cursed handicapped.

According to Justice Iyer 'In the new order there must not be Judges who are' untroubled by the miseries of masses.'

Another eminent judge, Justice Shelat, writing foreword to the above lecture of Justice Iyer, exhibited his independent thinking, when he observed:

'Consistent with the system of parliamentary democracy the bureaucracy can have no philosophy of its own which it can enforce.' For Judiciary's role, Shelat again disagrees with Iyer and concludes:

The function of the judiciary is therefore, in a limited field and not to speculate in the hope of carrying but some object on the ground that the legislature has failed to make manifest or omitted to provide such object.>Even after recording above dissent Shelat echos Justice Iyer when he observes-

It is true that the preamble to our Constitution uses the term 'social Justice'. So does Article 38 Part IV.The concept of it, he hints at, in the following one sentence 'To discriminate positively in favour of the weak may sometimes be promotion of genuine equality'.

Making the limited agreement of Justice Iyer & Shelat as the Pivot and leaving the controversy of the two taking inspiration from Iyer but again with Shelat's limitation and restraints, let me state the tragic tale of a physically handicapped lady, who prays for 'Social Justice' in 'substantial form', from, an equitable forum of Article 226.

8. I have also dealt with why the directive principle contained in Article 41 should be respected both in letter and spirit and while discussing it, I observed as under:

The directive principles may or may not be binding, a controversy in which it is not necessary to enter ft r the purposes of this case' however, it should not be forgotten, that these directions which were given by the founding fathers represented the basic value of the society and the Constitution makers declared them that they shall be given a place of pride in Constitution. After long years of freedom struggle for human values inspired and spear headed by the dynamic leadership of the father of Nation Mahatma Gandhi and the entire history and culture of this country which form the foundation in enshrining the directive principles and fundamental rights. The principal object being to hold a judicial order where a human being would not be treated as different and an opportunity would be given for development to all in contradistinction to a privileged few. Article 41 aimed providing a right to work and the public assistance in cases of disablement also. The founding father worded Article 41 as under:

The State shall, within the limits of its economic capacity and development make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.

I had occasion to point out the high pedestal which provided Article 41 & which were enacted by the State in 1976 rules, in my judgment in S.P. Chaturvedi's case (supra). It is a matter of regret, that inspite of clear categorical pronouncement of Chaturvedi's case, the State of Rajasthan has not implemented the Rules of 1976.

9. It is a pity and exhibits utter lack of responsibility and accountability that inspite of the above two judgments on Article 41 & the Handicapped Rules 1976, nothing has been done in the present writ petition, though it has remained pending for three years.

10. Undoubtedly, the petitioner is a blind, cursed by God and nature, but the Court and the State functionaries also continued to remain blind to the human cause of providing relief to the handicapped blind citizens of this Country, even though the founding fathers took pains mentioning it as a constitutional mandate, aleast an ideal to be achieved by Article 41 of the Constitution.

11. The petitioner has chosen to remind the State by re-producing and by extracting my observations in Suraj Prasad Chaturvedi's case in para No. 11-A at para No. 7 of the writ petition, but even then no one bad any time to read them and make effort to provide some relief to the petitioner At page No. 7 of the writ petition, the petitioner has extracted the following observations of Chaturvedi's case:

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 and orthopaedically handicapped and speech defective persons. The reservation for the employment of physically handicapped persons having not been done so far, after more than 3 years of the coming into force of these rules, the, entire statute has remained dead and inanimate for all intents and purposes in the State.

I am constrained to observe that there is no escape but to deprecate it. How can a 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 aroused hopes in the mind of severe 1 handicapped persons for new avenues of employment in the spirit of Article 41 of the Constitution has not only not been enforced but has virtually been made dead.

The Court is not only competent but constitutional duty is enjoined upon the court 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.

The petitioner who is a handicapped person, would be entitled to have the benefit of such reservation in the employment either in the categories for which he has prayed or for such other categories of equally important post which may be provide 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.

It is, therefore expected that the State Govt. and its functionaries with an objective approach always remain conscious of the constitutional mandate of Article 41, notify 2% of the posts earmarked for these handicapped persons for their employment.

The respondents are directed to earmark vacancies of 2% of the posts in the State Government Department.

12. The petitioner pleaded that his case is fully covered by the above decisions but all in vain.

13. Now that about 3 years have passed this writ petition has come up for hearing on the docket of this court. But even today, the respondents have not come out with any constructive suggestions of physical, tangible, practical solution to the human problem of the petitioner.

14. Let me now mention in a nut-shell, the facts involved. The petitioner is blind undoubtedly, but he has successfully completed his graduation in Arts and LL B Course. Having completed the education, which must have been on account of some extra-ordinary dedication of the petitioner, because of this serious handicap, the petitioner found that all doors of Government, Semi-Government, any public sector or private sector are closed to him, so far as any employment is concerned.

15. Having been thrown from post to pillar and pillar to post, in various other offices, he ultimately applied for being selected as a Legal Assistant under the provisions of the Rajasthan Subordinate Service Rules, 1976. He fulfills all the qualifications mentioned in it. He, therefore, applied to the Public Service Commission for the post of Legal Assistant, but only to find that when the God has cursed him with blindness, the Public Service Commission or its functionaris choose to send a negative reply.

16. He was denied examinations. He pointed out that he is entitled to appear in the examination and take a chance. He again pointed out that 2% vacancies are reserved under the Rules of 1976. In his letter dated 20th March, 1980. he referred to the News-paper reports dated 10-11-1979 appearing in the 'Hindustan Times' and other papers regarding the judgment given by the Court, presumbly in Chvturvedi's case (supra). He claimed justice, pleaded for justice in the name of humanity. But on 15th April, 1980 dry reply came from the Rajasthan Public Service Commission that so far as the Commission is concerned it has not been informed of any such reservation for the handicapped and that the Commission is helpless to do anything in his matter. Thus, the Commission also became blind due to technicalities which always take the toll of substantial social justice.

17. A notice for demand of justice was again given in May, 1980 to all concerned reciting Article 41 of the Constitution as scripture and stating the Rules of 1976. The judgment of Suraj Prasad Chrturvedi's case (supra) was again referred to in this notice, but neither the Chief Secretary to the Government of Rajasthan to whom it was addressed, nor the Secretary Education responded to it. It is a tragic tale and sad state of affairs that no one has chosen to look into Article 41 of the Constitution or the law laid down in Chaturvedi's. case, which was repeatedly referred to by the handicapped, as Gita, Bible or Koran.

18. Mr. Dangi, the learned Counsel for the petitioner submitted that this is one of those typical tragic cases, in which inspite of series of judgments of this Court and constitutional mandate of Article 41 and the Rules of 1976, the Government has not taken any step for providing employment to the petitioner who is a handicapped. It was pointed out hat even after 2% reservation, nothing has been done so far inspite of mandate of Article 41, the Rules of 1976 and the issue of writ by this Court in Chaturvedi's case (supra) and a reminder of Miss Kum Kum Jhalani's case. The respondents should have allowed the petitioner to compete and show his talent to convince the personnel of the Commission that even the blind persons ometimes prove more than a match to those who have got eyes open, but blind mind and heart.

19. The State has not chosen to file reply, but the learned Assistant Government Advocate, Mr. Purohit, who is appearing on behalf of the Commission, submitted that under the Rules, it was not, possible to permit the petitioner to appear in the examination because Rule 4 makes a prohibition. Mr. Purohit fairly submitted that if the case would have been brought to the notice of the officers concerned personally by Mr. Dave, something might have been done by the respondents, who are committed to social justice in a social welfare State. He accused Mr. Dave of entering into rhetoric and alleged that the case was not handled properly by the petitioner's counsel. Thus Mr. Purohit exhibited all sympathy for the petitioner and volunteered that he was all for 'social justice' which gives priority to legal aid and relief to down trodden, poor disabled and handicapped.

20. Now, the court will have to exmine as to what relief can be given to the petitioner under the law, as unless the relief formulated is consistent with law, inspite of all anxiety for social justice, I have got no manner of doubt, that in the ultimate analysis justice may not truimph over law, because there is hierarchy of forums, where the legality of the writ to be issued is to be examined at the behest of State on the technical interpretation of law. Being conscious of the limitations and the fetters of this court, I may now examine whether the petitioner is entitled to get any relief.

21. No doubt, he is qualified B.A. L.L.B., and he also fulfills other qualifications. The disqualification is his blindness. At the very out set, I may mention that in Chaturvedi's case (supra), I have held that physical handicap is not disqualification even for the State Service Examinations like, R.A.S. and other allied services. The learned Assistant Government Advocate could not point out from the rules that there is any such requirement of producing a physical fitness certificate before taking the examination or before taking the interview for the post of legal subordinate services. lam therefore, of the opinion that unless, there is specific bar in the rules, which has not been shown to me, the petitioner could not have been deprived of his legal right to appear in the examination, and then depending upon the merit or reservation, if any, to appear in the interview.

22. Mr. Dangi has placed before me a notice of the Rajasthan Public Service Commission, in which the petitioner was allowed to appear in the R.J.S. examination by the assistance of any other person for writing the answers with the rider that that person would not be post graduate or law graduate. Be that as it may, obviously, there is no prohibition for appearing in the examination and the mere fact that the application as not written by the petitioner, himself, in his own hand writing is to technical too debar a handicapped from examination, particularly in the face of Article 41 of the Constitution and the Rules of 1976 in respect of handicapped persons.

23. So far as the question of reservation is concerned, Mr. Purohit has shown to me a list circulated by the Government of India, which has also been circulated in Rajasthan by the various Heads of Departments by letter dated the 14th February, 1978, in which blind persons have to be given reservation of 2% as music teachers only. This list has not been placed on record and it is difficult to point out from it immediately whether a physically handicapped person can get reservation for the post of legal assistant or not when he has got deformity of being blind. All that can be gain is that this was a list of illustrative cases and it is not known after 1978 in what manner the Head of Departments in the State of Rajasthan have decided to reserve 2% posts in various categories in their Departments.

24. It was expected that after the mandate in Chaturvedi's case (supra), the State of Rajasthan would decide 2% reservation and when this case has come up before this court, produce before it a list of such reservation.

25. Mr. Dave, the learned Counsel for the petitioner placed before me a news paper report of the speech of Mrs. Indira Gandhi (2A) the Prime Minister of India, in which she has shown considerable anxiety for the handicapped citizens and particularly blind and directed all the State Governments to provide employment to such unfortunate God cursed persons. It would be interesting to mention some of the points of this letter because it only echoes, what the earlier two judgments of this Court have said in slight different legal language.

26. This report states that Shri T. Anjaiya, Union Labour Minister has invited attention of all Social Welfare Ministers and Labour Ministers of the States, about the anxiety which has been shown by the Prime Minister for the handicapped and particularly for the blind person?. The Prime Minister is concerned that inspite of several declarations made for giving employment to the handicapped persons, nothing substantial has been done so far to achieve the object, by various pronouncement. The Prime Minister has, therefor, desired that the instructions issued in this respect to provide employment to handicapped blind persons, should be immediately implemented.

27. It was also pointed out that the Prime Minister has desired that the Monitoring section of the departments should obtain reports within 3 months about the implementation of the scheme and the decisions to provide employment to physically handicapped blind persons. It is interesting and enlightening too to find that in this letter of Shri Anjaiya, the Prime Minister has desired to overrule and override the technicalities in complying with the rules of reservation for the handicapped persons has been emphasised. It has been mentioned categorically that on technical or bogus reasons or grounds, the employment should not be refused. Ultimately, the letter mentions that the Blind Persons National Federation and other organizations for giving relief of employment to blind persons, are now working upon the formation of Central Advisory Committee and it would be the duty of this Committee to periodically examine the progress of the scheme to provide employment to the physically handicapped blind persons.

28. Mr. Dave, further placed before me a summary record of the discussions of the meeting held with the representatives of the National Federation of the Blind under the Chairmanship of Labour Minister on 4th August, 1960 in which the implementation of scheme to provide employment to handicapped blind persons was considered and emphasized.

29. According to the discussions, the National Federation of the Blind requested the Minister to indicate the time bound programme for providing jobs to all the blind persons, who were registered with the Special Employment Exchanges. A.D.O. letter was to be addressed to all the Chief Ministers drawing their attention to the Prime Minister's letter and emphasizing the need for taking all possible measures immediately to rehabilitate the blind persons registered in the Special Employment Exchanges. Various responsibilities and duties were assigned to the Home Ministers of the States, Social Welfare Ministers, Education Ministers & Labour Ministers all with a view to ensure employment to the handicapped persons.

30. Mr. Dangi also pointed out a paper printed in the news paper 'BLIND WELFARE' by the NATIONAL ASSOCIATION FOR THE BLIND with the caption, 'Employment of the Visually Handicapped Meeting the Challenge Ahead' read by Mr. Lal Adwani, himself, a blind Officer on Special Duty in the Department of Social Welfare, Government of India. With a sense of sorrow and agony, Mr. Adwani (2B) made the following note:

The foremost in the field of the rehabilitation of the visually handicapped is their non-acceptance by the community at large. To achieve progress in placing the blind in open employment or bringing into existence a net work of sheltered workshops hinges on the degree to which the needs of the blind are appreciated by the community.

31. It would be interesting that what I said in Chaturvedi's case (supra) as the apathy of the bureaucracy towards handicapped' has been described by Snri Adwani as non-acceptance of the handicapped by the community at large.

32. The wide-spread feeling of non acceptability by the community necessitated the framing of the Rules by the Government because whereas the community development schemes are inspired by object of social welfare as a social welfare State committed to the preamble to achieve equality and justice social, economic and political to all. It resulted in a legal mandate by framing of the Rules, but when those legal mandate and rules are also kept m the safe or Almirah, not to be implemented on account of non-acceptance by the community, it becomes the primary duty of this Court to enforce it by force of legal injunctions of mandate According to Maharishi Manu, 'Law is the king of Kings and Law is that which can make a weak strong. In the Vedic era, king or monarch was not above law and on violation, he could be punished like any other citizen. This is what Manu said, the destruction of law and justice bungs about the destruction of society. The protection of law and justice has a protective influence. Therefore, Law and Justice should not be destroyed. The Shatpath Brahmin (XI V.4 2.26) and the Brihad Aranyak Upnishad (1.4.14) in identical terms lays down the supremacy of the Law as under:

dk'kkZi.ka Hkosn~n.M;kS ;=kU;% izkoDrks tu% A

rc jktk Hkosn~n.M;% lgL=fefr /kkj.kk AA euq@kkk 336

The Law, is the ruler, even of the rulers and kings. Therefore, there is nothing higher than law. With the aid of the law even a weak ling overcomes the strong? (3)

33. It would not be proper to further enter into discussions about the sanction behind the above letters of the Union Labour Minister conveying the concern and agony of the Prime Minister at the apathy towards the blind, nor it would be useful exercise to enter into the results of what happened to the resolution of the National Federation of the blind under the Chairmanship of the Labour Minister, because all said and done, these are ideals, which should be achieved but, difficult to be achieved.

34. Even Prime Minister's repeated reminders of her concern for the apathy against the blind handicapped persons and their non-acceptance by the Government Departments has failed to cut any ice. The judgments of this Court one after the other have not been fully implemented so far, may be on account of stay orders from the higher courts where the State has filed appeals or, otherwise.

35. All that can be said is that the Rules of 1976 framed under the constitutional mandate of Article 41 constitution which again, was framed on the basis of the pious oaths and vows taken on Ravi beach on 26-1-1926 have not yet been partially implemented

36. Unfortunately, as the misfortune for the handicapped persons and for the lovers of law and constitution would be, in substance, the State has not shown awareness, vigilence, and acceptance to this dire human need to provide employment to the blind in substance, though is form it has been done by enacting the Rules of 1976. It is not the paper rule which can provide bread not to talk of butter, and two square meals to the disabled.

37. Without repeating the reasons which I have given in Chaturvedi's case (supra), and Kum Kum Jhelasi's case (supra) I must observe that the petitioner deserve to he employed. The failure of the commission to permit him to appear in the examination and interview as an ordinary candidate, is a failure to obey the formal law of the land and further a serious lease to appreciate the problem of the handicapped which again is protected by Article 41 of the Constitution.

38. Whether the petitioner can be appointed as a legal assistant or not, would certainly depend upon ultimate medical opinion looking to the nature of the disability of the Petitioner. Even in the Rules for physically handicapped for 1976 a provision has been made under Rule 3 that he must be eligible under these rules and is functionally able to perform the duties of the post, irrespective of the disability.

39. The question, therefore, would be whether on account of being blind a person cannot discharge the duly of legal assistant, I would not venture to give any final decision on this aspect of the case, because it is related to medical subject Suffice to say, in Chaturvedi's case (supra) I have mentioned the case of Dr. Hellen Keller. Milton, Soordas. Late Pandit Mukat Behati Lal Brargava Mr. Brail of United State of America and Mr. Sadhen Gupta, and eminent Advocate of Calcutta. It would he useful to recapitulate what I have said in Chaturvedi's case (supra) in this respect:

Dr. Hellen Keller, a world renowned lady of U.S.A. inspite of being blind, deaf and dumb, became an international figure as the champion of the handicapped. She toured the entire world and met all the statesmen. She opened institutions for the blind at various placed in the world and wrote a classic book, 'The story of my life'. 'Ralph Barton Ferry' in his introduction to this book wrote, it is true that Kellen 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 tven 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 world through her finger tips and her achievement of difficult goals and her loving kindness have made her life an inspiration and a blessing to countless people and world over. Elener Roosevelt wrote, 'in her life and happiness in life, Miss Keller has taught an unforgetable lesson to the rest of us who have not had such difficulties to overcome.'

Some of the best poets of the world happened to be blind, 'Soordas, and 'Milton' have made poetry great by their brilliance and richness of thoughts and language. Edison, a great scientist and 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', a Mangolian warrior, was lame. The speech impediment of 'Winston Churchil' never prevented him from being a great parliamentarian; and leading England as war time Premier even when Adolf Hitler and Naziz of Germany ran sacked England by waves of bombardments in second world war.

Mr. Brail of U.S.A. a blind had a great distinction of inventing script for the blind. With the aid of this Brails' script, Mr. Sadhen Gupta, an eminent advocate of Calcutta rose to status of eminent Parliamentarian in the Indian Parliament and is functioning and discharging the duties of Additional Advocate General in West Bengal. The achievement of Mr. Mukat Behari Lal Bhargava, a renowned eminent advocate of India is phenomenal and wonderful, as even without 'Brails script' his excellent feets of oratory and advocacy inspite of his being blind, are being based on his commendable miraculous memory which may be remembered by Jurist', Parliamentarians, historians and above all handicapped as 'Bhargawa Memory', like 'Brail's scripts' for all times to come. In addition to being one of the most talented, brilliant and eminent advocate, he was one of the founder father of Constitution in the Constituent Assembly and eminent parliamentarian for about two decades from Rajasthan.

Yet another handicapped person, Mr. Harideo Joshi, having ah amputed hand became an effective Chief Minister of Rajasthan.

The above illustrations of Dr. Hellen Keller, Soordas, Milton, Edison, Byron, Ranjit Singh and Taimoor Lung, Winston Churchil and Brail, Sadhen Gupta, Bhargava and Joshi, are a few out of lakhs of victims, of course of God, cruelty of nature or man, accidents or disease, who belied all handicaps, crossed all hurdles are reached the top of eminence and success. The distinctions which they drew, the wonders and miracles of their, amply repells the objection of the respondents that physically handicapped persons can not discharge functions of R.A.S. or R.B.S. officers. (3)

40. It would be for the respondents to' examine whether the petitioner is able to perform the duties of the Legal Assistant irrespective of his disability of his blindness but while doing so, they must remember that I have said above giving examples of Mr. Brail of U.S.A., Late Shri M.B.L., Bhargava. Sachen Gupta.

41. The illustrious example of Shri Triloki Nath Joshi, Chief Editor of Rajasthan Revenue Divisions, Rajasthan taw Times, and Rajasthan Law Reporter, who inspite of his visually handicap has impressed the law w rid by his splendid performance in editing the above law journals should not be lost sight of by the respondents, while considering the important question whether a visually handicapped person can successfully perform the duties of legal assistant. By and large, the example of Shri T.N. Joshi of Jaipur should be enough to hold that the petitioner is eligible under the Rules of 1976 as he would be functionally able to perform the duties of the post of legal assistant irrespective of being visually handicapped.

42. Any technically rejection of the petitioner by stereotyped order would not only be a serious violation, clear contravention and flagrant disregard of the directions given by this Court now and earlier but also disobedience of what has been directed by the Prime Minister in the above letter extracted above, wherein, the Labour Minister Shri T. Anjaiya wrote to all the State Ministers that the Prime Minister is disgusted at the ejection of the employment facilities to the blind handicapped persons on technical, frivolous, vexatious grounds.

43. It is necessary, and it is expected that this matter would not be left to petty officer of the State but the senior top brass would take care to see that the matter is considered objectively.

44. It is further directed that if for any reason on an objective consideration of the criteria mentioned in Rule 4 regarding functional suitability to perform the duties of legal assistant, it is found that it would be impossible to absorb the petitioner on this post, then it would be the duty of the respondents State to provide him some alternate post, in which undoubtedly he is eligible, within a period of 3 months from the receipt of a copy of this judgment.

45. While examining the case of the petitioner, the respondents should remain alive to Rules 8 and 9 which provide relaxation in age and concessions in the matter of giving marks in the examination.

46. Before parting with this judgment, I would like to mention that whether inspite of the judgment in Chaturvedis case 2% reservation, which was later on announced as 3% for the handicapped persons, has been actually reserved in all the Departments or not, is still a big question mark. It was expected in this writ petition that those statistics facts would be available but since the State has not filed any reply and has not joined issues, it is directed that the respondent No. I would ascertain the implementation of these Rules and whether 2% or 3% reservations have been done in all the Departments and if so, for what posts.

47. It is farther directed that such a list prepared by the Appointments Secretary of the State, having complete details should be submitted to this Court within a period of three months, in the present case, and this must have particular, reference to the blind handicapped persons. This list should further be published in all-important news papers of Rajasthan and its Rajpatra, so that the handicapped can know, what posts are reserved far them and can apply for the jobs The list should be sent to all relief centres of handicapped also. Wide publicity should be given.

48. Pinspite of three successive judgments of this Court from 1979 to 1983, and the above referred letters as instructions of the Prime Minister and Apex organisations, objectively is not achieved in providing employment to these unfortunate disabled handicapped, poor and down trodden, then, the. citizens of India will view Article 41 and the Rules of 1976 as a mere rhetoric and pronouncements, like mirage of desert, which will not put even one single extra grain of wheat into their nearly empty bowls nor provide jobs to pop up their failing sense of dignity of human beings nor bring any flesh on their starving skeleton of bones.

49. Even the All India Reporters & Service Journals, continues to be blind to these unfortunate handicapped by non-publication. The handicapped throughout India never know the beneficial interpretation & new horizons of legal help which they can get, on account of expansion of new dimensions of 'Social Justice' of which disabled should be the first beneficiary.

50. All tall talk of 'public interest litigation' and 'legal aid to poor'; is hollow noise of empty vessels, if no one comes forward to espouse the cause of disabled to make them able and if the State provides legal aid only by keeping these unfortunate persons in suspense about their fate before higher hierarchies, one after the other, where also the State functionaries prolong the pendency for unduly long time adding insult to injury of unfortunate disabled making them crippled. What a poor Homage to Article 4 of the Constitution of India and the high sounding preamble to our Constitution proclaiming-

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens;

JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity; and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty sixth day of November, 1949, do HEREBY ADOPT, ENACI AND GIVE TO OURSELVES THIS CONSTITUTION.

51. I am compelled to summarise the said plight of said disabled persons under these rules, in 3 short sentences, as a deduction of my 3 successive judgments, in the following words:

(i) the enactment of Article 41 and rules of 1976 for disabled and handicapped, are one for which we can justly be proud of;

(ii) its present condition of non-implementation does it no credit;

(iii) and finally, if its non-implementation persists in its present, form, its future will be one of shameful oblivion, non-tolerable to both, founding fathers and the disabled people.

It was in the above background that I have prefaced this judgment with the' caption of a 'triology' of blind, I may conclude now explain this triology in other 3 short sentences:

(i) the petitioner is visually handicapped (blind) cursed by God if one believes in it Or the nature, if one is a non-believer;

(ii) the respondent State's most of the functionaries due to their non-acceptance and apathy towards the handicapped are exhibiting colour blindness being responsive to affluent intelligent or vocal segments and indifferent cold non-responsive towards the handicapped poor blind persons;

(iii) the Court of law proverbially blind is developing blindness due to inordinate delay even in responding to handicapped as the first two cases of Choturvedi & Miss Kumkum Jhalani are still pending since the year 1979 upto 1983 in Division Bench & the present case has been disposed of by this Court after three years.

52. It is made clear that the above are not aspersions on any individual person or persons but is poor exhibition of our institutional failures in spite of change of persons from the year 1976 to 1983.

53. Consequently, the writ petition is allowed as indicated, with costs of Rs. 200/-.


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