Guman Mal Lodha J.
1. The prospect of realising social justice is remote unless Articles 38 and 39(b) & (f) go into militant action and unless there is a committed cadre of civil servants. The neutral civil service apathetic to peoples demands, contradicts social justice.'
2. The above observations of Mr. Justice V.R. Krishana Iyer Some Half Hidden Aspects of Indian Social Justice: By V.R. Krishna Iyer Page VII 1980 Edition aptly apply to the present tragic tale of a physically handicapped lady, a victim of injustice at the alter of bureaucracy's apathy abhorence for God cursed handicapped.
3. According to Justice Iyer 'In the new order there must not be judges who are untroubled by the miseries of the masses' Some Half Hidden Aspects of Indian Social Justice: By V.R. Krishna Iyer Page VII 1980 Edition
4. 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 Parliamentry 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 out some object on the ground that the legislature has failed to make manifest or omitted to provide such object.
5. Even after recording above Shelat echoes 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.
6. 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.
7. 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. Miss Kum Kum Jhalani, physically handicapped lady has filed this writ petition. In her petition she has stated that the Governor of Rajasthan in exercise of the power conferred upon proviso to Article 309 of the Constitution of India promulgated the Rajasthan Employment of the Physically Handicapped Rules, 1976 (which will herein after referred to as the Rules), with a view to instal hopes of better future in the lives of the handicapped persons. These rules came into force with effect from 25th September, 1976. There rules were declared to have effect notwithstanding anything contained in any other rules or order promulgated under Proviso to Article 309 of the Constitution. The petitioner comes in the category of physical handicapped an defined in Clause (c) of Rule 2 of the Rules. Clause (c) of Rule 2 reads as under:
The medical certificate produced by the petitioner reads as under:
Certified that Miss Kum Kum Jhalani d/o G.L. Jhalani is suffering from paralysis of right upper limb. She falls under category of orthopaedically handicapped.
The petitioner is working as Assistant in the Industrial Finance Corporation of India at Kanpur, where she joined the post on 5th October, 1979. Prior to this she worked as Statistical Assistant in Rajasthan State Electricity Board. In March, 1978 the Rajasthan Public Service Commission invited applications for the combined competitive examination for the recruitment to the posts of Rajasthan Administrative and Allied Services. The petitioner applied and she successfully qualified in the written examination and appeared in the personal interview in the month of June 1979.
9. Since the Rajasthan Public Service Commission's form did not prescribe any mention of physical handicapped and no reservation was done in the rules, inspite of promulgation of the Rules in 1976 and judgment of this Court in Suraj Prasad Chaturvedi v. State of Rajasthan and Ors. 1979 WLN 562, the petitioner approached the Director Social Welfare Department and got her name registered in the Special Cell of Physical Handicapped persons in the Employment Office.
10. The petitioner was interviewed in June 1979 for Rajasthan Administrative Service and she obtained 120 marks out of 200 and thus she secured 511 marks out of 1000 and crossed the eligibility dead line and became entitled to be considered for the two percent open to be reserved for Handicapped in the R.A.S.
11. However, the respondents have not appointed the petitioner. The petitioner made several representations and personally met the Minister of State for Social Welfare and Tourism, Chief Secretary to the Government of Rajasthan etc. and ultimately all these efforts proved futile as the respondents have simply ignored the petitioner.
12. The petitioner has therefore, prayed that under Article 226 of the Constitution a direction should be given to the respondents to appoint her in the RAS cadre.
13. Mr. Mathur, appearing on behalf of the petitioner vehemently submitted that inspite of promulgation of the Rules in 1976 which were also grossly delayed because the founding fathers in 1949 issued a directive in Article 41, the State of Rajasthan after three decades functioning of the Constitution and Directive Principle Jurisprudence has not given effect to these Rules. It was pointed out that serious exception to this inaction of the Rajasthan State was taken by this Court in Suraj Prasad Chaturvedi's case on October 6, 1979. Bat even that concern shown by this Court has failed to have the desired effect. Mr. Mathur submits that the entire country and the Government of India is celebrating this year as International year of Handicapped in consonance with the International commitment of this country but the pity is that handicapped lady who has secured more than 50 percent marks both in written and in interview, inspite of handicap is being thrown from pole to pillar and pillar to pole. This tragic, pathetic, hair raising, society rocking & conscious shocking misbehaviour of the State functionaries, inspite of the judicial verdict should cause a serious concern. The fact that handicapped lady is required to approach this Court under Article 226 of the Constitution' when the Constitution itself guaranteed though by directive principle only a relief to such case under Article 41 which enjoined upon the State as early as in 1949, is really a matter which shocks judicial conscience of the Courts also.
14. The Directive Principles may or may not be binding, a controversy in which it is not necessary to enter for the purposes of this case, however, it could 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 the Constitution. After long years of freedom struggle and 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 right. The principal object being to hold a judicial order where a human being would not be treated as different and opportunity would be given for development to all in contradistinction to a few. Article 41 provides a right to work and 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 & 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 underserved want.
I had occasion to point out the high pedestal which provided Article 41 and which were implemented by the State in 1976, in my judgment in S.P. Chaturvedi's case. It is a matter of report, that inspite of clear categorical pronouncement of Chaturvedi's case, the State of Rajasthan has not implemented the Rules of 1976. In this context the submission of Mr. Mathur that in this historical year, the State is moving with small speed, without any concern cannot be brushed aside.
15. The stock defence put up by the State in the reply is that a a physical handicapped is not suitable for the RAS cadre. I had occasion to repeal this submission in Chaturvedi's case in the following terms:
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 function, 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 travelling on a very thin line of validity, is 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 various other spheres of life.
Dr. Hellen Keller, a word renowned lady of the U.A.S. 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 statesmen. She opened institutions for the blind at various places in the world and wrote a classic book 'The history of life'. Ralf Marton 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 world through her finger tip and her achievement of difficult goals and her loving kindness have made her life an inspiration & a blessing to countless people all the word over. Eleanor Roosevelt wrote' in her life, and happiness in life Miss Keller has taught an unforgettable lesson to the rest of us who have not had such difficulties to over come.
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 & language. Edison, a great scientist & inventor was deaf, Byron, a great poet of England was lame. Maharaja Ranjeet Singh a great warrior & administrator was handicapped in eye sight 'Taimoor Lung, Mangolian warrior, was lame. The speech impediment of 'Winston Churchill' never prevented him from being a great parliamentarian, and leading England as the war time Premier even when Her Hitler & the Nazis of Germany ransacked 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 Brail's script, Mr. Sadhan Gupta, an eminent advocate of Calcutta rose to the status of an 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 Beharilal Bhargava, a renowned & eminent advocate of India is phenomenal and wonderful, as even without 'Brail's script his excellent fact 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 founding father of the Constitution in the Constituent Assembly and eminent parliamentarian for about two decades from Rajasthan.
The above illustrations of Dr. Hellen Keller, Soordas, Milton Edison, Byron, Ranjit Singh and Tamoor Lung Winston Churchill and Brail, Sadhan Gupta, Bhargava & Joshi are few out of lakhs of victims of the curse of God, cruelty of nature or man accidents of disease who belied all handicaps crossed all hurdles and reached the top of eminence and success. The distinctions which they crew, the wonder and miracles of theirs amply repells the objection of the respondents that physically handicapped persons cannot discharge functions of the RAS or RES officers. Primarily it is for the authorities mentioned in clause (7) and other Rules of these rules to examine each category of service but so far as RES and RAS generally is concerned, it can be said without fear of contradiction that a physically handicapped persons falling in this category can very well discharge the function of an educationalist, in much more important cadre, than the RES only. An orthopeadically 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 or a Lecturer or a Professor, similarly in the RAS 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 not 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 given only for the purposes of illustration.
In this view of the matter, as I have mentioned above, the State Government would be travelling 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 constitutional mandate of Article 41, notify 2% of the posts ear marked for these handicapped persons for their employment
There was some discussion and debate during arguments, on the point where a person 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 handicapped after employment, can also be given advantages of these provisions. Of course the persons who are handicapped earlier and who want fresh employment are primarly the persons for whom these rules have been enacted. Thus, both the categories of the handicapped persons who either are handicapped earlier to the employment & under-employment under these rules or those who get physically handicapped during the employment can avail of the 2% employment, which includes promotion also.
The above discussion expressly clinches the issue so far as the State's objection about appointment of physically handicapped person in the RAS is concerned. In taking the same objection again the respondents have shown scant respect for a judicial verdict of this Court. So long as the decision of Chaturvedi's case (supra) continues to be good law, having not been reversed by any larger bench, the State functionaries should not have repeated the same objection in the same judicial form. I am constrained to make these observations because the State which is committed to give relief to disabled persons by Article 41 of the Constitution and even after framing of the rules in 1976 have chosen to raise before this Court again to repeat the outdated submission that handicapped cannot be taken in the R.A.S. cadre.
16. I could have appreciated that for a particular handicapped person a particular objection based on peculiar infirmities of his physique is taken and that would have been objective way, and the Court would have certainly examined both to scrutinise that objective doing, that, stock stero typed arguments by the defence and outdated and already rejected submissions have been made that in the RAS cadre handicapped persons cannot be taken. I have no hesitation in repelling it again for the second time under expectation that such attitude would not be taken by the State any more in future unless of course law laid down in Chaturvedi's (case) is reversed by some judgment or watered down.
17. In Chaturvedi's case I have observed:
The yawning gap between legislation and its implementation has not only handicapped but crippled the humanitarion relief of employment intended to be given to the physically handicapped persons, in Rajas-than, by the Rajasthan Employment of the Physically handicapped Rules, 1976, hereinafter called' the Rules of 1976', making the rules 'dead letter'.
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 24 posts for handicapped after more than three years, inspite of fact that this period witnessed an important political change. The Head of Departments; who constitute 'top brass' of bureaucracy; apthy towards this great social welfare legislation remained static, & unchanged. The dogmatic approach, the snail moving lethargy, and the inhuman indifference bordering on abhorence and hatred for God cursed physically handicapped, continues unabated. Such is the tragic pathetic, and situation which poses the billion dollar question what are we about? as posed by Justice Iyer in the prohibition cause P.N. Kushal 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.
A physically handicapped petitioner could not get relief from alleged administratively and mentally handicapped respondents and wants employment relief from this Court. The respondents, submission is that 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 constitution limitations
Before parting with this judgment, I may again observe that in matter of providing relief to those who have been cursed by the nature or God and are physically handicapped, the respondent State and its functions should take a very liberal and beneficial attitude of the entire matter. This case should not be treated as a legal battle between citizen & the State, because one who is already handicapped and has mustered up courage to come to this Court, should be respected by the State which represents all the fortunate, privileged & unprivileged rich & poor, highly placed persons & the down trodden. Such physically handicapped persons who are lowest in the ladder require best of the attention of the State which is a special welfare State & which according to the Constitution given by the founding fathers is committed to do justice social economic and political to all citizens of this State.
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 enactment of this law was made only for the purpose of public consumption for preaching and propoganda and not for it a implementing it and giving relief to those who really deserve.
This is one of these case far and few between which has come to light to this Court and has been commented upon but there are thousands and thousands of citizens poor, down trodden, less privileged, unresourceful who can never approach the court for getting relief. If the State takes this judgment in the right perspective indicated above, fordoing social justice and acts with speed and promptness, this physically handicapped petitioner would 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 indicated above. The petitioner would get costs from the respondents.
18. The admancy of the State functionaries to insist on the rejected defences by 'putting old wine in new bottle' deserves further concern. God erased handicapped should not he humiliated by proclamation of rules without intention to effart to implement them. A good Govt. should respect international commitment, and call of humanity to reduce their suffering. It is a pity that by such frivolous defences the State had added insult to injury of phsically handicapped.
19. Mr. Mathur who argued the case initially was subsequently followed by Mr. Heman Dass on behalf of the State, both of them were confronted with the above situation that the respondents could not have flouted the judgment of this Court without obtaining a reversal on it or a stay order from a larger bench.
20. They did not show courage to accept obvious and enhance majesty of law by advising the State accordingly. Contrary to it, an argument was then made, as a last resort after the facts were distated, without any bedrock or foundation, in written reply, that even if the two percent vacancies are meant for handicapped for the RAS cadre the petitioner cannot be appointed as in 1979 only 30 vacancies were there. Mr. Heman-dass pointed out that in 1977 there were 50 vacancies and in 1978 there were 30 vacancies and in 1980 there are another 30 vacancies. The submission is that Mr. Chaturvedi has been appointed in the R.A.S. in pursuance of .the judgment of this Court referred to above and according to numerical counting of 2 percent Miss Kum Kum could not have been appointed. I am not impressed with the submission of the respondents. Firstly because if it should have been such an importance defence to deprive the petitioner who has already passed the written examination and crossed the minimum qualification, then the respondents must not have missed it in the written reply to show the actual figures year wise. They cannot be treated as factual and genuine.
21. Even assuming it be so by the year 1980 that figure certainly is 180 and therefore, there should be no difficulty to appoint the petitioner in pursuance of the directions of this Court.
22. Yet another last submission made by respondents that since her right upper limb is suffering from paralysis she would not be able to discharge the duty of R.A.S. As pointed out in my earlier part of the judgment there are several posts on which any person like petitioner can function. The petitioner has secured more than first class marks in the subject of history which also goes to show that she can write very well. I am of the opinion that in any case this would not come in the way of the petitioner from discharging the functions in the R.A.S. cadre.
23. I am, therefore, of the opinion that writ petition deserves to be accepted. The petition is therefore, accepted with costs. Respondents are directed to appoint the petitioner in the R.A.S. cadre within a period of one month from today. It would be of course open to the respondents to absorb her in the quotas of 1978 or 1979 as it suits them.