G. M. 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 abhorrence to peoples demands, contradicts social justice. "
(2.) 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," (1) (1) Some half bidden Aspects of Indian Social Justice--V. R. Krishna Iyer. Page VII 1980 Edition. 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 lyer 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. " 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. "
(3.) 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. " 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 him by 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 install hopes of better future in the lives of the handicapped persons. These rules came into force with effect from 25th September, 1976. These 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 as defined in clause (c) of Rule (2) of the Rules. Clause (c) of Rule (2) reads as under: "orthopaedically handicapped" 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. Who 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 79. Since the Rajasthan Public Service Commission's form did not prescribed 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 vs. State of Rajasthan (1) 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. ;