G.M.LODHA, J. - (1.) A triology 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 Godeso of justice again being blind. The relief claimed in this writ petition is again rotating in a blind lane because the State has choosen to remain blind and not to respond by giving reply or relief to a blind citizen, even though about 3 years have passed since petitioner knocked the doors of the temple of justice. The tell tale of woe and suffering of the petitioner would have created companion and sympathy in any one's heart but inspite of tall claim of giving relief to handicapped & enactment of the Rules in 1976 for reservation to the physically handicapped people of Rajasthan, the State has not choosen 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 of 1976, a reality rather than a mirage. That this should happen even after two successive judgments of this Court in (1) Suraj Prasad Chaturvedi Vs. State of Rajasthan, decided on 6 -10 -1979, and (2) Miss. Kum Kum Jhalani Vs. State of Rajasthan is still more alarming. In Suraj Prasad 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 a charity or pity for the poor or handicapped, but it 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 Art. 41 of the Constitution. Let it not be 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". 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 matters of providing relief to those who have been cursed by the nature of 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 mustard 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 father is committed to do justices -social, economic and political to all citizens of the State." I have further observed as under : "The yawning gap between legislation and its implementation has not only handicapped but cripped humanitarian relief of employment intend 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 letters". "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 the Departments; who constitute 'top brass' of bureaucracy; apathy towards this great social welfare legislation remained static, and 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 and situation which poses the billion dollar question, what are about? as posed by Justice Iyer in the prohibition case P.N. Kaushal vs. Union of India (1). What Justice Iyer said about Art. 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 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." The echo of this judgment was again visible and audible in Miss Kum Kum Jhalani's case.. I commenced the judgment with Justice Krishnna Iyer's theme of social 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.
(3.) TO remind the State and its functionaries of the feeling of serious anguish and agony of this Court of account on non -observance of the constitutional mandates and virtually scrapping of the Reservation Rules of 1976,1 may again state what I said in Miss Kum Kum Jhalani's case : - "The prospect of realising social justice is remote unless Article 39 (b) & (f) go into militant action and unless there is a committed cadre of civil servants. The natural civil service abhorrence to peoples demands, contradicts social Justice." The above observation of Mr. Justice V. R. Krishnna 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 misseries 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 peculate 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." 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." 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 for 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 ushering 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 opportunity would be given for development to all in contradistinction to a privilege 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 high pedestal provided by Art. 41 and which were enacted by 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. ;