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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:

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.

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 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.