JUDGMENT A.K. Yog, J.
1. Present writ petition, under Article 226, Constitution of India, is filed at the instance of one-Praveen Verma son of Trilok Nath Srivastava pleading inter alia amongst others, that he was appointed on ad hoc basis against one of the Class III posts in District Judgeship, Etawah vide appointment order dated 6-7-2002/Annexure-1 to the petition; appointment letter shows that it was a fixed term appointment for a maximum period ol six months and liable to be terminated even before expiry of said period in case of availability of regularly selected candidate; petitioner possesses Diploma in 'Business Administration with Computer Application' and has experience (para 6 and 7 of writ petition); it is alleged that he was allowed to work against one of six posts of Computer Operator; appointment was extended vide order dated 29-1-2003, 16-3-2004, 5-10-2004, 15-1-2005 and 15-4-2005 (Annexures-4, 5, 6 and 7 respectively to the petition); extension letter shows that there were no post of Computer Operator under relevant rules in the District Judgeship, Etawah; perusal of relevant annexure- particularly Annexure-7 mentions- "Ad hoc term of appointment of all the above named four employees are extended till 30-6-2005 in anticipation of sanction.... It is made clear their services may be terminated at any time without notice...."; an advertisement was issued or 18-11-2004 by concerned respondent/Annexure-8 to the petition; said advertisement clearly mentioned that general candidate and OBC were required to pay Rs. 1007- whereas handicapped and Scheduled Caste/Scheduled Tribe required to pay Rs. 407- as examination fee; Advertisement further indicated that (a) persons working on ad hoc basis in District Judgeship can also apply for appearing in the said examination; and (b) those who had applied in pursuance to earlier advertisement made in the year 2002 need not apply afresh; petitioner belongs to handicapped category (locomotive disability); petitioner has not filed photocopy of his application nor categorically stated that he had applied against handicapped category; petitioner seeks his claim for being considered for selection against handicapped category (locomotive disorder) in view of provisions of U.P. Public Service (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993 as well as subsequent amended provisions of the said Act and also with reference to the provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1955; Petitioner has also fundamental right to information under Constitution but respondents did not give information in order to make selection of candidates on extraneous consideration; during arguments reference is also made to the provisions of Right to Information Act, 2005; petitioner made serious allegations against the then Administrative Judge of the District Judgeship concerned, District Judge, other Judicial officers vide para 31 to 39 of the writ petition; it is alleged that work to operate Computers subsists and petitioner has worked for more than 2-1/2 years, he has nurtured legitimate expectation of being continued in service/regularization; act of the employer in terminating his services is arbitrary, vacancies of advertisement of 2000 could not be filled along with vacancies shown on the basis of advertisement of 2004; applicants against posts of 2000 Advertisement could not apply against posts of 2004 Advertisement and on that basis petitioner has prayed for following reliefs:
PRAYER
2. It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to:
(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 1-6-2005 (Annexure No. 11 of the writ petition) passed by the respondent No. 2 District Judge, Etawah.
(ii) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 26-5-2005 which has not been given to the petitioner, by summoning the record.
(iii) Issue a writ, order or direction in the nature of certiorari quashing the impugned selection made in pursuance to the advertisement dated 18-11-2004 (Annexure No. 8 to the writ petition) and advertisement dated 2-5-2000,
(iv) Issue a writ, order or direction in the nature of certiorari quashing the advertisement dated 18-11-2004 (Annexure No, 8 to the writ petition) and advertisement dated 2-5-2000.
(v) Issue a writ, order or direction in the nature of mandamus directing the respondent to regularize the services of the petitioner on the post of computer operator or any other post as Class-III employee.
(vi) Issue a writ, order or direction in the nature of mandamus directing the respondent to show the petitioners the marks secured by the petitioners.
(vii) Issue a writ, order or direction in the nature of mandamus directing the respondent to show the answer books of each subject for which the petitioners appeared in the examination and the answer books of the selected candidates to the petitioners for each examination they have appeared.
(viii) Issue a 'writ, order or direction in the nature of mandamus directing the respondent to evaluate the answer books of the petitioners as well as of the selected candidates from any independent examiner.
(ix) Issue any other suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case,
(x) Allow the writ petition with costs in favour of the petitioners.
3. A counter affidavit has been filed on behalf of Respondent No. 2/District Judge, Etawah (sworn by Umesh Chandra, the then Additional District Judge, Etawah). All the factual averments, having bearing on the case, have been denied.
4. At the outset we may state that serious allegations of malafide against the then Administrative Judge of the High Court of District Judgeship, Etawah, District Judge, Etawah, other Judicial Officers constituting 'Selection Committee' and members of Staff (contained in para 31 to 39 of the petition) have been categorically denied vide paras 24 to 32 of the counter affidavit. The District Judge and other concerned have certified in writing that they are not related to any of the selected candidates in the examination in question. Curiously, no rejoinder affidavit has been filed probably for the reason petitioner known that such averments were made-without ascertaining their veracity and for the purpose of prejudicing the Court.
5. In our opinion, making serious allegation against Hon'ble Administrative Judge and learned District Judge of District, Etawah (Head of Department) by an employee of same Judgeship without verifying and ascertaining correctness of the facts which had serious consequences of stigmatizing Administration, cannot be approved. No wonder, by making such allegation, regular appointment has been delayed since this Court has passed interim order in the connected writ petition.
6. It is alleged by the petitioner that in the advertisement dated 2-5-2000 (against which petitioner had applied) and subsequent advertisement 18-11-2004 there was no mention for reservation for physically handicapped persons. Copy of the said advertisement is Annexure-8 to the petition. There is a clear mention of reservation. Averments made in para-25 of the writ petition, on the face of record, are mis-leading and the same have been categorically denied in para-18 of the counter affidavit of Respondent No. 2.
7. Now we take up next submission.
8. In paras 26 and 27 of the petition, it is alleged that there are about 200 Class III employees in District Judgeship, Etawah but only one of them, appointed prior to 1980, is physically handicapped and petitioner is entitled to be considered for appointment under 'handicap category'. Paras 26 and 27 of the writ petition have been again categorically denied vide paras 19 and 20 of the counter affidavit. Respondent No. 2 admits that one handicapped person is working against prescribed quota of handicap (in Class III) in District Judgeship, Etawah. Petitioner has made no attempt to provide required statistics/details like cadre strength, etc. or that the petitioner had ever approached or applied in writing to the concerned authority for obtaining requisite information in this respect but it is denied.
9. Averments made in para 19 and 20 of the counter affidavit have not been controverted by filing rejoinder affidavit even though copy of the said counter affidavit was received by the petitioner way back on 14-7-2005 i.e. 6-1/2 months before.
10. Another argument with regard to right to information, learned Counsel for the petitioner has placed reliance upon the decision reported in the case of People's Union for Civil Liberties (PUCL) and Anr. v. Union of India and Anr. (2003) 4 Supreme Court Cases 399 (paras - 82, 83, 84 & 85). Aforesaid paras, for sake of convenience, are reproduced:
82. Freedom of speech and expression, just as the equality clause and the guarantee of life and liberty, has been very broadly construed by this Court right from the 1950s. It has been variously described as a "basic human right", "a natural right" and the like. It embraces -within its scope the freedom of propagation and interchange of ideas, dissemination of information -which would help formation of one's opinion and viewpoint and debates on matters o public concern. The importance which our Constitution-makers wanted to attach to this freedom is evident from the fact that reasonable restrictions on that right could be placed by law only on the limited grounds specified in Article 19, not to speak of inherent limitations of the right.
83. In due course of time, several species of rights unenumerated in Article 19(1)(a) have branched off from the genus of the article through the process of interpretation by this Apex Court. One such right is the "right to information ". Perhaps, the first decision which has adverted to this right is State of U.P, v. Raj Narain. "The right to know ", it was observed (at SCC P. 453, para 74) by Mathew, J. "Which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security.
It was said very aptly: (SCC p. 453, para 74)
74. In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries.
84. The next milestone which showed the way for concretizing this right is the decision in S.P. Gupta v. Union of India in which this Court dealt with the issue of High Court Judges' transfer. Bhagwati, J. observed: (SCC p. 275, para 67) The concept of an open government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression guaranteed under Article 19(1)(a). Therefore, disclosure of information in regard to the functioning of Government must be the rule and secrecy an exception,.
85. People's right to know about governmental affairs was emphasized in the following words: (SCC p. 273, para 64) No democratic Government can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of the Government, It is only if people know how Government is functioning that they can fulfill the rule which democracy assigns to them and make democracy a really effective participatory democracy.
11. Before we deal with the law laid down in the case of People's Union for Civil Liberties (supra), it may be mentioned that said decision was rendered before promulgation of 'Right to Information Act, 2005'. Aforesaid case was with respect to 'election matter'. Apex Court has no where laid down that in case a person possesses right to information, it has to be furnished without asking for it.
12. Law has now been codified with the enactment of 'Right to Information Act, 2005.' However, 'right to information' under Sections 3 and 4 of Chapter II of the said Act, 2005 has to be read along with Section 6 of the said Act, 2005, which reads:
6. Request for obtaining information -(1) A person, who desires to obtain any information under this Act, shall make a request in writing or through electronic means in English or Hindi or in the official language of the area in which the application is being made, ...
13. Interestingly, the pleadings on the relevant aspect of matter are conspicuously absent and the learned Counsel for the petitioner has failed to show from record, that there is even a whisper in the petition that the petitioner ever requested or approached the concerned authority for obtaining information with regard to the strength of the cadre, etc. In absence of requisite pleadings, the above argument is of no avail.
14. In para-40 of the writ petition, petitioner has alleged that he had correctly answered most of the questions asked in the paper but in spite of his correct answers he has not been selected. It is, as usual and generally a grievance out of frustration. The petitioner alleges that he had verified the answers given by him and specifically states that he must secure more than 90% marks in each of the papers. He complains that answer books have not been shown to him. The petitioner categorically states that the answers given by the petitioner are far better than the answers given by the Respondent Nos. 3 to 8 and for this purpose the answer books may be summoned and re-examined/re-evaluated by independent examiner. Respondent No. 2 has denied the averments made in para-40 of the writ petition vide para-33 of the counter affidavit. No such claim can be entertained as it amounts to 'fishing evidence' and also in absence of provision/Rule for re-evaluation if it is permitted, entire examination process will be exposed and for which there is no infrastructure.
15. We further notice that Respondent No. 2 in para-33 of the counter affidavit has categorically mentioned that the petitioner has secured 81 marks out of 200 marks whereas the last candidate of the waiting list relating to general candidate has secured 119 marks out of 200. After such information being disclosed it was incumbent upon the petitioner to have controverted the same by filing rejoinder affidavit and demonstrated before this Court that Selection Committee had acted arbitrarily in the matter.
16. Last but one argument, of the petitioner is with regard to clubbing of posts which were published in the year 2000 with the posts advertised in the year 2004. The said argument, though attractive at a flash, has no depth and deserve to be rejected.
17. According to para-25 of the writ petition, the Advertisement in question -against which petitioner had applied- was issued on 2-5-2000 and indicated 22 vacancies. By clubbing those vacancies in the vacancies shown in the Advertisement dated 18-11-2004-added advantage was given to the earlier candidates (in response to Advertisement of 2000)- which also included the petitioner. By clubbing 11 vacancies (of 2004 Advertisement) petitioner apparently had added advantage of being considered against larger number of posts. Besides the above, petitioner did not challenge the Advertisement which was published in November, 2004 and chose to apply against the same and appeared (without objection) in the Examination. Having done so, the petitioner cannot be permitted to take a 180° and challenge 'selection process' after having failed therein.
18. In support of his contention, learned Counsel for the petitioner placed reliance upon the case of Smt. Shakuntala Shukla v. State of U.P. and Ors., 1998 (1) A.W.C. 505 (para 3) wherein learned Single Judge relying on the decisions in the case of Union of India v. Vipin Chandra Hira Lal and Syed Khalid Rizvi v. Union of India observed that selections should ordinarily be held every year, and clubbing of the vacancies of several years in a combined select list is illegal.
19. The said decision has not taken into account 'the effect' of a candidate not challenging at the relevant stage with promptness (as in the present case) and waited for result and having failed therein approached this Court at belated stage which cannot be appreciated or approved by the Court in exercise of jurisdiction under Article 226, Constitution of India.
20. In the last, learned Counsel for the petitioner argued that ad hoc employees also cannot be ceased or terminated arbitrarily in case workload justifies continuance. Learned Counsel for the petitioner has placed reliance upon the case of Madan Singh and Ors. v. State of Haryana and Ors. (2006) 1 Supreme Court Cases 693.
21. The said case is clearly distinguishable on facts as the facts of the above case are not attracted in the facts of the instant case. On the contrary, learned Counsel for the Respondent Nos. 1 and 2 has placed reliance upon the case of Commissioner, Assam State Housing and Anr. v. Purna Chandra Bora and Anr. (1998) 6 Supreme Court Cases 619 (para 4) wherein the Apex Court has observed:
4. The first respondent was appointed temporarily and until appointment of Accounts Assistant was made on a regular basis. He was discharged from service on the day on which five persons were appointed after selection. It is not for the first respondent to challenge the selection on the ground that no written test was held nor was it necessary in these proceedings for the High Court to look at the order-sheet of the selection. The five persons were on probation when appointed, but that did not mean that they were not appointed on regular basis. We find no merits in the case of the first respondent, as upheld by the High Court.
22. This view of the Apex Court has been consistently followed. A person who has been engaged de hors prescribed selection-procedure in law and merely given opportunity to work on ad hoc basis, or daily wager or muster roll for a fixed term, cannot claim any right for seeking regularization unless he also appears and compete with others when regular selection process takes place.
23. Learned Counsel for the petitioner has, however, also referred to the judgment and order dated 25-5-2005 passed by learned Single of this Court in Civil Misc. Writ Petition No. 14876 of 2005- Ashok Kumar and Ors. v. State of U.P. and Ors.
24. In the said case, as conceded by learned Counsel for the petitioner, posts were created for making appointment on contract basis. Learned Single Judge observed that by having worked for 5-6 years, the circumstances show that there was some sort of legitimate expectation cherished by the petitioners and there are also some instances of regularization in the same office and making reference to Apex Court observation in Piara Singh's case (Supreme Court) to the effect ' that an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee' held that action of the respondents in removing the daily wagers by a contract employee is arbitrary.
25. We are informed that the said judgment is under challenge in Special Appeal No. 704 of 2005.
26. In view of the above, we find no merit in the petition.
27. Writ Petition is accordingly dismissed.
28. However, in view of the fact that the petitioner is a handicapped person, we make no order as to costs.