- (1.) ALOKE Chakrabarti, J. Admitted facts in the present case are that the petitioner was appointed as routine grade clerk on 10-8- 1970 by the U. P. State Electricity Board and was promoted to the post of Junior Noter and Drafter and there after to the post of Senior Noter and Drafter on 30-12-1985. The Public Service Commission, U. P. Issued an advertise ment in year 1986 for a appointment of seven Inspectors of offices in the Administrative Reforms Department along with the other posts. The advertise ment provided that the candidates must be permanent Government servant with at-least 15 years continuous service. The petitioner claiming himself to be duly qualified for such appointment, made ap plication and was selected and was issued appointment letter dated 13-9-1988. The petitioner made some representations seeking certain clarifications as regards the counting of period of service under the said Electricity Board while considering the benefits in respect of new employ ment. By order dated 3-2-1989 the ap pointment of the petitioner was cancelled and challenging the same this writ petition was filed.
(2.) THE respondent Nos. 1 and 3 filed counter-affidavit and a separate counter-affidavit was filed by the respondent No. 2. THE petitioner filed rejoinder affidavit. Learned Counsel for the petitioner contended that the petitioner disclosed from very beginning that his service under the U. P. State Electricity Board was the basis of the claim of the petitioner as regards his having qualification under the advertisement of remaining Government servant for 15 years. The appointment letter itself indicated that the petitioner was described as an employee under the U. P. State Electricity Board at Gorakhpur. Learned Counsel for the petitioner contended that in such admitted factual back ground the respondents could not cancel the appointment of the petitioner on the ground that the petitioner was not a Government servant by reason of his ap pointment under the U. P. State Electricity Board and such cancellation of appoint ment without giving any opportunity to the petitioner is in violation of the prin ciples of natural justice. Mr. VM. Sahai, learned Counsel for the respondent No. 2, Public Service Commission, U. P. contended that the law is clear that an employee under the U. P. State Electricity Board is not a Govern ment servant and appointment of the petitioner on such admitted facts was ap parently illegal and as such cancellation of such appointment by the impugned order is in so way illegal and as the petitioner has not been able to show that his service under the U. P. State Electricity Board was an employment under the Government making him a Government servant, any opportunity if given to the petitioner, will amount to empty formality. Learned Counsel further contended that in such circumstances quashing of the impugned order will amount to giving life to the illegal appointment and as such the petitioner is not entitled to any relief.
(3.) LEARNED Counsel for the petitioner referred to various provisions of Electricity (Supply) Act, 1948 and in par ticular Sections 5,10,78 and 81 there of as also Articles 309, 310 and 311 of the Con stitution of India. On the basis of the aforesaid legal provisions, learned Coun sel for the petitioner contended that the post held by the petitioner under the U. P. State Electricity Board was a civil post and the petitioner was a Government servant for more than 15 years. 6, Mr. VM. Sahai, learned Counsel for the respondent No. 2, refers to the judgment in the case of State of Gujarat v. Raman Lal Keshav Lal, AIR 1984 SC 161 and contended that in view of the discus sion in the said judgment the petitioner cannot he held to be a Government ser vant while in employment under the U. P. State Electricity Board. 7, In view of the admitted facts the law as argued by the respective'parties has been considered. None of the provisions of the said Electricity (Supply) Act, 1948 as referred to by the petitioner indicates that by virtue of the employment under the U. P. State Electricity Board the petitioner became a Government servant. The relevant observations were made in the case of State of Gujarat (supra) which runs as follows: "27----Several factors may indicate the relationship of master and servant. None may be conclusive. On the other hand, no single factor may be considered absolutely essential. The presence of all or some of the factors, such as the right to select for appointment the right to appoint, the right to terminate the employment, the right to take other disciplinary action, the right to prescribe the conditions of service, the nature of the duties performed by the employee, the right to control the employee's manner and method of the work, the right to issue directions and the right to determine and the source from which wages or salary are paid and a host of such circumstances, may have to be considered to determine the existence of the relationship of master and servant. In each case, it is a question of fact whether a person is a servant of the State or not. " 8, The provision of the said Act relied on by the learned Counsel for the petitioner relates to the members of the Board and not the employees under the Board. Considering such legal position as appears from the law referred to by the learned Counsel for the petitioner and the law decided in the aforesaid case of State of Gujarat (supra ). I am of the opinion that the petitioner was not Government servant while he was an employee under the State Electricity Board. 9. In view of the aforesaid finding, I am of the opinion that quashing of the impugned order will only amount to revival of illegal appointment. Petitioner while was an employee of the U. P. State Electricity Board, a separate legal entity, did not hold a civil post under the State Government. Petitioner has not shown any material justifying sending back the matter before the authority to decide the matter afresh. No question of facts have been shown by the petitioner which re quire a decision on evidence. 10. In view of the aforesaid findings the writ petition is dismissed. There will be no order as to costs. Petition dismissed. .;