MAHFOOZ HUSSAIN KHAN Vs. STATE OF U P

JUDGEMENT

(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.

(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. .