- (1.) R. A. Sharma, J. Sri A. B. Mishra, father of Sri Aviral Kumar Mishra, petitioner-respondent here, was an employee of U. P. State Road Transport Corporation (hereinafter referred to as the Corporation ). He was removed from service on 7-10-1974. He filed a suit against the order of his removal, which was later on transferred to the U. P. Public Service Tribunal, in view of the provisions of U. P. Public Services Tribunal Act, 1976. The claim of Sri A. B. Mishra was allowed by the Public Services Tribunal on 10-11-1979. Aggrieved by the said order the Corporation filed a writ petition (No. 886 of 1980) before this Court. During pendency of the writ petition Sri A. B. Mishra died and his heirs and legal representatives were substituted in his place in the writ petition. This writ petition was allowed and the matter was remanded to the Public Services Tribunal for decision afresh on merits in accordance with the observations made by a Full Bench of this Court in Writ Petitions No. 1511 of 1977 and 3971 of 1978. On 7-2-1990 the respondent here, who is son of late A. S. Mishra, made an application for his appointment on compassionate ground. No appointment having been made, he filed a writ petition before, this Court which had been allowed by the learned Single Judge on 27-8-1992. The learned Single Judge has directed the respondents to appoint the petitioner either on the post of Booking Clerk or any other suitable post for which he is entitled within two months in accordance with his qualification. The Corporation, being aggrieved by the judgment of the learned Single Judge, filed this Special appeal.
(2.) LEARNED counsel for the appellant has made two submissions, namely, (i) at the time when the writ petition was decided, it was cognizable by a Division Bench and as such it was not open to the learned Single Judge to allow the writ petition ; and (ii) late Sri A. B. Mishra, father of the petitioner-respondent, was not in emyloyment of the Corporation at the time of his death and as such no appointment can be made on compassionate ground. Learned counsel for the appellant has not placed any rules or any order of the Hon'ble Chief Justice before us, to show that on 27-8-1992 when the writ petition was allowed by the learned Single Judge the writ petition was not cognizable by a Single Judge and only a Division Bench had the jurisdiction to hear such matters. That apart, allowing the special appeal on this ground will only result in duplication of the proceedings, because while sitting in special appeal we exercise the same power under Article 226 of the Consti tution. In this connection reference may be made to Pargana Adhikari v. Ramesh Chandra Verma, 1994 RD174 wherein a Division Bench of this Court, after upholding the objection to the effect that the writ petition was cogaizable by Division Bench and, as such, learned Single Judge was not competent to decide it, decided the controversy involved therein on merits. Relevant extract from the said decision of the Division Bench is reproduced below : "we are also of the opinion that it will mean only duplication of proceedings inasmuch as while sitting in Special Appeal against the decision given by the learned Single Judge, we are exercising the same under Article 226 of the Constitution for the purposes of the disposal of the Special Appeal. We have, therefore, pro ceeded to decide the controversy raised in this Special Appeal on merits. " The first contention, as such, has to be rejected. The object of Dying in Harness Rules is to provide financial assis tance to the family of the servant, who had died in harness and it is at the time of death that such help is required. No appointment on compassionate ground, as such, can be made several years after the death of the employee. In this connection reference may be made to the decision of a Division Bench of this Court in Harvansh Sahai Srivastava v. State ofu. P. and others, 1990 AWC 383, wherein it was laid down as under : "counsel for the petitioner has, however, urged that the cause of action in the case of the petitioner arose when he became major and obtained the Bachelor of Arts degree for being appointed on a Government post. We are, however, of the opinion that the cause of action would arise on the death of the person who died in harness. The clear intention of the Rules is to provide assis tance to the family of the deceased who was a Government servant and has died in harness. It is at that time that the help is required by the family. By no stretch of imagination can it be said that after more than 9 years of the death of the Govern ment servant the dependants can seek benefit of the Rules. "
(3.) SUPREME Court in Umesh Kumar Nagpal v. State of Haryana, 1994 (4) SCC 138, has also laid down that the object of the granting compassionate appointment is to enable the family of the deceased to tide over sudden crisis and such an appointment cannot be made merely on the ground of the death of an employee in harness. Financial condition of the family of the deceased, being relevant consideration, has also to be looked into before making such an appointment. As the father of the respondent had died in 1983 and the respondent had made application in 1990 for appointment, there was no justification for making appointment on compassionate ground, after such a long time. Learned Single Judge was, thus, not justified in issuing writ of mandamus directing the Corporation to appoint the respondent to the post of Booking Clerk or any other suitable post, within two months. As the respon dent was not entitled to of appoint on compassionate ground several years after the date of death of his father, it is not necessary to go into the second contention raised by the learned counsel for the appellant. This appeal is allowed. The judgment of learned Single Judge is set aside. In view of the facts and circumstances of the case there shall be no order as to costs. Appeal allowsd. .;