R.A. Sharma, J. - (1.) :- 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 has 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 Services 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 10-1 1-1979. 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.B. 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 employment of the Corporation at the time of his death and as such no appointment can be made on compassionate ground.
(3.) 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 Constitution. In this connection reference may be made to Pargana Adhikari v. Ramesh Chandra Verma 1994 RD 174 wherein a Division Bench of this Court, after upholding the objection to the effect that the writ petition was cognizable by Division Bench and, as such, learned single Judge was not competent to decide it, decided the controversy 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 in as much as while sitting in Special Appeal against the decision given by the learned single Judge, we are exercising the same power under Article 226 of the Constitution for the purposes of the disposal of the Special Appeal. We have, therefore, proceeded to decide the controversy raised in this Special Appeal on merits.";