- (1.) HEARD learned Counsel for the parties.
(2.) THIS appeal is directed against the judgment and order of the learned Single Judge dated 1st February, 2008 passed in writ petition No. 6626 of 2004 (Peer Baksha v. Regional Manager, U. P. State Road Transport Corporation, Kanpur and others) (hereinafter referred to as the 'u. P. S. R. T. C. ') The facts giving rise to the present special appeal are as follows : The writ petitioner namely, Peer Baksha, who was employed as Driver in the U. P. S. R. T. C. Feeling aggrieved by the order, dated 29th November, 2003, whereby the services of the said writ petitioner were retrenched on the ground that he had failed to achieve the requisite physical standard prescribed for driving the vehicle. The writ petition was entertained by this Hon'ble Court on 19th February, 2004 and an interim order was passed requiring the employers to provide employment to the petitioner till he attains the age of superannuation. It is admitted on record that in compliance of the interim order of this Hon'ble Court, the writ petitioner was re-engaged and was permitted to continue till the age of superannuation i. e. 31st January,'2007. . The writ petition came up for consideration before the learned Single Judge on 1st February, 2008, when the writ petitioner had already attained the age of superannuation. The learned Single Judge after noticing the aforesaid fact, has been pleased to dispose of the writ petition with a direction that the writ petitioner shall be treated to be in continuous service till the date of superannuation i. e. 31st January, 2007 and shall be paid all monitory benefits as a consequence of the aforesaid direction and ignoring the order of compulsory retirement dated 29th November, 2003, referred above. It is against this order of the learned Single Judge, the present special appeal has been filed by the employers namely, U. P. S. R. T. C.
(3.) LEARNED Counsel for the appellant has vehemently contended that the right of the petitioner to continue was dependent upon the legality or otherwise of the order dated 29th November, 2003, which were specifically challenged in the writ petition and merely because the writ petitioner has been permitted to continue under an interim order of the High Court and it will not mean that the order whereby his services were retrenched came to an end and without deciding the writ peti tion, the learned Single Judge could not have directed that the employee would be treated to be in continuous service till the age of superannuation and the order terminating his employment is to be ignored. He submits that the consequential benefits and the consequential action which is to be taken in terms of the order dated 19th November, 2003 had to be examined by the learned Single Judge on merits and it is only if the Hon'ble Court was satisfied that the order dated 29th November, 2003 was not legally sustainable, the direction could have been passed for treating the petitioner in employment till he attains the age of superannuation and payment of consequential benefits upto the said date would have arisen. Since the aforesaid exercise has not been undertaken by the learned Single Judge, the'order impugned in the present special appeal cannot be legally sus tained. The contention raised on behalf of the appellant is opposed by the learned Counsel for the writ petitioner on the ground that under the interim order of this Court, he was reinstated by the U. P. S. R. T. C. itself and has actually worked up to 31st January, 2007. He, therefore, submits that the Division Bench may not inter fere with the order so passed by the learned Single Judge.;