Hon'ble Ritu Raj Awasthi, J.:-

Heard Sri Mahesh Chandra for the appellants and Sri Ghaus Beg for the private respondent.

The special appeal has been filed with a delay of one month and twenty six day. Sri Ghaus Beg has no objection in condoning the delay.

We also feel that the delay is not such so as to deprive the appellant of hearing on merits. The delay is, therefore, condoned.

The U.P. State Road Transport Corporation (hereinafter referred to as the Corporation) has preferred this special appeal against the judgement and order dated 25.8.2010 passed by the learned Single Judge, by means of which the writ petition filed by the private respondent (hereinafter referred to as the respondent) claiming pension has been allowed, with a direction that he shall return the amount of Contributory Fund, received by him.

The brief facts of the case are that the respondent was appointed on the post of Conductor on 1.11.51 in the erstwhile U.P. Government Roadways (hereinafter referred to as the Roadways). He was promoted on the post of Junior Clerk w.e.f. 7.9.58 in the office of the Assistant General Manager at Charbagh Depot. His promotion was regularised on 16.4.60, as is evident from the office order dated 3.3.61.

On 29.5.62, the State of Uttar Pradesh took preliminary steps to constitute a statutory Corporation under Section 50 of the Road Transport Corporation Act, 1950 and consequently the U.P. State Road Transport Corporation was constituted with effect from 1.6.72.

The respondent was promoted as Senior Clerk on 8.4.86 and was posted at City Bus Service Depot, Lucknow in the office of the Assistant Regional Manager (previously designated as Assistant General Manager). He retired while working on the post of Senior Clerk on 31.10.91.

The respondent did accept the Employees' Provident Fund (EPF) amount on retirement but claimed that he was entitled to pension, as he was sent on deputation from the erstwhile Roadways, where his post was pensionable and, therefore, in terms of Government order of 5.7.72, his conditions of service cannot be inferior to the conditions, which were in force and applicable to him, when he was working as a Government servant.

Not being able to get the desired relief, the respondent preferred the present writ petition claiming the aforesaid relief of pension. Counter affidavit was filed by the Corporation, wherein his claim was denied.

The learned Single Judge after considering the pleadings and the specific case of the parties, has allowed the writ petition, holding that the respondent was entitled for pension. Taking note of the fact that the respondent had already received the EPF amount, the learned Single Judge issued a further direction that this award and payment of pension would be subject to refund of the money received under the EPF account.

Sri Mahesh Chandra, learned counsel for the Corporation mainly argued that by virtue of the Government order dated 16.9.60, the benefit of pension, which was otherwise available to the employees who were working in the Roadways, was taken away, therefore, on the date of transfer of the respondent to the Corporation i.e. when he was sent on deputation, since he was not working on a pensionable post, he was not entitled for pensionary benefits.

In furtherance of the aforesaid plea, it has also been urged that by virtue of the Government order dated 5.7.72, the only requirement was that the service conditions of the employees who are sent on deputation from the Roadways to the Corporation, would not be inferior to the one which they were enjoying as Government servants and since respondent was not having the benefit of pension in the Roadways, he cannot claim any pension.

We have gone through the Government order dated 16.9.60 and we find force in the argument of the learned counsel for the respondent Sri Ghaus Beg that the aforesaid Government order firstly cannot be made applicable retrospectively and secondly it does not apply to the erstwhile Roadways' employees, who were

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