Hon’ble Surya Prakash Kesarwani, J.—Heard Sri Kshetresh Chandra Shukla, Sri Pankaj Verman, Sri Ajay Sharma, Sri Surendra Nath Ojha, Sri Anil Kumar, Sri M.W. Faridi, Sri A.K. Trivedi, Smt. Gajala Bano, Sri Anand Srivastava, Sri Anil Bhushan, Sri Satyendra Kumar Mishra, Sri B.P. Yadav, Sri K.B. Srivastava, Sri Sachin Upadhyay, Sri Arvind Srivastava, Sri Krishna Bihari, Sri Saurabh Pratap Singh, Sri Ajay Sharma, Sri Lal Babu Lal, Sri Vidya Bhushan Srivastava, Mrs. Anupama Parasar, Sri Siddharth Khare, learned counsels for the petitioners and Sri Vivek Mishra, learned Additional Advocate General assisted by Sri B.P. Singh Kachhwah, learned Standing Counsel for State-respondents and Sri Samir Sharma, learned counsel for the U.P.S.R.T.C.

2. This bunch of writ petitions were heard on 20.5.2014, 21.5.2014, 22.5.2014, 26.5.2014, 27.5.2014, 28.5.2014 and 29.5.2014. On 21.5.2014, the following questions were framed for deciding the controversy involved in these writ petitions :

QUESTIONS

(i) Whether the writ petitions are highly belated and hit by principles of latches?

(ii) Whether the post held by the petitioners are pensionable post, and if so which are the relevant Government orders, rules, regulations which confers right on the petitioners for pension?

(iii) Whether the petitioners who were members of the Employees Provident Fund Scheme and received E.P.F. amount on their retirement are entitled for pension?

(iv) Whether the petitioners who received gratuity for non pensionable post may claim pension?

(v) Whether the claim of the petitioners is hit by principles of approbate and reprobate ?

BRIEF FACTS

Briefly stated the facts of the present case are as under :

3. The erstwhile Uttar Pradesh Roadways was created in the year 1947 as a temporary department of the State Government for providing transport service facilities to traveling public. On 16.9.1960 a Government Order was issued providing service conditions of Roadways employees inasmuch as the service conditions of Roadways employees were completely different to the service conditions as existing in other Government departments. On 28.10.1960 another Government order was issued by the State Government providing for pension to permanent employees of the erstwhile U.P. Government Roadways department. As per paragraph 2 of this Government order it was issued under note 3 of Article 350 of Civil Service Regulations, prescribing that remaining non gazetted employees of U.P. Roadways would be entitled for benefits under the Employees Provident Fund Scheme. On 1.6.1972 the U.P. State Roadways Transport Corporation (hereinafter referred to as the corporation) was created under Section 3 of the Road Transport Corporation Act, 1950 (hereinafter referred to as the Act, 1950) and all the employees of the U.P. Roadways were treated on deputation in the corporation.

4. Another Government order dated 5.7.1972 was issued by the State Government whereby assurance was given to the employees of the erstwhile U.P. Government Roadways that their service conditions in the corporation will not be inferior as compared to their service conditions prior to their absorption in the corporation. On 20.4.1977 Article 350 of Civil Service Regulations was amended with retrospective effect. However, no amendment was made in the note 3 of Article 350 which provides that the non gazetted post in Government technical industrial institution is not qualified for pension. On 19.6.1981 the corporation framed service regulations under the power conferred under of Section 45(2)(C) of the Act, 1950. On 28.4.1982 U.P. Government Roadways (Abolition of Post and Absorption of Employees) Rules, 1982 was framed providing for absorption of all employees of the Government Roadways in the services of the corporation after three months. Thus, the employees of the Government Roadways were absorbed in the corporation on 28.7.1982.

5. According to the corporation all the petitioners were temporary employees and thus they we