VERMA, J. - (1.) WHAT does the term `salary' means for the purpose of deduction of contributory provident fund etc. Is it the basic salary or the allowances as well. It is the only point involved in the present case and on the basis of such defi-nition of `salary', the petitioner challenges the Statute 41 of the University Statute to be declared as ultravires of the Employees Provident Fund and Misc. Provisions Act, 1952, with the further prayer that the petitioner be afforded the retiral benefits in accordance with law by considering the full salary of the petitioner and not the basic salary.
(2.) THE facts are not disputed. THE petitioner had joined the service of University of Rajasthan as Professor in the Department of Law in the year 1978. He had served upto 31. 5. 1987 when he had superannuated. He was re-appointed for a period of one month upto 30. 6. 1987. At the time of retirement he was holding the post of Principal, Law College and Head of the Department and Dean of the Faculty of Law. He was not paid the contribution made to his provident fund account in accordance with the provisions of the Employees Provident Fund and Misc. Provisions Act, 1952 (for short the Act) and, therefore, he had to approach this court in Civil Writ Petition No. 1384/88 which was ultimately decided on 19. 4. 1994 by Mr. Justice G. S. Singhvi and a direction was issued to the respondent University to pay to the petitioner the interest @ 12% p. a. on the amount of pension, provident fund and gratuity payable to the petitioner on the date of his retirement w. e. f. 1. 6. 1987 till the date of actual payment. The petitioner has also challenged the vires of Statute41 in the above-said writ petition in regard to the legality of Statute. The petitioner had also challenged the legality and vires framed by the University for contribution of provident fund. The Hon'ble Judge had not decided the matter on the ground that such matter is to be decided by the Division Bench of this court at that time and it was left to the petitioner to challenge the same by filing a separate writ petition. The Hon'ble Judge had observed as under:- `petitioner's plea regarding improper contribution of PF, may or may not have some merit but determination of that issue directly involves adjudication of the validity of the Statutes framed by the University and in my opinion in sitting in the Single Bench, I have no jurisdiction to go into the vires or constitutionality of the statutes framed by the University. The Statute framed by the University cannot but be treated as a piece of separate delegated legislation and a Single Bench of this court is not entitled to make any adjudication on such issues. `in regard to the legality of the Statutes framed by the University for contribution of PF, I leave it open to the petitioner to challenge the vires of statute by filing a separate writ petition before a Division Bench. ' Therefore, the present writ petition has been filed. It is stated in the written statement that the word `salary' had not been clarified in the rules and there was hardly any occasion ever arisen for clarifying the definition of `salary' and, therefore, the University was all along been taking the basic pay of the employee as salary since the inception of the University itself and the contribution made by the University was always calculated on the basic pay and the subscription also deducted from the salary of the employee on the said basic pay. It is stated in the written statement that the introduction of concept of dearness allowance and dearness pay was not there at the time of constitution of the University. It has also been admitted that the Syndicate vide its resolution No. 32 dated 23. 4. 1988 had clarified the term of `salary' or `emolument', which included the pay, personal pay, special pay, dearness pay, if any. However, this resolution was not made applicable to the case of the petitioner who had retired earlier to the said decision in the resolution. The gratuity rules were also amended by the University and the emoluments where-ever it occurred mean emoluments which an employee was receiving immediately before the date of his release from University service on superannuation or retirement. The Syndicate had amended the rule by the resolution as under:- `the amount of gratuity payable in the case of permanent employees of the University who leave University service on superannuation or on retirement after extension in service or on termination after 1. 09. 1986 shall be calculated at the rate of one-fourth of the `emoluments' of a University employee for each completed six monthly period of qualifying service subject to a maximum of 10 times the `emoluments' or Rs. 75,000/-whichever is less. '
(3.) THE benefit of the above-said amended rule was extended to the petitioner so far the gratuity is concerned as has been admitted in the written statement. It is stated that for the reason that the petitioner had not opted either under the old rules or the new rules, therefore, the petitioner was granted the gratuity as per new rules. It is stated that the P. F. Act was not applicable to the employees of the University as the University of Rajasthan had been incorporated under the Act of Legislature known as University of Rajasthan and Section 38 of the University Act provides that the University shall constitute a provident fund for the benefit of its officers, teachers and clerical staff, in such manner and subject to such conditions as may be prescribed by the Statute. It is further submitted that U/s 16 of the Act, the provisions of the Provident Fund Act are not applicable to the University and as such the definition as mentioned in the Provided Fund Act are not applicable to the case of the petitioner. A preliminary objection has also been taken to the effect that the petitioner had already filed the above-said writ petition and for the reason the matter was left open, the petitioner should not have filed the present writ petition. Rejoinder has been filed. It is stated that the Act defines `salary' which includes the dearness allowance and dearness pay etc. and it is further submitted subject matter relates to the Concurrent List (List III) of the Seventh Schedule to the Constitution of India and no statute or Ordinance framed by the University can over-ride the central law of Provident Fund Act. ;