Honble VERMA, J.–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. (3). 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 Honble 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 Honble 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 Honble Judge had observed as under:- `Petitioners 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. (4). Therefore, the present writ petition has been filed. (5). 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. (6). 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. (6). 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. (7). 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. (8). 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. (9). Rejoinder has been filed. 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. (9). 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. (10). It is further stated that even by way of notification issued in 1982, the employees of the University have been included under Item 48 of the Appendix I in the list of Non-factory Industries to which the Employees Provident Fund Act, 1952 has been made applicable u/s 1(3)(b) of the Act vide notification S.O. 986 dt. 19.2.1982 published in Gazette of India Part II, S. 3(ii) dated 6.3.1982 which reads as under:- APPENDICES APPENDIXI List of Non-factory Industry to which the Employees Provident Funds Act, 1952 has been made applicable under Section 1 (3) (b). S.No. Name of Industries Date of application Notification No. and date 1 2 3 4 48. (i) any University; 6.3.1982 S.O. 986 dt. 19.2.1982 [Pub. in Gaz. of India Pt. II. S.3(ii), dated 6.3.1982] (ii) any college, whether or not affiliated to a University; (iii) any school, whether or not recognised or aided by the Central or a State Government; (iv) any scientific institution (v) any institution in which research in respect of any matter is carried on (vi) any other institution in which the activity of importing knowledge of training is systematically carried on. (11). In view of the notification issued by the Government of India, the Universities have been included in the establishment for the applicability of the Provident Fund Act and thus the objection of the respondent that the Provident Fund Act is not applicable to the University has no basis. (12). It is admitted by the University that there was no definition of salary provided by the University in the Statute i.e. it was not clear whether it should be basic only or the full salary. (12). It is admitted by the University that there was no definition of salary provided by the University in the Statute i.e. it was not clear whether it should be basic only or the full salary. But the University by convention had been taking the basic salary as the total salary and had been making contribution accordingly on the basis of basic salary of the employee. The University immediately after retirement of the petitioner did consider this concept of salary and included into the salary the other allowances as well. The definition as provided under the Act in regard to salary cannot be ignored. If the Provident Fund Act has been made applicable to the University vide notification reproduced above, the salary/wages as defined under the Provident Fund Act shall have to be made applicable and not the convention of the University. Basic wages has been defined under Section 2(b) of the Act which reads as under:- `2(b) `basic wages means all emoluments which are earned by an employee while on duty or on leave or on holidays with wages in either case in accordance with the terms of the contract of employment and which are paid or payable in case to him, but does not include- (i) the case value of the food concession; (ii) any dearness allowance that is to say, all cash payments by whatever name called paid to an employee on account of a rise in the cost of living, house-rent allowance, overtime allowance, bonus, commission, or any other similar allowance payable to the employee in respect of his employment or of work done in such employment; (iii) any present made by the employer; (13). Even though there is hardly any necessity to cite any authority on the point in regard to applicability of the Provident Fund Act to the Educational institutions in view of the notification issued by the Government of India, still the petitioner relies on a case of M/s D.A.V. College and others vs. Regional Provident Fund Commissioner and others (1) and Andhra University vs. Regional Provident Fund Commissioner of Andhra Pradesh & Ors. (2). (2). Yet in another case in Gestetner Duplicators Pvt. Ltd. vs. Commissioner of Income Tax, West Bengal (3), the question had arisen whether in the expression `salary as defined in Rule 2(h) of Part A of the Fourth Schedule to the Act includes Commission payable by an assessee to his or its employees in terms of their contracts of employment and whether the proposed provident fund contribution paid by the employer pertaining to the commission paid by the employer to the sales-man was an allowable/deduction under the Income Tax Act. It was observed as under:- `The expression `salary has been defined in Section 17 of the Act as well as in Rule 2(h) of Part A of the Fourth Schedule to the Act but each of the said definitions serves a different purpose. Section 17 defines the expression `salary for purposes of Secs. 15 and 16 which deal with `salaries as a head of income, and under clause (iv) of sub-section (I) that expression includes: ``any fees, commissions, perquisites or profits in lieu of or in addition to any salary or wages. In part A of the Fourth Schedule to the Act, which contains rules relating to Recognised Provident Funds the word `salary has been defined in Rule 2(h) thus: `Salary includes dearness allowances, if the terms of employment so provide, but excludes all other allowances and perquisites. Since we are concerned in this case with contributions made to a recognised Provident Fund and deductions thereof under Section 36 (I)(iv) it will be the definition of `salary as given in Rule 2(h) of Part A of the Fourth Schedule to the Act and not the one given in Section 17 that will be applicable and will have to be considered. Under Section 36(I)(iv) the deduction allowable is in respect of: ``any sum paid by the assessee as an employer by way of contribution towards a Recognised Provident Fund or an approved superannuation fund, subject to such limits as may be prescribed for the purpose of recognising the Provident Fund or approving the superannuation fund, as the case may be. (14). The relevant portion of Statute 41, which is under challenge, reads as under:- `Provident Fund 41. (14). The relevant portion of Statute 41, which is under challenge, reads as under:- `Provident Fund 41. (1)(i) There shall be a Provident Fund for the benefit of the employees of the University; and (ii) Every employee of the University (a) holding a permanent substantive appointment, (b) appointed for a fixed period of not less than three years, (c) appointed on probation and (d) appointed temporarily for a period of not less than six months shall be entitled and required to subscribe to the Provident Fund. Part-time or officiating employees shall not be so entitled. (5) The rate of subscription shall be 9% of the monthly salary and the amount calculated on this basis shall be deducted from the monthly salary of each employee: Provided that a subscriber may at his option subscribe at a rate higher than 8-1/2% of his monthly salary and the amount calculated on this basis will be deducted from the monthly salary of the subscriber. (6) The University shall (i) in the case of each subscriber drawing a salary of less than Rs. 1,000/-p.m. make a monthly contribution at the rate of 11% of the subscribers salary and (ii) in the case of each subscriber drawing a salary of Rs. 1,000/-p.m. and above make a monthly contribution at the rate of 9%. Provided that with effect from the date notified by the Syndicate the contribution payable by the University shall be reduced by 1/2% in case of an employee who is eligible/opts for payment of Gratuity under `Payment of Gratuity to Employees Rules. (15). The Statute nowhere defines the `salary and the University on its own had taken the salary to be the basic salary only without any allowances. The University did realise its mistake at late stage in 1988 and also amended the Statute by including certain allowances etc. in the amended definition of `salary. The petitioner has a cause to be aggrieved. The University instead of contributing towards the salary as defined under the Provident Fund Act, was only considering the basic pay to be the salary by excluding the allowances. in the amended definition of `salary. The petitioner has a cause to be aggrieved. The University instead of contributing towards the salary as defined under the Provident Fund Act, was only considering the basic pay to be the salary by excluding the allowances. There is nothing in the Statute which need to be struck down but it is to be supplemented by saying that the word `salary in the Statute shall mean the salary along with all allowances as has been defined u/s 2(b)(ii) of the Provident Fund Act and the University shall be bound to make its contribution according to its share as per the total salary as per definition and the petitioner shall be entitled to the difference of the contribution made by the University in this regard by getting the contribution made by the University refixed in the CPF account. Any claim, so far gratuity is concerned, is not tenable as the petitioner has been granted the gratuity under amended definition of salary. The claim in regard to refixing the gratuity is rejected as having become infructuous. (16). for the reasons and discussions mentioned above, the writ petition is allowed to the extent that the salary shall include the definition as has been provided and defined in the Provident Fund Act which Act was made applicable to the employees of the University in 1982 and the University was bound to make the contribution on the total amount of salary as per definition and not on basic pay only. The petitioner shall be entitled to the difference of contribution. The University shall complete the exercise within a period of three months and shall pay to the petitioner the remaining balance within one month after calculations without any interest and if the respondent is unable to implement the order within the aforesaid order of four months, it goes without saying that the petitioner shall be entitled to interest @ 12% p.a. (17). With the above-said observations, the writ petition is allowed. No costs.