The interpretation of statutory provisions to determine entitlement to pensionary benefits and the impact of delay in approaching the court on such entitlement.

( 1 ) PETITIONER has filed this writ petition under article 226 of the Constitution of India seeking a direction against the respondents, to restructure the pensionary benefits of the petitioner from the date of his retirement i. e. 28. 2. 73 on the same terms and conditions on which the pensionary and other related benefits of the employees of the similar status in the schools run by the appropriate authority who have retired after 31. 12. 73 and onwards have been structured.

( 2 ) THE controversy in the present petition arises as a result of the Delhi School Education Act, 1973 (for short the said Act) having come into force on 31,12. 1973. The. petitioner retired on 28. 2. 1973 prior to the said Act coming into force and opted for restricted pension scheme Under triple, benefit scheme. The relevant sections of the said section 2 (i):

existing employee means an employee of an existing school who is employed in such school immediately before the commencement of this Act, and includes an employee who was employed in such school for a period of not less than twelve months immediately preceding the 2nd day of September, 1972. Section. 10: the scales, of pay and allowances medical facilities, pension, gratuity, provident fund and other prescribed benefits of the employees of a recognised private school shall not be less than those of the employees of the corresponding status in Schools run by the appropriate authority. "

( 3 ) THE learned counsel for the petitioner has contended that on bare reading of section 2 (1) of the said act it is apparent that while the first portion of the said" sub-section deals with the employees in employment at the stage of the Act coming into force, the second part deals with the employees who were not employed when the Act came into force. The second portion comes into play when the employee was employed in such school for a period of not less than twelve months immediately preceding the 2nd day of september, 1972.

( 4 ) THE learned counsel for the petitioner contends that thus the provisions of section 2 (i) would be applicable to the petitioner and the petitioner would thus be entitled to be treated, as existing employee. Learned counsel for the respondent, on the other hand, contends that pension has not been specifically included under section 2 (i) and the petitioner having availed of scheme of pension on his retirement should not be entitled to the benefits its Under section 10 of the said Act. Learned counsel for the respondent also contends that there has been gross delay and laches on part of the petitioner, in approaching the court as the petitioner retired, in February, 1973 and the first representation has been made by him on 25. 11. 86 and the petitioner approached the court in 1988. This submission is opposed by learned counsel for the petitioner who contends that it was the duty of the respondents to have applied the provisions of the Act and At best this should preclude him from entitlement for pensionary benefits for a period before 25. 11. 83 since the first representation was made on 25. 11. 86.

( 5 ) I have considered the rival contentions advanced by learned counsel for the parties. A reading of section 2 (i) clearly shows that legal fiction has been applied to include certain employees who on plain reading of the meaning of existing employee would not have been so included. Thus apart from the employees who are employed with the School immediately before the commencement of the Act employees who are employed with such School for a period of 12 months preceding 2. 9. 1972 are also included in the definition of an employee. Admittedly, the petitioner has worked for a period of 12 months prior to the date of commencement of the act. In. the said. section no exception has been made that with this definition of existing, employee will not apply so far as provision of pension is concerned. In the absence of any exception having been made, I am of the considered view