The total quantum of benefits to employees under the Employees Provident Fund and Misc. Provisions Act, 1952, must not be reduced as a result of the applicability of the Act, even if the rate of contribution is reduced.

( 1 ) THE challenge in this writ petition is to the Provident Fund which is being contributed in case of the employees of Sardar patel Vidyalaya (hereinafter REFERRED TO to as the said School ).

( 2 ) THIS petition has been filed by some of the teachers of the school. There is also an application filed by the Karamcharis of the school for intervention. We have allowed the application (C. M. 5810/91) for intervention and have heard Counsel for the petitioner and the other parties including the interveners.

( 3 ) THE dispute relates to three distinct periods. The first period is 1st April, 1959 to September. 1977. The second period is September, 1977 to August, 1982 and the third period is August, 1982 to August, 1988.

( 4 ) IN order to appreciate the dispute which is raised it is necessary to examine as to how the respondent school acted in the present case. The memorandum and Rules of the school employees Provident Fund were promulgated and enforced w. e. f. 1st April, 1958. According to Rule 5, the employees were entitled to be paid not less than 6% Provident Fund upto 31st March, 1959 and 8 1/3% w. e. f. 1st April, 1959 of the employees pay. The expression "pay" was defined in Rule 4 (a) to mean "a monthly Basic Pay plus Dearness Pay". The expression "dearness Pay" has not been defined in the said Rules. However, Rule 15 of the Rules, inter alia, provides that whereever the Fund Rules are silent the provisions of the Income-tax Act and the relevant Rules made thereunder shall prevail.

( 5 ) IT seems that an Office Memorandum was issued by the Central Government on 25th May, 1979, according to which a certain portion of Dearness Allowance was to be treated as Dearness Pay. This Office Memorandum purported not to apply to members of the All India Services or persons appointed on contract or persons who were granted consolidated rates of pay and were not in receipt of Dearness Allowance. The school, however, applied the said Memorandum and w. e. f. September, 1977 to August, 1982 it contributed, and deducted from the employees salary, Provident Fund @ 8. 33% of the Basic Pay puls Dearness Pay as understood by the aforesaid Office Memorandum dated 25th May, 1979. From August, 1982 the provisions of the Employees Provident Fund and Misc. Provisions Act, 1952 were made applicable to the schools in Delhi. According to Section 12 of the Act the wages or emoluments of the employees were not to be reduced and the total quantum of benefits to all employees could not be less than what was being paid prior to the applicability of the said Act.

( 6 ) THE contention of the petitioner and other employees is that with respect to the period 1st April, 1959 to September, 1977 a portion of the Dearness Pay was not included while calculating the amount of contribution to Provident Fund. With regard to the second period the grievance is that the entire Dearness Allowance would be treated as Dearness Pay and the contribution should be @ 8 1/3%. With regard to the third period the grievance is that the school is deducting and contributing Provident Fund @ 6. 25% whereas it should be 8 1/3% and the reduction of the rate amounts to violation of Section 12 of the Employees Provident Fund Act.

( 7 ) DEALING with the first two periods together, in our opinion there is no merit in the contention raised in this writ petition. Firstly the petitioner and the other employees are guilty of laches with regard to the contribution of the Provident Fund for the period 1st April, 1959 to September, 1977. The preseat writ petition had been filed in 1990. It is a stale claim which is sought to be raised in this writ petition. That apart, it is not possible for us to agree that the expressions "dearness Pay" and "dearness Allowance" are synonymous or mean one and the same thing. It has been contended by Mr. Jaitley that we should invoke the provisions of the Fourth Schedule of the Income-tax Act, 1961 and by doing so the full amount of Dearness Allowance