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CASE NO.: Appeal (civil)  7016 of 2004

PETITIONER: Regional Provident Fund Commissioner             

RESPONDENT: Sanatan Dharam Girls Secondary School and Ors.                                                       

DATE OF JUDGMENT: 30/10/2006

BENCH: Dr. AR. Lakshmanan & Tarun Chatterjee

JUDGMENT: J U D G M E N T WITH

CIVIL APPEAL Nos. 7738/2004, 7740/2004, 7739/2004, 715- 737/2005, 739/2005, 742/2005, 741/2005, 746/2005, 745/2005,  738/2005, 747/2005, 748/2005, 740/2005, 750/2005, 749/2005,  752/2005, 751/2005, 743/2005, 744/2005 and 753/2005.

Dr. AR. Lakshmanan, J.

In the present matter, the appellant is the Regional  Provident Fund Commissioner (RPFC) and the respondents are  Sanathan Dharam Girls Secondary School, a Non-  Governmental Educational Institution and the State of  Rajasthan among others.  Brief facts in the matter are as follows: The Employees Provident Fund and Misc. Provisions Act     (in short ’the EPF Act’) came into force in 1952.  In 1982, vide  Gazette notification by the Government, Educational  Institutions were added in the Schedule of the Act under  section 1 (3). The schedule reads thus: "(i) any University;

(ii) any college whether or not affiliated to a University

(iii) any school, whether or not recognized or Aided by the  Central or 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 imparting  knowledge or training is systematically carried on."   

Further in 1988, clause (b) of section 16(1) of the EPF  Act, 1952 was substituted by new clauses (b) (c) and (d).  The  amended provisions read as under: " 16 (1) (b): to any other establishment belonging to or under  the control of the Central Government or a State  Government and whose employees are entitled to the  benefits of contributory provident fund or old age person in  accordance with any scheme or rule framed by the Central  Government or the State Government governing such  benefits; (c) to any other establishment set up under any Central

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Provincial or State Act and whose employees are entitled to  the benefits of contributory provident fund or old age person  in accordance with any scheme or rule framed under that  Act governing such benefits;   

(d) to any other establishment newly set up until the expiry  of a period of three years from the date on which such  establishment is has been set up"  

The State Government had framed rules known as ’The  Rules for payment of Grant-in-Aid to non-governmental  educational, cultural and physical educational institutions in  Rajasthan, 1963’. Later in 1989 the Rajasthan Legislative Assembly passed  "The Rajasthan Non-Government Educational Institutions Act,  1989" which came into force from 01.01.1993. On 05.08.1997, the State Government (Finance  Department) issued an order to implement the provisions of  the EPF Act, 1952 on Non-Governmental aided educational  institutions employing 20 or more persons. On 24.01.1998, the State Government (Educational  Department) passed an order by which it transferred the  existing Provident Fund amount from the State treasury to the  office of Regional Provident Fund Commissioner. Later on 24.08.1998, the State Government (Finance  Department) passed an order about transfer of Provident Fund  amount from State treasury to the Provident Fund  Commissioner. Various Educational Institutions filed 21 writ petitions in  the High Court of Rajasthan, challenging the orders and  circulars of the State Government issued on 05.08.1997,  24.01.1998 and 24.08.1998. The Regional Provident Fund  Commissioner also filed 2 writ petitions in the High Court. The learned Single Judge dismissed the writ petitions  filed by the Regional Provident Fund Commissioner and  allowed the 21 writ petitions filed by different Educational  Institutions by an order dated 16.01.2001 stating that the  state Act would override the provisions of EPF Act, 1952 and  also observed that the educational institutions before him  would fall under the exception under the amended section 16  (1) (b) of the EPF Act. Against this order of the learned Single Judge, the RPFC  went on appeal before the Division Bench of the Rajasthan  High Court. However, the Division Bench also observed that  the EPF Act will not apply to the Educational Institutions  before the Court and dismissed the appeals filed by the RPFC. Further on 23.02.2003, the respondent, Educational  Institution filed the S.B. Civil Writ Petition before the High  Court challenging the order of the State Government directing  the Non-Governmental aided Educational Institution  employing 20 or more persons to deposit its contribution with  the RPFC. The High Court disposed off the matter in favour of  the Educational Institution in line with the decision in the  matter of Balbari Vidya Mandir Churu v. State of  Rajasthan & others (S.B. Civil Writ Petition No. 1085/2000).  Against this decision of the High Court, the RPFC went on  appeal to the Division Bench of the High Court which in turn  by an order dated 16.09.2002, dismissed the appeal. Being aggrieved by this order of the High Court of  Rajasthan, the appellant, RPFC has approached this Court. As we understand, the issue before this court is: ?       Whether the provisions of EPF Act, 1952 are applicable  to the Non- Governmental Educational Institutions or  not in view of the provisions contained in Section 16 of  the EPF Act.

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?       And whether the respondents Institutions will fall  under the exceptions stated in section 16(1) (b) of the  EPF Act. We heard Mr. H.L. Aggarwala, learned senior counsel  appearing for the appellant, Mr. Aruneshwar Gupta, learned  Additional Advocate General appearing for the respondent and  Mr. S.K. Dubey, learned senior counsel, Mr. Sushil Kumar  Jain and Manish Singhi, learned counsel appearing for the  interveners. We have also perused all the documents filed  before us. Learned senior counsel appearing for the appellant, the  RPFC stated that, the Central Act that is the EPF Act came  into force in 1952, the same was made applicable to all  Educational Institutions from 06.03.1982 and there were no  State Acts or rules in place which dealt with the matters  relating to Provident Fund in Educational Institutions. Later in  1989 the Rajasthan Legislative Assembly passed "The  Rajasthan Non-Government Educational Institutions Act,  1989 which came into force from 01.01.1993. Therefore, during the period from 06.03.1982 to  31.12.1992, the Central Act, that is the EPF Act, 1952 will be  applicable on all Educational Institutions employing more  than 20 employees. To establish this, the learned counsel  invited our attention to M.P. Shikshak Congress and Ors.  Vs. R.P.F. Commissioner, Jabalpur and Ors (1999 (1) SCC  396), case, where this Court observed that: "However, after the application of the Employees’ Provident  Fund and Miscellaneous Provisions Act, 1952 to education  institutions, in 1983 new Rules were framed by the State of  Madhya Pradesh under Act 20 of 1978. These are referred to  as the State Rules of 1983. Under the State Rules of 1983,  for the first time a scheme was set out for Contributory  Provident Fund covering the teachers and employees of aided  schools. The State Government, however, was conscious of  the fact that the Employees’ Provident Fund and  Miscellaneous Provisions Act, 1952 was applicable in the  State of Madhya Pradesh. Therefore, by Rule 10(6) of the  State Rules of 1983, it was provided that the scheme as set  out in State Rules of 1983 would not apply where the  provisions of the Employees’ Provident Fund and  Miscellaneous Provisions Act, 1952 apply. Clearly, therefore,  far from there being any conflict between the State and the  Central Legislation, the State Legislation by Rules framed in  1983 has excluded from the operation of the State scheme as  framed under the 1983 Rules, those employees to whom the  Central Act applies. 16. In this view of the matter, there can be no doubt that for  the period 1st August, 1982 to 1st August, 1988 the  Employees’ Provident Fund and Miscellaneous Provisions  Act, 1952 was applicable to such teachers and employees of  the aided schools in the State of Madhya Pradesh who are  covered by the provisions of the scheme framed thereunder.  The orders of the Regional Provident Fund Commissioner,  therefore, in so far as the orders cover the period 1st August,  1982 to 1st August, 1988 are valid" Further the learned senior counsel submitted that, the  Educational Establishment covered or coverable under EPF  Act, 1952 during the period from 06.03.1982 to 31.12.1992  will remain covered or coverable under Central Act of 1952  itself even after the coming into force of the State Act of 1989  or the State Rules of 1993, as RPFC has already settled the PF  Accounts of their employees on retirement and has settled  their pension cases, family pension cases, children and  parents pension cases and monthly pension cases and paying  monthly pension/family pension regularly for number of

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years. It was submitted by the learned counsel appearing for  the appellant that, the learned single Judge and the Division  Bench of the Rajasthan High Court have not correctly  appreciated and interpreted Section 16 (1) (b) of the EPF Act,  1952 and have wrongly recorded that all Educational  Institutions are under the control of the State Government as  they are recognized by the State Act of 1989. He pointed out  that these Educational Institutions were running and are  managed by registered societies and none of them are owned  or managed by the State Government. Merely on the basis of  recognition under the State Act of 1989 it could not have been  held that these Educational Institutions are under the control  of the State Government as required under section 16 (1) (b) of  the EPF Act, 1952. Further, the counsel stated that, only the Educational  Institutions whose management has been taken over by the  State Government under section 10 of the State Act, 1989  shall fall within the exception under section 16 (1) (b) of the  State Act of 1989. Section 10 reads as follows: "10. Powers of the State Government to take over  management-(1) notwithstanding anything contained in any  law for the time being in force, whenever it appears to the  State Government that the managing committee of any  recognized institution has neglected to perform any of the  duties assigned to it by or under this Act or the rules made  there under or has failed to manage the institution properly  and that it has become necessary in the public interest to  take over the management of such institution, it may after  giving to such managing committee a reasonable opportunity  of showing cause against the proposed action, take over  such management and appoint an administrator to exercise  control over the assets of the Institution and to run the  institution for such period as the State Government may  from time to time fix.

(2) Where, before the expiry of the period fixed under sub- section (1) the State Government is of opinion that it is not  necessary to continue the management of the institution by  an administrator, such management shall be resorted to the  managing committee".   

While concluding his submissions, the learned senior  counsel stated that the High Court did not take into  consideration that the Central Act is more beneficial for the  employees than the State Act as there is compulsory pension  scheme, called "The Employees Pension Scheme, 1995" under  the Central Act.  Mr. Aruneshwar Gupta, learned Additional Advocate  General, appearing for the State of Rajasthan, respondent  herein submitted that, in the year 1989 the Government of  Rajasthan enacted the Rajasthan Non-government  Educational Institutions Act, 1989. The Act came into force on  01.01.1993. The State Government after the enactment of the  said Act has clearly occupied the field concerning the deposit  of PF of the employees of Non-Government Institutions and it  clearly overrides the provisions of the EPF Act, 1952. He  submitted that, it is relevant to mention that the contribution  to the PF pertains to Entry 24 of List III of the Schedule 7 of  the Constitution of India. Therefore, as far as post 1993 period  is concerned, the RPFC do not have any subsisting legal right  as that Act of 1989 of Rajasthan shall prevail and to this  extent the issuance of orders dated 05.08.1997, 28.01.1998  and 24.08.1998 by the Government of Rajasthan amounted to  incorrect application of law and the AG appearing for the state

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of Rajasthan clearly conceded to the same before the High  Court of Rajasthan.  Thus it is clear that the Educational  Institutions are outside the purview of the EPF Act. Besides, the Central Act itself contemplates non-  application of the Central Act in certain situations especially  enumerated under section 16 of the Act of 1952. Section 16 (1)  (b) clearly mentions that the establishments which are under  the control of state government will not fall within the purview  of the Central Act, 1952. Moreover, there is a scheme framed  for contributory PF under the chapter VIII of the Rules of  1993. In conclusion it was submitted by the learned counsel for  the respondent State that in the present fact scenario, the  provisions of section 16(1) (b) of the Central Act, 1952 are  attracted and therefore, the appellant cannot claim any right  over the contributory provident fund of the employees of the  Educational Institutions covered by the Act of 1989.                         Mr. S.K. Dubey and Sushil Kumar Jain, learned counsel  appearing for the interveners, submitted as follows: 1)      that their institutions are governed under the  provisions of the Rajasthan Non-Government  Educational Institutions Act, 1989.  The said Act was  enacted in the year 1989 and was reserved for and  received Presidential assent on 4.6.1992 in terms of  Article 254(2) of the Constitution of India.  The said  Act came into force with effect from 4.7.1992. 2)      that Entry 24 of List III of the VII Schedule read with  Article 246(2) of the Constitution of India allows  concurrent power to the Center and the State  Governments to legislate with regard to Provident  Funds.  The said entry provides as under: "Welfare of labour including conditions of work, provident  funds, Employer’s liability, workman’s compensation,  invalidity and old age pension and maternal benefits."

3)      that the Union had enacted the Employees Provident  Fund Act, 1952 in exercise of the said powers.  The  State Government of Rajasthan has, thereafter,  enacted the Rajasthan Non-Government Educational  Institutions Act, 1989, which also includes a power to  make a provident fund scheme.  It was also submitted  that the State Government has, thereafter, framed the  scheme under the rules and the respondent- institutions are governed by the said scheme.  Since  the State Act has received Presidential assent, the said  Act would prevail over the Central Act in the State of  Rajasthan as per the provisions of Article 254(2) of the  Constitution of India.  The said Article provides as  under: "254.  Inconsistency between the laws made by  Parliament and Laws made by Legislatures of States:- (1)\005\005\005\005\005\005\005\005\005 (2)     Where a law made by the legislature of the State with  respect to one of the matters enumerated in the  concurrent list contains any provisions repugnant to  the provisions of an earlier law made by the  Parliament or any existing law with respect to that  matter, then, the law so made by the Legislature of  such State shall, if it has been reserved for the  consideration of the President and has received his  assent, prevail in that State.

Provided that nothing in this clause shall prevent  Parliament from enacting at any time any law with

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respect to the same matter including a law adding to,  amending, varying or repealing the law so made by the  legislature of the State."

4)      that the State Act would "eclipse" the Central Act within  the State of Rajasthan and therefore, the Central Act (i.e.  the EPF Act) would not apply to the educational  institutions in the State of Rajasthan which are governed  by the State Act.  Undoubtedly, the respondent- institutions are covered under the State Act and as such  the provisions of the said Act would be applicable on the  respondent-institutions. In support of his submission, he relied on the  judgment of this Court in State of Bihar vs.  Bhabapritananda Ojha, AIR 1959 SC 1073.  In this  case, this Court dealt with the provisions of the Bihar  Hindu Religious Trusts Act, 1950(Bihar 1 of 1951), which  received the president’s assent on February 21, 1951 and  came into force on August 15, 1951.  The said Act  established the Bihar State Board of Religious Trusts to  discharge the functions assigned to the Board by the Act.   The said Act was challenged on the grounds that it was  ultra vires of the Bihar Legislature and in the alternative,  it was contended that even if it was construed that the  Act was intra vires, it did not apply to the Baidyanath  Temple and the properties appertaining thereto by reason  of the circumstance that the said temple and its  properties were administered under a Scheme made by  the Court of the District Judge of Burdwan and approved  by the Calcutta High Court, both of which are situated  outside the territorial limits of Bihar.  After considering  the matter, this Court held as under: "\005..If, as we have held, it is open to the Bihar  Legislature to legislate in respect of religious trusts  situate in Bihar, then that Legislature can make a law  which says, as in sub-s. (5) of s. 4 of the Act, that s. 92  of the Code of Civil Procedure shall not apply to any  religious trust in the State of Bihar. If sub-s. (5) of s. 4  of the Act is valid as we hold it is, then no question  really arises of interfering with the jurisdiction of the  District Judge of Burdwan or of the Calcutta High  Court in respect of the Baidyanath temple, inasmuch  as those courts exercised that jurisdiction under s. 92,  Code of Civil Procedure, which no longer applies to the  Baidyanath temple and the properties appertaining  thereto, after the commencement of the Act. It is true  that the Act does put an end to the jurisdiction under  s. 92, Code of Civil Procedure, of all courts with regard  to religious trusts situate in Bihar, but that it does by  taking these trusts out of the purview of s. 92. In other  words, the Act does not take away the jurisdiction of  any court outside Bihar but takes the religious trusts  in Bihar out of the operation of s. 92 so that a court  outside Bihar in exercise of its jurisdiction under s. 92  will decline to deal with a religious trust situate in  Bihar just as it will decline to entertain a suit under  that section regarding a private trust of religious or  charitable nature. Civil Procedure, including all  matters included in the Code of Civil Procedure at the  commencement of the Constitution, is item 13 of the  Concurrent List. It has not been disputed before us  that it is open to the Bihar Legislature to amend the  Code of Civil Procedure while legislating in respect of  religious endowments and religious institutions in

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Bihar, and the President’s assent having been received  to the Act, the law made by the Bihar Legislature shall  prevail in that State, under Art. 254(2) of the  Constitution, in respect of all religious trusts situate in  Bihar.

       In the case of Bhagwat Singh vs. State of Rajasthan,   (1964) 5 SCR 1, with regard to the applicability of the  provisions of the Rajasthan Industrial Tribunal (Constitution  & Proceedings) Validating Act, 1959, this Court held as under: "14. It is unnecessary however to consider the merits of  these contentions because the Legislature has remedied the  defects, if any, in the constitution of the Tribunal, by  enacting the Rajasthan Industrial Tribunal (Constitution and  Proceedings) Validating Act, 1959, which was reserved for  the consideration of the President of India and has received  his assent. By s. 2(1) of that Act, notwithstanding any  judgment, decision or order of any court and  notwithstanding any defect or want of form or jurisdiction,  the Industrial Tribunal for Rajasthan, constituted under s. 7  of the Industrial Disputes Act, 1947, by Government  notification dated the 2nd June, 1953, as amended by order  dated the 9th March, 1956, shall, as respects the period  commencing on the 10th day of March 1957 and ending with  the 15th day of April, 1959, be deemed to have been duly  constituted under s. 7A of the said Act. By sub-s. (2) it is  provided that notwithstanding any judgment, decision or  order of any court all references made to and all proceedings  taken and orders passed by the Industrial Tribunal  constituted in sub-s. (1) between the period 10th March,  1957 and 15th April, 1959, shall be deemed respectively to  have been made, taken and passed as if the said Tribunal  were constituted under s. 7A of the Act. It is clear from the  validating provisions that the Tribunal originally constituted  under s. 7 of the Industrial Disputes Act, 1947, before it was  amended by Act 36 of 1956 is to be deemed to have been  duly constituted under s. 7A, and the reference made on  December 18, 1957 is to be deemed to have been made as if  the Tribunal were constituted under s. 7A of the amended  Act. The Validating Act is, because of Item 22, List III of the  Seventh Schedule to the Constitution, within the competence  of the State Legislature, and it was reserved for the  consideration of the President and has received his assent. It  must by virtue of Art. 254(2) prevail in the State of  Rajasthan.  5)      that in the present case, the provisions of the said Act  and the Rules made thereunder apply and prevail over  the provisions of the Employees Provident Fund Act,  1952.  It was further submitted that there is a clear  conflict among the provisions in respect of the Provident  Fund Scheme and the resultant effects thereto between  the State and the Central Act and as the State Act has  received Presidential assent, the provisions of the said  Act would apply. 6)      that no arguments have been advanced by the appellants  in the present case with regard to the present  submissions before the High Court nor were any  arguments raised by the appellant before this Court.  It  was also submitted that in the absence of any rebuttal by  the respondent, it is clear that the provisions of the State  Act would prevail over the Central Act. Institution fall under exception contained under Section  16(1)(b) of the EPF Act, 1952.         Section 16(1)(b) of the EPF Act, 1952 provides as under: "16(1) This Act shall not apply-

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(a)\005\005\005\005\005\005\005 (b) to any other establishment belonging to or under the  control of the Central Government or a State Government  and whose employees are entitled to the benefit of  contributory provident fund or old age pension in accordance  with any scheme or rule framed by the Central Government  or the State Government governing such benefits; or

(c) to (e) \005\005\005\005\005\005\005\005\005\005\005"

In order to be covered under the exception to the EPF  Act, 1952 stated above, following two conditions have to be  satisfied by the establishment seeking to be exempted from the  provisions of the EPF Act, 1952: 1)      It must be an establishment belonging to or  under the control of the Central Government or  a State Government, and 2)      It must be an establishment whose employees  are entitled to the benefit of contributory  provident fund or old age pension in accordance  with any scheme or rule framed by the Central  Government or the State Government governing  such benefits.         We heard the parties in detail. The submissions made by  the learned counsel appearing for the respondents merit  acceptance. It is not in dispute that the respondent- institutions have been paying the provident fund dues to the  State Government in accordance with the Scheme framed by  the State Government under the State Act and thus the  employees of the respondent-institutions are entitled to the  benefit of the provident fund.  By the orders impugned by the  respondent-institutions, the State Government has sought to  transfer the balance standing to its credit to the Regional  Provident Fund Commissioner.  Thus it is clear that the  respondent-institutions have been paying in accordance with  the Scheme and there is no grievance with regard to the same.         In respect to the contention of the respondent that the  establishment belonging to or under the control of the  Central Government or a State Government, it was submitted  that the establishments must either be (a) belonging to or (b)  under the control of the Central Government or the State  Government.  In our view, the two words used in the said  Section have different connotations.  The words "belonging to"  signifies ownership i.e. the Government owned institutions  would be covered under the said part and the words "under  the control of" signifies control other than ownership since  ownership has already been covered under the words  "belonging to".  It must be also noted that the two words are  separated by the word "OR" and therefore these two words  refer to two mutually exclusive categories of institutions.   While the institutions "belonging" to the Central or the State  Government would imply the control of the State but the  privately owned institutions can be "under the control of" the  Government in various ways.              Under the State Act itself, the "Control" by the State is in  the following ways: (a)     Under Section 3 of the State Act, the State Government  grants recognition to the "Non-government educational  institutions".   It was submitted that recognition by the State is of prime  importance for running and operating an educational  institution.  The said recognition can be withdrawn on  the failure of the institution to abide by the terms and  the conditions of the grant of recognition.   (b)     Under Section 7 of the State Act, the State Government

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grants aid to only recognized educational institutions.   The aid given by the State can be used only for the  purpose for which the aid has been given.  Under Section  8, the institutions are thereafter required to keep  accounts in the manner prescribed by the State.  It was  submitted that in such manner, the State exercises  Financial Control  over the institutions. (c)     Under Section 9, it has been prescribed that the  institutions shall be governed by a managing committee  and Section 10 of the Act empowers the State to take  over management of the institutions "whatever it appears  to the State that the Managing Committee has neglected  to perform the duties assigned to it by or under the Act  or the Rules made thereunder. (d)     Chapter V of the Act relates to properties of the  institutions and the manner in which the institutions can  manage the properties of the institution.  It was  submitted that under Section 13 of the Act, the  institutions have to apply and get the approval of the  competent authority set up under the said Act before  transferring the management of the institution.  Under  Section 15, restrictions have been placed on the transfer  of immovable properties of the institutions.   (e)     Section 14 of the Act prohibits closure of any institution  or its class or the teaching of any subject therein without  notice in writing to the competent authority.  It was  submitted that the government thus has Functional  control over the institution. (f)     Chapter VI of the State Act deals with recruitment and  removal etc. of employees.  Their salary, conditions of  service, provident fund, code of conduct are all  prescribed under the Act.  The Act further prescribes  setting up of a Tribunal for resolution of the disputes  whose decision is final and binding on the parties.   The State Government also exercises Administrative  Control over the institution.  Section 17 deals with the manner  of recruitment and Section 18 deals with the procedure in  which the employees may be removed or dismissed or reduced  in rank.  Section 28 permits the State Government to  prescribe the code of conduct of the employees and Section 29  enjoins upon the institutions not to give to its employees a pay  lesser than the scales of pay and the allowances paid to  similar categories of the State Government. In our view, the State Act is a complete code in itself with  regard to the educational institutions and the State  Government exercises substantive control over the institutions  even though the institutions are not "owned" by it.  The word  "control" has not been defined under the EPF Act, 1952.   However, this Court in Shamrao Vithal Coop. Bank  Ltd. vs. Kasargode Panduranga Maliya,  (1972) 4 SCC 600  at page 604 has cited with approval the meaning of the word  "control" as it appears at page 442 of  Words & Phrases Vol.9,  Permanent Edition as under: "The word "control" is synonymous with  superintendence, management or authority to direct, restrict  or regulate."

In the case of State of Mysore vs. Allum karibasappa,   (1974) 2 SCC 498 at page 501, this Court defined the words  "word control" as under: "The word "control" suggests check, restraint or  influence Control is intended to regulate and hold in check  and restrain from action."

We further observe that the State Government has the

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power of Superintendent or the authority to direct, restrict or  regulate the working of the educational institutions.  It was,  therefore, submitted that the institutions had satisfied both  the conditions (i) and (ii) mentioned above and as such they  would fall within the exception contained under Section  16(1)(B) of the EPF Act, 1952. In this context we may refer to the decision cited by the  appellant in the case of M.P. Shikshak Congress vs. R.P.F.  Commnr., (1999) 1 SCC 396, in which it was stated that the  provisions of the E.P.F. Act apply in supersession of the State  Act. This contention is not correct; the said case is clearly  distinguishable on facts as has been noted in the judgment  itself. The State Act did not provide for establishment of any  Scheme as has been provided under the provisions of the State  Act in the State of Rajasthan.  In this regard, this Court noted  as under: "12\005\005The Act did not even provide for any scheme for  setting up a provident fund.  The Act incidentally required  that the institutional contribution to any existing provident  fund scheme should be paid into the institutional fund set  up under the said Act\005."

In addition to the above, the said case is also  distinguishable with regard to the contention of repugnancy  and Article 254(2) of the Constitution.  In the said case, the  Act in relation to the State of Madhya Pradesh came into force  prior to the application of the provisions of the EPF Act, 1952  on educational institutions and therefore the benefit of Art.  254(2) was not available to it.  In the present case, however,  admittedly the State Act has been enacted and has received  the assent of the president subsequent to the applicability of  the EPF Act, 1952 on the educational institutions.  In this  regard, this Court in the said case noted as under: "13.  It was by reason of the notification of 06.03.1982 that  the Central Act was extended to educational institutions.   The Employees’ Provident Funds and Miscellaneous  Provisions Act, 1952, therefore, became applicable to  educational institutions in the State of Madhya Pradesh for  the first time on 6-3-1982.  This was much later than the  enactment of the State Act 20 of 1978.  The parliamentary  enactment, therefore, would prevail over the State Act 20 of  1978, assuming that the State Act of 1978 created or  effected any scheme for provident fund.  Article 254(2),  therefore, has no application in the present case."

Mr. Manish Singhvi, learned counsel appearing for  respondent No.1 in Civil Appeal No. 748 of 2005 reiterated the  submissions made by them in the counter affidavit filed in the  special leave petition No. 2625 of 2003.  He submitted that the  demand issued by the Regional Provident Fund Commissioner  at Udaipur was ultra vires and beyond jurisdiction because  there was already an exemption under law for the purposes of  application of this Act and, therefore, the order dated  23.05.1997 was a nullity.  It was further submitted that the  exemption was withdrawn from October, 1993 onwards and,  therefore, the exemption notification granted under this Act  was prevalent between January, 1983 to September, 1992.  He  has also given the details in regard to the details of payment of  Provident Fund/Pension scheme in accordance with the  directions issued by the State Government/Central  Government in the counter affidavit filed by them.  He also  invited our attention to the notification dated 14.02.1983  issued by the Government of Rajasthan in exercise of the  power conferred by sub-section 17 of the EPF and Misc.  Provisions Act, 1952 exempting  schools added by the State

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Government from the operation of the said Act subject to the  condition that the scheme of the Provident Fund applicable  the employees of educational institutions vide No. F7(13)  Education GR 74 dated 12.11.1974 shall be reviewed by the  Committee which shall be constituted by the Education  Department with representatives of the Finance Department  and Labour Department to review the existing schemes so as  to bring inconformity with the central scheme if needed.  It is  beneficial to refer to the notifications dated 23.12.1988 and  26.12.1993 in this context.  The said two notifications read  thus:       

"GOVERNMENT OF RAJASTHAN

Labour Department

No.F.13(9)Shram/82-Pt.II, Jaipur                     Dtd.23.12.1988

NOTIFICATION

In exercise of Powers conferred by Sub-section (1) of  Section 17 of the Employees Provident Fund & Miscellaneous  Provisions Act, 1952 (Central Act 19 of 1952) and in  supersession of this department notification  No.F.13(9)Shram/82-Pt.II dated 14.2.83 the State  Government hereby exempts all schools and educational  institutions aided by the State Government from the  operation of all the provisions of the Provident Fund Scheme  only.  This shall have immediate effect.           

                               BY ORDER OF THE GOVERNOR     Sd/- K.L.KOCHAR SPECIAL SECRETARY TO THE  GOVERNMENT"

"GOVERNMENT OF RAJASTHAN

Labour Department

No.F.13(9)Shram/82-Pt.II, Jaipur            Dtd.26.10.1993

NOTIFICATION

Notification No.F.13(9)Shram/82-Pt.II dated  14.02.1983 and even notification dated 23.12.1988 issued  by this department under Sub-section (1) of Section 17 of the  Employees Provident Fund & Miscellaneous Provisions Act,  1952 (Central Act 19 of 1952) is hereby nullified with  immediate effect.  

In this regard, it is hereby clarified that if the relief- granted educational institutions want to seek exemption for  their employees, for whom they get relief, under the  provisions of Employees Provident fund Scheme 1952 then  such educational institutions can seek exemption from  Regional Provident Fund Commissioner, Rajasthan, Jaipur  as per para 27 of Employees Provident Fund Scheme 1952,  after obtaining applications from their such employees.                                   By the Order of Governor  Sd/- Ramveer Singh Bhanwar Labour Commissioner and Deputy  Secretary to the Government"

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       Learned counsel appearing for the respondent in C.A.  Nos. 715-737 of 2005 also drew our attention to the counter  affidavit filed on behalf of the State of Rajasthan and the  educational institutions.  It is submitted that the order of  recovery is patently illegal and unjustified because of the fact  that the respondent institution does not come under the  purview of the Act of 1952.  He would further submit that after  the amendment was made in Section 16 of the Act by the EPF  and Miscellaneous Provisions Amendment Act (33 of 1988) all  establishments belonging to or under the control of the  Central Government or State Government have been exempted  from the provisions of the Act.  Arguing further, he submitted  that the words in Section 2(b) and 2(a) are so clear and  unambiguous that no further interpretation need be made to  amplify the same and that the provisions made in the  enactment of 1989 make it clearer that the respondent  institution is a recognized educational institution managed by  the private management and is within the effective  management of the State Government and, therefore, it is  entitled to be excluded from the applicability of the Central  Act, 1952.  Learned counsel appearing for the respondents in all the  other appeals adopted the arguments of Mr. Sushil Kumar  Jain.          For the foregoing reasons, all the civil appeals filed by the  Regional Provident Fund Commissioner stand dismissed and  the judgment and order passed by the Division Bench of the  High Court dated 16.09.2002 and all the judgments on  different dates by different Division Benches stand affirmed.   No costs.