India Sainik Schools Employees Association Vs. Defence Minister-Cum-Chairman
Board of Governors, Sainik  INSC 311 (4 October 1988)
Rangnath Misra Rangnath Venkatachalliah, M.N. (J)
1989 AIR 88 1988 SCR Supl. (3) 398 1989 SCC Supl. (1) 205 JT 1988 (4) 22 1988
Services: Sainik School employees--Cannot be treated as Central Government
employees--Cannot be treated on par with employees of Kendriya Vidyalayas.
Constitution of India, 1950: Articles 12, 14, 39(d)-- `Sainik
School Society'--Whether `State'--Employees claim for `equal pay for equal
and Phrases: `Sainik Schools'--What are.
All India Sainik Schools Employees Association in a petition filed in this Court
under Article 32 of the Constitution has asked for a writ of mandamus directing
the respondents, primarily, to extend to the employees working in the Sainik
Schools all. the service benefits and advantages in the same pattern as
obtaining in Kendriya Vidyalaya Sangthan. The petitioner's contentions are that
the Sainik School Society is `State' within the meaning of Article 12 and is
accordingly amenable to claim and enforcement of fundamental rights, and
further that the society has to be guided by what is provided in Part 4 of the
Constitution by way of Directive Principles of State Policy.
of the petition, this Court,
(1) The entire funding of the Sainik Schools is by the State Governments and
the Central Government. The overall control vests in the governmental
authority. It cannot therefore be doubted that the Sainik School Society is
`State' within the meaning of Article 12. 1405C]
Once it is held that the Sainik School Society is `State', application of
Article 14 is attracted. Similarly under the Directive Principles, the claim
for equal pay for equal work becomes tenable. [405D] PG NO 398 PG NO 399
Substantial contribution for running the Sainik School comes from the funds of the State
where the school is located. The Central Government's contribution is minimal.
mode of funding is mainly through scholarship by the State payable to the
students. It follows out of this fact that the employees of the Sainik School cannot be treated as Central Government employees nor can they
betreated as at par with the employees of Kendriya Vidyalayas. They are a class
by themselves.14. [405F-G]
view of the position that the employees of the Sainik Society are a distinct
class by themselves, there is no merit in the claim that there has been
discrimination. To put unequals as equals is against the objective of Article
The claim of equal pay for equal work is indeed not tenable. A Sainik School intended essentially to draw young men for being recruited
into the National Defence Academy is not an ordinary school. Its
curriculum, the pattern of teaching, the life style, the discipline and
attention differ. A claim for equal pay on the allegation of equal work reguires
clear material to support the basis that the work is both the institutions is
the same. The claim of the petitioner that the work in the two institution is
equal, and, therefore, the claim for equality of pay cannot be accepted.[406A,C-E]
The Sainik School Society being, `State' is amenable to the jurisdiction of the
Court and it is open to the court to examine whether the conditions of service
are of an acceptable pattern. [406E]
The Court accordingly examined the petitioner's demands and passed appropriate
orders directing specific reliefs in terms of medical, leave travel concession
benefits and house building and other advances. The Court however found nothing
unreasonable in the condition of service pertaining to age of retirement. [407G]
Ajay Hasia & Ors. v. Khalid Mujib Sehravardi & Ors.,  1 SCC 722
and International Airport Authority case., 3 SCC 489.
JURISDICTION: Writ Petition No. 1219 of 1987.
Article 32 of the Constitution of India. ) T.S. Krishnamoorthy Iyer, P.N. Puri and R.K. Talwar for the
400 Kuldip Singh and B. Dutta, Additional Solicitor Generals, Mahabir Singh,
C.M. Nayar, A.K. Srivastava, Ms. A. Subhashini, A.S. Bhasme and A.V. Rangam for
Judgment of the Court was delivered by RANGANATH MISRA, J. This application is
under Article 32 of the Constitution. The All India Sainik Schools Employees
Association through its President is the petitioner. The Sainik School Society
(hereinafter referred to as "the Society") is a society registered
under the Societies Registration Act, 21 of 1860. The main object of the
Society, as available from clause 3(a) of the Memorandum of Association is:
establish Sainik Schools in various parts of India, providing special school
education of a high standard with the aim of preparing boys academically and
physically for entry into National Defence Academy and other walks of life.
With a view to implementing this object 18 schools located in different States
of the country have been established.
petitioner has impleaded the Chairman and Members of the Board of Governors of
the Society as respondents 1 to 6;
of Education of the seventeen States as respondents 7 to 23 and Principals of
the 18 schools as respondents 24 to 41 The petitioner has asked for a writ of mandamus
to the Union of India as also respondent No. l:
implement the recommendations of the Fourth Pay Commission in the Sainik
Schools and to extend all the benefits already given to employees of the Kendriya
Vidyalayas by way of implementing the recommendations of the Chattopadhya
give to the employees of the Sainik Schools the differential wages in terms of
the Third Pay Commission between 1973 (when it applied to Government
institutions) and 1978 (when the benefits were extended to the employees of the
direct that the employees of the Sainik Schools shall have the benefits of
leave travel concession house rent, pension, group insurance, contributory
provident fund, pensionary benefits and gratuity in the same pattern as PG NO
401 obtaining in Kendriya Vidyalaya Sangthan or given to Defence Services
Officers working in the Sainik Schools, and;
the age of superanuation to 60 years as in the case of Kendriya Vidyalaya
notice was issued to the respondents, respondent No. I alone entered appearance
and made a return. Apart from raising certain technical pleas against the
maintainability of the petition, it has pleaded that the Society was not an
instrumentality of the State. According to the respondent No. 1, the entire
capital expenditure on land, buildings, furniture and educational equipment and
the major portion of the recurring expenditure is borne by the concerned State
Government/Union Territory Administration of the places where the school is
located. Maintenance, additions and replacement are also the obligation of the
respective State Governments. The Principal, the Head-Master, the Registrar and
an Army Physical Training Corps/ National Cadet Corp Instructor posted in every
school are paid out of the Defence budget All other expenses are met out of the
fees payable by the parents or taken out of the scholarships paid by the
State/Central Governments to the students. The quantum of the fees,scholarships
is fixed by the Board of Governors from time to time taking into consideration
the financial position The counter affidavit accepted the petitioner's plea
that several Committees had been established for bringing about improvement in
the functioning of the Sainik Schools and improvement of conditions of service
such as the High Power Committee Sahare Committee, Balaram Committee and the
Academic Study Group Though it essence the Kendriya Vidyalayas and the other
establishments of the Central Government differ from the Sainik Schools, many
of the benefits admissible to Government servants and Vidyalaya teachers have
already been extended to employees of the Sainik Schools The counter affidavit
traversed the petitioner's averment that the guideline of Kendriya Vidyalayas
has to be adopted and the benefits admissible to the employees of such Vidyalayas
should be extended to the employees of Sainik Schools According to the
respondent, the Sainik Schools are of a different pattern; the historical
background of their creation, the purpose for which they are founded and the
other benefits which are admissible to the employees should also be borne in
mind when considering the claim raised by the petitioner According to the
respondents the claim based on the concept of equal pay for equal work PG NO
402 contained in Article 39(d) of the Constitution is misconceived inasmuch as
unless the nature and the status of the service is the same there can be no
behalf of the petitioner a rejoinder has been filed reiterating some of the
averments in the main petition and meeting some of the pleadings in the counter
affidavit of respondent No 1.
the pendency of this application, the Board of Governors decided to extend
certain advantages and benefits to the employees of the Sainik Schools. Some of
these benefits had been claimed in the writ petition. An affidavit has been
filed on behalf of the petitioner indicating what are the claims still in issue
on the basis of the respondents' affidavit dated July 29, 1988. It is not necessary to recount the concessions extended by
the Society and in our view what is claimed as subsisting items may now be
dealt with These are:
age of retirement should be 60 years applicable to all categories of employees
being the same as obtaining in the case of employees of the kendriya Vidyalaya Sangathan
Bonus and gratuity should be effective from 1.1.1986 and employees who have
either retired or resigned after that date should be given benefit of the
Contributory Provident Fund and gratuity at Central Government rates.
Medical reimbursement should he provided on the same basis as admissible to
K.V.S. and Central Government employees.
Leave Travel Concession including once in a block of four years to travel
anywhere in lndia as available to employees of K.V.S. and Central Government
employees should be available.
Leave rules to all categories of employees should be placed at par with
employees of K.V.S.
House Rent Allowance should be granted with effect from 1.10.1986, at par with
Central Government employees.
pay scale recommended by the Chattopadhyay Commission to Teachers should be
effective from 1.1.1986.
Librarians should be given the benefit of pay revision as per the Chattopadhyay
Commission pay scale with effect from 1.1.1986.
Office Superintendent, Accountants and Personal Assistant to the Principals
should be given the same pay as their counterpart receive from the Central
Government with effect from 1.1.1986.
Nursing Sisters/Assistants/Compouders should be granted pay scales at par with
Pharmacists in Central Government under Para-Medical Staff as per
recommendations of the 4th Pay Commission with effect from 1.1.1986.
House Construction Loan, Scooter and Car Purchase Loan should be granted at par
with K.V S./Central Government Scheme.
15% extra pay over and above scales admissible to K.V.S. teachers should be
admissible to the Sainik School teachers .
The difference in wages between 1.1.1973 and 30th June, 1978 on account of delayed implementation of the 3rd Pay
Commission's recommendations should be paid.
Bonus for 1984-85 and 1985-86 should also be paid at par with K.V.S
All employees who have retired by now before completing 60 years of age and
have not yet attained the age of 60 years should be called back to duty and
have already indicated, it is the contention of the petitioner that the Sainik
School Society is `State' within the meaning of Article 12 and is accordingly
amenable to claim and enforcement of fundamental rights. It is also to be
guided by what is provided in Part 4of the Constitution by way of Directive
Principles of State Policy.
Constitution Bench of this Court in Ajay Hasia & Ors. v. Khalid Mujib Sehravardi
& Ors.,  1 SCC 722 was considering whether a Society registered under
the PG NO 404 Societies Registration Act of 1861 could be "State"
within the meaning of Article 12. Bhagwati, J., as he then was, speaking for
the unanimous Bench called out six tests from the judgment of this Court in
International Airport Authority case (1979) 3 SCC489. Those tests are:
One thing is clear that if the entire share capital of the Corporation is held
by Government, it would go a long way towards indicating that the Corporation
is an instrumentality or agency of Government.
Where the financial assistance of the State is so much as to meet almost entire
expenditure of the Corporation, it would afford some indication of the
Corporation being impregnated with Governmental character.
may also be a relevant factor .... whether the Corporation enjoys monopoly
status which is a State conferred or State protected.
Existence of deep and pervasive State control may afford an indication that the
Corporation is agency or instrumentality.
the functions of the Corporation are of public importance and closely related
to governmental functions it would be a relevant factor in classifying the
Corporation as an instrumentality or agency of Government.
"Specifically, if a department of Government is transferred to a
Corporation, it would be ;l strong factor supportive of this inference" of
the Corporation being an instrumentality or agency of Government."
Applying those tests the Constitution Bench found that the Society which
managed the Regional Engineering College at Srinagar and several others
elsewhere was `State'. Having said so, this Court pointed out:
is also necessary to add that merely because a juristic entity may be an
authority and therefore State within the meaning of Article 12, it may not be
elevated to the position of State for the purpose of Articles 309, 310 PG NO
405 and 311 which find a place in Part XIV. The definition of State in Article
12 which includes an authority within the territory of India or under the
control of the Government of India is limited in its application only Part III
and by virtue of Article 30, to Part IV; it does not extent to the other
provisions of the Constitution and hence a juristic entity which may be State
for the purpose of Part III and IV would not be so for the purpose of Part XIV
or any other provision of the Constitution." Applying the tests indicated
at page 737 of the Reporter it cannot be doubted that the Sainik School Society
is also `State'. The entire funding is by the State Government and the Central
Government. The main object of the Society is to run schools and prepare
students for the purpose of feeding the National Defence Academy. Defence of
the country is one of the regal functions of the State.
it is held that the Sainik School Society is `State' within the meaning of
Article 12 of the Constitution, application of Article 14 is attracted.
under the Directive Principles--the claim for equal pay for equal work becomes
main plank for substantiating the petitioner's claim for relief is the
allegation of discrimination founded upon the basis that the employees of the Sainik
School Society though in every respect comparable to employees of K V.S. and
the Central Government are not being given the same treatment K V.S. is a
creation of the Government of lndia and is wholly financed out of the Central
Exchequer Sainik School Society, as already pointed out, is not wholly funded
by the Central Government. In fact substantial contribution for running the Sainik
School comes from the funds of the State where the school is located. The
Central Government's contribution is minimal The mode of funding is mainly
through scholarship by the State payable to the students. It follows out of
this fact that the employees of the Sainik School cannot be treated as Central
Government employees-- nor can they be treated as at par with the employees of
K V.S. They are a class by themselves and, therefore, the stand on the basis of
Article 14 by pleading discrimination against the guarantee of equality is not
available. To put unequals as equals is against the objective of Article 14;
same way is to discriminate between equals The later, however, is on the
hypothesis that the two are equals. In view of the position that the employees
of the Society are a distinct class by themselves, we do not think that there
is any merit in the claim that there has been discrimination.
406 Similarly the claim of equal pay for equal work is indeed not tenable. No
acceptable material has been placed before us to support the stand that the
work in the two institutions is equal. A bare statement that both the Kendriya Vidyalayas
and the Sainik Schools impart education to the students cannot sustain the
claim of equal work. To maintain a claim for equal pay on the allegation of
equal work requires clear material to support the basis that the work in both
the institutions is the same. Kendriya Vidyalayas popularly known as Central Schools,
are more or less schools as understood in common parlance. A Sainik School
intended essentially to draw young men for being recruited into the National Defence
Academy is not an ordinary school. Its curriculum, the pattern of teaching, the
life style, the discipline and attention differ. The Sainik Schools are totally
residential and the teacher is provided accommodation within the complex with a
view to exposure of students to the teacher throughout the period and allow the
teacher to exercise regulation over the students at all material times. The
teacher is also expected to interact with the students beyond the class room.
The Principal of the Sainik School is a defence service officer; so is the
Headmaster for the lower classes;
Physical Instructor is also drawn from the Army. We are not in a position to
accept the claim of the petitioner that the work in the two institutions is
equal, and therefore, the claim for equality of pay cannot be accepted. Even
though that claim is not accepted, the Sainik Schools being `state' is amenable
to the jurisdiction of the Court and it is open to the court to examine whether
the conditions of service are of an acceptable pattern.
age of retirement of teachers in the Sainik Schools is till 60 years but
continuance beyond 58 years is subject to physical fitness and continued
satisfactory performance of duties. For non-academic staff the age is 58 years
which is same for most government employees. There is nothing unreasonable in
this condition of service. There has been a switch over to pension and gratuity
scheme with effect from 29.7.1988. The claim of the petitioner is that it
should be with effect from. 1.1.1986. Keeping the mode of funding in view, we
do not think the liability that would arise by ante-dating the benefit from
1.1.1986 can be conveniently met. We, however, see no reason why the benefit
should be extended only from 29.7.1988, which is said to be the date of the
decision. It should be made operative from 1st April, ]988, which is the
commencement of the current financial year. We would accordingly direct that
the pension and revised gratuity scheme should be made operative from 1.4.1988.
407 We see no reason to interfere in the matter of claim for medical
reimbursement. The Society has extended the benefit of medical allowance which
is a known form in respect of even government servants not covered under the
C.G.H. Scheme. But here again the benefit should be operative from 1st April,
to the Leave Travel Concession advantage, the same should be available from 1st
April, 1988, while permitting the visit to the home town once in a block of two
years. In terms of the recommendation of the Academic Study Group, we are
inclined to extend the benefit of Leave Travel Concession for visiting any
place in India once in a block of four years. When such scheme is being
accepted even by non-government employers on the basis that these visits
improve the quality of service, we extend it to the Sainik School employees
effective from 1.4.1988.
of the employees have accommodation provided by the Sainik Schools and
according to the Respondent No. 1 free furnished accommodation is provided.
There may be cases where in the absence of such accommodation the employees may
be living in rented accommodation, but we do not think that we should interfere
in respect of this claim.
other claims raised do not appear to be reasonable except the prayer for
providing house construction loan, scooter, car purchase loan. This is really nOt
a heavy burden and out of the fund to be created loans are to be provided and
the loan amounts are recoverable with concessional interest. According to
modern thinking these advantages are normal service benefits. A residential
accommodation adds to the security of the employee and a conveyance adds to his
mobility. We are of the view that this benefit should be admissible to the
employees. The Society shall, therefore, create an appropriate fund either to
be operated through every college or through such method as may be found
convenient for entertaining claims for house construction loan and loans for
purchase of scooter, car etc. as may be admissible in terms of the scheme to be
framed. We direct that the further benefits which we have granted by our
present order should be made available to the employees by the end of 31st March, 1989. The writ petition is accordingly
disposed of. There shall be no order as to costs.
we part, we would like to place on record that learned Additional Solicitor
General appearing for respondent No. 1 had candidly stated in Court that if
over PG NO 408 and above what the Board of Governors had decided to sanction,
if this Court was of the view that some more benefits should be given, the same
may be ordered.
Petition disposed of.