Holding

The Sainik School Society is a ‘State’ within Article 12, but its employees constitute a distinct class and the claim for equal pay for equal work with Kendriya Vidyalaya employees is not tenable.

Summary

The All India Sainik Schools Employees Association filed a petition under Article 32 seeking a mandamus directing the Sainik School Society to grant its employees the same service benefits and equal pay as those of Kendriya Vidyalaya (KVS) staff. The Court examined whether the Society, a body registered under the Societies Registration Act, qualifies as a ‘State’ within Article 12 of the Constitution and consequently whether Article 14 and Directive Principle Article 39(d) could be invoked for equal‑pay claims. It held that the Society is indeed a ‘State’ because its funding and control are largely by the Central and State governments, but its employees form a separate class and cannot be treated as Central Government employees. Accordingly, the claim for equal pay for equal work was rejected, though the Court ordered specific benefits such as medical allowance, leave‑travel concession, and housing loans to be provided from April 1988. The petition was ultimately dismissed.

Issues considered

Whether the Sainik School Society is a ‘State’ within the meaning of Article 12 of the Constitution.
Whether employees of the Society can claim equal pay for equal work with KVS employees under Article 14 and Directive Principle Article 39(d).
Whether the petition alleging discrimination in service conditions is maintainable.
Whether specific service benefits (medical, leave‑travel, house‑rent, pension, etc.) should be granted to Sainik School employees.

Legislation cited

Constitution of Indias. Article 12, s. Article 14, s. Article 39(d)
Societies Registration Act, 1860

Subjects

State liabilityArticle 12Article 14Equal pay for equal workSainik SchoolsService conditionsDirective PrinciplesDiscriminationCentral vs State funding

Judgment

A ALL INDIA SAINIK SCHOOLS EMPLOYEES ASSOCIATION
v.
DEFENCE MINISTER-CUM-CHAIRMAN BOARD OF
GOVERNORS, SAINIK SCHOOL SOCIETY,
NEW DELHI & ORS.
B OCTOBER 4, 1988

[RANGANATH MISRA AND M.N. VENKATACHALIAH, JJ.)

Civil Services: Sainik School employees-Cannot be treated as
Central Government employees-Cannot be treated on par with
c 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 work'-Whether tenable.
D Words and Phrases: 'Sainik Schools'-What are.

The All India Salnlk 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
E 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 Polley.
F
Disposing of tte petition, this Court,
'··
HELD: (1) The entire funding of the Salnlk Schools Is· by the
State Governments and the Central Government. The overall control
vests in the governmental authority. It cannot therefore be doubted
G that the Sainik School Society is 'State' within the meaninfi of Article
12. [405C)

(2) Once It Is held that the Salnlk School Society Is 'State', appli-
cation of ,4.rtlcle 14 Is attracted. Simllarly under the Directive Princi·
IH pies, the claim for equ.al pay for equal work becomes tenable. [40SD)

398
SAINIK SCHOOLS EMPLOYEES v. SOCIETY 399

(3) Substantial contribution for running the Sainik School comes
A
from the funds of the State where the school is located. The Cen·
tral 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 can·
not tie treated as Central Government employees nor can they· be
treated as at par with the employees of Kendriya Vidyalayas. They B
are a class by themselves. [405F-G] ·

( 4) In view of the position that the employees of the Sainik Society
are a distinct class by themselves, there is no Il!erit in the claim that
there has been discrimination. To put unequals as equals is against tlie
objective of Article 14. [405G]
c
(5) 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 currlCulum, _the pattern of teaching,_i~e Hie style; the discipfuie nnd
attention differ. A claim for equal pay on the allegation of equal work D
requires 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]

(6) The Sainik School Society being, 'State' is amenable to the E
jurisdiction of the Court and it is open to the court to examine whether
the conditions of service are of an acceptable pattern. [406Ef

(7) The Court accordingly examined the petitioner's demnnds
and passed appropriate orders directing specific reliefs in terms of
medical, leave travel concession benefits and house b.;ildlng and other F
advances. The Court however found nothing unreasonable in the condl·
tion of service pertaining to age of retirement: [407G]

Ajay Hasia & Ors. v. Khalid Mujib Sehravardi & Ors., [1981] 1
SCC 722 and International Airport Authority case., [1979] 3 SCC 489 .
.G
ORIGINAL JURISDICTION: Wnt Petition No. 1219 of
1987.
r)
(Under Article 32 of the Constitution of India.)

T.S. Krishnamoorthy Iyer, P.N. Puri and R.K. Talwar for the H
Petitioner.
400 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

A 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. Rangamfor the Respondents.

The Judgment of the Court was delivered-by

B RANGANATH MISRA, J. This application is under Article 32
of the Constitution. The All India Sainik Schools Employees Associa-
tion 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 Associa-
tion is: · ·
c \
"'to 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
D life."

With a view to implementing this object 18 schools located in different
States of the country have been established. The petitioner has
impleaded the Chairman and Members of the Board of Governors of
the Society as respondents l to 6; Ministers of Education of the seven-
j;: teen 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. 1:

(1) to implement the recommendations of the Fourth Pay
Commission in the Sainik Schools and to extend all the benefits
f . already gi~en to employees of the Kendriya Vidyalayas by way
of implementing the recommendations of the. Chattopadhya
·Comnlission;

(2) to give to the employees of the Sainik Schools the diffe-
rential wages in terms of the Third Pay Commission between
G 1973 (when it applied to Government institutions) and 1978
(when the benefits were extended to the employees of the Sainik
Schools);

(3) to direct that the employees of the Sainik Schools shall
have the benefits of leave travel concession, house rent, pension,
H _group insurance, contributory provident fund, pensionary
SAINIK SCHOOLS EMPLOYEES '· SOCIETY [MISRA, J.] 401

benefits and gratuity in the same pattern as obtaining in A
Kendriya Vidyalaya Sangthan or given to Defence Services Of-
ficers working in the Sainik Schools, and;

(4) enhance the age of superanuation to 60 years as in the
case of Kendriya Vidyalaya employees.
B
When notice was issued to the respondents, respondent No. 1
alone entered appearance and made a return. Ap.art from raising cer-
tain 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
c
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 D
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/scho-
larships is fixed by the Board of Governors from time to time ta!Cing
into consideration the financial position. - - .
E
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 F
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 averrnent 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 G
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 · H
402 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R. ·

A equal work cpntained in Article 39(d) of the Constitution is miscon-
ceived inasmuch as unless the nature and the status of the service is the
same there can be no equality.

On behalf of the petitioner a rejoinder has been filed reiterating
some of the averments in the main petition and meeting some of the
B pleadings in the counter affidavit of respondent No. l.

During the pendency _of this application, the Board of Governors
decided to extend certain' advantages and benefits to the empfoyees 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 indicat-
e ing 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 conces-
sions extended by the Society and in our view what is claimed as
subsisting items / may now be dealt with. These are:

1. The age of retirement should be 60 years applicable to
D all categories of employees being the same as obtaining in the
case of employees of the Kendriya Vidyalaya Sangathan
(K.V.S.).

2. Bonus and gratuity should be effective from i. i.1986
and employees who have either retired or resigned after that
E date should be given benefit of the Contributory Provident Fund
and gratuity at Central Government rates.

3. Medical reimbursement should be provided on the same
basis as admissible to K.V.S. and Central Government
employees.
F
4. Leave Travel Concession including once in a block df
four years to travel anywhere in India as available to employees
of K.V.S. and Central Government employees should be
available.

G · S: Le.ave rules to all categories of employees should be
placed at par wit~ employees of K.V.S ..

6. House Rent Alf0wance should be granted with effect
from l.10. 1986, at par with Ce-ntral Government employees. ·
<
H 7. The pay scale recommended by the Chattopadhyay
SAJNIK SCHOOLS EMPLOYEES v. SOCIETY [MISRA, J.] 403

Commission to Teachers should be effective from 1. 1.1986.
A
8. The Librarians should be given the benefit of pay revi-
sion as per the Chattopadhyay Commission pay scale with effect
from l. 1. 19'86.

9. Office Superintendent, Accountants and Personal B
Assistant to the Principals should be given the same pay as their
counterpart receive from the Central Government with effect
from 1. 1. 1986.

10. Nursing Sisters/Assistants/Compouders should be
granted pay scales at par with Pharmacists in Central Govern- C
ment under Para-Medical Staff as per recommendations of the
4th Pay Commission with effect from 1.1.1986.

11. House Construction Loan, Scooter and Car Purchase
Loan should be granted at par with K.V.S./Central Governmrnt
Scheme. D

12. 15% extra pay over and above scales admissible to
K. V .S. teachers should be admissible to the Sainik School
teachers.

13. The difference in wages between 1.1.1973 and 30th E
June, 1978 on account of delayed implementation of the 3rd Pay
Commission's recommendations should be paid.

14. Bonus for 1984-85 and 1985-86 should also be paid at
par with K.V.S.
F
15. 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 given postings.

As we have already indicated, it is the contention of the
petitioner that the Sainik School Society is 'State' within the meaning G
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 4
' of the Constitution by way of Directive Principles of State Policy.

A Constitution Bench of this Court in Ajay Hasia & Ors. v.
Khalid Mujib Sehravardi & Ors., (1981] 1 SCC 722 was considering H
404 SUPREME COURT REPORTS (11188] Supp. 3 S.C.R.

A whether a Society registered under the 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 SCC 489. Those tests are: .

B "(1) 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.

(2) Where the financial assistance of the State is so
much as to meet almost entire expenditure of the Corpora-
c tion, it would afford some indication of the Corporation
being impregnated with Governmental character. ·

(3) It may also be a relevant factor ..... whethe·r the
Corporation enjoys monopoly status which is a State con-
D . ferred or State protected.

(4) Existence of deep and pervasive State control
may afford an indication that the Corporation is a State
agency or instrumentality.

E (5) If 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.

(6) "Specifically, if a department of Government is
F transferred to a Corporation, it would be a 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
G and several others elsewhere was 'State'. Having said so, this Court
pointed out:

"It 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
H the_JJosition of State for the purpose of Articles 309, 310
SAINIK SCHOOLS EMPLOYEES v. SOCIETY [MISRA, J.[ 405

and 311 which find a place in Part XIV. The definition of
State in Article 12 which includes an authority within the A
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
B
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 SchoQ!_ 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 c
the purpose of feeding the National Defence Academy. Defence of the '
country is one of the regal functions of the State.

Once it is held that the Sainik School Society is 'State' within the
meaning of Article 12 of the Constitution, application of Article 14 is
D
attracted. Similarly under the Directive Principles-the claim for
equal pay for equal work becomes tenable.

The 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 com-
parable to employees of K.V.S. and the Central Government are not E
being given the same treatment. K.V.S. is a creation of the Govern-
ment of India 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 F
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 avail- G
able. To put unequals as equals is against the objective of Article 14; in
the 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
H
discrimination.
406 SUPREME COURT REPORTS [ 1988] Supp. 3 S.C.R.

A Similarly the claim of equal pay for equal work is indeed not
tenable. No acceptable material has been placed before us to sup-
port the stand that the work in the two institutions is equlll. 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
a work requires clear material to support the ba5is 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,)he life style, the disci-
C pline and attention differ. The Sainik Schools are totally residential
and the teacher is provided accommodation within the complex with a
1 view to exposure of students to the teacher throughout the period and
allow the teacher to exercise regulation over the students at all mate-
rial times. The teacher is also expected to interact with the students
beyond the class room. The Principal of the Sainik School is a defence
D service officer; so is the Headmaster for the lower classes; the Physical
Instructor is also drawn from the Anny. 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
E to the court to examine whether the conditions of service are of an
acceptable pattern.

The 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
F 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. !. 1.1986. Keeping the mode of funding in view, we do not think
the liability that would arise by ante-dating the benefit from !. 1.1986
G can be conveniently met. We, however, see no reason why the benefit
should be extended only from 29.7.1988, which is said tP be the date of
the decision. It should be made operative from lst April, 1988, which
is the commencement of the current financial year. We would accord·
ingly direct that the pension and revised gratuitY scheme should be
H made operative from 1.4.1988.
SAINIK SCHOOLS EMPLOYEES v. SOCIETY [MISRA, J.I 407

We see no reason to interfere in the matter of claim for medical
A
reimbursement. The Society has extended the benefit of medical allo-
wance which is a known form in respect of even goJernment servants
not covered under the C.G .H. Scheme. But here again the benefit
should be operative from 1st April, 1988.

Coming to the Leave Travel Concession advantage, the same B
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 recom-
mendation 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 c
employees effective from 1.4. 1988.

Most 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 D
of such accommodation the employees may be living in rented accom-
modation, but we do not think that we should interfere in respect of
this claim.

The other claims raised do not appear to be reasonable except the .
prayer for providing house_ construction loan, scooter! car _purchase E
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 modem 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 F
tile 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 G
made available to the employees by the end of 31st March, 1989. The
I .
clisposed
writ petition is iaccorruiigly
• --
\of. There shall be no order as to
costs,

Before we part, we woilld like to place on record that learned
Additional Solicitor General _llPl'eariEf! for resp_ondent r-i:o. 1 had
408 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

candidly stated in Court that if over 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.

R.S.S. Petition disposed of.