Full Judgment Text
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PETITIONER:
ALL INDIA SAINIK SCHOOLS EMPLOYEES ASSOCIATION
Vs.
RESPONDENT:
DEFENCE MINISTER-CUM-CHAIRMAN BOARD OFGOVERNORS, SAINIK SCHO
DATE OF JUDGMENT04/10/1988
BENCH:
MISRA RANGNATH
BENCH:
MISRA RANGNATH
VENKATACHALLIAH, M.N. (J)
CITATION:
1989 AIR 88 1988 SCR Supl. (3) 398
1989 SCC Supl. (1) 205 JT 1988 (4) 22
1988 SCALE (2)868
ACT:
Civil 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 work’--Whether tenable.
Words and Phrases: ‘Sainik Schools’--What are.
HEADNOTE:
The 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.
Disposing of the petition, this Court,
HELD: (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]
(2) 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
(3) 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
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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]
(4) In 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
14. [405G]
(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 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]
(6) 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]
(7) 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.,
[1981] 1 SCC 722 and International Airport Authority case.,
[1979]3 SCC 489.
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition No. 1219 of 1987.
(Under Article 32 of the Constitution of India. )
T.S. Krishnamoorthy Iyer, P.N. Puri and R.K. Talwar for
the Petitioner.
PG NO 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 the Respondents.
The 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:
‘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 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 1 to 6;
Ministers of Education of the seventeen States as
respondents 7 to 23 and Principals of the 18 schools as
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respondents 24 to 41 The petitioner has asked for a writ of
mandamus to the Union of India as also respondent No. l:
(1) to 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 Commission;
(2) to 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 Sainik Schools);
(3) to 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;
(4) enhance the age of superanuation to 60 years as in
the case of Kendriya Vidyalaya employees.
When 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
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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 pleadings in the counter affidavit of
respondent No 1.
During 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:
1. The 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
(K.V.S.).
2. 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.
3 Medical reimbursement should he provided on the same
basis as admissible to K.V.S. and Central Government
employees.
4. 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.
5. Leave rules to all categories of employees should be
placed at par with employees of K.V.S.
6. House Rent Allowance should be granted with effect
from 1.10.1986, at par with Central Government employees.
7. The pay scale recommended by the Chattopadhyay
Commission to Teachers should be effective from 1.1.1986.
PG NO 403
8. The Librarians should be given the benefit of pay
revision as per the Chattopadhyay Commission pay scale with
effect from 1.1.1986.
9. 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.
10. 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.
11. House Construction Loan, Scooter and Car Purchase
Loan should be granted at par with K.V S./Central
Government Scheme.
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
June, 1978 on account of delayed implementation of the 3rd
Pay Commission’s recommendations should be paid.
l4. Bonus for 1984-85 and 1985-86 should also be paid at
par with K.V.S
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’
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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.
A Constitution Bench of this Court in Ajay Hasia & Ors.
v. Khalid Mujib Sehravardi & Ors., [1981] 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:
"(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
Corporation, it would afford some indication of the
Corporation being impregnated with Governmental character.
(3) It may also be a relevant factor .... whether the
Corporation enjoys monopoly status which is a State
conferred or State protected.
(4) Existence of deep and pervasive State control may
afford an indication that the Corporation is agency or
instrumentality.
(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
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:
"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
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.
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 attracted.
Similarly under the Directive Principles--the claim for
equal pay for equal work becomes tenable.
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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 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;
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 discrimination.
PG NO 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;
the 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.
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 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
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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.
PG NO 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, 1988.
Coming 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.
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 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.
The 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.
Before 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.
R.S.S. Petition disposed of.