tion No 1219 of 1987
Under Article 32 of the Constitution of India  TS Krishnamoorthy Iyer PN Puri and RK Talwar for the Petitioner
PG NO 400 Kuldip Singh and B Dutta Additional Solicitor Generals Mahabir Singh CM Nayar AK Srivastava Ms A Subhashini AS Bhasme and AV 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 3a 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 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 GovernmentUnion 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 StateCentral Governments to the students
The quantum of the feesscholarships 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 39d of the Constitution is misconceived 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 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 KVS
Bonus and gratuity should be effective from 111986 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 KVS 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 KVS and Central Government employees should be available
Leave rules to all categories of employees should be placed at par with employees of KVS 6
House Rent Allowance should be granted with effect from 1101986 at par with Central Government employees
The pay scale recommended by the Chattopadhyay Commission to Teachers should be effective from 111986
PG NO 403 8
The Librarians should be given the benefit of pay revision as per the Chattopadhyay Commission pay scale with effect from 111986
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 111986
Nursing SistersAssistantsCompouders 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 111986
House Construction Loan Scooter and Car Purchase Loan should be granted at par with KV SCentral Government Scheme
15 extra pay over and above scales admissible to KVS teachers should be admissible to the Sainik School teachers 
The difference in wages between 111973 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 KVS 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 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
vs Khalid Mujib Sehravardi  Ors  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
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 VS and the Central Government are not being given the same treatment K VS 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 VS
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 2971988
The claim of the petitioner is that it should be with effect from
111986
Keeping the mode of funding in view we do not think the liability that would arise by ante dating the benefit from 111986 can be conveniently met
We however see no reason why the benefit should be extended only from 2971988 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 141988
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 CGH 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 141988
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
RSS Petition disposed of


Summary:
The appellant is an Advocate
Gautam Chand was one of his old clients
The complainant Respondent No l engaged the appellant on being introduced by Gautam Chand to file a Suit against Shri section Anantaraju for recovery of a sum of Rs30098 with Court costs and interest in the Court of City Civil Judge at Bangalore
The appellant passed on the papers to his junior advocate to file the Suit which he did
The complainant s allegation is that the matter in dispute in the suit had not been settled at all and the appellant without the knowledge and without his instructions filed a memo in the Court to the effect that the matter has been settled out of Court and accordingly got the suit dismis sed and also received half of the institution court fee about which the complainant was not aware nor was he informed by the appellant
The complainant s allegation is that he was not informed about the dates of hearing of the suit when inquired he was simply told that the case is posted for filing written statement where his presence was not neces sary
When nothing was heard by the complainant from the appellant about the progress of his suit he personally made inquiries and came to learn to his great surprise that the suit in question had in fact been withdrawn as settled out of Court
The version of the appellant Advocate is that Gautam Chand his old client had business dealings with the plaintiffs Haradara Complainant and the defendant Anantaraju
Anantaraju had also executed an agreement on 9880 to sell his house property to Gautam Chand
He received earnest money amounting to Rs35000 from Gautam Chand
Anantaraju however did not execute the sale deed within the specified time
Gautam Chand approached the appellant for legal advice
The appellant caused the issue of notice to Anantaraju calling upon him to execute the sale deed
A notice was also issued on behalf of the complainant calling upon the defendant Anantaraju demanding certain amounts due on 3 self bearer cheques amounting to PG NO 362 Rs 30098 issued by him in course of their mutual transactions
Gautam Chand and the complainant were friends having no conflict of interests Gautam Chand instructed the appellant and his junior Ashok that he was in possession of the said cheques issued by Anantaraju and that no amount was actually due from Anantaraju to Haradara Complainant
Gautam Chand desired Anantaraju to execute the sale deed
Anantaraju executed the sale deed on 271181 in favour of Gautam Chand even though an order of attachment before judg ment in respect of the said property was in existence
Consequent on the execution of the sale deed the object of the suit was achieved
The complainant did not at any time object
In this back ground the appellant had reasons to believe the information re settlement of dispute conveyed by the three together on 91281
Acting on the said informa tion the appellant asked Ashok his erstwhile junior to take steps to withdraw the suit which he did on 10128l as per instructions received from the appellant noted on the docket of the brief
The state Bar Council called for the comments of the appellant relating to the complaint
No charge was framed specifying the nature and content of the professional misconduct attributed to the appellant
Nor were any issues framed or prints for determination formulated
Instead thereof the Bar Council proceeded to record evidence
As the case could not be concluded within the time limit the matter came to be transferred to the Bar Council of India
The Bar Council off India addressed itself to the three questions viz i Whether the complainant was the person who entrusted the brief to the appellant and whether the brief was entrusted by the complainant to the appellant
ii Whether report of settlement was made without instructions or knowledge of the complainant iii Who was responsible for reporting settlement and instructions of the complainant  The Disciplinary Committee of the Bar Council of India after considering the matter found appellant guilty of professional misconduct and suspended him for practising his profession for 3 years on the charge of having withdrawn a suit not settled without the instruction of the clients
PG NO 363 The appellant has filed the appeal us 38 of the Advocates Act
The following questions arose for consideration by this Court
i Whether a specific charge should have been framed apprising the appellant of the true nature and content of the professional misconduct ascribed to him ii Whether the doctrine of benefit of doubt and the need of establishing the basic allegations were present in the mind of the Disciplinary Authority in recording the finding of guilt or in determining the nature and extent of the punishment inflicted on him iii Whether in the absence of the charge and finding of dishonesty against him the appellant could be held guilty of professional misconduct even on the assumption that he had acted on the instructions of a person not authorised to act on behalf of his client if he was acting in good faith and in a bona fide manner
Would it amount to lack of prudence or non culpable negligence or would it constitute professional misconduct
Disposing of the appeal the Court HELD That the appellant was not afforded reasonable and fair Opportunity of showing cause inasmuch as he was not apprised of the exact content of the professional misconduct attributed to him and was not made aware of the precise charge he was required to rebut
376E F That in recording the finding of facts on the three questions
referred to above
the applicability of the doctrine of benefit of doubt and the need for established the facts beyond reasonable doubt were not realized
Nor did the Disciplinary Committee consider the question as to whether the facts established that the appellant was acting with bona fides or mala fides whether the appellant was acting with any oblique and dishonest motive
whether there was any mens rea whether the facts constituted negligence and if so whether it constituted culpable negligence
Nor has the Disciplinary Committee considered the question as regards the quantum of punishment in the light of the aforesaid considerations and the exact nature of the professional misconduct established against the appellant
376F H 377A The Court in view of the fact that the matter is one of the ethics of the profession which the law has entrusted to the Bar Council of India and it is in their opinion a case which must receive due weight did not consider it PG NO 364 appropriate to examine the matter on merits without first having the opinion of the Bar Council of India
377D Remanding the matter to the Bar Council of India the Court directed it to consider whether it would constitute an imprudent act an unwise act a negligent act or whether it constituted negligence and if so a culpable negligence or whether it constituted a professional misconduct deserving severe punishment even when it was not established or at least not established beyond reasonable doubt that the concerned Advocate was acting with any oblique or dishonest motive or with mala fides
377H 378A LD Jaisinghani vs Naraindas N Punjabi and Re M vs Distt
Judge Delhi 1956 SCR P 811814 referred to