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PETITIONER: RT. REV. MAGR. MARK NETTO

       Vs.

RESPONDENT: GOVT. OF KERALA & ORS.

DATE OF JUDGMENT11/09/1978

BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. CHANDRACHUD, Y.V. ((CJ) SARKARIA, RANJIT SINGH REDDY, O. CHINNAPPA (J) SEN, A.P. (J)

CITATION:  1979 AIR   83            1979 SCR  (1) 609  1979 SCC  (1)  23

ACT:      Constitution of  India-Article 30(1)  Kerala  Education Rules 1959-Rule 12(iii).      The right  of a  minority educational Institute-Whether state can  refuse a  minority educational  institution  from admitting the girl students.

HEADNOTE:      The appellant  opened a  High  School  mainly  for  the benefit of  the students  of the  Christian community in the year 1947.  The necessary sanction was accorded by the Govt. Of Travancore.  Only boys  were admitted  in the school till the end  of the  academic year  1971-72. In  the  subsequent year, the  management constructed  building  in  the  school compound to  provide accommodation  for girl  students.  The Manager  applied   to  the   Regional  Deputy  Director  for permission  to  admit  girl  students  in  the  school.  The regional  Deputy  Director  refused  to  give  sanction  for admission of  the girl  students. The main ground of refusal was that  the school  was not  opened as  a mixed school and that the  school had  been running  purely as a boy’s school for 25  years. Another  reason  given  was  that  there  was facility for the education of the girls of the locality in a near-by girls  school which  was established  by the Muslims and was  also a minority institution. An appeal filed before the educational authority failed.      Under rule  12(i) of  Kerala Education  Rules, 1954 all primary schools  are deemed  to be  mixed  schools  and  the admission thereto  shall be  open to  boys and  girls alike. Under the  special circumstances  the  Director  may  exempt particular institutions  so that  admission thereto might be restricted to  boys or  girls.  Rule  12(ii)  provides  that admission to  schools which  are specifically  recognised as girls’ schools  shall be  restricted to  girls. However, the Director has  power to empower boys below 12 years up to 7th standard to  be admitted.  Rule 12(iii)  provides  that  the girls may  be admitted  in schools  for boys  if in the town there are no girls’ schools.      The appellant  filed a  writ petition in the High Court

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challenging the  order of  the educational  authorities. The High Court  came lo the conclusion that since only boys were admitted in  the school  for a  Long time  the  self-imposed restriction by  the management  made it  a boys’  school and that the  authorities have  powers  under  rule  12(iii)  to prevent the  school from admitting the girls. The High Court held that the basis of the rules was that as far as possible girls should  be given  education in girls’ schools only and that it was in the nature of regulation for discipline.      Allowing the appeal the Court, 610 ^      HELD: (1)  The ambit  and content  of Art.  30  of  the Constitution has  been the  subject matter  of consideration and pronouncement  by this  Court in several decisions. [614 A]      In Re  The Kerala  Education Bill 1957, [1959] SCR 995; The Ahemdabad  St. Xaviers  College Society  & Anr.  etc. v. State of Gujarat & Anr. [1975] 1 SCR 173 referred to.      The right  conferred on  the religious  and  linguistic minorities to  administer educational  institutions of their choice is  not an absolute right. The right is not free from regulation. Just  as regulatory  measures are  necessary for maintaining  the   educational  character   and  content  of minority institutions,  similarly  regulatory  measures  are necessary  for   ensuring  orderly,   efficient  and   sound administration of  the school  in the  matter of maintaining discipline, health, morality and so on and so forth. [615 A- C]      (2) The  dominant object of rule 12 is not for the sake of  discipline   or  morality.   Any  appreciation   of  the deterioration in  the moral  standard of  Students,  if  co- education is  permitted in  secondary schools, does not seem to be  the main  basis of  the rule,  although it  may be  a secondary one. [615 E-F]      (3) The  self-imposed restriction  by the management in vogue for  a number  of years restricting the administration for boys  only is wholly insufficient to cast a legal ban on them not  to admit  girls. While granting the permission for opening the  school  no  restriction  was  imposed  for  not admitting  any   girl  student..  If  the  successor  school authorities  wanted   to  depart   from  the   self  imposed restriction, they  could only  be presented from doing so on valid, legal  and reasonable grounds and not other vise. The permission in  the present  case was refused in the interest of the  existing Muslim  Girls’ School.  If the basis of the rule is  that girls should get instructions in girls’ school then  the  rule  violates  the  freedom  guaranteed  to  the minorities to  administer the school of its choice. However, that is  not the  dominant object of the rule. The Christian community in  the locality wanted the girls to receive their education in their school. If rule 12 widely interpreted has empowered the  government to prohibit a minority school from admitting girl  students for  the benefit  of another girls’ school, it  crosses the  barrier of  regulatory measures and comes in  the region of interference with the administration of the  institution, a  right which  is  guaranteed  to  the minority  under  Art.  30.  The  rule,  therefore,  must  be interpreted narrowly  and should  be held  not applicable to minority educational  institution in  a situation  like  the present one.  The Court. therefore, quashed the order of the Educational authorities. [615 G-H, 616 A-F]

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JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 927 of 1976.      Appeal by  Special Leave  from the  Judgment and  order dated 5-3-76 of the Kerala High Court in O.P.. No 2469/74.      V. M.  Tarkunde, Frank  Anthony, R.  Satish and  E.  C. Agrawala for the appellant.      K. T. Harindernath and K. R. Nambiar for Respondents 1- 3.      A. S.  Nambiar, Mrs. Pushpa Nambiar and Miss M. Poduval for Respondent No. 4. 611      Frank Anthony,  R. Satish,  and E.  C. Agarwala for the Intervener  Fr. Powathil.      The Judgment of the Court was delivered by      UNTWALIA, J.-This  is an  appeal by  special leave from the  judgment  of  the  Kerala  High  Court  dismissing  the appellant’s writ  application for  quashing the  order dated June S,  1973 of  the Regional  Deputy  Director  of  Public Instruction, Trivandrum  and the  order dated May 2, 1974 of the District  Education officer issued pursuant to the order aforesaid   of    the   Regional    Deputy   Director.   The constitutional question involved in this appeal is about the vires of  Rule 12(iii) of Chapter VI of the Kerala Education Rules, 1959,  hereinafter called  the Rules. The question is whether the  said rule  is violative of Article 30(1) of the Constitution.      In the  year 1947  Dr. A. G. Pereira, a retired Medical officer, opened a High School at Kaniyapuram mainly for the, benefit of  the students  of the  Christian  community.  The sanction of  the then  Government of  Travancore for opening the  School  was  accorded  to  him  by  letter  dated  21st February,  1947,  Ext.  P-1.  Subsequently  the  School  was transferred to  the Trivandrum  Roman Catholic  Diocese. For the last  more than  25 years the School was administered by this Diocese.  The appellant is the corporate Manager of the Schools  belonging   to  the   Roman  Catholic   Diocese  of Trivandrum. It  is not  in dispute  that as a matter of fact only boy  students were admitted ill the School till the end of  academic   year  1971-72.  In  the  year  following  the management built  a separate building in the School compound to provide  accommodation for  girl  students.  The  Manager applied to  the Regional  Deputy Director  for permission to admit girl students in the School, although according to his case, it  was strictly  not necessary  to do  so in  law. By letter dated  June 5,  1973 Ext.  P-2  the  Regional  Deputy Director refused  to give sanction for admission of the girl students.  The  main  ground  of  refusal  of  the  sanction contained in  the said  letter is  that St.  Vincent’s  High School, Kaniyapuram  the School  in question, was not opened as a  mixed School,  that is to say, for imparting education both to boys and girls and that "the School had been running purely as  a boys’  School for  the last more than 25 years. where is also facility for the education of the girls of the locality in  the near girls’ School situated within a radius of one  mile." As  mentioned in  the letter,  the Manager of Muslim High  School, Kaniyapuram,  which was a girl’s School said lo  be situated  within a  radius of  one mile from the School in  question   seems to have objected to the grant of permission  for  admission  of  girl  students  in  the  St. Vincent’s High School. The girls’ School was 612 established  by   the  Muslims   and  was  also  a  minority institution  within   the  meaning  of  Article  30  of  the Constitution. The  appellant filed  a  revision  before  the

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State Government  from the  order  of  the  Regional  Deputy Director and pending revision many girl students were admit- ted in  the School. The District Education officer wrote the letter dated  2-5-1974, Ext.  P-4 to  the authorities of the St. Vincent’s  High School  that since the admission of girl pupils had  been prohibited  by the Regional Deputy Director no girl  should be  admitted in  the School.  The appellant, thereupon,  challenged   the  orders   of  the   educational authorities by filing a Writ Petition in the High Court.      In the  judgment under  appeal the  High Court has said that. although  girls School  has been  defined in Rule 6 of Chapter II  of the  Rules, a  boys’ School  is  not  defined either in  The Kerala Education Act, 1958, hereinafter to be referred to  as the  Act, or  in the  Rules, since only boys were, admitted  in the  School for  a long  time  the  self- imposed restriction  by  the  management  made  it  a  boy’s School. The  authorities of  the School  could be  prevented from admitting the girls in the School under Rule 12(iii) of Chapter VI of the Rules, even though a separate building has been constructed  for them  in the  same  compound.  In  the opinion of the High Court, to quote its language:-           "The basis of the rule seems to be that it will be      better for  the girls  to  get  instruction  in  girls’      schools as  far as  possible; and  if there is a girls’      school why the parents of the minority community should      insist on  admission of  the girls  in boys’  school is      ununderstandable. By  the time  the child  reaches  the      secondary school stage it would have grown up a little.      At that  age to  keep them  under proper  guidance  and      discipline the  rule is made that they should as far as      possible be  given education  in girls’  Schools  only.      This  is  only  in  the  nature  of  a  regulation  for      discipline and morality. It does not interfere with the      power of  administration of  an educational institution      by a minority community."      There is  no dispute  that the  School was  an existing School within  the meaning  of Section 2(3) of the Act. Thus within  the   permissible  limits   without  violating   the protection given  to a minority institution under Article 30 of the  Constitution, the  Act and  the Rules came to govern this School  also. As already stated, there is no definition of a  boys’ School  either in  the Act  or the Rules. But in Rule 6 of Chapter II it has been provided-"Schools where ad- 613 mission to  some or  all of  the Standards  is restricted to girls shall  be known as Girls’ Schools." Rule 12 in Chapter VI reads as follows:-           "Admission of Boys into Girls’ Schools:-           (i) All Primary Schools (Lower and Upper) shall be      deemed to  be mixed Schools and admission thereto shall      be open  to boys  and girls  alike. But  under  special      circumstances  the   Director  may   exempt  particular      institutions from  this rule  so that admission thereto      might be restricted to boys or girls and in the absence      of such special circumstances the Director may withdraw      such exemption.           (ii) Admission  to  Secondary  Schools  which  are      specifically recognised  as  Girls’  Schools  shall  be      restricted to  girls only, but the Director may issue a      general permission  to boys  below the age of twelve to      be admitted  to classes not higher than Standard VII in      particular Girls’  Schools provided  there are no Boys’      Schools in  the locality.  But such  boys on completing      the-age of  twelve shall  not be allowed to continue in      such schools  beyond the  school  year  in  which  they

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    complete the age of twelve.           (iii) Girls may be admitted into Secondary Schools      for boys  in areas  and in  towns where  there  are  no      Girls’ Schools  and in such cases adequate arrangements      should be  made  for  the  necessary  convenience.  The      admissions will be subject to general permission of the      Director in  particular Boys’  Schools  which  will  be      specified by him."      The language  of  clause  (i)  indicates  that  in  all Primary Schools  admission shall  be open  to boys and girls alike and  such Schools shall be deemed to be mixed Schools. But it  is open  to the  Director  to  exempt  a  particular institution from  this Rule  meaning  thereby  that  if  the School authorities  so want, they may run the school for the admission of  the boys  or the  girls only. Similarly clause (ii) of Rule 12 suggests that admission to Secondary Schools which are specifically recognised as Girls’ Schools shall be restricted to  girls only,  but with  the permission  of the Director boys  below the  age of twelve may be admitted. The purport of  impugned clause (iii), however, is to enable the Director to  permit the  admission of  girls into  Secondary Schools for boys in areas and towns where there are 614 no girls’  Schools. In other words if there are other girls’ Schools permission may be refused for admission of the girls in a  School which  has been  run for imparting education to boys only.      The ambit and content of Article 30 of the Constitution has  been   the  subject   matter   of   consideration   and pronouncement by  this Court  in several  decisions starting from In  Re The  Kerala Education  Bill, 1957(1)  and ending with 9 Judges’ Bench decision of this Court in The Ahmedabad St. Xaviers  College Society & anr. etc. v. State of Gujarat & anr.(2)  In State  of Kerala,  etc. v.  Very  Rev.  Mother Provincial, etc.,(3)  Hidayatullah, C.J.,  speaking for  the Court has said at page 740:-           "There is, however, an exception to this and it is      that the  standards of  education are  not  a  part  of      management as  such. These  standards concern  the body      politic and  are  dictated  by  considerations  of  the      advancement of  the country  and its people. Therefore,      if universities establish syllabi for examinations they      must be  followed, subject  however to special subjects      which the  institutions may  seek to  teach, and  to  a      certain  extent   the  State   may  also  regulate  the      conditions of employment of teachers and the health and      hygiene of  students.  Such  regulations  do  not  bear      directly upon  management as  such  although  they  may      indirectly affect  it. Yet  the right  of the  State to      regulate education,  educational standards  and  allied      matters cannot  be denied.  The  minority  institutions      cannot be  allowed  to  fall  below  the  standards  of      excellence expected  to  educational  institutions,  or      under the  guise of  exclusive right  of management, to      decline  to  follow  the  general  pattern.  While  the      management must  be left to them, they may be compelled      to keep  in step  with others.  These propositions have      been firmly  established in  the  State  of  Bombay  v.      Bombay Education  Society-(1955)  1  S.C.R.,  568;  The      State of  Madras v. S.C. Dorairajan, (1951) S.C.R. 525;      In re the Kerala Education Bill 1957-(1959) S.C.R. 995;      Sidharajbhai v.  State of Gujarat-(1963) 3 S.C.R.. 837;      Katra Education  Society v. State of U.P. & Ors.-(1966)      3 S.C.R., 328; Gujarat University, Ahmedabad v. Krishna      Ranganath Mudholkar and ors.-(1963) Suppl. 1 S.C.R. 112

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    and Rev.  Father W.  Proost &  ors. v.  State of Bihar-      (1969) 2  S.C.R., 73. In the last case it was said that      the      (1) [1959] S. C. R. 995      (2) [1975] 1 S. C. R 173.      (3) [!971] I S. C. R. 734. 615      right need  not be  enlarged  nor  whittled  down.  The      Constitution speaks  of administration  and  that  must      fairly be  left to  the minority  institutions  and  no      more." In the  case of  St. Xaviers  College, Ahmedabad (supra) the majority  decision,  although  by  separate  judgments,  has converged to  the view  that  the  right  conferred  on  the religious   and    linguistic   minorities   to   administer educational institutions  of their choice is not an absolute right. This  right is  not free  from  regulation.  Just  as regulatory  measures   are  necessary  for  maintaining  the educational character  and content of minority institutions, similarly regulatory  measures are  necessary  for  ensuring orderly, efficient and sound administration of the School in the matter  of maintaining  discipline, health, morality and morality and so forth. Even the two learned Judges differing from the majority on some of the aspects of the matter under consideration before  this Court in St. Xaviers College case did  not   depart  from   this  fundamental  principle.  The difference was mainly in the application of the principle in relation to  some of the provisions of the impugned Statute. As summed  up by Das C.J., in the Kerala Education Bill case (supra), the  right to administer an educational institution of their  choice by  a  minority  cannot  mean  a  right  to maladminister. Of  course in  the application of the salient principles mentioned  above opinions have differed from case to case and may differ.      Let us  examine the  constitutionality of  Rule 12(iii) contained in Chapter VI of the Rules and the validity of the impugned orders contained in Exts. P-2 and P-4. The dominant object of  the said Rule does not seem to be for the sake of discipline or morality. Any apprehension of deterioration in the moral standards of students if co-education is permitted in Secondary  Schools does  not seem to be the main basis of this Rule, although it may be a secondary one. The very fact that girls  can be admitted into a boys school situated at a place where  there are  no girls’  school in the town or the area leads  to this  conclusion. It is to be remembered that no category  of a  school as  a boys’ school is specified in the Act  or the  Rules. Nor  was our  attention drawn to any provision enabling  the educational authorities to force the school authorities  to admit  girls in  a school  where they don’t want  to admit  them. The  self imposed restriction by the management  in vogue  for a  number of years restricting the admission  for boys only, per se, is wholly insufficient to cast  a legal  ban on  them not  to admit  girls. The ban provided in Rule 12(iii) as already adverted to is of a very limited character  and for a limited purpose. Permission was granted to Dr. Pereira for opening the school in 1947 616 as a  High School.  No restriction  in terms was imposed for not admitting  any girl  students. If  the successor  school authorities  wanted   to  depart   from   the   self-imposed restriction, they  could only  be prevented from doing so on valid, legal and reasonable grounds and not otherwise. As is apparent from  the impugned  order  dated  5-6-1973  of  the Regional Deputy  Director of Public Instruction as also from the passage  of  the  High  Court  judgment  which  we  have

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extracted above  the permission  sought for by the appellant for admission  of girls  in the  St.  Vincent’s  School  was refused not  on the  ground of any apprehended deterioration of morality  or discipline but mainly; or perhaps, wholly in the  interest   of  the   existing  Muslim   girls’  school, respondent   No. 4,  in the locality. The basis of the Rule, as remarked  by the High Court, seems to be "that it will be better for  the girls  to get instructions in girls’ schools as far  as possible."  If that  be so, then clearly the Rule violates  the   freedom  guaranteed   to  the   minority  to administer the school of its choice. But, as already stated, in our  opinion this is not the dominant object of the rule. The Christian community in the locality, for various reasons which are  not necessary  to be  alluded to here, wanted the girls also  to receive  their education  in this  school and specially of their community. They did not think it in their interest to  send them  to the Muslim girls’ school which is an  educational   institution  run  by  the  other  minority community. In  that view  of the matter the Rule in question in  its   wide  amplitude  sanctioning  the  withholding  of permission for  admission or  girl  students  in  the  boy’s minority school  is violative  of Article  30. If  so widely interpreted it  crosses the  barrier of  regulatory measures and  comes   in  the   region  of   interference  with   the administration  of   the  institution,   a  right  which  is guaranteed to  the minority  under  Article  30.  The  Rule, therefore, must  be interpreted  narrowly and  is held to be inapplicable to  a minority  educational  institution  in  a situation of  the kind  with which  we are concerned in this case. We  do not  think it  necessary or advisable to strike down the  Rule as  a whole but do restrict its operation and make it  inapplicable to  a minority educational institution in a  situation like  the one  which arose  in this case. It follows, therefore,  that the impugned orders dated 5-6-1973 and 2-S-1974  passed by the Regional Deputy Director and the District Education  officer respectively are bad and invalid and must be quashed.      In the  result, we  allow this appeal and set aside the judgment and order of the High Court and grant the relief to the appellant  to the  extent and  in the  manner  indicated above. In the circumstances, we make no order as to costs. P.H.P.                                      Appeal allowed . 617