Full Judgment Text
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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