Rt. Rev. Magr. Mark Netto Vs. Govt. of
Kerala & Ors  INSC 161 (11 September 1978)
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
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.
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
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 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,  SCR 995;
The Ahemdabad St. Xaviers College Society
& Anr. etc. v. State of Gujarat & Anr.  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]
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
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 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 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)
Sidharajbhai v. State of Gujarat-(1963) 3
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 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)  S. C. R. 995 (2)  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 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
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 .