# [1979] 1 S.C.R. 609

- **Citation:** [1979] 1 S.C.R. 609
- **Court:** Supreme Court of India
- **Decided:** 1978-09-11
- **Case number:** Civil Appeal No. 927 of 1976
- **Bench:** Y. V. Chandrachud, R. S. Sarkaria, N. L. Untwalia, 0. Chinnappa Reddy, A. P. Sen
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1979-1-s-c-r-609-7600
- **Pages:** 8

## Headnote

Constitution of India-Article 30(1) Kerala Education Rules 1959-Rule
12(iii).
The right of a n1inority educational Institute-Whether state can refuse a
rninority 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 194 7. The necessary sanction was
accorded by the Govt. of Travancore. O'nly 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 compourid to provide accom;.
modation 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 boys' school for
25 yea.rs. 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 specifi·
cally 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 to the conclusion that
since only boys were admitted in the school for a long time the ~eJf·imposed
restriction by the management made· it a boys' school and that the authorities
bad 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,
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SUPREME COURT REPORTS
[ 1979] 1 S.C.R.
A
HELD: (1) The ambit and content of Art. 30 of the Constitution has
B
been the subject matter of consideration and pronouncement by this Collrt
in several decisions. [614 Al
In Re Tlte Kera/a Education Bill, 1957, [1959) SCR 995; Tile Alimedabad
St. Xaviers College Society & Anr. etc. v. State of Gujarat -& Anr., [1975] t
SCR I 73 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 main~
taining 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.
C
morality and so on and so forth. [615 A-CJ
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(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 \vholly 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 n

## Text

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609
RT. REV. MAGR. MARK NETTO
v .
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GOVT. OF KERALA & ORS.
September 11, 1978
[Y. V. CHANDRACHUD, CJ., R. S. SARKARIA, N. L. UNTWALIA,
0. CHINNAPPA REDDY AND A. P. SEN, J.T.J
Constitution of India-Article 30(1) Kerala Education Rules 1959-Rule
12(iii).
The right of a n1inority educational Institute-Whether state can refuse a
rninority 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 194 7. The necessary sanction was
accorded by the Govt. of Travancore. O'nly 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 compourid to provide accom;.
modation 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 boys' school for
25 yea.rs. 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 specifi·
cally 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 to the conclusion that
since only boys were admitted in the school for a long time the ~eJf·imposed
restriction by the management made· it a boys' school and that the authorities
bad 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,
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SUPREME COURT REPORTS
[ 1979] 1 S.C.R.
A
HELD: (1) The ambit and content of Art. 30 of the Constitution has
B
been the subject matter of consideration and pronouncement by this Collrt
in several decisions. [614 Al
In Re Tlte Kera/a Education Bill, 1957, [1959) SCR 995; Tile Alimedabad
St. Xaviers College Society & Anr. etc. v. State of Gujarat -& Anr., [1975] t
SCR I 73 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 main~
taining 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.
C
morality and so on and so forth. [615 A-CJ
D
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(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 \vholly 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 prevented from doing so on valid.
lega-1 and reasonable grounds and not otherwise. The permission in the pre·
sent 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' empo\vered 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-FJ
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 927 of 1976.
App~al 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.
R
K. T. Harindernath and K. R. Nambiar for Respondents 1-3.
A. S. Nambiar, Mrs. Pushpa Nambiar and Miss M. Poduval for
Re(lpondent No. 4.
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l\T, REV. MAGR. MARK v. KERALA ( Untwallii, !.)
611
Frank Anthony, R. Salish, and E. C. Agarwala for the Intervener
Fr. Powathil.
The Judgment of the Court was delivered by
UNTWALIA, J.-Titls is an appeal by special leave from the
judgment of the Kerala High Court dismissing the appellanl's
writ
application for quashing the order dated
June 5,
1973
of the
Regional Deputy Director of Public Instruction, Trivandrum and the
order dated May 2, 1974 of the District Education Officer
iS1Sued
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 Chrii;tian 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 dibpute that as a matter of fact only boy students were admitted
in th~ School till the end of academic year 1971-72. In the
year
folio\\ ing 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
stude1Hs in the School, although according to his case, it was strictly
not mcessary 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
eontai/,1ed in the said letter is t_hat St. Vincent's High School, Kaniyaμuram. 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.
There 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
to be situated within a radius of one mile from the School iii question
seem~ to have objected to the grant of permission for admission of
girl students in the St. Vincent's High School. The girls' School was
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(1979] 1 S.C.R.
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 admitted 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 bee'n 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 boys'
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 b~ 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 tll'~
child reaches the secondary school stage it
would
have
grown up a little. At that age to keep them under proper
guidance and discipli~ 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
comG
munity."
There is no dispun~ that the School was an existing School within
the meaning of Section 2(3) of the Act.
Thus within the permis-
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sible limits without violating the protection given
to
a minority
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institution under Article 30 of the Constitntion, the Act and
the
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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-
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RT. REV. MAGR. MARK v. KERALA (Untwalia, J.)
613
mission to some or all of the Standards is restricted to girls shall be
A
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) sha11 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 fssue a general permission to boys
below the age of twelve to be admitted to classes net higher
than Standard VII in particular Girls' Schools provided there
are no Boys' Schools in the locality. But such boys on completing th~_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 a11 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
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to exempt a particular institution from this Rule meaning thereby
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that if the School authorities so want, they may rnn the School for
, the admission of the boys or the girls only.
Similarly clanse (ii)
of Ru1e 12 suggests that admission to Secondary Schools which are
specifically recognised as Girls' Schools
shall be restricted to girls
only. bnt with the permission of the Director boys below the age of
twelve may be admitted.
The purport of impugned
clause (iii),
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however, is to enable the Director to permit the admission of girls
into Secondary Schools for boys in areas and towns where there are
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SUPREME COURT REPORTS
[1979] 1 S.C.R.
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 starti'ng from In Re The Kerala Education Bill,
1957(') 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.,(') Hidayatullah, CJ., 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 ma'nagement
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 k~ach, and to a certai'n 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.
Th~ minority institutions cannot be allowed to
fall below the standards of excellance 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 Mt 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 and Rev. Father W. Proost & Ors. v. Stat·~ of Bihar-
(1969) 2 S.C.R., 73.
I'n the last case it was said that the
(l) [1959] S. C. R. 995
(1) [1975] l S. C.R. 173.
(l) [1971] I S. C. R. 734.
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RT. REV. MAGR. MARK v. KERALA ( Untwalia, !.)
615
right need not be enlarged nor whittled down. The ConstiA
tUtion speaks of administration and that must fairly be left
to the minority institutions and no more."
In th: case of St. Xaviers College, Ahmedabad (supra) the iiiajority
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
tight. 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, hea1th, morality
and so o'n 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 constitutiona>ity 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.
Th:: dominant object of the said
Rule does not seem to be for the sake of discipline or mornlity. 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
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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 apprehehded 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. 1'hey 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
E
matter the Rule in question in its wide amplitude sanctioning the withholding of permission for admission of 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
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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 Ru'Je 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 2-5-1974 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.
•