The Corporate Manager, Devamatha Educational Agency v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **THURSDAY ,THE 03RD DAY OF JANUARY 2019 / 13TH POUSHA, 1940** ## **WP(C).No. 39568 of 2015** ## **PETITIONER:** **THE CORPORATE MANAGER, DEVAMATHA EDUCATIONAL AGENCY AGED 57 YEARS, DEVAMATHA PROVINCIALHOUSE, THRISSUR - 22.** **BY ADV. DR.GEORGE ABRAHAM** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL**| ||**EDUCATION DEPARTMENT, TRIVANDRUM - 695 001.**| |**2**|**THE DIRECTOR OF PUBLIC INSTRUCTION,**| ||**JAGATHY, TRIVANDRUM - 695 014.**| |**3**|**DEPUTY DIRECTOR OF EDUCATION,**| ||**THRISSUR - 680 001.**| |**4**|**ASSISTANT EDUCATIONAL OFFICER,**| ||**MALLASSERY, THRISSUR DISTRIT - 680 001.**| ## **BY SR. GOVERNMENT PLEADER ADV.S GOPINATHAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 39568of 2015** **-:2:-** ## **JUDGMENT** The admission of girl students in one of the schools run by the petitioner (Little Flower Lower Primary School, Pavaratty) is the issue in this writ petition. The Government declined, as per Ext.P16, after pointing out existence of mixed schools in the area. In fact, the question that has to be considered is, whether girls can be admitted in a school, which is categorised as Boys' school? 2. The Hon'ble Apex Court had occasion to consider this matter in Rt.Rev.Mark Netto v. Govt. of Kerala [1978 KLT 798] in paragraph 4 held as follows: _'”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_ **WP(C).No. 39568of 2015** ## **-:3:-** _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 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.”_ 3. The Hon'ble Supreme Court, also considered the right of minority institution to administer the school by admitting both boys and girls and further observed in the aforesaid judgment as follows: _“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 Ext.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 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 does not want to admit them. The self imposed restriction by the_ **WP(C).No. 39568of 2015** ## **-:4:-** _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 Peraira for opening the school in 1947 as a High School. No restriction in terms is imposed for not admitting any girls 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 05.06.1973 of the Regional Deputy Director of Public Instruction as also from the passage of the High Court judgment which we have abstracted above the permission sought for by the appellant for admission of girls in the St.Vincents 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, since to be “that it will be better for the girls to get instruction in girls school 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_ **WP(C).No. 39568of 2015** ## **-:5:-** _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 girls students in the boys 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 administration of the institution, a right which is guaranteed to the minority under Article 30. The Rules, 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 5.6.1974 and 2.5.1974 passed by the Regional Deputy Director and the District Education Officer respectively are bad and invalid and must be quashed.'”_ 4 . Following the above judgment, the learned Judge of this Court in writ petition No.18842 of 2016, ordered that a girl student shall be admitted in a Boys' School. In such a scenario, the only question to be considered is, whether the petitioner who is claiming minority institution **WP(C).No. 39568of 2015** ## **-:6:-** status can admit such girl student or not? The admission of girl students cannot be denied, merely on the reason that there are mixed schools in the neighbourhood. Therefore, the impugned order is set aside and the matter is remitted back to reconsider, after adverting to the judgment of the Hon'ble Apex Court aforementioned as well as W.P. (C) No.18842 of 2016, within a period of two months, after notice to the petitioner. This writ petition is disposed of accordingly. ## **- Sd/** ## **A.MUHAMED MUSTAQUE** **JUDGE** DST **WP(C).No. 39568of 2015** **-:7:-** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 P1 - TRUE COPY OF THE ORDER GO(RT) NO. 4260/13/GEN.DEN DT. 5TH OCTOBER, 2013.** - **EXHIBIT P2 P2 - TRUE COPY OF THE RESOLUTION PASSED BY THE P.T.A ON 5/1/2011.** - **EXHIBIT P3 P3 - TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE P.T.A** - **EXHIBIT P4 P4 - TRUE COPY OF THE COMMUNICATION DT. 07.07.2011 BY DY. DIRECTOR OF EDUCATION.** - **EXHIBIT P5 P5 - TRUE COPY OF THE PERMISSION ISSUED BY THE MANAGER OF ST. THOMAS MONASTRY, DT. 08.2.2011.** - **EXHIBIT P6 P6 - TRUE COPY OF THE COMMUNICATION DT. 15.11.2013 ISSUED BY THE CORPORATE MANAGER OF CARMELITE CONGREGATION.** - **EXHIBIT P7 P7 - TRUE COPY OF THE COMMUNICATION ISSUED BY THE MANAGER SAHRUDAYA DEEPIKA LOWER PRIMARY SCHOOL DT. 15.11.2013.** - **EXHIBIT P8 P8 - TRUE COPY OF THE NOC FROM CORPORATE EDUCATION AGENCY, UNDER ARCH DIOCESE DT. 18.11.2013.** - **EXHIBIT P9 P9 - TRUE COPY OF THE REQUEST MADE BEFORE THE A.E.O DT. 11.11.2013** - **EXHIBIT P10 P10 - TRUE COPY OF THE REQUEST SUBMITTED BY THE PETITIONER DT. 2.12.2013 BEFORE THE DIRECTOR OF PUBLIC INSTRUCTION.** - **EXHIBIT P11 P11 - TRUE COPY OF THE STATEMENT OF FACTS SUBMITTED ON 14.5.2015 BEFORE THE D.P.I.** - **EXHIBIT P12 P12 - TRUE COPY OF THE ORDER OF D.P.I DT. 430//2015.** - **EXHIBIT P13 P13 - TRUE COPY OF THE REVISION SUBMITTED BY THE PETITIONER DATED 9TH JULY, 2015.** **WP(C).No. 39568of 2015** ## **-:8:-** |**EXHIBIT P14**|**P14 - A COPY OF THE JUDGMENT IN WPC NO.**| |---|---| ||**21452/2015 DT. 16/7/2015.**| |**EXHIBIT P15**|**P15 - A COPY OF THE NO OBJECTION**| ||**CERTIFICATE DT. 3.09.2015, ISSUED BY THE**| ||**PAVARATTY GRAMAPANCHAYAT.**| |**EXHIBIT P16**|**P16 - A COPY OF THE GOVERNMENT ORDER,**| ||**GO(RT) NO. 5477/15/GEN.EDN.DT.**| ||**20.11.2015.**| |**RESPONDENTS EXHIBITS : NIL**|| **//True Copy// P.A.To Judge**