1. This writ petition for certiorarified Mandamus arises under the following circumstances. The petitioner is the Manager and Correspondent of Dr. Samuel High School, Santhapuram, Kanyakumari Dist. He belongs to C. S. I. Christian community and he is an Indian Citizen. He is running a school which was established in 1935. It began with a preparatory class by the said Dr. Samuel, who is none other than the father of the petitioner. The school became an English medium School during the year 1938-39, with preparatory class to form III. Both boys and girls were admitted in the school and such school was recognised by the Travancore Government It was upgraded to a High School in the year 1961-62 with the Standard IX and it became a completed High School during 1963-64, and the temporary recognition has been granted to the school under the Madras Education Rules. Both boys and girls have been admitted in the school.
2. The admission of students in the various schools in the State of Tamil Nadu was being regulated by the Madras Education Rules. The Government of Tamil Nadu regulated the admission of girl students by issuing G. O. Ms. 1664 Education department dated 19-10-1972, which runs as follows-
'The Government direct that in areas where there are separate girls schools, girls should not under any circumstances be admitted in boys' schools except with the specific and prior approval of the inspecting officials, and that too for valid reasons.The Government also agree with the views of the Director of School Education that this condition may also be imposed for granting recognition to secondary schools. The Director is requested to submit necessary draft amendments to the Tamil Nadu Educational Rules for the approval of the Government':
3. There is a girls school by name L. M. S. Girls High School, Santhapuram which is situate within 400 yards from the petitioner's school, namely, Dr. Samuel High School, Santhapuram, Kanyakumari Dist. The girls school was a Tamil Medium School from 1926. In 1963 the school was upgraded into a girls High School. The school is being managed by the C. S. I. Corporate Body, under the Kanyakumari District C. S. I. diocese. In the locality, therefore, there are two schools. Inasmuch as by reason of the girl students being admitted into a boys' school like that of the petitioner, the petitioner was called upon to obey the terms of the G. O. Ms. 1664 Education department dated 19-10-1972, extracted above and by proceedings dated 18-6-1975, the Director of School Education, Madras issued instructions to the District Educational Officer, Thuckalai, that staff grant for Dr. Samuel High School, for the month of June 1973 need not be released, since the management has violated the rules regarding the admission of girls in boys schools dining 1975-76 also. Therefore the petitioner has come up to this court seeking for certiorarified mandamus to quash the G. O. extracted above, and direct the respondents to forbear from interfering with the right of the petitioner in admitting girls in its school.
4. Mr. T. Martin, learned counsel for the petitioner, submits first and foremost that it is a fundamental right of the petitioner school to admit girl students in its school and any restriction on such a fundamental right which is guaranteed under Article 30 of the Constitution would be violative of the said Article and that, therefore, the impugned G. O. has to struck down, in so far as it placed a restriction, as violative of the said Article and has to be set aside.
5. In support of this, reliance is placed on Director of School Education v. Rev. Brother G. Arogiasamy, : AIR1971Mad440 , Rev. Br. A. Thomas v. Dy. Inspector of Schools,(1) 1975 Mad LJ 353 ; AIR 1976 Mad 214 and St. Xavier College v. State of Gujarat, : 1SCR173 . Elaborating this point, the learned counsel for the petitioner contends that it is not open to the Government, merely because they have the administrative control by means of a grant, to issue instructions to the schools as to whom they should admit.
6. The learned Government Pleader points out that it is a matter of policy in order that independent girls schools may come up. Therefore G. O. 1664 Education dated 19-10-1972 is issued where, as in the instant case within 100 yards, another girls school is available which imparts education solely to girls an impart of co-education may not be conducive and therefore the petitioner school was called upon not to admit girls. Notwithstanding this, there was complete disobedience of the same and therefore the District Educational Officer was directed by the Director of School Education not to release the staff grant for the academic year 1975-76.
7. There cannot be any fundamental right with regard to admission of girls into a coeducation institution. None of the rights of the petitioner is infringed. The petitioner school can still impart education to boys in whatever manner it pleases.
8. Mr. M. Raghavan, learned counsel appearing for the girls High School, in supporting the submissions of the learned Government Pleader states that no fundamental right of the petitioner is hereby affected, If as a matter of policy, it is laid down that proper permission of the concerned educational authority should be obtained for admitting girls in a co-education institution, it wilt be purely regulatory in nature and such a regulation does not violate Article 30 of the Constitution. In fact, an identical question arose before the Kerala High Court and the learned Judges of the Kerala High Court have held that there is no fundamental right involved, since still it will be open to the petitioner to impart education to the boys as is seen from Mark Metto v. Government of Kerala, : AIR1977Ker58 .
8-A. Mr. Martin, learned counsel for the petitioner, in reply to this contention admits that the judgment of the Kerala High Court does not take note of the Judgments of this court reported in : AIR1971Mad440 and (1) 1975 MLJ 353 : AIR 1976 Mad 214 and therefore it cannot be held as laying down the correct law.
9. Unaided by any of the authorities, first of all let me consider whether the petitioner can contend that he has a fundamental right to admit the girls in the school, merely because it happens to be a minority institution. Article 30(1) of the Constitution states.
'All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.'
In the instant case, the right to establish the educational institution is not in any way interfered with. Nor again in my view, the administration is not interfered with because of the direction by the Government to the petitioner not to admit girls when an exclusive girls High School is available at a distance of 400 yards from the petitioner's school. Still the petitioner's right to impart education to boys is not in any way interfered with. Therefore it does not pertain to the realm of administration. Looked at from that point of: view, no right of the petitioner has been violated.
10. A careful reading of G. O. 1664 Education, dated 19-10-1972, extracted aboveclearly shows that it is merely regulatory in character since it says that in areas where there are separate girls schools, girls should, not, under any circumstances be admitted in boys schools except with the specific and prior approval of the inspecting officers and that too for valid reasons. It does not deny him the right, but merely requires the schools like petitioner to obtain prior approval. This may be a good policy from the view of the Government. This court cannot concern itself with the wisdom of such policy and hold that some rights of the petitioner have been infringed. However, I have already stated that no right has been infringed.
11. Now let me turn to the case law regarding the nature of the right conferred under Article 30 of the Constitution. In St. Xavier College v. State of Gujarat, : 1SCR173 , Mathew J. stated the law as under (at p. 1441).
'Because Article 30(1) is couched in absolute terms, it does not follow that the right guaranteed is not subject to regulatory laws which would not amount to its abridgment. It is a total misconception to say that because the right is couched in absolute terms, the exercise of the right cannot be regulated or that every regulation of that right would be an abridgment of the rights,'
Again in the Kerala Education Bill case : 1SCR995 it has been held that Article 30(1) gives two rights to the minorities (1) to establish and (2) to administer educational institutions of their choice. The right to administer cannot obviously include the right to mal-administer, The minority cannot surely ask for aid or recognition for an educational institution run by them to unhealthy surroundings, without any competent teachers, possessing any semblance of qualification, and which does not maintain even a fair standard of teaching or which teaches matters subversive to the welfare of the scholars. It stands to reason, then, that the Constitutional right to administer an educational institution of their choice does not necessarily militate against the claim of the State to insist that in order to grant aid, the State may prescribe reasonable regulations to ensure the excellence of the institutions to be aided.'
12. Director of School, Education v. Rev. Brother G. Arogiasamy, : AIR1971Mad440 , related to the admission of students according to their choice. A Division Bench of this Court in dealing with the same held, (At p. 442 of AIR),
'In our opinion, it places serious restriction on the freedom of the minority institutions to make admissions of students accord-ing to their choice. It throws the students of the minority community into a competition with the generality of students belonging to that and all other communities. The applications for admission to any institution cannot be restricted to a particular community because of Articles 15(1) and 29(2). The result is the students of the Roman Catholic community, which is said to represent less than 10 per cent of the total population when in competition with students of the other communities who have all applied for admission, obviously will have but slender chances of admission, contrary to the protection afforded by Article 30(1). It is true the impugned, order is conceived in public interest to ensure proper standards in the matter of admission to basic and non-basic training schools. That is good by itself. But when applied to a minority institution, its effect is not to its benefit from its own point of view. That is forbidden by Article 30(1).'
13. Again in Rev. Br. A. Thomas v. Dy. Inspector of Schools,(1) 1975 MLJ 553 : AIR 1976 Mad 214 while dealing with the right of a minority institution regarding the appointment of teachers it was held -- (At p. 215 of AIR).
'It will be an unreasonable interference to tell the institution that it could not employ a more highly qualified teacher in the interests of better standards of education in its schools because it would not assist the scheme of the Government to find employment for higher grade teachers. ......The Government cannot insist that a protected institution cannot take a more highly qualified teacher in the interests of higher standards of education in the institution. That will be an uncalled for, unreasonable and arbitrary interference with the management of the school. The aid given by the Government does not clothe the Government with any right to interfere with the freedom of management of the institution to employ teachers of their choice, who have a higher qualification than that prescribed by the Department.'
14. Neither of these two decisions, in my view, affords any assistance to the petitioner since in those cases a right was held to have been established. That is not the position here, as I have held above the more direct authority is what is found reported in Mark Metto v. Govt. of Kerala, : AIR1977Ker58 . In that case, the Regional Deputy Director of Public Instruction, Trivandrum, by his order dated 5-6-1973, refused permission to the petitioner to admit girls in his school which was a boys school. In dealing with the validity of that order, which was held under Rule 12 ofthe Kerala Education Rules, it was held --(At p. 62).
'This only says that girls may be admitted in secondary schools for boys in areas where there are no girls' schools, it does not prohibit the minority community from giving education to the girls. It does not prevent them from admitting girls in girls schools. It only prohibits admission of girls in secondary schools for boys if there is a girls school in the same area, The basis of the rule seems to be that it will be better for the girls to get instructions 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 un-understandable. 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, Therefore, we do not find any reason to hold that the rule in so far as it applies to religious minorities is invalid.
The reasoning of this decision squarely applies to the instant case. Consequently, I hold there are no merits in the writ petition. It will stand dismissed. No costs.
15. It is brought to my notice that during the pendency of the writ petition, students have been admitted and therefore at this stage if they are directed - to be sent out of the petitioner's institution, it will seriously interfere with their education and therefore it is appealed to me that my judgment may apply with regard to the future admission commencing from the next academic year. I see great justice in the appeal. Accordingly, my judgment will relate to admissions commencing from the academic year 1978-79.