1. This is an application under Article 226 of the Constitution for an appropriate writ directing the Principal of the Hooghly Mohsin College to consider and deal with the petitioner's application for admission to the said college according to law.
2. The petitioner who was a student of the Hooghly Mohsin College in Intermediate in Arts Classes, passed the Intermediate examination in Arts of the University of Calcutta and was placed in the Second Division. The petitioner's case is that on 9-7-1951 the petitioner put in an application for admission to the said college in the 3rd year (B. A.) class with Honours in Economics. On 10-7-1951 the petitioner was told by the Principal of the college that by reason of an order issued by the Director of Public Instruction barring the admission of girls passing in the 2nd Division, the petitioner could not be admitted into the Hooghly Mohsin College and the petitioner was asked to get herself admitted in the newly established women's college in Chinsurah. It is alleged in the petition that this women's college which was started about three years ago as a Government-aided college has no affiliation for Honours and Science subjects and the educational facilities in the said college were also not very satisfactory and further that the result in the University examination of the students in the said college was poor and unsatisfactory. It appears that the petitioner and some of her friends approached the officials of the women's college for admission but were told that the college had no affiliation for Honours course in any subject and the petitioner was furnished with a certificate to that effect by the authorities of the women's college. On 12-7-1951 the petitioner saw the Principal of the Hooghly Mohsin College with the said certificate and requested him to admit her in the Mohsin College as there was no scope for study in the Women's College, but admission was refused on the ground that the order of the Director of Public Instruction stood in' the way of the petitioner being admitted to the said college.
Thereafter the petitioner and her father saw the Principal on several occasions but admission was refused on the same excuse. On 19-7-1951 the petitioner's father sent a written representation to the Director of Public Instruction, who, on the same day wrote to the Principal pointing out that there was no order issued by the directorate prohibiting admission of female students in the Mohsin College but the direction given by the directorate was to the effect that the admission of women students into the college might be restricted only to science courses and to those courses of study in which the women's college was not affiliated. It was further pointed out in that letter that as the Women's college was not affiliated in Economics Honours course there was no bar to the petitioner being admitted to the Mohsin College if she was otherwise found suitable. On 21-7-1951 the petitioner's father again saw the Principal of the Mohsin College who admitted receipt of the Director of Public Instruction's letter dated 19-7-1951, but told the petitioner's father that he would discuss the matter with the Divisional Commissioner before passing orders for admission of the petitioner. On 23-7-1951 the petitioner approached the Principal and was told that the District Magistrate had directed postponement of admission of all women students on a directive received from the Government but the petitioner was asked to see the Principal on 26-7-1951 when the final order would be passed.
On 26-7-1951,, the Principal published a list of 9 women candidates who had passed the Intermediate examination in Arts in the 2nd division and this was put upon the notice board of the college permitting them to take admission with Honours course on condition that they secured I-Division marks in the I. A. examination in the subject in which they propose to take Honours in the B. A. Course. It appears that the petitioner went to the college on 29-7-1951 with money for admission but for some reason the clerk who was to receive the admission fee and the papers relating to such admission, informed the petitioner after consultation with the Principal that the petitioner could not be admitted and the money paid by the petitioner for admission was refunded to her under the direction of the Principal. On 30-7-1951 the petitioner's father personally saw the Director of Public Instruction who upon hearing the petitioner's father directed that pending consideration of the petitioner's admission the petitioner would be allowed to attend both the Pags and Honours classes at the Hooghly Moshin College, which would be duly counted in the attendance percentage and it appears that pursuant to such direction, the petitioner started attending the classes. On 17-8-1951 the Director of Public Instruction wrote a letter to the Principal of the Mohsin College permitting the admission of the remaining eligible women candidates whose names appeared in the list of the Principal published on 26-7-1951. On 18-8-1951 the petitioner saw the Principal again for admission but she was asked to come on 22nd August which was the date fixed by the Principal for such admission. On 22-8-1951 the petitioner and her father went to the college but were told by the Vice-Principal that no further admissions could take place as he had received a telegram from the Director of Public Instruction that no more women candidates could be admitted to the Moshin College. Being refused such admission by the Authorities of the Hooghly College the petitioner got herself admitted into another college, as the last day of admission had been fixed by the University as 31-8-1951. The petitioner challenges the refusal of admission as arbitrary, unreasonable and mala fide. The petitioner also challenges such refusal as illegal being in contravention of Article 15(1) read with Article 29(2) of the Constitution of India.
3. It has been contended by Mr. Arun Kumar Dutt, the learned Advocate for the petitioner, that it is clear from the facts stated in paras. 5 and 12 to 22 of the petition that the refusal by the Principal was arbitrary and mala fide. The Principal of the Hooghly Mohsin College at the material time, has affirmed the Counter Affidavit on behalf of the opposite parties. It is stated in this affidavit that the deponent was requested by the District Magistrate, Hooghly, to withhold admission of women students into the Mohsin College for some time'as a directive from the Government on the question of such admission was expected very soon. But as no such directive was forthcoming, the deponent on being pressed by the candidates to allow admission, decided on 26-7-1951 to admit eligible 2nd Division students to the Honours course in the Moshin College and on the same day he published a list of 9 candidates whose cases might be considered for admission. The petitioner's name was placed second in the list and it appears that four women candidates were admitted on that very day as they were found eligible upon scrutiny of their mark sheets and as they deposited the money for admission on that very day. The petitioner however did not turn up on that day and consequently her case was not taken up.
It was suggested by Mr. Arun Kumar Dutt that it was because the petitioner's father made representations to the Director of Public Instruction that the Principal became displeased with the petitioner and so put off her admission from time to time and ultimately refused admission altogether. But the conduct of the Principal subsequent to 19-7-1951 when the Director of Public Instruction's letter to the Principal was written, completely negatives such suggestion. If the Principal had cherished any ill-will against the petitioner, her name would not have found the second place in the list of applicants for admission. It may be that the Principal wrongly interpreted the direction contained in the letter of the Director of Public Instruction dated 9-5-1951 as an order absolutely restricting the admission of women students in the Hooghly Mohsin College. It is clear from the Principal's affidavit that on 18-8-1951 he received instructions from the Director of Public Instruction to admit women students in the Honours classes of the Hooghly Moshin College and as the last date prescribed by the University for admission was 31-8-1951, he, after consultation with his office, fixed 22-8-1951 as the convenient date for accepting fees for further admission and he requested the petitioner's father to send fees on 22-8-1951. But unfortunately for the petitioner a telegram from the Director of Public Instruction was received by the office of the Hooghly Mohsin College conveying the decision of the Government that no further admissions of women students to Honours courses in Hooghly Mohsin College would be allowed. It appears that this decision was reached by the Government, as the Government had decided to extend facilities to the students to the women's college to read Honours in the Moshin College from the current session.
This decision of the Government was communicated to the petitioner and her father and the petitioner was further informed that she might read Honours in the Hooghly Mohsin College after being admitted as a regular student of the women's college. It is further stated in this affidavit of the Principal that it is still open to the petitioner to get herself admitted in the women's college with facilities to attend Honours classes in Hooghly Mohsin College. 1 do not find anything to show that the act or conduct of the Principal in refusing admission to the petitioner in the facts and circumstances stated above was tainted with want of good faith. In my view the charge of arbitrariness and mala fide must fail.
4. It was also contended by Mr. Dutt that the order of the Director of Public Instruction restricting admission of women students in the Hooghly Mohsin College is in contravention of Article 15(l) read with Article 29(2) of the Constitution of India.
5. Article 15(l) is as follows:
'The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.'
6. Article 29(2) provides that:
'No citizen shall be denied admission into any educational institution mai tained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.'
7. It is submitted by Mr. Putt that the effect of the order of the Director of Public Instruction is to make discrimination on the ground of sex only and as this is expressly prohibited by Article 15(l) the order cannot be given effect to. The Article, it is pointed out, guarantees to every citizen protection against dircrimination and as the order affects prejudicially the fundamental right of the petitioner not to be subjected to any act of discrimination on the ground of sex only a writ of mandamus should issue on the opposite parties directing them to forbear from giving effect to the order.
8. Now Article 15(1) imposes a bar on the State to make discrimination with regard to any matter on the grounds of religion, race, caste, sex, place of birth or any of them.
9. Article 29(2) does not refer to the ground of sex. So this article by itself does not invalidate any order of the State Government or of the Authorities of an educational institution of the type described in Article 29(2) restricting the admission of women students into government or Government-aided institutions. Article 15(l) which is of wider application than Article 29(2) prohibits discrimination on the ground of sex on all matters and so it includes discrimination in matters of admission to educational institutions. The result is that Article 15(1) should be construed as controlling Art 29(2) of the Constitution, and tested in this light the order complained of would be bad being in contravention of Article 15(1) of the Constitution.
10. It must be noted however that Article 15(1) has been expressly made subject to Article 15(3) of the Constitution.
11. Article 15(3) runs as follows : 'Nothing in this article shall prevent the State from making any special provision for women and children.'
12. This article has been interpreted by P. B. Mukherji J., in the case of Mahadeb Jiew v. Dr. B. B. Sen, A. I. R. 1951 Cal. 563. The learned Judge nagatived the contention that the 'special provision' may be a provision which discriminates against women or children, and expressed the view that the words 'for women and children' mean 'in favour of' and not 'against women and children'. It is doubtful how far this construction is justified by the words of Article 15(3). The word 'for' may mean 'in the case of or 'concerning' women and children. If the Framers of the Constitution intended that the 'special provisions' in Article 15(3) had reference only to provisions in favour of women and children, there was nothing to prevent the makers of the Constitution from using appropriate and express words such as 'in favour of' in the article in question. Where the Pramers of the Constitution wanted provisions to be made in favour of any particular class of citizens they have expressly said so. Article 16(4) furnishes such an instance and may be set out hereunder :
'Article 16 (4) : Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State, is not adequately represented in the services under the State.'
13. Although the matter is not free from doubt, I propose to follow the decision of Mukherji J., as the construction put by the learned Judge is not an improbable or unreasonable one.
14. If Article 15(8) could be construed as furnishing scope for special provision to be made not only in favour of but also against women and children then the order itself barring admission of women students as regular students of Hooghly Mohsin College would be justified and would not be open to challenge at all. But I do not rest my decision on that basis.
15. In the case before me the Director of Public Instruction has issued an order to the effect that no more women students should be admitted into the Hooghly Mohsin College but women students who get themselves admitted into the newly established women's college at Chinsurah will be allowed to attend classes in the Hooghly Mohsin College for prosecuting studies in honours course, as there is no affiliation for honours course in the newly established women's college. The whole object behind this scheme is to promote the development of the new college for women and ultimately to make it a well-established and self-sufficient organisation for the education of women. In other words a special provision as contemplated by Article 15(3) of the Constitution, has been made in the interest of and for the benefit of women students in the country. The result is that the operation of Article 15(1) is ousted.
16. It was contended by Mr. Dutt that in order that this newly established women's college may be considered as a 'special provision' within the meaning of Article 15(3) the now college must provide equal facilities for study such as are to be found in the. Hooghly Mohsin College, for otherwise it cannot be regarded as a suitable substitute for the Mohain College. Reliance is placed on the decision of the American Court in the case of Sweatt v. Painter, (1950) 339 U. S. 629 : 94 Law. L. Ed. 1114. In this case a negro student filed an application for admission to the University of Texas Law School. His application was rejected solely because he was a negro. Petitioner thereupon brought proceedings for mandamus against the appropriate school officials to compel his admission. At that time there was no law school in Texas which admitted negroes. The State Trial Court found that the refusal of the Authorities to admit the petitioner in the Texas Law School deprived him of the equal protection of the laws guaranteed by the Fourteenth Amendment but the Court granted time to the State to supply substantially equal facilities. At the expiration of six months a new law school was established but the petitioner refused to register himself in the new school on the ground that it did not provide equal educational facilites. The matter went on appeal to the Supreme Court and the Supreme Court held that as the privileges, advantages and opportunites offered by the New Law School were not substantially equivalent to those offered by the 'State to the white students at the University of Texas, the equal protection clause of the Fourteenth Amendment had been violated and therefore the petitioner was entitled to a mandamus.
17. Article 15(3) of the Indian Constitution, however, provides for only special provision being made for the benefit of women and does not require that absolutely identical facilities as those enjoyed by males in similar matters must be afforded to women also. Assuming however that such is the implication of the article, it appears from the counter-affidavit that the petitioner is not pre-judically affected in any substantial degree by complying with the impugned order of the Director of Public Instruction. In the new college there are first class and second class M.A's as professors and the number of teachers in all subjects is quite adequate.The explanation given about the results of the University examination in the counter-affidavit shows that the result of the new college was not as unsatisfactory as it is suggested by the petitioner. It is true that the new college is not equipped with a good library as yet, but the petitioner is not placed at a disadvantage for that reason, inasmuch as I understand that being permitted to study the honours course in the Hooghly Mohsin College simultaneously with her admission as a student of the newly established college, she gets the advantage of the use of the Library of the Hooghly Mohsin College as well. I am not however prepared to accept the suggestion made on behalf of the opposite parties that the new college provides identical educational facilities as in the Mohsin College'and I quite appreciate the feeling of the petitioner in refusing to register herself as a student of the new college, but as the order complained of appears to be justified by the provisions of the Constitution I have no jurisdiction to interfere. If the principal had not taken up a dilatory attitude as he did in this case, the petitioner would not have come within the mischief of the prohibitory order ultimately issued by the Directorate of Public Instruction.
18. There can be no doubt that the principal is to a large extent responsible for the petitioner losing her opportunity to be admitted into the-Hooghly Mohsin College, but the facts do not justify me in holding that the attitude or conduct of the principal was prompted by any bad faith.
19. In the result the petition fails and the rule is discharged. I make no order as to costs.