Judgment

UNTWALIA, J.:- This is an appeal by special leave from the judgment of the Kerala High Court dismissing the appellants 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 issued pursuant to the order aforesaid of the Regional Deputy Director. The constitutional question involved in this appeal is about the vires of R. 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 Art. 30 (1) of the Constitution.

2. 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 Trivandraum 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 Diocess of Trivandrum. It is not in dispute that as a matter of fact only boy students were admitted in 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. Vincents 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. 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 girls school said to be situated within 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. Vincents High School. The girls school was established by the Muslims and was also a minority institution with the meaning of Art. 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. Vincents 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.

3. 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 be that it will be better for the girls to get instru