Kurian Lizy Vs State of Kerala

V.K. Bali, C.J.@mdashWhether the right of the management of a religious minority educational institution to choose a qualified person as Headmaster of the School would come within the protective cover of Article 30(1) of the Constitution of India and if so, can it be regulated through a legislative act or an executive rule is the question that requires adjudication by a Full Bench on a reference made by a learned Single Judge in W.P. (C) No. 37646 of 2003 and a Division Bench in W.A. No. 12 of 2006, noting an apparent conflict between two Division Bench decisions of this Court in Varkey Vs. State of Kerala, and Annie Francis Vs. D.E.O., . Whereas, a Division Bench in Varkey''s case (supra) held that unbridled power cannot be given to every minority institution in the matter of selection of Headmaster overlooking the claims of the other eligible teachers, the other Division Bench in Annie Francis''s case (supra) held that management of a minority educational institution has got every right to appoint a qualified teacher of its choice to head, the institution without strictly looking into seniority and other aspects.

2. In the context of the question as framed above, it may not be necessary to indicate all the facts. Suffice it however, to mention that in W P (C) 37646 of 2003 Kurian Lizy and two others claim to be senior most High School Assistants in Infant Jesus High School, Vadayar, Kottayam District. It is their case that deviating from the statutory mandate contained to Rule 44(1) of Chapter XIV A of the Kerala Education Rules, 1959, hereinafter referred to as ''Rules of 1959'', respondents have appointed Sri. Thomas Joseph, 5th respondent arrayed to the original lis, as Headmaster of the School. The District Educational Officer, the 3rd respondent herein, approved the appointment of the 5th respondent overruling the objections of the petitioners based on Rule 44(1) of the Rules of 1959 and also the decision of this Court in Manager, Mar Sleeba U.P.S. v. State of Kerala 1990 (1) KLT 626. The 3rd respondent thereafter granted approval to the appointment of 5th respondent by observing that 4th respondent has deviated from the Rules in exercise of the privilege enjoyed by the respondent-institution under Article 30(1) of the Constitution of India as a matter of discretion. It is the case of petitioners that at no point of time the minority status of the school was established and there was no declaration by the Government that the school is a minority institution. Petitioners also belong to the Church which owns the school and there cannot be any discrimination amongst the members of the minority community, even if the minority status is accepted. The issue to be decided is whether the school of the 4th respondent is a minority institution with privilege of Article 30(1) of the Constitution in the matter of appointment of Headmaster deviating from the statutory mandates contained in Rule 44(1) of Chapter XIV A of the Rules of 1959. Surely, as to whether the 4th respondent-school is run by a minority community and such status has been declared by the Government or not would be taken care of by the forum concerned. The Full Bench is concerned with the right of management of an educational institution run by a religious minority community to appoint a Headmaster of its choice or that such right is subject to Rule 44(1) of the Rules of 1959. Learned Single Bench when the matter came up for hearing, vide order dated 5th October, 2005 noting an apparent conflict between two Division Bench decisions of this Court as mentioned above and taking into consideration another decision of this Court in Rev. Fr. Daniel Kuzhithadathil Vs. Jose, and two decisions of the Honourable Supreme Court in Brahma Samaj Education Society and Ors. v. State of West Bengal and Ors. 2004 (2) KLT 742 (SC) : AIR 2004 SCW 3189 and Sulochana Devi v. Sujatha 2004 (3) KLT 87 (C. No. 120) ordered that the matter be placed before the Chief Justice for appropriate orders. The matter has been ordered to be listed for decision before a Full Bench.

3. The facts culminating into reference to Full Bench by a Division Bench of this Court reveal that Raju Xavier, who was appointed as Headmaster of S.H.U.P School, Champakulam, Alappuzha vide order Exhibit P1, filed Writ Petition seeking declaration to the effect that he was qualified to be appointed as Headmaster of the School and the appointment, evidenced by Exhibit P1, is liable to be approved. He also sought a writ in the nature of certiorari to quash Exhibits P-9 passed by the District Educational Officer allowing the appeal filed by P. A. Thankachan challenging the approval of appointment granted to Raju Xavier and also Exhibit P-10 order passed by the Director of Public Instruction and Exhibit P-11 order passed by the Government confirming Exhibit P-9. According to the petitioner, the school belongs to the Corporate Educational Agency of C.M.I. Schools, Province of St. Joseph, Thiruvananthapuram. The vacancy of Headmaster occurred when the former Headmaster Mr. K.T. Mathai retired. Vide order dated 1-4-2003, Ext. P-1, the Manager of the School appointed him as Headmaster. He had 9 years, 11 months and 24 days service as Upper Primary School Assistant. He had passed Account Test (Lower) and K.E.R. Test qualification. P.A. Thankachan, the 6th respondent, was senior to him in the category of U.P.S.A. But, since in minority schools seniority need not be followed for making appointment to the post of Headmaster in view of judicial precedents, the Assistant Educational Officer approved the appointment of the petitioner invoking Article 30(1) of the Constitution of India. Ext.P-2 is the approved Constitution of the Corporate Educational Agency, which would show that the ownership of the schools vests With the Congregation by name ''Carmelites of Mary Immaculate'' (C.M.I.). Whenever the Corporate Educational Agency makes appointment to the post of Headmaster of the schools belonging to the Agency, minority rights guaranteed under Article 30(1) of the Constitution have been exercised and seniority was never the criteria for making appointment to that post. It has been the case of the petitioner that K.T. Mathai was appointed as Headmaster vide order Ext.P3. He was not the seniormost teacher while he was so appointed. Mr. Mathai was appointed in exercise of minority rights under Article 30(1) of the Constitution. The Assistant Educational Officer approved the appointment of the petitioner. P.A. Thankachan, the 6th respondent, challenged the order aforesaid and the District Educational Officer vide order Ext. P-9 allowed the appeal. Aggrieved, the Corporate Manager challenged Ext. P-9 before the Director of Public Instruction, which was rejected by the said authority through order Exhibit P-10 adding yet another finding that the petitioner was not qualified to be appointed. The revision filed by the Corporate Educational Agency before Government challenging Ext. P-10 was also dismissed by the Government. These orders were challenged by the petitioner herein in W.P. (C) No. 15891 of 2005, which was allowed by the learned Single Judge vide order dated 10-8-2005. The operative part of the order passed by the learned Single Judge reads as follows:

The result of the above discussion is that the Writ Petition will succeed. Exts. P-10 and P-11 (GO. (Rt.) No. 1-765/05/G. Edn., Dated 2-5-2005) will stand quashed. It is declared that the petitioner is entitled to have his appointment by the management as Headmaster on S.H.U.P. School, Champakulam approved with effect from 1-4-2003 and is entitled to get consequential benefits based on that. The 4th respondent is directed to do the needful in this within a maximum period of six weeks from the day he receives a copy of this judgment and till then the status quo obtaining as on today will continue.

This Court, once again, is not concerned with the issue whether the petitioner was qualified to be appointed as Headmaster or not. Surely, the findings on this issue is also subject-matter of appeal which would be taken care of by the learned Division Bench. The Full Bench once again is concerned with the question as framed above in W.P.(C) 37646 of 2003. The learned Division Bench before whom the matter came up for hearing in an appeal preferred by P.A. Thankachan, 6th respondent in the original list vide order dated 13-1-2006 referred the matter to the Full Bench by the following order:

Admit. Learned Government Pleader takes notice for respondents 1 to 4. Shri. Joseph Kodiyanthara takes notice for the 5th respondent and Shri. Elvin Peter takes notice for the 6th respondent.

2. Two decisions had been cited by the rival parties in the proceedings, before the learned Judge. They are Varkey Vs. State of Kerala, and Annie Francis Vs. D.E.O., . There is certain amount of conflict as between the two decisions. We are of the view that an authoritative pronouncement is necessary and the matter has to be considered by a Full Bench of this Court. We adjourn the case for being heard by a Full Bench, and it is also further noticed that more or less similar orders have been passed already, in other cases.

All minorities, whether based on religion or language, shall have a right to establish and administer educational institutions of their choice. This mandate, recognising the right of minorities to establish and administer educational institutions, is the command of the Constitution as envisaged under Article 30(1) of the Constitution. The same reads as follows:

30. Right of minorities to establish and administer educational institutions.- (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

What characteristics, this right to administer would consist, has ever since been a matter of legal debate. The management of religious minorities have been primarily striving to have complete independence on four major characteristics to establish these institutions. The same being, right to choose its managing or governing body, the right to choose its teachers, the right not to be compelled to refuse admission to students and the right to use its properties and assets for the benefit of such institution. It appears to us that in so far as right to choose its managing or governing body as also right to choose its teachers being principal characteristics of right to administer stand established by a string of judicial precedents of this and the Apex Court. The post of Headmaster is of pivotal importance in the management of an educational institution and the same has never been, nor is in dispute even in the present case. The powers of a Headmaster in the matter of admission and overall supervision and management of the school is recognised even by Rules of 1959. In view of the provisions contained in Rule 4 of Chapter IX, the Headmaster is authorised to suspend or dismiss a student. Rule 10 of the same Chapter also provides responsibility of the Headmaster with regard to discipline. The duties of Headmaster have been mentioned in Rule 11. The Headmaster, as per Rules, is the Head of Institution and he has to maintain discipline among the students and supervise the work of teachers. He has powers of overall supervision. He has complete administrative control over affairs of the school. The Headmaster being a king pin in the matter of administration, his selection and appointment is of pivotal importance in the matter of administration of concerned, educational institution. A Full Bench of this Court in A.M. Patroni v. E.C. Kesavan 1964 KLT 791 observed that the post of the Headmaster is of pivotal importance in the life of a school as around him wheels the tone and temper of the institution; on him depends the continuity of its traditions, the maintenance of discipline and the efficiency of teaching. It also observed that the right to choose the headmaster is perhaps the most important facet of the right to administer the school. The importance of key role of a Headmaster of a school came up for consideration before a nine Judge Bench in The Ahmedabad St. Xavier''s College Society and Another Vs. State of Gujarat and Another, and the Apex Court observed that it is upon the principal and teachers of a college that the tone and temper of an educational institution depend; on them would depend its reputation, the maintenance of discipline and its efficiency in teaching and the right to choose the principal and to have the teaching conducted by teachers appointed by the management after an overall assessment of their outlook and philosophy is perhaps the most important facet of the right to administer an educational institution. We need not delve any further as there is no dispute that the head of institution, be it a Headmaster or Principal, has pivotal role to play in administering the educational institution. The choice of the management in the matter of appointment of Headmaster or Principal of an institution established and administered by religious minorities has been established by judicial precedents. It further appears to us that the view of this Court and that of the Honourable Supreme Court has consistently been that such right cannot be controlled by legislation except to the extent that the person of the choice of the management must be qualified to hold the post of Headmaster. In this scenario when the precise matter came up before a Division Bench in Varkey''s case (supra) the Division Bench even though noted that the earlier decisions of this Court had recognised the right of the management to appoint a Headmaster of its choice yet deviated by holding that the said right would be subject to Rule 44 of the Rules of 1959 on the only ground that the law earlier on the issue by this Court or the Supreme Court stood watered down in view of the Constitution Bench decision of the Supreme Court in T.M.A. Pai Foundation and Others Vs. State of Karnataka and Others, . The Division Bench noted that a Full Bench of this Court in Patroni''s case (supra) has held that although because of Rule 44(1) of the Rules of 1959, appointment of Headmaster was ordinarily to be on the basis of seniority as recorded in the seniority list, this did not disable the management of a minority institution to make a departure because of the pivotal role played by him in the administration of the school. The Division Bench further noted that although a different note had been struck in the later decisions in Joseph v. State of Kerala 1985 KLT 946 and Dr. Francis v. Dist. Educational Officer 1988 (2) KLT 403, but the said decisions were overruled by a Division Bench in Manager, Corporate Educational Agency v. State of Kerala and Ors. 1990 (2) KLT 240. It was held by Division Bench that the Full Bench decision in Patroni''s case (supra) had to receive obedience. The Division Bench however then proceeded to examine the question in the light of the decision of a Constitution Bench, which was eleven-member Bench, in T.M.A. Pal Foundation''s case (supra). In para 93 the question as posed by the Apex Court in the said case was quoted. The same reads as follows:

93. Can Article 30(1) be so read as to mean that it contains an absolute right of the minorities, whether based on religion or language, to establish and administer educational institutions in any manner they desire, and without being obliged to comply with the provisions of any law? Does Article 30(1) give the religious or linguistic minorities aright to establish an educational institution that propagates religious or racial bigotry or ill will amongst the people? Can the right under Article 30(1) be so exercised that it is opposed to public morality or health? In the exercise of its right, would the minority while establishing educational institutions not be bound by town planning rules and regulations? Can they construct and maintain buildings in any manner they desire without complying with the provisions of the building bye-laws or health regulations?

The answer to the question reproduced above, according to the Division Bench, was formed in paragraph 107 wherein the Supreme Court held that the right under Article 30(1) was not so absolute as to prevent the Government from making any regulation whatsoever. It would be, of course, true that Government regulations cannot destroy the minority character of the institution or make the right to establish and administer, a mere illusion. However, it was held that ''the right under Article 30 is not so absolute as to be above the law''. It is absolutely clear that Division Bench in Varkey''s case (supra) deviated from the law laid down by number of decisions of this Court and the Supreme Court as in its view the Honourable Supreme Court in T.M.A. Pai Foundation''s case (supra) had clarified that Article 30(1) is to ensure equal treatment between majority and minority institutions.

4. Before the Division Bench in Annie Francis''s case (supra), the same question came up for debate once again. It was urged on behalf of the counsel supporting the view taken by the Division Bench in Varkey''s case (supra) that even though Supreme Court decided the matter in Board of Secondary Education and Teachers Training Vs. Jt. Director of Public Instructions, Sagar and Others, that the minority management is not bound to appoint the seniormost qualified teacher, but has right to appoint a candidate of its own choice provided he is qualified, a Division Bench of this Court took a different view in Varkey''s case (supra) and all earlier Full Bench and Division Bench decisions of this Court should be held to be not good law in view of the observations of the Honourable Supreme Court in T.M.A. Pai Foundation''s case (supra). Per contra, it was argued by counsel, supporting the earlier consistent view, that the decision of the Division Bench in Varkey''s case (supra) was per incuriam and that various decisions of this Court and of the Honourable Supreme Court directly on the point explaining the same very provisions of the Rules of 1959 on appointment of Headmaster by a minority institution were not considered in Varkey''s case (supra) and further that none of the observations in T.M.A. Pai Foundation''s case (supra) expressly or impliedly overruled the earlier decisions of this Court. The learned Division Bench after referring to almost the entire case law as in existence by that time, on the rival contentions of the parties as mentioned above, observed that:

Now, the question is whether the decisions of the Full Bench in 1964 KLT 791, Division Bench decision in 1990 (2) KLT 240 and 1993 (2) KLT 883 and of the Supreme Court in N. Ammad Vs. The Manager, Emjay High School and Others, declaring and recognising the right of the minority communities in appointing a qualified person as head of the aided educational institution are in any way impliedly overruled in T.M.A. Pai''s case (supra).

In the view of the Division Bench, T.M.A. Pai Foundation''s case (supra) could not be read to mean that the law laid down in the decisions quoted above was impliedly overruled. The Division Bench held that:

In Punjab National Bank v. R.L. Vaid and Ors. AIR 2004 S.C.W 4708 and in Bharat Petroleum Corporation Ltd. and Anr. v. N.R. Vairamani and Anr.AIR 2004 S.C.W. 5457, it was held that the words of the judgment cannot be interpreted as words of Statute and it is binding only with respect to similar factual situation. Main question decided in T.M.A. Pai''s case (supra) was the right of the aided and unaided, minority and non-minority institutions in giving admission to professional courses. Right of appointment of the head of the institution was not in issue and (1998) 6 SCC 678 and Board of Secondary Education and Teachers Training Vs. Jt. Director of Public Instructions, Sagar and Others, were not considered in T.M.A. Pai''s case.

5. The conflict in two Division Bench decisions in Varkey''s case (supra) and Annie Francis''s case (supra) is because in the view of one Division Bench in Varkey''s case (supra), the decision of the Supreme Court in T.M.A. Pai Foundation''s case (supra) has impliedly overruled the earlier decisions, the later Division Bench in Annie Francis''s case (supra) holds a contrary view.

6. We have heard learned Counsel for the parties and with their assistance, examined the records of the case. We have also perused the judicial precedents cited at the Bar. With utmost respect to the Honourable Judges deciding Varkey''s case (supra), we are of the view that the judgment of the Honourable Supreme Court in T.M.A. Pai Foundation''s case (supra) cannot be read or interpreted to mean that the law earlier held by this Court and the Supreme Court that Headmaster of the institution can be appointed by a minority institution subject to the incumbent acquiring the requisite qualifications has been impliedly overruled. Right from inception of the Rules of 1959, which came into force from 1-6-1959, the rival parties were joining issues with regard to power of appointment of Headmaster in private schools established by minority communities. The Division Bench in Annie Francis''s case (supra) observed that when the Kerala Education Bill, 1957 was passed by the Legislative Assembly, Governor sent the Bill for consideration to the President and the President referred the matter to the Apex Court for opinion under Article 143(1) of the Constitution of India. When the matter came to be considered by a seven member Bench of the Honourable Supreme Court, it had given its opinion In Re: The Kerala Education Bill 1957 1958 KLT 465 (SC) : AIR 1958 SC 956, it was observed by the then Honourable Chief Justice Mr. S.R. Das as follows:

It is not for this Court to question the wisdom of the supreme law of the land. We the people of India have given unto ourselves the Constitution which is not for any particular community or section but for all. Its provisions are intended to protect all, minority as well as the majority communities. There can be no manner of doubt that our Constitution has guaranteed certain cherished rights of the minorities concerning their language, culture and religion. These concessions must have been made to them for good and valid reasons.... So long as the Constitution stands as it is and is not altered, it is, we conceive, the duty of this Court to uphold the fundamental rights and thereby honour our sacred obligation to the minority communities who are of our own.

The Division Bench in Annie Francis''s case (supra) then referred to the judgment of the Supreme Court in Rev. Sidhrajbhai Sabbai and Ors. v. State of Gujarat and Anr. AIR 1963 SC 540 as also the decision of the Full Beach of this Court in Patroni''s case (supra) which reflect the same opinion as held in In Re: The Kerala Education Bill 1957 KLT 465 (SC) : AIR 1958 SC 956. The Division Bench further held that when the Kerala University Act, 1969 was passed, incorporating certain clauses restricting the right of management and administration of minority management, the said provisions were declared ultra vires by this Court. In the appeal filed against the aforesaid judgment of this Court, the Supreme Court in State of Kerala, etc. Vs. Very Rev. Mother Provincial, etc., held as follows:

Article 30(1) has been construed before by this Court. Without referring to those cases it is sufficient to say that the clause contemplates two rights which are separated in point of issue. The first right is the initial right to establish institutions of minority''s choice....

The next part of the right relates to the administration of such institutions. Administration means ''management of the affairs'' of the institution. This management must be free of control... .

This law, it was further held, stood firmly established in the decisions reported in The State of Bombay Vs. Bombay Education Society and Others, , The State of Madras Vs. Srimathi Champakam Dorairajan, , In Re: The Kerala Education Bill 1957 KLT 465 (SC) : AIR 1958 SC 956, Rev. Sidhajbhai Sabhai and Others Vs. State of Bombay and Another, , Katra Educational Society Vs. State of Uttar Pradesh and Others, , Gujarat University, Ahmedabad v. Krishna Ranganath Mudholkar and Ors. (1963) Supp. 1 SCR 112 and Rev. Father W. Proost and Others Vs. The State of Bihar and Others, . The Division Bench also referred to the decisions of the Supreme Court in The Ahmedabad St. Xavier''s College Society and Another Vs. State of Gujarat and Another, and The Gandhi Faiz-E-Am College, Shahjahanpur Vs. University of Agra and Another, and came to the conclusion as mentioned above. The Division Bench in Annie Francis''s case (supra), we are of the view, came to the correct conclusion and, thus, rightly held that the Supreme Court in T.M.A. Pai Foundation''s case (supra) had not impliedly overruled the law as laid by this Court referred to above.

7. Our view that the Division Bench in Annie Francis''s case (supra) correctly interpreted the law would be fortified from at least one decision of the Honourable Supreme Court wherein the precise question as referred to above in the context of Rule of 1959 itself came to be focussed. In N. Ammad Vs. The Manager, Emjay High School and Others, , it was held that:

The right guaranteed under Article 30(1) is a right that is absolute and any law or executive direction which infringes the substance of that right is void to the extent of infringement. But the absolute character of the right will not preclude making of regulations in the true interests of efficiency or instruction, discipline, health, sanitation, morality, public order and the like, as such regulations are not restrictions on the substance of the right guaranteed by the Constitution.

It was further held that:

Selection and appointment of Headmaster in a school (or Principal of a college) are of prime importance in administration of that educational institution. The Head-master is the key post in the running of the school. He is the hub on which all the spokes of the school are- set around whom they rotate to generate result. A school is personified through its Headmaster and he is the focal point on which outsiders look at the school. A bad Headmaster can spoil the entire institution, an efficient and honest Headmaster can improve it by leaps and bounds. The functional efficacy of a school very much depends upon the efficiency and dedication of its Headmaster. This pristine precept remains unchanged despite many changes taking place in the structural patterns of education over the years.

It was further held that:

The management''s right to choose a qualified person as the Headmaster of the School is well insulated by the protective cover of Article 30(1) of the Constitution and it cannot be chiselled out through any legislative act or executive rule except for fixing up the qualifications and conditions of service for the post. Any such statutory or executive fiat would be violative of the fundamental right enshrined in the aforesaid Article and would hence be void. The management of a minority school is free to find out a qualified person either from the staff of the same school or from outside to fill up the vacancy. If management of the school is not given very wide freedom to choose the personnel for holding such a key post, subject of course to the restrictions regarding qualifications to be prescribed by the State, the right to administer the school would get much diminished, Hence it is for the management of the minority educational institution to choose the modality for selecting the qualified persons for appointment.

The facts of the case reveal that the school in question was an aided one and governed by the Kerala Education Act, 1958. It is in the context of Rule 44(1), reproduced below that the observations as reproduced above were made by the Supreme Court:

The appointment of Headmasters shall ordinarily be according to seniority from the seniority list prepared and maintained under clauses (a) and (b), as the case may be, of Rule 34. The Manager will appoint the Headmaster subject to the Rules laid down in the matter. A teacher if he is aggrieved by such appointment will have the right of appeal to the Department.

In a recent decision rendered by the Honourable Supreme Court in R. Sulochana Devi Vs. D.M. Sujatha and Others, it has been held as follows:

It is settled by a catena of decisions of this Court that courts shall be loath in interfering with the choice of the management in the selection of the Principal candidate with reference to the educational institutions under the management of the minority institutions.

Surely, this decision of the Honourable Supreme Court was rendered after the decision of the Supreme Court in T.M.A. Pai Foundation''s case (supra).

8. The discussion made above based upon the two decisions of the Honourable Supreme Court apart, what however really clinches the issue is the question framed by the Honourable Supreme Court as 5(c) and the answer thereto, Question 5(c) in T.M.A. Pai Foundation''s case (supra) which reads as follows:

Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal thereof, and appointment of staff, employees, teachers and Principals including their service conditions and regulation of fees, etc. would interfere with the right of administration of minorities.

This the Supreme Court answered as follows:

So far as the statutory provisions regulating the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as the conditions of affiliation to a university or board have to be complied with, but in the matter of day-to-day management, like the appointment of staff, teaching and non-teaching, and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself.

After answer to the question directly covering the issue in hand with regard to appointment of Headmaster or Principal, nothing else survives for determination. It would be unnecessary in this order in probing further the matter. We, thus, hold that the management of a minority educational institution would have freedom to appoint Headmaster or Principal. Rule 44(1) of the Rules of 1959 would have no control over the powers conferred under Article 30(1) of the Constitution, although such institution has necessarily to evolve a rationale procedure for selection of the Headmaster or Principal, this context, we feel that some directions should be issued to the Managements of minority educational institutions, to evolve a procedure for selection to the post of Headmaster, in the light of the observations in the answer to question 5(c) in T.M.A. Pai Foundation''s case (supra) quoted above. We notice that in many cases senior teachers belonging to the minority community, which runs the institution are superseded without assigning any reason. Article 30(1) of the Constitution of India is an armour to protect the minority against the legislative and executive actions of the State, which is normally controlled by the majority. The said armour cannot be used as a weapon against other members of the same minority community. The protection under Article 30(1) is to the minority community and for the minority community. The Manager may supersede the members of other communities and also members of the minority community, who are found unsuitable for promotion to the post of Headmaster. But there may be teachers, who are, in every respect, qualified and suitable to head a minority educational institution. The management may select the best among them. The selection procedure should be fair, reasonable and transparent. The eligible members of the minority community may not have a feeling that they have been superseded without any valid grounds. So, all minority educational institutions, which propose to select the best person to the post of Headmaster/Principal of a School or College, as the case may be, ignoring seniority in the feeder category or ignoring the available teachers, should frame and publish regulations or bye-laws, containing a transparent procedure, governing such selection. The publication can be made in the Notice Board of the educational institution concerned and a copy of it should be available in school/college library for reference. When superseding a senior qualified member of the minority community the reasons thereof should be clear from the records. The question as framed in the beginning of this order is thus answered accordingly.

9. In WP.(C) No. 37646/2003 petitioners-teachers have disputed the minority status of the respondent Management. Since the impugned order is passed only by the District Educational Officer, the petitioners are free to raise all their contentions before the statutory authorities either in appeal or revision. This Court at the first instance need not go into that question. Therefore, without prejudice to such liberty to the petitioners to pursue their contentions on the minority status of the management before appropriate forum, the writ petition is dismissed. Writ Appeal No. 12 of 2006 is mainly rested on the bench decision of this Court in Varkey Vs. State of Kerala, wherein it has been held that the minority management has no freedom to appoint a teacher of its choice as Headmaster/Principal. We have already held that the decision does not reflect the correct position in law. Yet another contention taken is with regard to the qualification of the writ petitioner-6th respondent in the writ appeal, that is a matter to be considered by the Bench concerned.