Judgment :- What are the rights of a teacher in an educational institution belonging to a minority community in the matter of promotion to the post of Headmaster according to seniority? Does he have any right at all? Or is it that, the Management of the minority institution alone has all the rights and immunities and not the members of that community, if they happen to be teachers? These questions fall to be considered in this batch of Original Petitions. 2. The conflict is multifaceted. The Manager appointed by the Corporate Educational Agency of a Minority Community Chelad St. Stephan's Educational Agency challenges the second extension of service granted to an award-winning teacher for five years beyond the normal date of his retirement as an inroad into the right of the minority under Art.30(1) of the Constitution of India, to administer the educational institution. The educational authorities insist that if the extension of service of the Headmaster beyond his retirement is ineffective, the senior most teacher shall be appointed as Headmaster. The Management chose junior teachers as Headmasters of the two High Schools in exercise of its alleged immunity from Governmental control under Art.30(1) of the Constitution of India. The senior teachers protest that the immunity is available to the community only and not to an individual manager. 3. O. P. No. 3745/83 is filed by the Manager of the School against Ext. P2 order passed by the Government granting extension of service of the 2nd respondent Sri M. I. Kuriakose for four years beyond the date of bis retirement on 30-4-1983 after one year's extension from bis normal retirement 30-4-1982. Sri. Kuriakose was the Headmaster of the School and he was due to retire on superannuation on 30-4-1982. He had won the State award for teachers in the year 1975. The Government issued a general order granting extension of service for one year in favour of all teachers who had won State awards for teachers subsequent to 1975. The 3rd respondent challenged that order in so far as it affected his appointment as Headmaster of the Girls' High School in OP. No. 3201/82. That order was followed by an amendment to the Kerala Education Rules during the pendency of the O.P. The Original Petition was. therefore, dismissed by judgment dated 27-10-1982. The second respondent therefore, continued in service till 30-4-1983, by reason of the extension of his service. 4. No. 3201/82. That order was followed by an amendment to the Kerala Education Rules during the pendency of the O.P. The Original Petition was. therefore, dismissed by judgment dated 27-10-1982. The second respondent therefore, continued in service till 30-4-1983, by reason of the extension of his service. 4. By order dated 30-4-1983, the Manager appointed the 3rd respondent as Headmaster in the place of the 2nd respondent. P1 Report of assumption of charge was sent up on that day itself. On 3-5-1983, the Manager received Ext. P2 order of the Government dated 27-4-J983 extending the service of the 2nd respondent for 4 more years till 30-4-1987 in public interest in exercise of the power of the Government under R.3 Chapter I of the Kerala Education Rules. It was ordered that the 2nd respondent would be treated as on re-employment and his remuneration for the extended period would be fixed under R.100 Chapter VII Part III Kerala Service Rules. 5. The Manager filed the first of these original petitions and obtained an order of stay of Ext. P2 order. That order was made absolute on 17-5-1983. The Sub Divisional Magistrate had passed an order dated 10-5-1983 under S.144 of the Code of Criminal Procedure directing the 3rd respondent who had been appointed as Headmaster not to function in that post. The second respondent who could not continue as Headmaster in view of the order of stay of extension of his service handed over charge to the senior most high school assistant, Shri. Y. Philipose on 13-5-1983. This arrangement was approved by the District Educational Officer by his order dated 18-5-1983. 6. In the meantime, the appointment of the 3rd respondent as Headmaster of the Girls' High School was reported to the District Educational Officer for approval. The District Educational Officer refused approval by order dated 3-5-1983 in view of Government order dated 27-4-1983. The Manager filed an appeal before the Deputy Director of Education. 7. The 3rd respondent had in the meantime filed Cr. R. P. No. 489 of 1983 against the order of the Sub Divisional Magistrate and obtained an order of stay of the order dated 10-5-1983, which the latter had passed under S.144 of the Code of Criminal Procedure. 8. The Manager filed O. P. No. 4198/83 challenging the order of the District Educational Officer dated 18-5-1983 approving the arrangement whereby Sri. 8. The Manager filed O. P. No. 4198/83 challenging the order of the District Educational Officer dated 18-5-1983 approving the arrangement whereby Sri. M. I. Kuriakose handed over charge of the School to the senior-most High School Assistant, Sri. Y. Philipose, and permitting the latter to continue the current duties of Headmaster. That order was stayed by this Court by order dated 27-5-1983 in C. M. P. No. 12562 of 1983. 9. Sri C K. Abraham, the Junior High School Assistant who was appointed as Headmaster of the Girls' High School by the Manager is his order dated 30-4-1983 and who is said to have assumed charge as such on 30-4-1983 filed O.P.No. 4857 of 1983 challenging the government order dated 27-4-1983 granting extension of service to Sri. M. I Kuriakose and the order of the District Educational Officer dated 18-5-1983 approving the entrustment of charge of the School to Sri Y. Philipose. No interim orders were passed in that original petition. 10. The senior most teacher. Sri Y. Philipose sought to assert his claim for appointment as Headmaster of the Girls' High School, or at least the subsequent vacancy which was to arise in the Boys' High School by filing O.P. No. 5313 of 1983 seeking the issue of a writ of certiorari to quash the order of the Manager dated 30-4-1983. He also sought issue of a writ of mandamus directing the management and the educational authorities to consider his claims for appointment as Headmaster of either of the schools in view of his seniority. 11. Sri Philipose filed O.P. No. 3990 of 1985 apprehending that the Manager was likely to appoint another junior teacher as Headmaster of the St. Stephen's Boys' High School in the arising vacancy. Sri. C K. Aleyas, one of the junior High School assistants was appointed by the Manager as Headmaster of the Boys' High School with effect from 1-5-1985 in the vacancy occasioned by the retirement of the then Headmaster on 30-4-1985 In C.M.P. No. 12571/85 this Court ordered on 12-5-1985 that the District Educational Officer would not approve the appointment of Sri. Aleyas as Headmaster. 12. The District Educational Officer, by order dated 3-5-1983, had refused to approve the appointment of Sri. C. K. Abraham on 30-4-1983 by the Manager. Aleyas as Headmaster. 12. The District Educational Officer, by order dated 3-5-1983, had refused to approve the appointment of Sri. C. K. Abraham on 30-4-1983 by the Manager. The appeal filed before the Deputy Director of Education was dismissed by order dated 20-3-1984, since the Manager could not prove his claim of protection under Art.30(1) of the Constitution of India. The Manager filed a review petition dated 10-8-1984 against that order. That petition was allowed by the Deputy Director by order dated 10-9-1984, directing approval of the appointment of Sri C. K. Abraham by the Manager. The District Educational Officer approved the appointment by order dated 13-9-1984. Sri Y. Philipose, the senior teacher filed a revision petition before the Government, which by order G, O. Rt. 2278/85/G. Edn. dated 10-6-1985, cancelled the review order of the Deputy Director of Education dated 10-9-1984. The Manager challenges that order of the Government dated 10-6-1985 in OP. No. 6341/1985. The order of the Govern-has been stayed by this Court in C.M.P. No. 18462/85. 13. The running battle between the manager and the senior teachers of the School has thrown up a number of complicated problems, which seek solution. As I mentioned at the beginning, the most important of them is the right of senior teachers of the minority communities, to claim rights, if any, to be appointed by promotion as Headmasters of Schools belonging to those communities. The senior teachers have raised a dispute as to the competence of the individual manager to represent the corporate educational agency itself, since the School Board, which elected him as Manager only for a period of 4 years had ceased to hold office on 31-12-1983. It is submitted that the manager was appointed for 4 years and his appointment was approved only for that period. It is their case that the manager is only an impostor, and 4 out of 7 members of the School Board bad indicated their unwillingness to continue him as the Manager of the School. That is hardly a controversy which can be effectively resolved in these proceedings. I should leave that to be decided in other appropriate proceedings by the Civil Court, if any such proceedings are instituted. 14. That is hardly a controversy which can be effectively resolved in these proceedings. I should leave that to be decided in other appropriate proceedings by the Civil Court, if any such proceedings are instituted. 14. The next problem thrown up by this controversy is the extent to which the government is competent to impose on an unwilling management, a Headmaster of the Government's choice by extension of service of the latter beyond the age of his retirement. Can the government act in that regard only if the management, whether it be a minority community management or otherwise moves the Government for such extension of service or re-employment, or can the Government act on its own, on the request of the concerned teacher? Are the considerations which the Government stated as necessitating an extension of service in favour of individual teacher justiciable? If so, what is the limit of such judicial review? Does the minority community management have an unlimited choice in the matter of appointment of Headmasters? Answers should be found to all these questions. 15. The main grounds urged by the Manager in O. P. No. 3745/83 are that the Government could not have passed the order granting extension of service of the 2nd respondent on re-employment terms since his re-employment by the Government as Headmaster of the petitioner's School amounts to violation of the petitioner's rights under S.11 of the Kerala Education Act. It is said to violate the rights of qualified senior teachers of the 2 High Schools belonging to the management. It is also said to violate the right of the petitioner under Art.30(1) of the Constitution of India to administer the School. The manager also controverts most of the assertions contained in Ext. P2 order as necessitating the extension of service in the case of the 2nd respondent. 16. It is asserted, and it is not properly controverted, that the 2nd respondent, after he took over as the Headmaster of the school, had not been able to produce high percentage of results in S. S. L. C. Examination. The second respondent admits that there were minor variations at times due to factors beyond his control. Any how even he does not claim consistently good results over a period. It is admitted that he had ceased to bold office as Chairman of the Governing body of the Mar Athanasius College of Arts. The second respondent admits that there were minor variations at times due to factors beyond his control. Any how even he does not claim consistently good results over a period. It is admitted that he had ceased to bold office as Chairman of the Governing body of the Mar Athanasius College of Arts. The petitioner asserts that be was voted out of office, whereas the 2nd respondent maintains that he resigned. The fact remains that he was not holding that office on the relevant date. The important fact, about which there is no dispute at all, however, is that the Management was not consulted at any time on the need to continue this "Headmaster of exceptional merit" in public interest for a period of four more years so as to enable the school to obtain the benefit of his continuance in service till the age of 60 years, which he had denied himself by opting service conditions under Chapter XIV-C of the Kerala Education Rules. That extension was granted in spite of the absolute prohibition contained in R.2 Chapter XIV-C of the Rules against any re-option by teachers who had once opted for that chapter. The only reason indicating any hardship to the individual concerned by the rigour of R.2 Chapter XIV-C was that he was disabled from re-opting. That was nothing special in the case of the 2nd respondent. It is corn-man knowledge that there were a large number of teachers who felt they were trapped by their own options and who had therefore to retire from service earlier. The Government had to postpone and revise the last date for receipt of options on many occasions. The requests for re-option even after that was a legion. This court had been moved unsuccessfully on a number of occasions by many teachers for an opportunity to re-opt. The prejudice caused by the rigour of R.2 Chapter XIV-C of the Rules was an infirmity which affected many and not the 2nd respondent only. No particular reasons are mentioned why the rigour of the Rule should have been relaxed in his case alone, and not in the cases of others. His proximity to the seats of power and his access to the power-wielders alone shall not be sufficient explanation for the exercise of the power of relaxation of the Rules in his favour. None else are pleaded by the respondents. His proximity to the seats of power and his access to the power-wielders alone shall not be sufficient explanation for the exercise of the power of relaxation of the Rules in his favour. None else are pleaded by the respondents. I am not able to discern any other reason on a diligent search of the files produced by the Government Pleader. None such are pleaded in the counter affidavit filed on behalf of the Government by the Secretary, General Education. I am not, therefore, in a position to uphold the submission of the respondents that Ext. P2 order dated 27-4-1983 was passed on relevant considerations and on a bona fide exercise of. power under R.3 Chapter I of the Kerala Education Rules. There seems to be many things that do not meet the eye in the as-yet-unexplained circumstances which prompted the Government to go hunting for reasons for granting extension of service to a headmaster who had opted to be retired from service at the age of 55 years. 17. In O.P. No. 4198/83 filed by the Manager and O.P. No, 4857/83 filed by the junior teacher whom the manager appointed as Headmaster of the Girls' High School, almost the same contentions are raised by them. The order dated 18-5-1983 of the District Educational Officer approving the arrangement where under the senior most High School Assistant of the School was given charge of the Girls' High School is also challenged in these Original Petitions. O.P. 6341/85 filed by the Manager also raises the same points against the Government order dated 10-6-1985 cancelling the order of the Deputy Director of Public Instruction approving the appointment of the junior teacher Sri. C. K. Abraham as Headmaster. The point sought to be emphatically urged by the petitioners is the minority's right to appoint any person as Headmaster in view of its immunity from control under Art.30(1) of the Constitution of India. 18. The senior most High School Assistant, who also belongs to the minority community, and who is the petitioner in O.P. 5313/83 and 3990/85 as also one of the respondents in the other Original Petitions (OPs. 4198/83, 4857/83 and 6341/85) assails the choice of the person who holds only the seventh rank among High School Assistants as Headmaster as arbitrary and illegal. 4198/83, 4857/83 and 6341/85) assails the choice of the person who holds only the seventh rank among High School Assistants as Headmaster as arbitrary and illegal. Of the six seniors, all of whom belong to the same community, five persons were fully qualified to be appointed as Headmaster. None of them was found to be wanting in eligibility, qualification, moral character, religious fervour or the 'outlook and philosophy' to be chosen as Headmaster of the institution belonging to the minority. As a matter of fact, 63 teachers of the school had submitted representations to the authorities protesting against the appointment of the junior teacher as Headmaster The only other point which has to be noted is the submission on their behalf that just as much as the Government cannot exercise its power of relaxation of qualification arbitrarily, the Manager, a statutory functionary, cannot exercise his power of appointment of the Headmaster in an absolutely arbitrary and un-reasonable manner. It is submitted that even if the minority institution has a right to choose the headmaster, such choice can be made only consistent with the interests of the community and not in derogation thereof. The Management cannot, in exercise of its right of appointment of headmaster, appoint a junior teacher belonging to another community in preference to senior teachers belonging to the same or other community who were appointed on an overall assessment of their, outlook and philosophy. The right or immunity available to the minority community institution can be operative only to further the interests of the community including teachers of that community and others working in such institutions for decades satisfactorily and not to oppress senior teachers belonging to that very community. 19. It is elementary that in our constitutional system, no statutory authority can claim such immunity from regulations as to be unreasonable and arbitrary. None of the constitutional rights or immunities including those relatable to Art.30(1) of the Constitution of India can bear an interpretation which enables the management of educational institutions belonging to the minority community to trample underfoot all its teachers. Art.30(1) of the Constitution did not create an island of unconstitutional and arbitrary power in favour of minority managements to be used unreasonably, and whimsically against members of that community who happened to be teachers. Art.30(1) of the Constitution did not create an island of unconstitutional and arbitrary power in favour of minority managements to be used unreasonably, and whimsically against members of that community who happened to be teachers. The effect of Art.30 (1) of the Constitution is not to deprive the members of that community or teachers of institutions belonging to them of the right to equality or freedom from arbitrariness or caprice or whim of a State-aided and State-funded instrumentality. The right and immunity available under that article can be claimed and used only for the purposes for which such right and immunity were ensured by provisions in the Constitution. What the Constitution makers comprehended when the provisions for protecting the interests of the minority community were made could not have been the few institutional agencies to be given immunity from control so as to use that immunity even against the members of that community; but only to preserve the religion, culture and language of the minority community from authoritarian onslaughts of the majority communities. The minority-community vwas given freedom to order the affairs of its educational institutions. It was not meant to be an instrument of oppression to be used against that community itself. 20. There can be no doubt that the appointment of the Headmaster of a school conducted by the minority community requires approval of the educational authorities. The controlling authorities can insist that the person to be appointed as Headmaster should have the required qualifications, general and technical as also experience as a teacher. The authority can also refuse to approve the appointment of a person with known criminal antecedents, who had been indulging in anti national activities and whose performance as a teacher has beep so reprehensible as to disentitle him from being considered even as a teacher, much less, headmaster of an educational institution. The power to withhold approval of the appointment of such a person as Headmaster even of a minority institution cannot be denied. If that be so, can it be asserted by any management, even of a minority institution, that it has an unrestricted choice in the matter of appointment of Headmasters? The power to withhold approval of the appointment of such a person as Headmaster even of a minority institution cannot be denied. If that be so, can it be asserted by any management, even of a minority institution, that it has an unrestricted choice in the matter of appointment of Headmasters? Can the management assert that irrespective of the seniority and other claims of teachers of the institution, all of whom belong to the same minority community and all of them being good, experienced and capable teachers, the management can appoint an outsider? I am not so sure as counsel for the management seems to be. If the controlling authority can ascertain the qualifications, antecedents, the character and capabilities of a person whose appointment as Headmaster has to be approved, he can also consider whether there are any exceptional circumstances justifying departure from the ordinary rule of seniority in the matter of promotion, subject of course, to suitability. It is true that the post of Headmaster is of pivotal importance in the matter of administration of the educational institution. It is also true that on him depends the tone and tenor of the institution. But it is not as if teachers are only inconsequential appendages in the scheme of things. Mathew, J. in his separate, but concurring opinion on behalf also of Chandrachud, J. (as he then was) in St. Xavier's College case (AIR. 1974 SC. 1389) observed: "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. 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." Mathew, J. again included teachers along with the Principal in his differing opinion in Gandhi Faiz-E-Am College v. University of Agra ((1975) 2 SCC 283) and observed: "It is no doubt, true that it is upon the Principal and the teachers that the whole temper and the tone of a college depend." 21. The teachers of the school are to be chosen by the management of minority institutions "after an overall assessment of their outlook and philosophy." It is such teachers who shape the 'tone and temper' of the institution that after years of experience in guiding the destinies of the pupils with an eye to preserve the culture, traditions and values closest to the heart of the community that gradually become the senior most teachers. It is no wonder that they aspire, before the twilight hues fade out of their teaching career of dedicated service, to ascend the pinnacle of glory as the head of the institution which had become, so much, a part of their very being, Except for exceptional reasons of intermediate aberrations which make a few unsuitable to guide the destinies of the wards of the community through the most desirable Channels, the others should ordinarily be entitled to this gratifying reward. It shall not be as if these senior teachers are made to lament towards the end of their teaching career, with suitable modifications in Cardinal Wolsley's prayer, "Had I served any other school than belonged to my community, I would not have fallen on these evil days." 22. Senior most teachers of every school can reasonably expect to be promoted as Headmasters of the schools after years of service in those institutions. For most teachers, that may be the only reward for long and dedicated service. A teacher belonging to the minority community working in a school other than a minority institution naturally can have that legitimate expectation. Should the choice of a member of the minority community as teacher of an educational institution, "established and administered" by it and in the expressive phraseology of Justice Mathew, the most vocal-ever of the champions of minority rights of the High Bench of the apex Court of the country "appointed by the management after an overall assessment of their outlook and philosophy", be a millstone around his neck when it comes to appointment as Headmaster of the school? If the fact that he belongs to a minority community does not disentitle the senior most teacher of being appointed as Headmaster in any other private aided school, should it be a disqualification for him to be appointed as Headmaster in a school belonging to that minority community to which he belongs, the faith of which he professes, the culture of which he inhers, the characteristics of which he fosters, and the tradition of which he has been inculcating in the pupils for decades of dedicated service? If the answer be that the senior-most teacher shall be denied that last reward in his service career for having served his community with unstinted ardour, there will be many Cardinal Wolsleys in our teaching community lamenting the service which they rendered to their community. The rights of the minority community under Aft. 30(1) of the Constitution of India shall not be, and according to me, was not meant, to reduce the teachers belonging to the very community to this sad state of affairs. Any interpretation of Art.30 (1) which enlarges the right of the management to claim that senior teachers who were appointed by the Management after an "over-all assessment of their outlook and philosophy" in the context of the religious tenets, cultural traditions and the tone and temper of the educational institutions of the minority community can be denied the right to promotion to the "pivotal position" in that very institution, cannot be accepted. A teacher in the minority institution has such rights, as a teacher in any other institution has, to aspire for promotion in accordance with fair and ordinarily applicable standards. I am yet to know of any principle of law or religion or precedent which ordains that teachers in minority institutions shall have no right to aspire for advancement in their career. On the other hand, members of the minority community have all the rights which any other citizen of India has. I will quote Mathew, J. again, in the St. Xavier's College case (supra.), where it was observed that: "Regular tax measures, economic regulations, social welfare legislation, wage and hour legislation and similar measures may, of course have some effect upon the right under Art.30 (1). I will quote Mathew, J. again, in the St. Xavier's College case (supra.), where it was observed that: "Regular tax measures, economic regulations, social welfare legislation, wage and hour legislation and similar measures may, of course have some effect upon the right under Art.30 (1). But where the burden is the same as that borne by others engaged in different forms of activity, the similar impact on the right seems clearly insufficient to constitute an abridgment." 23. Legitimate expectations of an employee of a State-aided and State-funded institution, the whole of whose salary is paid by the State by virtue of the obligation under S.8 of the Kerala Education Act as equal to the remuneration payable to the Government School teachers and whose service conditions are more or less equal to those of similar employees under the Government, is entitled, quite naturally, to expect the reward of advancement in service. Such rewards of service as promotion in their turn, fortunately, have not so far been held to be unattainable by teachers in minority educational institutions. If the continuance of a senior teacher does not jar against the "temper and tone" of the institution, it passes my comprehension how that very teacher, when he becomes the senior most, and a vacancy in the pivotal position of Headmaster arises, becomes unfit to guide the destinies of the institution, the furtherance of the temper and tone of which, he himself was, at least in part, responsible to create and foster. I am certainly aware there is likely to be exceptions, when a teacher, due to aberrations subsequent to his appointment, renders himself unsuitable for being appointed as the head of the institution. That happens not only in minority institutions, but in others as well. R.44, Chapter XIV-A of the KER. does provide for exceptional situations like that, where an unfit senior can be superseded and a more fit junior can be appointed. 24. In the context of minority institutions, the 'temper and tone' of which had come up for notice repeatedly, a Full Bench of this Court, as early as in Rt Rev. Aldo Maria Patroni v. E. C Kesavan (1964 KLT. 791) held that an extra-ordinary situation like that is taken care of by the very phraseology used in R.44 Chapter XIV-A of the KER. The situation dealt within Patron's case was exceptional. Aldo Maria Patroni v. E. C Kesavan (1964 KLT. 791) held that an extra-ordinary situation like that is taken care of by the very phraseology used in R.44 Chapter XIV-A of the KER. The situation dealt within Patron's case was exceptional. The senior most teacher, when a vacancy of Headmaster arose in a School conducted by the Roman Catholic Bishop and the Provincial of the Jesuit Province of Kerala, was a non-Christian. The management insisted that they had the right to appoint a member of the Society of Jesus as the Headmaster of the school and therefore chose a person who was a junior teacher in that school for such appointment. That was successfully challenged by the senior most teacher before the Director of Public Instruction. The Management challenged the decision of the Director of Public Instruction in an Original Petition before this Court. No question arose in that case as to whether a senior most teacher belonging to the same religious persuasion and the same minority community could be superseded by the management of the minority institution in favour of a junior teacher belonging to the same community. M. S. Menon, C. J., naturally highlighted the peculiarities of the Jesuit Order in the educational progress of the State and the country as entitling that Order to insist that the Headmaster of their institution must be one belonging to their order. Reference was also made to the fact that since 1883, there was no non-Christian Headmaster for that school. 25. Three decisions of this Court have to be noticed in this regard. I have already referred to the Full Bench decision in Aldo Maria Patroni's case, dealing with the validity of R.44 of Chapter XIV-A, KER. The Full Bench observed: "The word "ordinarily" in R.44 gives a certain amount of elasticity to that rule. It may be possible to say that one of the "extraordinary" circumstances visualised by the rule is the appointment of headmasters in institution like the one before us. And in view of that, we do not think it necessary to strike down the rule". In Rev. Fr. Daniel v. Director of Public Instruction, (1965 KLT. 927), Mathew, J., as he then was, took an extreme position, that the educational institutions established and administered by minorities would not be bound by R.44. That decision proceeds far beyond the cautious observations contained.in the decision of the Full Bench. In Rev. Fr. Daniel v. Director of Public Instruction, (1965 KLT. 927), Mathew, J., as he then was, took an extreme position, that the educational institutions established and administered by minorities would not be bound by R.44. That decision proceeds far beyond the cautious observations contained.in the decision of the Full Bench. I do not think that I will be justified in accepting the decision of a single judge in preference to the decision of a Full Bench. One other decision to be noticed is reported in Rt. Rev. Dr. Alda Maria Patron v. A.E.O.. (1974 KLT. 78), where Viswanatha Iyer, J., held that R.44 and 45 of Chapter XIV¬A, KER. do not relate to qualifications that a teacher must possess and experience which he should have to discharge the duties of the school, and may therefore not be a regulation of the right under Art.30(1) of the Constitution of India. Nevertheless, he did not strike down the rule, nor did he follow the decision of Mathew, J., as he then was, in Rev. Fr. Daniel's case (supra). I have not been referred to any decision other than Rev. Fr. Daniel's case by Mathew, J, which travels beyond the decision of the Full Bench in Rev. Fr. Dr. Aldo Maria Patron's first case. 26. Some of the decisions dealing with regulation of the rights of minorities in the matter of establishment and administration of educational institutions have also to be considered. In State of Kerala v. Cor. Management of Schools, (1970 KLT. 232), a Division Bench of this Court held: "To effectuate the guarantee of Art.30(1) it is not enough if the teacher of a school maintained by a religious minority possesses the educational qualifications or even the character suitable for appointment in a Government or aided school, but must also be suitable for employment in the institution with a set purpose of conserving the religious culture of the minority community." The right of choice is thus exercised even at the time of initial appointment of teachers with "a set purpose of conserving the religious culture of the minority community." 27. In Rachal Philip v. State of Kerala, (1973 KLT. 96), Subramonian Poti, J., as he then was, on a reference to the decision in AIR. 1963 SC. 540, and AIR. 1971 SC. In Rachal Philip v. State of Kerala, (1973 KLT. 96), Subramonian Poti, J., as he then was, on a reference to the decision in AIR. 1963 SC. 540, and AIR. 1971 SC. 1737, held that "Therefore, regulatory measures if they are in the interests of the minority institutions may have to be upheld and what this Court said was only that R.51 A does not affect the right to administer but is only regulatory and not restrictive of that right." 28. In The Manager, Corporate Educational Agency v. D. E. O. Muvattupuzha, (1973 KLT. 603), Isaac J., held; "Fixity of tenure for the office and recognition of past service for future appointment are necessary for the contentment of the staff and consequently for the well being of the institution. The staff in the aided schools, who are paid from the State revenue is entitled to an equality of treatment like the staff in Government schools; and the minority schools cannot claim any exemption, so long as the regulations made in that respect do not violate the fundamental right guaranteed under Art.30(1) of the Constitution. It is a protection granted to the minorities; and they are not entitled to claim any special privileges or higher right than the majority community by virtue of the above article, except to the limited" extent provided by that Article. It is also undesirable, if not dangerous. If R.51A in Chap. XIV-A of the rules is good in respect of the teaching staff, there is no reason why its application to the non-teaching staff is not also good. The same considerations apply to both cases. It follows that the objection raised to the validity of the rule as violative of Art 30 (1) of the Constitution cannot succeed." 29. The same question was considered by a Division Bench of this Court in W.A. No. 44 of 1970, which was referred to in Rachal Philip v. State (AIR 1972 Kerala 238), where it was held: "We see little substance in the contention that R.51A is ultra vires Art.30 (1) of the Constitution. The same question was considered by a Division Bench of this Court in W.A. No. 44 of 1970, which was referred to in Rachal Philip v. State (AIR 1972 Kerala 238), where it was held: "We see little substance in the contention that R.51A is ultra vires Art.30 (1) of the Constitution. That a fully qualified person who has once been appointed by the Manager and discharged for want of vacancy should be re-appointed unless he has meanwhile disqualified himself in some way or other and there is no such allegation here is if it at all affects the right to administer only regulatory and not restrictive of that right." 30. The effect of the obligation under R.6 of Chapter V of the KER. to absorb protected teachers on the right under Art.30(1) of the Constitution of India was considered by a Division Bench of this Court in Rev. Kuriakose v. State of Kerala (1980 KLM. 443). It was held: "It is sufficient to say that having obtained advantage, by reason of consenting to absorb the protected teachers and non-teaching staff it may not now be fair to seek relief from this Court to avoid the consequences of the agreement entered into by the petitioners on the plea of violation of the minority rights under Art.30(1) of the Constitution of India". 31. These precedents may show sufficiently clearly that regulatory measures providing for the appointment of teachers, their qualification, experience, conditions of service, right for promotion and similar other matters, which are incidentally meant to advance the cause of the institution and the community, cannot be tabooed as violative of Art.30(1) of the Constitution of India. The provision that seniority shall ordinarily be considered for promotion of teachers appointed in the minority institution "with a set purpose of conserving the religious culture of the minority community" cannot but be treated as advancing the interests of the institution and the community. 32. If the terms of appointment of teachers, their conditions of service and provisions associating the senior most teachers in the management of the institution are matters meant for advancements of the interests of the institution and the community, I do not find any reason why the requirement that "ordinarily", the senior most teachers shall be promoted as Headmasters of the school shall offend the freedom or the sensibilities of the minority community. This must be far less so in a case where the senior-most teacher is one who has been appointed after ascertaining his philosophy of life and approaches to matters concerning the religion, the traditions and the culture of the minority community. I cannot understand an insistence that even such teachers as were initially appointed on assessment of these important factors should be out castes depending on the tender mercies of the management for being appointed as the Headmaster of the school. It will be a travesty of justice if senior teachers of minority schools will get, even in the twilight years of the twentieth century, only that treatment from the managements, which has long become obsolete in our society. The feudal concept of unlimited freedom of choice in matters of employment in the enlightened sphere of education should not pass off as protected under Art.30(1) of the Constitution of India. 33. The right under Art.30(1) of the Constitution of a minority community to establish and administer educational institutions, though apparently absolute in character, is subject to regulations in the interests of efficiency of instruction, discipline, health, sanitation, morality, public order and the like. Such regulations are not restrictions on the substance of the right guaranteed by the Constitution. Even as early as in In Re Kerala Education Bill, 1957, (AIR. 1958 SC 956) the Supreme Court had held that the right to administer does not comprehend the right to 'maladminister'. In his leading judgment, S. R. Das, J. observed that: : "We have already observed that Art.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 in unhealthy surroundings, without any competent teachers possessing any semblance of qualification, and which does not maintain even fair standard of teaching or which teaches matters subversive of the welfare of the scholars. 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 in unhealthy surroundings, without any competent teachers possessing any semblance of qualification, and which does not maintain even fair standard of teaching or which teaches matters subversive of 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" This theme of regulation of the right under Art.30(1) of the Constitution was farther expanded in the judgment in St. Xavier's College case (supra). Ray, C. J. speaking for himself and Palekar, J., observed: "The right conferred on the religious and linguistic minorities to administer educational institutions of their choice is not an absolute right. This right is not free from regulation. Just as regulatory measures are necessary for maintaining the educational character and content of minority institutions, similar regulatory measures are necessary for ensuring orderly, efficient and sound administration. Das, C. J., in the Kerala Education Bill case 1959 SCR 995:(AIR.1958 SC. 956) (supra) summed up in one sentence the true meaning of the right to administer by saying that the right to administer is not the right to mal-administer " 34. Referring to the decision in State of Kerala v. Very Rev. Mother Provincial (AIR. 1970 SC. 2079) it was observed that: "Therefore measures which will regulate the courses of study, the qualifications and appointment of teachers, the conditions of employment of teachers, the health and hygiene of students, facilities for libraries and laboratories are all comprised in matters germane to affiliation of minority institutions. These regulatory measures for affiliation are for uniformity, efficiency and excellence in educational courses and do not violate any fundamental right of the minority institutions under Art.30." (emphasis supplied). It was further held: "Standards of education are not part of management as such. Those standards concern the body politic and are dictated by considerations of the advancement of the country and its people. It was further held: "Standards of education are not part of management as such. Those standards concern the body politic and are dictated by considerations of the advancement of the country and its people. The minority institutions cannot be allowed to fall below the standards of excellence expected of educational institutions or under the guise of exclusive right of management to decline to follow the general pattern. While the management may be left to them, they may be compelled to keep in step with others." 35. The effect of provisions of statutes insisting upon induction of outsiders as members of the management bodies of minority educational institutions as a condition for recognition or affiliation came up for consideration of the Supreme Court in the two Bihar cases and one Punjab case, Rev. Fr W. Proost v. State of Bihar (AIR 1969 SC 465), Bishop S. K. Patra v. State of Bihar (AIR 1970 SC 259) and D. A. V. College v. State of Punjab (AIR 1971 SC 1737). The conferment of appellate power to review disciplinary orders passed against teachers of minority institutions was held to be violative of Art.30(1) of the Constitution of India in Lilly Kurian v. Sr. Lewina (AIR 1979 SC 52) in view of absence of any guidelines governing the appellate discretion. That was followed by a Full Bench of this Court in Manager, St. Joseph's College v. University Appellate Tribunal (1980 KLT. 67). Provisions requiring the constitution of governing body of private colleges consisting of extraneous elements nominated by the University and the State were challenged in State of Kerala v. Rev. Mother. Provincial (AIR 1970 SC 2079) That was an appeal from the decision of the Kerala High Court (1969 KLT 749) which held that requirement of approval of appointment of the Principal who was holding a pivotal position in the administration of the College was an interference with the right of the minority community under Art: 30(1) of the Constitution of India. Dealing with the nature and extent of the restrictions on the right of administration it was held that: "Restrictions on the right of administration imposed in the interests of the general public alone and not in the interests of and for the benefit of minority educational institutions concerned will affect the autonomy in administration., X X X There may be control and check on administration in order to find out whether the minority institutions are engaged in activities which are not conducive to the Interest of the minority or to the requirements of the teachers and the students." 36. Ray, C. J. concluded his opinion in St. Xavier's College case 'supra) with the observations that: "The teachers and the taught form a world of their own where everybody is a votary of learning They should not be made to know any distinction. Their harmony rests on dedicated and disciplined pursuit of learning. The areas of administration of minorities should be adjusted to concentrate on making learning most excellent. That is possible only when all institutions follow the motto that the institutions are places for worship of learning by the students and the teachers together irrespective of any denomination and distinction." Jaganmohan Reddy, J. also held that: "The right of a linguistic or religious minority to administer educational institutions of their choice, though couched in absolute terms has been held by this Court to be subject to regulatory measures which the State might impose for furthering the excellence of the standards of education." Justice Khanna went a step further. He observed: "The right of the minorities to administer educational institutions does not however, prevent the making of reasonable regulations in respect of those institutions. The regulations have necessarily to be made in the interest of the institution as a minority educational institution. They have to be so designed as to make it an effective vehicle for imparting education. The right to administer educational institutions can plainly not include the right to mal-administer Regulations can be made to prevent the housing of an educational institution in unhealthy surroundings as also to prevent the setting up or continuation of an educational institution without qualified teachers. The State can prescribe regulations to ensure the excellence of the institution. Prescription of standards for educational institutions does not militate against the right of the minority to administer the institutions. The State can prescribe regulations to ensure the excellence of the institution. Prescription of standards for educational institutions does not militate against the right of the minority to administer the institutions. Regulations made in the true interests of efficiency of instruction, discipline, health, sanitation, morality, public order and the like may undoubtedly be imposed. Such regulations are not restrictions on the substance of the right which is guaranteed: they secure the proper functioning of the institution in matters educational. To deny the power of making regulations to the authority concerned would result in robbing the concept of affiliation or recognition of its real essence. No institution can claim affiliation or recognition until it conforms to a certain standard It is, therefore, permissible for the authority concerned to prescribe regulations which must be complied with before an institution can seek and retain affiliation and recognition. It has not been disputed on behalf of the petitioners that if the State or other statutory authorities make reasonable regulations for educational institutions, those regulations would not violate the right of a minority to administer educational institutions. We agree with the stand taken by the petitioners in this respect. It would be wrong to assume that an unrestricted right as in Art.30 postulates absence of regulations. Regulations can be prescribed in spite of the unrestricted nature of the right." 37. Mathew, J. who spoke also on behalf of Chandrachud, J. (as he then was), observed: "The question to be asked and answered is whether the particular measure is regulatory or whether it crosses the zone of permissible regulations and enters the forbidden territory of restrictions or abridgment. So, even if an educational institution established by a religious or linguistic minority does not seek recognition, affiliation or aid. its activity can be regulated in various ways provided the regulations do not take away or abridge the guaranteed right Regular tax measures, economic regulations, social welfare legislations, wage and hour legislation and similar measures may, of course have some effect upon the right under Art.30(1). But where the burden is the same as that borne by others engaged in different forms of activity, the similar impact on the right seems clearly insufficient to constitute an abridgment. But where the burden is the same as that borne by others engaged in different forms of activity, the similar impact on the right seems clearly insufficient to constitute an abridgment. If an educational institution established by a religious minority seeks no recognition, affiliation or aid, the State may have no right to prescribe the curriculum, syllabi or the qualification of the teachers. In every case, when the reasonableness of a regulating conies up for consideration before the Court, the question to be asked and answered is whether the regulation is calculated to subserve of will in effect subserve the purpose of recognition or affiliation, namely the excellence of the institution as a vehicle for general secular education to the minority community and to other persons who resort to it." 38. The next occasion when the entire gamut of controversy was again before the Supreme Court was in Gandhi-Faiz-E. Am College v. University of Agro (1975) 2 SCC 283). On a review of the decisions that far, Krishna Iyer, J. speaking for the majority consisting himself and A. C. Gupta J. held that: "Where the object and effect is to improve the tone and temper of the administration without forcing on it a stranger, however superb his virtues be, where the directive is not to restructure the governing body but to better its performance by a marginal catalytic induction, where no external authority's fiat or approval or outside nominee is made compulsory to validate the Management Board, but inclusion of an internal key functionary appointed by the autonomous management alone is asked for, the provision is salutary and saved, being not a diktat eroding the freedom of the freedom." Dealing with the right of the management to administer educational institutions of their choice, it was observed: "If the law says that a person sentenced for a prescribed period of imprisonment for breach of trust or an undischarged insolvent would be disqualified to be the treasurer or one who has been removed from public office for moral delinquency or has been punished for outraging the religious feelings of the very minority under S.295-A, IPC. should not, hold office on the governing body, such a regulation affects the structure of the governing body but is indubitably a protection against likely mal-administration. should not, hold office on the governing body, such a regulation affects the structure of the governing body but is indubitably a protection against likely mal-administration. Likewise, supposing the management has to award scholarships to students of merit, decide on courses of study to be undertaken, regulate teacher-students comity and discipline, who but the Principal chosen by the minority itself will be better on the Committee to guide it in these vital affairs? These fine but real lines cannot be obfuscated by excessive emphasis on the character of the organ as against its method of working. Men matter in extreme situations". 39. With reference to the observations of justice Mathew in St. Xavier's College Case that, "It is upon the Principal and teachers of a college that the tone and temper of an educational institution depend", Krishna Iyer, J. observed: "This strategic appointee must be chosen by the management with sedulous care and his choice should not be 'externalised' by regulations. All right. But for the excellent reason that the principal is the vital, vibrant and luscent presence within the educational campus, no administration can bring out its best in the service of the institution sans the principal. To alienate him is to integrate the academic head into the administrative body for the obvious betterment of managerial insight and proficiency. The principal is an invaluable insider the management's own choice not an outsider answerable to the Vice-Chancellor. He brings, into the work of the Managing Committee that intimate acquaintance with educational operations and that necessary expression of student-teacher aspirations and complaints which are so essential for the minority institution to achieve a happy marriage between individuality and excellence. And the role of the senior most teacher, less striking may be and more unobstrusive, is a useful input into managerial skills, representing as be does the teachers and being only a seasoned minion chosen by the management itself," 40. The formulations contained in the latest of the decisions of the Supreme Court in Managing Board, M.T.M. v. State of Bihar (AIR. 1984 SC. 1757) are not much different and approve the need and desirability of regulations on the apparently unrestricted right under Art.30(1) of the Constitution of India. 41. The formulations contained in the latest of the decisions of the Supreme Court in Managing Board, M.T.M. v. State of Bihar (AIR. 1984 SC. 1757) are not much different and approve the need and desirability of regulations on the apparently unrestricted right under Art.30(1) of the Constitution of India. 41. It therefore follows that the managements of educational institutions established and administered by minority communities are bound, "ordinarily to promote the senior most teachers as Headmasters of the schools; and there is no unrestricted right of choice for the minority management in the matter of such appointments. The teachers of such institutions are as much entitled as teachers of other private schools, to be governed by regulations of uniform application in the matter of such promotions, since the teachers are appointed "after an overall assessment of their outlook and philosophy of life" "with a set purpose of conserving the religious culture of the minority community". Out-of-the-ordinary situations are taken care of by R.44 Chapter XIV-A of the K, E. Rules itself as was held in the Palroni's case. 42. In the light of the above discussions, the Original Petitions are disposed of as follows: (1) O. P. 3745/83 filed by the Manager of St. Joseph's Girls High School and O. P. 4857/83 filed by one of the Teachers of that School are allowed. Ext. P2 therein - G. O. Ms. 63/83/G. Edn. dated 27-4-1983 is hereby set aside. The other reliefs sought therein are declined. (2) O. P. 4198/83 and 6341 of 1985 filed by the Manager are dismissed. (3) The Original Petitions filed by the senior most teacher have naturally to be allowed. O. P. 5313 of 1983 and O. P. 3990 of 1985 are therefore allowed, declaring that the petitioner being the senior most High School Assistant in the Corporate Educational Agency is entitled to be considered for appointment as Headmaster of the St. Stephens Girls High School, Keerampara which became vacant on 30-4-1983. The Manager will consider the claims of the Senior most teachers for such appointment in accordance with R.44 Chapter XIV-A of the KER. Stephens Girls High School, Keerampara which became vacant on 30-4-1983. The Manager will consider the claims of the Senior most teachers for such appointment in accordance with R.44 Chapter XIV-A of the KER. and will appoint a junior teacher, only if it is found that the senior most or other senior teachers are unsuitable for such appointment on an assessment of "the outlook and philosophy" of each of them and on a consideration of their suitability to preserve the "tone and temper" of the institution in the context of the interests of the minority community. In doing so, the Manager will take note of the representations of the respective teachers and any decision of the Educational Agency in the matter. The District Educational" Officer and other statutory authorities may have to consider any appeal/revision in the matter of such appointment in the above perspective. I should make it clear that I have not dealt with the controversy as to whether the Manager who is the party respondent in these proceedings can represent the Corporate Educational Agency, nor whether the schools concerned were established and are administered by the minority community. I have proceeded on the assumption that they are, since, even if they are, it may not make any difference to the applicability of R.44 Chapter XIV-A of the Kerala Education Rules. The right of any person to contest the sustainability of this assumption will not in any manner be affected by this judgment. The parties will suffer their respective costs.