PR. FRANCIS FERNANDEZ v. D. E. O. ERNAKULAM — 1988 DIGILAW 338 (KER)

Judgment :- 1. These five Original Petitions raise questions relating to the conflict between the power of the State to regulate the service conditions of teachers of aided schools and the right claimed by managements belonging to minority communities to resist all such regulatory provisions as affecting their fundamental rights under Art.30(1) of the Constitution of India. 2. O.P. No. 665 of 1988 and O.P. No. 2122 of 1987 are filed by the power-of-attorney-holder on behalf of the Bishop of Cochin, who is a Corporate Educational Agency in respect of 26 Schools spread over various educational districts. O. P. No. 2712 of 1988 is filed by a junior teacher, whom the corporate educational agency appointed as Headmaster in one of the Schools St. Mary's Lower Primary School, Chellanam against orders refusing to approve the appointment. O.P. 1917 of 1988 is filed by the Manager of St. Antony's High School, Valiyathura in Trivandrum. O.P. No. 2575 of 1988 is filed by another priest claiming to represent the protection council of Roman Catholic Schools. The challenge in all these Original Petitions is against orders of the controlling, appellate and revisional authorities refusing to approve appointments of junior teachers as Headmasters of aided schools conducted by corporate educational agencies of Christian minority communities. 3. Factual details may not be very material, because it is admitted in all the Original Petitions, that the managements did not appoint senior teachers as Headmasters in accordance with the generality of the provisions contained in R.44 of Chapter XIV-A of the Kerala Educational Rules. I need therefore advert only to the basic facts involved in these petitions. 4. In O.P. No. 665 of 1988, the petitioner, allegedly representing the corporate educational agency, appointed the fourth respondent, who was junior to the third respondent in the combined gradation list of teaching staff under the corporate educational agency as Headmaster of St. Joseph's High School, Chullikkal. That was by order dated 3-6-1985. The 3rd respondent filed an appeal to the 2nd respondent against that order. The 2nd respondent-District Educational Officer, Ernakulam-approved that appointment by order dated 15-10-1985. The 3rd respondent filed O.P.No. 383 of 1986, alleging delay in the disposal of the appeal. That Original Petition was disposed of on 16-1-1986, directing the second, respondent to dispose of the appeal filed by the third respondent under R.44 (2) of Chapter XIV-A of the Kerala Education Roles. In Ext. The 3rd respondent filed O.P.No. 383 of 1986, alleging delay in the disposal of the appeal. That Original Petition was disposed of on 16-1-1986, directing the second, respondent to dispose of the appeal filed by the third respondent under R.44 (2) of Chapter XIV-A of the Kerala Education Roles. In Ext. PI order dated 17-4-1986, the District Educational Officer dismissed the appeal for the reason, that the appeal, which was filed on 10-11-1985 against the appointment of the fourth respondent on 3-6-1985, was belated. The third respondent filed Ext. P2 appeal before the first respondent on 2-6-1986. The appeal was allowed by Ext. P3 order. The Deputy Director of Education, Ernakulam, held that the management had not established its claim for protection under Art.30(1) of the Constitution of India as provided in Ext. P4 guidelines issued by the State Government. He also found that the managers of minority institutions did not have any unbridled right to effect appointments contrary to the provisions of R.44 (1) of Chapter XIV-A of the Kerala Education Rules. The first respondent also found that the manager was not able to establish that the third respondent, who was the senior teacher, was unfit or unsuitable for promotion as Headmaster. The first respondent, therefore, allowed the appeal, set aside the order approving the appointment of the fourth respondent as Headmaster and directed the manager to fill up the post of Headmaster as per R.44 (1) of Chapter XIV-A of the Kerala Education Rules. Petitioner filed O.P. 4781 of 1987 against Ext. P3 order; but withdrew the same on 2-7-1987, without prejudice to the right to challenge the order in revision. In the meantime, he had filed Ext. P5 revision petition before the State Government. The fourth respondent also filed a revision petition before the Government. Government beard the two revision petitions together and dismissed them by Ext. P6 order. Petitioner then filed Ext. P7 application, allegedly seeking certain clarifications and requesting the Government to excuse him for not implementing the Government order for want of clarification. 5. O. P. No. 2122 of 1987 is filed by the same person as power of attorney holder of the corporate educational agency viz., Bishop of Cochin. The controversy in that Original Petition relates to the appointment of Headmaster of St. Mary's Lower Primary School, Chellanam. 5. O. P. No. 2122 of 1987 is filed by the same person as power of attorney holder of the corporate educational agency viz., Bishop of Cochin. The controversy in that Original Petition relates to the appointment of Headmaster of St. Mary's Lower Primary School, Chellanam. The Manager required the second respondent who was admittedly of the seniormost Primary School Assistants under the corporate educational agency and some other senior teachers to appear before him for an interview, to ascertain their eligibility to be promoted as Headmasters of Primary Schools which were likely to arise. The second respondent sent Ext. P1 letter dated 13-3-1985 asserting his claim for promotion and refusing to submit to any test or selection. Petitioner, thereupon, appointed three other teachers as Headmasters in the various Primary Schools. Petitioner in O. P. No. 2712 of 1988 was appointed as Headmaster in the St. Mary's Lower Primary School. Chellanam. In Ext. P2 proceedings of appointment, the manager asserted that he had exercised the right of minority as guaranteed under Art.30 (1) of the Constitution of India. The Assistant Educational Officer approved the appointment. Simultaneously, he rejected the claim of the second respondent to be preferred for promotion. The second respondent filed an appeal before the first respondent. Though the petitioner received notice of the appeal and be submitted Ext. P3 objection in writing, the turned down the opportunity for personal hearing for the reason that the 2nd respondent had refused to appear before him when summoned. The first respondent allowed that appeal in Ext. P4 order after bearing parties who appeared before him, and on a consideration of Ext. P3 objection. He held that the petitioner was bound to promote the seniormost Primary School Assistant as Headmaster. It is that order that is under challenge in O. P. No. 2122 of 1987. 6. The Junior Primary School Assistant, whose appointment as Headmaster could not find favour with the District Educational Officer, is the petitioner in O. P. No. 2712 of 1988. He supports the claim of the corporate educational agency, that the management of minority institutions have unregulated power in the matter of appointment of Headmasters. 7. O. P. No. 1917 of 1988 is filed against the order of the State Government in revision directing the management of an aided school to appoint the seniormost teacher as Headmaster. 8. He supports the claim of the corporate educational agency, that the management of minority institutions have unregulated power in the matter of appointment of Headmasters. 7. O. P. No. 1917 of 1988 is filed against the order of the State Government in revision directing the management of an aided school to appoint the seniormost teacher as Headmaster. 8. O.P. No: 2575 of 1988 is filed by a committee claiming to be interested in the protection of Roman Catholic Schools under the Diocese of Trivandrum. 9. Counsel for the petitioners submit, that St. Joseph's Upper Primary School, Chullikkal, St. Mary's Lower Primary School, Chellanam and St. Antony's High School, Valiyathura were established and are administered by a minority community. They submit, that the respective managements are entitled, by reason of the right of the minority community under Art.30(1) of the Constitution of India in the matter of establishment of educational institutions of their choice, to appoint any duly qualified teacher as Headmaster without being trammelled by the rule of seniority enjoined by R.44 of Chapter XIV-A of the Kerala Education Roles. They place reliance on the decisions of this Court reported in Rt. Rev. Aldo Maria Patroni v. E.C. Kesavan, 1964 KLT. 791, State of Kerala v. Corporate Management, 1970 KLT. 232, V. Rev. Mother Provincial v. State of Kerala, 1969 KLT. 749, and of the Supreme Court in Sidharajbhai Sabhai v. State of Bombay, AIR. 1963 SC. 540, Rev. Fr. Pathro v. State of Bihar, 1969 KLT. 312, and State of Kerala v. V. Rev. Mother Provincial. 1971 (1) SCR. 734:1970 KLT. 630. Reliance is also placed on the decisions of my learned brothers Thomas J., and Sreedharan J., in O. P. Nos. 8945 of 1985 and 9254 of 1986. 10. Fairly elaborate pleadings are available in O.P. No. 2122/87. I will therefore refer to them as representing the main features of these cases. The petitioner has sought to establish that the St. Mary's L. P. School, Chellanam was established and administered since 1921 as attached to the St. Sebastian's Church, Chellanam, that it was established from funds collected from Roman Catholics of the Latin denomination, and therefore the institution is entitled to the absolute right to choose the Headmaster of the School. Extracts of some of the account books of the Church to support these submissions are produced. Sebastian's Church, Chellanam, that it was established from funds collected from Roman Catholics of the Latin denomination, and therefore the institution is entitled to the absolute right to choose the Headmaster of the School. Extracts of some of the account books of the Church to support these submissions are produced. It is also asserted that the claim of the management appointing 26 Headmasters exercising its right under Art.30(1) of the Constitution was duly approved by the department (Ext. P11). 11. The second respondent has filed two counter affidavits. He has controverted all assertions of the petitioner. He belongs to the same minority community and belongs to the Diocese of Cochin. According to him, the School was not established by the Church or the Diocese or the minority community, but by the people of the locality concerned, irrespective of caste or religion. Such people also included parishioners of the churches. The schools were established with the liberal contribution from all people and not only from Latin Christians. Even for administration of the schools, liberal contributions are freely solicited and received from all sources. Ext. R2-F is produced to prove that contribution was solicited "from all members of staff of Schools, apart from collections from public". He maintains that the right, if any, under Art.30(1) of the Constitution of India belongs only to the community and not to any individual member thereof priest or otherwise to the exclusion of all others. He maintains that some of the controlling officers had been refusing the right of the management to make indiscriminate choice of teachers for appointment of Headmasters. The claim of the 2nd respondent under R.44 Chapter XIV A of the Kerala Education Rules for appointment as Headmaster of St. Mary's Immaculate L. P. School, Ezhupunna was upheld by the A.E.O., Thuravoor; but the D.E.O. Alleppey overruled the A.E.O. The petitioner filed Ext. R2-B revision petition before the Government against Ext. P6 order of the D.E.O, Alleppey. He has produced Ext. R2-A letter dated 7-4-1986, which he sent to the A.E.O., Mattancherry claiming preference to his junior-his rank is 116 and those of the three juniors appointed as Headmasters are 146, 223 and 278 in the common seniority list. The last of them is the petitioner in O. P. No. 2712 of 1988. The A.E.O. issued Ext. He has produced Ext. R2-A letter dated 7-4-1986, which he sent to the A.E.O., Mattancherry claiming preference to his junior-his rank is 116 and those of the three juniors appointed as Headmasters are 146, 223 and 278 in the common seniority list. The last of them is the petitioner in O. P. No. 2712 of 1988. The A.E.O. issued Ext. R2-C communication dated 8-10-1986 rejecting his claim for the reason that the Manager has power to appoint any teacher under Art.30 (1) of the Constitution of India. The 2nd respondent has also asserted that in the so called test, only questions of a general character were asked and therefore no attempt could have been made to chose the personnel with specific reference to the religious and cultural needs of the minority institution. He challenges the maintainability of the original petition for two reasons, namely, (1) that the petitioner had not attempted to prove before the educational authorities with positive evidence that the institutions are entitled to the right under Art.30 (1) of the Constitution of India and (2) the petitioner has not filed any petition under R.92 Chapter XIV-A of the Kerala Educational Rules before approaching this Court. 12. Petitioner in O. P. No. 665 of 1988 submits, in addition to the general submissions about the establishment and administration of the school, that the 3rd respondent is not entitled to claim appointment as Headmaster because there are 7 other senior High School Assistants under the corporate educational agency, and therefore, neither the Deputy Director nor the Government should have allowed his appeal. 13. The 3rd respondent raises a preliminary objection against the maintainability of O.P. No. 665 of 1988. Counsel submits, that the petitioner is only a power-of-attorney holder of the corporate educational agency. The Corporate Manager has to act himself, or may appoint a correspondent to act in matters coming within the purview of the Kerala Education Act and the Rules. Petitioner has cot been appointed as a correspondent. He is not entitled, as power of attorney bolder, to challenge the impugned orders. 14. The Corporate Manager has to act himself, or may appoint a correspondent to act in matters coming within the purview of the Kerala Education Act and the Rules. Petitioner has cot been appointed as a correspondent. He is not entitled, as power of attorney bolder, to challenge the impugned orders. 14. Yet another objection is that the claim of the petitioner for protection under Art.30(1) of the Constitution of India depends upon various factual aspects relating to the establishment and administration of the schools by a minority community, and such a factual investigation cannot be undertaken by this Court in proceedings under Art.226 of the Constitution of India. It is also submitted that the petitioner not having availed of the opportunity to prove his case by production of positive evidence before the statutory authorities, is not entitled to invoke the jurisdiction of this Court in these proceedings to interfere with the orders passed by the statutory authorities. I will revert to these points at a later stage, since I am of the opinion that even on merits, the petitioners are not entitled to succeed. 15. The extent of the right under Art.30(1) of the Constitution of India in the matter of administration of educational institutions was considered by a number of decisions. In re the Kerala Education Bill, 1957, AIR. 1958 SC. 956, the Supreme Court held: "The right to administer cannot obviously include the right to maladminister. 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 a 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". 16. In Rev. Sidharajbhai Sabbat v. State of Gujarat, AIR. 1963 SC. 540. the Court again emphasised: "Regulation made in the true interests of efficiency of instruction, discipline health, sanitation, morality, public order and the like may undoubtedly be imposed. 16. In Rev. Sidharajbhai Sabbat v. State of Gujarat, AIR. 1963 SC. 540. the Court again emphasised: "Regulation 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". 17. In State of Kerala v. Very Rev. Mother Provincial, (1970)2 SCC 417:1970 KLT 630. the Supreme Court dealt with this question once again. The Court held: "Therefore, if universities establish syllabi for examinations they must be followed. subject however to special subjects which the institutions may seek to teach, and to a certain extent the State may also regulate the conditions of employment of teachers and the health and hygiene of students. Such regulations do not bear directly upon management as such although they may indirectly affect it. Yet the right of the State to regulate education, educational standard and allied matters cannot be denied. 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". 18. In St. Xaviers College Society v. State of Gujarat, (1974)1 SCC 717. Ray C. J., observed: "In the right of administration, checks and balances in the shape of regulatory measures are required to ensure the appointment of good teachers and their conditions of service. The right to administer is to be tempered with regulatory measures to facilitate smooth administration". and "In the field of administration it is not reasonable to claim that minority institutions will have complete autonomy. Checks on the administration may be necessary in order to ensure that the administration is efficient and sound and will serve the academic needs of the institution. The right of a minority to administer its educational institution involves, as part of it, a correlative duty of good administration". 19. Mathew J., in his concurring opinion stated, that "Measures which are directed at other forms of activities but which have a secondary or indict or incidental effect upon the right do not generally abridge a right unless the content of the right is regulated. 19. Mathew J., in his concurring opinion stated, that "Measures which are directed at other forms of activities but which have a secondary or indict or incidental effect upon the right do not generally abridge a right unless the content of the right is regulated. As we have already said, such measures would include various types of taxes, economic regulations, laws regulating the wages, measures to promote health and to preserve hygiene and other laws of general application". and The question to be asked and answered is whether the particular measure is regulatory or whether it crosses the zone of permissible regulation and enters the forbidden territory of restrictions or abridgement. 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 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 abridgement. 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". 20.In Lily Kurian v. Sr. Lewina, (1979) 2 SCC 124:1978 KLT. 723 the Supreme Court again emphasised, that "Article 30 (1) is not a charter for maladministration; regulation, so that the right to administer may be better exercised for the benefit of the institution, is permissible; but the moment one goes beyond that and imposes, what is in truth, not a mere regulation but an impairment of the right to administer, the article comes into play and the interference cannot be justified by pleading the interests of the general public; the interests justifying interference can only be the interests of the minority concerned". 21. I do not propose to multiply authorities on this aspect. In the light of these precedents emanating from the Supreme Court, it can no longer be held, that the minority has an absolute and unregulated right in the matter of establishment and administration of educational institutions. 21. I do not propose to multiply authorities on this aspect. In the light of these precedents emanating from the Supreme Court, it can no longer be held, that the minority has an absolute and unregulated right in the matter of establishment and administration of educational institutions. Nor can the minority managements insist that there shall be no regulations relating to the service conditions including the right for promotion of teachers in the schools. As a matter of fact, that regulatory measure does not impinge upon the right of the minority under Art.30(1). It only ensures that contented teaching staff will co-operate whole heartedly with the management in the discharge of their obligations in the field of education. I am, therefore, not persuaded to hold, that the minority managements have got an absolute right in the matter of administration of educational institutions of their choice. 22. These decisions have improved upon the view held by this Court in Rt. Rev. A. M. Patron v. Kesavan (1964 KLT 791) and State of Kerala v. Corporate Management (1970 KLT 232). A Full Bench held in the former that "imposition of any trammel thereon (right to choose headmaster)-except to the extent of prescribing qualifications and experience cannot but be considered as a violation or the right guaranteed under Art.30 (1) of the Constitution of India". A Division Bench in the latter decision held that: ....In so far as the Government order makes general prescriptions and imposes them without any restriction on the management of the minority schools it seriously infringes the freedom of choice of teachers essential for effectuating the purpose of Art.30(1) of the Constitution". These two were extreme cases. In the Full Bench case, a School conducted by the society of Jesus had always appointed priests of the Order as Headmasters. The claim of a senior teacher belonging to another religious persuasion was the point at issue there. The court held that, in the particular facts of that case, insistence upon appointment of the senior teachers amounted to denial of the right by the community to administer the school. The court also observed with reference to R.44 Chapter XIV-A of the Kerala Educational Rules as follows.: "17. The word 'ordinarily' in R.44 gives a certain amount of elasticity to that rule. The court also observed with reference to R.44 Chapter XIV-A of the Kerala Educational Rules as follows.: "17. 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 institutions like the one before us. And in view of that we do not think it necessary to strike down the rule; it should suffice if we point out, as we have done, the ambit of the right guaranteed under "Article 30(1) of the Constitution, and leave it to the Government to clarify the position by an appropriate amendment of instructions in that behalf", (1964 KLT 791) In the second decision, the Division Bench had to deal with a Government order which prescribed that only qualified teachers should be appointed. The argument was that the choice of a teacher for employment in a minority school is not to be guided by qualifications prescribed for the generality of Schools, but must also be tested by suitability for employment in the minority schools concerned consistently with Art.30 of the Constitution. The Division Bench refused to follow the advisory opinion of the Supreme Court in Re Kerala Education Bill, 1957 (supra) that regulation could be imposed in the larger interests of excellence in educational standards. The subsequent decisions of the Supreme Court in State v. Rev. Mother Provincial, St. Xavier's College Society and Lilly Kurian have made it absolutely clear, that the regulations prescribing qualifications and service conditions of teachers in aided educational institutions do not impair or abridge the fundamental right under Art.30 (1) of the Constitution of India. I do not understand Siddaraj Bai, Rev. Bishop Patron or Rev. Mother Provincial (supra) as laying down any proposition to the effect that the right of the minority under Art.30 (1) of the Constitution of India is absolute and beyond the pale of any regulatory provisions. 23. The same controversy arose for consideration before me in Joseph v. State of Kerala (1985 KLT. 946). Bishop Patron or Rev. Mother Provincial (supra) as laying down any proposition to the effect that the right of the minority under Art.30 (1) of the Constitution of India is absolute and beyond the pale of any regulatory provisions. 23. The same controversy arose for consideration before me in Joseph v. State of Kerala (1985 KLT. 946). On a comprehensive consideration of the decisions that far of this court and the Supreme Court, I made the following formulation in Para.51 of that judgment: "It therefore follows that the managements of educational institutions established and administered by minority communities are bound, "ordinarily" to promote the seniormost teachers as Headmasters of the schools; and there is no unrestricted right or choice for the minority management in the matter or 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 the R.44 Chapter XIV-A of the K. E. Rules itself as was held in the Patron's case". It is now for me to consider whether any subsequent binding decision of this Court or the Supreme Court has improved upon or altered the position of precedents prevailing at that time. 24. Two recent pronouncements of a Division Bench of this Court in O. P. No. 8739 of 1982 and W. A. 650 of 1987 also takes the same view on provisions regulating the right of the minority community in the matter of service conditions of teachers. On a comprehensive survey of the decisions of this Court and the Supreme Court, the Division Bench observed in Para.25 of the judgment in O.P. No. 8739 of 1982: "Regulations can thus prescribe the manner and method of recruitment of teachers. If the regulations insist that appointment of teachers by direct recruitment should be on merit and a selection to choose the best to the post is obligatory, those provisions are advisedly inserted intending to enrich and enhance the quality of education imparted in these institutions. It is difficult to accede to the contention that regulations cannot prescribe reasonable norms of selection of teachers to a minority institution. It is difficult to accede to the contention that regulations cannot prescribe reasonable norms of selection of teachers to a minority institution. When insistence on a selection process is a permissible and reasonable regulation, which does not encroach on the fundamental right under Art.30 (1). the post of Principal cannot also bo excluded from the purview of selection A provision for selection for the appointment of a Principal of a College is thus constitutionally permissible and is a relevant reasonable measure of regulation applicable to minority institutions also". 25. In W. A No. 650 of 1987, the same Bench held: "The law is settled that the right of the minorities to establish and administer educational institutions of their choice guaranteed under Art.30 (1), is not an absolute right, but is subject to reasonable regulations which subserve the purpose of recognition and affiliation and preserve "the excellence of the institution as a vehicle for general education " Regulations prescribing the curriculum of studies and syllabi for examinations, the conditions of employment of teachers and the hygiene of students, and principles and methods relating to admission of students and academic needs of the institution, are not restrictions within the "prohibited zone" of Art.30 (1)". 26. These decisions unmistakably indicate, that the right of the minorities even in the matter of choice of personnel to the educational institutions is not an absolute right. 27. Two decisions of my learned brothers, Sreedharan, J. and Thomas J., were brought to my notice-the former in O.P. No. 9254 of 1986 and the latter in O.P. No. 8945 of 1985. The learned judges proceeded on the assumption that the right of minority managements are absolute. Reliance for this proposition was placed on the decision of a Full Bench of this Court in Rt. Rev. Aldo Maria Patron v. E. C. Kesavan (1964 KLT 791). I am afraid that the position of law obtaining at present, on the basis of the decisions of the Supreme Court and this Court is, that the right of the management, even in the matter of choice of a Principal of a College, is not an absolute right. I am therefore not persuaded to follow the decisions of my learned brothers Sreedharan, J. and Thomas, J. 28. In Frank Anthony Public School Employees' Assn. I am therefore not persuaded to follow the decisions of my learned brothers Sreedharan, J. and Thomas, J. 28. In Frank Anthony Public School Employees' Assn. v. Union of India (1986 (4) SCC 707), the Supreme Court considered the specific question of the impact of the regulatory provisions containing service conditions of teachers of minority institutions on the right under Art.30(1) of the Constitution of India. The Court observed: "The excellence of the instruction provided by an institution would depend directly on the excellence of the teaching staff, and in turn, that would depend on the quality and the contentment of the teachers. Conditions of service pertaining to minimum qualifications of teachers, their salaries, allowances and other conditions of service which ensure security, contentment and decent living standards to teachers and which will consequently enable them to render better service to the institution and the pupils cannot surely be said to be violative of the fundamental right guaranteed by Art.30 (1) of the Constitution. The management of a minority Educational Institution cannot be permitted under the guise of the fundamental right guaranteed by Art.30(1) of the Constitution, to oppress or exploit its employees any more than any other private employee. Oppression or exploitation of the teaching staff of an educational institution is bound to lead, inevitably, to discontent and deterioration of the standard of instruction imparted in the institution effecting adversely the object to making the institution an effective vehicle of education for the minority community or other persons who resort to it. The management of minority institution cannot complain of invasion of the fundamental right to administer the institution when it denies the members of its staff the opportunity to achieve the very object of Art.30 (1) which is to make the institution an effective vehicle of education". 29. In Y. Theclamma v. Union of India (1987 (2) SCC 516), the Supreme Court asserted again, that "while the right of the minorities, religious or linguistic, to establish and administer educational institutions of their choice cannot be interfered with, restrictions by way of regulations for the purpose of ensuring educational standards and maintaining excellence thereof can validly be prescribed". 29. In Y. Theclamma v. Union of India (1987 (2) SCC 516), the Supreme Court asserted again, that "while the right of the minorities, religious or linguistic, to establish and administer educational institutions of their choice cannot be interfered with, restrictions by way of regulations for the purpose of ensuring educational standards and maintaining excellence thereof can validly be prescribed". The Court proceeded further to observe, that "It cannot be doubted that although disciplinary control over the teachers of a minority educational institution is with the management, regulations can be made for ensuring proper conditions of service for the teachers and also for ensuring a fair procedure in the matter of disciplinary action. As the court laid down in Prank Anthony Public School case, the provision contained in sub-section (4) of S.8 of the Act is designed to afford some measure of protection to the teachers of such institutions without interfering with the managements' right to take disciplinary action. Although the court in that case had no occasion to deal with the different ramifications arising out of sub-section (4) of S.8 of the Act. it struck a note of caution that in a case where the management charged the employee with gross misconduct, the Director is bound to accord his approval to the suspension. It would be seen that the endeavour of the court in all the cases has been to strike a balance between the constitutional obligation to protect what is secured to the minorities under Art.30(1) with (sic and) the social necessity to protect the members of the staff against arbitrariness and victimisation". 30. In All Bihar Christian Schools Association v. State of Bihar, 1988 (1) SCC 206, the Supreme Court came to the following conclusion, after a discussion of the decisions that far: "In view of these decisions, it is now well settled that minorities based on religion or language, have fundamental freedom to establish and manage educational institutions of their own choice, but the State has right to provide regulatory provisions for ensuring educational excellence, conditions of employment of teachers, ensuring health, hygiene and discipline and allied matters. Such regulatory provisions do not interfere with the minorities' fundamental right of administering their educational institutions; instead they seek to ensure that such institution is administered efficiently, and that students who come out of minority institutions after completion of their studies are well equipped with knowledge and training so as to stand at par in their avocation in life without any handicap If regulatory provisions indirectly impinge upon minorities' right of administration of their institution, it would not amount to interference with the fundamental freedom of the minorities as the regulatory provisions are in the interest of the minority institutions themselves". 31. The position of the binding precedents of the Supreme Court and this Court is that Regulations prescribing service conditions of teachers-wbich roust necessarily take in provision for their promotion as well-only promote and advance the cause of education. Excellence of educational standards and exemplary image of institutions may. largely, depend upon the teachers, who are reasonably well provided for, are contented and can look forward to reasonable prospects for advancement in service. Such regulations can only sub-serve the cause of education and cannot invade the right of the minority, unless it be that intolerance of any State regulation is part of an enforceable right. The decisions, which proceed on the assumption, that the right of the minority in the choice of the Headmaster of Schools or the Principals of Colleges is absolute, have now to be read down in the light of the later binding precedents. 32. This legal position emanating from decided cases is fully reflected in the orders which are impugned before me. Those orders proceed on the basis, that there is no absolute right in the minority managers in the matter of appointment of Headmasters. The right of choice of Headmaster is regulated by statutory provisions, which ensure satisfactory conditions of employment including prospects for promotion to the teaching staff. Such regulations also provide for extraordinary situations where any management may deviate from the ordinary Rule of seniority and appoint a junior teacher or even an outsider as Headmaster. The reason for such departure should be manifest. That is so because the management may not arbitrarily refuse to appoint qualified and suitable senior teachers. In these cases the managements did not make out any extraordinary circumstance disentitling the senior teachers to be appointed as Headmasters of Schools. The reason for such departure should be manifest. That is so because the management may not arbitrarily refuse to appoint qualified and suitable senior teachers. In these cases the managements did not make out any extraordinary circumstance disentitling the senior teachers to be appointed as Headmasters of Schools. It is well to remember that these senior teachers were initially appointed, after "an overall assessment of the outlook and philosophy for the set purpose of serving the religious culture of the minority community". If for the whole of their service tenure as teachers, they were acting in consonance with the tone and temper of the institutions and the religious, moral, philosophical and culture values of the community, it cannot be as if, at the time of promotion to the post of Headmasters, they should be found wanting, or that their appointment shall be an invasion of the right of the minorities. I should note here, that neither the managements nor the junior teachers who were appointed as Headmasters, have any case that the senior teachers whose rights were upheld by the authorities were, in any manner, lacking in teaching abilities or administrative capacity, or that they were deficient in their outlook and philosophy of life in the matter of serving the religious culture of the minority community. If they were good so far, they shall not be refused the ultimate prize which should crown their service career as dedicated teachers. 33. In Theclamma's case, 1987 (2) SCC. 516, the Supreme Court of India emphasised, that the endeavour of the Court in all the cases has been to strike a balance between the constitutional obligation to protect what is secured to the minorities under Art.30(1) with the social necessity to protect the members of the staff against arbitrariness and victimisation. I am of the opinion, that in the orders impugned in these proceedings, the State and the controlling officers have taken scrupulous care to maintain that balance between the apparently irreconcilable demands of the minority managements and the need to extend the hand of protection, assistance and succour to the teachers of the minority institutions. I do not feel that any case has been made out for interference with those orders. Neither law, nor justice. justifies the relief which the petitioner-managements seek in these Original Petitions.' 34. I do not feel that any case has been made out for interference with those orders. Neither law, nor justice. justifies the relief which the petitioner-managements seek in these Original Petitions.' 34. I should make it clear, as I did in Joseph v. State of Kerala, 198S KLT 946, that I am not deciding the preliminary questions raised by the respondents. I therefore leave open the question whether the power-of-attorney bolder of a corporate educational agency can institute proceedings under Art.226 of the Constitution of India, claiming himself to be the manager of the schools under the corporate educational agency. Nor am I deciding the question whether the materials which the petitioners managements have produced before me are sufficient to justify their claim that the institutions concerned are establishments administered by a minority and therefore entitled to the protection of Art.30 (1) of the Constitution of India. Bhat, J. in disposing of C.M.P. No. 6517 of 1987 held that prima facie, materials are lacking to uphold the claim of the managements. I need only state that materials produced by parties thereafter have only complicated matters further taking this factual controversy out of the scope of easy resolution on the basis of affidavit evidence. Two contentions urged on behalf of the respondent are relevant in this context, viz., that it is not for the managements to resort to proceedings under Art.226 of the Constitution of India to prove that the institutions are established and administered by minority communities; and that even assuming that it be permissible, the materials produced before this Court are not of sufficient veracity or even adequate to establish the claim made by them. I do not think that it is necessary for me to decide these questions finally in these proceedings. I have proceeded on the assumption, that the institutions may, perhaps, be entitled for the protection of Art.30(1) of the Constitution of India. It was on the basis of that assumption, that I examined the question whether the regulations regarding the service conditions of teachers do have the effect of annihilating the right guaranteed under Art.30(1) of the Constitution. In the result, the Original Petitions fail and are hereby dismissed. The parties will suffer their respective costs. Issue photo copies of this judgment to counsel on all sides on usual terms.