Rev. K. C. Seth v. State of Kerala — 1991 DIGILAW 355 (KER)

Judgment :- Both the Original Petitions are connected. O.P.No.7020 of 1989 was filed earlier in time. That Original Petition is by the Management of the Corporate Educational Agency, viz, North Kerala C.S. I. Educational Agency, praying to quash Ext.P3 circular of the Government and also to declare that the educational institutions mentioned in Ext.P1 are minority schools defined under S.2(5) of the Kerala Education Act. By Ext.P3 circular. The Government directed all controlling officers under the Kerala Education Rules to see that appointment of Headmasters of aided schools are made only in accordance with the provision in Rule 44 Chapter XIV-A of the said Rules. Rule 44 is extracted hereunder. "44.(1) The appointment of Headmasters shall ordinarily be according to seniority from the seniority list prepared and maintained under clauses (a) and (b) as the case may be of Rule 34. The Manager will appoint the Headmaster subject to the Rules laid down in the matter. A teacher if he is aggrieved by such appointment will have the right of appeal to the Department. Note.- Whenever the Manager intends to appoint a person as Headmaster other than [he senior claimant, the Manager shall obtain a written consent from such senior claimant, renouncing his claim permanently. Such consent shall have the approval of the Educational Officer concerned. (2) An appeal under sub-rule (1) shall lie to the Educational Officer. (3) A Second appeal shall lie to the District Educational Officer against the order of the Assistant Educational Officer passed on appeal preferred under sub-rule (2). In the case of an order passed by the District Educational Officer under sub-rule (2), the second appeal shall lie to the Deputy Director (Education). (4) No appeal or second appeal preferred under these rules shall be entertained unless I is preferred within one month of the date of receipt of the order appealed against." The rule, says that ordinarily, Headmasters shall be appointed only according to seniority from the seniority list prepared and maintained under Rule 34. It also provides safeguards for the senior teachers in that it requires a written consent from the senior claimant when such claimants renounces their claims permenltly and such renouncement has to be approved by the Educational Officer concerned. It also provides safeguards for the senior teachers in that it requires a written consent from the senior claimant when such claimants renounces their claims permenltly and such renouncement has to be approved by the Educational Officer concerned. The Government noticed that the Managers in certain schools are appointing junior teachers as Headmasters disregarding Rule 44 on the ground that the schools are established and run by religious minority. The Government noted that the schools, whether the are in private or public sector, are secular institutions for giving secular form of education and they are not meant for preserving the philosophy, culture and traditions of any religious or linguistic group. The expenses for running the aided schools are fully met from the consolidated fund of the State, and therefore, the Government proceeded on the basis that it is not correct to claim a minority right under Article 30(1) of the Constitution of India by any religious or linguistic group and seek immunity from the provisions of Rule 44 chapter XIV-Aof the Kerala Education Rules. The Government, after considering the issue in detail, decided to issue circular to all the controlling officers to see that appointments of Headmasters of aided schools are made strictly according to seniority. This circular has been the subject matter of litigation before this Court and a Division Bench of this Court in the decision reported in Manager, Corporate E. Agency v. State of Kerala (1990 (2) KLT 240) held that minority institutions are not deprived of their fundamental right under Article 30 (1) of the Constitution of India only because it receives aid from the State, nor for the reason that secular education is imparted in the institution and not theological or religious instruction. The right of appointment of Headmaster of a school was held to be of prime importance in the administration of the institution. The right of the minority to administer educational institutions of their choice requires the presence of a person in whom the minority institution may possess confidence. Ultimately, the Division Bench quashed the circular which is the same as Ext. P3 herein in the following terms. "38. The original petitions are therefore, allowed in the manner indicated below. The right of the minority to administer educational institutions of their choice requires the presence of a person in whom the minority institution may possess confidence. Ultimately, the Division Bench quashed the circular which is the same as Ext. P3 herein in the following terms. "38. The original petitions are therefore, allowed in the manner indicated below. The circular dated April 17,1989 issued by the Government and marked as Ext.P3 in O.P. Nos.4213 and 5477 of 1989 is declared invalid to the extent it declares that institutions imparting secular form of education or aided by the State are not entitled to claim minority right under Article 30(1) of the Constitution and in so far as it directs insistence on compliance with Rule 44 Chapter XIV (A) of the Kerala Education Rules by managements of minority educational institutions". The Division Bench made it clear that the circular will not apply to schools established and administered by minority community. In order to get the benefit conferred under Article 30 (1) of the Constitution of India, the institution should not only be established by a minority community, but it should also be administered by the minority. Both the requirements must be satisfied before the benefits under Art.30(1) can be claimed. Therefore, Ext.P3, in so far as it applies to institutions established and administered by minority was declared as unconstitutional by this Court. In view of this, the petitioner did not advance any further argument on the invalidity of the circular as the matter is concerned by the aforesaid decision of the Division Bench, to the extent indicated above. 2. The other prayer in O.P.7020 of 1989 is for a declaration that the educational institutions mentioned in Ext. P1 are minority schools as defined under S.2(5) of the Kerala Education Act. S.2(5) of the Kerala Education Act defines minority school as not only established and administered, but also schools administered by the minority. S.2(5) is as follows. "2 (5) "minority school" means schools of their choice established and administered, or administered, by such minorities as have the right to do so under clause (1) of Article 30 of the Constitution". The definition of minority school in the Act is wider than what is contemplated in Article 30(1) of the Constitution. Article 30 (1) confers on all minorities, whether based on religion or language, the right to establish and administer educational institutions of their choice. The definition of minority school in the Act is wider than what is contemplated in Article 30(1) of the Constitution. Article 30 (1) confers on all minorities, whether based on religion or language, the right to establish and administer educational institutions of their choice. The words' established and administered' will have to be read conjunctively. This is made clear in the decision of the Supreme Court reported in Azeez Basha v. Union of India (AIR 1968 S.C. 662) in which the Supreme Court observed. "the Article in our opinion clearly shows that the minority will have the right to administer educational institutions of their choice provided they have established them, but not otherwise. The Article cannot be read to mean that even if the educational institution has been established by somebody else, any religious minority would have the right to administer it because, for some reason or other, it might have been administering it before the Constitution came into force. The words "establish and administer" in the Article must be read conjunctively and so read it gives the right to the minority to administer an educational institution provided it has been established by it". To the same effect is the decisions reported in State of Kerala v. Mother Provincial (AIR 1970 SC 2079) and S.P. Mittal v. Union of India (AIR 1983 SC.1). In the latter decision the Supreme Court held that. "In order to claim the benefit of Art.30(1) the community must show. (a) that it is a religious or linguistic minority, (b) that the institution was established by it. Without satisfying these two conditions it cannot claim the guaranteed rights to administer it". But the definition in S.2(5) of the Kerala Education Act provides that the schools administered by a minority also can claim the benefit of Article 30(1) Of the Constitution. An almost similar clause came up for consideration before a Division Bench of the Madras High Court in the decision reported in Association of University Teachers v. State of Tamil Nadu, 1991 II LLJ 31 where the definition was as under. "'minority college' means a private college of its choice established and administered, pr administered, by any such minority whether based on religion or language as has the right to do so under Clause (!) of Art.30 of the Constitution". "'minority college' means a private college of its choice established and administered, pr administered, by any such minority whether based on religion or language as has the right to do so under Clause (!) of Art.30 of the Constitution". Considering the validity of such definition in the background of Article 30(1) of the Constitution, the Madras High Court observed. "The first ground of attack of Mr. K. Chandru, learned counsel who made leading arguments on behalf of those challenging the impugned provisions is as follows.- The provision of S.2(1) of the Act which has the effect of extending the definition as well as the scope of rights of minority found under Article 30(1) of the Constitution of India is ultra vires of Art.30(1) of the Constitution of India and consequently liable to be struck down. It is the submission of the learned counsel that S.2(7) of the Act, unlike Article 30(1) of the Constitution of India which protects the rights of minorities to establish and administer the educational institution established by them, goes to the extent of enabling even the institutions not established but only being administered by such minority to be entitled to the protection of Article 30(1) of the Constitution of India. Learned counsel appearing for the institutions are not in a position to effectively meet this vital attack. This, we find, is directly opposed to the ratio of the Supreme Court decision reported inl4sslz Basha v. Union of India (AIR) 1968 SC 662 wherein the Supreme Court categorically held that the words "establish and administer" in the Article must be read conjunctively and so read it gives the right to the minority to administer an educational institution provided it has been established by it. Consequently the words "or administered" in S.2(7) of the Act have to be struck down as being ultra vires of Article 30(1) of the Constitution of India. We find that a learned single judge of this Court in a decision reported in Thirugnanasambadam Primary School v. State of T.N. Education Department (1984 Writ L.R.146 (Suppl)) had an occasion to consider the very issue in respect of an identical provision contained in S.2(6) of the Schools Act and struck down that part of the offending portion of the said provision". In the concurring judgment the Chief Justice observed as follows. "40. In so far as the provisions of S.2(7) are concerned,! In the concurring judgment the Chief Justice observed as follows. "40. In so far as the provisions of S.2(7) are concerned,! entirely agree with brother Raju, J. that in view of the law laid down by this Court in Thirugnanasambadam Primary School v. State of Tamil Nadu (supra) and Azeez v. Union of India (Supra) the words 'establish and administer' in Article 30(1) have to be read conjunctively and when so read, it gives the right to the minority to administer an educational institution provided it has been established by it. In case the institution has not been established by it, the question of extending the benefit of Article 30(1) of the Constitution to the institution which is only being administered by the authority, is not contemplated. Consequently, the words' or administered 'in S.2(7) of the Act are ultra vires Articles 30(1) of the Constitution and consequently, we strike down those words." The words "or administered" in S.2(5) of the Kerala Education Act will have to be held, in view of the above decisions, as ultra vires Article 30 (1) of the Constitution of India and, therefore, I read down the definition in consonance with Article 30(1) of the Constitution. In A.K. Jain v. Union of India, AIR 1070 SC ?64, the Supreme Court observed. "When the power of legislature with limited authority is exercised in respect of a subject-matter, but words of wide and general import arc used, it may reasonably be presumed that the legislature was using the words in regard to that activity in respect of which it is competent to legislate and to no other; and that the legislature did not intend to transgress the limits imposed by the Constitution. See In re Hindu Women's Rights to Properly Act, 1937,1941 FCR 12= (AIR 1941 FC 72)." Further in All Saints High School v. Government of AP (1980) 2 SCC 478, the Supreme Court observed that. "It is a well settled rule that in interpreting the provisions of a statute the court will presume that the legislation was intended to be intra vires and also reasonable. xx xx xx xx xx xx xx xx This Court has in several cases adopted the principle of reading down the provisions of the statute. "It is a well settled rule that in interpreting the provisions of a statute the court will presume that the legislation was intended to be intra vires and also reasonable. xx xx xx xx xx xx xx xx This Court has in several cases adopted the principle of reading down the provisions of the statute. The reading down of a provision of a statute puts into operation the principle that so far as it is reasonably possible to do so, the legislation should be construed as being within its power. It has the principle effect that where an Act is expressed in language of a generality which makes it capable, if read literally, of applying to matters beyond the relevant legislative power, the court will construe it in a more limited sense so as to keep it within power". Article 30 of the Constitution confers right on minorities to establish and administer educational institutions as under. "30. Right of minorities to establish and administer educational institutions (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. (1A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause. (2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language". Minorities may be based on religion or language but the rights is to establish and then to administer. The right is not available to institution not established by the minority but administered by the minority. Article 30(IA) also emphasises this requirement. Hence, if Article 30 of the Constitution is the ground norm and if that is to be given effect to the words "or administered" in S.2(5) of the Kerala Education Act will have to be ignored. The right is not available to institution not established by the minority but administered by the minority. Article 30(IA) also emphasises this requirement. Hence, if Article 30 of the Constitution is the ground norm and if that is to be given effect to the words "or administered" in S.2(5) of the Kerala Education Act will have to be ignored. In a writ petition filed by the management of the minority school in which there will not be any prayer to declare S.2(5) of the Kerala Education Act unconstitutional to the extent it declares institutions administered by the minority also as minority institution, I would not be justified in striking down the section. Therefore, I am of the opinion that S.2(5) of the Kerala Education Act has to be read down in conformity with the requirements of Article 30 of the Constitution and, so read, the words "or administered" occurring in the sub section will have to be ignored. Hence, the 2nd prayer to declare that the educational institutions mentioned in Ext.P1 are minority schools cannot be granted in this writ petition. Such a declaration can be given only if the institution is found to be established by a religious or linguistic minority and administered by them. With these observations, I feel, O.P. 7020 of 1989 can be closed. 3.O.P. 9158 of 1989 is filed by a teacher to quash Ext.P1 order appointing the Jih respondent as Headmaster. Ext.P1 clearly states that the educational institution in question is administered by the North Kerala Educational Agency and is a minority Institution. There is no whisper in the order that the institutions are established by a minority. The case of the petitioners is that he was appointed as a teacher in 1965 and that he has continuous service under the 2nd and 3rd respondents as a teacher with effect from 20-9-1967. His case is that overlooking his seniority, the 4th respondent, who was initially appointed asa teacher on 27-8-1968, has been promoted as Headmaster with effect from 1-4-1989 in the vacancy resulting from the retirement of one Mary Elizabeth on 31-3-1989. The promotion is in violation of Rule 44 Chapter XIV (A) of the Kerala Education Rules. The only justification claimed for the same is that the school in question is a minority institution in the sense that it is administered by a minority. The promotion is in violation of Rule 44 Chapter XIV (A) of the Kerala Education Rules. The only justification claimed for the same is that the school in question is a minority institution in the sense that it is administered by a minority. If S.2(5) of the Kerala Education Act in its entirety is applicable, the contention of the management is correct. But as stated earlier, I have to read S.2(5) in conformity with Article 30(1) of the Constitution of India and in the light of the decisions of the Supreme Court as well as the Division Bench ruling of this Court. If so read, to claim the benefit of Article 30(1) of the Constitution read with S.2(5) of the Kerala Education Act, the respondents have to establish that the school is not only administered by the minority, but also was established by the minority. If Rule 44 Chapter XIV-A of the Rules applies without the aid of S.2(5) of the Act, there is no dispute that the petitioner being senior he is entitled to be appointed as Headmaster in preference to the 4th respondent. Petitioner states that respondents 2 and 3 are not entitled to claim the benefit of S.2(5) of the Act de hors Article 30(1) of the Constitution. The school was not established by the religious minority. In paragraph 5 of the Original Petition it is stated as follows. "The educational institutions under the management of the 2nd respondent are all educational institutions established by the Evangelical Missionery Society of Basel in Germany. The management of the educational institutions at present resides in the North Kerala Diocese of the Church of South India of which the third respondent is the Bishop and the Chairman of the educational agency". It is further stated in paragraph 6 as under. "6. The claim put forward by the second respondent in Ext.P1 that the educational institutions administered by the North Kerala Educational Agency are minority institutions and that the CSI Christians of North Kerala Diocese form a minority community and that therefore all the schools under the 2nd respondent are minority institutions enjoying fundamental rights guaranteed under Article 30(1) of the Constitution of India is totally unsustainable in law. The petitioner takes leave to submit that Article 30(1) of the Constitution of India cannot relate to cases where the educational institutions were established by persons or agencies other than the minority community". In the counter affidavit of respondents 2 and 3, this averment is denied as under. "6. The North Kerala Diocese of Church of South India has a laudable share in the field of education in the State. The C.S.I. Educational Agency has 52 schools under its administration. The Christians, whom the Diocese represents, forma minority community in the State of Kerala. The third respondent is the Chairman of the North Kerala Diocese C.S.I Educational Agency. The question as to whether Christians form a minority community in Kerala has been concluded by the decision of the Hon'ble Supreme Court in In re Kerala Education Bill (AIR 1958 SC 956). There * arc 41 schools under the management of the second respondent. - 7. As stated earlier, the C.SJ. Christian of North Kerala Diocese form a minority community. Hence the educational institutions administered by North Kerala Educational Agency arc minority institutions. XX XX XX XX XX XX XX XX 13. The schools under the management of respondents 2 and 3 were recognised as minority schools as defined under S.2(5) of the Kerala Education Act by the Government themselves. I am herewith producing the order of the Government dated 27-2-1980 holding that the 15.E.M. School, Kasaragod under the management of the second respondent is entitled to be treated as minority institution for the purpose of Article 30(1) of the Constitution which may be marked as Ext.R2(a)". The answer of respondents 2 and 3 is that administration by the religious minority is sufficient to claim the benefit under Article 30(1) of the Constitution. In the reply affidavit filed by the petitioners in O.P. 7020 of 1989, a claim has been made that even if the institution is owned by another community, if it is transferred to a minority community, it can be considered as established by the transferee community. 4. The word "established" has been interpreted in the context of Article 30 (1) of the Constitution by the Supreme Court in the decision in Azeez Basha's case (Supra) as under. ' 25. What does the word "established" in Article 30(1) mean? 4. The word "established" has been interpreted in the context of Article 30 (1) of the Constitution by the Supreme Court in the decision in Azeez Basha's case (Supra) as under. ' 25. What does the word "established" in Article 30(1) mean? XX XX XX .XX XX XX XX XX We are of opinion that for the purpose of Article 30(1) the word means "to bring into existence", and so the right given by Article 30(1) to the minority is to bring into existence an educational institution, and if they do so, to administer it. We have therefore to see what happened in 1920 and who brought the Aligarh University into existence". To the same effect is the decision reported in State of Kerala v. Mother Provincial, 1970 KLT 630 = AIR 1970 S.C. 2079 and S.P. Mittal v. Union of India (AIR 1983 SC 1). In the decision reported in 1970 KLT 630 the Supreme Court observed that in the context of the rights under Article 30 the word establishment means bringing into being an institution. 5. Counsel for the respondents referred to a decision of this Court in Rev. Dr. Aldo Maria Patron v. Assistant Educational Officer, 1974 KLT 78. In that case, the question considered was entirely different. The school was founded by Catholic Diocese of Mangalore and, subsequently the school came into the hands of Catholic Diocese of Calicut, when the Catholic Diocese of Mangalore was bifurcated into Catholic Diocese of Mangalore and Catholic Diocese of Calicut. The question was whether the school, after the bifurcation, can be considered as one established by the Catholic community. It is in that context it was held that the school can be treated as established by the Diocese of Calicut. Counsel for the respondents laid emphasis on a passage from that judgment in paragraph 6 reading as under. "Even if a school previously run by some other organisation is taken over or transferred to the Church and the Church reorganizes and manages the school to cater to and in conformity with the ideals of Roman Catholics, it can be safely concluded that the school has been established by the Roman Catholics. As stated by me earlier, the various exhibits produced in this case clearly justify a conclusion that the school is established and administered by the Roman Catholic Community represented by the Bishop of Calicut now". As stated by me earlier, the various exhibits produced in this case clearly justify a conclusion that the school is established and administered by the Roman Catholic Community represented by the Bishop of Calicut now". This observation has to be read in the context of the earlier narration of facts contained in paragraph 4 of the judgment as under. "In the original petition the petitioners stated that the school was established and is administered by the Catholic Diocese of Calicut of which the 1st petitioner is the Bishop. It is further stated that the school was established by the Bishop of Calicut for the purpose of giving Catholic education to Catholic students although students of other communities are also admitted to the school. The Catholic Diocese of Calicut was formed in 1923 only. This is also not in dispute. From this the respondents took up the stand in their counter-affidavits that the claim of the petitioners that, the school was established by the Catholic Diocese of Calicut is unsustainable. Until 1923 this area where the school is situate was part of the Catholic Diocese of Mangalore. The petitioners' answer in the reply affidavit is that the church and the school established by the Catholic Diocese of Mangalore were passed on to the Catholic Diocese of Calicut when the Mangalore Diocese was bifurcated in ] 923 into the Catholic Diocese of Mangalore and Catholic Diocese of Calicut, and that their statements in the Original affidavit that the school was established and is administered by the Catholic Diocese of Calicut was intended only to mean that the school belongs to the Roman Catholics now forming the Catholic Diocese of Calicut. In the reply affidavit full particulars of the original Catholic Diocese of Mangalore, its bifurcation in 1923 and the functioning of the Catholic Diocese of Calicut separately from that of Mangalore are all stated clearly. Though the respondents have filed supplementary counter-affidavits after this reply affidavit was filed, this fact is not disputed. So the petitioners explanation in this regard can be accepted". 6. Petitioner referred to another decision of this Court, Ext.P2, rendered in O.P. 5038 of 1983. That was also an institution originally established by Evangelical Missionery in Basel, Germany, and subsequently transferred to the 2nd and 3rd respondents. So the petitioners explanation in this regard can be accepted". 6. Petitioner referred to another decision of this Court, Ext.P2, rendered in O.P. 5038 of 1983. That was also an institution originally established by Evangelical Missionery in Basel, Germany, and subsequently transferred to the 2nd and 3rd respondents. How the 2nd and 3rd respondents came into possession of the school and happened to administer the school is described in paragraphs 2 and 3 of the counter affidavit of the 3rd respondent in O.P.7020of 1989 who is a senior most teacher in the school administered by respondents 2 and 3, Impleaded in a representative capacity as follows. "The base Evangelical Mission Society in Basel in Germany is a Christian Mission. They carried on Mission Activities in Malabar and South Kanara and other places. In the course of time they came to own properties which were classified as Mission properties and church properties. They also established several Educational Institutions in Malabar and South Kanara such as B.E.M.L.P. Schools, B.E.M.U.P, Schools, E.E.M. High Schools, Malabar Christian College High School. Such properties as were owned by the Educational Institutions came within the classification of Mission properties. During the first World War, the Mission properties were taken over by the Custodian of Every property. After the war the Custodian handed over the same to Mission Trust of South India on 26-1-1920. It was mandatory that a long term transfer could be entered into only with the consent of the Governor General. This consent was also obtained. In 1931 all the institutions were transferred back to the Basel Evangelical Mission. In 1939 the Home Board of the Basel Mission declared a Trust in respect of the properties owned by them. They set up an independent registered association called the United Basel Mission Church in India Trust Association. By two separate registered indentures the Church as well as the Mission properties were made over to the said-Trust Association by the Basel Evangelical Mission Society. The day-to-day management of the Mission properties was to be conducted by a smaller body called the Administrative Committee. The Management of the Educational Institutions was not handed over and it continued with the Home Board of the Basel Evangelical Mission Society. During the Second world War the Basel Evangelical Mission of Germany found it difficult to communicate with their counter parts in India. The Management of the Educational Institutions was not handed over and it continued with the Home Board of the Basel Evangelical Mission Society. During the Second world War the Basel Evangelical Mission of Germany found it difficult to communicate with their counter parts in India. Therefore, the affairs of the Basel Mission in India were being handed by the Genera! Committee of the Basel Mission in India as authorised by the Home Board. In 1940 they promoted the formation of a registered Society called the Malabar and South Kanara Christian Education Society. By resolution dated 23/24-9-1940 the General Committee in India of the Basel Mission and all the High Schools and Lower Primary Schools attached to them to the said Education Society. About 30 primary schools remained under the Management of the General Committee of Basel Mission in India. In 1947 there was a union of certain churches and the United Basel Mission Church in India was one of such churches which formed itself into the C.S.I. As decided by the Basel Mission, the above mentioned Trust association by two separate registered Indentures made over all the properties held by them as Trustees, that is to say, the church as well as the Mission properties to the Church of South India. In 1972 the Home Board of Basel Mission by a resolution transferred the administration of the Educational Institutions (Malabar Christian College and all the High Schools, etc.), from the Education Society to the North Kerala Diocese of CSI. It is to be noted that regarding I he transfer of Institutions there is a dispute between the Education Society and the CSI pending before the Honourable High Court of Kerala in S.A. 357/88,389/88 and 577/88. 3. The Basel Evangelical Mission, Basel, Germany started several educational institutions in Malabar. In the year 1947 after successive devolutions the management became vested in the Church of South India which itself was formed in the year 1947. The institutions presently managed by the Church of South India in Malabar (in the Districts of Palghat, Calicut. Malappuram, Wynad, Cannanore and Kasaragod are not minority institutions established and administered by a minority community and the Church of South India or the petitioners are not entitled to the protection of Article 30(1) of the Constitution of India. Trie decisions of this Hon'ble Court in O.P.No.3457/1974, O.P.No.593Sl1983-B O.P.No.3626/87, W.A.No. 194/87 and W.A. No.986/87 conclude the issue. Malappuram, Wynad, Cannanore and Kasaragod are not minority institutions established and administered by a minority community and the Church of South India or the petitioners are not entitled to the protection of Article 30(1) of the Constitution of India. Trie decisions of this Hon'ble Court in O.P.No.3457/1974, O.P.No.593Sl1983-B O.P.No.3626/87, W.A.No. 194/87 and W.A. No.986/87 conclude the issue. A true copy of the judgment in O.P. No,5938/83-B is produced herewith and marked as Ext.R3(a). The first petitioner. is a party to O.P. 3626/87 and W.A. No. 986/87. The petitioners have not disclosed the above facts in the Original Petition. As regards C.M.S. Schools in Trichur and Ernakulam Districts managed by the 3rd petitioner they are also schools not established by the Church of South India. The contention in paragraph 2 of the Original Petition that C.S.I. .Christians of North Diocese form a minority community and hence the educational institutions administered by the North Kerala Educational Agency are minority institutions is not true or correct or sustainable. The schools mentioned in Ext.P1 are not schools established by a minority community as contemplated by Article 30(1) of the Constitution of India. As held by the Hon'ble Supreme Court of India in the decision reported in AIR 1968 SC 662 and AIR 198.3 SC 1, a minority community can claim the benefit of Article 30(1) only if the community proves that it is a religious or linguistic minority and that the institution was established by it. The writ petition does not give the- details regarding the establishment of the schools mentioned in Ext, P1". 7. in view of the above, the institution in question cannot be considered as' one established by the 2nd and 3rd respondent even though it is administered by them. If that ho so, the institution cannot be treated as a minority school entitled to the protection of Article 30(1) of the Constitution of India notwithstanding the vide definition of minority school contained in S.2(5) of the Kerala Education Act. Therefore, Rule 44 Chaper XIV (A) of the Kerala Education Rules has to be strictly applied in the matter of appointment of Headmaster. Hence, the petitioner being senior to the 4th respondent, is entitled to be promoted to the post of Headmaster which fell vacant on 31-3-1989 in preference to the 4th respondent in O.P. No.9158 of 1989. Therefore, Rule 44 Chaper XIV (A) of the Kerala Education Rules has to be strictly applied in the matter of appointment of Headmaster. Hence, the petitioner being senior to the 4th respondent, is entitled to be promoted to the post of Headmaster which fell vacant on 31-3-1989 in preference to the 4th respondent in O.P. No.9158 of 1989. In the light of the above discussion, I quash Ext.P1 order and direct the 2nd and 3rd respondents to make appointment to the post of Headmaster in accordance with Rule 44 Chapter XIV (A) of the Kerala Education Rules taking into account the claim of the petitioner.O.P. No.9158 of 1989 is allowed as above. O.P. 7020 of 1989 is disposed of declaring Ext.P3 circular unconstitutional and inoperative in so far as it applies to institutions established and administered by minority and further declaring that the institutions mentioned in Ext.P1 are minority institutions only if they arc found to be established and administered by religious or linguistic minority. There will be no order as to costs.