The Manager Emjay School v. N Ammad — 1998 DIGILAW 345 (KER)

JUDGMENT 1. The Judgment of the Court was delivered by Lakshmanan, J.- Heard Mr. S.V.S. Ayyar, learned Senior Counsel for the appellant in W.A. 746 of 1998, Mr. K. P. Dandapani for the appellant in W.A. 747 of 1998 and Mr. M. Ramachandran for the common first respondent in both the appeals. 2. These two Writ Appeals arise out of the Judgment of a learned Single Judge in O.P. 10807 of 1994 dated 27th March 1998 allowing the Original Petition filed by the first respondent, N. Ammad, Headmaster-in-charge of Emjay High School, Villaippalli. A writ of mandamus was issued to the respondents in the O.P. to promote him as the Headmaster of the said school with effect from 3rd June 1994 and a further direction to send back the fourth respondent therein (appellant in W.A.747 of 1998) to the B.T.M. High School as a High School Assistant. W.A. 746 of 1998 has been filed by the Manager of the Emjay High School and W.A. 747 of 1998 was filed by the fourth respondent in the O.P., P. M. Aboobacker. By consent of all the parties, both the Writ Appeals were taken up together. 3. The case of the appellant in W.A. 746 of 1998 is that the Emjay High School is a minority institution established by the Thanveerul Islam Orphanage Committee, a registered society under the Societies Registration Act 21 of 1860. The bye laws of the society and its English translation are produced and marked as Annexures A-1 and A-2 respectively. The appellant institution, consequent to the notification issued by the Government of Kerala in. 1982 specifying the allocation for the establishment of a High School and inviting applications for the establishment of the school from among the eligible institutions and individuals, filed application for the establishment of the High School in the name of the society. The Government, after considering the eligibility of the appellant, have granted permission for the establishment of the High School under the name and style of 'Emjay High School'. The permission so granted is produced as Annexure A-3. The objectives of the Thanveerul Islam Orphanage Committee are as follows: "(a) Construction and management of Thanveerul Islam Orphanage, C.M.N.P. School, M.J. High School and other related educational institutions. The permission so granted is produced as Annexure A-3. The objectives of the Thanveerul Islam Orphanage Committee are as follows: "(a) Construction and management of Thanveerul Islam Orphanage, C.M.N.P. School, M.J. High School and other related educational institutions. (b) To collect funds for the above purpose, use it for expense; of the same and the remaining may be used to collect assets on it: behalf. (c) To work for the educational progress of the area according to its laws. (d) To run educational institutions as per Kerala Educational Act and Rules." The membership of the Society is open to any Muslim of Valliappally panchayat, who has completed 18 years of age. A working committee consisting of not less than 7 members but not more than 21 has to be elected by the general body for a tenure of five years. The office bearers of the Society are the President, Vice President, Secretary, Joint Secretary, Treasurer and Manager who will be elected from the working committee. The Manager elected by the Committee is responsible for the management of the Society as per Kerala Education Act/Rules. The Manager is authorised to do all appointments in the school under the Society with the sanction of the committee and before initiating disciplinary action against teaching and non teaching staff under the Society, he must get the sanction from the Society. All properties including grounds, buildings, etc., are absolutely belong to the Society. The first respondent (petitioner in the O.P.) was an assistant teacher in the school from 3rd June 1982 onwards. On the basis of the occurrence of a vacancy of Headmaster, the first respondent was appointed as Headmaster-in-charge with effect from 1st June 1991 which was approved by the educational authorities in terms of R.45C of Chap.14A. The first respondent was appointed as a Headmaster-in-charge at the time of occurrence of the vacancy since there was no teacher with requisite experience and qualification available to be appointed as Headmaster. It is the case of the appellant that since the school is a minority educational institution as defined under S.2(5) of the Kerala Education Act, the appellant is entitled to get protection as envisaged under Art.30(1) of the Constitution of India. It is the case of the appellant that since the school is a minority educational institution as defined under S.2(5) of the Kerala Education Act, the appellant is entitled to get protection as envisaged under Art.30(1) of the Constitution of India. While the appellant had initiated proceedings for the appointment of the fourth respondent in the O. P., P. M. Aboobacker, a fully qualified teacher with more years of experience, the first respondent filed a petition before the District Educational Officer, Badagara and the appellant requesting them to promote him as the Headmaster of the school. The District Educational Officer issued a letter directing to promote the first respondent as the Headmaster of the school. Appellant had informed the D.E.O. and the first respondent that more qualified and suitable persons are being appointed as Headmaster of the school and that the first respondent is not a suitable person to be appointed as Headmaster of a minority school. Aggrieved by the non appointment of the first respondent, he filed the present Original Petition before this Court. 4. The first respondent as petitioner in the O.P. submitted that he was the senior most teacher working as teacher-in-charge of the school and that the District Educational Officer has also approved his appointment as per R.45(C) of Chap.14A of K.E.R. First respondent was, therefore, continuing as a teacher-in-charge and after completing 12 years graduate service which is necessary as per R.44 (A) of Chap.14A for appointment to the post of Headmaster, he became eligible to be appointed as Headmaster as on 3rd June 1994. Therefore, he submitted that as per R.45(C) of Chap.14A and as per Ext. P1, the vacancy should be filled up as soon as qualified hands are available and that the first respondent, who is the senior most teacher and qualified to be appointed to the post, should be appointed as such. However, the management was deliberately not appointing him as Headmaster for extraneous consideration and there is no justification for not appointing him as Headmaster of the school. Along with the Original Petition, the first respondent filed Exts. P-1 to P-5. 5. The Manager of the school in question, namely, appellant in W.A. 746 of 1998, filed two separate counter affidavits together with Exts.R-3 (A) to R-3 (D). Along with the Original Petition, the first respondent filed Exts. P-1 to P-5. 5. The Manager of the school in question, namely, appellant in W.A. 746 of 1998, filed two separate counter affidavits together with Exts.R-3 (A) to R-3 (D). It was submitted that the appellant school is a minority institution coming within the definition of 'minority school' contained in S.2 (5) of the Act and as such, they are entitled to the protection envisaged under Art.30(1) of the Constitution. As per the ruling reported in Manager, C. E. Agency v. State of Kerala 1990 (2) KLT 240 the Manager of a minority school is having absolute fight to appoint any person who is fully qualified and competent to be appointed as the Headmaster of the school. In the absence of any challenge for the minority status of the school, the Original Petition is liable to be dismissed without prejudice to the above contention. It was also submitted that the first respondent is not a suitable person to be appointed as Headmaster of the school and than a punishment of withholding of promotion permanently as per R.65 (ii) of Chap.14A was imposed on him as per Order No. 57/95 dated 27th April 1995. The Manager had appointed P. M. Aboobacker, fourth respondent in the O.P., who is having more than 1.8 years of continuous service from B.T.M. Secondary School, Thurayoor as the Headmaster of the school in question through inter management transfer on 4th August 1994 and that the said appointment was duly approved by the D.E.O., Badagara. On the basis of the said appointment, the fourth respondent is continuing as the Headmaster of the school. Ext. R-3 (G) is the proceedings of the Manager, Emjay Vocational Higher Secondary School holding that the charge against the first respondent herein (petitioner in the O.P.) that he left India without the knowledge and consent of the Manager and without obtaining prior permission from the Government to leave the country has been proved beyond doubt. Therefore, under the powers vested under R.70 of Chap.14A, K.E.R, the Manager ordered that promotion to the first respondent be withheld permanently under R.65(ii) of Chap.14A. Ext. R-3(D) is the application for inter management transfer of teachers submitted to the D.E.O., Badagara seeking permission to transfer P.M. Aboobacker from B.T.M. Secondary School, Thurayoor to Emjay Vocational Higher Secondary School. Therefore, under the powers vested under R.70 of Chap.14A, K.E.R, the Manager ordered that promotion to the first respondent be withheld permanently under R.65(ii) of Chap.14A. Ext. R-3(D) is the application for inter management transfer of teachers submitted to the D.E.O., Badagara seeking permission to transfer P.M. Aboobacker from B.T.M. Secondary School, Thurayoor to Emjay Vocational Higher Secondary School. In the said application, P. M. Aboobacker has also declared that he was willing to serve as teacher junior to the junior-most teacher in the cadre and agreed that the transfer was at his own risk. The manager of the school has also gave his consent for the said transfer. The appointing authority also accorded permission for the transfer, Ext. R-3(A) produced along with the other counter affidavit is the Government Order No. G.O. (Rt.) 2959/ 94/G.Edn., dated 2nd August 1994 declaring that the school in question is a minority institution. Ext. R-3 (A) issued by the Government of Kerala, General Education Department reads as follows: "As per the representation read above, the Secretary, Thanveeml Islam Yatheemkhana, Villiyappalli has requested Government to declare Emjay Vocational Higher Secondary School in Kozhikode District as a Minority School, since the school is established for the welfare of the Muslim community. The Director of Public Instruction in his letter read as second paper above has informed Government that the school is functioning as a Muslim School enjoying Ramzan Holidays and Friday Holidays and has recommended for the declaration of the school as minority institution. Government have examined the matter and are pleased to declare the Emjay Vocational Higher Secondary School in Kozhikode District under the jurisdiction of Deputy Director of Education, Kozhikode as a minority institution." 6. P. M. Aboobacker, fourth respondent in the O. P. (appellant in W. A. 747 of 1998) filed a separate counter affidavit stating that the management has got absolute discretion to choose qualified hands of their choice for appointment as Headmaster and that the minority right under Art.30(1) of the Constitution is available to the establishment. He joined duty on 6th August 1994. The first respondent, without availing the statutory appeal and revision provided under the Rules, filed the Original Petition straightaway in this Court. 7. He joined duty on 6th August 1994. The first respondent, without availing the statutory appeal and revision provided under the Rules, filed the Original Petition straightaway in this Court. 7. After hearing the parties, the learned Single Judge had allowed the Original Petition and directed the authorities to promote the petitioner in the O. P. as Headmaster of the school in question with effect from 3rd June 1994 and sent the fourth respondent back to the B.T.M. High School as High School Assistant, Aggrieved by the Judgment of the learned Judge, the Manager and the fourth respondent have filed the above two Writ Appeals. 8. Mr. S.V.S. Ayyar invited our attention to all the Exhibits filed by both the parties and the relevant provisions of the Kerala Education Act and Rules. His Submissions are three-fold: According to him, the school run by the management is a minority institution as defined under S.2 (5) of the Act. Since the school was established and administered by such minority, the benefit under Art.30(1) of the Constitution is available to the institution. He would further submit that the institution was established by the appellant in W. A. 746 of 1998 as per G.O. (Ms.) No. 21/82/G. Edn., dated 15th February 1982 by the persons residing in India and the said institution was administered by the Committee from its inception and even after the order in G.O. (Rt.) No. 2959/ 94/G. Edn., dated 2nd August 1994 it is being administered by the members of the society. As the appellant had shown that the institution was established by persons residing in India and administered by them before the recognition of the school as a minority institution and now continuously administered after the recognition as minority institution, they are entitled to claim the right under Art.30(1) of the Constitution. It is not in dispute that the establishment was set up in the year 1982 and administered even now by the committee. Since the institution satisfies the real test, namely, that the institution is established and administered for the benefit of the minority, it is entitled to the protection under Art.30(1) of the Constitution. 9. The second argument of Mr. It is not in dispute that the establishment was set up in the year 1982 and administered even now by the committee. Since the institution satisfies the real test, namely, that the institution is established and administered for the benefit of the minority, it is entitled to the protection under Art.30(1) of the Constitution. 9. The second argument of Mr. S.V.S. Ayyar is that the first respondent (petitioner in the O.P.) was not qualified as on 1st June 1991 and since the qualification and experience are the only two things to be looked into for appointment, the first respondent is not entitled to claim that he alone should be appointed as the Headmaster of the school. 10. Thirdly, learned counsel submitted that the learned Judge went wrong in interpreting Ext. R-3(A) as a declaration of a minority status prospectively. The learned Judge had gone further to declare that Ext. R-3(A) has only prospective operation and as such the appellant management cannot be considered as a minority institution as on the date of occurrence of the vacancy. 11. In support of his contentions, Mr. Ayyar cited the following rulings: (1) Unnimqyinkutty v. Assistant Educational Officer ( 1983 KLT 121 ) (2) Raju Varghese v. State of Kerala and others [1985 KLT SN 9 (Case No. 13) ] (3) Rev. K. C. Seth v. State of Kerala [ 1991 (2) KLT 662 ] (4) Rt. Rev. K. C. Seth v. State of Kerala [ 1992 (1) KLT 754 D.B.] (5) Henry Gomez v. Government of Kerala [ 1993 (2) KLT 883 ] (6) Manager, H.M.H. School v. State of Kerala [ 1987 (2) KLT 555 ] (7) Padmanabhan Nair v. Dy. Director [ 1991 (1) KLT 337 F.B.] (8) Rt. Rev. A. M. Patroni v. Kesavan ( 1964 KLT 791 F.B.) (9) Rev. Fr. Daniel v. Director of Public Instructions ( 1965 KLT 927 ) (10) Rt. Rev. Dr. Aldo Maria Patroni v. Assistant Educational Officer ( 1974 KLT 78 ) (11) Manager, C. E. Agency v. State of Kerala [ 1990 (2) KLT 240 ] 12. Per contra, Mr. M. Ramachandran submitted that the first respondent was appointed as High School Assistant in the appellant school from 3rd June 1982 and that he is a graduate with B.Ed. Aldo Maria Patroni v. Assistant Educational Officer ( 1974 KLT 78 ) (11) Manager, C. E. Agency v. State of Kerala [ 1990 (2) KLT 240 ] 12. Per contra, Mr. M. Ramachandran submitted that the first respondent was appointed as High School Assistant in the appellant school from 3rd June 1982 and that he is a graduate with B.Ed. He is the senior most teacher of the school and was appointed as teacher-in-charge which was approved by the District Educational Officer by Ext.P-1 dated 28th November 1991. He has passed all tests required for promotion to the post of Headmasters and since he has acquired the qualifications of Headmaster and having 12 years of service as on 3rd June 1994, he is entitled to be promoted as Headmaster in the school. He submitted that it was the duty of the Manager to promote the original claimant under the management and denial of promotion will lead to action against the manager for mis-management. The order passed by the Manager dated 4th August 1984 reverting him as High School Assistant was issued with mala fide intention and that Ext.P-7 was issued on the basis of the letters dated 4th August 1994 and 5th August 1994 of the Manager. Mr.Ramachandran would further submit that the declaration of the school as a minority institution was made only on 2nd August 1994 and that the said declaration will have no application since the first respondent/petitioner has acquired the qualification as early as on 3rd June 1994 and was working in the school in question as a teacher-in-charge from 1991 onwards. He further submitted that the Government Order dated 2nd August 1994 has no respective effect and that the appellants school is not a school which is eastablished for the minority. If it was established for the benefit of the minority, it should have been a minority institution from the inception itself. He further submitted that the first respondent is also a member of the minority community. Therefore, a person from outside agency to be appointed as Headmasters in the appellant-school is against the interest of the minority itself. If it was established for the benefit of the minority, it should have been a minority institution from the inception itself. He further submitted that the first respondent is also a member of the minority community. Therefore, a person from outside agency to be appointed as Headmasters in the appellant-school is against the interest of the minority itself. According to the learned counsel, transfer of a teacher can be made under rule 10 of chapter XIV-A and only uner rule 11 a teacher serving from another educational agency can be transferrd to a school under another educational agency with the previous permission of the District Educational Officer. Therefore, Ext.P-7 order is in violation of rule11. Assuming that a transfer can be made, in this case the teacher who is transferred should be fixed next below the junior most teacher in the school. Therefore, the seniority of a teacher who is transferred from one school to another is maintained only if the transfer is made in respect of the same educational agency. Learned counsel also invited our attention to R.43 which prescribes that promotion should be made from qualified teachers in the school and that the first respondent is entitled to be promoted as Headmaster. Ext. P-7 is in violation of R.45(C) of Chap.14A also which specifically states that qualified persons should be appointed and, therefore, the non appointment of the first respondent as Headmaster with effect from 3rd June 1994 is against R.45(C) of Chap.14A. As far as P. M. Aboobacker (fourth respondent in the O.P.) is concerned, he was only a High School Assistant and not even a Headmaster of another school and, therefore, he cannot be appointed as Headmaster in the school and such appointment is in violation of R.13 of Chap.14A. 13. Arguing further, Mr. Ramachandran submitted that the post of Headmaster in the school fell vacant with effect from 1st June 1991 and there was no fully qualified teachers under the management eligible for promotion to the said post available. First respondent, being the senior most High School Assistant, was appointed, as envisaged by R.45(C) of Chap.14A, as teacher-in-charge vide Ext. P-1 on condition that he will be replaced as soon as a fully qualified teacher becomes available under the management. He had become eligible to be appointed as Headmaster as per the rule by 3rd June 1994. First respondent, being the senior most High School Assistant, was appointed, as envisaged by R.45(C) of Chap.14A, as teacher-in-charge vide Ext. P-1 on condition that he will be replaced as soon as a fully qualified teacher becomes available under the management. He had become eligible to be appointed as Headmaster as per the rule by 3rd June 1994. He also submitted that imaginary allegations were levelled against him and orders were passed unilaterally against him. 14. Mr. K. P. Dandapani appearing for the appellant in W. A. 747 of 1998 (fourth respondent in the O. P.) submitted that the first respondent was appointed as a High School Assistant in the school in question from 3rd June 1982 and was appointed as a Headmaster-in-charge in the vacancy arose to the post of Headmaster on 1st June 1991 since he was not having the requisite experience of 12 years of service as High School Assistant. Although CMP 20313 of 1994 was filed for amendment, first respondent has not chosen to challenge Exts. P-6 and P-7 orders and has also not. challenged the status of the school as a minority institution. Even assuming that the first respondent is eligible to be considered for promotion as on 3rd June 1994, he cannot claim for promotion inasmuch as the appellant management being a minority institution can have its own choice in the matter of appointment of Headmaster. 15. S.2(5) of the Kerala Education Act defines 'minority schools' which means schools of their choice established and administered, or administered, by such minorities as have the right to do so under clause (1) of Art.30 of the Constitution of India. 16. We shall now consider the decisions cited by Mr. Ayyar relating to minority institutions: 1964 KLT 791 (F.B.) A Full Bench of this Court had occasion to consider R.44 of Chap.14A with reference to its scope and ambit and also the power of the management to appoint Headmaster. The Bench was also considering whether a junior in service can be appointed and whether such appointment would infringe Art.30(1) of the Constitution. The Bench was also considering whether a junior in service can be appointed and whether such appointment would infringe Art.30(1) of the Constitution. The Bench said that the word 'minority' is not defined in the Constitution and in the absence of any special definition, it has to be held that any community, religious or linguistic which is numerically less than fifty per cent of the population of the State is entitled to the fundamental right guaranteed by the Article. While considering the scope, nature and limits of Art.30(1) in regard to the right of the minority to establish and administer educational institutions, the Bench has observed thus: "A school established by a minority whether before or after the Constitution will come within the ambit of Art.30(1) of the Constitution, even though what it imparts is a general education and its students are drawn not merely from the minority community but from other communities as well. The right guaranteed under the article is a right that is absolute and any law or executive direction which infringes the substance of that right is void to the extent of the infringement. The absolute character of the right will not preclude regulations in the true interests of efficiency of instruction, discipline, health, sanitation, morality, public order and the like, as such regulations are not restrictions on the substance of the right guaranteed by the Constitution. The fundamental right enshrined in Art.30(1) is intended to be effective and should not be whittled down by any regulative measure conceived in the interest not of the minority educational institution but of the public or the nation as a whole." While considering the question whether a junior in service can be appointed and whether such appointment would infringe Art.30 (1) of the Constitution, the Full Bench observed thus: "14. The post of the headmaster is of pivotal importance in the file of a. school. Around him wheels the tone and temper of the institution; on him depends the continuity of its traditions, the maintenance of discipline and the efficiency of its teaching. The post of the headmaster is of pivotal importance in the file of a. school. Around him wheels the tone and temper of the institution; on him depends the continuity of its traditions, the maintenance of discipline and the efficiency of its teaching. The right to choose the Headmaster is perhaps the most important facet of the right to administer a school; and we must hold that the imposition of any trammel thereon except to the extent of prescribing the requisite qualifications and experience cannot but be considered as a violation of the right guaranteed by Art.30(1) of the Constitution. To hold otherwise will be to make the right 'a teasing illusion, a promise of unreality'. 16. By Ext. P-7, the order impugned in the petition, the Director of Public Instruction has abrogated the appointment by the management of the fourth respondent as the Headmaster of the school on the sole ground that he is Junior in the service of the School to the first respondent, and appointed the first respondent in his place. This, as we see it, is a violation of the right under Art.30(1) of the Constitution, and should be struck down on that account." 1965 KLT 927 1964 KLT 791 (F.B.) was followed by K. K. Mathew, J. in this case. The learned Judge was considering the rights of a religious minority to appoint any person as Headmaster, who has got the requisite qualification. The learned Judge said that R.45 is only an exception and not a bar. The learned Judge held: "In the case of a school conducted by a religious minority, the management of a school has got the fundamental right under Art.30(1) of the Constitution to appoint any person as Headmaster of the school provided he has got the requisite qualifications prescribed by the Kerala Education Rules and the notifications thereunder. Therefore, the educational institutions established and administered by minorities will not be bound by R.44. R.45 is really an exception to R.44 and it will not stand in the way of appointment by a Manager. It has nothing to do with the qualifications necessary for appointment to the post of Headmaster." 1974 KLT 78 The above case was rendered by G. Viswanatha Iyer, J. That was a case of a school run by the Bishop of Roman Catholics in Kerala. It has nothing to do with the qualifications necessary for appointment to the post of Headmaster." 1974 KLT 78 The above case was rendered by G. Viswanatha Iyer, J. That was a case of a school run by the Bishop of Roman Catholics in Kerala. In that case, the learned Judge was considering a case of a school previously run by some other organisation which was taken over and transferred to the Church and the Church re-organised and managed the school to cater to and in conformity with the ideals of Roman Catholics. The learned Judge held that in order to claim protection under Art.30(1) of the Constitution, they will have to show that the school is established and administered by a religious minority and to claim protection under the said Article, it is not necessary that there should be a corporate management for the school. Even if it is managed by individuals op the religious head of a community, the protection under Art.30 will be available to that school as well. For the establishment of a school, it is not necessary that the school must be constructed by a community and even if the school previously run by some other organisation is taken over and transferred to the Church and the Church re-organised and managed the school to cater to and in conformity with the ideals of the Roman Catholics, it can be safely concluded that the school has been established by the Roman Catholics. While considering the question of ignoring seniority in the appointment of a Headmaster of the school, the learned Judge said that the post of a Headmaster occupies a pivotal position and the whole institutions is controlled by him and R.44 and 45 cannot interfere with that freedom which the management has in appointing the Headmaster and that the management . has the freedom to choose the person competent and qualified and to appoint him or her in the institution. The learned Judge has followed the decisions in Rt. Rev. A. M. Patroni v. Kesavan 1964 KLT 791 (F.B.) and Rev. Fr. Daniel v, Director of Public Instructions 1965 KLT 927 . 1983 KLT 121 The above Judgment is rendered by Bhaskaran, J. The learned Judge held that: "In deciding whether an institution is a minority institution or not, all the attending circumstances concerning its establishment and also of its administration have to be considered. Fr. Daniel v, Director of Public Instructions 1965 KLT 927 . 1983 KLT 121 The above Judgment is rendered by Bhaskaran, J. The learned Judge held that: "In deciding whether an institution is a minority institution or not, all the attending circumstances concerning its establishment and also of its administration have to be considered. Merely for the reason that the institution was established by an individual of the community, not by a community as a whole as a representative body, it would not necessarily mean that it is not a minority institution. The real test is whether the institution is established and administered for the benefits of the minority irrespective of the fact that it is started by an individual of the community or by an organisation representing the community or the school comes under a corporate management or individual management." 1985 KLT SN 9 (Case No. 13) Balakrishna Menon, J., in the above case, was considering the requirements of an institution established and administered by an individual and whether the said individual can claim benefits of Art.30(1) of the Constitution. The learned Judge held: "It cannot be said that merely for the reason that the institution is established and administered by an individual, it cannot be a minority institution entitled to the protection of Art.30(1). If it is shown that the institution though established and administered by an individual, is either on behalf of the minority or for its benefit, it is entitled to protection of Art.30(1). The protection under Art.30(1) will also be available to an institution established and administered for the benefit of a minority community, in which case it would be necessary to show a dedication of the institution for the benefit of the community. If the minority has a right to demand the benefits, it will be a case where it can be easily held that the institution is established for the benefit of the minority." The learned Judge in the above case has followed the decision in Unnimoyinkutty v. Asst. Educational Officer 1983 KLT 121 and few other Judgments. 1990 (2) KLT 240 Malimath, C. J. and Viswanatha Iyer, J. were considering R.44 of Chap.14A in the above case. The Bench held that R.44 does not operate in full force against a minority educational agency, to insist that in the absence of extraordinary circumstances, the senior most teacher should be appointed as the Headmaster. 1990 (2) KLT 240 Malimath, C. J. and Viswanatha Iyer, J. were considering R.44 of Chap.14A in the above case. The Bench held that R.44 does not operate in full force against a minority educational agency, to insist that in the absence of extraordinary circumstances, the senior most teacher should be appointed as the Headmaster. R.44 of Chap.14A says that the appointment of Headmasters shall ordinarily be according to seniority and that the Manager will appoint the Headmaster subject to the rules laid down in the matter and a teacher if he is aggrieved by such appointment will have the right of appeal to the Department. The learned Bench observed thus: "25. R.44 enjoins the appointment of the Headmaster ordinarily according to seniority. Is this merely a regulatory measure which the State is entitled to impose without infringing the fundamental right under Art.30 (1) or does it abrogate the right to administer guaranteed thereunder? That is the question. The matter, according to us, is not res Integra. It is covered by more than one binding precedent of this court and of the Supreme Court. 30. We are bound by the decisions of the respective Fall Benches in the cases of Patroni and Mother Provincial as also the decisions of the Supreme Court in St. Xaviers College and Gandhi Faiz-e-am College upholding the pivotal importance of the head of an institution. It is therefore well established by decisions of this court as well as the Supreme Court that the right to appoint the Headmaster of a school or the Principal of a college, is one of prime importance in the administration of the institution. The right of the minority to administer an educational institution of its choice requires the presence of a person in whom they can repose confidence, who will carry out their directions, and to whom they can look forward to maintain the traditions, discipline, and the efficiency of the teaching. When once the pivotal position of the Headmaster is recognised, it has to be held that the right to appoint a person of its choice as Headmaster , is of paramount importance to the minority, any interference with which (otherwise than, by prescribing qualifications and experience) will denude the right of administration of is content, reducing it to mere husk, without the grain. Such an inroad cannot be saved as a regulation which the State might impose for furthering the standards of education. 32. It is true that contentment in service and chances of advancement of teachers add to the image and excellence of standards of an institution. But then, this result cannot be achieved by denying the right of administration itself to the minority. The competing claims are between the fundamental right to administer, and a provision which well nigh dies away with that right as was held by the Full Benches in Patroni and Mother Provincial, which are binding on us. The decision in Patroni's case is emphatic that 'the right to choose the Headmaster is perhaps the most important facet of the right to administer a school; and any trammel thereon except to the extent of prescribing the requisite qualifications and experience cannot but be considered as a violation of the right guaranteed by Art.30(1) of the Constitution'. It is not possible to limit this categoric opinion of the Full Bench to the peculiar facts of an extreme case particularly when the later Full Bench accepted and applied it to the case of Principals of Colleges in Mother Provincial, 1969 KLT 749." 1991 (2) KLT 662 The above is a case of an institution not established by the minority, but administered by it. K. A. Nair, J. observed thus: "S.2(5) of the Kerala Education Act defines 'minority schools' as not only established and administered, but also schools administered by the minority. The definition of minority school in the Act is wider than what is contemplated in Art.30(1) of the Constitution. Art.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. The words 'or administered' in S.2(5) of the Kerala Education Act will have to be held as ultra vires Art.30(1) of the Constitution of India. 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. Art.30(1A) also emphasises this requirement. 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. Art.30(1A) also emphasises this requirement. Hence, if Art.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. S.2(5) of the Kerala Education Act has to be read down in conformity with the requirement of Art.30 of the Constitution and, so read, the words 'or administered' occurring in the sub-section will have to be ignored." The above Judgment was confirmed in Rt. Rev. K. C. Seth v. State of Kerala 1992 (1) KLT 754 by a Division Bench comprising of Jagannatha Rao, G. J. and Krishnamoorthy. J. The Bench held that the benefit under Art.30(1) is not available to an institution established by foreigners, but administered by a minority community. In order to claim protection under Art.30 of the Constitution, the Bench said that it is necessary that the institution claiming the benefit must affirmatively plead and prove that it is established and administered by minorities, whether based on religion or language. The words 'established and administered' occurring in Art.30 must be read conjunctively. The mere fact that the educational institutions are now being administered by a minority community is not sufficient to claim protection under Art.30, but they must also prove that they were established by a minority community. In order to claim protection under Art.30(1) of the Constitution, if the institutions were established before the coming into force of the Constitution, they should have been established by persons residing in India, if they are established after the coming into force of the Constitution, they should be by Indian citizens. 1987 (2) KLT 555 In the above case, Sivaraman Nair, J. was considering the scope of R.43, 44, 44A and 44B of Chap.14A and said that the Rules are supplemental to each other and that for appointment of a Headmaster the qualification shall be as on the date of occurrence of the vacancy and not on the date of appointment. 1991 (1) KLT 337 F .B. This was cited by Mr. 1991 (1) KLT 337 F .B. This was cited by Mr. Ayyar for the proposition that only qualified hands should be appointed as Headmaster as per the mandate of R.44A and it is only in exceptional cases when such hands are not available in the school or otherwise even after advertisement that the senior most graduate teacher is permitted to be made teacher-in-charge and that too for a period not exceeding one year at a time. The Full Bench observed that the intent is obvious that only qualified hands should, as far as possible, occupy the post of Headmaster. It is also in the best interest of the school that the temporary teacher-in-charge is replaced as soon as possible by a qualified hand. Therefore, as soon as a qualified hand is available in the school, he should be appointed to the post replacing the teacher-in-charge. 1993 (2) KLT 883 Here again, the Division Beach comprising of Jagannatha Rao, C. J. and Sreedharan, J. held that the management of a minority institution is entitled to appoint any duly qualified teacher as Headmaster without being trammelled by rule of seniority enjoined by R.44. The Bench also held that the promotion to a higher cadre should be based on the qualification and seniority at the time of occurrence of vacancy. 17. Mr. Ramachandran, learned counsel for the common first respondent (petitioner in the Original Petition) relied on Krishna Vama Raja v. D. E. O., Kasaragod 1976 KLT 506 . In that case, the Division Bench was considering the question as to who between respondents 3 and 4 was entitled to preference in the matter of reappointment to the post of High School Assistant that arose in an aided High School managed by the appellant therein. Respondents 3 and 4, admittedly, have put in previous approved service in the school as Hindi teacher and are, therefore, entitled to the benefit conferred by R.51 A of Chap.14A. The said Rule, as it stood originally, did not contain any indication as to the principle to be adopted when two or more persons are found to have preferential claim for re-appointment to a vacancy arising in the same school. The said Rule, as it stood originally, did not contain any indication as to the principle to be adopted when two or more persons are found to have preferential claim for re-appointment to a vacancy arising in the same school. Under those circumstances, a Division Bench of this Court held in Mary Oomman v. Manager, M.G.M. School, Kuruppampady 1973 KLJ 538 that since the Rule did not provide for any priority as between persons who are found to entitled to the benefits of its provisions, there is no fetter on the right of the management to choose and appoint anyone from amongst the persons who are found to have a right of preference under R.51A. This position has now undergone a change by reason of the amendment in R.51A when the Division Bench decided the case. The change was made as per notification dated 4th July 1972 and published in the Kerala Gazette dated 18th July 1972. By that amendment, if there are more than one claimant, the order of preference shall be according to the date of first appointment and if the date of first appointment is the same, then preference shall be decided with reference to age; the elder being given the first preference and in making such appointments due regard should be given to the requirements of subjects as far as High Schools are concerned. The Bench has observed that were the Rule itself has been amended by adding an explanatory note, its scope has necessarily to be judged in the light of the clarification given by the rule making authority in the note which has been incorporated with obvious intent to clear up any possible ambiguity existing in the main body of the Rule or to fill up any lacuna or gap. Such a purpose can be legitimately discharged by a note added to a Rule. Therefore, the Bench said that the principle laid down in the note to R.51A governs the said case, 18. The above Judgment is not applicable to the facts and circumstances of the case on hand and it is distinguishable on facts and law. In the instant case, we are not concerned with R.51A of Chap.14A. This apart, the school in question in the above judgment is not a minority institution. The above Judgment is not applicable to the facts and circumstances of the case on hand and it is distinguishable on facts and law. In the instant case, we are not concerned with R.51A of Chap.14A. This apart, the school in question in the above judgment is not a minority institution. In the instant case, we are concerned with regard to the constitutional guarantee given to the minority institutions to establish and administer schools and their right to choose and appoint teachers in the school run by a minority. As observed by the Full Bench in Padmanabhan Nair v. Dy. Director (supra) that the mandate of R.44 A is that only qualified hand should be appointed as Headmaster and that in the instant case the contesting respondent was appointed as a teacher-in-charge till he is replaced by a qualified hand. Now that a qualified hand becomes available in the school, the management has appointed the appellant in W.A. 747 of 1998 (fourth respondent in the O.P.) to the post replacing the teacher-in- charge, namely, the common first respondent. The fact that the Government have accorded sanction earlier for his appointment as teacher-in-charge does not, in our opinion, entitle him to continue in the office. All that it means he may continue in that post subject to availability of qualified hands. Now that a qualified hand is available and when he was found suitable according to the management of a minority institution, they have every right to choose the said person and appoint him in the place of the temporary hand. 19. Mr. Ramachandran then cited a decision of a Division Bench of this Court in Henry Gomez v. Government of Kerala ILR 1994 (1) Ker. 808 = 1993 (2) KLT 883 . The said decision was cited by Mr. Ayyar and we have already discussed the same (vide page No. 271. The Division Bench has followed James Thomas v. Chief Justice 1977 KLT 622 (F.B.) and Varghese and Others v. State of Kerala and Others 1981 KLT 458 (F.B.) apart from other Judgments. As already noticed, the Full Bench of our High Court in Rt. Rev. Ayyar and we have already discussed the same (vide page No. 271. The Division Bench has followed James Thomas v. Chief Justice 1977 KLT 622 (F.B.) and Varghese and Others v. State of Kerala and Others 1981 KLT 458 (F.B.) apart from other Judgments. As already noticed, the Full Bench of our High Court in Rt. Rev. Aldo Maria Patroni's case 1964 KLT 791 (FB) which is a decision relating to a minority institution, observed that the management has the right to choose the Headmaster, which is the most important facet of the right to administer a school and that the said view has been endorsed by another Full Bench in Rev. Mother t Provincial v. State of Kerala 1969 KLT 749 (F.B.) while dealing with a college of a minority institution. The observations made by the Supreme Court in St. Xaviers College v. State of Gujarat AIR 1974 SC 1389 and Gandhi Faiz-e-am College v. University of Agra AIR 1975 SC 1821 also support the above conclusion. 20. In the light of the above legal position, we have no hesitation in holding that the appellant management in W.A. 746 of 1998 is entitled to succeed in their appeal and that the appellant school which was originally established by a Muslim society in the year 1982 and also administered after its recognition as a minority institution by the Government of Kerala has an undisputed right to choose the best person as Headmaster and appoint him as such in the institution established and administered by them as they are entitled for the privileges enshrined under Art.30(1) of the Constitution of India including the privilege of appointment by the head of the institution of his choice only with the condition that the person should be qualified on the date of appointment. Admittedly, the fourth respondent in the O.P. (P. M. Aboobacker) is fully qualified and more experienced to be appointed as Headmaster of the appellant school. The learned Single Judge, in our opinion, is not correct in interpreting Ext. R-3 (A) as a declaration of minority status prospectively. Admittedly, the fourth respondent in the O.P. (P. M. Aboobacker) is fully qualified and more experienced to be appointed as Headmaster of the appellant school. The learned Single Judge, in our opinion, is not correct in interpreting Ext. R-3 (A) as a declaration of minority status prospectively. We have already noticed the various rulings of our High, Court and also of the Supreme Court by which our High Court has prescribed certain criteria upon which an institution can be considered as a minority institution and in the case of the appellant, it is undisputed that the appellant is having all the required qualification to be a minority institution. As pointed out by learned counsel for the appellant in W.A. 747 of 1998, the Headmaster-in-charge (petitioner in the O.P.) did not have the requisite experience and he has not challenged Ext. P-6 order under which he was reverted as a High School Assistant. He has also not challenged the status of the appellant school as a minority institution. In fact, his posting as a teacher- in-charge of the school was only a stop-gap arrangement till a Headmaster of management's choice was appointed and posted and when a regular Headmaster was posted, the teacher-in-charge was absolved of his responsibility as a teacher-in-charge. The selected candidate, namely, P. M. Aboobacker has also satisfies the educational qualification prescribed by the Education Act and Rules. 21. Therefore, we are of the opinion that the Judgment of the learned Single Judge issuing a Mandamus to promote N. Ammad (petitioner in the O.P.) as a Headmaster of the school in question with effect from 3rd June 1994 and the further direction that the fourth respondent therein (P. M. Aboobacker) is to be sent back to B.T.M. High School as a High School Assistant is incorrect and such a mandamus cannot be issued in the background of the facts and circumstances of this case discussed above. The said Judgment is liable to be set aside and we do so. Both the Writ Appeals are allowed. O.P. 1,0807 of 1994 is dismissed. No costs.