JUDGMENT
Viswanatha Iyer, J.
1. All these original petitions under Article 226 of the Constitution, involve a common question as to the right of a religious minority to appoint Headmasters of its choice, irrespective of seniority, in educational institutions established and administered by it. The minority concerned in these cases is Christian community. The minority educational agencies in question, who have established and are administering various educational institutions in the State, have been required by the authorities functioning under the Kerala Education Act, 1958 (Act 6 of 1959) and the Rules framed thereunder, to appoint Headmasters in these institutions in accordance with seniority, as enjoined by Rule 44 of Chapter XIV-A of the Kerala Education Rules (the Rules, for short). The contention of the minority educational agencies who have filed these original petitions (except O.P. No. 4795 of 1989) (in some cases, along with their appointee Headmasters) is that Rule 44 makes an inroad into the rights of the minorities to administer educational institutions of the their choice by insisting that appointments of Headmasters should “ordinarily” be according to seniority. O.P. No. 4795 of 1989. On the other hand, is a petition filed by two senior affected teachers for directions to the concerned minority educational agency to appoint Headmasters in their institutions in accordance with the ordinary rule of seniority prescribed in Rule 44. The case of these teachers is that Rule 44 is a regulatory measure, the provisions of which do not trench upon the fundamental right of the minority under Article 30(1) of the Constitution.
2. It will be advantageous at this stage to extract the relevant Constitutional and statutory provisions, namely Article 30(1) of the Constitution, Sub-section (2) of Section 2 of the Act defining an “educational agency”. Sub-section (5) of Section 2 of defining a “minority school”, Rule 1 of Chapter III of the Rules which classifies private educational institutions and defines educational agencies, Rule 3 of Chapter III requiring management of a school to be vested in a Manager and Rule 44 of Chapter XIV A (to which we shall hereinafter refer as Rule 44).
“Article 30(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.”
“Section 2(2) “educational agency” means any person or body of persons permitted to establish and maintain any private school under this Act.”
“Section 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.”
“Rule 1 of Chapter III Classification of Private Educational Institutions:– Private Educational Institutions may be classified into two categories viz. (i) those under individual Educational Agency and (ii) those under Corporate Educational Agency. Where the right to conduct the school is vested in an individual in his own right or as the legal representative of a joint family, the Educational Agency shall be termed “Individual Educational Agency” and in all other cases the Educational Agency shall be termed “Corporate Educational Agency”. Corporate Educational Agency shall include cases where the right is vested in (a) two or more persons jointly with written registered agreement, (b) a Board or Society or Association or Company or institution registered under a statute or created by a statute (c) an institution of Trust and (d) an ecclesiastical office of any religious denomination.”
“Rule 3 of Chapter III Management to be vested in a Manager:– (1) The management of every aided school may be vested by the Education Agency in a person who shall be referred to as the Manager and who shall be responsible to the department for the management of the institution.
(2) In the case of aided institutions under individual management, the individual proprietor may be the Manager.
(3) In the case of aided institutions under Corporate management, the proprietary body may choose the Manager in accordance with the rules in that behalf referred to in Rule 2.
(4) The Educational Agency shall be bound by the acts of the Manager.”
“Rule44 of Chapter XIV(A)(1) Appointment of Headmasters shall ordinarily be according to seniority. 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.”
3. We shall briefly state the facts in O.P. No. 5477 of 1989 which has been treated and argued as the leading case. This original petition has been filed by the manager of a Corporate Educational Agency, namely the Diocese of Palai, along with ten teachers, who have been appointed as Headmasters of various schools run by the said educational agency. The Diocese of Palai is a Roman Catholic Christian relgious body; Roman Catholics constitute a minority community in the State of Kerala. The Diocese, is administering Lower Primary Schools, Upper Primary Schools, Secondary Schools and Teachers Training Schools established by it, within the educational districts of Kottayam and Palai. The Diocese is a Corporate Educational Agency as defined in Rule 1 of Chapter III of the Rules.
4. In the course of its administration of the educational institutions, the first petitioner educational agency appointed petitioners 2 to 11 as Headmasters in its schools, without observing the rule of seniority enjoined by Rule 44. The educational agency proceeded on the view that as the educational institutions were established, and were being administered by Minority community, they were entitled to appoint Headmasters of their choice, without reference to seniority, in accordance with the decision of a Full Bench of this Court in A. M. Patroni v. E. C. Kesavan, 1964 Ker LT 791 : AIR 1965 Kerala 75. The Full Bench had held that the right to choose the Headmaster was perhaps the most important facet of the right to administer the school and any trammel thereon — other than prescriptions of qualifications and experience — will be violative of the rights of the minority under Article 30(1) of the Constitution. Government was however of the opinion that institutions imparting secular education, (not meant for preserving the philosophy, culture and traditions of any religious or linguistic group), the expenses of running which were fully met from the Consolidated Fund of the State, were not entitled to claim rights under Article 30(1). Government, in fact, issued a circular Ext. P-3 on April 17, 1989 to all the Controlling Officers directing them to see that appointments of Headmasters in aided schools are made only in accordance with the provisions in Rule 44. The authorities therefore refused to approve the appointment of petitioners 2 to II as Headmasters, by the orders marked as Exts. P-4 to P-13. The minority status of the institutions was not questioned in most of these orders except in three namely, Exts. P-5, P-10 and P-13, where it was observed by the education officers concerned that the Manager of the schools had not produced records to prove that the schools concerned were established by a minority community.
5. We must however, observe here that despite what is stated in Exts. P-5, P-10 and P-13, it was not disputed before us that the educational institutions in question have all been established, and were being administered by a religious minority. It has therefore, become unnecessary for us to go into the controversy regarding minority status raised in Exts. P-5, P-10 and P-13. We proceed on the basis that the schools concerned are all institutions established and administered by a minority, entitled to the right under Article 30(1) of the Constitution.
6. Petitioners challenge the Circular Ext. P-3 and the orders Exts. P-4 to P-13 as infringing the rights of the minority community under Article 30(1). According to them, the role of the Headmaster is one of pivotal importance in the life of a school and any interference with the minority educational agency’s right to appoint a Headmaster of its choice violates the right under Article 30(1). Reliance is placed on the decision of the Full Bench in Patroni’s case, 1964 Ker LT 791 : (AIR 1965 Kerala 75).
7. The case of the respondents as set forth in the counter-affidavit filed on their behalf is that minority institutions cannot claim freedom from regulations, since the State finances general educational institutions to the fullest extent, including payment of salary to approved staff, and providing maintenance grant for the school building. Regulations prescribing conditions of employment of teachers necessarily take in provisions for their promotion as well. Rule 44 is a regulation intended to promote and advance the cause of education. The excellence of educational standards and the exemplary image of the institution depend upon the teachers, who are well provided for, contented and who can look forward to reasonable prospects for advancement in service. Rule 44 does not therefore violate Article 30(1) of the Constitution. No reasons have been shown by the educational agency for departing from the ordinary rule of seniority in appointing petitioners 2 to 11 as Headmasters. Exts. P-4 to P-I3 have been passed only after considering the relevant rules and therefore they are not liable to be struck down by this Court.
8. It is also stated that the decision in Patroni’s case, 1964 Ker LT 791 : (AIR 1965 Kerala 75) requires consideration in view of the subsequent “decision” of the Supreme Court. The counter-affidavit then refers to the decision of the Supreme Court in All Bihar Christian Schools Association v. State of Bihar, AIR 1988 SC 305.
9. A reply affidavit has been filed on behalf of the first petitioner educational agency reiterating the contentions raised in the criminal petition.
10. The facts in the other writ petitions (except O.P. No. 4795 of 1989) are similar. There is no dispute in any of these cases either, that the schools in question are minority institutions.
11. O.P. No. 4795 of 1989 is filed by two teachers working under the Corporate Educational Agency, the first petitioner in O.P. No. 5477 of 1989 with the complaint that though they are senior teachers, their claims have been overlooked, and their juniors promoted and posted as Headmasters in violation of Rule 44, and the circular, namely Ext. P-3. The prayer is therefore, to direct the authorities to implement the circular, and to insist on appointments being made only in accordance with Rule 44.
12. The question that therefore arises for consideration is whether the minority educational agencies are entitled to appoint Headmasters of their choice in their schools, ignoring inter se seniority of the teachers. The answer turns upon the question whether the appointment of the Headmaster is such a vital aspect of the administration of the school, that any interference with it spells violation of Article 30(1) of the Constitution.
13. Precisely the very same question came up for consideration before a Full Bench of this Court in the year 1964. The scope and content of the fundamental right of a religious minority to administer an educational institution of its choice, with reference to the right to appoint a Headmaster, unhampered by Rule 44, came up for consideration before the Full Bench in A. M. Patroni v. E. C. Kesavan, 1964 Ker LT 791 : (AIR 1965 Kerala 75). That was a case where the seniormost teacher of a school established by the Roman Catholic minority in Calicut was a non-Christian — a Hindu. The school had all along had a member of the Society of Jesus as its Headmaster. The manager appointed one such to be the Headmaster, in preference to the non-Christian seniormost teacher, E. C. Kesavan. The Director of Public Instruction refused to approve the appointment made by the Manager in the view of that there was no justification to depart from the ordinary rule of seniority laid down in Rule 44. The Manager challenged the order of the Director of Public Instruction alleging violation of the fundamental rights of the minority under Article 30(1). The Full Bench considered the question, and sketched the following propositions as flowing from the then available decisions of the Supreme Court namely in re: the Kerala Education Bill, AIR 1958 SC 956 and Sidhrajbhai v. State of Gujarat, AIR 1963 SC 540:–
“(1) A school established by a minority whether before or after the Constitution will come within the ambit of Article 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.
(2) The right guaranteed under Article 30(1) is a right that is absolute and any law or executive direction which infringes the substance of that right is void to the extent of the infringement.
(3) 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.
(4) The fundamental right enshrined in Article 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.”
The Full Bench then went on to portray the position of a Headmaster vis a vis an educational institution and the effect, with reference to Article 30(1), of any interference with the right of a minority management to appoint the Headmaster. The words of M. Section Menon, C. J. are eloquent:
“14. The post of the headmaster is of pivotal importance in the life 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 Article 30(1) of the Constitution. To hold otherwise will be to make the right “a teasing illusion, a promise of unreality.”
In this view, the Full Bench struck down the order of the Director of Public Instruction abrogating the appointment by the Manager of a junior hand as Headmaster of the school, as a violation of the right guaranteed under Article 30(1) of the Constitution. In conclusion, the Full Bench noted that the word “ordinarily” in Rule 44 gave a certain amount of elasticity to that rule and therefore, felt it unnecessary to strike down the rule itself. The Court left it to Government to clarify the position by any appropriate amendment or instructions in that behalf in these words:–
“The word “ordinarily” in Rule 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 or instructions in that behalf.”
14. This decision was followed by Mathew, J. as he then was in Rev. Fr. Daniel v. Director of Public Instruction, 1965 Ker LT 927.
15. Neither of these decisions was taken up in appeal. The right of minority institutions to make appointment of Headmasters in their schools without reference to Rule 44 thus stood established so far as this Court was concerned. However, an attempt was made by Government in the year 1974 to challenge the decision in Patroni’s case. The first petitioner in O.P. No. 5477 of 1989 appointed a Headmaster of its choice in one of its schools without reference to seniority. The appointment was not approved as the appointee was a junior hand, and the claims of the senior teachers were overlooked. The management challenged the order as one violating their rights under Article 30(1) by filing writ petition O.P. No. 1747 of 1973 in this Court. Government attempted to sustain the order with the plea that it intended to take up the matter to the Supreme Court, as it doubted the correctness of the decision of the Full Bench in Patroni’s case, 1964 Ker LT 791: (AIR 1965 Kerala 75). Poti, J. noted this submission and allowed the original petition applying the decision in Patroni’s case, 1964 Ker LT 791 : (AIR 1965 Kerala 75), observing:–
“It is not for the first time that it has contended, as it has done here, that the State Government intends to take up the matter to the Supreme Court as it doubts the correctness of the decision of the Full Bench. More than nearly 10 years have passed since the decision, the correctness of which is not said to have been accepted by the State. The counter-affidavit states—
“It is now proposed to make use of the next available opportunity to have the matter again tested by the Supreme Court.”
10 years is fairly a long period and it is not as if this question had not arisen earlier. It had come up on a number of occasions during these ten years. Quite often this question does arise and on each of such occasions it would have been open to the State Government to take an appeal to the Supreme Court. It is possible that soon after the decision the State Government might have felt that the matter had to be tested before the Supreme Court and therefore, had not adopted an attitude of reconciliation with the decision of this Court. But I am afraid that at this distance of time it would not be fair for the State Government to refuse to apply the rule laid down as the law of the land by this Court.”
16. This decision was also not taken up in appeal despite the statement before this Court that Government wanted to canvass the decision of the Full Bench in the Supreme Court. On the other hand, Government issued a clarification by letter No. 16950/A1/74/G. Edn. dated 4-5-1974 (Ext. P-1) addressed to the Director of Public Instruction, in which after referring to the judgment in O.P. No. 1747 of 1973, they stated that the question of filing an appeal against the judgment in the writ petition had been dropped. The Director of Public Instruction was in the circumstances requested to issue instructions to all the authorities to follow the decision of the Full Bench in Patroni’s case in all cases of appointments of Headmasters in educational institutions established and administered by any minority community.
17. While matters stood thus, a learned single Judge of this Court had occasion to deal with a case of competing claims for Headmastership in a minority educational institution between two members belonging to the same Christian minority community. Sivaraman Nair, J. distinguished the decision in Patroni’s case (AIR 1965 Kerala 75) as one pertaining to its own peculiar facts in which the question, as to whether the senior teacher belonging to the same religious persuasion and the same minority community could be superseded by the management of a minority institution in favour of a junior teacher belonging to the same community, had not arisen for consideration. The learned Judge held 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 of choice for the minority management in the matter of such appointments, xxxxx Article 30(1) did not create an island of unconstitutional and arbitrary power in favour of minority managements to be used unreasonably and whimsically against members of that community who happened to be teachers. The effect of Article 30(1) is not to deprive the members of that community or teachers of institutions belonging to them of the right to equality or freedom from arbitrariness or caprice or whim of a State-aided and State-funded instrumentality. What the Constitution makers comprehended when the provisions for protecting the interests of the minority community were made could not have been the few institutional agencies to be given immunity from control so as to use that immunity even against the members of that community; but only to preserve the religion, culture and language of the minority community from authoritarian onslaughts of the majority communities. It was not meant to be an instrument of oppression to be used against that community itself.”
18. Sivaraman Nair, J. again dealt with the question of the right of a minority management to appoint a junior teacher as Headmaster, without being trammeled by the rule of seniority enjoined by Rule 44 in Fr. Francis v. District Educational Officer, (1988) 2 Ker LT 403 : (1989 Lab 1C 589). The decision in Patroni’s case, 1964 Ker LT 791 : (AIR 1965 Kerala 75) was treated as an extreme case, relating to its particular facts, where the rights of the seniormost teacher belonging to another religious persuasion was the point in issue. The learned Judge held (at P. 599, Para 32 of Lab IC):-
“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 circumstances 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 cultural 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.”
18A. It is in this background that Government issued the circular Ext. P-3 directing that Rule 44 should be complied with by all aided institutions including minority institutions.
19. The circular Ext. P-3 is challenged in these original petitions. The question that has therefore, to be considered is whether the minority educational institutions have got the right to appoint the Headmaster without reference to the rule of seniority adumbrated in Rule 44. In other words, the question is whether insistence on compliance with Rule 44 violates the fundamental right of the minority guaranteed by Article 30(1) of the Constitution.
20. We must even at the outset state that a minority is not deprived of its fundamental right under Article 30(1), as stated in the circular Ext. P-3, by reason of the educational institution, established and administered by it, receiving aid from the State; nor for the reason that secular education is imparted in the institution and not theological or religious instructions. These questions are irrelevant in the application of Article 30(1), the true import of which is provided by the key words “institutions of their choice”. The amplitude of these words regarding the nature of the educational institutions is not liable to be whittled down to institutions imparting religious instruction or those not aided by the State. The matter has been set at rest, even by the earliest of the decisions of the Supreme Court in In Re Kerala Education Bill 1957, AIR 1958 SC 956 where the Court stated (Para 23):
“The first point to note is that the article gives certain rights not only to religious minorities but also to linguistic minorities. In the next place, the right conferred on such minorities is to establish educational institutions of their choice. It does not say that minorities based on religion should establish educational institutions for teaching religion only, or that linguistic minorities should have the right to establish educational institutions for teaching their language only. What the article says and means is that the religious and the linguistic minorities should have the right to establish educational institutions of their choice. There is no limitation placed on the subjects to be taught in such educational institutions. As such minorities will ordinarily desire that their children should be brought up properly and efficiently and be eligible for higher university education and go out in the world fully equipped with such intellectual attainments as will make them fit for entering the public services, educational institutions of their choice will necessarily include institutions imparting general secular education also. In other words, the article leaves it to their choice to establish such educational institutions as will serve both purposes, namely, the purpose of conserving their religion, language or culture, and also the purpose of giving a thorough, good general education to their children. The next thing to note is that the article, in terms, gives all minorities, whether based on religion or language, two rights, namely, the right to, establish and the right to administer educational institutions of their choice. The key to the understanding of the true meaning and implication of the article under consideration are the words “of their own choice”. It is said that the dominant word is “choice” and the content of that article is as wide as the choice of the particular minority community may make it. The ambit of the rights conferred by Article 30(1) has, therefore, to be determined on a consideration of the matter from the points of view of the educational institutions themselves. The educational institutions established or administered by the minorities or to be so established or administered by them in exercise of the rights conferred by that Article may be classified into three categories, namely, (1) those which do not seek either aid or recognition from the State, (2) those which want aid, and (3) those which want only recognition but not aid.”
The Supreme Court later affirmed in The Ahmedabad St. Xaviers College v. State of Gujarat, AIR 1974 SC 1389 that, since the Kerala Education Bill Case (supra), the Court had consistently held that general secular education is covered by Article 30 (vide paragraph 6). The circular Ext. P-3, in so far as it proceeds to state that the right under Article 30(1) is not available to minority institutions aided by the State or imparting secular form of education is unsustainable on the face of it.
21. The fundamental right guaranteed by Article 30(1) has a two fold aspect. The minority has a right to establish any educational institution of its choice. It has also the right to administer such an educational institution. The contention before us is that by insisting on appointing the seniormost teacher as the Headmaster, the fundamental right of the minority to administer an educational institution of its choice is violated.
22. In the decision in In re Kerala Education, AIR 1958 SC 956, the Supreme Court observed (at Pp. 982-83):
“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 teachers 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.”
In Sidhrajbhai Sabhai v. State of Bombay, AIR 1963 SC 540, the Court mentioned the type of regulations that could be imposed by the State without offending Article 30(1) (at
P. 545):
“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.”
In State of Kerala v. Mother Provincial, AIR 1970 SC 2079, the Court expressed the opinion that “to a certain extent the State may also regulate the conditions of employment of teachers and the health and hygiene of students.” This was affirmed again in St. Xaviers College, AIR 1974 SC 1389 with the observation that “in the right of administration, checks and balances are required to ensure the appointment of good teachers and their conditions of service”. It is not necessary to multiply authorities. The Supreme Court has repeatedly recognised the liability of the minority institutions to be regulated by the State in the matter of education, educational standards and allied matters.
23. The entire matter was reviewed recently in All Bihar Christian Schools Association v. State of Bihar, AIR 1988 SC 305, where the Court summarised the scope of the regulatory power on the right of administration of the minority in these words (Para 9):
“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 institutions; is administered efficiently, and that students who come out of minority institution 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 institutions, 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.
xxxx
These conditions may require a minority institution to follow prescribed syllabus for examination, courses of study, they may further regulate conditions of employment of teachers, discipline of students and allied matters,”
24. What then is the content of the minority’s right to administer educational institutions of its choice vis-a-vis appointment of teachers? The Supreme Court dealt with this question in State of Kerala v. Mother Provincial, AIR 1970 SC 2079, in these words (Para 9):
“The next part of the right relates to the administration of such institutions. Administration means ‘management of the affairs’ of the institution. This management must be free of control so that the founders or their nominees can mould the institution as they think fit, and in accordance with their ideas of how the interests of the community in general and the institution in particular will be best served. No part of this management can be taken away and vested in another body without an encroachment upon the guaranteed right.”
Ray, C.J. dealt with the matter with the following observations in The Ahmedabad St. Xaviers College v. State of Gujarat, AIR 1974 SC 1389 (Para 41):
“Autonomy in administration means right to administer effectively and to manage and conduct the affairs of the institutions. The distinction is between a restriction on the right of administration and a regulation prescribing the manner of administration. The right of administration is day to day administration. The choice in the personnel of management is a part of the administration.”
Khanna, J. had this to say in his judgment in the very same case. (Para 103):
“Another conclusion which follows from what has been discussed above is that a law which interferes with a minority’s choice of qualified teachers or its disciplinary control over teachers and other members of the staff of the institution is void as being violative of Article 30(1). It is, of course, permissible for the State and its educational authorities to prescribe the qualifications of teachers, but once the teachers possessing the requisite qualifications are selected by the minorities for their educational institutions, the State would have no right to veto the selection of those teachers. The selection and appointment of teachers for and educational institution is one of the essential ingredients of the right to manage an educational institution and the minorities can plainly be not denied such right of selection and appointment without infringing Article 30(1).”
It is evident from the above that while regulations calculated to improve education, educational standards and allied matters are permissible, any denial of the right of selection and appointment of teachers will be an infringement of Article 30(1). According to Ray, C.J. the choice in the personnel of management is apart of administration of the institution.
25. Rule 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 Article 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.
26. Rule 44 attracted the attention of this Court, as mentioned earlier, as early as in the year 1964 in Patroni’s case, 1964 Ker LT 79 : (AIR 1965 Ker 75), where M. Section Menon, C.J. speaking for the Full Bench, vividly portrayed the post of the Headmaster as of pivotal importance in the life of a school, around whom wheels the tone and temper of the institution and on whom depends the continuity of its traditions, the maintenance of discipline and the efficiency of its teaching. The learned Chief Justice went on to state that the right to choose the Headmaster is perhaps the most important facet of the right to administer a school, and the imposition of any trammel thereon, except to the extent of prescribing the requisite qualifications and experience, cannot but be considered as violation of the right guaranteed by Article 30(1) of the Constitution. To hold otherwise will be to make the right a teasing illusion, a promise of unreality.
27. These observations were approved, and adapted, to the post of Principal in a College by another Full Bench of this Court in Mother Provincial v. State of Kerala, 1969 Ker LT 749 : (AIR 1970 Ker 196). The Bench was considering the validity of various provisions of the Kerala University Act, 1969. Section 53 of the Act imposed certain fetters on the management in the matter of selection and appointment of Principals in Colleges, which were alleged to be violative of the rights of the minority under Article 30(1). Section 53 in fact compelled the management to appoint only a teacher of the college as the Principal, unless all the teachers were unsuitable. It was in this context that Raman Nayar, C.J. speaking for the Full Bench observed (at Pp. 212-13 of AIR):
“The same cannot, however, be said about Sub-sections (1), (2) and (3) of Section 53 which provide for appointment to the post of the principal of a college. The principal of a college is, as Section 2(12) recognises, the head of the college, and (adopting the words used in A. M. Patroni v. E. C. Kesavan, AIR 1965 Ker 75 with reference to the post of the headmaster of a school) the post of the principal is of pivotal importance in the life of a college; 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; and the right to choose the principal is perhaps the most important facet of the right to administer a college. The imposition of any trammel thereon — except to the extent of prescribing the requisite qualifications and experience or otherwise fostering the interests of the institution itself — cannot but be considered as a violation of the right guaranteed by Article 30(1) of the Constitution, and, for the reasons we have already given, by Article 19(1)(f) as well. To hold otherwise would be to make the rights “a teasing illusion, a promise of unreality”. Provision may, of course, be made to ensure that only proper persons are appointed to the post of principal; the qualifications necessary may be prescribed, and the mode of selection for the purpose of securing the best men may be laid down. But to go beyond that and place any further fetter on the choice would be an unreasonable interference with the right of management. Therefore, so far as the post of principal is concerned, we think it should be left to the management to secure the services of the best person available. This, it seems to us, is of paramount importance, and the prospects of advancement of the staff must yield to it. The management must have as wide a field of choice as possible; yet Sub-section (2) of Section 53 restricts the choice to the teachers of the college or of all the colleges, as the case may be, and enables the appointment of an outsider only if there is no suitable person in such college of colleges. That might well have the result of condemning the post to a level of dull mediocrity. A provision by which an outsider is to be appointed, or a junior member or the staff preferred to a senior member, only if he is of superior merit, the assessment of which must largely be left to the management, is understandable; but a provision which compels the management to appoint only a teacher of the college (or colleges) unless it pronounces all the teachers unsuitable, is clearly in derogation of the powers of the management, and not calculated to further the interest of the institution.”
The offending clauses of Section 53 were thus struck down.
28. This decision was affirmed by the Supreme Court in State of Kerala v. Mother Provincial, AIR 1970 SC 2079. The Court dealt with Section 53 in paragraph 16 of its judgment.
29. The Supreme Court had also occasion to echo the words of M.S. Menon, C.J. in Patroni’s case, 1964 Ker IT 791 : (AIR 1965 Ker 75) on more than one occasion. Mathew, J. apparently drew inspiration from M.S. Menon, C.J. when he stated thus in St. Xaviers College, AIR 1974 SC 1389 (Para 183).:
“It is upon the principal and teachers of a college that the tone and temper of an educational institution depend. On them would depend its reputation, the maintenance of discipline and its efficiency in teaching. The right to choose the principal and to have the teaching conducted by teachers appointed by the management after an overall assessment of their outlook and philosophy is perhaps the most important facet of the right to administer an educational institution.”
Krishna Iyer, J. admiringly referred to these observations of Mathew, J. in his judgment in Gandhi Faiz-e-am College, Shahjahanpur v. University of Agra, AIR 1975 SC 1821 and supplemented them in his own words as follows (Para 20):
“This strategic appointee must be chosen by the management with sedulous care and his choice should not be ‘externalised’ by regulations. All right. But for the excellent reason that the principal is the vital, vibrant and luscent presence within the educational campus, no administration can bring out its best in the service of the institution sans the principal. To alienate him is to self-inflict wounds; to associate him is to intergrate the academic head into the administrative body for the obvious betterment of managerial insight and proficiency. He is no stranger to the college but the commander appointed by the management itself.”
The pivotal importance of the Headmaster or the Principal in the life of.an institution has thus been reiterated in more than one decision, by two Full Benches of this Court and again by the Supreme Court. The decision in Patroni’s case, 1964 KLT 791 held that any trammel on the right of a minority to appoint the Headmaster, otherwise than by way of prescription of qualifications and experience, will be hit by Article 30(1). To the same effect is the decision in Mother Provincial, 1969 Ker LT 749 : (AIR 1970 Ker 196). Patroni’s case, 1964 Ker LT 791 : (AIR 1965 Ker 75) was referred to by Dwivedi, J. in his judgment in St. Xaviers College, AIR 1974 SC 1389 (vide paragraph 283). The learned Judge has not expressed disapproval of any of the propositions laid down in that decision.
30. We are bound by the decisions of the respective Full Benches in the cases of Patroni’s 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 its 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.
31. Sivaraman Nair, J. has in the two decisions in Joseph, 1985 Ker LT 946 and Fr. Francis, (1988) 2 Ker LT 403 : (1989 Lab IC 589) proceeded on the basis that Rule 44 is regulatory. The learned Judge has chosen to distinguish the Full Bench decision in Patroni’s case (AIR 1965 Ker 75) as one justified by its facts, as an extreme case where the senior teacher claiming the right to appointment as Headmaster belonged to another religious denomination. The learned Judge also held that excellence of educational standards and exemplary image of the institutions largely depended upon the teachers who are reasonably well provided for, are contended and can look forward to reasonable prospects for advancement in service. Such regulations can only subserve the cause of education and cannot invade the right of the minority.
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 does away with that right as was held by the Full Benches in Patroni’s (AIR 1965 Ker 75) and Mother Provincial (AIR 1970 Ker 196), 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 Article 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 Ker LT 749 : (AIR 1970 Ker 196).
33. Necessarily, there will be contentment in teachers with a chance of promotion as Headmaster. But a teacher entering service in a minority institution knows full well, having regard to the decision in Patroni’s case, that he does not ordinarily have the right to be posted as Headmaster and that it will depend on the selection made by the management. Contentment in service in a minority educational institution is not therefore, affected by leaving the choice of Headmaster to the educational agency. In any case, such considerations are out of place in view of the definite opinion rendered by the Full Bench in Patroni’s case regarding the rights of the minority in appointing a Headmaster.
34. We are well aware that it will be a travesty of justice that senior teachers should get the treatment of outcastes from the managements of minority institutions even in the twilight years of the twentieth century. But we have to remind ourselves, as did Krishna Iyer, J. in Gandhi Faiz-e-am College, AIR 1975 SC 1821 of two observations, one of Chief Justice Marshall in Mc. Cullosh v. Maryland (1816-19) 4 Wheat 316 at p. 407 that “we must never forget that it is the constitution we are expounding” and the other of Governor Hughes, (later, Judge of the United States Supreme Court, that we are under a constitution but the Constitution is what the Judges say it is, “When the Judges have spoken on this point about the role of the Headmaster/Principal at various points, we are not in a position to depart therefrom at this distance of time.
35. In the light of the above discussion, we hold that the decisions in Joseph v. State of Kerala, 1985 Ker LT 946 and Fr. Francis v. District Educational Officer, (1988) 2 Ker LT 403 : (1989 Lab IC 589), in so far as they hold that managements of minority educational institutions are bound “ordinarily” to appoint the seniormost teacher as Headmaster as enjoined in Rule 44 of ChapterXIV(A) of the Rules are not correctly decided. The circular Ext. P3 also is invalid in so far as it directs that institutions imparting secular education or receiving aid from the State cannot claim minority status and that they have to comply with Rule 44 while appointing Headmasters.
, 36. At the same time, any choice of Headmaster, even by the minority, has to satisfy the requirements of qualifications and experience as also the essential qualities necessary for making a good Headmaster. It will always be open to the educational authorities to consider whether the appointee of the minority educational agency is one qualified, competent or experienced to be a Headmaster. Power is vested in the educational authorities, on these limited grounds, to refuse approval to any appointment of Headmaster made by the minority educational agency. All that we hold is that Rule 44 does not operate in full force against a minority educational agency, to insist that in the absence of extraordinary circumstances, the seniormost teacher should be appointed as the Headmaster.
37. The various orders impugned in the original petitions have been passed refusing to approve the appointments of Headmasters by the minority educational agencies for the reason that they have been made in violation of Rule 44. All these orders are therefore liable to be quashed and the concerned Educational Officers have to consider the question of approval afresh in the light of the observations contained in this judgment.
38. The original petitions are therefore, allowed in the manner indicated below. The circular dated April 17, 1989 issued by 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 Stale are not entitled to claim minority right under Article 30(1) of the Constituion and in so far as it directs insistence of compliance with Rule 44 of Chapter XIV(A) of the Kerala Education Rules by managements of minority educational institutions. Exts. P4 to P13 in O.P. No. 5477 of 1989, Exts. P3 to P7 in O.P. No. 5710 of 1989, Exts. P3 to P7 in O.P. No. 6821 of 1989, Exts. P4 and P5 in O.P. No. 4668 of 1989, Exts. P3 to P7 in O.P. No. 7944 of 1989 and Ext. P4 in O.P. No. 7617 of 1989 are quashed. The concerned Educational Officers are directed to reconsider the question of approval of the Headmaster in question without reference to R.44 of Chapter XIV(A) of the Kerala Education Rules, in the light of the observations contained in paragraph 36 of this judgment. O.P. No. 4795 of 1989 is dismissed. There will be no order for costs.