Bali, C.J.

Whether the right of the management of a religious minority educational institution to choose a qualified person as Headmaster of the School would come within the protective cover of Article 30 (1) of the Constitution of India and if so, can it be regulated through a legislative act or an executive rule is the question that requires adjudication by a Full Bench on a reference made by a learned Single Judge in W.P.(C) No.37646 of 2003 and a Division Bench in W.A.No.12 of 2006, noting an apparent conflict between two Division Bench decisions of this Court in Varkey v. State of Kerala (2005 (2) K.L.T. 468) and Annie Francis v. D.E.O., Aluva (2005 (3) K.L.T. 238). Whereas, a Division Bench in Varkey's case (supra) held that unbridled power cannot be given to every minority institution in the matter of selection of Headmaster overlooking the claims of the other eligible teachers, the other Division Bench in Annie Francis's case (supra) held that management of a minority educational institution has got every right to appoint a qualified teacher of its choice to head, the institution without strictly looking into seniority and other aspects.

2. In the context of the question as framed above, it may not be necessary to indicate all the facts. Suffice it however, to mention that in W. P. (C) 37646 of 2003 Kurian Lizy and two others claim to be senior most High School Assistants in Infant Jesus High School, Vadayar, Kottayam District. It is their case that deviating from the statutory mandate contained to Rule 44 (1) of Chapter XIV A of the Kerala Education Rules, 1959, hereinafter referred to as 'Rules of 1959', respondents have appointed Sri Thomas Joseph, 5th respondent arrayed to the original lis, as Headmaster of the School. The District Educational Officer, the 3rd respondent herein, approved the appointment of the 5th respondent overruling the objections of the petitioners based on Rule 44 (1) of the Rules of 1959 and also the decision of this Court in Manager, Mar Sleeba U.P.S. v. State of Kerala (1990 (1) K.L.T. 626). The 3rd respondent thereafter granted approval to the appointment of 5th respondent by observing that 4th respondent has deviated from the Rules in exercise of the privilege enjoyed by the respondent-institution under Article 30 (1) of the Constitution of India as a matter of discretion. It is the case of petitioners that at no point of time the minority status of the school was established and there was no declaration by the Government that the school is a minority institution. Petitioners also belong to the Church which owns the school and there cannot be any discrimination amongst the members of the minority community, even if the minority status is accepted. The issue to be decided is whether the school of the 4th respondent is a minority institution with privilege of Article 30 (1) of the Constitution in the matter of appointment of Headmaster deviating from the statutory mandates contained in Rule 44 (1) of Chapter XIVA of the Rules of 1959. Surely, as to whether the 4th respondent­ school is run by a minority community and such status has been declared by the Government or not would be taken care of by the forum concerned. The Full Bench is concerned with the right of management of an educational institution run by a religious minority community to appoint a Headmaster of its choice or that such right is subject to Rule 44 (1) of the Rules of 1959. Learned Single Bench when the matter came up for hearing, vide order dated 5th October, 2005 noting an apparent conflict between two Division Bench decisions of this Court as mentioned above and taking into consideration another decision of this Court in Dr. Varghese Mathunny v. State of Kerala and others (2003 (3) I.L.R. Ker. 346) and two decisions of the Honourable Supreme Court in Brahma Samaj Education Society and others v. State of West Bengal and others (A.I.R. 2004 S.C.W. 3189) and Sulochana Devi v. Sujatha (2004 (3) K.L.T. (S.N.) 87)