Radhakrishnan, J.

Will the benefit of Article 30 (1) of the Constitution of India be available to a single philanthropic individual if he being a member of the minority community has established and maintained an Institution?

2. The apex court in State of Kerala vs. V.R.M. Provincial (1970) (2) SCC 417) while considering the scope of Article 30(1) held that the right to establish an institution would include a case where “a single philanthropic individual with his own means, founds the institution”. The said view was followed by the apex court in St. Thomas U.P. School Vs. Commissioner and Secretary to Government (2002 (1) KLT 655).

3. Learned single judge of this court in Unaided Recognised Schools Parents Association Vs. State of Kerala (2002 (2) KLJ 54) held that only a corporate body can manage a minority institution and not an individual and the individual would not get the benefit of Article 30(1) of the Constitution is, in our view, not the correct enunciation of law. Learned Single judge has reiterated the same view and held in the judgment under appeal as follows:

“It is now well settled position that to be entitled to the rights and privileges under Article 30(i) of the Constitution of India, an educational institution shall be established and administered by a religious or linguistic minority group..………

Even if he was proved to be a philanthropist, establishment of a school by an individual cannot cloth the institution the character of one established by a community or a group of people of the community.”

Going by the decision of the apex court in St. Thomas U.P. School’s case, supra (2002 (1) KLT 655 (SC) the above is not the correct interpretation of Article 30(1) of the Constitution. In such circumstances, we are inclined to overrule the above reasoning of the learned single Judge in Unaided Recognised Schools Parents Association’s case, supra (2000 (2) KLJ 54) as well as in the judgment under appeal. We are of the view, on the question of law we are not in agreement with the learned single judge, but on facts we agree.

4. The dispute centers round the question of promotion to the post of headmaster of a school. Manager promoted one Abraham as headmaster and posted in a leave vacancy which arose from 6.1.1998 to 30.4.1998 and in the retirement vacancy from 1.6.1998. One Sudharma, fifth respondent in the writ petition, claimed the said post. Director of public instruction as well as the Assistant Educational Officer found that Sudharma has preferential claim as per Rule 45 of Chapter XIV A of the K.E.R. since she had degree with B.Ed qualification and has passed Account Test and has the necessary service for promotion over the undergraduate teacher Abraham. Later Abraham retired on 31.3.1999 and the Manager without implementing the order of the Director of Public Instruction appointed another undergraduate teacher Arifa as headmistress. Sudharma again moved the Director of Public Instruction and Assistant Education Officer to implement and Assistant Educational Officer to implement their earlier orders.

5. Areefa then approached this court for a direction to the Government to consider his petition dated 15.3.2000. The learned single Judge rejected the request, but in W.A. No.1263 of 2000 the Division Bench of this court directed the Government to consider the revision petition. Sudharma also filed O.P.No.31196 of 1999 for promoting her to the post of Headmistress. This court disposed of the original petition with a direction to consider her request also. Claims of both the parties were considered by the Government and the Government passed order dated 18.12.2000 upholding the claim of Sudharma. Claim raised by the management under Article 30 (1) of the Constitution was negatived against which Manager filed the present writ petition. Sudharma filed O.P.No.6832 of 2001 to implement the government order dated 18.12.2000. Both the writ petitioners were heard together on 25.5.2001. The claim for promotion of Sudhar