Ramachandran, J.

Government Order dated 17-2-2004 and the follow up order passed by the Government, on an application for review thereof, dated 31-7-2004, marked as Exts.P-3 and P-6 in W.P.(C).No.25418 of 2004 are respectively marked as Exts.P-8 and P-10 in W.P.(C).No.26399 of 2004. Mr. P.V. Varkey, a teacher working in the Sacred Heart Orphanage High School, Mookkannur, is the petitioner in the earlier writ petition. The school management is the 5th respondent therein. The Manager is the petitioner in the later proceedings, wherein Mr. P.V. Varkey is the 5th respondent. Taking notice of the circumstance that an interim order had been passed in the writ petition filed by the management, there was urgency shown by the teacher concerned to get the writ petitions disposed of. The effort of the teacher was to see that the orders, referred to earlier, were implemented and the attempt of the school management was to establish that such orders had been passed in violation of law, and deserve to be set aside. We may advert to the facts, as stated in W.P.(C).No.26399 of 2004, with reference to the documents produced, for convenience.

2. In both the writ petitions, the 4th respondent is one C.A. Varghese, whose appointment as Headmaster of the High School, led to the contested proceedings.

3. According to the school management, Sacred Heart Orphanage High School is administered by the Christian Religious Congregation of St. Teresa of Lisieux (CST Brothers), Mukkannur. They claim that the congregation was founded in the year 1931. The school was established and administered by the minority Christian Community. It is an aided school, as defined under the Act, meaning a private school which is recognised by and is receiving aid from the Government.

4. The Headmaster of the school had gone on retirement on 17-2-2003. By proceedings dated 17-2-2003, the Manager of the School had appointed Mr. C.A. Varghese (fourth respondent) a High School Assistant, as Headmaster. The appointment order (Ext.P-7) showed that this was subject to the provisions of the Kerala Education Act and Rules. Although the order certified that there is no qualified teacher existing in service under the Educational Agency, who is eligible for promotion to the vacancy for which the appointment was made, understandably this was only a formal recital in conformity with Form 27 of Rule XIV A (7). Additionally, as if justifying the proceedings, the following sentence also had been recorded therein.

"This appointment is made invoking the right of the management under Article 30(1) of the Constitution of India."

It appears that as required by the Rules, a copy of the order had been forwarded to the District Educational Officer for approval of such appointment. On the very day of the order, Sri. P.V. Varkey (Petitioner in the connected writ petition), a senior High School Assistant of the school, had filed an appeal under Rule 44(2) of Chapter XIV A of the Kerala Education Rules against the appointment of Mr. Varghese as Headmaster. He contended that he had entered into service as High School Assistant from 15-7-1975 and was senior to Mr. C.A. Varghese. He had been exempted from test qualifications and therefore, was eligible for appointment as Headmaster, as he possessed the prescribed qualifications. With reference to Rule 44(1) of Chapter XIV A of the K.E.R., he urged that the appointment of Headmaster shall ordinarily be according to seniority from the seniority list prepared and maintained as per the Rules. He was senior as per the staff list prepared and there was no reason for departure from the normal rule. It was his right for being appointed. The invocation of minority rights under Article 30(1) of the Constitution was therefore irregular. He submitted that the school had never been declared as a minority institution and the competent authority for such declaration was the Government alone. He therefore urged that the appointment conferred on Mr. Varghese should n