The right to establish a minority institution under Art.30(1) includes cases where a single individual founds the institution, and the establishment by an individual does not negate minority status.

1. The appellant No.1 is a school which claims the right to establish and administer its affairs as a minority institution under Art.30(1) of the Constitution of India. The claim was turned down by the Kerala High Court on an application filed under Art.226 by the respondents Nos. 5 and 6 in which they challenged the appointment of the appellant No. 2 as the Headmaster of the school.

2. The school was initially set up in 1964 by one P.J. Thomas. In 1980, it was bought by the then Archbishop of Thiruvananthapuram, of the Malankara Syrian Christians. According to the appellants, P.J. Thomas was a Christian and from 1964 the school has been administered for the benefit of the Christian community. The Government of Kerala has recognised the School as a minority institution and allowed it to enjoy the special rights available to minority institutions under Art.30.

3. In 1988, there was a vacancy for the post of headmaster in the school. The appellant and the respondents 5 and 6 were all teachers in the school, the respondents 5 and 6 being senior to the second appellant. Under R.44, Chapter XIV-A of the Kerala Education Rules, 1959 the appointment of the Headmaster is required to be made according to seniority. However, relying on its status as a minority institution and its right to manage its own affairs, the school appointed the second appellant as its Headmaster. The Government provisionally approved the appointment. The respondent No. 5 challenged the approval by way of a statutory appeal before Education Department of the State Government. By an order dated 18th March, 1981, the appeal was rejected on the ground that the school was a minority institution and "the right of the management to exercise absolute discretion to choose qualified hands of their choice to be the head of the institution has, time and again, been established through verdicts of courts on law. The Government have also acknowledged this right in giving approval of such appointments.

4. The respondent Nos. 5 and 6 then challenged this decision under Art.226 before the Kerala High Court on the ground that the school was not a minority institution and could not act contrary to R.44 of Chapter XIV-A of the Kerala Education Rules. The learned single judge allowed the Writ application and the appellate court dismissed the appellants' appeal. Both the courts held on the evidence that the appellants had been unable to substantiate that the school was a minority institution within the meaning of Art.30(1). Their reasoning was based primarily on the fact that the school had not been established by the minority community but by an individual and, therefore, it could not rely on Art.30 to avoid compliance with the statutory provisions generally applicable to all schools.

5. The question before us is whether the High Court was correct in taking the decision it did. Under Art.30(1), all minorities whether based on religion or language, have been guaranteed the right to establish and administer educational institutions of their choice. It is not in dispute that Christians form a minority in this country. The right of minorities under Art.30(1) to establish and administer educational institutions has been judicially construed as defining minority institutions. What is expressed in terms of a right under Art.30(1) in fact describes the institution in respect of which the protection of Art.30(1) can be claimed. It has, therefore, been held that unless the educational institution has been established by a minority, it cannot claim the right to administer it under Art.30(1) Azeer Basha v. Union (1968 (1) SCR 833). Thus the critical issue is, was the school established by a minority. The issue has to an extent become academic as both respondents 5 and 6 have since retired and we are given to understand that they have been paid the salary of a Headmaster for the period they would have served had the decision of the High Court been given effect to. However, the issue is