The appointment of the headmaster in violation of the seniority rule constituted a violation of the right guaranteed under Art.30(1) of the Constitution, and the elasticity of R.44 in accommodating 'extraordinary' circumstances was emphasized.

1. This is a petition by the Bishop of Calicut and the Provincial of the Jesuit Province of Kerala. It invokes Art.226 of the Constitution and challenges the validity of Ext. P7, an order of the Director of Public Instruction, Trivandrum, dated the 1st May 1963.

2. The order allowed an appeal by the first respondent, a teacher in the St. Joseph's Boys High School, Calicut, under R.44 in Part A. of Chapter XIV of the Kerala Education Rules, 1959. That Part deals with the conditions of service of aided school teachers; and R.44 provides that the appointment of headmasters by the managers of aided schools "shall ordinarily be according to seniority", and that a teacher aggrieved by an appointment has a right of appeal to the Education Department of the State.

3. In Writ Appeal No. 43 of 1962(1963 K. L T 368) this Court hold-affirming the decision in O. P. No. 329 of 1962 that in the absence of any indication in the Rules as to which officer of the Education Department should hear and dispose of the appeals under R.44, the officer competent to deal with such appeals should be considered to be the Head of the Department, that is, the Director of Public Instruction, Trivandrum. It is in pursuance of that decision that the Director of Public Instruction heard the appeal of the first respondent and allowed it by Ext. P-7 dated the 1st May 1963.

4. Both the first respondent and the fourth respondent were teachers in the St. Joseph's Boys' High School, Calicut. The Manager appointed the fourth respondent, a member of the Society of Jesus, as the headmaster of the school in preference to the first respondent who was senior to him in the service of the school. The Director of Public Instruction came to the conclusion that there was no justification for departing from the ordinary rule of appointment of headmasters according to seniority and directed by Ext. P-7 that the first respondent, and not the fourth respondent, should be the headmaster of the school.

5. According to the Director of Public Instruction the word "ordinarily" in R.44 was inserted only to enable the appointment of "a qualified hand from outside, if there is none to be promoted." This is clearly wrong. All that the rule stipulates is that when other things are equal seniority shall prevail.

6. The contention of the petitioners is that they have an exclusive right to administer the institution under Art.30 (1) of the Constitution and that the order of the Director of Public Instruction constitutes a violation of that right. Clause (1) of Art.30 provides that all minorities, whether based on religion or language, shall have the right to establish & administer educational institutions of their choice; and clause (2) that the State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language. The word "minority" is not defined in the Constitution; and in the absence of any special definition we must hold that any community, religious or linguistic, which is numerically less than fifty per cent, of the population of the State is entitled to the fundamental right guaranteed by the article.

7. The Christians, at the 1961 census, amounted only to 21.22 per cent, of the population of the State. The Roman Catholics with whom we are concerned form a section of that community.

8. The St. Joseph's Boys' High School, Calicut, has always been a Catholic School. A brief history of the school is available in Ext. P-12. The following paragraphs are extracts from that publication:

"The history of St. Joseph's Boys' High School, the school so dear to all Josephites of Calicut, dates back to the late seventies and early eighties of the last century. This school which had hitherto been catering to the educational needs of the Anglo-Indian community only, had from June 1936 taken the momentous step towards Indianization in view of bringing the benef