Government G.O. if ultra vires Article 30!(1) in its application to minority institution.

Nainar Sundaram, J.

This writ appeal is directed against the order of the learned Judge in W.P.No.1628 of 1990. The petitioner in the writ petition is the appellant herein respondents in the writ petition are the respondents herein. Convenience suggests to us writ petition while dealing with the controversy in the writ appeal. The petitioner is working as a B.T. Assistant, is the fourth respondent school. The post of the headmaster at the fourth respondent-school fell vacant on 31.5.1988, on account of the retirement of the previous incumbent. So far as the qualification of the petitioner to the post is concerned, the petitioner is qualified. The petitioner claims that the post of the headmaster should be filled up as G.O.Ms.No.1297, Education Department, dated 21.7.1979. The foundation for this claim the petitioner is referable to Clause 2(b)(i), which lays down that the vacancies in the of headmasters of middle schools due to death, retirement, resignation, etc. shall be filled by the senior-most among persons working as Secondary Grade Teachers or in other cadres of trained teachers, but qualified for B.Ed. Tamil Pandit. According to the petitioner, he being the senior-most teacher should be preferred. He came to this Court by way of the petition asking for a writ of mandamus to appoint the petitioner as headmaster of the fourth respondent school pursuant to G.O.Ms.No.1297. The move of the petitioner was counter acted by respondents 3 and 4 and the main question that cropped up for consideration the contentions raised by the parties, centered around the enforcibility of clause 2(b)(i) G.O.Ms.No.1297, so far as the fourth-respondent school is concerned. That the fourth respondent school is a minority school is not in dispute. It was argued before the learned single Judge on behalf of the petitioner that Sec.19 of the Tamil Nadu Recognised Private Schools (Regulations) Act, 1973, hereinafter referred to as the Act, enabling the Government to make rules regulating the number, qualifications and conditions of service (including promotion, pay, allowances, leave, pension, provident fund, insurance and age of retirement and rights as respects disciplinary matters) of the teachers and other persons employed any private school, should govern minority schools also and under Sec.14 of the directions also could be given, and viewed from either of the angles, G.O.Ms.No.1297, has be implemented and the fourth respondent school cannot demur over the implementation the same. On behalf of respondents 3 and 4, it was contended that G.O.Ms.No.1297, would amount to infringement of the minority rights guaranteed under Art.30(1) of the Constitution of India, and hence has got to be ignored and the fourth-respondent school must have a hand with reference to the choice of the headmasters. On behalf of respondents 3 and 4, pronouncement of Srinivasan, J. in Ethiraf v. State of Tamil Nadu, (1990)1 M.L.J. 284, well as the earlier pronouncement of Ramanujam, J. in The Meston Training College Association, Madras v. Joint Director of School Education, Madras and others, W.P.No.5186 1981, Order dated 16.11.1982, were pressed into service. It must be noted that Srinivasan, J. in Ethiraj v. State of Tamil Nadu, (1990)1 M.L.J. 284, has followed the ratio Ramanujam, J.) in The Meston Training College Association, Madras v. Joint Director School Education, Madras and others, W.P.No.5186 of 1981, Order dated 16.11.1982. petitioner placed reliance on the pronouncement of a learned single Judge of the High Court of Kerala in Fr.Francis Fernandez v. District Educational Officer, Ernakulam and others, (1989)3 S.L.J. 15, where there was a challenge of an order of the State Government directing the appointment of Senior-most teacher as headmaster as violative of fundamental right under Art.30(1) of the Constitution of India. The learned single Judge of the High Court of Kerala repelled the challenge and held that the right minority managements in the cho