Minority institutions possess the right to appoint staff, but this right is regulated by state laws to ensure fairness, particularly regarding seniority.

JUDGMENT

Petitioner is aggrieved by the refusal to appoint her as HM as against vacancies which arose on 31.3.2005 under the third respondent Educational Agency. Petitioner challenges Exts.P1, P2 and P6. They are orders of the Educational Authorities speaking in one voice, disapproving her challenge to the decision of the Management to appoint another teacher, no doubt, junior to the petitioner as HM.

2. I heard Shri N.P. Samuel, learned counsel appearing for the petitioner, Shri K.B. Gangesh, learned counsel appearing on behalf of the fourth respondent, besides the learned Government Pleader. It is submitted by the learned counsel for fourth respondent that it is invoking the right under Article 30 of the Constitution that the third respondent has appointed a teacher who is a Nun and who is junior to the petitioner. Counsel for petitioner raised two contentions. He would submit that the WP(C) NO.27513/06 A 2 right available to a minority institution under is not an absolute right. The second contention he has raised is that , at any rate, cannot be used to defeat the rights of a member of the same community, when it comes to the appointment of HM. Learned counsel took me through various decisions. He also raised another contention that the right cannot be claimed by a minority institution to appoint a junior person when the institution is receiving aid from the Government. He relied on various decisions:

1) State of Kerala, etc. v. Very Rev. Mother Provincial, etc. ( AIR 1970 SC 2079 ). Therein, the Apex Court held as follows:

“7. The claim of the majority community institutions to equality with minority communities in the matter of the establishment and administration of their institutions leads to the consideration whether the equality clause can at all give protection, when the Constitution itself classifies the minority communities into a separate entity for special protection which is WP(C) NO.27513/06 A 3 denied to the majority community. This is not a case of giving some benefits to minority communities which in reason must also go to the majority community institutions but a special kind of protection for which the Constitution singles out the minority communities. This question, however, does not fall within our purview as the State, at the hearing announced that it was not intended to enforce the provisions of the law relating to administration against the majority institutions only, if they could not be enforced against the minority institutions. Therefore, we have to consider the disputed provisions primarily under Art. 30(1) and secondarily under Articles 31 and 19 where applicable.

8. Article 30 (1) has been construed before by this Court. Without referring to those cases, it is sufficient to say that the clause contemplates two rights which are separated in point of time. The first right is the initial right to establish institutions of the minority's choice. Establishment here means the bringing into WP(C) NO.27513/06 A 4 being of an institution and it must be by a minority community. It matters not if a single philanthropic individual with his own means, founds the institution or the community at large contributes the funds. The position in law is the same and the intention in either case must be to found an institution for the benefit of a minority community by a member of that community. It is equally irrelevant that in addition to the minority community others from other minority communities or even from the majority community can take advantage of these institutions. Such other communities bring in income and they do not have to be turned away to enjoy the protection.

9. The next part of the right relates to the administration of such institutions. Administration means management of the affairs of the institution. This management must be free of control so that the founders or their nominees can mould the institution as they think fit, and in accordance with their ideas of how the interests of the com