Anoop R vs Surabhi S.L.

Preeta A.K., J.

The appellants herein are respondents 7 and 8 in W.P.(C) Nos.28545 of 2022 and 28873 of 2022. The writ petitions were filed by the 1st respondent in the respective writ appeals challenging Ext.P10 order in W.P.(C)No.28545 of 2022 and W.P.(C)No.28873 of 2022 passed by the 7th respondent whereby a caste certificate issued to the 1st respondent was cancelled. The brief facts leading to the filing of these writ appeals is as follows:

The 6th respondent in the Writ Appeal had embarked on a recruitment process to the post of Assistant Surgeon/Casualty Medical Officer(II) in the special drive recruitment for NCA–Hindu Nadar. Having participated in the Selection Process, the 1st respondent in the respective appeals secured 10th and 14th ranks in Ext.P1 Rank list. The validity of the list was 3 years from 23.05.2019. The appellants herein secured rank nos.19 and 22 respectively. The 1st respondent was advised to the post on 08.07.2019.

The appellants and respondents 8 and 9 (whose name finds a place in Ext.P1 at Sl. Nos.19, 21, 18 and 23) filed a complaint before the Chief Secretary to the Government of Kerala, alleging that appointments were being made from Ext.P1 ranked list based on false caste certificate issued by the statutory authorities. Alleging inaction on the said complaint, the appellants had approached this Court in W.P.(C) No.7875 of 2022 and vide Ext.P9 judgment, this Court directed the 3rd respondent, Additional Chief Secretary to Government, to consider the complaint and pass orders thereon. In compliance with the judgment, Ext.P10 order was passed cancelling the caste certificate and non creamy layer certificate issued to the 1st respondent. The Writ Petition was thus filed by the 1st respondent challenging Ext.P10.

The learned Single Judge considered the legality of Ext.P10 in the light of the judgments in Kerala Pattikajathi Samrakshana Samithi and Another v. State of Kerala and others, 1995 KHC 537 and Sunita Singh v. State of Uttar Pradesh, AIR (2018) SC 566 and held that the marriage of a person outside her community will not take her away from the community in which she was born and accordingly quashed Ext.P10 and directed the 4th respondent to reconsider the matter within the time frame fixed. Assailing this judgment, the appellants have filed the present appeals.

We have heard the learned counsel for the appellants in extenso. The grievance projected by the appellants in these Writ Appeals is that they were the whistleblowers in the subject matter of the Writ Petitions and that in the event of the 1st respondent being disqualified, they stand a chance to secure employment. This takes us to the most important question as to the locus of the appellants to challenge the judgment of the learned Single Judge.

The issue before the learned Single Judge pertained to a matter wherein the petitioners therein had raised a challenge against Ext.P10 cancellation of the caste certificates which had far reaching legal consequences – both civil and criminal. Therefore, the petitioners in the respective Writ Petitions are “persons aggrieved” as they had suffered a legal wrong and had thus invoked the Writ jurisdiction of this Court. The appellants – who were arrayed as respondents 7 and 8 in the Writ Petitions were unsuccessful candidates with vested interests which culminated in Ext.P10 order. The learned Single Judge, while disposing the writ petition held as follows :

Thus, it can be seen that the learned Single Judge has merely remitted the matters to the jurisdictional authorities to reconsider the matters afresh and the order protects the interest of both the parties. Such an order cannot be seen as one adverse to the interest of the appellants and they cannot be treated as “aggrieved persons” to maintain these appeals.

It can also be seen that the appellants are neither a necessary party nor a proper party to the proceedings. It is well settled that a necessary party is one without whom no order can be made effectively and a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. The lis in the instant case revolves around personal rights of the 1st respondent, for the determination of which the presence or absence of the parties have no material effect on the lis. The appellants cannot also be raised to the status of whistleblowers as according to the appellants, the litigation was motivated by their own private interests. To have a standing to sue in a Court, the litigant has to show that his “legal rights” are invaded leading to a “legal wrong” the justiciability of which is to be tested on the touchstone of injury to a legally protected right. As has been reiterated by the Apex Court, a nominal or highly speculative adverse affect on the interest or right of a person has been held to be insufficient to give him the standing to sue. The principle applies on all fours herein as the interest of the appellants in the lis is purely speculative in nature. Even though Section 5 of the Kerala High Court Act, 1958 provides that an appeal shall lie to a Bench of two Judges from a judgment or order of a Single Judge in the exercise of original jurisdiction, this right of appeal can be exercised only by a person who satisfies the rule of standing. Merely by reason of the appellants being in the party array of the Writ Petition, an appeal cannot be maintained under Section 5 of the Kerala High Court Act, 1958 and thus the Appeal is liable to be dismissed as not maintainable at the instance of the appellants.

Further, if at all the appellants have a right to challenge the appointment, the same being a matter pertaining to recruitment, the grievance ought to have been raised before the competent jurisdictional Tribunal, viz., The Kerala Administrative Tribunal. Under the guise of filing a complaint before the statutory authorities to cancel the caste certificate, the appellants cannot bypass the statutory remedy and this Court cannot assume a jurisdiction vested in the Administrative Tribunal.

We find no reason to interfere with the judgment of the learned Single Judge and find ourselves in complete agreement with the view taken by the learned Single Judge in the impugned judgment.

The Writ Appeals therefore fail and are accordingly dismissed. No costs.