Candidates Whose 'Interests Would Be Jeopardised' Necessary Party To Cases Challenging Appointment: Kerala High Court

The Kerala High Court recently observed that in cases filed challenging the selection of a candidate to a post, the persons "whose interests would be jeopardised" by the outcome of the proceedings must also be arrayed as parties to the petition.

The division bench of Justice P. B. Suresh Kumar and Justice C. S. Sudha said:

"As such, in a case of this nature, not only candidates whose interests would be affected directly on account of the outcome of the proceedings, but also candidates whose interests would be jeopardised, are necessarily to be arrayed as parties to the writ petition."

The court made the observation in its decision on an appeal challenging a single bench decision.

The Case

The matter related to the appointment of Assistant Professor in Philosophy at the University of Kerala. The petitioner, who was awarded 45 marks including 10 for the interview, had challenged the selection of another candidate, who had been awarded 55 marks including 18 for the interview.

Stating that he was entitled to 68 marks in place of 45 marks awarded to him, the petitioner's argument was that he should have been awarded 20 marks instead of 4 for publications in journals and for publication of books, 2 marks for the Fellowship of Indian Council of Philosophical Research, 3 marks for Paper Presentation in Seminar/Conferences and 2 marks for teaching experience.

The petitioner's argument also was that the selected candidate had not cleared NET and was not thus eligible to participate in the selection process. Though the petitioner conceded that the selected candidate holds a PhD degree, his argument was that the selected candidate was not entitled to exemption from requirement of NET since he had not produced the certificate in terms of Clause 5(ii) of the advertisement notification.

When the matter came up before the Single Judge Bench, the selected candidate, who was a respondent, submitted that four students who had secured 50, 51, 47 and 46 marks, respectively, in the selection were not made parties to the case and without them in the array of parties, the petitioner is not entitled to the relief claimed in the writ petition and that the writ petition is, therefore, not maintainable.

The Single Judge thereby dismissed the Writ Petition, holding that insofar as the four candidates who secured more marks than the petitioner have not been arrayed as parties to the writ petition, the writ petition was not maintainable.

Before the Division Bench

Aggrieved by the order, an appeal was preferred by the appellant, contending that since the selected candidate had not complied with the requirement specified in the notification, he was not eligible to participate in the selection process.

The Counsel appearing for the selected candidate, relied on the Kerala High Court decision in Vimala Kumari v. State, to contend that even if it is found that he is not eligible to participate in the selection process, the appointment could have been made only as per the ranking and since the petitioner is not entitled to be appointed going by the ranking, the writ petition on that ground is not maintainable. It was also contended it was obligatory for the petitioner to implead the candidates, who have secured more marks than him, in the proceedings.

The Court, after considering the contentions raised by the counsel, opined that if the contention of the petitioner that he should have been awarded 58 marks instead of 35 marks is accepted, the petitioner will certainly have a march not only over the selected candidate, but also over the four persons who have secured more marks than him in the selection process.

"As such, we are in complete agreement with the view taken by the learned Single Judge that the writ petition instituted without the aforesaid four persons in the array of parties, is not maintainable," it added.

Furthermore, the Court observed that even if it were to accept the petitioner's case regarding the selected candidate's appointment, he still cannot claim appointment in preference to those have who secured more marks than him in the selection process "for an appointment, at any rate, can be made only as per the ranking in the selection list."

The Court opined that the petitioner was not entitled to challenge the appointment of the second respondent, and dismissed the appeal.

Advocates P. Chandrasekhar, K.K. Mohamed Ravuf, Rani Madhu, Satheesh V. T. and Manjari G. B. appeared for the Appellant. 

Advocates Thomas Abraham (Standing Counsel for University of Kerala), S. P. Aravindakshan Pillay, N. Santha, V. Varghese, Peter Jose Christo, S.A. Anand, K.N. Remya, Vishnu V. K and  Abhurami K. Uday appearing for the respondents. 

Case Title: Dr Ferosh M Basheer v. The University of Kerala and Ors.

Citation: 2022 LiveLaw(Ker) 577

Click Here To Read/Download The Order