IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1887 of 2009()
1. STATE OF KERALA,
... Petitioner
2. THE ADDITIONAL LAW SECRETARY TO
Vs
1. SINDU BERNARD, ADVOCATE,
... Respondent
For Petitioner :GOVERNMENT PLEADER
For Respondent :SRI.MATHEW JOHN (K)
The Hon'ble the Chief Justice MR.J.CHELAMESWAR
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :12/07/2010
O R D E R
J.CHELAMESWAR, C.J. & P.N.RAVINDRAN, J.
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W.A.No.1887 of 2009
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Dated this the 12th day of July, 2010
JUDGMENT
Ravindran, J.
The appellants are the respondents in W.P(C)No.3646 of
2007 and the sole respondent is the petitioner therein. The writ
petition was filed seeking a direction to the State of Kerala to issue a
`Certificate of Registration’ as Notary to the petitioner under rule 8
(4) of the Notaries Rules, 1956. By judgment delivered on 1.4.2009
the learned single Judge disposed of the writ petition holding that
though the petitioner does not have a vested right for the issuance of
a `Certificate of Registration’ for the reason that her name was
entered in the Register of Notaries by mistake, she will be entitled to
be appointed as Notary in the area in which she had sought
appointment, if the Government have appointed anybody else who
had applied subsequent to the application preferred by the petitioner,
as Notary in the said area. The appellants have, aggrieved thereby,
filed this writ appeal. The brief facts of the case are as follows:
2. The writ petitioner is a practising lawyer. She was
called to the Bar on 14.2.1993. After completing about nine years of
practice she submitted an application dated 18.3.2002 to the second
W.A.No.1887/2009 2
appellant seeking appointment as Notary. The application was
returned as defective and it was re-submitted after curing defects on
12.2.2003. The petitioner thereafter submitted Ext.P1 representation
dated 23.4.2003 to the Hon’ble Minister for Law seeking appointment
as Notary Public for Thrissur District. The Hon’ble Minister for Law
forwarded the said representation to the Law Secretary. Thereafter,
the second appellant sent Ext.P3 letter dated 21.10.2004 to the
petitioner informing her that he will be conducting a local enquiry on
her application and will be inspecting her office on 29.10.2004. The
petitioner was asked to be present on that day along with copies of
the documents referred to in Ext.P3. As stated in Ext.P3, the second
appellant conducted a local enquiry. He also inspected the petitioner’s
office. It is stated that the second appellant thereafter recommended
the petitioner’s appointment as Notary. The petitioner has further
stated that she thereupon paid the sum of Rs.1000/- on 2.3.2006
towards registration fee, that though no `Certificate of Registration’
was issued, the second appellant sent Ext.P5 letter dated 8.5.2006 to
her, requiring her to be present in the Government Guest House,
Thrissur on 30.5.2006 with the Notarial Registers maintained under
rule 11(2) of the Notaries Rules, 1956, the fee registers maintained
under rule 11(9) and the receipt books maintained by her. It is
W.A.No.1887/2009 3
stated that later by Ext.P6 letter dated 18.5.2006, she was informed
that the date of inspection stands postponed to 31.5.2006. The writ
petition was filed on 1.2.2007 contending that though her application
for appointment as Notary was recommended and the
recommendation was accepted by the Government and her name
entered in the Register of Notaries, till date the Certificate of Practice
has not been issued. In the writ petition, the petitioner prayed for
the following reliefs:
“(i) issue a writ in the nature of Mandamus or any other
appropriate writ, direction or order commanding the
1st respondent to issue the certificate in terms of Rule
8(4) of the Notaries Rules, 1956.
(ii) issue such other writ, direction or order as are just
and necessary in the facts and circumstances of the
case to meet the ends of justice.”
3. The appellants resisted the writ petition by filing a
counter affidavit. It was contended that though the competent
authority had after enquiry reported that no vacancy of `Notary’ is
available to accommodate the petitioner, overruling the said report
and in violation of the Notaries Rules, the then Hon’ble Minister for
Law directed appointment of the petitioner. It was contended that
the name of the petitioner was wrongly entered in the Register of
Notaries with Registration No.3/2006/TCR dated 22.1.2006, but, no
Certificate of Practice was issued to her. It was also stated that the
W.A.No.1887/2009 4
notification appointing the petitioner as Notary was not published in
the Official Gazette for the reason that the issuance of Certificate of
Practice or publication of the notification would have resulted in the
violation of the Notaries Rules, 1956, that Exts.P5 and P6 letters were
sent to the petitioner on account of the mistaken entry in the Register
of Notaries and that the direction issued by the Hon’ble Minister to
appoint the petitioner was in violation of sub-rule (4A) of rule 8 of the
Notaries Rules which was introduced with effect from 9.5.2001. It
was also contended that during the relevant time the maximum
number of Notaries that could have been appointed by the State
Government was 375.
4. The writ petition was heard by the learned single Judge
on 1.4.2009. In the meanwhile, the schedule to the Notaries Rules,
1956 was amended with effect from 19.5.2006 raising the maximum
number of Notaries that could be appointed in the State of Kerala
from 375 to 563. Placing reliance on the amended schedule, the
learned Government Pleader submitted that the petitioner could not
even thereafter be accommodated for want of vacancy. The learned
single Judge after considering the rival contentions held that the
petitioner does not have a vested right to have a Certificate of
Practice issued merely for the reason that her name was entered
W.A.No.1887/2009 5
in the Register of Notaries by mistake, when no vacancy was
available to accommodate her. The learned single Judge however
observed as follows:
“However, it is made clear that the petitioner will be
entitled to be appointed as a Notary in the particular area,
if the Government has appointed anybody else, whose
application is subsequent to the application preferred by
the petitioner, as a Notary in the said area. This aspect as
to the eligibility shall be considered by the first respondent
and necessary orders shall be passed in this regard within
a period of three months from the date of receipt of a
copy of this judgment after giving an opportunity of
hearing to the petitioner. The petitioner shall produce a
copy of this judgment before the first respondent.”
The appellants have aggrieved by the said direction filed this writ
appeal.
5. In the memorandum of appeal, relying on sub-rule (4A)
of rule 8 of the Notaries Rules, 1956 it is contended that when the
petitioner applied for appointment as Notary, the maximum number
of Notaries that could have been appointed in the State of Kerala was
stipulated as 375 and therefore the petitioner was not eligible to be
considered for appointment at the relevant time. It is also contended
that a subsequent enhancement in the number of Notaries does not
enable the petitioner to claim appointment as Notary for the reason
that the Government have the discretion to decline the Certificate of
Practice. When the writ appeal came up for hearing, the learned
counsel for the respondent/petitioner submitted that four persons
W.A.No.1887/2009 6
who had applied after the petitioner submitted her application were
appointed as Notary in the area in which the petitioner had sought
appointment. In view of the aforesaid submission, the learned
Government Pleader took time to get instructions and file an affidavit.
Thereafter, an affidavit dated 20.5.2010 sworn to by the Joint
Secretary, Law Department has been placed on record. The relevant
portions thereof read as follows:
“4. It is most respectfully submitted that Rule 8(4A)
of the Notaries Rules, 1956 was introduced on 09.05.2001
stipulating that after the said date notaries shall not be
appointed exceeding the number specified in the Schedule
to the Rules. However the provisos to the said Rule 8(4A)
provided that such of the notaries whose appointment had
already been renewed shall be included in the total number
of notaries appointed for the purpose of counting the total
number of notaries specified in the Schedule and also that if
the number of notaries appointed before 09.05.2001
exceeds the number of notaries specified in the Schedule,
such notaries shall continue to be so appointed.
5. At the time when the said Rule 8(4A) was
introduced, the maximum number of Notaries that the State
Government could appoint as per the Schedule was 375.
As against this, there existed 824 Notaries already
appointed by the State Government. By virtue of the above
referred provisos to Rule 8(4A) the 449 Notaries who were
in excess of 375 came to be protected. Thus appointments
of the 824 Notaries in the State as on 09.05.2001 were
regular and proper. Subsequently by virtue of an
amendment to the Schedule, the number of Notaries that
the State Government could appoint was increased from
375 to 563 with effect from 19.05.2006, since the strength
continued at or about 824, in the light of Rule 8(4A)
especially the 1st proviso thereto, the State Government
could not have appointed any new Notaries. Subsequently
the Schedule has again been amended with effect from
31.10.2007 resulting in the increase of number of NotariesW.A.No.1887/2009 7
to be appointed by the State Government from 563 to 845.
6. However after 09.05.2001 till 04.05.2006 as may
as 34 new appointments of Notaries were made by the
State Government. Such appointments were in violation of
Rule 8(4A) of the Notaries Rules, 1956 in as much as those
appointments were made beyond the prescribed limit
stipulated in the Schedule at that time. A true copy of the
list of the said 34 appointments is produced herewith and
the same may be marked as Annexure A1. The present
State Government which came to power on 18.05.2006 has
not made any new appointment of Notaries and is ready to
review the said appointments referred to in Annexure A1
and is prepared to remove them, without prejudice to they
being considered in accordance with the Rules existing as
on date, in the particular circumstances. It has been the
policy of the present State Government not to perpetuate
the illegality with regard to the appointment of Notaries
done in violation of the Rules.
7. Writ petitioner’s application for appointment of
Notary was made on 18.03.2002 when there was no
vacancy as envisaged under Rule 8(4A) read with the
Schedule to the Notaries Rules, 1956. Her submission of
Application after curing the defects was on 12.02.2003.
Due to absence of vacancy, legally, the Writ Petitioner could
not have made the application and her application was not
liable to be entertained at that point of time. Writ Petitioner
chose to file the Writ Petition W.P.(C)3646 of 2007 about
four years later seeking issuance of certificate of practice.
At any rate, in the light of the principle that a Writ of
Mandamus can be issued only to consider appointment of a
person and not direct the appointment itself as upheld by
the Hon’ble Supreme Court in the decision reported in 2008
(8) SCC 475, the Hon’ble single Judge ought not have
issued the direction in the impugned judgment.
8. If the Writ Petitioner was to be appointed by
issuing her the certificate of practice, it would be further in
excess of the 34 persons referred to in Annexure A1, who is
already in excess. It was in such circumstances that the
present Government which discovered the above anomaly
did not appoint or issue certificate of practice to the
Petitioner. There were 46 similar cases as that the Writ
Petitioner who were also not issued certificate of practice asW.A.No.1887/2009 8
the number of Notaries that could be appointed were
already exceeding the limit. The memorials of all the said
46 persons were rejected and the Writ Petitioner’s
application could not be rejected as her Writ Petition was
pending.
9. The procedure for appointment of Notaries
underwent changes in pursuance to the Government of
India notification G.S.R 114(E) dated 24.02.2009 whereby
the method of selection and appointment of Notaries has
become totally different from what it used to be. A true
copy of the said Notaries (Amendment) Rules, 2009 is
produced herewith and the same may be marked as
Annexure A2. Rule 7B (Transitional provision) in
Annexure A2 may kindly be noticed which stipulates that all
memorials received till 28.02.2009 and which have been
pending are to be processed/examined in accordance with
the provisions of Annexure A2 Rules. In the light of
Annexure A2, the direction contained in the judgment dated
01.04.2009 of the Hon’ble single Judge pose further
difficulties for the Government in the circumstances.
10. With all due respect, the Hon’ble single Judge
ought not to have issued the direction in the impugned
judgment. Several processes in the matter of appointment
of Notary as traced by this Hon’ble Court in paragraphs 6
and 7 of the decision reported in 1991 (1) KLT 313, were in
fact not over in the case of the Writ Petitioner. Still the
Hon’ble single Judge issued the direction which leaves no
room for the Appellants to exercise their discretion and
more so in the changed scenario after the amendment to
the Notaries Rules ad per Annexure A2 which changed the
method of selection itself. Petitioner’s Application ought to
be dealt with, with reference to the law prevailing as on the
date of consideration of the Application [a principle deduced
from the decision of this Hon’ble Court in 2010 (2) KLT 25
(FB)]. This means that the Application of the Writ Petitioner
is to be dealt with according to the law prevalent after
24.02.2009 i.e. after the amendment as per Annexure A2,
especially in the light of Rule 7B therein. Such a course is
being rendered impossible on account of the direction in the
impugned judgment.
11. It is respectfully submitted that after 09.05.2001
only five Notaries have been appointed in Thrissur DistrictW.A.No.1887/2009 9
so far and all of such appointments do come under the 34
illegal appointments referred to in Annexure A1. The said
five appointments fall under serial numbers 6, 9, 29, 30 and
33 of Annexure A1. Appointment of such persons albeit
illegally cannot be used by the Writ Petitioner to her
advantage. Out of the said five appointments only one viz;
serial no:33 alone is in the particular area viz; Thrissur
Taluk to which the Writ Petitioner had applied. Even his
application is dated 05.09.2002, earlier than that of the Writ
Petitioner who submitted her application after curing of
defects only on 12.02.2003. The other 4 appointments
have been in other Taluks of the Thrissur District. Thus
apart from the said Sl.No:33 none has been appointed in
the particular area to which the Writ Petitioner had sought
appointment. Such appointments made during the tenure
of the earlier Government when there was no vacancy were
illegal, which illegally is not liable to be perpetuated.”
A list of 34 persons who had been illegally appointed as Notary in
excess of the quota is produced as Annexure A1 along with the said
affidavit. The respondent/petitioner has sworn to an affidavit dated
31.5.2010 contending inter alia that the appointment of the aforesaid
34 persons has not so far been cancelled and that the respondent/
petitioner is entitled to have her application finally disposed of in
accordance with law.
6. We heard Smt.K.Meera, learned Senior Government
Pleader appearing for the appellants and Sri.Mathew John, learned
counsel appearing for the respondent/petitioner. We have also gone
through the pleadings and the materials on record. From the
materials now available before us, it is evident that at the point of
time when the petitioner applied for appointment as Notary, the
W.A.No.1887/2009 10
maximum permissible number of Notaries that could have been
appointed in the State of Kerala was 375 only. As on 9.5.2001, 824
Notaries had already been appointed by the State Government.
Though the said appointments were in excess of the quota, by virtue
of the second proviso to sub-rule (4A) of rule 8 of the Notaries Rules,
1956, the 449 Notaries who had been appointed in excess of the
quota were protected. Thereafter, the maximum number was
increased from 375 to 563 with effect from 19.5.2006 and to 845
with effect from 31.10.2007. It is also evident from the materials
placed on record that when the petitioner applied for appointment as
Notary, the upper limit of 375 had been reached and therefore she
could not have been appointed as Notary. The instant writ petition
was filed on 1.2.2007. As on that date, the maximum permissible
number of Notaries was 563. Since 449 Notaries were in excess,
even as on the date on which the petitioner applied, even though
there was a subsequent increase in the number to 563 with effect
from 19.5.2006 the petitioner could not have been appointed. The
maximum number was increased to 845 with effect from 31.10.2007
and as on that date 824 Notaries had already been appointed. It is
also evident from the pleadings that besides the petitioner 46 other
applicants were also not issued “Certificate of Practice” in view of the
W.A.No.1887/2009 11
fact that the number of Notaries to whom Certificates of Practice had
been issued was already in excess of the upper limit of 563. It was
only with effect from 31.10.2007 that the number was raised from
563 to 845. No new appointment of Notary has also been made after
4.5.2006. In the meanwhile, the Notaries Rules, 1956 was amended
with effect from 1.3.2009 whereby the procedure prescribed for
appointment was changed. By the said amendment, substantial
changes were effected in the rules. Sub-rule (1) of rule 4 was
amended and the amended sub-rule (1) of rule 4 of the Notaries
Rules reads as follows:
“4.(1) a person may make an application for
appointment as a notary (hereinafter called “the
applicant”), through the concerned District Judge or the
Presiding Officer of the Court or Tribunal where he
practises as an Advocate, in the Form of memorial
addressed to such officer or authority (hereinafter referred
to as the “competent authority”) of the appropriate
Government as that Government may, by notification in
the Official Gazette, designate in this behalf.”
Sub-rule (1) of rule 6 was also amended and the amended rule reads
as follows:
“6.(1) the competent authority shall examine every
application received by him and if he is satisfied that the
application is not complete in all respects or the applicant
does not possess the qualifications specified in rule 3, or
that any previous application of the applicant for
appointment as a notary was rejected within six months
before the date of the application, shall reject it
summarily and inform the applicant accordingly.”
W.A.No.1887/2009 12
Sub-rule (1) of rule 7 was also amended and the amended rule reads
as follows:
“7.(1) the competent authority shall, after holding
such inquiry as he thinks fit and after giving the applicant
an opportunity of making his representations against the
objections, if any, received within the time fixed under
sub-rule (2) of rule 6, make a report to the appropriate
Government recommending that the applicant may be
allowed to appear before the Interview Board.”
Rules 7A and 7B were newly introduced and the newly introduced
rules read as follows:
“7A. Constitution of the Interview Board.-(1) If the
appropriate Government allows that the applicant may be
asked to appear before the Interview Board, the
competent authority shall inform the applicant to appear
before the Interview Board, on the date, time and place
fixed, to judge the competency of the applicant for being
appointed as a Notary. The Interview Board shall submit
its recommendations to the appropriate Government.
(2) For the said purpose, a three members Interview
Board shall be constituted by the appropriate
Government from amongst its officers dealing with legal
matters. The Chairperson of the Interview Board shall
not be an officer below the rank of Joint Secretary of that
Government.
7B. Transitional provision.-(1) All the memorials received
by the Competent Authority till 28th February, 2009 and
which are pending shall be processed/examined in
accordance with the provisions of the rules as amended
by the Notaries (Amendment) Rules, 2009,;
(2) The fresh memorials shall only be submitted on or
after 1st July, 2009.”
Sub-rule (1) of Rule 8 was also amended and the amended sub-rule
(1) of rule 8 reads as follows:
W.A.No.1887/2009 13
“8.(1) On receipt of the recommendations of the
interview board the appropriate Government shall
consider the recommendation and shall-
(a) allow the application in respect of the whole of the
area to which it relates; or
(b) allow the application in respect of any part of the
area to which it relates; or
(c) reject the application,and shall also make such
orders as the Government thinks fit regarding the
persons by whom the whole or any part of the cost
of the application including the cost of hearing, if
any, shall be borne.”
7. It is evident from the amended provisions, especially
from rule 7B, that all the memorials received by the competent
authority till 28th February, 2009 and which are pending shall be
processed/examined in accordance with the provisions of the rules as
amended by the Notaries (Amendment) Rules, 2009. As per
amended sub-rule (1) of rule 4, application for appointment as Notary
has to be made through the concerned District Judge or the Presiding
Officer of the Court or Tribunal where the applicant practises as an
Advocate to the competent authority notified by the Government. As
per sub-rule (1) of rule 7 if after enquiry the competent authority is
satisfied that the applicant should be allowed to appear before the
interview board constituted under rule 7A, the competent authority
may make a recommendation in that regard to the Government. If
the Government allows the applicant to appear before the interview
W.A.No.1887/2009 14
board, the competent authority has to inform the applicant to appear
before the interview board. It is based on the recommendations of
the interview board that the appointment has to be made. In view of
the amendment to the various provisions which came into force on
1.3.2009, an application for appointment of a Notary that was
pending on that date can be disposed of only in accordance with the
amended rules.
8. The finding that the petitioner’s name was entered in
the Register of Notaries by mistake is not under challenge before us.
It is also evident from paragraph 8 of the affidavit dated 20.5.2010
that the petitioner’s application has not been rejected. The petitioner
has not denied the same. It is also stated that the applications of 46
others who were also not issued Certificates of Practice for the reason
that the upper limit had already been reached were rejected. In view
of the fact that the petitioner’s application for appointment as Notary
is pending with the Government and as no final orders has been
passed in view of the stipulations in rule 7B, such pending
applications will have to be considered and disposed of in accordance
with the amended provisions contained in rule 7A and rule 8(1) of the
Notaries Rules. The petitioner cannot in our opinion, relying on the
fact that 34 others named in Annexure A1 list produced along with
W.A.No.1887/2009 15
the affidavit dated 20.5.2010 sworn to by the Joint Secretary, Law
Department had been illegally appointed in excess of the quota during
the period from 18.12.2001 to 4.5.2006 contend that she should also
be likewise appointed. In this context, it is apposite to refer to the
decision of the Apex Court in State of Bihar v. Upendra Narayan
Singh and others (2009 (5) SCC 65) wherein the Apex Court held
as follows:
“67. By now it is settled that the guarantee of
equality before law enshrined in Article 14 is a positive
concept and it cannot be enforced by a citizen or court
in a negative manner. If an illegality or irregularity has
been committed in favour of any individual or a group
of individuals or a wrong order has been passed by a
judicial forum, others cannot invoke the jurisdiction of
the higher or superior court for repeating or multiplying
the same irregularity or illegality or for passing wrong
order – Chandigarh Admn. v. Jagjit Singh (1995) 1
SCC 745, Jaipur Development Authority v. Daulat
Mal Jain (1997) 1 SCC 35, Union of India v. J.V.
Subhaiah (1996) 2 SCC 258, Gursharan Singh v.
NDMC (1996) 2 SCC 459, State of Haryana v. Ram
Kumar Mann (1997) 3 SCC 321, Faridabad CT.Scan
Centre v. D.G. Health Services (1997) 7 SCC 752,
Style (Dress Land) v. UT,Chandigarh (1999) 7 SCC
89, State of Bihar v. Kameshwar Prasad Singh
(2000) 9 SCC 94, Union of India v. International
Trading Co. (2003) 5 SCC 437 and Directorate of
Film Festivals v. Gaurav Ashwin Jain (2007) 4 SCC
737).”
For the reasons stated above, we are of the opinion that the direction
issued by the learned single Judge that the petitioner will be entitled
to be appointed as Notary if the Government have appointed anybody
W.A.No.1887/2009 16
else who had applied subsequent to the petitioner as Notary in the
area in which she had sought appointment cannot be sustained.
We accordingly allow the writ appeal, reverse the
judgment of the learned single Judge and dispose of the writ petition
with a direction to the Government to consider the application
submitted by the petitioner for appointment as Notary in accordance
with the relevant provisions of the Notaries Rules, 1956 and take an
appropriate decision thereon in accordance with law. Necessary steps
in that regard shall be taken and completed within a period of four
months from the date on which the petitioner produces a certified
copy of this judgment before the second appellant.
J.CHELAMESWAR
Chief Justice
P.N.RAVINDRAN
Judge
TKS