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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
:ORDER:
S.B. Civil Writ Petition No.5549/2007.
(Akash Vijay Singh Vs. State of Rajasthan & Another)
DATE OF ORDER : December 19th, 2008
PRESENT
Hon'ble Mr. Justice Gopal Krishan Vyas
_______________________________
Mr. Kamal Dave for petitioner.
Mr. R.K. Bohra for the respondent(s).
BY THE COURT :
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In this writ petition, the petitioner has prayed for direction
to the respondents to appoint him as Notary in furtherance of
the decision of the appropriate Government and to impose
exemplary cost on the respondents. Further, the petitioner has
prayed that respondents may be directed to compensate the
petitioner for withholding his right of fair consideration in
consonance with the rules and for unnecessary keeping the
issuance of appointment order pending for such a long period of
time and for failure to communicate him the decision despite
mandatory requirement under the rules.
Brief facts of the case are that the petitioner is registered
Advocate and he filed an application in pursuance of the
notification dated 04.06.2003 for appointment as Notary under
Rule 4 of the Notaries Rules, 1956. The petitioner was fulfilling
the eligibility criteria and all the qualification for appointment as
Notary as required under Rule 3 of the Rules of 1956.
The case of the petitioner was considered in accordance
with rules and finally this case was placed before the Minister
concerned and was approved by the appropriate Government.
As per petitioner, under Rule 8(2) of the Rules of 1956, it is
mandatory for the competent authority to inform about every
order passed by the appropriate Government under sub-rule (1)
of Rule 8 after receiving the report of the competent authority;
but, in the case of the petitioner, no communication as per sub-
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rule (2) of Rule 8 of the Rules of 1956 was given and after
awaiting for some time an application was filed by the petitioner
under Right to Information Act.
In reply to the aforesaid application under Right to
Information Act, the required documents were supplied to the
petitioner, upon those documents, it has come to the knowledge
of the petitioner that the appropriate Government has already
ordered for issuance of the appointment order as Notary in
favour of the petitioner on 26.06.2004 in the file. After the
deficiency in the application-form rectified by the petitioner, the
respondents kept the matter hanging without compliance with
the mandatory requirement under Rule 8(2) of the Rules of
1956.
Contention of learned counsel for the petitioner is that
though the petitioner satisfied the appropriate Government by
way of removing the deficiency in the application as desired by
the respondents but the respondents have illegally denied the
appointment on the ground that the matter was again placed
before the Minister concerned and, upon placing the matter
again before the Minister concerned, it was ordered that fresh
notification may be issued.
Learned counsel for the petitioner vehemently argued that
the petitioner being eligible for appointment claimed the same
and his case was considered up to the level of the appropriate
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Government and finally as per office note 27 of the file, which is
received by the petitioner under Right to Information Act, the
Hon’ble Law Minister ordered for issuance of the appointment
order after removing the objections regarding the deficiencies in
the application form. But, instead of issuing the appointment
order in favour of the petitioner, the matter was arbitrarily again
placed by the Law Department with certain notes by the then
Law Secretary before the Law Minister and, upon that, the
Minister concerned passed order for issuing fresh notification.
Learned counsel for the petitioner vehemently submitted
that mere changing of the Minister concerned order passed by
the appropriate Government cannot be changed and the decision
was required to be obeyed but, the then Law Secretary against
placed the matter after change of Ministry upon which the order
for issuing fresh notification was passed; meaning thereby, the
action taken by the respondents is totally in contravention of the
basic principles of law. After passing of the order by the
Minister concerned in the file for appointment of the petitioner as
Notary, in compliance of the said order, the petitioner was to be
given the appointment order and, change in the Ministry does
not create any right in favour of the State Government to snatch
away the right of the citizen which has already been finalized.
It is argued by learned counsel for the petitioner that in this
case, illegally appointment of the petitioner on the post of Notary
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has been denied and in respect of all other persons who
preferred application for appointment as Public Notary, orders
were issued for their appointment in the month of November
2002 vide Annex.-11. In this view of the matter, it is prayed by
learned counsel for the petitioner that denial of appointment is
totally arbitrary and suffers from the vice of malice.
In reply to the notice, it is submitted by learned counsel
for the respondents that mere selection does not create any
right in favour of the petitioner for appointment to the post; but,
in this case, the petitioner is agitating the right which, in fact,
did not materialize in favour of the petitioner and, therefore, the
petitioner was not given appointment to the post of Public
Notary; and, later on order was passed for issuing fresh
notification. It is contended by learned counsel for the
respondents that mere selection does not create right, therefore,
this writ petition deserves to be dismissed for this reason alone.
Learned counsel for the respondents vehemently argued
that there was deficiency in the application form of the
petitioner, therefore, after completion of the legal formalities the
Hon’ble Minister directed to appoint the petitioner as Public
Notary; but, the Law Secretary being the competent authority
again moved the file to the Hon’ble Minister with reference to the
illegality which could be committed if the appointment order was
to be issued. On that, the Hon’ble Minister directed for issuance
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of the fresh notification for which the Minister concerned was
competent.
As per learned counsel for the respondents the competent
authority has rightly sent the file to the Hon’ble Minister because
the application of the petitioner was not complete when it was
submitted. In para (C) of the reply to Ground (C), it is
specifically stated by the respondents that nothing is provided in
the statute to remove the deficiency after submission of the
application form to the competent authority, nor the petitioner
has shown such provision in the writ petition, therefore, the
competent authority has rightly sent the file to the Hon’ble
Minister to review the decision on the fact that application
submitted by the petitioner was not complete when it was
submitted. So, the competent authority was within his
competence to place the file before the Minister concerned to
review his decision and the petitioner cannot question the
competence of the Law Secretary to place the file again before
the Minister concerned.
Upon hearing arguments on 08.12.2008, it was felt
necessary to call the relevant record of the case. In pursuance
of the said order, the relevant file has been produced for perusal
of the Court. After perusing the entire record of the case it is
abundantly clear that the final decision was taken by the then
Law Minister Shri Khet Singh on 27.09.2003 to appoint the
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petitioner which reads as under :
“व ध /सध
म .व ध मत मह .
27. श आक श व जयससह क फ म म ज कसमय ह उनक
पर करन क पश त ” तहस ल ज प$र क सलए श आक श
व जयससह अस” षक क न टर* पब,लक, ननयक
$ ककय ज त
ह।
एस.ड .- 27-9.”
When this specific order was passed by the Minister concerned;
and, thereafter, the petitioner was allowed to complete the
deficiencies which too were completed by the petitioner, then,
only order was to be issued by the respondents for appointment
of the petitioner as Public Notary because all other persons who
had applied in pursuance of the notification for appointment as
Public Notary were already appointed.
Upon perusal of the subsequent decision I am of the
opinion that what were the reasons for placing the matter again
before the Minister concerned is very relevant and upon perusal
of the note dated 17.07.2004 upon the file by the then Law
Secretary it is nowhere stated why the file was again placed
before the Minister concerned because earlier the order was
passed by the Minister concerned to provide appointment after
completing the deficiencies.
In this view of the matter, I am of the opinion that for no
reason the matter was again placed before the Law Minister after
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change of the Ministry, therefore, such an order which is passed
subsequently without compliance of the earlier order is not
justified. More so, no reason whatsoever has been assigned for
not obeying the order passed by the then Law Minister on
27.09.2003. The relevant file produced before this Court clearly
reveals that without any reason aribtrarily the matter was again
placed for review upon which the decision for re-notification was
taken by the appropriate Government which is not permissible
under the law. The order for appointment as Notary Public was
to be issued in pursuance of the decision taken by the then
Minister but it has not been done and subsequently the matter
was reviewed which is not in consonance with any provision of
law. Therefore, the subsequent even and order for inviting
fresh applications, so far as petitioner is concerned, is illegal.
It is also very relevant to observe here that the decision
for issuing fresh notification without quashing the earlier decision
for appointment is illegal and against the basic principles of law.
Upon perusal of the file produced by the respondents, it is
revealed that there is no order of cancellation of the earlier
decision in the subsequent order and only order was made that
new notification may be issued; meaning thereby, qua the
petitioner, the earlier decision of the petitioner’s appointment as
Notary Public was not superseded by any subsequent order
passed in relation to the petitioner. Foregoing facts and
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circumstances clearly reveal that the respondents have indulged
in illegal practice and action on their part is completely in
violation of Articles 14 and 16 of the Constitution of India while
denying appointment to the petitioner on the post of Notary
Public. Therefore, the order of appointment of the petitioner is
in existence. In this view of the matter, in my opinion, this writ
petition deserves to be allowed.
In view of the above discussion, this writ petition is
accordingly allowed and the respondents are directed to issue
appointment order in favour of the petitioner for the post of
Public Notary as per decision dated 27.09.2003 within a period
of one month from today and grant all other benefits in
accordance with law.
There shall be no order as to costs.
(Gopal Krishan Vyas) J.
Ojha, a.