Writ Petition No.7461/2008
14.7.2010
Shri Sunil Mishra, learned counsel for the petitioner.
Shri Harish Agnihotri, learned Govt. Advocate for
respondent Nos. 1 and 2.
Shri V.S. Shroti, learned Senior Counsel with Shri
Vikram Johri, learned Counsel for respondent No. 3.
Shri G.S. Baghel, learned counsel for intervener.
Challenge put-forth in the present petition is to an
order dated 23.6.2008 whereby respondent No. 4 was
appointed as Notary for Tahsil Tamia.
When the matter is taken up today, it is submitted by
learned counsel for the petitioner that the subject matter of
the present petition, i.e., order dated 23.6.2008 has already
been quashed in W.P. No. 9046/2008 – Vijay Kumar Gupta
v. State of M.P. and others. It is urged that in the light of
the order passed in W.P. No. 9046/2008 present petition
deserves to be allowed.
In Vijay Kumar Gupta (supra) while placing reliance
on judgment rendered by Division Bench in Rajendra
Kumar Choudha and others v. Ayaz Ahmad Khan and
others – W.A. No. 167/2009 decided on 19.2.2010, their
lordships were pleased to observe:
“16. In the instant matters what District Judge has
done that he has invited the objections from the Bar
Association, no objection was received and thereafter
has forwarded the list of all the persons arranged in
order of seniority to the State Government. The
District Judge has totally failed to act as per the
mandate of Rule 7(3) of the Rules. It was incumbent
upon the District Judge to send the names arranged in
order of suitability of the incumbents whom he has
considered to be appropriate having due regard to
2knowledge and experience, extent of practice and
fitness, which has not been done in the instant case.
Thus the learned Single Judge is justified in quashing
the consequential action taken on the basis of
violation of Rule 7(3) of the Rules.
17. Shri V.S.Shroti, learned Sr. Counsel has submitted
that the District Judge should be permitted to conduct
oral interview of the incumbents. We do not go to that
extent as oral interview is contemplated in the next stage
after recommendation is made by the competent authority
to the State Government, however, in order to ascertain
the suitability, it is open to him to make such inquiry as
he deems fit. He is free to call the candidates to find out
the suitability as per Rule 7 of the Rules but simply calling
a candidate to elicit an information would not amount to
interviewing him, it would only be step in aid in order to
form an opinion under Rule 7(3) of the Rules. When the
competent authority applies the mind to the requirement
of Rule 7(3), which may be applicable in the case, it
should appear from the noting of the file that the
competent authority has made the recommendation after
due compliance of Rule 7 of the Rules. He is not supposed
to act in a mechanical manner. The appointment of
notary, as already mentioned, is an important job and
names of only honest persons with integrity should be
recommended by the District Judge, not the names of all
the incumbents in order of their seniority or category wise
as done in the instant case. The eligibility of an incumbent
is a different aspect than assessing the suitability.
Arranging the names in order of seniority cannot be said
to be as per suitability. A person’s suitability has to be
adjudged on the basis of objective criteria as laid down in
the Rules. It has been considered, must reflect from the
file. The competent authority cannot shirk from it’s
significant responsibility enjoined upon him under the
Rules to ensure that incompetent and dishonest
incumbents are not appointed as notary on political basis
and eliminated at grass root level. Recommendation of the
District Judge serves the purpose of weeding out such
elements from the zone of consideration who are not
otherwise fit and suitable as per the requirements of the
Rules. The District and Session Judges are expected to
rise to the occasion, select the persons for recommending
3
the names as per the criteria which has been laid down
under the Rules and not to oblige every incumbent by
sending the entire list to the State Government which
amounts not only shirking from duty but tantamounts to
flagrant violation of the rules at the end of the competent
authority which cannot be tolerated even for a moment.
Thus District and Session Judges to be careful in future in
making the recommendation. It has to be ensured that
only the names of suitable persons be recommended as
per requirements of Rules.”
On the basis of the aforesaid verdict appointment of
respondent No. 4 being contrary to the provisions contained
under Rule 7 Notaries Rules, 1956 was quashed.
Since the appointment of respondent No. 4 has
already been quashed in W.P. No. 9046/2008 no further
order is required in the present petition and the order
passed in W.P. No. 9046/2008 shall be applicable in the
present petition mutatis mutandis.
The petition is disposed of finally in above terms.
(SANJAY YADAV)
J U D G E
Vivek Tripathi