High Court Kerala High Court

Sindhu Bernard vs State Of Kerala on 1 April, 2009

Kerala High Court
Sindhu Bernard vs State Of Kerala on 1 April, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 3646 of 2007(H)


1. SINDHU BERNARD,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA,
                       ...       Respondent

2. THE ADDITIONAL LAW SECRETARY TO

                For Petitioner  :SRI.MATHEW JOHN (K)

                For Respondent  :GOVERNMENT PLEADER

The Hon'ble MR. Justice P.R.RAMACHANDRA MENON

 Dated :01/04/2009

 O R D E R
              P.R. RAMACHANDRA MENON, J.
             ------------------------------------------
                   W.P.(C) No.3646 OF 2007
              -----------------------------------------
             Dated this the 1st day of April, 2009.


                         J U D G M E N T

The prayer of the petitioner is for directing the first

respondent to issue ‘Certificate of Registration’ to her as a

Notary under Rule 8(4) of the Notaries Rules, 1956; pursuant to

completion of all formalities in response to her application for

appointment as Notary and remittance of the fees as prescribed.

The petitioner also relies on Exhibits P3, P5 and P6 proceedings

issued by the concerned authority under the Law Department

asking the petitioner to appear for a hearing and to produce the

relevant records for verification as per the Notaries Rules.

2. The second respondent has filed a counter affidavit

stating that the entry with regard to the name of the petitioner in

the Notarial Register was only a mistake, as no appointment

could have been given to the petitioner since it exceeded the

sanctioned strength. According to the second respondent,

necessary inspection was conducted by the Law Department

W.P.(C) No.3646/07 2

pursuant to the application made by the petitioner to ascertain

the infrastructure and such other credentials of the petitioner,

also calling for a report from the Bar Council. There is no case

for the second respondent that the petitioner is not a fit person

or not a suitable person to be appointed as a Notary. On the

other hand, the only case projected in the counter affidavit is that

there was “no vacancy” to accommodate the petitioner in respect

of the concerned area/Revenue District/District (as applied for).

It is also pointed out that the competent authority, after the local

inspection and enquiry, had submitted a report/recommendation

to the Government stating that no vacancy was available to

accommodate the petitioner (paragraph 2). The said statement

rather appears to be a paradox, in so far as the absence of

vacancy was very much known to the Law Department, and if it

be so, what prompted the Department to inspect the office of the

petitioner and to ascertain the availability of necessary

infrastructure, simultaneously calling for a report from the Bar

Council, remains to be a matter of mystery.

3. It has been stated in paragraph 4 of the counter affidavit

W.P.(C) No.3646/07 3

that, pursuant to the amendment of the relevant rules (Sub Rule

(4A) inserted in Rule 8 of the Notaries Rules 1956), the

maximum ceiling as to the permissible number of Notaries was

specified in the schedule as ‘375’, as stated in paragraph 5 of the

counter affidavit. Learned Government Pleader points out that

the said number has now gone up to ‘563’ by virtue of the

amendment of the schedule (as per amendment dated

19.05.2006). Placing reliance on the above position, particularly

as to the absence of vacancy, it is asserted by the learned

Government Pleader that no interference is possible since the

petitioner does not have any vested right to be appointed as a

Notary.

4. It is relevant to note that there is no case for the

respondents that the petitioner is not a fit or suitable person to

be appointed as a Notary or that she is disqualified in any

manner. As pointed out, the concerned authority also had

submitted a report before the Government stating that no

appointment could be effected due to ‘lack of vacancy’. But,

since the specific case of the Government is that the petitioner

W.P.(C) No.3646/07 4

could not be accommodated for want of vacancy, it has

necessarily to be inferred that nobody else has been appointed by

the Government as Notary in the particular area in respect of

which the petitioner had put forth a claim. Learned counsel for

the petitioner brought to the notice of this Court that steps were

being pursued by the respondents to effect appointment of

Notaries contrary to the rules and norms as highlighted in

Exhibit P7 news paper report. The first respondent has filed a

counter affidavit/ additional affidavit dated 17.12.2007 in

I.A.No.375/2007, where it has been asserted that the

Government has no proposal at all to appoint ‘240’ Notaries as

alleged and that the averments/allegations in the above news

paper report did absolutely have no basis at all. In view of the

categoric assertion in the above affidavits, the Court is made to

believe that no appointment of Notary has been effected by the

Government in respect of the area in question.

5. In the above circumstances, it is hereby declared that

the petitioner does not have any vested right to be issued the

‘Certificate of Registration’ merely for having entered her name in

W.P.(C) No.3646/07 5

the Notarial Register by way of mistake, when there was no

vacancy as per the Rules. 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.

This writ petition is disposed of accordingly.

P.R. RAMACHANDRA MENON
JUDGE

smp

W.P.(C) No.3646/07 6

P.R. RAMACHANDRA MENON, J.

W.P.(C) No. 3646 OF 2007

J U D G M E N T

01.04.2009