C.K. Rajendran v. State of Kerala and Others

W.P.(C) No.5742 of 2016 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 12[TH] DAY OF JULY 2022 / 21ST ASHADHA, 1944 WP(C) NO. 5742 OF 2016** ## **PETITIONERS:** **C.K.RAJENDRAN AGED 64 YEARS ADVOCATE, S/O. LATE C.K.KUMARAN, MANAKKATTU HOUSE, KALAVAMKODAM P.O., CHERTHALA. BY ADVS. SRI.P.V.JAYACHANDRAN SRI.NIDHI BALACHANDRAN DR.K.S.NIZAR SMT.RESHMA LISA RAJAN SRI.E.B.SHIVANANDAN SRI.S.SUDHEESHKAR** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF LAW, GOVERNEMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 THE SECRETARY DEPARTMENT OF LAW, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **R1 AND R2 - SRI.ARAVIND V MATHEW,GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.5742 of 2016 2 ## **JUDGMENT** ## **Dated this the 12[th] day of July, 2022** This writ petition is filed by the petitioner seeking the following reliefs: - (1) Issue a writ of certiorari or appropriate writ, directions or orders calling fro the records leading upto Exhibit P6 and quash Exhibit P3 and Exhibit P6. (2) Issue a writ of mandamus or other appropriate writ, direction or order directing respondents to issue the Certificate of Practice to the petitioner as Notary in Alappuzha District under sub-rule 4 of the Rule 8 of the Notaries Rules, 1956 forthwith. - (3) Issue any such other writs, directions or orders as this Hon'ble Court may deem fit and proper to issue in the facts and circumstances of the case. 2. According to the petitioner, by Exhibit P1 order dated 23.2.2011, petitioner was appointed as a Notary, however, the Certificate of Practice in contemplation of law was not issued. It is the case of the petitioner that, on request as per Exhibit P2, the Secretary, Department of Law, Thiruvananthapuram - the 2[nd] respondent, informed that Exhibit P1 was cancelled as per the directions of the Minister for Law, stating that at the time of remittance of the amount for issuance of certificate, there were no vacancies. Therefore, according to the petitioner, the cancellation was made without hearing the petitioner. It is quite clear and evident from Exhibits P3 and P4. W.P.(C) No.5742 of 2016 3 3. Anyhow, petitioner has challenged Exhibits P2, P3 & P4 orders of Government before this Court by filing W.P.(C) No.27684/2012. The said writ petition was disposed of by Exhibit P5 judgment dated 27[th] July, 2015 directing the State Government to reconsider and take a decision within three months. Thereafter, the Government have passed Exhibit P6 order declining the notary licence to the petitioner. The operative portion of Exhibit P6 order reads thus: “In the light of direction in the judgment read above, paper (2) the Government have examined the matter in detail and found that, though the application of Sri. C.K. Rajendran was filed in the year 2007 the procedural formalities in respect of his application were completed after the amendment made in the Notaries Rules in the year 2009 and hence no further formalities are to be complied with the application and no further details, documents are required from Sri. C.K. Rajendran as per Notaries (amendment) Rules 2009. More over, no fresh application is to be called for from the applicant as his application was kept pending in this department. The Government also found that the number of Notaries that can be appointed by the State Government by this time is thousand and the number of Notaries having valid Certificate of Practice as on the date is 997. Out of which seventy Notaries are practicing in Alappuzha District. The Government are of the view that the number of Notaries practicing at present in Alappuzha District is enough to meet the needs of the locality. Hence the memorial of Sri. C.K. Rajendran is rejected.” 4. It is thus challenging the legality and correctness of Exhibit P6 order, this writ petition is filed. 5. The respondents have filed a counter affidavit refuting the allegations made by the petitioner and justifying the stand adopted in Exhibit P6 order. The relevant portion of the counter affidavit reads thus: “4. The procedure of appointment of a Notary will become complete only after W.P.(C) No.5742 of 2016 4 the issuance of a Certificate of Practice under Section 5(b) of the Notaries Act, 1952 which authorize him to practice as a Notary for the area and term referred to in that Certificate. This respondent has initiated steps for the appointment of the petitioner and some other applicants as Notaries. But it was withdrawn by this respondent as it would amount to violation of Sub Rule (4A) Rule 8 of the Notaries Rules, 1956 which prescribes the number of Notaries that can be appointed by the appropriate Government. The number of Notaries appointed by the Government of Kerala was more than the allowed strength at that time. Later, petitioner's application was rejected by this respondent and the same is perfectly within the authority of the Government under Rule 8(1) (c) of the Notaries Rules, 1956 and also valid on the ground that the petitioner was not issued with a Certificate of Practice. Hence, the rejection of the application vide letter dated 17/01/2012 Ext.P2 letter is perfectly legal and is done as per provision of the Notaries Act and Rules. 5. It is submitted that Government on 09.01.2012 have fixed district wise quota for the appointment of Notaries on the basis of the strength available as on 01.03.2011. As per the same, the quota fixed for Alapuzha District was 67. At present there are 70 notaries practicing in the District. 6. It is true that the petitioner is eligible to get appointment as a Notary as per the report of the competent authority and the interview board. But as per rule 8(4A) of the Notaries Rules, 1956 the maximum number of Notaries that can be appointed by Government of Kerala was 845 at that time and the Government was not in a position to appoint any new Notary as it will become contrary to Rule 8 (4A) of the Notaries Rules, 1956. Certificate of Practice was not issued to the petitioner so as to avoid violation of Sub Rule 4(A) of Rule 8 of the Notaries Rules, 1956 and the Government has power to reject the application as the petitioner was never issued with a Certificate of Practice. W.P.(C) No.5742 of 2016 5 7. It is submitted that the petitioner was an applicant for appointment as Notary and his application was considered and steps were initiated for appointment as Notary. But later, the petitioner was not issued with a Certificate of Practice due to want of vacancy. Subsequently, his application was rejected and the same was intimated to him vide letter dated 17.01.2012. The respondent had initiated proceedings for the appointment of the petitioner and some other applicants as Notaries and it is a part of such proceedings. Later, this respondent had withdrawn the appointments as it would amount to violation of Sub- Rule 4(A) of Rule 8 of the Notaries Rules, 1959, which mandates that number of notaries appointed shall not exceed the number of notaries specified in the Schedule and the said aspect was mentioned in Ext.P6. His application was rejected on account of the said reason and the same was intimated to him vide letter dated 17.01.2012. 8. It is further submitted that Government has considered the application in compliance with the direction issued by this Hon'ble Court in Ext.P5 judgment directing the Government to consider and pass appropriate orders on the representation within a period of three months. Government have examined the matter in detail and rejected the same holding that the application submitted by the petitioner was already rejected in the year 2012, since the notaries at Alappuzha is sufficient to meet commercial needs of that District. 9. It is further submitted that on verification of the records, it was found that as on 01.03.2011, there existed 845 Notaries already appointed by the State Government. Hence, the State Government could not have appointed any new Notary. Government subsequently found that similar directions for appointment as in the case of petitioner were given on other 24 applications also. No Certificate of practice and notification has been issued to them also. The directions in the case of such applicants were reviewed by the Government and communicated to the applicants. The memorial of the W.P.(C) No.5742 of 2016 6 petitioner is kept pending in this department. Hence, there is no violation of Fundamental Rights of the petitioner. 10. None of the grounds raised in the writ petition are tenable. Ext.P6 is perfectly valid and legal as it was issued in accordance with law. Petitioner's memorial was rejected by this respondent for valid reasons and the same was intimated in the year 2012 itself vide letter dated 17.01.2012. 11. The respondent had again considered the application of the petitioner in the light of Ext.P5 judgment, and rejected the same as per Ext.P6 order. There was no absence of power or action without jurisdiction or subversion of Rule of Law and Constitutional guarantees against discrimination, authoritarianism unreasonableness and arbitrariness in this case and hence there was no violation of fundamental rights, as alleged by the petitioner. 12. It is humbly submitted that the Government has to take a decision with respect to the requirements of an area in question, and make necessary appointments, that it is for the respondents to take a decision in accordance with law and in accordance with the requirement of Notaries available in various areas and that no manner of illegalities can be attributed on the State Government in not issuing certificate of practice to the petitioner. 13. It may be noted that a large number of applicants are found eligible to be appointed as Notaries in various districts like the petitioner. Only a limited number of vacancies arise to accommodate such applicants. Hence, the respondents are not in a position to give appointment to all of them. The Government has complied with the Judgment of this Hon'ble Court dated 27.07.2015 and reconsidered application of the petitioner at that time and found that the number of the Notaries having valid Certificate of Practice as on that date is 997 out of which 70 Notaries are practicing in Alapuzha W.P.(C) No.5742 of 2016 7 District which were enough to meet the needs of the locality. A Division Bench of this Hon'ble Court in **Chandrasekharan K.K. Vs. State of Kerala and Others (** MANU/KE/0892/2003) held that State Government has been left with the discretion to assess the commercial needs of different areas within its jurisdiction and to make allocations of the number of each District. In **Shanti Sports Club vs. Union of India** (2009 (15) SCC 705), the Hon'ble Apex Court has reiterated that Article 166(1) of the Constitution requires that all executive action of the State Government shall be expressed to be taken in the name of the Governor and held that noting recorded in the official file by the officers of the Government at different levels and even the Ministers. do not become decision of the Government unless the same is sanctified and acted upon by issuing an order in the name of the President or Governor, as the case may be, authenticated in the manner provided in Articles 77(2) and 166(2) and is communicated to the affected persons. The learned Division Bench of this Hon'ble Court, by Judgment dated 08-02-2017 in W.A No.3/2017, upheld the stand of the Government relying on the said decision of the Apex Court. In the said Judgment, this Hon'ble Court held that even if the competent authority records a noting in the file, which indicates that some decision has been taken by the authority concerned, the same can always be reviewed by the same authority or reversed or overturned or overruled by higher functionary/authority in the Government and that by no stretch of imagination, can such noting be treated as a decision of the Government and that such notings are transitory/temporary, but not final. 14. It is submitted that the total number of Notaries allotted to the State of Kerala at that time was 845. As per the notification published as on 31.01.2011 under Section 6 of the Notaries Act, 1952 the total number of Notaries in Kerala was 743. The said list includes the names of Notaries who are in possession of valid Certificate of Practices as on 01.01.2011. Thus 102 W.P.(C) No.5742 of 2016 8 notaries can be appointed by the Government as per statistics as on 31.01.2011. Along with this 19 applications received from the notaries for renewal of Certificate of Practices are also to be considered. Thereafter, from 1.01.2011 to 01.03.2011, Government had appointed 83 Notaries. By this, there existed only 19 vacancies as on 01.03.2011, for which the applications received from the notaries for renewal of Certificate of Practices were to be considered because even though their Certificate of Practice was expired, their names were not removed from the register of notaries, their application for renewal of Certificate of Practice was pending with the Government. From this it may be seen that the said appointments were ordered in the vacancies of the applications received from the notaries for renewal of Certificate of Practices pending. 15. It is also submitted that the appointments made by the Government after 24.04.2012 are in the vacancies arised subsequent to the order of appointment in the petitioner's file, due to various reasons such as death or termination of Notaries who are removed from the Register of Notaries. Moreover, certain appointment noted by the petitioner is ordered in compliance of the judgments of this Hon'ble Court in certain Writ Appeal and Writ Petitions. Hence, the same vacancies cannot be claimed by the petitioner. 16. It is also submitted that the respondent had considered the application of the petitioner in the light of Ext.P5 judgment, and rejected the same as per Ext.P6 order. There was no absence of power or action without jurisdiction or subversion of Rule of Law and Constitutional guarantees against discrimination, authoritarianism unreasonableness and arbitrariness in this case and hence there was no violation of fundamental rights, as alleged by the petitioner. It is well within the power of the Government to take a decision with respect to the requirements of an area W.P.(C) No.5742 of 2016 9 in question, and make necessary appointments, that it is for the respondents to take a decision in accordance with law and in accordance with the requirement of Notaries available in various areas and that no manner of illegalities can be attributed on the State Government in not issuing certificate of practice to the petitioner.” 6. This writ petition was admitted to the files of this Court as early as on 16.2.2016 and it is remaining without securing any interim orders. Now six years have elapsed and at this distance of time, one cannot legally presume that anything survives to be adjudicated on its merits. 7. I have heard learned counsel for petitioner Sri.P.V.Jayachandran, learned Senior Government Pleader Sri.Aravind V. Mathew and perused the pleadings and materials on record. 8. In my considered opinion, Exhibit P6 order makes it clear that out of 1000 vacancies, 997 were filled up. The Government was also of the view that the number of Notaries practising at present in Alappuzha District is enough to meet the needs of the locality and appointments of Notary is guided by the provisions of the Notaries Act, 1952 and the Rules thereto. 9. Going through the counter affidavit filed by respondents also, I am satisfied that it was assigning proper reasons and after hearing the petitioner that the decision was taken to decline the reliefs sought for by the petitioner. Having analysed the situation, I am of the considered opinion that petitioner has not made out any case of arbitrariness or illegality, susceptible to be interfered with in a W.P.(C) No.5742 of 2016 10 proceeding under Article 226 of the Constitution of India. However, I make it clear that if the petitioner is still interested to pursue his remedy to secure the Certificate of Practice as Notary, it is for the petitioner to file a fresh application before the Government for appropriate relief. Leaving open the said liberty, the writ petition is disposed of. If any such application is filed by the petitioner, I have no reason to think that it will not be considered by the Government in accordance with law. **Sd/-** **SHAJI P.CHALY** **JUDGE** smv W.P.(C) No.5742 of 2016 11 ## **APPENDIX OF WP(C) 5742/2016** ## **PETITIONER'S EXHIBITS** **P1 - TRUE COPY OF THE COMMUNICATION NO. 1356/H2/2010/LAW DT. 23.2.2011. P2 - TRUE COPY OF THE COMMUNICATION NO. 1356/H2/2010/LAW DT. 17.01.2012.** **P3- TRUE COPY OF THE CIRCULATION NOTE NO. 17263/H2/2011/LAW DT. 08.11.2011. P4 - TRUE COPY OF THE COMMUNICATION NO. 15427/H2/2012/LAW DT. 28.7.2012. P5 - TRUE COPY OF THE JUDGMENT IN WRIT PETITION (C) NO. 27684/2012 DT. 27.07.2015.** **P6 - TRUE COPY OF THE ORDER GO (RT) NO. 1558/2015/AW DT. 28.11.2015.**