State of Kerala v. Sindu Bernard

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 12TH JULY 2010 / 21ST ASHADHA 1932 WA.No. 1887 of 2009() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.3646/2007 Dated 01/04/2009 .................... APPELLANT(S): RESPONDENTS ------------------------- 1. STATE OF KERALA, REP. BY THE SECRETARY LAW, LAW DEPARTMENT, GOVT. OF KERALA, THIRUVANANTHAPURAM. 2. THE ADDITIONAL LAW SECRETARY TO GOVERNMENT (COMPETENT AUTHORITY), UNDER NOTARIES ACT, LAW DEPARTMENT, GOVT. OF KERALA, THIRUVANANTHAPURAM. BY SR.GOVERNMENT PLEADER SMT.K.MEERA RESPONDENT(S): PETITIONER ------------------------- SINDU BERNARD, ADVOCATE, "MERRY DALE", (T.C.10-1597), OPP. DURGA TEMPLE, NALLANKARA, NETTISSERY P.O., TRICHUR. BY ADV. SRI.MATHEW JOHN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 14/06/2010, THE COURT ON 12/07/2010 DELIVERED THE FOLLOWING: ## **J.CHELAMESWAR, C.J. & P.N.RAVINDRAN, J.** ---------------------------------------- W.A.No.1887 of 2009 ---------------------------------------Dated this the 12[th] 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 1[st] 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 1[st] 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 Notaries_ W.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 as_ W.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 District_ W.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 28[th] 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 1[st] 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 28[th] 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