Partly allowed

Sindu Bernard v. State of Kerala and Another

Kerala HC1 Apr 2009WP(C)/3646/2007

Case brief

AI extract

What is this about?

This appeal concerns the appointment of a Notary Public. The petitioner sought a Certificate of Registration under Rule 8(4) of the Notaries Rules, 1956, claiming all formalities were met. The second respondent opposed, stating the entry was a mistake and no vacancy existed as she exceeded the sanctioned strength. The Court clarified no vested right exists merely due to entry by mistake but direct

What did the court decide?

The petitioner declared as having no vested right, but entitled to appointment if vacancy arises. First Respondent directed to consider eligibility and pass orders within three months after hearing.

Sindu Bernard Vs State of Kerala and Another — Pension and Retirement Benefits | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON

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WEDNESDAY, THE 1ST APRIL 2009 / 11TH CHAITHRA 1931

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

PETITIONER:

SINDU BERNARD, ADVOCATE, "MERRY DALE" (T.C.10-1597), OPP: DURGA TEMPLE, NALLANKARA, NETTISSERY P.O., TRICHUR.

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BY MR.MATHEW JOHN (K), ADVOCATE. MR.SUJESH MENON V.B., ADVOCATE.

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RESPONDENTS:

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STATE OF KERALA, REPRESENTED BY THE SECRETARY LAW, LAW DEPARTMENT, GOVERNMENT OF KERALA, TRIVANDRUM.

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THE ADDITIONAL LAW SECRETARY TO GOVERNMENT (COMPETENT AUTHORITY) UNDER NOTARIES ACT, LAW DEPARTMENT, GOVERNMENT OF KERALA, TRIVANDRUM.

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BY MR. V. TEKCHAND, GOVERNMENT PLEADER.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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

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A P P E N D I X

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PETITIONER'S EXHIBITS:

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EXT. P1	:	COPY OF THE REPRESENTATION DTD. 23.4.2003 BY THE PETITIONER.
EXT. P2	:	COPY OF the MEMO DTD. 7.5.2003.
EXT. P3	:	COPY OF THE COMMUNICATION DTD. 21.10.2004.
EXT. P4	:	COPY OF THE CHALAN EVIDENCING THE PAYMENT OF FEE DTD. 2.3.2006.
EXT. P5	:	COPY OF the COMMUNICATION DTD. 8.5.2006 BY THE 2ND RESPONDENT.
EXT. P6	:	COPY OF THE COMMUNICATION DTD. 18.5.2006 BY THE 2ND RESPONDENT.
EXT. P7	:	COPY OF the NEWS ITEM IN THE MALAYALA MANORAMA DAILY DTD. 4.9.2007.

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RESPONDENT'S EXHIBITS: NIL.

// True Copy //

P.A. to Judge.

smp

P.R. RAMACHANDRA MENON, J.

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

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Dated this the 1^st day of April, 2009.

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J U D G M E N T

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The prayer of the petitioner is for directing the first

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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.

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The second respondent has filed a counter affidavit

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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

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

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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

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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.

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It has been stated in paragraph 4 of the counter affidavit

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

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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.

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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

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

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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.

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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

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

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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.

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This writ petition is disposed of accordingly.

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P.R. RAMACHANDRA MENON JUDGE

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smp

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

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P.R. RAMACHANDRA MENON, J.

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

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J U D G M E N T

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01.04.2009

Sindu Bernard v. State of Kerala and Another

Case brief

What is this about?

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Sindu Bernard v. State of Kerala and Another

Case brief

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What did the court decide?

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