Friday, September 24, 2010

Appointment of Notary Public case reg. G.Balasundaram, Advocate, Pondicherry

G.Balasundaram Vs. Union of India, Rep. By Govt. of on 27 August, 2010

Madras High Court

DATED : 27.08.2010

CORAM: THE HON'BLE MR. JUSTICE N.PAUL VASANTHAKUMAR

W.P.No.5877 of 2006 and WPMP No.6370 of 2006

G.Balasundaram ... Petitioner

Vs.

1. Union of India, rep. By Govt.of Pondicherry through the Chief Secretary to Govt. Pondicherry.

2. Secretary to Government for Law Department, Pondicherry.

3. Under Secretary to Govt. for Law Department, Pondicherry. ... Respondents

Petition filed under Article 226 of the Constitution of India, praying for a Writ of certiorarified mandamus, calling for the records of the third respondent with No.59-7/2007/LD dt. 22.2.2006 in respect of appointment of Notary Public and to quash the same and consequently to direct the respondents to consider the application submitted by the petitioner and to prepare a fresh selection list and to appoint the petitioner as Notary Public.

For Petitioner : Mr.V.Ajaykumar

For Respondents : Mrs.N.Mala,GP(Pudicherry)

O R D E R

The prayer in the writ petition is to quash the selection list bearing No.59-7/2007/LD dated 22.02.2006, issued by the third respondent selecting Notary Public in so far as the Union Territory of Puducherry is concerned.

2. The case of the petitioner is that he is a practising Advocate in Pondicherry, who got enrolled as an Advocate on 20.01.1990 and he is practising in Civil, Criminal, Revenue, Consumer and Labour matters in Pondicherry. The petitioner submitted an application in September 2000 for appointing him as Notary Public of Pondicherry Government. The petitioner belongs to Schedule Caste community of Pondicherry origin. The petitioner's application submitted in September 2000 was not considered at all till 22.02.2006. According to the petitioner as per the Notaries Act, 1952, 100 Notary Public can be appointed by the Central Government in respect of Union Territory of Pondicherry and 100 Notaries can be appointed by the Government of Union Territory of Puducherry. As on the date of the petitioner's application, i.e. in Septemmber 200, nearly 63 persons were appointed in the Union Territory quota of 100.

3. According to the petitioner, as per Section 6 of the Notaries Act, 1952 every State shall during the month of January every year publish a list of Notaries appointed by the Government. As per Rule 4 of the Notaries Rules, 1956, an application has to be submitted before the competent authority appointed by the Government, who is called Notified Officer. The competent authority has to consider the application under Rule 6 of the Notaries Act. According to the petitioner if the application is not rejected within six months, it is to be presumed that the applicant is eligible for appointment. The petitioner's application has not been rejected till date, even though his application was submitted in September 2000. Under Rule 6 of the Notaries Act, if the competent authority decides to reject the application, a hearing should be given to the concerned person as provided under Rule 7 of the Notaries Act and he has to submit a report recommending rejection and if a recommendation to reject the application is made, the competent authority is bound to conduct an enquiry and he should also give an opportunity to the applicant to meet the objections and thereafter, can reject the application.

4. So far as the Union Territory of Puducherry is concerned, the Under Secretary (Law) is not the competent authority to consider and recommend the application of all the applicants and refer the matter to the Chief Judge, Puducherry for making recommendations for appointment to the Government. According to the petitioner out of 99 candidates appointed as Notary Public in the Union Territory of Puducherry, as on today no Schedule Caste candidate is appointed, even though the experience required for a Schedule Caste candidate to get appointment as Notary Public is seven years Bar experience and for others the experience required is ten years. On 22.02.2006, 35 candidates were appointed as Notary Public and according to the petitioner more than 16 candidates are juniors to him. Since the petitioner is not appointed as Notary Public inspite of availability of 36 vacancies, he has filed this writ petition by contending that he is discriminated.

5. The learned counsel for the petitioner also submitted that not giving proportional representation to the Schedule Caste candidates in the appointment of Notary Public in the Union Territory of Puducherry is discriminatory and violative of Article 14 of the Constitution of India.

6. The writ petition was admitted by this Court on 06.03.2006. The petitioner filed WPMP No.10609 of 2006 to implead the selected 35 candidates as party respondents. This court taking note of the fact that there are vacancies available, dismissed the impleading petition by observing as follows:

"This petition, to permit the petitioner to implead respondents 4 to 38 on the ground that the petitioners wants to set aside the entire selection, cannot be considered. It is stated that the alleged strength of Notaries for the Union Territory is 100 and after the impugned order, two or three persons passed away, creating some vacancies. Mr.Sasidharan, learned Government Pleader (Pondy) for respondents 1 to 3 states that in case, the petitioner succeeds, there is every likelihood of the petitioner occupying one of the vacancies and therefore, ordering notice to all the 34 respondents is not necessary. In the light of the same, this petition is dismissed."

Those selected candidates are not impleaded as party respondents, even though the petitioner has taken steps to implead the selected candidates. Thereafter, one more candidate was selected and total number of selected candidates as on today is 36 , ie. from 2006.

7. The learned Government Pleader (Puducherry) submitted that as on today, totally 99 vacancies are filled up and only one vacancy of Notary Public is available to Puducherry Union Territory quota. The said statement is recorded.

8. The respondents have filed a counter affidavit stating that the petitioner is appointed as a Notary Public for Puducherry by the Central Government with effect from 13.06.2008 and as per Section 3 of the Notaries Act, 1952, Notary Public can be appointed by the Central Government, for the whole or any part of India, and any State Government, for the whole or any part of the State, from among the legal practitioners or other persons who possess such qualifications as may be prescribed. The petitioner cannot agitate the claim made in the writ petition after being appointed as a Notary Public for Puducherry by the Central Government with effect from 13.06.2008. It is also stated in the counter affidavit that the appointment as Notary has to be made in all the four regions of the Union Territory of Puducherry, namely Pondicherry, Karaikal, Mahe and Yanam. It is also stated that none of the applications received were rejected, since all the applicants fulfilled the requisite qualification prescribed under the Notaries Act, 1952 and the Notaries Rules 1956. The said applications were processed by the competent authority and 35 persons were originally selected and one person was subsequently selected. It is further stated that no reservation can be claimed as a matter of right for appointment of Notaries as claimed by the petitioner in the affidavit, merely because the petitioner is a Scheduled Caste candidate.

9. The learned counsel for the petitioner submitted that the petitioner being a Scheduled Caste candidate and no other Scheduled Caste candidate having been appointed, he has got right to be appointed as a Notary as he is found eligible and he is having more experience than any of the persons notified. The learned counsel also submitted that even though there is no provision for reservation of Schedule Caste or any other category, proportionate representation has to be maintained by the Puducherry Government while making appointment of Notary Public and the action of the respondents in not selecting the petitioner is discriminatory.

10. The learned counsel for the petitioner also submitted that the appointment of the petitioner as a Notary Public of Puducherry by the Central Government is in the year 2008 and if the petitioner is selected as Notary Public for the Union Territory of Puducherry under its quota, he will immediately resign and accept post of the Notary Public of Union Territory of Puducherry and therefore, the said subsequent selection may not be put against the petitioner.

11. The learned Government Pleader reiterated the contention raised in the counter affidavit filed in the writ petition and submitted that one Scheduled Caste candidate was appointed out of 36 candidates and proportional representation has been given to several categories of persons including women, backward class, general category and persons belong to four regions. The learned counsel also produced a list in support of her contention.

11. I have considered the said rival submissions made by the learned counsel for the petitioner and the learned Government Pleader (Puducherry).

12. The point in issue is whether the petitioner has made out a case to consider his claim of appointment as Notary Public under the Union Territory of Puducherry quota even without quashing the impugned selection.

13. Rule 3 of Notaries Rules 1956 stipulates the eligibility for appointment as notary, which reads thus: "Rule 3. No person shall be eligible for appointment as a notary unless on the date of the application for such appointment,- (a) a person had been practising at least for ten years, or

(aa) a person belonging to Scheduled Castes/Scheduled Tribes and other Backward Classes had been practising at least for seven years, or (ab) a woman who had been practising at least for sever years, as a legal practitioner, or (b) he had been a member of the Indian Legal Service under the Central Government, or (c) he had been at least for ten years,-

(i) a member of judicial service; or

(ii) held an office under the Central Government or a State Government requiring special knowledge of law after enrolment as an advocate; or (iii) held an office in the department of Judge Advocate General or in the legal department of the armed forces.'

The petitioner's qualification for over 15 years as on the date of selection, he applied in September 2000 and his appointment has not been rejected till date are admitted facts. Totally 36 persons were appointed and licenced by the Union Territory of Puducherry from 2006 is also admitted. From the perusal of the rule it is evident that SC candidates are given concession regarding Bar experience. The said conclusion is given with an object that they should be given due representation while appointing or licencing. While making selection the respondents are bound to bear in mind the said matter to render social justice particularly in a pure rationalistic society, where various factors are to be considered, while taking any decision affecting rights or privileges to citizens.

14. Admittedly, there is one vacancy available for the post of Notary Public of Union Territory of Puducherry. The learned Government Pleader (Puducherry) submitted that the petitioner's name is also included for considering the said vacancy and the Government may also consider the claim of the petitioner and appoint him and if he is appointed, he has to resign from the Notary Public appointed by the Central Government before accepting the offer of appointment. Therefore the controversy in this case get minimised. The list of selected persons numbering 36 contains the details as follows:

"LIST OF CANDIDATES SELECTED FOR ISSUE OF NOTARY LICENCE

1 M.Vinayagamoorthy,B.A.B.L., No.59, Veerampattinam Road, Ariyankuppam, Pondicherry BC Presently functioning as Asst.Govt. Pleader 17 yrs of Practice

2 O.Deivassigamany,B.A.L.L.B., 58, Laporte Street Pondicherry 1 BC 15 yrs of Practice

3 R.Govindaraju, B.A.B.L., No.25, Thiagu Mudaliar Nagar, D Block, Mudaliarpet, Pondicherry 4 BC/PH 25 yrs of Practice Presently Asst. Public Prosecutor

4 A.V.Ramalingam, B.A.B.L., Plot No.55, Second Main Road, Thirumal Nagar, Pondicherry 13 Gl. 17 yrs of Practice

5 M.Thirukanna Selvan, M.A.B.L., No.50, 9th Cross, Second Street, Rainbow Nagar, Pondicherry Gl. 15 yrs of Practice

6 R.Parthasarathy, M.Sc., B.L., 218, Lal Bahadur Shastry Street, Pondicherry 1 BC Retd. Civil Judge (Jr.Div.) Pondy Judicial Service Revived practice from 2001

7 P.Shanmugam, B.Sc., B.L. No.61, Lenin Street, Kosapalayam, Pondicherry 13 35 yrs of Practice

8 Geddam Eswara Rao, B.Com.B.L., Farampeta, Yanam SC only applicant from Yanam

9 A.Shahida Parveen, B.L., No.132, Muthia Mudaliar Street, Muthialpet, Pondicherry 3 Lady Advocate Minority Serving the legal service Authority cell since 6 yrs. 15 yrs of Practice

10 Fathima Bai, M.A.,B.L. No.16, Thillai Nagar, Mudaliarpet, Pondicherry 605 004. Lady Advocate (Minority) 15 yrs of Practice

11 V.Kamala Kumar, B.A.L.L.M. No.41, 1st Cross, Rainbow Nagar, Pondicherry Lady Advocate Christian Minority 12 yrs practice

12 C.K.Ajithakumari, B.Sc.,M.L., No.29, Calve Bangalow Main Street, Pondicherry 11 Lady Advocate 18 yrs of Practice

13 J.Marie Anna Dayavady, B.Sc.,L.L.M., "Villa Jagan" 42, Needarajappaiyer Street Pondicherry 605 001 11 yrs practice BC Christian Minority Dip. In French Law Ex-Member, Pondicherry Legal Services Authority

14 P.Rajarajan, B.A.,L.L.B., No.2, 13th Cross street, Avvai nagar, Lawspet, Pondicherry 8 BC 12 yrs of Practice Knowledge of French

15 N.Balamourougan, B.A.B.L., No.40, Middle Street, New Saram, Pondicherry 13 BC 12 yrs of Practice

16 C.T.Ramesh, B.L. No.23, Suffren Street, Pondicherry BC 15 yrs of Practice

17 R.Soundrarajan, B.A.B.L., No.20, I Cross, Sivagami Nagar, Reddiarpalayam, Pondicherry 605 010 G1 17 yrs of practice

18 N.Manavalan, M.A.B.L., Manapet & Post, Bahour Commune, Pondicherry BC 19 yrs of Practice

19 S.Ravy, M.A.B.L., No.9 I Cross, Iyyanar Koil Street, Veemakavundanpalayam, Pondicherry 605 009. BC 14 yrs of Practice

20 C.Elangovan, M.A..B.Ed.,B.L., No.70, Kattabomman street, Kamaraj Nagar, Pondicherry BC 15 yrs of Practice

21 Antony G.T. "Thomas" No.5 Rue Saint Jean De Britto, Colos Nagar, Pondicherry 605 001 BC Christian Minority 11 yrs of Practice

22 K.S.Mohandass, Plot No.1, 10th Street, Rainbow Nagar, Pondicherry 605 011 BC, Dip. in French Law Certificate in French, Ex-Judge Family Court Ex-President Bar Assn.

23 S.Pajaniraja, B.A.,L.L.B., No.13, II Cross, Raja Iyyer Thottam, Pillaithottam, Pondicherry 13 Gl 12 yrs of Practice

24 S.Sridhar, B.A.,L.L.B. 24, 10th Cross , Rajaji Nagar, Lawspet Post, Pondicherry 8 BC 12 yrs of Practice

25 B.Sethuram, B.L. No.10, 20th cross street, Avvai Nagar, Lawspet, Pondicherry 8 BC 14 yrs of Practice

26 Ou.Pandurangane, B.Com.B.L., 76, Post Office Street, Periyakalapet, Pondicherry 14 BC, Rural 26 yrs of Practice

27 M.Suganantham, B.Sc., B.L., P.G.D.F.L., No.56, Kamatchi Amman Koil St., Pondicherry 40 yrs of Practice Well exposed to French law. A very leading Sr.Lawyer. Dip. In French law

28 K.Subramanian, B.A., B.Com., L.L.B., PGDFL., No.23, Othavadai Street, Mudaliarpet, Pondicherry 4 BC Retd. Govt. Servant PH 9 yrs of Practice

29 P.P.Radhakrishnan, B.A.L., L.L.B., Lakshmi Nivas, Parakkal, Mahe 673 310 BC Mahe region 13 yrs of practice

30 V.Vetrivel, B.A.L.L.B. 23 Vannara Street, Mudaliarpet Pondicherry 4 BC 11 yrs of Practice

31 P.Segar, B.A.B.L., No.35/A, Iyyanar Koil street, Delarshpet, Pondicherry BC 18 yrs of Practice

32 A.Abdul Rachide, B.A.B.L. No.13, Milad Street, Pondicherry 1 Minority, 26 yrs of practice worked as Spl.Govt.Pleader. Dy counsel in Legal Aid Bd. Conciliation Cell, Pondicherry Legal Service Authority & convenor Lok Adalat Proceedings.

33 Ahmed Ansari 8 Moulasa Maricar street, Karaikal 11 yrs practice Muslim Minority

34 A.V.J.Selvamuthukumaran 103 Jawaharlal Nehru Street, Karaikal BC 9 yrs practice

35 G.Pouchanapadimurty No.8, Navaneedam Garden, Kauveri Nagar, Reddiarpalayam, Pondy. BC 19 yrs of practice

36 V.Govindasamy 11, Kanadiar street, Karaikal General 20 yrs of practice

15. From the perusal of the above list it is evident that 21 Backward Class candidates and 5 general candidates are selected and appointed, but only one Scheduled Caste candidate, that too from Yanam region is selected and the remaining candidates are selected and appointed either on the basis of minority religion or on the basis that they are women. Thus, it is evident that one class is given so much importance for selection of Notary Public in the Government of Puducherry. While selecting 36 candidates which was made in the year 2006, the petitioner is also admittedly found eligible for appointment in terms of counter affidavit filed. He was having more than 15 years of experience in the year 2006 when the Notary Public appointments were made. I am aware that there is no specific rule for reservation of vacancies for appointment of Notary Public on any ground. However, as per the list above mentioned it is evident that there is over representation to particular Class of community people and only a token representation is given to Scheduled Caste community, i.e. one out of 36. Therefore, the petitioner is justified in claiming that he should have been appointed by considering the claim made by him as Scheduled caste candidate even though there is no specific reservation provided for such appointment to maintain the sense of participation of all in a democratic society.

16. Democratically elected Government while administering a State or Union territory is duty bound to see that all sections of the society and all regions of the State or Union territory are given due importance in all fields particularly, education and extending certain privileges purely on the Government's discretion. If the discretion is not properly exercised, it would lead to unreasonableness and arbitrariness and Court is entitled to look into the grievance of affected persons and the same cannot be dismissed by stating that if interfered it will amount to interfering in administrative matters. The Supreme Court in the decision in Hari Ram and Another vs. State of Haryana and others reported in 2010 (2) CTC 336 held that if the Court is not interfering in such matters, a tendency will develop that affected party can approach the Government alone and not Courts to get reddressal of his grievance and the said tendency cannot be encouraged by Courts. In paragraph 24, it is held thus:-

"....If this Court does not correct the wrong action of the State Government it may leave citizens with the belief that what counts for the citizens is right contacts with right persons in the State Government and that judicial proceedings are not efficacious".

This kind of Governmental action will ultimately lead to seeking of reservation and also seeking quota within quota etc. and to avoid such complications it is always better if the Government is maintaining equality and giving sense of satisfaction to all classes of persons without discrimination and if the same is satisfied the Courts will not interfere in Governmental actions particularly in discretionary matters.

17. The learned counsel for the petitioner also submitted that as and when the petitioner is appointed/licenced as Notary Public from the Union Territory of Puducherry, he will resign as a Notary Public appointed by the Central government for Puducherry region. The said submission is also taken note of and recorded.

18. It is the case of the learned counsel for the petitioner that only one person is appointed out of 36, in S.C. Category of Advocates, which reveals the lack of representation or far less representation, when the population of Scheduled Caste community is more than 15%. Thus the petitioner has made out a strong case for appointing him as Notary Public by the Union Territory of Puducherry.

19. Hence, the writ petition is disposed of giving direction to the respondents to consider the claim of the petitioner for one vacancy available for licencing as Notary Public by the Government of Puducherry and pass orders within a period of four weeks from the date of receipt of a copy of this order and if the petitioner is not found disqualified in any other manner his claim shall be considered, and only if he is found disqualified for any reason for rejection of his application, then only the respondents can fill up the said vacancy through any other person. No costs. Consequently, connected miscellaneous petition is closed.

gms

To

1. The Chief Secretary to Govt Union of India, Govt.of Pondicherry .

2. The Secretary to Government for Law Department, Pondicherry.

3. The Under Secretary to Govt. for Law Department, Pondicherry.

Courtesy_

http://www.indiankanoon.org/doc/669201/

http://judis.nic.in/chennai/qrydisp.asp?tfnm=27365

1 comment:

  1. Nice article, well said about the Notary Public law. Very informative and relevant.

    ReplyDelete

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