Back
2014 Supreme(Mad) 3102
High Court of Judicature at Madras
V. RAMASUBRAMANIAN, J.
The Secretary
Versus
The Secretary to Government & Another
Writ Petition No.23093 of 2014
Decided on: 10-09-2014
For the Petitioner:D. Selvam for S.Y. Masood, Advocates.
For the Respondents:G. Rajagopalan, ASG for Haja Mohideen Gisthi, Advocate.
Headnote:
Notaries Act, 1952 - Section 3 - Notaries Rules, 1956 - Rule 3 - Applications for appointment as a Notary - Form of a memorial addressed to competent authority - Constitution of Interview Board is stipulated - Chairman of Bar Council of Tamil Nadu and learned Additional Solicitor General appearing for respondents - Under Section 3 of Notaries Act, 1952 Central Government for whole or any part of India and any State Government for whole or any part of State can appoint as Notaries any legal practitioners or other persons who possess such qualifications as may be prescribed - Under Section 15 of Act Central Government have power to make Rules to carry out purposes of Act - Matters for which provision could be made in Rules are listed out in Sub-section (2) of Section 15 - Under Clause (a) of Sub-section (2) of Section 15 qualifications of a Notary form and manner in which applications for appointment as a Notary may be made and manner of disposal of such applications are some of matters in respect of which provision may be made in Rules - In exercise of power so conferred by Section 15(1) of Act, Central Government issued Notaries Rules, 1956 - Rule 3 of said Rules prescribes following qualifications without possession of which a person will not become eligible for appointment as a Notary – Held, Placing reliance upon Rule 7-A(1) it is contended by Additional Solicitor General that it is for competent authority to decide date time and place fixed and that same cannot be questioned - Strictly construed Rule 7-A(1) appears to support said contention - But that is not end of issue - Once hundreds of applicants were shortlisted and called for interview in April and once interviews scheduled to be held at that time were cancelled respondents owe a public duty not to repeatedly make aspirants travel - It is not a question of right of individuals who apply for appointment as Notary - It is also a question of hardship for candidates - Court cannot lose sight of fact that just of members of Bar corner of work in Courts and remaining have very little work left over – Therefore to make all of them undertake a trip for a second time is not fair enough - Fact that persons have already participated in interviews without any protest cannot really make a difference - Some persons may find it convenient because of nearness of their location by a travel overnight – But persons who live in southernmost corner of State may find it difficult to travel - It is public knowledge that getting train tickets these days is impossible - Contention that officers of Central Government who have other duties to perform may not be able to spare time continuously for about days to go out cannot also be accepted - As per Rule 7-A(2) Interview Board is to comprise of three persons Chairperson of which alone should be of a rank not lower than that of Joint Secretary to Government - It is always easy for Government machinery to depute three officers to go over to conduct interviews for about a week rather than asking nearly candidates to travel up from all nooks and corners of State - Writ petition is allowed
1. The Bar Council of Tamil Nadu and Puducherry has come up with the above writ petition seeking the issue of a writ of Mandamus to direct the respondents to shift the place of interview from New Delhi to Chennai, for appointment of Notaries in the State of Tamil Nadu, insofar as Advocates hailing from Tamil Nadu are concerned.
2. Heard Mr.D.Selvam, Chairman of the Bar Council of Tamil Nadu and Puducherry and Mr.G.Rajagopalan, learned Additional Solicitor General appearing for the respondents.
3. Under Section 3 of the Notaries Act, 1952, the Central Government for the whole or any part of India and any State Government for the whole or any part of the State, can appoint as Notaries, any legal practitioners or other persons who possess such qualifications as may be prescribed. Under Section 15 of the Act, the Central Government have the power to make Rules to carry out the purposes of the Act. The matters for which provision could be made in the Rules, are listed out in Sub-section (2) of Section 15. Under Clause (a) of Sub-section (2) of Section 15, the qualifications of a Notary, the form and manner in which applications for appointment as a Notary may be made and the manner of disposal of such applications, are some of the matters in respect of which provision may be made in the Rules.
4. In exercise of the power so conferred by Section 15(1) of the Act, the Central Government issued the Notaries Rules, 1956. Rule 3 of the said Rules prescribes the following qualifications, without the possession of which, a person will not become eligible for appointment as a Notary:
(i) at least 10 years of practice as a lawyer;
(ii) at least 7 years of practice in the case of persons belonging to Scheduled Caste/Scheduled Tribes and other Backward Classes;
(iii) at least 7 years of practice in the case of a woman;
(iv) a Member of the Indian Legal service under the Central Government;
(v) at least 10 years as a Member of a Judicial service;
(vi) at least 10 years of office under Central Government or State Government requiring special knowledge of law after enrollment as an Advocate; and
(vii) at least 10 years of holding office in the Department of a Judge Advocate General or in the Legal Department of the Armed Forces.
5. A person fulfilling any one of the above conditions, may make an application under Rule 4(1), through the concerned District Judge or the Presiding Officer of the Court or the Tribunal where he practices as an Advocate. The application should be in the form of a memorial addressed to the competent authority. The memorial should be signed by the applicant and countersigned by the persons whose names are indicated in clauses (a) to (d) of Sub-rule (3) of Rule 4.
6. Upon an application being submitted to the competent authority, the competent authority may reject the same in terms of Rule 6(1), if the applicant does not possess the qualifications specified in Rule 3 or if a previous application of the same applicant was rejected six months before the date of the application.
7. If the application of a person is not rejected in terms of Rule 6(1), the competent authority should ascertain from the Bar Council or the Bar Association or other authority in the area where the applicant proposes to practise, objections if any to the appointment of the person concerned as a Notary. This is under Rule 6(2)(b) of the Rules.
8. After receipt of the objections from the Bar Council or the Bar Association under Rule 6(2)(b), the competent authority should hold an enquiry under Rule 7(1). While holding the said enquiry, the competent authority should give an opportunity to the applicant, to make his representations against the objections received from the Bar Council or Bar Association. Thereafter, the competent authority should submit a report to the appropriate Government, whether the applicant could be allowed to appear before the Interview Board or not. It is only after such a preliminary scrutiny and a decision taken on th
