RADHAKRISHNAN Vs. LAW SECRETARY

JUDGEMENT

(1.) THE Original Petition has been filed by the petitioner, who is a practising Advocate, to quash Exts. P5, P7 and P11 orders and for the mandamus directing the respondents to appoint him as a Notary Public at Kannur. According to the petitioner, he joined Government service as an Assistant public Prosecutor Grade II on 31. 5. 1975 and subsequently he was appointed as judicial First Class Magistrate and he retired as such as 29. 2. 1984. From march, 1984 he rejoined the Kannur Bar and has been practising as an Advocate in the various courts at Kannur and Thalassery; THE petitioner, as required under the Notaries Act and the Notaries Rules, submitted a memorial in Form no. 1 to the Deputy Secretary, Department of law, Secretariat, thiruvananthapuram along with a covering letter dated 16. 3. 1990 requesting the government to appoint and admit him as a Notary Public in Kannur. Copy of the memorial and the covering letter are produced and marked as Exts. P1 and P2 respectively. THE petitioner received a reply on 16. 6. 1990 from the respondent pointing out certain defects in the memorial and returning the same for rectification, under ext. P3. THE defects were cured and the application was re-submitted to the respondent under Ext. P4. THE petitioner subsequently received a latter dated 27. 4. 1990 from the respondent, Ext. P1 informing him that his application for appointment as Notary Public was rejected. THE reason stated in Ext. P5 order was that the petitioner was not having the required qualification of 10 years continuous practice as a legal practitioner as on the date of the application. On receipt of Ext. P5, a further representation dated 31. 8. 1990 was made by the petitioner stating that the petitioner had more than 18 years of practice as an advocate prior to his joining Government service as Assistant Public Prosecutor and more than six years of practice as an Advocate after his retirement. Besides that, his Government service was also as Assistant Public Prosecutor and Judicial Magistrate. THE petitioner accordingly requested for consideration of his Ext. P1 memorial, which was rejected on 5. 10. 1990 under Ext. P7, on the ground that a person to be eligible for appointment as a Notary Public, he should have continuous 10 years practice as an Advocate and that it is not sufficient to have more than 10 years total practice. THE petitioner again submitted another representation dated 24. 11. 1990 stating that similar persons who were having only less than 10 years continuous practice had been appointed as Notary Public by the Government. He cited a specific instance of the appointment of one Prabhakara Naik as a Notary Public at Kasaragod who was rank no. 23 in the list of Assistant Public Prosecutors Grade 1 and who retired as a sub Judge on 16. 7. 1985. According to the petitioner, Mr. Prabhakara Naik was appointed as a Notary Public without insisting on the requirement of continuous ten years practice as an Advocate and only in the case of the petitioner such a condition is insisted upon by the respondent.

(2.) IT is the case of the petitioner that R. 3 (b) of the notaries Rules, 1956 does not require 10 years continuous practice as a legal practitioner as on the date of the application for appointing a person as notary. According to the petitioner, the rule only says that no person who has got 10 years service as a legal practitioner would be entitled to be appointed as a Notary and since the petitioner has several years of practice as a legal practitioner and has also held a post of Judicial First Class Magistrate, he is preeminently a fit person to be considered for appointment as a Notary. However his request for appointment as a Notary was refused only on the ground that he did not have 10 years continuous service as a legal practitioner on the date of application. IT is contended that the approach made by the respondent in rejecting the application is clearly illegal and unsustainable in law, and therefore, liable to be quashed.

(3.) 2 (d) defines "notary" to mean a person appointed as such under the Act. In this case, we are concerned with R. 3 which prescribes the qualification for appointment as Notary, which reads thus: "3. Qualifications for appointment as a notary - No person shall be eligible for appointment as a Notary unless on the date of the application for such appointment - (a) he is a notary public appointed by Master of faculties in England, or (b) he has been practising as legal practitioner for at least ten years". Initially R. 3 ran as follows: "3. No person other than a legal practitioner shall be eligible for appointment asa Notary: (a) unless he is immediately before the commencement of the Act practising as notary public in India or in any part thereof; or (b) unless he has been bound by a contract in writing or by indenture of apprenticeship> to serve and has in pursuance of such contract or indenture actually and continuously served as an articled clerk to a practising notary for not less than three years. " The said old rule has been substituted as above by G. S. R. 151 dated 14. 3. 1959. The words "practising as" were inserted in the new sub-clause (b) by G. S. R. 1056 dated 30. 10. 1958. Thus, it is seen from the above legislative changes to clause (b) of R. 3 that (1) initially the notary was expected to be actually and continuously serving as an articled clerk to a practising notary for not less than three years; (2) then he was "' expected to be a legal practitioner for at least ten years and now, by the last amendment, a person must be practising as a legal practitioner for at least ten years for his being appointed as notary. I have already referred to the definition of "legal practitioner" vide S. 2 (c ). 5. The legislature, while making the legislative changes, wanted that a legal practitioner who has been practising as such for at least ten years will be qualified to be appointed as notary and not the person who has been called merely to be legal practitioner often years standing remaining dormant with a Samad (licence or certificate of legal practitioner) and not practising as such. Thus, it is clear that a person must be practising as a lawyer for not less than 10 years and he is expected to possess knowledge of various laws in general including commercial and stamp laws to his credit. Since notarial acts are of international importance, a notary is also expected to be well conversant with English language to prepare documents and make endorsements in English language for the international authorities and or persons concerned to understand them.