Deelip Suryabhan Peste vs The State Of Maharashtra And ...
2021 Latest Caselaw 15503 Bom

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        0IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   BENCH AT AURANGABAD

                      WRIT PETITION NO.3347 OF 2020

Deelip Suryabhan Peste
Age 48 years, Occ. Legal Practitioner,
R/o Limbalwadi (Nalegaon),
Ta. Chakur, District Latur.                          ...Petitioner

                Versus

1.     The State of Maharashtra
       Through its Secretary,
       Law and Judiciary Department,
       (Notary Cell) E-05th Floor,
       Mantralaya, Mumbai.

2.     The Interview Board,
       Law and Judiciary Department,
       (Notary Cell) E-05th Floor,
       Mantralaya, Mumbai.

3.     Purushottam Vaijnath Shete
       Age 45 years, Occ. Advocate & Notary,
       R/o Notary, Civil Judge, Junior Division,
       Chakur Tal. Chakur, Dist. Latur               ...Respondents

                                   ...

Mr. Deelip Suryabhan Peste, Petitioner-in-person. Mr. P.S. Patil, AGP for the Respondent Nos. 1 & 2.

Mr. N.P. Patil Jamalpurkar, Advocate for Respondent No.3.

...

CORAM : RAVINDRA V. GHUGE & S.G. MEHARE, J.J.

RESERVED ON : 21st SEPTEMBER, 2021 PRONOUNCED ON : 28th OCTOBER, 2021

JUDGMENT (PER S.G. MEHARE, J.):-

1. Rule. Rule made returnable forthwith and heard fnally by

consent of the parties.

2. The advocate/petitioner approached this Court for seeking

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directions to set aside the order dated 14.02.2020 passed by the

Superintendent (Law), Law and Judiciary Department, Mantralaya

Mumbai, in Review Application No.907-2019/Notary/E as well as

direction to respondent no.1 to issue a certifcate of appointment of a

notary public in his favour.

3. The petitioner supports the issues raised in this petition by

contending that since 2001 he has been practicing law at Chakur and

Latur District Court. The Government of Maharashtra had issued a

Gazette Notifcation dated 18.05.2016 bearing No.251 of 2016 inviting

the applications from the eligible candidates for the appointment of the

notary public at Chakur, Udgir, Ausa, and Shirur-Anantpal for one post

each. In the said notifcation, it was specifcally mentioned that the

application should be submitted as per Notary Rules, 1956 particularly,

Rule 3 and 4 in Form-2 of the Notaries Rules, 1956. The petitioner has

submitted his application through District Judge/ Presiding Ofcer Latur

on 15.06.2016. The learned Principal District Judge, Latur issued a

recommendation order on 16.06.2016 in his favour. The respondent

called him for an interview vide communication dated 14.11.2017 along

with other similarly situated candidates on 24.11.2017. He faced the

interview and secured 25 marks. However, the selection board has

recommended the name of a suitable candidate to the Government. He

was not intimated the order of the decision on the recommendations

made by the board. He learnt that respondent no.4, who has secured

only 21 marks, has been appointed as a notary public for Chakur

Taluka.

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4. The petitioner is the only candidate who has complied with

the notifcation inviting the application and sent his application through

the Principal District Judge, Latur. The appointment of respondent no.3

is against the Notary Rules. He got the information under the Right to

Information Act from the Ofce of District Court, Latur, that except him

and Keshav Narayan Kardile, nobody has submitted the application for

a notary public to his Ofce. The respondents have invited the other

candidates who have not applied for notary as per rules and interviewed

them. Knowing about the illegal appointment of respondent no.3, he

complained under Rule 8 sub-rule 3 of Notaries Rules, 1956 with

respondent no.2. Upon hearing, his complaint was rejected directing

him to fle a review application. Accordingly, on 15.10.2019, he fled a

review application with the competent authority. Upon hearing him on

the said application, his review application is rejected by the impugned

order.

5. The petitioner submits that the State Government has

appointed a person as a public notary for Taluka Chakur, who has

secured less marks than him and had not applied through proper

channels, i.e., Principal District Judge. Therefore, the impugned order is

illegal and in breach of the notary rules. He is the only eligible candidate

for appointing as a notary public for Taluka Chakur. Therefore, the

impugned order may be quashed and set aside, and respondent no.1 be

directed to appoint him as a notary public.

6. Respondent nos.1 and 2 by their afdavit in reply have

come with a case that the applications were invited as pointed out by the

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applicant. In all, 10 applications were received for Chakur Taluka. The

committee has scrutinized the applications. The committee found all 10

candidates suitable. Hence, interviews were conducted on 24.11.2017.

The interview board has recommended the names of all those 10

candidates to the Government as per Rule 7-A of the Notaries Rules,

1956. The Government approved the name of respondent no.3 and

accordingly appointed him. The allegations leveled by the petitioner are

in general and hence were denied. The Principal District Judge, Latur,

had not recommended, but only forwarded the application of the

petitioner to the Competent Authority (Notary Cell) Government of

Maharashtra, Mumbai. The necessary and relevant rules have been

followed in letter and spirit. In the exercise of powers under Rule 8 of

the Notaries Rules, 1956, the Government approved the name of

respondent no.3. The rule does not mandate that the application be

routed through the Principal District Judge only to appoint the notary

public. In other words, there is no bar to fle or submit the application

directly to the authority concerned. In the the exercise of it's power, the

Government has appointed respondent no.3 and committed no error of

law. Hence, the petition is devoid of merit.

7. The petitioner in person submits that in view of Rule 4 of

the Notaries Rules, 1956, he applied for the appointment of the notary

public for Chakur Taluka through Principal District Judge, Latur. In

2016, all the applications had to be routed through the District Judge or

Tribunal, where the candidates were practicing. Therefore, the

application fled directly to the competent authority should not have been

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considered. He was the only candidate who had followed the mandate

of the rules. Therefore, the applications of other applicants should not

have been considered by the interviewing board. It is a violation of the

law since he was the only eligible candidate, who ought to have been

appointed, but without assigning any reason, respondent no.3 who had

secured less marks than him, has been appointed. That is the

discrimination and violation of Article 14 and 16 of the Constitution of

India.

8. He further argued that the Government has failed to inform

any order passed by it regarding the appointment of the notary. The

interviewing board has specifcally recommended the name of the

candidate as per merit based on the marks secured in the interview, but

till this date, whom the board had recommended, is undercover. He

would further argue that as per Rule 8 of the Notaries Rules, 1956, once

the recommendations are made by the competent authority/interview

board, the Government shall consider the recommendations and

appoint the person recommended by the interview board. The

Government has no discretion to appoint the person not recommended

by the Interview Board. As per Rule 8 of the Notaries Rules, 1956, the

Government should allow or reject the application. The reasons quoted

in the impugned order are contrary to the provisions of law. The

mandate of law is apparently violated by the respondents and had

shown unnecessary favour to respondent no.3. Therefore, the impugned

order is liable to be set aside.

9. The learned AGP for the State would argue that there is no

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substance in the petition. The petitioner has not challenged the

appointment of respondent no.3. He has come before the Court seeking

the quashing of the impugned order, which was on the sole ground that

only the applications fled through the Principal District Judge should

have been valid and the committee could have considered no other

applications. The record indicates that the notary rules are strictly

followed, and the appointment of respondent no.3 is legal and valid.

10. Shri Patil, learned Counsel for respondent no.3, has

opposed the petition on various grounds. His frst limb of argument is

that recommendations of the interview board are absolutely not binding

on the Government. It is the sole desire of the Government to appoint

any one of the persons recommended by the interview board. The

interview board has recommended all the candidates being suitable.

The interview board has not explicitly recommended the name of any of

the applicants. The appointment of respondent no.3 is not challenged.

Therefore, the relief as prayed for by the petitioner could not be granted.

To bolster his arguments, he relied upon case law that will be

considered in the following paragraphs.

11. The frst limb of argument of the petitioner is that the

competent authority should only consider the applications routed

through Principal District Judge. He referred to the notifcation dated

18.05.2016 whereby the applications from the practicing lawyers for the

appointment of the notary public for Chakur and other Talukas, were

invited. As against this, the learned Counsel for respondent no. 3, has

raised a serious objection that in 2016 there was no procedure to route

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the application only through the District Judge.

12. In the circular dated 18.05.2016, it is specifcally mentioned

that the applications are invited in the prescribed Form and procedure

as prescribed in rule 4 and candidates eligible under rule 3 Notaries

Rules,1956 in Form-I/ Form-II.

13. Rule 4 of the Notaries Rules,1956 (Rules 1956 for short)

pertains to the application for appointment as a Notary. As per the said

rule, on the notifcation issued by the Government in the ofcial gazette,

a person may apply for an appointment as a notary in Form-I or Form-II

as applicable. The petitioner has referred to Section 4 and argued that

in 2016, Rule 4 was in force. He strenuously pressed into service rule

4(1), which was in existence in 2016. The book he has referred to

indicates that the applications should be routed through the Principal

District Judge or Tribunal, where the applicant is practicing.

14. Rule 4 was amended frstly in 2009 and was brought into

effect from 01.03.2009. The amended Rule 4(1) of 2009 reads thus:

"4 Application for appointment as a notary. (1) A person may make an application for appointment as a notary (hereinafter called "the applicant"), through the concerned District Judge or the Presiding Ofcer of the Court or Tribunal where he practices as an Advocate, in the Form of memorial addressed to such ofcer or authority (hereinafter referred to as the "competent authority") of the appropriate Government as that Government may, by notifcation in the Ofcial Gatette, designate in this behalf."

              By     G.S.R.    700(E)       dated    September        24     2009
          (w.e.f.24.09.2009)sub




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            rule 2-A was inserted, which reads thus,

"(2A) A person applying in Form II for appointment as a notary may submit the memorial direct to the Competent Authority of the appropriate government".

Subsection 3 was as follows;

"3. The memorial of a person referred to in clause (a) of rule 3 shall be signed by the applicant and shall be countersigned by the following persons:-

(a) a Magistrate;

(b) a Manager of a nationalised bank;

(c) a merchant and

(d) two prominent inhabitants of the local area within which the applicant intends to practise as a notary.

12. The above sub-rule (2A) and (3) were omitted by G.S.R. 821 (E) dated 5.11.2019 (w.e.f. 6.11.2019)

13. Before the substitution of Rule 4(1) in 2009, the said rule stood as under.

4 (1) A person may make an application for appointment as a notary (hereinafter called "the applicant") in the form of memorial addressed to such ofcer or authority (hereinafter referred to as the "Competent authority") of the appropriate Government as that Government may, by notifcation in the Ofcial Gatette, designate in this behalf.

14. Rule 4 (1) then amended in 2019, (w.e.f. 06.11.2019) which reads thus;

"4(1) A person may make an application for appointment as a notary (hereinafter called "the applicant") online in Form I or Form II as applicable, addressed to such ofcer or authority (hereinafter referred to as the "competent authority") of the appropriate Government as that Government may, by notifcation in the Ofcial Gatette, designate in this behalf.G

After extensive research, we fnd that till 06.11.2019, rules

4(1), 2-A and 3 of Rules 1956, the rules substituted in 2009, were

in force.

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15. The circular dated 18.05.2016 by which the applications

were invited by the Law and judiciary department further mention that all

the eligible candidate shall send the applications in the prescribed Form

either by registered post/speed post only. In the light of inviting the

applications directly by post, the question is, does the notifcation

override the prescribed procedure laid in rule 4 (1) of Rules 1956?

Reading the circular dated 18.05.2016, it appears to be just an

advertisement inviting the applications from the eligible candidates.

16. Rule 4(1) of the rules 1956, provided that the appropriate

Government may designate the Competent Authority to whom the

applications are to be addressed by notifcation in the Ofcial Gazette.

Rule 6 of the Rules 1956 provides for the preliminary action on the

applications. The competent authority has to examine the correctness of

such applications, whether any earlier application of the applicant is

rejected within the six months before the application. He may, if deems

ft, ascertain from any Bar Council, Bar Association, Incorporated Law

Society, or other authority in the area where the applicant proposes to

practice. He has also to ascertain the objection, if any, received

against the applicant to appoint him/her as a Notary Public. He has to

examine whether the application is submitted in time.

17. Under rule 7, the competent authority has to hold such an

inquiry as he thinks ft, give the applicant an opportunity of hearing on

the objections against his appointment, and report to the appropriate

Government recommending that the applicant be allowed to appear

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before the Interview Board. Sub-rule 3 of Rule 7 speaks of while making

the recommendation the competent authority shall have due regard to;

(a) whether, the applicant ordinarily resides in the area in which

he propose to practice as a notary;

(b) whether, having regard to the commercial importance of the

area in which the applicant proposes to practice and the number of

existing notaries practicing in the area, it is necessary to appoint

any additional notary for that area;

(c) whether, having regard to his knowledge and experience of

commercial law and the nature of the objections, if any, raised in

respect of his appointment as a notary, and in any case of a legal

practitioner also to the extent of his practice, the applicant is ft to be

appointed as a notary;

(d) where the applicant belongs to the frm of legal practitioners,

whether, having regard to number of existing notaries in that frm, it

is proper and necessary to appoint any additional notary from that

frm; and

(e) where the applications from other applicants in respect of the

area are pending, whether the applicant is more suitable than such

other applicants.

18. The above rules describe the powers and duties of the

competent authority. Where the law or rules determine the powers and

duties of any authority, no authority can travel beyond such powers,

unless the appointing Authority is expressly conferred with any such

powers. The rules are principles governing conduct or procedure within

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a particular area of activity. Rules have the force of law. Nothing can be

done against the rules. The rules bind the concerned authority who has

to follow it. Where a particular procedure is laid down in the rules, the

implementing authority has to follow the procedure prescribed under

such rules. Rules help guide actions towards the desired result.

19. Reading rule 4 (1) as was in existence in the year 2016, the

procedure to apply for the appointment as a notary as a law practitioner,

was that every such application by the legal practitioner, shall be routed

through the concerned District judge or the Presiding Ofcer of the

Court, or Tribunal where he was practicing law. Considering the powers

and duties of the competent authority as discussed above and in the

absence of new rule or specifc power, we are of the view that, the

settled principle of law, that, where the manner of doing a particular act

is prescribed under the statute, the act must be done in that manner or

not at all, shall be applied. The competent authority had no powers to

consider the applications from the candidates from the legal practitioner

directly sent by registered or speed post deviating the rules calling such

application through the district judge or presiding ofcer of the Court or

tribunal.

20. In view of the above, we fnd force in the argument of the

petitioner that in 2016, it was the mandate of rule 4 (1) of the Rules

1956, that the applications from the candidates practicing law should be

routed through the District Judge, or Presiding Ofcers of the Court or

Tribunal only. While rejecting the review application of the petitioner,

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the Superintendent for the Government assigned the reason that rule

4(1) does not provide to, mandatorily, submit the application through the

District Judge. She has emphasized the word "May" used in rule 4(1),

and tried to interpret it as not obligatory. The authority passing the

impugned order on review application of the petitioner, appears to have

lost sight of sub-rule (2) and (3) of rule 4 of the Rules 1956, wherein it is

provided that the memorial shall be drawn by a person referred to in

clause (a) of rule 3 in accordance with Form I and by a person referred

to in clause (b) and (c) of the said rule in accordance with Form II.

Clause (a) of rule 3 relates to the candidates practicing law. The term

"may" used in rule 4(1) of the Rules 1956 pertains to the applicant who

desires to appoint him as a notary. It is not relating to the procedure,

how to apply for the appointment as a notary. The applications shall be

in the forms prescribed in the Rules 1956. Form-I is for the persons

practicing law. Form II is for persons other than the persons practicing

law. As such, the application shall be in the prescribed Form only. The

authority passing the impugned order, under misconception, wrongly

interpreted the rules and applied the procedure applicable to the

candidates other than the applicants practicing law, to the application of

the petitioner. Therefore, the authority passing the impugned order had

arrived at an incorrect conclusion. For these reasons, we hold that the

impugned order is erroneous.

21. The petitioner has vehemently argued that the District

Judge used to recommend the names of the suitable candidates for the

appointment of notary, and his recommendations were binding on the

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Government.

22. To counter the above argument of the petitioner, the

learned counsel for respondent no.3 has vehemently argued that the

recommendation of any authority is not binding on the appointing

authority or the Government in this case. To bolster his arguments, he

relied upon the case of Dr. Prem Lata Vs GNCT of Delhi and Ors in

W.P.(C) 178/2011 decided on May 3, 2011 by the Delhi High Court.

This was the case concerning the appointment to the Ofce of the

President of District Consumer Disputes Redressal Forum (District

Forum), Delhi. The selection committee was constituted in accordance

with Section 10(1A) of the Consumer Protection Act, 1986. The

selection committee made its recommendation for flling up the

vacancies in the Ofce of fve districts. The name of the petitioner did

not fgure in the names of fve selected candidates in the said

recommendation. However, his name was mentioned as a "second

person", in the event of Mr. M.C. Mehra whose name was fgured at

serial no.4 in the list of selected candidates, not joining. The petitioner

claimed that the panel was subsequently revised, and inspite the

petitioner, being a candidate in waiting in the event of Mr. M.C. Mehra

not joining, his name was placed at serial no.6 i.e. entitled to join in the

event of any frst fve selected candidates not joining within 45 days of

the offer of appointment. Respondent nos.4, 5, and 6, whose names

appeared at serial nos.1, 2, and 5 respectively of the selected

candidates, did not join within 45 days from the offer of appointment.

Therefore, he became entitled to be appointed. He made a

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representation seeking his appointment, but it was not entertained.

Hence, he approached before the Delhi High Court.

23. On the basis of the above facts, the Delhi High Court

referred to various case laws of the Hon'ble Apex Court. Relying on the

case of Divisional Forests Officer and Ors Vs. M. Ramalinga Reddy

(2007), 9 SCC 286, which lays down that selected candidates have no

legal right to be appointed automatically.

24. The learned Counsel Shri Patil would further relied on the

case of State of Kerala Vs. A . Lakshmikutty, (1986) 4 SCC 632 . It was

the case of the recommendations of respondents for the posts of District

Judge. The candidates were recommended by the High Court.

However, by its decision dated 30.01.1985 and 28.02.1985, the Cabinet

Ministry quashed the recommendations made by the High Court. The

petition for the issuance of writ of mandamus directing the Governor to

act on the recommendations of the High Court was fled to fll up fve

posts of District Judge reserved for direct recruitment from the

practicing members of the bar under Article 233(1) of the Constitution of

India. The High Court of Kerala allowed the petition. The State

approached the Hon'ble Supreme Court challenging the impugned

order. The Cabinet Ministry has declined the recommendations for the

reasons that there was non-representation of the candidates belonging

to the 'Latin-Catholics and Anglo-Indians', Other Backward Classes and

Scheduled Castes and Scheduled Tribes. On the backdrop of this fact,

the Hon'ble Apex Court held on page 25, second part, that 'there would

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be no difculty, but the High Court has gone a step further'. The

issuance of writ of mandamus by the High Court directing the State

Government i.e. the Governor to act on the recommendation of the High

Court to fll up the 5 vacancies in the posts of District Judge meant for

direct recruitment from the members of the bar under Article 233(1),

was constitutionally impermissible. Although High Court was not

oblivious that the 'advice' of the Council of Ministers to reject the panel

of fourteen names submitted by the High Court could not be subject to

judicial review and that Article 163(1) of the Constitution precludes an

inquiry as to the nature of the advice given by the Council of Ministers to

the Governor, still it has issued a writ in the nature of mandamus upon

the basis that it is called upon to adjudge the illegality and propriety of

the two decisions taken by the State Government through the

instrumentality of the Council of Ministers.

25. Further, relying on the decision of this Court in the case of

State of Rajasthan and Others Vs. Union of India, (1978) 1 SCR 1 , it is

observed that, so long as the question remains whether the Council of

Ministers acted within the limits of their power or exceeded it, it can be

decided by the Court. Apart from saying that the reasons given on the

basis of which the Council of Ministers on February 28, 1985, reviewed

their earlier decision of January 30, 1985, and decided not to appoint

respondents nos.1 and 3-6 as District Judges on the recommendation of

the High Court viz due to non-representation of the candidates

belonging to the 'Latin-Catholics and Anglo-Indians', Other Backward

Classes and Scheduled Castes and Scheduled Tribes, were no reasons

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at all, and that the action of the competent authority, the State

Government in rejecting the panel sent by the High Court was totally

arbitrary, illegal and improper. It further observed that 'there was an

overt attempt on the part of the State Government to appoint persons

from outside the panel' which was constitutionally impermissible, and

relied on the proposition laid down in Padfed's case that 'if the Minister

gave no reasons, the Court might infer that he had no good reasons to

give'. It accordingly held that the action of the State Government had no

rational nexus to the object sough to be achieved i.e. implementation of

the scheme of communal reservation laid down in rr.14 to 17 of the

Kerala State and Subordinate Services Rules made applicable by Note

beneath r.2(b) of the Kerala State Higher Judicial Services Rules.

26. The Hon'ble Apex Court accordingly set aside the order of

the High Court of Kerala. The Hon'ble Apex Court, lastly, by writ in the

nature of mandamus, directed the State Government to communicate its

view to the High Court to elicit its opinion within six weeks and, if

necessary, make a fresh effort to fnd suitable candidates from the

communities or groups of communities passed over before taking a fnal

decision in the matter. In consequence, the State Government's

decision not to make appointments from the panel forwarded by the

High Court and to re-notify the vacancies, was quashed.

27. The learned Counsel Shri Patil then relied on the case of

Dr. H. Mukherjee Vs. Union of India, 1994 AIR 495 , again contending

that the recommendations of any committee are not binding in any

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nature to the Government.

28. Examining the Notaries Act and Rules, it appears that the

rules are amendment from time to time. Rule 7-A of rules 1956, is

inserted in 2009, whereby the interview board was constituted. Sub-rule

2 of Rule7-A was substituted by GSR 700(E) dated 24.09.2009 (w.e.f.

24.09.2009). The said rule reads thus:

"7A.Constitution of the Interview Board.- (2) For the said purpose, one or more Interview Boards shall be constituted by the appropriate Government from amongst its ofcers dealing with legal matters, and the Chairperson of every Interview Board shall be an ofcer not below the rank of Joint Secretary or Law Ofcer of that Government.G" [Provided that the appropriate Government may dispense with the condition of holding of interviews for which reasons are to be recorded in writing,G (this proviso clause is inserted by G.S.R. 429 (E) dated 18.04.2016 (w.e.f. 19.04.2016.)

29. Before substitution of rule 7-A(2) by G.S.R. 700 (E) dated

24.09.2009, (w.e.f. 01.03.2009) stood as under:

"(2)"For the said purpose, a three members Interview Board shall be constituted by the appropriate Government from amongst its ofcer dealing with legal matters. The Chairperson of the Interview Board shall not be an ofcer below the rank of Joint Secretary of that Government."

30. Though Rule 7-A was inserted in 2009, the practice routing

the application through the District Judge under rule 4 (1) remained

intact till 06.11.2019 for the applicants, who are practicing lawyers.

Before the substitution of rule 7 (1) in 2009, (w.e.f.1.3.2009), stood as

under:

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"7 (1) the competent authority shall, after holding such inquiry as he thinks ft and after giving applicant an opportunity of making his representations against the objections, if any, received withing the time fxed under sub rule (2) of rule 6, make a report to the appropriate government recommending either that the applicatuon may be allowed for the whole whole or any part of the area to which the application relates or that it may be rejected".

28. Rule 6 was also substituted in 2009 (w.e.f. 1.3.2009). Under substituted rule 6, the competent authority was authorited to reject the application summarily, if the application is not complete in all respects or the applicant does not possess the qualifcations specifed in Rule 3 and also had the discretion to inquire as to the appointment of the applicant as a notary for the purpose of practice.

31. Rule 4 (1) is lastly amended by GSR 821(E) dated

05.11.2019 (w.e.f. 06.11.2019), which reads thus:

"4. Application for appointment as a notary.-[(1) A person may make an application for appointment as a notary (hereinafter called "the applicant"), online in Form I or Form II as applicable, addressed to such ofcer or authority (hereinafter referred to as the "competent authority") of the appropriate Government as that Government may, by notifcation in the Ofcial Gatette, designate in this behalfG (2) The memorial shall be drawn by a person referred to in clause (a) of rule 3 in accordance with Form I and by a person referred to in clauses (b) and (c) of the said rule in accordance with Form II."

32. Reading the substitution made in the relevant rules as

discussed above, rule 6(1) was substituted, and rule 7-A was inserted

on 24.02.2009, rule 4(1) remained intact till the substitution of 2019.

The case before us is in relation to the advertisement by the State of

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Maharashtra dated 18.05.2016 and, therefore, covered under R.4(1) as

it stood prior to 06.11.2019.

33. In the light of the insertion and substitution of rules as

discussed above, it should be examined who was the competent

authority and whether the District Judge was to recommend the names

of applicants (practicing law) to the appropriate Government. Rule 4(1)

of Rules 1956 provides that the appropriate Government may designate

the competent authority, by notifcation in the Ofcial Gazette. It is in the

domain of the Government to designate the competent authority. On

appointing such person as a competent authority, he must discharge the

functions contemplated in rules 6 and 7. However, by substitution of

2009 in rule 7 (1) of rules 1956,the competent authority is empowered to

recommend that the applicant may be allowed to appear before the

Interview Board.

34. The paper book page no. 13 reveals that the Learned

Principal District Judge Latur had forwarded the application of the

petitioner to the Competent Authority, Ministry of Law and Justice,

Department of Legal Affairs ( Notary Cell), Branch, 5 th foor, Mantralaya

Mumbai. The circular dated 18th, May 2016, an advertisement,

mentions that the applications were invited through the competent

authority. It clears that in 2016, the learned Principal District Judge

Latur was not designated as a competent authority. He had to route the

applications to the competent authority. Hence we hold that question of

recommendation by the learned Principal District Judge Latur does not

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arise. We also discard the argument of the petitioner that the

recommendation of competent authority is binding on the Government

for the other reason that since 2009, the competent authority has a

limited role of examining the applications and recommending that the

applicant may be allowed to appear before the Interview Board.

35. In 2016, rule 4(1) was clear that the applications from the

legal practitioners categories shall be routed through the District Judge,

or the Court or Tribunal where the applicant practices law. The applicant

has routed his application through the learned Principal District Judge,

Latur. It is not in dispute that respondent no.3 had not routed his

application through the learned Principal District Judge Latur. In the

above backdrop, the petitioner argues that the application of respondent

no. 3, ought to have been rejected by the competent authority, and the

Interview Board should not have recommended him to the Government.

36. It is not in dispute that the competent authority had received

ten applications in all. All the candidates were invited for interview on

24.11 2017. All of them participated in the interviews. The minutes of

the said interviews are placed on page number 57 of the paper book. It

is mentioned therein that 10 applications were scrutinized by the

Scrutiny Committee constituted for the purpose. Instead of examining

the applications and holding inquiry as prescribed under rules 6 and 7 of

Rules 1956, an unprecedented Scrutiny Committee was constituted by

the competent authority. There is nothing placed on record by the

Government to show that the Scrutiny Committee was constituted under

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a specifc provision. It also does not refect that the competent authority

had recommended the names of eligible candidates suitable for the

interviews. It appears that a foreign procedure is followed against the

rules prescribed by the Government.

37. It further reveals that the Legal Adviser-cum-Joint

Secretary was also a member of Interview Board and Competent

Authority. On perusal of the rules, particularly rules 6 and 7, it appears

that the role of the Competent Authority is to examine the applications

and recommend the candidates to be allowed to appear before the

Interview Board. Considering the rules mentioned above and the

distinct and independent duties ,functions, and, roles of the competent

authority and Chairperson of the Interview Board, we are of the view that

the Competent Authority shall not be part of the Interview Board.

Besides, the interview was taken without disclosing it in the

advertisement, the various heads and the manner of allocation of marks.

Abruptly the Interview Board conducted the interviews and determined

10 marks for General Awareness, 05 marks for Experience of Practice,

and 10 marks to Knowledge of Law and gave 2 marks to the candidates

having experience of 7-10 years, 3, marks to experience of 10 to 20

years and 4 marks to the experience above 20 years. These marks were

added to the marks earned in interviews. Such an interview was a

surprise to the candidates. In this regard, a statement is made by the

Solicitor-cum Deputy Secretary in his additional afdavit in paragraph

no. (vi) that each member of the Interview Board allots marks out of 25

and thus the consolidated marks given by all the three members of the

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panel are out of 75 marks. This is done without disclosing such

procedure in the advertisement. The marks determined for experience

were also not disclosed in the advertisement. The minimum benchmark

was also not disclosed in the advertisement. The Interview Board does

all this exercise without disclosing or making it public in the

advertisement.

38. Rule 8 is about the appointment of notaries. It provides that

on recommendations of the Interview Board, the appropriate

Government shall consider the recommendations and shall, (a) allow

the application in respect of the whole 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 ft 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.

39. The question that the recommendations of either the

competent authority or the Interview Board is mandatory or directory, is

hotly debated by the contesting parties. We have already answered the

role of competent authority above. So far as the word "shall" used in

rule 8 of the Rules 1956 is concerned, it is to answer whether the

recommendations made by the Interview Board are mandatory to the

Government. In the case of Sainik Motors v State of Rajasthan AIR

1961 SC 1480, the Hon'ble Apex Court laid down the law that "The word

'shall' is ordinarily mandatory but it is sometimes not so interpreted if the

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context or the intention otherwise demands." In State of U.P and Ors v

Babu Ram Upadhyay (1961) 2 SCR 679, the Hon'ble Apex court laid

down the law, that " When a Statute uses the word "shall", prima facie, it

is mandatory, but the Court may ascertain the real intention of the

legislature by carefully ascertaining the whole scope of the statute. For

ascertaining the real intention of the Legislature the Court may consider,

inter alia the nature and statute, and the consequences which would

follow from construing it the one way or the other, the impact of other

provisions whereby the necessity of complying with the provisions in

question is avoided, the circumstances, contingency of the non-

compliance with the provisions, the fact the non-compliance with the

provisions is or is not visited by some penalty, the serious or trivial

consequences that fow therefrom, and, above all, whether the object of

the legislation will be defeated".

40. So far as the process of the appointment on any public

service post based on the recommendations of selection committee or

board is concerned, the Hon'ble Apex Court in R.S. Mittal v Union of

India 1995 supp (2) 230 held that "though there is no vested right to be

appointed to the post for which a candidate has been selected but the

appointing authority cannot ignore the panel or decline to make the

appointment and when a person has been selected then ordinarily there

is no justifcation to ignore him for appointment unless there is a

justifable reason to decline to appoint a person who is on the selection

panel."

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41. To interpret whether the word 'shall' found in rule 8, is

mandatory or directory, in view of the law laid down by the Hon'ble Apex

Court in Sainik Motors and Babu Ram Upadhaya ( supra), the context in

which it is used and the intention of the notaries act, is to be seen. The

preamble of the Notaries Act, 1952, is " An Act to regulate the

profession of notaries." The object of its bill was to empower the Central

and State Government to appoint notaries, not only for the limited

purposes of the Negotiable Instruments Act, but generally for all

recognized notarial purposes, and to regulate the profession of notaries.

42. Section 3 of the said Act empowers the Central or State

Government to appoint the notaries. The appropriate Government 'may'

appoint the notaries qualifed as per rule 3 of the Rules 1956. The rules

1956 are made under the powers of the Central Government under

section 15 of the Act. Rule 7 of the Rules 1956, refects that the

appointment of the notaries is made having regard to commercial

importance of the area. The knowledge and experience of commercial

law is another factor to be considered by the competent authority while

making the recommendations to the Government. Rule 8 further

provides that the notaries may be appointed in respect of the whole area

or any part of the area to which the application relates. The commercial

activities in a particular area and the need of the notaries is, as appears

from Rules 1956 and the Act, a primary factor.

43. Rule 13 empowers the appropriate Government to make an

inquiry against the notaries into his misconduct. In an inquiry, if the acts

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and omissions complained of against the notaries are proved, the

Government may cancel his certifcate of practice and perpetually debar

him from practicing notary, or suspend his certifcate of practice, or warn

him. These rules are explicit that the Notaries are under the control of

the appropriate Government.

44. Section 5 of the Act provides that the name of the notary

shall be entered in the certifcate authorizing him to practice is for fve

years and after every fve years it shall be renewed, on payment of fees.

Section 9 bars the practice without the certifcate. Section 12 provides

for falsely representing to be a notary and if the notary does any act in

contravention of section 9, it is cognizable offence. The transaction of

business by a notary is governed under rule 11.

45. Reading the above provisions and rules, it is in no manner

of doubt, the appointment of notary is not a mere formality. It is a

service for the public to be performed with good character, integrity,

ability, and competence. The person desirous to be appointed as notary

has to go to through two tests. Firstly, by satisfying his application is

complete in all respect. He must be a resident of the area for which he

applied. He must be qualifed as prescribed in rule 3. His previous

application shall not be rejected six months before the application. He

has to face objection if any raised on his appointment. Secondly, he

must possess the knowledge and experience of commercial laws. He

must be recommended by competent authority to appear before

Interview Board, and, then Interview Board shall further recommend his

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name to the appropriate Government to register him the Notary

Register.

46. Reading the provisions of the Act and Rules made

thereunder, we have no hesitation in holding that the appropriate Govt

has the power to examine the recommendations made by the Interview

Board. If it fnds a justifable reason, it may reject it. Further, having

regard to the object of the Act and the purpose of the appointment of a

person which is need-based, we are of the view that the word 'shall'

used in rule 8 of the rules 1958 in directory.

47. The bone of contention of the petitioner is that, in utter

violation of the prescribed rules, the State Government appointed the

candidate who has not routed the application through the District Judge

and secured less mark than him in the interview before Interview Board.

Hence the appointment process adopted by the State Government

violates the article 14 of the constitution of India.

48. It is an admitted fact that the applicant and one Keshav

Narayan Kardile have routed the application through the learned

Principal District Judge, Latur. We have already answered that such

practice of routing the applications through the District Judge was

prevailing in the year 2016. The consolidated mark sheet placed at page

no. 58 of the paper book proves that the respondent no. 3, has secured

less marks than the applicant. The minutes of the interview held on

24.11.2017 make it clear that the Interview Board recommended the

name of the candidates as per their merit based on the marks secured

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in the interview. The consolidated mark sheet reveals that 36 marks

were the highest score secured by Trimbak Antaram Rajwansh.

However, his application was not routed through the District Judge. The

minutes of the Interview board do not mention the name of the person

recommended, but it indicates that the person who secured the highest

marks was recommended.

49. The petitioner fervently argued that the Government did not

even show courtesy to inform him the order passed under sub-rule 1 of

rule 8. He had to resort to the Right to Information Act. It is a fact that

the appropriate Government, though duty-bound under sub-rule 2 of rule

8, to inform the applicant every order passed under sub-rule 1 of rule 8

has not been informed to the applicant. The petitioner had to complain

to the Government about the illegal appointment of a notary. Then the

Government by, letter dated 31.07.2019, informed him that he may

prefer a review application as contemplated under sub-rule 3 of rule 8.

Then he preferred the same, and the impugned order is passed. The

review application is rejected on the sole ground that it is not mandatory

to route the applications through the District Judge only. No reasons are

assigned on his grievance why the order passed in sub-rule 1 of rule 8

as mandated under sub-rule 3, is not communicated to him. It is also not

justifed why the person who secured less mark is appointed.

50. The Rules are hand-maid to the provisions under such Act.

They assist the law. They are in place to make the parent act work

effectively, avoid confusion and guide the authority to arrive at a proper

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decision. Hence, where the judgment/decision has to be taken under

the rules prescribed, no authority or, the Government can travel beyond

such rules. Where the rules are framed, they shall be adhered to. Rules

1956 laid the comprehensive procedure for appointing the notary.

Therefore, the appropriate Government cannot deviate from the

procedure laid down in the said rules.

51. In the case at hand, respondents nos.1 and 2 have merely

explained that while appointing the notary they have followed rules 7-A

and 8. However, no reasons were assigned as to why the candidate

who has secured the highest marks, is not considered or what was the

special ground to appoint respondent no.3 who secured second lowest

marks, even less marks than the petitioner. In the absence of any

justifable reason, we fnd that the Government arbitrarily appointed

respondent no.3 in contravention of the established rules and

procedure. The Government has exercised its powers arbitrarily. The

doctrine of fair and impartial decision is also not followed by the

Government.

52. In view of the above, we hold that the State Government

has not strictly followed the Notaries Rules 1956 while appointing the

notary. It has deviated from the mandatory rules as applicable upto

05.11.2019. The appointment of respondent no.3 is without justifable

reason while deviating from the recommendations made by Interview

Board. The Government failed in discharging its legal obligation to

inform the orders passed on the recommendations made by the

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Interview Board.

53. For the above reasons, we partly allow the petition and set

aside the impugned order dated 14 th July, 2020 and the appointment of

respondent no. 3, as a notary for Chakur District Latur.

54. Since, we have arrived at a conclusion that it was

imperative for the applicants to fle their applications through the District

Judge, only 2 applications are liable to be reconsidered. Therefore, we

direct respondent nos. 1 and 2 to reconsider the above two applications

on the basis of Notaries Rules in existence in the year 2016.

55. The respondent nos. 1 and 2 shall take its decision on the

material available with it by strictly following the Notaries Rules, 1956

within three months from today by giving the applicant a hearing, under

a written notice, and inform it's decision as prescribed in sub-rule 3 of

rule 8 of the Notaries Rules, 1958.

56. The respondent no.1 is directed to remove the name of

respondent no.3 Purushottam Vaijnath Shete from a register of notaries,

maintained under Section 4 of the Notaries Act and cancel his certifcate

of practice as Notary forthwith, after the decision is taken by respondent

nos.1 and 2 as directed above.

57. Rule is made partly absolute in the above terms.

   (S.G. MEHARE. J)                         (RAVINDRA V. GHUGE, J)


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