Bar Council Elections for the post of Chairmen - Single judge declared the appellant as winning candidate - D.B. reversed - Apex court order for fresh elections by setting aside the orders of DB bench as the rules not framed properly =
Thereafter, the learned single Judge allowed the writ petition by
holding that the appellant had secured higher number of first preference
votes than the respondent No. 3 and hence, he deserved to be elected as
the Chairman of the Bar Council of Uttarakhand and, accordingly, set
aside the election of the third respondent and passed consequential
orders.
Division Bench set aside the single order -
“We do not think that he could, at all, do so, inasmuch as, as
aforesaid, in Chapter I Part II of the Bar Council of India Rules,
there is no contemplation of election of a Chairman by a single
transferable vote or by preferential votes.
In the circumstances,
once again, the question comes to be considered, whether the Returning
Officer, while rejecting those three ballots, acted contrary to what
he was required to do?
The fact remains that Rule 2 of the second
Rules, having not indicated even by implication that first Rule should
be read into or the Bar Council Rules should be read into the second
Rule and the ballot papers having specifically mentioned that the same
will be declared invalid in the event, preferences are given in any
other manner, except by Hindi or English numericals, the rejection of
those ballots by the Returning Officer, we think, cannot be
questioned.”
Presently to the necessary directions. We have been apprised at the
Bar that the term of the appellant as Chairman of the Bar Council of
Uttarakhand is going to be over on 19.1.2014.
We have also been told
that for holding a fresh election two weeks’ notice is required to be
given notifying for filing nomination papers and withdrawal.
The
learned counsel for the parties initially suggested that there should
be fresh election confining to the appellant and the third respondent.
After giving our anxious consideration, we are of the considered
opinion that there should be a fresh election for the post of the
Chairman and it should be open to all the eligible candidates to
contest.
The Returning Officer shall notify the date and the election
should be held as per Rules.
The returning Officer shall fix a
schedule so that by 10.1.2014 the results are declared.
To avoid any
kind of confusion, we clarify that the election tribunal, as
stipulated in the Rules, shall be constituted much before as per the
Rules so that the writ petitions are not filed directly before the
High Court.
We would also like to clarify that if a candidate has
followed the method of voting as prescribed in paragraph 4 of the Form
“C” which is in accord with Rule 22(f) of the 2009 Rules, his ballot
paper shall not be declared invalid.
The election held shall be for a
period of one year as prescribed under the Rules and we repeat at the
cost of repetition that it shall be treated as a fresh election and
the period shall commence as prescribed under the Rules.
In any democratic institution, like the
Bar Council, where holding of election is imperative, the authority
concerned, the aspirants and the electoral college have a greater
degree of responsibility. Collective collegiality must surface.
Needless to say, there has to be individual ambitions, but the
institutional aspirations should be treated as paramount.
Every
member of the profession should understand, realize and practise so
that the nobility of the profession is maintained and sustained in a
noble manner.
26. With the aforesaid directions, the appeal stands disposed of without
any order as to costs.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 11176 OF 2013
(Arising out of SLP (Civil) No. 34062 of 2013)
Yogendra Singh Tomar ... Appellant
Versus
Bar Council for Uttarakhand and others ...Respondents
J U D G M E N T
Dipak Misra, J.
Leave granted.
2. The appellant, a practising advocate, was duly elected as a Member of
the Bar Council of Uttarakhand and being eligible to contest for the post
of Chairman of the Bar Council filed the nomination papers for the said
post, election for which was scheduled to be held on 19.1.2013.
The
election, as scheduled, was held on the date fixed and
on the basis of
the voting, the appellant and the third respondent received six votes of
first preference each,
respondent No. 4 received three votes of first
preference and four votes of first preference were declared invalid.
The
first preference votes secured by the respondent No. 4 were eliminated
and his second preference votes were counted.
After counting of votes on
the principle of single transferable vote the third respondent secured
eight votes as against seven by the appellant as a result of which the
Returning Officer declared the third respondent as the elected Chairman
of the Bar Council of Uttarakhand.
3. As facts would unfurl, an election tribunal was required to be
constituted under Rules for Election of Chairman and Vice-Chairman, 2009
(for short “the Rules”) on or before the date on which the time of
schedule is fixed under Rule 4 of Bar Council of Uttarakhand Election
Rules, 2009 (for brevity “the 2009 Rules”).
As no election tribunal was
in existence, the appellant approached the High Court of Uttarakhand at
Nainital in Writ Petition (M/S) No. 168 of 2013 for declaring the result
of election of the Chairman, Bar Council of Uttarakhand held on 19.1.2013
as null and void. A further prayer was made to command the respondents
to recount the votes by treating the rejected votes in favour of the
appellant as the votes had been cast in accordance with the stipulations
made in the 2009 Rules.
4. The learned single Judge by order dated 25.3.2013 passed in interim
order by appointing one Mr. Manoj Tiwari, senior advocate, as a special
officer to examine the rejected votes and submit a report to the Court.
The said interim order wherein maintainability of the writ petition,
absence of alternative remedy due to non-constitution of election
tribunal and the jurisdiction of the High Court were decided in favour of
the appellant was assailed in Special Appeal No. 101 of 2013 and the
Division Bench vide order dated 10.4.2013 directed stay of the interim
order as well as all the proceedings in the writ petition.
5. Being dissatisfied, the appellant preferred Special Leave Petition (C)
No. 15330 of 2013 and this Court on 27.8.2013 passed the following order:
-
“Learned counsel for the parties have agreed that if the learned
Single Judge opens the sealed cover containing the ballot papers which
have been disputed and if he personally examines and comes to a
particular conclusion, the parties will not raise any objection.
In the aforesaid circumstances, we request the learned Single
Judge of the High Court to get the sealed cover opened upon perusal of
the ballot, take appropriate decision in accordance with the Rules and
Regulations framed by the Bar Council of Uttarakhand. Thus, the order
passed by the learned Single Judge is modified, as stated hereinabove
and the order passed by the Division Bench of the High Court in
Special Appeal No. 101 of 2013 is quashed.
Special Appeal No. 101 of 2013 shall be deemed to have been
disposed of as the learned Single Judge is to examine the validity of
the ballot papers as stated hereinabove. We are sure that the learned
Single Judge shall dispose of the petition within one month from the
date of receipt of this order by the High Court. In view of the above
observations and directions, the Civil Appeal stands disposed of with
no order as to costs.”
6. After the aforesaid order was passed, the learned single Judge took up
the matter and on 18.9.2013 passed the following order: -
“In compliance of Hon’ble Supreme Court’s order sealed cover envelop
of the votes was opened in the Court in the presence of learned
counsel for the parties.
I find that in one ballot paper which is
declared invalid tick mark ‘v’ is put in front of two candidates.
In
another invalid paper ‘II, III, I’ mark is put in front of the
candidates,
in another ballot paper II, I mark is put in front of two
candidates
whereas in one ballot paper II, I mark is put in front of
another candidates.”
7. Thereafter, the learned single Judge allowed the writ petition by
holding that the appellant had secured higher number of first preference
votes than the respondent No. 3 and hence, he deserved to be elected as
the Chairman of the Bar Council of Uttarakhand and, accordingly, set
aside the election of the third respondent and passed consequential
orders.
8. Pursuant to the order passed by the learned single Judge, the appellant
took charge as the Chairman of the Bar Council on 4.10.2013. In the
meantime, legal propriety of the judgment and order passed by the learned
single Judge was called in question in Special Appeal No. 383 of 2013 and
the Division Bench on 9.10.2013, after referring to the history of the
litigation, interpreted the 2009 Rules as well as the Rules and came to
hold as follows: -
“We do not think that he could, at all, do so, inasmuch as, as
aforesaid, in Chapter I Part II of the Bar Council of India Rules,
there is no contemplation of election of a Chairman by a single
transferable vote or by preferential votes.
In the circumstances,
once again, the question comes to be considered, whether the Returning
Officer, while rejecting those three ballots, acted contrary to what
he was required to do?
The fact remains that Rule 2 of the second
Rules, having not indicated even by implication that first Rule should
be read into or the Bar Council Rules should be read into the second
Rule and the ballot papers having specifically mentioned that the same
will be declared invalid in the event, preferences are given in any
other manner, except by Hindi or English numericals, the rejection of
those ballots by the Returning Officer, we think, cannot be
questioned.”
9. When the present matter was listed for the first time on 21.10.2013,
this Court, while issuing notice, had directed stay of implementation of
the impugned order as a consequence of which the appellant is continuing
on the post of Chairman of Bar Council of Uttarakhand.
10. We have heard Mr. Krishnan Venugopal, learned senior counsel for the
appellant and Mr. Vijay Kumar, learned counsel for the respondents.
11. At the outset, we would like to state with certitude that the Bar
Council of Uttarakhand could have taken pains to draft the Rules which
deal with “Election for Chairman and Vice-President” of the Bar Council
with more clarity, precision, with a sense of definiteness and sans
ambiguity.
But, unfortunately, the drafting of the Rules has ushered in
a state of chaos and confusion as a result of which these kind of
election disputes have travelled to the Court.
It is necessitous to
clarify how the Rules are absolutely unclear and capable of being
ambiguous.
To understand, we have to refer to the 2009 Rules. Bar
Council of Uttarakhand, Nainital, in exercise of powers conferred by
Section 15 of the Advocates Act, 1961 (Act No. XXI of 1961), has framed a
set of rules called Election Rules, 2009.
Rule 3(f) defines “Chairman”
to mean the Chairman of the Bar Council of the State of Uttarakhand.
Rule 3(l) defines “First Preference” and “Second Preference”. Rule 5
provides for method of election.
Rule 20 provides for method of voting.
It reads as follows: -
“20. Method of Voting:
1) Every voter shall have only one vote at the election irrespective
of the number of seats to be filled.
2) a) A voter in giving his vote.
b) shall place on his voting paper the figure ‘1’ in the
space opposite the name of the candidate whom he chooses
for his first preference, and
may in addition place on his
voting paper the figure ‘2’ ‘3’, and ‘4’ and so on, in the
opposite the names of the other candidates in the order of
his preference.
The maximum preferences shall be the
number of seats otherwise the voting paper shall be
invalid.
(3) A voting paper shall not be signed by a voter.
Any voting paper
containing any erasures, obliterations, overwriting and
alterations or the signature of a voter shall be deemed to have
been defaced and no votes purporting to have been given thereby
shall be taken into account for the purpose of the election.
(4) The decision of the Returning Officer as to whether a voting
paper has or has not been defaced shall be final.”
12. Rule 22 stipulates when voting papers get invalid.
It reads as follows: -
“22. Voting Papers when invalid:
A voting paper shall be invalid on which.
(a) The figure ‘1’ is not marked; or
(b) The figure ‘1’ is set opposite the name of more than one
candidate or is so placed as to render it doubtful to which
candidate it is intended to apply; or
(c) The figure ‘1’ and some other figures are set opposite the name
of the same candidate; or
(d) There is any mark in writing by which the voter can be
identified;
(e) A voting paper in which the preferences are indicated in words
as ‘one’ ‘two’ etc.
(f) The marking on the voting paper is not in the international form
of Indian numerals, in Hindi, English or Roman.”
13. Form “C” which has been prescribed under Rule 4 deals with
instructions for the guidance of voters. Paragraph 4 of the said
instructions deals with method of voting. It reads as follows: -
“4. METHOD OF VOTING:
(1) A voter in giving his vote:
(a) Shall place on his voting paper the figure “1” in the
space opposite the name of the candidate whom he chooses
for his first preference; and
(b) May in addition place on his voting paper the figure “2”
and “3” and so on, in the space opposite the names of the
other candidates in the order of his preference in Hindi,
English or Roman numerical.
(2) A voter shall not sign the voting paper nor place any mark
thereon by which he can be identified.”
14. Paragraph 5 prescribes when voting papers become invalid. It is as
follows: -
“5. VOTING PAPERS WHEN INVALID:
A voting paper shall be invalid on which:
6.1.1 the figure ‘1’ is not marked; or
6.1.2. the figure ‘1’ is set opposite the name of more than one
candidate or is so placed as to render it doubtful to which
candidates it is intended to apply; or
6.1.3 the figure ‘1’ and some other figure are set opposite the name
of the same candidate; or
6.1.4 there is any mark in writing by which the voter can be
identified;
6.1.5 the marking on the voting paper is not in the inter-national
form of Indian numerical.”
15. Coming to the Rules that deal with “Election of Chairman and Vice-
President” it is necessary to refer to Rule 2. It is as follows: -
“2. The election shall be held by the Secretary, by secret ballot,
by single transferable vote in accordance with the rules laid down in
Chapter I relating to the election of members, who shall also act as
Returning Officer under these Rules.”
16. Rule 3 provides the tenure of Chairman and Vice-Chairman. It reads as
follows: -
“3. The Bar Council shall after its being constituted in its first
meeting or as soon as possible thereafter every one year elect a
Chairman and a Vice-Chairman from amongst its members.”
17. It is interesting to note that the nomenclature of the Rules says
“Rules for Election of Chairman and Vice-President” and Rule 1 states
that ‘Election’ in these Rules shall mean the election of the
“Chairman and the Vice-Chairman”. We are only pointing out the same
to show how due care has not even been taken to name the Rules in a
proper way.
We have said so as Section 3(3) of the Advocates Act,
1961 clearly states that there shall be a Chairman and a Vice-Chairman
of each State Bar Council elected by the Council in such manner as may
be prescribed.
Section 15 of the Act provides a Bar Council to frame
rules to carry out the purposes of the said Chapter.
The Rules have
been framed under Section 15(2)(g) of the Act. Sub-section (2)(g) of
Section 15 reads thus: -
“15. Power to make rules. –
(2) In particular, and without prejudice to the generality of the
foregoing power, such rules may provide for –
(g) the power and duties of the Chairman and the Vice-Chairman of the
Bar Council:”
18. The carelessness in framing the Rules is obvious. Rule 2 of the Rules
provides that the election shall be held by a single transferable vote
in accordance with the Rules laid down in Chapter I relating to
election of members and the Secretary shall act as the Returning
Officer under the Rules. In the 2009 Rules there is no “Chapter”.
This has, in fact, created confusion in the delineation by the learned
single Judge and deliberations of the Division Bench of the High
Court. In the instructions on the ballot papers, which are in Hindi
on being translated in English, read as follows: -
“Please caste your vote in order as 1, 2, 3 in Hindi or in English
against your preferred candidates.”
19. The learned single Judge, as is evident from his order, has been
compelled to observe thus: -
“Undoubtedly, the manner in which both the Rules, i.e., Rule A and
Rule B have been framed, leave much to be desired. Not only are they
not happily worded, there is a total carelessness in preparing or even
in adopting these Rules. Some of the provisions of Rule A for example
(Rule 13) still refers to U.P. Gazette and U.P. Government.”
20. After so stating he has referred to the Rules and after referring to
various authorities, has opined that the voters who had cast their
votes by ascribing Roman numericals their votes could not have been
declared invalid. The rest of the analysis by the learned single
Judge on this score need not be adverted to.
21. The Division Bench, as is demonstrable, interpreting the Rules, opined
that regard being had to the peculiar situation when in the ballot
papers it was mentioned that in the event preference is shown
otherwise than in Hindi or English, the same shall be rejected and
none of the voters had objected to the same at any point of time
before exercising their rights under the ballots, the Returning
Officer had not made any error in invalidating the three ballots. It
has further opined that the learned single Judge had fallen into error
by applying the principle of mutatis mutandis while incorporating the
provisions of the first Rule to the second Rule.
22. Having perused the orders passed by the learned single Judge as well
as that of the Division Bench, we have no trace of doubt that the
approach to this case should have been undertaken in a different
manner. On a reading of Rules 20 and 22 of the 2009 Rules along with
form “C” which provides for instruction for the guidance of voters, we
are of the considered view that they are to be read conjointly,
harmoniously and purposively. Quite apart from the above, it is
interesting to note, as admitted before us, that the ballot papers
were not printed in accordance with the Rules. Needless to say,
unless there is a holistic reading of the Rules and the Form, the
whole exercise is likely to lead to a chaos and it has actually led to
such a situation.
23. Presently to the necessary directions. We have been apprised at the
Bar that the term of the appellant as Chairman of the Bar Council of
Uttarakhand is going to be over on 19.1.2014.
We have also been told
that for holding a fresh election two weeks’ notice is required to be
given notifying for filing nomination papers and withdrawal.
The
learned counsel for the parties initially suggested that there should
be fresh election confining to the appellant and the third respondent.
After giving our anxious consideration, we are of the considered
opinion that there should be a fresh election for the post of the
Chairman and it should be open to all the eligible candidates to
contest.
The Returning Officer shall notify the date and the election
should be held as per Rules.
The returning Officer shall fix a
schedule so that by 10.1.2014 the results are declared.
To avoid any
kind of confusion, we clarify that the election tribunal, as
stipulated in the Rules, shall be constituted much before as per the
Rules so that the writ petitions are not filed directly before the
High Court.
We would also like to clarify that if a candidate has
followed the method of voting as prescribed in paragraph 4 of the Form
“C” which is in accord with Rule 22(f) of the 2009 Rules, his ballot
paper shall not be declared invalid.
The election held shall be for a
period of one year as prescribed under the Rules and we repeat at the
cost of repetition that it shall be treated as a fresh election and
the period shall commence as prescribed under the Rules.
24. Before parting with the case,
we may state that the Rules have not
been appositely drafted and more care should have been taken in
drafting the same.
A contention was advanced by Mr. Krishnan
Venugopal that the concept of single transferable vote is unknown to
the election of a Chairman or a Vice-Chairman to the Bar Council in
all the States and also in Bar Council of India.
We do not intend to
comment on the said submission. However, we would only suggest that
the Bar Council of Uttarakhand would be well advised to bring in an
apposite set of Rules for election of the Chairman and Vice-Chairman
in accordance with the Advocates Act, 1961 in clear cut terms so that
hereinafter these kind of disputes do not arise.
The said exercise
may be undertaken after carrying out our directions.
25. We have already used the phrase “before parting” and expressed our
views about proper drafting of rules and, therefore, what we are
further going to add, may appear as an elongation but we are disposed
to think, it is necessary.
In any democratic institution, like the
Bar Council, where holding of election is imperative, the authority
concerned, the aspirants and the electoral college have a greater
degree of responsibility. Collective collegiality must surface.
Needless to say, there has to be individual ambitions, but the
institutional aspirations should be treated as paramount.
Every
member of the profession should understand, realize and practise so
that the nobility of the profession is maintained and sustained in a
noble manner.
26. With the aforesaid directions, the appeal stands disposed of without
any order as to costs.
……………………………….J.
[Anil R. Dave]
……………………………….J.
[Dipak Misra]
New Delhi;
December 17, 2013.
-----------------------
15
Thereafter, the learned single Judge allowed the writ petition by
holding that the appellant had secured higher number of first preference
votes than the respondent No. 3 and hence, he deserved to be elected as
the Chairman of the Bar Council of Uttarakhand and, accordingly, set
aside the election of the third respondent and passed consequential
orders.
Division Bench set aside the single order -
“We do not think that he could, at all, do so, inasmuch as, as
aforesaid, in Chapter I Part II of the Bar Council of India Rules,
there is no contemplation of election of a Chairman by a single
transferable vote or by preferential votes.
In the circumstances,
once again, the question comes to be considered, whether the Returning
Officer, while rejecting those three ballots, acted contrary to what
he was required to do?
The fact remains that Rule 2 of the second
Rules, having not indicated even by implication that first Rule should
be read into or the Bar Council Rules should be read into the second
Rule and the ballot papers having specifically mentioned that the same
will be declared invalid in the event, preferences are given in any
other manner, except by Hindi or English numericals, the rejection of
those ballots by the Returning Officer, we think, cannot be
questioned.”
Presently to the necessary directions. We have been apprised at the
Bar that the term of the appellant as Chairman of the Bar Council of
Uttarakhand is going to be over on 19.1.2014.
We have also been told
that for holding a fresh election two weeks’ notice is required to be
given notifying for filing nomination papers and withdrawal.
The
learned counsel for the parties initially suggested that there should
be fresh election confining to the appellant and the third respondent.
After giving our anxious consideration, we are of the considered
opinion that there should be a fresh election for the post of the
Chairman and it should be open to all the eligible candidates to
contest.
The Returning Officer shall notify the date and the election
should be held as per Rules.
The returning Officer shall fix a
schedule so that by 10.1.2014 the results are declared.
To avoid any
kind of confusion, we clarify that the election tribunal, as
stipulated in the Rules, shall be constituted much before as per the
Rules so that the writ petitions are not filed directly before the
High Court.
We would also like to clarify that if a candidate has
followed the method of voting as prescribed in paragraph 4 of the Form
“C” which is in accord with Rule 22(f) of the 2009 Rules, his ballot
paper shall not be declared invalid.
The election held shall be for a
period of one year as prescribed under the Rules and we repeat at the
cost of repetition that it shall be treated as a fresh election and
the period shall commence as prescribed under the Rules.
In any democratic institution, like the
Bar Council, where holding of election is imperative, the authority
concerned, the aspirants and the electoral college have a greater
degree of responsibility. Collective collegiality must surface.
Needless to say, there has to be individual ambitions, but the
institutional aspirations should be treated as paramount.
Every
member of the profession should understand, realize and practise so
that the nobility of the profession is maintained and sustained in a
noble manner.
26. With the aforesaid directions, the appeal stands disposed of without
any order as to costs.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 11176 OF 2013
(Arising out of SLP (Civil) No. 34062 of 2013)
Yogendra Singh Tomar ... Appellant
Versus
Bar Council for Uttarakhand and others ...Respondents
J U D G M E N T
Dipak Misra, J.
Leave granted.
2. The appellant, a practising advocate, was duly elected as a Member of
the Bar Council of Uttarakhand and being eligible to contest for the post
of Chairman of the Bar Council filed the nomination papers for the said
post, election for which was scheduled to be held on 19.1.2013.
The
election, as scheduled, was held on the date fixed and
on the basis of
the voting, the appellant and the third respondent received six votes of
first preference each,
respondent No. 4 received three votes of first
preference and four votes of first preference were declared invalid.
The
first preference votes secured by the respondent No. 4 were eliminated
and his second preference votes were counted.
After counting of votes on
the principle of single transferable vote the third respondent secured
eight votes as against seven by the appellant as a result of which the
Returning Officer declared the third respondent as the elected Chairman
of the Bar Council of Uttarakhand.
3. As facts would unfurl, an election tribunal was required to be
constituted under Rules for Election of Chairman and Vice-Chairman, 2009
(for short “the Rules”) on or before the date on which the time of
schedule is fixed under Rule 4 of Bar Council of Uttarakhand Election
Rules, 2009 (for brevity “the 2009 Rules”).
As no election tribunal was
in existence, the appellant approached the High Court of Uttarakhand at
Nainital in Writ Petition (M/S) No. 168 of 2013 for declaring the result
of election of the Chairman, Bar Council of Uttarakhand held on 19.1.2013
as null and void. A further prayer was made to command the respondents
to recount the votes by treating the rejected votes in favour of the
appellant as the votes had been cast in accordance with the stipulations
made in the 2009 Rules.
4. The learned single Judge by order dated 25.3.2013 passed in interim
order by appointing one Mr. Manoj Tiwari, senior advocate, as a special
officer to examine the rejected votes and submit a report to the Court.
The said interim order wherein maintainability of the writ petition,
absence of alternative remedy due to non-constitution of election
tribunal and the jurisdiction of the High Court were decided in favour of
the appellant was assailed in Special Appeal No. 101 of 2013 and the
Division Bench vide order dated 10.4.2013 directed stay of the interim
order as well as all the proceedings in the writ petition.
5. Being dissatisfied, the appellant preferred Special Leave Petition (C)
No. 15330 of 2013 and this Court on 27.8.2013 passed the following order:
-
“Learned counsel for the parties have agreed that if the learned
Single Judge opens the sealed cover containing the ballot papers which
have been disputed and if he personally examines and comes to a
particular conclusion, the parties will not raise any objection.
In the aforesaid circumstances, we request the learned Single
Judge of the High Court to get the sealed cover opened upon perusal of
the ballot, take appropriate decision in accordance with the Rules and
Regulations framed by the Bar Council of Uttarakhand. Thus, the order
passed by the learned Single Judge is modified, as stated hereinabove
and the order passed by the Division Bench of the High Court in
Special Appeal No. 101 of 2013 is quashed.
Special Appeal No. 101 of 2013 shall be deemed to have been
disposed of as the learned Single Judge is to examine the validity of
the ballot papers as stated hereinabove. We are sure that the learned
Single Judge shall dispose of the petition within one month from the
date of receipt of this order by the High Court. In view of the above
observations and directions, the Civil Appeal stands disposed of with
no order as to costs.”
6. After the aforesaid order was passed, the learned single Judge took up
the matter and on 18.9.2013 passed the following order: -
“In compliance of Hon’ble Supreme Court’s order sealed cover envelop
of the votes was opened in the Court in the presence of learned
counsel for the parties.
I find that in one ballot paper which is
declared invalid tick mark ‘v’ is put in front of two candidates.
In
another invalid paper ‘II, III, I’ mark is put in front of the
candidates,
in another ballot paper II, I mark is put in front of two
candidates
whereas in one ballot paper II, I mark is put in front of
another candidates.”
7. Thereafter, the learned single Judge allowed the writ petition by
holding that the appellant had secured higher number of first preference
votes than the respondent No. 3 and hence, he deserved to be elected as
the Chairman of the Bar Council of Uttarakhand and, accordingly, set
aside the election of the third respondent and passed consequential
orders.
8. Pursuant to the order passed by the learned single Judge, the appellant
took charge as the Chairman of the Bar Council on 4.10.2013. In the
meantime, legal propriety of the judgment and order passed by the learned
single Judge was called in question in Special Appeal No. 383 of 2013 and
the Division Bench on 9.10.2013, after referring to the history of the
litigation, interpreted the 2009 Rules as well as the Rules and came to
hold as follows: -
“We do not think that he could, at all, do so, inasmuch as, as
aforesaid, in Chapter I Part II of the Bar Council of India Rules,
there is no contemplation of election of a Chairman by a single
transferable vote or by preferential votes.
In the circumstances,
once again, the question comes to be considered, whether the Returning
Officer, while rejecting those three ballots, acted contrary to what
he was required to do?
The fact remains that Rule 2 of the second
Rules, having not indicated even by implication that first Rule should
be read into or the Bar Council Rules should be read into the second
Rule and the ballot papers having specifically mentioned that the same
will be declared invalid in the event, preferences are given in any
other manner, except by Hindi or English numericals, the rejection of
those ballots by the Returning Officer, we think, cannot be
questioned.”
9. When the present matter was listed for the first time on 21.10.2013,
this Court, while issuing notice, had directed stay of implementation of
the impugned order as a consequence of which the appellant is continuing
on the post of Chairman of Bar Council of Uttarakhand.
10. We have heard Mr. Krishnan Venugopal, learned senior counsel for the
appellant and Mr. Vijay Kumar, learned counsel for the respondents.
11. At the outset, we would like to state with certitude that the Bar
Council of Uttarakhand could have taken pains to draft the Rules which
deal with “Election for Chairman and Vice-President” of the Bar Council
with more clarity, precision, with a sense of definiteness and sans
ambiguity.
But, unfortunately, the drafting of the Rules has ushered in
a state of chaos and confusion as a result of which these kind of
election disputes have travelled to the Court.
It is necessitous to
clarify how the Rules are absolutely unclear and capable of being
ambiguous.
To understand, we have to refer to the 2009 Rules. Bar
Council of Uttarakhand, Nainital, in exercise of powers conferred by
Section 15 of the Advocates Act, 1961 (Act No. XXI of 1961), has framed a
set of rules called Election Rules, 2009.
Rule 3(f) defines “Chairman”
to mean the Chairman of the Bar Council of the State of Uttarakhand.
Rule 3(l) defines “First Preference” and “Second Preference”. Rule 5
provides for method of election.
Rule 20 provides for method of voting.
It reads as follows: -
“20. Method of Voting:
1) Every voter shall have only one vote at the election irrespective
of the number of seats to be filled.
2) a) A voter in giving his vote.
b) shall place on his voting paper the figure ‘1’ in the
space opposite the name of the candidate whom he chooses
for his first preference, and
may in addition place on his
voting paper the figure ‘2’ ‘3’, and ‘4’ and so on, in the
opposite the names of the other candidates in the order of
his preference.
The maximum preferences shall be the
number of seats otherwise the voting paper shall be
invalid.
(3) A voting paper shall not be signed by a voter.
Any voting paper
containing any erasures, obliterations, overwriting and
alterations or the signature of a voter shall be deemed to have
been defaced and no votes purporting to have been given thereby
shall be taken into account for the purpose of the election.
(4) The decision of the Returning Officer as to whether a voting
paper has or has not been defaced shall be final.”
12. Rule 22 stipulates when voting papers get invalid.
It reads as follows: -
“22. Voting Papers when invalid:
A voting paper shall be invalid on which.
(a) The figure ‘1’ is not marked; or
(b) The figure ‘1’ is set opposite the name of more than one
candidate or is so placed as to render it doubtful to which
candidate it is intended to apply; or
(c) The figure ‘1’ and some other figures are set opposite the name
of the same candidate; or
(d) There is any mark in writing by which the voter can be
identified;
(e) A voting paper in which the preferences are indicated in words
as ‘one’ ‘two’ etc.
(f) The marking on the voting paper is not in the international form
of Indian numerals, in Hindi, English or Roman.”
13. Form “C” which has been prescribed under Rule 4 deals with
instructions for the guidance of voters. Paragraph 4 of the said
instructions deals with method of voting. It reads as follows: -
“4. METHOD OF VOTING:
(1) A voter in giving his vote:
(a) Shall place on his voting paper the figure “1” in the
space opposite the name of the candidate whom he chooses
for his first preference; and
(b) May in addition place on his voting paper the figure “2”
and “3” and so on, in the space opposite the names of the
other candidates in the order of his preference in Hindi,
English or Roman numerical.
(2) A voter shall not sign the voting paper nor place any mark
thereon by which he can be identified.”
14. Paragraph 5 prescribes when voting papers become invalid. It is as
follows: -
“5. VOTING PAPERS WHEN INVALID:
A voting paper shall be invalid on which:
6.1.1 the figure ‘1’ is not marked; or
6.1.2. the figure ‘1’ is set opposite the name of more than one
candidate or is so placed as to render it doubtful to which
candidates it is intended to apply; or
6.1.3 the figure ‘1’ and some other figure are set opposite the name
of the same candidate; or
6.1.4 there is any mark in writing by which the voter can be
identified;
6.1.5 the marking on the voting paper is not in the inter-national
form of Indian numerical.”
15. Coming to the Rules that deal with “Election of Chairman and Vice-
President” it is necessary to refer to Rule 2. It is as follows: -
“2. The election shall be held by the Secretary, by secret ballot,
by single transferable vote in accordance with the rules laid down in
Chapter I relating to the election of members, who shall also act as
Returning Officer under these Rules.”
16. Rule 3 provides the tenure of Chairman and Vice-Chairman. It reads as
follows: -
“3. The Bar Council shall after its being constituted in its first
meeting or as soon as possible thereafter every one year elect a
Chairman and a Vice-Chairman from amongst its members.”
17. It is interesting to note that the nomenclature of the Rules says
“Rules for Election of Chairman and Vice-President” and Rule 1 states
that ‘Election’ in these Rules shall mean the election of the
“Chairman and the Vice-Chairman”. We are only pointing out the same
to show how due care has not even been taken to name the Rules in a
proper way.
We have said so as Section 3(3) of the Advocates Act,
1961 clearly states that there shall be a Chairman and a Vice-Chairman
of each State Bar Council elected by the Council in such manner as may
be prescribed.
Section 15 of the Act provides a Bar Council to frame
rules to carry out the purposes of the said Chapter.
The Rules have
been framed under Section 15(2)(g) of the Act. Sub-section (2)(g) of
Section 15 reads thus: -
“15. Power to make rules. –
(2) In particular, and without prejudice to the generality of the
foregoing power, such rules may provide for –
(g) the power and duties of the Chairman and the Vice-Chairman of the
Bar Council:”
18. The carelessness in framing the Rules is obvious. Rule 2 of the Rules
provides that the election shall be held by a single transferable vote
in accordance with the Rules laid down in Chapter I relating to
election of members and the Secretary shall act as the Returning
Officer under the Rules. In the 2009 Rules there is no “Chapter”.
This has, in fact, created confusion in the delineation by the learned
single Judge and deliberations of the Division Bench of the High
Court. In the instructions on the ballot papers, which are in Hindi
on being translated in English, read as follows: -
“Please caste your vote in order as 1, 2, 3 in Hindi or in English
against your preferred candidates.”
19. The learned single Judge, as is evident from his order, has been
compelled to observe thus: -
“Undoubtedly, the manner in which both the Rules, i.e., Rule A and
Rule B have been framed, leave much to be desired. Not only are they
not happily worded, there is a total carelessness in preparing or even
in adopting these Rules. Some of the provisions of Rule A for example
(Rule 13) still refers to U.P. Gazette and U.P. Government.”
20. After so stating he has referred to the Rules and after referring to
various authorities, has opined that the voters who had cast their
votes by ascribing Roman numericals their votes could not have been
declared invalid. The rest of the analysis by the learned single
Judge on this score need not be adverted to.
21. The Division Bench, as is demonstrable, interpreting the Rules, opined
that regard being had to the peculiar situation when in the ballot
papers it was mentioned that in the event preference is shown
otherwise than in Hindi or English, the same shall be rejected and
none of the voters had objected to the same at any point of time
before exercising their rights under the ballots, the Returning
Officer had not made any error in invalidating the three ballots. It
has further opined that the learned single Judge had fallen into error
by applying the principle of mutatis mutandis while incorporating the
provisions of the first Rule to the second Rule.
22. Having perused the orders passed by the learned single Judge as well
as that of the Division Bench, we have no trace of doubt that the
approach to this case should have been undertaken in a different
manner. On a reading of Rules 20 and 22 of the 2009 Rules along with
form “C” which provides for instruction for the guidance of voters, we
are of the considered view that they are to be read conjointly,
harmoniously and purposively. Quite apart from the above, it is
interesting to note, as admitted before us, that the ballot papers
were not printed in accordance with the Rules. Needless to say,
unless there is a holistic reading of the Rules and the Form, the
whole exercise is likely to lead to a chaos and it has actually led to
such a situation.
23. Presently to the necessary directions. We have been apprised at the
Bar that the term of the appellant as Chairman of the Bar Council of
Uttarakhand is going to be over on 19.1.2014.
We have also been told
that for holding a fresh election two weeks’ notice is required to be
given notifying for filing nomination papers and withdrawal.
The
learned counsel for the parties initially suggested that there should
be fresh election confining to the appellant and the third respondent.
After giving our anxious consideration, we are of the considered
opinion that there should be a fresh election for the post of the
Chairman and it should be open to all the eligible candidates to
contest.
The Returning Officer shall notify the date and the election
should be held as per Rules.
The returning Officer shall fix a
schedule so that by 10.1.2014 the results are declared.
To avoid any
kind of confusion, we clarify that the election tribunal, as
stipulated in the Rules, shall be constituted much before as per the
Rules so that the writ petitions are not filed directly before the
High Court.
We would also like to clarify that if a candidate has
followed the method of voting as prescribed in paragraph 4 of the Form
“C” which is in accord with Rule 22(f) of the 2009 Rules, his ballot
paper shall not be declared invalid.
The election held shall be for a
period of one year as prescribed under the Rules and we repeat at the
cost of repetition that it shall be treated as a fresh election and
the period shall commence as prescribed under the Rules.
24. Before parting with the case,
we may state that the Rules have not
been appositely drafted and more care should have been taken in
drafting the same.
A contention was advanced by Mr. Krishnan
Venugopal that the concept of single transferable vote is unknown to
the election of a Chairman or a Vice-Chairman to the Bar Council in
all the States and also in Bar Council of India.
We do not intend to
comment on the said submission. However, we would only suggest that
the Bar Council of Uttarakhand would be well advised to bring in an
apposite set of Rules for election of the Chairman and Vice-Chairman
in accordance with the Advocates Act, 1961 in clear cut terms so that
hereinafter these kind of disputes do not arise.
The said exercise
may be undertaken after carrying out our directions.
25. We have already used the phrase “before parting” and expressed our
views about proper drafting of rules and, therefore, what we are
further going to add, may appear as an elongation but we are disposed
to think, it is necessary.
In any democratic institution, like the
Bar Council, where holding of election is imperative, the authority
concerned, the aspirants and the electoral college have a greater
degree of responsibility. Collective collegiality must surface.
Needless to say, there has to be individual ambitions, but the
institutional aspirations should be treated as paramount.
Every
member of the profession should understand, realize and practise so
that the nobility of the profession is maintained and sustained in a
noble manner.
26. With the aforesaid directions, the appeal stands disposed of without
any order as to costs.
……………………………….J.
[Anil R. Dave]
……………………………….J.
[Dipak Misra]
New Delhi;
December 17, 2013.
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