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Wednesday, December 18, 2013

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 = Yogendra Singh Tomar ... Appellant Versus Bar Council for Uttarakhand and others ...Respondents= Published in /Cited in / Reported in judis.nic.in/supremecourt/filename=41099

  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.
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