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Reportable

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

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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  

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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.

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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 ‘√’ 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.”

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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?  

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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  

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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  

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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.

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(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

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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.”

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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:”

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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  

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(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.

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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  

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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  

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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  

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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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