YOGENDRA SINGH TOMAR Vs BAR COUNCIL OF UTTARAKHAND
Bench: ANIL R. DAVE,DIPAK MISRA
Case number: C.A. No.-011176-011176 / 2013
Diary number: 32705 / 2013
Advocates: DIKSHA RAI Vs
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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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