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Supreme Court of India
ANIL R. DAVE & DIPAK MISRA, JJ.
Yogendra Singh Tomar – Appellant
Versus
Bar Council for Uttarakhand & Others – Respondents
Civil Appeal No. 11176 of 2013 (Arising out of SLP (Civil) No. 34062 of 2013)
Decided On : 17-12-2013
Held: 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.
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. 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.
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.
Result: Appeal disposed of with directions.
Judgment :-
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
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