Dipak Misra, C.J.

1. In these two writ petitions, the controversy involved being common although the nature of challenge is from different spectrums, namely, one involving the interpretation of Rule 31(A) of the Bar Council of Delhi Election Rules, 1968 (for short 'the Rules), while the other challenging the constitutional validity of Rule 31(A)(ii) of the said Rules, they were heard together and are being disposed of by a singular order. For the sake of convenience, we shall first advert to the facts in W.P. (C) No. 1985/2011 where the assail is to the constitutional validity of the Rules and state the facts as they are common to both the cases and thereafter proceed to dwell upon the challenge to the action on the foundation of the interpretation placed upon by the leaned Counsel for the parties.

2. Presently to the commonality of the factual score and the grounds of attack in the backdrop of the constitutional validity of the Rule in question. The Petitioner is a practising Advocate enrolled with the Bar Council of Delhi and had secured maximum number of first preference votes amongst the unsuccessful candidates in the election that was held on 1st and 2nd December, 2009 for electing the members of the Bar Council of Delhi. His name featured at serial No. 27 of the final list just second to the 25th candidate who was declared elected to the Bar Council of Delhi by the Election Committee.

3. As a casual vacancy occurred, the Petitioner submitted a representation on 11th August, 2010 to the Bar Council of Delhi for co-opting him as a member. As there was no response, the Petitioner knocked at the doors of this Court. The writ Court in W.P. (C) No. 5198/2010 Devender Kumar v. State (NCT) of Delhi only directed that the Bar Council of Delhi should also consider the representation submitted by the Petitioner at the time of co-option.

4. As set forth, the Bar Council of Delhi in its meeting held on 21.1.2011 resolved to co-opt Mr. Aman Sareen, the Respondent No. 4 herein, as a member of the Delhi Bar Council and the representation of the Petitioner was rejected.

5. It is apt to note here that the Petitioner while praying for declaring the Rule in question to be violative of Article 14 of the Constitution of India has also prayed for issue of a writ of mandamus commanding the Respondents to co-opt him as a member of the Bar Council of Delhi as his name featured at serial No. 20 in the list of first preference votes and at serial No. 27 in the final list.

6. We have heard Mr. S.P. Kalra, learned senior counsel and Mr. Sunil Mittal, leaned Counsel on behalf of the Petitioners, Mr. Nazmi Waziri, leaned Counsel for the Respondent No. 1, Mr. Sanjeev Sachdeva, leaned Counsel for the Respondent No. 2, Mr. Rakesh Tiku, learned senior counsel for the Respondent No. 3 and Mr. Aman Lekhi, learned senior counsel for the Respondent No. 4.

7. Mr. Kalra, learned senior counsel for the Petitioner, has raised the following contentions:

(a) Rule 31(A)(ii) of the Rules runs counter to the provisions of the Advocates Act, 1961 (for brevity 'the Act') and is in transgression of the spirit of the Act as there is provision for co-option in the parent statute and hence, it deserves to be declared as unconstitutional.

(b) The Rule creates an artificial and irrational distinction between the two categories of vacancies, namely, a vacancy caused when an election is set aside by the competent tribunal and a vacancy arising out of the death or resignation of a member. There is no intelligible differentia for treating the two classes of vacancies in a separate manner and there is no objective to be achieved by such distinction. Thus, the Rule invites the frown of Article 14 of the Constitution.

(c) There is no rationale to fill up the vacancy in case there is a verdict against a candidate who was elected, by a candidate who has secured the maximum first preference votes amongst the unsuccessful candidates and not to follow the same procedure in case of death or