Holding

The Supreme Court held that the election was void because the rejected ballots could not be declared invalid under a harmonious reading of Rules 20, 22 and Form C, and directed that a fresh election be held.

Summary

Yogendra Singh Tomar, a practising advocate, contested the election for Chairman of the Bar Council of Uttarakhand. Three ballot papers were rejected by the Returning Officer, leading to the declaration of respondent No.3 as elected. Tomar filed a writ petition seeking a recount and treatment of the rejected votes in his favour. The Single Judge of the High Court examined the ballots and declared them valid, ordering Tomar's election; the Division Bench reversed this, holding the Returning Officer's rejection could not be questioned. The Supreme Court held that Rules 20 and 22 of the 2009 Bar Council election rules, together with Form "C", must be read harmoniously, and that the rejected ballots could not be declared invalid, rendering the election void. Consequently, the Court directed a fresh election to be conducted in accordance with properly drafted rules.

Issues considered

The validity of the Returning Officer's rejection of three ballot papers under Rules 20 and 22 and Form C of the Bar Council of Uttarakhand Election Rules, 2009.
Whether the election of the Chairman by single transferable vote is permissible under the Bar Council's election rules and the Advocates Act, 1961.
Whether the Bar Council of Uttarakhand election rules are sufficiently clear and compliant with the Advocates Act, 1961.
Whether a fresh election should be ordered in view of the procedural irregularities.

Legislation cited

Advocates Act, 1961s. 15, s. 15(2)(g), s. 3(3)

Subjects

Bar Council electionballot rejectionsingle transferable voteAdvocates Actelection rulesfresh electionprocedural fairness

Judgment

[2013] 17 S.C.R. 559

YOGENDRA SINGH TOMAR A
v.
BAR COUNCIL FOR UTIARAKHAND AND OTHERS
(Civil Appeal No. 11176 of 2013)
DECEMBER 17, 2013
B
\ [ANIL R. DAVE AND DIPAK MISRA, JJ.)

Bar Council of Uttarakhand Election Rules, 2009 - Rules
20, 22 and Form C!Rules for Election of Chairman and Vice
Chairman, 2009 - State Bar Council - Election to the post of C
Chairman - Three of the ballots rejected by Returning Officer
- Respondent No. 3 declared elected - Appellant challenged
the election and sought for recounting, treating the rejected
votes in his favour - Single Judge of High Court personally
examining the rejected ballots , declared them valid in favour D
of the appellant - Division Bench of High Court held that
rejection of the ballots by Returning Officer could not have
been questioned - On appeal, held: The Election Rules have
been carelessly drafted - Unless the provision relating to
Method of Voting (r. 20), provision stipulating when the voting E
papers can be declared invalid (r. 22) and instructions for
guidance of voters (Form CJ are read conjointly, harmoniously
and purposely, the whole exercise will lead to chaos -
Direction to hold fresh election as per Rules - Advocate.

Appellant and the third responcfent contested for the F
election of Chairman of Bar Council of Uttarakhand.
Respondent No. 3 was declared as elected. The appellant
filed writ petition seeking declaration of the election as
null and void and also sought for recounting of the votes
by treating the rejected votes in his favour as the same G
were cast in accordance with the stipulations made in Bar
Council of Uttarakhand Rules, 2009. The Single Judge of
High Court personally examined the rejected votes and
held that in view thereof, the appellant had secured
559
560 SUPREME COURT REPORTS [2013] 17 S.C.R.

A higher number of first preference votes than respondent
No. 3 and hence he deserved to be elected as the
Chairman. In compliance of the order, the appellant took
charge as the Chairman. In appeal, against the order of
Single Judge, Division Bench of High Court held that the
B rejection of the ballots by the Returning Officer could not
have been questioned and allowed the appeal.

Disposing of the appeal, the Court

HELD: 1. The Rules have not been appositely drafted
C and more care should have been taken in drafting the
same. The Bar Council of Uttarakhand would be well
advised to bring in an apposite set of Rules for election
of the ..:hairman and Vice-Chairman in accordance with
the Advocates Act, 1961 in clear cut terms so that
D hereinafter these kind of disputes do not arise. [Para 24]
[572-A-C]

2. Rules 20 (Method of Voting) and 22 (Voting'Papers
when invalid) of the Bar Council of Uttarakhand Election
t: Rules, 2009 along with form "C" ,which provides for
instruction for the guidance of voters, they are to be read
conjointly, harmoniously and purposively. 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
F to such a situation. The ballot papers were not printed in
accordance with the Rules. [Para 22] [571-A-B]

3. It is directed 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
G 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. It is further
clarified that the election tribunal, as stipulated in the
Rules, shall be constituted much before as per the Rules
H so that the writ petitions are not filed directly before the
YOGENDRA SINGH TOMAR v. BAR COUNCIL FOR 561
UTTARAKHAND
High Court. It is also clarified that if a candidate has A
followed the method of voting as prescribed in paragraph
4 of 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 it shall be treated as a B
fresh election and the period shall commence as
prescribed under the Rules. [Para 23) [571-E-G]

4. In any democratic institution, like the Bar Council,
where holding of election is imperative, the authllrity C
concerned, the aspirants and the electoral college have
a greater degree of responsibility. Collective collegiality
must surface. 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 D
profession is maintained and sustained in a noble
manner. [Para 25) [572-E, F]

CIVIL APPELLATE JURISDICTION : Civil Appeal No.
11176 of 2013. E

From the Judgment and Order dated 09.10.2013 of the
High Court of Uttarakhand at Nainital in SA No. 383 of 2013.

Krishnan Venugopal, Manan Verma and Diksha Rai for the
Appellant. F

Vijay Kumar, Pyush Garg (for Aniruddha P. Mayee), Madhvi
Divan, Ranjeeta Rohtagi for the Respondents.

The Judgment of the Court was delivered by
G
DIPAK MISRA, J. 1. 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
562 SUPREME COURT REPORTS (2013] 17 S.C.R.

A 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
B 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
c 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
D 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
E 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
F cast in accordance with the stipulations made in the 2009
Rules.
4. Tt)e 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
G 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
H the Division Bench vide order dated 10.4.2013 directed stay
- YOGENDRA SINGH TOMAR v_ BAR COUNCIL FOR 563
' UTTARAKHAND [DIPAK MISRA, J_]
of the interim order as well as all the proceedings in the writ A·
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: - B

"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. C

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 o
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. E
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 F
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 G
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
H
564 SUPREME COURT REPORTS (2013) 17 S.C.R.

A 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,
Ill, I' mark is put in front of the candidates, in another ballot
paper II, I mark is put in front of two candidates whereas
B 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
C 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
D 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
E 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
F 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,
G having not indicated even by implication that first Rule
should be read into or the Bar Council Rules should be
read into .ihe second Rule and tlie ballot papers having
specifically mentioned that the same will be declared
invalid in the .event, preferences are given in any other
H
YOGENDRA SINGH TOMAR v. BAR COUNCIL FOR 565
UTTARAKHAND [DIPAK MISRA, J.]

manner, except by Hindi or English numericals, th~·. A
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 B
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 C
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 "Electior.i for Chairman and Vice-
0
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. E
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 F
of the State of Uttarakhand. Rule 3(1) defines "First Preference"
and "Second Preference". Rule 5 provides for method of
election. Rule 20 provides for method of voting. It reads as
follows: -
G
"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. H
566 SUPREME COURT REPORTS [2013] 17 S.C.R.

A {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
B 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
c 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
D 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."
E 12. Rule 22 stipulates when voting papers get invalid. It
reads as follows: -

1. Section 32 - Termination of proceedings.
(1) The arbitral proceedings shall be terminated by the final arbitral award
F or by an order of the arbitral tribunal under sub- section (2).
(2) The arbitral tribunal shall issue an ceder for the termination of the arbitral
proceedings where-
(a) the claimant withdraws his claim, unless the respondent objects to
the order and the arbitral tribunal recognises a legitimate interest on
his part in, obtaining a final settlement of the dispute,
G (b) the parties agree on the termination of the proceedings, or
(c) the arbitral tribunal finds that the continuation of the proceedings has
for any other mason become unnecessary or impossible.
(3) Subject to section 33 and sub- section (4) of section 34, the mandate
of the arbitral tribunal shall terminate with the termination of the arbitral
H proceedings.
YOGENDRA SINGH TOMAR v. BAR COUNCIL FOR 567
UTTARAKHAND [DIPAK MISRA, J.]

"22. Voting Papers when invalid: A

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 B
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 C
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 D
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."
E
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: -
F
"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 G
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
H
opposite the names of the other candidates
568 SUPREME COURT REPORTS [2013] 17 S.C.R.

A 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."
B 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:
c
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
o 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

E 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."
F 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
G 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."

H
YOGENDRA SINGH TOMAR v. BAR COUNCIL FOR 569
UTTARAKHAND [DIPAK MISRA, J.]
16. Rule 3 provides the tenure of Chairman and Vice- A
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
B
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". C
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 St11te Bar Council elected by the Council in such manner D
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: -
E
"15. Power to make rules. -

(2) In particular, and without prejudice to the generality of
1
1 the foregoing power, such rules may provide for -

(g) the power and duties of the Chairman and the Vice- F
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 G
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 deliJ:leation by the learned single Judge and deliberations
of.the Di.vision Bench of the High Court. In the instructions on
·."-·- H
570 SUPREME COURT REPORTS [2013] 17 S.C.R.

A 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."
B 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
c 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
D 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.
E
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
F 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
G 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 flave no
trace of doubt that the approach to this case should have ~E?en
H
YOGENDRA SINGH TOMAR v. BAR COUNCIL FOR 571
UTTARAKHAND [DIPAK MISRA, J.]
undertaken in a different manner. On a reading of Rules 20 and A
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 ahd
purposively. Quite apart from the above, it is interesting to note,
as admitted before us, that the ballot papers were not printed B
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
c
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 D
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 E
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 F
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 G
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.
H
572 SUPREME COURT REPORTS [2013] 17 S.C.R.

A 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
B 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-
C 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
D 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
E 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
F 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.
G Kalpana K. Tripathy Appeal disposed of