JUDGMENT
T.N.C. Rangarajan, J.
1. This writ petition is directed against the order of the Principal Subordinate Judge, Srikakulam holding that the Election Petition filed by the petitioner was not maintainable.
2. The Municipal Council of the Srikakulam Municipality had to co-opt two Councillors under Section 5 (v) of the A.P. Municipalities Act among the persons having special knowledge or experience in municipal administration. The 5th respondent published a notification on 1-4-1995 calling for applications. The petitioner as well as 11 others filed applications for being co-opted as Municipal Councillors. The first (sic. second) respondent scrutinised the applications and found that only five of them were qualified and placed the particulars of those five candidates including the petitioner before the Council. The notice and the agenda for the meeting scheduled to take place on 22-4-1995 was accompanied by an office note dated 10-4-1995 giving full details of all the applicants. At the meeting, by a voice vote, respondent Nos. 6 and 7 were co-opted. The petitioner filed a petition before the learned Subordinate Judge questioning the co-option as if it was an election. The respondents contended that the co-option is not an election and therefore, the election petition is not maintainable. The learned Principal Subordinate Judge accepted that contention and rejected the petition.
3. The petitioner has filed this writ petition to contend that even a co-option has to follow the pattern of election where there are more candidates than the number of posts, and therefore, the co-option should be considered as an election which can be contested by way of election petition. In the alternative, it was submitted that if the election petition is not maintainable, a writ petition was directly maintainable, questioning the procedure by which co-option was made on the ground that it was done in an arbitrary manner denying proper consideration of the application of the petitioner. It was also submitted that the 6th respondent was disqualified because he did not have required experience and respondent No. 7 was disqualified because of arrears of property tax. Respondents 6 and 7 had filed counter-affidavits asserting that they are duly qualified. Respondent No. 5 filed counter-affidavit to affirm that the proceedings were conducted duly conforming to the rules. The third party affidavit has also been filed by one of the Councillors stating that the Chairman announced that only two applications out of five eligible applicants were to be considered and the elected Councillors stated in one voice that they are selecting respondents 6 and 7, which was thereupon accepted unanimously and recorded in the minutes book.
4. The learned Counsel for the petitioner took me through the rules relating to the co-option of members and submitted that respondents 6 and 7 were not eligible. However, on going through the material papers placed regarding their qualifications and I am satisfied that they are not disqualified.
5. The learned Counsel for the petitioner then submitted that according to the Rule 6 (1) of the said rules when there are more number of eligible applicants than the number of persons to be co-opted the Municipal Council should co-opt the required number of persons by voice vote. He submitted that if there should be effective consideration of each applicant, then, taking the voice vote may itself be an arbitrary procedure because all the candidates may not be properly considered. To illustrate this, he stated that if each eligible candidate is proposed separately and if the first two candidates are accepted, then the other candidates would never be considered at all. According to him, therefore, even a selection of two out of five requires a process of election either by balloting or by counting the votes whether oral or written, and hence, the proceedings must be considered to be an election which could be contested by an election petition. In the alternative, he submitted even if it is not treated as an election, such a selection process itself is demonstrably arbitrary, and therefore, the Municipal Council should be directed to reconsider the applications in a proper manner by balloting the number of votes that each candidate could muster and declare only those who have obtained the largest number of votes as properly co-opted.
6. On the other hand, the learned Counsel for the Municipality submitted that the Council being composed of members belonging to the political parties and entire information being available to them along with the agenda, even prior to the meeting, there was probably a consensus, and therefore, there was an unanimous decision to select 6th and 7th respondents. He submitted that such a selection was necessarily based on consideration of the merits of all the candidates and there could be nothing arbitrary in a democratic process. He relied on the decision in M. Omkar v. Government of Andhra Pradesh, 1983 (1) ALT 43 (NRC) and G. Narayana Swamy v. Government of A.P., to contend that voting by show of hands is an accepted method of adoption of resolutions.
7. On a consideration of the rival submissions, I am of the opinion that the Co-option of the members cannot be regarded as an election, and therefore, the learned Subordinate Judge was right in holding that the petition was not maintainable. Even with regard to the selection process also, I am satisfied that there was nothing arbitrary in the procedure. Though at first sight it appears that if a resolution to accept the candidature of each candidate is put separately for voice vote and the first two were to be adopted there will be no consideration of the other candidates. I find that was not the procedure actually adopted in the present case. The particulars of all the candidates having been given along with the agenda and the members of the Municipal Council forming groups according to the parties to which they owe allegiance, there was an opportunity for consensus before taking up the matter at the specially convened meeting. In this atmosphere the resolution that was put to vote was a resolution to co-opt respondent Nos. 6 and 7, the proposal of such a resolution cannot mean that the candidature of the petitioner was not considered at all because the proposal has certainly selected respondents 6 and 7 out of the five eligible candidates after considering all of them. When that resolution is put to vote, the members unanimously adopted that resolution by voice vote thereby agreeing with that selection. The Councillor who has filed an affidavit stating that they co-opted 6th and 7th respondents by one voice obviously means this though he has not clearly spelled out the modus operandi. Thus, the co-option is by way of nomination and not by way of election and such a nomination, choosing two of five eligible candidates, cannot be considered to be arbitrary, particularly when it is exercised by a democratic process. I, therefore, see no reason to interfere with the impugned order or the co-option of the 6th and 7th respondents.
8. Accordingly, the writ petition is dismissed. No costs.