* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: 26th April, 2011
% Judgment Pronounced on: 9th May, 2011
+1. W.P.(C) 5198/2010
DEVENDRA KUMAR ..... Petitioner
Through: Mr. Sunil Mittal, Advocate.
versus
GOVT. OF NCT OF DELHI AND ORS. ..... Respondents
Through: Mr.Nazmi Waziri, Advocate for
Respondent No.1
Mr.Sanjeev Sachdeva with Mr.
Sanjeet Ranjan and Mr. P. Mehta,
Advocates for Respondent No.2
Mr. Rakesh Tiku, Sr. Advocate
with Mr. Mrityunjay Kumar,
Advocate for Respondent No.3
Mr. Aman Lekhi, Sr. Advocate
with Mr. Mohit Gupta, Mr.
Rupinder Pal Singh and Mr. M.A.
Hashmi, Advocates for Respondent
No.4 with Respondent No.4 in
person.
Mr. S.P. Kalra, Sr. Advocate with
Mr. Mahavir Singh, Advocate for
applicant in CM No.4239/2011.
2. W.P.(C) 1985/2011
VIJENDER SINGH MANN ..... Petitioner
Through: Mr. S.P. Kalra, Sr. Advocate with
Mr. Mahavir Singh, Advocate.
versus
GOVT. OF NCT OF DELHI AND ORS. ..... Respondents
Through: Mr.Nazmi Waziri, Advocate for
Respondent No.1
WP(C) Nos.5198/2010 and 1985/2011 Page 1 of 33
Mr.Sanjeev Sachdeva with Mr.
Sanjeet Ranjan and Mr. P. Mehta,
Advocates for Respondent No.2
Mr. Rakesh Tiku, Sr. Advocate
with Mr. Mrityunjay Kumar,
Advocate for Respondent No.3
Mr. Aman Lekhi, Sr. Advocate
with Mr. Mohit Gupta, Mr.
Rupinder Pal Singh and Mr. M.A.
Hashmi, Advocates for Respondent
No.4 with Respondent No.4 in
person.
CORAM:
HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE SANJIV KHANNA
1. Whether reporters of the local papers be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
DIPAK MISRA, CJ
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
WP(C) Nos.5198/2010 and 1985/2011 Page 2 of 33
thereafter proceed to dwell upon the challenge to the action on the
foundation of the interpretation placed upon by the learned 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 vs. 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
WP(C) Nos.5198/2010 and 1985/2011 Page 3 of 33
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, learned counsel on behalf of the petitioners, Mr. Nazmi Waziri,
learned counsel for the respondent No.1, Mr. Sanjeev Sachdeva, learned
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.
WP(C) Nos.5198/2010 and 1985/2011 Page 4 of 33
(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 retirement and to fill it up by co-option.
(d) The concept of co-option is contrary to the will of the electorate
inasmuch as a person who falls short of being elected by few votes
is not chosen when the vacancy arises because of death or
resignation but someone is imposed upon the lawyers‟ community
at large by the existing members of the Bar Council. The will of
the electorate is the conceptual essentiality in a democratic set up
but when co-option takes place, the said basic facet gets atrophied
which is absolutely illegal.
WP(C) Nos.5198/2010 and 1985/2011 Page 5 of 33
(e) The objectives sought to be achieved by the Bar Council of States
and Union Territories under the Act are in the realm of regulation,
control and discipline and, therefore, it is necessary and obligatory
to choose an advocate who has faced the election and not elected
because of small margin so that there would be proper
representation but the said purpose is nullified by taking recourse
to co-option by a group of elected members.
(f) By introducing the concept of co-option, unfettered and unbridled
power has been given to the rest of the members which not only
violates the spirit of the Act but also contravenes the basic spirit of
Article 14 of the Constitution which shuns any kind of unfettered
discretion.
8. The learned counsel appearing for the respondents, combatting the
aforesaid contentions, have canvassed the following proponements:
(a) There is no specific pleading how the Rule violates any of the
provisions enshrined under the Act and in the absence of pleadings,
the said ground does not deserve to be adverted to and in any case,
the Rule in question does not contravene any of the provisions of
the Act.
(b) The contention relating to the artificial classification without any
rationale or intelligible differentia is devoid of any substance as the
WP(C) Nos.5198/2010 and 1985/2011 Page 6 of 33
nature of vacancies are absolutely different.
(c) The basic purpose of the Rule is to avoid a re-election and,
therefore, the Rules have been made for co-option under certain
circumstances and inclusion of the next man in certain other
circumstances and, therefore, it does not invite the wrath of
equality clause.
(d) The principle of co-option is an accepted method prevalent in
associations and statutory bodies and when there is a set of Rules
which is in consonance with the Act governing the field, the
contention that the Rule introduces unreasonableness or
arbitrariness does not merit consideration.
9. Before we proceed to deal with the respective contentions, we
think it apposite to refer to certain authorities with regard to the nature of
pleadings which are necessitous for the purpose of assailing a statutory
provision as constitutionally invalid.
10. A Division Bench of this Court in WP(C) No.8663/2008 [Smt.
Sunita Bugga v. Director of Education and others] decided on
30.7.2010 has held thus:
“10. It is well settled in law that a person who
assails the constitutional validity of an Act or a
notification must specifically set forth the grounds
for such challenge. In this context, we may refer
with profit to certain decisions in the field.WP(C) Nos.5198/2010 and 1985/2011 Page 7 of 33
11. In State of Uttar Pradesh v. Kartaar Singh,
AIR 1964 SC 1135, while dealing with the
constitutional validity of Rule 5 of the Food
Adulteration Rules, 1955, their Lordships opined
as follows:-“(15)…..if the rule has to be struck down as
imposing unreasonable or discriminatory
standards, it could not be done merely on
any a priori reasoning but only as a result of
materials placed before the Court by way of
scientific analysis. It is obvious that this can
be done only when the party invoking the
protection of Art. 14 makes averments with
details to sustain such a plea and leads
evidence to establish his allegations. That
where a party seeks to impeach the validity
of a rule made by a competent authority on
the ground that the rules offend Art. 14 the
burden is on him to plead and prove the
infirmity is too well established to need
elaboration.”12. In State of Andhra Pradesh and another v. K.
Jayaraman and others, AIR 1975 SC 633, it has
been stated thus:-“3. It is clear that, if there had been an
averment, on behalf of the petitioners, that
the rule was invalid for violating Articles 14
and 16 of the Constitution, relevant facts
showing how it was discriminatory ought to
have been set out.”13. In Union of India v. E.I.D. Parry (India)
Ltd., AIR 2000 SC 831, a two Judge Bench of the
Apex Court has expressed thus:-“There was no pleading that the Rule upon
which the reliance was placed by the
respondent was ultra vires the Railways Act,
1890. In the absence of the pleading to that
effect, the trial Court did not frame any issue
WP(C) Nos.5198/2010 and 1985/2011 Page 8 of 33
on that question. The High Court of its own
proceeded to consider the validity of the
Rule and ultimately held that it was not in
consonance with the relevant provisions of
the Railways Act, 1890 and consequently
held that it was ultra vires. This view is
contrary to the settled law…”14. In State of Haryana v. State of Punjab &
another, (2004) 12 SCC 673, a two Judge Bench of
the Apex Court has expressed thus:-“82….. It is well established that
constitutional invalidity (presumably that is
what Punjab means when it uses the word
“unsustainable”) of a statutory provision can
be made either on the basis of legislative
incompetence or because the statute is
otherwise violative of the provisions of the
Constitution. Neither the reason for the
particular enactment nor the fact that the
reason for the legislation has become
redundant, would justify the striking down
of the legislation or for holding that a statute
or statutory provision is ultra vires. Yet
these are the grounds pleaded in sub-
paragraphs (i), (iv), (v), (vi) and (vii) to
declare Section 14 invalid. Furthermore,
merely saying that a particular provision is
legislatively incompetent [ground (ii)] or
discriminatory [ground (iii)] will not do. At
least prima facie acceptable grounds in
support have to be pleaded to sustain the
challenge. In the absence of any such
pleading the challenge to the constitutional
validity of a statute or statutory provision is
liable to be rejected in limine.”11. In Virendra Singh Choudhary v. Union of India & ors., AIR
2007 Madhya Pradesh 26, it has been observed that:
WP(C) Nos.5198/2010 and 1985/2011 Page 9 of 33
“The next spectrum of assail relates to violation of
Articles 14, 16, 19 and 21 of the Constitution of
India. As far as Articles 16, 19 and 21 are
concerned, we are afraid, we may state here that
there is no assertion how the provisions offend
those provisions of the Constitution. It is well
settled in law that a person who assails a provision
to be ultra vires must plead the same in proper
perspective.”12. We have referred to the said authorities as we find that in this
petition, there is really no pleading as to how the Rule violates the
provisions of the Act or violates Article 14 of the Constitution. In spite
of the absence of pleading, we still intend to advert to the provisions of
the Act and the nature of the Rule in question.
13. The Act was enacted to amend and consolidate the law relating to
legal practitioners and to provide for the constitution of the Bar Councils
in States and an apex body the Bar Council of India. Section 2(d) defines
“Bar Council” to mean a Bar Council constituted under the Act. Section
2(e) defines “Bar Council of India” to mean the Bar Council constituted
under Section 4 for the territories to which the Act extends. Section 2(m)
defines the “State Bar Council” to mean a Bar Council constituted under
Section 3. Section 3(2) provides who shall constitute the members.
Section 3(2)(b) which deals with election reads as under:
“2(b) in the case of a State Bar Council with an
electorate not exceeding five thousand, fifteen
members, in the case of a State Bar Council with
WP(C) Nos.5198/2010 and 1985/2011 Page 10 of 33
an electorate exceeding five thousand but not
exceeding ten thousand, twenty members, and in
the case of a State Bar Council with an electorate
exceeding ten thousand, twenty-five members,
elected in accordance with the system of
proportional representation by means of the single
transferable vote from amongst advocates on the
electoral roll of the State Bar Council.Provided that as nearly as possible one-half of such
elected members shall, subject to any rules that
may be made by the Bar Council of India be
persons who have for at least ten years been
advocates on a State roll, and in computing the
said period of ten years in relation to such person,
there shall be included any period during which the
person has been an advocate enrolled under the
Indian Bar Councils Act, 1926.”14. Section 15 of the Act confers on a Bar Council the power to frame
rules to carry out the purposes of Chapter II which deals with Bar
Council. Sections 15(2)(a) and (2)(f) read as follows:
“(2)(a) the election of members of the Bar Council
by secret ballot including the conditions subject to
which persons can exercise the right to vote by
postal ballot, the preparation and revision of
electoral rolls and the manner in which the results
of election shall be published;X X X X
(2)(f) the filling of casual vacancies in the Bar
Council”15. In this context, we may also reproduce with profit Rule (2)(d)
which is as follows:
WP(C) Nos.5198/2010 and 1985/2011 Page 11 of 33
“(2)(d) the manner in which and the authority by
which doubts and disputes as to the validity of an
election to the Bar Council or to the office of the
Chairman or Vice-Chairman shall be finally
decided.”16. On a perusal of the aforesaid provisions, it is quite vivid that the
Bar Councils have been conferred with the power to stipulate / provide
the manner and the authority which will decide the disputes as to the
validity of election to the Bar Council or to the office of the Chairman or
Vice-Chairman and further how to fill up any casual vacancy in the Bar
Council.
17. Presently, we shall proceed to reproduce the Rules that have been
framed by the Bar Council of Delhi. In this regard, Rule 31(A) is
reproduced below:
“31.(A) Filling of last Vacancies.
(i) In case of the verdict of the Tribunal being
that a candidate was not validly elected, the
vacancy thus caused shall be filled in by the
candidate who secured the maximum First
Preference Votes amongst the unsuccessful
candidates.(ii) Any vacancy caused in the Council because
of the resignation, death or retirement, in any
manner, of a member before his term of office has
come to an end, shall be treated as casual vacancy
and shall be filled in by co-option.(iii) A member co-opted to fill a casual vacancy
shall serve for the remainder of his predecessor‟s
term of office.”WP(C) Nos.5198/2010 and 1985/2011 Page 12 of 33
18. If we understand the Rules on the anvil of the conferment of power
by the Act, we do not perceive that there is any kind of transgression of
the Act or attempt to travel beyond the scope of the Act. It needs no
special emphasis to state that if a Rule goes beyond the rule making
power conferred by the statute, the same has to be declared ultra vires. If
a Rule supplants any provision for which power has not been conferred, it
becomes ultra vires. The basic test is to determine and consider the
source of power which is relatable to the rule. Similarly, a Rule must be
in accord with the parent statute, as it cannot travel beyond it. In this
context, we may refer with profit to the decision in General Officer
Commanding-in-Chief v. Dr. Subhash Chandra Yadav, AIR 1988 SC
876 wherein it has been held as follows:-
“……Before a rule can have the effect of a
statutory provision, two conditions must be
fulfilled, namely (1) it must conform to the
provisions of the statute under which it is framed;
and (2) it must also come within the scope and
purview of the rule making power of the authority
framing the rule. If either of these two conditions
is not fulfilled, the rule so framed would be void.”19. In Additional District Magistrate (Rev.), Delhi Administration v.
Shri Ram, AIR 2000 SC 2143, it has been ruled that it is a well
recognized principle that conferment of rule making power by an Act
does not enable the rule making authority to make a rule which travels
beyond the scope of the enabling Act or which is inconsistent therewith
WP(C) Nos.5198/2010 and 1985/2011 Page 13 of 33
or repugnant thereto.20. In the present case, as we find that the Act confers the power, it can
be stated with certitude that there is no transgression or supplanting and,
hence, the submission raised on that score deserves to be repelled and we
do so.
21. The second limb of submission is that the Rule invites the vice of
discrimination as there is irrational distinction between the two categories
of vacancies and, therefore, it invites the frown of Article 14. It is urged
that there is no intelligible differentia for such classification.
22. It is well settled in law that Article 14 is not averse to classification
but there must be intelligible differentia to show that the classification is
valid. The doctrine of classification is fundamentally based on a
classification with reason and circumstances dealing with one set of facts
and the situation or circumstances relating to different set of facts. In this
context, we may refer to certain authorities how the facet of classification
has been understood by the Apex Court. In Madhya Pradesh Ration
Vikreta Sangh Society and Others versus State of Madhya Pradesh and
Another, (1981) 4 SCC 535, the issue raised before the Apex Court was
whether preference given to cooperative societies under the Madhya
Pradesh Foodstuffs (Civil Supplies Public Distribution) Scheme 1981
replacing the earlier scheme of running such fair price shop was violative
WP(C) Nos.5198/2010 and 1985/2011 Page 14 of 33
of Article 14 of the Constitution of India. While dealing with the conceptof equality before law, the Apex Court opined thus:
“8. The wider concept of equality before the law
and the equal protection of laws is that there shall
be equality among equals. Even among equals
there can be unequal treatment based on an
intelligible differentia having a rational relation to
the objects sought to be achieved. Consumers‟
cooperative societies form a distinct class by
themselves. Benefits and concessions granted to
them ultimately benefit persons of small means
and promote social justice in accordance with the
directive principles. There is an intelligible
differentia between the retail dealers who are
nothing but traders and consumers‟ cooperative
societies……”23. In National Council for Teacher Education and Others versus
Shri Shyam Shiksha Prashikshan Sansthan and Others, 2011 (2)
SCALE 59, the Apex Court has opined thus:
“16. Article 14 forbids class legislation but
permits reasonable classification provided that it is
founded on an intelligible differentia which
distinguishes persons or things that are grouped
together from those that are left out of the group
and the differentia has a rational nexus to the
object sought to be achieved by the legislation in
question. In re the Special Courts Bill, 1978
(1979) 1 SCC 380, Chandrachud, C.J., speaking
for majority of the Court adverted to large number
of judicial precedents involving interpretation of
Article 14 and culled out several propositions
including the following:“(2) The State, in the exercise of its
governmental power, has of necessity to
WP(C) Nos.5198/2010 and 1985/2011 Page 15 of 33
make laws operating differently on different
groups or classes of persons within its
territory to attain particular ends in giving
effect to its policies, and it must possess for
that purpose large powers of distinguishing
and classifying persons or things to be
subjected to such laws.(3) The constitutional command to the
State to afford equal protection of its laws
sets a goal not attainable by the invention
and application of a precise formula.
Therefore, classification need not be
constituted by an exact or scientific
exclusion or inclusion of persons or things.
The courts should not insist on delusive
exactness or apply doctrinaire tests for
determining the validity of classification in
any given case. Classification is justified if
it is not palpably arbitrary.(4) The principle underlying the
guarantee of Article 14 is not that the same
rules of law should be applicable to all
persons within the Indian territory or that the
same remedies should be made available to
them irrespective of differences of
circumstances. It only means that all
persons similarly circumstanced shall be
treated alike both in privileges conferred and
liabilities imposed. Equal laws would have
to be applied to all in the same situation, and
there should be no discrimination between
one person and another if as regards the
subject-matter of the legislation their
position is substantially the same.(5) By the process of classification, the
State has the power of determining who
should be regarded as a class for purposes of
legislation and in relation to a law enacted
on a particular subject. This power, no
WP(C) Nos.5198/2010 and 1985/2011 Page 16 of 33
doubt, in some degree is likely to produce
some inequality; but if a law deals with the
liberties of a number of well defined classes,
it is not open to the charge of denial of equal
protection on the ground that it has no
application to other persons. Classification
thus means segregation in classes which
have a systematic relation, usually found in
common properties and characteristics. It
postulates a rational basis and does not mean
herding together of certain persons and
classes arbitrarily.(6) The law can make and set apart the
classes according to the needs and
exigencies of the society and as suggested
by experience. It can recognize even degree
of evil, but the classification should never be
arbitrary, artificial or evasive.(7) The classification must not be
arbitrary but must be rational, that is to say,
it must not only be based on some qualities
or characteristics which are to be found in
all the persons grouped together and not in
others who are left out but those qualities or
characteristics must have a reasonable
relation to the object of the legislation. In
order to pass the test, two conditions must
be fulfilled, namely, (1) that the
classification must be founded on an
intelligible differentia which distinguishes
those that are grouped together from others
and (2) that that differentia must have a
rational relation to the object sought to be
achieved by the Act.”24. In Transport and Dock Workers Union and Others versus
Mumbai Port Trust and Another, 2011 AIR SCW 220, it has been
stated thus:
WP(C) Nos.5198/2010 and 1985/2011 Page 17 of 33
“21. It has been repeatedly held by this Court that
Article 14 does not prohibit reasonable
classification for the purpose of legislation or for
the purposes of adoption of a policy of the
legislature or the executive, provided the policy
takes care to reasonably classify persons for
achieving the purpose of the policy and it deals
equally with all persons belonging to a well
defined class. It is not open to the charge of denial
of equal protection on the ground that the new
policy does not apply to other persons. In order,
however, to pass the test of permissible
classification, as has been laid down by the
Supreme Court in the catena of its decisions, two
conditions must be fulfilled; (1) that the
classification must be founded on an intelligible
differentia which distinguishes persons or things
that are grouped together from others left out of
the group and (2) that the differentia must have a
rational relation to the object ought to be achieved
by the statute in question, vide Gopi Chand v.
Delhi Administration, AIR 1959 SC 609 (see also
Basu‟s „Shorter Constitution of India, fourteenth
edition 2009 page 81).22. Thus the classification would not violate the
equality provision contained in Article 14 of the
Constitution if it has a rational or reasonable
basis.”25. In this context, we may also profitably produce a passage from
Priyambada Debi versus State of Orissa and Another, AIR 1993
ORISSA 99:
“5. …..a classification made by a statute which
is under-inclusive, in the sense that while giving
benefit some persons who are similarly situated are
left out, would be tolerated more by the Courts
than one which is over-inclusive (i.e., including
not only those who are similarly situated but others
WP(C) Nos.5198/2010 and 1985/2011 Page 18 of 33
who are not so situated), as a legislative authority
acting within its field is not bound to extend its
regulation to all cases which it might possibly
reach; and a legislature is free to recognize the
degrees of necessities and it may confine the
provision to those classes of cases where the need
seems to be clearest. (See paragraphs 54 and 60 of
State of Gujarat v. Ambica Mills, AIR 1974 SC
1300, and paragraph 12 of Shankar Birmiwal v.
Union of India, AIR 1982 Raj 187 (FB).”26. In Ram Krishna Dalmia and Ors. v. Shri Justice S.R. Tendolkar
and Ors., AIR 1958 SC 538, the Apex Court laid down many a principle
pertaining to class legislation and also the presumption of
constitutionality. Looking at the role of a court while dealing with the
presumption of constitutionality, the two principles which are relevant for
the present purpose are reproduced below:
“(e) that in order to sustain the presumption of
constitutionality the Court may take into consideration
matters of common knowledge, matters of common
report, the history of times and may assume every
state of facts which can be conceived existing at the
time of legislation; and(f) that while good faith and knowledge of the
existing conditions on the part of a Legislature are to
be resumed, if there is nothing on the face of the law
or the surrounding circumstances brought to the notice
of the Court on which the classification may
reasonably be regarded as based, the presumption of
constitutionality cannot be carried to the extent of
always holding that there must be some undisclosed
and unknown reasons for subjecting certain
individuals or corporations to hostile or discriminating
legislation.”WP(C) Nos.5198/2010 and 1985/2011 Page 19 of 33
27. In the case at hand, the submission of the learned counsel for the
petitioner is that though vacancy for a member occurs, yet two different
modes have been provided for filling up the same without any fathomable
and acceptable reason and hence, it is discriminatory. It is further
submitted that the Rule creates a classification in respect of the vacancies
putting them in two compartments though the genus is „vacancy‟ and
there is no justification for such classification. On a first blush, the
aforesaid submission may look quite attractive but on a keener scrutiny,
the same has to pale into insignificance. As far as the first category of
vacancy is concerned, there is a challenge to the election of an elected
candidate before the tribunal and when the tribunal gives a verdict that
the candidate was not validly elected, the said vacancy is to be filled up
by the candidate who secures the maximum first preference votes
amongst the unsuccessful candidates. Thus, the vacancy is caused only
after the election of the elected candidate is declared invalid. The
election of the elected candidate is the subject matter of dispute and his
election is declared as bad / void / illegal. The right to contest an
election in any field is basically a statutory right and is controlled by the
statute. The reason for providing such a provision is that the
candidate who has been declared elected faces a verdict that he
WP(C) Nos.5198/2010 and 1985/2011 Page 20 of 33
was not validly elected and the vacancy thus caused is of a differentnature. True it is, it is a vacancy, nonetheless, the vacancy has a different
character. The elected candidate is eliminated from the list of elected
candidates. Once there is elimination, the person who secured the
maximum first preference votes amongst the unsuccessful candidates is
declared elected. Causation of such a vacancy is different from the other
category of vacancy which is a casual vacancy occurring because of
death, resignation or retirement of a member.
28. The term „casual‟ has its own connotation. In Black‟s Law
Dictionary, „casual‟ has been defined thus:
“Occurring without regularity; occasional;
impermanent, as employment for irregular periods.Happening or coming to pass without design and
without being foreseen or expected; unforeseen;
uncertain; unpremeditated.”29. In Chambers 21st Century Dictionary, the word has been defined to
mean happening by chance. Thus understood, there is a rationale which
is in the compartment of intelligible differentia. Thus, it is possible to
treat the two vacancies separately and prescribe different modes for
filling of the vacancies. The first one, as we have stated, arises because
of disqualification of an elected candidate and the second one, due to
resignation, death or retirement of an elected member but before the term
WP(C) Nos.5198/2010 and 1985/2011 Page 21 of 33
is over. The purpose in both the Rules 31(A)(i) and (ii) is to avoid a freshelection. In the first one, a right is conferred on a candidate on the basis
of reasonable criterion which is based on the obtaining of maximum first
preference votes. In the second-one, the right has been conferred on the
elected members of the Council to fill up the vacancy by co-option.
Thus, the distinction is discernible on the prism of reason and hence, it
does not invite the frown of discrimination as enshrined under the
equality clause of Article 14 of the Constitution.
30. The next plank of submission fundamentally pertains to the
conferment of unfettered and unbridled power on the members of the Bar
Council, the electoral body, to co-opt a member ignoring the will of the
lawyers community at large. We may state here with profit that though
we have enumerated the submissions in detail, yet the rest of the
submissions will fall under this compartment. It is settled in law that the
right to vote or contest in an election is not a fundamental right but a
statutory right which has to conform to the organic law and the fountain
of all laws, the Constitution of India. The said rights can be restricted on
the constitutional parameters.
31. In the case at hand, the Rule provides for co-option. It does not
provide for a fresh election. The core issue would be whether every
member of the lawyer community should be allowed to vote or the voting
WP(C) Nos.5198/2010 and 1985/2011 Page 22 of 33
should be restricted and constricted to the elected members. Appositelyappreciated, the Rule has a sacrosanct purpose. As has been indicated
earlier, it avoids need to hold a fresh election as there should not be
another election to fill up casual vacancies, when the term of the Council
has not expired. It is expected of the said body to co-opt a person through
a democratic process. The Rule instead of full electorate voting again,
confers the power on the electoral college to co-opt a member. When
there is a statutory body and such power is conferred, it is difficult to hold
that unfettered, unbridled and uncanalized power is conferred on them.
The Bar Council is a body corporate. It functions in a democratic
manner. In a contingency of this nature when the elected body has been
given the power, such conferment of power cannot be said to be arbitrary.
Merely saying that the same may or should have been conferred on all the
voters does not stand to reason. Hence, we are disposed to think that the
submission in this regard is unacceptable and accordingly, we repel the
same.
32. In view of our aforesaid analysis, we conclude and hold that the
Rule 31(A)(ii) is constitutionally valid and not hit by any of the limbs of
Article 14 of the Constitution of India.
33. Presently, we shall proceed to deal with whether the method
adopted by the members of the Bar Council while exercising the power of
WP(C) Nos.5198/2010 and 1985/2011 Page 23 of 33
co-option is unjustified and vulnerable. Mr. Mittal, leaned counsel for thepetitioner in W.P.(C) NO.5198/2010, has submitted that even in the
matter of co-option, adequate publicity has to be given so that the
members can submit their applications for co-option. It is his further
submission that the Bar Council did not keep in view the direction given
in paragraph 15 of W.P. No.5198/2010 decided on 4.8.2010. The said
paragraph reads as under:
“This court would like the BCD itself, in the first
instance, to consider what should be the norms or
rules that are required to be followed / framed for
considering who should be eligible for being co-
opted as a member to fill up a casual vacancy in
the BCD.”34. It is also urged by him that only the names of the persons who had
contested the election and faced the electorate at large can be considered
for co-option.
35. In this context, we may first appreciate the term „co-opt‟ which
means to elect an additional member by the votes of the existing
members. Black‟s Law Dictionary defines the term „co-optation‟ as
follows:
“a concurring choice; the election, by the members
of a close corporation, of a person to fill a
vacancy”36. In Revenue Divisional Officer v. Pushpam & Ors., AIR 1976
Madras 252, the learned Chief Justice, while considering the co-option
WP(C) Nos.5198/2010 and 1985/2011 Page 24 of 33
of a woman member to a Panchayat under the provisions of the TamilNadu Panchayats Act (XXXV of 1958), construed the word „co-option‟
in the following manner:
“When it speaks of panchayat’s entitlement to co-
opt, to our mind, it at once implies the consensus
of the members in their entirety, or of the majority
of those members, which is ascertained by a
process of vote taking. That is what precisely the
word “co-option” means ordinarily. For instance
the Concise Oxford Dictionary says that co-opt
means elect in to a body by votes of existing
members. The word is derived from opt which
means choose and the choice necessarily involves
ascertaining the wishes of each of the members of
the panchayat already elected into the body
politic.”37. In view of the meaning conferred on the word, in the case of
election, by the members of a body corporate, of a person to fill up a
vacancy, the choice is given to the electoral body to co-opt a member.
Rule 7 of the Rules provides about the candidate who cannot seek
election unless his name is in the electoral roll. It is appropriate to
reproduce Rules 7 and 7A for the sake of completeness:
7. Candidates: No person shall be entitled to
seek election unless his name is in the election roll.7(A) No advocate shall be entered on the
Electoral Roll if an information obtained by the
Bar Council.(a) he has at any time been removed or
WP(C) Nos.5198/2010 and 1985/2011 Page 25 of 33
suspended from practice; provided that this
disqualification shall operate only for a period of
five years from the date of removal or the expiry of
the period of suspension.(b) he has been suspended from practice,
provided that this disqualification shall operate
only for a period of five years from the date of the
period of suspension;(c) He is an undischarged insolvent;
(d) he has been found guilty of an election
offence in regard to an election to the State
Council by an Election Tribunal, provided
however, that such disqualification shall not
operate beyond the election next following after
such finding has been made;(e) he is convicted by a competent court for an
offence involving moral turpitude, provided that
this disqualification shall cease to have effect after
a period of two years has elapsed since his release;(f) he is in full-time service or is in such part-
time business or other vocation not permitted in
the case of practising advocates by the rules either
of the State Council concerned or of the Council;(g) he has intimated voluntary suspension of
practice and has not given intimation of
resumption of practice.”38. In this context, it may be stated that co-option and nomination of a
member in a democratic set up is not a new phenomenon. Article 171 of
the Constitution provides for nomination of members having special
knowledge or practical experience in certain fields such as literature,
WP(C) Nos.5198/2010 and 1985/2011 Page 26 of 33
science, cooperative movement and social science. Thus, in the saidArticle, there is a specific criterion stipulated for nomination. In the case
at hand, as we perceive, the only qualification for nomination has to be
that the person is entitled to be elected as per Rules. No special or other
qualification is necessary.
39. When co-option takes place, only a person who is eligible and not
disqualified to be a candidate in an election can be considered for co-
option. It is not necessary or stipulated that he / she should have been an
unsuccessful candidate in the last election. If he is ineligible under Rules
7 and 7A of the Rules, he cannot be co-opted. The submission of Mr.
Mittal that the next person who has faced the election has to be
considered for co-option, we are disposed to think, is not in the scheme of
things and, hence, we are unable to accept the same. The other
submission that there should have been wide publicity is only to be noted
to be rejected for the simon pure reason that the concept of co-option, as
understood in law does not require or prescribe any such requirement. It
is the obligation of the electoral college or the Council to see that they co-
opt a member who is eligible in law to be elected otherwise. Who should
be co-opted as long as he meets the eligibility norm is for the voters to
decide. It is the voters‟ wisdom that prevails and is accepted. In the
scheme of co-option, there is no question of any kind of propagation.
WP(C) Nos.5198/2010 and 1985/2011 Page 27 of 33
The law only mandates that the body or electoral college should eitherunanimously co-opt a member or do it by majority of votes that being the
warrant of law. Thus, the submission raised by the learned counsel for
the petitioner is misconceived.
40. At this juncture, we may note that in the earlier writ petition, the
learned Single Judge had directed the Bar Council of Delhi to consider
the norms or rules that are required to be followed / framed for
considering the eligibility of a person for being co-opted as a member to
fill up a casual vacancy in the Council. Certain correspondences have
been brought on record to show that suggestions were given by certain
members that the next to the last elected person should be co-opted due to
the demise of late K.K. Sareen, the elected member. A notice was
circulated for the following purposes:
“(i) To consider the procedure to be followed /
adopted by Delhi Bar Council in the matter of co-
option to fill up any casual vacancy;(ii) To discuss and determine the eligibility
criterion for choosing a person for co-option to fill
up any casual vacancy;(iii) To discuss and consider the representation
dated 19.07.2010 of Sh. Devendra Kumar Sharma
(Copy enclosed) regarding his co-option to fill up
the casual vacancy occurred due to the said demise
of Sh. K.K. Sareen; and(iv) To fill the casual vacancy occurred due to
the said demise of Sh.K.K. Sareen.”WP(C) Nos.5198/2010 and 1985/2011 Page 28 of 33
41. The proceeding that took place has been brought on record which
we think apt to reproduce in toto:
“Minutes of the meeting of Bar Council of Delhi
held in the office of the Council at 1-F, Lawyers‟
Chamber, Delhi High Court, New Delhi on
21.01.2011.The present meeting was called to consider the
representation made by Sh.Vijender Singh Mann
regarding his request for co-option, and also for
making compliance of the order dated 04.08.2010
and 04.10.2011 of Hon‟ble High Court of Delhi, as
passed in the Writ Petition titled Devendra Kumar
Vs. the State, being Writ Petition No.5198/2010.The aforesaid orders were circulated amongst the
Hon‟ble members and they were requested to give
their views on the same. The matter was discussed
and debated thoroughly in the Council‟s meeting,
and as a result of the said discussion, three options
had emerged.The first option was to follow the past precedents
as regards the procedure of cooption of a member
to fill up the casual vacancy. It is on record that in
the immediate past, the co-option of a members to
the Council was done the basis of the majority
decision of the Council, and as such any advocate
who was otherwise eligible to be elected as a
member of Bar Council of Delhi in terms of the
relevant rules, could be co-opted as a members,
provided the majority of the members of the
Council were to vote in his/her favour. This norm
was followed in the past in the case of Sh. Sunil
Mittal, Advocate, Sh.Rakesh Sherawat, Advocate
and Sh.R.K. Kochar, Advocate all of whom were
co-opted in the past by adopting the aforesaid
norm. Thus, there are precedents of following the
WP(C) Nos.5198/2010 and 1985/2011 Page 29 of 33
said norm regarding the co-option of a member to
fill up the casual vacancy.The second option which emerged was having a
specific rules to be made and incorporated in this
existing rule providing for a co-option of the
candidate who contested the election and who was
next to the person last elected as a member of the
Bar Council. Earlier a representation was also
made in this regard by Sh. D.K. Sharma, Advocate
who was also heard earlier by the Council.The third option was to have a specific rule
whereby the candidate who had secured maximum
number of first preference voters next to the least
person so elected as a member of the council in the
last election could be co-opted.The majority of the members consisting of
Chairman Rakehs Tiku, Sh. Nitin Hlawat, Hony.
Secretary, Sh. O.P. Faizi, Ms. Sarla Kaushik, Sh.
Ramesh Gupta, Sh. Ved Prakash Sharma, Sh.
Rakesh Kochar, Sh. Vijay Kumar Sondhi, Sh.
Puneet Mittal, Sh. Amit Sharma, Sh. Abhay
Kumar Verma and Sh. Rajesh Mishra, supported
the first option i.e. to follow the past precedents
and co-opt an advocate as a member by adopting
the norm of co-option on the basis of
recommendations of the majority of the members
of the Council. Thus, majority of the members
voted for the above option. The said course of
action would fall within the scope and ambit of
clause 15 of the aforesaid judgment dt. 04.08.2010,
wherein the Hon‟ble Court had itself directed that
“BCD itself in the first instance, to consider what
should be the norms or rules that are required to be
followed / framed for considering who should be
eligible for being co-opted as a member to fill up a
casual vacancy in the BCD.”According, the aforesaid majority of members of
the Council have recommended that the Council
WP(C) Nos.5198/2010 and 1985/2011 Page 30 of 33
should follow the norm of recommending the
name of an eligible advocate to be co-opted as a
member. In this view of the said decision /
recommendation of the majority of the members,
the latter who options were not accepted by the
majority of the members of the Council.
Accordingly, the representation of Sh. D.K.
Sharma and Sh. Vijender Mann were turned down.Besides the aforesaid members, the other members
of the Council who also supported the said option
included S/Sh. Surya Prakash Khatri, K.K.
Manan, R.S. Goswami, Rakesh Sherawat, Murari
Tiwari. However, the other members namely
Jaibir Singh Nagar, Vice Chairman, Sh. R.S.
Chauhan, Ms. Rana Parween Siddiqui, Sh. Rajiv
Khosla and Sh. Jagdev, were not in agreement with
the following of the aforesaid option.According the name of Sh.Aman Sareen, Advocate
was proposed by Sh. Puneet Mittal and seconded
by Sh. Rajesh Mishra, and the majority of the
members present and voting, approved of the
same.Considering the recommendation of the majority
of the members as mentioned above, the following
resolution was passed:“Resolved that Mr.Aman Sareen, S/o Late
Sh.K.K. Sareen, Advocate, be and is hereby
co-opted as a member of the Bar Council of
Delhi to fill up the casual vacancy which
had arisen on account of untimely demise of
the former Chairman Late Sh. K.K. Sareen,
and consequently, his name be forwarded to
the Govt. of NCT of Delhi for issuing
appropriate notification in that regard at the
earliest, and the Hony. Secretary of the
Council is requested to sign and forward
necessary documents, letters etc. in that
regard for the concerned authorities.”
WP(C) Nos.5198/2010 and 1985/2011 Page 31 of 33
A copy of these minutes may also be filed before
the Hon‟ble High Court in the aforesaid pending
Writ Petition.
No other agenda was discussed and the meeting
ended with a vote of thanks to the Chair.”
[Underlining is ours]
42. From the aforesaid factual depiction, it is clear as crystal that the
respondent no.4, Sh. Aman Sareen, was co-opted on the basis of
the majority of votes cast by the members present. Hence, we
perceive no illegality in the method of co-option.
43. Ex consequenti, we conclude and hold as follows:
(a) Rule 31(A)(ii) is constitutionally valid and neither hit by Article 14
of the Constitution of India nor does it run counter to or contravene
any of the provisions of the Advocates Act, 1961.
(b) The method of co-option is a permissible mode for filling up the
casual vacancy.
(c) The submission that even for the purpose of co-option there has to
be involvement of the larger body is unacceptable.
(d) The only qualification for a member to be co-opted is that he
should satisfy the criteria enumerated under Rules 7 and 7A of the
Bar Council of Delhi Election Rules, 1968.
(e) As the respondent no.4, Sh. Aman Sareen, has secured the majority
WP(C) Nos.5198/2010 and 1985/2011 Page 32 of 33
of votes of the members voting, there is no illegality in his co-
option as that is the method of co-option which is permissible in
law.
44. In the result, both the writ petitions, being sans substratum, stand
dismissed without any order as to costs.
CHIEF JUSTICE
MAY 9, 2011 SANJIV KHANNA, J
dk
WP(C) Nos.5198/2010 and 1985/2011 Page 33 of 33