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PETITIONER: UNIVERSITY OF POONA & ORS.

       Vs.

RESPONDENT: SHANKAR NARHAR AGESHE & ORS.

DATE OF JUDGMENT30/04/1971

BENCH: RAY, A.N. BENCH: RAY, A.N. SHELAT, J.M. BHARGAVA, VISHISHTHA

CITATION:  1971 AIR 1783            1971 SCR  597

ACT: Election-System  of  proportional representation  by  single transferable  vote  by ballot-Equality of  votes  in  second count-Exclusion of candidate by reference to votes on  first count-Propriety. Affiliation  of Colleges to University-Delay in  publication of notification-Effect on voting rights.

HEADNOTE: Under  s.  11 of the Poona University Act,  1948,  the  Vice Chancellor shall be elected by the Court of the  University, from  among  three  persons  recommended  by  the  Executive Council,  and  the election shall be made by the  system  of proportional   representation   by   means   of   a   single transferable  vote  by  ballot.  In the  present  case,  the result  of the ballot papers was that one candidate  secured 58  first  preference  votes, the second  secured  53  first preference  votes, and the third candidate secured 37  first preference votes.  The third candidate was eliminated on the first  count on the basis of his securing the lowest  number of  first preference votes, and his second preference  votes were  distributed between the other two.  This  resulted  in both of them securing an equal number of votes on the second count.  and the candidate who had the majority in the  first count  was declared elected.  The election was set aside  by the High Court. On  the  questions:  (1) Whether the tie  should  have  been resolved by drawing of lots; and (2) Whether the  principals of four colleges voted wrongly at the election because those colleges  had  not  been  duly affiliated  at  the  date  of election. HELD:     (1)  It is an established principle in the  system of   proportional  representation  by  means  of  a   single transferable  vote  by ballot, that where  for  one  vacancy there  are three candidates and one of them is  excluded  at the  first count and the other two candidates  continue  and secure  in the second count an equal number of  votes,  then the one who had the lower number of votes in the first count shall be excluded.  Determination by lot in case of equality of votes is neither a principle of universal application nor is  it a common law principle.  It is only permissible  when there is a specific statutory provision to that effect.   In

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the  absence  of such a statutory provision  the  method  of decision  by  lot is not resorted to when there  is  another rational  method.  The principle of decision by lot  is  de- pendent  on  chance and accident whereas  the  principle  of exclusion  with  reference  to difference of  votes  on  the original   count  is  based  on  reason and   legislative principles. The  principles  of  exclusion are not to be  found  in  any statutory enactment in the present case.  On the other  hand there  is the support of legislative measures embodying  the principle  of  exclusion  by reference  to  original  count. [605D, H; 606A-C] (a)  Rule  75(4) of the Conduct of Election Rules  indicates that when two or more candidates have been credited with the same  value and stand lowest on the poll the  candidate  for whom the lowest number of original 598 votes are recorded shall be excluded.  The rule applies when there are two or more candidates and not only when there are more  than two candidates.  The words ’stand lowest  on  the poll’ qualify ’two or more candidates who have been credited with  the  same  value’.   The  High  Court  overlooked  the rational of the principle embodied in this rule that in  the case of two continuing candidates each having the same value of  votes  to fill in one vacancy the tie  between  the  two would  be resolved by having regard to their original  votes in the first count. [604B, F] (b)  Rule  6 in the Schedule to the Presidential  and  Vice- Presidential  Election  Rules,  1952, and  Statute  No.  158 framed under the Poona University Act, though it does not in terms  apply  to  the election of  a  Vice-Chancellor,  also embody this principle. [603B] (c)  The  High Court’s reliance on r. 81(13) of the  Conduct of  Election Rule, 1961, in support of the  conclusion  that the  only system of exclusion in a case of the present  type should  be by lot is erroneous.  The principle in r.  81(3), applies  only where more than one seat is to be  filled  and only  one vacancy remains unfilled with only two  continuing candidates  and each of them has the same value of votes  at that count. [605C] (d)  The  defeated candidate himself made a petition to  the Chancellor  under s. 60 of the Act, which provides  that  if any  question  arises as to whether a person has  been  duly elected  the matter may be referred to the Chancellor  whose decision  shall be final, not to confirm the election.   The Court of the University has thus laid down its own procedure for correction.  When there is discretion to choose  between two  principles of exclusion, this Court would  not  command the University to exercise the discretion in a specific way. [606E] (2)  The  four colleges were in fact affiliated  before  the date  of election but there was delay in the publication  of the  notification.   Such delay would not detract  from  the sanction previously granted. [607A]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5 of 1971. Appeal  from the judgment and order dated December  18,  21, 1970  of the Bombay High Court in Special Civil  Application No. 1583 of 1970. S.   J.  Sorabeje,  M. O. Chinoy, J. R. Gagrat,  and  B.  R. Agarwala, for the appellants. V.   S. Desai and S. B. Wad, for the respondents Nos. 1,  2,

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4 and 7. The Judgment of the Court was delivered by Ray,  J.-This  is  an appeal by  certificate  under  Article 133(1)  (c) of the Constitution from the judgment  dated  18 and 21 December, 1970 of the Bombay High Court. The Bombay High Court issued a writ of quo warranto  declar- ing  that respondent No. 3 Dr. Balkrishna Pandurang Apte  is not entitled to act as the Vice-Chancellor of the University of Poona 599 is pursuance of the election held on 9 May, 1970 and further restraining him from acting as the Vice-Chancellor. H.   V.  Pataskar, the Vice-Chancellor of the University  of Poona died on 21 February, 1970.  The Governor of Bombay who is  the  Chancellor of the University  then  nominated  Maha Mahopadhyaya  Datto  Vaman  Potdar  to  act  as  the   Vice- Chancellor  until the date on which another  Vice-Chancellor was elected under sub-section (1) of section 11 of the Poona University Act, 1948 (hereinafter referred to as the Act). Under section 12 of the Act the Vice-Chancellor is the prin- cipal  executive  and academic officer  of  the  University. Under  section  11 of the Act the Vice-Chancellor  shall  be elected by the Court from among three persons recommended by the Executive Council.  Section 56 of the Act provides  that every  election  to the office of  the  Vice-Chancellor  and every recommendation for the nomination to the office of the Vice-Chancellor under the Act shall be made by the system of proportional   representation   by.  means   of   a   single transferable  vote  by  ballot  in such  manner  as  may  be prescribed by the Statutes. At the meeting of the Executive Council held on 28 February, 24 March and 18 April, 1970 the Executive Council recommend- ed  a  panel  of three persons.  They  were  Dr.  Balkrishna Pandurang  Apte, Principal Narayan Ramchandra  Kulkarni  and Principal  Narhar Govind Suru for election to the office  of the Vice-Chancellor.     These  were  the  three  candidates from amongst whom the Court   of the University had to elect one as the Vice-Chancellor. The said meeting of the Court of the University was convened under  notice  dated  22 April, 1970 for  9  May,  1970  for election  of  the Vice-Chancellor from amongst  those  three persons.   At  the election held on 9 May,  1970  the  total number  of  votes tendered was 149.  One of  the  votes  was invalid.   The  valid votes were 148.  The election  was  in accordance  with  section  56 of the Act by  the  system  of proportional   representation   by   means   of   a   single transferable  vote  by  ballot.  The result  of  the  ballot papers  appeared to be that Dr. Apte secured  58,  Principal Kulkarni  37 and Principal Suru 53 first  preference  votes. Principal Kulkarni was thus eliminated on the first count on the basis of the lowest number of first preference votes.  8 of  the  voters  who had given  first  preference  votes  to Principal  Kulkami  had not exercised second  preference  in favour  of either of the remaining two candidates  Dr.  Apte and Principal Suru.  The remaining 29 voters gave 12  second preference votes to Dr. Apte and 17 second preference  votes to  Principal  Suru.  This resulted in both  the  continuing candidates  Dr.  Apte and Principal Suru  each  securing  70 votes on 600 the second count.  Dr. Apte was declared elected because  in the  first count, namely, the count previous to the  one  in which  both obtained equal number of votes.  Dr. Apte had  a clear  majority of 5 votes and therefore Principal Suru  was excluded from the election.

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The election of Dr. Apte was challenged in the High Court on three  principal grounds.  First, it was contended that  the tie between Dr. Apte and Principal Suru at the second  count was  to be resolved by drawing of lots, because it  was  the ordinary  practice  in elections held under  the  system  of proportional   representation   by   means   of   a   single transferable  vote by ballot for election to a  single  seat that  the tie of the above kind must be resolved by  drawing of  lots.  Secondly, it was said that the Principal of  four Colleges,  viz.   N. D. M. V. P. Samaj’s Arts  and  Commerce College,  Sinnar; V. P. Mandal’s Arts, Science and  Commerce College, Thana; Narhar Balwant Thakur Law College, Nasik and G.  E. Society’s College for Education, Sangamner which  had not  been  duly affiliated at the date of the  election  had acted  and  voted at the election as members of  the  Court, and, therefore, the votes given by the members of those four colleges  were invalid.  Thirdly, it was contended that  the meeting  for  the election of the panel of  respondents  Dr. Apte, Principal Kulkarni and Principal Suru for election  to the office of the Vice-Chancellor was an invalid meeting and therefore the election was void. The High Court upheld the first contention and rejected  the other  two.  The High Court held that when upon final  count the  continuing  candidates  Dr.  Apte  and  Principal  Suru secured  equal  majority  of  valid  votes  the  system   of proportional   representation   by   means   of   a   single transferable vote by ballot never aimed at excluding one  of such  continuing  candidates  by reference  to  any  of  the previous  counts  and/or of original vote.  The  High  Court held  that where only two continuing candidates remained  to fill  up  only  one vacancy and both of them  had  the  same number of votes the tie of votes between the two  continuing candidates was to be solved by the principle of decision  by lot. Section 56 of the Act speaks both of election to the  office of the Vice-Chancellor or any authority of the University by the  system  of proportional representation by  means  of  a single transferable vote by ballot in such manner as may  be prescribed   by  the  Statutes.   The  authorities  of   the University  are  mentioned in section 15 of  the  Act.   The Vice-Chancellor  is  not one of  the  authorities  mentioned there.   The Vice-Chancellor is one of the officers  of  the University.  The officers of the University are mentioned in section 8 of the Act.                             601 Section  18  of  the Act contemplated  making  of  Statutes. Statutes  No.  142  to 165 are  the  relevant  Statutes  for elections  to authorities.  These Statutes do not  apply  to election of Vice-Chancellor because he is not an  authority. The  system  of election by proportional  representation  by means  of  a  single  transferable vote  by  ballot  is  the prescribed system of election to authorities.  The  relevant Statute for election to authorities on which counsel for the appellants  relied  is  Statute No. 158 in  support  of  the proposition that it embodied the rule of exclusion of one of the  two  continuing candidates both of whom  secured  equal number  of  votes in the second count by  reference  to  the principle  as to which of the two continuing candidates  had the lowest number of votes at the first count.  There is  no doubt  that Statute No. 158 does not in terms apply  to  the election of Vice-Chancellor but it is manifest that  Statute No.  158  embodies  a  rule  of  exclusion  of  one  of  the candidates  at  the  second count on the  ground  that  that candidate bad the lowest number of votes at the first count. Election by proportional representation by means of a single

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transferable  vote by ballot is often described as the  Hare system  of  proportional  representation  named  after   the English  political  reformer Thomas Hare.   This  system  of election  is  based on a quota determined by  the  following formula.   The total votes cast is divided by the number  of seats  to  be  filled  plus one, and one  is  added  to  the quotient.   If 100.000 votes are cast and 4 seats are to  be filled,  divide by 5 to get a quotient of 20,000 then add  I to  get 20,001, which is the quota.  A  candidate  receiving the  quota of first-choice of votes is elected.  Under  this system electors ,express first, second. third or  additional choices  according to the number of candidates.  An  elector does  not waste his vote.  If the candidate for whom he  has expressed  his choice, does not need his vote,  the  surplus votes  are  distributed  in accordance  with  the  indicated second  choices among candidates whose quotas have not  been filled.   If  enough  candidates are  not  elected  by  this process the candidate with the smallest number of choices is then excluded and his votes are distributed in the same way. This  process  of ,exclusion or elimination  goes  on  until enough  candidates  have filled their quotas  or  until  the successive  eliminations  have left no more than  enough  to fill the vacancies. In  working out the method of election in the present  case, it  has to be noticed whether the manner in which  Principal Suru has been excluded at the second count and Dr. Apte  has been declared elected at the second count is a principle  of exclusion  which  has  been  recognised  in  the  system  of proportional   representation   by   means   of   a   single transferable  vote by ballot.  Counsel for the  ..appellants contended  that  there was legislative recognition  of  this principle  in  three  cases.  The first is rule  75  of  the Conduct of                             602 Elections Rules, 1961.  The second is rule 6 in the Schedule to  the Presidential and Vice-Presidential Elections  Rules, 1952.   The third is Statute No. 158 in the Statutes of  the Poona  University Act.  Rule 75 of the Conduct of  Elections Rules  is applicable in the case of counting of votes  where only one seat is to be filled.  The two sub-rules of Rule 75 on which reliance was placed by, counsel for the  appellants for   the  legislative  recognition  of  the  principle   of exclusion are (3) and (4) which are as follows : -               "(3).   If,  at  the  end  of  any  count,  no               candidate   can  be  declared   elected,   the               returning officer shall-               (a)   exclude from the poll the candidate  who               up  to that stage has been credited  with  the               lowest value;               (b)   examine  all  the ballot papers  in  his               parcel    and   sub-parcels,    arrange    the               unexhausted papers in sub-parcels according to               the   next  available   preferences   recorded               thereon for the continuing candidates,,  count               the  number of papers in each  sub-parcel  and               credit  it  to  the candidate  for  whom  such               preference  is  recorded,  transfer  the  sub-               parcel to that candidate. and make a  separate               sub-parcel of all the exhausted papers ; and               (c)   see  whether  any  of   the   continuing               candidates has, after   such   transfer    and               credit, secured the quota.               (4)   If, when a candidate has to be  excluded               under clause (a) of sub-rule (3), two or  more               candidates  have been credited with  the  same

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             value  and  stand  lowest  on  the  poll,  the               candidate for whom the lowest number of origi-               nal votes are recorded shall be excluded,  and               if this number also is the same in the case of               two  or more candidates the returning  officer               shall  decide  by lot which of them  shall  be               excluded". Sub-rule  (4) indicates that if when a candidate has  to  be excluded two or more candidates have been credited with  the same  value, and stand lowest on the poll the candidate  for whom the lowest number of original votes are recorded  shall be  excluded.   In  the  present case  at  the  first  count Principal,  Kulkarni  was excluded because he  received  the lowest  number of votes on the first count.  At  the  second count  Dr.  Apte and Principal Sum were the  two  continuing candidates.  Of these two one had to be excluded.  Therefore the  principle of exclusion is that the candidate for  whom, the  lowest number of original votes are recorded  shall  be excluded. The original first preference votes indicated that Dr. Apte. 603 had  58 votes and Principal Suru had 53  votes.   Therefore. Dr. Apte had larger first preference votes.  The other  part of  sub-rule  (4) of rule 75 is that if both  at  the  first count and at the second count they had equal number of votes then  one  of them was to be excluded on  the  principle  of decision by lot. Rule  6 in the Schedule to the Presidential and  Vice-Presi- dential  Elections  Rules,  1952 on which  counsel  for  the appellants  relied embodied the same principle which  is  as follows :-               "If, when a candidate has to be excluded under               clause (a) above, two or more candidates  have               been  credited with the same number  of  votes               and  stand  lowest on the poll,  exclude  that               candidate who had secured the lowest number of               first  preference  votes, and if  that  number               also  was the same in the case of two or  more               candidates, decide by lot which of them  shall               be excluded".               Statute  No. 158(3) on which counsel  for  the               appellants relied is as follows : -               "If, when a candidate has to be excluded,  two               or  more candidates have each the same  number               of  votes,  and are lowest on  the  poll,  the               candidate  with the lowest number of votes  at               the  first  count at which the  candidates  in               question have an unequal number of votes shall               be  excluded  and, when the  number  of  votes               credited  to the candidates are equal  at  all               counts,  the Registrar shall determine by  lot               who shall be excluded". These  provisions were referred to and relied on by  counsel for   the  appellants  only  for  the  limited  purpose   of establishing  that  where two continuing candidates  at  the second count have equal number of votes in the second  count and  there is one vacancy to be filled up the candidate  who had  the lower number of votes at the first count  shall  be excluded. The High Court held that the words "two or more  candidates" and the other words "stand lowest on the poll" in rule 75(4) of  the  Conduct  of  Elections  Rules  indicated  that  the principle  embodied in that rule would apply only where  the contest   continued  between  three  and   more   continuing candidates and the question could not arise when the contest

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was  only  between two candidates left  over  as  continuing candidates.   The other reason given by the High  Court  was that  when there were two continuing candidates  they  could never  stand  lowest  on the poll and  the  two  candidates, according to the High Court, could stand lowest on the poll                             604 only if there were other remaining or continuing  candidates with  larger and better value of votes.  The  interpretation of  rule  75(4) by the High Court is  erroneous.   The  rule itself  speaks of two or more candidates and does not  speak of more than two candidates as the High Court construed  it. The words "stand lowest on the poll" occur along with two or more candidates who have been credited with the same  value. It  is because they have the .same value that both  of  them stand  lowest on the poll.  There fore, rule 75(4)  resolves that  tie by adopting the principle of exclusion of  one  of the  candidates with regard to the number of original  votes at the first count. The  High Court held that the principle in rule 75(4)  would not  apply  in  the present case with  only  two  continuing candidates for filling in one vacancy because there would be no possibility of transfer of the excluded candidate’s votes in favour of the other candidate.  The High Court  therefore relied on rule 81(3) of the Conduct of Elections Rules, 1961 to support the conclusion that the only system of  exclusion in  a  case of the present type would be  decision  by  lot. Rule 81(3) is as follows:-               "When at the end of any count only one vacancy               remains  unfilled  and  there  are  only   two               continuing candidates and each of them has the               same  value  of votes and no  surplus  remains               capable  of  transfer, the  returning  officer               shall  decide  by lot which of them  shall  be               excluded;  and  after  excluding  him  in  the               manner aforesaid, declare the other  candidate               to be elected". The  High  Court overlooked the rational  of  the  principle embodied  in rule 75(4) that in the case of  two  continuing candidates  each having the same value of votes to  fill  in one  vacancy  the  tie between the two would  be  solved  by having  regard to their original votes in the  first  count. There  would  be  no  occasion  for  transfer  of   excluded candidate’s votes in such a contingency.  Where two or  more candidates  continued  for  one  vacancy  and  each  of  the candidates would have the same value of votes at the end  of a count the tie between the two or more candidates having equality  of votes would be solved by excluding the one  who had  the  lowest  number of votes on  the  first  count  and thereafter  the excluded candidate’s second choice would  be transferred  to the continuing candidates until the  vacancy would be filled up by the principle of exclusion embodied in rule 75(4). The  principle in rule 81(3) is applicable where  more  than one  seat  is  to be filled and  only  one  vacancy  remains unfilled  with  only two continuing candidates and  each  of them has the same                             605 value of votes at that count.  In such a case the  exclusion of one of the candidates is decision by lot.  The reason for decision  by  lot in rule 81(3) is that the  two  continuing candidates  by reason of the transferred votes at  the  last count  have  the same value of votes.  The values  of  their votes in the previous counts have already been worked out by rule  80(7)  of the Conduct of Elections Rules,  1961  which embodied the principle of exclusion of a candidate where two

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or  more candidates have the same value of votes  by  having regard to the original votes of each candidate and excluding the  candidate for whom fewest original votes are  recorded. The  principle of Rule 81(3) does not apply to  the  present case  because that rule applies to counting of  votes  where More  than one seat is to be filled.  This is not  the  case here.  Rule 81(3) resolves tie on count of votes between the last two contesting candidates at the last count on transfer of votes from the previous count. It is an established principle in the system of proportional representation  by  means of a single transferable  vote  by ballot   that  where  for  one  vacancy  there  are   three, candidates  and one of them is excluded at the  first  count and  the  two candidates continued and in the  second  count both of them have equal number of votes then one of the  two candidates who had the lower number of votes than the  other continuing  candidate in the first count shall be  excluded. The present election was held on this principle.  Section 56 of  the  Act  only  speaks of  election  by  the  system  of proportional   representation   by   means   of   a   single transferable  vote.  It cannot be said in the  present  case that there is any statutory infringement of election by  the system  of proportional representation by means of a  single transferable  vote.   The two rival  contentions  were  that according  to the University authorities Principal Suru  was to be excluded at the second count because his votes on  the original  count  were lower than that of  Dr.  Apte  whereas according to the persons who impeached the election the only method  of exclusion was decision by lot.  It  appears  that there  is legislative sanction in support of the  contention on  behalf  of  the University  authorities  that  resolving equality  of  votes  by reference  to  first  preference  or original votes is a known recognised method in the system of proportional   representation   by   means   of   a   single transferable  vote.   Even if Statute No. 158 of  the  Poona University  does  not  in  terms  apply,  Statute  No.   158 furnishes  a  valuable guide regarding the  working  of  the system  of proportional representation mentioned in  section 56  of the Act and principles analogous to Statute  No.  158 are applicable and have been applied by the authorities  who conducted the election in the present case. Determination by lot in case of equality of votes in neither a principle of universal application nor is it a common  law principle. 606 It  is only permissible when there is a  specific  statutory provision  to  that effect.  In the absence of  a  statutory provision  the method of decision by lot is not resorted  to when  there  is  other rational method.   The  principle  of decision by lot is dependent on chance and accident  whereas the  principle of exclusion with reference to difference  of votes  on  the  original  count  is  based  on  reason   and legislative  principles.   In the present case  the  Statute imposed  a  duty of election by the system  of  proportional representation by means of a single transferable vote.   The principles of exclusion are not to be found in any statutory enactment in the present case.  On the one hand there is the support  of legislative measures embodying the principle  of exclusion by reference to original count.  The principle  of exclusion by lot on the other hand is adhered to only if the Statute  has  a  compelling force to that  effect.   In  the present  case  there  is no  such  statutory  compulsion  of deciding by lot in the eventuality which happened.  If there are  two  principles of exclusion and the  authority  has  a discretion in the mode of performing the duty, the authority

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cannot  be  commanded  to  a duty in  a  specific  way  (See Halsbury’s  Laws of England, Third Edition, Vol.  II,  Para. 160, page 85). The  election  was held by the  continuing  Vice-Chancellor. The Court of the University was master of its own procedure. It  adopted one of the principles of exclusion by  reference to votes on the original count.  In following that procedure it cannot be said that there is violation of statute.  It is not out of place to mention here that Principal Suru himself made  a petition to the Chancellor under section 60  of  the Act  asking him not to confirm the election.  Under  section 60 of the Act if any question arises as to whether a  person has been duly elected or appointed the matter may be  refer- red  on  a petition to the Chancellor who shall  decide  the question and his decision shall be final.  We are not basing our  decision  on  the  finality  of  the  decision  of  the Chancellor  in the present case but this is a feature  which is  not to be lost sight of by reason of the fact  that  the candidate  who lost at the election made representation  for redress of his grievances to the Chancellor. Counsel on behalf of the respondents repeated the contention which had been advanced in the High Court that Principals of 4  unaffiliated  Colleges  attended the  Court  meeting  and therefore  the  election was bad.  The  High  Court  rightly rejected that contention.  There is evidence to show that in the  month  of  June, 1969  the  Government  sanctioned  the recommendation  of the University for affiliation  of  these Colleges  to the University.  The affiliation was for  three years  from  1969.  In these orders it was stated  that  the final  Government  notification would be  issued  after  the University   submitted  a  report  to  the   Government   of fulfilling the conditions.  The respondents’ contention  was that the notification was published after the month of  May, 1970.  The High Court rightly held                             607 that  the sanction was granted by the  Government.   Delayed publication  of the notification would not detract from  the sanction  ,previously granted.  The third  contention  which had been urged in the High Court was not pressed here. For  these reasons, we accept the appeal and set  aside  the judgment  of the High Court.  Each party will pay  and  bear its own costs in this Court. V. P. S.                                 Appeal allowed. 608