@JUDGMENTTAG-ORDER
K. Sreedharan, J.@mdashPetitioner, an Advocate practising in the High Court, challenges the election of the third respondent as member of the Kerala Bar Council. Contention raised by the petitioner is that third respondent is a Full-Time salaried employee of the Kerala Law Academy, Law College, Thiruvananthapuram and so, he is not entitled to contest the election as a practising Advocate.
2. The averments made by the petitioner are to the following effect. Bar Council of Kerala framed rules for the conduct of elections, known as "The Bar Council of Kerala Elections Rules, 1970". These Rules do not provide anything regarding the disqualification for being chosen as a member of the State Bar Council. Rule 7 provides that no person shall be entitled to seek election unless his name is in the Electoral Roll. Nomination paper insists on a declaration by the candidate that,--
"I have not incurred any of the disqualifications for being a member of the Council as stated in the election rules."
Council issued notification for the election of 25 members. Elections were held on different dates in December, 1991. Third respondent is the Managing Trustee as well as the Manager of the Kerala Law Academy, Law College, Thiruvananthapuram. He was also functioning as Full-time Principal of that College from its very inception from the year 1966. He was drawing salary from that institution for working in the various posts referred to above. He had never informed the Bar Council of Kerala of the suspension of his practice for taking up salaried job of Principal and as Manager and Managing Trustee of the Kerala Law Academy, Law College. For the purpose of contesting the election to the Bar Council, he resigned from the post of Principal. But, he is still continuing in the post of Managing Trustee and Manager of the institution. He submitted his nomination for election as a member of the Kerala Bar Council. No objection was raised by any of the contesting candidates regarding the invalidity of the nomination. He deliberately suppressed the truth and gave a false declaration that he is an Advocate and he has standing of so many years, a declaration which is false and false to his knowledge. Though under Rule 7 third respondent may perhaps be entitled to seek election by virtue of the inclusion of his name in the electoral roll, his nomination should not have been accepted as he had given a patently false declaration. Third respondent is even now holding the post of a member of the Syndicate of the University of Kerala, which he acquired only by virtue of his status as Managing Trustee and Manager of the Kerala Law Academy, Law College, Thiruvananthapuram. He is also holding the post of Director of the Centre for Advanced Legal Studies and he is receiving various types of grants from the University Grants Commission, running to lakhs of rupees. After the election; the Bar Council of Kerala issued a notification containing the names of elected candidates. Third respondent is shown as No. 2 therein. Prior to the publication, the list of successful candidates was forwarded to the Advocate General for his certificate. Before such certification was made, petitioner submitted an application praying for invalidating the election of the third respondent. Advocate General dismissed that petition, as per Exhibit P4 order. Third respondent''s name has been included in the list of successful candidates, disregarding the provisions of law and by ignoring the total disability suffered by him even to contest the election.
3. On behalf of the second respondent, Kerala Bar Council, a counter-affidavit has been sworn to by its secretary. According to this counter-affidavit, third respondent voluntarily suspended his practice with effect from 13-6-1971, on his assuming the office of Principal of the Kerala Law Academy, Law College. On relinquishment of the post of Principal, he applied to the Council for resumption of practice. The Committee considered the request and allowed him to resume practice, by order dated 12-12-1989. A preliminary Electoral Roll, containing the names of all Advocates, whose names are required to be included under the Rules, was put up on the notice board of the Council on 1-6-1991. Copies of relevant portions of that preliminary Roll were sent to all Bar Associations. Objection regarding the inclusion of names of persons, who are not required to be included on account of disqualification mentioned in Rule 2 of Chapter I, Part III of Bar Council of India Rules, etc. was called for. The objections were to be filed on or before 14-8-1991. The period was subsequently extended up to and inclusive of 29-8-1991. Third respondent''s name was included in the preliminary Electoral Roll. No objection was raised against the said inclusion. The Roll was finalised and published on 29-9-1991. Third respondent''s name was included in the Thiruvananthapuram Centre. Election was conducted between 30-11-1991 and 17-12-1991. Counting commenced on 19-12-1991 and was completed on 26-12-1991. List of candidates elected to the Bar Council was prepared and submitted to the Advocate General, as per Rule 33 of the Election Rules. Petitioner filed application before him to decide the legality and regularity of the election. That application was dismissed and the list was certified. Third respondent filed his nomination on 31-10-1991. It was scrutinised on 2-11-1991, as per the election notification, along with other nomination papers. None of the contesting candidates raised any objection against the acceptance of third respondent''s nomination paper. Nor did any voter raise any objection to the acceptance of the nomination paper. Any voter could object to the acceptance of the nomination at the time of the scrutiny on the ground of disqualification mentioned in Rule 2, Chapter I, Part III of the Bar Council of India Rules. So also, petitioner had sufficient opportunity to object to the inclusion of third respondent''s name in the electoral roll when objections were invited on preliminary Electoral Roll. He did not choose to raise any objection in finalising the Electoral Roll, showing the third respondent as a practising Advocate. The election of the third respondent is not open to challenge for all or any of the reasons mentioned in, the Original Petition.
4. Third respondent in his counter-affidavit averred as follows. -- Petitioner has wrongly described him as Managing Trustee and Manager of the Kerala Law Academy. He was not drawing salary as Managing Trustee or Manager as alleged. Kerala Law Academy is a society registered under Act XII of 1955. Governing Council of the Society is elected for four years by the General Body. He was elected Secretary of the Law Academy from the very formation of the Society. As Secretary, he has not drawn any salary. He was functioning in an honorary capacity on a Part-time basis. When he took up the post of Principal in 1971, second respondent was informed of that and prayed for suspending the practice as per application dated 13-6-1971. He continued in the post of Principal till 1989. So, in September, 1989, he applied to the second respondent for permission to resume practice. The Enrolment Committee gave permission to resume practice as per order dated 12-12-1989. Thereafter, he is practising in the Courts at Thiruvanthapuram. He was elected to the Senate of the Kerala University from among Managers of private colleges. The management of the Kerala Law Academy, Law College vests in the Kerala Law Academy. As the elected Secretary of Kerala Law Academy, he represent the management. In that capacity, he was elected to the Senate. From the Senate, he was elected to the Syndicate from among the non-teaching members of the Senate. He is not drawing any remuneration as Secretary of the Society. He is functioning as Honorary Secretary, without receiving any salary. No Rule of the Bar Council prohibits a person from functioning as Honorary Secretary of a Society, registered under Act XII of 1955. The Centre for Advanced Legal Studies and Research is an autonomous body. The administrative and executive functions of the Centre vests with the executive committee. The executive committee consists of three nominees of the Government, Principals of Government Law College, Thiruvananthapuram and Kerala Law Academy, Law College and Secretary and President of Kerala Law Academy. He is only an honorary Director of the above body. He is a member of the Executive Committee and Honorary Director by virtue of his position as Secretary of the Kerala Law Academy. As Director, he is not receiving any salary. He filed his nomination on 31-10-1991. It was scrutinised on 2-11-1991. None objected to the nomination. Since his name is in the Electoral Roll, petitioner cannot challenge his candidature, or election. In these circumstances, the Original Petition is devoid of any substance.
5. Part III of Chapter I of the Bar Council of India Rules enunciates the principles governing the preparation of Electoral Roll. The name of an Advocate appearing in the State Roll shall not be on the Electoral Roll, if his name has been removed or he has been suspended from service or he is an undischarged insolvent or he has been found guilty of an election offence or he has been convicted by a competent court for an offence involving moral turpitude. So also, the name of an Advocate, who is in full-time service or is in such part-time business or other vocation not permitted in the case of practising Advocate as per the rules or has intimated voluntary suspension of practice, is not to be included in the Electoral Roll. Subject to these restrictions, Electoral Roll of Advocates has to be prepared in conformity with the provisions contained in Rules 3 to 7 of Chapter I of Part III of the Bar Council of India Rules. Rule 13 of Bar Council of Kerala Election Rules mandates that the Electoral Rolls consisting the list of voters shall be prepared in accordance with the rules of the Bar Council of India. Preparation of the Electoral Roll is the preliminary step for the conduct of election to the Bar Council. Second respondent published a preliminary Electoral Roll on 1-6-199.1. By notice dated 3-7-1991, objection regarding the inclusion of names of persons in the Electoral Roll was called for. The last date for filing objection was fixed as 14-8-1991. That time was extended up to and inclusive of 29-8-1991. Third respondent''s name was included in the preliminary Electoral Roll. No one raised any objection. Thereupon, the Electoral Roll was finalised and the final Roll was published on 29-9-1991. As per the Rules governing the election, every Advocate whose name is in the Electoral Roll of the State Council, shall be entitled to vote in the election. As per Rule 7 of Chapter II of the Bar Council of Kerala Election Rules, no person shall be entitled to seek election unless his name is in the Electoral Roll. It means that a person, whose name is in the Electoral Roll, is entitled to seek election. Third respondent is a person thus entitled to seek election, because his name is in the Electoral Roll.
6. Rule 2 of Chapter I, Part III of the Bar Council of India Rules deals with the preparation of Electoral Roll. For the purpose of this case, Clause (f) of that Rule alone is to be looked into, since petitioner has no case that the third respondent is to be disqualified from being a member in the Electoral Roll on any other ground. Clause (f) of Rule 2, Chapter I, Part III of the Bar Council of India Rules states that the name of an Advocate appearing in the State Roll shall not be on the Electoral Roll, if 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 the Council. This shows that if any of the provisions in the Rules made by the State Council or the Bar Council of India does not permit a practising advocate to be in full-time service or in such part-time business or other vocation then an Advocate engaged in such full-time service, part-time service or vocation, should not be included in the Electoral Roll. Section 49 of the Advocates Act gives general power to the Bar Council of India to make Rules in relation to the various matters specified therein. Clause (c) of Sub-section (1) of that section authorises the Bar Council of India to frame rules prescribing the standards of professional conduct and etiquette to be observed by Advocates. Invoking that power, the Bar Council of India framed Rules contained in Chapter II of the Bar Council of India Rules. Rules 48 and 49 of the Rules have been relied on by the learned counsel representing the petitioner in support of his contention that third respondent is not entitled to be enlisted as a member in the Electoral Roll. For a proper understanding of these provisions, I read the same.--
"48. An Advocate may be Director or Chairman of the Board of Directors of a company with or without any ordinary sitting fee, provided none of his duties are of an executive character. An Advocate shall not be a Managing Director or a Secretary of any company.
49. An Advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practise and shall, on taking up any such employment intimate the fact to the Bar Council on whose roll his name appears, and shall thereupon cease to practise as an advocate so long as he continues in such employment.
Nothing in this rule shall apply to a Law Officer of the Central Government or the Government of a State or of any Public Corporation or body constituted by statute who is entitled to be enrolled under the rules of his State Bar Council made u/s 28(2)(d) read with Section 24(1)(e) of the Act despite his being a full time salaried employee.
Law Officer for the purpose of this Rule means a person who is so designated by the terms of his appointment and who, by the said terms, is required to act and/or plead in Courts on behalf of his employee".
Learned counsel would contend that the above provisions debars an Advocate from being a Director of any Body. So also, he cannot be a full-time employee of any concern. In the instant case, according to counsel, third respondent, even on his own showing, is the Director of the Executive Committee of the Centre for Advanced Legal Studies and Research. He is the Manager of the Kerala Law Academy, Law College. As Manager, he contested the election to the Senate of the Kerala University from the constituency of Managers of private Colleges. After having won the election, he got elected as Member of the Syndicate from among the non-teaching members of the Senate. These go to show that he is, it is argued, in the full-time service of another and thereby disentitled himself to be included in the Electoral Roll.
7. The third respondent has sworn to the fact that the Kerala Law Academy is a Society registered under Act XII of 1955. He was elected Secretary of that Academy. According to him, he is functioning as Secretary in an honorary capacity. After arguments were completed on 28-2-92, the case was taken up for judgment. Thereafter, petitioner filed a reply affidavit. I am not placing any reliance on it because the averments therein are not substantiated by acceptable evidence. On the materials now available, 3rd respondent cannot be considered to be a full-time salaried employee. The management of the Law College vests in the Society. The society functions through its secretary. As the honorary Secretary of the Society, he discharges the duties of Manager of the College. There is nothing on record to show that the post of Manager is a full-time one. There is no material to support the view that third respondent is compelled to utilise full time for discharging the duties as Manager of Law Academy, Law College. In his capacity as Manager, he has been elected to the Senate and from there, to the Syndicate. Even petitioner has no case that the third respondent holds a full-time post as Member of the Syndicate of the Kerala University.
8. From the time the Kerala Law Academy came into existence, third respondent was elected as its Secretary. The post of Secretary of the Society is an honorary one. When he took up the duty as Principal of the Law College run by the Society, he informed the Bar Council that he has suspended his practice. Pursuant to that information, the Bar Council suspended him from practice. He ceased to be the Principal of the Law College in 1989, Thereafter, he applied for permission to resume the practice. The Enrolment Committee of the second respondent, by order dated 12-12-1989, permitted him to resume practice. This shows that the third respondent while holding the post of Principal, a full-time post, suspended his practice and that fact was recorded by the Bar Council. His action in this regard was in conformity with the Rules,
9. Rule 48 of the Bar Council of India Rules, quoted above, prohibits an Advocate from being a Managing Director or Secretary of a company. ''Company'' contemplated therein can only be a company registered under the Companies Act. As per the provisions of the Companies Act, the Managing Director and the Secretary of a Company are primarily responsible for the affairs of the Company. An Advocate can be Director or Chairman of the Board of Directors of the Company. The taboo is only in holding the post of Director or Secretary of the Company. Third respondent is not in any way connected with any Company as understood in the legal parlance. He is an honorary Director of the Centre for Advanced Legal Studies and Research. According to me, his position as Honorary Director will not in any way militate against his being an Advocate. In these circumstances, I have no hesitation in holding that the third respondent is not disqualified to be a member in the Electoral Roll of the Bar Council. Being a person included in the Electoral Roll, he was entitled to contest the election.
10. As the first step towards the conduct of the election, second respondent issued a preliminary Electoral Roll Containing the names of all Advocates, whose names are required to be included under the Rules. It was published on 1-6-1991. Objections were called for. The last date fixed for receipt of objection to the preliminary Electoral Roll was extended to 29-8-1991. If the petitioner had any objection to the inclusion of the name of the third respondent in the Electoral Roll, he should have objected to that at that stage. He did not move his little finger to have the name of the third respondent removed from the Roll. As a person whose name is included in the Electoral Roll, third respondent was entitled to seek election. He filed his nomination. None objected to the nomination either. In the election, he came out successful. That election is now sought to be unsettled by the petitioner. As per the Rules, an election can be set aside by the Election Tribunal on the grounds mentioned in Rule 34 of the Bar Council of Kerala Election Rules. That Rule inter alia states that no petition to set aside an election shall lie on the ground that the name of any voter was wrongly included in the Electoral Roll. This provision, according to me, is a salutary one. Mistakes or errors in the Electoral Roll, which are not of substantial character, cannot be the basis for upsetting an election. Electoral Rolls are prepared as a preliminary step to the election process. Before finalising it, objections are called for. The objections are considered before the list is finalised. If the list so finalised is not having error or irregularity of material nature, Courts are not to interfere with it for setting aside the election. The result of the election should not be allowed to be challenged on the ground that a voter has been wrongly included or another has been erroneously omitted to be enlisted. The Courts can interfere with the election only if the very foundation of the election, namely, the Electoral Roll, is illegal, in the sense that it has been prepared in violation of the provisions of the Rules disentitling a large number of members from exercising franchise or by including a substantial number of ineligible members. If the Electoral Roll as a whole is illegal and defective, election held on its basis cannot be allowed to stand. This means that any kind of defect in the Roll is not sufficient to upset the election. However, when the challenge is against the election of a particular candidate, because of certain alleged irregularity in the inclusion of his name in the Electoral Roll, the Court must refrain from upsetting the election. Mistake, if any, in the preparation of the Electoral Roll in so far as it relates to the wrong inclusion of one person or omission to include another alone cannot be the basis for setting aside the election.
11. Petitioner has approached this Court without ascertaining the true facts. If he had made enquiries with the second respondent, he would have come to know of the actual state of affairs. Petitioner had not cared to make any such enquiry with the second respondent before filing this petition. So, according to me, petitioner acted without due care and caution in moving this petition by making wild allegations against the third respondent.
12. In view of what has been stated above, I find no substance in this original Petition. It is accordingly dismissed. However, I direct the parties to suffer their respective costs.
