P. Shanmugam, J. 1. These Original Petitions relate to election to the two vacancies that arose in the Standing Committee of the Poolhadi Grama Panchayat. There were five members in the Standing Committee out of which two members submitted their resignations on 9-11-1997 and 10-11-1997. In order to fill up the vacancy, the President issued a notice on 11-11-1997 for convening a meeting to hold the election to the post of two vacancies on 20-11-1997. There are 13 members in the Panchayath. All of them were present on the election day, viz. on 20-11-1997. In that meeting the 1st petitioner, Mr. K. K. Viswanalhan Master and 4th respondent, Smt. Jancy Devassia in O.P. 21043 of 1997 were proposed and seconded. There were no other names suggested or nominated. Instead of declaring the two persons as elected as per Rule 6(1) of the Rules relating to Election of Members of the Standing Committee and Chairman, the President, who was functioning as Returning Officer dispersed the meeting without declaring the election, on the ground that some of the members have raised objection to the effect that the election to the posts fell vacant on different dates, and, therefore, the election cannot be conducted on the same day. The objections of the petitioners were recorded in the minutes. Under the circumstances the above Original Petition is filed seeking for a direction to declare them elected or in the alternative to hold the re-election on the same day for the vacancies.
2. Petitioners have prayed for quashing of subsequent notices called for at one hour intervals on the ground that the election has to be conducted at the same time.
3. Counter-affidavits have been filed by all the respondents. I heard the counsel and the respondents. Two important questions that arise for consideration in these Original Petitions are: (i) whether the election to the Standing Committee should be through proportional representation by a single transferable vote or it should be by simple majority; and (ii) whether there was any nomination for the election on 20-11-1997.
4. The case of the 1st respondent is that as per Rule 5 of the Rule relating to Election of Members of the Standing Committee, the candidate intending to contest should submit his nomination at the beginning of the meeting in writing to the President. No candidate has given in writing to the President informing his intention to contest as a candidate and, therefore, there was no valid nomination in the eye of law. The case of the petitioners is that the candidates, viz. K. K. Viswanathan Master and Smt. Jancy Devassia submitted their written nominations and they were proposed and seconded validly. However, the election was adjourned not on the ground that no nomination was made. There, at this stage, it is academic to go into the question whether there was a nomination or not since the election was not conducted. Besides, the respondents have taken the stand that election has to be conducted separately with intervals for each vacancy and, therefore, this point is the primary concern.
5. Section 162(2) of the Kerala Panchayath Raj Act, 1994, hereinafter referred to as 'the Act'. states as follows :
"Every Standing Committee shall consist of members elected by the elected members of the Panchayat from among themselves through proportional representation by a single transferable vote."
Therefore, the legislature has consciously decided to give weightage to different groups in a Panchayath and the legislature did not go by a single majority for the election to the members. Coming to the Rules, Rule 6(1) states that if the number of candidates and the vacancy of members are equal all such candidates shall be declared elected by the President. Sub-rule (3) of Rule 6 which is important is extracted below :
"If the number of candidates is more than the number of vacancies election shall be conducted among the members present under proportional representation by single transferable voles."
Sub-rule (b) of Rule 7A which is also relevant is as follows :
"If the vacancy is two or more, the person who secured the lowest number of votes shall be eliminated first and person who secured highest number of votes shall be declared elected."
So, a combined reading of Section 162(2) of the Act and Rules 6(3) and 7A(b) of the Rules, it is clear that election shall be by proportional representation by single transferable vote. The person securing the least votes shall he eliminated. The election by proportional representation by single transferable vote means that the electorate is given the choice of preference to all the contestants.
6. The case of the respondents is that Sub-rule (2)of Rule 7 states that each member while voting shall mark 'X' against the name of the person to whom he intends to vole. Sub-rule (6) of Rule 7 also states that if the ballot paper contains more than one 'X' mark or signature etc. the vote shall be rejected, The stand of the 1st respondent in the counter is as follows :
"It is submitted that a reading of the Section and Rules to avoid a conflict between the Act and Rules only possible method is election to the Standing Committee that every member should be elected separately. That is to say if there are two members to be elected two independent elections should be conducted, it can be conducted in the same meeting. If there are two seats, to fill up and there is proportional system of voting in terms of the Act and in terms of the Rules only one vote can be exercised. It is submitted that the members are effectively prevented from exercising their rightful choice to elect a candidate. It is submitted that this inconsistency should be avoided."
I am unable to agree with the stand of the learned counsel for the 1st respondent who reiterated this position. A reading of Section 162(2) and other provisions set out above gives no room for doubt that election to the vacancy should be held not separately but at the same time and it must be by proportional representation by single transferable vote. If election is to be held separately it will be defeating the object of the proportional representation, whenever there is a vacancy. The vacancies as on the date of the election admittedly in this case were two and, therefore, election had been convened in this case for two vacancies and therefore it should be only by proportional representation and not by single majority.
7. It is well-settled that Rules are framed only by virtue of the rule making power to give effect to the provisions of the Act. The Rules are procedural and are only to subserve the substantive provisions of the Act. If a Rule is inconsistent with the Act, it has to give way to the Section of the Act. Therefore, Rules 7(2) and (6) to the extent they are inconsistent with Section 162(2) have to be read to give effect to Section 162(2) of the Act and other rules relating to the election process of the Standing Committee. Rule7(2) and Rule 7A(b) must be read in such a way that the members must be permitted to make their choice or preference or ranking of the candidates. To that extent these two clauses of the Rule have to be read in conformity with the provisions of the Act and the other Rules governing the election. In that view of the matter, the reliefs sought for by the petitioners have to be allowed. There will be a direction to the respondents to hold the one election al the same time for the vacancies that are in existence. They are further directed to conduct the election by the method of proportional representation by a single transferable vote. The Government is directed to make suitable amendments to the rules in consonance with the Section.
8. A copy of this judgment will be forwarded to the Stale of Kerala.