ORDER4 S.S. Sodhi, C.J.
1. The controversy here is with regard to the elections to the Bar Council of Uttar Pradesh and it arises in the context of the appointment of a candidate as Judge of the High Court while the process of counting was going on.
2. To give the relevant factual back ground, after the programme for the elections to the Bar Council of Uttar Pradesh had been announced, nominations invited and finalis ed, polling for the elections took place from October 3 to October 8, 1993. In the first instance, Justice B. D. Agarwal, a retired Judge of this Court, was appointed Returning Officer for this poll. Counting of votes was commenced by him but before it could be completed he fell ill and resigned on January 1, 1994. By that time some candidates had already been eliminated.
3. On January 9, 1994, the Bar Council of Uttar Pradesh appointed Justice M. P. Mehrotra, another retired Judge of this Court as the Returning Officer for this election. February 1, 1994, was thereafter fixed for restraining the counting of votes. As it happened, it was on that very day, that is, February 1, 1994, that one of the candidates Sri Raja Ram Yadav was appointed Judge of the High Court. The point in issue that now arises is whether on account of his appointment as Judge of the High Court he is to be treated as an eliminated candidate and the votes casttin his favour consequently to be counted in accordance with the Rules for the remaining candidates or he continues as a "continuing candidate".
4. A reference to the relevant Rules governing the matter leave no manner of doubt that the crucial date for determining eligibility for election to the Bar Council, is that of the filing and acceptance of nomination papers. There is in this behalf of Rule 8(iv) of the Bar Council of U. P. Election Rules, 1992 (hereinafter referred to as "the Election Rules") which provides:--
"(iv) A candidate shall not be eligible for nomination, if he suffers from any disqualification as laid down in the rules framed by Bar Council of India in part III Chapter I as specified in Appendix 1 to these rules."
Next there is Rule 28 of the Election Rules, which reads as under:--
"28. Exclusion of candidates:-- The Returning Officer conducting the elections shall exclude from the poll candidates as specified in Rule 3(b)(i) of the rules of the Bar Council of India contained in Chapter II, Part III as specified in Appendix II to those rules."
5. Before proceeding further, it deserves note that there is no Appendix II to the Election Rules. In the Bar Council of U. P. Election Rules of 1968 there was an Appendix II, which reproduced the then Chapter II of Part II of the Bar Council of India Rules. It appears that the reference to Appendix II in Rule 28 of the Election Rules was to the said Appendix of the Bar Council of U. P. Election Rules, 1968. It was in that Appendix II that there was a Rule 2a and Rule 3. Rule 3(b)(1) was titled "exclusion of candidates lowest on poll or who have been on rolls for less than 10 years." In the present Bar Council of India Rules the said Rule 2a of Appendix II is now Rule 3 of Chapter II, Part III, while Rule 3 of Appendix II of the Bar Council of U. P. Rules, 1968 is now Rule 4. In other words, the old Rule 3(b)(1) is now Rule 4(b)(1). There is thus a clear printing error in Rule 28 of the Election Rules. Be that as it may, the position still remains that the exclusion of candidates provided for is of the lowest in the poll or who has been on the rolls for less than 10 years.
6. Turning now to the Bar Council of India Rules, what is relevant here is Rule 2(f) of Chapter I of Part III thereof, which reads:--
"2. The name of an advocate appearing in the State Roll shall not be on the Electoral Roll, if on information furnished by the advocate concerned in terms of Rule 4 information received or obtained by the State Bar Council concerned that;
.....
(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 the Council."
7. Next, there is Rule 9 thereof regarding disqualification for being a candidate in the election: This too provides:--
"9. The nomination of any person who at the date of scrutiny thereof is subject to any of the disqualifications referred to in Rule 2, shall be rejected."
8. Looking at the issue from another angle, it will again be seen that the relevant Rules do not contemplate a candidate ceasing to be a continuing candidate except as provided in Rule 3(g) of the Election Rules. This Rule defines "continuing candidate" to be "any candidate not elected and not excluded from the poll at any given time."
9. There is then the provision pertaining to deposit of Rs. 2.500/- by each candidate for the election. This is contained in Rule 8(iii) of the Election Rules, which is in these terms:--
"(iii) The amount of deposit shall be credited to the fund of the Bar Council which is not refundable except in case of-
(a) withdrawal of candidates within the prescribed time or
(b) if the nomination of a candidate is rejected or
(c) if a candidate dies before the commencement of the poll.
Provided further that the deposit of every candidate standing for election shall stand forfeited in case the candidate is unable to secure at least one half of the quota fixed for election and is not elected. Whereas the deposit of remaining candidates will be refundable to them."
A plain reading of this Rule would show that a deposit can either be refunded or forfeited and it mentions the circumstances under which either may be done. What is pertinent to note is that it does not even envisage the situation of a candidate becoming disqualified once the election process has commenced. In other words it does not say what would happen to the deposit if during the counting a candidate were to be held to be disqualified in terms of Rule 2(f) of Chapter I of Part HI of the Bar Council of India Rules, namely whether it would be refunded or forfeited.
10. Similarly in Rules 24 and 27 of the Election Rules, which provide for the method of counting and the transfer of surplus votes, there is no provision for the exclusion of candidate on the ground of incligibility occurring during the counting of votes.
11. It must also be observed here that the Returning Officer possesses no inherent power to take note of an event, like a candidate ceasing to be eligible for election, after the acceptance of his nomination papers and to hold him to be no longer a continuing candidate on that account. The role and function of a Returning Officer as per his definition in Rule 3(p) of the Election Rules being merely to conduct the election.
12. Such thus being the position, emerging from a combined reading of the Rules relevant to the point in issue, there can be no escape from the conclusion that Sri Raja Ram Yadav, regardless of his appointment as Judge of the High Court, could not be treated to be an eliminated candidate and he, therefore, continued as a "continuing candidate". This being so, no exception can be taken to the impugned order of the Returning Officer of February 5, 1994, rejecting the prayer of the petitioners to exclude Sri Raja Rani Yadav from the election or to direct the holding of any fresh elections.
13. Both the writ petitions are consequently hereby dismissed. In the circumstances, however, there shall be no order as to costs.
14. Petitions dismissed.