Rajasthan High Court - Jaipur
Gunjan Kumar Kumawat S/O Sh. Gyan Chand ... vs The Bar Council Of Rajasthan ... on 24 August, 2023
Bench: Augustine George Masih, Sameer Jain
[2023:RJ-JP:25993-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Special Appeal Writ No. 665/2023
1. Gunjan Kumar Kumawat S/o Sh. Gyan Chand Kumawat,
Aged About 40 Years, R/o P.no. 6, Ram Sadan, Khandela
House, Behind Amber Tower, Sansar Chandra Road, Jaipur
2. Balram Jakhar S/o Rajendra Singh, Aged About 43 Years,
R/o A-223, Dr. Rajendra Prasad Nagar, Nirman Nagar,
Jaipur
3. Narendra Singh Shekhawat S/o Sh. Mahendra Singh
Shekhawat, Aged About 44 Years, R/o A-520, Tara Nagar-
A, Jhotwara, Jaipur
4. Bansi Dhar Sharma S/o Sh. Hanuman Prasad Sharma,
Aged About 47 Years, R/o C-27, Vikas Nagar, Ajmer Road,
Jaipur
----Appellants
Versus
1. The Bar Council Of Rajasthan, Through Its Secretary,
Rajasthan High Court Building, Jodhpur
2. The Bar Association Jaipur, Session Court Campus,
Banipark, Jaipur Through Election Tribunal, Member Sh.
Yogendra Singh Tanwar
3. The Bar Association Jaipur, Session Court Campus,
Banipark, Jaipur Through Election Tribunal, Member Sh.
Dilip Singh Sihag
4. The Bar Association Jaipur, Session Court Campus,
Banipark, Jaipur Through Election Tribunal, Member Sh.
Virendra Kumar Yadav
----Respondents
For Appellant(s) : Dr. Abhinav Sharma with Ms. Puja Sharma Mr. Prahlad Sharma Mr. Balram Jakhar, Mr. Gunjan Kumawat, Mr. Banshi Dhar Sharma & Mr. Narendra Singh Shekhawat, petitioners present in person.
For Respondent(s) : Mr. Jag Mohan Saxena
Mr. Madhav Mitra, Senior Advocate
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[2023:RJ-JP:25993-DB] (2 of 8) [SAW-665/2023]
Mr. Prateek Kasliwal with
Ms. Gauri Jasana
Ms. Gunjan Agrawal
Mr. Kapil Prakash Mathur
HON'BLE THE CHIEF JUSTICE AUGUSTINE GEORGE MASIH HON'BLE MR. JUSTICE SAMEER JAIN Order 24/08/2023 D.B. Civil Misc. Application Nos.1/2023 and 2/2023
1. Instant applications have been filed under Order 41 Rule 27 CPC for taking certain documents on record.
2. For the reasons mentioned in the applications, the same are allowed. The documents filed along with the applications are taken on record.
D.B. Civil Special Appeal (Writ) No.665/2023:
1. This appeal has been preferred by the appellants-petitioners impugning the order dated 03.08.2023, passed by the learned Single Judge, disposing of the writ petition preferred by the appellants-petitioners assailing the clarification with regard to the guidelines and norms, especially paragraph 6(b) thereof explaining the words 'preceding year', dated 19.07.2023 by observing that the clarification be sought from the Division Bench by filing an appropriate application in D.B. Civil Writ Petition No.13020/2015-
The Rajasthan High Court Advocates Association, Jodhpur Vs. The Bar Council of Rajasthan & Ors., decided on 12.09.2017 regarding the said guideline.
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2. Briefly, the facts are that the Bar Council of Rajasthan enacted 'The Bar Associations of Rajasthan Rules, 2013' with an intention to promote the growth of Bar Associations for the purpose of effective implementation of welfare schemes and to improve the election process.
The jurisdiction of the Bar Council of Rajasthan to enact such rules being ultra vires the Advocates Act, 1961 and the Rules framed thereunder, came to be challenged by filing a writ petition, which was allowed by the Division Bench of this Court vide order dated 06.02.2017 holding that the Bar Council lacks competence to frame such rules. While declaring the rules ultra vires, the Court proceeded to consider whether appropriate directions could be issued to extend certain guidelines and norms while exercising powers under Article 226 of the Constitution of India in tune with the judgment of the Hon'ble Supreme Court in the case of Supreme Court Bar Association Vs. B.D. Kaushik, reported in (2011) 13 SCC 774.
All the Bar Associations consented to the same. It was finally thought appropriate that a Committee be constituted to advise and assist the Court in suggesting necessary norms. On constitution of the Committee consisting of 11 members, which included the Advocate General, former members and Chairman of the Bar Council of Rajasthan and Presidents of the Bar Associations, the norms/guidelines, so suggested, were considered by the Division Bench of this Court and finally prescribed the mandatory norms to be adhered to by each and every Bar Association of the State of Rajasthan. The suggestions primarily (Downloaded on 11/11/2023 at 07:31:19 PM) [2023:RJ-JP:25993-DB] (4 of 8) [SAW-665/2023] revolved around the principle of 'One Bar One Vote' along with suggestions relating to the standing in the Bar for a specific period to contest the election for the post of President/Vice President/General Secretary of the Bar Associations of Advocates practicing at the High Court and District Court level.
3. The writ petitions, as preferred, were disposed of making certain modifications other than the suggestions which were put- forth by the Committee, as constituted. The guidelines, as mandated, especially Serial No.7 thereof while dealing with 'One Bar One Vote' principle, laid down that a member of Bar Association who exercises his/her right to vote in any year, in any other Bar Association, shall not be eligible to contest for any post of the Bar Association or to cast his/her vote at the election.
4. The norms/guidelines, as suggested, having not been accepted in toto by the Court while making certain changes therein were laid to a challenge before the Hon'ble Supreme Court, which came up for consideration on 12.05.2022. The Hon'ble Supreme Court on considering the submissions made by the Counsel for the parties in Rajasthan High Court Advocates Association, Jodhpur Vs. The Bar Council of Rajashan & Ors., Civil Appeal No.9006-9007/2018, proceeded to accept some suggestions which were originally made by the Committee and modified the others.
The final effective regulations/guidelines, as mandated by the Division Bench and accepted/modified by the Hon'ble Supreme Court, would read as follows:-
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[2023:RJ-JP:25993-DB] (5 of 8) [SAW-665/2023] "1. Notwithstanding anything contained in the by-laws of the Bar Association concerned, election of every Bar Association shall be conducted by an Election Committee of three members, to be nominated by Executive Committee of the Association. The members of the Election Committee shall not participate in the election, except casting their votes. The Election Committee shall exercise full and absolute control over the election and its decision shall be final and binding. The committee is to be nominated by the existing Executive Committee of the Bar Association.
This provision shall not be applicable for first election to elect the first Executive Committee of any Bar Association.
2. Notwithstanding anything contained in the by-laws of the Bar Association, the office bearers of the Bar Association shall be elected by secret ballet at the annual election. No office bearer shall be eligible to hold any office for more than two consecutive terms. [(CLARIFICATION:- Such a restriction of not holding more than two consecutive terms would apply to a scenario where the election has to be held every year while in case the term has to be for a two years' period, then the candidate should not repeat for the next term, i.e., the break will come after the first term itself]
3. Notwithstanding anything contained in the by- laws of the Bar Association, no member of the Bar Association annexed with the Rajasthan High Court or any District Court in the State of Rajasthan, shall be eligible to contest election for the post of President, Vice President and General Secretary of the Bar Association unless he/she have five years standing at the Bar.]
4. Every Bar Association shall issue an identity card to its members. The identity card is required to be signed by President of the Bar Association and that shall contain photograph of the advocate concerned with all necessary details about him including his/her enrollment number with Bar Council.
5. Notwithstanding anything contained in the by-laws of the Bar Association, no member of any Bar Association shall be eligible to cast his/her vote at the election unless -
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(a) he/she is in possession of identity card issued by the Bar Association at the time of casting his/her vote and shows it on demand, if so required; and
(b) he/she has paid his/her subscription/membership fee/fee on or before a month prior from the date of election being held and is not in arrears on any account.
6. Notwithstanding anything contained in the by-laws of the Bar Association, a member of Bar Association, who is in arrears of his/her subscription/membership fee/fee or any dues to the Bar Association, will not be eligible, to propose or second the candidature of any member contesting election to any of the posts. Such member shall not be entitled to contest the election.
7. Notwithstanding anything contained in the by-laws of the Bar Association, a member of Bar Association, who exercises his/her right to vote in any year, in any other Bar Association, shall not be eligible to contest for any post of the Bar Association or to cast his/her vote at the election. Every member, at least two days before casting his/her vote shall give a declaration that he/she is not voting in any other election of any other Bar Association. Provided, however, that if such a declaration is found to be false, it shall entail automatic suspension of the member giving such false declaration from membership of the Association for a period of three years.
8. Notwithstanding anything contained in the by-laws of the Bar Association, no person, who has been convicted for any offence involving moral turpitude by a competent court including the recorded finding of committing contempt under the Contempt of Courts Act, 1971, whether sentenced to imprisonment or not, shall be eligible to be elected, co-opted or nominated or to continue as office bearer/member of the executive committee of a Bar Association for a period of five years from the date of such conviction.
The directions given above are mandatory and every Bar Association in the State of Rajasthan is required to adhere the same. In the event of violation of any of the mandatory norm/condition aforesaid, the Association concerned shall loss its recognition and that Bar Association shall not be treated as an Association annexed with the court concerned." (Downloaded on 11/11/2023 at 07:31:19 PM) [2023:RJ-JP:25993-DB] (7 of 8) [SAW-665/2023]
5. The writ petition was preferred by the appellants-petitioners owing to a clarification sought by the Election Committee of the Bar Association, Jaipur, Sessions Court Campus, from the Bar Council of Rajasthan on the word 'any year' in clause-7 of the above-referred to guidelines. As stated above, the learned Single Judge disposed of the writ petition by giving liberty to the Counsel for the parties to approach the Division Bench, which had passed the initial order i.e. in Rajasthan High Court Advocates Association, Jodhpur's case (supra) for seeking clarification. This order has been challenged by way of the present appeal.
6. During the course of arguments, in unequivocal conjunction with the counsel who were party to the writ petition, the members of the Bar and various Bar Associations participated in the process of finding an amicable and harmonious solution to the issue at hand. Resultantly, in one voice, the Counsel for the parties have come-forth and duly attested to the suggestion so proposed, that elections to all the Bar Associations in the State of Rajasthan be held on a single day. In furtherance to the said resolution, a suggestion has been put forth by the office bearers of the Bar Council of Rajasthan that the elections be held on the Second Friday of the month of December, depending upon and/or subject to the provisions, as contained in the Constitution of the respective Bar Associations.
7. It is clarified that in an eventuality, wherein the term of the office bearers is one year, the elections should be held every year and as a natural consequence, for office bearers holding a term of two years, the elections be held every two years. The genesis of (Downloaded on 11/11/2023 at 07:31:19 PM) [2023:RJ-JP:25993-DB] (8 of 8) [SAW-665/2023] the solution and/or resolution as arrived at herein-above, stemmed from the prolonged dismay alleging that the members of the Bar Associations indulge in voting in more than one Bar Association in different Bar Associations across the State, which is contrary to the mandate of the Division Bench, as has been upheld by the Hon'ble Supreme Court on the principle of 'One Bar One Vote'. The adoption of the solution and/or resolution noted above, would consequentially drive out the issue regarding the system of duplicate and multiple voting, where an Advocate is a member of more than one Bar Association.
8. This Court, after having methodically analysed the objectives of the resolution so proposed, is in agreement with the same.
9. Therefore, in view of the above, it is ordered that the elections of the Bar Associations in the State of Rajasthan would be held on the Second Friday in the month of December every year, or every two years, depending upon the Constitution of the respective Bar Associations. As a result, the tenure of the office bearers of the Bar Associations stands extended and/or curtailed till the elections are held on 08.12.2023, this year.
10. With the observations made herein-above and the directions issued in consequence therewith, the appeal stands disposed of. Pending applications, if any, also stand disposed of. (SAMEER JAIN),J (AUGUSTINE GEORGE MASIH),CJ KAMLESH KUMAR / (Downloaded on 11/11/2023 at 07:31:19 PM) Powered by TCPDF (www.tcpdf.org)