All India Students Association ... vs The Chief Election Officer (Dusu ...
2014 Latest Caselaw 5985 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   Date of decision: 20th November, 2014.
+                              LPA No.566/2014
       ALL INDIA STUDENTS ASSOCIATION (AISA)
       & ORS                                      ..... Appellants
                     Through: Mr. Juno Rahman, Adv.

                               Versus

       THE CHIEF ELECTION OFFICER (DUSU ELECTION 2014-15)
       & ANR                                    ..... Respondents
                     Through: Mr. Mohinder J.S. Rupal, Adv. for
                              R-1&2.

CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. This intra court appeal impugns the judgment dated 26th August, 2014

of the learned Single Judge of this Court of dismissal of W.P.(C)

No.5465/2014 preferred by the three appellants.

2. Though the appeal came up first before us for admission only on 10th

November, 2014 but the counsel for the respondents, the Delhi University

and its Chief Election Officer for the Delhi University Students‟ Union

(DUSU) Elections, 2014-2015 having appeared before us on advance notice,

we, with consent of counsels, heard the counsels finally on the appeal and

reserved judgment.

3. The writ petition from which this appeal arises was preferred, just

prior to the DUSU elections scheduled to be held on 12 th September, 2014,

highlighting the practice prevalent in DUSU elections, of some of the

contesting candidates, with a view to having their names listed first / at the

top on the ballot paper of the post for which they are contesting the elections,

adding the alphabet "A" or "a" before their names. It was pleaded that it was

a belief that a large number of electorate / voters not committed to any

particular contesting candidate but nevertheless exercising their voting right,

exercise the same in favour of whichsoever candidate‟s name appears first on

the ballot paper without even bothering to go through all the names on the

ballot papers and which results in a candidate whose name appears first / at

the top or higher up in the ballot paper, winning the election by using unfair

means. The petition accordingly sought a direction to the respondents to

allot the ballot number and / or serial number in which the names of the

contesting candidates appear on the ballot paper, by holding a draw / lottery

in a free and fair manner.

4. The learned Single Judge by the impugned judgment dismissed the

writ petition in limine reasoning that there could not be any interference with

election process already begun and the challenge if any to the election could

be made only after the elections are over. It was also observed that the writ

petition was premised on lack of awareness and maturity as well as

understanding in the voters and which presumption could not be drawn.

5. Though the appeal had come up for consideration first on 29 th August,

2014 i.e. well before the elections scheduled on 12 th September, 2014 but the

hearing thereof was adjourned to 10th November, 2014, as aforesaid.

6. The counsel for the appellants during the hearing on 10th November,

2014 clarified that the purport of the writ petition is not to challenge the

elections even for the year 2014 but to set right the malady afflicting the

DUSU elections.

7. Though the learned Single Judge has rightly observed that no

presumption of the electorate / voters, who are students of an elite university,

being so unaware and lacking in awareness, maturity and understanding

could be drawn, but from the documents filed by the appellants along with

the writ petition, pertaining to the DUSU elections in the year 2012 and

2013, we do indeed find several of the contesting candidates to have prefixed

the letters "AAA", "AA", "aa", "A.A", "AAAA", "aaa", "a.a" or a name

beginning with the letter "A", to their names, resulting in such altered /

changed name being listed at the top of the ballot paper, the names of

contesting candidates wherein are listed alphabetically and which otherwise

would have been listed at the bottom of the ballot paper. The contesting

candidates having indulged in such a practice, this Court cannot turn a blind

eye thereto. Candidates contesting the elections are usually savvier in such

matters than the electorate / voters and generally make / are expected to

make a study of the voting patterns and of the factors influencing victory and

defeat in an election. If such contesting candidates have perceived that

having their names first or on the top or higher up on the ballot paper, which

appear to be prepared alphabetically, improves their chances of winning the

elections then some credence has to be given to the said fact. We may

mention that in Narain Chand Prashar Vs. Prem Kumar Dhumal AIR 1993

HP 84 also the contention was that owing to names on the ballot paper being

not printed in alphabetic order and by getting the name of the returned

candidate printed at the top of the ballot paper, the result of the election had

been materially altered; however the contention remained to be decided.

8. We are however surprised as to how the contesting candidates are able

to so change their names for the purpose of election. In our understanding,

admissions to the university are on the basis of particulars, including of name

given on the School Leaving Certificate / Certificate of the Board of

Examination on the basis of result whereof admission is secured to the

university. Thus, the name of the student on the roll of the university ought

to be the same as the name of that student in school. Again, ordinarily the

name by which a candidate can be permitted to contest the election ought to

be the name of that candidate on the roll of the university and no different.

We fail to understand, as to how a student of the university, for the purpose

of contesting the election, can be allowed any prefix before his name as

entered on the rolls of the university.

9. Unfortunately, the said question, in the aforesaid perspective was not

raised in the writ petition. The writ petition was filed presuming that such

practice of allowing on the ballot paper, a name different from that appearing

on the rolls of the university, is legitimate and seeking a direction to the

university to decide the sequence of names on the ballot paper by holding a

draw / lottery, instead of challenging the said practice. Axiomatically, the

said question remained to be considered by the learned Single Judge.

10. Naturally, the counsel for the respondent University also did not have

instructions as to why such practice is permitted. All that he could reply in

response to our query was that the university has a procedure for allowing

change of name.

11. We however do not feel the need to remand the matter for decision on

the said aspect or to entertain and keep this appeal pending and invite

response of the respondent University on the aforesaid aspect.

12. We do not find any error in the practice prevalent in the respondent

University of publishing the names of contesting candidates on the ballot

paper in alphabetical order. Such practice, of following alphabetical order,

while preparing lists is well established. Instance of roll numbers for any

examination being allotted as per alphabetical order can be cited. Thus, no

grievance can be made of the said practice being followed by the respondent

University and in our view the appellants have no right to seek a direction

for the seriatim in which the names of the contesting candidates are to be

mentioned on the ballot paper being decided by holding a draw / lottery. We

may however on a lighter note add that modern age parents are known to

give weightage to the effect of the alphabet with which the name given by

them to the child commences on the placement of the child throughout his /

her life in the lists that are prepared in alphabetical order of the names.

13. We may mention that Section 38 of the Representation of People Act,

1951 read with Rule 10 of the Conduct of Elections Rules, 1961 also

provides for preparation of the list of contesting candidates with the names

of the candidates therein arranged alphabetically and Rule 30(2) provides for

the names of the candidates on the ballot paper to be arranged in the same

order in which they appear in the said list. Though no judgment is required

to be cited on this aspect the statutory provisions being clear but mention

may be made of Pothula Rama Rao Vs. Pendyala Venakata Krishna Rao

(2007) 11 SCC 1 and of Piyush Jain Vs. Election Commission of India 109

(2004) DLT 470. Mention may also be made of Adv. Joice George Vs.

Election Commissioner of India AIR 2014 Kerala 107 where though the

term „Adv.‟ (Advocate) was prefixed to the name of the contesting

candidate, to distinguish him from another candidate with the same name but

the placement in the ballot paper arranged in alphabetical order did not treat

the said candidate‟s name as beginning with letter „A‟; on this ground the

election was sought to be challenged. However, the issue remained to be

adjudicated as the petition was dismissed on other grounds.

14. The Supreme Court of the United States also in Feist Publications,

Inc. Vs. Rural Telephone Service Company, Inc. MANU/USSC/0089/1991

held that the practice of arranging the names in a Directory alphabetically is

an age-old practice, firmly rooted in tradition and so commonplace that it has

come to be expected as a matter of course and is rather inevitable.

15. We are however of the opinion that the practice, if followed by the

respondent University of allowing such prefixes to the name for the purposes

solely of election, is flawed. The name by which a candidate is allowed to

contest the election should be the name on the rolls of the university and

which name would be, as aforesaid, the same as the name of such student in

the School Leaving Certificate. The name in School Leaving Certificate is

generally the name given at birth. Though a change of name is possible but

the same entails effecting publication in the prescribed newspapers of such

change and thereafter having such change notified / published in the Delhi

Gazette. Similarly, the schools also have a procedure for effecting change in

name. At least the Central Board of Secondary Education (CBSE) to our

knowledge has a detailed procedure for change of name. After all, if a

candidate has changed his name in school itself for the purposes of

contesting a student election in university then nothing can be done about it!

Else, we do not understand, as to why the University, if at all allowing such a

practice, is so allowing. We presume that the respondent University also

would have a detailed procedure for change of name. Even if there is

procedure prevalent in the university permitting change of name, the same

should be permissible after contesting in the election and which are normally

held soon after the beginning of the academic session. We are further of the

view that once the candidate has so changed his name, even if for the

purpose of election, in the ensuing year he/she ought not be permitted to

thereafter revert to the original name and should be ready to obtain his

University Leaving Certificate/Degree also with such changed name.

16. We however do not deem it appropriate to issue directions in aforesaid

terms to the respondent University inasmuch as owing to the appellants

having not raised the issue in the correct perspective, the occasion for having

the views of the university thereon has not arisen. We prefer to dispose of

this appeal with a direction to the respondent University to within three

months herefrom consider and take a decision on the aforesaid aspect. Of

course, if the respondent University differs from the opinion aforesaid

expressed by this Court, reasons therefor be recorded and a copy of the said

decision be communicated to the appellants. The appellants in that case

would be entitled to avail their remedies.

No costs.

RAJIV SAHAI ENDLAW, J.

CHIEF JUSTICE NOVEMBER 20, 2014/bs