Gunjan Kumar Kumawat S/O Sh. Gyan ... vs The Bar Council Of Rajasthan ...
2023 Latest Caselaw 4103 Raj/2

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        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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                                   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

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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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"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."

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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

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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 /

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