Appeal No 5 of 1971
Appeal from the judgment and order dated December 18 21 1970 of the Bombay High Court in Special Civil Application No 1583 of 1970
section J Sorabeje M O Chinoy J R Gagrat and B R Agarwala for the appellants
V section Desai and section B Wad for the respondents Nos 1 2 4 and 7
The Judgment of the Court was delivered by Ray J
This is an appeal by certificate under Article 1331 c of the Constitution from the judgment dated 18 and 21 December 1970 of the Bombay High Court
The Bombay High Court issued a writ of quo warranto declar ing that respondent No 3 Dr Balkrishna Pandurang Apte is not entitled to act as the Vice Chancellor of the University of Poona 599 is pursuance of the election held on 9 May 1970 and further restraining him from acting as the Vice Chancellor
H V Pataskar the Vice Chancellor of the University of Poona died on 21 February 1970
The Governor of Bombay who is the Chancellor of the University then nominated Maha Mahopadhyaya Datto Vaman Potdar to act as the Vice Chancellor until the date on which another Vice Chancellor was elected under sub section 1 of section 11 of the Poona University Act 1948 hereinafter referred to as the Act
Under section 12 of the Act the Vice Chancellor is the prin cipal executive and academic officer of the University
Under section 11 of the Act the Vice Chancellor shall be elected by the Court from among three persons recommended by the Executive Council
Section 56 of the Act provides that every election to the office of the Vice Chancellor and every recommendation for the nomination to the office of the Vice Chancellor under the Act shall be made by the system of proportional representation by
means of a single transferable vote by ballot in such manner as may be prescribed by the Statutes
At the meeting of the Executive Council held on 28 February 24 March and 18 April 1970 the Executive Council recommend ed a panel of three persons
They were Dr Balkrishna Pandurang Apte Principal Narayan Ramchandra Kulkarni and Principal Narhar Govind Suru for election to the office of the Vice Chancellor
These were the three candidates from amongst whom the Court of the University had to elect one as the Vice Chancellor
The said meeting of the Court of the University was convened under notice dated 22 April 1970 for 9 May 1970 for election of the Vice Chancellor from amongst those three persons
At the election held on 9 May 1970 the total number of votes tendered was 149
One of the votes was invalid
The valid votes were 148
The election was in accordance with section 56 of the Act by the system of proportional representation by means of a single transferable vote by ballot
The result of the ballot papers appeared to be that Dr Apte secured 58 Principal Kulkarni 37 and Principal Suru 53 first preference votes
Principal Kulkarni was thus eliminated on the first count on the basis of the lowest number of first preference votes
8 of the voters who had given first preference votes to Principal Kulkami had not exercised second preference in favour of either of the remaining two candidates Dr Apte and Principal Suru
The remaining 29 voters gave 12 second preference votes to Dr Apte and 17 second preference votes to Principal Suru
This resulted in both the continuing candidates Dr Apte and Principal Suru each securing 70 votes on 600 the second count
Dr Apte was declared elected because in the first count namely the count previous to the one in which both obtained equal number of votes
Dr Apte had a clear majority of 5 votes and therefore Principal Suru was excluded from the election
The election of Dr Apte was challenged in the High Court on three principal grounds
First it was contended that the tie between Dr Apte and Principal Suru at the second count was to be resolved by drawing of lots because it was the ordinary practice in elections held under the system of proportional representation by means of a single transferable vote by ballot for election to a single seat that the tie of the above kind must be resolved by drawing of lots
Secondly it was said that the Principal of four Colleges viz N D M V P Samaj s Arts and Commerce College Sinnar V P Mandal s Arts Science and Commerce College Thana Narhar Balwant Thakur Law College Nasik and G E Society s College for Education Sangamner which had not been duly affiliated at the date of the election had acted and voted at the election as members of the Court and therefore the votes given by the members of those four colleges were invalid
Thirdly it was contended that the meeting for the election of the panel of respondents Dr Apte Principal Kulkarni and Principal Suru for election to the office of the Vice Chancellor was an invalid meeting and therefore the election was void
The High Court upheld the first contention and rejected the other two
The High Court held that when upon final count the continuing candidates Dr Apte and Principal Suru secured equal majority of valid votes the system of proportional representation by means of a single transferable vote by ballot never aimed at excluding one of such continuing candidates by reference to any of the previous counts andor of original vote
The High Court held that where only two continuing candidates remained to fill up only one vacancy and both of them had the same number of votes the tie of votes between the two continuing candidates was to be solved by the principle of decision by lot
Section 56 of the Act speaks both of election to the office of the Vice Chancellor or any authority of the University by the system of proportional representation by means of a single transferable vote by ballot in such manner as may be prescribed by the Statutes
The authorities of the University are mentioned in section 15 of the Act
The Vice Chancellor is not one of the authorities mentioned there
The Vice Chancellor is one of the officers of the University
The officers of the University are mentioned in section 8 of the Act
601 Section 18 of the Act contemplated making of Statutes
Statutes No 142 to 165 are the relevant Statutes for elections to authorities
These Statutes do not apply to election of Vice Chancellor because he is not an authority
The system of election by proportional representation by means of a single transferable vote by ballot is the prescribed system of election to authorities
The relevant Statute for election to authorities on which counsel for the appellants relied is Statute No 158 in support of the proposition that it embodied the rule of exclusion of one of the two continuing candidates both of whom secured equal number of votes in the second count by reference to the principle as to which of the two continuing candidates had the lowest number of votes at the first count
There is no doubt that Statute No 158 does not in terms apply to the election of Vice Chancellor but it is manifest that Statute No 158 embodies a rule of exclusion of one of the candidates at the second count on the ground that that candidate bad the lowest number of votes at the first count
Election by proportional representation by means of a single transferable vote by ballot is often described as the Hare system of proportional representation named after the English political reformer Thomas Hare
This system of election is based on a quota determined by the following formula
The total votes cast is divided by the number of seats to be filled plus one and one is added to the quotient
If 100000 votes are cast and 4 seats are to be filled divide by 5 to get a quotient of 20000 then add I to get 20001 which is the quota
A candidate receiving the quota of first choice of votes is elected
Under this system electors express first second
third or additional choices according to the number of candidates
An elector does not waste his vote
If the candidate for whom he has expressed his choice does not need his vote the surplus votes are distributed in accordance with the indicated second choices among candidates whose quotas have not been filled
If enough candidates are not elected by this process the candidate with the smallest number of choices is then excluded and his votes are distributed in the same way
This process of exclusion or elimination goes on until enough candidates have filled their quotas or until the successive eliminations have left no more than enough to fill the vacancies
In working out the method of election in the present case it has to be noticed whether the manner in which Principal Suru has been excluded at the second count and Dr Apte has been declared elected at the second count is a principle of exclusion which has been recognised in the system of proportional representation by means of a single transferable vote by ballot
Counsel for the  appellants contended that there was legislative recognition of this principle in three cases
The first is rule 75 of the Conduct of 602 Elections Rules 1961
The second is rule 6 in the Schedule to the Presidential and Vice Presidential Elections Rules 1952
The third is Statute No 158 in the Statutes of the Poona University Act
Rule 75 of the Conduct of Elections Rules is applicable in the case of counting of votes where only one seat is to be filled
The two sub rules of Rule 75 on which reliance was placed by counsel for the appellants for the legislative recognition of the principle of exclusion are 3 and 4 which are as follows  3
If at the end of any count no candidate can be declared elected the returning officer shall a exclude from the poll the candidate who up to that stage has been credited with the lowest value b examine all the ballot papers in his parcel and sub parcels arrange the unexhausted papers in sub parcels according to the next available preferences recorded thereon for the continuing candidates count the number of papers in each sub parcel and credit it to the candidate for whom such preference is recorded transfer the sub parcel to that candidate
and make a separate sub parcel of all the exhausted papers  and c see whether any of the continuing candidates has after such transfer and credit secured the quota
4 If when a candidate has to be excluded under clause a of sub rule 3 two or more candidates have been credited with the same value and stand lowest on the poll the candidate for whom the lowest number of origi nal votes are recorded shall be excluded and if this number also is the same in the case of two or more candidates the returning officer shall decide by lot which of them shall be excluded
Sub rule 4 indicates that if when a candidate has to be excluded two or more candidates have been credited with the same value and stand lowest on the poll the candidate for whom the lowest number of original votes are recorded shall be excluded
In the present case at the first count Principal Kulkarni was excluded because he received the lowest number of votes on the first count
At the second count Dr Apte and Principal Sum were the two continuing candidates
Of these two one had to be excluded
Therefore the principle of exclusion is that the candidate for whom the lowest number of original votes are recorded shall be excluded
The original first preference votes indicated that Dr Apte
603 had 58 votes and Principal Suru had 53 votes
Therefore
Dr Apte had larger first preference votes
The other part of sub rule 4 of rule 75 is that if both at the first count and at the second count they had equal number of votes then one of them was to be excluded on the principle of decision by lot
Rule 6 in the Schedule to the Presidential and Vice Presi dential Elections Rules 1952 on which counsel for the appellants relied embodied the same principle which is as follows  If when a candidate has to be excluded under clause a above two or more candidates have been credited with the same number of votes and stand lowest on the poll exclude that candidate who had secured the lowest number of first preference votes and if that number also was the same in the case of two or more candidates decide by lot which of them shall be excluded
Statute No 1583 on which counsel for the appellants relied is as follows  If when a candidate has to be excluded two or more candidates have each the same number of votes and are lowest on the poll the candidate with the lowest number of votes at the first count at which the candidates in question have an unequal number of votes shall be excluded and when the number of votes credited to the candidates are equal at all counts the Registrar shall determine by lot who shall be excluded
These provisions were referred to and relied on by counsel for the appellants only for the limited purpose of establishing that where two continuing candidates at the second count have equal number of votes in the second count and there is one vacancy to be filled up the candidate who had the lower number of votes at the first count shall be excluded
The High Court held that the words two or more candidates and the other words stand lowest on the poll in rule 754 of the Conduct of Elections Rules indicated that the principle embodied in that rule would apply only where the contest continued between three and more continuing candidates and the question could not arise when the contest was only between two candidates left over as continuing candidates
The other reason given by the High Court was that when there were two continuing candidates they could never stand lowest on the poll and the two candidates according to the High Court could stand lowest on the poll 604 only if there were other remaining or continuing candidates with larger and better value of votes
The interpretation of rule 754 by the High Court is erroneous
The rule itself speaks of two or more candidates and does not speak of more than two candidates as the High Court construed it
The words stand lowest on the poll occur along with two or more candidates who have been credited with the same value
It is because they have the same value that both of them stand lowest on the poll
There fore rule 754 resolves that tie by adopting the principle of exclusion of one of the candidates with regard to the number of original votes at the first count
The High Court held that the principle in rule 754 would not apply in the present case with only two continuing candidates for filling in one vacancy because there would be no possibility of transfer of the excluded candidate s votes in favour of the other candidate
The High Court therefore relied on rule 813 of the Conduct of Elections Rules 1961 to support the conclusion that the only system of exclusion in a case of the present type would be decision by lot
Rule 813 is as follows When at the end of any count only one vacancy remains unfilled and there are only two continuing candidates and each of them has the same value of votes and no surplus remains capable of transfer the returning officer shall decide by lot which of them shall be excluded and after excluding him in the manner aforesaid declare the other candidate to be elected
The High Court overlooked the rational of the principle embodied in rule 754 that in the case of two continuing candidates each having the same value of votes to fill in one vacancy the tie between the two would be solved by having regard to their original votes in the first count
There would be no occasion for transfer of excluded candidate s votes in such a contingency
Where two or more candidates continued for one vacancy and each of the candidates would have the same value of votes at the end of a count the tie between the two or more candidates having equality of votes would be solved by excluding the one who had the lowest number of votes on the first count and thereafter the excluded candidate s second choice would be transferred to the continuing candidates until the vacancy would be filled up by the principle of exclusion embodied in rule 754
The principle in rule 813 is applicable where more than one seat is to be filled and only one vacancy remains unfilled with only two continuing candidates and each of them has the same 605 value of votes at that count
In such a case the exclusion of one of the candidates is decision by lot
The reason for decision by lot in rule 813 is that the two continuing candidates by reason of the transferred votes at the last count have the same value of votes
The values of their votes in the previous counts have already been worked out by rule 807 of the Conduct of Elections Rules 1961 which embodied the principle of exclusion of a candidate where two or more candidates have the same value of votes by having regard to the original votes of each candidate and excluding the candidate for whom fewest original votes are recorded
The principle of Rule 813 does not apply to the present case because that rule applies to counting of votes where More than one seat is to be filled
This is not the case here
Rule 813 resolves tie on count of votes between the last two contesting candidates at the last count on transfer of votes from the previous count
It is an established principle in the system of proportional representation by means of a single transferable vote by ballot that where for one vacancy there are three candidates and one of them is excluded at the first count and the two candidates continued and in the second count both of them have equal number of votes then one of the two candidates who had the lower number of votes than the other continuing candidate in the first count shall be excluded
The present election was held on this principle
Section 56 of the Act only speaks of election by the system of proportional representation by means of a single transferable vote
It cannot be said in the present case that there is any statutory infringement of election by the system of proportional representation by means of a single transferable vote
The two rival contentions were that according to the University authorities Principal Suru was to be excluded at the second count because his votes on the original count were lower than that of Dr Apte whereas according to the persons who impeached the election the only method of exclusion was decision by lot
It appears that there is legislative sanction in support of the contention on behalf of the University authorities that resolving equality of votes by reference to first preference or original votes is a known recognised method in the system of proportional representation by means of a single transferable vote
Even if Statute No 158 of the Poona University does not in terms apply Statute No 158 furnishes a valuable guide regarding the working of the system of proportional representation mentioned in section 56 of the Act and principles analogous to Statute No 158 are applicable and have been applied by the authorities who conducted the election in the present case
Determination by lot in case of equality of votes in neither a principle of universal application nor is it a common law principle
606 It is only permissible when there is a specific statutory provision to that effect
In the absence of a statutory provision the method of decision by lot is not resorted to when there is other rational method
The principle of decision by lot is dependent on chance and accident whereas the principle of exclusion with reference to difference of votes on the original count is based on reason and legislative principles
In the present case the Statute imposed a duty of election by the system of proportional representation by means of a single transferable vote
The principles of exclusion are not to be found in any statutory enactment in the present case
On the one hand there is the support of legislative measures embodying the principle of exclusion by reference to original count
The principle of exclusion by lot on the other hand is adhered to only if the Statute has a compelling force to that effect
In the present case there is no such statutory compulsion of deciding by lot in the eventuality which happened
If there are two principles of exclusion and the authority has a discretion in the mode of performing the duty the authority cannot be commanded to a duty in a specific way See Halsbury s Laws of England Third Edition Vol
II Para
160 page 85
The election was held by the continuing Vice Chancellor
The Court of the University was master of its own procedure
It adopted one of the principles of exclusion by reference to votes on the original count
In following that procedure it cannot be said that there is violation of statute
It is not out of place to mention here that Principal Suru himself made a petition to the Chancellor under section 60 of the Act asking him not to confirm the election
Under section 60 of the Act if any question arises as to whether a person has been duly elected or appointed the matter may be refer red on a petition to the Chancellor who shall decide the question and his decision shall be final
We are not basing our decision on the finality of the decision of the Chancellor in the present case but this is a feature which is not to be lost sight of by reason of the fact that the candidate who lost at the election made representation for redress of his grievances to the Chancellor
Counsel on behalf of the respondents repeated the contention which had been advanced in the High Court that Principals of 4 unaffiliated Colleges attended the Court meeting and therefore the election was bad
The High Court rightly rejected that contention
There is evidence to show that in the month of June 1969 the Government sanctioned the recommendation of the University for affiliation of these Colleges to the University
The affiliation was for three years from 1969
In these orders it was stated that the final Government notification would be issued after the University submitted a report to the Government of fulfilling the conditions
The respondents  contention was that the notification was published after the month of May 1970
The High Court rightly held 607 that the sanction was granted by the Government
Delayed publication of the notification would not detract from the sanction previously granted
The third contention which had been urged in the High Court was not pressed here
For these reasons we accept the appeal and set aside the judgment of the High Court
Each party will pay and bear its own costs in this Court
V P section Appeal allowed


Summary:
Under section 11 of the Poona University Act 1948 the Vice Chancellor shall be elected by the Court of the University from among three persons recommended by the Executive Council and the election shall be made by the system of proportional representation by means of a single transferable vote by ballot
In the present case the result of the ballot papers was that one candidate secured 58 first preference votes the second secured 53 first preference votes and the third candidate secured 37 first preference votes
The third candidate was eliminated on the first count on the basis of his securing the lowest number of first preference votes and his second preference votes were distributed between the other two
This resulted in both of them securing an equal number of votes on the second count
and the candidate who had the majority in the first count was declared elected
The election was set aside by the High Court
On the questions 1 Whether the tie should have been resolved by drawing of lots and 2 Whether the principals of four colleges voted wrongly at the election because those colleges had not been duly affiliated at the date of election
HELD 1 It is an established principle in the system of proportional representation by means of a single transferable vote by ballot that where for one vacancy there are three candidates and one of them is excluded at the first count and the other two candidates continue and secure in the second count an equal number of votes then the one who had the lower number of votes in the first count shall be excluded
Determination by lot in case of equality of votes is neither a principle of universal application nor is it a common law principle
It is only permissible when there is a specific statutory provision to that effect
In the absence of such a statutory provision the method of decision by lot is not resorted to when there is another rational method
The principle of decision by lot is de pendent on chance and accident whereas the principle of exclusion with reference to difference of votes on the original count is based on reason and legislative principles
The principles of exclusion are not to be found in any statutory enactment in the present case
On the other hand there is the support of legislative measures embodying the principle of exclusion by reference to original count
605D H 606A C a Rule 754 of the Conduct of Election Rules indicates that when two or more candidates have been credited with the same value and stand lowest on the poll the candidate for whom the lowest number of original 598 votes are recorded shall be excluded
The rule applies when there are two or more candidates and not only when there are more than two candidates
The words stand lowest on the poll  qualify two or more candidates who have been credited with the same value 
The High Court overlooked the rational of the principle embodied in this rule that in the case of two continuing candidates each having the same value of votes to fill in one vacancy the tie between the two would be resolved by having regard to their original votes in the first count
604B F b Rule 6 in the Schedule to the Presidential and Vice Presidential Election Rules 1952 and Statute No 158 framed under the Poona University Act though it does not in terms apply to the election of a Vice Chancellor also embody this principle
603B c The High Court s reliance on r 8113 of the Conduct of Election Rule 1961 in support of the conclusion that the only system of exclusion in a case of the present type should be by lot is erroneous
The principle in r 813 applies only where more than one seat is to be filled and only one vacancy remains unfilled with only two continuing candidates and each of them has the same value of votes at that count
605C d The defeated candidate himself made a petition to the Chancellor under section 60 of the Act which provides that if any question arises as to whether a person has been duly elected the matter may be referred to the Chancellor whose decision shall be final not to confirm the election
The Court of the University has thus laid down its own procedure for correction
When there is discretion to choose between two principles of exclusion this Court would not command the University to exercise the discretion in a specific way
606E 2 The four colleges were in fact affiliated before the date of election but there was delay in the publication of the notification
Such delay would not detract from the sanction previously granted
607A