pecial Leave Petition Civil No 12662 of 1988
From the Judgment and Order dated 7101988 of the Madras High Court in CRP No 704 of 988
MN Padmanabhan and KK Mani for the Petitioner
RK Garg V Balachandran and V Krishnamurthy for the Respondents
The Judgment of the Court was delivered by NATARAJAN J
This special leave petition to seek leave to appeal under Article 136 of the Constitution has been filed against the order of the Madras High Court in Civil Revision Petition No 704 of 1988 filed by the 1st respondent herein
After hearing the arguments of the counsel for the petitioner and the 1st respondent Caveator we are not persuaded to grant special leave and are dimissing the petition for the reasons given below
For an election held on 2321986 the votes were counted on 2521986 and the 1st respondent was declared elected having secured 649 votes for the post of the President of the Keelpaguthi Panchayat Kulithalai Taluk Tamil Nadu
The petitioner and the 2nd respondent who were the other contestants were declared to have secured only
556 votes and 8 votes respectively
Besides the voles secured by the contestants 55 votes were declared to be invalid votes
Two days after the results were declared ie On 2721986 the petitioner sent telegrams and registered notices alleging irregularities in the counting of the votes
Thereafter he filed an election petition OP No 786 under Section 178 of the Tamil Nadu Panchayats Act before the Election Tribunal District Munsif Kulithalai for setting aside the election of the 1st respondent as the PG NO 953 President of Keelpaguthi Panchayat
He alleged in the petition that the Returning Officer 3rd respondent had wrongly treated some valid votes cast in his favour as invalid votes and a certain number of invalid votes as votes validly cast in favour of the 1st respondent and that the third respondent had failed to permit him and his agents to have scrutiny of the ballot papers at the time of counting
He therefore sought the reliefs of a setting aside the election of the first respondent b ordering of re count of votes and c a declaration that he had been duly elected
The first respondent opposed the election petition and filed a counter statement denying all the allegations contained in the election petition 
The Tribunal after recording the evidence of all the candidates and the Assistant Returning Officer came to the conclusion that the petitioner is entitled to ask for recount of votes and ordered recounting and called for the ballot papers
In para 7 of the order wherein the Tribunal has accepted the plea of the petitioner for recounting of votes the Tribunal has merely set out the evidence adduced by the petitioner on the one hand and respondents 1 and 2 and the Assistant Returning Officer on the other and without any discussion whatever upon the merits and demerits of the evidence of the parties has given a cryptic finding as follows I accept the evidence given by the petitioner that he Returning Officer has sided the first respondent in the election
 The Tribunal has then stated as follows immediately after the election results were announced on 25286 he has sent notice exhibit A1 on 27286 stating that the counting is not correct
Further he has deposed that on the date of counting he objected to he counting and requested for recounting
Even though the petitioner has not given any petition in writing for recounting on the counting date he has right to approach the Tribunal for recounting
The petitioner has filed this petition within the stipulated time
the petitioner prays for recounting of votes and he petition may be admitted on the basis of recounting
If recounting ordered no prejudice will be caused to the respondents Because their arguments is that the votes were counted according to law
Therefore I decide that the petitioner is entitled to ask for recounting
Recounting is ordered
 In the recount of of votes it was found that there was no difference in the number of votes secured by the petitioner viz 556 votes but in so far as the first respondent is concerned he had secured only 528 votes as against 649 votes he was originally held to have secured
The excess of 121 votes were found to be invalid votes and PG NO 954 therefore the total number of invalid votes came to 126 as against 55 votes originally held to be invalid votes
There was no difference in the number of 8 votes secured by the third contestant viz the second respondent
All the three contestants accepted the correctness of the recounting of votes and signed a memo to that effect before the Tribunal
Based on the figures of the recount the petitioner pressed for a declaration that he had been duly elected to the post of the President of the Panchayat
On the other hand the first respondent prayed that the Tribunal should direct a fresh election to be held for the post of President
The tribunal declined to order re election and instead declared the petitioner to have been duly elected because the recount clearly proved that the petitioner has secured 28 votes more than the first respondent 
Against the order of the Tribunal the first respondent filed Civil Revision Petition No 70488 to the High Court
A learned single judge of the High Court allowed the revision holding that the Tribunal had erred in ordering a recount of the votes when the petitioner had not made out a prima facie case for an order of recount of votes being made
The High Court has pointed out that the secrecy of the ballot is sacrosanct and as such the secrecy of the ballot should not be violated by any Tribunal unless a prima facie case of a compulsive nature had been made out by the defeated candidate for the rule of secrecy being broken and the ballot papers being inspected and counted afresh
Consequently the High Court set aside the order of the Tribunal and restored the election result in favour of the first respondent
It is against the said order of the High Court the petitioner has filed this special leave petition
Mr MN Padamanabhan and Mr Garg learned counsel appearing for the petitioner and the first re pondent respectively presented the case of their respective parties before us with all the persuasiveness at their command
While Mr Padmanabhan s contention was that the petitioner had placed sufficient materials before the Tribunal to make out a prima facie case for a recount of votes being ordered and that the result of the recount of votes amply established the truth of the petitioner contentions Mr Garg argued that the allegations made by the petitioner in the petition were of a very general and vague nature and such vague averments can by no stretch of imagination be considered adequate material by the Tribunal to conclude that there was compulsive need for the secrecy of the ballot being violated and a recount of votes being ordered
PG NO 955 Before examining the contentions of the parties we may set out the position in law as regards the need for the secrecy of the ballot being maintained and as to when the well established rule can be departed from
Since the principle of law has already been enunciated by this Court in several cases we may refer to three of those decisions
In Dr Jagjit Singh vs Giani Kartar Singh  the appellant had challenged the election of the first respondent to the Punjab Legislative Assembly
In the recount of votes ordered by the Tribunal it was found that the appellant had secured 22491 votes and the first respondent had secured 22412 votes
The Tribunal allowed the election petition and declared the appellant to have been duly elected
The High Court set aside the order of the Tribunal and the judgment of the High Court was confirmed by this Court
In doing so this Court observed as follows Thereforein a proper case the Tribunal can order the inspection of the ballot boxes and may proceed to examine the objections raised by the parties in relation to the improper acceptance or reject of the voting papers
But in exercising this power the Tribunal has to bear in mind certain important considerations
Section 831a of the Act requires that an election petition shall contain a concise statement of the material facts on which the petitioner relies and in every case where a prayer is made by a petitioner for the inspection of the ballot boxes the Tribunal must enquire whether the application made by the petitioner in that behalf contains a concise statement of the material facts on which he relies
Vague or general allegations that valid votes were improperly rejected or invalid votes were improperly accepted would not serve the purpose which section 83Ia has in mind
An application made for the inspection of ballot boxes must give material facts which would enable the Tribunal to consider whether in the interests of justice the ballot boxes should be inspected or not
In dealing with this question the importance of the secrecy of the ballot papers cannot be ignored and it is always to be borne in mind that the statutory Rules framed under the Act are intended to provide adequate safeguard for the examination of the validity or invalidity of votes and for their proper counting
It may be that in some cases
the ends of justice would make it necessary for the Tribunal to allow a party to inspect the PG NO 956 ballot boxes and consider his objections about the improper acceptance or improper rejection of votes tendered by voters at any given election but in considering the requirements of justice care must be taken to see that election petitioners do not get a chance to make a roving or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidate s election is void
 In Ram Sewak Yadav vs Hussain Kamil Kidwai  Ors  this Court has set out the circumstances when an order for inspection of ballot papers can be ordered in the following terms An order for inspection may not be granted as a matter of course having regard to the insistence upon the secrecy of the ballot papers the Court would be justified in granting an order for inspection provided two conditions are fulfilled i that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case and ii The tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary
But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas
The case of the petitioner must be set out with precision supported by averments of material facts
To establish a case so pleaded an order for inspection may undoubtedly if the interests of justice require be granted
But a mere allegation that the petitioner suspects or believes that there has been an improper reception refusal or rejection of votes will not be sufficient to support an order for inspection In R Narayanan vs Semmalai   the same principle has been reiterated
That was a case where the difference of votes between the candidates declared elected and his nearest rival who filed an election petition was only 19 votes and which figure would have come down to 9 PG NO 957 votes only if the postal ballots were included
Even so this Court after referring to a number of decisions and Halsbury s Laws of England and Fraser on Law of Parliamentary Elections and Election Petitions held that without their being an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting of votes are founded and such averments being backed by acceptable evidence and the Court trying the petition being prima facie satisfied that an order for recount of votes is imperatively necessary to decide the dispute and do complete justice between the parties an order of recount of votes cannot be passed
Thus the settled position of law is that the justification for an order for examination of ballot papers and recount of votes is not to be derived from high sight and by the result of the recount of votes
On the contrary the justification for an order of recount of votes should be provided by the material placed by an election petitioner on the threshold before an order for recount of votes is actually made
The reason for this salutary rule is that the preservation of the secrecy of the ballot is a sacrosanct principle which cannot be lightly or hastily broken unless there is prima facie genuine need for it
The right of a defeated candidate to assail the validity of an election result and seek recounting of votes has to be subject to the basic principle that the secrecy of the ballot is sacrosanct in a democracy and hence unless the affected candidate is able to allege and substantiate in acceptable measure by means of evidence that a prima facie case of a high degree of probability existed for the recount of votes being ordered by the Election Tribunal in the interests of justice a Tribunal or court should not order the recount of votes
Viewed in the light of these well enunciated principles we find that the petitioner has neither made such averments in the petition nor adduced evidence of such a compulsive nature as could have made the Tribunal reach a prima facie satisfaction that there was adequate justification for the secrecy of ballot being breached in the petitioner s case
Factors urged before us by Mr Padamanabhan such as that the first respondent had accepted the correctness of the recount
and that he had conceded his defeat and wanted a re election to be held cannot constitute justifying materials in law for the initial order of recount of votes made by the Tribunal
Mr Padamanabhan also contended that the purpose and object of the election law is to ensure that only that person should represent the constituency who is chosen by the majority of the electors and that is the essence of PG NO 958 democratic process and this position has been observed by a Bench of this Court in their order of reference of the case of N Gopal Reddy vs Bonala Krishnamurty  Ors CA No 3730NCE of 1986 reported in JT 19871 SC 406 and hence it would be a travesty of justice and opposed to all democratic canons to allow the first respondent to continue to hold the post of the President of the Panchayat when the recount disclosed that he had secured 28 votes less than the petitioner
We are unable to sustain this contention because as we have stated earlier an order of recount of votes must stand or fall on the nature of the averments made and the evidence adduced before the order of recount is made and not from the results emanating from the recount of votes
It was also brought to our notice that the first respondent has resumed charge of the post of the President from the petitioner although with unseemly hurry with the aid of police after the High Court s order and that the term of office of President is to come to a close in about ten weeks time
In the light of our conclusions we do not find any merit in the special leave petition and accordingly dismiss the same
Petition dismissed 


Summary:
Rule X2 of the Rules regulating the appointments of Housemen and House Surgeons at the hospitals attached to the Government Medical Colleges in the State of Maharashtra provides that the Government may sanction supernumerary posts to allow spouses of Government servants on transfer to undertake studies if standing high in merit from another college
The appellant married to a Government Medical Officer working in the State of Maharashtra after having passed MBBS examination and completing one year internship from a college situated in the State of Andhra Pradesh
On her application the Government of Maharashtra in exercise of its power under rule X2 created a Housepost in Obstetrics and Gynaecology wef July l5
1986 specifically and categorically stating that the supernumerary Housepost was created to enable the appellant to complete her post graduate studies at Dr VM Medical College Solapur respondent No 2
The appellant joined the Housepost and duly completed the same
However she was refused admission in the MD Course by respondent No2 inasmuch as she was not even issued an application form
Being aggrieved she filed a writ petition in the High Court challenging the legality of the action of the respondent refusing to admit her in the said post graduate MD Course
The High Court dismissed the writ petition holding inter alia that no inference could be drawn that everybody who completed the house job was entitled to get admission to the post graduate cousre ipso facto and that granting of registration for house job would not amount to admission to the post graduate course in a Medical College
Hence this appeal by special leave
Allowing the appeal PG NO 959 PG NO 960 HELD l All the seats in the post graduate degree course for Obstetrics and Gynaecology are not reserved for the candidates passing the MBBS examination from the said Dr VM Medical College
It is not disputed that certain percentage of seats are reserved for the students of the College
But no application form was issued to the appellant and accordingly the question of not admitting the appellant on the ground of institutional preference or institutional reservation of seats does not arise
964F G 2 The State of Maharashtra is entitled to refuse to admit any student passing the MBBS examination from any Medical College in the State of Andhra Pradesh as that State has not reciprocated in the matter of admission to post graduate degree courses in Medical Colleges of that State
964G H 3 The State of Maharashtra after considering all facts and circumstances including the high merit of the appellant specifically created a supernumerary Housepost for the appellant
After creating the supernumerary Housepost specifically for the appellant so as to enable her to become eligible for the post graduate degree course the respondents are not at all justified in refusing her even an application form and in not considering her case for admission in the post graduate degree course on the ground of failure of reciprocity by the Andhra Pradesh State
It was therefore unreasonable and unjust for the respondents to refuse admission to the appellant on a ground which is not at all tenable in the facts and circumstances of the cases
965C F 4 Normally the Supreme Court does ot interfere in the matter of admission of students in an educational institution
Even if it interferes
it generally directs the authorities concerned to consider the question of admission in accordance with the rules of the institution
But in the peculiar facts and circumstances of the case particularly the fact that the appellant had to lose two years of her academic career for no fault of hers it is directed that the respondents shall issue to her an application form for admission in the post graduate MD Course in Obstetrics and Gynaecology and that alter the submission of the application form and compliance with other formalities by the appellant she shall be admitted in the post graduate course in Obstetrics and Gynaecology in Dr VM Medical College Solapur in the 1989 session provided she is not otherwise unfit
966B D