T.R. Gunasekaran vs S. Ramakrishnan and others

Srinivasan, J.—The Corporation of Madras had to fill up a vacancy in the Office of the Secretary to the Council of the Corporation. In response to an advertisement numerous applications were received. At a preliminary interview, which was entrusted to the Commissioner of Corporation, five candidates were selected, one among whom had to be chosen by the Council of the Corporation. According to the rules, the choice was to be rested on a vote of the members of the Council. The procedure in this regard is set down in Regulation 150 of the Regulations framed under S.31 of the Act, which requires that each of the candidates applying for the post had to be proposed and seconded by a member of the Council present at the meeting. The members were to can votes in favour of one or the other of the candidates. If any candidate obtains an absolute majority, that is to say, more than 50 per cent of the votes, he would be chosen on that voting. If no candidate obtained an absolute majority, the one obtaining the lowest number of votes would be eliminated and there would be a further voting in respect of the remaining candidates till finally one candidate secured an absolute majority of the votes. It appears that of the five candidates so chosen by the Commissioner, three did not find sponsors to propose or second them. This left only the petitioner and the first respondent in the field. At the meeting, there were 86 members present, including the Mayor of the Corporation. Each of the candidates, the petitioner and the first respondent, obtained 43 votes. Thereupon, the Mayor purported to exercise his power of a casting vote in favour of the first respondent and declared him as duly chosen. This procedure was objected to by some members, but the objection was overruled by the Mayor. According to S.85 of the Act, an appointment to an office of this description has to be confirmed by the State Government and the State Government issued an order in due course confirming the appointment of the first respondent. The petitioner, who is the defeated candidate, has filed a writ petition seeking a writ in the nature of quo warranto. The short contention is that in the matter of an appointment to a post governed by S. 85 of the Act, and by Regulation 150, the Mayor of the Corporation has no right to a casting vote. It is also alleged that the exercise of the casting vote by the Mayor is mala fide. Because of certain party affiliations, the Mayor had a bias in favour of the first respondent. The petitioner has also filed another petition under Art. 226 seeking the issue of a writ of certiorari to quash the order of the Government approving the appointment in question.

In the counter affidavit filed by the first respondent, the maintainability of the petitions is questioned. It is claimed that the office is not a public office of a nature such as to attract the issue of a writ of quo warranto. The office is not one created by the statute or the rules thereunder. It is again contended that under R. 8 of Sch. II of the Madras Municipal Corporation Act, the Mayor is under a duty to exercise a casting vote in every case of equality of votes. The counter affidavit filed on behalf of the Mayor in so far as it is relevant takes a similar stand. It also denies the allegation of any mala fides which induced the exercise of the power of a casting vote.

Under S. 31 of the Act, the Council shall observe the procedure laid down in Sch. II for the conduct of the proceedings and also for the maintenance of order at the meetings. The Council is also competent to make supplemental regulations not inconsistent with Sch. II or other provisions of this Act or any rules made by the State Government for the purpose already indicated. Sch. II, by Rule 8, requires that "all questions which may come before the Council at any meeting shall be decided by a majority of members present and voting at the meeting, and in every case of equality of votes, the Mayor, the Deputy Mayor, or the presiding member shall have and exercise a second or casting vote". This rule has been word for word embodied in the Regulation framed by the Council under S. 31 or the Act. The relevant Regulation is 124. When we turn to Regulation 150, however, which deals with appointments of Heads of Departments, no specific mention of a casting vote is indicated there. Broadly stated, this Regulation deals with the process of elimination of candidates. Where there is a multiplicity of candidates exceeding two in number, no question of a casting vote can possibly arise, for that can be exercised only in the event of an equality of votes. The earlier parts of Regulation 150 deal with the process of elimination. Regulation 150(e) states that the process of elimination shall be continued until one of the candidates obtains more than half of the votes of the members present at the voting. The principal contention of Mr. V.P. Raman, Learned Counsel for the petitioner, is rested upon the fact that Regulation 150 purports to be a special rule, which, according to him, should exclude the general rule. He also refers to Regulation 109, which states:

When a division has been taken and the numbers voting, for and against the resolution are equal, the Mayor shall exercise a casting vote.

This rule appears in that part of the regulation dealing with resolutions, amendments, division and poll. He points out that where the regulation requires the Mayor to exercise his casting vote, it says so, and, therefore, when this power is specifically left out in Regulation 150, which has to be followed in the matter of making appointments, the Mayor is not intended to exercise the casting vote.

Learned Counsel has referred to "The Law and Practice of Meetings" by Shackleton. The learned author says:

In the case of an equality of votes, a motion is defeated, and in order to maintain his impartiality, a Chairman may feel it unwise to exercise his right to use a casting vote. Should, however, be decide to vote in favour of the motion, it would be carried. But it is only in cases of great emergency that effect is given to a proposal against so large a number of dissentients. The Chairman has no casting vote at common law ...... The right, therefore, to have a casting vote is derivable from statute or the regulations of the body concerned.

Similar comments by Crew on "The Conduct of and Procedure at Public Company and Local Government meetings" have been referred to.

It seems to me that that the contention of the Learned Counsel in this regard cannot be accepted. It is not denied that even the choice of an applicant to particular office is made the subject matter of voting at a meeting of the Council. In effect, there is a resolution before the Council whether A or B is to be Chosen and the members of the Council proceed to vote thereon. Mr. Raman suggests that the procedure partakes of the nature of an election and not of a meeting. I am not inclined to agree. This is a part of the business of the Council enjoined upon it by the regulations and what the Council does is to hold an ordinary meeting as part of its normal activities. It cannot be disputed that Sch. II will govern such a proceeding. The right to a casting vote is given by Sch. II and Rule 8 in the Schedule is mandatory in that in the case of equality of votes, the Mayor is enjoined to exercise his casting vote. Can the right of the Mayor and the duty cast upon him by this rule be taken away by a regulation framed by the Council itself? S. 31 clearly empowers the Council to make regulations, but such regulations cannot be inconsistent with the other provisions of the Act which would include the Schedule. The right to a casting vote and the duty to exercise a casting vote in the case of an equality of votes cannot therefore be affected by any regulation. Indeed, reading of Regulations 109, 124 and 150 together, I am of opinion that the plea that the Mayor has no casting vote in the matter of appointments cannot be accepted.

The contention that the casting vote was exercised mala fide is one which I am unable to understand. If the matter of an appointment of a person is left to the vote of the members of the Council, each member favours one or the other candidate and quite possibly the matter proceeds on party lines. Even assuming that the Mayor exercised his casting vote on considerations of party politics, I am totally unable to see how that can serve to show that the power was exercised mala fide. Mr. Raman, Learned Counsel, argues that in the initial selection of the candidates by the Commissioner, the first respondent was placed last, while the petitioner had a higher place in the ranking given by the Commissioner. But the Commissioner''s initial elimination is not the determining factor. In the view of the Commissioner, of two candidates A and B, one may be wholly unfit to hold the office. But, when the matter comes before the Council for being voted upon, the choice may well fall upon the person whom the Commissioner considered to be unfit. That the Mayor exercised his casting vote in favour of a person whom the Commissioner did not consider to be possessed of higher merit does not therefore advance the argument in this regard. In fact, in a matter of this kind, there seems to be no room whatsoever for a challenge on the ground of mala fides.

It is unnecessary to decide whether the office in question is a public office. In fact, there is no material upon which the question can be effectively decided. It follows that both the petitions fail. They are dismissed. In the peculiar circumstances of the case, there will be no order as to costs.