UNIVERSITY OF POONA & ORS. versus SHANKAR NARHAR AGESHE & ORS.

Citation: [1971] SUPP. 1 S.C.R. 597 · Decided: 30-04-1971 · Supreme Court of India · Bench: J.M. SHELAT · Disposal: Appeal(s) allowed

Judgment (excerpt)

UNIVERSITY OF POONA & ORS. 
v. 
SHANKAR NARHAR AGESHE & ORS. 
Apri~ 30, 1971 
[J. l\t. SHELAT,A. N. RAY AND V. BHARGAVA, JJ.] 
Election-System of proportional representation by single transferable 
vote by ballot-Equality of votes in second count-Exclusion of candidate 
by reference to votes on firsi count-Propriety. 
Affiliation of Colleges to University-Delay In publication of notifica-
tion-Effect on voting rights. 
Under s. II 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 o·f them securing an equal number of votes on the second count. 
and the candidate who bad 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 proportion-
al representation by means of a single transferable vote by ballot, that 
where for one vacancy there are three candidates and one of them is ex-
cluded 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 dte 
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 ap-
plication 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 vote~ on the original count is based on reason 
and legislative principles. 
The principles of exclusion are not to be found in any statutory enact-
ment in the present case. On the other hand there is the support Of legis-
lative measures embodying the principle of exclusion by reference to origi-
nal count [6050, H; 606A-C] 
(a) Rule 75(4) of the Conduct of Election Rules indicates that wht-n 
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 
597 
A 
B 
c 
D 
E 
F 
G 
H 
598 
A 
B 
c 
D 
E 
SUPRBME cou,... 
[1971] SUPP. s.c.R. 
votes are recorded shall be excluded. 
The rule applf..: · ·;. :i_en there are 
tv;o or more candidates and not only when there are more than two can-
didates. The words 'stand lowest on the poll' qualify 'two or more candi-
dates \vho have been credited with the same value'. The High Court over-
looked 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 fiU 
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 Univer-
sity Act, though it does not in terms apply to the election of a Vic~-Chan­
cellor, also embody this prjnciple. [603B] 
(c) The High Court's reliance on r. 81(13) of the Conduct of Elec· 
tion Rule, 1961, in support of the conclusion that the only system of exclu-
sion in a case of the present type should be by lot is erroneous. Tlie prin-
ciple in r. 81(3) 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

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