B. Mayuri and ors. Vs. Govt. of India Rep. by Secy. to Govt. and ors. - Court Judgment

Excerpt:
- section 94 :[d.k. jain & r.m. lodha, jj] secrecy of ballot object held, the underlying object of section 94 is to assure a voter that he would not be compelled, directly or indirectly, by any authority to disclose as to for whom he has voted, so that he may vote without fear or favour and is free from any apprehension of its disclosure against his will from his own lips. the section confers a privilege on the voter to protect him both in the court when he is styled as a witness and outside the court when he may be questioned about how he voted. this precisely is the principle of secrecy of ballot. the secrecy of ballot has always been the hallmark of the concept of free and fair election, so very essential in the democratic principles adopted by our polity. it undoubtedly is an indispensable adjunct of free and air elections. but, out of the two competing principles, the purity of election principle must have its way and that the rule of secrecy, as contemplated in section 94 cannot be pressed into service to suppress a wrong coming to light and to protect a fraud on the election process. sections 94 & 100 & conduct of election rules, 1961, rules 93 & 94: [d.k. jain & r.m. lodha, jj] inspection of election papers allegation as to casting of votes by impersonation - petition giving details of voters not available in constituency on date of polling and voters who could not have voted - the election petition was filed mainly on the ground that the elected candidate was the beneficiary of a large number of void votes cast in her favour by impersonation. the petition gave details of the votes cast by impersonation on behalf of persons who were not available in constituency on date of election, on behalf of persons already dead and on behalf of persons who were in jail or were abroad on date of polling. the election petitioner has specifically mentioned the names of the persons who had been impersonated or had double voted. evidence recorded on behalf of the election petitioner was in consonance with the pleadings. the court in circumstance could order opening of sealed marked electoral rolls as the ultimate truth in respect of clear allegations levelled by the election petitioner can only be arrived at on the basis of the marked electoral rolls. moreover, from a marked electoral rolls, it is only possible to ascertain whether or not a vote had been cast in the name of a voter from a particular polling booth but it is never possible to decipher there from as to who is the beneficiary of the said vote as there is no indication on the electoral roll showing for whom the voter had cast his vote. the production of marked electoral rolls does not impair the secrecy of ballot principle. it is true that as per rule 93 that the inspection of the documents mentioned in rule 93(1) cannot be allowed as a matter of course and a prayer for inspection must be refused by the court if it is satisfied that in the garb of inspection, a defeated candidate is indulging in a roving enquiry in order to fish out materials for getting the election set aside. nevertheless, if precise allegations of material facts are available on record and the court is satisfied that inspection of the documents is necessary to determine the issue arising for the decision in the case as also in the interest of justice, then the court must exercise its power under the said rule to allow inspection.order1. leave granted.heard both sides.2. these appeals have been filed by the various colleges where the studies for indian system of medicine of homeopathy etc. are being imparted. some of the appeals have been filed by the students and some are filed by the association of colleges where this course of studies is pursued. the students were admitted in these colleges for the academic years 2004-05 and 2005-06. in the state of tamil nadu, a notification was issued by the health and family welfare department to the effect that the students who join in these professional colleges should obtain (a) a minimum of 60% marks in biology, botany and zoology taken together and (b) a minimum of 60% marks in each of the subjects of physics and chemistry and an aggregate of the percentage of marks in (a) and (b) should not be less than 140 out of 200 marks. likewise, the state government prescribed minimum marks for various categories such as open competition, b.c., m.b.c., s.c./s.t. etc. for the year 2004-05, a notification was issued in the month of october, but by that time admissions are over. as regards 2005-06, about 75 students had been admitted, who did not have this requisite percentage of marks. we are told that these students have also now completed their admission. learned counsel appearing for the petitioners has submitted that, as per the central council of india medicine (minimum standards of education in indian medicine) regulations, 1986, minimum marks prescribed is 50%, as against 60% marks notified by the health and family welfare department of the state government. of course, the state can prescribe high percentage of marks for admission to the courses for various colleges in the state. but these courses are not much sought after by the students and sometimes there is difficulty in getting sufficient number of students for these courses as most of the students either join in engineering or medical courses. as regards the students of 2004-05, notification was issued belatedly. but we do not think that this notification should be made applicable to such students.3. for the students of 2005-06, only 25 students were not strictly qualified as per the notification. but they have also secured more than 50% of the marks as stipulated in the central government notification and we are told that they have already completed their courses. we do not think that they should be disqualified at this stage. accordingly, we hold that these students should also declared to be qualified to join for the courses they had opted. in the circumstances, these appeals are disposed of with the direction that the students shall be treated as qualified to join the courses. no costs.

Judgment:
ORDER

1. Leave granted.

Heard both sides.

2. These appeals have been filed by the various colleges where the studies for Indian system of medicine of homeopathy etc. are being imparted. Some of the appeals have been filed by the students and some are filed by the Association of Colleges where this course of studies is pursued. The students were admitted in these colleges for the academic years 2004-05 and 2005-06. In the State of Tamil Nadu, a Notification was issued by the Health and Family Welfare Department to the effect that the students who join in these professional colleges should obtain (a) a minimum of 60% marks in Biology, Botany and Zoology taken together and (b) a minimum of 60% marks in each of the subjects of Physics and Chemistry and an aggregate of the percentage of marks in (a) and (b) should not be less than 140 out of 200 marks. Likewise, the State Government prescribed minimum marks for various categories such as open competition, B.C., M.B.C., S.C./S.T. Etc. For the year 2004-05, a Notification was issued in the month of October, but by that time admissions are over. As regards 2005-06, about 75 students had been admitted, who did not have this requisite percentage of marks. We are told that these students have also now completed their admission. Learned Counsel appearing for the petitioners has submitted that, as per the Central Council of India Medicine (Minimum Standards of Education in Indian Medicine) Regulations, 1986, minimum marks prescribed is 50%, as against 60% marks notified by the Health and Family Welfare Department of the State Government. Of course, the State can prescribe high percentage of marks for admission to the courses for various colleges in the State. But these courses are not much sought after by the students and sometimes there is difficulty in getting sufficient number of students for these courses as most of the students either join in Engineering or medical courses. As regards the students of 2004-05, Notification was issued belatedly. But we do not think that this Notification should be made applicable to such students.

3. For the students of 2005-06, only 25 students were not strictly qualified as per the Notification. But they have also secured more than 50% of the marks as stipulated in the Central Government Notification and we are told that they have already completed their courses. We do not think that they should be disqualified at this stage. Accordingly, we hold that these students should also declared to be qualified to join for the courses they had opted. In the circumstances, these appeals are disposed of with the direction that the students shall be treated as qualified to join the courses. No costs.