1. This petition by a Councillor of the Corporation of Madras is for prohibiting the Mayor and the Commissioner of the Corporation from co-opting Councillors belonging to the Scheduled Castes for Circles II, V and VIII, pursuant to the Mayor's notice , dated 30th May, 1962. The notice stated that the Council will be convened for nth June, 1962, for such co-option of Councillors. The petitioner's objections to the proposed co-option were fourfold, two of which do not arise in view of subsequent amendments of the Rules. The two points which survive for decisionare : (1) the nominee from the Scheduled Castes should belong to the Circle for which he is nominated for co-option as a Councillor and (2) the form of the foils counter-foil and ballot paper prescribed by Rule 7 of the City Municipal Corporation Co-option of Councillors Rules offends the rule of secrecy.
2. Regarding the first point, Section 5(2) of Madras Act LVI of 1961 reads:
If no person belonging to a Scheduled Caste is elected as a Councillor from any of the divisions in a circle, then, the elected members of the Council shall, in accordance with rules to be made in this behalf by the State Government co-opt to the Council as its Councillor for such circle a person belonging to a Scheduled Caste and eligible for being elected as a Councillor from any one of the Divisions of such circle.
According to the petitioner the intention of this Sub-section is that unlike a candidate for election, a candidate for co-option should belong to one or other of the divisions of the Circle for which he is intended to be co-opted. A reading of the Sub-section is enough, in my opinion, to repel this contention. The Sub-section clearly states that the person nominated for co-option should satisfy the test of his eligibility for being elected as a Councillor from any one of the Divisions of a Circle. The words 'such circle 'in the Sub-section do not mean in the context that the candidate for co-option should belong tb the very circle. AIL that the concluding words of the Sub-section indicate is that if the person nominated for co-option is entitled to be elected from a particular circle that will suffice. This point is, therefore, rejected.
3. The second point argued is in relation to Rule 7. The form prescribed by that rule is as under:
Counterfoil No. Circle,Co-option as a Councillor to the Council for... Circle.Serial No. of clector.Foil No. ...CircleCo-option as a Councillor to the Council for... Circle.Ballot Paper.Names of candidates. Cross-mark.1.2.3.
What is argued is that since the counter-foil shows the Scrial Number of the particular elector and as the Officer who issues the foil and ballot paper, may possibly be attending the counting, he may, remembering the counter-foil number and the serial number of the elector, be in a position to identify from the ballot paper the person for whom the particular voter had voted. In that way, according to the petitioner, the rule directing secrecy of the ballot is infringed. Balakrishna Ayyar, J., in W.P. No. 370 of 1959 considered the very point and overruled the same. The learned Judge pointed out that while secrecy should, of course, be maintained, it is not secrecy in, an absolute sense, impenetrable under any circumstances. With due respect, I find myself in agreement with these observations of the learned Judge. Normally from the ballot paper itself it would not be possible to identify the voter with the vote he exercised for a particular candidate. The ballot paper does not contain the Serial Number of the elector. That number no doubt finds a place in the counter-foil. But the counter-foil is not a document which is available for inspection by a member of the public . It can be looked into only after opening the seal and on directions given under the relative rules, I do not, therefore, think that there is any infringement of the rule as to secrecy of the ballot paper by adopting the form prescribed by Rule 7.
4. But it is stated on behalf of the petitioner that if the Mayor or other Officer, who-issued the foil and who possibly may remember the corresponding counter-foil number and the Serial Number of the elector therein entered, will, if he attends the counting, be in a positior to identify the vote. I am, however, told bySri T. Chengalvaroyan that according to the practice prevailing, the Mayor who usually issues the foil and the ballot paper will not himself attend the counting, but he chooses two of the Councillors for the purpose. This is undoubtedly a wholesome practice which deserves to be maintained.
5. The petition fails and is dismissed. No costs.