S.S.SODHI, J. - (1.) The controversy here is with regard to the elections to the Bar Council of Uttar Pradesh and it arises in the context of the appointment of a candidate as Judge of the High Court while the process of counting was going on.
(2.) To give the relevant factual background, after the programme for the elections to the Bar Council of Uttar Pradesh had been announced, nominations invited and finalised, polling for the elections took place from October 3 to October 8, 1993. In the first instance, Justice B.D. Agarwal, a retired Judge of this Court, was appointed Returning Officer for this poll. Counting of votes was commenced by him but before it could be completed he fell ill and resigned on 1/01/1994. By that time some candidates had already been eliminated.
(3.) On 9/01/1994, the Bar Council of Uttar Pradesh appointed Justice M.P. Mehrotra, another retired Judge of this Court as the Returning Officer for this election. 1/02/1994, was thereafter fixed for restraining the counting of votes. As it happened, it was on that very day, that is, 1/02/1994, that one of the candidates Sri Raja Ram Yadav was appointed Judge of the High Court. The point in issue that now arises is whether on account of his appointment as Judge of the High Court he is to be treated as an eliminated candidate and the votes casttin his favour consequently to be counted in accordance with the Rules for the remaining candidates or he continues as a "continuing candidate".;