Appeal No 3719 of 1991
From the Judgment and Order dated 391991 of the Andhra Pradesh High Court in Election Petition No 22 of 1990
PP Rao D Prakash Reddy and AVV Nair for the Appellant
C Sitaramaiah B Rajeshwar Rao Vimal Dave Mrs Rani Chhabra NP for the Respondent
The Judgment of the Court was delivered by BHARUCHA J
This is an appeal under the provisions of the Representation of the People Act 1951 against the judgment and order of the High Court of Andhra Pradesh whereby the election of the appellant before us to the Andhra Pradesh Legislative Assembly from the Tanuku Assembly constituency was declared void and set aside in view of the finding that he had committed the corrupt practice proscribed by section 1233 of the Act
Section 1233 inter alia states that the appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion  or the use of or appeal to 348 religious symbols for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any other candidate is a corrupt practice
The respondent a candidate of the Telugu Desam Party secured the largest number of votes at the said election which was held on 22nd November 1989
The High Court found that during the election campaign posters depicting NT Rama Rao the leader of the Telugu Desam Party in the role of Lord Krishna blowing a conch shell had been used
The offending poster bore at the top a sloka  from the Bhagavad Gita which said roughly translated that the Lord would be born upon this earth in age after age to establish dharma or righteouness
At its bottom the offending poster stated that the deceitful Congress which had sold out the country should be defeated
It was the contention of the election petitioner before the High Court who was a voter in the Constituency that the offending posters had been exhibited by or at the behest of the successful candidate
It was held by the High Court that it had no doubt that the offending poster was a religious symbol its implication being that NT Rama Rao who was an incarnation of Lord Krishna exhorted voters to defeat the deceitful Congress
The High Court went on to consider whether the offending posters had been affixed by the successful candidate or his election agent or by any person with the consent of the successful candidate or his election agent
It came to the conclusion that it was clear from the evidence that the respondent or his agent or other persons with his consent have used religious symbol for the furtherance of the prospects of the respondent or for prejudicially affecting the election of the Congress I candidate 
Accordingly the corrupt practice under section 1233 was found to have been established
The High Court did not accept the case of the election petitioner in regard to the other corrupt practices that had been alleged
Upon the basis of the finding in regard to the corrupt practice under section 1233 the High Court allowed the election petition declared the election of the successful candidate to be void and set it aside
As aforestated the successful candidate is in appeal
The election petition alleged that the respondent herein  and with his consent and connivance his followers supporters and his party men and election agent had resorted to large scale display of wall posters and paintings on the walls of the picture of Lord Krishna
The offending 349 posters which were described had been pasted on walls at important places in all villages and towns throughout the Constituency and also on the sides of vans and vehicles used for canvassing
The election petition stated that particulars of some of the instances where inter alia the offending posters were exhibited were given in Schedule A thereto
Schedule A gave various addresses whereat the offending posters had been pasted
Photographs would it was stated be produced in support of the allegation and four witnesses would depose thereto namely Penicherla Rama Krishna Raju Dukka Suri Appa Rao Allabani Venkanna Venni Subba Rao
The schedule also referred to oil painting and posters on the publicity vans at three locations which would be established by photographs and by leading the evidence of Bollina Satvanarayana and Kudapa Akkanna
In his written statement the successful candidate denied the allegations afore stated
The election petitioner filed documents along with the election petition which included the affidavits of the four first named persons
The affidavit of Dukkasuri Appa Rao is representative of the three affidavits of those who are alleged to have pasted the offending posters
The fourth affidavit is of the photographer
The affidavit of Dukkasuri Appa Rao stated that the successful candidate had assigned to him the work of pasting wall posters and he had been paid Rs 25 per day
Among these wall posters there were a few photos showing Sri NT Rama Rao in the disguise of Lord Krishna Playing shanku 
The election petitioner examined Dukkasuri Appa Rao and Venne Subba Rao before the High Court
He did not examine the third person who was alleged to have pasted the wall posters at the addresses mentioned in Schedule A to the petition
The examination in chief of Dukkasuri Appa Rao and Venne Subba Rao is almost identical
The cross examination of the former is more extensive
It is therefore that we refer to his evidence
Dukkasuri Appa Rao deposed that he was a labourer in Tanuku
He and two others had pasted wall posters on behalf of the successful candidate
They had affixed wall posters and door posters
The posters had been given to them about 15 days prior to the election when they had gone to the Telugu Desam Party election office
The successful candidate his election agent and some others were present there
The successful candidate had 350 engaged Dukkasuri Appa Rao and two others to affix the posters on wages of Rs 25 per head
They were given about 1500 wall posters and 5000 door posters
The wall posters depicted NT Rama Rao in the role of Lord Krishna
The wages had been paid daily
Dukkasuri Appa Rao had retained with himself one poster because he had liked it and he had given it to the election petitioner about three months before the date of his deposition
In cross examination Dukkasuri Appa Rao stated that he also did agricultural work
He was not a member of the Telugu Desam Party
He had not been called to the election office of that party either before or after the election
while he had been working near a coffee hotel somebody whose name he did not know had come and called him to the Telugu Desam Party office
The election petitioner had asked him in the Congress Party office whether he had any election posters
He had replied that he had one and gave it to the election petitioner
It was similar to the poster at exhibit A 2 the offending poster
His affidavit had been taken by the election petitioner at Tanuku
After having made that affidavit the election petitioner had asked for the poster and he had given it to him
It must be stated here that no evidence was led by the election petitioner to show that the offending posters had been got printed by or on behalf of the successful candidate
Learned counsel for the election petitioner drew our attention to the cross examination of the successful candidate wherein it had been stated that he had incurred the expenditure of Rs 4000 upon writing wall posters painting and other publicity and had also paid Rs 8000 to a printer
These statements however were not followed up in further cross examination
There is therefore no evidence to show that the offending posters were printed by or on behalf of the successful candidate
There is no doubt in our mind that the offending poster is a religious symbol
The depiction of anyone be it NT Rama Rao or any other person in the attire of Lord Krishna blowing a shanku  and quoting the words from the Bhagavad Gita addressed by Lord Krishna to Arjuna that his incarnation would be born upon the earth in age after age to restore dharma is not only to a Hindu by religion but to every Indian symbolic of the Hindu religion
The use by a candidate of such a symbol coupled with the printing upon it of words derogatory of a rival political party must lead to the conclusion that the religious symbol was used with a view to prejudicially affect the election of the candidate of the rival political party
351 The question therefore is  is it established upon the record that the offending poster was used at the election by the successful candidate or his agent or by any other person with the consent of the successful candidate or his election agent
As has been stated there is no evidence to show that the offending poster was printed by or at the behest of the successful candidate
The successful candidate himself in his evidence denied that he had had the offending posters printed or pasted
The evidence of Dukkasuri Appa Rao and Venne Subba Rao is in our view not satisfactory
In the first place the averment in the election petition was that the offending posters had been pasted by the respondent herein who is a Telugu Desam party candidate and with his consent and connivance his followers supporters and his party men and election agent 
Both Dukkasuri Appa Rao and Venne Subba Rao stated in the witness box that they were not members of the Telugu Desam Party
They were called to the Telugu Desam Party election office for the first time on the day on which they were engaged for a daily wage to paste the wall posters
The averment in the election petition that the offending posters were pasted by followers supporters and party men of the successful candidate is therefore not established
If the evidence of Dukkasuri Appa Rao and Venne Subba Rao was true the election petition would have stated that the successful candidate and his election agent had engaged Dukkasuri Appa Rao and Venne Subba Rao on daily wages to affix the offending posters
Secondly the offending posters were not put to Dukkasuri Appa Rao and Venne Subba Rao in examination in chief and were not identified by them as being the posters that they had pasted
Thirdly neither of these two witnesses identified the places at which they had pasted the offending posters
It was not stated by them that they had pasted the posters at any of the addresses in Tanuku mentioned in Schedule A to the election petition
The evidence of Dukkasuri Appa Rao is suspect also because he claimed to have retained one offending poster which he gave to the petitioner this is not borne out by the election petition or the affidavit made by him
The standard of proof in an election petition is rigorous having regard to the quasi criminal nature of the proceeding
We are not satisfied that upon the evidence before us the charge laid against the successful candidate under section 1233 has been established
Learned counsel on behalf of the election petitioner drew our atten 352 tion to the statements made by the successful candidate s election agent in regard to a van used for canvassing
He stated that the van toured the Constituency
There were photographs of NT Rama Rao in his various film roles exhibited in the van
He said that exhibit A 13 was a photograph which showed that a poster showing NT Rama Rao in the role of Krishna blowing a conch was affixed to publicity van but I have no personal knowledge about it
The statement that the election agent had no personal knowledge in this behalf was not probed in further cross examination
It is also not established that the poster shown by the photograph exhibit A 13 was what we have called the offending poster in that it not only showed NT Rama Rao in the role of Lord Krishna blowing a conch but also contained the afore mentioned sloka  from the Bhagavad Gita and the statement that the Congress was a deceitful party which should be defeated
So far as we can ascertain from the judgment under appeal the offending posters were produced only at exhibits A 2 and A 18
The evidence upon the record does not to our mind establish that the offending posters were used at the election by the successful candidate or his election agent or with their consent
Having regard to our finding that the charge of corrupt practice under section 1233 has not been established we do not find it necessary to consider the argument that the election petition did not plead all necessary material facts and did not give all necessary particulars so that the election petition was liable to be dismissed in limine
In the result the appeal is allowed and the election petition is dismissed
The respondent shall pay to the appellant costs quantified at Rs 10000
GN Appeal allowed


Summary:
The appellant State by resolution dated 1071972 trifurcated the services in the Electrical Engineering Branch of the Public Works Department into three cadres namely 1 Junior Engineers 2 Supervisors and 3 Over seers wef 151972
At the relevant time there was only one Overseer and he stood retired
Therefore In substance it was a bifurcation between Junior Engineers and Supervisors the former being graduates and the latter being diploma holders
In a writ petition before the High Court exercise of the State was challenged
The High Court directed the State to provide for a criterion for promotion from the three independent cadres for working out the trifurcation
In compliance of the order of the High Court the appellant adopted a Resolution dated 2691975 introducing a quota rule effective from May 1 1972 at the ratio of 21 for Junior Engineers and Supervisors respectively for promotion to the posts of Deputy Engineers
The respondents challenged the trifurcation and also the quota rule in a writ petition before the High Court
384 The High Court struck down the ratio of 21 holding it to be unjustified as also the disparity in qualifying service from both the channels
Hence this appeal by special leave by the State being aggrieved against a mandamus issued by the High Court not to impose the ratio of 21 while working out the quota rule
As the appellant was unsuccessful in obtaining a stay of operation of the High Court s judgment it had to obey the mandate of the High Court and the ratio of 21 could not be enforced
This Court on 18121980 ordered the Government to frame a fresh quota rule consistent with the High Court judgment for the purpose of making promotions during the pendency of the appeal and under Article 309 of the Constitution a Rule was framed
Earlier the appellant had framed the Deputy Engineer Electrical Recruitment Rules 1978 under Article 309 of the Constitution which were not brought to the notice of the High Court nor the Rules 1978 were challenged
Allowing this appeal this Court HELD101
The matter in the High Court proceeded on the as sumption that an executive action of the State was under challenge
The necessary assumptions and presumptions well known to law and the placement of onuses went unnoticed
In this background and facing the situation so arising the State Government issued a Notification on April 12 1982 by causing a substitution in the earlier Rules of 1978 by fixing the promotional ratio from both sources at 11 but subjected them to the result of the instant litigation emerging from this Court
387D E 102
The High Court judgment is silent as to the basis on which it was persuaded to strike down the ratio of 21 for Junior Engineers and Supervisors respectively
The tenor of the judgment of the High Court does however suggest that the executive flexibility with which the Government works could not justify the fixation of the ratio of 21
The High Court could not and did not substitute what was the right ratio in the circumstances and left it to the Government to devise another ratio
Had the factum of the legislation on the subject ie the Rules dated 471978 been brought to its notice perhaps the High Court s angle of vision would have been different 387F G 385 103
The State has no doubt compulsively carried out the mandate but has done so with reservation so as to meet the eventuality
No such measure can ever be permanent that would hold good for all times to meet not only the present needs but also future exigencies as well
Hands of the State cannot be so tied down Mat would be a step retrograde to the growth and working of a democracy
387H 388A 104
It was on the Writ petitioner s now respondents to lay data before the High Court and bear the onus to show that the legislative measure was unfair and arbitrary violative of Article 14 of the Constitution
No such data appears to have been placed before the High Court
388B 105
On these circumstances the case is remanded to the High Court for reconsideration
388C Roop Chand Adlakha  Om vs Delhi Development Authority  Ors 1989 Supp I SCC 116 referred to
388D