# Shiv Murat v. State Of U.P. & Ors

- **Citation:** (2016) 4 ILRA 720
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-04-01
- **Bench:** Amreshwar Pratap Sahi, Attau Rahman Masoodi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-murat-v-state-of-u-p-ors-43680
- **Pages:** 7

## Headnote

Election Law- Challenge to election - Forged and manipulated caste records - Manipulation in revenue
records - Insertion of word "Sarvari" in different ink - Caste certificate issued by competent authority - Caste
certificate not cancelled - Inquiry pending before District Level Screening Committee - Premature to delve
into caste issue - Presumption cannot be a substitute for proof - Issues can be raised in an election petition -
District Magistrate to proceed with inquiry.

Thus, at this stage it would be premature and not appropriate to delve into the issue of the caste certificate
which is already engaging the attention of District Level Screening Committee through the District Magistrate
as its Chairman. The issue can also be gone into by the Collector in appropriate proceedings if a challenge is
raised to any such entry under the revenue law for the time being in force. Apart from this these issues can
be raised in an election petition.
. (Paras 10-12)

Held: (Para 13-15) Consequently for all the aforesaid reasons we are not inclined to investigate or to enter
into an inquiry on the genuineness or otherwise of the revenue entries which have been made the basis of
allegations in relation to the caste of respondent no. 4. The caste certificate having been issued independently
under the separate rule, can only be annulled in accordance with the procedure prescribed and / or under the
procedure as already set into motion. It will not be possible for us to presume and simultaneously assume
that the entries are fake in the revenue records which would yet require another inquiry as it is alleged that
the word 'Sarvari' has been entered in the revenue record in a different ink. Presumption cannot be a
substitute for proof. The production of the original revenue record and any evidence in relation to the same
would have to be investigated by the competent authority in order to ascertain the correctness or otherwise of
such an allegation. It is only thereafter that the same can be made a ground to raise a challenge if it is
established that any fraud or manipulation was committed to which the respondent no. 4 was a party for
obtaining any benefit in relation to her caste and resulting in issuance of the caste certificate. In view of what
has been stated above, we do not find it necessary to entertain the petition at this stage leaving it open to the
District Magistrate to proceed with the inquiry relating to the issuance of the caste certificate or also the
revenue entries as alleged by the petitioner and then pass appropriate orders in accordance with law as
expeditiously as possible preferably within two months. It would thereafter be open to the aggrieved person
to approach the appropriate forum for contesting the status of the election of the respondent no. 4 as a
Member of the Kshetra Panchayat concerned in accordance with law. The writ petition is disposed of with
the above observations.

Case Law discussed: (Para 7)

## Text

720 INDIAN LAW REPORTS ALLAHABAD SERIES
"It is the duty of the court to see that appropriate sentence is imposed regard
being had to the commission of the crime and its impact on the social order. The cry of the
collective for justice, which includes adequate punishment cannot be lightly ignored."

28. In Gopal Singh vs. State of Uttarakhand, JT 2013 (3) SC 444 held as under:-

"18. Just punishment is the collective cry of the society. While the collective cry
has to be kept uppermost in the mind, simultaneously the principle of proportionality
between the crime and punishment cannot be totally brushed aside. The principle of just
punishment is the bedrock of sentencing in respect of a criminal offence....."

29. Learned counsel for the appellant has also submitted that the accused-appellant had undergone
substantial part of the sentence and only three months remained.

30. In the facts and circumstances of the case, I think the end of justice would be met if the sentence
of four years of the accused under sections 376/511 IPC is reduced to the period already undergone, i.e. three
years and nine months.

31. In view of the above, the appeal is partly allowed. The conviction of the appellant under sections
376/511 IPC is confirmed and the sentence of four years imprisonment is reduced to the period already
undergone, i.e. three years and nine months.

32. The appellant is in jail. He shall be set at liberty forthwith unless wanted in any other case.

33. However, the appellant is directed to deposit the fine awarded by the lower court within two
months from the date of release.

34. Let certified copy of this judgement be sent to the court concerned immediately for requisite
compliance.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.04.2016

BEFORE

THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE ATTAU RAHMAN MASOODI, J.

Misc. Bench No.- 5548 Of 2016

Shiv Murat ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents
4 All. Shiv Murat Vs State Of U.P. & Ors.

721
Counsel for the Petitioner:
Laltaprasad Misra, Prafulla Tiwari

Counsel for the Respondents:
C.S.C, Aprajita Bansal

Election Law- Challenge to election - Forged and manipulated caste records - Manipulation in revenue
records - Insertion of word "Sarvari" in different ink - Caste certificate issued by competent authority - Caste
certificate not cancelled - Inquiry pending before District Level Screening Committee - Premature to delve
into caste issue - Presumption cannot be a substitute for proof - Issues can be raised in an election petition -
District Magistrate to proceed with inquiry.

Thus, at this stage it would be premature and not appropriate to delve into the issue of the caste certificate
which is already engaging the attention of District Level Screening Committee through the District Magistrate
as its Chairman. The issue can also be gone into by the Collector in appropriate proceedings if a challenge is
raised to any such entry under the revenue law for the time being in force. Apart from this these issues can
be raised in an election petition.
. (Paras 10-12)

Held: (Para 13-15) Consequently for all the aforesaid reasons we are not inclined to investigate or to enter
into an inquiry on the genuineness or otherwise of the revenue entries which have been made the basis of
allegations in relation to the caste of respondent no. 4. The caste certificate having been issued independently
under the separate rule, can only be annulled in accordance with the procedure prescribed and / or under the
procedure as already set into motion. It will not be possible for us to presume and simultaneously assume
that the entries are fake in the revenue records which would yet require another inquiry as it is alleged that
the word 'Sarvari' has been entered in the revenue record in a different ink. Presumption cannot be a
substitute for proof. The production of the original revenue record and any evidence in relation to the same
would have to be investigated by the competent authority in order to ascertain the correctness or otherwise of
such an allegation. It is only thereafter that the same can be made a ground to raise a challenge if it is
established that any fraud or manipulation was committed to which the respondent no. 4 was a party for
obtaining any benefit in relation to her caste and resulting in issuance of the caste certificate. In view of what
has been stated above, we do not find it necessary to entertain the petition at this stage leaving it open to the
District Magistrate to proceed with the inquiry relating to the issuance of the caste certificate or also the
revenue entries as alleged by the petitioner and then pass appropriate orders in accordance with law as
expeditiously as possible preferably within two months. It would thereafter be open to the aggrieved person
to approach the appropriate forum for contesting the status of the election of the respondent no. 4 as a
Member of the Kshetra Panchayat concerned in accordance with law. The writ petition is disposed of with
the above observations.

Case Law discussed: (Para 7)

1. K. Venkatachalam vs. A. Swamickan and another, (1994) 4 SCC 526, Paras 26-28.
2. Harnek Singh vs. Charanjit Singh and others, (2005) 8 SCC 383, Para 16.
3. Manda Jaganath vs. K.S. Rathnam and others, (2004) 7 SCC 492, Paras 16,17 and 18.
4. Lakshmi Charan Sen and others vs. A.K.M. Hasan Uzzaman and others, (1985) 4 SCC 689, Paras
26 and 30.
5. Suresh Jaiswal vs. State of U.P. and another, Writ-C No. 53941 of 2015, Paras 7-21.
6. Kamla Devi vs. State of U.P. and others, Civil Misc. Writ Petition No. 41077 of 2014.
7. Angad Yadava vs. Election Commission of India, through Chief Election Commissioner New
Delhi and others, 2007 (66) ALR 354, Paras 4 and 5.
722 INDIAN LAW REPORTS ALLAHABAD SERIES
8. Lal Chandra vs. State of Haryana and others, AIR 1999 (P&H) 1, Paras 35 and 36.
9. Smt. Sk. Khasim Bee vs. State Election Commissioner and others, AIR 1996 (A.P.) 324, Paras 14
and 19.
10. Chand Prasad and others vs. State of Bihar and others, AIR 2002 Patna 17, Para 26.
11. A.V. Papayya Sastry and others vs. Govt. of A.P. and others, (2007) 4 SCC 221, Paras 20-31, 33,
39 and 46.
12. Meghmala and others vs. G. Narasimha Reddy and others, (2010) 8 SCC 383, Paras 28-37.
13. Bhaurao Dagdu Paralkar vs. State of Maharashtra and others, (2005) 7 SCC 605, Paras 9-16.

(Delivered by Hon'ble Amreshwar Pratap Sahi, J.
&
Hon'ble Attau Rahman Masoodi, J.)

1. The petitioner has challenged the elections of the respondent no. 4 Smt. Wahida Begum as a
Member of the Kshetra Panchayat, thereby also questioning the election process for the office of
Pramukh of Laxmanpur, Tehsil Lalganj, District Pratapgarh on the ground that the respondent no. 4
has succeeded in getting herself elected as Member on the basis of forged and manipulated records
relating to her caste.

2. Dr. L.P. Misra learned counsel for the petitioner submits that the manipulation in relation to
the caste of the respondent no. 4 in a fraudulent manner is self-evident and, therefore, this Court
should call for a response and issue a mandamus as prayed for declaring the elections of respondent
no. 4 a nullity.

3. The writ petition has not been framed as a writ of quo-warranto and does not pray for any
certiorari. A preliminary objection has been raised by the respondents to the maintainability of the
writ on the ground that the petitioner has the remedy of filing an election petition and, therefore,
this writ in the manner as framed is not maintainable and deserves to be rejected. This preliminary
objection has been taken by the learned counsel for the respondent no. 4 Sri Raghvendra Singh,
Senior Advocate assisted by Sri Padam Kant Misra, as well as by the learned counsel for the State
Election Commission Ms. Aprajita Bansal. A similar objection has been taken by the learned
Standing Counsel on behalf of the State as well.

4. Sri Misra has vehemently urged that the respondent no. 4 does not belong to the backward
caste at all inasmuch as she is a 'Sheikh' and does not belong to the backward castes of 'Sheikh
Sarvari (Pirai)' which is one of the backward caste mentioned in the schedule of the Uttar Pradesh
Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes)
(Amendment) Act, 2002. Sri Misra submits that several castes including 'Sheikh' were shown as
other backward classes within the meaning of Section 2(b) of Uttar Pradesh Public Services
(Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994. This
was amended and the schedule to the Principal Act was substituted whereafter only 'Sheikh Sarvari
(Pirai)' is scheduled as a backward class.
4 All. Shiv Murat Vs State Of U.P. & Ors.

723

5. The allegation against the 4th respondent made is that a manipulation has been made in the
revenue records and the insertion of the word 'Sarvari' has been made fraudulently in a different ink
which is recorded in the remarks column in the said records. Sri Misra has then invited the attention
of the Court to the antecedent records to contend that this manipulation could not be made in all the
revenue records either in the parental family caste status of the 4th respondent or in the family
where she has been married. The revenue records have been filed along with the writ petition to
substantiate the aforesaid submission. It is urged that on the strength of a manipulation in the record
of rights of 1331 Fasli that the caste certificate has been obtained by the respondent no. 4 on the
strength whereof she contested the election as a backward class candidate. Accordingly the
respondent no. 4 having taken recourse to such fraudulent practice, which is established on record
an appropriate writ should be issued for declaring her elections to be a nullity. Sri Misra has relied
on ten judgments including several of the Supreme Court to urge that a petition would be
maintainable for declaring such election as a nullity on the ground so raised. He has further invited
the attention of the Court to three judgments to urge that fraud vitiates all solemn proceedings, and
in this context the constitutional bar under Article 243-K would not apply so as to relegate the
petitioner to file an election petition.

6. Responding to the aforesaid submissions learned counsel for the State Election Commission
has cited the decision of Lakhpati vs. State of U.P. passed in W.P. No. 5121 (MB) 2016 contending
that the nature of dispute raised herein is also a matter that would raise questions of evidence and
which cannot be gone into under Article 226 of the Constitution of India. Learned counsel for the
respondent no. 4 has also urged that the inquiry with regard to the alleged manipulation in the
revenue records cannot be made the basis for raising a challenge inasmuch as the elections have
been contested on the basis of a caste certificate and in respect thereof a complaint was made
before the issuing authority, namely the Tehsildar, Tehsil Lalganj, District Pratapgarh who has
submitted a report on 13.3.2016 before the District Magistrate urging that the said report be
considered as the complaints with regard to the caste certificate are not true. The aforesaid
recommendation has been made under the government orders that have been enforced for
conducting an inquiry into the status of a caste certificate where the District Level Screening
Committee is chaired by the District Magistrate.

7. We have considered the aforesaid submissions raised and the judgments that have been
cited at Bar. The following 13 judgments have been cited on behalf of the petitioner:

"(i) (1994) 4 SCC 526- Para 26 to 28, K. Venkatachalam Vs. A. Swamickan and another.

(ii) (2005) 8 SCC 383 - Para 16, Harnek Singh Vs. Charanjit Singh and others.

(iii) (2004) 7 SCC 492- Para 16,17 and 18, Manda Jaganath Vs. K.S. Rathnam and
others.

(iv) (1985) 4 SCC 689- Para 26 and 30, Lakshmi Charan Sen and othrs vs. A.K.M. Hasan
Uzzaman and others along with other connected matters.
724 INDIAN LAW REPORTS ALLAHABAD SERIES

(v) Writ-C No. 53941 of 2015- Para 7 to 21, Suresh Jaiswal Vs. State of U.P. and another
along with other connected matters.

(vi) Civil Misc. Writ Petition No. 41077 of 2014, Kamla Devi vs. State of U.P. and others.

(vii) 2007 (66) ALR 354- Para 4 and 5, Angad Yadava vs. Election Commission of India,
through Chief Election Commissioner New Delhi and others.

(viii) AIR 1999 (P&H) 1- Para 35 adn 36, Lal Chandra vs. State of Haryana and others.

(ix) AIR 1996 (A.P.) 324-Para 14 and 19, Smt. Sk. Khasim Bee vs. State Election
Commissioner and others.

(x) AIR 2002 PATNA 17- Para 26, Chand Prasad and others vs. State of Bihar and
others.

(xi) (2007) 4 SCC 221-Para 20 to 31, 33, 39 and 46 A.V. Papayya Sastry and others vs.
Govt. of A.P. and others.

(xii) (2010) 8 SCC 383-Para 28 to 37, Meghmala vna others vs. G. Narasimha Reddy and
others.

(xiii) (2005) 7 SCC 605-Para 9 to 16, Bhaurao Dagdu Paralkar vs. State of Maharashtra
and others."

8. Sri Raghvendra Singh learned Senior Counsel appearing for the respondent no. 4 has invited
the attention of the Court towards the decision in the case of Smt. Ayesha vs. State of U.P. in W.P.
No. 12004 of 2010 decided on 15.7.2011 to urge that this Court may not enter into any such inquiry
relating to the status of the caste of respondent no. 4 which is already engaging the attention of the
competent authority, namely the District Magistrate. He submits that so long as the caste certificate
stands, the election of the respondent no. 4 cannot be annulled as she has contested the elections not
only on the basis of the entries in the revenue records but on the strength of a caste certificate that
was issued by the competent authority after making full inquiry.

9. It is also not in dispute that the caste certificate has not yet been cancelled and some
aggrieved persons have also filed election petitions. Sri Singh, therefore, contends that the caste
certificate also being a public document, its authenticity without any challenge raised to the same
cannot be doubted at this stage. It is urged that there is no challenge raised to the caste certificate
issued to the respondent no. 4 in the present writ petition.

10. Having considered the submissions raised and having heard Dr. L.P. Misra for the
petitioner and Sri Raghvendra Singh learned Senior Counsel for respondent no. 4 the issue of caste
4 All. Shiv Murat Vs State Of U.P. & Ors.

725
of the respondent no. 4 has arisen on account of allegations of manipulation in the revenue record
where the caste of the respondent no. 4 is alleged to have been altered by inserting word 'Sarvari'.
From the report of the Tehsildar dated 14.3.2016 which has been placed by the learned counsel for
respondent no. 4 it appears that apart from the revenue records other evidence in the shape of
affidavits and statements of other persons have been relied on for making recommendations to the
District Magistrate who is the Chairman of the District Level Screening Committee which is
pending consideration. Thus, at this stage it would be premature and not appropriate to delve into
the issue of the caste certificate which is already engaging the attention of District Level Screening
Committee through the District Magistrate as its Chairman.

11. The Collector also happens to be the District Record Keeper of all revenue records and,
therefore, the District Magistrate / Collector can make an inquiry into the allegations of any fake or
manipulated entries in the revenue records as alleged by the petitioner. Thus, while examining the
issue of genuineness of the caste of respondent no. 4 this issue can also be gone into by the
Collector in appropriate proceedings if a challenge is raised to any such entry under the revenue
law for the time being in force.

12. Apart from this these issues can be raised in an election petition.

13. Consequently for all the aforesaid reasons we are not inclined to investigate or to enter into
an inquiry on the genuineness or otherwise of the revenue entries which have been made the basis
of allegations in relation to the caste of respondent no. 4. The caste certificate having been issued
independently under the separate rule, can only be annulled in accordance with the procedure
prescribed and / or under the procedure as already set into motion. It will not be possible for us to
presume and simultaneously assume that the entries are fake in the revenue records which would
yet require another inquiry as it is alleged that the word 'Sarvari' has been entered in the revenue
record in a different ink. Presumption cannot be a substitute for proof. The production of the
original revenue record and any evidence in relation to the same would have to be investigated by
the competent authority in order to ascertain the correctness or otherwise of such an allegation. It is
only thereafter that the same can be made a ground to raise a challenge if it is established that any
fraud or manipulation was committed to which the respondent no. 4 was a party for obtaining any
benefit in relation to her caste and resulting in issuance of the caste certificate.

14. In view of what has been stated above, we do not find it necessary to entertain the petition
at this stage leaving it open to the District Magistrate to proceed with the inquiry relating to the
issuance of the caste certificate or also the revenue entries as alleged by the petitioner and then pass
appropriate orders in accordance with law as expeditiously as possible preferably within two
months. It would thereafter be open to the aggrieved person to approach the appropriate forum for
contesting the status of the election of the respondent no. 4 as a Member of the Kshetra Panchayat
concerned in accordance with law.

15. The writ petition is disposed of with the above observations.
----------
726 INDIAN LAW REPORTS ALLAHABAD SERIES
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.04.2016

BEFORE

THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE ATTAU RAHMAN MASOODI, J.

Misc. Bench No.- 6116 Of 2016

Munna ...Petitioner
 Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Arvind Kumar Vishwakarma, Raj Kumar Singh

Counsel for the Respondents:
C.S.C, Shailendra Singh Chauhan

U.P. Civil Service Regulations - Regulation 370 - Daily wage service - Work-charged establishment -
Qualifying service - Pension - Article 14 - Classification between regular recruitment and daily wagers -
Regularisation - Backdoor entry - Condition of service - Recruitment dehors rules - Distinction between
substantive appointment and daily wage employment - No equivalence - Challenge to Regulation 370 - Not
maintainable.

This writ petition has come to be filed after about two years from the date of petitioner's retirement and that
too under the garb of challenging the validity of Regulation 370, which is clearly an afterthought.The
petitioner once having accepted his regularisation by means of order dated 19.6.2007, cannot now turnaround
and claim any benefit which he otherwise may not be entitled to under the statutory rules.Testing of an
argument against the validity of Regulation 370 in the present case is more or less academic, yet it cannot be
ignored for the reason that the petitioner has raised a challenge on the anvil of Article 14 of the Constitution
of India.(para 5)

The benefit of pension is a condition of service.It is well settled that the conditions of recruitment cannot be
relaxed and recruitment resorted to dehors the statutory rules is a nullity.A daily wage employee, in our
considered opinion, cannot be equated with a regularly selected person.Once the classification in the matter
of recruitment is recognised distinguishably, any challenge to a provision which grants protection of pension
to the requisite length of substantive service alone, would be misconceived and contrary to the spirit of Article
16 of the Constitution of India. For achieving the goal of Article 16 of the Constitution of India, it is essential
to draw such a distinction and the same would not impinge upon any fundamental right available to the
petitioner under Article 14 of the Constitution of India, as such, challenge to the validity of Regulation 370
fails.(para 6)

Held: (Para 7-9) The petitioner in the instant case has not offered any justification as to how a daily wage
employee can be equated with the employees who are recruited in service by following the stringent process
of recruitment. The services rendered by a regular employee for that matter can neither be equalised in terms
of financial implications nor treated at par with the services of a daily wage employee unless the rules so