Hon'ble V.K.DIXIT,J.
Order (Oral) We have heard learned counsel for parties and perused the pleadings of writ petition.
This writ petition has been filed with prayers for issuance of writ of mandamus directing respondents no.1 & 2 to allow continuance of 15th Vidhan Sabha till May 21, 2012 and to constitute 16th Vidhan Sabha on or after that date with permission to members of 15th Assembly to nominate and vote for candidates who would stand in Election for the Council of States scheduled to take place on 30th March, 2012.
However, at the outset, petitioner Shri Asok Pande, a practising Advocate of this Court, also submitted that this writ petition is not motivated or designed to create any hurdle to the process of swearing in of the Government which is scheduled to take place on 15th March, 2012.
Petitioner in person inter alia submitted that in terms of provisions' of Article 80(4) of the Constitution of India, there would be biennial elections to the Council of States, on 30th March, 2012 in accordance with the system of proportional representation by means of the single transferable vote. Process of election would start when acting upon the recommendation of Election Commission of India, in terms of Section 12 of the Representation of the People Act, 1951 (in short "the Act of 1951"), the President of India issues a notification within three month prior to the date on which the term of office of the retiring members is due to expire. It is also submitted that the Election Commission under Section 73 of the Act of 1951 has notified the names of representatives elected to16th Vidhan Sabha. It is further submitted that towards the provisions' of Section 12 of the Act of 1951, vide notification dated 12th March, 2012, the President has issued notification calling upon the elected members of the Vidhan Sabha (Legislative Assembly) to elect the members of the Council of States whose term of office is due to expire in the month of April 2012.
In this background, it is contended that though the names of newly elected members of 16th U.P. Vidhan Sabha have been notified, yet since they have not been sworn in, the Electoral College required to elect members of the Council of States, would not be available. It is also a contention of petitioner in person that the dates of biennial election to the Council of States were released in a press communique way back on 3rd March, 2012, therefore, irrespective of the fact that a notification under Section 12 of the Act of 1951, has been issued on 12th March, 2012, only the members of 15th U.P. Vidhan Sabha would be eligible to vote in election for Council of States, also for the reason that in normal course the term of 15th U.P. Vidhan Sabha was to expire in May 2012 which has now been dissolved by a notification dated 08.03.2012 whereby the newly elected members of 16th U.P. Vidhan Sabha have been notified.
On the other hand, Shri J.N.Mathur, learned Special Counsel, appearing on behalf of State submitted that since the elected representatives of 16th U.P. Vidhan Sabha have been notified in terms of Article 80(4) of the Constitution, they alone are eligible to constitute the Electoral College and elect the members of the Council of States. Shri J.N. Mathur, learned Special Counsel, also submitted that administration of oath to office as required under Article 188 of the Constitution of India would be necessary only for the purpose of conducting the business of House and not for the purpose of voting in election to the Council of States. Shri J.N.Mathur further submitted that Section 12 of the Act of 1951 provides that either the elected members of Vidhan Sabha or as the case may be, the members of the Electoral College can elect the members of the Council of States, therefore, even though the Electoral College may not be available in the absence of administration of oath, yet the elected members of 16th Legislative Assembly can cast votes and elect the members of Council of States.
Shri O.P. Srivastava, appearing for Election Commission of India, also supported the contentions' of learned Special Counsel, Shri J.N.Mathur.
An identical question like the one as impugned in this writ petition regarding the eligibility of newly elected members of 16th U.P. Vidhan Sabha for participating in election of the candidates from the State to the Council of States, was considered by a three Judge Bench of Hon'ble the Apex Court in the judgment reported in AIR 1984 SC 399 (Pashupati Nath Shukul vs. Nem Chandra Jain and others). Para 19 of the judgment being apposite for the purpose of deciding the issue is reproduced as under:
"We are of the view that an elected member who has not taken oath but whose name appears in the notification published under Section 73 of the Act can take part in all non-legislative activities of an elected member. The right of voting at an election to the Rajya Sabha can also be exercised by him. In this case since it is not disputed that the name of the proposer had been included before the date on which he proposed the name of the appellant as a candidate in the notification published under Section 73 of the Act and in the electoral roll maintained under Section 152 of the Act. It should be held that there was no infirmity in the nomination. For the same reason even the electoral roll which contained the names of elected members appearing in the notification issued under Section 73 of the Act cannot be held to be illegal. That is how even respondent No.1 appears to have understood the true legal position as he was also proposed as a candidate by an elector who had not yet made the oath or affirmation. The second contention also fails. No other contention was pressed before us. We are, therefore, of the view that the findings recorded by the High Court on the basis of which the election of the appellant to the Rajya Sabha was set aside are erroneous."
The aforesaid issue again arose for consideration before another three Judge Bench of Hon'ble the Apex Court in 1997 and it was decided vide the judgment reported in (1997) 11 SCC 111 (Madhukar Jetly vs. Union of India and others), while following the ratio of judgment passed in the case of Pashupati Nath Shukul (supra), as under:
"We have heard the learned counsel for the petitioner as well as learned Attorney General, who drew our attention to the decision of this Court in Pashupati Nath Sukul v. Nem Chandra Jain. In that case two questions were raised for consideration and one of them was whether a person elected as a member of a legislative assembly but who has not made and subscribed the prescribed oath or affirmation as required by Article 188 of the Constitution can validly propose a person as a candidate at an election held for filling a seat in the Rajya Sabha. Dealing with this contention the Court examined the provisions of the Constitution and then came to the conclusion recorded in para 20 to the effect that an elected member who had not taken oath but whose name appears in the notification published under Section 73 of the Act (Representation of the People Act, 1951) can take part in all non-legislative activities of an elected member. Their Lordships further pointed out that the right of voting at an election to the Rajya Sabha can also be exercised by him. This conclusion is based on the premise that the election to the Rajya Sabha does not form part of the legislative proceedings of the House carried on at its meeting. Nor is the vote cast at such an election a vote given in the House on any issue arising before the House (see para 18 at p. 418). This view has held the field. We are, therefore, satisfied that this is a matter duly answered by this Court by the aforesaid judgment and, therefore, we see no merit in the petition and dismiss the same."
Thus, since the main issue stands concluded and covered by the judgments of Hon'ble the Apex Court referred to hereinabove, this writ petition would not survive. Hence, it is dismissed as such.
Dated: Mar.14, 2012 Vks.