JUDGMENT G.S. Lal, J.
1. Har Sharan Varma, who describes himself as a rate-payer of the Lucknow Constituency to the U. P. Legislative Assembly, has filed this writ petition in which he has principally claimed two reliefs. The first relief is for a Writ of Prohibition or any other writ or direction in the nature of prohibition declaring the appointment of opposite party No. 1 (that is to say Sri Tribhuvan Narain Singh, Chief Minister, Uttar Pradesh) as Chief Minister of Uttar Pradesh null and void. The second relief is for a Writ of quo warranto to be issued against Sri T.N. Singh (opposite-party no. 1) to show cause why his appointment should not be held illegal and why he should not, therefore, be prohibited from acting as Chief Minister of U. P.
2. The only fact given in the writ petition on which the reliefs mentioned above have been claimed, is that Sri T. N. Singh (opposite party no. 1) was appointed to the public office of Chief Ministership of Uttar Pradesh by Sri Rajyapal (opposite party no. 2) on 18-10-1970 though Sri T.N. Singh was not a member of either House of the Legislature of the State at the time of his appointment.
5. Sri Har Sharan Varma has contended that the Constitution does nowhere provide that a person who is not already a member of the Legislature can be appointed the Chief Minister of a State. In regard to Clause (4) of Article 164 of Constitution which indicates that a person may be a Minister (which word, it is not in controversy before us, includes Chief Minister), his contention is that it is confined to the case of a Minister or Chief Minister who was a member of the Legislature at the time of his appointment, but subsequently ceases to be so either by an election petition being allowed against him or otherwise. According to him, that clause cannot assist the Governor in the appointment of a person as a Chief Minister who is not a member of the Legislature.
6. Article 163 of the Constitution lays down that there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his function or any of them in his discretion. Clause (1) of Article 164 of the Constitution then proceeds to lay down that the Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advise of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor. Clause (2) of Article 164 of the Constitution further lays down that the Council of Ministers shall be collectively responsible to the Legislative Assembly of the State.
It will appear that Articles 163 and 164 of the Constitution do not lay down any qualifications for the person who can be appointed a Chief Minister by the Governor of a State. All that is said in Clause (4) of Article 164 of the Constitution is that a Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister. This provision deals with a case of a Minister who is not a member of the Legislature of the State for six consecutive months. It does not state that a Minister must have been a member of the Legislature at the time he came to be appointed as a Minister. As a matter of fact, indirectly it indicates, unless the limited meaning which Sri Varma would like to put upon this clause is given to it, that a person who is not a member of the Legislature of the State may be a Minister, though if he remains in that position, that is to say, he does not become a member of the Legislature of the State, for six consecutive months of his becoming a Minister, then he will cease to be a Minister. The question which, therefore calls for an answer is whether this Clause (4) of Article 164 of the Constitution is intended to cover the case only of a person who was a member of the Legislature at the time of his appointment as a Minister or Chief Minister but who later on ceases to be a member of the Legislature. In the clause itself there is nothing to support this argument. The words are not "a Minister who does not remain a member of the Legislature for any period of six consecutive months", but are "a Minister who is not a member of the Legislature of the State for any period of six consecutive months". If the word 'remain' were there, then only the provision could have implied that the Minister was a member at the time of appointment.
7. The petitioner, however, wants to seek support for his argument from certain other provisions of the Constitution. One provision to which he has invited our attention is Sub-clause (d) of Clause (3) of Article 171 of the Constitution. That clause, however, provides for nothing more than that as nearly as may be, one-third shall be elected by the members of the Legislative assembly of the State from amongst persons who are not members of the Assembly. It will appear that this provision has no bearing at all on the point under consideration.
8. Then there are Articles 175 and 176 of the Constitution on which reliance has been placed by the petitioner. Article 175 gives to the Governor the right to address the Legislative Assembly or, in the case of a State having a Legislative Council, either House of the Legislature of the State, or both Houses assembled together, and may for that purpose require the attendance of members. Article 176 requires the Governor at the commencement of the first session after each general election to the Legislative Assembly and at the commencement of the first session of each year, to address the Legislative Assembly or, in the case of a State having a Legislative Council, both Houses assembled together, and inform the Legislature of the causes of its summons. The provision that the Governor may for the purpose of his addressing the Legislative Assembly or the joint session of the two Houses of the Legislature of the State where there are two Houses require the attendance of members, has again nothing to do with the question whether a Chief Minister can be appointed from persons who are not members of the Legislature at the time of appointment. If he has to address the House or Houses of the Legislature, obviously he would require the attendance of members and it is for that purpose only that the provision has been made. That by itself does not lay down that only the members of the Legislature will be able to attend.
On the other hand, Article 177 lays down that every Minister and the Advocate-General for a State shall have the right to speak in, and otherwise take part in the proceedings of the Legislative Assembly of the State or, in the case of a State having a Legislative Council, both Houses, and to speak in, and otherwise to take part in the proceedings of any committee of the Legislature of which he may be named a member, but shall not, by virtue of this article, be entitled to vote. The very fact that the Advocate General has been given the right to attend and to speak in and otherwise take part in the proceedings of the Legislative Assembly and the Legislative Council of a State and also to be named a member of a committee, though he will have no right to vote, shows that the scheme of the Constitution is not to totally bar a person not a member of the Legislative Assembly or the Legislative Council to speak in and to take part in the proceedings of the Legislative Assembly or the Legislative Council, as the case may be.
It cannot, therefore, be argued that the Constitution could not possibly have contemplated a person not a member of the Legislative Assembly or the Legislative Council of a State to attend or speak in or otherwise take part in the proceedings of the Legislative Assembly or Legislative Council. So these provisions fail to support even indirectly the contention of the petitioner that the Constitution does not contemplate a person, who is not a member of the Legislative Assembly or the Legislative Council, to become a Chief Minister who would naturally have to sit in and otherwise take part in the proceedings of the Legislature of the State in discharging his duties, nor do these provisions help the petitioner in limiting the meaning of Clause (4) of Article 164 of the Constitution to the case of a Minister who was a member of the Legislature when appointed a Minister but who ceases to be so thereafter.
Even otherwise there does not appear to be much logic in the contention. If a person who was appointed a Minister when he was a member of the Legislature of the concerned State is under Article 164(4) allowed to remain a Minister for 6 months since the date he ceases to be a member of the Legislature, it does not appear why a person who is not a member of the Legislative Assembly or Legislative Council should not be allowed to be and remain a Minister for six months.
Again, if membership of the Legislature were even an implied requirement for a person being appointed a Minister, then obviously Ministership must cease when that qualification is gone that is, when the Minister ceases to be a member of the Legislature. In that case there could have been no principle behind the provision in Clause (4) of Article 164 of the Constitution that a Minister could continue as such even after he ceases to be a member of the Legislature for a period of six consecutive months.
9. The petitioner has also made a reference to Article 193 of the Constitution which penalizes a person who sits or votes as a member of the Legislative Assembly or the Legislative Council of a State before he has complied with the requirements of Article 188, or when he knows that he is not qualified or that he is disqualified for member-ship thereof, or that he is prohibited from sitting or voting otherwise. This provision has no relevancy again, for Article 177 of the Constitution expressly permits a Minister as a Minister to speak in and otherwise take part in the proceedings of the Legislature of a State. The only qualification is that the right conferred by Article 177 upon a Minister or the Advocate-General will not give him the right to vote and if he exercises the right to vote then he must possess that right independent of his position as a Minister. So if a Minister who is not a member of the Legislature of a State sits therein, he does not come under the mischief of Article 193 of the Constitution because he does not purport to sit there as a member of the Legislature. He may come within that Article if he votes.
10. The petitioner has lastly invited our attention to what the situation may possibly be if the Constitution is interpreted to mean that a person who is not a member of the Legislature at the time of his appointment may be apppinted as a Chief Minister. He has taken the extreme case of not only a Chief Minister being appointed from outside the members of the Legislature, but also of such a Chief Minister himself getting appointed persons as Ministers who are not members of the Legislature. Supposing this extreme case to be practically feasible, the question arises as to how this will be derogative to the provisions which the Constitution embodies. It has been already mentioned that Clause (2) of Article 164 of the Constitution lays down that Council of Ministers shall be collectively responsible to the Legislative Assembly of the State. If the Legislative Assembly feels satisfied with the set up of the Council of Ministers by the Governor, then there is nothing else in the Constitution to indicate that its provisions will be violated.
The electorate has no direct hand in the appointment of the Chief Minister or even of the Council of Ministers. What the Governor has to take care of is that the Council of Ministers is made by Article 164(2) collectively responsible to the Legislative Assembly of the State and the Council of Ministers should therefore, be such as would command the confidence of the Legislative Assembly. If the Governor feels satisfied that a majority of the members of the Legislative Assembly have confidence in a particular person, even if he is not a member of the Legislative Assembly or of the Legislative Council, and they want him to form the Council of Ministers, then the requirements of Clause (2) of Article 164 shall be satisfied and no express provision or principle underlying this democratic Constitution will be violated. Of course, with these observations is to be read the condition laid down in Clause (4) of Article 164 of the Constitution under which no person can remain a Minister for more than six consecutive months if he does not get himself elected as a member of the Legislature.
11. We are, therefore, unable to place any limitation as sought for by the petitioner on the meaning of Clause (4) of Article 164 of the Constitution and because there is otherwise no qualification laid down as to who may be appointed as a Chief Minister, we cannot hold that the appointment of opposite party no. 1 as Chief Minister of Uttar Pradesh violates the provisions of the Constitution and is illegal and void.
12. In the above connection the petitioner himself referred to us the judgment of Dhawan, J., on a writ petition which the present petitioner himself had moved against the appointment of Sri C.B. Gupta as Chief Minister in 1961. The decision is reported in AIR 19G2 All 301, Har Sharan Varma v. Chandra Bhan Gupta. The decision went against the petitioner. The point raised there was slightly different. There the opposite party had been nominated as a member of the Legislative Council and the contention was that a person to be appointed a Chief Minister, must be a member of the Legislative Assembly. It was laid down that a person commanding the support of the Assembly could be appointed as Chief Minister though he was not at the time of appointment a member of the Legislative Assembly. The special appeal filed by the petitioner was also dismissed as he himself admits though the judgment of the Bench deciding the special appeal has not been reported.
13. The next point that arises for consideration is the right of the petitioner to maintain the writ petition in the absence of what the learned Chief Standing Counsel calls a personal interest in the matter. In this connection we have before us the decision of a Division Bench of the Madras High Court in the case of In re, P. Ramamoorthi, AIR 1953 Mad 94. As we have found that the writ petition is not maintainable on merits, we do not propose to decide this point on merits and we need not therefore express either our agreement or our disagreement with the aforesaid Madras case.
14. The learned Chief Standing Counsel also raised before us the question that the Governor's act in appointing opposite party no. 1 as the Chief Minister of Uttar Pradesh cannot be questioned in Court by reason of Article 361 of the Constitution. On this point again we do not propose to give a decision since the writ petition fails on the merits.
15. The writ petition is dismissed summarily.