S. S. DHAVAN, J.

( 1 ) THIS is a petition by Sri Har Sharan Verma under Article 226 of the Constitution praying for the issue of a writ in the nature of quo warranto to Sri Chandra Bhan Gupta, Chief Minister, government of Uttar Pradesh, Lucknow, to show by what authority he claims to hold the office of Chief Minister and to be a member of the Legislative Council. The petitioner asks for a declaration that Mr. Chandra Bhan Guptas appointment as Chief Minister and nomination to the legislative Council are invalid and unconstitutional, and he also wants this Court to declare the office of the Chief Minister and the seat held by Mr. Chandra Bhan Gupta vacant, and issue an injunction against Mr. Gupta restraining him from functioning its Chief Minister or as a nominated member of the U. P. Council. The respondents to this petition are Sri Chandra Bhan gupta and Dr. B. Ramkrishna Rao, Governor of Uttar Pradesh.

( 2 ) IN his affidavit supporting the petition Sri Har Sharan Varma states that he is a ratepayer and a voter of the Lucknow City Constituency for the Uttar Pradesh Legislative Assembly. The allegations on which this petition is founded are these : Mr. Chandra Bhan Gupta was appointed chief Minister of Uttar Pradesh by the Governor on 7th December, 1960. A gazette notification, which according to the petitioner, announced this appointment was published in the Gazette extraordinary dated December 7, 1960. Mr. Gupta was not a member of the Uttar Pradesh State legislature at the time of his appointment. The petitioner alleges that Mr. Gupta contested the election to the Legislative Assembly twice--once from the Lucknow city constituency in 1957, and again from Maudaha (Hamirpur) Rural constituency in 1958--but was defeated in each election. But on 23-1-1961 the Governor of Uttar Pradesh nominated him a member of the legislative Council in a vacancy caused by the resignation of a city member, Dr. B. B. Bhatia of lucknow, which however, was not gazetted until the 28th of January 1961.

( 3 ) THE petitioner alleges that Mr. Chandra Bhan Gupta

"got himself nominated as a member of the U. P. Legislative Council under Article 171 (5) of the Constitution although he could not claim to have any special knowledge in respect of literature, science, art, co-operative movement or social service. "

According to the petitioner, Clause (5) applies only to those persons who do not seek elections but have special knowledge in certain subjects and whom the Governor nominates in the public interest as members of the Legislature. But this clause "cannot he availed of as a back-door for the nomination of persons who lost popular election more than once. " The petitioner has referred to a statement alleged to have been made by Mr. Chandra Bhan Gupta to the pres on 24th January 1961, that "his nomination was a stopgap arrangement. This, according to the petitioner, was a clear admission that Mr. Chandra Bhan Guptas nomination was made for reasons of political expediency and not on merits and "was, therefore, a fraud on the constitution. " He contends that Mr. Chandra Bhan Guptas nomination as member of the council and appointment as Chief Minister are illegal, and he has invoked the jurisdiction of this court to invalidate both. He says that, as a voter of the U. P. Legislative Assembly he is interested in the matter and has a right to move this court.

( 4 ) I have heard the petitioner as well as his counsel at considerable length. He addressed the court in person on a previous day and then made a request for adjournment to enable him to engage counsel. This was granted and the petition was re-heard today.

( 5 )

"the petitioners first argument is that Clause (1) of Article 164 of the Constitution prohibits the appointment of any person not a member of the Legislature as Chief Minister. The relevant portion of this clause runs thus "the Chief Minister shall be appointed by the Governor and thp other ministers shall be appointed by the Governor on the a

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