G.S. LAL, J. :- 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.

3. The learned Chief Standing Counsel, who has been served with a notice of the writ petition on behalf of the two opposite parties, has raised a preliminary objection as to the right of the petitioner to present this petition. We shall deal with that matter at the end.

4. We have heard Sri Har Sharan Varma, who has argued the writ petition himself.

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 Cl. (4) of Art. 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 Arts. 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