By the Court.—We have heard learned counsel for parties and perused the pleadings of writ petition.

2. This writ petition has been filed with prayers for issuance of writ of mandamus directing respondent Nos. 1 and 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.

3. 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.

4. 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.

5. 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 8.3.2012 whereby the newly elected members of 16th U.P. Vidhan Sabha have been notified.

6. 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.

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