The formation of the Ministry and the appointment of Ministers are within the absolute discretion of the Chief Minister and fall outside the ambit of Article 226 of the Constitution.

B. SUBHASHAN REDDY, C. J. :- Issuance of writ is sought for directing the second respondent to induct an M.L.A. from Muslim community in the Council of Ministers of the State of Tamil Nadu.

2. The petitioner is an advocate and he filed this writ petition as pro bono publico representing the Muslim minority community in the State of Tamil Nadu and pleading that right from 1954 to 2001, regardless of the parties governing the State, be it Congress, D.M.K. or A.D.M.K., there was at least one Muslim Minister in all those Governments representing the Muslim minority populace of the State of Tamil Nadu and that only presently, after Dr. J. Jayalalithaa took over the reins as Chief Minister of this State on 2-3-2002, there is no representation from Muslim community in the Council of Ministers, and because of the fact of continuous Muslim representation in the Council of Ministers right from 1954 to 2001, the said custom has become a force of law under Article 13 (3) of Constitution of India. One more reason stated is that for administration of wakfs, a Minister from Muslim community is necessary, taking objection that presently, Minister for Labour is also holding the portfolio of Wakfs.

3. Mr. S. B. Faziluddin, learned counsel appearing for the petitioner, reiterated the said contentions, and has cited the judgment of the Supreme Court in S. C. Advocates-on-record Assocn. v. Union of India, (AIR 1994 SC 268) : (1993 AIR SCW 4101), in support of his contention. The learned counsel submits that under Article 13 of Indian Constitution, 'law' includes any ordinance, order, bye-law, rule, regulation notification custom or usage having, in the territory of India, the force of law, that because of the induction of public representatives from Muslim community in the successive Ministries, right from 1954 to 2001, a custom has been recognised to have a representative from Muslim community in the Council of Ministers in the State of Tamil Nadu, that as such, there is a fundamental right in that regard, and because of the non-inclusion of any Muslim candidate in the Council of Ministers, the said Fundamental Right is violated and he points to Article 14 in that regard. He also cited Sections 13 and 14 of Wakfs Act and basing on the same, submits that only a Muslim Minister can administer and monitor the Wakfs and a non-Muslim Minister cannot do that. Apart from the decision mentioned supra, he also relies upon the decision in Krishna Singh v. Mathura Ahir, (AIR 1980 SC 707).

4. Taking notice on behalf of the second respondent and countering the arguments of the learned counsel for the petitioner, Mr. N. R. Chandran, learned Advocate General, submits that a matter like this is not justiciable, and it is the sole privilege of the Chief Minister under Article 164 of the Indian Constitution, to choose his/her Council of Ministers and that Courts cannot impose any candidate or even issue directions to have representation from this or that particular community. He also submitted that Article 13 has got absolutely no application to this case.

5. Article 13 of the Indian Constitution speaks of a limited Government in the sense that any existing law on the commencement of the Constitution or any law to be made by the State, inconsistent with Part III of Indian Constitution, dealing with Fundamental Rights, is void. The learned Advocate General is correct in saying that the definition of 'law' in sub-article 3 of Article 13 of Indian Constitution has to be understood only in the context that even a custom or usage, which is inconsistent with Part III, is void, and for that purpose, they have been included in the definition of 'law' in clause (a) of sub-article 3 of Article 13 of the Constitution. The relief sought for cannot be traced to Part III of Indian Constitution. Krishna Singh's case (AIR 1980 SC 707) (second cited supra) is also of no help to support the petitioner as it only says that Part III of Indian Constitution does not touch upon the