S.P. ANAND Vs. DIGVIJAY SINGH

JUDGEMENT

(1.) HEARD Shri S.P. Anand, petitioner in person. The petitioner has challenged in this petition appointment of respondent No. 1 as Chief Minister of Madhya Pradesh, appointments of respondents No. 2 and 3 as Deputy Chief Ministers of the State of Madhya Pradesh and appointment of respondent No. 4 as a Minister of the State of Madhya Pradesh. The challenge to the appointment of respondent No. 1 as the Chief Minister is on the ground that the appointment has been made ignoring the fact which was within the knowledge of the Governor of Madhya Pradesh that the respondent No. 1 was not a member of Legislative Assembly of the State. According to the petitioner, there was no emergency or exigency for allowing a person not a member of the Legislative Assembly to take over as Chief Minister. According to the petitioner the action was 'Arbitrary, irrational, unjust, discriminatory and most unreasonable'. Challenge to the appointments of respondents No. 2 and 3 are on the ground that there is no provision for appointment as Dy. Chief Ministers in the Constitution and in fact there are three Chief Ministers appointed in the State. The challenge to the appointment of respondent No. 4 is on the ground that it is made on communal considerations only because there was no Muslim elected to the Legislative Assembly during the last elections. So far as swearing in of Ministers who are not members of the State Legislature, is concerned the language of Art. 164 (4) is clear. Under that provision 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 clearly shows that it is not a pre -requisite for becoming a Minister that the person must be on that day a member of the Legislature of the State. As under Art. 163 the council of Ministers is to be headed by the Chief Minister, the same qualifications and disqualifications which apply to the post of Minister apply to the post of Chief Minister. The only qualification for becoming a Chief Minister is to be eligible for becoming a Minister. Thus, it cannot be said that a person cannot be directly appointed as Chief Minister if he is not a member of the State Legislature. We, therefore, find no illegality in the appointment of respondent No. 1 as Chief Minister. By the same reasoning the appointment of respondent No. 4 also as Minister cannot be challenged. Any person who is not a Member of the Legislature can be appointed and can retain his post for six consecutive months without being a member of the Legislature of the State by virtue of Art 164 (4) of the Constitution. As to who is appointed and why he is being appointed this Court is not concerned unless such a person is clearly disqualified under the Constitution or any law for the time being in force. If a Minister is chosen on the basis of religion or caste, it is the action of the Chief Minister or the political party to which he belongs and it is not an action of the State as such. It cannot, therefore, be said that if a Minister is appointed on communal considerations that the State has acted against the mandate of Art. 15 of the Constitution. Moreover, only because the person is chosen on the basis of his religion, race, caste, sex, place of birth or any of them for a Ministerial post, it cannot be said that other citizens are discriminated against. So for as the appointments of respondents No. 2 and 3, as Deputy Chief Ministers are concerned the Supreme Court of India in K.M. Sharma v. Devilal (AIR 1990 SC 528) relying on an earlier decision in AIR 1970 SC 765 has held that even if a person is described as Deputy Prime Minister, he is simply a Member of Council of Ministers. In that case Shri Devilal had taken oath as Deputy Prime Minister and even then it was held that the form of oath has two distinct parts one in descriptive and the other is substantive. It is, therefore, clear that even if respondents No. 2 and 3 are being described as Deputy Chief Minister, in fact they are only Members of the Council of Ministers and are Ministers alone. That is the Constitutional position. It cannot, therefore, be said that a new post not known to the Constitution has been created and the respondents No. 2 and 3 have been appointed to it. They are and shall always remain only Ministers in the eyes of the Constitution. After the hearing was over, Shri Anand had made a submission in the Chambers that M.P. No. 161/91 which raised a similar point has been admitted for hearing and, therefore, this case should be admitted. We have called for the record of that case and we do not find it necessary to keep this case also hanging because the other case, which according to us does not raise the points which are involved in this case, is pending.