# Sanjay Sharma v. Union Of India & Ors

- **Citation:** (2025) 12 ILRA 1298
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-12-16
- **Case number:** Public Interest Litigation (P.I.L.) No. 10701 of 2017
- **Bench:** Rajan Roy, Rajeev Bharti
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjay-sharma-v-union-of-india-ors-52810
- **Pages:** 12

## Text

1298 INDIAN LAW REPORTS ALLAHABAD SERIES
(2025) 12 ILRA 1298
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.12.2025

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE RAJEEV BHARTI, J.

Public Interest Litigation (P.I.L.) No. 10701 of
2017

Sanjay Sharma ...Petitioner
Versus
Union Of India & Ors. ...Respondents

ISSUE FOR CONSIDERATION
Whether appointment of Shri Yogi Adityanath
and Shri Keshav Prasad Maurya as Chief
Minister and Deputy Chief Minister of Uttar
Pradesh on 19.03.2017, while they were
Members of Parliament, was unconstitutional or
illegal.
Whether
Section
3(a)
of
the
Parliament
(Prevention of Disqualification) Act, 1959 is ultra
vires the Constitution.

HEADNOTES
Civil Law - Constitution of India - Articles
63, 64, 69, 70, 101, 102, 102(1)(a), 158,
164,
164(1),
164(1-B),
164(4),
190,
190(3), 191, 191(1)(a), - Parliament
(Prevention of Disqualification) Act, 1959
-
Section
-
3(a),
-
Prohibition
of
Simultaneous Membership Rules, 1950 -
Rule 2, 3 - Public Interest Litigation - filed in
the
nature
of
quo
warranto
challenging
appointment of Shri Yogi Adityanath and Shri
Keshav Prasad Maurya as Chief Minister and
Deputy Chief Minister of U.P. - as well as to
declare their Lok Sabha seats vacant - grounds
taken, dual office, office of profit, violation of
separation of powers, and challenge to validity
of Section 3(a) of the Parliament (Prevention of
Disqualification) Act, 1959 - plea taken that,
implied constitutional restrictions, burden on
exchequer - Court finds - (i) appointment valid,
MPs are elected representatives not holders of
constitutional offices or offices of profit, - (ii)
doctrine of separation of powers argument
rejected, Article 164(4) envisages legislative -
executive
overlap,
-
(iii)
dual
salary/constituency neglect plea without factual
basis, respondents resigned from Parliament
after election to Vidhan Parishad, - (iv) Section
3(a) of 1959 Act valid, Constitution itself (Article
102(1)(a) with Explanation) excludes Ministers
from disqualification - Court held, Court held, (i)
MPs are not constitutional office-holders nor do
they hold office of profit, - (ii) Article 164(4)
permits such appointment - (iii) Section 3(a) of
1959 Act valid as Constitution itself excludes
Ministers from disqualification - accordingly,
writ petition found misconceived and dismissed.
(Para - 30, 31, 32, 33, 34, 35)
Writ Petition Dismissed.(E-11)

CASE LAW CITED
State of Punjab v. Salil Sabhlok (2013) 5 SCC 1 -
Nabam Rebia v. Deputy Speaker, Arunachal
Pradesh Legislative Assembly (2016) 8 SCC 1 -
Manoj Narula v. Union of India (2014) 9 SCC 1 -
Ashwini Kumar Upadhyay v. Union of India
(2019) 11 SCC 683.

LIST OF ACTS
Constitution of India, - Parliament (Prevention of
Disqualification)
Act,
1959,
-
U.P.
State
Legislature (Prevention of Disqualification) Act,
1971, - U.P. Ministers (Salaries, Allowances and
Miscellaneous
Provisions)
Act,
1981
and
Salaries, Allowances and Pension of Members of
Parliament Act, 1954.

LIST OF KEYWORDS
Chief Minister, Deputy Chief Minister, Member of
Parliament, Office of Profit, Constitutional Post,
Doctrine
of
Separation
of
Powers,
Disqualification, Article 164(4), Article 102(1)(a),
Section 3(a) of 1959 Act, Governor's discretion,
Constitutional morality - unconstitutional - ultra
vires - validity of appointment - elected -
parliamentary constituency - Minister of State -
simultaneous membership - operation and
application of article - explanation - merit -
decline - dismissed.

CASE ARISING FROM
PIL arising out from - the Appointment of
opposite party no. 5 & 6 as Chief Minister and
Deputy Chief Minister of UP. Whom were
Member of Parliament.

APPEARANCE OF PARTIES
12 All. Sanjay Sharma Vs. Union Of India & Ors.
1299
Counsel for Appellant: - Shri Chandra Bhushan
Pandey, Advocate
Counsel for Respondent: - Shri Anand Singh,
Standing Counsel.

(Delivered by Hon'ble Rajan Roy, J.)

1. Heard Shri Chandra Bhushan
Pandey, learned counsel for the petitioner
and Shri Anand Singh, learned Standing
Counsel for the State.

2. This is a public interest litigation
which was initiated in the year 2017
seeking following reliefs:-

"i) to issue a suitable writ, order
or direction declaring appointment of
opposite party nos. 5 and 6 as Chief
Minister and Minister (Deputy Chief
Minister) of U.P., respectively, null and
void w.e.f. 19.03.2017, after summoning the
necessary records;

ii) to issue a writ, order or
direction of or in the nature of quo
warranto requiring the opposite party nos.
5 and 6 to explain on as to under what
authority they are appointed as Chief
Minister and Minister (Deputy Chief
Minister) of U.P. and are continuing on the
said post, as such;

iii) to issue an appropriate order
or direction requiring the opposite party
no. 2 to declare the seats of opposite party
nos. 5 and 6 in the House of People (Lok
Sabha) vacant;

iv) to issue an appropriate order,
declaring Section 3(a) of the Parliament
(Prevention of Disqualification) Act, 1959
ultra vires the Constitution of India;"

3. Relief nos. (ii) and (iii) have
outlived their utility, as, the opposite
parties no. 5 and 6 after being appointed as
Chief Minister and Deputy Chief Minister
of State of U.P. completed their term in
2020, when fresh elections were held. Their
subsequent appointment as Chief Minister
and Deputy Chief Minister of the State has
not been assailed in this writ petition.

4. On being pointed out the aforesaid,
learned counsel for the petitioner accepted
this fact but insisted that relief no. (i) still
survives, as, a declaration is required to be
given by this Court as to whether the
opposite party nos. 5 and 6 were validly
appointed as Chief Minister and Deputy
Chief Minister when they took oath on
19.03.2017 or their appointment was null
and void. Such declaration according to
him was necessary. Only to this extent he
asserted that an adjudication in the context
of relief no. (i) is required. Thus,
undisputedly relief nos. (ii) and (iii) have
become infructuous.

5. The facts of the case in brief are that
the opposite parties no. 5 and 6, both were
Members of Parliament when they took
oath as Chief Minister and Deputy Chief
Minister of the State of U.P. on 19.03.2017.
They
resigned
from
Membership
of
Parliament
on
21.09.2017.
In
the
interregnum, on 08.09.2017, both were
elected as Members of the Vidhan Parishad
i.e. within the period of six months
stipulated
in
Article
164(4)
of
the
Constitution of India (hereinafter referred
to 'the Constitution'). They completed their
tenure in 2020.

6. After fresh elections to the State
Legislative Assembly they were again
appointed as Chief Minister and Deputy
Chief Minister respectively and took oath
on 25.03.2022. This is not a question
before us.
1300 INDIAN LAW REPORTS ALLAHABAD SERIES

7. It is not the case of the petitioner as
specifically stated in Para 22 to 24 that
appointment of the opposite party nos. 5
and 6 and their taking oath on 19.03.2017
as Chief Minister and Deputy Chief
Minister, was bad in law as they were not
Members of either house of the State
Legislature. The grounds of challenge are
different. They can be summarized as
under:-

According to the petitioner's
counsel such appointment and taking oath
was contrary to the implied constitutional
restrictions and the very constitutional
scheme which prohibits one person to hold
two constitutional posts. Reference was
made in this regard to Articles 63, 64, 69
and 70 of the Constitution in the context of
the Vice- President assuming office of the
President on the latter falling vacant and
thereby ceasing to work as Chairman of the
Council of the States and also becoming
disentitled to Salary and Allowances
payable to the Chairman of the Council of
States, a post held by the Vice President ex
officio. Likewise, reference was made to
Article 158 of the Constitution of India,
according to which, if a member of either
House
of
Parliament
or
the
State
Legislature is appointed as Governor, he
shall be deemed to have vacated his seat in
that House on the date on which he enters
upon his office as Governor. These
provisions of the Constitution, according to
the learned counsel for the petitioner, were
indicative of the ingrained philosophy in
the India Constitution to segregate the
function and duties assigned to incumbents
of various constitutional posts.

As per understanding of the
learned counsel for the petitioner, one
person can not hold two constitutional
offices, simultaneously. Reference was
made in this regard to Article 101 of the
Constitution
and
provisions
of
the
Prohibition of Simultaneous Membership
Rules, 1950 applicable in case of Members
of two houses of the Parliament or the State
Legislatures.

Learned counsel for the petitioner
also pressed upon the doctrine of separation
of powers in this context to submit that
while Member of Parliament is part of the
Legislature, the Chief Minister and Deputy
Chief Minister are part of the executive but
the same person i.e. the Member of
Parliament holding two Offices of Chief
Minister/Deputy Chief Minister amounts to
violating the doctrine of separation of
powers. In this context he submitted that
both the opposite parties no. 5 and 6 were
still Members of Parliament when they
took oath as Chief Minister and Deputy
Chief Minister of the State of U.P. on
19.03.2017, thereby, violating the aforesaid
constitutional
scheme,
the
implied
restrictions and the doctrine referred
hereinabove.

It was further contended that once
they took oath as Chief Minister and
Deputy Chief Minister they would not
participate in the proceedings of Parliament
for the obvious reason, that is, the onerous
tasks assigned to them as Chief Minister
and Deputy Chief Minister but they would
still be drawing salary as Members of
Parliament and also as Chief Minister and
Deputy Chief Minister which is a situation
not envisaged by the Constitution. The fact
that such a person who draws salary for
two posts but will not be able to perform
the duties of one of them i.e. the Member
of
Parliament,
is
constitutionally
objectionable and uncalled for, as, this puts
unnecessary
burden
on
the
public
exchequer that too in a developing
12 All. Sanjay Sharma Vs. Union Of India & Ors.
1301
economy. In this context, he referred to the
Uttar
Pradesh
Ministers
(Salaries,
Allowances and Miscellaneous Provisions)
Act, 1981.

It
was
submitted
that
the
Governor while exercising his discretion
under Article 164 to appoint the Chief
Minister/ Deputy Chief Minister should
have looked into these aspects of the of the
matter and not having done so he or she
acted in arbitrarily and unconstitutional
manner. Reference was made in this regard
to the decisions of Hon'ble the Supreme
Court reported in (2013) 5 SCC 1; State of
Punjab Vs. Salil Sabhlok and Ors., (2016)
8 SCC 1; Nabam Rebia and Bamng Felix
vs. Deputy Speaker, Arunachal Pradesh
Legislative Assembly & Ors., according to
which, the Governor is required to exercise
his discretionary power in just fair,
reasonable and bonafide manner and not in
disregard to the constitutional spirit.

In Para 38 and 39 of the writ
petition the petitioner has specifically
pleaded that though there is no specific
restriction for a Member of Parliament to
be appointed as a Chief Minister/ Deputy
Minister, however, implied restrictions are
engrained
in
the
Constitution.
Constitutional appointments are required to
be guided by certain principles which may
not be expressly stated in the Constitution
but the person conferred with the powers to
make such appointment is bound by
unwritten code pertaining to morality and
philosophy encapsulated in the preamble of
the Constitution. The Governor, according
to the petitioner's counsel, overlooked the
implied restrictions while performing his
duties
under
Article
164(1)
of
the
Constitution. In the context of implied
constitutional restrictions a reference has
been made to the judgment rendered in the
case of Salil Sabhlok (supra). According to
the petitioner's counsel, the Governor of
U.P. should have asked the opposite party
nos. 5 and 6 to resign from their
membership of Parliament before rendering
oath and not doing so, was violative of the
constitutional spirit and scheme.

He also pressed relief no. (iv) by
which vires of Section 3(a) of the
Parliament (Prevention of Disqualification)
Act, 1959 (hereinafter referred to as 'the
Act, 1959') has been challenged. At the
outset, we must put it on record that relief
no. 4 has no relation to relief No. 1,
therefore, two separate causes have been
joined together in these proceedings,
nevertheless, we will consider these reliefs
hereafter.

In this regard he contended that
object behind Article 102(1)(a) of the
Constitution of India was to disqualify any
person from the Membership of Parliament
if he holds any "office of profit" under the
Government of India or the Government of
any State and to carve out an exception to
this vital and important principle contained
in the constitutional provisions was to
negate the object behind it. The Office of
Chief Minister and Deputy Chief Minister
were offices of profit under the State and
therefore, they can not simultaneously hold
the office of Member of Parliament under
the Constitution. According to him, the
Parliament exceeded its jurisdiction by
inserting Section 3(a) of the Act, 1959
which contravenes the Constitution but no
specific provision of the Constitution which
is alleged to have been contravened was
placed before us.

It was submitted that Article
102(1) (a) of the Constitution, to which the
Act, 1959 is referable, does not empower
1302 INDIAN LAW REPORTS ALLAHABAD SERIES
the Parliament to make law in respect of
the Offices which are already enumerated
in the Constitution itself. According to him,
excluding the office of a Minister from the
list of offices of profit for the purposes of
disqualification of Member of Parliament,
is absolutely unreasonable, bordering on
absurdity.

In this context, he submitted that
as per the constitutional provisions only for
a period of six months a person can be
appointed as a Minister either in the Center
or the State without being a Member of any
of the Houses of Parliament or State
Legislature. Likewise, is the case in the
State, therefore, the Act, 1959 providing
protection to the Union Minister or the
State Minister was quite unnecessary. Such
a provision was violative of federal
structure of the Constitution which is its
basic feature. It was also violative to the
concept of Constitutional Morality deeply
enshrined in our Constitution. In this regard
he referred to the authority reported in
(2014) 9 SCC 1;Manoj Narula v. Union of
India. For all these reasons, he contended
that Section 3(a) of the Act, 1959 was ultra
vires the Constitution and inconsistent with
Article 102.

8. Learned Standing Counsel for the
State has contended that the entire writ
petition is absolutely misconceived. There
is no constitutional bar in any person taking
oath as Chief Minister/ Deputy Chief
Minister while being a Member of
Parliament nor does Section 3(a) of the
Act,
1959
suffer
from
any
unconstitutionality or illegality, therefore,
the writ petition lacks merit and is liable to
be dismissed.

9. Having heard learned counsel for
the parties and having perused the records,
we find that we are required to consider
only relief nos. (i) and (iv) of the writ
petition.

10. First and foremost the question
before us is as to whether the Constitution
permitted opposite party nos. 5 and 6 to
take oath as Chief Minister and Deputy
Chief Minister of the State on 19.03.2017
while
they
were
still
Members
of
Parliament of India and had not resigned as
such.

11.
There
is
nothing
in
the
Constitution
which
prohibits
the
appointment of a person who is already a
Member of Parliament as Chief Minister or
Deputy Chief Minister of a State.

12. Article 164 (1-B) provides that a
member of the Legislative Assembly of a
State or either House of the Legislature of a
State having Legislative Council belonging
to any political party who is disqualified for
being a member of that House under
paragraph 2 of the Tenth Schedule shall
also be disqualified to be appointed as a
Minister under clause (1) for duration of
the period commencing from the date of his
disqualification till the date on which the
term of his office as such member would
expire or where he contests any election to
the Legislative Assembly of a State or
either House of the Legislature of a State
having Legislative Council, as the case may
be, before the expiry of such period, till the
date on which he is declared elected,
whichever is earlier. The disqualification
referred above is on the ground of
defection. It is nobody's case that the
opposite party nos. 5 and 6 suffered from
aforesaid disqualifications.

13. The other disqualifications is
contained
in
Article
191
of
the
12 All. Sanjay Sharma Vs. Union Of India & Ors.
1303
Constitution. According to Article 191(1)
(a), a person shall be disqualified for being
chosen as, and for being, a member of the
Legislative
Assembly
or
Legislative
Council of a State- (a) if he holds any
office of profit under the Government of
India or the Government of any State
specified in the First Schedule, other than
an office declared by the Legislature of the
State by law not to disqualify its holder. In
this context we may refer to an enactment,
namely, the Uttar Pradesh State Legislature
(Prevention of Disqualification) Act, 1971,
vires of which is not under challenge.
Section 3 thereof excludes certain offices
of profit as disqualification for the holder
thereof for being a Member of the State
Legislature, one of which is, the office of
Minister of State or Deputy Minister, or of
Parliamentary Secretary to a Minister,
either for the Union or for the State. No
doubt it does not exclude a member of
Parliament
but
whether
member
of
Parliament holds an office of profit under
the Government of India or the State so as
to attract Article 191(1)(a). He by virtue of
being member of Parliament certainly does
not hold such office under the Government
of any State. A Member of Parliament is an
office of election. It is not an office or post
on which appointment is made by the
Government
of
India
or
the
State
Government. It is certainly not an office of
profit under the Government of India or the
State Government. Members of Parliament
get elected to raise the voice of the people/
constituency whom/which they represent in
Parliament
and
irrespective
of
the
remuneration received by them as Members
of Parliament, they can not be said to be
holding any office or post under the
Government of India. In fact, there is no
foundation in the pleadings of the writ
petition with documentary proof in support
of thereof to establish that in fact, it is an
office of profit as referred in Article
191(1)(a) of the Constitution. The election
and tenure of the Member of Parliament is
not at the pleasure of the Government or
the President of India.

14. We also draw support in this
context from a decision of Hon'ble the
Supreme Court reported in (2019) 11 SCC
683; Ashwini Kumar Upadhyay Vs. Union
of India and Anr., wherein the question
was as to whether a Member of Parliament
can practice law; was it barred by
regulations framed under the Advocates
Act, 1961 or not. In that context Hon'ble
Supreme Court while referring to Rule 49
of Bar Council of India Rules, 1975
observed that the said rule applies-"where
an advocate is a full-time salaried
employee of any person, government, firm,
corporation
or
concern.
Indubitably,
legislators
cannot
be
styled
or
characterised
as
full-time
salaried
employees as such, much less of the
specified
entities.
For,
there
is
no
relationship of employer and employee.
The
status
of
legislators
(MPS/MLAs/MLCs) is of a member of the
House (Parliament/State Assembly). The
mere fact that they draw salary under the
1954 Act or different allowances under the
relevant Rules framed under the said Act
does not result in creation of a relationship
of employer and employee between the
government and the legislators, despite the
description of payment received by them in
the name of salary. Indeed, the legislators
are deemed to be public servants, but their
status is sui generis and certainly not one
of a full-time salaried employee of any
person, government, firm, corporation or
concern as such. Even the expansive
definition of term "person" in the General
Clauses Act, 1897 will be of no avail. The
term "employment" may be an expansive
1304 INDIAN LAW REPORTS ALLAHABAD SERIES
expression
but
considering
the
constitutional scheme, the legislators being
elected people's representatives occupy a
seat in Parliament/Legislative Assembly or
Council as its members but are not in the
employment of or for that matter full-time
salaried employees as such. They occupy a
special position so long as the House is not
dissolved. The fact that disciplinary or
privilege action can be initiated against
them by the Speaker of the House does not
mean that they can be treated as full-time
salaried
employees.
Similarly,
the
participation of the legislators in the House
for the conduct of its business, by no
standards can be considered as service
rendered to an employer. One ceases to be
a legislator, only when the House is
dissolved or if he/she resigns or vacates the
seat upon incurring disqualification to
continue to be a legislator. By no
standards, therefore, Rule 49 as a whole
can be invoked and applied to the
legislators." The said observations of
Hon'ble the Supreme Court, albeit in a
different context, throw some light on the
status of legislators whether they be
MPs/MLAs/MLCs.

15. It is evident from the aforesaid that
they do not hold any office or post under
the Government, in the first place,
therefore, the question whether they held an
office of profit under the Government of
India or State, becomes superfluous. The
mere fact that they draw salary under the
Salaries, Allowances and Pension of
Members of Parliament Act, 1954 or
different allowances under the relevant
Rules framed under the said Act does not
result in creation of a relationship of
employer and employee between the
Government and the legislators, despite the
description of payment received by them in
the name of salary. Their participation in
the house for the conduct of its business by
no standards can be considered as service
rendered to an employer, whether it be the
Government of India or the State. One
ceases to be a legislator, only when the
House is dissolved or if he/she resigns or
vacates
the
seat
upon
incurring
disqualification to continue to be a
legislator. A Member of Parliament or the
State Legislator does not function as such
at the pleasure of the Government of India/
State or the President/ Governor. They are
not appointed but are elected by electors
from respective territorial constituencies.
The form of oath also does not suggest that
the Member is appointed by the President
as such. Hon'ble the Supreme Court even
observed - "the fact that the legislators
draw salary and allowances from the
consolidated fund in terms of Article 106 of
the Constitution and the law made by
Parliament in that regard, it does not follow
that a relationship of a full-time salaried
employee(s)
of
the
Government
or
otherwise is created."

16.
The
petitioner
has
himself
accepted in Para 38 that there is no specific
bar in the Constitution for a Member of
Parliament to be appointed or to take oath
as Chief Minister or Deputy Chief Minister,
but, he refers to certain implied restrictions
which he has not been satisfactorily spelled
out nor have we been able to find any.
There is no such bar, express or implied.

17. In this context, it has been
contended that if such a person is
appointed, then, he will be holding two
constitutional posts or office, one of
Member of Parliament and the other of
Chief Minister/ Deputy Chief Minister,
however, this is not correct. A Member of
Parliament does not hold a constitutional
office or post. Parliament of India is
12 All. Sanjay Sharma Vs. Union Of India & Ors.
1305
constituted under Chapter II of the
Constitution. It has two houses. One known
as house of the people and the other
Council of States. Members of the house of
the People are 'elected' by the people in
terms
of
the
Constitution,
whereas,
Members of the Council of States, some are
elected, and, others are nominated etc. The
Constitution does not create these offices or
posts nor does it define their function and
powers etc. They are thus not constitutional
offices or posts. Constitutional Offices are
offices such as that of the President of
India, Vice President of India, Speaker and
Chief Election Commissioner, so on so
forth, therefore, the contention of Shri
Pandey, learned counsel for the petitioner
that the opposite party nos. 5 and 6 were
holding two constitutional posts/offices at
the same time, does not appear to be
correct. One becomes a Member of
Parliament based on election, whereas, a
Chief Minister/ Deputy Chief Minister is
appointed by the Governor in terms of the
Constitution, which could be the case even
when they have not been elected as
Member of a State Legislature. The
contention as noticed hereinabove is,
therefore, constitutionally fallacious. Office
of Member of Parliament is not a
constitutional post or office. Reliance in
this regard on Article 63, 64, 69, 70 and
158 is misplaced and the analogy sought to
be drawn vis-a-vis office of Vice-President,
Speaker etc. is without any constitutional
basis as latter are constitutional posts,
whereas, Member of Parliament is not.

18. The reasoning being put forth on
behalf of the petitioner that by taking oath as
Chief Minister/Deputy Chief Minister the
opposite party nos. 5 and 6 continued to be
Members of Parliament thereby drawing
salary from two sources, however, there is
nothing on record to suggest, that it was
factually so, just as, there is nothing on record
to suggest that they, after being appointed as
Chief Minister/ Deputy Minister, did not
attend the parliamentary proceedings. In any
case, these arguments have outlived their
utility as already stated earlier in the context
of relief nos. (ii) and (iii). We are only
concerned with the issue as to whether their
appointment of opposite party nos. 5 and 6
was unconstitutional or illegal.

19. We have already stated that there is
no constitutional provision which prohibits a
Member of Parliament from being appointed
or taking oath as Chief Minister or Deputy
Chief Minister of State.

20. To say that this violates the doctrine
of separation of powers is preposterous. The
fallaciousness of the contention is evident
from the fact that every Minister in the State
has ultimately to be a Member of either of
two houses of the State Legislature, an
inference which follows from Article 164(4)
of the Constitution itself. If this contention is
accepted that no Member of Legislature
should be appointed as a Minister because as
member of the Legislature he is part of the
Legislative wing and as Chief Minister/
Deputy Chief Minister he becomes part of the
executive, then no minister could be
appointed, as, every minister so appointed
has to be a member of either house, whether
initially or within six months as mandated
under Article 164(4) of the Constitution,
therefore, this contention is apparently
fallacious and against express constitutional
persons. It is rejected. For all these reasons, to
say that the Governor of U.P. did not exercise
his
discretion
constitutionally,
is
misconception.

21. One of the arguments of Shri
Pandey was that after becoming the Chief
Minister or Deputy Chief Minister such
1306 INDIAN LAW REPORTS ALLAHABAD SERIES
person would be unable to address the
problems of his constituency i.e. the
Parliamentary Constituency. This also is an
argument which is without any factual and
legal basis. In this case opposite party nos.
5 and 6 resigned from their membership of
Parliament within 14 days of being elected
as members of State Legislature. It is
accordingly rejected.

22. The legal position is settled that
even if person is not a Member of the State
Legislature he can be appointed as Chief
Minister of the State subject to the
condition contained in Article 164(4) of the
Constitution that he shall cease to be such
Minister if he does not get elected within a
period
of
six
months
as
referred
hereinabove. Now, this 'person' could,
would include one who is not a Member of
the State Legislature, and a person who is a
Member of Parliament, as, there is no such
bar that a Member of Parliament while
remaining as such, can not be appointed as
Minister of a State.

23. As regards application of Article
101 we have perused the same and find that
Clause (1) and (2) of Article 101 of the
Constitution have no application to the
facts of this case. In this case, the election
to the State Legislature was held on
08.09.2017 and the opposite party nos. 5
and 6 resigned from their membership of
Parliament on 21.09.2017 and their seats
fell vacant in the Parliament on the said
date in view of Article 101 (3)(b).

24. The rules made under Article
101(2) of the Constitution, namely, the
Prohibition of Simultaneous Membership
Rules, 1950 and Rule 2 and 3 contained
therein have no application to the facts of
this case. They envisage a contingency
where a person has been simultaneously
holding a seat in the Parliament and in a
house of legislature of a State specified in
the 1st Schedule to the Constitution of India
and if he does not vacate his seat in the State
Legislature, then, his seat in the Parliament
will fall vacant, whereas, in the case at hand
the opposite party nos. 5 and 6 resigned
from their membership of parliament itself
in terms of Article 101(3)(b) of the
Constitution on 21.09.2017, therefore, Rules
2 and 3 of the Rules, 1950 made by the
President under Article 101(2) and Article
190(2)
of
the
Constitution
have
no
application to the case at hand.

25.
As
regards
the
provisions
contained in Article 190(3) to the effect
that if a member of a House of the
Legislature of a State - (a) becomes
subject to any of the disqualifications
mentioned in clause (1) or clause (2) of
Article 191, then, at the expiration of
such period his seat shall thereupon fall
vacant, we have already discussed Article
191(1)(a) and ancillary issues earlier. No
other disqualification under Article 191
of the Constitution has been pleaded by
the petitioner.

26. We may now refer to the U.P. State
Legislature (Prevention of Disqualification)
Act, 1971, where, office of Minister of State
or Deputy Minister or of Parliamentary
Secretary either for the Union or for the
State is excluded from the list of offices of
profit, meaning thereby, the holder of such
office is not disqualified for being chosen as,
and for being, a member of the State
Legislature. This provision is not attracted to
the case at hand.

27. None of the aforesaid provisions
put any bar on a Member of Parliament
being appointed as Chief Minister or
Deputy Chief Minister.
12 All. Sanjay Sharma Vs. Union Of India & Ors.
1307

28. In the facts of this case, the
opposite party nos. 5 and 6 were elected to
the
Vidhan
Parishad
in
the
State
Legislature of U.P. on 08.09.2017 and
resigned from membership of Parliament
on 21.09.2017 and no such provision has
been placed before us that during this
period they having been Member of
Parliament and member of the Vidhan
Parishad
simultaneously,
invited
any
disqualification or vacation of their seat,
either way, under the Constitution or under
any statute or Rules, therefore, we do not
find any reason to grant relief no. 1 to the
writ petition. It is declined.

29. Now, coming to relief no. (iv),
Section 3(a) of the Parliament (Prevention
of Disqualification) Act, 1959 is as under:-

"3. Certain offices of profit not
to disqualify.- It is hereby declared that
none of the following offices, in so far as it
is an office of profit under the Government
of India or the Government of any State,
shall disqualify the holder thereof for being
chosen as, or for being, a member of
Parliament, namely: -

(a) any office held by a Minister,
Minister of State or Deputy Minister for the
Union or for any State, whether ex officio
or by name;

(aa)..........

(ab)..........

(ac)............

(ad).............

(b) ...............

(ba) .................

(i)....................

(ii)..................

(iia) ...............

(iii)...............

(c)................

(d) .....................

(e) ....................

(f) ...................

(g) ...................

(h) ...................

(i) ...................

(j) ...................

(k) ..................

(l) ..................

(m) ..................

Explanation
1
-
For
the
purposes of this section, the office of
chairman, deputy chairman or secretary
shall
include
every
office
of
that
description by whatever name called.

Explanation 2. -In clause (aa),
the expression "Leader of the Opposition"
shall have the meaning assigned to it in the
Salary and Allowances of Leaders of
Opposition in Parliament Act, 1977 (33 of
1977).

Explanation 3. - In clause (ac),
the expressions "recognised party" and
1308 INDIAN LAW REPORTS ALLAHABAD SERIES
"recognised
group"
shall
have
the
meanings assigned to them in the Leaders
and Chief Whips of Recognised Parties and
Groups in Parliament (Facilities) Act, 1988
(5 of 1999)."

30.
The
aforesaid
relief
has
presumably
been
sought because
on
assuming office of Chief Minister and
Deputy Chief Minister on 19.03.2017 the
opposite party nos. 5 and 6 as per the
understanding of the petitioner held an
office of profit under the State of U.P.,
therefore, they were disqualified to be
Members of Parliament in view of Article
102 (1)(a) of the Constitution of India. This
Relief No. (iv) may have been relevant in
the context of Relief No. (ii) which as
stated earlier has outlived its utility.
Nevertheless, in the context of Relief No.
(iv) we may first and foremost refer to
Article 102 of the Constitution which reads
as under:-

"102.
Disqualifications
for
membership-
(1)A
person
shall
be
disqualified for being chosen as, and for
being, a member of either House of
Parliament-

(a) if he holds any office of profit
under the Government of India or the
Government of any State, other than an
office declared by Parliament by law not to
disqualify its holder;

(b) if he is of unsound mind and
stands so declared by a competent court;

(c) if he is an undischarged
insolvent;

(d) if he is not a citizen of India,
or has voluntarily acquired the citizenship
of a foreign State, or is under any
acknowledgement
of
allegiance
or
adherence to a foreign State;

(e) if he is so disqualified by or
under any law made by Parliament.

Explanation.-- For the purposes
of this clause a person shall not be deemed
to hold an office of profit under the
Government of India or the Government of
any State by reason only that he is a
Minister either for the Union or for such
State.

(2) A person shall be disqualified
for being a member of either House of
Parliament if he is so disqualified under the
Tenth Schedule."

31. On a bare reading of the aforesaid
provisions it is evident firstly that the
Constitution under Article 102(1)(a) itself
permits exclusion of an office from the
purview of the said provision so as not to
disqualify its holder, if it is so declared by
Parliament
by
law.
Secondly,
the
explanation to Article 102 as amended by
the Constitution (Fifty-second Amendment)
Act,
1985
w.e.f.
01.03.1985
clearly
explains the provision and clarifies it that
for the purpose of this clause i.e. Clause
102(1)(a), a person shall not be deemed to
hold an office of profit under the
Government of India or the Government of
any State by reason only that he is a
Minister either for the Union or for such
State. The Chief Minister is also a Minister
of a State, therefore, clearly the explanation
itself excludes the office of the Chief
Minister from application of said provision
which is not attracted to the said office.

32. Parliament has enacted a law in
this regard from time to time which is
referred to Article 102. The first one being
12 All. Sanjay Sharma Vs. Union Of India & Ors.
1309
the
Parliament
(Prevention
of
Disqualification) Act, 1950; then, the
Parliament (Prevention of Disqualification)
Act,
1951;
the
Prevention
of
Disqualification (Parliament and Par- C
State
Legislatures)
Act,
1953
and
ultimately,
a
consolidated
Act
was
promulgated,
namely,
Parliament
(Prevention of Disqualification) Act, 1959,
Section 3- A of which has been challenged
by the petitioner. It is the latter which has
been challenged. This provisions declares
that none of the Offices mentioned therein
in so far as it is an office of profit under the
Government of India or the Government or
any State, shall disqualify the holder
thereof for being chosen as, or for being, a
member of Parliament. Of course the Act,
1959 enumerates several other offices but it
also includes in Section 3(a) any office held
by a Minister, Minister or State or Deputy
Minister for the Union or for any State,
whether ex officio or by name which
includes the Chief Minister and Deputy
Chief Minister also. The Constitution itself
having excluded the office of Minister of a
State which includes Chief Minister and
Deputy Chief Minister from the purview of
operation and application of Article 102
and the said explanation to Article 102 (1)
of the Constitution not having been
challenged by the petitioner, we fail to
understand as to how such a challenge to
Section 3(a) of the Act, 1959 can be raised
and sustained. It can not.

33. Apart from pleading appointment
of opposite party nos. 5 and 6 as Chief
Minister
and
Deputy
Chief
Minister
nothing else has been pleaded as to why
they would be disqualified in view of
Article
102(1)(a),
in
view
of
the
explanation to Article 102(1)(a).

34. We do not find any constitutional
or legal basis for declaring Section 3(a) of
the Act, 1959 as unconstitutional. The Act,
1959 does not contravene Article 101 in
any manner whatsoever. In fact, it is
permissible vide Article 102(1), especially
its Explanation.

35. In view of the above discussion,
we do not find any unconstitutionality in
Section 3(a) of the Act, 1959. Relief No.
(iv) is also declined. For all these reasons,
we do not find any merit in the writ
petition. Accordingly, the writ petition is
dismissed.
----------