U.N. Sinha, J.

(1) This is an application under Article 226 of the Constitution of India, filed by Shree Vidyasagar Singh, describing himself as an advocate of this Court and a social worker. The substance of the application is that opposite parties Nos. 3 to 7 have not been validly nominated under Article 171(3)(e) of the Constitution of India, as members of the legislative Council of Bihar, and the prayer is that the nominations of opposite parties Nos. 3 to 6, named Shrimati Parvati Devi, Shree Parmanand, Shree Fazlur Rahman and Shree Shyama Prasad Singh, may be declared ultra vires, void and illegal. There is no specific prayer as against opposite party No. 7, but Sri Basudeva Prasad, appearing for the petitioner, has submitted that the nomination of opposite party No. 7 may also be declared void and illegal if the Court finds it proper to do so. Learned counsel has stated that this application is really for an information in the nature of quo warranto, asking for a judgment of ouster as against opposite parties Nos. 3 to 6 from the Bihar legislative Council. It is contended that the impugned nominations are ultra vires, void and illegal on the ground that they have been made in contravention of Article 171(3)(e) read with Article 171(5) of the Constitution. Article 171 runs as follows:

"171 (1) The total number of members in the legislative Council of a State having such a Council shall not exceed one-third of the total number of members in the Legislative Assembly of that State: Provided that the total number of members in the Legislative Council of a State shall in no case be less than forty.

(2) Until Parliament by law otherwise provides, the composition of the Legislative Council of a State shall be as provided in Clause (3).

(3) Of the total number of members of the Legislative Council of a State-

(a) as nearly as may be, one-third shall be elected by electorates consisting of members of municipalities, district boards and such other local authorities in the State as Parliament may by law specify; (b) as nearly as may be one-twelfth shall be elected by electorates consisting of persons residing in the State who have been for at least three years graduates of any university in the territory of India or have been for at least three years in possession of qualifications prescribed by or under any law made by Parliament as equivalent to that of a graduate of any such university; (c) as nearly as may be one-twelfth shall be elected by electorates consisting of persons who have been for at least three years engaged in teaching in such educational institutions within the State, not lower in standard than that of a secondary school, as may be prescribed by or under any law made by Parliament; (d) as nearly as may be, one-third shall be elected by the members of the legislative assembly of the State from amongst persons who are not members of the Assembly; (e) the remainder shall be nominated by the Governor in accordance with the provisions of Clause (5).

(4) The members to be elected under Sub-clauses (a), (b) and (c) of Clause (3) shall be chosen in such territorial constituencies as may be prescribed by or under any law made by Parliament, and the elections under the said sub-clauses and under Sub-clause (d) of the said clause shall be held in accordance with the system of proportional representation by means of the single transferable vote.

(5) The members to be nominated by the Governor under Sub-clause (e) of Clause (3) shall consist of persons having special knowledge or practical experience in respect of such matters as the following, namely:-- Literature, science, art, co-operative movement and social service," In order to appreciate the points which arise in this case, it will be more convenient to quote here the application filed by the petitioner in its entirety, which runs as follows:--

"1. That this is an application for declaration of the nominations of the Opposite parties Nos. 3 to 6, as Members of the Bihar Legislative Council made for the Governor of Bihar on 7-5-1964, as ultra vires, void and illegal on, amongst others, the ground that the same is ultra vires of Article 171, Clause 3(e), read with Clause (5) of the Constitution of India. 2. That the petitioner is a citizen or India, residing in the State of Bihar, and is practising Advocate of this Honble Court. The petitioner has been a social worker, rendering social service for a long time, 3. That the petitioner is sufficiently interested in the question of legal constitution of the Legislative Assembly and the Legislative Council of the State of Bihar to which he belongs. 4. That on 7-5-1964 the opposite party No. 1 for the Governor of Bihar nominated opposite party Nos. 3 to 7 as Members of the Bihar Legislative Council. 5. That none of the Opposite Parcy Nos. 3 to 6 belongs to any of the categories mentioned in Clause (5) of Article 171 of the Constitution.

(6) That none of the opposite party Nos. 3 to 6 has special knowledge or practical experience in respect of literature or science or art or co-operative movement, or social services or of all these.

(7) That on previous occasions, the Governor ot the State of Bihar made nominations to the Bihar Legislative Council giving representation to all the categories mentioned in Clause (5) of Article 171 of the Constitution of India.

(8) That the nominations of the five Members of the Legislative Council, Bihar made on the 7th May, 1964 were made by the Chief Minister for the Council of Ministers and only information about the nominations were conveyed by Opposite Party No. 1 to the Governor of Bihar.

(9) That the nominations mentioned above were made with a view to increase the strength in the Legislature of the group in power in the State and not with a view to give representation in the Legislative Council to the categories mentioned in Article 171(e) of the Constitution.

(10) That the Governor of Bihar has not taken any decision that the power of nomination to the Council shall be exercised by him on the advice of the Council of Ministers and not in his own discretion.

(11) That on 30-6-1964, the petitioner, through his Counsel sent a letter to the Chief Minister, Bihar. A copy of the letter is annexed herewith as Annexure A.

(12) That on 9-7-1964, the Chief Minister, Bihar, sent a reply to the above letter, a copy of which is annexed herewith as Annexure B.

(13) That on 10-8-1964, the Chief Minister stated on the floor of the Bihar Legislative Assembly that the rules of Executive Business, framed under the Constitution for this purpose did not require nominations to the Council to be placed before the Governor and that he had made the impugned nominations. The petitioner is advised to submit that the aforesaid nominations, purported to have been made by the Governor of the State of Bihar, are ultra vires, void and illegal for the following REASONS:--

I) Because the nominations are ultra vires of Article 171, Clause (3)(e), read with Clause (5) of the Constitution of India, and, therefore, of no legal and valid effect. II) Because the nominations impugned amount to colourable exercise of power under Clause (5) of Article 171 of the Constitution of India.

(14) That the petitioner had filed a writ petition (M. J. C. No. 857 of 1964) in this Honble Court for the reliefs prayed for in this application, which was withdrawn on 15-5-1964 on the observation of the Court that more facts could better be stated in the petition.

(15 ) That the petitioner has no other effective or expeditious alternative remedy other than by moving this Honble Court by this petition." 2. In the affidavit portion of the application, sworn by the petitioner himself, it has been stated that "the statements of fact contained in this petition are true to my knowledge and the rest are submissions to this Honble Court: Annexures A and B to this application read thus:-- Annexure A

"To The Chief Minister, Bihar, Patna. Dear Sir, I am instructed that the nominations of the five members of the Legislative Council, Bihar, made on the 7th May, 1964, were made by the Council of Ministers and only information about the nominations was conveyed by you to the Governor of Bihar. I am further instructed that the Governor of Bihar has not taken any decision that the power of nomination to the Council shall be exercised by him on the advice of the Council of Ministers and not in his own discretion. I am also instructed that the nominations mentioned above were made with a view to increase the strength in the Legislature of the group in power in the State and not with a view to give representation on the Legislative Council to the categories mentioned in Article 171(e) of the Constitution of India. I shall be highly obliged, if you kindly let ma know how far these Informations are correct. If, however, I do not hear from you in reply within one week from the date of the receipt of this letter, I shall presume that the informations are correct. The 30th June, 1964. Truly yours, Sd, Basudeva Prasad, Advocate, Kadamkuan, Patna--3"

Annexure B

"Chief Minister Bihar Camp Ranchi/Patna. 7/9-7-1964 D. O. No. C. S. 6055 Dear Shri Basudeo Prasad, I thank you for your letter ot the 30th June, 1964, about the nominations to the Council. I regret very much my inability to disclose matters relating to the advice tendered to the Governor. Yours sincerely, Sd. K. B. Sahay 7-7-64 (K. B. Sahay)."

By a supplementary affidavit filed by the petitioner, it has been mentioned that Annexure C attached to the supplementary affidavit contains the relevant portion of the written reply given by the Chief Minister of Bihar to the debate of No Confidence moved on the 6th August, 1964 by the leader of the Opposition. This annexure appears to be one in connection with the statements made in paragraph 13 of the main application Annexure C reads thus:--

"The following is the text of the written reply of the Chief Minister of Bihar, Sri K. B. Sahay to the debate on no confidence motion moved on the 6th August 64 by the leader of the opposition The opposition leader Shri Kamakhaya Narain Singh has charged the Chief Minister with violation of the Constitution in the recent biennial nominations to the Bihar Legislative Council. The Rules of Executive Business framed under the Constitution for this do not require nominations to the Council to be placed before the Governor. The nominations made this year by the Chief Minister under the authority given to him by the Cabinet do not violate the Constitution. The persons nominated possess the special knowledge and practical experience required in the Constitution Mr. Speaker Sir, I have tried to answer all the points raised by the opposition. My Government has left no stone unturned for an efficient and clean administration. The first and foremost consideration of my Government with all the spheres of its activities is the well-being of the people of Bihar and raising their living standard. Neither those who wish to corner the National wealth for personal gain nor those who would welcome peoples difficulties as a golden opportunity in troubled waters, are the friends of the people. The common man and woman of this State have a sound head and clean heart and the vituperations of those who are out to mislead them and to malign and embarrass a Government which is doing the very best that is possible in the circumstances, will fall on (sic) the ears of unbelieving listeners."

3. These are the facts, upon which the petitioner has asked this Court to declare the nominations of opposite parties Nos. 3 to 6 ultra vires, void and illegal by a judgment of ouster. As indicated earlier, the petitioner has not made any prayer against the nomination of opposite party No. 7 named Shree Mathura Prasad Singh, presumably because it has been stated in the application that only opposite parties Nos. 3 to 6 do not belong to any of the categories mentioned in Article 171(5). The name of opposite party No. 2, Shree Satyandra Navayan Sinha, Education Minister of Bihar, was expunged from the record at the time of admission of this application, at the instance of the learned counsel for the petitioner and all the other opposite parties have appeared in this Court through counsel. The main argument tor the opposite parties has been made by the learned Attorney-General of India, who has been followed by the learned Government Advocate. A counter-affidavit has been filed by opposite party No. 1, Shree Krishna Ballabh Sahay, Chief Minister of Bihar. To this counter-affidavit a reply has been given by the petitioner. No return has been filed by opposite parties Nos. 3 to 7. In paragraph 5 of the counter-affidavit filed by opposite party No. 1 it is stated that the nominations disputed by the petitioner had been made in conformity with the provisions of Article 171 of the Constitution of India and the nominations were published in the Bihar Gazette, copies of which have been annexed us Annexures A and B of ihe counter-affidavit. It is stated that Sri R. Prasad, Deputy Secretary to Government, had been authorized by the Governor by notification No. A-933, dated the 25th January, 1952, to put his signature for proper authentication, as contemplated by Article 166(2) of the Constitution and the orders contained in the notifications had been duly authenticated by Sri R. Prasad. It is stated that in view of the notifications, containing the nominations of opposite parties Nos. 3 to 7, the nominations must be aeeepted as those of the Governor. It is further stared in the counter affidavit that in view of the Rules of Executive Business made by the Governor, by order dated the 25th January. 1952. the matter of nomination of members of the legislative Council does not fall within the class of cases to be submitted by the Chief Minister to the Governor. With respect to Annexure C tiled by the petitioner with his supplementary affidavit, it is stated that the true meaning of the speech was that the responsibility for making appointments rested on the Chief Minister, but the question as to whether in point of law, the nominations must be deemed to be made by the Chief Minister or the Governor, was not the subject-matter of the speech. Then, it is stated in the counter-affidavit, that opposite parties Nos. 3 to 6 were persons who fell within the classification mentioned in Article 171(5) and the imputation made to the effect that the nominations had been made with a view to increase the strength of the group in power is wrong. The reply to the counter-affidavit filed by the petitioner contains refutations of the assertions made in the counter-affidavit, with additional factors stating that opposite party No. 5, named Shree Fazlur Rahman had been refused Congress ticket once as he was found unsuitable by the Congress High Command and that opposite party No. 6 was once condemned by the Congress High Command and debarred from seeking nomination on account of charges of favouritism, partisanship etc. Substantially, these are the facts of this case, and it will be useful, at this stage, to quote the notifications mentioned above. They were both published to the Bihar Gazette Extraordinary, dated the 7th May, 1964, ami they run as follows:--

"Political (General and Transport) Department. (Election Section) Notification. The 7th May 1964/17th Vaisakha 1886 (Saka). No. Bl-404/84-Elec.-1632.--In exercise of the power conferred by Sub-clause (c) of Clause (3) of Article 171 of the Constitution, the Governor of Bihar is pleased to nominate the following persons to be members of Bihar Legislative Council to fill the seats in the Bihar Legislative Council of the four nominated members retiring on the 6th May 1964, on the expiration of their terms of office:-- (1) Shri Fazlur Rahman. (2) Shri Parmanand. (3) Shrimati Parbati Devi (4) Shri Mathura Prasad Singh. By order of the Governor of Bihar. R. Prasad. Chief Electoral Officer, Bihar and Deputy Secretary to Government."

"Political (General and Transport) Department. (Election Section) Notification. The 7th May 1964/17th Vaisakha 1886 (Saka). No. BI-105/G4 EW.-1636.--In exercise of the power conferred by Sub-clause (e) of Clause (3) of Article 171 of the Constitution, the Governor of Bihar is pleased to nominate Shri Shyama Prasad Sinha to be a member of the Bihar Legislative Council to fill the seat in the Bihar Legislative Council caused vacant by the death of Dr. Muktesh-war Sinha. By order of the Governor of Bihar R. Prasad. Chief Electoral Officer. Bihar and Deputy Secretary to Government."

4. The first contention raised by learned counsel for the petitioner is to the effect that the power exercised by the Governor under Article I71(3)(e) is not an exercise of the executive power of the State, but that in acting under this provision of the Constitution, the Governor exercises his special constitutional function, mentioned therein, and this function has to be performed by the Governor himself, in his discretion. It is argued that the performance of this function must also be expressed as having been done by the Governor personally. That is to say, according to learned counsel for the petitioner, if Clauses (3) (e) and (5) of Article 171 of the Constitution are read together, the only conclusion that can follow is that the power to nominate members of the Legislative Council has been given to the Governor, to be exorcised in his discretion, without reference to the Council of Ministers, so as to make the Legisative Council a representative body, without any influence of the Executive Government of the State. In the alternative, it is urged that even if the power of the Governor under Article 171(3)(e) contemplates an exercise of the executive power of the State, the nominations made in this case having been made by the Chief Minister, and not having been finally approved by the Governor personally, they are void. In other words, it is contended under this heading that whether the nominations to the Legislative Council are to be made in exercise of the absolute discretion of the Governor or in exercise of the executive power of the State, with the aid and advice of the Council of Ministers, the nominations have ultimately to be made by the Governor and signed by him personally.

5. The learned Attorney-General appearing for the Chief Minister of Bihar has relied upon the notifications quoted above and has put forward two arguments. The first argument is that under Article 171(3)(e) of the Constitution, the nomination is not made by the Governor in his discretion, but is made; by the Governor, in exercise of the executive power of the State vested in him on the aid and advice of the Council of Ministers. Reference is made to Articles 154(1) and 163(1) of the Constitution in this connection, which run thus:-- Article 154(1) "The executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution." Article 163(1): "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 functions or any of them in his discretion." The second branch of the argument is to the effect that in view of Article 166(2) of the Constitution, the petitioner cannot question the nominations made in the name of the Governor and authenticated in the manner specified in the rules made by the Governor, on the ground that the nominations were not made by the Governor. Article 166 runs as follows:-- "166. (1) All executive action of the Governor of a State shall be expressed to be taken in the name of the Governor. (2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or Instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. (3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion." The learned Attorney-General has referred to paragraph 5 of the counter-affidavit of opposite party No, 1 for arguing that the orders made by the Governor under Article 171(3)(e) of the Constitution have been authenticated in the manner laid down by the Governor by notification No. A-933, dated the 25th January, 1952, and that, therefore, the orders of the Governor made in his name cannot be questioned on the grounds relied upon by the petitioner. To this, the learned counsel for the petitioner has replied by urging that Article 166(2) of the Constitution does not apply to nominations under Article 171(3)(e), inasmuch as according to the first part of his argument, the nominations have to bo made by the Governor, in his discretion, whereas Article 166(2) applies to expressions of the executive action of the Government of a State. It is contended that if the Governor has to make the nominations in his discretion, no shelter can be taken behind notifications purporting to express orders of the Governor, as if the orders were passed in connection with the executive action of the Government of the State. Secondly, it is replied that it is open to the petitioner to contend, in spite of the authenticated order, that the nominations were not, in fact, made by the Governor. According In the learned counsel, an authenticated order may not be called in question on the ground that it is not an order made by the Governor, but it is still open to him to prove that the actual nominations had not been made by the Governor. For the second proposition in this context, reliance is placed by the learned counsel for the petitioner on the decision of the Privy Council in the case of Emperor v. Sibnath Bunerji reported in AIR 1945 PC 156 [LQ/PC/1945/30] . Upon hearing learned counsel for the parties in this ease, it appears to me, that, unless the petitioner is first able to establish the facts, upon which he can call upon the Court to interpret the various Articles of the Constitution, mentioned above, interpretation of these Articles would bo merely academic. It will, therefore, be necessary lo find out what facLs have been established by the petitioner for the relief claimed by him. The common case being thai opposite parties Nos. -3 to 7 have been nominated to the Biliat" Legislative Council, the petitioner will have to satisly this Court that they have not been nominated by the Governor under Article 171(3)(e) of the Constitution. If the notifications dated the 7th Ma, 1964 arc taken into consideration, they state that the Governor has nominated the five persons named therein as members of the Bihar Legislative Council, under Article 171{3)(e) of the Constitution. If the petitioners contention is right that the provision of Article 166(2) dors not refer to any act which the Governor lias to perform in his discretion, and, therefore, the notifications are not of nm consequence, then he has to show that the Governor had not nominated these five persons. On ihe Other hand, if Article lfift{2) i- applicable, then, at the highest, the petitioner can say that it is open to him to show, that, as a matter of fact, the Governor had not nominated these Jive persons, although the authenticated orders say that he had so nominated. Both these approaches will point to the s.tme enquiry, namely, whether the petitioner has been able to prove that the Governor has not nominated opposite parties Nos. 3 to 7. In this light, let us see what tacts the petitioner has alleged and what facts ho has proved. The entire application of the petitioner has been quoted above and the reference has also Ixen made to the relevant portion of the affirmation regarding statements of fact said to be mentioned in the application. It is, however, difficult to accept the assertion that any fact has been mentioned fa the application which can be said to be true to the tfie knowledge of the petitioner. Indeed, upon the point raised by the petitioner, that, the Governor of Bihar did not nominate opposite parties Nos. 3 to 7, not many facts have been mentioned in the application, except that from the assertions made in the application, the Court has been asked to infer that the Governor has not nominated (hose opposite parties, as required under Article 171(3)(e). Learned counsel for the petitioner has specifically relied upon paragraphs 8, 10 and 13 of the application for the purpose of proving the petitioners case that the nominated members in question had not been validly nominated. But what has been stated in paragraph 10 is really a negative assertion to which the counter-affidavit filed by the Chief Minister of Bihar has answered in a positive manner. It has been mentioned in the counter-affidavit that the nominations had been made in conformity with the Rules of Executive Business, made by the. Governor on the 25th January, 1953. Learned counsel for the parties have freely referred to the Rules of Executive Business, printed by the Superintendent, Secretariat Press, Bihar, Patna, in 1963, and, as a matter of fact, the petitioner in his affidavit in reply to the counter-affidavit filed by the Chief Minister, has himself quoted the whole of paragraph 28(b), occurring in Part III of the Rules of Executive Business. According to the learned Attorney-General, the Rules of Executive Business were framed under Article 166(3) of the Constitution, as the Rules have themselves mentioned. The relevant provisions of these Rules are Rules Nos. 8, 12 and 13, which run as follows:-

"8. Subject to the orders "of the Chief Minister under Rule 12, all cases referred to in the Third Schedule to these rules shall be brought before the Council in accordance with the provisions of the rules contained in Part II: Provided that no case in regard to which Finance Department is required to be consulted under Rule 10 shall, save in exceptional circumstances under the direction of the Chief Minister, be discussed by the Council unless the Finance Minister has had an opportunity for its consideration."

"12. All eases referred to in the Third Schedule shall be submitted to the Chief Minister through the Secretary to the Council after consideration by the Minister-in-charge, with a view to obtaining his orders for circulation of the case under Rule 13 or for fringing it up for consideration at a meeting of the Council."

"13. (1) The Chief Minister may direct that any case referred to in the Third Schedule may, instead of being brought up lor discussion at- a meeting of the Council, be circulated to the Ministers for opinion, and if the Ministers are unanimous and the Chief Minister thinks that a discussion at a meeting ot the Council is unnecessary, the case shall be decided without such discussion. If the Ministers are not unanimous or if the Chief Minister thinks that a discussion at a meeting is necessary, the case *hall be. discussed at a meeting of the Council. (2) It it: is decided to circulate any case to the Ministers, copies of all papers relating to such ease which are circulated among the Ministers shall simultaneously be sent to the Governor" Item No. 10 of the Third Schedule, mentioned in these Rules, reads thus:-- "30. Proposals to nominate members of the Legislative Council under Article 171(3)(e)."

It is thus clear from these Rules, read with item No. 30 of the Third Schedule, that, proposals regarding nomination of members of the Legislative Council have been left to the Council of Ministers for consideration. Rule 28(b) states thus:-- Rule 28(b). "The following classes of: cases shall be submitted by the Chief Minister to the Governor before the issue of orders;--

(i) Proposals for the grant of pardons, reprieves, respites or remissions of punishment or for the suspension, remission or commutation of a sentence in pursuance of Article 161. (ii) Cases which affect or are likely to affect the peace and tranquillity of the State. (iii) Cases which affect or are likely to affect the interests of scheduled castes, scheduled tribes and backward classes. (iv) Cases which affect the relations of the State Government with the Government of India, any other State Government, the Supreme Court or the High Coin-;. (v) Cases pertaining to the Governors personal establishment and Raj Bhawan matters (vi) Proposals for the appointment of Chairman, Members and Secretary ot the State Public Service Commission. (vii) Cases relating to the non-application of Acts of Parliament or of the State Legislature to the Scheduled Areas and the making of regulations for the peace and good government of those areas, (viii) Any departure from these rules which comes to the notice of the Chief Minister or the Secretary of any department. (ix) Such other cases ot administrative importance as the Chief Minister might consider necessary."

There is no dispute that any proposal to nominate members of the legislative Council under Article 171(3)(e) has not been included in Rule 28(b). Apparently, that is why in paragraph 8 of the counter-affidavit filed by the Chief Minister it has been mentioned that the matter of the nominations of members to the Legislative Council does not fall withih the class of cases to be submitted by the Chief Minister to the Governor. Even assuming that instead of the Council of Ministers, the Chief Minister had selected the names, acting for the Council of Ministers, with the Councils approval, no direct evidence can be available as to what happened between the selections made by the Chief Minister and the publication of the notifications, which stated that the Governor of Bihar had nominated these five members to the Legislative Council. The Chief Minister has stated in paragraph 7 of his counter-affidavit that he is not at liberty to reveal the proceedings of the Cabinet or the communication between himself and the Cabinet and the Governor in relation to the nominations of opposite parties Nos. 3 to 7 as members of the Bihar Legislative Council, and in my opinion, it is not possible to question this assertion. According to Article 163(3) of the Constitution of India, the question whether any, and if so, what advice is tendered by the Ministers to the Governor shall not be enquired into in any Court. Therefore, from the materials dealt with upto this stage, it is, not possible to hold that the nominations challenged in this case have not been made by the Governor. Let us now see, whether, the petitioner has been able to put his case any higher, based on the written reply given by the Chief Minister in the debate of No Confidence motion moved on the 6th August, 1964, by the leader of the Opposition in the Assembly. Learned counsel tor the petitioner has argued in this connection that the Chief Ministers speech clearly proves that the nominations to the Council had never been placed before the Governor. This argument appears to be contrary to what is stated in paragraph 8 of the application, where it is stated that information about the nominations had been conveyed by the Chief Minister to the Governor. Learned counsel has explained this discrepancy by saying that paragraph 8 of the application had meant that some information may have been conveyed to the Governor after the nominations had been made by the Chief Minister, but whereas the selections were dependent upon the Governors ultimate choice, the final approval of the Governor had not been given. I have already indicated above how the matter of nomination has been left to the Council of Ministers by the Rules of Executive Business, and in my opinion, the speech of the Chief Minister, quoted above, cannot be interpreted to mean what the learned counsel for the petitioners asks this Court to hold. All that the speech of the Chief Minister meant was that whereas a number of cases have to be submitted by the Chief Minister to the Governor before issue of orders, the matter of nomination to the Legislative Council need not be so placed. But, it is not possible to speculate from the speech as to what had happened after the Chief Minister had selected these members on behalf of the Council of Ministers and before their names were published in the notifications as having been nominated by the Governor. It is not possible to conclude in favour of the petitioner that he has proved to the satisfaction of the Court that the Governor had not nominated opposite parties Nos. 3 to 7 and that, therefore, he is entitled to a judgment of ouster as against opposite parties Nos. 3 to 6 at least, as he has prayed. In my opinion, this Court should not embark upon an academic discussion on the question as to whether the Governor acts, in his discretion, under Article 17l(3)(e), without reference to the Council of Ministers, or whether he acts under this provision of the Constitution, with the aid and advice of the Council of Ministers, so as to be constitutionally bound to accept their advice. It has further been contended by learned counsel for the petitioner that under Article 171(5) of the Constitution, the persons to be nominated should represent all the categories mentioned in that clause. It is thus urged that all the matters mentioned in that clause, namely, literature, science, art, co-operative movement and social service, must be represented by the nominated members, and the five persons nominated do not represent all the branches mentioned in Clause (5) of Article 171. In my opinion, this contention has only to be mentioned to be refected. Learned counsel was unable to answer what will happen if four persons or six persons have to be nominated to the Council. In any event this requirement under the Constitution states that the members to be nominated shall consist of persons having special knowledge or practical experience "in respect of such matters", as mentioned therein. Even the categories mentioned may not be exhaustive in their scope. It is not possible to hold that each of the subjects mentioned in this requirement of law must be represented in every case. It has then been contended that opposite parties Nos. 3 to 6 were not at all qualified to be nominated under Article 171(5) Reliance is placed on paragraphs 5 and 6 of the application filed by the petitioner. In the counter-affidavit filed by the Chief Minister, it is stated that opposite parties Nos. 3, 4 and 5 are social workers and opposite party No. 6 has special knowledge and experience in respect of Hindi literature. I am of the opinion, however, that this question cannot be judged by this Court in this case This Court cannot be called upon to enter into this question of fact for determining whether the members nominated in this case have or have not the required qualifications necessary under the Constitution. The assertions of the petitioner have been denied and that must conclude the matter. Lastly, learned counsel for the petitioner has forcefully urged that the nominations made in this case are a fraud on Article 171(3)(e) of the Constitution and if the Goveinor had played no role in the final choice of the members, the nominations in this case were a colourable exercise of power. The argument that the Governor had not nominated the members has already been dealt with above and, in my opinion, no case has been made out for declaring the nominations to be void, on the ground of fraud on power or on the ground of a colourable exercise of power by the Chief Minister. Now, I will refer to some other aspects of the case, commencing with the fact stated in the application that the petitioner had filed an earlier application numbered as Miscellaneous Judicial Case No. 857 of 1964, which was withdrawn on the 15th May, 1964. In order to get over the effect of the earlier withdrawal of a similar ase filed by the petitioner, learned counsel has maintained that the petitioner is an advocate of this Court and a social worker and he has every right to move this Court again for vindicating the provisions of the Constitution, and that after the first application was withdrawn, the Chief Minister supplied fresh materials in his speech for a second approach to this Court for a judgment of ouster against the nominated persons. Reliance is placed on the case of Rex v. Speyer, Rex v. Cassel, reported in (1916) 1 KB 595 for the contention that the petitioner has acted rightly in moving this Court on purely public ground without any private interest whatsoever. Relying upon this decision, learned counsel has gone so far as to urge that the Court should be inclined "to the assistance and not to the hindrance" of the petitioner, as was said at page 613 of (1916) 1 KB 595. High sounding as the principles contended for appear to be, I am of the opinion, that in this case the withdrawal of a similar application on an earlier occasion may not be without significance. After the withdrawal of the first application, came the letter, dated the 30th June, 1964, and the purpose of sending this letter to the Chief Minister, is, to my mind, ununderstandable. By that time, the petitioner had moved this Court for declaring the nominations of the same persons to be void and he had withdrawn that application. The irresistible conclusion is that the letter dated the 30th June, 1964 was fishing in its nature, taking a chance that some new matter may come out in the reply, for further action. This letter need not have been answered at all, in spite of the threat given to the effect that if the counsel of the petitioner did not hear from the Chief Minister in reply within one week of the date of the receipt of the letter, he shall presume that the informations were correct. But, nevertheless the letter was answered by the Chief Minister. Then crime the speech of the Chief Minister in the House and it is quire clear that the petitioner has taken advantage of it for moving this Court for a fresh challenge to the same nominations. In this connection, it may not be inappropriate to reiterate one of the grounds of challenge in this ease mentioned in paragraph 9 of the application, to the effect that the impugned nominations had been made to increase the strength in ihe Legislature, of the group in power in the State and they had not been made with a view to give representation in the Legislative Council to the categories mentioned is, Article 171(5) of the Constitution. Then, in support of the contention that opposite parties Nos. 8 to 6 did not fulfil the requirements of Article 171(5), some additional materials have been given in the affidavit in reply filed by the petitioner. It is stated in paragraph 9 of the reply that opposite party No. 5 had been refused Congress ticket as he was found unsuitable by the Congress High Command. It has further been mentioned that when opposite party No. 6 was Chairman of the Bihar Legislative Council, he was condemned by the Congress High Command and was debarred from seeking nomination on account of charges of favouritism, partisanship etc. Even an extract from an issue of the Hindusthan Standard dated the 9th October 1958 has been annexed to this reply, for challenging the desirability of having opposite party No. 6 in the Council. I have already mentioned that the petitioner has prayed for a declaration that the nominations of opposite parties Nos. 3 to 6 only are void although he has challenged the constitutionality of the nomination of all the five nominated members. This prayer is also incomprehensible During the course of argument, a question had arisen as to the nature of the prayer made in this case and in an application filed on the 23rd November, 1964, during the hearing of the case, the petitioner had mentioned that this Court may declare the nomination of opposite party No. 7 also as illegal, if this Court considers it proper to do so, although no such prayer was made even at that stage This application was filed for calling for certain papers and by order dated the 26th November, 1964 the application was dismissed. It is difficult to understand how the petitioner can be said to have moved this Court purely on public grounds without any private interest, challenging the nominations of opposite parties Nos. 3 to 7 and then praying that the nominations of opposite parties Nos. 3 to 6 only may be declared as void. All these matters, in my opinion, may well lead one to suspect that the application has not been inspired by the best of motive, in support of the requirements of the Constitution, as asserted. Before I conclude, I may advert to an objection taken by the learned Attoney-General, regarding the locus staudi of the petitioner to file this application for a writ in the nature of quo warranto. It was urged by him that the petitioner was in no way connected with the legislature and only because lie chooses to describe himself as a social worker, be cannot be permitted to question the nominations, as he has no personal interest in the matter, nor lias he been prejudiced by these nominations. I do not, however, consider this argument us valid, for dismissing the application on this preliminary ground. In my opinion, there is no bar to the petitioner agitating the questions of public importance which have been raised in this case. Be that as it may, I have held that the petitioner has failed to substantiate his contention that opposite parties Nos. 3 to 7 have not been nominated to the Legislative Council by the Governor of Bihar, and, therefore, this application must fail and it is dismissed with cost. The cost is assessed at a consolidated amount of Rs. 300.