PERUMAL M. C. v. STATE OF KARNATAKA — 1978 DIGILAW 39 (KAR)

( 1 ) WHETHER a Member of the Legislative Council designated as "government chief Whip" in the Legislative Council by the Chief Minister is entitled to continue as such even after the proclamation issued by the President under Art. 356 of the Constitution and the assumption of functions of the government of the State by the President and consequent dissolution of the Legislative Assembly and the termination of the office of the Chief minister and his Council of Minisers, and is entitled to draw the salaries and other allowances and to get all amenities provided for the "government cheif Whip" in the Legislative Council, is the question that arises for consideration in this petition. ( 2 ) THE facts of the case are these : The petitioner is a Member of the karnataka Legislative Council. He was designated as the "government chief Whip" of the Legislative Council with effect from 31-12-1976 by the chief Minister. The definition of "government Chief Whip" is given in s. 2 (bb)of the Karnataka Legislature Salaries (Third Amendment) Act, 1976 (hereinafter called 'the Act'), which reads as follows: "2 (bb) 'government Chief Whip' means a member of the Legislative assembly or the Legislative Council designated by the Chief minister as the Government Chief Whip in the Legislative Assembly or the Legislative Council". Sec. 10jof the Act provides that each "government Chief Whip" is entitled to a salary of Rs. 1,000 per mensem. S. 10-K of the Act provides that the Government Chief Whip shall each be entitled without payment of rent to the use of a furnished residence in the City of Bangalore throughout his term of office or in lieu of such furnished residence to a house rent allowance at the rate of three hundred and fifty rupees per mensem. Sec. 10-L of the Act provides that a suitable motor-car may be provided for the use of each Government Chief Whip, and they will also be entitled to a conveyance allowance at the rate of five hundred rupees per mensem. S. 10m of the Act provides that the State Government shall provide one stenographer and one peon to each Government Chief Whip. S. 10-N of the Act provides for the payment of cost of petrol in respect of the motor-car and also certain other maintenance charges relating to residential house. S. 10m of the Act provides that the State Government shall provide one stenographer and one peon to each Government Chief Whip. S. 10-N of the Act provides for the payment of cost of petrol in respect of the motor-car and also certain other maintenance charges relating to residential house. Consequent on the recognition of the petitioner as "government chief Whip" in the Legislative Council, the petitioner was getting the salary and allowances and was also getting amenities as provided in the aforesaid provisions. ( 3 ) THE President of India issued a proclamation dated 31-12-1977 in exercise of the powers conferred on him under Art. 356 of the Constitution and assumed himself all functions of the Government of the State of karnataka and also all powers vested in or exercisable by the Governor of the Stale. In the said Notification, inter alia, the Legislative Assembly was dissolved, and Arts. 163 and 164 of the Constitution which provide for the Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions was suspended. In other words the elected Government functioning in the State with the chief Minister and the Council of Ministers, came to an end. ( 4 ) AFTER the issue of the Presidential Notification under Art. 356 of the Constitution, the Secretary, Karnataka Legislature sent a communication dated 2-1-1978 (Ex. A) to the petitioner, which reads as follows:"consequent upon the proclamation by the President dated 31st december 77, the post of Government Chief Whip in the Legislative council has ceased to exist. I am therefore to request you to kindly return the Govt car placed at your disposal. Your personal staff will also be dispensed with effect from the date of proclamation. All other facilities are also deemed to have been withdrawn from the date of proclaimation. "aggrieved by the aforesaid communication, the petitioner has presented this petition. I am therefore to request you to kindly return the Govt car placed at your disposal. Your personal staff will also be dispensed with effect from the date of proclamation. All other facilities are also deemed to have been withdrawn from the date of proclaimation. "aggrieved by the aforesaid communication, the petitioner has presented this petition. ( 5 ) SRI V. K. Govindarajulu, learned counsel for the petitioner contended that the aforesaid communication issued by the respondent is illegal and ultra vires, for the reason that the petitioner was recognised by the chief Minister as "government Chief Whip" of the Legislative Council and as he has not ceased to be Member of the Legislative Council and as the Legislative Council is not subject to dissolution under the Constitution, he is entitled to continue as "government Chief Whip" until another person is designated in his place and that he is also entitled to the remuneration and ther amenities in accordance with the provisions of the Act. He also pointed out that the salary and other amenities required to be provided under the Act to the Chairman and Deputy Chairman and also the Leader of the Opposition have not been withdrawn and similarly there was no justification for denying the salary and other amenities due to the petitioner alone who is "government Chief Whip". ( 6 ) ON the other hand, Sri K. Shivashanker Bhat, learned Government advocate, appearing for the respondent, contended that the "government chief Whip" is an important functionary in the cabinet and parliamentary system of Government nominated by the Chief Minister and has no independent existence. He therefore, urged that when the term of office of the Chief Minister and his Council of Ministers comes to an end on the imposition of the President's Rule and the suspension of Arts. 163 and 164 of the Constitution, the functions of the Government Chief Whip come to an end and hence the petitioner automatically ceased to be a "government chief Whip". ( 7 ) NEITHER the office of the "govt Chief Whip" is created by the constitution or any statutory provision nor its term of office is regulated by any such provision. All that is provided under the Act is only the definition of the "government Chief Whip" and the emoluments and other amenities to be extended to the "government Chief Whip". All that is provided under the Act is only the definition of the "government Chief Whip" and the emoluments and other amenities to be extended to the "government Chief Whip". Therefore, in order to find out whether a "government Chief Whip" can continue in office even after the term of office of the Chief Minister and his council of Ministers comes to an end, it becomes necessary to ascertain the nature of the functions or office of the "government Chief Whip" under the cabinet system of Govt. Under our Constitution, we have adopted parliamentary and cabinet system of Govt both at the Centre and the states. The President is the head of the Union with the Prime Minister and Council of Ministers to aid and advise the President in the discharge of his functions under the Constitution, At the State-level, the Governor is the head of the State with the Chief Minister and his Council of Minister to aid an,d advise the Governor in the discharge of hie functions under the Constitution except so far he is by or under the Constitution required to exercise his functions or any one of them in his discretion. The Union Legislative consists of Rajya Sabha (Council of States) which is a permanent body and the Lok Sabha (House of People) which is required to be elected periodically as prescribed in the Constitution and is also subject to dissolution even before the prescribed period. Similarly at the State-level, the Legislature of the State consists of Legislative assembly which is required to be elected periodically as provided under the Constitution and is also subject to dissolution even before the prescribed time. There is also provision for the Constitution of the Legislative council in the State which after its constitution continues to be a permanent body until it is abolished. In this State, we have both Legislative assembly and Legislative Council and the petitioner is a Member of the legislative Council. The Legislative Council, is not subject to dissolution. As our system of Govt is similar to the British system of Govt, it is necessary to trace the history of the creation, of the Office of the "govt chief Whip", and his functions from the British system. The Legislative Council, is not subject to dissolution. As our system of Govt is similar to the British system of Govt, it is necessary to trace the history of the creation, of the Office of the "govt chief Whip", and his functions from the British system. In support of the stand taken in the statement of objection, the learned Govt Advocate appearing for the respondent, relied on the relevant passages in various books of eminent English authors throwing light on the origin, nature of office and function of the "govt Chief Whip" and also on the books of eminent Indian authors which are set out hereinafter : (i) 'parliamentary Practice' by Erskine May (8th Edn) at pages 239 to 241 - Constitution of Party Machinery" Inside the House of Commons each party has a fairly elaborate organization, presided over by officials who are Members of the house and staffed by subordinate officials who are not Members. The officers or Whips of the party in office consist of the Chief Whip who holds the official position of Parliamentary or Patronage Secretary to the Treasury, three officers of the House-hold, and five Lords of the treasury, with the addition of up to six Members who act as Assistant whips; all these Whips receive salaries. All Govt Whips rank as ministers of the Crown. One of the Lords of the Treasury is usually appointed Deputy Chief Whip. The Whips of a party in opposition consist usually of the survivors of those who were Whips when it was in office together with as many other Members as may be selected for the purpose. Since 1965 the Chief Opposition Whip has been paid a salary out of the Consolidated fund. The Govt Whips and the Whips of the official opposition and of the second opposition party (when there is more than one party in opposition) have offices as near the Chamber as may be : duties of Whipsthe efficient and smooth running of the parliamentary machine depends largely upon the Whips. Certain duties are common to Whips of all parties, but by far the most important duties devolve hpon the Govt Chief Whip. He is concerned with mapping out the time of the session; for applying in detail the Govt's programme of business; for estimating the time likely to be required for each item, and for arranging the business of the individual sitting. He is concerned with mapping out the time of the session; for applying in detail the Govt's programme of business; for estimating the time likely to be required for each item, and for arranging the business of the individual sitting. In drawing up the programme he is limited to a certain extent by the standing orders, which allot a modicum of time to private members; and by statute law or standing orders, which require, or may require, certain business to be completed by specified dates, as well as by certain conventions which make it obligatory upon him to consult the Whips of Opposition Parties and even to put down items of their selection (see pp. 279-80 ). In carrying out his duties, he is directly responsible to the Prime Minister and Leader of the House. It is also part of his duties to advise the Govt on parliamentary business and procedure and to maintain a close liaison with Ministers in regard to parliamentary business which affects their departments. He, together with the Chief Whips of other parties, constitutes what are known as the "usual channels", through which communications pass as to business arrangements and other matters which concern the convenience of Members as a whole. The duties which are common to Whips of all parties are the following. They keep their Members supplied with information, about the business of the House, secure the attendance of Members, arrange for their Members, who are unable to attend divisions to 'pair' with members of the opposite side of the House so that their votes may be neutralized and not lost, and supply lists of Members to serve on standing and select committees. They also act as intermediaries between the leaders and the rank and file of their parties in order to keep the former informed as to the trend Of party opinion. In the Lords As in the House of Commons the conduct of business in the House of Lords is influenced by the existence of organized govt and Opposition parties. The positions of Leader of the House and leader of the Opposition have developed for reasons which have already been described in relation to the House of Commons. The conduct of Govt business in the Lords is entrusted to the Leader of the House, who is appointed by the Prime Minister and is a member of the Cabinet. The positions of Leader of the House and leader of the Opposition have developed for reasons which have already been described in relation to the House of Commons. The conduct of Govt business in the Lords is entrusted to the Leader of the House, who is appointed by the Prime Minister and is a member of the Cabinet. The Leader of the Opposition, who has functions similar to the corresponding figure in the House of Commons, has since 1965 enjoyed a statutory salary which is paid out of the consolidated Fund. Whips are also appointed by the parties in the House of Lords. The Govt Whips, who hold salaried offices as Members of the Royal house-hold, are the Captain of the Gentlemen-at-Arms (Govt Chief whip), the Captain of the Yeomen of the Guard and three Lords-in-Waiting. Since 1965 the opposition Chief Whip has enjoyed a statutory salary paid Out of the Consolidated Fund. ", (ii) parliament by Sir Ivor Jenning (2nd Edn) at page 84" The Whips work under the control of the party leaders. Their functions differ some-what according as their party supports the govt or is in opposition. The function of the Govt Whips, it has been said, is ' to make a House, to keep a House and cheer the Minister' of the last of these we need say little: a Minister who cannot get a cheer except out of his Whips either is a poor speaker or has a poor case to justify; there are certain formulae, varying from party to party, which can always raise a cheer from the most depressed party member. Making and keeping a House is'a more important duty. By a usage which dates from 1640, and which may be altered by resolution of the House, there is a quorum of forty members. At the meeting of the House it is the Speaker's duty to see that a quorum is present. If a quorum is not present after prayers, he waits or retires from the House either until a quorum is present, or until four O'clock At four O'clock he again counts the House, and if a quorum is not present, he adjourns the House to the next sitting day without question put. Accordingly, if the Govt wishes any business to be done, the whips must see that a quorum is present. Accordingly, if the Govt wishes any business to be done, the whips must see that a quorum is present. In practice, there is no difficulty, at least on a full day for some members have questions to put and others wish to hear the answers and to put supplementary questions. Moreover, though the Govt usually wants certain motions passed, the Opposition equally desires to criticise those motions. "and at pages 93 and 94"the Govl Whips are, technically, junior Ministers. The Chief whip is Parliamentary Secretary to the Treasury. Until recently he was known as ' Patronage Secretary ', a name which descends from the mure expansive days when a majority was kept by patronage or influence or, as some would say, corruption. His functions in this respect have not entirely disappeared. He brings to the attention of of the Prime Minister the names of members who are deserving of honours or whose support will be more effective if honour is accorded them. Members approach him to recommend those among their constituents who are most worthy of decoration, or whose decoration will make the members' seats rather safer. If, as is not always the case, he is Treasurer of the party fund he indicates to the Prime Minister those whose 'political and public services', as witnessed by the party fund, are most suitable for royal acknowledgment. It must be said, however, that something other than mere party advantage must now be shown, and that the prime Minister is not informed of any contributions that may have been made. In addition, there arc three or more Lords Commissioners of the treasury. In January 1956, there were five paid and three unpaid assistant Whips. The Treasurer, Comptroller and Vice-Chamberlain of the House-hold are also Govt Whips. In other words, ten or twelve members on the Govt side are Whips, seven or eight of these being paid out of moneys provided by Parliament. The Office of the Parliamentary Secretary, said Mr. Disraeli, requires consummate knowledge of human nature, the most amiable flexibility, and complete self-control. Knowledge of human, nature and amiability are perhaps the most essential requirements of all whips They must know all their members; they must be aware of every wind of opinion that blows ; they must understand the temper and whims of the Opposition; they must know when to cajole, when to persuade, and when to threaten. Knowledge of human, nature and amiability are perhaps the most essential requirements of all whips They must know all their members; they must be aware of every wind of opinion that blows ; they must understand the temper and whims of the Opposition; they must know when to cajole, when to persuade, and when to threaten. The House must be treated on a large scale as a committee is treated on a smaller. Obstruction can be removed by a gentle conversation before hand. Proposals will find acceptance if they are put to one man in one way and to another man in another way. Ruffled feathers must be smoothed and sensitive skins gently stroked. Much of the process of parliamentary management is conducted in the lobbies and smoke rooms, where indeed the only really dangerous opposition arises, as we shall see in Chap V. " (iii) The British Constitution by J. Harvey and L. Bather at page 102" Maintaining day-to-day discipline within the party is the responsibility of the Chief Whip and his 8 to 10 Assistant Whips, all members of Parliament. The term was first used in 1769 by Burke, who borrowed it from the hunting-field, where one person has thw task of whipping - in hounds straggling from the pack. Today the whips occupy a key position in party organisation. On the Govt side they are given posts carrying a salary, but there is no payment for whips of other parties. The Govt Chief Whip is Parliamentary secretary to the Treasury, sometimes referred to as ' Patronage Secretary', a relic of the 18th Century when the Govt deposed of offices and pensions as rewards for service. He has offices at 12 Downing Street and in the Palace of Westminister. Some of the Assisant Govt Whips hold such posts as Lords Commissioners pf the Treasury and Comptroller, treasurer and Vice-Chamberlain of the Royal House-hold; the more junior Assstant Whips are unpaid. "at page 252" Junior Ministers, usually having the title of Parliamentary secretary or, where the Minister in charge is a Secretary of State, parliamentary Under Secretary of State, help their senior Ministers both in the Department and in Parliament. The Treasury is an exception, for there the Parliamentary Secretary is the Govt Chief Whip; and some of the Junior Lords act as Assistant Whips. The Treasury is an exception, for there the Parliamentary Secretary is the Govt Chief Whip; and some of the Junior Lords act as Assistant Whips. " (iv) ' Constitutional Law' by Wade and Phillips at pages 228 and 229"the Chancellor of the exchequer and other Treasury Ministers the responsibilities of the Chancellor of the Exchequer cover the whole range of Treasury business including the control of public expenditure and the direction of economic and financial policy. He is invariably a member of the House of Commons. There are four other ministers who rank as Secretaries to the Treasury Board, but are not members of it. They are the Chief Secretary, the Parliamentary or patronage Secretary (the Chief Government Whip), the Financial secretary and the Economic Secretary. These posts are regarded as of greater importance and prestige than those normally attaching to a parliamentary Secretary. " ( 8 ) FROM the aforesaid passage, it is clear that the "government chief Whip" is the nominee of the Prime Minister or the Chief Minister as the case may be and his duties mainly consist in assisting the Prime minister or the Chief Minister and the Council of Ministers ini the effective performance of their duties in the Legislature. Their status is that of a "junior Minister" though they are not actually the members of the Cabinet. In other words, they are part and parcel of the Council of Ministers though they are not actually the members of the Cabinet. ( 9 ) THE position of the "government Chief Whip" in the House of people and the Rajya Sabha or in the Legislative Assembly or in the Legislative council in India is exactly of the same nature as in England. In, their Book 'practice and Procedure of Parliament', Kaul and Shakdher state as follows at pages 122 to 124 :"the main function of the Whips is, as stated above, to keep members of their party within sound of the division bell whenever any important business is under consideration in the House. Whips are responsible for the attendance of the members at the time of important divisions. During sessions the Whips of the different parties send to their supporters periodic notices, also sometimes called 'whips', warning them when important divisions are expected, telling them the hour when a vote will probably take place, and requesting them to be in attendance at that time. During sessions the Whips of the different parties send to their supporters periodic notices, also sometimes called 'whips', warning them when important divisions are expected, telling them the hour when a vote will probably take place, and requesting them to be in attendance at that time. The importance of the division is indicated by underscoring the notice by a number of lines, or a couple of very thick lines. The Whips have to know their men. This involves a close contact with all members and knowledge of their interests, special aptitudes, qualities ant potentialities. The Whips take these aspects into account while sending list of speakers to the Chair in the interest of quality of debate and deliberation. They keep members supplied with information about the business of the House and enforce party discipline. Being constantly in touch with the members in the lobbies etc, of the house, the Whips acting as intermediaries between the leaders and the rank and file of their parties, keep the former in touch with the currents of opinion not only within their own party and thereby nip the incipient revolt in the bud but also to some extent with other movements of opinion inside the House. And it is through the Whips that members of a party come to know about their leader's views and the plans into which the leader thinks it necessary or expedient to initiate them. The Whips are the active agents within the partiesa channel of communication whereby one party negotiates with another concerning topics for debates or conduct of business in the House. It has been aptly said that the Whips are not only shock-absorbers, but also indicators of the party; they are not only advisers to the leader, but also the binding-force in the party; they are not only barometers of the different regions and opinions but also the counsellors of members. Government Chief Whip. The Chief Whip of the Government party in Lok Sabha is the Minister of Parliamentary Affairs. The chief Whip is directly responsible to the Leader of the House. It is a part of his duties to advise the Government on Parliamentary business and to maintain a close liaison with the Ministers in regard to parliamentary business affecting their Departments. The Chief Whip is the eyes and ears of the leader of the Party so far as the members are concerned. It is a part of his duties to advise the Government on Parliamentary business and to maintain a close liaison with the Ministers in regard to parliamentary business affecting their Departments. The Chief Whip is the eyes and ears of the leader of the Party so far as the members are concerned. He conveys the wishes of the leader to the members of the Party and keeps the Leader informed of the current opinion in the Party as also the moods and inclinations of individual members when these deserve special notices. During sessions, in his capacity as adviser to the leader, he normally meets the Prime Minister not only for one set interview daily but also several times in the course of the day for brief consultations. The Chief Whip is assisted by one Minister of State and two Deputy ministers. With their assistance, he controls the members of the party in power and ensures that during sittings there is quorum in the House and that adequate number of members of the party are present at the time o. voting. For this purpose, he sends them advance intimation through the. familiar system of ordinary, one, two and three-line Whips to indicate the extent of urgency attaching to the vote on a particular measure before the House. Apart from making the House and keeping essential for transaction, of business, the Chief Whip has the whip hand in shaping the course, tone and tenor of debate on special occasions for he selects the speakers' from his party and hands over a list to the Speaker for facilitating the process of 'catching his eyes. ' The responsibility, of keeping every body at his post and keeping his party united, strong and well-knit falls on him. He selects members for select committees and other parliamentary and Govt assignments keeping in view the background, experience aptitude, qualifications, etc. , of members of his party. This gives him quite a wide power of patronage which comes handy in keeping the party members amenable to his influence. . During the course of actual working, Whips of the Government party and of parties in 'the Opposition come into contact with each other to sort out matters of common interest and to understand and accommodate each other on many, crucial occasions when it is convenient for both sides to arrive at mutual understanding. . During the course of actual working, Whips of the Government party and of parties in 'the Opposition come into contact with each other to sort out matters of common interest and to understand and accommodate each other on many, crucial occasions when it is convenient for both sides to arrive at mutual understanding. Even, in, the matter of selection of members of the Opposition for select committees, contact between Whips of the Government and the Opposition becomes important. Whips, both of the ruling party as well as those of the opposition, play a very significant role in the smooth and efficient functioning of parliamentary democracy. Apart from their normal duties of making and keeping the House, they are required to establish and maintain, through a tactful handling of situations, good and amicable relations, between the Government and the Opposition benches a pre-requisite for the smooth running of the Parliamentary business. "having regard to the origin of "government Chief Whip" and the nature of functions required to, be performed by the "government Chief Whip", which are set out in the autoritative books on this subject referred to above, it is clear that a "government Chief Whip" is to arrange and assist in the smooth and orderly functioning of the Legislative business. As pointed out by Kaul and Shakder (supra), the Chief Whips of the Government in Lok sabha is the Minister of Parliamentary Affairs and he is directly responsible to the Leader of the House, in the discharge of his functions. Therefore the position of the "government Chief Whip" in the State also is though he is not a Member of the Cabinet, his status and the position is that of a Minister and he is responsible to the Chief Minister. It follows, therefore, that when, simultaneous to the imposition of the Presidential rule in the State ; the Legislative Assembly is dissolved and the operation of Arts. 163 and 164 of the Constitution are suspended and as a consequence of which the term of office of the Chief Minister and his Council of ministers comes to an end, automatically the recognition given by the chief Minister in favour of a Member of the Legislative 'assembly or legislative Council as "government Chief Whip" of the Assembly or the council, as the case may be, comes to an end. In the nature of things, the word "government" which is found among the words "government Chief whip" has to be understood as the Cabinet form of Government and not the Government of the State when the power has been assumed by the president. In the absence of the Cabinet form of Government, it is incongruous to hold that the Chief Whip of the Government which itself is not in existence continues to function or hold the office as the case may be. ( 10 ) LEARNED Govt Advocate appearing for the respondent, also tried to make a distinction between the 'office' and the 'functions'. He contended that there is no office of "govt Chief Whip", but consists only performance of certain functions which a person recognised, as "govt Chief Whip" is required to perform having regard to the Parliamentary and Cabinet system of Govt. He sought to make the distinction between the 'office' and the 'functions' on the basis of the decision of the Supreme Court in kanta Kathurina v. Manak Chand Surana, AIR. 1970 SC. 694. In the said case, the question arose whether an Advocate who was appointed specially to conduct a suit or a case or other proceeding by or against the State Govt in any court or Tribunal, holds an 'office of profit' so as to disqualify him from contesting election in the Legislative Assembly in view of the bar created under Art. 191 of the Constn. In the said judgment, the Supreme Court quoted with approval the observations of Justice Raulat, in 1922 (8 Tax cases 221 at p. 235 ). The relevant portion reads ae follows:"now it is argued, and to my mind argued most forcibly, that that shows that what those who use the language of the Act of 1842 meant when they spoke of an office or an employment, was an office or employment which was a subsisting, permanent, substantive position, which had an existence independent from the person who filled it, which went on and was filled in succession by successive holders; and if you merely had a man who was engaged on whatever terms, to do duties which were assigned to him, his employment to do those duties did not create an office to which those duties were attached. He merely was employed to do certain things and that is an end of it ; and if there was no office or employment existing in the case as a thing, the so-called office or employment was merely an aggregate of the activities of the particular man for the time being. And I think myself that that is sound. I am not going to decide that, because i think I ought not to in the state of the authorities, but my own view is that the people in 1842 who used this language meant by an office a substantive thing that existed apart from the holder. "there is force in the contention urged by the learned Government Advocate treat the concept of "government Chief Whip" consist only of certain well recognised functions and there is no 'office" of "government Chief whip". But it is unnecessary for me to record my finding one way or the other on the question whether "government Chief Whip" is an office or it only indicates certain functions required to be performed by a person recognison as "government Chief Whip" because, in my opinion, even assuming it is an "office" the said "office" is like that of a Minister, Junior Minister or a Parliamentary Secretary of a Minister automatically comes to an end with the fall of a Cabinet form of Government. ( 11 ) FURTHER this petition is presented under Art. 226 (1) (b) and (c) of the Constitution of India. Clause (1) (c) of Art. 226 certainly cannot be invoked by the petitioner as there is no proceeding in the course Of which there has been an illegality which has resulted in substantial failure of justice. The petitioner has prayed for the issue of writ of mandamus directing the respondent not to interfere with the office of the petitioner as "government Chief Whip" and also the emoluments and eiher amenities due to him as "government Chief Whip" under the Act. The petitioner can claim for the issue of a writ of mandamus as sought for by him in the petition under Art. 226 (1) (b) of the Constitution if only he can establish the violation of any statutory provision resulting in substantial failure of justice. There is no specific statutory provision on which the petitioner relies for his right to continue in the position of "government chief Whip". There is no specific statutory provision on which the petitioner relies for his right to continue in the position of "government chief Whip". ( 12 ) BEFORE concluding, it is necessary to refer to the reliance placed by the petitioner on the continuance of the Chairman and the Deputy chairman Of the Legislative Council and the Leader of the Opposition, in their respective positions and receiving emoluments and getting all the amenities provided for them, which fact is not disputed by the respondent. The stand taken in the Statement of objection with regard to the persons holding these three offices is, that persons holding the office of the Chairman and Deputy Chairman of the Legislative Council as also that of the leader of the Opposition, have been elected by the members of the Legislative council and they continue in office until they ceased to be member of the Council or until they tender resignation or until their removal by a vote of no confidence. As far as the offices of the Chairman and the Deputy chairman of the Legislative Council are concerned, they stand on an entirely different footing. These two offices are created by Art. 182 of the constitution and therefore in the absence of any specific provision in the constitution providing that they will vacate their offices on the imposition of President's Rule in the State they will continue in office. For instance, the offices of the Speaker and the Deputy Speaker of Legislative Assembly are created by Art. 178 of the Constitution. Art. 179 of the Constitution provides the circumstances under which the Speaker Or the Deputy speaker vacates his office. The said Article reads as follows:"179. A member holding office as Speaker or Deputy Speaker of an Assembly (a) shall vacate his office if he ceases to be a member of the assembly; (b) may at any time by writing under his hand addressed, if such member is the Speaker, to the Deputy Speaker and if such member is the Deputy Speaker, to the Speaker,. A member holding office as Speaker or Deputy Speaker of an Assembly (a) shall vacate his office if he ceases to be a member of the assembly; (b) may at any time by writing under his hand addressed, if such member is the Speaker, to the Deputy Speaker and if such member is the Deputy Speaker, to the Speaker,. resign his office; and (c) may be removed from his office by a majority of all the then members of the Assembly; provided that no resolution for the purpose of clause (c) shall be moved unless at least fourteen days' notice has been given of the intention to move the resolution : provided further that whenever the Assembly is dissolved, the speaker shall not vacate his office until immediately, before the first meeting of the Assembly after the dissolution. "as can be seen under the second proviso to Art. 179, it is specifically provided that whenever the Assembly is dissolved, the Speaker shall not vacate his office until immediately before the first meeting of the Assembly after the dissolution. There is no similar provision as regards Deputy speaker of the Legislative Assembly. Therefore, the moment the Legislative assembly is dissolved, the Deputy Speaker of the Assembly vacat' the office, but the Speaker of the Aessmbly continues in office notwithstanding the dissolution because of the specific provision contained in the second proviso to Art. 179 of the Constitution. As the Legislative Council is not subject to dissolution under the scheme of the Constitution and as there is no provision providing for vacating the offices by persons occupying the offices of the Chairman and the Deputy Chairman on the imposition of President's Rule, they having been elected to the respective offices by the Legislative Council under Art. 182 of the Constitution continue in office until they vacate the office on one or the other event as provided under Art. 183 of the Constitution takes place. Therefore, the petitioner cannot compare his position with that of the Chairman c deputy Chairman of the Legislative Council for the reason the office of the "government Chief Whip" is not one which is created by the Constitution. The position of the Leader of the Opposition is also different from that of the "government Chief Whip". Therefore, the petitioner cannot compare his position with that of the Chairman c deputy Chairman of the Legislative Council for the reason the office of the "government Chief Whip" is not one which is created by the Constitution. The position of the Leader of the Opposition is also different from that of the "government Chief Whip". The Leader of the Opposition in the Legislative Council is a person who after having been elected by the oposition members of the Council is recognised as such by the Chairman of the Legislative Council. This is clear from Sec. 2 (cc) of the Act which defines the Leader of the Opposition as follows : "2 (cc) 'leader of the Opposition' means the member of the Legislative assembly or the Legislative Council who is for the time being recognised as the Leader of the Opposition by the Speaker or the chairman as the case may be. " therefore, so long the recognition gi'ven by the Speaker in favour of a member of the Legislative Council as the Leader of the Opposition continues, such person will be entitled to the remuneration and other amenities as provided in the Act. It is contended by the petitioner that when there is no Council of Ministers headed by the Chief Minister functioning, after the imposition of the President's Rule and when the Legislative Council is not in a position to discharge its unctions, and when there is no Cabinet system of Government to oppose in the Legislative Council why the recognition given to the Leader of the opposition who has no duty to perform in the Legislative Council which is not functioning, should not have been withdrawn? In this situation, whether the non-withdrawal of recognition given to the Leader of the Opposition by the Chairman is right or not is entirely a different question, and such continuance of recognition in favour of the Leader of the Opposition does not in any way advance the case of the petitioner. Therefore, I do not express any opinion on the said question. ( 13 ) IN the light of the above discussion, I hold that having regard to the nature of office and functions, the position of the "government Chief whip" is that of a Minister or Junior Minister or Parliamentary Secretary to a Minister, even though he is not a Member of the Council of Ministers. ( 13 ) IN the light of the above discussion, I hold that having regard to the nature of office and functions, the position of the "government Chief whip" is that of a Minister or Junior Minister or Parliamentary Secretary to a Minister, even though he is not a Member of the Council of Ministers. Therefore, just as a Member of the Legislative Council appointed as a minister by the Governor on the advice of the Chief Minister, ceases to be a Minister on the imposition of the President's Rule and the dissolution of the Legislative Assembly and the suspension of the operation of Arts. 163 and 164 of the Constitution, notwithstanding his continuance as a Member of the Legislative Council which is not subject to dissolution, 'the "government Chief Whip" who is in the same position as a Minister also likewise ceased to be the "government Chief Whip". Therefore the petitioner, who was in the position of a Minister in view of the recognition given to him by the Chief Minister as "government Chief Whip" cannot survive in that position after the term of office of the Chief Minister himself, who gave recognition to the Petitioner as "government Chief Whip" came to an end. In other words, even on the basis that with the recognition of the petitioner as "government Chief Whip", the office of the Government chief Whip" stood created, the said office being similar to that of a Minister, the office itself comes to an end like that of an office of the minister, when the Chief Ministers quits the office by whatever process; consequenly the petitioner cannot claim to continue in the office of the "government Chief Whip" alter the office itself has ceased to exist. ( 14 ) FOR the reasons aforesaid, I reject the contentions urged for the petitioner. Rule is discharged. The writ petition is dismissed, but in the circumstances of the case without costs. --- *** --- .