Krishna Kumar Singh & Anr Vs. State of Bihar [1998] INSC 287 (8 May 1998)
Sujata V. Manohar, D.P. Wadhwa Mrs. Sujata V. Manohar, J.
ACT:
HEAD NOTE:
[With C.A. Nos. 3533-3595/1995, 5876-5890/1994, C.A. No. 2646 ........ /1993 (Arising out of S.L.P (C) No. 18806 of 1995) W.P. (C) No. 580/1995 with Contempt Petition Nos. 288- 296/1997 in C.A. Nos. 3535, 3539,3541,3545,3555,3560,3573,3576,3590/1995 with I.A. No. 3 in W.P.(C) No. 580/1995]
Leave granted.
This group of appeals arises from a judgement of the Division Bench of the Patna High Court dated 9.3.1994 in a group of writ petitions filed by the teaching and non- teaching staff of various Sanskrit Schools in the State of Bihar. These Sanskrit Schools were private schools. They were said to have been taken over by the State of Bihar under Ordinance 32 of 1989. The teachers and staff of these schools claimed that as a result, they had become Government servants. They filed before the High Court petitions for payment of salary and other emoluments on the basis that they were Government servant with effect from coming in into force of Ordinance 32 of 1989 and they continue to be so thereafter, although the last of the series of Ordinance expired by lapse of time on 30th of April, 1992.
The High Court has held that the petitioners before it would be entitled to get their salary which they were getting prior to the promulgation of the Ordinance sin question. it also held that in addition, the petitioners before it would be entitled to get their salaries as Government servants from 16.12.1989, the date of coming into force of Ordinance 32 of 1989 until 30th of April, 1992 when the last Ordinance came to an end.
Being aggrieved by the decision of the High Court which denies to them the status of Government s servants after 30th of April, 1992, a number of petitioners before the High Court have filed the present group of appeals from the High Court's judgment and order, save and except one set of appeals which have been filed by the State of Bihar, which is aggrieved by the finding that the staff of Sanskrit Schools should get salary as Government servants from the date of the first Ordinance till the date of the expiry of the last Ordinance on 30th of April, 1992. The State has also objected to the findings of the High Court in relation to "ordinance Raj" in the State of Bihar and the finding that Ordinances repromulgated by the State agains and again are illegal. All these appeals have been heard together since they raise common questions of fact and law.
Writ petition (C) No. 580 of 1995 is filed by the staff of some Sanskrit Schools claiming reliefs similar to those claimed in the original writ petitions before the High Court. The implement application, I.A.3 in writ Petition (c) No. 580 of 1995 is allowed. Since the writ petition raises contentions similar to those in the above appeals, it is also heard along with the appeals.
History of Sanskrit Schools in the State of Bihar:
Bihar 1960 there was no legislation relating to Sanskrit education in the State of Bihar. However, all primary and secondary Sanskrit Schools, whether Government or Private, including Sanskrit Vidyalayas located in the territory of Bihar were governed by the Bihar Education code for the conduct of examinations of Prathama and Madhyama standards. The Bihar Sanskrit Association conducted the examinations.
After 1960, the Kameshwar Singh Darbhanga Vishwa Vidyalaya Act, 1960 came into force under which the Bihar Sanskrit Association was dissolved. The Kameshwar Singh Darbhanga Sanskrit University was given the power to hold examinations and give certificates. The power of recognition of Sanskrit Schools up to Madhyama Standard was given to the Sanskrit Shiksha parishad (The Board of Sanskrit Education) constituted under the Act. The Sanskrit Shiksha Parishad functioned as an autonomous body. This Act was replaced by the Sanskrit University Act of 1965. under the new Act, the functions of the Sanskrit Shiksha Parishad were retained in relation to Sanskrit education at the school level.
In 1976, the Bihar State University Act, 1976 was promulgated. It repealed Sanskrit University Act of 1965.
The jurisdiction of the Bihar State University was confined to Sanskrit education at the college level. In the absence of any institution which could hold examinations up to madhyama level (i.e school level), the University continued to conduct these examinations till 1981.
In 1981, the Bihar Sanskrit Education Board Act 1981 came into force with effect from 11th of August, 1980. it constituted an autonomous board for the development and better supervision of Sanskrit Education up to Madhyama level. The Bihar Sanskrit Education Board was, inter alia, given the power to grant recognition to Sanskrit Schools and "tools", power of preparation of text books and curriculum, holding of examinations up to Madhyama level, publication of results, award of certificates and so on.
In 1989, there were 651 Sanskrit Schools under the Bihar Sanskrit shiksha Board (Bihar Sanskrit Education Board) which were receiving grants-in-aid from the State Government. All these schools were managed by their own managing committees. However, grants-in-aid were given to these schools by the Government for meeting the expenditure on salary of teachers and staff for the number of posts prescribed or sanctioned by the Government for each school.
In addition, the Government was also giving grants for development of school buildings, furniture, equipment etc.
The grant which was given to each school in accordance with the Rules laid down was given in one lumpsum to he Bihar Sanskrit Shiksha board for distribution to the Sanskrit Schools eligible for grants. The Bihar Sanskrit Shiksha Board , in turn, disbursed the grants to different individual schools in accordance with the pay-scales, D.A. rates and staffing pattern laid down by the Government for this purpose.
Ordinances:
On 16th of December, 1989, Ordinance 32 of 1989 entitled the Bihar Non-Government Sanskrit Schools (Taking Over of Management and Control) Ordinance, 1989 was promulgated seeking to take over 429 out of 651 private Sanskrit Schools which were receiving grants-in-aid through the Bihar Sanskrit Shiksha Board and were recognised.
Sections 3 and 4 of the Ordinance provide as follows:
"3. Taking over of Management and Control of Non-Government Sanskrit Schools by State Government –
(1) With effect from the date of enforcement of this Ordinance 429 Sanskrit Schools mentioned in Schedule 1 shall vest in the State Government and the State Government shall manage and control thereafter.
(2) All the assets and properties of all the Sanskrit Schools mentioned in sub-section (1) and of the Governing Bodies, Managing Committees incidental thereto whether movable or immovable including land, buildings, documents, books and register.
Cash-balance, reserve fund, capital investment, furniture and fixtures and other things shall, on the date of taking over, stand transferred to and vest in the state Government free from all encumbrances.
4. Effect of taking over the management and control –
(1) with effect from the date of vesting of Sanskrit Schools mentioned in Schedule 1 under Section 3(1) in the State Government, the services of all those teaching and non- teaching employees of the schools mentioned in Schedule 1, who have been appointed permanently/temporarily against sanctioned posts in accordance with the prescribed standard, staffing pattern as prescribed by the State Government prior to this Ordinance shall stand transferred to the State Government. He shall be employee of the State Government with whatsoever designation he holds;
Provided, that the services of those teaching or non-teaching employees who are in excess of the sanctioned strength or do not possess necessary fitness qualification shall automatically stand terminated.
(2) Teachers of the Sanskrit Schools taken over by the Government shall be entitled to the same pay, allowances and pension etc. as are admissible to teaching and non-teaching employees of the taken over Secondary Schools of Bihar." (underling ours) Clause 3(2) of the Ordinance provides for vesting of all properties and assets of private schools in the State Government free from all encumberances. It does not provide for any compensation at all being paid to the owners of these properties and assets. On the face of it, the first Ordinance appears to be wholly arbitrary and unconstitutional (vide C.B. Gautam v. Union of India & Ors.[(1993) 1 SCC 78]).
Ordinance 32 of 1989 was replaced on 28.2.1990 by Ordinance 7 of 1990 which, in turn, was replaced on 2.5.1990 by Ordinance 14 of 1990. This Ordinance was replaced on 12.8.1990 by Ordinance 21 of 1990 (hereinafter called 'the 4th Ordinance'). Each of these subsequent Ordinance contained a "repeal and Savings" clause under which the previous Ordinance was repealed. It also provided, "Notwithstanding such repeal, anything done or any action taken in exercise of the powers conferred by or under the said Ordinance shall be deemed to have been done or taken in exercise of the powers conferred by or under this Act (sic) as if this Act (sic) were in force on the date on which such thing was done or action taken." With the result that all actions taken under the previous Ordinances wee deemed to be taken under the fresh Ordinance.
While Ordinances 7 of 1990 and 14 of 1990 were in substantially the same terms as Ordinance 32 of 1989, the 4th Ordinance, that is to say, Ordinance 21 of 1990 made changes in Sections 3 and 4. Sections 3 and 4 of the 4th Ordinance (21 of 1990) are as follows:
"3- Taking over of management and control of non-Government Sanskrit Schools by the State Government:
(1) With effect from the date of coming into force of this Ordinance, 429 Sanskrit schools mentioned in Schedule - I shall vest in the State Government and the State Government shall manage and control them thereafter.
But, the Sanskrit Schools mentioned in annexure-1 of this Ordinance will be investigated through concerned Collector, and it is found in the report of the Collector that such school is not in existance, in this case State Government will remove the name of that school from annexure 1 of the Ordinance through notification in State Gazette.
(2) All the assets and properties of all the Sanskrit Schools mentioned in sub-section (1) and of the Governing Bodies, Managing Committees incidental thereto whether movable or immovable including land, buildings, documents, books and register.
Cash-balance, reserve fund, capital investment, furniture and fixtures and other things shall, on the date of taking over, stand transferred to and vest in the state Government free from all encumbrances.
4. Effect of taking over the management and control –
(1) The staff working in the Sanskrit Schools mentioned in annexure - 1 of the Ordinance, on integration of its management and control into the State Government as per Section 3(1), will be the employees of this school until and unless government comes to a decision regarding their services.
(2) State Government, will appointed a committee of specialists and experienced persons to enquire about number of employees, procedure of appointment as well as to enquire about the character of the Staff individually and will come on a decision about validity of post sanctioned by Governing body of the school, appointment procedure and promotion or confirmation of services.
Committees will consider the need of the institution and will submit its report after taking stock of qualification experience and other related and relevant subjects.
Committee will also determine in its report whether the directives regarding reservations for SC, ST, and O.B.C'S has been followed or not.
(3) State Government, after getting the report will determine the number of staff as well as procedure of appointments and will go into the affair of appointment of teaching and other staff on individual basis; and in light of their merit and demerit it will determine whether his service will be integrated with the Government or not.
Government will also determine the pay, salary allowances and other service condition for them." ( Note: This is how the two sections have been translated from Hindi to English in the Paper Book).
Thus the 4th Ordinance contained an express provisions for investigation of the Sanskrit Schools listed in annexure 1 in order to find out whether these were genuine schools or not, whether they were in existence and what were their assets and properties. Under Section 4, the State Government decided to appoint a committee of specialists to enquire about the number of employees of these schools, whether the procedure adopted for their appointment was proper, whether they possessed the requisite qualifications and merit, whether the posts they occupied were sanctioned, and other related enquires. The State Government after getting the reports had to determine, on individual basis, whether the concerned teacher would be taken in Government service or not. An individual decision was required to be taken about his pay and allowances and other service conditions. The State strongly relies upon this ordinance and subsequent Ordinances as indicating that there was no automatic take over of private Sanskrit Schools.
The 4th Ordinance was replaced on 8.3.1991 by Ordinance No. 10 of 1991. This Ordinance, in turn, was replaced on 8.8.1991 by Ordinance 31 of 1991. The latter was, in turn, replaced on 21.1.1992 by Ordinance 2 of 1992 which was the last Ordinance. It expired on 30th of April, 1992. These three Ordinances promulgated subsequent to the 4th Ordinance 21 of 1990, were similar in terms to Ordinance 21 of 1990.
Status of the Staff:
It is the contention of the State that despite the wording of 1st three ordinances, by virtue of the 4th Ordinance there was no automatic take-over of the 429 Sanskrit Schools listed in these Ordinances. The State contends that by virtue of the 4th Ordinance and subsequent Ordinances and investigation was required to the made by the Collector to decide first, whether the school was in existence or not. Because, according to the State of Bihar, there were a large number of non-existing schools which were there only on paper. It is also the contention of the State that the service of the teaching and non-teaching staff of the 429 Sanskrit Schools was not automatically transformed into Government service. A committee constituted by the State Government was required to examine whether the concerned teacher was occupying a post which was validly sanctioned, whether the procedure for his appointment was regular, whether he possessed the qualifications and experience prescribed for the post and other similar factors. Each of the persons so approved had to be absorbed on an individual basis in Government service. His pay and allowances and other service benefits would be determined by the State at the time of his absorption.
The State contends that these enquiries and reports were not complete at time when the last Ordinance expired on 30th of April, 1992. No decision and/or steps had been taken by the State Government to absorb any person employed in these Sanskrit Schools in Government service. Therefore, the teachers of Sanskrit Schools as well as the non-teaching staff did not have, at any time, the status of a Government servant.
The teachers who are appellants before us, however, contend that only the first Ordinance No. 32 of 19896 should be looked at in order to decide their status. Since no inquiry is contemplated under the first Ordinance, they have automatically become Government Ordinances are illegal/invalid and must be ignored.
Validity of Ordinances:
One has, therefore, to consider whether 1st Ordinance is valid, or whether all are valid or whether all are unconstitutional. To decide this, it is necessary to consider under the constitutional framework, the nature of the power conferred on the Governor under Article 213 of the Constitution to promulgate an Ordinance. Can a series of Ordinances be issued validly under Article 213 over a number of years without placing any of the ordinances before the State Legislature? Under the basic scheme of the Constitution, the legislative powers of the State are distributed between Parliament and State legislatures in accordance with Articles 245 and 246 of the Constitution.
The Legislature of a State is given the power to make laws for the whole or any part of the State in respect of matters as set out in Article 246 read with the Seventh Schedule.
Article 213, however, makes a departure from this scheme and gives to the Governor who acts on the aid and advice of the Executive, the legislative power to promulgate an Ordinance when the Governor is satisfied that immediate action is required at a time when both the Houses of the State legislature, and when there is only one House of a State Legislature, the Legislative Assembly of the State, is not in session.
Article 213(2) provides as follows:
"213(2): An Ordinance promulgated under this article shall have the same force and effect as an Act of Legislature of the Stat assented to by the Governor, but every such Ordinance - (a) shall be laid before the legislative Assembly of the State, or where there is a Legislative Council in the State, before both the Houses, and shall cease to operate at the expiration of six weeks from the re-assembly of the legislature, or if before the expiration of that period a resolution disapproving it is passed by the Legislature, or if before the resolution disapproving it is passed by;
the Legislative Assembly and agreed to by the Legislative Council, if any, upon the passing of the resolution or, as the case may be, on the resolution being agreed to by the Council; and (b) may be Withdrawn at any time by the Governor.
Explanation - Where the Houses of the Legislature of a State having a Legislative Council are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clauses." Since the Governor acts with the aid and advice of the Council of Ministers, the Ordinance-making power is given to the executive to promulgate a law when urgency of the situation so demands provided the legislature is not in session. Since this is an exception to the normal rule that laws must be enacted by the Legislature, Clause (2) of Article 213 provides certain safeguards. An Ordinance so promulgated must be laid before the Legislative Assembly of the State or when there is a Legislative Council in the State, before both the Houses when they reassemble. It shall cease to operate at the expiration of si weeks from the re- assembly of the Legislature. but even before the expiration of six weeks if a resolution disapproving the ordinance is passed by the Legislature, it will cease to operated. This provision has to be read with Article 174 which enjoins that not more than six months shall intervene between the last session of the Legislature and the next session. Thus, an Ordinance is necessarily of a limited duration, not extending beyond 7-1/2 months.
That this power is a departure from the normal scheme of the Constitution was made clear during the Constituent Assembly Debates (Vol. 8 pages 208, 214,215) when Professor K.T. Shah expressed concern at six weeks' time being allowed to lapse after the reconvening of the Legislature before the Ordinance would cease to have effect. He expressed distrust of the Ordinance-making power vested in the Chief Executive.
Answering his apprehensions, Dr. Ambedkar assured him that an Ordinance would have very limited duration since there was a provision that not more than six months shall elapse between two sessions of Parliament. He justified the provision on the ground that limited power may be conferred on the Chief Executive to deal with urgent matters when the Legislature was not in session.
In R.K. Garg etc. etc. V. Union of India & Ors. etc. (1982 (1) SCR 947 at page 964), referring to the similar power of the president to promulgate Ordinances under Article 123, a Constitution Bench of this Court said "At first blush it might appear rather unusual that the power to make laws should have been entrusted by founding fathers of the Constitution to the executive because according to the traditional outfit of a democratic political structure the legislative power must belong exclusively to the elected representatives of the people and vesting it in the executive though responsible to the Legislature would be undemocratic as it might enable the executive to abuse this power by securing the passage of an ordinary bill without risking a debate in the Legislature ................ It may be and this was pointed out forcibly by Dr. Ambedkar while replying to the Criticism against the introduction of Article 123 in the Constituent Assembly - that the legislative power conferred on the President under this Article is not a parallel power of legislation. It is power exercisable only when both Houses of Parliament are not in session and it has been conferred ex-necessite in order to enable the executive to meet an emergent situation.
Moreover, the law made by the President by issuing an Ordinance is of strictly limited duration." There are similar observations made by this Court in the case of T.Venkata Reddy etc. etc. v. State of Andhra Pradesh (1985 (3) SCR 509 at page 524) and Dr. D.C. Wadhwa & Ors. V. State of Bihar & Ors. (1987 (1) SCC 378 at 392).
Clearly, the power to promulgate an Ordinance is not a substitute for regular legislation passed by the Legislature of a State. It is a power conferred on the Executive in order to deal with any urgent situation while the Legislature is not in session. It is also of a limited duration. Article 213 does not contemplate that one Ordinance should be succeeded by several subsequent Ordinance should be succeeded by several subsequent Ordinances without, at any stage, placing the Ordinances before the Legislature. It was this kind of practice which was condemned by the Constitution Bench of this Court in Dr. D.C. Wadhwa's case (supra). This Court observed in that case that the Government of Bihar made it a settled practice to deliberately go on re-promulgating the Ordinances from time to time on a massive scale in a routine manner. Immediately at the conclusion of each session of the State Legislature, a Circular Letter used to be set by the Special Secretary in the Department of Parliamentary Affairs to all the Commissioners, Secretaries etc. intimating to them that the session of the Legislature had been got prorogued and that under Article 213(2) (a) all the Ordinances would cease to be in force six weeks after date of re-assembly of the Legislature. They should, therefore, get in touch with the Law Department and take immediate action to get all the concerned Ordinances re-promulgated before their date of expiry. The Court observed that the startling facts showed that the Executive in Bihar had almost taken over the role of legislature in Making laws not for a limited period but for years together in disregard of the constitutional limitations. This was clearly contrary to the constitutional scheme and was improper and invalid. Accordingly, the court Struck down the Ordinance which was before it. The manner in which a series of Ordinances have been promulgated in the present case by the state of Bihar also clearly shows misuse by the Executive of Article 213. It is a fraud on the Constitution. The State of Bihar had not even averred that any immediate action was required when the 1st ordinance was promulgate. It has not stated when the Legislative assembly was convened after the first Ordinance or an of the subsequent Ordinances, how long it was in session, whether the ordinance in force was placed before it or why for a period of two years and four months proper legislation could not be passed. The constitutional scheme does not permit this kind of Ordinance Raj. In my view all the ordinances form a part of a chain of executive acts designed to nullify the scheme of Article 213. They take colour from one another and perpetuate one another, some departures in the scheme of the 4th and subsequent Ordinances notwithstanding. All the unconstitutional and invalid particularly when there is no basis shown for that exercise of power under Article 213.
There is also no explanation offered for promulgation one Ordinance after another. If the entire exercise is a fraud on the power conferred by Article 213, with no intention of placing any Ordinance before the legislature, it is difficult to hold that first Ordinance is valid, even though all others may be invalid. The same course of conduct has continued from the first to the last Ordinance. I, therefore, do not agree with brother Wadhwa, J's conclusion that the 1st Ordinance is valid but the subsequent Ordinances are invalid. In my view all are invalid.
Also, neither the 1st Ordinance nor the subsequent Ordinances provide for any compensation being paid for taking over the properties and assets of private schools.
Also each of the Ordinances provides that these private properties and assets are taken over by the State free from all encumberances. This is a totally arbitrary exercise of power violative of Article 14 (Vide C.B. Gautam v. Union of India & Ors. (Supra)]. Since the other provisions in all the Ordinances dealing with teachers in these private schools becoming Government servants, are consequential, flowing from the private schools vesting in the State along with their properties and assets, the Ordinances are unconstitutional in their entirety. No rights can flow from any of them.
Ordinance 32 of 1989:
Even if one accepts, for the sake of argument, the contention of the teachers that only the first Ordinance is valid and the subsequent Ordinances are illegal or invalid, the first Ordinance, by itself, would cease to operate six weeks after the re-assembly of the Legislature. In the present case the 1st Ordinance was promulgated on 16.12.1989. The State Legislature had re-assembled some time prior to 28.2.1990 (the date of the 2nd Ordinance), thus "necessitating" a fresh Ordinance. since the Legislative Assembly must have been prorogued prior to 28.2.1990, the 1st Ordinance, in the present case, would have ceased to operate latest by 15th April, 1990 if not earlier, if it had stood by itself. Any effect which it had would come to an end when it ceases, unless the effect is permanent. Now, ordinarily, when a temporary law ceases to operate or expires, Section 6 of the General Clauses Act, 1897 has no application because Section 6 is, in terms, limited to repeals (vide G.P. Singh, Principles of Statutory Interpretation, 16th Edition, Page 388). However, if any action taken during the subsistence of such a law or Ordinance has a "permanent" effect, that "permanent" effect may not be wiped out when the Ordinance or temporary law ceases to operate.
In the case of State of Orissa v. Bhupendra Kumar Bose (1962 Suppl. (2) SCR 380) this Court considered the effect of an Ordinance which had lapsed. This Court had to examine the effect of lapsing of an Ordinance which had validated electoral rolls improperly prepared and the elections held on the basis of such electoral rolls. The Court said that on the expiry of the validating Ordinance the invalidity did not revive. The Ordinance had successfully cured the invalidity of the electoral roll and of the elections. In the course of its judgment this Court referred to the observations of Patanjali Sastri, J. in the case of S. Krishnan & Ors. v. The State of Madras (1951 SCR 621) with approval. It said that the general rule in regard to a temporary statute is that in the absence of special provisions to the contrary, proceedings which are taken against a person under a temporary statute will ipso facto terminate as soon as the statute expires. Because the provisions of Section 6 of the General Clauses Act in relation to the effect of repeal do not apply to a temporary Act. That is why the Legislature can and often does, avoid such an anomalous consequence by enacting in the temporary statute a saving provision the effect of which is in some respects similar to that of Section 6 of the General Clauses Act. This Court, however, said, "we ought to add that it may not be open to the Ordinance making authority to adopt such a course because of the obvious limitation imposed on the said authority by Article 213(2)(a)." (underlining ours) After drawing this distinction between the greater limitation imposed on the executive promulgating an ordinance as against a temporary statute of a Legislature, this Court added, (p.398) that it would not be reasonable to hold that the general rule about the effect of the expiration of a temporary Act is inflexible and admits of no exception. It said, " In our opinion what the effect of the expiration of a temporary Act would be, must depend upon the nature of the right or obligation resulting from the provisions of the temporary Act and upon their character, whether the said right and liability had enduring effect or not". The Court made a reference to the English case of Stevenson v. Oliver ([1841] 151 E.R. 1024) where the court considered a temporary statute which provided that every person who held a Commission or Warrant as a Surgeon or Assistant Surgeon in His Majesty's Navy or Army should be entitled to practise as an Apothecary without having passed the usual examination. The temporary Statute expired. The Court held that the person who had acquired a right to practice without having passed the usual examination by virtue of the temporary Act could not be deprived of this right after its expiration.
In the case of T. Venkata Reddy (supra) this Court considered a case where the Governor had issued an Ordinance abolishing the posts of part-time village officers. The Ordinance lapsed and was not replaced by an Act of the Legislature. The Court said that the posts which had been abolished by the Ordinance did not revive. The abolishing of posts and the declaration that the incumbents of those posts would cease to be the holders of those posts, being completed events, they could not be revived without express legislation.
These two cases are an exception to the general rule that an Ordinance ceases to have effect when it lapses or comes to an end. A "permanent" effect of the Ordinance may continue. What then is a permanent effect? Or, what is a right of an enduring character which subsists beyond the life of an ordinance? Both these terms are somewhat ambiguous. Since an Ordinance by its very nature, is limited in duration and is promulgated by the Executive in view of the urgency of the situation, we must examine the rights which are created by an Ordinance carefully before we decide whether they are permanent. Every completed event is not necessarily permanent. What is done can often be undone. For example, what is construction can be demolished. A benefit which is conferred can be taken away. One should not readily assume that an Ordinance has a permanent effect, since by its very nature it is an exercise of a limited and temporary power given to the Executive. Such a power is not expected to be exercised to bring about permanent changes unless the exigencies of the situation so demand. Basically, an effect of an Ordinance can be considered as permanent when that effect is irreversibly or possibly when it would be highly impractical or against public interest to reverse it e.g. an election which is validated should not again become invalid.
In this sense, we consider as permanent or enduring that which is irreversible. What is reversible is not permanent.
In this context, there has been considerable change in judicial thinking since 1962. In the case of S.R.Bommai & Ors. v. Union of India & Ors. (1994 (3) SCC page 1, at page 226), the majority of the judges have taken the view that when a proclamation of the President's Rule ceases to be in operation, the necessary consequences is that the status quo ante revives. This Court by a majority, also said (at page 123) that the constitutional check on the president's power would become meaningless if the president takes irreversible decisions. A Legislative Assembly which is dissolved can revive if the proclamation comes to an end. Similarly when an ordinance taking over private Schools lapses, the status quo ante revives. It would be startling if for example, an Ordinance nationalising private banks or industries lapsed or parliament declined to ratify it, and yet it would continue to operate under the guise of "permanent effect" contrary to legislative mandate. A "take over' Ordinance may be required if there is urgency. But any enduring consequences beyond the life of the ordinance can only be brought about by legislation. The first take over Ordinance in the present case does not have any permanent effect. In this regard I do not agree with the view taken by brother Wadhwa for reasons I have already set out.
Our attention was drawn to other similar temporary provisions in some other Articles of the Constitution in order to show that when on the cessation of a temporary "situation", if the measure taken is to be continued, an express provision is mad e to this effect in the Article. e.g., Article 352 deals with a proclamation of emergency.
Clause (4) of Articles 352 provides that "every proclamation issued under this article shall be laid before each House of Parliament and shall ............ cease to operate at the expiration of one month unless before the expiration of that period it has been approved by resolution of both House of Parliament". Article 356 deals with president's Rule in a State if there is failure of constitutional machinery in the State . Clauses (3) and (4) of Article 356 provide for the proclamation ceasing to operate as stated therein. Article 358 which deals with suspension of provisions of Article 19 during emergency, Article 359(1A) , Article 360 and Article 369 also contain somewhat similar provisions. In the case of exercise of legislative powers during the President's Rule under Article 356, however, Article 357(2) provides that any law made in the exercise of the power of the Legislature of the State by Parliament or the President during the subsistence of the proclamation shall, after the proclamation has ceased to operate, continue in force until altered or repealed or amended by a competent Legislature or other authority. This is an express Constitutional provision which extends the life of laws enacted during the proclamation of President's Rule beyond the period during which the proclamation was in force. There is not such provision relating to the Ordinance promulgated under Article 213. The effect of an Ordinance cannot, therefore, last beyond its life-time. The only possible situation when this can happen is when any action already completed during the life of the ordinance has a permanent effect and is broadly speaking, irreversible in the sense set out earlier.
In the present case, it is contended by the teachers that the first Ordinance has conferred on them the status of Government Servants. And because a status has been conferred on them, the effect of the Ordinance is irreversible and, therefore, permanent. But conferment of a status is not per se an irreversible act. It depends on the kind of status conferred. Status may be of different kinds. A person may acquire a certain status by reason of his birth. He may be the son of his father and mother, he may be the brother of his siblings, he may acquire by birth other family relationships. These are unchangeable. However, not all family relationships are unchangeable. The marital status of a person is not, in this sense, permanent because husband and wife can take a divorce or have their marriage annulled.
In the economic field, an industry may be taken over by the state or be nationalised. However, since the changes brought about are far ranging they are brought about by legislation.
If an Ordinance is issued nationalising an industry, it is almost always followed up by proper legislation. but the process is not irreversible Similarly, the employees of such an industry, on its being taken over by the State, may become Government servants but when the industry is de- nationalised they may cease to be Government servants. There is nothing immutable about this kind of a status. Moreover no status can be conferred by a take over which is arbitrary and unconstitutional.
The protection of Article 311(2) does not extend to such situations. This Court has held, in S.S. Dhanoa v. Union of India & Ors. (AIR 1991 SC 1745) , that creation and abolition of posts is the exclusive concern of the executive. Even in the case of a permanent post if it is abolished, Article 311(2) is not attracted. There is no question here of punishment for misconduct. The same view has been reiterated in M.L. Kamra v. Chairman-cum-Managing Director, New India Assurance Co. Ltd. & Anr. (1992 (2) SCC 36). When such "creation of posts" is under a temporary statute in the form of an Ordinance promulgated by the Government and is not subsequently followed up by Legislation by the Legislature, the posts cease to exist when the Ordinance ceases to operate. The executive is not expected to take irreversible decisions in the form of Ordinances unless the decisions are followed up by a law enacted by the Legislature. Otherwise the constitutional check on the executive's power to promulgate Ordinance will become meaningless.
Moreover, in the present case nothing was done to give effect to the 1st Ordinance. The schools were not in fact taken over, and the teachers were not actually made Government servants or paid the salary of a Government Servant by the time the ordinance would have ordinarily expired. It is difficult to see how effect cab be given to an ordinance after it has expired, or to consider its "effect" as permanent.
Therefore, in the present case, assuming that the first Ordinance conferred the status of a Government servant on the appellants, the status would depart with the Ordinance.
The contention of the appellants-teachers that although the Ordinances have lapsed, they continue to be Government servants has, therefore, in my view, been rightly rejected by the High Court. Even if the 1st Ordinance is valid (which it is not), the teachers can be considered as Government servants only for its duration.
Learned counsel for the State pointed out that in fact, none of the teachers or staff members were absorbed as Government servants under any of these Ordinances nor was anyone given the scale of pay of a Government servant. Even so, there was no justification for not paying them any salary even as teachers of private Sanskrit Schools. We are told that when the matter was before the High Court, even the salaries of the teachers on the basis prevailing prior to the first Ordinance 32 of 1989, had not been paid. We are informed by learned counsel for the State that the salary of the entire staff of these schools has not been paid up to date on the Bihar Sanskrit Shiksha Board) Prior to the promulgation of the first Ordinance 32 of 1989. if such salary has not been paid in any case, the same must be paid forthwith. The teachers shall continue to receive their salary as before regularly henceforth.
In case of State of Bihar & Ors. v. Chandradip Rai & Ors. (1982 (2) SCC 272), this Court examined Bihar Non- Government Elementary Schools (Taking over of Control) Act, 1976. Section 3 provided for take over of elementary schools by the State Government by publication of a notification.
Section 4 sub-section (2) provided that every officer, teacher or other employee holding any office or post in the school taken over by the State Government shall be deemed to have been transferred to and become an officiate teacher or employee of the State Government. This Court observed that in fact the schools had not been taken over by the State Government. Therefore, the High Court was not justified in issuing a writ of mandamus directing the State Government to take steps for the management of the school or for payment of salary to the respondents. In the light of these observations of this Court, the writ petition filed in the High Court was withdrawn. In the present case also, nothing was done under the 1st Ordinance. The examination of schools for the purpose of take over under the 4th and subsequent Ordinance, was not complete when the last Ordinance lapsed.
Because of an interim stay on the operation of Clause 4 of the fourth Ordinance 21 of 1990, the enquiry into the qualifications etc. of teachers and staff of these schools also could not be completed. Since all Ordinances have ceased to operate and none of them can be considered as permanent in effect, no directions can be given for enforcing any of them. Therefore, in any view of the matter, the petitioners before the High Court could not have succeeded in the writ petitions.
The petitioners are undoubtedly entitled to their salary and allowances in accordance with the position that prevailed prior to the promulgation of Ordinance 32 of 1989.
They cannot be deprived of their salary during the period of the Ordinances. The directions given by the High Court for the payment of salary to the staff of Sanskrit schools on the basis of the Position prevailing prior to the promulgation of the first Ordinance, therefore, must be upheld. The High Court, however, was not right, in my view, in granting to the petitioners before it salary and allowances on the basis of their being Government servants from 16th December, 1989 upto 30th of April, 1992 since the Ordinances are a fraud on the constitution and no rights can flow from all or any of them. The appeals and writ petition filed by staff of the Sanskrit Schools are dismissed and the appeal of the State succeeds, but for reasons very different from the once canvassed. Looking to the conduct of the State of Bihar, it must pay to the original petitioners the costs of this litigation throughout.
Contempt Petition Nos. 288-296 of 1977 in civil appeals concerned also do not now service since salaries on the basis of the staff's entitlement prior to the first Ordinance have already been paid. Contempt petitions are accordingly disposed if , [With Civil Appeal No. 3533-3595/1995, 5876-5890/1994, Civil Appeal No. 2646/19998 ( @ S.L.P. (c) No. 18806/1995) Writ Petition No. 580/1995 with Contempt Petition Nos. 288- 296/1997 in CA No. 3535,3539, 3541, 3545, 3555, 3560, 3573, 3576, 3590/1995 with IA Nos. 3 in Writ petition (C) No. 580/1995] D.P. Wadhwa, J.
I regret I am unable to agree with the view taken by my most learned and noble sister Sujata V. Manohar, J. I, therefore, deliver my separate judgment.
These are cross appeals are arise out of the judgment dated March 3,1994 of the Division Bench of Patna High Court. In one set of these appeals, the appellants, who belong to teaching and non-teaching staff of Sanskrit schools in the State of Bihar, filed writ petitions in the High Court claiming their status as Government servants under Ordinance No. 32 of 1989, which was promulgated by the Governor of Bihar exercising powers conferred on him by Article 213 of the Constitution of India. The Ordinance was published the Bihar Gazette (Extra-ordinary) dated December 18, 1989. There were successive Ordinances promulgated after Ordinance No. 32 of 1989 lapsed, the last Ordinance lapsing on April 30, 1992. The Ordinance did not take the shape of Act of the Legislature. The High Court in its judgment did not grant relief to the petitioners that they be paid salaries as Government servants from the date of the first Ordinance 32/1989 till April 30, 1992 when the last Ordinance lapsed and also directed payment of salaries for the earlier period at the rate to which the petitioners were entitled to. The State has also filed appeal against this judgment. it is aggrieved by the direction of the High Court for payment of salaries to the petitioners as Government servants for the limited period. The State also felt aggrieved by the findings of the High Court that Ordinance re-promulgated again and agains were illegal and that there was "Ordinance Raj" in the State of Bihar.
It is not necessary for me to give history of Sanskrit schools in the State of Bihar which were being run privately but had been recognised by the State and were being given grant-in-aid. The grant was being distributed to the teaching and non-teaching staff and for meeting other expenses of the schools through the Bihar Sanskrit Shiksha Board. The grants were disbursed to different schools in accordance with the pay-scales, D.A. rates and staff pattern laid down by the State Government for this purpose. In the year 1981, there were 651 Sanskrit Schools under the Bihar Sanskrit Shiksha Board which were receiving grants-in-aid from the State Government.
On December 16, 1989 Ordinance 32/1989 was promulgated and as noted above was published in the Bihar Gazette (Extra-ordinary) on December 18, 1989. Since a great deal depends on the purpose and effect of this Ordinance it would be appropriate to reproduce the somewhat detail:- (Bihar Ordinance no. 32, 1989)
THE BIHAR NON-GOVERNMENT SANSKRIT SCHOOLS (TAKING OVER OF MANAGEMENT AND CONTROL) ORDINANCE, 1989.
AN ORDINANCE To provide for the taking over of Non-Government Sanskrit Schools for Management and Control by the State Government for improvement, better organisation and development of Sanskrit Education in the State of Bihar.
Preamble. - WHEREAS, the legislature of the State of Bihar is not in session;
AND WHEREAS, the Governor of Bihar is satisfied that circumstances exist which render it necessary for him to take immediate action of the taking over of Non- Government Sanskrit Schools for Management and Control by the State Government for improvement better organisation and development of Sanskrit Education in the State of Bihar;
NOW, THEREFORE, in exercise of the power conferred by clauses (1) of Article 213 of the Constitution of India the Governor is pleased to promulgate the following Ordinance:- CHAPTER 1 PRELIMINARY
1. Short title, extent and commencement.-
(1) This Ordinance may be called the Bihar Non-Government Sanskrit Schools (Taking over of Management and Control) Ordinance, 1989.
(2) It shall extend to the whole of the State of Bihar.
(3) It shall come into force at once.
2. Definitions. In this Ordinance, unless there is anything repugnant in the subject or context-
(i) "Non-Government Sanskrit Schools" means a Sanskrit School with the prior approval of the State Government recognised by dissolved Bihar Sanskrit Shiksha Parishad, Kameshwar Singh Darbhanga Sanskrit University, Darbhanga and Sanskrit Education Board constituted under Bihar Sanskrit Education Board Act, 1981.
(ii) "Head-Master" means the Head of the teaching staff of Sanskrit School taken over by the Government whatsoever the designation may be.
(iii) "Teacher" means a teacher of the Sanskrit Schools taken over by the Government.
(iv) "Non-Teaching Staff" means full time employees other than the teaching staff of the Sanskrit School taken over by the Government.
(v) "Director" means Director of Education of the State Government Incharge Sanskrit Education.
(vi) "Prescribed" means prescribed by this Ordinance of rules made thereunder.
(vii) "Rules" means Rules made under Section 14 of this Ordinance.
CHAPTER 2 TAKING OVER OF MANAGEMENT AND CONTROL
3. Taking over of Management and Control of Non-Government Sanskrit Schools by State Government. (1) With effect from the date of enforcement of this Ordinance 429 Sanskrit Schools mentioned in Schedule 1 shall vest in the State Government and the State Government shall manage and control thereafter.
(2) All the assets and properties of all the Sanskrit Schools mentioned in sub-section (1) and of the Governing Bodies, Managing Committees incidental thereto whether movable or immovable including land, buildings, documents, books and register, cash-balance, reserve fund, capital investment, furniture and fixtures and other things shall, on the date of taking of taking over, stand transferred to the vest in the State Government free from all encumbrances.
4. Effect of taking over the Management and control. (1) With effect from the date of vesting of Sanskrit Schools mentioned in Schedule 1 under section 3(1) in the State Government, the services of all those teaching and non- teaching employees of the schools mentioned in schedule 1, who have been appointed permanently/temporarily against sanctioned posts in accordance with the prescribed standard, staffing pattern as prescribed by the State Government prior to this Ordinance shall stand transferred to the State Government. He shall be employee of the State Government with whatsoever designation he holds;
Provided, that the services of those teaching or non-teaching employees who are in excess of the sanctioned strength or do not possess necessary fitness/qualification shall automatically stand terminated.
(2) Teachers of the Sanskrit Schools taken over by the Government shall be entitled to the same pay, allowances and pension etc. as are admissible to teaching and non-teaching employee of the taken over secondary Schools of Bihar.
CHAPTER 3 MANAGEMENT OF SCHOOLS
5. Management and Control. - The Management and Control of the Sanskrit Schools taken over by the state Government shall remain under the Director and Officers working under him in the manner prescribed by the State Government. The State Government shall determine the powers and functions of the Director and officers of all ranks working under him and shall issue necessary direction in this behalf to the Director from time to time.
There are other clauses of the Ordinance dealing with constitution of managing committee (Clause -6) , powers and functions of managing committee (clause-7), main functions of the Head Masters (clause -8) accounts and audit of the Sanskrit Schools taken over the State Government (clause-9) ; constitution of Sanskrit Education Committee relating to development of Sanskrit education in the State (clause - 10) ; offences and penalties for contravention of the provisions of the Ordinances (Clause -11) , cognizance of offence (clause- 12), protection of action taken in good faith (clause-13) power to make rules (Clause- 14) and power to remove difficulties (Clause -15).
Schedule of the Ordinance gives list of non-Government Sanskrit Schools to be taken over by the Ordinance. It give the names of 429 such schools in each of the districts in the State of Bihar which separate columns giving strength of standard teaching staff ( including Head Masters) and non- teaching staff.
After this Ordinance 32/1989 lapsed successive Ordinances Nos. 7 of 1990 dated February 28,1990 and 14 of 1990 dated may 2,1990 were repromulgated on the same terms.
After that, fourth Ordinance No. 21 of 1990 dated August 12, 1990 was promulgated which struck a different note. Clauses (3) and (4) of this Ordinance 21/1990 are reproduced as under:-
"TAKING OVER OF MANAGEMENT AND CONTROL
3. Taking over of management and control of non-Government Sanskrit Schools by State Government.
(1) With effect from the date of enforcement of this Ordinance 429 Sanskrit Schools mentioned in Schedule -1 shall vest in the state Government and the State Government shall manage and control thereafter.
But, the Sanskrit Schools mentioned in annexure-1 of this ordinance will be investigated through concerned Collector and if it will be found in the report of Collector that such school is not in existence, in this case State government will remove the name of that school Ordinance through notification in State Gazette.
(2) All the assets and properties of all the Sanskrit Schools, mentioned in sub-section (1) and of the Governing Bodies Managing Committees, incidental thereto whether movable or immovable including lands, buildings, documents, books and registers cash- balance, reserve fund, capital investment, furniture and fixture and other things, shall on the date of taking over, stand transferred to and vest in the State Government free from all encumberances.
4. Effect of taking over the management and control
(1) The staffs working in the Sanskrit Schools mentioned annexure -1 of the Ordinance related to integration of its management and control into the State Government as per the Schedule 3(1) , they will be not until and unless Government comes to a decision regarding their services.
(2) State Government will appoint a committee of specialists and experienced persons to enquire about number of employees, procedure of appointment as well as to enquire about the character of the staffs individually and will come on a decision about validity of posts sanctioned by Governing body of the School, appointment procedure and affairs of promotions of confirmation of services.
Committee will consider the need of institution and will submit its report after taking stock of views regarding qualification, experience and other related and relevant subjects. Committee will also determine in its report whether the directives regarding reservation for SC, ST and OBC's has been followed or not.
(3) State Government, after getting the report will determine the number of staffs as well as procedure of appointments and will go into the affair of appointment of teaching and other staff on individual basis and in light of their merit and demerit will determine whether his service will be integrated with the Government or not, Government will also determine the place, salary, allowances and others service conditions for them." XXX XXX XXX
"(16) Repeal and savings (1) The Bihar non-Government Sanskrit School (taking over of management and control Ordinance, 1990) (Bihar Ordinance No. 14, 1990) is hereby repealed.
(2) Notwithstanding such repeal anything done or any action taken in exercise of the powers conferred by or under the said Ordinance shall be deemed to have been done or taken in exercise of the powers conferred by or under this Act as if this Act were in force on the date on which such thing was done or action taken." This fourth Ordinance now contemplates enquiry and investigation which was not there in the first Ordinance.
Again successive Ordinance Nos. 10 of 1991 dated march 8, 1991, 31 of 1991 dated August 8, 1991 and 2 of 1992 dated January 21, 1992, on the same terms as Ordinance 21/1990, were issued till the last Ordinance lapsed without State Legislature's passing any Act in substitution of the Ordinance.
While the stand of the teaching and non-teaching staff in the writ petitions was that by virtue of the first Ordinance 32/1989 Sanskrit Schools mentioned in the Schedule were taken over and they had become Government Servants, the State Government took entirely an opposite stand that schools were never taken over and nor the teaching and non- teaching staff conferred the status of Government servants as even the first Ordinance required certain criteria to be laid and fulfilled and that not having been done the writ petitions were devoid of merit.
To understand the rival contentions I think I may first refer to the relevant provisions of Article 213 of the Constitution and various judgements of this Court laying down the scope and effect of an Ordinance in the circumstances as in the present case. Article 213 confers power on the Governor of the State to promulgate Ordinance during recess of the legislature of the State. Said Article in relevant part is as under:- " 213. Power of Governor to promulgate Ordinance Ordinances during recess of Legislature -- (1) If at any time, except when the Legislative Assembly of a State is in session, or where there is a Legislative Council in, a State, except when both Houses of the Legislature are in session, the Governor is satisfied that circumstance exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstance appear to him to require :
(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of the Legislature of the State assented to by the Governor, but every such ordinance -- (a) shall be laid before the Legislative Assembly of the State, or where there is a Legislative Council in the State, before both the houses, and shall cease to operate at the expiration of six weeks from the re-assembly of the Legislature, or that period a resolution disapproving it is passed by the legislative Assembly and agreed to by the legislative Council, if any, upon the passing of the resolution or, as the case may be, on the resolution being agreed to by the Council; and (b) may be withdrawn at any time by the governor, Explanation -- where the Houses of the legislature of a State having a Legislature of a State having a Legislative Council are summoned to re-assembly on different dates, the period of six weeks shall be reckoned from the latter of those dates for the purposes of this clause.
(3)........." In writ petition under Article 32 of the Constitution in D.C. Wadhwa vs. State of Bihar (1987 (1) SCC 378) the question before this Court was: Can the Governor go on repromulgating the Ordinance for an indefinite period of time and thus take over to himself the power of the legislature to legislate though that power is conferred on him under Article 213 only for the purpose of enabling him to take immediate action at a time when the legislative assembly of the State is not in session or when in a case where there is a legislative council in the State, both Houses of legislature are not in session. The petitioners therein had challenged the validity of the practice of the State of Bihar in promulgating and re-promulgating Ordinances on a massive scale and in particular they challenged the constitutional validity of three different Ordinances. At the time of filing the writ petitions the Ordinances were in force and during the pendency of the writ petitions only on of the ordinances which had been repromulgated was still in force, it was contended before the Court that the question raised before it was academic in nature and need not be adjudicated upon. Since one ordinance was still in force and the question raised in the writ petitions was of highest constitutional importance this Court said that it must decide the issue on merit in order to afford guidance to the governor in exercise of his power to repromulgate ordinances from time to time. After examining numerous ordinances issued by the State of Bihar the Court was of the view that it seemed that the Government of Bihar made it a settled practice to go on repromulgating the ordinances from time to time and this was done methodologically and with a sense of deliberateness. The Court found that immediately at the conclusion of each session of the State legislature a circular letter used to be sent by the Special Secretary in the Department of Parliamentary Affairs to all the Commissioners, Secretaries, Special Secretaries, Additional Secretaries and all Heads of Departments intimating to them that the session of the legislature had been got prorogued and that under Article 213 clause (2) (a) of the Constitution all the Ordinances would cease to be in force after six weeks of the date of re-assembly of the legislature and that they should therefore get in touch with the Law Department and immediate action should be initiated to get "all the concerned Ordinances repromulgated", so that all those Ordinances are positively repromulgated before the date of their expiry.
The Court also noticed that this circular letter also used to advise the officers that if the old Ordinances were repromulgated in their original form without any amendment, the approval of the Council of Ministers would not be necessary. This Court reproduced such a letter in its judgment. The Court quashed the Ordinance which was in force at the time of the judgment. The Court then observed that the only question before it was that whether the Governor had power to repromulgate the same Ordinance successively without bringing it before the legislature. It said:- " That clearly the Governor cannot do. He cannot assume legislative function in excess of the strictly defined limits set out in the Constitution because otherwise he would be usurping a function which does not belong to him. It is significant to note that so far as the President of India is concerned, though he has the same power of issuing an ordinance under Article 123 as the Governor has under Article 213, there is not a single instance in which the President has, since 1950 till today, repromulgated any Ordinance after its expiry. The startling facts which we have narrated above clearly show that the executive in bihar has almost taken over the role of the legislature in making laws, not for a limited period, but for years together in disregard of the constitutional limitations.
This is clearly contrary to the constitutional scheme and it must be held to be improper and invalid.
We hope and trust that such practice shall not be continued in the future and that be continued in the future and that whenever an Ordinance is made and the government wishes to continue the provisions of the Ordinance in force after the assembling of the legislature, a Bill will be brought before the legislature for enacting those provisions into an Act. There must not be Ordinance-Raj in the country.
It will be seen that this Court in strongest possible words disapproved the practice adopted by the State in successively repromulgating the Ordinances. The judgment was delivered in this case on December 20, 1986. It seems that it had no effect on the State of Bihar as the present case shows that the practice of repromulgating the same Ordinances successively is continuing with impunity by the State of Bihar. The hope which this Court expressed has been belied. This court will certainly look sternly and come down with heavy hand on any action of the State in violation of the constitutional provisions.
In State of Orissa vs. Bhupendra Kumar Bose (1962 Supp.(2) SCR 380 ) the High Court set aside the elections held for Cuttack Municipality on the grou
