# KRISHNA KUMAR SINGH AND ANR v. STA TE OF BIHAR

- **Citation:** [1998] 3 S.C.R. 206
- **Court:** Supreme Court of India
- **Decided:** 1998-05-08
- **Case number:** Civil Appeal No. 5875of1994
- **Bench:** Sujata V.Manoharandd.P. Wadhwa
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/krishna-kumar-singh-and-anr-v-sta-te-of-bihar-16269
- **Pages:** 49

## Headnote

Constitution of India, Article 213-Bihar Non-Government Sanskrit
Schools (laking Over of Management and Control) Ordinance, I 989 (First
...-
c
Ordinance)-Replaced by Successive Ordinances-None of the Ordinance
providing compensation for properties taken over-Validity of-Held; (per
Sujata V. Manohar, J.) All the Ordinances were illegal and had to be struck
down; (per Wadhwa, J.-Dissenting) First Ordinance had to be given full
effect but subsequent Ordinance has to be struck down-(Per Curiam)
Matters referred to larger Bench.
D
Constitution of India, Article 213-Bihar Non-Government Sanskrit
·· ~chools (Taking Over of Management and Control) Ordinance, 1989 (First
J?
Ordinance)-Conferring status of government servants on teachers of taken
over schools-On repeal of First Ordinance successive repromulgated
E
Ordinances making status incumbent upon inquiry by and satisfaction of
Government-Effect of repeal of First Ordinance-Held, (per Sujata Manohar,
J., the First Ordinance did not have any permanent effect; since all the
Ordinances were invalid no rights flowed from any of them; (per Wadhwa,
J.-dissenting). The First Ordinance was of enduring effect which could be
reversed only by State legislature; the teachers acquired status of and were
F entitled to same pay scales as government servants-(Per Curiam) : Matters
referred to larger Bench
{
In 1989 there were 651 Sanskrit schools under the Bihar Sanskrit
Shiksha Board which were receiving grants-in aid for expenditure on salary
G of teachers and staff as well as for development of school buildings, furniture
etc. However, these schools were managed by their own managing committees.
On December 16, 1989 Ordinance 32of1989 entitled the Bihar Non
Government Sanskrit Schools (Taking Over of Management and Control) .
,....
Ordinance, 1989 (First Ordinance) was promulgated under which the State
H of Bihar took over 429 out of the 651 Sanskrit schools. Clause 3(2) of the
206
K.K. SINGHv. STATE
207
First Ordinance provided for vesting of all properties and assets of private A
schools. However, it did not provided for any compensation to be paid to the
owners of the properties and assets.
The First Ordinance was replaced on February 28, 1990 by Ordinance
7 and Ordinance 7 was-replaced on May 2, 1990 by Ordinance 14of1990 B
respectively. Ordinance 21 of 1990 which replaced Ordinance 14 on August
12, 1990 made a change to the earlier Ordinances to the effect that the State
Government would investigate the Sanskrit schools listed in Annexure 1
- .__
thereto to find out whether they were in existence and what their properties
and assets were. Further umler section 4, a Committee of specialists would
enquire about the employees of these schools and on the basis of the C
Committee's reports the State Government had to determine on an individual
basis whether a teacher would be taken in Government services or not. This
Ordinance was successively replaced by Ordinances 10 and 31 of 1991 and
lastly by Ordinance 2 of 1992 which expired on April 30, 1992.
The teachers of the taken over sanskrit schools filed writ petitions in D
the Patna High Court challenging the validity of these Ordinances and
'-
seeking a declaration that they were government servants. The High Court
granted limited relief to the teachers that they be paid salaries as government
servants from the date of the First Ordinance till April 30, 1992 when the
last Ordinance lapsed and also directed payment of salaries for the earlier E
period at the rate to which they were entitled. The teachers appealed to this
Court. The State of Bihar, aggrieved by the directions to pay salaries to the
te!lchers as well as the findings of the High Court that there was an
'Ordinance Raj' in the State, aim appealed to this Court.
Referring the matters to a larger Bench, this Court
F
HELD : Per Curiam :
In view of the difference of opinion between the two judges who heard
the appeals on the constitutional validity of the First Ordinance, and on the
e

## Text

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A
KRISHNA KUMAR SINGH AND ANR.
v.
STA TE OF BIHAR
.......
;
MAY 8, 1998
B
[SUJATA V.MANOHARANDD.P. WADHWA,JJ.]
Constitution of India, Article 213-Bihar Non-Government Sanskrit
Schools (laking Over of Management and Control) Ordinance, I 989 (First
...-
c
Ordinance)-Replaced by Successive Ordinances-None of the Ordinance
providing compensation for properties taken over-Validity of-Held; (per
Sujata V. Manohar, J.) All the Ordinances were illegal and had to be struck
down; (per Wadhwa, J.-Dissenting) First Ordinance had to be given full
effect but subsequent Ordinance has to be struck down-(Per Curiam)
Matters referred to larger Bench.
D
Constitution of India, Article 213-Bihar Non-Government Sanskrit
·· ~chools (Taking Over of Management and Control) Ordinance, 1989 (First
J?
Ordinance)-Conferring status of government servants on teachers of taken
over schools-On repeal of First Ordinance successive repromulgated
E
Ordinances making status incumbent upon inquiry by and satisfaction of
Government-Effect of repeal of First Ordinance-Held, (per Sujata Manohar,
J., the First Ordinance did not have any permanent effect; since all the
Ordinances were invalid no rights flowed from any of them; (per Wadhwa,
J.-dissenting). The First Ordinance was of enduring effect which could be
reversed only by State legislature; the teachers acquired status of and were
F entitled to same pay scales as government servants-(Per Curiam) : Matters
referred to larger Bench
{
In 1989 there were 651 Sanskrit schools under the Bihar Sanskrit
Shiksha Board which were receiving grants-in aid for expenditure on salary
G of teachers and staff as well as for development of school buildings, furniture
etc. However, these schools were managed by their own managing committees.
On December 16, 1989 Ordinance 32of1989 entitled the Bihar Non
Government Sanskrit Schools (Taking Over of Management and Control) .
,....
Ordinance, 1989 (First Ordinance) was promulgated under which the State
H of Bihar took over 429 out of the 651 Sanskrit schools. Clause 3(2) of the
206
K.K. SINGHv. STATE
207
First Ordinance provided for vesting of all properties and assets of private A
schools. However, it did not provided for any compensation to be paid to the
owners of the properties and assets.
The First Ordinance was replaced on February 28, 1990 by Ordinance
7 and Ordinance 7 was-replaced on May 2, 1990 by Ordinance 14of1990 B
respectively. Ordinance 21 of 1990 which replaced Ordinance 14 on August
12, 1990 made a change to the earlier Ordinances to the effect that the State
Government would investigate the Sanskrit schools listed in Annexure 1
- .__
thereto to find out whether they were in existence and what their properties
and assets were. Further umler section 4, a Committee of specialists would
enquire about the employees of these schools and on the basis of the C
Committee's reports the State Government had to determine on an individual
basis whether a teacher would be taken in Government services or not. This
Ordinance was successively replaced by Ordinances 10 and 31 of 1991 and
lastly by Ordinance 2 of 1992 which expired on April 30, 1992.
The teachers of the taken over sanskrit schools filed writ petitions in D
the Patna High Court challenging the validity of these Ordinances and
'-
seeking a declaration that they were government servants. The High Court
granted limited relief to the teachers that they be paid salaries as government
servants from the date of the First Ordinance till April 30, 1992 when the
last Ordinance lapsed and also directed payment of salaries for the earlier E
period at the rate to which they were entitled. The teachers appealed to this
Court. The State of Bihar, aggrieved by the directions to pay salaries to the
te!lchers as well as the findings of the High Court that there was an
'Ordinance Raj' in the State, aim appealed to this Court.
Referring the matters to a larger Bench, this Court
F
HELD : Per Curiam :
In view of the difference of opinion between the two judges who heard
the appeals on the constitutional validity of the First Ordinance, and on the
effect of it on the status of the concerned teachers, the matters be placed
before the Hon'ble the Chief Justice oflndia for constituting a larger bench. G
(254-8)
Per Sujata V. Manohar, J. :
1. All the Ordinances were illegal particularly when there was no
basis shown for the exercise of power under Article 213. The manner in H
208
SUPREME COURT REPORTS
[ 1998) 3 S.C.R..
A which a series of Ordinances had been promulgated in the present c11se by
the State of Bihar showed misuse by the Executive of Article 213. It was a
fraud on the Constitution. All the Ordinances formed part of a chain of
executive acts designed to nullify the scheme of Article 213. [219-D)
R.K. Garg Union of India, [1982) 1 SCR 947; T. Venkata Reddy v. State
B of Andhra Pradesh, (1985) 3 SCR 509 and Dr. D.C. Wadhwa v. State of Bihar,
I 1987) l sec 378, referred to.
Constituent Assembly Debates, vol. 8, pp. 208, 214, 215, referred to.
2. Neither the First Ordiuauce nor the sub~quent Ordinances provided
c
for any compensation being paid for taking over the properties and assets
of private schools. This was a totally arbitrary exercise of power violative of
Article t 4. Since the Ordinances were unconstitutional no rights could flow
from any of them. (219-F-G)
C.B. Gautam v. Union of India, (1993) l SCC 78, relied.
D
3. The First Ordinance did not have any permanent effect. A 'take
over' Ordinance might be required if there was urgency; but any enduring
consequences beyond the life of the Ordinance could only be brought about
by legislation. Even if the First ordinance was valid (which it was not), the
teachers could be considered as government servants only for its duration.
E
(224-D-E)
State of Orissa v. Bhupendra Kumar Bose, [1962) Supp. 2 SCR 380;
S. Krishnan v. The State of Madras, [1951) SCR 621; Steven::on v. Oliver
(1841) 151 E.R. 1024; S.R. Bommai v. Union of India, (1994) 3 SCC 1; S.S.
Dhanoa v. Union of India, AIR (1991) SC 1745; ML Kamra v. Chairmancum-Managing Director, New India Assurance Co. Ltd., (1992) 2 SCC 36
F and State of Bihar v. Chandradip Rai, (1982) 2 SCC 272, referred to.
Per Wadhwa, J. :
I. The Govern01· had exercised legislative power and issued the First
Ordinance and full effect, therefore, had to be given to it as per law. The
G
Court could not go into the question whether circumstances existed for the
exercise of power under the Constitution and as to what was the urgency to
promulgate the Ordinance. (249-C-D)
2. The Ordinance repromulgated after the First Ordinance has to be
struck down. The State could not go on governing by Ordinances without
going to the Legislature. The subsequent Ordinances had no meaning and
H are void. (250-H; 251-A-B)
,,,
,
,
K.K. SINGH v. STATE [SUJATA V. MANOHAR, J.]
209
3. The rights created by the First Ordinance must be held to endure A
and last even after the expiry of the First Ordinance. The nature of rights
created by the First Ordinance and the obligations arising out of its provisions
and character unmistakably conferred status of government servants on the
employees of the Sanskrit schools taken over under the First Ordinance and
they are entitled to same pay scale as any government servant holding
equivalent post. These consequences flowing from the First Ordinance are B
of enduring nature unless reversed by the State Legislature. [253-D-FJ
Dr. D.C. Wadhwa v. State of Bihar & Ors., [1987] l SCC 378; State of
Orissa v. Bhupendra Kumar Bose, (1962] Suppl. 2 SCR 380; S. Kn~hnan &
Ors., v. The State of Madras (1951) SCR 621; T. Vekatareddy v. State of C
(1985) 3 SCR 509; R.K. Garg v. Union of India, (1982] l SCR 947; A.K. Roy
v. Union of India, (1982) 2 SCR 272; S.R. Bommai & Ors. v. Union of India,
[1994) 3 SCC l; Steavenson v. Oliver, (1841) 151ER1024; State of Mysore
v. H. Pappanna Gowda and Anr. Etc., (197112 SCR 831 and Prabodh Verma
v. State of Uttar Pradesh, [ 1985) 1 SCR 216, referred to
Craies on Statute Law, 7th edn., p. 409, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5875of1994
Etc. Etc.
From the Judgment and Order dated 9 .3. 94 of the Patna High court in
C.W.J.C. No. 7844of1990.
Sudhir Chandra, Shanti Bhushan, Rakesh Dwivedi, Jayant Bhushan,
Ms. Reena George, A. Sharan, L.R. Singh, S.B. Upadhyay, P.R. Tiwari, Rakesh
D
E
K. Sharma, P.S. Jha, Mihir Kr. Jha, Shambhu Pd. Singh, 8.B. Singh, R.P. Singh, F
M.P. Jha, Ram Ekbal Roy, Anil K. Chopra, lrshed Ahmad and Arvind K.
Aggarwal for the appearing parties.
The Judgment of the Court was delivered by
MRS. SUJATA V. MANOHAR, J. 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 nonG
• 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 H
210
SUPREME COURT REPORTS
(1998] 3 S.C.R.
A 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 servants 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 Ordinances expired by lapse of
B 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
Ordinances win 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,
C 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 Governments servants after 30th of April, 1992, a number of
petitioners before the High Court have filed the present group of appeals from
D the High Court's judgment and order, save and except one set of appeals
which have been filed by the State of B ihar, 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
E of the High Court in relation to "ordinance Raj" in the State of Bihar and the
finding that Ordinances repromulgated by the State again 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
F Schools claiming reliefs similar to those claimed in the original writ petitions
before the High Court. The impleadment application, l.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.
G
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
H Association conducted the examinations.
-
K.K. SINGH v. STATE [MRS. SUJATA V. MANOHAR, J.]
211
After 1960, the Kameshwar Singh Darbhang~ Vishwa Vidyalaya Act, A
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 B
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, I 976 was promulgated. It repealed
the Sanskrit University Act of 1965. The jurisdiction of the Bihar State C
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 I 981 came into force D
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 "to ls", power of preparation
of text books and curriculum, holding of examinations up to Madhyama level,
publication of results, award of certificates and so on.
E
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 F
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 the Bihar Sanskrit Shiksha Board for distribution to the Sanskrit G
Schools eligible for grants. The Bihar Sanskrit Shiksha Board , in tum, 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 32of1989 entitled the BiharNon- H
212
SUPREME COURT REPORTS
[1998) 3 S.C.R.
A 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:
B
"3. Taking over of Management and Control of Non-Government
Sanskrit Schools by State Government - (I) With effect from the date
of enforcement of this Ordinance 429 Sanskrit Schools mentioned in
Schedule I shall vest in the State Government and the State
Government shall manage and control thereafter.
c
D
E
F
G
H
(2) All the assets and properties of all the Sanskrit Schools mentioned
in sub-section (I) and of the Governing Bodies, Managing Committees
incidental thereto whether movable or immovable including land,
buildings, documents, books and register. Cash-balance, reserve fand,
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 - (I) with effect
from the date of vesting of Sanskrit Schools mentioned in Schedule
) under Section 3(1) in the State Government, the services of all those
teaching and non-teaching employees of the schools mentioned in
Schedule I, 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)
-,, •
K.K. SINGH v. STATE [SUJATA V. MANOHAR. J.]
213
Clause 3(2) of the Ordinance provides for vesting of all properties and A
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] I SCC 78.
Ordinance J2 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 Ordinances contained
B
a "repeal and savings" clause under which the previous Ordinance was C
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 D
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:
E
"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 F
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 if it is found in
the report of the Collector that such school is not in existance, in this G
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 (I) and of the Governing Bodies, Managing Committees,
incidental thereto whether movable or immovable including lands, H
214
SUPREME COURT REPORTS
[1998) 3 S.C.R.
A
buildings, documents, books and registers, 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.
B
4. Effect of taking over the management and control : (I) The staff
working in the Sanskrit Schools mentioned in annexure - I 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.
C
(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 staff
individually and will come on a decision about Validity of post
sanctioned by Governing body of the school, appointment procedure
D
E
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 OBC'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
F
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).
G
Thus the 4th Ordinance contained an express provisions for investigation
of the Sanskrit Schools listed in annexure I 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
H proper, whether they possessed the requisite qualifications and merit, whether
K.K. SINGH v. STATE [SUJATA V MANOHAR, J.]
215
the posts they occupied were sanctioned, and other related enquires. The A
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 B
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 en 30th of April, 1992. These three C
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 I st three D
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 an 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 E
also the contention of the State that the service of the teaching and nonteaching 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 F
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.
G
H
216
SUPREME COURT REPORTS
(1998] 3 S.C.R.
A
The teachers who are appellants before us, however, contend that only
the first Ordinance No. 32 of 1989 should be looked at in order to decide their
status. Since no inquiry is contemplated under the first Ordinance, they have
automatically become Government servants. They further contend that all the
subsequent Ordinances are illegal/invalid and must be ignored.
B
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
C 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
D Legislature of a State is given the power to make laws for the whole or any
part of the State in re.spec! of matters as set out in Article 246 read with the
Seventh Schedule.
Article 213, however, makes a drparture from this scheme and gives to
the Governor who acts on the aid and advice of the Executive, the legislative
E 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.
F
G
H
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 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 ifbefore the expiration
of 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
>
K.K. SINGH v. STATE [SUJATA V. MANOHAR, J.]
217
be, on the resolution being agreed to by the Council; and
A
(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 B
for the purposes of this clause."
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 C
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 six weeks from the re-assembly of the Legislature. But even before the D
expiration of six weeks if a resolution disapproving the Ordinance is passed.
by the Legislature, it will cease to operate. 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.
E
That this power is a departure from the nonna! 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 F
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 a 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 G
matters when the Legislature was not in session.
In R.K. Garg etc. etc. v. Union of India & Ors., etc., [1982] I 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 H
218
SUPREME COURT REPORTS
[1998] 3 S.C.R.
A 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
B 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
a power exercisable only when both Houses of Parliament are not in session
C 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
D page 524 and Dr. D. C. Wadhwa & Ors., v. State of Bihar & Ors., [ 1987] I 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
E 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
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
F 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
G Legislature had been got prorogued and that under Article 213(2) (a) all the
Ordinances would cease to be in force six weeks after the 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 repromulgated 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
H Legislature in making laws not for a limited period but for years together in
K.K.S!NGH v. STATE [SUJATA V. MANOHAR, J.]
219
disregard of the constitutional limitations. This was clearly contrary to the A
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 has not even averred that any immediate B
action was required when the I st ordinance was promulgated. It has not
stated when the Legislative Asembly was convened after the first Ordinance
or any 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 C
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 are unconstitutional and invalid particularly when there
is no basis shown for the exercise of power under Article 213. There is also
no explanation offered for promulgating one Ordinance after another. If the D
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 E
Ordinance is valid but the subs~quent Ordinances are invalid. In my view all
are invalid.
Also, neither the I st 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 F
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 G
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 H
220
SUPREME COURT REPORTS
(1998] 3 S.C.R.
A 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 reassembled 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 I st Ordinance, in the present case,
B 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, I 89i has no
application because Section 6 is, ir terms, limited to repeals (vide G.P. Singh,
Principles of Statutory Interpretation, 16th Edition, Page 388). However, if any
C 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 ofOrissa v. Bhupendra Kumar Bose, (1962] Suppl.
2 SCR 380, this Court considered the effect of an Ordinance which had lapsed.
D 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
E 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
F 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
G 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
H Legislature, this Court added, (p.398) that it would not be reasonable to hold
J.
K.K. SINGH v. STATE [SUJATA V. MANOHf R, J.]
221
that the general rule about the effect of the expiration of a temporary Act js A
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 B
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 C
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 Ord in~':~ abolishing the posts of parttime village officers. The Ordinance lapsed and was not replaced by an Act D
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 expn:ss
legislation.
E
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 .:haracter which subsists beyond the life of an
ordinance? Both these terms are somewhat ambiguous. Since an Ordinance F
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.