Holding

All the Ordinances, including the first, were unconstitutional and void, and no rights, such as government‑servant status or compensation, could flow from them.

Summary

In 1989 the Governor of Bihar promulgated Ordinance 32 to take over 429 private Sanskrit schools, vesting their assets in the State and converting the teachers into government servants. The Ordinance was repeatedly re‑promulgated until 1992 without ever being placed before the legislature. The teachers filed writ petitions seeking declaration of their government‑servant status and compensation, while the State challenged the High Court's order granting them salaries. The Supreme Court examined whether the series of Ordinances were valid exercises of the power under Article 213 and whether any rights created by the first Ordinance could survive its lapse. The majority held that all the Ordinances, including the first, were unconstitutional and void, so no rights, including government‑servant status or compensation, could arise from them. The Court dismissed the State's appeal, allowed the other appeals, modified the High Court judgment accordingly, and ordered the matter to be referred to a larger bench for final resolution.

Issues considered

The constitutional validity of the Bihar Non‑Government Sanskrit Schools (Taking Over of Management and Control) Ordinances (1989‑1992) under Article 213.
Whether the first Ordinance conferred a permanent government‑servant status on the teachers of the taken‑over schools.
Whether the successive re‑promulgation of Ordinances amounted to an unlawful "Ordinance Raj".
Whether rights and vested property created by a temporary Ordinance survive its expiry.

Legislation cited

Constitution of Indias. Article 14, s. Article 174, s. Article 213, s. Article 311(2)
General Clauses Act, 1897s. Section 6

Subjects

OrdinanceArticle 213Constitutional validityGovernment servant statusTakeover of private schoolsOrdinance RajCompensationVested rightsTemporary legislation

Judgment

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 ...-
Ordinance)-Replaced by Successive Ordinances-None of the Ordinance
c 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
Ordinance)-Conferring status of government servants on teachers of taken J?
over schools-On repeal of First Ordinance successive repromulgated
Ordinances making status incumbent upon inquiry by and satisfaction of
E Government-Effect ofrepeal ofFirst 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
of teachers and staff as well as for development of school buildings, furniture
G
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 ofIndia, [1982) 1 SCR 947; T. Venkata Reddy v. State
B ofAndhra Pradesh, (1985) 3 SCR 509 and Dr. D.C. Wadhwa v. State ofBihar,
I1987) 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
,,,
for any compensation being paid for taking over the properties and assets
c 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.
(224-D-E)
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. Chairman-
cum-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
Court could not go into the question whether circumstances existed for the
G 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
D
Craies on Statute Law, 7th edn., p. 409, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5875of1994
Etc. Etc.
E
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
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
G
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 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 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 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
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.

History of Sanskrit Schools in the State of Bihar :
G
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 (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
D 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
E 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;
F
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.
G
(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."

H (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.
B
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
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.

4. Effect of taking over the management and control : (I) The staff
B 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
and promotion or confirmation of services. Committees will consider
D
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.
E
(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 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 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.
G
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. 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.

Article 213(2) provides as follows:
F
"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
G 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,
H 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 ofBihar & 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 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
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 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 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
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 part-
time 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
J.
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. 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 G
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 sitution so demand. Basically, an effect of an Ordinance can
be considered as permanent when that effect is irreversible or possibly when H
222 SUPREME COURT REPORTS [1998] 3 S.C.R.

A 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
B since 1962. Jn the case of S.R.Bommai & Ors., v. Union ofIndia & Ors., [1994]
3 SCC page I, at page 226, tht! majority of the Judges have taken the view
that when a proclamation of the President's Rule ceases to be in operation,
the necessary consequence is that the status quo ante revives. This Court
by a majority, also said (at page 123) that the constitutional check on the
-
C 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
D 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
E 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 made to this effect in the Article. e.g., Article 352 deals with a
F 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 Houses of Parliament". Article 356 deals with President's Rule in a
State if there is failure of constitutional machinery in the State. Clauses (3)
G 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 Arti.cle 356, however, Article 357(2)
H provides that any law made in the exercise of the power of the Legislature
K.K. SINGH v. STATE [SUJATA V. MANOHAR, J.] 223
of the State by Parliament or the President during the subsistence of the A
~ 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
cf laws enacted during the proclamation of President's Rule beyond the
period during which the proclamation was in force. There is no such provision B
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
c
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 D
....._, . birth. He may be the son of his father and mother, he may be the brother of
l
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 E
field, an industry may be taken over by the state or be nationalised. The same
industry, by another law, can be de-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 thP. process is not irreversible Similarly, the employees
of such an industry, on its being taken over by the State, may become F
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 cor.ferred by a take over which is
arbitrary and unconstitutional.

The protection of Article 311(2) does not extend to such situations. This G
Court has held, in S.S. Dhanoa v. Union ofIndia & Ors., AIR (1991) SC 1745,
that creation and abolition of posts is the exclusive con~ern 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 ML. Kamra v. Chairman-cum-Managing Director, H
224 SUPREME COURT REPORTS [1998] 3 S.C.R.

A 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 ir-

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
B Legislature. Otherwise the constitutional check on the executive's power to
promulgate Ordinances wi!l 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
c 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 can 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
D 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, ,l

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.
E
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
F 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 baisis of the salary to
which they were entitled (through the Bihar Sanskrit Shiksha Board) prior to
G the promulgation of the first Ordinance 32of1989. 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 the case of State of Bihar &. Ors., v. Chandradip Rai & Ors., [ 1982]
2 SCC 272, this Court examined Bihar Non-Government Elementary Schools
H (Taking over of Control) Act, 1976. Section 3 provided for take over of
K.K. SINGH v. STATE [SUJATA V. MANOHAR, J.] 225
elementary schools by the State Government by publication of a notification. A
-; 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 B
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 Ist Ordinance. The examination of schools
for the purpose of take over under the 4th and subsequent Ordinance, was c
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 D
_, before the High Court could not have succeeded in the writ petitions.
l

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
E
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 F
'I
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.
G

Contempt Petition Nos. 288-296 of 1977 in civil appeals concerned also
~ do not now service since salaries on the basis of the staffs entitlement prior
to the first Ordinance have already been paid. Contempt petitions are
accordin5ly disposed of. H
226 SUPREME COURT REPORTS (1998] 3 S.C.R.

A 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,
B 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 oflndia. The Ordinance was published
c 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 in the writ petitions that Sanskrit Schools had
been taken over by the State Government or that the petitioners had become
D Government servants and entitled to salaries and other benefits as the
Government teachers. The High Court, however, granted limited relief to the ,_
petitioners they be paid salaries as Government servants from the date of the J..
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
E
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 Ordinances
re-promulgated again and again were illegal and that there was "Ordinance
Raj" in the State of Bihar.
F
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 arid for meeting other expenses of the schools
through the Bihar Sanskrit Shiksha Board. The grants were disbursed to
G ·different schools in ar.cordance 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 r.eceiving grants-in-aid from the·State Government.
>-

H On December 16, 1989 Ordinance 32/1989 was promulgated and as noted
•
K.K. SINGH v. STATE [D.P. WADHWA, J.] 227
above was published in the Bihar Gazette (Extra-ordinary) on December 18, A
1989. Since a great deal depends on the purpose and effect of this Ordinance
it would be appropriate to reproduce the same in somewhat detail:-

(Bihar Ordinance No. 32, 1989)

THE BIHAR NON-GOVERNMENT SANSKRIT SCHOOLS B
(TAKING OVER OF MANAGEMENT AND CONTROL)
ORDINANCE, 1989.

..... AN
ORDINANCE

To provide for the taking over of Non-Government Sanskrit Schools
c
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 D
session;

AND WHEREAS, the Governor of Bihar is satisfied that circumstances
exist which render it necessary for him to take immediate action for the
taking over of Non-Government Sanskrit Schools for Management
and Control by the State Government for improvement better E
organisation and development of Sanskrit Education in the State of
Bihar;

NOW, THEREFORE, in exercise of the power conferred by clause (I)
of Article 213 of the Constitution of India the Governor is pleased to
promulgate the following Ordinance:- F
CHAPTER I
PRELIMINARY
I. Short title, extent and commencement.- (I) This Ordinance may
be called the Bihar Non-Government Sanskrit Schools (Taking G
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 H
.
228 SUPREME COURT REPORTS (1998) 3 S.C.R.

A 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, Dar,bhanga and Sanskrit Education Board constituted under
B 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.

C (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.

D (v) "Director" means Director of Education of the State Government
Incharge Sanskrit Education.

(vi) "Prescribed" means prescribed by this Ordinance of rules made n:~
thereunder.

(vii) "Rules" means Rules made under Section 14 of this Ordinance.
E
CHAPTER 2
TAKING OVER OF MANAGEMENT AND CONTROL
3. TAKING OVER OF MANAGEMENT AND CONTROL ofNon-
Government Sanskrit Schools by State Government. (I) With effect
F
from the date of enforcement of this Ordinance 429 Sanskrit Schools
mentioned in Schedule l 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 (I) and of the Governing Bodies, Managing
G 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.
H 4. Effect of taking over the Management and control-{ 1) With effect
K.K. SINGH v. STA TE [D.P. WADHWA. J.] 229
from the date of vesting of Sanskrit Schools mentioned in Schedule A

- I under section 3( I) 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 B
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. c
(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.
D

'-'_)
CHAPTER3
MANAGEMENT OF SCHOOLS

5. Management and Control. - The Management and Control of
the Sanskrit Schools taken over by the state Government shall remain E
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 directions in this
behalf to the Director from time to time.
F
... 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 by the State Government (clause-9) ;
constitution of Sanskrit Education Committee relating to development of G
Sanskrit education in the State (clause - I 0) offences and penalties for
contravention of the provisions of the Ordina'nce (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). H
.,
230 SUPREME COURT REPORTS (1998] 3 S.C.R.

A Schedule of the Ordinance gives list of non-Government Sanskrit schools
to be taken over by the Ordinance. It gives the names of 429 such schools -
in each of the districts in the State of Bihar with separate columns giving
strength of standard teaching staff ( including Head Masters) and non-
teaching staff.

B 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:-
c "TAKING OVER OF MANAGEMENT AND CONTROL

3. Taking over of management and control of non-Government sanskrit I
schools by State Government.

{I) With effect from the date of enforcement of this Ordinance, 429
D
Sanskrit Schools mentioned in Schedule - I 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
E 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 from annexure-1 of the Ordinance through
notification in State Gazette.

F (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 intluding 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,
G stand transferred to and vest in the State Government free from
all en cum berances.

4. Effect of taking over the management and control
>
(I) The staffs working in the Sanskrit schools mentioned annexure
H - I of the Ordinance related to integration of its management and
K.K. SINGH v. STATE [D.P. WADHWA, J.] 231
control into the State Government as per the Schedule 3( I) , they A
will be not the employees of this school 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 B
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 or
confirmation of services. Committee will consider the need of
institution and will submit its report after taking stock of views C
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.

(~ State Government, after getting the report will determine the number D
·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." E
xxx xxx xxx

"(16) Repeal and savings (I) The Bihar non-Government Sanskrit
School (taking over of management and control Ordinance, 1990)
(Bihar Ordinance No. 14, 1990) is hereby repealed. F
(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." G
This fourth Ordinance now contemplates enquiry and investigation
which was not there in the first Ordinance.

Again successive Ordinance Nos. JO of 1991 dated march 8, 1991, 31 of
1991 dated August 8, 1991and2of1992 dated January 21, 1992, on the same H
232 SUPREME COURT REPORTS (1998] 3 S.C.R.

A 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
B 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.
c 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
D of the State. Said Article in relevant part is as under:-"
213. Power of Governor to promulgate Ordinance Ordinances during
recess ofLegislature - (I) 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
E 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 :

xxx xxx xxx

F (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
G Houses, and shall cease to operate at the expiration of six weeks
from the reassembly of the Legislature, or if before 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
H be, on the resolution being agreed to by the Council; and
K.K. SINGH v. STATE [D.P. WADHWA, J.] 233
(b) may be withdrawn at any time by the Governor. A
Explanation - where the Houses of the legislature of a State having
a Legislative Council are summoned to re-assemble on different dates,
the period of six weeks shall be reckoned from the latter of those dates
for the purposes of this clause.
B
(3) ........."

In writ petition under Article 32 of the Constitution in D.C. Wadhwa v.
State ofBihar, [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 C
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 D
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 one of the ordinances
which had been re promulgated was sti II in force. It was contended before the
Court that the question raised before it was academic in nature and need not E
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 F
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, G
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 aft~r six weeks of the date of reassembly of the
legislature and that they should therefore get in touch with the Law Department H
234 SUPREME COURT REPORTS [1998] 3 S.C.R.

A 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
B 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:-

C "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
D 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
E 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 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
F
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
G 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
H constitutional provisions.
.. K.K. SINGH v. STATE [D.P. WADHWA, J.] 235
In State of Orissa v. Bhupendra Kumar Bose, [1962] Supp. 2 SCR 380, A
the High Court set aside the elections held for Cuttack Municipality on the
ground that electoral rolls had not been prepared in accorqance with the
provisions of the Orissa Municipalities Act, 1950. The State took the view
that the judgment affected not merely the Cuttack Municipality but other
municipalities as well as accordingly the Governor promulgated an Ordinance
validating the elections and the electoral rolls so prepared. The Ordinance B
was promulgated on January 15, 1959 and it lapsed on April I, 1959. Another
writ petition was filed questioning the continuance of the elected councilors
in office by virtue of the Ordinance, which had lapsed without it being passed
into an Act of the State Legislature. The High Court allowed the writ petition.
Aggrieved State of Orissa came to this Court in appeal. It was submitted by C
the respondents that since the .Ordinance having lapsed on April I, 1959, the
appeal itself had become infructuous and further the Ordinance was a temporary
statute which was bound to lapse after the expiration of the prescribed period
and so, as soon as it lapsed, the invalidity in the Cuttack Municipal elections
which had been cured by it revived and so there is no point in the appellants
challenging the correctness of the High Court's decision. The question before D
this Court was that if it was the true legal position that after the expiration
of the Ordinance the validation of the elections effected by it comes to an
end. This Court noticed the observations of Patanjali Sastri, J., (as he then
was) in S. Krishnan v. The State of Madras, [1951] SCR 621 that the general
rule in regard to a temporary statute is that, in the absence of special provision E
to the contrary, proceedings which are being taken against a person under
it will ipso facto terminate as soon as the statute expires. 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. The
Court observed that it is true that the provisions of Section 6 of the General F
Clauses Act in relation to the effect of repeal do not apply to a temporary
Act and added that it cannot 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 of the Constitution. The Court then observed as
under:-
G
"Mr. Chetty contends that there is and can be, no corresponding
saving provision made by the Ordinance in question and so, the
invalidity of the Cuttack Municipal Elections would revive as soon as
the Ordinance expired by lapse of time. This contention is based on
the general rule thus stated by Craise: "that unless a temporary Act H
236 SUPREME COURT REPORTS [1998) 3 S.C.R.

A contains some special provision to the contrary, after a temporary Act
has expired, no proceedings can be taken upon it and it ceases to
have any further effect. That is why offences committed against
temporary Acts must be prosecuted and punished before the Act
expires, and as soon as the Act expires any proceedings which are
being taken against a person will ipso facto terminate.
B
In our opinion, it would not be reasonable to hold that the general
rule about the effect of the expiration of a temporary Act on which
Mr. Chetty relies is inflexible and admits of no exceptions. It is true -A? •
for instance that offences committed against temporary acts must be
prosecuted and punished before the Act expires. If a prosecution has
c not ended before that day, as a result of the termination of the Act,
it will ipso facto terminate. But is that an inflexible and universal rule?
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
D character whether the said right and liability are enduring or not."

and then:-

"Therefore, in considering the effect of the expiration of a temporary
statute, it would be unsafe to lay down any inflexible rule. If the right
E created by the statute is of an enduring character and has vested in
the person, that right cannot be taken away because the statute by
which it was created has expired. If a penalty had been incurred under
the statute and had been imposed upon a person, the imposition of
the penalty woi.ld survive the expiration of the statute. That appears
to be the true legal position in the matter."
F
Finally, the Court held as under:-

Now, turning to the facts in this present case, the Ordinance
purported to validate the elections to the Cuttack Municipality which
had been declared to be invalid by the High Court by its earlier
G judgment so that as a result of the Ordinance, the elections to the
Cuttack Municipality must be held to have been valid. Can it be said
that the validation was intended to be temporary in character and was
to last only during the life-time of the Ordinance? In our opinion,
having regard to the object of the Ordinance and to the rights created
H by the validating provisions, it would be difficult to accept the :
K.K. SINGH v. STATE [D.P. WADHWA, J.j 237
contention that as soon as the Ordinance expired the validity of the A
elections came to an end and their invalidity was revived. The rights
created by this Ordinance are, in our opinion, very similar to the rights
with which the court was dealing in the case of Steavenson and they
must be held to endure and last even after the expiry of the Ordinance.
The Ordinance has in terms provided that the Order of Court declaring B
the elections to the Cuttack Municipality to be invalid shall be deemed
to be and always to have been of no legal effect whatever and that
the said elections are thereby validated. That being so, the said
elections must be deemed to have been validly held under the Act and
the life of the newly elected Municipality would be governed by the ·
relevant provision of the Act and would not come to an end as soon C
as the Ordinance expires. Therefore, we do not think that the preliminary
objections raised by Mr. Chetty against the competence of the appeals
can be upheld."

In T Venkata Reddy v. State ofAndhra Pradesh, [1985] 3 SCR 509 the
posts of various part-time village officers were abolished by the Andhra D
Pradesh Abolition of posts of Part-time Village Officers Ordinance, 1984
(Ordinance No. 1 of 1984) promulgated the Governor of Andhra Pradesh on
January 6, 1984 in exercise of his powers under Article 213 of the constitution.
The Ordinance lapsed without it being replaced by an Act passed by the
legislature though it was succeeded by four Ordinances, namely, Ordinance E
7184, 13/84, 18/84 and 31/84. One of the questions raised before this Court was
that the Ordinance having lapsed as the legislature did not pass an Act in
its place, the posts which were abolished be deemed to have revived and the
issue of successive Ordinances the subsequent, one replacing the earlier one
did not serve any purpose. The Court noticed that Article 213 corresponds
to Article 123 of the Constitution conferring similar powers on the President F
in relation to matters on which Parliament can make laws. Of course, there is
slight difference between the two Articles, but that is not relevant for our
purposes. This Court observed:-

"Under Article 123 of the Constitution the President can promulgate
an Ordinance on the advice of the Council of Ministers to meet the G
requirements of a situation when either House of Parliament is not in
session. Similarly under Article 213 of the Constitution the Governor
may issue an Ordinance on the advice of his Council of Ministers
when the Legislative Assembly or where there are two Houses of
Legislature in a State either of them is not in session. Since under H
238 SUPREME COURT REPORTS [1998] 3 S.C.R.

A Article 85 of the Constitution it is not permissible to allow a period
of six months to intervene in the case of each House of Parliament
between its last sitting in one session and the date appointed for its
first meeting in the next session and since under clause (2) of Article
123 of the Constitution an Ordinance has to be laid before both
Houses of Parliament and would cease to operate at the expiration of
B six weeks from the reassembly of parliament, it cannot be said that
either Houses can be avoided by the President beyond seven and a
half months after the passing of an Ordinance. It is open to Parliament
if it chooses to approve it or not. Having regard to the conditions
prevailing in India the Constitution makers thought that the Ordinance
c making power should be given to the President to deal unforeseen or
urgent matters. The position under Article 213 of the constitution is
also the same."

Then the Court considered its judgements in R.K. Garg v. Union of
India, [1982] l SCR 947 and A.K. Roy v. Union ofIndia, [1982] 2 SCR272 and
D said that both these decisions fairly established that the Ordinance is a "Law"
and should be approached on that basis. It said that the language of clause
(2) of Article 123 and clause (2) of Article 213 of the Constitution leaves no ·
room for doubt. The Ordinance promulgated under either of these two articles
has the same force and effect as an Act of Parliament or an Act of the State
E Legislature, as the case may be. The Court observed that when the Constitution
says that the Ordinance making power is legislative power and an Ordinance
shall have the same force as an Act an Ordinance should be clothed with all
the attributes of an Act of legislature carrying with it all its incidents, immunities
and limitations under the Constitution and that it cannot be treated as an
executive action or an administrative decision. Then considering the question
F whether the posts of part-time village officers revive as the Ordinance is not
replaced by an Act of the legislature of the State, the Court observed:-"

"This contention of the petitioners is based on clause (2) of Articles
213 of the Constitution. It is argued on their behalf that on the failure
of the State Legislature to pass an Act in terms of the Ordinance it
G should be assumed that the Ordinance had never become effective
and that it was void ab initio. This contention overlooked two important
factors namely the language of clause (2) of Article 213 of the
Constitution and the nature of the provisions contained in the
Ordinance. Clause (2) of Article 213 says that an Ordinance promulgated
H under that Article shall have the same force and effect as an A.ct of
-(
\

K.K. SINGH v. STA TE [D.P. WADHWA, J.] 239
the Legislature of the State assented to by the Governor but every A
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 reassembly of the Legislature or ifbefore the expiration
of that period a resolution disapproving it is passed by the Legislative
B
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. It is seen that Article 213 of the Constitution does
"""' not say that the Ordinance shall be void from the commencement on
the State Legislature disapproving it. It says that it shall cease to c
operate. It only means that it should be treated as being effective till
it ceases to operate on the happening of the events mentioned in
clause (2) of Article 213. Secondly the Ordinance deals with two
separate matters. By section 3 of the Ordinance it abolishes the posts
of part-time village officers on the commencement of the Ordinance
and it further declares that every person who held the post of a part-
D
.. ·~
time village officer would cease to hold that post with effect from that
date. By section 4 and other allied provisions as Ordinance has
provided regarding the creation of posts of village Assistants and
appointment and conditions of service of Village Assistants who are
full-time employees of the Government. There is no doubt that a E
separate provision is made in section 5 of the ordinance for payment
of some amount to the ex-part-time village officers. Now by virtue of
section 3 of the Ordinance all the posts of part-time village officers
stood abolished on January 6, 1984 and the petitioners ceased to be
employees of the State Government. These two matters became
_.., accomplished facts on January 6, 1984, irrespective of whether the F
holders of these posts were paid any amount under section 5 or
whether the new post of Village Assistants were filled up or not. even
if the Ordinance is assumed to have ceased to operate from a
subsequent date by reason of clause (2) of Article 2 I 3, the effect of
section 3 of the Ordinance was irreversible except by express G
Legislation."

The Court also referred to its earlier decision in State of Orissa v. Bhupendra
...... Kumar Bose, [1962) Supp. 2 SCR 380. The Court finally held as under:-
/

"We do not, however, mean to say here that Parliament or the State H
240 SUPREME COURT REPORTS [1998] 3 S.C.R.

A Legislature is powerless to bring into existence the same state of
affairs as they existed before an Ordinance was passed even though
they may be completed and closed matters under the Ordinance. That
can be achieved by passing an express law operating retrospectively
to the said effect, of course, subject to the other constitutionals
limitations. A mere disapproval by Parliament or the State Legislature
B of an Ordinance cannot , however, revive closed or completed
transactions.

In the petitions before us also the position is the same as in the
decision referred to above. The abolition of the posts and the
declaration that the incumbents of those posts would cease to be
c holders of those posts under section 3 of the Ordinance being
completed events, there is not question of their revival or the
petitioners continuing to hold those posts any longer. The above
· contention has, therefore, to be rejected in the circumstances of this
case."
D
In S.R. Bommai and ors., v. Union of India, (1994] 3 SCC 1, the question
with fell for consideration before this Cou1t was whether the president has
unfettered powers to issue proclamation under Article 356(1) of the
Constitution. Sawant, J., who delivered judgment for himself and Kuldip
Singh, J. and with whom Pandian, J. concurred and so also Jeevan Reddy, J.
E and S.C. Agrawal, J. by separate judgements, said that the answer to the
question depended upon the answers to the following questions:-

(a) Is the proclamation amenable to judicial review ?

(b) If yes, what is the scope of the judicial review in this respect?
F and

(c) What is the meaning of the expression "a situation has arisen
in which the Government of the State cannot be carried on in
accordance with the provisions of this Constitution" used in
Article 356(1 )?
G
For our purposes it is not necessary to go into various aspects which were
considered by this Court except to know the following observations in the
judgment of Sawant, J.:

"Our conclusion, therefore, firstly, is that the President has no
·H power to dissolve the Legislative Assembly of the State by using his
K.K. SINGH v. STATE (D.P. WADHWA, J.) 241
power under sub-clause (a) of clause (I) of Article 356 till the A
Proclamation is approved by both the Houses of Parliament under
Clause (3) of the said article. He may have power only to suspend the
Legislative Assembly under sub-clause (c) of clause (!) of the said
article. Secondly, the court may invalidate the proclamation whether
it is approved by Parliament or not. The necessary consequence of
the invalidation of the Proclamation could be to restore the status quo B
ante and, therefore, to restore the Council of Ministers and the

- Legislative Assembly as they stood on the date of the issuance of the
proclamation. The actions taken including the laws made during the
interregnum may or may not be validated either by the court or by
parliament or by the State Legislature. it may, however, be made clear
that it is for the court to mould the relief to meet the requirements of
C

the situation. It is not bound in all cases to grant the relief of restoration
of the Legislative Assembly and the Ministry. The question of relief
to be granted in a particular case pertains to the discretionary
jurisdiction of the court."
D
And in the judgment of Justice Jeevan Reddy who delivered judgment for
himself and justice Agrawal:-

"Clause (3) of Article 356 is conceived as a check on the power of the
President and also as a safeguard against abuse. In case both Houses
of Parliament disapprove or do not approve the Proclamation, the E
Proclamation lapses at the end of the two-month period. In such a
case, Government which was dismissed revives. The Legislative
Assembly, which may have been kept in suspended animation gets
reactivated. Since the Proclamation lapses- and is not retrospectively
invalidated -the acts done, orders made and laws passed during the p
period of two months do not become illegal or void. They are, however,
subject to review, repeal or modification by the Government/Legislative
Assembly or other competent authority."

xxx xxx xxx
"If the court strikes down the Proclamation, it has the power to restore
G
the dismissed Government to office and revive and reactivate the
Legislative Assembly wherever it may have been dissolved or kept
under suspension. In such a case, the court has the power to declare
that acts done, orders passed and laws made during the period the
Proclamation was in force shall remain unaffected and be treated as H
242 SUPREME COURT REPORTS [1998] 3 S.C.R.

A valid. Such declaration, however, shall not preclude the Government/
Legislative Assembly or other competent authority to review, repeal
or modify such acts, orders and laws."

The case of Stevenson v. Oliver, (1841) 151 ER I 024, which has been
relied upon by this Court, has been discussed in "Craies on Statute Law "
B (7th edition-page 409) while considering the effect and expiration of a temporary
statute. I reproduce:-"

"As a general rule, and unless it contains some special provision
to the contrary, after a temporary Act has expired, no proceedings can .,--
be taken upon it, and it ceases to have any further effect. Therefore,
c offences committed against temporary Acts must be prosecuted and
punished before the Act expires, and as soon as the Act expires any
proceedings which are being taken against a person will ipso facto
terminate. In Spencer v. Hooton, (1920) 37 T.L.R 280, Roche J. held he
had no jurisdiction to hear appeals from Munitions Tribunals in
D proceedings taken under the Wages (Temporary Regulation) Acts
1918, 1919, by reason of the Act giving him jurisdiction having expired
(on September 20, 1920) before the appeals came on for hearing."

The difference between the effect of the expiration of a temporary Act
·- •
and the repeal of a perpetual Act is pointed out by Parke B. in
E Stevenson v. Oliver ; "There is a difference between temporary
statutes and statutes which are repealed; the latter (except so far as
they relate to transactions already completed under them) become as
if they had never existed; but with respect to the former, the extent
of the restrictions imposed, and the duration of the provisions, are
matters of construction." The case related to 6 Geo. 4, c. 133, s.4
F (Apothecaries), which enacted that every person who held a
commission as surgeon in the army should be entitled to practice as "'
an apothecary without having passed the usual examination. This Act
was temporary, expiring on August I, 1826; and it was contended that
a person who under the Act entitled to practice as apothecary would
G lose his right after August I, 1826. But the court held that such a
person would not be so deprived of his right, and Lord Abinger C.B.,
in giving judgment, said: " It is by no means a consequence of an Act
of Parliament expiring that rights acquired under it should likewise
expire. The Act provides that person who hold such commissions
H should be entitled to practice as apothecaries, and we cannot engraft
K.K. SINGH v. STATE [D.P. WADHWA, J.) 243
on the statute & new qualification limiting that enactment." A
Following propositions emerge from the aforesaid decisions of the
Supreme court, relevant to the present case;

( l) It is fairly established that Ordinance is the "law" and should be
approached on that basis. B
(2) An Ordinance which has expired has the same effect as a temporary
Act of the legislature.

(3) When the Constitution says that Ordinance making power is the
legislative power and an Ordinance shall have the same force as an Act, an C
Ordinance shou Id be clothed with all the attributes of an Act of legislature
carrying with it all its incidents, immunities and limitations under the
Constitution and it cannot be treated as an executive action or an administrative
decision.

(4) Regard being had to the object of the Ordinance and the right D
created by it, it cannot be said that as soon as the Ordinance expired the
validity of an action under the Ordinance came to an end and invalidity of
that action revived.

(5) What effect of expiration of a temporary Act would be must depend
upon the nature of the right or obligation resulting from the provisions of the E
temporary Act and upon their character whether the said right and liability
are enduring or not.

(6) If the right created by the temporary statute or Ordinance is of
enduring character and is vested in the person, that right cannot be taken F
away because the statute by which it was created has expired.

(7) A person who has been conferred certain right or status under
temporary enactment cannot be deprived of that right or status in consequence
of the temporary enactment expiring.
G
(8) An Ordinance is effective till it ceases to operate on the happening
of the events mentioned in its clause (2) of Article 213. Even if it ceased to
operate the effect of the Ordinance is irreversible except by express legislation.

(9) A mere disapproval by the legislature of an Ordinance cannot revive
closed or completed transactions. H
244 SUPREME COURT REPORTS [ 1998] 3 S.C.R.

A (I 0) State Legislature is not powerless to bring into existence the same
state of affairs as they existed before an Ordinance was passed even though
they may be completed and closed mattes under the Ordinance. An express
law can be passed operating retrospectively to that effect subject to other
constitutional Iimitations.

B It was submitted by Mr. Dwivedi, learned counsel for the State of Bihar,
that Preamble to the Ordinance 32/1989 purported to "provide for taking over
the school" and that with respect to every school contained in the Schedule
it had to be scrutinized whether such school was in existence duly recognised
by Sanskrit Shiksha Board with the prior approval of the Government. This
C he said with reference to the definition of non-Government Sanskrit schools
appearing in Clause 2(1) of the Ordinance. His further submission was that
Clause (4) dealt with the services of the staff of the schools and it sought
to confer Government status only on such teachers and employees as had
been appointed against the sanctioned posts and as per the staffing pattern
which was subject to fitness and qualification being possessed by the
D concerned staff member. The Ordinance did not provide for an automatic
conferment of Government status on the staff. Further, the school which is
the object of acquisition under the Ordinance must be in existence. Mr.
Dwivedi, therefore, said that it was implicit in the Ordinance that ifthe school
was found to be not in existence there would be no taking over and only that
E school which had come into existence as per prescribed norms of recognition
and possessed necessary infrastructure would be covered by the Ordinance.
He said it was necessarily implicit in the Ordinance that there should be an
enquiry with respect to these matters. It was then submitted that the fourth
ordinance 21/1990 dated August 12, 1992 specifically contemplated enquiry
by a committee with respect to the matters mentioned in clauses (3) and (4)
F of the Ordinance. This Ordinance made explicit what was implicit in the
Ordinance 32/1989 with a substantial difference that Ordinance 21/1990 provided
for a committee to conduct the enquiry and submit report and thereby provided
a machinery. According to the State under none of the Ordinance the teachers
and employees ~ould get automatic status of Government servants and even
G taking over of the schools was not automotic and was subject to completion
and result of enquiry and as an enquiry had not been completed when various
Ordinances lapsed and no decision taken on the enquiry report, therefore,
neither the acquisition of the school was complete nor the employees could
get Government status. An argument was also raised that each subsequent
Ordinance contained a specific provision in the form of clause (16) which
H repealed previous Ordinance and provided that any thing contained or any
K.K. SINGH v. STATE [D.P. WADHWA, J.] 245
action taken under the previous Ordinance shall be "deemed to have been A
done or taken in exercise of the powers confe_rred by or under the new
Ordinance as if the new Ordinance was in force on that day". Thus the effect
of clause ( 16) was to make Ordinance 21 /1990 retrospective and it involved
a fiction which fiction should be allowed full flow and taken to its logical
sequiter. Ordinance 21/1990 was of clarificatory nature and such an ordinance B
had always to be understood as retrospective in operation. Alternatively, it
was submitted that in view of clause (16) even if one assumed that in law the
first Crdinance made a complete acquisition and purported to confer status
of Government servants on the employees still the said legal position would
have to be contemplated in terms of Ordinance 21/1990 which Ordinance is
deemed to be enforced on the date of the first Ordinance. Mr. Dwivedi was C
of the view that the decisions of this Court in State of Orissa v. B.K. Bose,
(1962] Supp. 2 SCR 380, and r Venkatareddy v. State of Andhra Pradesh,
(1985) 3 SCR 509 required fresh look as the issues involved in the present
case were not fully considered in those two cases and principles of law laid
therein would not be applicable in the present case. He also referred to
various other Articles in the Constitution where the expression "cease to D
operate" has been used. Reference was then made by him to the case of S.R.
Bommai and ors., v. Union of India, [1994] 3 SCC I, which as noted above
was under Article 356 of the Constitution. Finally, it was submitted that
perhaps this matter could be referred to a larger bench in view of latest
decision of this Court in S.R. Bommai 's case. E
Mr. Shanti Bhushan, who appeared for some of the teachers and
addressed main arguments, submitted that the employees of Sanskrit Schools
mentioned in Schedule to the ordinance 32/89 became government servants
on December 16, 1989 when it was promulgated and they were never divested
of that position by any express legislation. Services of the teachers and other F
·""'· employees of these schools were taken over by the State and under sub-
clause 2 of Clause 4 of the Ordinance they were to be paid salaries on the
same pay-scales as admissible to the government employees. He said all the
teachers who were petitioners in the writ petitions in the High Court were on
the sanctioned strength of the schools and possessed requisite qualifications. G
Mr. Bhushan submitted that the fourth ordinance 24/90 which sought to
change the status of the teachers and non-teachers who had become
government servants by the first Ordinance could not do so. It was not that
posts in the schools had been abolished and when there were schools and
there were posts, the changing of the status of the employees of the schools
taken over under the first Ordinance 32/89 would be unconstitutional Vested H
246 SUPREME COURT REPORTS [ 1998] 3 S.C.R.

A rights were created by the Ordinance 32/89 and it was unnecessary to issue
subsequent Ordinances which would have no effect. He argued if the fourth
Ordinance was to be acted upon, the results would be startling. Under the
first Ordinance, properties of the Schools had vested in the State free from
all encumbrances and it could not be said that under the fourth Ordinance
B the State Government shall be divested of those properties and even assuming
that to be so in whose favour properties now vested the fourth Ordinance
was silent. When under the first Ordinance 32/89 property was vested in the
State and there was no denationalisation, anything could have happened to
property at that time. During that period the property could have been leased
out, sold or otherwise disposed of. Who will account for all these transactions?,
C Mr. Shanti Bhushan queried. He strongly relied on the two decisions of this
Court in Bhupender Kumar Bose and T. Venkata Reddy's cases. It was only
the first Ordinance 32/89 that mattered and the fourth Ordinance 24/90 had
no meaning. Mr. Shanti Bhushan said that the High Court was wrong in
coming to the conclusion that after the Ordinances lapsed, the schools did
D not remain vested in the State and teachers and other employees were not
government servants when even though the High Court held that successive
Ordinances were illegal and void. He said that in the case of T. Venkata Reddy
posts abolished under the Ordinance could not be revived after the Ordinance
lapsed and on that very analogy it could also not be said that after the lapse
E of the first Ordinance 32/89 the vested rights could be taken away. Law did
not become invalid when it ceased to operate. Mr. Shanti Bhushan also
referred to another decision of this Court in State of Mysore v. H. Papanna
Gowda & Anr. Etc., [1971] 2 SCR 831, to contend that when the employees
of the Sanskrit Schools under the first Ordinance 32/89 had become government
servants, they could not be made to become private servants as that would
F amount to removing them from civil posts which would be illegal. In the case
of H. Papanna Gowda, the government employees were sought to be
transferred to the University, which order was set aside by this Court. The
Court held that the notification which resulted in the extinction of the status
of the petitioners as a civil servant by his compulsory transfer to the University
G was void. Referring to a decision of this Court in Prabodh Verma and others
etc. v. State o/Uttar Pradesh and others etc., [1985] I SCR 216 at Mr. Shanti
Bhushan said that even those employees who were not parties to these
appeals may also get the advantage of the judgement of this Court irrespective
of the fact if all the employees of the schools had joined in writ petitions or
not in the High Court. Lastly, Mr. Shanti Bhushan submitted that S.R. Bommai's
H case was on Article 356 of the Constitution and that this Court would be
K.K. SINGH v. STATE [D.P. WADHWA, J.] 247
bound by its earlier two Constitution Bench decisions in Bhupender Kumar A
........i.
Bose and T. Venkata Reddy 's cases which were under Article 213 of the
Constitution.

Many other counsel, who appeared in other appeals of teachers and
;.. Head Masters, adopted the arguments of Mr. Shanti Bhushan. They also
submitted that on merits of individual cases as well under the fourth Ordinance B
enquiries had bP,en made and schools and staff both teaching and non-
teaching had been identified. However, the view which I have taken of the
applicability of the first Ordinance it is not necessary for me to go into all
.. " these questions raised.

Undoubtedly the ordinance making the power of the President and the c
Governor is rather unusual as it is legislative' s function to make laws. The
Executive is to implement those laws. At the time of consideration of draft
Constitution a fear was expressed and the very wisdom of giving such powers
to the President and to the Governors was subject to criticism. However, in
justification of the Ordinance making power Dr. B.R. Ambedkar, Chairman, D
Drafting Committee, said:-
,..,.
My submission to the House is that it is difficult to imagine cases
where the powers conferred by the ordinary law existing at any
particular moment may be deficient to deal with a situation which may
suddenly and immediately arise. What is the executive to do? The E
executive has got a new situation which it must deal with ex hypothesi.
It has not got the power to deal with that in the existing code of law.
The emergency must be dealt with , and it seems to me that the only
solution is to confer upon the president the power to promulgate the
law which will enable the executive to deal with that particular situation
because it cannot resort to the ordinary process of law because, again
F
ex hypothesi, the legislature is not in session. Therefore, it seems to
'"" me that fundamentally there is no objection to the provisions contained
in Article 123."

The very opening words of Article 213 are pointer to the fact that such
G
power of promulgating ordinance is to be exercised when the Governor is
satisfied that circumstances exist which rendered it necessary for him to take
immediate action. The Ordinance so promulgated has the same force and
effect as an Act of Legislature of the State assented to by the Governor. It
is only to meet an emergent situation when existing law is either deficient or
no law exists to meet that situation that an Ordinance is promulgated by the H
248 SUPREME COURT REl'ORTS [ 1998] 3 S.C.R.

A Executive. Legislature cannot foresee every situation which may develop
suddenly requiring immediate action. It has been held that it is within the
subjective satisfaction of the Governor to come to the conclusion if any
situation has developed suddenly requiring immediate action on his part and
then resorting to issuance of an Ordinance invoking his powers under Article
213 of the Constitution.
B
lfwe examine the first Ordinance 32/89 it was issued to provide for the
taking over of non-Government Sanskrit Schools for the management and
control of the State Government for improvement, better organisation and 7' -
development of Sanskrit education in the State of Bihar. Preamble of the
C Ordinance shows that the Governor was satisfied that circumstances exist
which render it necessary for him to take immediate action for taking over of
the schools. The Ordinance came into force at once. Under clause (3) of the
Ordinance 429 Sanskrit schools mentioned in Schedule vest in the State
Government with immediate effect and the State Government shall manage
and control these schools thereafter. Not only that all the assets and properties
D of these schools, both movable and immovable and of any nature whatsoever
including that of their governing bodies, managing committees, stood
transferred to and vest in the State Government free from all encumbrances.
Under clause (4) of the Ordinance services of those teaching and non-
teaching staff of the schools, mentioned in the Schedule, who had been
E appointed permanently/temporarily against sanctioned posts in accordance
with the prescribed standard, staffing pat):ern as prescribed by the State
Government, stood transferred to the State Government. They shall thereafter
be employees of the State Government with whatsoever designation they
hold. The proviso to this clause which shows that services of those teaching
and non-teaching employees who were in excess of the sanctioned strength
F or did not possess the necessary qualification shall automatically stand
terminated. On these two clauses, which to my mind are explicit and leave no
doubt whatsoever argu1r.ent was sought to be raised by Mr. Dwivedi that the
schools mentioned in Schedule were yet to be identified and it had yet to be
found that if the employees working there possessed requisite qualifications
G and fell within the prescribed staffing pattern and the sanctioned strength of
the school. I think such a specious argument has just stated to be rejected.
It is the fourth Ordinance which talks of all these conditions and on that basis
it was stated that under clause 16 of the fourth Ordinance there would be
retrospective operation covering the period from the date first Ordinance
came into force . This type of argument would app~ar to be more in desperation
H than to meet the situation which was sought to be created by promulgating
K.K. SINGH v. ST ATE [D.P. WADHWA, J.] 249

the first Ordinance. A
Moreover, if the purpose of first Ordinance was merely of a preparatory
nature to identify the schools and the staff that could have been done by
administrative orders and it. was not necessary to invoke extra-ordinary powers
under Article 213 of the Constitution. The Ordinance was promulgated to take
over the schools mentioned in Schedule to the Ordinance and their staff with B
immediate effect. We have only to see what further consequence followed
from that. It is the Legislative power which the Governor has exercised and
issued the first Ordinance and full effect has, therefore, to be given to it as
per the law. If we accept the arguments of the State that all these seven
Ordinances successively issued serve no purpose and achieve nothing then C
one can easily say that these were useless documents not worth the papers
on which these were printed. I am confident that this could not be the stand
of the state Government. It cannot be said that for some inexplicable reasons
these Ordinances were promulgated time and again. Nothing has been said
as to why any of these Ordinances could not be placed before the State
Legislature to be replaced by an Act of Legislature. It is not that an Ordinance. D
can never be repromulgated ifthere are certain valid circumstances satisfying
the constitutional mandate.

We have seen above from the pronouncements of .this Court that an
Ordinance may cease to operate but whatever had been done earlier under E
the Ordinance it does not vanish altogether. The effect of the first Ordinance
has been of enduring nature. Whatever the Ordinance· ordained was
accomplished. Its effect was irreversible. Ordinance was promulgated to achieve
a particular object of taking over the Sanskrit Schools in the State including
their assets and staff and this having been done and there being no legislation
to undo the same which power the Legislature did possess, the effect of the F
Ordinance was of permanent nature. Ordinance is like a temporary law enacted
by the Legislature and if the law lapses whatever has been achieved thereunder
could not be undone, viz., if under a temporary law land was acquired and
building constructed thereon it could not be said that after the temporary law
lapsed the building would be pulled down and land reverted back to the G
original owner. The only consideration to examine the Ordinance is to see if
the effect is of an enduring nature and if the Ordinance has accomplished
what it intended to do. I have no doubt in my mind that by the Ordinance
32/89 the State not only took over the manage.ment and control of the Sanskrit
Schools but all the properties of the Schools of whatsoever nature vested in
the State free from all encumbrances. Under clause ( 11) of the Ordinance, it H
250 SUPREME COURT REPORTS [1998] 3 S.C.R.

A is an offence if a person wrongfully with-holds such property from the State.
Let me set out clause 11 (2) of the Ordinance to appreciate the impact of
vesting of properties of the Schools in the State:

" 11. (2). If any person -

B (a) having in his possession, custody or control any property forming
part of the assets of the institution/Governing body or Board of
Control wrongfully withholds such property from the State Government;
or
y ...

(b) wrongfully obtains possession of any property forming part of the
C assets of the institution/governing body or Board of Control; or

(c) wilfully withholds or fails to produce or hand over to any person
authorised by the State Government any register, record or other.
document which may be in his possession, custody or control; or
(d) fails without any reasonable cause to submit any accounts, books
D or other documents when required to do so,

he shall be deemed to have committed an offence and shall be
punishable with imprisonment for a term which may extend to two
years or with fine which may extend to one thousand and five hundred
rupees or with both.
E
Once a property vests in the State, it can be divested only by an
express provision of law or under its plenary powers satisfying the requirement
of Article 14 of the Constitution.
It is nobody's case that the Ordinance was promulgated as colourable
p exercise of power. As to what are the effects of repromulgation of the
Ordinances, law had been settled by this Court in D.C. Wadhwa and ors., v.
State of Bihar and ors., [1987] I SCC 378. This Court has held that this Court
would invalidate the Ordinances repromulgated time and again without being
brought before the Parliament or the Legislature as required by Article 123(2)
or before the State Legislature under Article 2 I 3(2) of the Constitution. I am
G not saying that an Ordinance cannot be repromulgated at all if circumstances
so exits but when Executive is usurping the power of Legislature time and
again it has to be shown as to why the Ordinance could not be placed before
the Legislature under Article 213(2) of the Constitution. State cannot go on
governing by Ordinances without going to the Legislature. It is the later
Ordinance which has to be struck down after the first Ordinance 32/89 achieved
H its purpose and was of enduring effect. Subsequent Ordinances have no
K.K. SINGH v. STATE (D.P. WADHWA, J.] 251
meaning and are void. Law is well settled that an Ordinance can be issued A
by the President under Article 123 and by the Governor under Article 213 of
the Constitution and the effect of an Ordinance is like an Act passed by the
Parliament or by the Legislature. It is repromulgation which can be struck
down. The Court may not go into the question whether circumstances existed
for exercise of power under the provision of the Constitution and as to what B
was the urgency or emergency to promulgate an ordinance. We are concerned
here with the consequence and effect of an Ordinance which lapses and not
when an Ordinance is disapproved by the Legislature. But the rights which
had been vested could not be taken away unless Legislature steps in and
passes an enactment taking away the vested rights. Moreover, when the
property vested in the State by virtue of the Ordinance, there has to be an C
express legislation to revest the property in the schools or the governing
bodies and managing committees. When in the case of Venkata Reddy posts
which were abolished could not be revived after the Ordinance lapsed it is
difficult to hold that in the present case when the first Ordinance lapsed
vested rights could be taken away. If what is correct in Venkata Reddy's case
the converse in the present case would also be true. As a matter of fact what D
the first Ordinance accomplished, i.e., vesting of schools and grant of States
in the present case is more than what the Ordinance in the case of Venkata
Reddy did, i.e., abolition of posts. Process which the first Ordinance set into
motion is irreversible except by express legislation which is not there. In
Steavenson v. Oliver, which was relied upon by this Court in its earlier E
decisions, a certain status was conferred on some persons by a statute which
was temporary. It was held that that person would not be deprived of that
status after the expiration of the statute. The status was to practice apothecary
without having passed the usual examination. The status of being validly
elected representatives which the Ordinance in B.K. Bose conferred on them
though elected on illegal electoral rolls was held to be of enduring nature F
even though the Ordinance lapsed without its being brought before the
Legislature. The present case before us is on much stronger footing. The right
is vested in the employees of the School which is of enduring character which
cannot be taken away merely because the Ordinance like a temporary statute
ceases to operate. The High Court was not correct when it thought that the G
object of the Ordinance was to grant status of Government servants on the
teachers etc. and acquisition of school properties merely for the period during
which the Ordinance was in force. Its effect continued after it lapsed.

An Ordinance promulgated under Article 213 has the same force and
effect as the Act of the Legislature of the State assented to by the Governor, H
252 SUPREME COURT REPORTS [1998] 3 S.C.R.

A but then it is the mandate of the Constitution that every such Ordinance shall
be laid before the Legislature of the State. The Ordinance ceases to operate
at the expiration of six weeks from the reassembly of the Legislature and even
before expiry of this period of six weeks if the ordinance is disapproved by
the Legislature or withdrawn by the Governor. When read with Article 174
B which enjoins that not more than six months shall intervene between the last
session of the Legislature and the next sessions, the Ordinance at the most
can operate for a period up to 7-112 months. Consid~ring that power has been
conferred on the Executive to make law by promulgating an Ordinance when
an emergent situation arises and the legislature does not put its stamp of
approval and it ceases to operate after expiry of a certain period or otherwise
C one can perhaps assume that the operation of the Ordinance is of limited
duration and cannot be of enduring nature. But then this Court has held that
an Ordinance can be of enduring nature in certain circumstances when it
confers vested rights and those rights could not be taken away when the
Ordinance lapses. In the present case, successive Ordinances which have
been promulgated by the Governor would go to show that the State itself
D wanted the first Ordinance to be of enduring character. It is correct that
successive Ordinance have been issued in violation of the Constitutional
provisions without the Executive having to go to the Legislature and, indeed,
it may even amount to breach of privilege of the Legislature, the Governor
can certainly promulgate second or subsequent Ordinance, if circumstances
E so exist like when the Legislature has been dissolved or it had been adjourned
sine die without transacting any business. It will be for the State to explain
as to why the Ordinance could not be placed before the Legislature. It is also
for the Legislature to guard itself against the mechanisation of the Executive
in bringing an Ordinance which would be of enduring nature and yet it is not
brought before the Legislature. In the present case, it is quite paradoxical that
F the Executive, while issuing successive Ordinances and thus making it to
believe that first ordinance would be of enduring nature, is now claiming that
it was of no effect.

State of Bihar has a grievance that the High Court in its impugned
G judgment has stated that there was Ordinance Raj in the State. I think this
criticism is rather mild particularly when this Court did not approve the action
of the State Government in promulgating successive ordinances in the case
of D.C. Wadhwa and ors., v. State of Bihar and ors., [1987) 1 SCC 378. It is
rather unfortunate that after the decision of this Court in D. C. Wadhwa's case
which was delivered on December 20, 1986 State of Bihar continued to indulge
H its illegal practice of repromulgating the Ordinances successively without
K.K. SINGH~. STATE [D.P. WADHWA. J.] 253
having to face the Legislature and acted in an unconstitutional manner. I face A
no difficulty in striking down all the Ordinances repromulgated after the first
Ordinance 32/1989. The nature of the rights created by the first Ordinance and
obligations arising out of its provisions and the character unmistakably
conferred status of Government servants on the employees of the Sanskrit
schools taken over under the Ordinance and entitled to all the pay and other B
benefits admissible to Government servants of the same rank, with property
of the schools and of all their governing bodies/managing committees vested
in the State Government free from all encumbrances. It cannot be said that
the State Government was not having all the details of the Sanskrit Schools
which had been recognised and the posts which the employees occupied
against sanctioned strength and their qualification to occupy those posts. In C
1981, there were 651 recognised Sanskrit Schools receiving grant-in-aid from
the State. Ordinance 32/89 took over 429 such recognised schools. Even after
the promulgation of the Ordinance if it comes to the notice of the State
Government that name of any particular school or the staff of any school
appearing in the Schedule was shown there by mistake, it can always rectify
the same but that would not mean that the Ordinance would not have its full D
~ . play. Rights created by the Ordinance 32/89 are very similar to the rights
....
which the English Court was dealing in the case of Steavenson v. Oliver I 51
ER I 024 which has been followed by two Constitution Benches of this Court
and those rights must be held to endure and last even after the expiry 0f the
Ordinance. E
In the circumstances I would hold that the Ordinance 32/J 989 has
conferred status of Government servants on the Head masters, teachers and
other non-teaching staff of the schools mentioned to in the Schedule to the
Ordinance and they are all entitled to same pay-scales as any Government
servant holding equivalent post. The properties of the school, their governing F
bodies/managing committees vest in the State Government free from all
incumbrances. These consequence flowing from the Ordinance are of enduring
nature unless reversed by the State Legislature.

According, I will dismiss the appeals filed by the State of Bihar and
allow all the other appeals with costs. The impugned judgment of the High G
Court stands modified to the extend aforesaid.

While we are both agreed that the ordinances from the 2nd Ordinance
onwards are invalid, one of us (Sujata Manohar, J.) is further of the view that
the I st ordinance is also invalid and cannot be delinked from the chain.
Further, even if the I st ordinance is valid, its effect cannot last beyond its H
254 SUPREME COURT REPORTS [ 1998] 3 S.C.R.

A life-time. Wadhwa, J. is of the view that the !st Ordinance is valid and its
effect is enduring till it is reversed by express legislation.

In view of the difference of opinion between 'ourselves on the
constitutional validity of the first ordinance, and on the effect of it on the
status of the concerned teachers, the matters inay be placed before the
B Hon'ble the Chief justice of India for constituting a larger bench.

S.M. Appeal/Petitions stiff pending.

r -