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

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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 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 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 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

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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 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 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 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 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 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 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 than to meet the situation which was sought to be created by promulgating

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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 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 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

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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 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 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 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 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 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 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 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 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 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 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 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

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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 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 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 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 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 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 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 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 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

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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.