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PETITIONER: KRISHNA KUMAR SINGH & ANR.

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT:       08/05/1998

BENCH: SUJATA V. MANOHAR, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT: [With C.A.  Nos. 3533-3595/1995,  5876-5890/1994,  C.A.  No. 2646 ........  /1993 (Arising  out of S.L.P (C) No. 18806 of 1995) W.P. (C) No. 580/1995 with Contempt Petition Nos. 288- 296/1997         in          C.A.         Nos.         3535, 3539,3541,3545,3555,3560,3573,3576,3590/1995 with I.A. No. 3 in W.P.(C) No. 580/1995]                       J U D G M E N T 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 schools claimed that as a result, they had become Government servants. They  filed before  the High  Court petitions  for payment of  salary and  other emoluments  on the  basis that they were Government servant with effect from coming in into force of  Ordinance 32  of 1989  and they  continue to be so thereafter, although  the last  of the  series of  Ordinance expired by lapse of time on 30th of April, 1992.      The High  Court has held that the petitioners before it would be  entitled to  get  their  salary  which  they  were getting prior  to the  promulgation  of  the  Ordinance  sin question. it  also held  that in  addition, the  petitioners before it  would  be  entitled  to  get  their  salaries  as Government servants from 16.12.1989, the date of coming into force of Ordinance 32 of 1989 until 30th of April, 1992 when the last Ordinance came to an end.      Being aggrieved by the decision of the High Court which denies to  them the  status of  Government s  servants after 30th of April, 1992, a number of petitioners before the High Court have  filed the present group of appeals from the High Court’s judgment  and order,  save and  except  one  set  of appeals which  have been  filed by the State of Bihar, which is aggrieved  by the  finding that  the  staff  of  Sanskrit Schools should  get salary  as Government  servants from the date of  the first  Ordinance till the date of the expiry of

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the last  Ordinance on  30th of  April, 1992.  The State has also objected  to the findings of the High Court in relation to "ordinance  Raj" in  the State  of Bihar  and the finding that Ordinances  repromulgated by the State agains and again are illegal.  All these  appeals have  been  heard  together since they raise common questions of fact and law.      Writ petition (C) No. 580 of 1995 is filed by the staff of some  Sanskrit Schools  claiming reliefs similar to those claimed in  the original  writ  petitions  before  the  High Court. The implement application, I.A.3 in writ Petition (c) No. 580  of 1995  is allowed. Since the writ petition raises contentions similar  to those  in the  above appeals,  it is also heard along with the appeals. History of Sanskrit Schools in the State of Bihar:      Bihar  1960   there  was  no  legislation  relating  to Sanskrit education  in the  State  of  Bihar.  However,  all primary and  secondary Sanskrit  Schools, whether Government or Private,  including Sanskrit  Vidyalayas located  in  the territory of Bihar were governed by the Bihar Education code for the  conduct of  examinations of  Prathama and  Madhyama standards. The  Bihar  Sanskrit  Association  conducted  the examinations.      After  1960,   the  Kameshwar  Singh  Darbhanga  Vishwa Vidyalaya Act,  1960 came  into force  under which the Bihar Sanskrit Association  was  dissolved.  The  Kameshwar  Singh Darbhanga Sanskrit  University was  given the  power to hold examinations and give certificates. The power of recognition of Sanskrit Schools up to Madhyama Standard was given to the Sanskrit Shiksha parishad ( The Board of Sanskrit Education) constituted under  the Act.  The Sanskrit  Shiksha  Parishad functioned as  an autonomous  body. This Act was replaced by the Sanskrit  University Act of 1965. under the new Act, the functions of  the Sanskrit Shiksha Parishad were retained in relation to Sanskrit education at the school level.      In 1976,  the Bihar  State  University  Act,  1976  was promulgated. It  repealed Sanskrit  University Act  of 1965. The jurisdiction  of the Bihar State University was confined to Sanskrit  education at  the college level. In the absence of any  institution which  could  hold  examinations  up  to madhyama level  (i.e school level), the University continued to conduct these examinations till 1981.      In 1981,  the Bihar  Sanskrit Education  Board Act 1981 came into  force with  effect from  11th of August, 1980. it constituted an  autonomous board  for  the  development  and better supervision  of Sanskrit  Education  up  to  Madhyama level. The  Bihar Sanskrit  Education Board was, inter alia, given the power to grant recognition to Sanskrit Schools and "tools", power  of preparation of text books and curriculum, holding of examinations up to Madhyama level, publication of results, award of certificates and so on.      In 1989,  there were  651 Sanskrit  Schools  under  the Bihar  Sanskrit  shiksha  Board  (Bihar  Sanskrit  Education Board) which  were receiving  grants-in-aid from  the  State Government. All  these schools  were managed  by  their  own managing committees.  However, grants-in-aid  were given  to these schools  by the Government for meeting the expenditure on salary  of teachers  and staff  for the  number of  posts prescribed or  sanctioned by the Government for each school. In addition,  the Government  was  also  giving  grants  for development of  school buildings,  furniture, equipment etc. The grant  which was given to each school in accordance with the Rules  laid down  was given  in one  lumpsum to he Bihar Sanskrit Shiksha  board for  distribution  to  the  Sanskrit Schools eligible  for grants.  The  Bihar  Sanskrit  Shiksha Board  ,   in  turn,   disbursed  the  grants  to  different

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individual schools  in accordance  with the pay-scales, D.A. rates and  staffing pattern  laid down by the Government for this purpose. Ordinances:      On  16th  of  December,  1989,  Ordinance  32  of  1989 entitled the  Bihar Non-Government  Sanskrit Schools (Taking Over  of   Management  and   Control)  Ordinance,  1989  was promulgated seeking  to take  over 429  out of  651  private Sanskrit Schools  which were receiving grants-in-aid through the  Bihar  Sanskrit  Shiksha  Board  and  were  recognised. Sections 3  and 4  of  the  Ordinance  provide  as  follows:      "3. Taking  over of  Management and      Control of  Non-Government Sanskrit      Schools by  State Government  - (1)      With  effect   from  the   date  of      enforcement of  this Ordinance  429      Sanskrit   Schools   mentioned   in      Schedule 1  shall vest in the State      Government and the State Government      shall    manage     and     control      thereafter.      (2) All  the assets  and properties      of   all   the   Sanskrit   Schools      mentioned in sub-section (1) and of      the  Governing   Bodies,   Managing      Committees    incidental    thereto      whether   movable    or   immovable      including     land,      buildings,      documents,  books   and   register.      Cash-balance, reserve fund, capital      investment, furniture  and fixtures      and other things shall, on the date      of taking  over, stand  transferred      to and vest in the state Government      free from all encumbrances.      4.  Effect   of  taking   over  the      management and  control -  (1) with      effect from  the date of vesting of      Sanskrit   Schools   mentioned   in      Schedule 1  under Section  3(1)  in      the State  Government, the services      of  all  those  teaching  and  non-      teaching employees  of the  schools      mentioned in  Schedule 1,  who have      been                      appointed      permanently/temporarily     against      sanctioned posts in accordance with      the prescribed  standard,  staffing      pattern as  prescribed by the State      Government prior  to this Ordinance      shall  stand   transferred  to  the      State  Government.   He  shall   be      employee of  the  State  Government      with  whatsoever   designation   he      holds;           Provided, that the services of      those  teaching   or   non-teaching      employees who  are in excess of the      sanctioned  strength   or  do   not      possess      necessary      fitness      qualification  shall  automatically      stand terminated.      (2)  Teachers   of   the   Sanskrit      Schools   taken    over   by    the      Government shall be entitled to the

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    same pay,  allowances  and  pension      etc. as  are admissible to teaching      and non-teaching  employees of  the      taken  over  Secondary  Schools  of      Bihar."                (underling ours)      Clause 3(2)  of the  Ordinance provides  for vesting of all properties  and assets  of private  schools in the State Government free  from all encumberances. It does not provide for any  compensation at  all being  paid to  the owners  of these properties  and assets.  On the  face of it, the first Ordinance   appears    to   be    wholly    arbitrary    and unconstitutional (vide  C.B. Gautam v. Union of India & Ors. [(1993) 1 SCC 78]).      Ordinance 32  of 1989  was  replaced  on  28.2.1990  by Ordinance 7 of 1990 which, in turn, was replaced on 2.5.1990 by Ordinance  14 of  1990. This  Ordinance was  replaced  on 12.8.1990 by  Ordinance 21  of 1990 (hereinafter called ’the 4th  Ordinance’).   Each  of   these  subsequent   Ordinance contained a  "repeal and  Savings" clause  under  which  the previous  Ordinance   was  repealed.   It   also   provided, "Notwithstanding such  repeal, anything  done or  any action taken in  exercise of  the powers  conferred by or under the said Ordinance shall be deemed to have been done or taken in exercise of  the powers conferred by or under this Act (sic) as if this Act (sic) were in force on the date on which such thing was  done or  action taken."  With the result that all actions taken under the previous Ordinances wee deemed to be taken under the fresh Ordinance.      While Ordinances  7 of  1990 and  14 of  1990  were  in substantially the  same terms  as Ordinance  32 of 1989, the 4th Ordinance,  that is  to say,  Ordinance 21  of 1990 made changes in  Sections 3  and 4.  Sections 3  and 4 of the 4th Ordinance (21 of 1990) are as follows:      "3- Taking  over of  management and      control of  non-Government Sanskrit      Schools by the State Government:      (1) With  effect from  the date  of      coming   into    force   of    this      Ordinance,  429   Sanskrit  schools      mentioned in  Schedule  -  I  shall      vest in  the State  Government  and      the State  Government shall  manage      and control them thereafter.      But, the Sanskrit Schools mentioned      in  annexure-1  of  this  Ordinance      will   be    investigated   through      concerned  Collector,   and  it  is      found  in   the   report   of   the      Collector that  such school  is not      in existance,  in this  case  State      Government will  remove the name of      that school  from annexure 1 of the      Ordinance through  notification  in      State Gazette.      (2) All  the assets  and properties      of   all   the   Sanskrit   Schools      mentioned in sub-section (1) and of      the  Governing   Bodies,   Managing      Committees    incidental    thereto      whether   movable    or   immovable      including     land,      buildings,      documents,  books   and   register.      Cash-balance, reserve fund, capital      investment, furniture  and fixtures

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    and other things shall, on the date      of taking  over, stand  transferred      to and vest in the state Government      free from all encumbrances.      4.  Effect   of  taking   over  the      management and  control -  (1)  The      staff  working   in  the   Sanskrit      Schools mentioned  in annexure  - 1      of the Ordinance, on integration of      its management and control into the      State  Government  as  per  Section      3(1), will be the employees of this      school until  and unless government      comes to a decision regarding their      services.      (2)    State    Government,    will      appointed    a     committee     of      specialists and experienced persons      to   enquire    about   number   of      employees, procedure of appointment      as well  as to  enquire  about  the      character of the Staff individually      and will  come on  a decision about      validity  of   post  sanctioned  by      Governing  body   of  the   school,      appointment procedure and promotion      or   confirmation    of   services.      Committees will  consider the  need      of the  institution and will submit      its report  after taking  stock  of      qualification experience  and other      related  and   relevant   subjects.      Committee will  also  determine  in      its report  whether the  directives      regarding reservations  for SC, ST,      and O.B.C’S  has been  followed  or      not.      (3) State Government, after getting      the  report   will  determine   the      number  of   staff   as   well   as      procedure of  appointments and will      go into  the affair  of appointment      of  teaching  and  other  staff  on      individual basis;  and in  light of      their merit  and  demerit  it  will      determine whether  his service will      be integrated  with the  Government      or not.      Government will  also determine the      pay, salary  allowances  and  other      service condition for them."      (  Note:   This  is   how  the  two      sections have  been translated from      Hindi  to   English  in  the  Paper      Book). Thus the  4th Ordinance  contained an express provisions for investigation of  the Sanskrit  Schools listed in annexure 1 in order  to find  out whether these were genuine schools or not, whether  they were  in existence  and what  were  their assets and properties. Under Section 4, the State Government decided to  appoint a  committee of  specialists to  enquire about the  number of employees of these schools, whether the procedure adopted  for their appointment was proper, whether they  possessed  the  requisite  qualifications  and  merit, whether the  posts they  occupied were sanctioned, and other

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related enquires.  The State  Government after  getting  the reports had  to determine,  on individual basis, whether the concerned teacher  would be  taken in  Government service or not. An  individual decision  was required to be taken about his pay  and allowances  and other  service conditions.  The State strongly  relies upon  this ordinance  and  subsequent Ordinances as  indicating that  there was  no automatic take over of private Sanskrit  Schools.      The 4th Ordinance was replaced on 8.3.1991 by Ordinance No. 10  of 1991.  This Ordinance,  in turn,  was replaced on 8.8.1991 by  Ordinance 31  of 1991. The latter was, in turn, replaced on  21.1.1992 by  Ordinance 2 of 1992 which was the last Ordinance.  It expired  on 30th  of April,  1992. These three Ordinances promulgated subsequent to the 4th Ordinance 21 of 1990, were similar in terms to Ordinance 21 of 1990. Status of the Staff:      It is  the contention  of the  State that  despite  the wording of  1st three  ordinances,  by  virtue  of  the  4th Ordinance there  was  no  automatic  take-over  of  the  429 Sanskrit Schools  listed  in  these  Ordinances.  The  State contends that  by virtue of the 4th Ordinance and subsequent Ordinances and investigation was required to the made by the Collector  to  decide  first,  whether  the  school  was  in existence or  not. Because, according to the State of Bihar, there were a large number of non-existing schools which were there only  on paper. It is also the contention of the State that the  service of  the teaching and non-teaching staff of the 429  Sanskrit Schools  was not automatically transformed into Government  service. A  committee  constituted  by  the State  Government   was  required  to  examine  whether  the concerned teacher  was occupying  a post  which was  validly sanctioned, whether  the procedure  for his  appointment was regular,  whether   he  possessed   the  qualifications  and experience  prescribed   for  the  post  and  other  similar factors. Each  of the persons so approved had to be absorbed on an  individual basis  in Government  service. His pay and allowances and other service benefits would be determined by the State at the time of his absorption.      The State  contends that  these enquiries  and  reports were not complete at time when the last Ordinance expired on 30th of April, 1992. No decision and/or steps had been taken by the  State Government  to absorb  any person  employed in these Sanskrit Schools in Government service. Therefore, the teachers of  Sanskrit Schools  as well  as the  non-teaching staff did  not have, at any time, the status of a Government servant.      The teachers  who are  appellants before  us,  however, contend that only the first Ordinance No. 32 of 19896 should be looked  at in  order to  decide their  status.  Since  no inquiry is contemplated under the first Ordinance, they have automatically    become     Government    Ordinances     are illegal/invalid and must be ignored. Validity of Ordinances:      One has,  therefore, to  consider whether 1st Ordinance is valid,  or whether  all are  valid  or  whether  all  are unconstitutional.  To   decide  this,  it  is  necessary  to consider under  the constitutional  framework, the nature of the power conferred on the Governor under Article 213 of the Constitution to  promulgate an  Ordinance. Can  a series  of Ordinances be issued validly under Article 213 over a number of years  without placing  any of  the ordinances before the State  Legislature?   Under  the   basic   scheme   of   the Constitution,  the  legislative  powers  of  the  State  are distributed between  Parliament and  State  legislatures  in accordance with  Articles 245  and 246  of the Constitution.

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The Legislature  of a  State is given the power to make laws for the whole or any part of the State in respect of matters as set out in Article 246 read with the Seventh Schedule.      Article 213,  however,  makes  a  departure  from  this scheme and  gives to  the Governor  who acts  on the aid and advice of the Executive, the legislative power to promulgate an Ordinance  when the  Governor is satisfied that immediate action is  required at  a time  when both  the Houses of the State legislature,  and when  there is  only one  House of a State Legislature, the Legislative Assembly of the State, is not in session.      Article 213(2) provides as follows:      "213(2): An  Ordinance  promulgated      under this  article shall  have the      same force  and effect as an Act of      Legislature of the Stat assented to      by the  Governor,  but  every  such      Ordinance -           (a) shall  be laid  before the           legislative  Assembly  of  the           State, or  where  there  is  a           Legislative  Council   in  the           State, before both the Houses,           and shall  cease to operate at           the expiration  of  six  weeks           from the  re-assembly  of  the           legislature, or  if before the           expiration of  that  period  a           resolution disapproving  it is           passed by  the Legislature, or           if   before   the   resolution           disapproving it  is passed by;           the Legislative  Assembly  and           agreed to  by the  Legislative           Council,  if   any,  upon  the           passing of  the resolution or,           as the  case may  be,  on  the           resolution being  agreed to by           the Council; and           (b) may  be Withdrawn  at  any           time by the Governor.           Explanation - Where the Houses           of the  Legislature of a State           having a  Legislative  Council           are summoned  to reassemble on           different dates, the period of           six weeks  shall  be  reckoned           from the  later of those dates           for  the   purposes  of   this           clauses." Since the  Governor acts  with the  aid and  advice  of  the Council of Ministers, the Ordinance-making power is given to the executive  to promulgate  a  law  when  urgency  of  the situation so  demands provided  the legislature  is  not  in session. Since  this is an exception to the normal rule that laws must  be enacted  by the  Legislature,  Clause  (2)  of Article 213  provides certain  safeguards. An  Ordinance  so promulgated must  be laid before the Legislative Assembly of the State  or when  there is  a Legislative  Council in  the State, before both the Houses when they reassemble. It shall cease to  operate at the expiration of si weeks from the re- assembly of  the Legislature. but even before the expiration of six  weeks if  a resolution disapproving the ordinance is passed by  the Legislature,  it will cease to operated. This provision has to be read with Article 174 which enjoins that

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not more  than six  months shall  intervene between the last session of  the Legislature  and the  next session. Thus, an Ordinance  is   necessarily  of   a  limited  duration,  not extending beyond 7-1/2 months.      That this  power is  a departure from the normal scheme of the  Constitution was  made clear  during the Constituent Assembly Debates  (Vol. 8 pages 208, 214,215) when Professor K.T. Shah expressed concern at six weeks’ time being allowed to lapse after the reconvening of the Legislature before the Ordinance would  cease to have effect. He expressed distrust of the Ordinance-making power vested in the Chief Executive. Answering his  apprehensions, Dr.  Ambedkar assured him that an Ordinance  would have  very limited  duration since there was a  provision that  not more than six months shall elapse between  two   sessions  of  Parliament.  He  justified  the provision on  the ground that limited power may be conferred on the  Chief Executive to deal with urgent matters when the Legislature was not in session.      In R.K.  Garg etc.  etc. V.  Union of India & Ors. etc. (1982 (1)  SCR 947  at page  964), referring  to the similar power  of  the  president  to  promulgate  Ordinances  under Article 123,  a Constitution  Bench of  this Court  said "At first blush it might appear rather unusual that the power to make laws  should have been entrusted by founding fathers of the Constitution  to the  executive because according to the traditional outfit  of a  democratic political structure the legislative power  must belong  exclusively to  the  elected representatives  of   the  people  and  vesting  it  in  the executive though  responsible to  the Legislature  would  be undemocratic as  it might enable the executive to abuse this power by  securing the  passage of  an ordinary bill without risking a  debate in the Legislature ................ It may be and  this was  pointed out forcibly by Dr. Ambedkar while replying  to  the  Criticism  against  the  introduction  of Article  123   in  the   Constituent  Assembly  -  that  the legislative power  conferred on  the  President  under  this Article is  not a parallel power of legislation. It is power exercisable only  when both  Houses of Parliament are not in session and  it has  been conferred ex-necessite in order to enable  the   executive  to   meet  an  emergent  situation. Moreover, the  law made  by  the  President  by  issuing  an Ordinance is of strictly limited duration."      There are  similar observations  made by  this Court in the case  of T.Venkata  Reddy etc.  etc. v.  State of Andhra Pradesh (1985 (3) SCR 509 at page 524) and Dr. D.C. Wadhwa & Ors. V. State of Bihar & Ors. (1987 (1) SCC 378 at 392).      Clearly, the  power to promulgate an Ordinance is not a substitute for regular legislation passed by the Legislature of a  State. It  is a  power conferred  on the  Executive in order  to   deal  with   any  urgent   situation  while  the Legislature is  not in  session. It  is also  of  a  limited duration.  Article   213  does   not  contemplate  that  one Ordinance  should   be  succeeded   by  several   subsequent Ordinance  should   be  succeeded   by  several   subsequent Ordinances without,  at any  stage, placing  the  Ordinances before the  Legislature. It  was this kind of practice which was condemned by the Constitution Bench of this Court in Dr. D.C. Wadhwa’s case (supra). This Court observed in that case that the  Government of  Bihar made it a settled practice to deliberately go  on re-promulgating the Ordinances from time to time  on a massive scale in a routine manner. Immediately at the  conclusion of each session of the State Legislature, a Circular Letter used to be set by the Special Secretary in the  Department   of  Parliamentary   Affairs  to   all  the Commissioners, Secretaries  etc. intimating to them that the

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session of  the Legislature  had been got prorogued and that under Article  213(2) (a)  all the Ordinances would cease to be in  force six  weeks after  date of  re-assembly  of  the Legislature. They  should, therefore,  get in touch with the Law Department  and take  immediate action  to get  all  the concerned Ordinances  re-promulgated before  their  date  of expiry. The  Court observed  that the startling facts showed that the  Executive in  Bihar had almost taken over the role of legislature  in Making  laws not for a limited period but for  years  together  in  disregard  of  the  constitutional limitations. This was clearly contrary to the constitutional scheme and  was improper and invalid. Accordingly, the court Struck down the Ordinance which was before it. The manner in which a  series of  Ordinances have  been promulgated in the present case by the state of Bihar also clearly shows misuse by the  Executive of  Article 213.  It is  a  fraud  on  the Constitution. The  State of  Bihar had not even averred that any immediate action was required when the 1st ordinance was promulgate. It  has not stated when the Legislative assembly was  convened  after  the  first  Ordinance  or  an  of  the subsequent Ordinances,  how long  it was in session, whether the ordinance  in force  was placed  before it  or why for a period of two years and four months proper legislation could not be  passed. The  constitutional scheme  does not  permit this kind  of Ordinance  Raj. In  my view all the ordinances form a part of a chain of executive acts designed to nullify the scheme of Article 213. They take colour from one another and perpetuate one another, some departures in the scheme of the 4th  and subsequent  Ordinances notwithstanding. All the unconstitutional and  invalid particularly  when there is no basis shown  for that  exercise of  power under Article 213. There is  also no  explanation offered  for promulgation one Ordinance after  another. If  the entire exercise is a fraud on the  power conferred by Article 213, with no intention of placing  any   Ordinance  before   the  legislature,  it  is difficult to hold that first Ordinance is valid, even though all others  may be  invalid. The  same course of conduct has continued  from   the  first   to  the  last  Ordinance.  I, therefore, do  not agree with brother Wadhwa, J’s conclusion that  the   1st  Ordinance   is  valid  but  the  subsequent Ordinances are invalid. In my view all are invalid.      Also, neither  the 1st  Ordinance  nor  the  subsequent Ordinances provide  for  any  compensation  being  paid  for taking over  the properties  and assets  of private schools. Also each  of the  Ordinances provides  that  these  private properties and  assets are taken over by the State free from all encumberances.  This is  a totally arbitrary exercise of power violative  of Article 14 (Vide C.B. Gautam v. Union of India & Ors. (Supra)]. Since the other provisions in all the Ordinances dealing  with teachers  in these  private schools becoming Government  servants,  are  consequential,  flowing from the  private schools  vesting in  the State  along with their   properties    and   assets,   the   Ordinances   are unconstitutional in  their entirety. No rights can flow from any of them. Ordinance 32 of 1989:      Even if  one accepts,  for the  sake of  argument,  the contention of  the teachers that only the first Ordinance is valid and  the subsequent Ordinances are illegal or invalid, the first  Ordinance, by  itself, would cease to operate six weeks after  the re-assembly  of  the  Legislature.  In  the present  case   the  1st   Ordinance  was   promulgated   on 16.12.1989. The State Legislature had re-assembled some time prior to  28.2.1990 (  the date  of the 2nd Ordinance), thus "necessitating" a  fresh Ordinance.  since  the  Legislative

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Assembly must  have been  prorogued prior  to 28.2.1990, the 1st Ordinance,  in the  present case,  would have  ceased to operate latest by 15th April, 1990 if not earlier, if it had stood by  itself. Any  effect which  it had would come to an end when  it ceases,  unless the  effect is  permanent. Now, ordinarily, when  a  temporary  law  ceases  to  operate  or expires, Section  6 of  the General Clauses Act, 1897 has no application because  Section 6  is,  in  terms,  limited  to repeals  (vide   G.P.   Singh,   Principles   of   Statutory Interpretation, 16th  Edition, Page  388). However,  if  any action taken  during  the  subsistence  of  such  a  law  or Ordinance has  a "permanent" effect, that "permanent" effect may not  be wiped  out when  the Ordinance  or temporary law ceases to operate.      In the  case of State of Orissa v. Bhupendra Kumar Bose (1962 Suppl.  (2) SCR  380) this Court considered the effect of an  Ordinance which had lapsed. This Court had to examine the effect  of lapsing  of an  Ordinance which had validated electoral rolls   improperly prepared and the elections held on the basis of such electoral rolls. The Court said that on the expiry  of the  validating Ordinance  the invalidity did not  revive.   The  Ordinance  had  successfully  cured  the invalidity of  the electoral  roll and  of the elections. In the course  of its  judgment  this  Court  referred  to  the observations of  Patanjali Sastri,  J. in  the  case  of  S. Krishnan &  Ors. v.  The State of Madras (1951 SCR 621) with approval. It  said that  the general  rule in  regard  to  a temporary  statute   is  that  in  the  absence  of  special provisions to  the contrary,  proceedings  which  are  taken against a  person under  a temporary statute will ipso facto terminate as  soon  as  the  statute  expires.  Because  the provisions of  Section 6  of  the  General  Clauses  Act  in relation to the effect of repeal do not apply to a temporary Act. That  is why  the Legislature can and often does, avoid such an  anomalous consequence  by enacting in the temporary statute a  saving provision  the effect  of which is in some respects similar to that of Section 6 of the General Clauses Act. This Court, however, said, "we ought to add that it may not be  open to the Ordinance making authority to adopt such a course  because of  the obvious  limitation imposed on the said authority by Article 213(2)(a)." (underlining ours)      After drawing  this  distinction  between  the  greater limitation  imposed   on  the   executive  promulgating   an ordinance as  against a  temporary statute of a Legislature, this Court  added, (p.398)   that it would not be reasonable to hold  that the  general rule  about  the  effect  of  the expiration of a temporary Act is inflexible and admits of no exception. It  said, " In our opinion what the effect of the expiration of a temporary Act would be, must depend upon the nature  of  the  right  or  obligation  resulting  from  the provisions of  the temporary  Act and  upon their character, whether the  said right and liability had enduring effect or not". The  Court made  a reference  to the  English case  of Stevenson v.  Oliver ([1841]  151 E.R. 1024) where the court considered   a temporary  statute which  provided that every person who  held a  Commission or  Warrant as  a Surgeon  or Assistant Surgeon  in His  Majesty’s Navy  or Army should be entitled to  practise as an Apothecary without having passed the usual  examination. The  temporary Statute  expired. The Court held  that the  person who  had acquired  a  right  to practice without  having passed  the  usual  examination  by virtue of  the temporary  Act could  not be deprived of this right after its expiration.      In the  case of  T. Venkata  Reddy (supra)  this  Court considered a case where the Governor had issued an Ordinance

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abolishing the  posts of  part-time  village  officers.  The Ordinance lapsed  and was  not replaced  by an  Act  of  the Legislature. The  Court said  that the  posts which had been abolished by the Ordinance did not revive. The abolishing of posts and the declaration that the incumbents of those posts would  cease  to  be  the  holders  of  those  posts,  being completed events,  they could not be revived without express legislation.      These two  cases are  an exception  to the general rule that an  Ordinance ceases  to have  effect when it lapses or comes to  an end.  A "permanent" effect of the Ordinance may continue. What  then is  a permanent  effect? Or,  what is a right of  an enduring  character which  subsists beyond  the life  of   an  ordinance?  Both  these  terms  are  somewhat ambiguous. Since an Ordinance by its very nature, is limited in duration  and is  promulgated by the Executive in view of the urgency  of the  situation, we  must examine  the rights which are created by an Ordinance carefully before we decide whether they  are permanent.  Every completed  event is  not necessarily permanent. What is done can often be undone. For example, what  is construction  can be demolished. A benefit which is conferred can be taken away. One should not readily assume that  an Ordinance  has a  permanent effect, since by its very nature it is an exercise of a limited and temporary power given  to the  Executive. Such a power is not expected to be  exercised to bring about permanent changes unless the exigencies of  the situation so demand. Basically, an effect of an  Ordinance   can be  considered as permanent when that effect is  irreversibly or  possibly when it would be highly impractical or against public interest to reverse it e.g. an election which is validated should not again become invalid. In this  sense, we  consider as  permanent or  enduring that which is irreversible. What is reversible is not permanent.      In this  context, there has been considerable change in judicial thinking  since 1962.  In the  case of S.R.Bommai & Ors. v.  Union of India & Ors. (1994 (3) SCC page 1, at page 226), the  majority of  the judges  have taken the view that when a  proclamation of the President’s Rule ceases to be in operation, the necessary consequences is that the status quo ante revives.  This Court  by a majority, also said (at page 123) that  the constitutional check on the president’s power would become meaningless if the president takes irreversible decisions. A  Legislative Assembly  which is  dissolved  can revive if  the proclamation  comes to an end. Similarly when an ordinance  taking over private Schools lapses, the status quo ante  revives. It  would be startling if for example, an Ordinance nationalising  private banks  or industries lapsed or parliament  declined to  ratify  it,  and  yet  it  would continue to  operate under  the guise  of "permanent effect" contrary to legislative mandate. A "take over’ Ordinance may be  required   if  there   is  urgency.   But  any  enduring consequences beyond  the life  of the  ordinance can only be brought about  by legislation. The first take over Ordinance in the  present case  does not have any permanent effect. In this regard  I do  not agree  with the view taken by brother Wadhwa for reasons I have already set out.      Our attention  was drawn  to  other  similar  temporary provisions in  some other  Articles of  the Constitution  in order to  show that  when on  the cessation  of a  temporary "situation", if  the measure  taken is  to be  continued, an express provision  is mad  e to  this effect in the Article. e.g., Article  352 deals  with a  proclamation of emergency. Clause (4) of Articles 352 provides that "every proclamation issued under this article shall be laid before each House of Parliament and  shall ............  cease to  operate at the

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expiration of one month unless before the expiration of that period it  has been  approved by resolution of both House of Parliament". Article  356 deals  with president’s  Rule in a State if there is failure of constitutional machinery in the State .  Clauses (3)  and (4) of Article 356 provide for the proclamation ceasing  to operate  as stated therein. Article 358 which  deals with suspension of provisions of Article 19 during emergency,  Article 359(1A) , Article 360 and Article 369 also contain somewhat similar provisions. In the case of exercise of  legislative powers  during the President’s Rule under Article 356, however, Article 357(2) provides that any law made  in the exercise of the power of the Legislature of the  State   by  Parliament  or  the  President  during  the subsistence   of   the   proclamation   shall,   after   the proclamation has  ceased to operate, continue in force until altered or repealed or amended by a competent Legislature or other authority. This is an express Constitutional provision which  extends   the  life   of  laws   enacted  during  the proclamation of  President’s Rule  beyond the  period during which the  proclamation was  in force.  There  is  not  such provision  relating   to  the  Ordinance  promulgated  under Article 213.  The effect  of an Ordinance cannot, therefore, last beyond  its life-time. The only possible situation when this can  happen is when any action already completed during the life  of the  ordinance has  a permanent  effect and  is broadly speaking, irreversible in the sense set out earlier.      In the  present case,  it is  contended by the teachers that the first Ordinance has conferred on them the status of Government Servants. And because a status has been conferred on them,  the effect  of the  Ordinance is irreversible and, therefore, permanent.  But conferment of a status is not per se an  irreversible act.  It depends  on the  kind of status conferred. Status  may be  of different  kinds. A person may acquire a  certain status  by reason of his birth. He may be the son  of his  father and mother, he may be the brother of his  siblings,   he  may   acquire  by  birth  other  family relationships. These  are  unchangeable.  However,  not  all family relationships are unchangeable. The marital status of a person  is not,  in this  sense, permanent because husband and wife can take a divorce or have their marriage annulled. In the  economic field, an industry may be taken over by the state or be nationalised. However, since the changes brought about are far ranging they are brought about by legislation. If an  Ordinance is  issued nationalising an industry, it is almost always  followed up  by proper  legislation. but  the process is not irreversible Similarly, the employees of such an industry,  on its  being taken  over by  the  State,  may become Government  servants but  when the  industry  is  de- nationalised they may cease to be Government servants. There is nothing  immutable about  this kind of a status. Moreover no status can be conferred by a take over which is arbitrary and unconstitutional.      The protection  of Article  311(2) does  not extend  to such situations.  This Court  has held,  in S.S.  Dhanoa  v. Union of India & Ors. (AIR 1991 SC 1745) , that creation and abolition  of   posts  is   the  exclusive  concern  of  the executive. Even  in the  case of  a permanent  post if it is abolished, Article  311(2) is  not attracted.  There  is  no question here  of punishment  for misconduct.  The same view has been  reiterated in  M.L. Kamra v. Chairman-cum-Managing Director, New  India Assurance Co. Ltd. & Anr. (1992 (2) SCC 36). When  such "creation  of posts"  is under  a  temporary statute in  the form  of an  Ordinance  promulgated  by  the Government  and   is  not   subsequently  followed   up   by Legislation by  the Legislature,  the posts  cease to  exist

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when the  Ordinance ceases  to operate. The executive is not expected to  take irreversible  decisions  in  the  form  of Ordinances unless  the decisions  are followed  up by  a law enacted by  the Legislature.  Otherwise  the  constitutional check on  the executive’s power to promulgate Ordinance will become meaningless.      Moreover, in  the present case nothing was done to give effect to  the 1st  Ordinance. The  schools were not in fact taken over,  and  the    teachers  were  not  actually  made Government servants  or paid  the  salary  of  a  Government Servant by  the time  the ordinance  would  have  ordinarily expired. It  is difficult  to see how effect cab be given to an ordinance  after it  has  expired,  or  to  consider  its "effect" as permanent.      Therefore, in the present case, assuming that the first Ordinance conferred  the status  of a  Government servant on the appellants,  the status would depart with the Ordinance. The contention  of the appellants-teachers that although the Ordinances have  lapsed,  they  continue  to  be  Government servants has,  therefore, in  my view, been rightly rejected by the High Court. Even if the 1st Ordinance is valid (which it is  not), the  teachers can  be considered  as Government servants only for its duration.      Learned counsel for the State pointed out that in fact, none of  the teachers  or staff  members  were  absorbed  as Government servants  under any  of these  Ordinances nor was anyone given  the scale of pay of a Government servant. Even so, there  was no  justification for  not  paying  them  any salary even  as teachers of private Sanskrit Schools. We are told that  when the  matter was  before the High Court, even the salaries  of the  teachers on the basis prevailing prior to the first Ordinance 32 of 1989, had not been paid. We are informed by learned counsel for the State that the salary of the entire  staff of  these schools  has not been paid up to date on  the Bihar  Sanskrit Shiksha  Board)  Prior  to  the promulgation of  the first  Ordinance 32   of  1989. if such salary has  not been paid in any case, the same must be paid forthwith. The  teachers shall  continue  to  receive  their salary as before regularly henceforth.      In case  of State  of Bihar  & Ors. v. Chandradip Rai & Ors. (1982  (2) SCC  272), this  Court examined  Bihar  Non- Government Elementary  Schools (Taking over of Control) Act, 1976. Section 3 provided for take over of elementary schools by the  State Government  by publication  of a notification. Section 4  sub-section  (2)  provided  that  every  officer, teacher or  other employee holding any office or post in the school taken over by the State Government shall be deemed to have been  transferred to and become an officiate teacher or employee of  the State  Government. This Court observed that in fact  the schools  had not  been taken  over by the State Government. Therefore,  the High  Court was not justified in issuing a writ of mandamus directing the State Government to take steps  for the  management of the school or for payment of  salary  to  the  respondents.  In  the  light  of  these observations of  this Court,  the writ petition filed in the High Court  was withdrawn. In the present case also, nothing was done under the 1st Ordinance. The examination of schools for the  purpose of  take over  under the 4th and subsequent Ordinance, was  not complete when the last Ordinance lapsed. Because of  an interim  stay on the operation of Clause 4 of the fourth  Ordinance 21  of  1990,  the  enquiry  into  the qualifications etc.  of teachers  and staff of these schools also could  not be  completed.  Since  all  Ordinances  have ceased to  operate and  none of  them can  be considered  as permanent  in   effect,  no  directions  can  be  given  for

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enforcing any of them. Therefore, in any view of the matter, the  petitioners  before  the  High  Court  could  not  have succeeded in the writ petitions.      The  petitioners  are  undoubtedly  entitled  to  their salary and  allowances in  accordance with the position that prevailed prior to the promulgation of Ordinance 32 of 1989. They cannot be deprived of their salary during the period of the Ordinances.  The directions  given by the High Court for the payment  of salary  to the  staff of Sanskrit schools on the  basis   of  the   Position  prevailing   prior  to  the promulgation of  the first  Ordinance,  therefore,  must  be upheld. The  High Court, however, was not right, in my view, in  granting   to  the  petitioners  before  it  salary  and allowances on  the basis  of their being Government servants from 16th  December, 1989 upto 30th of April, 1992 since the Ordinances are a fraud on the constitution and no rights can flow from  all or any of them. The appeals and writ petition filed by staff of the Sanskrit Schools are dismissed and the appeal of the State succeeds, but for reasons very different from the once canvassed. Looking to the conduct of the State of Bihar,  it must pay to the original petitioners the costs of this litigation throughout.      Contempt Petition Nos. 288-296 of 1977 in civil appeals concerned also  do not  now service  since salaries  on  the basis of  the   staff’s   entitlement  prior  to  the  first Ordinance have  already   been paid.  Contempt petitions are accordingly disposed if , [With Civil Appeal No. 3533-3595/1995, 5876-5890/1994, Civil Appeal No.  2646/19998 (  @ S.L.P.  (c) No. 18806/1995) Writ Petition No.  580/1995  with  Contempt  Petition  Nos.  288- 296/1997 in  CA No. 3535,3539, 3541, 3545, 3555, 3560, 3573, 3576, 3590/1995  with IA  Nos. 3  in Writ  petition (C)  No. 580/1995] D.P. Wadhwa, J.      I regret I am unable to agree with the view taken by my most learned  and noble  sister Sujata  V.  Manohar,  J.  I, therefore, deliver my separate judgment.      These are  cross appeals  are arise out of the judgment dated March  3,1994 of  the Division  Bench  of  Patna  High Court. In  one set  of these  appeals, the  appellants,  who belong  to  teaching  and  non-teaching  staff  of  Sanskrit schools in  the State  of Bihar, filed writ petitions in the High Court  claiming their  status  as  Government  servants under Ordinance No. 32 of 1989, which was promulgated by the Governor of  Bihar exercising  powers conferred  on  him  by Article 213  of the Constitution of India. The Ordinance was published the  Bihar Gazette (Extra-ordinary) dated December 18, 1989. There were successive Ordinances promulgated after Ordinance No.  32 of 1989 lapsed, the last Ordinance lapsing on April  30, 1992.  The Ordinance did not take the shape of Act of  the Legislature.  The High Court in its judgment did not grant  relief to  the  petitioners  that  they  be  paid salaries as  Government servants  from the date of the first Ordinance  32/1989   till  April  30,  1992  when  the  last Ordinance lapsed  and also  directed payment of salaries for the earlier period at the rate to which the petitioners were entitled to.  The State  has also  filed appeal against this judgment. it is aggrieved by the direction of the High Court for payment  of salaries  to the  petitioners as  Government servants  for  the  limited  period.  The  State  also  felt aggrieved by  the findings  of the High Court that Ordinance re-promulgated again  and agains were illegal and that there was "Ordinance Raj" in the State of Bihar.      It is  not necessary for me to give history of Sanskrit schools in the State of Bihar which were being run privately

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but had  been recognised  by the  State and were being given grant-in-aid.  The   grant  was  being  distributed  to  the teaching  and  non-teaching  staff  and  for  meeting  other expenses of  the schools  through the Bihar Sanskrit Shiksha Board. The  grants were  disbursed to  different schools  in accordance with the pay-scales, D.A. rates and staff pattern laid down  by the  State Government for this purpose. In the year 1981,  there were  651 Sanskrit Schools under the Bihar Sanskrit Shiksha  Board which  were receiving  grants-in-aid from the State Government.      On December  16, 1989 Ordinance 32/1989 was promulgated and as  noted above  was  published  in  the  Bihar  Gazette (Extra-ordinary) on  December 18,  1989. Since  a great deal depends on the purpose and effect of this Ordinance it would be appropriate to reproduce the somewhat detail:-      (Bihar Ordinance no. 32, 1989)    THE BIHAR NON-GOVERNMENT SANSKRIT                  SCHOOLS (TAKING OVER OF MANAGEMENT AND CONTROL)             ORDINANCE, 1989.                    AN                ORDINANCE      To provide  for the  taking over of      Non-Government Sanskrit Schools for      Management and Control by the State      Government for  improvement, better      organisation  and   development  of      Sanskrit Education  in the State of      Bihar.      Preamble.    -     WHEREAS,     the      legislature of  the State  of Bihar      is not in session;           AND WHEREAS,  the Governor  of      Bihar     is     satisfied     that      circumstances exist which render it      necessary for him to take immediate      action of  the taking  over of Non-      Government  Sanskrit   Schools  for      Management and Control by the State      Government for  improvement  better      organisation  and   development  of      Sanskrit Education  in the State of      Bihar;           NOW, THEREFORE, in exercise of      the power  conferred by clauses (1)      of Article  213 of the Constitution      of India the Governor is pleased to      promulgate      the       following      Ordinance:-                CHAPTER 1               PRELIMINARY      1.   Short    title,   extent   and           commencement.-    (1)     This           Ordinance may  be  called  the           Bihar Non-Government  Sanskrit           Schools   (Taking    over   of           Management    and     Control)           Ordinance, 1989.      (2) It shall extend to the whole of           the State of Bihar.      (3) It  shall come  into  force  at           once.      2. Definitions.  In this Ordinance,      unless there  is anything repugnant      in the subject or context-

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    (i)    "Non-Government     Sanskrit      Schools" means  a  Sanskrit  School      with  the  prior  approval  of  the      State  Government   recognised   by      dissolved  Bihar  Sanskrit  Shiksha      Parishad, Kameshwar Singh Darbhanga      Sanskrit University,  Darbhanga and      Sanskrit      Education       Board      constituted  under  Bihar  Sanskrit      Education Board Act, 1981.      (ii) "Head-Master"  means the  Head      of the  teaching staff  of Sanskrit      School taken over by the Government      whatsoever the designation may be.      (iii) "Teacher"  means a teacher of      the Sanskrit  Schools taken over by      the Government.      (iv)  "Non-Teaching   Staff"  means      full time  employees other than the      teaching  staff   of  the  Sanskrit      School   taken    over    by    the      Government.      (v) "Director"  means  Director  of      Education of  the State  Government      Incharge Sanskrit Education.      (vi) "Prescribed"  means prescribed      by this  Ordinance  of  rules  made      thereunder.      (vii)  "Rules"   means  Rules  made      under Section 14 of this Ordinance.                CHAPTER 2      TAKING OVER OF MANAGEMENT AND                  CONTROL      3. Taking  over of  Management  and      Control of  Non-Government Sanskrit      Schools by  State  Government.  (1)      With  effect   from  the   date  of      enforcement of  this Ordinance  429      Sanskrit   Schools   mentioned   in      Schedule 1  shall vest in the State      Government and the State Government      shall    manage     and     control      thereafter.      (2) All  the assets  and properties      of   all   the   Sanskrit   Schools      mentioned in sub-section (1) and of      the  Governing   Bodies,   Managing      Committees    incidental    thereto      whether   movable    or   immovable      including     land,      buildings,      documents,  books   and   register,      cash-balance, reserve fund, capital      investment, furniture  and fixtures      and other things shall, on the date      of taking  of  taking  over,  stand      transferred  to  the  vest  in  the      State  Government   free  from  all      encumbrances.      4.  Effect   of  taking   over  the      Management and  control.  (1)  With      effect from  the date of vesting of      Sanskrit   Schools   mentioned   in      Schedule 1  under section  3(1)  in      the State  Government, the services      of  all  those  teaching  and  non-

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    teaching employees  of the  schools      mentioned in  schedule 1,  who have      been                      appointed      permanently/temporarily     against      sanctioned posts in accordance with      the prescribed  standard,  staffing      pattern as  prescribed by the State      Government prior  to this Ordinance      shall  stand   transferred  to  the      State  Government.   He  shall   be      employee of  the  State  Government      with  whatsoever   designation   he      holds;           Provided, that the services of      those  teaching   or   non-teaching      employees who  are in excess of the      sanctioned  strength   or  do   not      possess                   necessary      fitness/qualification         shall      automatically stand terminated.           (2) Teachers  of the  Sanskrit      Schools     taken   over   by   the      Government shall be entitled to the      same pay,  allowances  and  pension      etc. as  are admissible to teaching      and non-teaching  employee  of  the      taken  over  secondary  Schools  of      Bihar.                CHAPTER 3          MANAGEMENT OF SCHOOLS      5. Management  and Control.  -  The      Management  and   Control  of   the      Sanskrit Schools  taken over by the      state Government shall remain under      the Director  and Officers  working      under him  in the manner prescribed      by the  State Government. The State      Government  shall   determine   the      powers   and   functions   of   the      Director and  officers of all ranks      working under  him and  shall issue      necessary direction  in this behalf      to the Director from time to time.      There are  other clauses  of the Ordinance dealing with constitution of  managing committee (Clause -6) , powers and functions of  managing committee  (clause-7), main functions of the  Head Masters  (clause -8)  accounts and audit of the Sanskrit Schools  taken over the State Government (clause-9) ; constitution  of Sanskrit  Education Committee relating to development of Sanskrit education in the State (clause - 10) ; offences and penalties for contravention of the provisions of the  Ordinances (Clause  -11)  ,  cognizance  of  offence (clause- 12),  protection of  action  taken  in  good  faith (clause-13) power  to make  rules (Clause-  14) and power to remove difficulties (Clause -15).      Schedule of  the Ordinance gives list of non-Government Sanskrit Schools  to be taken over by the Ordinance. It give the names  of 429  such schools  in each of the districts in the State of Bihar which separate columns giving strength of standard teaching  staff (  including Head Masters) and non- teaching staff.      After  this   Ordinance   32/1989   lapsed   successive Ordinances Nos.  7 of  1990 dated February 28,1990 and 14 of 1990 dated  may 2,1990 were repromulgated on the same terms. After that, fourth Ordinance No. 21 of 1990 dated August 12,

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1990 was  promulgated which struck a different note. Clauses (3) and  (4) of  this Ordinance  21/1990 are  reproduced  as under:-      "TAKING OVER OF MANAGEMENT AND      CONTROL      3. Taking  over of  management  and      control of  non-Government Sanskrit      Schools by State Government.      (1) With  effect from  the date  of           enforcement of  this Ordinance           429 Sanskrit Schools mentioned           in Schedule  -1 shall  vest in           the state  Government and  the           State Government  shall manage           and control thereafter.           But,  the   Sanskrit   Schools           mentioned  in   annexure-1  of           this   ordinance    will    be           investigated through concerned           Collector and  if it  will  be           found   in   the   report   of           Collector that  such school is           not in existence, in this case           State government  will  remove           the  name   of   that   school           Ordinance through notification           in State Gazette.      (2) All  the assets  and properties           of all  the Sanskrit  Schools,           mentioned in  sub-section  (1)           and of  the  Governing  Bodies           Managing           Committees,           incidental   thereto   whether           movable or immovable including           lands,  buildings,  documents,           books  and   registers   cash-           balance, reserve fund, capital           investment,   furniture    and           fixture  and   other   things,           shall on  the date  of  taking           over, stand  transferred    to           and   vest    in   the   State           Government   free   from   all           encumberances.      4.  Effect   of  taking   over  the           management and control      (1)  The   staffs  working  in  the           Sanskrit   Schools   mentioned           annexure -1  of the  Ordinance           related to  integration of its           management  and  control  into           the State  Government  as  per           the Schedule  3(1) , they will           be  not   until   and   unless           Government comes to a decision           regarding their services.      (2) State Government will appoint a           committee of  specialists  and           experienced persons to enquire           about  number   of  employees,           procedure  of  appointment  as           well as  to enquire  about the           character   of    the   staffs           individually and  will come on           a decision  about validity  of

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         posts sanctioned  by Governing           body    of     the     School,           appointment   procedure    and           affairs   of   promotions   of           confirmation   of    services.           Committee  will  consider  the           need of  institution and  will           submit its report after taking           stock   of   views   regarding           qualification, experience  and           other  related   and  relevant           subjects. Committee  will also           determine   in    its   report           whether     the     directives           regarding reservation  for SC,           ST and OBC’s has been followed           or not.      (3) State Government, after getting           the report  will determine the           number of  staffs as  well  as           procedure of  appointments and           will go  into  the  affair  of           appointment  of  teaching  and           other  staff   on   individual           basis and  in light  of  their           merit   and    demerit    will           determine whether  his service           will be  integrated  with  the           Government or  not, Government           will also determine the place,           salary, allowances  and others           service conditions for them."          XXX       XXX      XXX      "(16) Repeal  and savings  (1)  The      Bihar    non-Government    Sanskrit      School (taking  over of  management      and control Ordinance, 1990) (Bihar      Ordinance No.  14, 1990)  is hereby      repealed.      (2)  Notwithstanding   such  repeal      anything done  or any  action taken      in exercise of the powers conferred      by  or  under  the  said  Ordinance      shall be  deemed to  have been done      or taken  in exercise of the powers      conferred by  or under  this Act as      if this  Act were  in force  on the      date on  which such  thing was done      or action taken."      This fourth  Ordinance  now  contemplates  enquiry  and investigation which was not there in the first Ordinance.      Again successive  Ordinance Nos. 10 of 1991 dated march 8, 1991,  31 of  1991 dated  August 8,  1991 and  2 of  1992 dated January  21, 1992,  on the  same  terms  as  Ordinance 21/1990, were  issued till the last Ordinance lapsed without State Legislature’s  passing any  Act in substitution of the Ordinance.      While the  stand of the teaching and non-teaching staff in the  writ petitions  was that  by  virtue  of  the  first Ordinance 32/1989 Sanskrit Schools mentioned in the Schedule were taken over and they had become Government Servants, the State  Government  took  entirely  an  opposite  stand  that schools were  never taken over and nor the teaching and non- teaching staff  conferred the  status of Government servants as even  the first Ordinance required certain criteria to be

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laid and  fulfilled and  that not  having been done the writ petitions were devoid of merit.      To understand the rival contentions I think I may first refer to  the relevant  provisions of  Article  213  of  the Constitution and  various judgements  of this  Court  laying down  the   scope  and   effect  of   an  Ordinance  in  the circumstances as  in the  present case.  Article 213 confers power on  the Governor  of the State to promulgate Ordinance during recess  of the legislature of the State. Said Article in relevant part is as under:-      "  213.   Power  of   Governor   to      promulgate   Ordinance   Ordinances      during recess of Legislature -- (1)      If at  any time,  except  when  the      Legislative Assembly  of a State is      in session,  or where  there  is  a      Legislative Council  in,  a  State,      except  when  both  Houses  of  the      Legislature  are  in  session,  the      Governor    is    satisfied    that      circumstance exist  which render it      necessary for him to take immediate      action,  he   may  promulgate  such      Ordinances  as   the   circumstance      appear to him to require :      (2) An  Ordinance promulgated under      this article  shall have  the  same      force and  effect as  an Act of the      Legislature of  the State  assented      to by  the Governor, but every such      ordinance --      (a)  shall   be  laid   before  the           Legislative  Assembly  of  the           State, or  where  there  is  a           Legislative  Council   in  the           State, before both the houses,           and shall  cease to operate at           the expiration  of  six  weeks           from the  re-assembly  of  the           Legislature, or  that period a           resolution disapproving  it is           passed  by   the   legislative           Assembly and  agreed to by the           legislative Council,  if  any,           upon  the   passing   of   the           resolution or, as the case may           be, on  the  resolution  being           agreed to by the Council; and      (b) may be withdrawn at any time by           the governor,      Explanation --  where the Houses of      the legislature of a State having a      Legislature of  a  State  having  a      Legislative Council are summoned to      re-assembly on different dates, the      period  of   six  weeks   shall  be      reckoned from  the latter  of those      dates  for  the  purposes  of  this      clause.      (3)........."      In writ  petition under  Article 32 of the Constitution in D.C.  Wadhwa vs.  State of  Bihar (1987  (1) SCC 378) the question before  this Court  was: Can  the  Governor  go  on repromulgating the  Ordinance for  an indefinite  period  of time and  thus  take  over  to  himself  the  power  of  the

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legislature to  legislate though  that power is conferred on him under  Article 213  only for the purpose of enabling him to take  immediate action  at a  time when  the  legislative assembly of  the State  is not  in session or when in a case where there  is a  legislative council  in the  State,  both Houses of  legislature are  not in  session. The petitioners therein had  challenged the  validity of the practice of the State  of   Bihar  in   promulgating   and   re-promulgating Ordinances  on  a  massive  scale  and  in  particular  they challenged the  constitutional validity  of three  different Ordinances. At  the time  of filing  the writ  petitions the Ordinances were in force and during the pendency of the writ petitions  only   on  of   the  ordinances  which  had  been repromulgated was  still in  force, it  was contended before the Court that the question raised before it was academic in nature and need not be adjudicated upon. Since one ordinance was still  in force  and the  question raised  in  the  writ petitions was  of  highest  constitutional  importance  this Court said  that it  must decide the issue on merit in order to afford  guidance to the governor in exercise of his power to  repromulgate   ordinances  from   time  to  time.  After examining numerous  ordinances issued  by the State of Bihar the Court was of the view that it seemed that the Government of Bihar  made it a settled practice to go on repromulgating the  ordinances   from  time  to  time  and  this  was  done methodologically and  with a  sense of  deliberateness.  The Court found  that immediately  at  the  conclusion  of  each session of  the State  legislature a circular letter used to be sent  by the  Special  Secretary  in  the  Department  of Parliamentary Affairs to all the Commissioners, Secretaries, Special Secretaries, Additional Secretaries and all Heads of Departments intimating  to them  that  the  session  of  the legislature had  been got  prorogued and  that under Article 213 clause  (2) (a)  of the  Constitution all the Ordinances would cease  to be  in force  after six weeks of the date of re-assembly  of   the  legislature   and  that  they  should therefore get in touch with the Law Department and immediate action  should  be  initiated  to  get  "all  the  concerned Ordinances repromulgated",  so that all those Ordinances are positively repromulgated  before the  date of  their expiry. The Court  also noticed  that this circular letter also used to advise  the officers  that if  the  old  Ordinances  were repromulgated in  their original form without any amendment, the approval  of the  Council  of  Ministers  would  not  be necessary. This  Court  reproduced  such  a  letter  in  its judgment. The Court quashed the Ordinance which was in force at the  time of  the judgment.  The Court then observed that the only  question before  it was  that whether the Governor had power  to repromulgate  the same  Ordinance successively without bringing it before the legislature. It said:-      " That  clearly the Governor cannot      do. He  cannot  assume  legislative      function in  excess of the strictly      defined  limits   set  out  in  the      Constitution because  otherwise  he      would be  usurping a function which      does  not  belong  to  him.  It  is      significant to  note that so far as      the   President    of   India    is      concerned, though  he has  the same      power of issuing an ordinance under      Article 123  as  the  Governor  has      under Article  213, there  is not a      single  instance   in   which   the      President  has,   since  1950  till

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    today, repromulgated  any Ordinance      after  its  expiry.  The  startling      facts which  we have narrated above      clearly show  that the executive in      bihar has  almost  taken  over  the      role of  the legislature  in making      laws, not for a limited period, but      for years  together in disregard of      the   constitutional   limitations.      This is  clearly  contrary  to  the      constitutional scheme  and it  must      be held to be improper and invalid.      We  hope   and  trust   that   such      practice shall  not be continued in      the future and that be continued in      the future  and  that  whenever  an      Ordinance   is    made   and    the      government wishes  to continue  the      provisions  of   the  Ordinance  in      force after  the assembling  of the      legislature, a Bill will be brought      before the legislature for enacting      those provisions into an Act. There      must not  be Ordinance-Raj  in  the      country.      It will  be seen  that this Court in strongest possible words disapproved  the practice  adopted  by  the  State  in successively repromulgating the Ordinances. The judgment was delivered in  this case  on December 20, 1986. It seems that it had  no effect  on the State of Bihar as the present case shows  that   the  practice   of  repromulgating   the  same Ordinances successively  is continuing  with impunity by the State of Bihar. The hope which this Court expressed has been belied. This court will certainly look sternly and come down with heavy  hand on  any action of the State in violation of the constitutional provisions.      In State  of Orissa  vs.  Bhupendra  Kumar  Bose  (1962 Supp.(2) SCR  380 )  the High  Court set aside the elections held for  Cuttack Municipality  on the ground that electoral rolls  had   not  been   prepared  in  accordance  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 was  promulgated on  January 15,1959 and it lapsed on  April   1,  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 the respondents that  since the Ordinance having lapsed on April 1, 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 this  Courts 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 vs.  The State  of Madras

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(1951 SCR  621)  that  the  general  rule  in  regard  to  a temporary  statute  is  that,  in  the  absence  of  special provision 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 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:-      "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      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.      In our  opinion, it  would  not  be      reasonable to hold that the general      expiration of  a temporary  Act  on      which   Mr.    Chetty   relies   is      inflexible and  admits of  no  that      offences     committed      against      temporary acts  must be  prosecuted      and   punished   before   the   Act      expires. If  a prosecution  has 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  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

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    rule. If  the right  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  would      survive  the   expiration  of   the      statute. That  appears  to  be  the      true legal position in the matter. 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      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  want   to   the   rights      created    by     the    validating      provisions, it  would be  difficult      to accept  the contention  that  as      soon as  the Ordinance  expired the      validity of  the 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  created  by      this Ordinance are, in our opinion,      very similar  to  the  rights  with      which the  court was dealing in the      case of  Stevenson 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      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  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  vs. State of Andhra Pradesh (1985

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(3) SCR 509)  the post of various part-time village officers were abolished  by the  Andhra 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 7/84, 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 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  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 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 six  weeks from  the re-assembly      of parliament,  it cannot  be  said      that either  Houses can  be avoided      by 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  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 vs. Union of India (1982 (1) SCR 947) and A.K. Roy vs. Union of India  (1982 (2)  SCR  272)  and  said  that  both  these

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decisions fairly  established that  the Ordinance is a "Law" and should  be approached  on that  basis. It  said that the language of  clause 92)  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 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 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 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  under  that      Article shall  have the  same force      and  effect   as  an   Act  of  the      Legislature of  the State  assented      to by  the Governor  but every such      Ordinance (a)  shall be laid before      the  Legislative  Assembly  of  the      State,  or,   where  there   is   a      Legislative Council  in the  State,      before both  the Houses  and  shall      cease to  operate at the expiration      of six  weeks from  the re-assembly      of the Legislature or if before the      expiration   of   that   period   a      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      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

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    abolishes  the  post  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-      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      separated,  provision  is  made  in      section 5  of the  ordinance of 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      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 213,  the effect of      section  3  of  the  Ordinance  was      irreversible  except   by   express      Legislation." The Court  also referred to its earlier decision in State of Orissa vs.  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 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  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

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    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."      In S.R.  Bommai and  ors. vs.  Union of India (1994 (3) SCC 1), the question with fell for consideration before this Court was  whether the  president has  unfettered powers  to issue   proclamation    under   Article   356(1)   off   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. and  S.C. Agrawal, J. by separate judgements, said  that the  answer to  the question depended upon the answers tot he following questions:- (a)  Is the proclamation amenable to judicial review ? (b)  If yes,  what is  the scope  of the  judicial review in      this respect? 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)? 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   power    to    dissolve    the      Legislative Assembly  of the  State      by using his power under sub-clause      (a) of  clause (1)  of Article  356      till the  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 (1)      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  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 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 t  a particular case

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    pertains   to   the   discretionary      jurisdiction of the Court." 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    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  period  of  two      months do  not  become  illegal  or      void. They are, however, illegal or      void. they are, however, subject to      review, repeal  or modification  by      the Government/Legislative Assembly      or other competent authority."         xxxxxxxxxxxxxxx xxxxxxxxx      " If  the court  strikes  down  the      proclamation, it  has the  power to      resource 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      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  vs. Oliver  [1841) 151 ER 1024] which has been relied upon by this Court, has been discussed in "Craies  on Statute  Law "  (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 nay further      effect.     Therefore,     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

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    T.L.R 280]  Roche J. held he had no      jurisdiction to  hear appeals  from      Munitions Tribunals  in 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   f  a      temporary Act  and the  repeal of a      perpetual Act  is  pointed  out  by      Parke B.  in 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      (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  1,      1826; an  it was  contended that  a      person who  under the  Act entitled      to  practice  as  apothecary  would      lose  his  right  after  August  1,      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      should be  entitled  to practice as      apothecaries, and we cannot engraft      on the  statute & new qualification      limiting that enactment."      Following  propositions   emerge  from   the  aforesaid decisions of  the Supreme  court, relevant  to  the  present case; (1)  It is  fairly established  that Ordinance  is the "law" and should be approached on that basis. (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  Ordinance should be clothed with all the attributes of an Act of legislature carrying with it all  its   incidents,  immunities   and  limitations   under 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

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right 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 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 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. (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. (10)  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 limitations.      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 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 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  if  the  school  was  found  to  be  not  in existence there would be no taking over and only that 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) 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 would get automatic status of  Government servants  and even  taking over of the

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schools was not automotive 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, niter  the  acquisition  of  the school was  complete not  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 repealed  previous Ordinance and provided that any  thing contained  or any  action  taken  under  the previous ordinance  shall be  "deemed to  have been  done or taken in  exercise of  the powers  conferred 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  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   Ordinance  made   a  complete  acquisition  and purported to  confer status  of Government  servants on  the employees still  the said  level 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 of the view that the decisions of this Court in State  of Orissa  vs. B.K.  Bose (1962 Supp. (2) SCR 380) and T.  Venkatareddy vs.  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 operate" has  been used.  reference was  then made by him to the case  of S.R.  Bommai and  ors. vs. Union of India (1994 (3) SCC 1) which as noted about 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.      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 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. 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 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 the

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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?,  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 forth 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 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  vs. 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 was void. Referring to a decision of this  Court in Prabodh Verma and others etc. vs. State of Uttar Pradesh  and others  etc., 1985  (1) 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  case was  on Article  356 of the Constitution and that  this Court  would be  bound  by  its  earlier  two Constitution Bench  decisions in Bhupender Kumar 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 enquiries had  been 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 Governor  is  rather  unusual  as  it  is legislative’s function  to make  laws.   The Executive is to implement those  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

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power  Dr.  B.R.  Ambedkar,  Chairman,  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?  Th      executive has  got a  new situation      which     it  must   deal  with  ex      hypothesis.  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      hypothesis, 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 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.      If we  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 development of  Sanskrit education  in the  State of  Bihar. Preamble of  the  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

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standard,  staffing   patterns  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  terminate. On  these two clauses, which to my  mind are  explicit  and  leave  no  doubt  whatsoever argument was  sought to  be raised  by Mr.  Twined 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  patten 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 appear to be more in desperation than to meet the situation which was sought to be created by promulgating the first Ordinance.      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 can  never be  repromulgated if  there 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 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  under   the same which power the legislature did possess,  the effect  of the  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 original  owner.  The  only  consideration  to  examine  the Ordinance is  to see  if the effect is of an enduring nature

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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  no only  took over  the management 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 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 -      (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      (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.      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  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. vs. State of Bihar and ors. (1987 (1) 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 213(2) of the Constitution. I am not saying that an Ordinance cannot be repromulgated at all if  circumstances so exit 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  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

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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  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 vs.  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 person would not be deprived of the 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, 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 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   7-1/2  months.  Considering  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

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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 brining 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 the case of D.C. Wadhwa and ors. vs. 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  having   to   fact   the Legislature and  acted in an unconstitutional manner. I face no  difficulty   in  striking   down   all   the   Ordinance 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 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  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 vs. Oliver (151 ER 1024) 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 of the Ordinance.      In the  circumstances I  would hold  that the Ordinance 32/1989 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

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they are  all entitled  to same pay-scales as any Government servant holding  equivalent posts.  The  properties  of  the school, their  governing 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 Court stands modified to the extend aforesaid.                          O R D E R      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 1st ordinance is also  invalid and  cannot be  delinked  from  the  chain. Further, even  if the  1st ordinance  is valid,  its  effect cannot last  beyond its life-time. Wadhwa, J. is of the view that the  1st 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  may be  placed before  the  Hon’ble  the  Chief justice of India for constituting a larger bench.