KRISHNA KUMAR SINGH & ANR versus STATE OF BIHAR & ORS.

I have had the advantage of reading the order proposed by my esteemed brother Dr. D.Y. Chandrachud, J. and the discordant note struck by MadanB. Lokur, J. to the same. The genesis of the controversy giving rise to this reference to a larger bench has been elaborately set out in the order proposed by Chandrachud, J. to which I can make no useful addition especially when the narrative is both lucid and factually accurate. All that I need mention is that the seminal question that crises for our consideration is whether seven successive repromulgations of The Bihar Non-Government Sanskrit Schools (Taking Over of Management and Control) Ordinance, 1989 suffer from any illegality or constitutional impropriety. The High Court of Patna has while dismissing the writ petition filed by the appellants seeking relief on the basis of the said ordinances held that the repeated repromulgation of the ordinances was unconstitutional. Relying upon the Constitution Bench decisi'Jn of this Court in D.C. Wadhwa and Ors. v. State qf Bihar and Ors. (1987) ·1 SCC 378, the High Court has dismissed the writ petition but protected the appellants against any recovery of salaries already paid to them.

p. 273, margin D

The present appeal filed to assail the view taken by the High Court was initially heard by a Two-Judge Bench of this Court comprising . Sujata V. Manohar and D.P. Wadhwa, JJ. who differed in their opinions resulting in a reference of the appeal to a bench of Three-Judges who in-turn referred the same to a bench of Five Judges. Since, however, doubts were raised about the correctness of the view expressed by this Court in two earlier Constitution Bench decisions in State of Orissa Bhupendra Kumar Bose ( 1962) Supp. 2 SCR 380 and T. Venkata Reddy v. State of Andhra Pradesh ( 1985) 3 SCC 198, the matter was referred to a bench of Seven-Judges for an authoritative pronouncement.

pp. 273–274, margin G

In the order proposed by Chandtachud, J., his Lordship has dealt with, at great length, several aspects that arise directly or incidentally for our adjudication and inter alia concluded that seven successive repromulgations of the first ordinance issued in 1989 was a fraud on the Constitution especially when none of the ordinances were ever tabled before the Bihar Legislative Assembly as required under Article 213(2) of the Constitution. I am in complete agreement with the view expressed by my esteemed brother Dr. Chandrachud, J. that repeated repromulgation of the ordinances was a fraud on the Constitution especially when the Government of the time appears to have persistently avoided the placement of the ordinances before the legislature. In light of the pronouncement of this Court in D.C. Wadhwa's case (supra), such repeated repromulgations were legally impermissible which have been rightly declared to be so by the High Court. Even Lokur, J. has, in the order proposed by His Lordship, found repromulgated ordinances to be unconstitutional except for the first three ordinances which, according to His Lordship, survive not because they were un~ffected by the vice of unconstitutionality but because they were not challenged by the petitioners. The need for such a challenge did not in my opinion arise. I say so with respect because the first, second and third ordinances stood repealed by the subsequent ordinances issued by the Government. At any rate, since the process of issuing the ordinances and repromulgation thereof was in the nature of a single transaction and a part of a single series on the same subject the vice of invalidity attached to any such exercise of power would not spare the first, second and the third ordinances which would like the subsequent ordinances be unconstitutional on the same principle. These ordinances provided the foundation for the edifice of the subsequent repromulgations. If the edifice was affected, there is no way the foundation could remain unaffected by the vice ofunconstitutionality. I would in that view agree with the conclusion drawn by Chandrachud, J. that the ordinances in A question starting with Ordinance 32 of 1989 and ending with Ordinance 2of1992 were all constitutionally invalid, the fact that none of them was ever placed before the State legislature as required under Article 213 (2) of the Constitution of India, lending support that conclusion.

pp. 274–275, margin B

The next question then is whether ordinances issued by the B Government in exercise of its powers under Article 213 or for that matter 123 can create enduring rights in favour of individuals affected thereby. I agree with the concurring views expressed by Lokur and Chandrachud, JJ. that the nature of power invoked for issuing ordinances does not admit of creation of enduring rights in favour of those affected by such C ordinances. I also agree with the view that the Constitution Bench decision in Bhupendra Kumar Bose and T. Venkata Reddy (supra) to the extent the same extended the theory of "creation of enduring rights" to legislation by ordinances have not been correctly decided and should stand overruled. lt follows that the ordinances issued in the instant case could not have created any enduring rights in favour of Sanskrit D school teachers particularly when the ordinances themselves were a fraud on the Constitution. The High Court and so also the views · expressed by my esteemed brothers Madan B. Lokur and Chandrachud, JJ. on this aspect are in my opinion legally unexceptionable.

p. 275

That brings me to the question whether the benefit of salaries E drawn by Sanskrit school teachers covered by the ordinances can be reversed and the amount so received by them, recovered by the State Government. Lokur, J. has taken the view that since the first three ordinances are valid, anything received by them dming the currency of the said ordinance cannot be recovered. Chandrachud, J. has also in conclusion directed that no recovery of salaries which have been paid F shall be made from any of the employees. I concur with that direction, for in my opinion teachers who were paid their salaries under the ordinances and who organised their lives and affairs on the assumption and in the belief that the amoimt paid to them was legitimately due and payable cannot at this distant point of time be asked to coi1gh up the G amount disbursed to tlfem. Payments already made shall not accordingly be recoverable from those who have received the same.

p. 275

The order proposed by Chandrachud, J. also deals with several other aspects including the question whether the obligation to place an ordinance before the legislature in terms of Article 213 and 123 is H mandatory and whether non-placement of ordinances before the Parliament and the State legislature as the case may be would itself constitute a fraud on the Constitution. While Chandrachud, J. has taken the view that placing of the ordinances is an unavoidable Constitutional obligation and the breach whereof affects the efficacy of the ordinances, Lokur, J. has taken a different view. In my opinion, the question whether placing the ordinance before the legislature is mandatory need not be authoritatively decided as this appeal and the Writ Petitions out of which the same arises can be disposed of without addressing that question. Regardless whether the requirement of placing the ordinance is mandatory as held by Chandrachud, J. or directory as declared by Lola.Jr J ., the repeated repromulgation of the ordinances were in the light of the pronouncement of this Court in D.C Wadhwa's case constitutionally impermissible and a fraud on the powers vested in the executive. If that be so, as appears to be the case, the question whether the placement of the ordinances will per se render it unconstitutional, need not be gone into. There may indeed be situations in which a repromulgation may be necessary without the ordinances having been placed before the legislature. Equally plausible is the argument that the constitution provides for the life of ordinances to end six weeks from the·date ofre-assembly of the legislature, regardless whether the ordinances has or has not been placed before the house. The three scenarios which Lokur, J. has referred to in his order are real life possibilities and ought to be addressed without giving rise to any anomalies. This may require a deeper deliberation which can be undertaken in an appropriate case. Non-presentation of the ordinances before the State Legislature was, at any rate, only a circumstance to show that the executive had invoked the power vested in it without complying with the concomitant obligation of placing the ordinances before the legislature even when it had the opportunity to do so. The High Court was therefore right in holding that no relief on that basis could be granted to the writ petitioners. I would, in that view, leave the question of interpretation of Articles 123 (2) and 213(2) in so far as the obligation of the Government to place the ordinance before the Parliament/legislature open. With these few lines the reference shall stand answered in terms of what is proposed by brother Chandrachud, J.

pp. 275–276