Very Important Point
In view of difference of opinion between the two Judges’ Bench of the Sup­reme Court regarding the constitutional validity of the 1st Ordi­nance viz., Bihar Non-Government Sanskrit Schools (Taking over of Management and Control) Ordinance 32 of 1989 and the effect of it on the status of the concerned teachers, the matters are placed before the Hon’ble Chief Justice of India for constituting a larger Bench.

Judgment

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.

2. These are cross appeals and 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 in 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 in the writ petitions that Sanskrit schools had been taken over by the State Government or that the petitioners had become Government servants and entitled to salaries and other benefits as the Government teachers. The High Court, however, granted limited 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 Ordinances re-promulgated again and again were illegal and that there was “Ordinance Raj” in the State of Bihar.

2. It is not necessary for me to give history of Sanskrit schools in the State of Bihar which were being run privately but had been recog­nised by the State and were being given grant-in-aid. The grant was being distributed to the teaching and non-teaching staff 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.

3. 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 same in 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 sessions;

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

Now, therefore, in exercise of the power conferred by clause (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 o