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1994 Supreme(Pat) 91
HIGH COURT OF PATNA
S. B. Sinha and R. N. Prasad, JJ.
Subhash Chandra and Ors. - Petitioners
Versus
The State of Bihar and another (in all the applications) - Respondents
Civil Writ Jurisdiction Case Nos. 7399 of 1990, 10786, 12532 of 1992, 3435 of 1993, 13286 of 1992, 3789 of 1993, 398/93, 402/1993, 10349 of 1992, 12502 of 1992, 11917 of 1992, 1962 of 1993, 11530/92, 11199 of 1992, 10780 of 1992, 10438/92, 10425/92, 10293/92, 10097/92, 10096/92, 9980/92, 9626/92, 12242/92, 2600/1993, 57/1993, 1202/1993, 13135/1992, 141/1993, 1963/1993, 2032/1993, 12527/1992, 13011/1992, 5460/1993, 3840/1993, 5072/1993, 5037/93, 10924/1992, 10346/1992, 8943/1992, 7586/1992, 8401/1992, 8442/1992, 10235/1992, 8994/1992, 10785/1992, 12526/1992, 801/1993, 5644/1993, 1519/1993, 1518/1993, 1198/1993, 13334/1992, 13300/1992, 12891/1992, 12325/1992, 12444/1992, 13305/1992, 12510/1992, 5142/1993, 1739/93, 7844/90, 4982/93, 9625 of 1992.
Decided on: 3.3.1994
For the Petitioners: M/s Mihir Kumar Jha & Pradeep Kr. Paul (in 13305/92, 13300/92, 10786/92, 11199/92, 10785/92); Vinod Kumar Sinha, Arun Kr. Arun & Lal Narayan Singh (in 13334/92, 8401/92, 8442/92, 10235/92, 1198/93, 12532/92, 10924/92, 10346/92, 7586/92); Amrendra Kumar Sinha No. 1 & Anil Kumar Upadhayay (in 13286/92, 12527/92, 1739/93); Shambhu Sharan Singh & Naresh Kr. Malhotra (in 3435/93, 398/1993, 12242/1992, 2032/93, 3840/93, 8994/92); Anand Sharma & Surendra Singh (in 3789/1993); Rekha Mukund & Pravin Kr. Sinha (in 402/93); Indu Bala Jha & Subodh Kr. Jha (in 10349/1992); Bashishtha Mishra (in 12502/92, 12526/92); Gajendra Kr. Jha & Shanti Pratap (in 1519/93, 111917/92, 5037/93, 1518/93) Subash Kishore Verma (in 1962/93, 11530/92, 10438/92, 10425/92, 12325/92, 10096/92, 9980/92, 9626/92, 57/1993, 1963/93); Bijay Kr. Pandey & Sanjay Kr. Singh (in 10780/92, 10293/92); K. M. Srivastava & M. N. Thakur (in 10097/1992); Medni Kant Jha (in 2600/1993); Dilip Kr. Tewari (in 1202/93); V. M. Sinha (in 13135/1992); Hemant Kr. Jha, Prashant Kr. Jha & Prabhat Kr. Jha, (in 141/93, 12510/92, 801/93, 12444/92); Santosh Kr. Sinha No. 2 & Vijay Kr. Verma (in 13011/92); Durga Nand Jha (in 5460/93, 12891/92); Suresh Kr. Ishwar (in 5072/1993); Ambar Nath Banerjee (in 8943/1992); Subhro Sanyal (in 5644/1993); Janardan Pd. Singh (in 7399/1990); Suresh Kumar (in 5142/1993).
For the Respondents: M/s Ram Balak Mahto & P. N. Jha (In all the petitions).
Successive promulgation of Ordinances is malafide and the life of an Ordinance can be shortened but it cannot be extended.
Headnote:
The Court held that the Ordinances re-promulgated by the State again and again are illegal and thereby the petitioners cannot be said to have derived any legal right to continue in the State Service. The Court further held that the teachers who come within the purview of the sanctioned strength they have only been paid their salary for a period of one year. The Court also held that the petitioners are also entitled to get the salary as Government servant till 31.4.1992 i.e. so long Ordinance No. 14 of 1990 was valid.
Fact of the Case:
The petitioners, teaching and non-teaching staff of various Sanskrit Schools in Bihar, filed writ petitions challenging the validity of various Ordinances promulgated by the State Government for taking over the management and control of Sanskrit Schools, and seeking payment of salary and other emoluments.
Finding of the Court:
The Court held that the Ordinances re-promulgated by the State again and again are illegal and thereby the petitioners cannot be said to have derived any legal right to continue in the State Service. The Court further held that the teachers who come within the purview of the sanctioned strength they have only been paid their salary for a period of one year. The Court also held that the petitioners are also entitled to get the salary as Government servant till 31.4.1992 i.e. so long Ordinance No. 14 of 1990 was valid.
Issues: 1. Whether the Ordinances re-promulgated by the State Government for taking over the management and control of Sanskrit Schools were valid? 2. Whether the petitioners, teaching and non-teaching staff of the Sanskrit Schools, were entitled to payment of salary and other emoluments?
Ratio Decidendi: 1. The Court held that the Ordinances re-promulgated by the State again and again are illegal and thereby the petitioners cannot be said to have derived any legal right to continue in the State Service. The Court relied on various Supreme Court judgments to hold that successive promulgation of Ordinances is malafide and that the life of an Ordinance can be shortened but it cannot be extended. 2. The Court held that the teachers who come within the purview of the sanctioned strength they have only been paid their salary for a period of one year. The Court also held that the petitioners are also entitled to get the salary as Government servant till 31.4.1992 i.e. so long Ordinance No. 14 of 1990 was valid.
Final Decision: The Court allowed the writ petitions in part and directed the State Government to pay all lawful dues to the petitioners with utmost expedition but not later than two months from the date of receipt of a copy of the judgment. The Court also directed the State Government to pay simple interest at the rate of 9% per annum on the outstanding dues to the petitioners.
S. B. Sinha, J. - The primary relief sought for in all these writ applications is payment of salary and other emoluments to the petitioners who are teaching and non-teaching staff of such Sanskrit Schools which were allegedly taken over by the State of Bihar for the period 1st December, 1988 and 31st March, 1989 and also for the subsequent periods as also for payment of dearness allowance etc. since 1983.
In some of the writ applications prayer has also been made for issuance of a writ of or in the nature of mandamus directing the State and its Officers as also Bihar Sanskrit Shiksha Board to determine and declare the Service Conditions of the teaching and non-teaching staff of 429 Sanskrit Schools.
In C.W.J.C. No. 7844 of 1990, sub-sections (1), (2) and (3) of Section 4 of Bihar Ordinance No. 21 of 1990 dated 13th August, 1990 is also in-question.
2. Before adverting to the questions involved in all these writ applications, it is necessary to consider the history of the legislation in the sphere of Sanskrit education by the State of Bihar.
3. In the State of Bihar, and particularly in the districts of Darbhanga and Madhubani, various Sanskrit Schools have been functioning for a long time, the existence of some of the schools goes back to the 20th Century. The imparting of education through the Sanskrit medium was done in tol Vidyalayas from the stage of Prathama up to Acharya. Many of Such tols were recognised by the State of Bihar.
The State constituted a body known as Bihar Sanskrit Association which was directly functioning under the control of the State of Bihar and the Directorate of the Public Instructions. The said association further used to grant affiliation to the schools for Acharya examination. There are various correspondences to show that the State had been exercising some kind of control over such schools. This fact will be borne out from a letter dated 11.2.1987 which is annexed as Annexure-1 to the CWJC No. 10786 of 1992.
According to the petitioners, the said schools were also being inspected by the authorities of the State of Bihar from time to time.
4. Provisions had also been made in Chapter II of the Bihar Education Code for control over all types of recognised Sanskrit Institutions namely Sanskrit Tol Vidyalayas in which students were taught from Pratharna to Acharya and in Prathamik Sanskrit Schools, teaching was imparted in Sanskrit in addition to Vernacular curricular up to lower and upper Primary standard. Such schools were under the control of the Bihar Sanskrit Association which also used to conduct examinations.
5. The control of these Vidyalayas was exercised through the said Bihar Sanskrit Association which consisted of two parts; namely the Sanskrit Parishad and the Sanskrit Council; each body having the same President and Secretary.
6. The Parishad was a larger body consisting of 16 members. The functions of the Council amongst others were (i) to conduct examinations, (ii) to issue titles and certificates (iii) to advise Government in regard to (a) the courses of studies for various Sanskrit examinations and in various classes of Sanskrit Institutions (b) The rules to be framed for Sanskrit examinations, (c) matters affecting Sanskrit Education generally and (d) to recognise and to propose for the approval of Government rules regulating their recognition and many other matters which are not relevant for the purpose of the present writ petition.
7. The Kameshwar Singh Darbhanga Sanskrit University Act (Act VI of 1960) carne into force on the 18th March, 1960. This Act defined Bihar Sanskrit Association in Section 2 (d) as the Sanskrit Association, constituted by the State Government for exercising control and superintendence over institutions other than tols imparting instruction in Sanskrit upto the Madhyama standard. By this Act, the University was given the power to award degrees and to hold examinations. Further the University was given the power of affiliation to Sanskrit institutions but i
