REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5875 OF 1994 KRISHNA KUMAR SINGH & ANR. .....APPELLANTS VERSUS STATE OF BIHAR & ORS. ....RESPONDENTS WITH CIVIL APPEAL NOS. 5876-5890 OF 1994 WITH WRIT PETITION (C) NO. 580 OF 1995 AND CIVIL APPEAL NOS. 3533-3595 OF 1995

J U D G M E N T

Madan B. Lokur, J.

1. Having carefully read the erudite judgment prepared by brother Chandrachud, I regret my inability to agree that laying an Ordinance promulgated by the Governor of a State before the State Legislature is mandatory under Article 213(2) of the Constitution and the failure to lay an Ordinance before the State Legislature results in the Ordinance not having the force and effect as a law enacted and would be of no consequence whatsoever. In my opinion, it is not mandatory under Article 213(2) of the Constitution to lay an Ordinance before the Legislative Assembly of the State Legislature, nor would the failure to do so result in the Ordinance not having the force and effect as an enacted law or being of no consequence whatsoever.

2. Further, in my opinion, an Ordinance cannot create an enduring or irreversible right in a citizen. Consequently and with respect, a contrary view expressed by this Court in State of Orissa v. Bhupendra Kumar Bose¹ and T. Venkata Reddy v. State of Andhra Pradesh, [2(1985) 3 SCC 198 – Bench of 5 Judges] requires to be overruled. In overruling these decisions, I agree with brother Chandrachud though my reasons are different.

3. As far as the re-promulgation of an Ordinance is concerned, I am of opinion that the re-promulgation of an Ordinance by the Governor of a State is not per se a fraud on the Constitution. There could be exigencies requiring the re-promulgation of an Ordinance. However, re-promulgation of an Ordinance ought not to be a mechanical exercise and a responsibility rests on the Governor to be satisfied that “circumstances exist which render it necessary for him to take immediate action” for promulgating or re-promulgating an Ordinance.

4. Finally, I am of the view that in the absence of any challenge by the employees to the first three Ordinances promulgated by the Governor of the State of Bihar, their validity must be assumed. Consequently, even though these three

11962 Supp (2) SCR 380 – Bench of 5 Judges

Ordinances may have been repealed, the employees would be entitled to the benefits under them till they ceased to operate and the benefits obtained by the employees under these three Ordinances are justified. However, these three Ordinances do not confer any enduring or irreversible right or benefits on the employees. The promulgation of the fourth and subsequent Ordinances has not been adequately justified by the State of Bihar in spite of a specific challenge by the employees and therefore they were rightly struck down by the High Court. Therefore, I partly agree with brother Chandrachud on the issue of the validity of the Ordinances.

5. The facts relating to these appeals have been detailed by brother Chandrachud and it is not necessary to repeat them. All that need be said is that in terms of Article 154 of the Constitution the executive power of the State shall be vested in the Governor of the State and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. In terms of Article 168 of the Constitution every State shall have a Legislature which consists of the Governor of the State and in the case of some States, two Houses and in the other States, one House. Where there are two Houses of the Legislature, one shall be known as the Legislative Council and the other shall be known as the Legislative Assembly. We are concerned with the State of Bihar which has two Houses of the Legislature.

Promulgation of an Ordinance

6. Article 213 of the Constitution provides that when the Governor of the State is satisfied that “circumstances exist which render it necessary for him to take immediate action, h