Tarkeshwar Dubey And ANR v. The State Of Bihar And ORS

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.4035 of 2012 ======================================================

1. Tarkeshwar Dubey Son Of Sh. Ramjanam Dubey R/O At & P.O.- Usti, P.S.- Baniyapur, District- Chapra

2. Dineshwar Prasad Singh Son Of Sh. Devendra Prasad Singh R/O At & P.O.- Affaur, P.S.- Khaira, District- Chapra ... ... Petitioner/s

Versus

1. The State Of Bihar ,THROUGH The Principal Secretary, Secondary Education Department , Govt. Of Bihar, Patna

2. The Special Director, Secondary Education- (SANSKRIT), Govt. Of Bihar, Patna

3. The Bihar Sanskrit Siksha Board, Through Its Secretary, Having Its Office At Boring Canal Road, East, Patna

4. The Chairman, Sanskrit Shiksha Board, Boring Canal Road, East Patna

5. The Secretary, Sanskrit Shiksha Board, Boring Canal Road, East Patna

6. The Head Master Of Sharda Sanskrit Prathamik Sah Madhyamik Vidyalaya, Affaur, Saran ... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s :

Mr. Archana Jha For the Respondent/s :

Mr. Vinay Kriti Singh Sc5 ====================================================== CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY ORAL JUDGMENT Date : 02-07-2018 Heard Ms. Narmata Mishra, learned counsel appearing on behalf f the petitioners.

In view of the judgment of the Apex Court reported in (2017)3 the claim of the petitioners has to be examined by the Sanskrit Shiksha Board and the State strictly in accordance with discussion of the Apex Court in para-177 to 181 which is quoted below for ready reference:- "177. All the Ordinances have ceased to operate and nothing done under them now survives after they have ceased to operate. The validity of the

2/4 first three Ordinances was not challenged by the employees. There is no material before us, one way or the order, to hold that the promulgation of the first Ordinance and its repromulgation by the second and third Ordinances is invalid. Therefore, one can only assume that the first three Ordinances are valid and the employees are entitled to the benefits under them till the date these Ordinances ceased to operate and not beyond, since these Ordinances were not replaced by an Act of the State Legislature. I may mention, en passant, that it is not every repromulgation of an Ordinance that is prohibited by D.C. Wadhwa v. State of Bihar. There is no universal or blanket prohibition against repromulgation of an ordinance, but it should be a mechanical repromulogation and should be a very rare occurrence.

Additionally, a responsibility is cast on the Governor of a State by the Constitution to promulgate or repromulgate an Ordinance only if he is satisfied of the existence of circumstances rendering immediate action necessary. There could be situations, though very rare, when repromulgation is necessary, but it is not necessary for me to delve into this issue in sofar as the first three Ordinances are concerned.

178. Only the fourth and subsequent Ordinances were challenged by the employees. As far as the fourth and subsequent Ordinances are concerned, their promulgation and repromulgation was not adequately justified by the State of Bihar despite a specific challenge. There was no immediate action required to be taken necessitating the

3/4 promulgation of the fourth Ordinances and its repromulgation by subsequent Ordinances. I agree that the fourth Ordinance and subsequent Ordinances should be struck down.

179. In the absence of any challenge to the first three Ordinances and since I have assumed that these three Ordinances are valid, the benefit given to the employees (such as salary and perks) by these Ordinances till they ceased to operate, are justified. However, these three Ordinances did not and could not grant any enduring or irreversible right or benefits to the employees and the employees did not acquire any enduring or irreversible right or benefits under these three Ordinances. Any right or benefits acquired by them terminated when the Ordinances ceased to operate.

180. Despite a specific challenge made to the fourth and subsequent Ordinances, the State of Bihar has not justified their promulgation. They are, therefore, struck down.

181. The directions given by the High court for payment of salary (if not already paid) and interest thereon need not be disturbed. The reference is answered accordingly."

Accordingly, the respondents are directed to take decision in accordance with law laid down by the Apex Court in the judgment reproted in (2017)3 (Supra) within a maximum period of three months from the date of receipt/production of a copy of this order.

4/4 With the aforesaid, the writ application stands disposed of.

(Anil Kumar Upadhyay, J) Ravi/- AFR/NAFR NAFR CAV DATE N/A Uploading Date 10.07.2018 Transmission Date