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

Citation: [2017] 5 S.C.R. 160 · Decided: 01-01-2017 · Supreme Court of India · Bench: T.S. THAKUR · Disposal: Reference answered

Cited by 5 judgment(s) · cites 8 · see the full citation network in Lexace

Judgment (excerpt)

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[2017] 5 S.C.R. 160 
KRISHNA KUMAR SINGH & ANR 
v. 
STATE OF BIHAR & ORS. 
(Civil Appeal No. 5875of1994) 
JANUARY 01, 2017 
[T. S.THAKUR, CJI, MADAN B. LOKUR, S. A. BOBDE, 
ADARSH KUMAR GOEL, UDAY UMESH LALIT, 
DR. D. Y. CHANDRACHUD AND 
L. NAGESWARA RAO, JJ.) 
Constitution of India: 
Art.2 I 3 - Promulgation of Ordinances one after another in 
succession but none of them laid before the legislature - In the 
instant case, Governor of Bihar promulgated an Ordinance 
D providing for taking over of 429 Sanskrit schools in the State - The 
services of teachers and other employees of the school were to stand 
transferred to the state government subject to certain conditions -
The first Ordinance was followed by a succession of Ordinances -
None of the Ordinances, which were issued in exercise of the power 
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·of the Governor under Art.213 were placed before the state 
legislature as mandated - Validi(v of the Ordinances - Held: Every 
ordinance at issue constituted a fraud on constitutional power -
These ordinances which were never placed before the state 
legislature and were re-promulgated in violation of the binding 
judgment of Supreme Court in D C Wadhwa were bereft of any legal 
effect and consequences -
The ordinances did not create any rights 
or confer the status of government employees on the teachers and 
other employees of the schools - However, as regard the salaries 
paid during .the tenure of the ordinances pursuant to the directions 
made in the judgment of the High Court, no recoveries to be made 
from any of the employees - Ordinance Raj-Bihar Non-Government 
G Sanskrit Schools (Taking Over of Management and Control) 
Ordinance, 1989 - Service law. 
(Per majority) 
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Art.213 - Promulgation of Ordinances during recess of 
legislature - Requirement under - Held: The authority which is 
conferred upon the Governor to promulgate Ordinances is 
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KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 
161 
conditioned by two requirements - The first is that an Ordinance 
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can be promulgated only when the state legislature is not in session 
- The second requirement is that the Governor. before issuing an 
Ordinance has to be satisfied of the existence of circumstances 
rendering it necessary to take immediate action - The Governor is 
required to form a satisfaction of the existence of circumstances 'i3 
which makes it necessary to take immediate action - Necessity is 
distinguished from a mere desirability - The expression "necessity,. 
coupled with "immediate action" conveys the sense that it is 
imperative due to an emergent situation to promulgate an Ordinance 
during the period when the legislature is not in session - Both these 
requirements indicate a constitutional intent to confine the power C 
of the Governor to frame Ordinances within clearly mandated limits. 
(Per majority) 
Art.213(1) - Circumstances in which the Governor cannot 
promulgate an Ordinance without the instructions of the President 
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The three situations where the instructions of the President are 
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required are: Where a Bill containing the same provisions requires 
the previous sanction of the President, for its introduction into the 
legislature; where a Bill containing the same provisions would be 
deemed necessary by the Governor for being reserved for 
consideration of the President; and where a law enacted by the 
state legislature containing the same provisions would require the 
assent of the President, failing which it would be invalid. (Per 
majority) 
Art.213 - Requirement of laying an Ordinance before the state 
legislature is mandatory- The expression "shall be laid" is a positive 
mandate which brooks no exceptions -
That the word 'shall' in 
sub-clause (a) of clause 2 of Art. 213 is mandatory, emerges from 
reading the provision in its entirety. (Per majority) 
Art.213 - Tenure of an Ordinance - Though the Constitution 
contemplates that an Ordinance shall have the same force and effect 
qs a law enacted by the state legislature, this is subject to the 
Ordinance being laid before the state legislature and coming to an 
end in the manner stipulated in sub-clauses (a) and (b) - It is brought 
to an end : By the Ordinance ceasing to operate upon the expiry of 
a period of six weeks of the reassembly of the legislature; or if the 
Ordinance is disapproved by a resolution of the state legislature in 
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162 
SUPREME COURT REPORTS 
[2017] 5 S.C.R. 
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which event it ceases to operate on the resolution 

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