In its one of the last 7 bench judgment under Justice T S Thakur regime, Supreme Court declared re-promulgation of ordinance as an act of fraud on constitution. Moreover court also observed that “the satisfaction of the president under Article 123 and the Governor under Article 213 is not immune from judicial review”. The context of order not only puts a question mark on the functioning of a government but also caters an element of confusion in thousands of teaching and non-teaching staffs of Sanskrit Schools of Bihar.
Before the Kameshwar Singh Darbhanga Vishwa Vidyalaya Act, 1960 which dissolved Bihar Sanskrit association and acquired power to hold examinations for prathama and Madhyama(classX equivalent) standards, there was no legislation relating to Sanskrit education in the State of Bihar. The power of recognition of Sanskrit Schools up to Madhyama Standard was given to the Sanskrit Shiksha parishad ( The Board of Sanskrit Education) constituted under the Act. Later this act was replaced by The Sanskrit University Act 1965 which retained the functioning of The Board of Sanskrit education at the school level.
And after this, act after act kept coming into force to decide the fate of Sanskrit education in Bihar(The Sanskrit University Act, 1965, the Bihar State University Act, 1976, the Bihar Sanskrit Education Board Act 1981). In 1989, there were 651 Sanskrit Schools under the Bihar Sanskrit shiksha Board (Bihar Sanskrit Education Board) which were receiving grants-in-aid from the State Government for meeting the expenditure on salary of teachers and staff for the number of posts prescribed or sanctioned by the Government for each school. The only vital point to note down here was that the grants were disbursed to schools through BSEB according to the pay-scales, D.A. rates and staffing pattern laid down by the Government for this purpose which were very low compared to other government run primary, secondary or high schools.
An era of Ordinance raj
Through Ordinance 32 of 1989, promulgated by Government of Bihar management and control of 429 out of 651 Sanskrit schools were taken over by government which mentioned that “Teachers of the Sanskrit Schools taken over by the Government shall be entitled to the same pay, allowances and pension etc. as are admissible to teaching and non-teaching employees of the taken over Secondary Schools of Bihar."
However Ordinance 32 of 1989 was replaced on 28.2.1990 by Ordinance 7 of 1990 which, in turn, was replaced on 2.5.1990 by Ordinance 14 of 1990 further replaced on 12.8.1990 by Ordinance 21 of 1990. Continuous promulgation and re-promulgation of ordinance not only withered the elemental faith in government’s decision making capacity but also created a fog of suspicion in the Sanskrit school staffs. Two broad new things that the 4th and last among the series of ordinance mentioned were : a) A committee to investigate and decide if a school is fit to be taken under control of government and b) determination of the pay, salary allowances and other service condition for them will be government’s decision.
Later the 4th Ordinance was replaced on 8.3.1991 by Ordinance No. 10 of 1991 later replaced on 8.8.1991 by Ordinance 31 of 1991 and further, in turn, replaced on 21.1.1992 by Ordinance 2 of 1992 which was the last Ordinance. It expired on 30th of April, 1992. All these ordinance were similar in terms as that of 4th Ordinance.
The question is why government attempted to act through promulgation of ordinance when a routine legislative was functioning? Since an ordinance is promulgated with aid and advice from council of ministers under an urgency of situation, it very profanely imply that government was focused to take over the management and control of Sanskrit schools. And if so then why even after the expiry of last ordinance, no attempts has been made by legislature to take care the fate of Sanskrit school teaching and non-teaching staffs in a state which boasts of invaluable contribution to Sanskrit literature? The name ‘Bihar’ itself is derived from a Sanskrit word ‘Vihara’. Having said that here, an excuse of changing policy towards Sanskrit due to change in political regime can’t be valid as 5 out of 7 ordinances were promulgated and re-promulgated under the regime of Janta dal (Lalu Prasad Yadav) government.
A judgment where both party lost
Though honorable Patna High court denied the government status of Sanskrit school staffs post expiry of last ordinance (30th of April, 1992), it asked Government of Bihar to disburse salaries to Sanskrit school staffs as Government servants from the date of the first Ordinance till the date of the expiry of the last Ordinance on 30th of April, 1992. This and High court’s finding that Ordinances re-promulgated by the State again and again are illegal aggrieved State to file a petition in Supreme Court. On the other hand number of teachers challenged court’s perception which denied the government status to Sanskrit schools post 30th of April 1990. Under the common question of law and fact all these appeals were heard by Honorable Supreme Court in series of hearing speared over two decades and a final judgment came on 2nd January 2018 via a seven Judge Bench headed by Justice T S Thakur.
The majority (6 out of 7) believed that an Ordinance can’t create an irreversible right in the citizens and hence there is no question of government status (even till 30th of April, 1992 as the guidelines vested in 2nd ordinance and others were never met to take over management of Sanskrit schools and 1st Ordinance can have a maximum 6 week life). Further Honorable Supreme Court also underlined that governance through series of re-promulgation of ordinance is a fraud on constitution. Well said, since this route of governance will deny the basic status of democracy which vests right to law making in the hand of legislative chosen by people.
While The court quashed the Government of Bihar’s prerogative of law making through series of re-promulgation of ordinances, it straightforward differed on the appellant’s perception of government status to Sanskrit schools post the expiry of ordinance and hence a reimbursement of dues since then. Rather the order at length discussed the fact that should there be a recovery of salaries paid to employees at government secondary school scale, if any. A clinical understanding of cause and result of case gives an idea that neither the petitioner nor the respondent had a decree victory in this case. And if so who actually won? Democracy.
Why I am writing this?
While growing up during my teen age I used to visit my father’s school. My Father is a teacher, a science stream teacher in a Sanskrit high school of Bihar. My grandfather retired as principle from the same school. This case and its ball by ball commentary has been the hope and bread jingling my house walls since decades. I have also been the witness of one other relevant case in which a long hold salary disbursement to Sanskrit school teachers was cleared after a High Court order. To a larger extent that order paved way to my engineering fees. While reading the hindi translation of this final judgment that appeared last week to my grandfather on phone, I realized how much patience of a generation waiting to die has been tested by machinery of executive, legislature and judiciary over a period of 20 year. And that’s why I am writing this.
Thesis apart, it’s true that number of Sanskrit schools in Bihar are just on paper and not functioning, which was the chief concern to bring an angle of investigation in 2nd ordinance and others. However its prime time for government to execute and decide on the fate of Sanskrit schools in Bihar. The school buildings are getting older sans maintenance, ruptures on the walls are as evident as the ruptures on fate of Sanskrit language in country. Its time for government to act, bring out a bill, pass it through legislature and be the guardian of a series of schools that is trying to torch bear a language, considered mother of all other languages.