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.
Background
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.
Road
ahead
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.
Are you related to Krishna Kumar Singh?
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