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  • N. Roy, JJ.
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Smart Summary

Judgment Summary — Bihar Intermediate Education Council Ordinance, 1991

Factual and Procedural Background

Petitioners sought, inter alia, a declaration that the Bihar Intermediate Education Council Ordinance, 1991 (Bihar Ordinance 6 of 1991) was unconstitutional and void. Petitioner No.1 is an association of social activists; Petitioner No.2 is an advocate and father of a student who alleged injury at the hands of the Council (respondent No.3). The Ordinance governing the State Intermediate Education Council had first been promulgated in 1982 and was repeatedly repromulgated; the 1985 Ordinance was earlier struck down by the Supreme Court in D.C. Wadhwa v. State of Bihar (1987). Petitioners alleged that repromulgation had occurred methodically and deliberately and that the Council had failed in its statutory duties, caused examination failures (notably in 1989), and engaged in maladministration and harassment of students.

The hearing in this matter commenced on 31.3.1992. A counter-affidavit for respondent No.1 was filed on 1.4.1992. The State admitted that the 1985 Ordinance had been struck down but explained that bills to replace the Ordinance had been introduced on multiple occasions (1985, 1987, 1988, 1990) and that Select Committees or the Assembly had not enacted the proposed legislation. The court observed that the State had not made serious efforts to obtain legislative enactment, and that the practice of successive repromulgation continued despite the Supreme Court's prior ruling.

Legal Issues Presented

  1. Whether the Bihar Intermediate Education Council Ordinance, 1991 (Ordinance No. 6 of 1991) is unconstitutional and void, having been repromulgated successively after an earlier Ordinance (1985) was struck down by the Supreme Court.
  2. Whether the State's practice of repromulgating the Ordinance—despite the Supreme Court's decision—constituted a misuse of executive power and bordered on contempt of the Supreme Court.
  3. Whether actions already taken pursuant to the Ordinance (including administrative acts, orders in favour of the Council, and court orders) should remain valid despite a finding that the Ordinance itself is unconstitutional.

Arguments of the Parties

Petitioners' Arguments

  • The State repeatedly repromulgated the Ordinance (originating in 1982) despite the Supreme Court having struck down the 1985 Ordinance, which made the subsequent repromulgations a "fraud on the Constitution".
  • The Bihar Intermediate Education Council (respondent No.3) was alleged to have been inefficient and corrupt: insufficient staff, ill-equipped office, inexperienced employees, centralization in Patna causing harassment, and a "house of extortion".
  • The Council's conduct in conducting examinations (first undertaking examinations in 1989) produced disastrous results, causing irreparable loss to students; statutory provisions of the Ordinance were not implemented (notably sections in Chapter V and provisions in Chapters VI and VII).
  • The State’s actions in centralizing intermediate education and placing the load of six universities upon a single Council were arbitrary and violative of Article 14 of the Constitution.

Respondent / State's Contentions

  • The State admitted the 1985 Ordinance had been struck down but explained that ordinances had been promulgated from time to time to enable the functioning of the Council while legislative measures were pending.
  • The Law Department's role was described as drafting bills per ministry instructions; bills to convert the Ordinance into an Act were introduced on multiple occasions (1985, 1987, 1988, 1990) but were not enacted—assemblies adjourned sine die or Select Committees did not submit reports.
  • The State suggested practical difficulties and legislative timing (shortage of time in the Assembly, adjournments) as reasons for non-enactment of the bill; nonetheless, the court noted no serious legislative effort was made.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
D.C. Wadhwa v. State of Bihar, (1987) 1 SCC 378 : AIR 1987 SC 579 Established that systematic and successive repromulgation of ordinances without bringing them before the Legislature is improper, violates constitutional limits on executive power (Article 213), undermines rule of law, and the Governor cannot repromulgate the same Ordinance successively in place of legislation. The court relied on the Supreme Court's reasoning to find that the State's repromulgation practice—especially after the 1985 Ordinance had been struck down—bordered on contempt and demonstrated "Ordinance Raj" persisting in Bihar; this precedent was central to striking down the 1991 Ordinance.
K.P. Varma v. State of Bihar, 1988 PLJR 1036 Clarification that judgments or orders rendered by a tribunal or body serving in office de facto are not void and are to be validated under the de facto doctrine; references the doctrine's application. The court invoked this decision to clarify that actions already taken pursuant to the struck-down Ordinance, and orders passed in favour of the Council (or by courts in relation thereto), remain valid under the de facto doctrine even though the Ordinance itself is declared void.
Cokaraju v. State of Andhra Pradesh, (1981) 3 SCC 132 : AIR 1981 SC 1473 Authority for the de facto doctrine ("holding office") — that acts done by persons acting under color of official title continue to have validity to protect third parties and public interest. Referenced (via K.P. Varma) to support the court's decision to preserve the validity of administrative actions and orders already taken under the Ordinance despite declaring the Ordinance unconstitutional.

Court's Reasoning and Analysis

The court's analysis proceeded in the following steps, strictly as reflected in the opinion:

  1. Factual foundation: The court accepted the history that an Ordinance scheme for the Bihar Intermediate Education Council began in 1982 and that successive ordinances had been repromulgated. It accepted that the Supreme Court had struck down the 1985 Ordinance in D.C. Wadhwa.
  2. Assessment of State conduct: The court examined the State's legislative attempts and found pervasive inertia and lack of serious effort. Bills to replace the Ordinance had been introduced repeatedly (1985, 1987, 1988, 1990) but were not enacted—either withdrawn, the Assembly adjourned sine die, or Select Committees did not report.
  3. Reliance on precedent: The court relied on the Supreme Court's reasoning in D.C. Wadhwa about the rule of law and the unconstitutionality of systematic repromulgation of ordinances. The Wadhwa judgment condemned "Ordinance Raj" and held that the Governor cannot repromulgate the same Ordinance successively without legislative enactment.
  4. Characterization of conduct: Given that the State of Bihar continued the practice of repromulgation even after the 1985 Ordinance was struck down, the court concluded such conduct bordered on contempt of the Supreme Court and was reprehensible. The court described the conduct as methodical, deliberate, and amounting to a usurpation of legislative functions by the Executive.
  5. Procedural shortcomings: The State failed to file its counter-affidavit within prescribed time under Patna High Court Rules; the Council filed no counter-affidavit. Many factual allegations in paragraphs 12–14 of the writ petition (detailing maladministration and failure to discharge statutory duties) went unchallenged.
  6. Remedial balancing: While the court found the Ordinance unconstitutional, it invoked the de facto doctrine (via K.P. Varma and Cokaraju) to preserve the validity of actions already taken under the Ordinance and any orders passed in favour of the Council or by courts in relation thereto.
  7. Directions: The court directed the Council to continue to perform its statutory duties, to hold examinations for which dates had already been notified and to publish results in accordance with law. It also clarified that actions of the Council remain operative unless and until they are struck down by a competent authority or court.

Holding and Implications

Holding: The court concluded and declared that the Bihar Intermediate Education Council Ordinance, 1991 is unconstitutional and void, and accordingly struck it down.

Immediate consequences and implications (as stated in the opinion):

  • All actions already taken pursuant to the struck-down Ordinance, and any orders passed in favour of the Council or by courts in relation to the Ordinance, shall remain valid (the court expressly preserved these acts under the de facto doctrine).
  • The Bihar Intermediate Education Council is directed to continue to perform its statutory duties and to comply with court orders issued from time to time.
  • Any action taken by the Council shall continue to remain operative unless and until it is struck down by a competent authority or a Court of law.
  • The Council is required to hold all examinations for which dates had already been notified and to publish the results in accordance with law.
  • Petitioner No.1 (the association) was awarded costs against the State in the sum of Rs. 500 for having pursued public interest litigation that exposed the Council's alleged maladministration.

Broader legal impact: The judgment applies established Supreme Court authority condemning the practice of successive repromulgation of ordinances (as reflected in D.C. Wadhwa). The opinion did not purport to create a new principle of law; it applied existing precedent to the facts and emphasized that such repromulgation practices are contrary to the constitutional scheme.

Disposition

The writ application was allowed with the observations and directions summarized above. The opinion records that Narayan Roy, J. concurred.

Show full summary ...

    Citizens Cause, Ranchi And Another v. The State Of Bihar And Others

    S.B Sinha, J.:— In this application, the petitioner has inter alia prayed for a declaration that Bihar Intermediate Education Council Ordinance, 1991 (Bihar Ordinance 6 of 1991) is unconstitutional and void.

    2. Petitioner no. 1 is an Association of social activists. Petitioner no. 2 is a practicing advocate and father of a student who had allegedly suffered at the hands of respondent no. 3. According to the petitioner, the Bihar State Intermediate Education Council Ordinance was first promulgated in the year 1982. Despite expiry of the said Ordinance, similar Ordinances were promulgated from time to time successively and the last Ordinance in the series is the aforementioned Ordinance no. 6 of 1991.

    3. The vires of Bihar Intermediate Council Ordinance, 1985, along with various other Ordinances was questioned before the Hon'ble Supreme Court of India by one Dr. D.C Wadhwa and the Supreme Court in Dr. D.C Wadhwa v. State of Bihar reported in (1987) 1 SCC 378 : AIR 1987 SC 579 struck down the said Ordinance as unconstitutional and void.

    4. According to the petitioner despite the said fact, the aforementioned Ordinance had been repromulgated methodologically and deliberately by the concerned respondents which is a fraud on the Constitution.

    5. Paragraphs 12 to 14 of the writ application read as follows:—

    “That earlier the Intermediate Education was being controlled by as many as six universities. Gradually the number of students have tremendously increased, but only for political and selfish gains, at the cost of the students and guardians, a political decision was taken to form an Intermediate Education Council for whole of the State of Bihar. Thus, the load and responsibilities which was being carried out by six universities have been loaded on a newly born baby i.e respondent no. 3. From 1982 till 1988, the respondent no. 3 was running only to the benefits of some persons who were adorning its posts at the costs of the citizens. For the first time, respondent no. 3 undertook the task of conducting examinations of Intermediate Education in 1989 and the results have been disastrous to the great detriment and irreparable loss to the students. As a matter of fact, respondent no. 3 have completely failed to carry out the provisions of the Intermediate Education Council Ordinance and the purposes for which it was formed as enumerated under section 15 of the Ordinance of 1991. Besides, even after lapse of ten years, the provisions of Chapter V, specially provisions of Sections 35, 36 and 37 are yet to be followed. Respondent no. 3 has also failed to effectively implement and make viable alternative and arrangements as provided in Chapter 6 and 7 of the 1991 Ordinance.

    That the Bihar Intermediate Education Council has insufficient staff, ill-equipped office, inefficient and inexperienced persons in its office and it has become a house of extortion and harassment to the students. It is relevant to state that respondent no. 3 has no branch or regional office as a result for even minor work, everyone has to run to Patna and it is difficult to do even genuine work in the office of the respondent no. 3 without greasing the palms of the concerned employees. The Council is in a mess and in complete shambles.

    That on the one hand, the State Government is increasing the number of universities for the facility of the persons residing in the area and on the other hand the load of six universities has been loaded on respondent no. 3. Thus, the load of six vehicles have been loaded on one vehicle. The result is naturally disastrous The action on the part of the respondents is completely arbitrary and violative of Article 14 of the Constitution of India.”

    6. In this case, the hearing of this application commenced on 31.3.1992 and on 1.4 1992 a counter affidavit was filed on behalf of respondent no. 1. In the said counter affidavit, it has been contended that respondent and the Secretary Human. Resources Development Department who are controlling the functions of the Bihar Intermediate Education Council (in short to be stated as the said Council) are the contesting respondents, but despite requests made to the Secretary Education by letter dated 23.1.1992, no details had been furnished. In the said counter affidavit, it has been contended that so far as Law Department is concerned, it is merely required to draft the bill as per instructions and advise of the concerned Ministry. It has been accepted that 1985 Ordinance had been struck down by the Supreme Court. However, it was stated that a bill was introduced in the year 1985, but owing to shortage of time, the same could not be considered and ultimately was withdrawn in July, 1987.

    7. It has further been contended that during pendency of the bill, for working of the Council, Ordinances had been promulgated from time to time incorporating the provisions of the bill. It has further been stated that Bihar Intermediate Education Council Bill, 1987 was sent to the Assembly on 7.7.1987, but the Assembly adjourned sine die before expiry of its terms. The Bill was, thereafter, introduced in the year 1988 and it was referred to a Select Committee on 21.8.1988, but the Select Committee did not submit its report. It has been asserted that in March, 1990, the bill was again introduced and referred to the Select Committee and uptill now the Select Committee has not submitted its report.

    8. From what has been noticed hereinbefore, there cannot be any doubt that no serious attempt had been made by the State to get the bills passed at the Assembly. It is admitted that the Supreme Court struck down the Ordinance of 1985. In that view of the matter, the State was under an obligation to make all serious efforts to enact a legislation incorporating the Bihar State Intermediate Education Council. Even the Select Committee had not performed its duties. The main function of the Legislature is to legislate and it is really unfortunate that a Bill which was introduced in the year 1985 could not be enacted despite its introduction in the Assembly on three occasions.

    9. It is, thus, clear that no serious effort has been made by the State whatsoever. In Dr. Wadhwa's case (supra), the Supreme Court noticed that so far Bihar Intermediate Education Council Third Ordinance is concerned, a legislative proposal was in fact introduced for enacting its provisions into an Act. Despite the same, as noticed hereinbefore, the Supreme Court struck down the aforementioned, Ordinance. The Supreme Court observed:—

    “The rule of law consitutes the core of our Constitution and it is the essence of the rule of law that the exercise of the power by the State whether it be the Legislature or the Executive or any other authorit should be within the constitutional limitations and if any practice is adopted by the Executive which is in flagrant and systematic violation of its constitutional limitations. Petitioner no. 1 as a member of the public would have sufficient interest to challenge such practice by filing a writ petition and it a would be the constitutional duty of this Court to entertain the writ petition and abjudicate upon the validity of such practice. We must therefore reject the preliminary contention raised on behalf of the respondents challenging the locus of the petitioners to maintain these writ petitions.”

    10. In paragraph 6 of the judgment, the Supreme Court noticed that it is a settled practice to go on repromulgating the ordinances from time to time and the same was done methodologically and with a sense of deliberateness.

    11. Upon taking into consideration Various circulars issued by the State of Bihar, it was noticed by the Supreme Court that repromulgation of the ordinances was done on a massive scale in a routine manner without even caring to get the ordinances replaced by Acts of the Legislature on considering whether the circumstances existed which rendered it necessary for the Governor to take immediate action by way of repromulgation of the ordinances.

    12. The Supreme Court thereafter considered the question as to whether the practice followed by the State of Bihar can be justified as representing legislative exercise of power of promulgating ordinances conferred on the Governor under Article 213 of the Constitution of India and held:—

    “The only question is whether the Governor has power to repromulgate the same Ordinance successively without bringing it before the Legislature. That clearly the Governor cannot do. He cannot assume legislative function in excess of the strictly defined limits set out in the Constitution because otherwise he would be usurping a function which does not belong to him. It is significant to note that so far as the President of India is concerned, though he has the same power of issuing an Ordinance under Article 123 as the Governor has under Article 213, there is not a single instance in which the President has since 1950 till today repromulgated any Ordinance after its expiry. The startling facts which we have narrated above clearly show that the Executive in Bihar has almost taken over the role of the Legislature in making laws, not for a limited period, but for years together in disregard of the constitutional limitations. This is clearly contrary to the constitutional scheme and it must be held to be improper and invalid. We hope and trust that such practice shall not be continued in the future and that whenever an Ordinance is made and the Government wishes, to continue the provisions of the Ordinance in force after the assembling of the Legislature a Bill will be brought before the Legislature for enacting those provisions into an Act. There must not be Ordinance Raj in the country.”

    13. In the instant case, in our opinion, as the conduct of the State in repromulgating the same Ordinance successively despite the fact that the 1985 Ordinance had been struck down by the Supreme Court borders on contempt of the Supreme Court of India. The conduct of the State of Bihar must be deprecated. Apparently the State of Bihar has belied the hopes of the Supreme Court as expressed in Wadhwa's case.

    14. It is clear that Ordinance Raj is still prevailing in the State of Bihar. The conduct of the State in pursuing this case is also reprehensible.

    15. The State did not file its counter affidavit within the period prescribed under the Patna High Court Rules.

    16. As noticed hereinbefore, a counter affidavit was filed during hearing of the writ petition. Even in the said counter affidavit, the statements made in the writ petition were not traversed. The council has not filed any counter affidavit at all. Thus the startling facts stated in paragraphs 12-14 of the writ petition remain unchallenged which clearly depicts a sordid state of affairs so far as the functioning of the council is concerned.

    17. In this view of the matter, we have no other option but to strike down Bihar Intermediate Education Council Ordinance, 1991 which is still in operation as unconstitutional and void. However, there cannot be any doubt that the actions which have already been taken pursuant to the said Ordinance or any order which has been passed in favour of the Council and/or any order passed by any Courts of law in relation thereto shall remain valid. Despite this judgment, the Council is directed to perform its statutory duties and/or comply with the orders of the Court issued from time to time.

    18. It is further clarified that any action taken by the Council shall continue to remain operative unless struck down by a competent authority or a Court of law.

    19. It is also clarified that the council shall hold all examinations for which dates have already been notified and publish the results thereof in accordance with law.

    20. In K.P Varma v. State of Bihar reported in 1988 PLJR 1036, this Court observed:—

    “However, it may be observed by way of clarification that the judgment so long rendered by the Tribunal cannot either be void or nullities but they must be held to be valid in terms of the defacto doctrine of ‘holding office’. Reference in this connection may be made to the case of Cokaraju v. State of Andhra Pradesh reported in (1981) 3 SCC 132 : AIR 1981 SC page 1473 : 1981 (3) SCR 474”.

    21. The petitioner no. 1 has been rendering valuable services to the society. It had filed before this Court various public interest litigations. It had also earlier filed applications against the Council bringing to this Court's notice the gross illegalities committed by the Council and because of the action on the part of petitioner no. 1 career of many students could be saved as in one case it was found that the authorities of the Council had functioned so recklessly that the meritorious students who competed for their admission in I.I.Ts and various other Institutes were declared having failed; whereas the less meritorious students were placed in first division. In this view of the matter, petitioner no. 1 is also entitled to costs from the State which is quantified at Rs. 500/-. This application is accordingly allowed with the aforementioned observations and directions.

    Narayan Roy, J.:— I agree.

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    Comments

    Citizens Cause, Ranchi And Another v. The State Of Bihar And Others
    (Apr 22, 1992)