Bihar Vidyalaya Pariksha Samiti Karamchari Sangh v. State Of Bihar
2002-07-01
R.N.PRASAD, RAVI S.DHAVAN
body2002
DigiLaw.ai
Judgment 1. This is a letters patent appeal challenging the order of a learned judge dated 15 April 2002 on a petition of the Bihar Vidyalaya Pariksha Samiti Karamchari Sangh and others V/s. Bihar School Examination Board and others. The relief sought in the writ petition was, in effect, for a writ, order or direction in the nature of mandamus, that the State-respondents be directed to grant or accord necessary approval to the amended regulation considered by the Board so as to incorporate a change in Regulation 44 of the Bihar School Examination Board Regulation, 1960. The change which was made by the Board, if carried out would make the retiring age of Grade III employee from 58 to 60 years. The context of the regulation cannot be understood unless the law which gives existence to the Board itself is examined. The Board is a creature of a statute known as Bihar School Examination Board Act, 1952 (Bihar Act 7 of 1952). The Board has been conferred powers under section 17 to make regulations which are consistent with the Act and the Rules on the subjects enumerated under sub clauses (a) (b) (c) (d) (e) & (f). At present, the Court is not going into the aspect whether the Board has specific power to cause changes in conditions of service of the employees. The Court assumes that any action taken by the Board is under the residuary clause (f), reading ..." all other matters which by this Act or the rules made thereunder are to be or may be provided by regulations". 2. To effect a change on the age of retirement of Category III employee as a class, is a policy decision. It is accepted even by the petitioners-appellants that if the decision of the Board is to be given effect to, the matter has to be referred and the decision of the Board must seek "confirmation by the State Department". 3. The contention on behalf of the petitioners-appellants is that a matter which otherwise had seen a positive decision almost granting the age of superannuation at 60, subsequently saw a restraint. At a meeting called by the Hon ble Minister on 9 November 2001 it was indicated that the decision was inconclusive. The exact word on record as has been presented by the petitioners-appellants reads "Sahmati Nahin Bani". 4.
At a meeting called by the Hon ble Minister on 9 November 2001 it was indicated that the decision was inconclusive. The exact word on record as has been presented by the petitioners-appellants reads "Sahmati Nahin Bani". 4. The plain issue before the High Court is whether a writ of mandamus can be issued requiring the State Government to grant its confirmation on a matter of policy. The court has been addressed that it must summon the file of the State Government and see how the record moved between one department to another and ultimately before the Hon ble Minister and that the record may reveal that there was a decision almost accepting that the retirement age of Category III employee may be advanced to 60 but later the Hon ble Minister had it recorded that a conclusive decision has not been reached. 5. The issue before the Court is whether the High Court should exercise its power of judicial review in a matter like the present one? The issue is not one of sentiment that a class of employees seek change in the age of retirement from 58 to 60 years. These are matters of finance and policy and compatibility of service conditions in public employment. The State employees, in this class, retire at 58. If employment with the Board is public employment then there is much the State has to consider as a policy. 6. It will not be appropriate for the High Court to summon the record for the purposes of issuing a direction in the nature of mandamus and peeping into the files of the Government to see the functioning of the Hon ble Minister in a matter of policy. A Minister is answerable to the legislature. The proposition is not resisted that the subject matter is a matter of policy. In this regard even the Supreme Court in the matter of M/s Shri Sitaram Sugar Company Limited and another V/s. Union of India and others ( AIR 1990 S.C. 1277 ) observed that in matters of policy the court should restrain itself in exercising the power of judicial review ordinarily. It is the opinion of the court that this is one such a case. Nothing restrains the persons concerned to have the matter raised at the question hour at the session of the legislature, because this is a system which Parliament democracy provides. 7.
It is the opinion of the court that this is one such a case. Nothing restrains the persons concerned to have the matter raised at the question hour at the session of the legislature, because this is a system which Parliament democracy provides. 7. To issue a writ in a matter like the present one, the Court feels, would not be appropriate. In the circumstances, the Court also is of the opinion that the learned judge committed no error in declining interference by the writ petition. 8. Dismissed.