G.C Bharuka, J.:— The present application has been filed on behalf of the petitioners for quashing the order passed by the Director (Directorate of Education), Department of Human Resources and Development, Bihar, which was communicated to petitioner no. 1 under memo no. 28 dated 9th June, 1989, and has been filed as Annexure-4 to the writ application. By this order, the Director of Primary Education has rejected the application filed on behalf of the petitioners for taking over of their school under the provisions of Bihar Non-Government Elementary Schools (Taking over of Control) Act, 1976 (hereinafter to be referred to as ‘the Act’).
2. In the present application, there are altogether 15 petitioners and they claim to be Headmaster and Assistant teachers of the School “Adersha Shiksha Niketan” located at Karbigahiya in the town of Patna. It is asserted in the writ application that the school in question was established on 1.1.1968 and was granted recognition by the State Govt. from 1.1.1970 by its memo no. 199 dated 16.4.1970 It seems that the Parliamentary Secretary Mr. Chandra Shekhar Jha had inspected seven schools including that of the petitioners in the year 1979 and had recommended to the concerned authorities for taking over of this school. The further case of the petitioners is that the Managing Committee passed a resolution dated 14.12.1979 to hand over the assets of the school to the State Government unconditionally and voluntarily. In paragraph 10 of the writ application, it has been asserted that the District Committee under its memo no. ??? dated 3rd March, 1982, which is Annexure-2 to the writ application, had recommended for taking over of large number of primary schools including the school of the petitioners but in spite of this recommendation the present school was not taken over by the Government though some other schools like Bhartiya Madhaya Vidhalaya, Lohiyanagar and Shishu Siksha Niketan, Nala Road, Patna, had been taken over. In paragraph no. 12 of the writ application names of some more schools have been given which are claimed to have been taken over pursuant to some directions issued by this Court in certain writ applications preferred on behalf of those schools. It is further stated that on 8.5.1984, the then Deputy Director of Education inspected this school and mentioned on the inspection book that the school is fit to be nationalised but in spite of all that have been stated above, the school was not taken over by the Government. Therefore, the petitioners were compelled to file a writ application in this Court being C.W.J.C No. 3728 of 1986 which was disposed of on 28.8.1986 by a Bench of this Court with the observation that the claim of the petitioners with regard to the taking over of their school should be considered and disposed of in accordance with law within six months from the date of receipt of that order. It seems that pursuant to this order of this Court, the impugned order (Annexure-4) has been passed by the Director of Primary Education after taking into account the facts and materials made available to him. The claim of the petitioners for taking over of the school has been rejected by the impugned order both on factual as well as legal grounds. It transpires from the impugned order that after due notice to the concerned parties and giving opportunity of personal hearing as also after perusal of the relevant documents, it was inter alia, found that the school is being run in a rented premises and most of the teachers are untrained. No document was filed to show that the school has any fund. Apart from these factual aspects respondent no. 2 has also held that under the scheme of the Act, there is no provision for taking over of the schools like that of the petitioners.
3. It has been submitted by Mr. Awadhesh Kumar Mishra learned counsel appearing for the petitioners that since the school of the petitioners is an aided elementary School under Section 2(c) of the Act and taking over of the school was duly recommended by the District Committee by its resolution dated 20-1-1982 (Annexure 2), therefore, the respondent, Director of Primary Education had no jurisdiction to reject the claim of the petitioners. It was also submitted that in view of the law laid down by this Court in the case of Nand Keshwar Singh v. The State of Bihar reported in 1985 PLJR 608 as a consequence of the recommendation of the District Committee, it should be deemed and accordingly declared that the school of the petitioners stands taken over by the State Government and the Respondents be accordingly directed to confer the necessary benefit to the petitioners as the consequences of the said taking over as per the provisions of Section 4 of the Act.
4. On behalf of the State, it has been submitted; that the State Government is not bound by the recommendations of the District Committee. Moreover, the District Committee had made its recommendation without examining the feasibility of taking over of the Schools since Annexure-2 itself shows that the Committee had no occasion to visit the schools and its recommendation is based on the basis of papers made available to them. Annexure-2, which is the proceeding of the Committee, does not even whisper about the feasibility aspect of taking over of the school, which is the only statutory duty cast upon the District Committee under section 4(4) of Act. The District Committee had not even determined any date for taking over of the school in question. It has been further submitted that the petitioners could not produce any document in support of their claim that the School in question is an aided school.
5. Section 2(a) of the Act defines' elementary School’ to mean a school of different grades up to class VII, and clauses (b), (c) and (d) of the Section further defines ‘minority elementary School’, ‘aided elementary School’ and ‘unaided elementary School’, respectively. For being an ‘aided elementary School’ it must fulfil two conditions namely,
(i) It is a private school which has been in receipt of Government grant, and
(ii) It is administered by a Managing Committee.
6. Section-3 of the Act provides for taking over of non-Government Elementary Schools by the State Government. Sub section (1) of this Section provides that all the elementary Schools managed by local authorities like District Board, Zila Parishad, Municipal Board, etc. shall be deemed to have been taken over by the State Government with effect from 1-1-1971. Sub-section (2) of the said section makes the provisions for taking over of ‘aided elementary Schools” by the State Government. It provides that the State Government shall take over these schools with effect from the date which shall be determined by the District Committee, provided that the Managing Committee of the School voluntarily hands over the control of the school to the Government. Sub-Section (3) contemplates taking over of elementary schools administered by public or private undertaking and the taking over of such schools has been left at the complete discretion of the State Government which can be effectuated by publication of a notification in the official gazette in this regard.
7. For deciding the issues involved in the present case. Sub-section (4) of Section 3 will have an important play and, therefore, it is being quoted hereunder:
3(4)(a) “With regard to the taking over of elementary schools other than those mentioned in sections 1 and 3 there shall be a District Committee in each district which shall examine the feasibility of taking over of the such school by the State Government and which shall consist of the following members:
(i) Deputy Development Commissioner/Administrator, District Board—Chairman.
(ii) District Superintendent of Education-Secretary,
Members
(iii) District Education officer,
(iv) District Inspector of Schools,
(v) Sub-divisional Educational Officer of the concerned sub-division, and
(vi) Deputy, Inspector of Schools concerned.
(b) The State Government may from time to time make changes in the personnel of the District Committee so constituted.
8. A reading of the aforesaid sub-section shows that the District Committee has been authorised to examine the feasibility of taking over of such schools which do not fall in the categories mentioned in sub-section (1) and sub-section (3) of Section 3 of the Act. Sub-section (1) deals with the elementary schools managed by local authorities described therein and sub-section (3) provides for taking over of elementary schools administered by public or private undertaking. Here a question may arise as to what the legislature meant by pubic or private undertakings. The legislature in India has been using the word ‘undertaking’ with varied meanings. It has been held by Calcutta High Court in the case of Regional Director, Company Law Board, Eastern Region v. Hindustan General Electrical Corporation Ltd., reported in (1984) 55 Company Cases, 557 at page 560 that the meaning of this word has to be gathered from the context in which the term has been used. Looking at the scheme and in the context in which this word ‘undertaking’ has been used, in my opinion, in sub-section (3) of Section 3 of the Act, it can only mean a commercial or industrial organisation. This view of mine also finds, support from the Cooper's case reported in 1970 Supreme Court 564 at page 630.
9. In view of exclusion of Elementary schools of the categories mentioned in sub-sections (1) and (3) from the operation of Sub-section (4) of Section 3 of the Act, the District Committee can examine the feasibility of taking over of any school other than the schools managed/administered by local authorities and public or private undertakings.
10. So far the ‘aided elementary schools’ are concerned, a combined reading of sub-section (2) and Sub-section (4) of Section 3 of the Act, shows that after examining the feasibility of taking over of such schools, the District Committee has to determine a date with effect from which the State Government has to take over such schools. In the case of Nand Keshwar Singh v. The State of Bihar, 1985 PLJR 608, it has been held that once the District Committee determines the date for taking over and the Managing Committee of such aided elementary schools voluntarily hands over the control of the school to the Government then, in law, it can safely be presumed that the school has been taken over by the Government and the consequences will follow.
11. Examination of the scheme envisaged under the Act shows that the legislature has not provided any mode or mandate for taking over of elementary schools of the categories other than those enumerated in sub-sections (1), (2) and (3) of Section 3 of the Act. Let us take the example of unaided elementary schools as defined under clause (d) of Section 2 of the Act. ‘Unaided Elementary School’ has been defined to mean a private school recognised by the Government and which is not in receipt of any Government grant. Now even if in case of this category of schools, the District Committee examines the feasibility of its take over by the State Government, there is no provision under the Act to give a further treatment to the process of examining the feasibility. The Act has maintained a complete silence as to what the District Committee has to do after examining the feasibility of taking over of such unaided elementary schools. The Act has neither provided any machinery for taking over of such schools by the State Government nor it has been anywhere made incumbent on the State Government to take over the schools of such category.
12. Now coming to the facts of the present case, apart from all other pleas, the main plea of the petitioners is that their school is an aided elementary school and, therefore since the District Committee had made a recommendation for taking over of their school as far back as in the year 1982 therefore, in law their schools should be deemed to have been taken over. I am afraid on the facts as pleaded in the writ application and the specific assertions in the counter-affidavit, the plea of the petitioners can not be entertained.
13. Shri Awadhesh Kumar Mishra, learned counsel for the petitioner has submitted that the school in question is an aided elementary school because some of the petitioners, who are teachers, in the said school, are getting some monthly grant from the Government. In support of his submissions, he has relied on the statements made in paragraph No. 5 of the writ application. Beyond making a bald statement, the petitioners could not substantiate their claim that their school had received any government grant at any point of time. No documentary evidence was produced either before the Director of Elementary Education or before this Court to establish this fact. Even if for the sake of argument, it is accepted that some of the petitioners had been getting some allowance from the Government for some reason in their personal capacity that can not tantamount to receiving of Government grant by the school because the legal identity of the school is entirely different from the teachers employed, by such school.
14. It has been specifically stated in the Counter-Affidavit that during the course of enquiry held by the Respondent-Director, the petitioners neither produced any regular bank pass-book to show the financial resources of the school nor could lead any other evidence to substantiate that the school received any Government grant at any point of time. In this factual background, it is difficult to accept that the school of the petitioners is an aided elementary school.
15. I may incidently mention here that the plea of the petitioners with regard to the alleged discrimination is not entertainable since the writ application does not disclose all the necessary facts with regard to the category and the attending circumstances pertaining to those schools. Further the petitioners have completely failed in establishing their claims within the framework of the legislative scheme and the statutory provisions. As held by me in the foregoing paragraphs since the school of the petitioners does not fall in any of the categories enumerated in sub-sections (1), (2) or (3) of Section 3 of the Act and also because the recommendation of the District Committee can not have any binding effect in respect of the schools other than aided elementary schools, therefore, the petitioners are not entitled to any relief by way of any direction or declaration in respect of the taking over of their school.
16. In the result, this writ application fails and is accordingly, dismissed.
17. In the facts and circumstances of the case, there will be no order as to cost.