Remaining CM is Kejriwal’s ‘personal decision’, should not deprive MCD school students of benefits: Delhi High Court

The high court said that there is a “ring of truth” in the statement made by Delhi Government’s Minister of Urban Development Saurabh Bharadwaj (during the hearing on April 26) that any increase in the financial power of the MCD Commissioner shall require the chief minister’s approval, amounting to an admission that the Delhi government is at a “standstill” due to the CM’s absence.

“A Chief Minister’s post in any State, leave alone a buzzing capital city like Delhi is not a ceremonial post. It is a post where the office holder (when in office) has to be virtually available 24×7 to deal with any crisis or natural disaster like flooding, fire, disease, etc. National interest and public interest demands that no person who holds this post is incommunicado or absent for a long stretch of time or for an uncertain period…,” the court said.

“The decision of the Chief Minister, despite having been arrested, and his petition being dismissed by a learned Single Judge of this Court to continue to hold the position is his personal decision. However, it does not mean that if the Chief Minister is not available, the Fundamental Rights of young children would be trampled upon and they would go through the first term (1st April to 10th May) without free textbooks, writing material and uniform,” the bench underscored.

It thereafter said that the non-availability of chief minister or non-formation of a standing committee or disputes pertaining to the appointment of aldermen by the L-G or non-delivery of judgment by a competent court or non-compliance of certain provisions of Delhi Municipal Corporation Act “cannot come in the way of the school-going children receiving their free textbooks, writing material and uniform forthwith”.

The bench directed the Commissioner, MCD to undertake the expenditure required for fulfilling the obligations “forthwith” without being constrained by the Rs 5 crore expenditure limit. The bench, however, said that the expenditure incurred by the MCD Commissioner shall be “subject to statutory audit”. Asking the Commissioner to file a fresh status report, the bench listed the matter on May 15.

In its 17-page order, the bench observed that the inability of the Delhi Government to act with alacrity and respond to the urgency of the issue at hand exhibits its “indifference towards the plight of the students” enrolled in MCD schools and is a “wilful violation” of the students’ fundamental rights.

The bench in its order also took note of resolution No. 182 adopted by the MCD on January 15 as per which the functions of Standing Committee shall be carried out by “House of the Corporation/MCD” until the committee is constituted.

“If the party in power in GNCTD believed in the solution suggested in the minutes of the meeting dated 15th January, 2024, nothing prevented it from moving a suo moto resolution in the MCD House authorizing the Commissioner to make payment for text books, writing material and uniform. Consequently, the submission of learned counsel for the GNCTD blaming other institutions amounts to nothing but ‘shedding of crocodile tears’,” the bench underscored.

On April 23, the high court had directed the Delhi Government to delegate to an appropriate authority the financial power of the standing committee, after the MCD Commissioner said that only this committee had the power to approve projects over Rs 5 crore which was the major reason why children were deprived of the benefits.

The court also said that after the hearing on April 23, the suggestions given by the Delhi Government and MCD mayor that till the standing committee is unavailable the MCD commissioner should send proposals above Rs 5 crore to the House of the Corporation for expeditious decision on case-to-case basis and for ensuring democratic control of the Commissioner’s expenditure, is “prima facie” impractical.

The bench said that this would virtually amount to directing that “all day-to-day decisions (instead of policy decisions) shall be taken by Parliament and not by the Cabinet”. The bench also took judicial notice of the fact that the current MCD House has hardly transacted any business in the last one year.

The bench thereafter observed that the real issue in the matter is of ‘power’, ‘control’, ‘turf dominance’ and ‘who takes the credit’, adding that the Delhi government’s response is a “willful noncompliance” of the bench’s April 23 order. It said that the submission that the contract for procuring these benefits should await approval from the House exhibits “complete lack of appreciation of the urgency” and shows “apathy” by both the Delhi Government and the mayor for students’ well-being.