Arvind Kejriwal's Personal Decision To Continue As CM Despite Arrest Shouldn't Deprive MCD School Students Of Books: Delhi High Court

The Delhi High Court on Monday said that the decision of Arvind Kejriwal to continue to hold the position of Chief Minister despite his arrest is his “personal decision” but his non-availability cannot come in the way of young children studying in MCD schools from receiving their free text books, writing material and uniform forthwith.

A division bench comprising Acting Chief Justice Manmohan and Justice Manmeet PS Arora observed that national interest and public interest demands that no person who holds the post of Chief Minister is incommunicado or absent for a long stretch of time or for an uncertain period time.

The court said that Delhi Minister Saurabh Bhardwaj's statement that any increase in financial power of MCD Commissioner shall require the Chief Minister's approval, amounts to an admission that the “Delhi Government, due to absence of the Chief Minister is at a standstill.”

“To say that no important decision can be taken during a model code of conduct is a misnomer. Undoubtedly, no new policy decision can be taken but holders of Constitutional posts have to everyday take important as well as urgent decisions. For instance, issuance of free text books, writing material and uniform as well as replacement of broken chairs and tables in accordance with the existing policies in the MCD schools is an urgent and immediate decision which brooks no delay and which is not prohibited during the model code of conduct,” the court said.

It took judicial notice of the fact that the current MCD House has “hardly transacted any business in the last one year.”

The court said that nothing prevented the Delhi Government 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 court said.

It added that receipt of free text books, writing material and uniform by school going children is not only a legal right under the RTE Act and RTE Rules but is a part of the Fundamental Right under Article 21A of the Constitution.

“The inability of GNCTD 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 fundamental rights of the said students,” the court said.

It added: “Consequently, this Court is of the view that non-availability of Chief Minister or non-formation of a Standing Committee or disputes pertaining to appointment of an aldermen by the Hon'ble LG 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 text books, writing material and uniform forthwith.”

The bench directed the MCD Commissioner to incur the expenditure required for fulfilling the said obligations forthwith without being constrained by the expenditure limit of Rs. 5 crores.

“However, the expenditure incurred by the Commissioner, MCD shall be subject to statutory audit,” it added.

The court was dealing with a PIL filed by NGO Social Jurist, arguing that students in the MCD schools are being deprived of statutory benefits like uniform, writing material, notebooks etc.

The plea sought a direction upon the MCD to ensure that all the students have operational bank accounts and that benefits be provided to them through bearer cheques till these accounts are opened.

Earlier, the court was informed by the MCD Commissioner that only the standing committee has the power to award contracts worth more than Rs. 5 crores. The bench had then said there cannot be a vaccum and if the standing committee is not formed due to any reason, the financial power needs to be delegated to an appropriate authority by the Delhi Government.

Last week, the Delhi Government told court that delegation of power can be done only with the consent of Chief Minister Arvind Kejriwal who is presently in judicial custody. This was on instructions from Delhi Urban Development Minister Saurabh Bharadwaj.

The bench had then rapped the Delhi Government over stalling of projects and non-supply of books and uniforms to children, observing that the government is just interested in appropriation of power and nothing is working at the ground level.

Earlier, the MCD Commissioner told court that over 2 lakhs students studying in the school administered by the civic body do not have bank accounts and are neither been distributed notebooks nor receiving cash reimbursement for uniforms, school bags and stationary.

The bench had then said that the students going to school and promoted to new class without books and uniforms would loose interest, which will have harmful affects on them.

The court had noted that one of the major reasons for non distribution of uniforms, textbooks etc to the students is stated by the MCD, in its affidavit filed on April 20, to be non formation of standing committee.

The plea seeks a direction upon the MCD to ensure that all the students have operational bank accounts and that benefits be provided to them through bearer cheques till these accounts are opened.

Counsel for Petitioner: Mr. Ashok Agarwal, Mr. Manoj Kumar and Ms. Ashna Khan, Advocates

Counsel for Respondents: Mr. Shadan Farasat, ASC for GNCTD with Ms. Hrishika Jain, Advocate; Mr. Sanjeev Sagar, Standing Counsel with Ms. Shivangi Kumar, Addl. Standing Counsel for MCD

Title: Social Jurist v. Gnctd & Ors.

Citation: 2024 LiveLaw (Del) 513

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