Bombay High Court: In a writ petition filed under Article 226 of the Constitution filed by an employee of the Corporation of the City of Panaji (“respondent”) , the issuance of a writ of certiorari was sought to quash and set aside a memorandum issued by the respondent for the recovery of allowance sum paid to the petitioner under the aegis of Children’s Educational Allowance scheme (“Allowance”), provisioned to the Central Government employees through the Central Civil Services (Educational Assistance) Orders, 2006 (“Orders”). The Division Bench of M.S. Karnik and Valmiki Menezes*, JJ., noted that the petitioner’s son was suffering from cerebral palsy, and found that the restrictions for availing the Allowance scheme were not applicable to the petitioner’s case.
The Court further noted that the petitioner did not misrepresent or provided false information about her son’s condition or age to derive any benefit; hence, the impugned memorandum of quashed and set aside.
Background
The petition filed under Article 226 of the Constitution sought the issuance of a writ of certiorari, to quash and set aside the impugned memorandum issued by the respondent. The petitioner was an Upper Division Clerk employed with the respondent, and her son has been suffering from Cerebral Palsy (classified as permanent disability). The impugned memorandum sought to recover the amount of Rs. 48,000 paid to the petitioner as the Allowance, basing the claim on an audit report prepared by the Indian Audit and Accounts Department which stated there was an irregular release of the Allowance to the petitioner.
She contended that as per the Allowance scheme, the reimbursement was granted as a percentage of the fees paid for the education of their children. She submitted that her son had secured admission to the Bachelor of Business Administration course at the Don Bosco Society for Higher Education College for the academic year 2017 and had paid a tuition fee of Rs. 67,132. She further submitted that a reimbursement request was made to the respondent under the Allowance scheme, which was accepted by the respondent, and an amount of Rs. 48,000 was reimbursed to the petitioner in 2018. In 2021, she received the impugned memorandum directing her to refund the reimbursement under the scheme, since the Allowance scheme was available for courses until Class XII only and not beyond.
Court’s analysis and decision
The Court perused the provisions of the Allowance scheme and the Orders and noted that the reimbursement application was made in 2017 and the respondent did not allege that the petitioner had made any misrepresentation or false information regarding the course attended by or the age of her son (that was 20 years at the time). The claim was referred to legal opinion which advised that the reimbursement of the tuition fees was admissible for differently-abled children upto the age of 22 years without providing any restrictions upto Class XII.
The Court noted that the impugned memorandum was based on the opinion of an Auditor auditing the respondent after two years of disbursement.
The Court opined that even if it were to consider the Auditor’s interpretation of the Allowance scheme and the Orders, it could not be unmindful of the gross delay of nearly three years in seeking the recovery of the reimbursement merely on the basis of a difference of opinion in between the Auditor and the legal opinion secured before the reimbursement.
The Court referred to the case of Thomas Daniel v. State of Kerala, 2022 SCC OnLine SC 536, wherein, the Supreme Court held that if an amount was paid to an employee not on account of any misrepresentation or fraud, or such payment was made by an employer by applying a wrong principle for calculating the pay/allowance or, on the basis of a particular interpretation of Rule/Order which was subsequently found to be erroneous, such payment ought not to be recoverable.
Applying the above-stated principle, the Court opined that even if the interpretation of the Auditor was accepted, the petitioner did not derive the benefit of reimbursement of the Allowance scheme upon any misrepresentation or fraud, and therefore, the issuance of the impugned memorandum would be arbitrary and require quashing.
This judicial opinion was based on providing due consideration to the circumstances of the petitioner. The Court further stated the amount of Rs. 48,000 might be miniscule to the respondent but would surely be a substantial sum for the petitioner.
Therefore, the Court quashed and set aside the impugned memorandum.
[Micaela Gracy de Oliveira v. Corporation of City of Panaji, 2024 SCC OnLine Bom 2087, decided on 08-07-2024]
*Judgment authored by: Justice Valmiki Menezes
Advocates who appeared in this case :
For the petitioner: Abhijeet Kamat, Simoes Kher, Advocates
For the respondents: Somnath Karpe and Sarvadnya D. Patil, Advocates
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