(Oral).
Sanjeev Kaushik, Member (J).
1. By means of the present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has impugned the order dated 22.11.2011 passed by respondent no. 3, vide which a sum of Rs. 16,200/- on account of Children Education Allowance and excess T.A payment of Rs. 500 reflected in the last pay certificate, has been recovered on the basis of an audit objection.
2. Facts are to be noticed first. The applicant herein initially joined Navodaya Vidyalaya Samiti at Regional office, Chandigarh, in the office of Respondent no. 2 as a Stenographer w.e.f. 01.05.1989 on deputation basis and was subsequently absorbed permanently w.e.f 01.05.1991. The applicant was assigned an additional duty of the post of Assistant and worked in various sections including Establishment, Administration etc. In addition, the applicant was appointed as Presenting Officer in various cases. Considering his service record, he was promoted as Personal Assistant and posted at Navodaya Vidyalaya Samiti, Regional office, Jaipur where he joined on 06.03.2007. At that time the applicant was working as Presenting Officer in two departmental inquires pertaining to Chandigarh. He was also discharging the duties of Defence Assistant in two cases pertaining to Chandigarh Region, while posted at Jaipur. While accepting the recommendation of 6th CPC qua grant of Children Education Assistant and reimbursement of Tuition fee, the Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training), New Delhi ( for short DOPT) issued office memorandum on 02.09.2008 on the subject of Recommendations of the 6th Central Pay Commission-Implementation of decisions relating to the grant of Children Education Assistant and Reimbursement of Tuition Fee vide which Central Government allowed reimbursement of Children Education Allowance, subject to a ceiling of Rs. 12000/- per child with ceiling of Rs. 3000/- per quarter upto a maximum of two children w.e.f 01.04.2008. The O.M dated 02.09.2008 was adopted by the Samiti and accordingly, applicant who is having three children submitted a claim in respect of his youngest child i.e. son who was studying at that time in Class 5th in Chandigarh and not claimed for other two daughters. Relevant portion of the same is reproduced as under:-
"(a). Children Education Allowance and Reimbursement of Tuition Fee which were hitherto payable separately will be merged and will henceforth be known as Children Education Allowance Scheme.
(b). Under the Scheme of Children Education Allowance reimbursement can be availed by Government Servants upto to a maximum of 2 children.
The said claim was examined by office of respondent no. 3 and reimbursement of fee was made to the applicant. Subsequently, DOPT issued another office Memorandum on 13.11.2009 with reference to earlier O.M dated 02.09.2008 clarifying that Children Education Allowance is admissible for the two eldest surviving children only. Relevant para of O.M dated 13.11.2009 is reproduced as under:-
This Department has also been receiving references seeking clarification whether Children Education Allowance can be claimed in respect of any two children by Government Servants who have more than two children. It is clarified that Children Education Allowance is admissible for the two eldest surviving children only, except when the number of children exceeds two due to second child birth resulting in multiple births.
It is the case of the applicant that after issuance of the office memorandum dated 13.11.2009, the applicant stopped claiming Children Education Allowance. Internal Audit of the office of Respondent no. 3, for the period from 01.04.2008 to 31.04.2009 was conducted and an objection was raised against the claim made by the applicant for Children Education Allowance that the applicant had claimed excess TA amounting to Rs. 500. Thereafter, the applicant submitted a representation to respondent no. 1, dated 12.04.2010, but no decision there upon was taken by the respondents. The applicant submitted another representation on 11.10.2011 but to no avail. In the month of November 2011, the applicant was transferred to Chandigarh in the office of Respondent no. 2 and was relieved on 22.11.2011, when he was issued a last pay certificate, indicating a recovery to the tune of Rs. 16200/- on account of Children Education Allowance and excess TA of Rs. 500. Hence, the present O.A."
3. Pursuant to the notice, the respondents have contested the claim of the applicant by filing a detailed written statement wherein they have taken a preliminary objection that since the applicant has drawn the Children Education Allowance for the 3rd child, which is not admissible under the rules, therefore, impugned recovery is legal. The Children Education Allowance is admissible only to the eldest surviving children except when the number of children exceeds two if they happen to be twins. With regard to recovery of Rs. 500 towards excess payment of TA, it is submitted that the audit wing did not accept the contention of the applicant that he was to attend the office at Chandigarh in connection with the departmental enquiry for which he claimed TA and accordingly, recovery has been ordered which is in terms of instructions dated 28.11.2011. It is submitted that as per SR-134-A, a government servant is not entitled to any travelling allowance for a journey made during leave or while proceeding or returning from leave. It is, however, stated in reply to para 4(xiii) of the written statement that if the applicant makes a representation for wavier of audit recovery, the same would be considered.
4. Rejoinder has been filed by the applicant in which apart from contradicting the averment made in the written statement, it is submitted that the TA claim of the applicant was allowed by the competent authority under S.R.135-A, therefore, there was no misrepresentation on the part of applicant in claiming the above benefit.
5. We have heard Sh. R.K.Sharma learned counsel for the applicant and Sh. D.R.Sharma, learned counsel for the respondents.
6. The question that arises for our consideration is as to whether an order of recovery of an amount which is claimed by the applicant, as per rules and without any misrepresentation on his part, can be sustained or not. Office memorandum dated 02.09.08, allows Children Education Assistance and Reimbursement of Tuition fee, under which a government employee can avail the claim of reimbursement upto maximum of two children. It is no where stated that the amount has to be claimed for reimbursement of Children Education Allowance for elder children only, if one has more than two children. Subsequent to that a clarification was issued vide O.M dated 13.11.2009 wherein it has been clarified that allowance is admissible for the two eldest surviving children only. Concededly, while claiming the benefit of Children Education Allowance for a third child, the applicant has not concealed any fact from the Competent Authority which approved the claim and reimbursed the amount. After issuance of the clarification by the subsequent O.M where only benefit in respect of eldest two children is to be allowed, the applicant cannot be made to suffer as he was allowed the benefits on the basis of the interpretation of the existing instructions in a particular manner. If there is change in the interpretation, the same cannot be used to reopen the old cases more so when the applicant has not been found to be guilty of suppressing of information or misrepresentation. Therefore, recovery so ordered can not be sustained. Our view finds support from the Full Bench judgment of jurisdictional Honble High Court in CWP No. 2799 of 2008 titled Budh Ram and Others Vs. State of Haryana and others decided on 22.05.2009 wherein it is stated that if there is no misrepresentation on the part of the concerned employee then recovery cannot be made. Accordingly, the impugned recovery order for Children Education Allowance is not tenable. Hence, same is quashed and set aside. With regard to recovery of amount of Rs. 500 on account of TA, admittedly the applicant was attending the departmental proceedings at Chandigarh, while he was posted at Jaipur. Bill submitted by him was approved by the competent authority under S.R.135-A. In that view of the matter, there is no misrepresentation on his part. Accordingly, as per the settled law discussed above, we are left with no other option but to accept the present O.A in toto and quash the impugned order dated 22.11.2011.
7. With the observations as above, this O.A. stands allowed with no orders as to costs.