Payments made under a reimbursement scheme cannot be recovered without clear evidence of fraud or misrepresentation, particularly when based on an erroneous interpretation of eligibility criteria.

JUDGMENT :

Per Valmiki Menezes, J.

1. Heard Mr Abhijeet Kamat for the Petitioner, Mr Somnath Karpe for Respondent No.1 and Mr Sarvadnya D. Patil for Respondent No.2. Rule was issued in this matter on 25.04.2022, when interim relief granted by order dated 13.04.2022 was confirmed and the matter was placed for final disposal, with the consent of the learned Counsel for the parties.

2. This petition under Article 226 of the Constitution of India seeks issuance of a writ of certiorari to quash and set aside a memorandum dated 14.07.2021 bearing No.218/01/2018/2019/CCP/Accts/2021-22/251 issued by the Respondent No.1, the Corporation of the City of Panaji (CCP). By the impugned memorandum, the CCP sought to recover an amount of Rs.48,000/- paid to the Petitioner as a Children’s Educational Allowance (CEA), on the premise that under an audit report prepared by the Indian Audit and Accounts Department (Respondent No.2) dated 02.02.2021, there was irregular release of the CEA to the Petitioner.

3. It is the case of the Petitioner that she is employed as an Upper Division Clerk with the Respondent No.1, CCP; that she has a son who is a special child suffering from Cerebral Palsy/Spastic/Quadriparesis, which is classified as a permanent disability, as substantiated by medical certificate dated 13.04.2006 issued by the Goa Medical College, after assessing the child’s disability. It is further the Petitioner’s case that under the “Children’s Education Allowance” scheme of the Respondent CCP, reimbursement is granted to its employees of a percentage of the fees paid for the education of their children. The CEA scheme as provided by the Central Government to its employees under the CCS (Educational Assistance) Orders, 2006 has been admittedly adopted by Respondent No.1.

The Petitioner avers that she secured admission for her son to the course of Bachelor of Business Administration (T & T) in the Don Bosco Society for Higher Education College for the academic year 2017 and paid tuition fees of Rs.67,132/-. She then submitted a reimbursement request under the CEA scheme to the CCP with an application dated 03.10.2017 in which she made all disclosures. The CCP ultimately accepted her reimbursement request and disbursed an amount of Rs.48,000/- as reimbursement of fees on 01.11.2018. Almost three years later, she received the impugned memorandum dated 14.07.2021 directing her to refund the reimbursed amount of Rs.48,000/- claiming that the same had been wrongly paid to her as her child was not entitled to reimbursement under the scheme, primarily on the ground that the course undertaken by him was for a Bachelor’s degree and the CEA scheme was applicable for courses up till Class XII i.e. Higher Secondary or Senior Secondary classes and not beyond that.

4. The two main grounds raised in the petition laying challenge to the memorandum are :

a) That the scheme does cover classes beyond Class XII for children with disabilities, and

b) That the Petitioner having made all disclosures in her application, the conclusions of the Audit Officer that the disbursement was irregular and on a distorted understanding of the Rules to suit the convenience of the employee, was an arbitrary exercise of his powers, undertaken without hearing the Petitioner and was liable to be quashed.

5. In reply to the petition, Respondent No.1 has filed an affidavit of its Commissioner dated 15.09.2022. In this affidavit, the Respondent No.1 submits that its Officer, on receipt of the Petitioner’s application, construed Clause 1(l) of the CEA to limit the scheme in the case of normal children t