JUDGEMENT AND ORDER : Heard Mr. AL Saha, learned counsel appearing for the petitioner as well as Mr. H. Deb, learned Assistant Solicitor General appearing for the respondents. 2. This writ petition falls within a very short compass. The first child of the petitioner who is serving as the Sub-Inspector, Ministerial in the Central Reserve Police Force (in short CRPF) did not avail the Children Educational Allowances (for short CEA), but from the session 2008-09, the third child of the petitioner availed the said allowance as per the provisions of Office Memorandum dated 02.09.2008 (Annexure P-1 to the writ petition). The said Memorandum provides as under: “No. 12011/03/3008-Estt.(Allowance) Government of India Ministry of Personnel, Public Grievances and Pensions (Department of Personnel & Training) New Delhi, the 2nd September, 2008 OFFICE MEMORANDUM Subject: Recommendations of the Sixth Central Pay Commission-implementation of decisions relating to the grant of Children Education Assistance and Reimbursement of Tuition Fee. Consequent upon the decisions taken by the Government on the recommendations made by the Sixth Central Pay Commission and in super-session of all earlier orders on the subject of Children Education Allowance and Reimbursement of Tuition Fee, the President is pleased to issue the following instructions:- (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 a maximum of 2 children. (c) Reimbursement as indicated above will be applicable for expenditure on the education of school going children only i.e. for children from classes nursery to twelfth, including classes eleventh and twelfth held by junior colleges or schools affiliated to the Universities or Boards of Education. (d) Henceforth, the reimbursement of Children Education Allowance shall have no nexus with the performance of the child in his class. In other words, even if a child fails in a particular class, the reimbursement of Children Education Allowance shall not be stopped. (e) Reimbursement for the following items can be claimed under this Scheme: Tuition Fee, admission fee, laboratory fee, special fee charged for agriculture, electronics, music or any other subject, Fee charged for practical work under the programme of work experience, fee paid for the use of any aid or appliance by the child, library fee, games/sports fee and fee for extra-curriculum activities. This also includes reimbursement for purchase of one set of text books and notebooks, two sets of uniform and one set of school shoes which can be claimed for a child, in a year. (f) The annual ceiling fixed for reimbursement of Children Education allowance is Rs.12,000/- (g) Under this scheme, reimbursement can be claimed once every quarter. The amount that can be claimed in a quarter could be more than Rs.3000/- and in another quarter less than Rs.3000/-, subject to the annual ceiling of Rs.12000/- per child being maintained. (h) In case both the spouses are Government servants, only one of them can avail reimbursement under Children Education Allowance. (i) Hostel subsidy will be reimbursed upto the maximum limit of Rs.3000/- per month per child subject to a maximum of 2 children. However, both hostel subsidy and Children Education Allowance cannot be availed concurrently. (j) The above limits would be automatically raised by 25% every time the Dearness Allowance on the revised pay structure goes up by 50%. 2. In order to ensure that Government servants have no difficulty in claiming reimbursement, the procedure under this Scheme is being kept simple. Reimbursement should henceforth be made on the submission of original receipts on the basis of self-certification by the Government servant. 3. These orders shall be effective from 1st September, 2008. 4. Insofar as persons serving in the Indian Audit and Accounts Department are concerned, these orders issue in consultation with the Comptroller and Auditor General of India. 5. Hindi version will follow. Sd/Illigible (Simmi R. Nakra) Director (P&A)” 3. Against the third child, the petitioner had been drawing the said allowance but by the Office Order dated 08.12.2016 (Annexure 5 to the writ petition), the Accounts Officer, Group Centre, CRPF, Agartala directed the petitioner to refund a sum of Rs.1,03,895/- as according to them the Children’s’ Educational Allowance is not entitled to the third child. Against the third child, the petitioner had been drawing the said allowance but by the Office Order dated 08.12.2016 (Annexure 5 to the writ petition), the Accounts Officer, Group Centre, CRPF, Agartala directed the petitioner to refund a sum of Rs.1,03,895/- as according to them the Children’s’ Educational Allowance is not entitled to the third child. The Office Order as a whole is extracted hereunder: “OFFICE OF THE DY.INSPECTOR GENERAL OF POLICE, GROUP CENTRE, CRPF, AGARTALA (TRIPURA)-799012 No. A.IX-1/2016-17-PC/GC, Dated, the Dec’ 2016 OFFICE ORDER No. 911570088 SI/Min Hari Singh Vohra of this GC has been drawing CEA for his 3rd child namely Master Pankaj Vohra (DOB-05.05.2001) fraudulently which is not permissible as per order No. 8 of Swamy’s CEA orders 2006 read with Digest of Section 2(A) under hearing –Maximum limit of CEA of CEA orders for Central Government Employee. Hence, recovery for Rs.1,03,985/- (Rupees one lakh three thousand nine hundred eighty five) only so drawn fraudulently till date by above SI/Min Hari Singh Vohra of his 3rd child as per details given below is hereby ordered:- Class-III Rs.10,235/- Class-IV Rs.12,750/- Class V Rs.15,000/- Class VI Rs.15,000/- Class VII Rs.15,000/- Class VIII Rs.18,000/- Class IX Rs.18,000/- Total Rs.1,03,985/- 2. The amount so drawn fraudulently be recovered in 10 equal installments @Rs.10,399/- per month by effecting casualty report from the month of December-2016. Authority: This has the approval of IGP on office note dated 08.12.2016. Sd/Illegible GC, CRPF, Agartala”. 4. In this writ petition, the said order has been challenged by the petitioner. According to Mr. Saha, learned counsel appearing for the petitioner, the Office Memorandum dated 02.09.2008 does not provide that the third child even if against the first child the said allowance was not drawn will not be entitled to get the said allowance and accordingly one bonafide belief and with approval of the competent authority, the petitioner had drawn the Children’s Educational Allowance for his third child. 5. From the other side, Mr. Deb, learned ASG appearing for the respondents having referred the Office Memorandum dated 19.11.2009 (Annexure R-5 to the writ petition) has submitted that the said Memorandum has clearly provided as under: “The 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 the 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”. 5. Further Mr. Deb, learned ASG has referred to the clarification given by the Ministry of Personnel, Public Grievance and Pensions, Department of Personnel & Training under No. 21011/08/2013-Estt(AL) dated 25.02.2013 (Annexure R-6 to the counter affidavit filed by the respondents) there the query that whether the reimbursement of the Children Educational Allowance (CEA) for the 3rd child is permissible if CEA has not been claimed for 1st and or 2nd child has been raised as per as per OM dated 02.09.2008, CEA is admissible for two school going children. Does it mean any two school going children? In answer the following has been provided by the said clarification dated 25.03.2013: Reimburshment of CEA is not permissible for third child even if reimbursement has not been claimed in respect of first and/or second child. However, as per OM No. 12011/03/2008-Estt(AL) dated 11.11.2008, the Children Education Allowance would be admissible for more than two children where as a result of the second child birth results in birth of twins or multiple children. Further, reimbursement of CEA for the 3rd child is also admissible in case of failure of sterilization operation. Such reimbursement is admissible only for the first child birth after failure of sterilization operation. This point was further clarified vide OM no. 12011/16/2009- (Allowance) dated 13.11.2009. 6. Mr. Saha, learned counsel has clearly submitted that the incidence of birth as referred in the clarification dated 25.03.2013 is not relevant in the present case. Mr. Saha, learned counsel has further contended that the recovery after 5 years of consuming of the allowance in view of the State of Punjab and others vs. Rafiq Masih (White Washer) and others, reported in (2015) 4 SCC 334 , should not be allowed inasmuch as the Apex Court has laid down guidelines in respect of the recoveries in the terms, inter alia, as under: “It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from employees belonging to Class-III and Class-IV service (or Group C and Group D service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover”. Mr. Saha, learned counsel has further submitted that having regard to the said decision of the Apex Court even the respondents have issued their policy by a Memorandum dated 02.03.2016 (Annexure P-4 to the writ petition). The said Memorandum has also been submitted with the reply filed by the respondents. 7. Having further regard to the controversies as emerged in this writ petition, this court is of the view that the authority is competent to make necessary change in its beneficial scheme by way of clarification or by making necessary amendment. In view of the Office Memorandum dated 13.11.2009 (Annexure R-5 to the reply) and the clarification dated 25.03.2013 (Annexure R-6 to the reply), this court does not have any hesitation to hold that the 3rd child of the petitioner was not entitled to get the Children’s Education Allowance. It has been paid to the petitioner erroneously, but so far the demand for recovery that has been made by the respondents by the Office Order dated 08.12.2016 (Annexure P-5 to the writ petition) in the given circumstances as the petitioner admittedly belongs to the Group ‘C’ cadre as he has been serving as Sub Inspector, Ministerial under the CRPF, the said recovery cannot be allowed by this court [see the guidelines of Rafiq Miah (supra)]. Hence the Office Order dated 08.02.2012 stands quashed. Hence the Office Order dated 08.02.2012 stands quashed. No amount shall be recovered from the petitioner as has been paid to the petitioner as the Children’s Education Allowance for his third child. However, against the said child no further CEA be allowed. The two eldest sons shall remain entitled to receive the said benefit in terms of the or in this respect. 8. Having observed thus, this writ petition stands partly allowed to the extent as indicated above. There shall be no order as to costs. Copy of this order be furnished to learned ASG, learned counsel appearing for the respondents for doing the needful.