Nagendra Upadhyay vs The Govt Of Nct Of Delhi & Ors
2013 Latest Caselaw 319 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of Decision: January 22, 2013

+                  W.P.(C) 7871/2012

      NAGENDRA UPADHYAY                        ..... Petitioner
                  Represented by:Mr.S.N.Tripathi, Advocate

                   versus

      THE GOVT OF NCT OF DELHI & ORS           ..... Respondents
                   Represented by:Mr.Satvik Verma, Advocate for
                                  respondents 1 and 3.
                                  Ms.Sangeeta Tomar, Advocate
                                  for respondent no.2.

      CORAM:
      HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
      HON'BLE MS. JUSTICE VEENA BIRBAL

VEENA BIRBAL, J.

1. By way of this petition, petitioner has challenged the order dated September 20, 2012 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as `the Tribunal') in OA No.4063/2011 whereby the request of the petitioner for issuing directions to the respondents for grant of Children Education Allowance (in short referred to as `the CEA') has been rejected.

2. Petitioner is a TGT (Sanskrit) serving under respondents 1, 3 and 4. His claim for reimbursement of CEA in respect of his two children, namely Harsh Vardhan Upadhyay and Raj Vardhan born on 06.07.1996 and 16.3.1997 has been denied by the respondents. As per him, he has not claimed CEA in respect of any other child of him in the past except the aforesaid two children, as such, he is entitled for CEA as per OM No.12011/03/2008-Estt.(Allowance)

dated September 2, 2008. He had made representation to the respondents which was denied vide communication dated June 10, 2011. The same was challenged by him before the Tribunal.

3. The stand of the appellant before the Tribunal was that in terms of OM dated March 23, 2006 issued by the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel & Training) subject to provisions of paras 11 to 24 of Annexure 1 thereto, all the Government servants without any pay limit were entitled to draw the CEA, reimbursement of tuition fee and hostel subsidy. It was contended that in terms of para 8 of Annexure 1 of the said OM, the assistance was restricted to two children born after 31.12.1987. However, if the number of children exceeds two as a result of second child birth resulting in twins or multiple births, assistance was admissible to all the children. Thereafter on the implementation of recommendation of the 6th Central Pay Commission by the Government and in supersession of all, OM No.12011/03/2008-Estt.(Allowance) dated September 2, 2008 has been issued wherein CEA can be availed by the Government servants upto a maximum of two children. It was contended that petitioner did not at any time claim reimbursement for his two elder children and he claimed only for his 3 rd and 4th child, as such, he was entitled for the same.

4. The stand of the respondents before the Tribunal was that petitioner is claiming CEA for 3rd and 4th child in view of clarification issued vide OM dated 13.11.2009 which is applicable to the staff of Government of NCT of Delhi, as such he is not entitled for the same.

5. After hearing the counsel for the parties, the Tribunal rejected the application. Aggrieved with the same, present petition is filed.

6. Learned counsel for the petitioner has contended that petitioner can claim CEA in respect of any two children under OM dated September 2, 2008. It is contended that even vide OM dated March 23, 2006, he was entitled to

claim CEA for two children. It is contended that OM dated November 13, 2009 is only a clarification and under the garb of clarification right of the petitioner cannot be taken away as is done in the present case.

7. On the other hand, learned counsel for the respondent has contended that both the OMs i.e., OM dated September 2, 2008 and OM dated November 13, 2009 are not contradictory in any manner. It is contended that there is one more OM i.e., OM dated November 11, 2008 which was issued within three months of issuance of OM dated September 2, 2008 clarifying that CEA is admissible if the number of children exceeds two as a result of second child birth resulting in twins or multiple births. It is submitted that further clarification was given vide OM dated November 13, 2009 wherein it was clarified that CEA is admissible for the two eldest surviving children only except when the number of children exceeds due to second child birth resulting in multiple births. It is submitted that in the present case, petitioner is claiming CEA for 3rd and 4th child who were born after 31st December, 1987, as such he is not entitled for CEA.

8. We have learned counsel for the parties and gone through the material on record.

9. The relevant portion of the OM dated March 23, 2006 which is relevant for the disposal of the present petition is as under:-

"No.21013/1/2004-Estt.(Allowances) MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES & PENSIONS (DEPARTMENT OF PERSONNEL & TRAINING) New Delhi, the 23rd March, 2006

"xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

8. Assistance as per these orders/instructions shall be admissible to the Government servant in respect of not more than 3 children at any time born upto 31.12.87 and shall be restricted to two children at any time thereafter. However, if the number of

children exceeds two as a result of second child birth resulting in twins or multiple births, assistance shall be admissible to all the children."

10. As a consequence to the acceptance and implementation of the recommendations of Sixth Central Pay Commission relating to the grant of CEA and in supersession of earlier orders on the subject CEA and Tuition fee, the OM dated September 2, 2008 was issued by the respondent. The relevant portion of which is as under:-

"xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

(a) Children Education Allowance and Reimbursement of Tuition Fee which were hitherto payable separately will be merged and will henchforth 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.

Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx"

11. After the issuance of aforesaid OM, clarification on certain issues was sought by the Government Servants/Departments. The same were clarified vide OM dated November 11, 2008. The said OM clarified that the CEA is admissible for more than two children if the number of children exceeds two as a result of second child birth results in twins or multiple births.

12. Vide OM dated November 13, 2009, further clarification was given with the approval of Competent Authority that CEA is restricted to two eldest surviving children only, except when the number of children exceeds two due to second child birth resulting in multiple births. The same is reproduced as under:-

"xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 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."

13. Reading the OMs dated March 23, 2006 and September 8, 2008, it is clear that restriction is provided for giving CEA only upto two children and it will be admissible for more than two, if the number of children exceeds two as a result of second child birth resulting in twins or multiple births, meaning thereby it is given to two eldest children. Thereafter, another OM was issued on November 23, 2009 which clarifies that in no way, it can be said that aforesaid OM is contradictory to OM dated September 2, 2008 or is taking away the right of the petitioner in any manner, as is alleged. The OM dated November 13, 2009 only clarifies that CEA is admissible for the eldest two surviving children except when the children exceeds due to second child birth resulting in twins or multiple births. The aforesaid OM has expressly clarified the position.

14. The Tribunal in the impugned order has also interpreted the aforesaid OMs. The relevant portion of which is as under:-

"As can be seen from OM No.12011/03/2008-

Estt.(Allowance) dated 2.09.2008 and para 8 of the Annexure 1 to OM dated 23.3.2006, the Assistance by way of educational allowance was restricted to two children born after 31.12.1987 except in a case where as a result of 2nd child birth results in multiple births or twins. In effect, in para 8 of Annexure 1 to OM dated 23.3.2006, it is implicit that the Assistance was restricted to two eldest children. Had it been so, there could be no reason to mention that the assistance could be extended to 3rd child only if 2nd child birth results in twins. In other words, in case of the birth of twins at the time of first child birth, the benefit could not be given to the 3rd child born as a result of second delivery only."

15. In view of the above discussion, it is clear that there is no contradictions in the two OMs i.e., OM dated September 2, 2008 and OM dated November 13, 2009. The later one is only giving clarification and same is not in any manner taking away the basic features of the earlier OMs, as is alleged.

16. Further, learned counsel for the respondents has pointed out restricting benefit to two children was taken in consonance with the Government policy keeping in mind the National Population Policy, 2010. The court cannot interfere with the policy decision of the Government unless the same are wholly arbitrary or malafides are there.

17. In any event, the petitioner is claiming CEA for third and fourth children which he is not entitled as per OMs discussed above

18. In view of the interpretation given to the aforesaid OMs, petitioner is not entitled for benefit of OMs in question.

19. No illegality is seen in the impugned order which calls for interference of this court. The writ petition stands dismissed.

20. There is no order as to costs.

VEENA BIRBAL, J.

PRADEEP NANDRAJOG, J.

JANUARY 22, 2013 ssb