WP(C) 1891/2010 BEFORE HON’BLE MR. JUSTICE UJJAL BHUYAN Heard Mr. M. Dutta, learned counsel for the petitioner, Ms. A. Gayan, learned Ce ntral Govt. Counsel and Mr. G.N. Sahewalla, learned Senior Counsel, assisted by Ms. J. Baruah, learned counsel, for Assam University. Also heard Mr. U. Saikia, learned counsel, for the University Grants Commission (UGC). 2. This petition has been filed by Assam University Non-Teaching Employees Association, an association of non-teaching employees of Assam University, which is a Central University. 3. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of notification, dated 22.10.2004, and for a directio n to the respondents for implementation of the Assured Career Progression Scheme (ACP Scheme). 4. Office Memorandum (OM), dated 09.08.1999, was issued by the Govt. of Ind ia, Ministry of Personnel, Public Grievances and Pension, Department of Personne l and Training, providing for ACP Scheme to Central Government civilian employee s. As per the OM, to mitigate the hardship in cases of acute stagnation in servi ce either in a cadre or in an isolated post, two financial upgradations in the s ervice career of a Central Government civilian employee, as recommended by the 5 th Central Pay Commission, has been provided. As per the ACP Scheme, first finan cial upgradation is to be provided on completion of 12 years of regular service and the second one after 24 years where employees suffer service stagnation. 5. It appears that the ACP Scheme provided for Central Government civilian employees was adopted by various universities of the country including by the De lhi University. However, in respect of Delhi University, the first financial upg radation is provided on completion of 8th year of regular service instead of 12 years. 6. Executive Council of Assam University in its meeting held on 21.08.2003, resolved that the ACP Scheme as formulated by the Government of India would be adopted by the University for implementation. However, it was resolved to implem ent the said scheme like the Delhi University by making the first financial upgr adation available at the 8th year instead of 12th year. It was also resolved to move the UGC for approval. 7. This resolution was given effect to vide order of the Registrar, dated 1 1.10.2004. It was, however, mentioned in the said order that in the event the UG C or the Central Government directed the Assam University to withdraw the benefi t, the same would be withdrawn and the arrears paid would have to be recovered. 8. It is stated that eligible non-teaching employees of Assam University we re paid the first financial upgradation on completion of 8th year of regular ser vice without promotion. 9. Another OM, dated 19.05.2009, was issued by the Government of India modi fying the ACP Scheme following the recommendation of the 6th Central Pay Commiss ion. However, for the purpose of the present case, the OM dated 19.05.2009 may n ot have much relevance. 10. Following directives received from UGC and the Central Government, impug ned notification, dated 22.10.2004, came to be issued approving the ACP Scheme a s per OM dated 09.08.1999 in respect of non-teaching employees of Assam Universi ty in supersession of the previous order, dated 11.10.2004. 11. Grievance of the petitioner as highlighted in this writ petition is that following the decision of the Assam University on 11.10.2004 which was passed i n terms of the Executive Council meeting held on 21.08.2003, a large number of e ligible non-teaching employees of the university who had completed 8 years of re gular service without promotion were granted the first financial upgradation und er the ACP Scheme. Because of the impugned decision, steps were taken for recove ry of the amounts released to such non-teaching employees as part of the financi al upgradation as per the ACP Scheme. 12. This Court by order, dated 19.03.2010, while issuing notice directed tha t status quo with regard to deduction of amount released by way of entitlement u nder the ACP Scheme pursuant to notification, dated 11.10.2004, should be mainta ined. 13. Assam University has filed affidavit. Stand taken in the affidavit is th at non-teaching employees who had received benefit of ACP Scheme had given indiv idual undertakings that the benefit would be refunded in case of non-ratificatio n of the Scheme by the UGC. Though University had agreed to give financial upgra dation on completion of 8 years of service and had sent proposal to the UGC for approval, in so far Central Government employees are concerned, first financial upgradation is provided on completion of 12 years of service. Instructions were received from UGC as well as from the Central Government to take corrective step s. It is stated that the benefit was granted in view of the undertaking given by the employees and since UGC has not approved the resolution of the University, the University will have to follow the UGC instructions. As a matter of fact, UG C had rejected proposal of the University on 13.11.2009. Therefore, deduction of the amounts already released became necessary and had to be undertaken. 14. UGC in their affidavit has stated that Assam University having been esta blished in the year 1994, the ACP Scheme as introduced by the OM dated 09.08.199 9 would not be applicable. In the case of Delhi University, it was stated that t hose employees who had received the first benefit before 08.04.1998 as approved by the Ministry of Human Resource Development, Government of India, the second f inancial upgradation would be given after 12 years from the date of the first fi nancial upgradation. This was a one off decisions taken in respect of Delhi Univ ersity and not approved in case of any other university. It is further stated th at an employee who has not received financial upgradation under one time upward movement or any other scheme as on 08.04.1998, he would be granted first financi al upgradation under the ACP Scheme on completion of 12 years of regular service and second financial upgradation on completion of 24 years of regular service w ithout promotion. 15. After hearing learned counsel for the parties and on perusal of the mate rials on record, the following relevant facts can be culled out:- (i) Following recommendation of the 5th Central Pay Commission, Central Governme nt issued OM dated 09.08.1999 providing for two financial upgradations in the se rvice career of a Central Government civilian employee facing service stagnation , the first financial upgradation on completion of 12 years and the second on co mpletion of 24 years. (ii) Assam University adopted the ACP Scheme. However, resolution was adopted by the Executive Council to provide first financial upgradation as per ACP Scheme on the 8th year instead of 12th year in the pattern of Delhi University, resolvi ng to move the UGC for approval. (iii) Following such decision of Executive Council, decision was taken by the As sam University on 11.10.2004 to provide first financial upgradation to the eligi ble non-teaching employees. (iv) In the meanwhile, both UGC and the Central Government made it clear to the Assam University that its proposal could not be approved and that under the ACP Scheme, the first financial upgradation was to be provided on the 12th year of regular service without promotion and second financial upgradation on the 24th y ear. (v) Thereafter, the impugned notification was issued by the Assam University. 16. Thus, from the above, it is evident that Assam University had adopted th e ACP Scheme formulated by the Central Government. The ACP Scheme itself provide s for two upgradations at two different stages in the service career of a Centra l Government employee suffering service stagnation, the first benefit at the 12t h year and the second benefit at the 24th year. Implementation of the ACP Scheme involves financial implications and, therefore, before implementing such Scheme , it was necessary on the part of the university authorities to have obtained ap proval of the Central Government, the university being a Central university. Nei ther the Central Government nor the UGC has opposed implementation of the ACP Sc heme in the Assam University. Rather they have approved implementation of the sc heme but strictly in terms of the scheme itself. When the Scheme itself provides that the first financial upgradation is to be provided at the 12th year of regu lar service without promotion, the university authorities could not have unilate rally made a departure to provide the first financial upgradation prematurely at the 8th year. Following the directives of the UGC and the Central Government, u niversity thereafter took the corrective steps. It is also not open to the benef iciaries of the ACP Scheme to question the rationale of the decision to provide financial upgradation at two different stages in the service career of a Central Government civilian employee suffering service stagnation and to contend that i nstead of 12th and 24th years, the two financial upgradations should be provided on 8th and 16th years. This is a policy decision of the Government having finan cial implications taken on the basis of expert opinion and advice. 17. However, having said so, the non-teaching employees of the Assam Univers ity who were paid the first financial upgradation on completion of 8th year of r egular service without promotion now face the prospect of recovery by the univer sity. As noticed above, this Court while issuing notice had directed maintenance of status quo in respect of recovery. 18. Eligibility of the non-teaching employees to receive the first financial upgradation as per the ACP Scheme has already been determined/decided by the un iversity authorities. Only thing is that instead of the 12th years the benefit w as extended on completion of the 8th year. 19. In view of the above development, it is now basically a question of defe rment of the grant of benefit of first financial upgradation in respect of those employees for a further period of four years, their eligibility to receive such benefit having already been decided. Therefore, in such a case, Court is of the considered opinion that resorting to recovery proceedings besides being a harsh measure would also not be justified. This is more so when the employees are not at fault for receiving such financial benefit despite giving undertakings of re fund. 20. That being the position, while declining relief to the petitioner for gr ant of first financial upgradation on the 8th year of regular service without pr omotion as per the ACP Scheme, the authorities of Assam University are directed not to make recovery from those non-teaching employees who had received the firs t financial upgradation from the 8th year by deferring such payment to the 12th year. Any deduction already made, would stand adjusted from the 12th year onward s when these employees would be deemed to have been granted first financial upgr adation on completion of 12th year. 21. Writ petition is accordingly disposed of.