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7. Learned counsel for the respondents referring to the counter affidavit argued that as per the Department of Personnel & Training (DoP&T) OM dated 9.8.1999, the grant of financial upgradations under the ACP/MACP Scheme is personal to the employees, and seniority has no role in its determination. Applicants were granted the 1st and 2nd financial upgradations under the ACP Scheme based MANISH KUMAR SRIVASTAVA on the required benchmark grading, indicating eligibility for career progression under this scheme. Learned counsel for the respondents further argued that for the ACP Scheme up to the grade pay of Rs. 6600/- the benchmark is 'Good' as per the DoP&T OM dated 9.8.1999. Therefore, the applicants received the 1st and 2nd financial upgradations under the ACP Scheme as they met this benchmark. He also argued that the case for the 3rd financial upgradation was placed before the DSC on 15.6.2012, but was not recommended in respect of applicant No.1 due to missing ACRs. According to DoP&T OM dated 13th April, 2010, only adverse remarks in the ACR had to be communicated before the reporting period 2008-09. The MACP Scheme, introduced in 2009, did not initially include a provision to communicate ACRs before 2008-09. The introduction of APARs as per DoPT OM dated 14 May 2009 required communication of APAR entries from the reporting period 2008-09. The applicant No. 2 was given an opportunity to comment on his ACRs, but did not respond. Learned counsel for the applicants also contended that in compliance of direction given by the Tribunal in OA No. 1076/2018, a Review DSC on 08.08.2022 examined the ACRs dossiers of the applicants and found that applicant No. 1 had mostly 'Average' or 'Good' gradings, with only two 'Very Good' gradings since 1.9.2008. Applicant No. 2 had mostly 'Average', or 'Good' gradings, with only one 'Very Good' grading since 1.9.2008. Therefore, the Review DSC found both applicants unfit for the 3rd financial upgradation under the MACP Scheme, thus, prayer was made to dismiss the OA

18. In the instant case as is evident from the record that applicant No.1 has retired from service on 31.7.2011 and applicant No.2 on 30.06.2010. Perusal of the impugned order also reveals that respondents themselves are admitting that 3rd financial upgradation was due in respect of the applicants w.e.f. 01.09.2008. In the impugned order dated 12.8.2022, it is mentioned that first Departmental Screening Committee (in short D.S.C.) meeting held on 9.6.2011 whereas in the counter affidavit respondents have MANISH KUMAR SRIVASTAVA pleaded that D.S.C. also held its meeting on 15.6.2012. Impugned order also reveals that in the D.S.C. meeting held on 9.6.2011, matter of the applicant No.1 was kept in abeyance for want of complete ACR but in the review D.S.C. held on 8.8.2022 complete ACR dossier of applicant No. 1 (1977 to 2007) were examined and found that most of the gradings in the ACRs of the applicant No.1 were either 'Average' or 'Good'. It has also been observed in the impugned order that applicant No. 1 was only two 'Very Good' grading in all his preceding ACRs. If the pleadings of the parties in respect of the applicant No.1 is taken into consideration, nothing was mentioned in the counter affidavit regarding communication of below benchmark entries, which have been taken into consideration while rejecting the prayer of the applicant No.1. Perusal of the record also reveals that applicant had earlier approached this Tribunal raising the same grievance through OA No. 1076 of 2018, which was decided on 17.5.2022 disposing of the OA directing the competent authority amongst the respondents to decide the claim of 3rd upgradation under MACP of the applicants afresh in accordance with rules. Impugned order has been passed in compliance of the direction of the Tribunal passed in the aforesaid OA. It is further mentioned in the impugned order that ACRs of the applicant No.2 were also scrutinized by the D.S.C. but applicant No.2 was also not found fit as most of the grading was 'Poor'/'Average'/'Good' whereas for allowing the 3rd upgradation benchmark was 'Very Good'. In the counter affidavit it has been specifically pleaded that applicant No. 2 was informed vide letter dated 28.12.2011 (Annexure CA-1) regarding the ACRS for 2004-2005, 2005-2006 and 2006- 2007 and views and comments on the below benchmark grading awarded by the respective authorities were also called for. It further appears that applicant No.2 did not make any representation in lieu of the letter dated 28.12.2011 whereas a D.S.C. meeting is said to have been held on 15.6.2012 also.

21. In so far as claim of the applicant No.2 is concerned, in the review D.S.C. meeting held on 9.6.2011 claim of the applicant No.2 was not allowed. When applicant No.2 approached before this Tribunal through the aforesaid OA and in light of direction given in the aforesaid OA, fresh consideration vide impugned order was passed and prayer of the applicant No.2 was again rejected. Perusal MANISH KUMAR SRIVASTAVA of the record reveals that on 28.12.2011, below benchmark grading recorded for the year 2004-2005, 2005-2006 and 2006-2007 were communicated to the applicant No.2. No representation for upgrading the aforesaid below benchmark has been made on part of the applicant No.2. Had the applicant No.2 made the representation in lieu of communication dated 28.12.2011, the result would be otherwise. Since no representation has been made, thus, applicant No.2 cannot take benefit with the law laid down in the cases relied upon by the applicants. No relief can be allowed to him as he has been given opportunity to represent against the adverse remark but he has not availed the same, thus, case of applicant No.2 is distinguishable to the case of applicant No.1.

22. Submission of the learned counsel for the applicants is that below benchmark grading in regard to other similarly situated employees have been upgraded and the benefit of 3rd upgradation was allowed to them, then applicants are also entitled for upgradation of below benchmark grading in line with the other employees to whom benefit has been allowed. It may be mentioned here that nowhere in the pleading of the applicants, it is disclosed as to whether upgradation was allowed after representation or without representation. Thus, submission raised on behalf of applicant in this respect cannot be taken into consideration to grant 3rd MACP to the applicant No.2