JUDGMENT :

1. Heard Ms. S. Bora, the learned counsel for the petitioner. Also heard Mr. K. Gogoi, the learned CGC for’ the respondents in the Union of India.

2. The petitioner is an employee in the rank of Havildar in the respondent Assam Rifles having been appointed on 24.8.1985. The petitioner was subjected to a Screening Board for the purpose of availing the benefit of third MACP upon completion of thirty years of service in the same grade. The Screening Board which was held on 21.1.2015 took into account the ACRs of the years 2011-12, 2012-13 and 2013-14. The Screening Board was of the view that as the petitioner had earned the grade average which bears two points, therefore, was not recommended for promotion to the next rank on the basis of the ACR of the year 2012-13. As the petitioner was held to be not entitled for promotion on the basis of the” aforesaid ACR, the resultant claim for third MACP was also rejected. Being aggrieved, this writ petition is instituted.

3. It is taken note that from 1.9.2016, the petitioner had been given the benefit of third MACP. In the circumstance, the question is to be decided in this writ petition is whether he would also be entitled to the benefit of third MACP from 1.9.2015 upto 1.9.2016.

4. Ms. S. Bora, the learned counsel for the petitioner relies on a proposition of law that an un-communicated low grade in the ACR cannot be made to be a basis to arrive at any decision for promotion. As the third MACP to the petitioner from 1.9.2015 was rejected on the ground of having low grade in the ACR of the year 2012-13 and the said low grade having being not communicated to the petitioner, it is the contention raised before the court that the existence of such low grade which remained un-communicated cannot be a basis to not give the benefit of MACP from 1.9.2015.

5. Mr. K. Gogoi, the learned CGC for the respondents in the Union of India opposes the said proposition put-forth by the learned counsel for the petitioner.

6. The law in this respect is settled by the Supreme Court in Dev Dutt v. Union of India, (2008) 8 SCC 725 wherein in paragraph 41, it had been provided as extracted below:

“41. In our opinion, non-communication of entries in the annual confidential report of a public servant, whether he is in civil, judicial, police or any other service (other than military), certainly has civil consequences because it may affect his chances of promotion or get other benefits (as already discussed above). Hence, such non-communication would be arbitrary, and as such violative of article 14 of the Constitution.”

7. A reading of the provision of paragraph 41 of the Dev Dutt (supra) goes to show that a non-communication of the entries in the ACR of a public servant, whether he is in civil, judicial, police or any other service other than military, certainly have adverse civil consequences because it may affect his chances for promotion or to get other benefits. Accordingly, it was held that non-communication of the adverse entry would be arbitrary and in violation of the article 14 of the Constitution of India. An issue is raised by Mr. K. Gogoi, the learned CGC for the Union of India that the petitioner is an employee in the Assam Rifles and, therefore, it requires an examination whether he is in military service.

8. It is stated that Assam Riffles has a dual-command, where military also has its own independent control over the force. The Assam Rifles is constituted as per the Assam Rifles Act, 2006 (‘the Act of 2006’).

9. In this respect, we have been told that a judicial proceeding is presently pending before the Delhi High Court on the question as to whether the Assam Rifles is a military organization or it is a paramilitary organization and the said question is yet to be decided meaning thereby that the issue as to whether the Assam Rifles is a military or a paramilitary force is yet to be decided.

10. Section 3(iii) of the Act of 2006, inter alia, provides that notwithstanding anything contained in su