The main legal point established in the judgment is that the Rules of 1989 applied to the petitioner's promotion, and setting aside the order on the ground of violation of principles of natural justice would be futile.

JUDGMENT :

By filing this Writ Petition under Article 226 of the Constitution of India, the petitioner has prayed for quashing the Order dated 28.09.2018 (Annexure-P5) and for a direction to issue fresh order for promotion. The petitioner has also prayed for compensation for being subjected to mental trauma and humiliation.

2. The case of the petitioner, as presented in the writ petition, is that in pursuance of a Notification dated 17.06.2005 (Annexure P-1), the respondent no.1 had issued a common Order dated 26.09.2018, whereby the petitioner was promoted on officiating basis along with 193 Group-D employees serving in various Government Departments to the post of Lower Division Clerk (LDC). Pursuant to the aforesaid order, the petitioner had joined the post on 27.09.2018. However, by another Order dated 28.09.2018, the officiating promotion order of the petitioner was withdrawn without assigning any reason and without issuing any show cause notice to the petitioner and he was brought back to the post of Cook.

3. It is pleaded that he was promoted on officiating basis after he had served for more than 20 years in the post of Cook in Sikkim Armed Police and he had the requisite qualification for being promoted. There were other Cooks who were also promoted on officiating basis by the said Order dated 26.09.2018 but the promotion order was withdrawn only in respect of the petitioner.

4. The respondents no.1 and 2 had filed a counter affidavit, wherein it is stated that the petitioner was appointed as a Cook in the Sikkim Armed Police vide Order dated 13.11.1998 under the post of Follower in the Group-D cadre in Sikkim Police and the service of the petitioner is governed by Sikkim Armed Police Force (Recruitment, Promotion and other Conditions of Service) Rules, 1989 (for short, the Rules of 1989). Copy of the appointment order of the petitioner was annexed with the affidavit. At the relevant time, the petitioner was working as a Cook in Sikkim Armed Police, Pangthang and the officiating promotion order of the petitioner to the post of LDC was erroneously and inadvertently issued. The said officiating promotion order was issued under Sikkim Sub-ordinate (Ministerial and Executive) Service Rules, 1984 (for short, the Rules of 1984). When a joint representation was received from the Follower (Cook) of Police Department, respondents re-verified the documents of the petitioner whereupon it was realized that the petitioner was appointed under Sikkim Police cadre and not under any civil post. In the said officiating promotion order, the petitioner was erroneously shown as Office Attendant while he was, in fact, a Cook under Sikkim Armed Police. An Assured Career Progression Scheme (ACPS) and a Modified Assured Career Progression Scheme (ACPS) were issued under revised Office Memorandum dated 18.08.2018, extending the same to the Follower of Sikkim Police. That apart, a Notification dated 21.01.2019 was issued notifying uniform promotion avenues for the Follower under Sikkim Police service.

5. A rejoinder affidavit was filed by the petitioner stating that that the officiating promotion was given to all Government servants in Group-D working in various departments and the persons who were appointed along with the petitioner vide Order dated 13.11.1998 were not considered for promotion because they did not possess the basic educational qualification of Class-X pass. It is also stated that neither in the Order dated 13.11.1998 nor in the Rules of 1989, the post of Cook is termed as Follower and that the Rules of 1989 do not cover promotion of Office Attendant/Cook and the post of Office Attendant/ Cook does not fall under the Rules of 1989.

6. Mr. A. Moulik, learned Senior Counsel for the petitioner, has submitted that while the other Cooks, who were promoted on officiating basis, have been allowed to continue, the petitioner had been singled out and discriminatorily treated by the respondents by withdrawing his officiating promotion order. Dr