r\ -- .{ I. THE HIGH COURT OF SIKKIM : GANGTOK (Civil Extra Ordinary Jurisdiction) DATED : 01.09.2011 CORAM HON'BLE MR. JUSTICE S. P. WANGDI, ACTING CHIEF JUSTICE. W.PfcI NO. 26 0F 2009 Mrs. Guruwati Singh, Account Assistant/ Cash Assistant, State Bank of Sikkim, Gangtok Head Office at 31-A National Highway P.O. Gangtok, East Sikkim. Mrs. Deo Kumari Thapa, Account Assistant/ Cash Assistant, State Bank of Sikkim, Tashiling Secretariat Branch, P.O. Tashiling Secretariat, Gangtok, Sikkim. Mrs. Pema Choden Bhutia, Account Assistant/ Cash Assistant, State Bank of Sikkim, Deorali Branch, P.O. Deorali, Gangtok, East Sikkim. Mrs. Bim[a Subedi, Account Assistant/ Cash Assistant, State Bank of Sikkim, Gyalshing Branch, P.O. Gyalshing, West Sikkim. C\ Mrs. Usha Kiran Thapa, Account Assistant/ Cash Assistant, State Bank of Sikkim, Gangtok Head Office at 31-A Nat:ional Highway P.O. Gangtok, East Sikkim. Mr. Topching Sangderpa, Account Assist:ant/ Cash Assistant, State Bank of Sikkim, Dentam Branch, P.O.Dentam, West Sikkim. Mr. Tserjng Thendup, Account Assistant:/ Cash Assistant, State Ban.k of Sikkim, Gyalshing Branch, P.O. Gyalshing, West Sikkim. Mrs. Phupu Doma, Account Assistant/ Cash Assi'stant, State Bank of Sikkim, Tashiling Secretariat Branch, P.O. Tashiling Secretariat, Gangtok, East Sikkim. Miss i-serimg Palmoo 8 hutia, Account Assistant/ Cash Assistant, State Bank of Sikkim, M.G. Marg Branch, P.O. Gangtok, East Sikkim. 10. Mr. Punya Pd. Sharma, Account Assistant/ Cash Assistant, Stat:e Bank of Sikkim, Gangtok Head Office at 31-A National Highway P.a. Gangtok, East Sikkim •r``t`.. I -i 11. Mrs. Laden Bhutia, Account Assistant/ Cash Assistant:, State Bank of Sikkim, Gangtok Head Office at 31-A National Highway P.O. Gangtok, East Sikkim. 12. Mrs. Dil Maya Gurung, Account Assistant/ Cash Assistant, State Bank of Sikkim, Gangtok Head Office at 31-A National Highway P.O. Gangtok, East Sikkim. 13. Mrs. Bhakt:i Kumari Tewari, Account Assistant/ Cash Assistant, State Bank of Sikkim, Singtam Branch, P.O. Singtam, East Sikkim. 14. Mr. Ben].amin Pega, Account Assistant/ Cash Assistant, State Bank of Sikkim, Sombaria Branch P.O. Sombaria, West Sikkim. 15. Mrs. Chachuden.Bhutia, Account Assistant/ Cash Assistant, State Bank of Sikkim, Gyalshing Branch, P.O. Gyalshing, West Sikkim. 16. Mr. Bal Kumar Rai, Jr. Account Assistant/ Jr. Cash Assistant, State Bank of Sikkim, Namchi Branch, P.O. Namchi, South Sikkim. i9&` = 17. Mrs. Tara sharma, Jr. Account Assistant/ Jr. Cash Assistant:, Stat:e Bank of Sikkim, Singtam Branch, P.O. Singtam, East Sikkim. 18. Mrs. Chiden Bhutia, Jr. Account: Assistant/ Jr. Cash Assistant, State Bank of Sikkim, Tashiling Secretariat Branch, P.O. Tashiling Secretariat, Gangtok, East Sikkim. 19. Mrs. Sumati Chettri, Jr. Account Assistant/ Jr. Cash Assistant, State Bank of Sikkim, Singtam Branch, P.O. Singtam, East Sikkim. 20. Mrs. Menuka Devi Sharma, Jr. Account Assistant/ Jr. Cash Assistant, State Bank of Sikkim, Jorethang Branch, P.O. Jorethang, South Sikkim. 21. Mrs. Mala Bhutia, Jr. Account Assistant/ Jr. Cash Assistant, State Bank of Sikkim, Gangtok Head Officer, 31-A, National Highway. P.O. Gangtok, East Sikkim. 22. Mr. Chamchey Bhutia, Jr. Account Assistant/ Jr. Cash Assistant:, State Bank of Sikkim, Ravang[a Branch, P.O. Ravangla, South Sikkim. 23. Mrs. Shova Gurung, Jr. Account Assistant/ Jr. Cash Assistant, State Bank of Sikkim, Soreng Branch, P.O. Soreng, West Sikkim. 24. Mr. Puma Kr. Chettri, Jr. Account Assistant/ Jr. Cash Assistant, State Bank of Sikkim, Namchi Branch, P.O. Namchi, South Sikkim. 25. Mr. Ranjit chettri, Jr. Account Assistant/ Jr. Cash Assistant, St:ate Bank of Sikkim, Sombaria Branch, P.O. Sombaria, West Sikkim. 26. Mrs. Ran Maya Gurung, Jr. Account Assistant/ Jr. Cash Assistant, State Bank of Sikkim, Soreng Branch, P.O. Soreng, West Sikkim. 27. Mrs. Rupa Mukhia, Jr. Account Assistant/ Jr. Cash Assistant, 'State Bank of Sikkim, Jorethang Branch, P.O. Joret:hang, South Sikkim. 28. `Mr. Dil KumarRai, Jr. Account Assistant/ Jr. Cash Assist:ant, State Bank of Sikkim, Rangpo (Check Post) Branch, P.O. Rangpo, East Sikkim. 0¥'' 29. Mrs. Aruna Lama, Jr. Account Assistant/ Jr. Cash Assistant, State Bank of Sikkim, Gangtok Head Officer, at 31-A, National Highway. P.O. Gangtok, East Sikkim. 30. Mrs. Uma Pradhan, Jr. Account Assistant/ Jr. Cash Assistant, State Bank of Sikkim, Deorali Branch P.O. Deorali, East Sikkim. 31. Puspa Lata Jr. Account Assistant/ Jr. Cash Assistant:, State Bank of Sikkim, Soreng Branch, P.O. Soreng, West Sikkim. 32. Mrs. Hissey Doma, Jr. Account Assistant/ Jr. Cash Assistant, State Bank of Sikkim, Soreng Branch, P.O. Soreng, West Sikkim. 33. Mrs. Durga MayaThapa, Jr. Account: Assistant/ Jr. Cash Assist:ant, State Bank of Sikkim, Singtam Branch, P.O. Singtam, East Sikkim. 34. Mrs. Angi Ongmu Lepcha, Jr. Account Assistant:/ Jr. Cash Assist:ant, State Bank of Sikkim, Gangtok Head Officer, at 31-A, National Highway. P.O. Gangtok, East Sikkim. Og,I 35. Miss sunita pradhan, Jr. Account Assistant/ Jr. Cash Assistant, State Bank of Sikkim, Rangpo (Check Post) Branch, P.O. Rangpo, East Sikkim. 36. Kama[a Rai, Jr. Account Assistant/ Jr. Cash Assistant, State Bank of Sikkim, Soreng Branch, P.O. Soreng, West Sikkim. 37. Mrs. Pratima Thapa, Jr. Account Assist:ant/ Jr. Cash Assistant, State Bank of Sikkim, M.G. Marg Branch, P.O. Gangtok, East Sikkim. 38. Mr. Shanta Dhoj Subba, Jr. Account Assistant/ Jr. Cash Assistant, State Bank of Sikkim, Dentam Branch, P.O. Dentam Bazar, West Sikkim. 39. Mr. Tharma Nath chettri, Jr. Account Assistant/ Jr. Cash Assistant, St:ate Bank of Sikkim, Mangan Branch, P.O. Mangan, Nort:h Sikkim. 40. Mrs. Shanti Kumari Pradhan, Jr. Account Assistant/ Jr. Cash Assist`ant, State Bank of Sikkim, Gangtok Head Office, at 31-A, National Highway, P.O. Gangtok, East Sikkim. 0&,1 41. Mr. Rudra Kumarsubedi, Jr. Account Assistant/ Jr. Cash Assist:ant, State Bank of Sikkim, Rabdentse Branch, P.O. Gyalshing, West Sikkim. 42. Mrs. Padma Rai-I, Jr. Account Assistant/ Jr. Cash Assistant, State Bank of Sikkim, Namchi Branch, P.O. Namchi, South Sikkim. 43. Mrs. Bindya Pradhan, Jr. Account Assistant/ Jr. Cash Assistant, State Bank of Sikkim, Gangtok Head Office at 31-A, National Highway, P.O. Gangtok, East Sikkim. 44. Mrs. Sangeeta Pradhan, Jr. Account Assistant:/ Jr. Cash Assistant:, State Bank of Sikkim, M.G. Marg Branch, P.O. Gangtok, East Sikkim. Versus Petitioners The State Bank of Sikkim, a body corporate represented by and through its Managing Director having its Head Office at 31-A, National Highway, Gangtok, P.O. Gangtok, East Sikkim -737101. The Board of Directors of the State Bank of Sikkim represented by and through its Managing Director, having its Head Office at iE 31-A, National Highway, P.O. Gangtok, 737101. The managing Director of State Bank of Sikkimg, having its Head Office at 31-A, National Highway, P.O. Gangtok, 737101. The State of Sikkim, represented by and through the Secretary, Finance, Tashiling Secretariat, Gangtok, P.O. Tashiling Secretariat, Gangtok, East Sikkim. Miss Tshering Uden, Sr. Account Assistant/ Sr. Cash Assistant, State Bank of Sikkim, Establishment Section Head Office, at 31-A National Highway, Gangtok, P.O. Gangtok, East Sikkim. Mrs. Usha Devi Chhetri, Sr. Account Assistant/ Sr. Cash Assistant, State Bank of Sikkim, Deorali Branch, P.O. Deorali, Gangtok, East Sikkim. Mr. Bibek Kr. Pradhan, Sr. Account Assistant/ Sr. Cash Assistant, State Bank of Sikkim, Gangtok Head Office, at 31-A Nat:iona[ Highway, Gangtok, P.O. Gangtok, East Sikkim. |J'`) 10 Mr. Diwakar Rai, Sr. Account: Assistant/ Sr. Cashl'i Assistant, State Ba'nk of Sikkim, M.G. Marg Branch, P.O. Gangtok, East Sikkim. Mr. Dinesh Chandra Rai, Sr. Account Assistant/ Sr. Cash Assist:ant, State Bank of Sikkim, Chungthang Branch, P.O. Chungthang, North Sikkim. 10. Mr. RapdenTsh. Bhutia, Sr. Account Assistant/ Sr. Cash Assistant, State Bank of Sikkim, Gangtok Head Office at 31-A National Highway, P.O. Gangtok, East Sikkim. 11. Mr. Sunil Kr. Tamang, Sr. Account Assistant/ Sr. Cash Assistant, State Bank of Sikkim, (O.D. Section), Gangtok Head Office at 31-A National Highway, P.O. Gangtok, East Sikkim. 12. Mr. MandorjeeTamang, Sr. Account Assistant/ Sr. Cash Assistant, State Bank of Sikkim, (Cash Section), Gangtok Head Office, at 31-A, National Highway, P.O. Gangtok, East Sikkim. 13. Mr, Norden Shenga, Sr. Account Assistant/ Sr. Cash Assistant, State Bank of Sikkim, 11 Rangpo Checkpost Counter Branch, P.O. Rangpo, East Sikkim. 14. Mrs. Namgyal Donka Bhutia, Sr. Account Assistant/ Sr. Cash Assistant, State Bank of Sikkim, (Cash Section), Gangtok Head Office, at 31-A, National Highway, P.O. Gangtok, East Sikkim. 15. Mrs. Kusum Pradhan, Sr. Account Assistant/ Sr. Cash Assist:ant, State Bank of sikkim, Mangan Branch, P.O. Mangan, North Sikkim. 16. Mrs. Choden Bhutia, Sr. Account Assistant/ Sr. Cash Assistant:, State Bank of Sikkim, Gangtok Head Office, at 31-A, National Highway, P.O. Gangtok, East: Sikkim. 17. Mrs. Subhadra Pradhan, Sr. Account: Assist:ant/ Sr. Cash Assistant, State Bank of Sikkim, (Cash Section), Gangtok Head Office, at 31-A, National Highway, P.O. Gangtok, East Sikkim. 18. Mrs. Rinchen Doma Bhutia, Sr. Account Assistant/ Sr. Cash Assistant, State Bank of Sikkim, Gyalshing Branch, P.O. Gyalshing, West Sikkim. 12 19. Mrs. Permila Gurung, Sr. Account Assistant/ Sr. Cash Assistant, State Bank of Sikkim, Namchi Branch, P.O. Namchi, South Sikkim. 20. Mr. Dawa.Sherpa, Sr. Account Assistant/ Sr. Cash Assistant, State Bank of Sikkim, (Loan Section), Gangtok Head Office, at 31-A, National Highway, P.O. Gangtok, East Sikkim. 21. Mr. Tashil|Tsh. Lachungpa, Sr. Account Assistant/ Sr. Cash Assistant, State Bank of Sikkim, Chungthang Branch, P.O. Chungthang, North Sikkim. 22. Mrs. Chhali Maya Subba, Sr. Account Assistant/ Sr. Cash Assist:ant, State Bank of Sikkim, Tashiling Secretariat Branch, P.O. Tashiling Secretariat, Gangtok, East Sikkim. 23. Ms. Tshering Yanki Bhutia, Sr. Account Assistant/ Sr. Cash Assistant, State Bank of Sikkim, (Cash Section), Gangtok Head Office, at 31-A, National Highway, P.O. Gangtok, East Sikkim. 24. Mrs. Krishna Kala Pradhan, Sr. Account Assist:ant/ Sr. Cash Assistant, State Bank of Sikkim, 13 `b * . I (Cash Section), Gangtok Head Office, at 31-A, National Highway, P.O. Gangtok, East Sikkim. 25. Mrs. Chewang Lhamu, Sr. Account Assistant/ Sr. Cash Assistant, St:ate Bank of Sikkim, (Cash Section), Gangtok Head Office, at 31-A, National Highway, P.O. Gangtok, East Sikkim. 26. Mrs. Pavitra subba, Sr. Account Assistant/ Sr. Cash Assistant, State Bank of Sikkim, Tashiling Secretariat Branch, P,O. Tashiling Secretariat, Gangtok,, East Sikkim. 27. Mrs. Kalpana pradhan, Sr. Account Assistant/ Sr. Cash Assistant, State Bank of Sikkim, Ranipooli',lBranch, P.O. Ranipool, East Sikkim. I....Respondents For the petit:ioner : Mr. A. Moulik, Senior Advocate with Mr. N.G. Sherpa and Ms. Kessang D. Bhutia, Advocates for the pet:itioners Fortherespondents : Mr. J.B. Pradhan, Additional I, Advocate General wit:h Mr. A.J. I Sharma, Advocate for respondent Nos. 1, 2 & 3 and with Mr. S.K. Chettri, Asstt. Govt. Advocate for respondent No. 4. c\l-.i,7 Mr. K.T. Bhut:ia, Senior Advocate with Ms. Bandana Pradhan, Advocate for respondent Nos. 5 to 20 and 22 to 27. Wangdi, ACJ 1=. 14 JUDGMENT By filing the present writ petition, the petitioners seek to quash the impugned Orders dat:ed 23.01.2009, Circular dated 18.02.2009 and Office Order dated 04.06.2009 filed as Annexure-3, Anenxure-4 and Annexure-10 respectively to the writ petition. It is the case of the petitioners t:hat by issuance of Office Order dated 23.01.2009 (Annexdure-3), the respondents No. 5 to 9 have been given 2 promotions ;e,:rh°Sep:::'tvef'ryo'mf':S8t,I:7:i±S99;una`:::SCC::::::::/nct:;::ear: Cashiers with effect from 08.09.2005 without considering the case of the petitioners, who were equally circumstanced as the respondents No. 5 to 9. It is stated that the effect of the impugned Office Order dat:ed 23.01.2009 (Annexure-3) was as follows: (i) The respondents No. 5 to 9 who were holding the lowest posts of Accounts 15 Z"E (iii) (iv) clerks/Assistant Cashiers were granted ret:rospective promotion to the higher grade of Junior Accountants/Cashiers with effect from 18.07.1997; Those amongst the petitioners who were Junior Accountants/Cashiers promoted in the year 1999 were granted promotion to the post of Accountants/Head Cashiers with effect from 08.06.2005; The respondents No. 5 to 9 were deemed to have been promoted to t:he post of Accountants/Head Cashiers with effect from 08.06.2005 6stensibly to rest:ore their seniority vis-a-vis the others including the pet:itioners holding t:he post of Accountants/Head Cashiers; and By this the rights of the petitioners who were holding equivalent posts and `Similarly circumstanced as t:he respond`erits No. 5 to 9 were effected adversely. 16 It is further the case of the pet:itioners is that they were always treated at par with respondents No. 5 to 9 and educational qualification had never been adopted as the criteria for promotion, which will be established from the fact that they were promoted as Accounts Assistants/Cash Assist:ants together vide Office Order dated 23.08.2005 being Annexure-2 to the writ petition. That the classification of t:he respondents on the basis of them being(I graduates was dehors the rules. Although such classification was permissible, it cannot be applied retrospectively. The respondents-Bank by adopting such classification and applying it retrospectively, has unsettled the settled position of seniority of the petitioners No. 1 to 5 rendering them ].uniors to respondents No. 5 to 9, who otherwise were ].uniors to the petitioners in the rank of Junior Accounts Assistants/Junior Cash Assistants. That the matter got worse confounded when by the impugned order dated 23.01.2009 (Annexure-3) the respondents No. 5 to 9 were again promoted to the posts cry 17 of Senior Accounts Assist:ants/ Senior Cash Assistants retrospectively with effect from 08.06.2005. It is stat:ed that the graduates had no exclusive right for promotion and, although they may be entitled to being given preference but were not be exempted from facing the departmental promotionllexamination. 7. As regards (the impugned Circular dated 18.2.2009 (Annexure-4) is concerned, the petitioners contended that I:he Circular is grossly illegal as it provides for giving double promotion to the employees working in the posts of Junior Accounts Assistants/ Junior Cash Assistants directly to the post of Senior Accounts Assistants/ Senior Cash Assistants wit:hout having first to cross the position of the Accounts Assistant:s/ Cash Assistants thereby giving unfair advantage to them. It is further contended that the Circular was bad for seeking option from the interested candidates/ participants to sit for the departmental promotion examination because consideration for promotion was a matt:er of right for the employees and as a model employer the Bank could not have sought for such option. 18 It is stated that the Circular (Annexure-4) was a modified form of an earlier Circular dated 14.07.2008 filed as Annexure-5 to the writ petition and t:he scheduled I examination based .uppn the Circular had been kept abeyance as the petitioners had represented against it. It is furt:her contended that the representation submitted by the petitioners against the Order dated 23.01.2009 (Annexure-3) and Circular dated 18.02.2009 (Annexure- 4) have been ignored bv|the respondents-Bank. It is the case of the petitioners that they had ob].ected t:o the requirement of appearing in the examination pursuant: to the Circular dated 18.02.2009 (Annexure-4) but they were compelled to do so on being threatened by the respondents-Bank as regards their fut:ure promotions. Accordingly, they had appeared in the examination for promotion to the post of Senior Accounts Assistants/ Senior Cash Assistants held on 01.03.2009, but were deliberately failed, selecting respondents No. 10 to 27 illegally vide Office'Order dated 04.06.2009, filed as Annexure-10 to the writ petition. 19 10. It is alleged that the examination held on 01.03.2009 lacked fairness in as much as there was mass copying as most of the successful respondents had sat around the same table in the examination hall permitting unfair practice withoJt being ob].ected to by t:he I examiners. On the above premises, the petitioners submit that the Office Order dated 23.01.2009 (Annexure-3), Circular dated 18.02.2009 (Annexure-4) and the Office Order dated 04.06.2009 (Annexure -10) deserves to be quashed and set aside. 11. The respondents No. 1, 2 and 3 by filing a common counter-affidavit: have denied all material allegations and have defended the action of the respondents-Bank in the following premises. 12. That t:he impugned Office Order dated 23.01.2009 (Annexure-3l) was issued in order to give I effect to the resolution of the Board of Directors in its 121St Board MeetingJ held on 18.07.1997 by which the respondents No. 5 to 9 had been granted promotion from the posts of Account:s Clerk/Assistant Cashier to the higher post of Junior Accountants/Cashiers giving due 20 regard to their qualification as graduates and in consideration that they were having seven years of continuous service. This resolution had been overlooked by the respondents-Bank resulting in formal Office Order not being issued in the y,ear 1997. 13. The facts and circumstances leading to the passing of t:he resolution by the Board of Directors on 18.07.1997 that have been set out: in t:he counter- affidavit on behalf of the respondents No. 1, 2 and 3 may be reproduced below: ``(iii) That in the year 1984 large number of Under mat:ric/ matric including some of these Petitioners were appointed to the post of Accounts clerk, Assistant Cashiers (redesignated as Jr. Accounts Assist:ant/Jr. Cashii Assistant). Five graduate candidates i.e. the respondent Nos. 5 to 9 were appointed in the year 1988-89 and t:he petitioner No. 43 who is also a graduate was appointed in the year 1994 to the post of Accounts clerk (redesignated as Jr. Accounts Assistant/Jr. Cash Assistant). In eighties t:here was dearth of graduate people in the State of Sikkim which resulted into the appointment of large number of under metric, metric passed candidates to the post of Accounts Clerks as no minimum qualifications had been prescribed for t:he said post. That the respondent Bank being a commercial orga nization competing with other Nationalized and Non- Nationalized Banks had to give emphasis on the efficiency of E;erekTp,%eoes.A::ordjhnj3lhy6rtho::u€:€j%::i qual.ification were being given work of Clerk =P¥\` 21 higher responsibility such as to assist internal audit, establishment work etc. The work bf internal audit involve physical verification and checking of cash balance, examination of cash books and ledger, verification expenses incurred against predetermined budgets. Since those works can beiiperformed only by a person having higher educational qualification, those Accounts Clerks who were Graduat:es were assign±d the said aforesaid works. It is pertiheht t:o st:ate here that other Account Clerks "who were metric or under metric were n'ot be able to do the above function. Similarly establishment work of the Bank require,s knowledge of rules and regulations of the Bank and involves the preparation of salary Statement etc. They are also -called upon to assist Controlling Officers whose responsibility is wit:h regard to short term and lohg term investments of respondent Bank with other Nationalized Bank and keeping account and record of such investrhent. The above such jobs can be understood and handled only by persons with certain higher educational qualification. In t:he respondent Bank, the aforesaid work had/were assigned to those Accouht Clerk who were Graduates. It is submitted that those Accounts Clerks who, were' blither Matric or under matric are not qualified and do not possess the accumenship to either assist or handle such nature of works. In t:he respondent Bank •such aforementioned work/duties had been assigned to only t:hose Account Clerks who were Graduates and who were capable of discharging the said duties and responsibilities. That in view of the work assigned to the graduate Accounts Clerks they were given 3 advance increments. That keeping in view of the background of appointment, in the absence of. rules prescri,bing minimum qualification to t:he post' of Accounts Clerks, nature of job assigned to and carried out by the graduate Accounts Clerks, and to achieve the efficiency in the work vide resolution dat:ed 18/07/1997 No. 11(8) (Annexure R-1) the respondent Nos. 5 to 9 who were graduates and hadi completed seven years service were promoted to the post of Jr. Otsi 22 Accountants. It is humbly submitt:ed that the weightag.e given to higher educational qualification has got direct co-relat:ion to the administrat:ive efficiency and the efficiency of t:he employees of t:he bank who are responsible to carry out t:heir assigned duties in the age of competition. (iv) That in the year 2005 the respondent Bank issued an office order No. SBS/GTK/H. O,/37/20 05/275 dated 23/08/2005 (Annexure 2 to the writ petition) thereby inadvertently promoting respondent No. 5, 6,7,8 & 9 in the post of Accounts Assistant either named as Junior Accountant along with 22 other employees in the pay scale of Rs.4000-100-6000/- with effect from 08/06/2005. However, having come to know that respondent No. 5, 6, 7, 8 & 9 were already promoted t:o the post of Junior Accountant:s (re-designated post as Accounts Assistant) in t:he year 1997 by the Board of Directors, the respondent No. 3 to correct the anomaly and in all fairness issued office order No. SBS/GTK(HO)/ 41/09/3437 dated 23rd lan. 2009, (Annexure 3 to the writ petition, thereby promoting the respondent Nos. 5, 6, 7, 8 and 9 to t:he post of Junior Accountants (Now re-designated as Accounts Assistant) in the scale of 1080- 1760 I (Revised pay scale 4000-100-6000) w.e.f. 18/07/1997. As t:he respondent Bank had given promotion to all other Junior Accountant/Cashier who were holding the said post in the year 1999 in the post of Accountant, the respondent No. 5 to 9 were further promotion to the post of Accountant/Head Cashier in the scale of 4500-135-7200 w.e.f. 08.06,2005 vide Office Order No. 318 dated 08.09.2005 to maintain equality with an object not to deprive anyone from inter-se-seniority in the post of Accountant/Head Cashier in the pay scale of Rs.4500-135-7200." 23 14. As regards the object behind the issuing of Circular dated 18.02.2009 (Annexure-R 4), it has been averred as follows: I ``4. That due to non availability of promotional posts in time, a large number of Junior Accounts Assist:ants/Junior Cash Assistants werelserving in the same post for more than 15 years and to remedy t:he same t:he 3::sr:d°faD!:::::I:jo°nftrne[tessp::g:hntBBoaanr5 Meeting held on 11.04.2007 to the effect that the future promotion be given purely on merit/performance by conducting departmental competitive examination. The copy of t:he said resolut:ion is annexed herein and marked as Annexure R-4. The respondent Bank with the intention to provide promotion to those Junior Account:s Assistants/ Junior Cash Assistants having minimum 15 years of continuous service to the posts of Senior Accounts Assistant/ Senior Cash Assistant: decided t:o conduct departmental competitive examination. While giving chance of promotion to the Junior Accounts Assistants/ Junior Cash Assistants as aforesaid the interest of Accounts Assistants/ Cash Assistant:s was also,taken care of and they too with the mini,'mum service of 3 years in the post of Accounts Assistant/ Cash Assistant were made eligible for promotion to t:he post of Senior Accounts Assistant/ Senior Cash Assist:ant through departmental competitive examination. Further, to ensure fair play, reasonableness and equal treatment all interest:ed candidates/ participants were given time to submit their willingness on or before 27/02/2009 and Circular (Internal) t:o that effect bearing reference No. SBS/GTK/ (H O)41/09/3487 dated 08/02/2009, (Annexure-4 to the Writ Petition), was issued." 15. It is stated that all the petitioners had opted to I sit for the examinat:ion in pursuance of t:he Circular dated a 24 18.02.2009 (Annexure-4) by submitting their willingness in writing and participated in the entire selection process being fully aware of the criteria laid down in the I impugned Circular dated 18.02.2009 (Annexure-4). That the petitioners and others, who are not party t:o the present writ petition, did not object either orally or in writing against the Circular dated 18.02.2009 (Annexure -4), but rather choose'l'to abide by it. It is stated that the petitioners after having participated in the entire selection process with 'full knowledge of the criteria willingly without any demur and having failed t:o get themselves selected are not now permitted to turn back and allege that the entire selection process was bad. As stated, having participated willingly, the petitioners are now estopped from challenging the selection process as they have waived the right to do so. 16. It is submitt:ed that the petitioners have suppressed t:he fact that they had willingly opted to sit for the examination and, therefore, are not entitled to the discretionary relief under Article 226 of the Constitution I of India. 25 17. The respondents No. 5 t:o 9 by filing a ].oint counter-affidavit: have taken the same stand as that of t:he respondents No.1,,12 and 3 and, therefore, it need not be dealt with in detail for the sake of brevity. 18. At the hearing Mr. A. Moulik, Senior Advocate, learned counsel appearing for the petitioners, submitted that the Office Order dated 23.01.2009 (Anenxure-3) is inherently illegal as it has been issued by an authority having no such power lnder the State Bank of Sikkim Proclamation, 1968 (in short, `the Proclamation') under which the Bank has come into existence and which prescribes the powers and jurisdiction