WP(C)/26/2009 of Guruwati Singh and Ors Vs State Bank Of Sikkim and Ors. on 1 September 2011

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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 Officeat 31-A National HighwayP.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.

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Mrs. Usha Kiran Thapa,Account Assistant/Cash Assistant,State Bank of Sikkim,Gangtok Head Officeat 31-A Nat:ional HighwayP.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 Officeat 31-A National HighwayP.a. Gangtok, East Sikkim •r``t`.. I -i 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 BranchP.O. Deorali, East Sikkim.31. Puspa LataJr. 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.

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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.

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31-A, National Highway,P.O. Gangtok,737101.

The managing Director ofState Bank of Sikkimg, havingits Head Office at31-A, National Highway,P.O. Gangtok,737101.

The State of Sikkim,represented by and throughthe 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.

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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 Officeat 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 Officeat 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, 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.

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, (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 Advocatewith Mr. N.G. Sherpa and Ms.Kessang D. Bhutia, Advocates forthe pet:itionerswith Mr. N.G. Sherpa and Ms.Kessang D. Bhutia, Advocates forthe pet:itioners Fortherespondents : Mr. J.B. Pradhan, Additional I, Advocate General wit:h Mr. A.J.I Sharma, Advocate for respondentNos. 1, 2 & 3 and with Mr. S.K.Chettri, Asstt. Govt. Advocate forrespondent No. 4.I Sharma, Advocate for respondentNos. 1, 2 & 3 and with Mr. S.K.Chettri, Asstt. Govt. Advocate forrespondent No. 4.

Mr. K.T. Bhut:ia, Senior Advocatewith Ms. Bandana Pradhan,Advocate for respondent Nos. 5to 20 and 22 to 27.with Ms. Bandana Pradhan,Advocate for respondent Nos. 5to 20 and 22 to 27.

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JUDGMENT

Wangdi, ACJ

By filing the present writ petition, thepetitioners seek to quash the impugned Orders dat:ed23.01.2009, Circular dated 18.02.2009 and Office Orderdated 04.06.2009 filed as Annexure-3, Anenxure-4 andAnnexure-10 respectively to the writ petition.

It is the case of the petitioners t:hat by issuanceof Office Order dated 23.01.2009 (Annexdure-3), therespondents 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 equallycircumstanced as the respondents No. 5 to 9.

It is stated that the effect of the impugnedOffice Order dat:ed 23.01.2009 (Annexure-3) was asfollows:

(i) The respondents No. 5 to 9 who wereholding the lowest posts of Accounts Z"E

(iii)

(iv)

clerks/Assistant Cashiers were grantedret:rospective promotion to the highergrade of Junior Accountants/Cashiers witheffect from 18.07.1997; Those amongst the petitioners who wereJunior Accountants/Cashiers promoted inthe year 1999 were granted promotion toJunior Accountants/Cashiers promoted inthe year 1999 were granted promotion to the post of Accountants/Head Cashierswith effect from 08.06.2005;with effect from 08.06.2005; The respondents No. 5 to 9 were deemedto have been promoted to t:he post ofAccountants/Head Cashiers with effectfrom 08.06.2005 6stensibly to rest:oreto have been promoted to t:he post ofAccountants/Head Cashiers with effectfrom 08.06.2005 6stensibly to rest:ore

their seniority vis-a-vis the othersincluding the pet:itioners holding t:he postof Accountants/Head Cashiers; andincluding the pet:itioners holding t:he postof Accountants/Head Cashiers; and By this the rights of the petitioners who were holding equivalent posts and `Similarly circumstanced as t:herespond`erits No. 5 to 9 were effectedadversely.respond`erits No. 5 to 9 were effectedadversely.

It is further the case of the pet:itioners is thatthey were always treated at par with respondents No. 5to 9 and educational qualification had never beenadopted as the criteria for promotion, which will beestablished from the fact that they were promoted asAccounts Assistants/Cash Assist:ants together vide OfficeOrder dated 23.08.2005 being Annexure-2 to the writpetition.

That the classification of t:he respondents onthe basis of them being(I graduates was dehors the rules.Although such classification was permissible, it cannot beapplied retrospectively. The respondents-Bank byadopting such classification and applying itretrospectively, has unsettled the settled position ofseniority 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 AccountsAssistants/Junior Cash Assistants.

That the matter got worse confounded when bythe impugned order dated 23.01.2009 (Annexure-3) therespondents No. 5 to 9 were again promoted to the posts cry of Senior Accounts Assist:ants/ Senior Cash Assistantsretrospectively with effect from 08.06.2005. It is stat:edthat the graduates had no exclusive right for promotionand, although they may be entitled to being givenpreference but were not be exempted from facing thedepartmental promotionllexamination.

7. As regards (the impugned Circular dated18.2.2009 (Annexure-4) is concerned, the petitionerscontended that I:he Circular is grossly illegal as it providesfor giving double promotion to the employees working inthe posts of Junior Accounts Assistants/ Junior CashAssistants directly to the post of Senior AccountsAssistants/ Senior Cash Assistants wit:hout having first tocross the position of the Accounts Assistant:s/ CashAssistants thereby giving unfair advantage to them.

It is further contended that the Circular wasbad for seeking option from the interested candidates/participants to sit for the departmental promotionexamination because consideration for promotion was amatt:er of right for the employees and as a modelemployer the Bank could not have sought for such option.

It is stated that the Circular (Annexure-4) was a modifiedform of an earlier Circular dated 14.07.2008 filed asAnnexure-5 to the writ petition and t:he scheduledexamination based .uppn the Circular had been keptIabeyance as the petitioners had represented against it.It is furt:her contended that the representation submittedby 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 hadob].ected t:o the requirement of appearing in theexamination pursuant: to the Circular dated 18.02.2009(Annexure-4) but they were compelled to do so on beingthreatened by the respondents-Bank as regards theirfut:ure promotions. Accordingly, they had appeared in theexamination for promotion to the post of Senior AccountsAssistants/ Senior Cash Assistants held on 01.03.2009,but were deliberately failed, selecting respondents No. 10to 27 illegally vide Office'Order dated 04.06.2009, filed asAnnexure-10 to the writ petition.

10. It is alleged that the examination held on01.03.2009 lacked fairness in as much as there was masscopying as most of the successful respondents had sataround the same table in the examination hall permittingunfair practice withoJt being ob].ected to by t:heIexaminers. On the above premises, the petitionerssubmit 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 acommon counter-affidavit: have denied all materialallegations and have defended the action of therespondents-Bank in the following premises.

12. That t:he impugned Office Order dated23.01.2009 (Annexure-3l) was issued in order to giveIeffect to the resolution of the Board of Directors in its121St Board MeetingJ held on 18.07.1997 by which therespondents No. 5 to 9 had been granted promotion fromthe posts of Account:s Clerk/Assistant Cashier to thehigher post of Junior Accountants/Cashiers giving due regard to their qualification as graduates and inconsideration that they were having seven years ofcontinuous service. This resolution had been overlookedby the respondents-Bank resulting in formal Office Ordernot being issued in the y,ear 1997.

13. The facts and circumstances leading to thepassing of t:he resolution by the Board of Directors on18.07.1997 that have been set out: in t:he counter-affidavit on behalf of the respondents No. 1, 2 and 3 maybe reproduced below:

``(iii) That in the year 1984 large number ofUnder mat:ric/ matric including some ofthese Petitioners were appointed to thepost of Accounts clerk, Assistant Cashiers(redesignated as Jr. Accounts Assist:ant/Jr.Cashii Assistant). Five graduate candidatesi.e. the respondent Nos. 5 to 9 wereappointed in the year 1988-89 and t:hepetitioner No. 43 who is also a graduatewas appointed in the year 1994 to the postof Accounts clerk (redesignated as Jr.Accounts Assistant/Jr. Cash Assistant). Ineighties t:here was dearth of graduatepeople in the State of Sikkim whichresulted into the appointment of largenumber of under metric, metric passedcandidates to the post of Accounts Clerksas no minimum qualifications had beenprescribed for t:he said post. That therespondent Bank being a commercialorga nization competing with otherNationalized and Non- Nationalized Bankshad to give emphasis on the efficiency ofE;erekTp,%eoes.A::ordjhnj3lhy6rtho::u€:€j%::iqual.ification were being given work of Clerk =P¥\`

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higher responsibility such as to assistinternal audit, establishment work etc. Thework bf internal audit involve physicalverification and checking of cash balance,examination of cash books and ledger,verification expenses incurred againstpredetermined budgets. Since those workscan beiiperformed only by a person havinghigher educational qualification, thoseAccounts Clerks who were Graduat:es wereassign±d the said aforesaid works. It ispertiheht t:o st:ate here that other AccountClerks "who were metric or under metricwere n'ot be able to do the above function.Similarly establishment work of the Bankrequire,s knowledge of rules and regulationsof the Bank and involves the preparation ofsalary Statement etc. They are also -calledupon to assist Controlling Officers whoseresponsibility is wit:h regard to short termand lohg term investments of respondentBank with other Nationalized Bank andkeeping account and record of suchinvestrhent. The above such jobs can beunderstood and handled only by personswith certain higher educationalqualification. In t:he respondent Bank, theaforesaid work had/were assigned to thoseAccouht Clerk who were Graduates. It issubmitted that those Accounts Clerks who,were' blither Matric or under matric are notqualified and do not possess theaccumenship to either assist or handle suchnature of works. In t:he respondent Bank•such aforementioned work/duties had beenassigned to only t:hose Account Clerks whowere Graduates and who were capable ofdischarging the said duties andresponsibilities. That in view of the workassigned to the graduate Accounts Clerksthey were given 3 advance increments.That keeping in view of the background ofappointment, in the absence of. rulesprescri,bing minimum qualification to t:hepost' of Accounts Clerks, nature of jobassigned to and carried out by the graduateAccounts Clerks, and to achieve theefficiency in the work vide resolution dat:ed18/07/1997 No. 11(8) (Annexure R-1) therespondent Nos. 5 to 9 who were graduatesand hadi completed seven years servicewere promoted to the post of Jr.

Accountants. It is humbly submitt:ed thatthe weightag.e given to higher educationalqualification has got direct co-relat:ion tothe administrat:ive efficiency and theefficiency of t:he employees of t:he bankwho are responsible to carry out t:heirassigned duties in the age of competition.

(iv) That in the year 2005 the respondent Bankissued an office order No.SBS/GTK/H. O,/37/20 05/275 dated23/08/2005 (Annexure 2 to the writpetition) thereby inadvertently promotingrespondent No. 5, 6,7,8 & 9 in the post ofAccounts Assistant either named as JuniorAccountant along with 22 other employeesin 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 thepost of Junior Accountant:s (re-designatedpost as Accounts Assistant) in t:he year1997 by the Board of Directors, therespondent No. 3 to correct the anomalyand 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 JuniorAccountants (Now re-designated asAccounts Assistant) in the scale of 1080-1760 I (Revised pay scale 4000-100-6000)w.e.f. 18/07/1997. As t:he respondentBank had given promotion to all otherJunior Accountant/Cashier who wereholding the said post in the year 1999 inthe post of Accountant, the respondent No.5 to 9 were further promotion to the postof Accountant/Head Cashier in the scale of4500-135-7200 w.e.f. 08.06,2005 videOffice Order No. 318 dated 08.09.2005 tomaintain equality with an object not todeprive anyone from inter-se-seniority inthe post of Accountant/Head Cashier in thepay scale of Rs.4500-135-7200."

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 promotionalposts in time, a large number of JuniorAccounts Assist:ants/Junior Cash Assistantswerelserving in the same post for morethan 15 years and to remedy t:he same t:he3::sr:d°faD!:::::I:jo°nftrne[tessp::g:hntBBoaanr5Meeting held on 11.04.2007 to the effectthat the future promotion be given purelyon merit/performance by conductingdepartmental competitive examination.The copy of t:he said resolut:ion is annexedherein and marked as Annexure R-4. Therespondent Bank with the intention toprovide promotion to those Junior Account:sAssistants/ Junior Cash Assistants havingminimum 15 years of continuous service tothe posts of Senior Accounts Assistant/Senior Cash Assistant: decided t:o conductdepartmental competitive examination.While giving chance of promotion to theJunior Accounts Assistants/ Junior CashAssistants as aforesaid the interest ofAccounts Assistants/ Cash Assistant:s wasalso,taken care of and they too with themini,'mum service of 3 years in the post ofAccounts Assistant/ Cash Assistant weremade eligible for promotion to t:he post ofSenior Accounts Assistant/ Senior CashAssist:ant through departmental competitiveexamination. Further, to ensure fair play,reasonableness and equal treatment allinterest:ed candidates/ participants weregiven time to submit their willingness on orbefore 27/02/2009 and Circular (Internal)t:o that effect bearing reference No.SBS/GTK/ (H O)41/09/3487 dated08/02/2009, (Annexure-4 to the WritPetition), 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 18.02.2009 (Annexure-4) by submitting their willingnessin writing and participated in the entire selection processbeing fully aware of the criteria laid down in theIimpugned Circular dated 18.02.2009 (Annexure-4). Thatthe petitioners and others, who are not party t:o thepresent writ petition, did not object either orally or inwriting against the Circular dated 18.02.2009 (Annexure-4), but rather choose'l'to abide by it. It is stated thatthe petitioners after having participated in the entireselection process with 'full knowledge of the criteriawillingly without any demur and having failed t:o getthemselves selected are not now permitted to turn backand allege that the entire selection process was bad. Asstated, having participated willingly, the petitioners arenow estopped from challenging the selection process asthey have waived the right to do so.

16. It is submitt:ed that the petitioners havesuppressed t:he fact that they had willingly opted to sit forthe examination and, therefore, are not entitled to thediscretionary relief under Article 226 of the ConstitutionIof India.

17. The respondents No. 5 t:o 9 by filing a ].ointcounter-affidavit: have taken the same stand as that oft:he respondents No.1,,12 and 3 and, therefore, it neednot 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, submittedthat the Office Order dated 23.01.2009 (Anenxure-3) isinherently illegal as it has been issued by an authorityhaving no such power lnder the State Bank of SikkimProclamation, 1968 (in short, `the Proclamation') underwhich the Bank has come into existence and whichprescribes the powers and jurisdiction of variousauthorities provided thereunder. Clause 16 of theProclamat:ion provides for the power and remuneration ofIthe Managing Director ,that stipulates, inter alia, thatsub].ect to the general control of the Board, the ManagingDirect:or shall exercise such power and perform suchduties as may be entrusted or delegated to him by theBoard by regulations or otherwise. It is submitted thatthe Board of Directors has not entrusted or delegated totheManagingDirectorth¢powertoissueofficeordersofthe kind as Annexure-3' and, therefore, the impugned Office Order dated 23.01.2009 (Annexure-3) having beenpassed without any ].urisdiction or authority is a nullity,non est and invalid.

19. It is stated that before the impugned OfficeOrder dated 23.01.2009 (Annexure-3) was issued, thepetitioners were treated at par with respondents No. 5 to9, who were governed by a common seniority list and theprescribed qualificationi to be eligible for entry intoGroup-C posts was class X passed and, that t:hisrequirement has remained without any alt:eration even inthe new regulations framed by the Bank. This fact, asper the learned Counsel, stands established when byOffice Order dated 23.08.2005 filed as Annexure-2 to thewrit petition, the petitioners and the respondents No. 5to 9 were promoted together to the post of Account:sAssistants/Cash Assistant with effect from 08.06.2005,but this has been undone by the subsequent Office Orderdated 23.01.2009 (Annexure-3) whereby they were givenretrospective promotion to that post with effect from18.07.1997 and as Accountants/Head Cashiers wit:h effectfrom 08.06.2005, thereby rendering the petitioners ].uniorto them which was impermissible in law as being C? iL

arbitratory and violative of Articles 14 and 16 of theConstitution of India.

20. It is urged that the decision taken by the Boardof Directors in its 121St Board Meeting held onI18.07.1997 was based Pn no material to support suchdecision. It is submitteq that although the educationalqualification is a proper basis for classification for thepurpose or promotion, tre validity of such classificationhas to be judged on the ,facts and circumstances of eachcase and there ought t:o be material to ].ustify suchclassification and establish a nexus between theclassification and the object sought to be achieved bysuch classification. Reference in t:his regard was placedupon the decjistion Of Food Corporation of India &Others vs. Om Prakash Sharma 8i Others: (1998) 7SCC 676.

21. Even otherwise as per the learned counsel thedecision of the Board in 1997 having not been giveneffect to until 23.01.2009, it is hit by the principle ofdesuetude, as during |the intervening period actioncontrary to and in conflict with the said decision of the Board had been taken. ||n support of that contention thedecjlstion Of Mun.icipal Corporation for City of Pune &another vs. Bharat Forge Co. L±d. & others: (1995)3 SCC 434 was referred to.

22. As per the learned counsel t:he seniority listAnnexure-13 and the promotion of the petitioners andthe respondents No. 5 to 9 vide Office Order dated23.08.2005 (Annexure-2) clearly treating them at par,was contrary to and in clear conflict with the decisiontaken in the 121St Board Meeting dated 18.07.1997,thereby rendering it non est and ot:iose. This position canbe inferred also from the fact that the respondents No. 5to 9 raised no objection at all and remained silent whenthe said Office Order dated 23.08.2005 (Annexure-2) wasissued.

23. Referring t:o the note-sheet pages apparentlydealing with the representation of the respondents No. 5to 9, it was submitted that the note of the GeneralManager clearly indicates that although the respondentsNo. 5 to 9 had been representing for promotion in termsof the decision taken in the 121St Board Meeting, t:he .a i+

matter was kept pending for a long time, and, therefore, proposed that they be promoted and their seniority berestored. This, as per the learned counsel was anafterthought and also reflects the fact that t:he Board wasaware of the decision but had chosen not to give effect toit. It is reiterated that the decision taken vide impugnedIOrder dated 23.01.2009 I,(Anriexure -3) was impermissibleas by that it had unsettled the settled seniority amongstthe petitioners and the respondents No. 5 to 9.

24. Mr. Moulik, learned Counsel for the petitionerssubmitted that the respondents No. 5 to 9 were aware oftheir position in the seniority list which is revealed fromthe representation dated 20.08.2005 filed as AnnexurePR-3 (Coll.) to their counter-affidavit.

25. Reverting to the submission on behalf of thepetitioners that the impugned Office Order dated1123.01.2009 (Annexurei,,) as being issued by t:heManaging Director unauthorizedly, it was submitt:ed thatthe ratification of such order of the Managing Director bythe Board of Directors in its 155th Board Meeting held on27.11.2010 was of no effect, as such defect was cp±p incurable in law. In support of this contention, thedecjlstlon Of Marathwada university vs. SheshraoBalwant Rao Chavan: (1989) 3 SCC 132 was referredto and relied upon, more particularly paragraph 27, whichreads as under:

to and relied upon, more particularly paragraph 27, which `::7.noTthehs:v:rj::i;'e:p::jc:at::fiLcatt:tnhJar:::::nt::exercise of powers conferred under statutoryprovisions. The st:atut:ory authority cannot travelbeyond the power conferred and any actionwithout power has no legal validity. It is a.b initiovoid and c'dnnot be rat:ified."

26. Thus, it was Submitted that since under theproclamation the Managing Direct:or did not have anypower I:o issue such orders apart from the fact that theManaging Director had n'ot been authorized to do so byt:he Board of Directors lnder Clause 16 (1) (b) of theProclamation, the principle of ratification did not have anyapplication and void ab initio being bereft of the power todo so.

27. Learned counsel further urged that t:h.eimpugned Office Order dated 23.01.2009 (Annexure-3)was also in clear violation of decision of the Board ofDirectors in its 121St Meeting dated 18.07.1997 at item No. 11 (8) (L) stipulating that in future, promotion fromClass IV employees !nd above be done throughcompetitive examinationi and interviews for the reasonthat the respondents N,b. 5 to 9 had been promotedwithout any competitivd examination and int:erview. Itwas further submitted that the impugned Officer Orderdat:ed 23.01.2009 (Annexure -3) deserved to be quashedas being impermissible ini law.

28. It was next su,bmitt:ed t:hat the Circular dated18.02.2009 filed as Annexure-4 to I:he writ petit:ion wasillegal, firstly because i¢ offered unfair advantages toIthose who were holding the post of Junior AccountsAssistants/Junior Cash Assistants, as those of th:in whohad completed more thah 15 years of continuous servicecould also compete for'' the post of Senior AccountsAssistants/ Senior Cash Assistants along with theirseniors holding the post of Accounts Assistants/CashAssistance having completed 3 years and morecontinuous service in t,hat post, in an examinationIscheduled on 28.02.2009,|' which actually appears to haveIbeen held on 01.03.2009. This tantamounts to jumpingthe regular channel of promotion, which in law, is not &.'

permissible. Referring to the case of De/fl/.Administration & Others vs. Nand Lal Pant &Another.I AIR 1997 SC 3068, it was submitted that noone is entitled to jump the regular channel. Secondly,the interested candidates were required to submit theiroption in writing preferring to sit for the examination andlastly t:he circular was issued by the General Manager,who had no power to do so under the Proclamation.

29. It is further submitted that the impugnedCircular dated 18.02.2009 (Annexure 4) which is aImodified form of the'i Circular dated 14.07.2008(Annexure - 5) had been kept in abeyance by an OfficeOrder dated 25.07.2008 (Annexure - 6) on arepresentation submitted by the petitioners. ThatAnnexure-4, Annexure-5 I,'iand Annexure-6 were issuedeither by the General Manager or the Chief GeneralManager, who had no power or jurisdiction to do so underthe Proclamation and, therefore, had no force andsuffered from the same infirmity as the impugned OfficerOrder dated 23.01.2009 (Annexure-3).

30. It is further lisubmitted that the petitionersagainst their will and I,+nder protest appeared in the11departmental promotion examination held on 01.03.2009in terms of impugned Circular dated 18.02.2009(Annexure-4) under compelling circumstances as theywere threatened and coerced in doing so.

31. Mr. J.B. Pradhan, learned Additional AdvocateGeneral, on the other hand submitted that the variousplea raised on behalf of the petitioners stand renderedIirrelevant since all the petitioners had without anyIIcondit:ion opted to appearl in the departmental promotionItest in terms of Circular dated 18.02.2009 (Annexure-4)being sought to be impugned in the writ petition and11drew the attention of this Court to the copies of theIletters submitted by the petitioners and ot:her persons,Ifiled as Annexure R-5 collectively. It is submitted thatthe petitioners have suppressed this fact and for thisreason alone the writ petition ought to be dismissed.

32. It is then submitted that the petitioners havingwillingly participated in the selection process and afterhaving failed, now cannot,'turn back and complain that the entire selection process was illegal. It is pointed outthat although the petitioners seek to quash the OfficeOrder dated 23.01.2009 (Anenxure-3), no prayer hasbeen made to quash the decision of the Board ofDirectors in its 121St Meeting dated 18.07.1997. It isfurther submitted that the resolution of the Board ofDirectors dated 18.07.1997 was passed in exercise of thepowers vested in it under clause 18 and sub clausesthereunder of the Proclamation and, therefore, is validand binding upon all.

33. That the decision to promote respondents No. 5t:o 9 based on their qualification having been taken withinits powers by the Board of Directors, t:he issuance of t:heimpugned Office Order (Annexure-3) was a consequentialaction `taken by the Managing Director of the Board. Inany case, the issuance of Office Order in compliance tothe resolution dated 18.07.1997 was confirmed andratified as valid by the Board of Directors in its 155th`Meeting held on 27.11.2010. This was permissible underthe law as the action taken by the Managing Director wasnot taken de novo by acting on his own, but t:o give effectto the decision taken by the Board of Directors.

34. It is the submission on behalf of therespondent-Bank that rules had not been framed toregulate the conditions of service of the employees of theBank governing appointments, promotion, etc., andinstead followed the precedents, the resolutions adoptedor passed by the Board of Directors from time to timeand adopts such modes according to exigencies based onequity, fairness and reasonableness, That the Bank hasvery recently framed State Bank of Sikkim (classification,Recruitment and Promotion) Regulations, 2011 and StateBank of Sikkim Regulation, 2011, which have beenbrought into force with effect from 01.03.2011 and thatthese Regulations now govern matters relating torecruitments, promotions and ot:her condit:ions of serviceof the employees of the State Bank of Sikkim.

35. That the decision to promote the respondentsNo. 5 to 9 have been taken on a reasonable criteria withthe object to achieve efficiency in the functioning of thebank and, because by virtue of their higher educationalqualification they lad been charged with the intricateworks of accountancy and other higher responsibilities,the Board of Directors took a decision in exercise of it.s `i, Bank of Sikkimpowers conferred byi' the StateProclamat:ion, 1968 toll grant thempromot:ion to thehigher post. Such act:ion was permissible under the lawand, therefore, the , grievance expressed by thepetitioners could not be entertained in its merit apart11from the fact that the petitioners have waived their rightsto do so for the reasons already discussed above.

36. It is further submitted that the respondents-Bank being a commercial organization competing withNationalised and Non Nationalised Banks has beenconsistently emphasizing on the efficiency, merit andqualifications of its employees. On account of this, therespondents-Bank has been consistent in its view thatpromotion should be on the basis of a competitiveexamination and interview purely based on merit and noton seniority. Having realized it:s need of having qualifiedmerit:orious people as far back in t:he year 1997 the Boardof Directors of the Bank in its 121St Meeting (AnnexureR-1) passed two resolutions vide Resolution No. 11 (F) &

(L) which are extract:ed herein below:-

`` 11(F)... The Board reiterated its earlier decisionson the undermatriculate Jr. Accounts/Cahiers andAccounts Clerks - Asst:t. Cashiers that they shallnot be given furt:her promotions unless they clear the minitrum qualification of class-X (ten)examinati6n of recognized Boards of education.

(L) .... The Board approved the proposal forpromotions from Class-IV employees and aboveto be done through competitive examinations andinterviews in future."

37. It is stated that even in the year 2007 theBoard in its 150th Meeting vide Agenda No. 17 againIreiterated the need for having qualified personnel withIhigher qualification ari'd also for granting promotion onthe basis of competitive examination rather thansen iority. ,I,,,I

"AGENDA NO. 17: INFUSION OF OUALIFIEDMAN-POWER

The Board abeyance t:he proposal of themanagement.

The Board advised the management toselect the existing graduate employees forimparting intensive training programme forminimum of six months and gauge the outcomeof the proposal.

The Board further directed that the systemof promotion on seniority should be abolishedwith immediate effect. All future promotionshould be effected by conduct of competitiveexamination & interviews, i.e. purely based onmerit/performance."

38. Thus, it is ,lstated that on account of the aboveIpolicy and the change in the banking scenario at t:henational level, the respondents-Bank vide Circular dated14.07.2008 (Annexure-5) informed all the employees that it would be conducting a Competitive DepartmentalPromotion Examinat:ion on 27.07.2008. The Circular11further provided that all employees who have completed\the minimum of 12 years of continuous service as on'130.06.2008 in the post of Jr. Accountants/Cash Assistants11shall be eligible to siti'in the examination. The CircularIalso notified that there Would be two question papers viz;Question on banking accounts and service rules with totalmarks of 70 and, 2.Id paper on General Knowledgecarrying 30 marks. However, as the employees of Bankhad by an application dated 24.07.2008 had representedagainst the Circular dated 14.07.2008 (Annexure-5) thescheduled examination was kept at abeyance vide OfficeOrder dated 25.07.2008 (Annexure-6).

39. In the meanwhile in order to comply with thedecision of 121St Board meeting dated 18.07.1997I(Annexure-R1) thei' respondents-Bank issued theimpugned Office Order dated 23.01.2009 (Annexure-3)whereby the respondents no. 5 to 9 were promoted tothe post of Jr. Accountants/Cashiers with effect from18.07.1997 and furt:her in order to undo the justice andIto rest:ore inter-se-s'eniority they were further promoted to the post of Accountants/Head Cashier with effect from08.06.2005.

40. That further the respondents-Bank in its 121StBoard meeting held on 18.07.1997 had passed aresolution No. 11 (A) & (8) [111] in respect of `staffmatters', which is extracted herein below:- "11. Staff Matters

(VIII)... The screened five graduateAccounts clerks/Asstt. Cashiers drawingthe scale of Rs.975-1560 having put inseven years' service are promoted to theposts of Jr. Accountants/Cashiers in thescale of 1080-1760.Accounts clerks/Asstt. Cashiers drawingthe scale of Rs.975-1560 having put inseven years' service are promoted to theposts of Jr. Accountants/Cashiers in thescale of 1080-1760.

The residual vacant post:s of Jr.Accountants/Cashiers shall be filled up byt:he senior eligible Asstt. Cashier/AccountsClerks.„

41. It is submitt:ed that the 121St Board meeting

dated 18.07.1997 has not been challenged by thepetitioners in the instant writ petition. It is furthersubmitt:ed that impugned office order dated 23.01.2009(Annexure-3) granting promotions to the respondents No.5 to 9 is in compliance and pursuant to the said 121StBoard meeting which is still valid. It is further submittedIthat respondent Bank vide its 155th Board meeting heldon 27.11.2010 (Annexure R-6) has confirmed/ratified the order dated 23.01.2009 ,'limplementing the decision of the|21St Board meeting. 'i

42. The representations dated 24.07.2008 withregard to holding departmental promotion examinationdated 27.07.2008 vide Office Order dated 25.07.2008(Annexure-6) having duly considered, the respondents-Bank on 18.02.2009 issued a Circular (Internal)(Annexure-4) .whereby the earlier eligibility criteria fixedfor promotion to the post of Sr. A.A./Sr. C.A. was revisedand all Jr. A.A./Jr. C.AJ, who had completed more than 15years of continuous services and A.A./C.A. who hadIllcompleted three yearsi'land more continuous service weremade eligible to sit for the departmental promotion testfor the post of Sr. A.,A./Sr. C.A. The said Circular alsogave an option t:o a'll the candidates to submit their`option in writing through their respective controllingoffice for the said departmental promotion examination.

43. That pursuant to above Circular (Internal) asmany as 54 to 55 A.A./C.A. and Jr. A.A./Jr. C.A.submitted their consent letter (filed collectively asAnnexure R-5 to the counter-affidavit on behalf of the respondents No. 1, 2 and 3) to appear in the saidDepartmental Promotion Test. The departmentalpromotion test was accordingly held on 01.03.2009.18(eighteen) candidates i.e., respondents No. 10 to 27 int:he writ petition, who had qualified were promoted to thepost of Sr. A.A./ Sr. C.A. vide Office Order dated04.06.2009 (Annexure-10).

44. It is, therefore, submitted that after appearingin the departmental promotion examination pursuant t:oCircular (Internal) dated 18.02.2009 (Annexure-4) thepetitioners are now estopped from impugning the saidCircular (Internal) dat:d 18.02.2006, as well as, theOffice Order dated 04.06.2009 (Annexure-10) whereby18 (eighteen) successful candidates in the saidexamination were promoted.

45. The petitioners' failure to challenge the OfficeOrder dated 23.01.2009, at the material time, therespondents No. 5 to 9 having already secured theirpromotion vide impugned Office Order dated 23.1.2009(Annexure-3) did not appear in the departmentalpromotion examination. As such their promotion order (Annexure-3) cannot hpw be impugned aft:er the changein circumstances.

46. Mr. K.T. Bhutia, learned Senior Advocateappearing on behalf of the private respondents No. 5 to20, 22 to 27, while reiterating the submissions made onbehalf of the respondents No. 1, 2 and 3 placed bylearned Additional Advocate General, submitted that thepetitioners seeking to challenge the decision of the boardof the year 1997 and the ratification of the actions of theGeneral Manager and the Managing Director in its 155thmeeting could not be sustained as the Board of Directorshad acted within the powers vested by the Proclamation.It is further submitted ,that as the petitioners had beenpromoted to the higher post of Junior Accountants/Cashiers by the decision of the Board in its 121St meetingheld on 18.07.1997 (Annexure-4), which had remainedunchallenged by any one let alone the petitioners, therespondents No. 5 to 9 preferred not t:o sit for thedepartmental promotion test held on 01.03.2009. It issubmitted that the mairer in which the petitioners haveconducted themselves I,disentitles them to prefer thepresentwrit petition. I

47. Mr. Bhutia went on to submit that the Circulardated 14.07.2008 (Annexure-5) had proved to be ahurdle for the petitioners as they did not fulfill theeligibility criteria laid down therein to sit for the proposeddepartmental promotion test and, therefore, they havingrepresented against the said Circular, the respondents-Bank kept the operation of that Circular at abeyance byissuing the Office Order dated 25.07.2008 (Annexure-6).This resulted in the respondents-Bank issuing the Circular(Internal) dated 18.02.2009 (Annexure-4), whichmodified the eligibility crit:eria prescribed in the earlierCircular dated 14.07.2008 (Annexure-5) and broughtwithin its ambit the Junior Accounts Assistants/JuniorCash Assistants who had completed more than 15 yearscontinuous service in, that post and all AccountsAssistants/Cash Assistants having completed 3 years andmore of continuous service in that post, for being eligibleto compete in the departmental promotion test scheduledon 28.02.2009, which actually appears to have been heldon 01.03.2009. It was further stipulated in Circulardated 18.02.2009 (Annexure-4), that all interested candidates should submit:iltheir option in writing to sit forthe examination on or before 27.02.2009.

48. Mr. Bhutia submits that the Petitioners hadopted to sit for the examination ,by giving written optionand referred to the series of letters filed as Annexure R-5(Coll.) t:o the counter-affidavit of t:he respondents No. 1,2 and 3. Thus, having opted to appear for theexamination willingly it was not permissible for thepetitioners to question the entire process of theexamination having waived their rights. The decisions inthe c:ase Of Trivedi Himanshu Ghanshyambhai vs.Ahmedabad Municipal Corpn. 8L Others : (2007) 8SCC 644; Dhananjay iMalik & Others vs. State ofuttarancha & Others: AIR 2008 SC 1913 ar\d OmPrakash Shukla vs. Akhilesh Kumar Shukla &Otflers; AIR ]986 SC 1043 were referred to by Mr.Bhutia in support of his contention.

49. It was then sulbmitted that in law, classificationbased on educational qualification was permissible. Inthe present case, the object of the classification basedq7upon graduation was to achieve administrative efficiency and not as a fortuitous circumstance. That the decisionwas taken by the Board of Directors of the Bank validly inexercise of its powers ,conferred by the Proclamation of±968. The case Of Stat€ of Jammu & Kashmir vs.Triloki Nath Khosa, & Others rendered by theIIConstitution Bench of Hon'ble Supreme Court reported inAJR 1974 SC I and the Constitution Bench ].udgment ofHon'ble Supreme Court in the case of MohammadShujat All & Others vs. union of India & Others: AIF{1974 SC ]631 were referred to in support of thisIcont:ention. It is, therefore, submitted that the groundsraised by the petitioners to assail the promot:ion ofrespondents No. 5 to 9i'as a consequence of impugnedOffice Order dated 23.01.2009 (Annexure-3) areunsustainable in its merits and also on the ground ofwaiver as a consequenceiof the willing participation of theIpetitioners in the departmental promotion examinationheld on o1.03.2009. ''

I

I

50. In reply Mr. A.I Moulik submitted on behalf ofthe petitioners that the manner in which the respondentsINo. 5 t:o 9 were I,promoted to the post ofAccountants/Head Cashiers with effect from 08.06.2005

was in conflict with I:he decision on agenda No.11 (a) (G)(L) passed in its 121St Board Meeting held on 18.07.1997filed as Annexure PR-1 on behalf of the privaterespondent, wherein the said resolution clearly laid downt:hat all future promotion of the employees in Class-IVand above were to be done through competitiveexamination and interviews. That it was not permissiblefor the respondents-Bank, t:o have granted promotion tothe respondents No. 5 to 9 in such manner. The Circulardat:ed 18.02.2009 (Annexure-4) seeking willingness ofthe interested candidates was an attempt to procuredocuments for future recprds in order to pre-empt thepetitioners from approachi,ng the Courts. This, as per Mr.Moulik, is hit by the Section 28 of the Indian ContractAct, 1872 and, therefore, is void and, that even if therest of the petitioners are estopped from preferring thepresent writ petition, the petitioners No. 19 and 34cannot be deprived of such right as they had neitheropted for nor sat for the examination in pursuance of theCircular dated 18.02.2009 (Annexure-4).

51. I have heard the rival contentions placed bythe learned counsel for both sides and have `givenanxious consideration to\ithe matter.

52. The question for determination here is as towhether the resolution passed by the Board of Direct:orsof the respondents-Bank in its 121St meeting held on18.07.1997 giving promotion to the respondents No. 5 to9 on t:he basis of their ,qualification and the impugnedIOffice Order dated 23.Oi.2009 (Annexure-3) to the writpetition whereby those respondents were givenretrospective promotion to the post of Junior AccountsAssistants/ Junior Cash Assistants with effect from18.07.1997 and thereafter to the post of Accountants/Head Cashiers with effect from 08.06.2005 can besustained in law.

53. It wou[.d also be necessary to determine as towhether it is open for the pet:itioners to bring the presentwrit petition with the challenge raised therein on accouritof their own conduct subsequent to the issue of impugnedOffice Order dated 23.01.2009 (Annexure-3).

54. It is an admit:ted position that there were norules in existence governing the conditions of service ofthe officers and employees of the respondents-Bank.There is also no dispute on the fact that for the purposeof appointments, promotion, etc. the respondents-Bankfollowed the precedents set in such matters and on thebasis of resolutions passed by the Board of Directors fromtime t:o time as the exigencies of services would requireand that such decisions of the Board of Directors werepassed on the principles of equity, fairness andreasonableness. Although in the writ petition if hasaverred that the Bank had adopted t:he Governmentrules, it was not pressed during the arguments andconceded to the above position.

55. The State Bank of Sikkim is created under the State Bank of Sikkim Proclamation, 1968. TheProclamation is a law duly protected under Art:icle 371 F(k) of the Constitution of India and governs the entiregamut of activities of the Bank including the prescriptionof the authorities and their ].urisdiction and powers. Inorder to appreciate the matt:er r.n //.s it would be necessary to extract the relevant clauses i.e., clauses No. 8, 16, 19, 36 and 41 of the Proclamation, which are set out below:

CHAPTER IllManagement

7.

8. (1) The general superintendence anddirection of the affairs and businessc>f t:he Bank shall be vested in theBoard which may, subject to theprovisions of t:his proclamation,exercise all powers and do all suchacts and things as may be exercisedor done by t:he Bank and are not: bythis proclamation expressly directedor required to be done by the bank ingeneral meeting.direction of the affairs and businessc>f t:he Bank shall be vested in theBoard which may, subject to theprovisions of t:his proclamation,exercise all powers and do all suchacts and things as may be exercisedor done by t:he Bank and are not: bythis proclamation expressly directedor required to be done by the bank ingeneral meeting.

(2) The Board in discharging its functionsshall act on business principals,regard being had to public int:erest,and development of banking industry,trade and commerce in Sikkim.shall act on business principals,regard being had to public int:erest,and development of banking industry,trade and commerce in Sikkim.

9 to 15.

16. (1) TheManagingDirectorPower and(a) shall be a whole-time officerofremuneration ofthe Bank andmanaging director(b) subjectto the general control ofI tphoeweBr°::dd' pseh£:r:X::Cc!:ed::,::1' ::iegTtae¥ tob:jme:;r::teedBoa%by regulations or otherwise.remuneration ofthe Bank andmanaging director(b) subjectto the general control ofI tphoeweBr°::dd' pseh£:r:X::Cc!:ed::,::1' ::iegTtae¥ tob:jme:;r::teedBoa%by regulations or otherwise.

(2) The managing .director shall receivesuch salary and allowances as maybe determined by the Board on therecom mendation of the U nitedCommercial Bank Ltd. determine thesalary and allowances payable tohim.such salary and allowances as maybe determined by the Board on therecom mendation of the U nitedCommercial Bank Ltd. determine thesalary and allowances payable tohim.

17.18. (1) Theyshallmeetatsuchtimeand18. (1) TheyshallmeetatsuchtimeandMeeting of theplace and shall observe such rulesBoardor procedure in regard to the transa-Boardor procedure in regard to the transa- ction of business at its meetings asmay be prescribed.may be prescribed.

(2) i' To constitut:e a quorum at a meetingof the Board, not less than threeof the Board, not less than threelil direct:ors shall be present of whom atleast one shall be a person nominatedby the Government of Sikkim andone shall be the managing Direct:or orleast one shall be a person nominatedby the Government of Sikkim andone shall be the managing Direct:or orI,'i, the Director nominated by clause (c)of sect:ion 9.of sect:ion 9.

(3) All questions at the meeting shall bedecided by a ma].ority of the votes ofdecided by a ma].ority of the votes of'i,the directors present and in the case" of equality of votes, the Chairman, orin his absence, t:he director presiding" of equality of votes, the Chairman, orin his absence, t:he director presidingiiover the meeting shall have a second'ior casting vote.'ior casting vote.

(4) 'If for any reason the Chairman is notable to be present at a meeting of t:heBoard, any director, other than themanaging director, authorized by t:heChairman in writing in this behalf,and in the absence of suchaut:horizat:ion any such directorelected by the direct:ors present fromamongst: themselves, shall preside atthe meeting.able to be present at a meeting of t:heBoard, any director, other than themanaging director, authorized by t:heChairman in writing in this behalf,and in the absence of suchaut:horizat:ion any such directorelected by the direct:ors present fromamongst: themselves, shall preside atthe meeting.

CHAPTER VIIMisce.Ianeous

I

36. (1) Thebankmayappointsuch numberof officer, adviser and employees asconsiders necessary or desirable forthe efficient performance of its funct-ion, and determine the term andof officer, adviser and employees asconsiders necessary or desirable forthe efficient performance of its funct-ion, and determine the term and Bank may appointofficers and otheremployees condit:ion of their appointment andservice.service.

(2) The officers, advisers and employeesof the Bank shall exercis,e suchpowers and perform such duties asmay be entrusted or delegated tothem by t:he Board by regulation orotherwise.of the Bank shall exercis,e suchpowers and perform such duties asmay be entrusted or delegated tothem by t:he Board by regulation orotherwise.

37 to 40

41. Delegation ofPowers

The Board may, by general or specialorder, delegate to the chairman, ordirector or other officer of the Bank,order, delegate to the chairman, ordirector or other officer of the Bank, subject to such conditions andlimitations, if any, as may bespecified in the order, such of itspowers and duties under this act as itmay deem necessary."

56. From the above provisions it is quite manifestthat while the general superintendence and direction .of11the affairs and business of the Bank is vested in theBoard, the Managing Direct:or has been empowered toexercise such of the powers and perform such duties asmay be entrusted or delegated to him by the Board byregulations or otherwise. Clause 18 vests the Board of11Directors t:o decide all questions at the meeting. The power of appointment of officers and other employeesIIhas been vest:ed in the Bank by clause 36 and clause 41provides for delegation of power by the Board ofDirectors t:o the Chairman I,,or the Ma.naging Direct:or orIot:her officers of the Bank which of course, is subject tosuch conditions and limitatio,ns as may be specified.

57. It would appear"from the above that theparameters of the actions of the Bank are the decisions ofthe Board of Directors taken in its meetings held fromIt:ime to time in exercise of it; powers under clause 18 of the Proclamation and, therefore, bears statutory character and binding upon the Bank and its functionary.Such being the nature of the decision of the Board ofDirectors taken in its 121St meeting held on 18.07.1997there can be manner of doubt: that the decision is validand unassailable.

58. The impugned Office Order dated 23.01.2009(Annexure-3) was issued obviously in compliance to theBoard's decision dated 18.07.1997, which had remainedun-complied. The only contentious issue arising'out ofthe impugned Order dated 23.01.2009 (Annexure-3) isthe retrospective promotion given to the respondents No.5 to 9 wit:h effect: from the date of decision of the Boardof Directors i.e. 18.07.1997 and the second promotiongiven to them, which in the first glance gives one animpression that it is a case of double promotion. Thereappears to be an intervening event when the respondentsNo. 5 to 9 were given promotion to .the post of JuniorAccounts Assistants/ Assistant Cahiers vide Office Orderdated 23.08.2005 (Annexure-2) along with thepetitioners. It appears from the representation dat:ed20.08.2005 (Annexure PR-3) that these respondents hadrepresented to the respondents-Bank pointing out they

ought to have been promoted in 1997 in terms of thedecision of the Board. It also appears that a batch ofemployees some of whom are the petitioners, had beenpromoted to the post of Accountants/ Head Cashiers fromJunior Accountants/ Cahiers in the year 1999 clearly indisregard to the decision of the Board of Directors dated18.07.1997. However, there appears to have been acontinuous state of deliberat:ion for resolving the issuewhich ultimately culminated in the issuance of theimpugned Office Order dat:ed 23.01.2009 (Annexure-3).

59. Mr. Moulik, learned senior counsel for thepetitioners submitted that while the first part of theimpugned Order promoting the respondents No. 5 t:o 9 tothe post of Junior Account:ants/Cashiers retrospectivelywith effect from 18.07.1997 could be considered as avalid one as being in pursuance of the decision of theBoard of Directors, the second part granting them furtherpromotion to the post of Accountants/Head Cashiers witheffect from 08.06.2005 was impermissible as beingunauthorized and without jurisdiction as it was beyondthe scope of the decision of the Board of Directors. TheManaging Director who issued the impugned Office Order neither had such powers\nor has he been delegated with11Isuch powers under the Proclamation of 1968.

60. It was submitted by Mr. Moulik that the soIIcalled ratification by the 'i,I,Board .of Directors in it:s 155th11Meeting held on 27.11.2010 was of no effect and couldnot validate the Managing Director as the principles ofratification do not have any application with regard t:o theexercise of powers conferred under the statutory11provisions. Mr. Moulik, i,r support of this proposition,11relied upon t:he decision in '«ara£Awada Uni-Lrersity ws.II

Sheshrao Balwant Feao \i\\\\Chavan (supra), wh.ich vveIhave already alluded to above.

61. On careful consideration of the submissions ofthe learned Counsel and the facts and circumstancesobtaining in present case, I,I,I am of the view that theprinciple laid down in the decision of MarathwadaIIUni.versi.ry (supra) is not applicable here and is clearlydistinguishable. In that case'i,I,the Executive Council of theUniversity had appointed a four-member committeeincluding t:he Vice-Chancellori'of the University to inquireinto a complaint of non-payment of certain bills for the

works performed by the complainant. The four-memberIcommittee appointed| one person to inquire into thematter who submittedl,lhis report to the Executive Council.The Executive Council instead of accepting the report ofthat person entrusted the question to the Vice-Chancellor, but the Vice-Chancellor proceeded to act inconflict with the purpose for which the report had beenentrust:ed to him and went on to institute a departmentalinquiry which on being challenged in a petition underArticle 226 of t:he Constitution before the High Court, itwas observed during the proceedings that the entirematter be placed before the Executive Council for takingan appropriate deci'sion. Consequently, the ExecutiveCouncil in a meeting passed a resolution inter alia,ratifying the action taken by the Vice-Chancellor andconfirming the dismissal of the respondent, therebyadded a new dimension to the case. The High Court heldthat the acts done by the Vice-Chancellor remain the actsIwithout any authority or powers and that defect cannotbe cured by the :ubsequent resolution. The matterIthereafter having reached the Hon'ble Supreme Courtresulted in the ratio that principles of ratification, )

apparently do not have any application with regard toexercise of powers conferred under st:atutory provision.It was further held that such principles would beapplicable with regard to transactions of a companywhere the general body is the repository of all powers, aprinciple which could not be extended t:o that case,Ultimately, it was held that there was no prior delegationof power to the Vice-Chancellor to take disciplinary act:ionagainst the respondent. Pertinent feat:ure of that caserelevant for the matter /.n //.s before us are two fold.Firstly, in t:hat case t.he stand of the Execut:ive Councilthat powers had been delegated to the Vice-Chancellorwas negatived as the delegation was held invalid as notbeing in conformity with Sec. 84 of the MarathwadaUniversity Act, 1974 which prescribes that Delegation ofPower by the University was permissible ``subject to .theapproval of the Chancellor''. Secondly, the ExecutiveCouncil could not have ratified an action of the Vice-Chancellor which was non-est: for want of a validdelegation.

62. In the case at hand, the action of the ManagingDirector in issuing the impugned Officer Order dated

23.01.2009 (Annexure-3) cannot be termed as one wherethere was no delegation of power to do so. Power of theManaging Director to take action in terms of impugnedOffice Order dated 23.01.2009 (Annexure-3) can betraced to the decision of the Board of Directors in its 121Stmeet:ing dated 18.07.1997 and is consequential thereto.This is one part of t:he matter. On the other part, it is t:hestand of the respondents-Bank t:hat the ManagingDirector of the Bank has been exercising such powersright from the inception and has been accepted as validby virtue of continuous usage and practice. clause 41 ofthe Proclamation providing delegation of powers by theBoard has no restriction as that under Sec. 84 of theMarathwada University Act, 1974 requiring approval by ahigher authority. Therefore, I do not find any infirmityin the impugned Office Order dated 23.01.2009(Annexure-3).

63. There is another aspect of this case that__-requires consideration which distinguishes from the caseOf Marathwada University (supra). Ur\der theProclamation of 1968, the Bank is a body corporatehaving perpetual succession and a common seal wit:h the q'b right to sue and be sued. This Proclamation is a lawframed prior t:o the merger of Sikkim as a componentpart of the Union of India. By the Proclamation itinten.ded to incorporate a Banking institution in the nameand style of State Bank of Sikkim. The Bank has all thecharacters of a Company Limited by shares, though it isnot a Company incorporated under the Companies Act,1956, a law which is not in force in Sikkim. From a plainreading of Clause 18 of the Proclamation of 1968, dulyextracted above, t:he repository of all powers with regardto the Bank is clearly the Board of Directors and thepowers and functions of the Managing Director is sub].ectto the control of the Board. Considering the peculiarfeat:ure of the Proclamation, the ratification of theimpugned Officer Order dated 23.01.2009 (Annexure-3)cannot be said to be unauthorized. It would ratherappear that by its ratification the Board of Directors hasconfirmed the action of the Managing Director as adecision taken by it.

I

64. The next question as regards the validity of theCircular (Internal) dated 18.02.2009 (Annexure-4) isconcerned, I am of the view t:hat it is not open for the •8¢.

petitioners to raise such question after having compliedwith it by giving written option and aft:er havingparticipated in the departmental promotion test interms of the impugned Circular dated 18.02.2009(Annexure-4). Having failed to get selected, it isimpermissible for them to turn back and say that theentire process of the departmental promotion test isillegal. The petitioners have undoubtedly waived theirrights to do so. We may in this regard refer to the caseOf M/s Motilal Padam`pat Sugar Mills Co. Ltd. vs. TheState of uttar Pradesh & Others: AIR 1979 SC 621,where it has been held that waiver means abandonmentof a right which may be either express or implied fromconduct. The petitioners in the present case haveintentionally with their full knowledge abandoned theirrights and have on their own free will and volitionpreferred to sit for the examination.

65. I.n the case of Dhananjay Malik & Others vs.

65. I.n the case of Dhananjay Malik & Others vs.

Sfafe of U[£arancfra`/``& o[Aers (supra), it has beenheld as follows: - ``8. In Madan Lal vs. State of J & K (1995) 3SCC 486, this Court pointed out that when thepetitioners appeared at the oral interviewconducted by the Members concerned of theSCC 486, this Court pointed out that when thepetitioners appeared at the oral interviewconducted by the Members concerned of the Commission who interviewed t:he petitioners aswell as the contesting respondents concerned,the Detit:ioners took a `chance to aet themselvesselected 'at, the said oral interview. Therefore,onlv because they did not: find themselves tohave emeraed successful as a result of theircombined Derformance bot:h at written test andoral interview, they have filed writ Petitions. ThisCourt further Dointed out t:hat if a candidatetakes a calculated chance and aDDears at theinterview,1 then, only because t:he result of theinterview:is not Palatable to him, he cannot turnround and subseauentlv contend that the Processof interview was unfair or the SelectionCommittee was not DroDerlvconstitut d ........................ '"

(emphasis supplied)

66. We may also refer to the case of 7+i.vediHimanshu Ghansvambhai vs. Ahmedabad MuniciDal Corpn. & Others (supra) and the case oF Om PrakashShukla vs. Akhilesh Kumar Shukla & Others (supra)which also propound the same position of law.

67. As alread.y pointed out, the writ petitionersvoluntarily opted in writing to participate in the selectionprocess and did so without any demur and, therefore, arenow estopped from .complaining that the Circular dated18.02.2009 (Annexure-4) was illegal and that afterhaving failed in getting themselves selected, it is notopen for them to question the selection process as notbeing in accordance with the rules. The petitioners had

the liberty to challenge the impugned Circular at theappropriate time without participating in the selectionprocess but they did not do so.

68. The assertion made on behalf of the petitionersthat they had ob].ected to the impugned Circular dated18.02.2009 (Annexure-4), but had appeared undercompelling circumstances, are not supported by anymaterial. In any case, such allegations having beencategorically denied by the respondents-Bank in theircounter-affidavit, it is difficult for this Court to acceptsuch contention.

69. This leads us to other consequences that flowfrom t:he conduct of the petitioners of having willinglyparticipated in the departmental promotion t:est held on01.03.2009. The challenge to the Office Order dated23.01.2009 (Annexure-3) by implication standabandoned and conceded as, the Circular (Internal). dated18.02.2009 (Annexure-4) was complied by thepetitioners by taking part in the examination held on01.03.2009. The latter two dates are obviouslysubsequent to the date of the impugned Office Order

dated 23.01.2009 (Annexure-3). The other aspects,which in my view is more serious is that the petitionershave nowhere in the writ petition disclosed the fact oftheir having submitted the.written options in complianceto the requirement under the impugned Circular dated18.02.2009 (Annexure-4), They have rather made aneffort to give an impression that they had been ob].ectingto that Circular and, in fact have averred in the pleadingsthat they were forced to sit in the departmentalpromotion test on being threatened of their careers.This is a clear case of suppression of material fact and anattempt to mislead t:his Court.

70, ±n the case of Fzamjas Foundation & Othersvs. union of India & others: 1993 Supp (2) SCC 20,it has been held that a person invoking an equitableextraordinary jurisdiction of the Court under Articleu226of the Constitution of India is required to come with cleanhands and should not conceal mat:erial facts. This is whatthe petitioners have precisely done in the present casethereby disentitling them from any relief in the pres'entproceedings.

70. It was t:hem submitt:ed that at least thepetitioner No. 19 and 34 would have the right t:o seek theremedies in the present proceedings as they had notopted for the examination in compliance to the impugnedCircular dated 18.2.2009 (Annexure-4). It is difficult toaccept this contention since we fi`nd from the records thatthe petitioner No. 19 had submitted her written option t:osit in the examination by her application dated24.02.2009, which we find in page 293 of the paper-book. In so far as the petitioner No. 34 is concerned, thewrit petition is bereft of any material as to how she isaggrieved except t:o say that she is one of the personsholding the post of Junior Accounts Assistants/ JuniorCash Assistant and that too in the cause-title of the writpetition. This, in my view, is not sufficient for apetitioner to assert locus st:andi. In any case, in view ofthe fact that the petitioners had participated in thedepartmental promotion test in compliance to theimpugned Circular dated 18,02.2009 (Annexure-4) and,the fact that they have suppressed material facts andalso attempted to mislead this Court, renders thenecessity of dealing with the other issues, which _I_- otherwise appears to be peripheral in nature, would beredundant and irrelevant.

In the result, the writ petition is dismissed. No orderasto costs. - 01.09.2011

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