- (1.) THE instant civil second appeal under Section 100 of the Code of Civil Procedure is directed against the judgment and decree passed by the learned Additional District & Sessions Judge No. 7, Jaipur city, Jaipur in Civil Appeal No. 35/1989 dated 5. 3. 1991 rejecting the appeal of the appellant against the judgment and decree dated 18. 10. 1986 passed by the learned Additional Munsiff cum Judicial Magistrate No. 2, Jaipur city, Jaipur in Civil Original Suit No. 69/1980.
(2.) THIS appeal was admitted on 24. 3. 1992 on the following substantial questions of law: -      " (i) Whether in the facts and circumstances of the case without challenging the finding of issue No. 7, the Appellate Court was justified for granting the decree of declaration by modifying the judgment and decree of the Trial Court even without filing the cross-objection and the appeal. (ii) Whether in the facts and circumstances of the case, the decree of specific performance by declaring the plaintiff for promotion and that too without considering his suitability is justified?" Respondent-plaintiff filed a suit for declaration and permanent injunction in the Trial Court on 29. 1. 1980 with the averments that he was working as work-charge employee in the Electrical and Mechanical Department of erstwhile Jaipur State and was posted as L. D. C. on 5. 1. 1955. He was promoted as U. D. C. on 27. 5. 1960. Thereafter, the predecessor in title of the present company, Rajasthan State Electricity Board came into existence on 1. 7. 1957 and the plaintiff-respondent became the employee of the Board. He was granted selection scale vide order dated 24. 8. 1977 and was promoted as Office Superintendent on temporary basis vide order dated 28. 5. 1979. But he declined the promotion as he did not want to go out of Jaipur. The seniority list of UDCs was published on 31. 12. 1974 wherein the name of plaintiff-respondent was shown at Sr. No. 32 and that of Jagdish Narain Mathur at Sr. No. 45 who was promoted as UDC on 18. 8. 1960 i. e. , after about three months of promotion of the plaintiff-respondent. Under Regulation 6 (5) of the Rajasthan State Electricity Board Ministerial Service Regulations, 1965, 37-1/2% posts on Accountant were ear-marked for promotion from amongst UDCS working in the Board. It is averred that junior of plaintiff- respondent Mr. Jagdish Narain Mathur was made Accountant vide order dated 7. 11. 1979 w. e. f. 15. 11. 1973 and he was not considered for promotion as Accountant. He, therefore, approached the court for a declaration and permanent injunction in this regard. The appellant-defendant contested the suit. He pleaded that the plaintiff-respondent had given option to be absorbed in service of the Board in the year 1973 and was in fact absorbed on 8. 4. 1974. It was also averred that Jagdish Narain Mathur was considered and promoted in compliance of the order of the court in spite of the fact that he was non-matric. The plaintiff- respondent was also considered for promotion on 15. 11. 1973 by the D. P. C. but he was not found sufficiently suitable for promotion as Accountant. It was also pleaded that the suit was time barred. The Trial Court framed as many as seven issues on the basis of the pleadings of the parties and after taking evidence of both the parties and after affording opportunity of hearing to both the sides, found issues Nos. 1, 2, 3, 4 and 5 in favour of plaintiff-respondent and issue No. 6 was decided against the defendant as not pressed. Accordingly, the suit of the plaintiff- respondent was decreed for permanent injunction only and the relief of declaration was declined. The Trial Court further directed that the plaintiff-respondent be promoted like Jagdish Narain Mathur after consideration from the date Mr. Mathur was promoted as Accountant. Aggrieved by the said judgment and decree, the plaintiff-respondent approached the First Appellate Court in appeal, but the appeal was dismissed with slight modification that the relief of declaration was also granted along with permanent injunction. However, the costs were made easy. Hence, this second appeal. During the pendency of this appeal, five companies were constituted of the Rajasthan State Electricity Board. Accordingly, the company which pertains to the present matter was substituted in place of the RSEB in the appeal.
(3.) I have heard learned counsel for the parties and have perused the relevant record. It is vehemently contended by the learned counsel for appellant, Rajasthan Rajya Vidhyut Vitaran Nigam Limited that the relief of declaration by modifying the judgment of the Trial Court could not have been granted to the plaintiff respondent without there being any cross appeal or cross objection challenging the finding on issue No. 7 before the First Appellate Court. But he has neither pointed out any provision of law which debars such course of action nor cited any authority to the contrary. Learned counsel for plaintiff-respondent has disputed this position and has tried to support the judgment of the learned First Appellate Court. He has submitted that the First Appellate Court has same powers as the Trial Court and while dealing with the appeal may even without the cross objection or cross appeal grant the relief of declaration if it flows from the finding to which the first appellate court comes. In deed, I am unable to persuade myself to accept the contention of the learned counsel for the appellant-defendant. In my well considered view, the relief as granted by the Trial Court can very well be granted by the First Appellate Court and in this view of the matter, the contention put forth by the learned counsel for the appellant- defendant deserves to be and is hereby turned down. No fault can be found with the judgment of the first appellate court on this count calling for any interference therein. ;