L. Narasimha Reddy, J.
1. Defendants in O.S. No. 44 of 1996 on the file of the Additional Junior Civil Judge, Rajahmundry, preferred this second appeal.
2. The respondent herein was initially employed as a Lower Division Clerk in the first appellant-Board on 29-7-1961. Subsequently, he was promoted as Upper Division Clerk on 9-2-1966, but was reverted on 22-6-1967. Thereafter, he was promoted to the same post on 2-9-1969. He filed the suit for the relief of declaration that he is eligible and entitled to be promoted to the post of Junior Accounts Officer and for a mandatory injunction to the appellants for promoting him to the said post.
3. The appellants filed a written statement, admitting the particulars of appointment and promotion of the respondent. It was, however, pleaded that with effect from 4-3-1970, the relevant Service Regulations were modified, by incorporating certain conditions for promotion, to the post of Upper Division Clerk viz., that an employee must pass (a) Accounts Test Part-I; and (b) Government Technical Examination. It was stated that the respondent passed the Accounts Test Part-I but did not clear the Government Technical Examination. Reference was also made to the exemption granted to the persons, who were promoted before 4-7-1969, and nonavailability of the same to the respondent, since he was promoted, subsequent to that date. The appellants further pleaded that a different kind of exemption was also extended, through B.P.M.S. No. 326 dated 13-9-1993, to such persons, who have crossed fifty years as Upper Division Clerk and that the case of the respondent was not considered, since he had already availed the benefit of exemption once.
4. The trial Court decreed the suit on 28-11-2001, holding that the respondent was eligible and entitled to be promoted. It also issued a mandatory injunction, directing the appellants to promote the respondent as Junior Accounts Officer in the vacancy that existed as on the date of filing of the suit. Aggrieved thereby, the respondents filed A.S. No. 71 of 2002 in the Court of V Additional District Judge, Rajahmundry. The appeal was dismissed on 16-8-2005. Hence, this second appeal.
5. The learned Counsel for the appellants submits that the suit filed by the respondent is not maintainable, since there existed an independent mechanism, for enforcing the rights of employees, be it, in the form of departmental remedies, or the proceedings in the Labour Court/Industrial Tribunals. He further contends that the finding recorded by the trial Court on merits was erroneous and it did not take into account, the fact that the respondent did not hold the requisite qualification, nor was covered by the exemptions, granted from time to time. He further submits that even if the respondent was found to be possessing the requisite qualifications, the only decree, that could have been passed by the trial Court was, the one directing the appellants, to consider his case in accordance with the rules; and that the mandatory injunction directing that the respondent shall be straightaway promoted, cannot be sustained in law.
6. The learned Counsel for the respondent, on the other hand, submits that the case of the respondent squarely falls within the ambit of B.P.M.S. No. 326, dated 13-9-1993, and he was wrongfully denied the promotion. He submits that the trial Court was compelled to issue the mandatory injunction, in view of the fact that the respondent stood retired from service, by the time the suit was decided.
7. On the basis of the pleadings before it, the trial Court framed necessary issues. The respondent deposed as P.W. 1 and Exs. A.1 to A.3 were marked, on his behalf. On behalf of the appellants, D.W. 1 was examined and Exs. B.1 to B.6 were marked.
8. The trial Court did not examine the question of maintainability of the suit, obviously because no plea was raised by the appellants herein, in their written statement. The occasion did not arise for the trial Court to frame an issue, in that regard. Even before the lower appellate Court, the appellants did not raise the question of maintainability. Hence, they cannot be permitted to raise the said ground, for the first time, in the second appeal. At any rate, the appellants are not able to point out any provision, which has specifically excluded the jurisdiction of the civil Court, in such matters of this nature. It hardly needs any mentioning that the jurisdiction of a civil Court is almost universal and it extends to all matters, except which are specifically excluded from its purview. The Supreme Court, in some of its judgments, had indicated that even where the jurisdiction of a civil Court is excluded and an alternative Forum is created, the civil Court would continue to have jurisdiction, if it is found that the remedy provided under such legislation or before the Forum, is not as efficacious as the one, that can be pursued in a civil Court.
9. It is not in dispute that the respondent did not possess the requisite qualifications prescribed under B.P.M.S. No. 778, dated 16-12-1971, for holding the post of Upper Division Clerk. The respondent was, no doubt, promoted to that post, before the said proceedings came into force. However, he was required to acquire the qualifications, within the stipulated time. Since he did not acquire the qualifications, he had to continue in the same post and lost the right to be promoted to the higher post.
10. The occasion for consideration of the case of the respondent arose in the year 1993, when the respondents issued B.P.M.S. NO. 326, dated 13-9-1993. Under1 these proceedings, such of the Upper Division Clerks, who have completed the age of 50 years, were granted exemption from holding qualifications stipulated under B.P.M.S. No. 376. It was stipulated that out of every four vacancies, three shall be filled by the candidates, who possess the qualifications and one by those, who are entitled for the benefit of exemption. In this process also, the respondent could not be promoted, on account of the fact that he had availed the benefit of exemption, on an earlier occasion.
11. Assuming that any irregularity has crept into the process of selection or promotion, the only course open to the respondent was to challenge the same, duly impleading the selected candidates. It was impermissible to assail the selections, unless the selected candidates were impleaded. Obviously, for that reasons, the trial Court has simply declared that the respondent is eligible to be promoted and did not choose to disturb the selections.
12. Whatever be the correctness of the findings of the Courts below that the respondent was eligible and entitled to be considered to be promoted to the post of Junior Accounts Officer, the relief of mandatory injunction granted by it, straightaway, directing the appellants to promote him, against a vacancy that existed as on the date of filing of the suit, cannot be sustained in law.
13. It is well settled principle of law that even where the non-consideration of an employee for promotion is found to be illegal and unjust, the only direction, that can be given to the employer, is to consider the case of such employee, in accordance with the relevant rules. The reason is that the Court cannot substitute its decision for that of the Selection Committee or the agency conferred with the power to assess the eligibility of the candidates, with reference to the relevant rules. In the instant case, the trial Court, however, issued direction in the form of a mandatory injunction, to promote the respondent to the said post. Through the said injunction, it had rendered the whole selection process, irrelevant. Therefore, the mandatory injunction granted by the trial Court and affirmed by the lower appellate Court deserves to be set aside.
14. The learned Counsel for the respondent submits that his client had already retired from service and the direction, even if issued at this stage, for consideration of his case against the vacancy that existed at the relevant point of time, would lead to its own uncertainties and the entire exercise would become futile.
15. While admitting the second appeal, this Court granted stay, on condition that appellants shall deposit one-fourth of the amount, which was calculated towards the benefits, that would have accrued to the respondent, had the promotion been effected. This Court is of the view that the whole dispute can be given a quietus, by restricting the claim of the respondent to the said amount.
16. Hence, the second appeal is partly allowed, setting aside the decree of mandatory injunction, directing the appellants herein to promote the respondent to the post of Junior Accounts Officer against a vacancy that existed as on the date of filing of the suit. The declaratory relief is sustained and in full satisfaction of the decree, the respondent shall be entitled to withdraw one-fourth of the decretal amount, that was deposited in the trial Court. There shall be no order as to costs.