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1999 DIGILAW 383 (GAU)

Bimal Bhowmick v. Mrinal Kanti Bhowmick

1999-12-01

A.K.PATNAIK

body1999
This is an appeal under section 100 of the Civil Procedure Code, 1908, (for short, the CPC), against the judgment and decree of the learned District Judge. West Tripura District, Agartala in Title Appeal No. 1 of 1988. 2. The facts briefly are that the respondent No. 1, Dr. Mrinal Kanti Bhowmick, filed Title Suit No. 49 of 1979 (renumbered as Title Suit No. 100 of 1986) in the Court of Subordinate Judge, West Tripura, Agartala. His case in the said suit was that he joined as a Civil Assistant Surgeon on 4.2.66 in Tripura which was then a Union Territory and was absorbed in the Central Health Service in the Grade II post of GDO with effect from 20.2.67, He passed DOMS in July, 1974 and MS in Opthalmology in February, 1975. After Tripura became a State, the Tripura Health Service, (for short, the THS) was constituted with effect from 18.5.74. The cases of different officers of the Central Health Service working in Tripura for absorption in the THS were considered and the respondent No. 1 was offered absorption in Grade IV of the THS on 20.10.75. The respondent No.l then submitted a representation for his absorption in Grade III of the THS. He contended that other officers like Dr. LK Kundu and Dr. SC Basak had been absorbed in Grade III and Grade II of the THS respectively although their cases were similar to that of the respondent No. 1 and that the authorities had acted in a discriminatory manner in offering to the respondent No.l absorption in Grade IV of the THS. In the said suit, the respondent No.l prayed for a declaration by the Court that he was entitled to be absorbed in Grade III of the THS.in its initial constitution with effect from 18.5.74 and that he was entitled to recover his pay and allowances as a consequence of such absorption in Grade III of the THS with effect from 18.5.74. 3. In the said suit, the State of Tripura and the Secretary to the Govt of Tripura, Health and Family Welfare Department were the principal defendants and they filed a joint written statement contesting the suit. The appellants who were appointed to Class III of the THS in the year 1980 as direct recruits were impleaded as proforma defendants in the said suit. The appellants who were appointed to Class III of the THS in the year 1980 as direct recruits were impleaded as proforma defendants in the said suit. By judgment and decree dated 25.11.87, the learned Subordinate Judge, West Tripura District, Agartala decreed the suit on contest with cost. In the said judgment while answering issue No. 8, the learned Subordinate Judge also held that the plaintiff-respondent No.l was senior to the proforma defendants (appellants herein). 4. Aggrieved, the appellants filed Title Appeal No.l of 1988 before the learned District Judge, West Tripura District, Agartala. The State of Tripura also filed Title Appeal No.5 of 1988 before the learned District Judge, West Tripura District, Agartala against the said judgment and decree of the learned Subordinate Judge. But by a common judgment dated 30.6.88, the learned District Judge dismissed the two appeals on contest with cost and directed the State Govt of Tripura and the Secretary to the Govt of Tripura, Department of Health and Family Welfare to treat the plaintiff-respondent No. 1, Dr. Mrinal Kanti Bhowmick as eligible for absorption L, Grade III of the THS in its initial constitution on 18.5.74 and to determine his seniority in Grade III of the THS on the basis of such absorption and pay consequential monetary benefits to him. By the said common judgment, the learned District Judge ,also declared the plaintiff-respondent No.l as senior to the proforma defendants (appellants herein) and directed that the cases of other Doctors (like Dr. Mrinal Kanti Bhowmick whose cases were not considered by the Sele6tion Committee) could not come for consideration by the State Govt simply because Dr. Mrinal Kanti Bhowmick succeeded in the case. Further, by the said judgment, the learned District Judge upheld the findings of the learned Subordinate Judge, West Tripura District, Agartala. Aggrieved, the proforma defendants-appellants have filed the present second appeal. 5. Earlier this second appeal was heard by this Court and by judgment dated 22.8.97 this Court held that no relief could have been granted against the appellants by impleading them as proforma defendants only in the suit and allowed the appeal and set aside the judgments and decrees in the suit as well as in the title appeal. Aggrieved by the said judgment of this Court, the respondent No.l, Dr. Aggrieved by the said judgment of this Court, the respondent No.l, Dr. Mrinal Kanti Bhowmick filed Special Leave Petition (Civil) No. 17609 of 1997 in which leave was granted and in Civil Appeal No. 1943 of 1998, the Supreme Court passed orders on 3.4.98 allowing the appeal and setting aside the aforesaid judgment of this Court and remanding the matter to this Court for deciding the second appeal in accordance with law and on merit. In the said order dated 3.4.98, the Supreme Court further observed that if any of the proforma respondents desired to file any undisputed documents/orders before this Court they might do so on affidavit as the respondent No. 1, Dr. Mrinal Kanti Bhowmick, did not have any objection to their filing such documents before this Court. Thereafter, the second appeal was reheard along with Civil Rule No. 1 of 1991. In the second appeal as well as in Civil Rule No.l of 1991, the appellants and the State Govt of Tripura who were respondents before the Supreme Court have filed documents along with their affidavits and all the parties have made their contentions through their respective counsel. On 4.10.98, this Court while admitting the appeal observed that Ground No.2 (d) of the memorandum of appeal contained a substantial question of law. The said ground No.2 (d) of the memorandum of appeal is quoted herein below: “2 (d). Whether the plaintiff-respondent No. 1 being a member of Central Health Service (for short, CHS) and without exercising mandatory option for absorption in Tripura Health Service (for short, THS) as per provision of Rule 9 of the Tripura Health Service Rules, 1974 (for short, the Rules, 1974) can claim, as matter of right to be absorbed as regular employee of the THS from the initial constitution of the Rules, 1974 wef 18.4.74?” On 23.4.99, this Court after hearing the parties, passed orders formulating the following additional substantial question of law for decision in the second appeal: “Whether on the findings of fact as recorded by the Courts below, a direction could be given by the Court to the State Govt of Tripura and the Secretary to the Govt of Tripura, Health & Family Welfare Department to treat the plaintiff, Dr. Mrinal Kanti Bhowmick as eligible for absorption in Grade III of the Tripura Health Services in its initial constitution on 18.5.74 and to determine his seniority, and pay him the consequential monetary benefits accordingly when the Tripura Health Services Rules, 1974 and in particular Rules 9 and 18 thereof provided for absorption or recruitment at the time of initial constitution of the Tripura Health Services on the recommendation of the Selection Committee?” Hence, this second appeal was heard on the aforesaid two substantial questions of law. 6. At the hearing, Mr. PK Biswas, learned counsel for the appellants, submitted that the Tripura Health Services Rules, 1974, (for short, the 1974 Rules) came into effect from 18.5.74 and, therefore, the qualification and experience of officers as on 18.5.74 were to be taken into consideration by the Selection Committee for recommending an officer for absorption to a particular grade of the THS. As on 18.5.74, the respondent No. 1, Dr. Mrinal Kanti Bhowmic^ was a simple MBBS and did not have any Post Graduate qualification in Opthalmology as on 18.5.74.According to Mr. Biswas, the DOMS and MS Degree in Opthalmology obtained by the respondent No.l in July, 1974 and February, 1975 after 18.5.74 could not be taken into consideration for the purpose of his absorption in THS with effect from 18.5.74. Hence, the respondent No.l was rightly absorbed in Grade IV of the THS on the basis of the recommendation of the Selection Committee. Mr. Biswas further submitted that Rules 9 and 18 of the 1974 Rules would further make it clear that the absorption of the members of the Central Health Service in the THS would be to a particular grade as recommended by the Selection Committee and since the Selection Committee recommended absorption of respondent No.l in Grade IV of the THS, the Court could not direct absorption of the respondent No.l in Grade III of the THS. Mr. Biswas argued that the learned District Judge in the impugned judgment has relied on Rule 20 of the 1974 Rules for holding that the respondent No. 1 was entitled to be absorbed in Grade HI of the THS as he had put in the required length of service and had acquired Post Graduate qualification and was therefore eligible for promotion in his parent cadre. But Rule 20 of the 1974 Rules provided that only persons who were due for promotion in their parent cadre would be entitled to absorption in the initial constitution to a higher , grade than that to which he was borne in his parent cadre, and the letter dated 25.9.89 copy of which has been annexed to the affidavit filed by the appellants on 23.3.99 would show that as per the said letter of the Govt of India, Ministry of Health & Family Welfare to the Secretary (Health), Govt of Tripura, the respondent No.l was entitled to promotion to Senior Class I with effect from 1.1.78 had he remained in the Central Health Service. According to Mr. Biswas, therefore, the respondent No. 1 was not due for promotion in his parent cadre as on 18.5.74. 7. Mr. Biswas vehemently contended that in any case since Rule 9 of the 1974 Rules required an officer of the Central Health Service to exercise his option for absorption in the THS, the respondent No. 1 could not be directed to be absorbed in the THS as he had not produced any evidence to show that he had exercised his option for such absorption. Mr. Biswas pointed out that the result of the impugned judgments and decrees of the trial Court and the first appellate Court is that while the respondent No.l would be absorbed in Grade III of the THS with effect from 18.5.74, the appellants and many other officers of the erstwhile Central Health Service who were senior to respondent No.l in service prior to 18.5.74 would be absorbed in Grade IV of the THS with effect from 18.5.74. The judgments therefore have affected the seniority of the respondent No. 1 vis-a-vis the appellants and other Doctors of the THS and their respective prospects for promotion to higher posts. According to Mr. Biswas, therefore, this is a fit case in which this Court should set aside the impugned judgments and decrees of the trial Court and the first appellate Court in the interest-of justice. 8. In reply, Mr. According to Mr. Biswas, therefore, this is a fit case in which this Court should set aside the impugned judgments and decrees of the trial Court and the first appellate Court in the interest-of justice. 8. In reply, Mr. S. Deb, learned counsel for the respondent No.l, submitted that the proceedings of the meeting of the Selection Committee held on 19.9.75 filed by the respondent Nos 1 and 2 along with their affidavit on 9.7.99 would show that the Selection Committee only considered the scales of pay and total emoluments of the officers but did not consider the qualifications of the respective officers. According to Mr. Deb, therefore, Rule 9 of the 1974 Rules providing for consideration of experience and qualifications of the officers for the purpose a of their absorption to different grades in the THS had been ignored by the Selection Committee. Mr. Deb submitted that under Rule 20 of the 1974 rules the respondent No.l was entitled to be absorbed in Grade HI of the THS as he was due for promotion having acquired the requisite length of service and the Post Graduate qualification and this benefit was given to other officers but not to respondent No. 1. Mr. Deb further contended that it had been admitted in the written statement b of the State of Tripura that the promotion of Dr. Kundu to a higher grade with effect from 1.10.74 had been taken into consideration by the Selection Committee and Dr. Kundu was therefore absorbed in Grade III of the THS. Hence, the contention that the qualifications and experience of the officers after 18.5.74 were not taken into consideration by the Selection Committee for the purpose of. recommending the grades to which they would have to be absorbed in the THS is not correct. He further argued that it appeared that different Selection Committees at different times met for recommending absorption of different officers in the THS. This procedure, according to Mr. Deb was contrary to the 1974 Rules and there should have been one Selection Committee for the purpose of absorption into all five grades of the THS at the time of initial constitution and before the Selection Committee met, the total number of posts in different grades which were required to be filled up should have been made available to the Selection Committee. Mr. Mr. Deb also argued that since the State of Tripura has not filed any second appeal against the impugned judgment and decree of the first appellate Court, the impugned judgments and decrees of the trial Court and the first appellate Court have become, final as against the State of Tripura. He further argued that as the appellants in this second appeal had not put in their written statements raising their pleas on different factual aspects and points of law, they could not be allowed to raise such pleas for the first time in the memorandum of appeal filed before this Court. Finally, Mr. Deb contended that the second appeal has become academic as the respondent No. 1 has been promoted to Grade H of the THS subsequently not on the basis of his seniority in Grade III of the THS but on the basis of his merit. According to Mr. Deb, therefore, even if the judgments and decrees of the trial Court and the first appellate Court are set aside by this Court in this second appeal, the respondent No. 1 will be senior to the appellants having been promoted to Grade II of the THS on the basis of his merit prior to the appellants. 9. Mr. BK Bhattacharjee, learned Advocate General, Tripura, submitted that the State of Tripura has not filed any appeal against the judgment and decree of the first appellate Court, but it will abide by whatever verdict is given by this Court in the present second appeal. 10. For deciding the two substantial questions of law indicated above, it is necessary to take note of the relevant provisions of the 1974 Rules. Rules 9,18, 20 and 21 of the 1974 Rules are quoted herein below: “9. Initial constitution of service. 10. For deciding the two substantial questions of law indicated above, it is necessary to take note of the relevant provisions of the 1974 Rules. Rules 9,18, 20 and 21 of the 1974 Rules are quoted herein below: “9. Initial constitution of service. (1) The existing members of the Central Health Service who are on deputation to Tripura under the provisions of section 63 of the North Eastern Areas (Reorganisation) Act, 1971 and also the existing members of the State Health Department shall be absorbed on the commencement of these Rules against such duty posts as may be considered suitable according to their qualifications and experience as may be decided by the Selection Committee: Provided that any member having lien to any other service under the Govt of India or any other State Govt shall not be so absorbed, unless he exercises an option to come over to Tripura Health Service, and the option once exercised shall be final. (2) Persons who are not absorbed at the time of initial constitution of the service will continue to hold the posts to which they were appointed. The cases of officers who are considered for appointment to the service though not actually appointed thereto under Rule 9 (1) of Tripura Health Service Rules, 1974, shall be considered while filling up future substantive vacancies by selection against promotion quota. 18. Constitution of Selection Committee. Recruitment for initial constitution and departmental promotion shall be made on the recommendation of a Selection Committee (hereinafter referred to as the Committee) consisting of: (i) Chairman : The Chairman or a Member of the Commission, (ii) Members : Secretary of the Department to which the cadre relates or any other Senior Secretary as decided by the Govt. (iii) Director of Health Services or any other senior specialist nominated by the Govt, either locally or from outside, (for all Grades other than Grade I for which another Senior Secretary will be nominated by the Govt). 20. Special provision for the optees. (iii) Director of Health Services or any other senior specialist nominated by the Govt, either locally or from outside, (for all Grades other than Grade I for which another Senior Secretary will be nominated by the Govt). 20. Special provision for the optees. In the case of members of the Central Health Service or any other State Health Service who opt for Tripura Health Service, they will be entitled to get the following additional benefits: (i) All these persons who are due for promotion in their parent cadre by virtue of their length of service and/or possessing Post Graduate qualifications will be entitled to be absorbed in the initial constitution to the higher grade than that to which he is borne in his parent cadre. (ii) Those persons of the Central Health Service or other State Health Service who are absorbed to equivalent grade will be given one advance increment at the time of his absorption in the initial constitution. 21. Option for absorption in Tripura Health Service. All those members of the Central Health Service who are on deputation under the Govt of Tripura in pursuance of provisions of section 63 of the North Eastern Areas (Reorganisation) Act, 1971 shall be given an offer for exercising option (vide fourth schedule) for absorption under the Tripura Health Service against suitable grade as determined by the Selection Committee, after taking into consideration their length of service, experience and other qualifications.” The first substantial question of law which is to be decided in this second appeal as to whether the respondent No.l being a member of the Central Health Service could claim as a matter of right to be absorbed as a regular employee of the THS at its initial constitution with effect from 18.5.74 without exercising mandatory option for absorption in the THS in view of the provisions of Rule 9 of the 1974 Rules. Rule 21 of the 1974 Rules states that all members of the Central Health Service who are on deputation under the Govt of Tripura, shall be given an offer for exercising option for absorption under the THS against suitable grade as determined by the Selection Committee, after taking into consideration the length of service, experience and other qualifications. Rule 21 of the 1974 Rules states that all members of the Central Health Service who are on deputation under the Govt of Tripura, shall be given an offer for exercising option for absorption under the THS against suitable grade as determined by the Selection Committee, after taking into consideration the length of service, experience and other qualifications. Hence, so far as offer for absorption of the members of the Central Health Service in the THS was concerned, it had to be given for a suitable grade as determined by the Selection Committee. But so far as option for such absorption was concerned, such option was not to be given for absorption in a particular grade of the THS but for absorption in the THS as such. This would be clear from the proviso to Rule 9 (1) of the 1974 Rules which states that a member having lien to any other service under the Govt of India or any other State Govt shall not be so absorbed unless he exercises an option to come over to THS. Proviso to Rule 9(1) does not state that the option has to be exercised to a particular grade of the THS. It is thus clear that the respondent No. 1 being a member of the Central Health Service prior to 18.5.74 had a lien to the said Central Health Service and could not be so absorbed in the THS unless he exercised option to come over to the THS. It appears from the impugned judgment of the learned District Judge that an offer was made by the State of Tripura to the respondent No.l for absorption in Grade IV of the THS, but the respondent No.l submitted a representation for his absorption in Grade III of the THS. The representation dated 5.12.75 made by the respondent No.l to the Director of Health Services, Govt of Tripura for his absorption in Grade III of the THS has been marked as Ext 2. The said representation in Ext 2 was thus an exercise by the respondent No. 1 of his option to come over to the THS. The respondent No.l was also in fact absorbed in the THS with effect from 18.5.74. The first substantial question of law is accordingly decided. 11. The said representation in Ext 2 was thus an exercise by the respondent No. 1 of his option to come over to the THS. The respondent No.l was also in fact absorbed in the THS with effect from 18.5.74. The first substantial question of law is accordingly decided. 11. The second substantial question of law which arises for decision in this second appeal is whether on the findings of fact as recorded by the Courts e below, a direction could be given by the Court to the State Govt of Tripura and the Secretary to the Govt of Tripura, Health and Family Welfare Department to treat the respondent No.l as entitled for absorption in Grade III of the THS in its initial constitution on 18.5.74 and to determine his seniority and pay him the consequential monetary benefits accordingly when the 1974 Rules and in particular Rules 9 and 18 thereof provided for absorption or recruitment at the time of initial constitution of the THS on the recommendation of the Selection Committee? A bare perusal of Rules 9(1), 18 and 21 of the 1974 Rules quoted above makes it clear that under the law it was the Selection Committee which had been vested with the power to determine the suitable grade to which an officer belonging to the Central Health Service was to be absorbed in the THS with effect from 18.5.74. Thus, where a Selection Committee determines that a particular officer such as respondent No.l is to be absorbed in Grade IV of the THS with effect from 18.5.74 at the time of its initial constitution, the Court cannot direct that such an officer of the Central Health Service is to be absorbed not in Grade IV of the THS but in Grade III of the THS with effect from 18.5.74. 12. 12. In a given case, however, the determination made by the Selection Committee as to the grade to which an officer is to be absorbed in the THS may be questioned before a Court of law on the ground that such determination is not in accordance with the Rules made under the proviso to Article 309 of the Constitution of India or that the determination has been made in a discriminatory manner in violation of the provisions of Articles 14 and 16 of the Constitution and in such a case if the Court finds that the determination made by the Selection Committee regarding the grade to which the officer has to be absorbed is contrary to such Rules or Articles 14 and 16 of the Constitution, the Court can always direct the Selection Committee to determine the grade to which the officer has to be absorbed afresh in accordance with the rule ? or the provisions of the Constitution, but cannot itself exercise the powers of the Selection Committee and direct that the officer be absorbed in a particular grade. 13. In the present case, the case of the respondent No.l is that Rule 20 of the 1974 Rules had been ignored by the Selection Committee inasmuch as the Post Graduate qualifications of the respondent No.l which he had acquired had not been taken into consideration while determining the grade to which he was to be absorbed in the THS in its initial constitution. A reading of Rule 20 of the 1974 Rules would show that the members of the Central Health Service who opted for THS were entitled to get an additional benefit of absorption in the initial constitution to the higher grade than that to which they were borne in their parent cadres if they were due for promotion in their parent cadres by virtue of their length of service and/or possessing Post Graduate qualifications. The findings of the learned District Judge that the respondent No.l was entitled to this additional benefit of being absorbed in the higher grade of the THS in its initial constitution are extracted herein below: “... DW 1, DK Roy states under the CHS Rules the eligibility for promotion to GDO Grade I from GDO Grade n is 5 years experience in GDO, Grade II. DW 1, DK Roy states under the CHS Rules the eligibility for promotion to GDO Grade I from GDO Grade n is 5 years experience in GDO, Grade II. The plaintiff was not due for promotion to GDO, Grade I though he served for 5 years in GDO, Grade II and become eligible but because there were a good number of persons above him in the seniority list of GDO, Grade II who were yet to be promoted on that relevant date. The DW 1 says defendants have filed document to show the number of persons above the plaintiff in GDO, Grade II waiting for promotion but actually no such document has been filed except Ext A dated 24.4.1974 wherein position of plaintiff has been shown at serial No. 213. In this list name of Dr. Kunchi must find place but no name except of plaintiff has been typed. Ext A is meant for fixation of pay of Medical Officer posted in Class I Junior Scale from 1.1.1973 which admittedly includes names of plaintiff and Dr. Kundu. From the evidence of DW 1 it is seen the plaintiff Dr. M. Bhowmick has already completed 5 years service in GDO, Grade II of CHS and he acquired eligibility for promotion to GDO, Grade I under CHS. Here comes Rule 20 (1) of THS in aid of the plaintiff. This rule says members of CHS who opt for THS will be entitled to get additional benefits if such member of CHS is due for promotion in his parent cadre (in CHS) by virtue of his length of service and/or possessing Post Graduate qualification which entitles him to be absorbed in the initial constitution to the higher grade than that to which he is borne in his parent cadre. This provision of Rule 20 (1) of THS Rules qualifies the plaintiff to get Grade III post in THS as plaintiff was due for promotion to Grade I GDO within short time. The plaintiff being in GDO, Grade II earned qualification for absorption in Grade III of THS. It is, therefore, not correct to say the plaintiff was not eligible for promotion to Grade III at the time of initial constitution. The plaintiff being in GDO, Grade II earned qualification for absorption in Grade III of THS. It is, therefore, not correct to say the plaintiff was not eligible for promotion to Grade III at the time of initial constitution. The plaintiff was fit to be absorbed in Grade III of THS at the time of initial constitution as per THS and CHS Rules...” The aforesaid findings would show that the learned District Judge has come to the conclusion that the respondent No.l was due for promotion in his parent cadre as he had completed five years of service as GDO, Grade II of the Central Health Service and had acquired Post Graduate qualifications within a short time. The relevant date for absorption in the THS was 18.5.74. Hence, as on 18.5.74, the respondent No.l must be due for promotion in his parent cadre, namely, the Central Health Service by virtue of his length of service and/or Post Graduate qualifications, if he was to be given the additional benefit of absorption in a higher grade under Rule 20 of the 1974 Rules quoted above. The learned District Judge fell into a grave error of law by equating 'eligibility for promotion' with 'due for promotion'. An officer may become eligible for consideration for promotion to higher grade after having put in the minimum length of service in the lower grade and after having acquired Post Graduate qualifications, but until and unless officers above him who had put in greater length of service and were also similarly eligible for promotion having completed the minimum length of service and having acquired Post Graduate qualifications were considered for promotion to the higher grade, that officer was not due for promotion to the higher grade. The learned Subordinate Judge and the learned District Judge have not recorded any positive findings in their respective judgments that other officers with greater length of service who were senior to the respondent No.l and who were also eligible for promotion had been considered for promotion in the parent cadre. Thus, the findings of the Courts below that the respondent NoM was entitled to the additional benefit of being absorbed in the higher grade, namely, Grade III of the THS in its initial constitution under Rule 20 of the 1974 Rules is not correct in law. 14. The learned District Judge, however, has found that Dr. Thus, the findings of the Courts below that the respondent NoM was entitled to the additional benefit of being absorbed in the higher grade, namely, Grade III of the THS in its initial constitution under Rule 20 of the 1974 Rules is not correct in law. 14. The learned District Judge, however, has found that Dr. LD Kundu who belonged to Junior Class I Grade of the Central Health Service was promoted to Senior Class I Grade with effect from 1.10.74, and he, was initially absorbed in Grade IV of the THS but on review the Selection Committee recommended for his absorption in Grade III of the THS and he was accordingly absorbed in Grade III of the THS in its initial constitution with effect from 18.5.74 giving him the additional benefit under rule 20 of the 1974 Rules. On the basis of the said finding, the learned District Judge further held that if the fact that the said Dr. Kundu was promoted to Senior Class I Grade in the Central Health Service with effect from 1.10.74 could be taken into consideration by the Selection Committee for his absorption in a higher grade, the respondent No.l could not be denied similar benefit under Rule 20 of the 1974 Rules for absorption in Grade III of the THS merely because he obtained his Post Graduate degree after 18.5.74. According to the learned District Judge, conferring of additional benefit under Rule 20 of the 1974 Rules to Dr. Kundu and denial of similar benefit to the respondent No. 1 on the ground that he acquired the Post Graduate qualifications only after 18.5.74, which was the relevant date, amounted to discrimination against the respondent No. 1 and, therefore, the respondent No. 1 was entitled to a direction from the Court for absorption in Grade III of the THS in its initial constitution with effect from 18.5.74. As has been held above, the officers of the Central Health Service were to be absorbed in the THS with effect from 18.5.74. Hence, the respondent No. 1 should be eligible and due for promotion in his parent cadre on 18.5.74. Admittedly, the respondent No.l had acquired Post Graduate qualifications after 18.5.74 and was, therefore, not eligible for promotion in his parent cadre as on 18.5.74 on account of the fact that he did not have the Post Graduate qualifications as on 18.5.74. Hence, the respondent No. 1 should be eligible and due for promotion in his parent cadre on 18.5.74. Admittedly, the respondent No.l had acquired Post Graduate qualifications after 18.5.74 and was, therefore, not eligible for promotion in his parent cadre as on 18.5.74 on account of the fact that he did not have the Post Graduate qualifications as on 18.5.74. The fact that another officer of the Central Health Service, namely. Dr. LD Kundu was given the additional benefit under Rule 20 of the 1974 Rules although he was promoted with effect from 1.10.74 several months after 18.5.74 would not entitle the respondent No.l to a similar direction from the Court on the ground of discrimination and violation of Articles 14 and 16 of the Constitution. It has been held by the Supreme Court in Harpal Kaur Chahal vs. Director, Punjab Instructions, 1995 Supp (4) SCC 706, that Article 14 of the Constitution cannot be extended to legalise the illegal orders though others had wrongly got the benefit of the orders. Thus, merely because Dr. Kundu or some other officers had got some illegal benefits contrary to Rule 20 of the 1974 Rules, the Court cannot grant similar illegal benefit to the respondent No.l contrary to Rule 20 of the 1974 Rules. On the findings of the learned District , Judge in the impugned judgment, therefore, no direction also can be given to the authorities for fresh determination of the grade by the Selection Committee in which the respondent No. 1 should be absorbed in the THS. The second substantial question of law which has arisen in this second appeal is decided accordingly. 15. Coming now to the submission of Mr. Deb, learned counsel for the respondent No.l that the appellants in this second appeal have not put in their written statement raising their pleas on different factual aspects and points of law and therefore should not be allowed to raise such pleas for the first time in the memorandum of appeal filed before this Court, on a reading of section 100 of the CPC, 1908,1 find that there is no such limitation put on the right of a party to file second appeal against a decree of the first appellate Court where such party had not file a written statement. The only limitation put in section 100, CPC is that the case in respect of which the appeal is filed should involve a substantial question of law. In the instant case, two substantial questions of law have arisen and have been decided after hearing the parties. 16. Regarding the sub- ission of Mr. Deb that the second appeal has become academic the respondent No.l having been promoted to Grade II of THS subsequently not on the basis of his seniority in Grade III of the THS but on the basis of his merit, I may say that in this second appeal, the court is not concerned with the promotion of the respondent No.l Grade II of the THS. The Court is concerned instead with the question as to whether the respondent No.l was entitled to be absorbed in Grade IV or Grade III of the THS and since this Court has found that the respondent No.l was not entitled to be absorbed in Grade III of the THS in its initial constitution on 18.5.74 as directed by the Courts belowv the Court will have to set aside the impugned judgments and decrees of the trial Court and the first appellate Court. So far as the promotion of respondent No.l to Grade II of the THS is concerned, the same was challenged in Civil Rule No. 1 of 1991, and the Court has today delivered the judgment in the said Civil Rule No. 1 of 1991 sustaining the promotion of the respondent No. 1 to Grade II of the THS but directing the State-respondents to place the matter before the Selection Committee for reconsideration of the promotion of the writ petitioner. 17. It is true, as has been stated by Mr. Deb, that State of Tripura has not filed any appeal against the judgment and decree of the learned District Judge, West Tripura, Agartala in Title Appeal No. 5 of 1988 filed by the State of Tripura. But the fact remains that the learned District Judge has delivered a common judgment in Title Appeal Nos 1 and 5 of 1988 and, therefore, if the judgment and decree in Title Appeal No.l of 1988 is set aside by this Court, the judgment and decree in Title Appeal No. 5 of 1988 cannot survive so as to remain binding on the State of Tripura. 18. 18. In the result, the impugned judgment and decree dated 25.11.87 passed by the learned Subordinate Judge, West Tripura District, Agartala in Title Suit No. 49 of 1979 (renumbered as Title Suit No. 100 of 1986) and the impugned judgment and decree dated 30.6.88 passed by the learned District Judge, West Tripura District, Agartala in Title Appeal Nos 1 of 1988 and 5 of 1988 are set aside and this appeal is allowed. However, considering the entire facts and circumstances of the case, I leave the parties to bear their respective costs.