TMI Blog1987 (11) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion of law and then dispose of the matter on the facts in each case. 2. The Kerala Co-operative Societies Act ( The Act ) meant to 'consolidate, amend and unify the laws relating to Co-operative Societies in the State of Kerala' came into force on 12th May, 1969. Section 80 of the Act provided for classification of the Societies and for making rules regulating the qualification, remuneration, allowances and other conditions of service of the officers and servants of the different classes of societies. Rules were not framed for this purpose for a long time till Chapter XV, with Rules 182 to 200, came into force with effect from 1st January, 1974. On that date, it is said there were 4502 Co-operative Societies and thousands of employees in service in these societies. While the new rules classified the societies and prescribed the qualifications for appointment to several categories of service in the Societies, a saving clause was inserted in Rule 200 as follows :-- Nothing in these Rules or any rules made thereunder shall operate to debar from enjoyment of any person or employee of any right or privilege of emoluments to which he is entitled by the term of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1974 should not be interpreted as a disqualification to the existing employees in any society for any promotion to higher posts or benefits conferred by these rules. 6. Two single Judges in two separate judgments interpreting Rule 200 concluded thus, without giving any reasons : -- A close reading of Rule 200 makes it clear that what is reserved by this rule is the emoluments and other benefits which the employees enjoyed under the provision in the bye-law during the tenure of office. (O.P. No. 1684 of 1975) What is saved is only the right or privilege of emoluments. Other conditions of service are not protected. Any other interpretation of Rule 200 will render otiose the other rules. (O.P. No. 549 of 1975) 7. In yet another decision by another learned single Judge in Sankara Wariyar v. North Malabar, Dist. 1982 Ker LJ 124 : (1982 Lab IC 863), interpreting Rule 200 to retirement cases, it was held thus : -- The learned counsel for the petitioner contended that the expression privilege of emoluments is wrong and the correct expression is privilege or emoluments . If that be so, the right or privilege mentioned in the rule is not restricted to emolu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndered his decision. In a sense, the learned Judge was not directly concerned with that provision, as the issue therein was one of the age of superannuation. M.P. Menon J. saw force and relevance in that provision but chose not to pronounce upon the combined effect of the two portions of the Rule, as it was unnecessary having regard to the limited issue on which the judgment was ultimately rested. The effect of the provision had not been fully noticed or had not been brought to the attention of our learned brothers, Khalid, J., and Bhat, J., when they dealt with the issues before them. Unlike in the present case the question of promotion to higher post did not directly arise in those cases. On a combined reading of Rules, 185, 186, and 200, it has to be held that the right to promotion to the higher posts of those already in service but not possessing the higher qualifications introduced under the Rules, is preserved and protected; the protection is not confined to the emoluments of the posts they held at the time or the coming into force of the Rules. We do, not find any reason to restrict the right of such promotion to the immediately higher posts. The safeguard intended was for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts meaning as it is understood in the general or ordinary sense. In Webster's Third New International Dictionary, privilege is a right or immunity granted as a peculiar benefit, advantage or favour; a special enjoyment of a good or exemption from an evil or burden; a peculiar or personal advantage or right esp, when enjoyed in derogation of common fight . In Black's Law Dictionary, privilege is a particular and peculiar benefit or advantage enjoyed by a person, company, or class, beyond the common advantages of other citizens. An exceptional or extraordinary power of exemption. Aright, power, franchise, or immunity held by a person or class, against or beyond the course of the law. 13. In Corpus Juris Secundum, Vol. 72 it is stated as follows : -- PRIVILEGE. The word privilege has a variety of meanings, according to the connection or context in which it is used; but inherent in the term is the idea of something apart and distinct from a common right which pertains to all citizens or exists in all subjects, and the word connotes some sort of a special grant from the sovereignty, some type of necessary special permission or consent which the sovereign in its disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wable in certain circumstances to all, or else to a limited number of persons. The Restatement of the Law of Property defines a privilege as a legal freedom on the part of one person as against another to do a given act or a legal freedom, not to do a certain act. Dias Jurisprudence, Fifth Edition, at page 23 summarises Jural Relations thus : -- Claims, liberties, powers and immunities are subsumed under the term 'rights' in ordinary speech, but for the sake of clarity and precision it is essential to appreciate that this word has undergone four shifts in meaning. They connote four different ideas concerning the activity, or potential activity, of one person with reference to another. (1) Y's duty with regard to X would be expressed by X as 'you ought (must)' : (X is then said to have a claim or right, stricto sensu). (2) X's freedom to do something in relation to Y would be expressed by X as 'I may' : (X has a liberty or privilege). 3) X's ability to alter Y's legal position would be expressed by X as 'I can' : (X has a power). (4) Y's inability to alter X's legal position would be expressed by X as & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rimary duty to perform, or whether there is a sanctionless duty, i.e. a primary duty which he ought to fulfil, but no sanctioning duty to pay damages and instead an immunity from the power of judgment. Other liberties are recognised by law on special occasions, that is to say the normal duty not to do something is replaced in the circumstances by the liberty to do it, e.g. self-help, self-defence, the defences of fair comment and qualified privilege. Lastly, liberty may be created by the parties themselves, e.g. consent, or volenti non fit injuria, one effect of which is that it absolves a defendant from his duty. In the Fifth Edition of Lloyd's Introduction to Jurisprudence, at page 434, the learned author states thus : -- Rights.....are not mere gifts or favours..... for which gratitude is the sole fitting response. A right is something which a man can stand on, something that can be demanded or insisted upon without embarrassment or shame..... A world with claim-rights is one in which all persons, as actual or potential claimants, are dignified objects of respect.....No amount of love or compassion, or obedience to higher authority, or noblesse oblige, can subst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion 'privilege' separately. The width of the saving clause, in the circumstances, did not admit of any elaborate judicial examination either. That probably explains the paucity of judicial decisions interpreting the word privilege occurring in saving clauses. However, we are not in that privileged position for the reason that Rule 200 requires a judicial determination of the content of privilege to understand the extent of the statutory protection granted to existing staff of co-operative societies. 17. Where there is a right, there is a duty. Where it is only a privilege, it is only liberty without any corresponding duty. Privilege provides an opportunity to choose among alternatives. Privilege can be the dispensation of a bounty, a conferment of a personal benefit or advantage, a sanction of immunity or the grant of an exemption. Privilege is thus essentially discretionary. It may or may not be granted Privilege has thus no compulsive element and is thus not judicially enforceable. When there is no duty to enforce a privilege, there can be sanction for its breach. Privilege cannot be equated with right, and failure to grant a privilege does not attract any sanct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficient functioning of the societies. Qualifications prescribed under the new rules for promotion should invariably be the rule and not the exception. In this view, we have no hesitation to hold that Rule 200 saves the existing employees to earn promotion on the basis of the earlier qualification only to one higher post. The rule advisedly uses the expression a higher post and its context does not import the principle words in the singular shall include the plural. 19. Where no qualifications were prescribed under the old bye-laws, there was no question of preserving any right to promotion and therefore the existing employees in those cases will have to satisfy the requirements and qualification prescribed by the new rule to obtain promotion. Relaxation is a privilege which ripens into a right when it is granted. On our reasoning that a right to promotion alone is saved, it follows that where qualifications prescribed under the old bye-law, were not relaxed as provided therein before the new rules were framed, those employees did not acquire any right to be promoted and Rule 200 did not come to their rescue. Relaxation of the essential qualifications under the old rule or b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iring any of the qualifications whatsoever in that behalf. Had there been any. such rule, it would have been a good defence against the order in the nature of Ext. P3. The appellant-petitioner has no such case that the rule or contract of appointment earlier provided for promotion without acquiring qualifications . 22. We see no conflict between this judgment and the one reported in 1984 Ker LT 248, In the view, therefore, we have taken the decisions which held that the right to emoluments alone is saved under R. 200 cannot be accepted as correct and therefore, the judgments in O.Ps. Nos. 1684 and 549 of 1975 are overruled. So also, the decision in Sankra Wariyar v. North Malabar Dist. 1982 Ker U 124 : (1982 Lab IC 863), taking the same view cannot also stand and it is also overruled to this extent 23. We shall, therefore, summarise our conclusion on the interpretation and application of Rule 200 of the Kerala Cooperative Societies Rules, bearing in mind that the employees of the Co-operative Societies in service on 1-1-1974, the existing employees are the beneficiaries under the provision; (1) That all rights which the existing employees were entitled on or before 1-1- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot fix the retirement age, the employees of those societies will have to retire on attaining the age of 58 years as prescribed under the present rules. 26. Some of the petitioners have sought for a declaration that they are entitled to continue in service till they attain the age of 60 years as provided under the bye-laws and prayed for appropriate writ to be issued against the concerned societies. This Court has consistently held that no writ will lie against a co-operative society. We have no hesitation in reiterating this position. 27. The distinguishing features to identify an authority as a State within the meaning of Article 12 of the Constitution are now well settled with the pronouncement of the Supreme Court in the Rajasthan Electricity Board case AIR 1967 SC 1857 : (1975 Lab IC 1857), Sukhdev Singh's case AIR 1975 SC 1331 : (1975 Lab IC 881) and the Air Port Authorities case AIR 1979 SC 1628 and the later decisions. The decision of this Court in Sofhi v. F.A.C.T. 1984 Ker LT 32 : (1984 Lab IC NOC 110) also succinctly summarises the principles deducible from the decisions of the Supreme Court. There is, we think, no necessity thus to restate the same principles. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extent of applicability of Rule 200 as interpreted by us. 33.. The Deputy Registrar of Co-operative Societies, Cannanore, by his order dated 13-1-1981 held that the appointments of respondents 4 and 5 were irregular. But the Government have as per order dated 5-10-1981 (Ext. P4) set aside this order and upheld the claim of the contesting respondents. The petitioner, therefore, seeks to quash Ext. P4 and for incidental reliefs. 34. The Deputy Registrar, Cannanore, in the first instance, and the government, if moved later will have to consider the entire matter afresh on the basis of our interpretation of Rule 200. Facts have to be ascertained and the relevant provisions of the bye-law and service rules and also the new rules have to be looked into before any decision is rendered It is not proper to go into all these facts now in this proceedings. The order of the Deputy Registrar dated 13-1-1981 and that of the Government dated 5-10-1981 (Ext. P4) are both quashed as the claims have not been considered under Rule 200 as interpreted by us. The Deputy Registrar will therefore, consider the matter afresh in the light of all relevant facts giving an opportunity to the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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