Judgment :- 1. Rule 200 of the Kerala Co-operative Societies Rules (hereinafter referred to, for convenience of reference, as the 'Rules') framed under S.80 of the Kerala Co-operative Societies Act (hereinafter referred to as the 'Act')comes up for interpretation in these writ petitions. The Rules had been earlier considered by our learned Brother, Justice Chandrasekhara Menon in OP 549 of 1975. The writ petition concerned the claim of an employee of Society to continue in service in accordance with the provisions of an agreement which fixed for retirement on superannuation a higher age than those provided under the Rules which came into force later. The views of the learned judge were expressed thus: "The only contention that was argued before me by the learned Counsel for the petitioner was that in the nature of the saving provision in R.200 of the Kerala Co-op. Societies Rules, the petitioner is entitled to continue in service till 19-5-1971 in accordance with the agreement between him and the society. I think this argument is far fetched. R.200 only states that nothing in the Kerala Co-op. Societies 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 contract of service or agreement or conditions of service subsisting between such person and a Co-op. Society and the date on which the rules came into force. What is saved is only the right or privilege of emoluments. Other conditions of service are not protected. Any other interpretation of R.200 will render otiose the other rules." 2. The correctness of the above view was doubted by one of us (Kochu Thommen, J.). The order of reference brings out the difference of view in sharp focus. The following extract from the order "of reference is therefore apposite: "One important question which arises for consideration in this petition is the construction of R.200 of the Kerala Co-operative Societies Rules, 1969 ('the Rules'). This rule does not admit of easy construction, particularly because of the language employed which in my view appears to be far from clear Before I read R.200 I shall read R.185: 185 Promotions. This rule does not admit of easy construction, particularly because of the language employed which in my view appears to be far from clear Before I read R.200 I shall read R.185: 185 Promotions. (1) Appointments to higher categories of service in a Society shall ordinarily be made by promotion from among members eligible for appointment to such category in accordance with these rules on the basis of seniority in the feeder category. The feeder category for this purpose shall be prescribed by the society by framing suitable subsidiary regulations with the approval of the Registrar. (2) It shall be competent for the committee of a society to relax the qualifications of an employee for the purpose of promotion in deserving cases with the prior approval of the Registrar and for reasons to be recorded in writing." Under clause (1) the Society has the power to make subsidiary regulation with the approval of the Registrar prescribing the feeder category for the purpose of promotion. Under clause (2) the Committee of the Society has the power to relax the qualifications for the purpose of promotion. The qualifications are stated under R.186. R.185 refers to employees in general. The qualifications mentioned under R.186 can be, in appropriate cases, relaxed. R.200 on the other hand refers to the existing employees of the Society, meaning, persons who were employees of the Society on the date on which the Rules came into force. They are protected from the restrictive effect of the Rules in regard to certain matters. R.200 reads: "200. Savings. 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 contract or agreement or conditions of service subsisting between such person and a Co-operative Society on the date on which these Rules shall come into force. Nothing in these Rules shall be interpreted as disqualification for promotion to a higher post and benefits conferred by these Rules to the existing employees of any Co-operative Society." (emphasis supplied) 2. In interpreting R.200 this Court in O.P. No. 549 of 1975 (Ext. Nothing in these Rules shall be interpreted as disqualification for promotion to a higher post and benefits conferred by these Rules to the existing employees of any Co-operative Society." (emphasis supplied) 2. In interpreting R.200 this Court in O.P. No. 549 of 1975 (Ext. P3) stated as follows: (This extract is omitted, as it has been given above) The argument of the petitioner in that case was that by virtue of the contract with the Society he was entitled to continue in service till 19-5-1971. the Rules notwithstanding. He was an existing employee of the Society and he therefore contended that the Rules could not deprive him of the benefit of his service conditions including that which relates to the retirement age. That argument was rejected by this Court. Reading the Rule as it appears in print, this court stated that the rights or privileges mentioned in the Rule related only to emoluments and nothing else. This interpretation was adopted in a subsequent decision by this court in O.P. No. 1684 of 1975 (1978 KLT. SN. 34). 3. With great respect, I have difficulty in understanding the Rule in the manner adopted by this Court in the two decisions. On the face of it, it would appear to me that the expressions "right" 'privilege', 'emoluments' appearing in the first sentence of R.200 should all be read disjunctively. This Court read them as they appear in the Gazette i.e., "right or privilege of emoluments". If so read and if the Rule is understood accordingly, the second sentence would seem to contradict the first sentence. The second sentence appears to suggest that qualifications prescribed under the Rules shall not disqualify any existing employee. I say 'appears to suggest', for, the second sentence, in my view, has been so cast that the meaning is difficult to discern. What is probably intended by the rulemaking authority is that the qualifications stated as to the minimum requirements for promotion under the Rules shall not disqualify any existing employee, who is. under the contract of service, qualified for promotion. Nor shall the benefits conferred by the Rules be denied to him. An existing employee is thus free of the new fetters of the Rules but entitled to their benefits. under the contract of service, qualified for promotion. Nor shall the benefits conferred by the Rules be denied to him. An existing employee is thus free of the new fetters of the Rules but entitled to their benefits. If the second sentence in the Rule is so read, all beneficial conditions of service as per the terms of contract with the Society or under the Rules shall apply to the existing employees. 4. The second sentence when understood in that manner seems to indicate that the words 'right or privilege' must be followed by 'or' and not'of' before the word 'emoluments'. If that is so, all existing employees are protected in so far as their rights or privileges or emoluments are concerned, if they are entitled to them by the terms of their contract or agreement or conditions of service subsisting on the date on which the Rules came into force, or in terms of the Rules themselves. In view of the conflict which would arise, if R.200 is so interpreted with the two decisions referred to above, I am of the view that this Rule has to be construed by a Division Bench. The case is accordingly adjourned in terms of S.3 of the Kerala High Court Act." 3. Different facets of the Rule had been considered by other learned judges of this court. Thus, M. P. Menon, J., had occasion to advert to the rule while deciding O. P. Nos. 3220 and 3577 of 1980. The construction of the rule as such, was not directly in question in those cases. The writ petitions dealt with the validity of a Government Order. G. O. Rt. 2371/80 dated 20-8-1980 (produced as Ext. X5 in O. P. 2630 of 1980) whereunder the Government purported to express its view on the rule for the guidance of the functionaries under the Act. The learned judge observed that the order was beyond the power of the Government, for the reason that statutory functionaries who have to administer the provisions of the Act and Rules including R.200, should not be fettered in the exercise of their statutory power by an effective order passed by the Government. (We are informed that this judgment is pending decision in Writ Appeal). (We are informed that this judgment is pending decision in Writ Appeal). About the possible interpretations which could be placed on the Rule, the learned judge observed pertinently: "Looking at R.186 it appears to me that the intention of the rule-making authority was that with effect from 1-1-1974, no person shall be eligible for appointment to any post unless be possessed the qualification prescribed thereunder. The negative language used in the rule renders its requirement mandatory. When the rule came into force on 1-1-1974 with a mandate that nobody shall be appointed thereafter to the service of any cooperative society without the qualifications prescribed in the rule, the legal result was that no unqualified person i.e., a person without the qualifications specified under the Rules, could be appointed either by promotion or otherwise, whether be was in service before 1-1-1974 or not. Note (1) to sub-rule (1) stipulating that the qualifications fixed were not to apply to the "present incumbents" was meant to indicate that persons who were holding certain posts prior to 1-1-1974 could continue in those posts without acquiring the qualifications specified under the rules. In other words, the rule-making authority saved the right of employees in service as on 1-1-1974 only to the extent of enabling them to continue in the posts they were occupying; it had no intention to save their rights of promotion, if they were unqualified under the rule. Rule 200 consists of two parts. The first part deals with protection of "any right or privilege of emoluments". As has been held by Chandrasekhara Menon. J. in O. P. 549 of 1975, this part of the rule is intended to save only emoluments and nothing else. But the latter part of the rule specifically deals with promotions. The learned Government Pleader contends that the second sentence in R.200 is wide enough to protect all employees who were in service before 1-1-1974 against the requirement of the higher qualifications prescribed by R.186. in the matter of promotion. It is true that there is some kind of saving in the matter of promotion to higher posts, in the case of existing employees of a co-operative society. in the matter of promotion. It is true that there is some kind of saving in the matter of promotion to higher posts, in the case of existing employees of a co-operative society. But whether this saving is only for the purpose of promotion from the grade they were occupying before 1-1-1974 to the next higher grade, or whether the purpose was to provide a blanket exemption for all the higher posts, is a matter of some doubt. There is also the difficulty of reconciling this part of the rule with the negative language of R.186(1) and the implications of Note (1). It is however unnecessary to reconcile this conflict in the present proceedings because the Government Order dated 20-8-1980 can be set aside on the short ground that it involves an attempt to fetter the discretion of the authorities functioning under the Act, by means of an executive order." 4. Though not in the context of a claim for promotion, R.200 was considered by U. L. Bhat, J., in A. P. Sankara Wariyar v. The North Malabar Dist. Co-operative Supply & Marketing Society Ltd., Calicut & another, 1982 KLJ.124 and by Khalid, J., in Krishnan Nair v. Ambalathumbhagom S.C.S. Ltd., 1978 KLT. S.N. 34. 5. There was a doubt-a doubt which even now appears to be relevant-whetber the rule as printed in some private publications of the Act contained a printer's devil and whether the word 'of' contained in R.200 was not a mistake for the word 'or'. Justice Bhat noted that the Rules as published in the Gazette did employ the word of and not'or'. The precise question which arises for consideration in the present cases did not arise for adjudication before Bhat, J. Whether the higher superannuation of 58 provided under the bye-laws would be available after the prescription of the lower age of 55 under the Rules of 1969 (the age of retirement was again enhanced to 58 under the amended Rules of 1974) was the question considered in that case. The learned judge observed: "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 emoluments and could take in other rights and privileges also. Various publications of the Rules give conflicting versions. Various publications of the Rules give conflicting versions. Some publications refer to "privilege of emoluments, "while some other publications refer to "privilege or emoluments." The rules have been published in the official gazette and the gazette copy mentions "privilege of emoluments." The court can go only by the version given in the official gazette and not in any private publications. Certain emoluments may be drawn as of right and certain others may be drawn by way of privilege. What is saved is only the right or privilege of emoluments and nothing else." 6. The decision of Khalid, J., in 1978 KLT. S. N. 34 supra, again dealt with the age of superannuation. The writ petition was dismissed essentially on the ground of existence of an alternate remedy for the ventilation of the grievances of the petitioner therein. 7. The factual background in which the legal controversy has loomed large may be briefly indicated at this stage. 8. Employees of the societies involved in the two cases, come within two broad divisions-those who have been recruited prior to the coming into force of the Rules (on 1-1-1974) and those appointed subsequently. Earlier, the qualifications and method of appointment were governed by the bye-laws of a society approved, by the Registrar. They were dealt with specifically by the Rules themselves, which came into force subsequently. The rules introduced, perhaps desirably enough, higher educational qualifications for entry into the service of a Society. In an attempt to obviate hardship arising from the introduction of new Rules fixing higher educational qualifications to the various posts, posing difficulty for those already in service, safeguards also were made to protect the legitimate interests of those already in service. The rules to which reference has to be made in this connection are R.182 to 186 and 200 of the Rules. In these cases, we are particularly concerned with the question of promotion of those already in service to the higher posts: whether those who have been occupying the posts in a Society at a time when lesser qualification had been stipulated for, could aspire to be promoted to the higher place without possessing the higher qualifications provided under the Rules? The two rules 185 and 200 particularly relevant in that context have been already extracted above. 9. The two rules 185 and 200 particularly relevant in that context have been already extracted above. 9. Before attempting to understand the scope and ambit of these rules, it would be profitable to bear in mind the historical background in which the Co-operative sector has been functioning in the State. The movement viewed on a global scale dates back to the 18th century with Robert Owen (1771 to 1859) contributing much by his efforts and energy for its development. The Co-operative Societies Act was enacted in British India in the year 1904 on the recommendation of the committee under the chairmanship of Sir Edward Law appointed by the Government of India in the year 1901. The enactment underwent changes from time to time. The area of operation was expanded by the new Act of 1912 which replaced the earlier one. The Government of India Act of 1919 enabled the provinces to have their own laws on Co-operation, if they so desired. Many states availed of this opportunity to legislate on co-operative ventures, Madras being one of them. Though there were attempts at the formation of societies in the then princely states of Travancore and Cochin in lines similar to the 1904 legislation, they were not initially very effective or successful. However, in these states too, co-operative movement became a known force by the time the Constitution of India came into force. (The Book by G. R. Pillai, published by the State Institute of Languages, Trivandrum, gives useful information on the co-operative movement in the State. The author had pursued his studies on Co-operation in the college at Manchester, many decades back). The power to make laws in respect of Co-operative Societies was in the exclusive domain of the State legislature, under Entry 32 of list II in the Seventh Schedule of the Constitution. As on 1-7-1974 the number of societies functioning in the State came to 4502, (See the Administration Report of the Co-operative Department for the year 1973-74, Page 91, Appendix-1) Many thousand employees were therefore already in service under the various societies at the time when the new Rules came into force. 10. As stated earlier, the qualification and method of appointment in the societies for the pre-rules period, were dealt with by the bye-laws of the Society which had to obtain the approval of the Registrar. 10. As stated earlier, the qualification and method of appointment in the societies for the pre-rules period, were dealt with by the bye-laws of the Society which had to obtain the approval of the Registrar. It does not appear that they were obliged to possess the high qualifications as prescribed under the Rules. 11. Prescription of a higher qualification is an understandable and perhaps necessary administrative action, with the advance of education, including specialised education, and the availability of highly qualified persons. The administration also will naturally be alive, on such occasions, to the problems relating to those already in service. In a sense it may be a human problem. Viewed from another angle, those who had had working knowledge in an organisation, particularly over a long period, would be as capable and competent as those with higher academic qualifications. It may rightly be thought that education is not necessarily book oriented or linked with the academic campus. Safeguards are therefore made to protect those who are already occupying posts in respect of which higher qualifications are prescribed: such as for example R.35(b) of the Kerala State and Subordinate Services Rules. Those who entered service when the lesser qualifications were in vogue even for promotion posts are likely to be frustrated in relation to their prospects of promotion if higher qualifications are inflexibly prescribed for such promotion posts, as such a situation might not have been anticipated by the incumbents in the office at the time they entered service. A discontented service may work havoc on the efficiency and efficacy of the working of the institution itself. The expedient of protecting the rights to have promotion on the basis of pre-existing qualifications is sometimes resorted to by the authorities, on a balancing of various considerations with the objective of ensuring efficiency and contentment in the administration. This may be particularly so when the incumbents in office represent a vanishing group. The extent to which the protection should be given, is essentially for the appropriate authorities to consider. Illustrations of this attitude are easily seen in many special rules. (See also the judgments in O. P. 3350 of 1971 and the appellate judgment in W. A. 147 of 1972). 12. S.80 of the Act left the Rule making powers to the State Government. As observed by a Division Bench of this court in O. P. Nos. Illustrations of this attitude are easily seen in many special rules. (See also the judgments in O. P. 3350 of 1971 and the appellate judgment in W. A. 147 of 1972). 12. S.80 of the Act left the Rule making powers to the State Government. As observed by a Division Bench of this court in O. P. Nos. 4420 and 4228 of 1973 and 926 of 1974, (Gopinathan Nair v. State of Kerala, 1976 KLT. SN. 32) the State Legislature was competent to enact S.80 and that Section would empower the State Government, inter alia, to specify the staff pattern to be adopted by the different classes of Cooperative Societies and also to make rules relating to the qualifications, remunerations, allowances and other conditions of services of the officers and servants of the societies. R.185,186 and 200 have to be understood bearing the above background and facts. 13. It would be seen that under R.186, the qualifications for the various posts are specifically fixed. The protection of those who are already holding posts in respect of which the higher qualifications are prescribed, is ensured by the introduction of Note 1 to that Rule, which reads: "Note: 1. Nothing in this rule shall apply to the present incumbents for the present post they hold." If the rule-making authority intended to confer only a limited protection to those already holding certain posts, just to continue in those posts as distinguished from seeking further promotions as might have been aspired by them earlier, R.185 had done duty in that regard. No further provision was necessary to protect that limited objective; for, the holder of a post, would certainly be entitled to the emoluments and other benefits and perquisites pertaining to the post so long as he holds it. Whether they are termed as rights or privileges, they continued to be enjoyed by the holder of the post, who is enabled to continue in the post by the protective provision contained in Note 1, despite the fact that higher qualifications had been prescribed in relation to those posts from the time of the introduction of the Rules. 14. R.200 in our view therefore assumes a significance other than that of protecting the then existing emoluments of the incumbents already in office. 14. R.200 in our view therefore assumes a significance other than that of protecting the then existing emoluments of the incumbents already in office. If what was intended was only the protection of emoluments of those permitted to continue in the posts, that had been already done by R.185 itself. R.200 therefore was intended to operate in a different area. The rule making authority presumably wanted to safeguard other rights, privileges or emoluments than what have been already provided for under R.185. Such rights would take in a right to be promoted under the pre-existing service conditions in the society. It is difficult to understand the words 'rights or privileges', qualifying the word 'emoluments', if all that had been intended was to safeguard the emoluments of the incumbents in office. A sentence reading: "Nothing in these Rules or any rules made thereunder shall operate to debar from enjoyment of any person or employee of any emoluments to which he is entitled " would have been sufficient. Be that as it may, the second sentence in that rule removes any possible doubt on the intention of the rule making authority. The right to further promotion on the basis of pre-existing conditions of service is effectively, specifically and fully protected by that provision. The significance of this provision apparently had not been brought to the notice of our learned brother Justice Chandrasekhara Menon, J., when the learned judge rendered 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. 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 R.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 of 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 the incumbents in office and in respect of promotions. A liberal interpretation is warranted having regard to the wording of the Rule and the object underlying it. 15. Counsel for the petitioner in O.P. 2630 of 1978 contended that these rules should be interpreted in the same manner in which R.35(b) of the Kerala State and Subordinate Services Rules had been construed in Subramonian Namboodiri v. State of Kerala, 1980 KLT. 839. We cannot accede to that contention. The setting and language of the two provisions are entirely different. R.185,186 and 200 of the Kerala Co-operative Societies Rules have to be considered in the background already indicated above and on the language employed in those provisions. 16. The writ petitions have to be disposed of in accordance with the view that we have taken on the scope and ambit of R.185,186 and 200 of the Kerala Co-operative Societies Rules. 17. Prayers (a) and (c) in O.P. No. 2630 of 1978 cannot be granted in the light of our above conclusion. The preparation of a correct seniority list of the various persons employed in the 1st respondent Society is essential. The list has necessarily to be prepared in the light of the legal position we have indicated above. The 2nd respondent will ensure that the list prepared complies with the law as elucidated by us. The relief sought for in O.P. 4094 of 1978 is also similar. The list has necessarily to be prepared in the light of the legal position we have indicated above. The 2nd respondent will ensure that the list prepared complies with the law as elucidated by us. The relief sought for in O.P. 4094 of 1978 is also similar. The Government in its counter affidavit took the stand that R.200 afforded only limited protection relating to the emoluments thitherto enjoyed by an employee. That view cannot be upheld in the light of our conclusion on the interpretation of the Rules. It is interesting to note that the Government itself took a different view, soon thereafter, when it issued G.O. Rt. 2371/80/AD. dated 20-8-1980, Ext. X5 in O.P. 2630 of 1978 referred to earlier. Surprisingly enough, no attempt was made to appraise this court of the different stand taken by the Government on this question by filing a supplementary counter affidavit. In this case also there will be directions similar to those given in O.P. 2630 of 1978. 18. We have not considered the constitutionality of R.200 in the present petitions, as the pleadings and particulars on that aspect, are not adequate for such an adjudication. We would leave that question open. 19. O.P. Nos. 2630 and 4094 of 1978 would stand disposed of in the manner indicated above. There will be no order as to costs.