Ramakrishna Pillai v. State Of Kerala

The Judgment of the Court was delivered by

Malimath, C.J:— It is on a reference made by the learned single Judge that this case has been placed before the Division Bench for preliminary hearing. The petitioners have in this writ petition challenged the Notification issued by the State Government dated 17th June, 1988 and published in the Gazette of the same date, in exercise of the powers conferred by S. 109 read with sub-section (3) of S. 80 of the Kerala Co-operative Societies Act, 1969, (hereinafter referred to as the Act), substituting new rule 200 for rule 200 of the Kerala Co-operative Societies Rules, 1969, for short the Rules. The challenge is on the ground that the State has sought to annul the decision of this court reported in 1987 (2) KLT. 903 between P. Bhaskaran v. Additional by substituting new rule 200. For the purpose of understanding the crux of the contentions it is necessary to set out the facts in brief as follows:

2. The societies registered under the Act had framed bye-laws-regulating the terms and conditions of service of its employees. Bye-laws of some of the societies prescribe 60 years as the age of superannuation. Sub-section (3) of S. 80 of the Act empowers the Government to make rules regulating the conditions of service of employees of different co-operative societies specified in sub-section (1). Invoking this power the rules were amended and the same came into force on the 1st of January, 1974. The entire Chapter XV regulating the conditions of service of employees of the societies was introduced for the first time by the said Notification. Rule 183 in Chapter XV deals with the age limit and sub-rule (2) of rule 183 provides that no employee shall be eligible to continue in the service of a society after be attains the age of 58 years. If rule 183(2) alone was there the employees of all the societies who were in service on the 1st of January, 1974 when the amended rules came into force would be required to retire on attaining the age of 58 years irrespective of any provision to the contrary contained in the respective bye-laws of the societies. But there was a saving clause added under rule 200 of the rules, which reads as follows:

“Saving—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 wbich 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.”

3. The Registrar of Co-operative Societies, who is the bead of the Department, on interpreting rule 200 came to the conclusion that the saving clause does not in any way save the rights of those who were governed by bye-laws providing for age of superannuation higheritban 58 years. He issued, a Circular clarifying the legal position as understood by him for the benefit of all the co-operative societies. The employees of some of the Co-operative Societies wbich bad bye-laws providing for higher age of superannuation of 60 years apprehen ding that they would be required to retire on attaining the age of 58 years, approached this Court with writ petitions under Art. 226 of the Constitution of India. Tbose cases were referred by a single Judge to the Division Bench and the Division Bench in turn referred them to the Full Bench. The Full Bench rendered its decision which has since been reported in 1987 (2) KLT 903 between P. Bhaskaran v. Additional Secretary. The Full Bench after considering all the contentions recorded its conclusions as follows:—

“25. In all these cases, the short question is whether the petitioners are entitled to continue till they attain the age of 60 years as provided in the bye-laws prior to 1-1-1974, or only till they attain the age of 58 years as provided in the new Rules. What the petitioners seek is to quash a Circular issued by the Registrar under the Act, directing the employees of all co-operative societies shall retire on attaining the age of 58 years as provided in rule 183(2) of the rules, 1969. When the old bye-laws or service rules provide that the employees can continue in service till they attain the age of 60 years, this right is preserved and protected under rule 200. The rules that came into force on 1-1-1974 reducing the age of superannuation to 58 cannot, therefore, apply to the existing employees who were appointed prior to 1-1-1974 and were still in service on the date of coming into force of the new rules. The Circulars issued by the Registrar as defined under the Act. compelling the existing employees appointed before 1-1-1974, to retire on attaining the age of 58 years is in conflict with the protection afforded under rule 200 and hence they cannot stand and be enforced. We, however, make it clear that when the bye-laws or rules of any society did not 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.

4. Thus it was declared that the right to higher age of superannuation conferred by the bye-laws was saved. After declaring the law as aforesaid, the prayer of the petitioners in those cases for a declaration that they are entitled to continue in service till they attain the age of 60 years was negatived on the ground that consistently this Court has held that no writ will lie against a co-operative society. This Court did not examine the relevant bye-laws for determining as to what is the age of superannuation. No declaration was made in favour of any of the petitioners, either in regard to age of superannuation or in regard to dates on which they would be required to retire. This Court did not issue any directions to any of the co-operative societies not to retire any of the petitioners till they attain the age of superannuation of 60 years. We however recorded the statement of the counsel made on behalf of the co-operative societies that they would on their own examine the question of giving the benefit of the declaration of law made by this Court. Thus it is clear that the rights of the parties were not determined and no relief was granted to any of the petitioners in those cases in regard to the age of superannuation. All that was done by this Court is to interpret rule 200 as it then stood, leaving it to the parties to work out their rights.

5. It is thereafter that rule 200 was substituted by the Kerala Co-operative Societies (Amendment) Rules, 1988, in exercise of the powers under S. 109 read with sub-section (3) of S. 80 of the Act. The new rule 200 as now substituted by the said Notification reads as follows:

“Savings:—Nothing in these rules as amended by the Kerala Co-operative Societies (Asndment) Rules, 1988 In G.O (MS) No. 18/88.Co-op. dated the 17th day of June, 1988 or any roles made thereunder shall operate to debar from enjoyment by any person or employee of any privilege of emoluments or any right except age of retirement, 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 as on the 1st January, 1974. Nothing in these rules as amended by the Kerala Co-operative Societies (Amendment) Rules, 1988 in G.O (MS) No. 18/88.CO-OD. dated the 17th day of June, 1988 shall be interpreted as disqualification for promotion to any higher post or posts to the employees in service of a co-operative society as on the 1st day of January, 1974. provided they possessed the qualifications, if any, prescribed in the bye-laws or other Service Regulations, of such society.”

(underlining ours)

6. The Rule thus expressly declares that the right regarding the age of retirement of an employee of a co-operative society is not saved. In the Explanatory Note to the said rule, it is stated inter alia as follows:

“Conflicting rulings on the subject by two division benches of the High Court have lastly been referred to the Pull Bench and the Pull Bench while issuing its ruling on the interpretation and application of rule 200 observed that the conflicting interpretation could have been avoided if the rule had been drafted with greater precision and clarity, to convey without any doubt the intent and define without any uncertainty the content of the saving provision. The amendment is to make the saving clause more specific so as to depict the real intent of the rule making authority.”

7. On the language of rule’ 200 as now substituted, there can be no doubt that it applies to all the existing employees of the co-operative societies on the date on which the said rule came into force and that therefore their right in regard to the age of retirement under the existing conditions of service are not saved.

8. Challenging rule 200 as substituted it was firstly contended that the rule making authority has no power to make retrospective rules, no such power having been conferred by the Statute. There is no substance in this contention as the Act has been amended by the Kerala Co-operative Societies (Amendment) Act, 1988 amending Ss. 80 and 109, expressly conferring power to make rules retrospectively. S. 80 provides for making rules regarding the conditions of service of employees of the Co-operative Societies and S. 109 is the general rule making power to make rules to carry out the provisions of the Act. Both the provisions thus expressly empower making of rules retrospectively and the amendment now made is by invoking Ss. 80 and 109. The rule making authority is well within its power when it made the rules under the Act with retrospective operation.

9. The principal contention of the learned counsel for the petitioners is that the rule-making authority has no power to make, a rule as to take away a right conferred by the judgment of this Court. It was contended that it has no power to annul the judgment of this Court. The only way to avoid the binding effect of the judgment is by way of review to the same court or by way of appeal to the Supreme Court.

10. The principles of law in this behalf are well settled by a catena of decisions of Federal Court and Supreme Court (Piare… v. Emperor…Opposite Party. (AIR. 1944 F.C 1). Basanta Chandra v. Emperor (AIR. (31) 1944 F.C 86). Prithvi Mills v. Broach Munic ((1969) 2 SCC 283 : AIR. 1970 SC. 192), Smt. Indira Gandhi v. Raj Narain (1975 Supp SCC 1 : AIR. 1975 SC. 2299),/. N. Saksena v. State of M.P ((1976) 4 SCC 750 : AIR. 1976 SC. 2250), etc.). The Legislature has not been conferred any power under our Constisution to sit in judgment over decisions of Courts or reverse the same. The Legislature can exercise only legislative power and not judicial power. Reversal of a judgment of a competent court is a judicial act and not a legislative function. The Legislature, it is well settled can alter the basis on which the judgment or the judicial verdict is based; but it cannot annul or reverse the binding judgment of a Court of law.

11. The learned counsel for the petitioners contended that the clear effect of the action of the State Government in substituting rlue 200 is to reverse the binding judgment of this Court. All that was done by this Court in 1987 (2) KLT. 903 is to interpret rule 200, as it then stood. It was held that rule 200 saved the rights of the employees in regard to age of superannuation fixed by the bye-laws of the societies. The interpretation of a statutory provision by a Court of law cannot preclude the rule-making authority from amending the rule at a subsequent stage. It is also well within its rights to make a rule distinct and different from the one which it had made earlier. It is thus open to the rule-making authority to make a rule different from the one that was interpreted by a court of law. Apart from interpreting rule 200, the rights of the parties were not determined by this Court in the earlier decision. On the contrary this Court made it clear that it cannot adjudicate upon the rights of the parties as no writs lie against the co-operative societies. It is precisely for tbis reason that this Court did not embark upon an examination of the by-laws of the co-operative societies to ascertain as to what is the age of superannuation prescribed in respect of different co-operative societies. No declaration has been made in the said judgment declaring that any of the petitioners are governed by a particular age of superannuation. No direction has been issued to any co-operative society not to retire the petitioners until they attain a particular age of superannuation. This was not done because tbis Court took the view that no writ or direction can be issued against a co-operative society. Hence we have no hesitation in taking the view that all that was done by the Full Bench of this Court in the earlier decision was to interpret rule 200 as it then, stood and not to adjudicate upon the rights of the parties in those proceedings. Therefore, we cannot accept the contention of the petitioners that the new rule 200 now made has the effect of reversing or anulling the earlier judgment of this Court. The interpretation made by this Court in the earlier judgment in regard to rule 200 as it then stood remains intact. What the State has now done is to substitute the new rule 200, as a new saving clause. It is not the contention of the petitioners that the new rule is beyond the powers of the rule-making authority. We have therefore no hesitation in taking the view that rule 200 now made cannot be understood as an exercise of judicial power sitting in judgment over the decision of tbis Court or annulling the said judgment. All that has been done by the rule making authority is to make a new rule, different in scope and content and dissimilar to the old rule interpreted by this Court.

12. We would like to advert to two decisions which were largely depended upon by the petitioners in this case, The first one is reported in (1978) 2 SCC 50 : AIR. 1978 SC. 803 between M.M Pathak v. Union of India. That was a case in which the Court had issued a mandamus to the State to take action in a particular manner. The effect of the new provision was to take away the rights so determined by the Court in favour of the parties to the proceedings to which the State was a party. This the Supreme Court held was not permissible. But in the present case as no mandamus or direction was issued which the State or the Co-operative Societies were required to obey the question of annulling or reversing the decision of this Court could not arise. The other decision relied on by the petitioners is the one reported in 1986 Supp SCC 584 between T.R Kapur v. State of Haryana. The Supreme Court has laid down in the said decision that the power of the Governor to make retrospective rules under Art. 309 of the Constitution is subject to the well-recognised prinicple that the rights acquired under, the existing rules cannot be taken away by an amendment, that is to say, there is no power to make such a rule under the proviso to Art. 309 wbicb affects or impairs the vested rights. It was held that the rules made with retrospective effect must satisfy the test laid down in Articles 14 and 16 of the Constitution of India. In that case, the promotions already effected were sought to be affected by retrospectively providing qualifications different from those that existed when the promotions were effected. Such action, it was pointed out, clearly violated Articles 14 and 16 of the Constitution of India. There is no scope for invoking such a principle in this case, for the reason, that the effect of the new rule 200 is not to affect those who had already retired from service on attaining the age of 60 years before 17-6-1988. The Rule applies to all existing employees in service on the date of the amendment of the rules. So far as the age of superannuation is concerned, it obviously governs the future right in the matter of retirement and does not affect those who have already retired from service before 17-6-1988: The decisions relied on are of no assistance to the petitioners as no vested right is affected with retrospective effect. There is no substance in the contention that rule 200 as now substituted is bad as encroaching upon judicial power. For the reasons stated above, this Original Petition fails and is dismissed.

Dismissed.

13. We do not consider this a fit case for certificate for leave to appeal to the Supreme Court as in our opinion no substantial question of law of general importance which needs to be decided by the Supreme Court arises for consideration as the case is fully covered by the well-recognised principles laid down by the Supreme Court.

14. Leave Refused.