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8. Expressing dissent, Justice Kochu Thommen referred the matter to a Division Bench and subsequently in the decision reported in Narayanan Nair v, Kottayam Dist Co-op. Bank, (1984 Ker LT 248 ) a Division Bench consisting of T. Kochu Thommen J. and K, Sukumaran J. held thus : --

"Rule 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 Rule 185 itself. Rule 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 Rule 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. 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 the incumbents in office and in respect of promotions. A liberal inter- pretation is warranted having regard to trie wording of the Rule and the object underlying it."

10. Rule 200 provided for "right or privilege of emoluments". At one time there was even doubt whether the word 'of was only a printing mistake for the word 'or' and a reference had to be made to the gazette publication to ascertain that the correct word was 'or' and not "of. One learned Judge was inclined to read 'or' as 'for'. We shall read the rule as it stands' and do not propose to substitute the word 'of with 'or' in the present circumstances.

11. Rule 200 preserves rights; saves privileges. Does the word 'emolument' qualify only "privilege" or qualify both the words 'right' and 'privilege'? It is, therefore, necessary to understand the true scope of the expression 'privilege' occurrring in Rule 200.

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, thej 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 : -- .