clr/1988/1988_3_1757.pdf

(1988)PIKIS J. read the following judgment. On 1st November, 1978,Chrysso Demosthenous,the applicant, wasappointed machine operator in the Department of Personnel.Her appointment was temporary, a status that remained unaltered till today. In 1981herpost wasconverted tothat ofclerk secondgradebyvir- 5 tue of theprovisions of Law 20/81 providing for the restructure of government departments. The position of Clerk Second Grade isremunerated in accordance with scaleA2of government salary scales,combined with scale A5.The scheme of service regulates the terms and condi- 10 tions under which the holders of the position of clerk second gradecan advance from scale A2toscale A5and become Clerks First Grade. In theyear 1982the applicant reached thetopscale of A2and thereafter progressed salarywise toscaleA5,anadvancethatcon- 15 tinued untilJune 1987whenhersalarywascutandherremuneration restricted to the top scale of A2. In answer toher complaint ventilated by her advocate, therespondents replied that she was restored toscale A2,aposition consonant with therelevantprovisions of thescheme of serviceregulating progressfrom scale A2 20 toscaleA5.Herearlieradvance wasfounded onamistakeon the part of theAdministration in theinterpretation and application of the relevant scheme of service - aposition espoused by counsel for the Republic before me. Counsel for the applicant submitted that the subjudice decision is founded on a misinterpretation of 25 the provisions of the scheme of service affecting holders of the position of clerk second grade, established and unestablished. The case for the respondents is that only holders of an organic position of clerk second grade can, under any circumstances, progress toscale A5. 30 And inasmuch as the applicant was unestablished becauseof failure tocomply with aparticular requirement of theschemeof service for permanent appointment, namely, success in government examinations, shecould notprogress beyond scale A2.For his part,counsel for theapplicant submitted that apermanent ap~ 35 1758 3,C.L.R. Demosthenousv. Republic Pikis J. pointment is notaprerequisite in*accordancewith the "Notes" ap­ pended,to the scheme of service, regulating salary advance from ! scale A2 toscale A5. •' ·* "'• ·*' 5 After careful study; Lhave cometotheconclusion thatthe position put forward on behalf of theapplicant, is correct.Below, I explain thereasons: .ii...'/Λ* . .·,.In.note 2(

1. a)appended tothescheme of service, itis envisaged that for progress to scale A5, clerks second grade on scale A2 should pass acertain examination otherthan theexaminationear10 lier provided for permanentappointmentto thepost of clerk se­ cond grade. Fronuhisrequirement areexempted employees who formerly held the.position of machine operators, like1the appli­ cant.InNote 2(a)itis specifically stated thattheterm "employee" includes, for thepurpose of advance from scale A2 to scale A5, 15 permanent.as well as temporary personnel; aprovision that con­ tradicts directly the view advanced by counsel for the respon­ dents.Theobject of thescheme, as itis^clear tome,was tomake a like provision for the advance of clerks second grade to scale A5, irideperidently'of whether they held an organic post. Inthe 20 case of both categories of personnel, success in the examination contemplated by Note 2(a), was necessary except in respect of , employees intheposition.ofjthe applicantwho were-formerly ma­ chine operators. Thus theapplicant did nothave topass the exa­ minationscontemplated by Note2(a).And as her temporary stat25 us was notian impediment to moving from one scale tothe next, there was nojustification for thedecision of therespondentschal­ lenged in these proceedings. She remains a temporary employee; nonetheless she is entitled toadvance salary-wise as laid down in the scheme. Imust, therefore, annulthe decision. 30 Consequendy, Ideclare it'tobe wholly void andof no effect, pursuant to theprovisions of para.4(
2. b)of article 146 of the Con­ stitution.Let therebe noorderas tocosts. -.-,.-Subjudice decisionannulled. „ : . - . , h -.••,..--No orderas'tocosts: 1759";