Kuwait Court of Cassation principle number 168

Summary: - Promotion to a financial grade or supervisory position, or assignment thereto. Must be from the grade or position immediately preceding the grade or position to which promotion or assignment is made. Rationale. So that the person more junior in holding the position does not become the superior of those more senior in holding it. - The Civil Service Council decision concerning the rules for comparison between candidates for promotion by selection. Applies from the date of its issuance, not from the date of its publication, pursuant to the express wording of its final article, and there is no room for interpretative discretion where the text is clear. - The challenged judgment's conclusion that the respondent was entitled to occupy the position because he held a higher qualification than the person whose assignment was challenged, despite proof that the respondent had not occupied the immediately preceding position before the challenged decision was issued, and contrary to the comparison rules issued by Civil Service Council decision. A violation of the law and an error in its application requiring its cassation. Rule: It is established—in the jurisprudence of this Court—that where a text is clear, manifest in meaning and conclusive as to its intended import, it may not be departed from or construed otherwise. It is also established that promotion to a financial grade or supervisory position, or assignment thereto, must be from the grade or position immediately preceding the grade or position to which promotion or assignment is made, so that the person more junior in holding the position does not become the superior of those more senior in holding it. It is also established that, although the general rule regarding general regulatory decisions is that knowledge of them is presumed only from the date of their publication, so that they do not apply to the persons concerned, nor may the provisions they contain be invoked against them, until that date, nevertheless, if these decisions lay down general regulatory rules concerning employees' affairs, the subordinate authorities are bound by them, and these decisions are considered effective within administrative bodies from the date of their issuance. If an administrative decision is issued by the authority empowered to issue it, satisfying its constituent requirements and elements, it takes effect immediately in respect of the administrative body, without its effectiveness being contingent upon individuals' knowledge of it. Decisions issued by the executive authority in its administrative regulatory sphere are, as a general rule, completed and produce their legal effects from the day they are signed by the person empowered to issue them and the order is directed to the administrative bodies to act upon and implement them. The administrative bodies must then observe them and refrain from contravening them even if they have not been published, since publication is not necessary for the validity or effectiveness of administrative decisions and is intended only to notify third parties, so that they may be invoked against them and the time limit for requesting their annulment begins to run. It is also established—in accordance with the jurisprudence of this Court—that Civil Service Council Decision No. 18 of 2011 concerning the rules for comparison between candidates for promotion by selection, issued on 21/9/2011, which repealed the application of the provisions of Civil Service Council Decision No. 37 of 2006, applies with effect from 21/9/2011, although it was published on 2/10/2011, pursuant to the express wording of its final article; there is no room for interpretative discretion where the text is clear. That being so, the challenged judgment concluded that the appealed judgment should be set aside and the challenged Decision No. 1169, issued on 21/9/2011, annulled, with the consequent effects. It based this ruling upon the respondent satisfying the conditions for occupying the position of Deputy Director of the Experts Department for Accounting Affairs, and upon applying the comparison prescribed in Civil Service Council Decision No. 37 of 2006 between him and the person whose assignment was challenged (.........). It consequently held that the respondent was entitled to occupy the said position because he held a higher qualification than the person whose assignment was challenged. This was despite the fact that the case papers establish that the respondent had not occupied the position of Controller before the challenged decision was issued—which is the position immediately preceding the position in dispute under the provisions of Decree-Law No. 40 of 1980 promulgating the Expertise Law and its amendments, and Minister of Justice Decision No. 300 of 2005 reorganizing the organizational structure of the Experts Department—and that the person whose assignment was challenged had occupied the position of Controller of Cases, Companies and Bankruptcy under Decision No. 167 of 2010, issued on 26/4/2010. Moreover, the applicable comparison rules are those contained in Civil Service Council Decision No. 18 of 2011, not those contained in Civil Service Council Decision No. 37 of 2006, the application of which was repealed with effect from 21/9/2011. Under the first criterion contained in the aforementioned Civil Service Council Decision No. 18 of 2011, namely seniority in the current financial grade, the person whose assignment was challenged has a stronger entitlement than the respondent to assignment to the aforementioned position, since the former has held the grade of Chief Accounting Expert since 12/7/2005, whereas the latter has held the grade of Second Accounting Expert since 30/6/2003. The challenged judgment therefore violated the law and erred in its application and interpretation, and was consequently rendered defective in a manner requiring its cassation.