Kuwait Court of Cassation principle number 474

Summary: - An employee's entitlement to any benefit. The determining factor is satisfaction of all the conditions required for entitlement under the law and the decisions regulating it. The administrative authority is not entitled to grant the employee a right greater than that prescribed by the employment system or contrary to the governing rules. - Reliance upon the principle of equality. Its condition: that it be between persons in identical legal positions. - Determination of the rules, provisions and conditions for granting bonuses and allowances to employees addressed by Article 19 of Decree-Law No. 5 of 1979 concerning the Civil Service. Entrusted to the Civil Service Council. Its effect: administrative authorities must comply with the Council's decisions in this regard and follow the rules it establishes in this respect. The reason and basis for this. - Monthly academic qualification bonus. The Civil Service Council's introduction of a rule increasing its value to a specified limit for holders of doctoral and master's degrees. Its restriction to Kuwaiti employees appointed to grades on the general salary scale. Its implication: that category alone benefits from this increase, to the exclusion of others subject to special cadres and systems. Its basis: retention, for the second category of degree holders, of the bonus prescribed by Minister of Finance Decision No. 84/1974, as amended. This is not considered discrimination between the 2 categories. The reason for this. - The appellant, who holds the position of Undersecretary of the Fatwa and Legislation Department, bringing an action seeking a ruling that he is entitled to receive the academic qualification bonus for a doctorate with the increase provided in Civil Service Council Decision No. 7/2010 concerning Kuwaiti employees appointed on the general salary scale who hold higher qualifications. The challenged judgment's dismissal of the action on the basis that the appellant is subject to a special cadre and the aforementioned Decision does not apply to him, pursuant to Article 1 of that Decision. Sound reasons sufficient to support its determination. That Decision is not considered contrary to the constitutional principle of equality. The challenge to it is without foundation. Rule: The judge is primarily required to refer to the legal provision applicable to the facts of the dispute in the action, within the limits of the wording of the provision. If its meaning is clear, it is impermissible to adopt anything contrary to it, restricting it or adding to it, because that would introduce a new rule different from the legislature's intention through interpretation and construction which its correct, clear wording cannot bear. There is no room for interpretive reasoning where that wording is clear, or for examining the wisdom and motives of the legislation except where the provision is obscure or its wording ambiguous in meaning, since implication has no weight against an express statement. Interpretation is also conditional upon there being no departure from the wording of the provision or distortion of its true meaning. It is also established that the criterion for a public employee's entitlement to any benefit depends upon satisfaction of all conditions required for entitlement under the law and the decisions regulating it; that the administrative authority has no power to grant the employee rights greater than those prescribed by the employment system or contrary to the governing rules; and that the principle of equality may be invoked only between persons in identical legal positions. It is also established that Article (19) of Decree-Law No. 15 of 1979 concerning the Civil Service means that the Civil Service Council is primarily entrusted with determining the rules, provisions and conditions for granting bonuses and allowances to employees addressed by its provisions. Administrative authorities must therefore comply with its decisions in this regard and follow the rules it establishes in this respect. Article 1 of Civil Service Council Decision No. 7 of 2010 concerning the Establishment of an Academic Qualification Bonus for Kuwaiti Employees Holding Higher Qualifications (Doctorate and Master's) in Government Bodies provides that: “Kuwaiti employees in government bodies appointed to grades on the general salary scale who hold higher qualifications (doctorate/master's) shall be granted an academic qualification bonus in addition to the allowances and bonuses they receive, as follows: ‘150’ dinars monthly for holders of a doctoral degree or its equivalent. ‘75’ dinars monthly for holders of a master's degree or its equivalent.” Article 2 thereof provides that: “The following conditions shall apply to the granting of this bonus: (a) The doctoral or master's degree must be in the field in which the employee works. (b) Recognition of higher qualifications (doctorate/master's) requires their equivalency certification by the competent authorities.” Article 3 thereof provides that: “The academic qualification bonus rates contained in Civil Service Council decisions regulating the allowances and bonuses of employees on the general salary scale shall be amended as set out in this Decision.” This indicates that the Civil Service Council introduced a new rule concerning the academic qualification bonus (doctorate and master's), increasing the bonus to KWD 150 monthly for holders of a doctoral degree and KWD 75 for holders of a master's degree, and restricted it to Kuwaiti employees appointed to grades on the general salary scale. Thus, this category alone benefits from this increase, to the exclusion of others subject to special cadres and systems, pursuant to the express wording of the provision. For this second category of holders of the same degrees, it retained the bonus prescribed by Minister of Finance Decision No. 84 of 1974, amended by Decision No. 69 of 1975, amounting to KWD 30 monthly. It therefore did not diminish their entitlement thereto. Increasing the value of the bonus for the first category but not the second does not constitute discrimination in financial treatment between persons in identical legal positions, since, in addition to the employee's relationship with his employer being a regulatory relationship governed by laws and regulations, the legal position of each category differs according to the legislative framework governing it. The second category derives its right to continue receiving the bonus prescribed by Minister of Finance Decision No. 84/1974, amended by Decision No. 69/1975, which Civil Service Council Decision No. 7/2010 contained no provision repealing, although this does not prevent it from reorganizing the bonus granted to this category with such increase as it considers appropriate if it considers that this would raise the level of service. That being so, the challenged judgment, exercising the authority of the court of merits and after examining the facts of the dispute soundly, concluded (that the appellant holds the position of Undersecretary of the Fatwa and Legislation Department and is subject to a special cadre, and that Civil Service Council Decision No. (7) of 2010, which prescribed the granting of a monthly bonus to Kuwaiti employees appointed to grades on the general salary scale who hold higher qualifications (doctorate and master's), an academic qualification bonus in addition to the allowances and bonuses they receive at KWD 150 monthly for holders of a doctorate and its equivalent and KWD 75 for holders of a master's degree or its equivalent, and held that the appellant's being subject to a special cadre excluded him from the scope of Civil Service Council Decision No. 7/2010 because he is subject to a special cadre, based on the express wording of Article 1 thereof identifying those addressed by it as persons appointed on the general, not the special, salary scale. Furthermore, this does not constitute a breach of the principle of equality, particularly since the reasons of the judgment delivered by the Constitutional Court in Case No. 6 of 2012, Constitutional, at the hearing of 26/12/2012 contain what amounts to an implicit determination that the aforementioned Civil Service Council Decision does not contravene the principle of equality prescribed by the Constitution. Accordingly, the challenged judgment concluded by upholding the first-instance judgment dismissing the action because the appellant did not satisfy the conditions of entitlement to the bonus prescribed by Civil Service Council Decision No. 7/2010). The conclusion reached by the challenged judgment is sound and sufficient to support its determination and contains an answer defeating the appellant's arguments in his 2 grounds of appeal disputing that conclusion, which is without foundation.