Kuwait Court of Cassation principle number 526

Summary: - An employee’s entitlement to any benefit. The criterion is the fulfillment of all conditions necessary for entitlement thereto under the law and the decisions regulating it. The administrative authority is not entitled to grant an employee a right exceeding what is prescribed under the employment system or contrary to the governing rules. - Invoking the principle of equality. Its condition: that it be between persons in identical legal positions. - Determining 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 decisions issued by the Council in this regard and follow the rules it establishes in this respect. The reason and basis for this. - The 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. Restricting it to Kuwaiti employees appointed to grades on the general salary schedule. Its import: this category alone benefits from this increase, to the exclusion of others subject to special cadres and systems. The basis for this: its 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 two categories. The reason for this. - The appellant, who holds the position of Deputy Head of the Fatwa and Legislation Department, brought an action seeking a judgment recognizing his entitlement to receive the academic qualification bonus for a doctorate with the increase provided for in Civil Service Council Decision No. 7/2010 concerning Kuwaiti employees appointed under the general salary schedule who hold higher qualifications. The challenged judgment dismissed the action on the ground that the appellant was subject to a special cadre and fell outside the scope of the aforementioned decision, pursuant to Article 1 of that decision. Sound reasons sufficient to support its ruling. That decision is not considered contrary to the constitutional principle of equality. The challenge to it is without basis. Rule: It is also established that a public employee’s entitlement to any benefit is contingent upon fulfillment of all conditions necessary for entitlement thereto under the law and the decisions regulating it; that the administrative authority has no power to grant an employee rights exceeding what is prescribed under 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 the provision of Article (19) of Decree-Law No. 15 of 1979 concerning the Civil Service means that the Civil Service Council is originally entrusted with determining the rules, provisions and conditions for granting bonuses and allowances to employees addressed by its provisions, which requires administrative authorities to comply with the decisions it issues 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 entities provides that: “Kuwaiti employees in government entities appointed to grades on the general salary schedule 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 are required for granting this bonus: (a) The doctoral degree 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 to be certified by the competent authorities.” Article 3 thereof provides that: “The rates of the academic qualification bonus contained in Civil Service Council decisions regulating the allowances and bonus of employees on the general salary schedule shall be amended as provided 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 schedule. Accordingly, this category alone benefits from this increase, to the exclusion of others subject to special cadres and systems, pursuant to the express 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, as amended by Decision No. 69 of 1975, amounting to KWD 30 monthly. Accordingly, it did not diminish their right 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. In addition to the fact that an employee’s relationship with the employing entity is a regulatory relationship governed by laws and regulations, the legal position of each of the two categories 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, as amended by Decision No. 69/1975, which Civil Service Council Decision No. 7/2010 contains no provision repealing. This does not, however, prevent it from reorganizing the bonus granted to this category with such increase as it determines if it considers that this would improve the level of service. That being so, the challenged judgment, exercising the authority of the trial court, after examining the facts of the dispute in a reasoned manner, concluded (that the appellant holds the position of Deputy Head of the Fatwa and Legislation Department and is among those subject to a special cadre; that Civil Service Council Decision No. (7) of 2010 prescribed granting Kuwaiti employees appointed to grades on the general salary schedule who hold higher qualifications (doctorate and master’s) a monthly 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 that the appellant’s being subject to a special cadre entailed his exclusion from the scope of Civil Service Council Decision No. 7/2010 because he is subject to a special cadre, on the basis of the express wording of Article 1 thereof, which identifies those addressed by it as persons appointed under the general, not the special, salary schedule. Moreover, this does not constitute a breach of the principle of equality, particularly since the reasoning of the judgment rendered by the Constitutional Court in Case No. 6 of 2012, Constitutional, at the hearing of 26/12/2012, contained what amounts to an implicit ruling that the aforementioned Civil Service Council decision does not violate the principle of equality enshrined in the Constitution. Accordingly, the challenged judgment ultimately upheld the first-instance judgment dismissing the action because the appellant did not satisfy all the conditions for entitlement to the bonus stipulated in Civil Service Council Decision No. 7/2010). The conclusion reached by the challenged judgment was sound and sufficient to support its ruling and includes a refuting response to the appellant’s contestation of that conclusion in the 2 grounds of his appeal, which is without basis.