Kuwait Court of Cassation principle number 69

Summary: - An employee's entitlement to any benefit. The determining consideration is satisfaction of all conditions necessary for entitlement under the law and the decisions regulating it. The administrative authority is not entitled to grant an employee a right exceeding that prescribed by the employment system or contrary to the governing rules. - Reliance on the principle of equality. Its condition: it must be between persons with identical legal positions. - Determination of the rules, provisions, and conditions for granting bonuses and allowances to employees subject to 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. - The monthly academic qualification bonus. The Civil Service Council's introduction of a rule increasing its value to a specified level for holders of doctoral and master's degrees. Its restriction to Kuwaiti employees appointed to grades on the general salary scale. Its import: this category alone benefits from the 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 does not constitute discrimination between the 2 categories. The reason for this. - The appellant, who holds the position of Undersecretary of the Legal Advice and Legislation Department, brought an action seeking a judgment recognizing his entitlement to receive the doctoral academic qualification bonus 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 dismissed the action on the ground that the appellant is subject to a special cadre and is outside the scope of the aforementioned Decision, pursuant to Article One thereof. Sound reasons sufficient to support its ruling. That Decision is not considered contrary to the constitutional principle of equality. The criticism directed against it is unfounded. Rule: A judge is fundamentally required to refer to the legal provision applicable to the facts of the dispute in the action, within the wording of that provision. If its meaning is clear, nothing contrary to it, restricting it, or adding to it may be adopted, as this would introduce a new rule differing from the legislature's intent through interpretation and construction that its correct and 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 the meaning of its wording is ambiguous, since implication carries no weight against an express statement. Interpretation is also conditional upon not departing from the wording of the provision or distorting its true meaning. It is also established that a public employee's entitlement to any benefit depends on satisfaction of all conditions necessary for entitlement under the law and the decisions regulating it; that the administrative authority cannot grant an employee rights exceeding those prescribed by the employment system or contrary to the governing rules; and that the principle of equality may be invoked only between persons with 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 subject to its provisions. Administrative authorities must therefore comply with its decisions in this regard and follow the rules it establishes in this respect. Article One 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 agencies provides: “Kuwaiti employees in government agencies 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 Two thereof provides: “The following conditions are required for granting 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 Three thereof provides: “The rates of the academic qualification bonus contained in the Civil Service Council decisions regulating allowances and the bonus for 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 KD 150 monthly for holders of a doctoral degree and KD 75 for holders of a master's degree, and restricted it to Kuwaiti employees appointed to grades on the general salary scale. Accordingly, this category alone benefits from the increase, to the exclusion of others subject to special cadres and systems, pursuant to the express wording. 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, in the amount of KD 30 monthly. It therefore did not diminish their entitlement thereto. Increasing the bonus for the first category but not the second does not constitute discrimination in financial treatment between persons with identical legal positions. In addition to the relationship between an employee and the employing authority being a regulatory relationship governed by laws and regulations, the legal position of each of the 2 categories differs according to the legislative framework governing it. The second category derives its right to continue receiving the bonus from Minister of Finance Decision No. 84/1974, 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 trial court's authority and after a sound examination of the facts of the dispute, concluded (that the appellant holds the position of Undersecretary of the Legal Advice and Legislation Department and is subject to a special cadre; that Civil Service Council Decision No. (7) of 2010 provided for granting Kuwaiti employees appointed to grades on the general salary scale who hold higher qualifications (doctorate and master's) a monthly academic qualification bonus in addition to the allowances and bonuses they receive, at KD 150 monthly for holders of a doctorate or its equivalent and KD 75 for holders of a master's degree or its equivalent; and that, because the appellant is subject to a special cadre, Civil Service Council Decision No. 7/2010 does not extend to him, on the basis of the express wording of Article One thereof, which identifies those subject to it as persons appointed on the general, not the special, salary scale. Moreover, this does not constitute a breach of the principle of equality, particularly since the reasoning of the Constitutional Court's judgment in Constitutional Case No. 6 of 2012, at the hearing of 26/12/2012, contains what amounts to an implicit ruling that the aforementioned Civil Service Council Decision does not contravene the principle of equality stipulated in the Constitution. Accordingly, the challenged judgment concluded by upholding the first-instance judgment dismissing the action because the appellant did not satisfy all conditions for entitlement to the bonus prescribed by 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 refutation of the appellant's arguments in his 2 grounds of appeal disputing that conclusion, which are therefore unfounded.