Keywords

Summary



Keywords

1 . OFFICIALS - LEAVE ON PERSONAL GROUNDS - EXPIRY - REINSTATEMENT - FAILURE TO REINSTATE - ILLEGALITY - CONSEQUENCES - EXPUNGEMENT - DUTY OF THE ADMINISTRATION - METHODS

( STAFF REGULATIONS OF OFFICIALS , ARTICLE 4 , ARTICLE 40 ( 4 ) ( D ))

2 . OFFICIALS - APPEAL TO THE COURT - PRELIMINARY ADMINISTRATIVE APPEAL - OBJECT - EFFECTS - CONCLUSIONS CONTAINED IN THE APPEAL TO THE COURT - ADMISSIBILITY

( STAFF REGULATIONS OF OFFICIALS , ARTICLE 90 , ARTICLE 91 )

3 . OFFICIALS - APPLICATION FOR DAMAGES - LEAVE ON PERSONAL GROUNDS - EXPIRY - REINSTATEMENT - FAILURE TO REINSTATE - DAMAGE - ASSESSMENT - ABSENCE OF NORMAL VIGILANCE ON THE PART OF THE PERSON CONCERNED - RESPONSIBILITY SHARED

( STAFF REGULATIONS OF OFFICIALS , ARTICLE 40 ( 4 ) ( D ), ARTICLE 91 )

Summary

1 . WHERE THERE HAS BEEN AN INFRINGEMENT OF ARTICLE 40 ( 4 ) ( D ) OF THE STAFF REGULATIONS THROUGH FAILURE TO REINSTATE AN OFFICIAL AFTER THE EXPIRY OF LEAVE ON PERSONAL GROUNDS , THE ADMINISTRATION MUST BRING TO AN END , ALBEIT BELATEDLY , A SITUATION WHICH IS CONTRARY TO THE LAW AND MUST EXPUNGE , IN SO FAR AS POSSIBLE , THE CONSEQUENCES OF ITS ILLEGAL CONDUCT . ALTHOUGH THE BASIC RULE LAID DOWN IN ARTICLE 4 OF THE STAFF REGULATIONS , THAT A POST SHALL BE FILLED ONLY IF IT IS VACANT PREVENTS THE DECISION OF REINSTATEMENT FROM HAVING RETROACTIVE EFFECT , THE SITUATION COULD BE RESTORED TO LEGALITY , AT LEAST IN PART , BY ANTE-DATING SENIORITY IN GRADE AND STEP NOT TO THE DATE WHEN THE APPLICANT WAS REINSTATED BUT TO THE DATE WHEN HE SHOULD HAVE BEEN REINSTATED .

2 . THE OBJECT OF ARTICLE 91 OF THE STAFF REGULATIONS , IN PROVIDING THAT AN APPEAL TO THE COURT OF JUSTICE SHALL LIE ONLY IF THE APPOINTING AUTHORITY HAS PREVIOUSLY HAD A COMPLAINT SUBMITTED TO IT AND IF THE COMPLAINT HAS BEEN REJECTED BY A DECISION , IS TO ENABLE AND TO ENCOURAGE AN AMICABLE SETTLEMENT OF THE DIFFERENCES WHICH HAS ARISEN BETWEEN OFFICIALS OR SERVANTS AND THE ADMINISTRATION ; IN ORDER TO COMPLY WITH THIS REQUIREMENT IT IS ESSENTIAL THAT THE ADMINISTRATION BE IN A POSITION TO KNOW THE COMPLAINTS OR REQUESTS OF THE PERSON CONCERNED . ON THE OTHER HAND , IT IS NOT THE PURPOSE OF THAT PROVISION TO BIND STRICTLY AND ABSOLUTELY THE CONTENTIOUS STAGE OF THE PROCEEDINGS , IF ANY , PROVIDED THAT THE CLAIMS SUBMITTED AT THIS LATTER STAGE OF THE PROCEEDINGS , IF ANY , PROVIDED THAT1 - LANGUAGE OF THE CASE : FRENCH .

THE CLAIMS SUBMITTED AT THIS LATTER STAGE CHANGE NEITHER THE CAUSE NOR THE SUBJECT-MATTER OF THE COMPLAINT . THIS IS PARTICULARLY SO WHEN THE ADMINISTRATION , BY REMAINING SILENT AND HAVING RECOURSE TO THE PROCEDURE OF IMPLIED REJECTION , HAS REFUSED ALL CONSIDERATION OR DISCUSSION OF THE COMPLAINT .

3 . IN THE CASE OF AN APPLICATION FOR DAMAGES FOR FAILURE TO REINSTATE AFTER THE EXPIRY OF LEAVE ON PERSONAL GROUNDS , THE APPLICANT CANNOT , IN THE ABSENCE OF SERVICES RENDERED , CLAIM PAYMENT OF ARREARS OF SALARY ; HE IS NEVERTHELESS ENTITLED TO RECEIVE COMPENSATION FOR THE ACTUAL DAMAGE HE HAS SUFFERED THROUGH THE LOSS OF THIS SALARY AS A RESULT OF THE UNLAWFUL CONDUCT OF THE ADMINISTRATION .

IN PRINCIPLE , THE COMPENSATION PAYABLE ON THAT ACCOUNT SHOULD BE EQUAL TO THE NET EMOLUMENTS TO WHICH HE WOULD HAVE BEEN ENTITLED SUBJECT , HOWEVER , TO DEDUCTION OF THE NET EARNED INCOME RECEIVED FOR THE SAME PERIOD WHILE ENGAGED IN OTHER EMPLOYMENT .

IN ASSESSING THE EXTENT TO WHICH THE ADMINISTRATION MUST MAKE GOOD THE LOSS , ACCOUNT MUST BE TAKEN OF THE LACK OF ORDINARY VIGILANCE ON THE PART OF THE PERSON CONCERNED WHICH HAS HELPED TO PROLONG THE DELAY IN REINSTATING HIM .