Badrul Ahmad

- vs -

Malaysia

Judgment

Hashim Yeop A Sani SCJ

(delivering the Judgment of the Court)

1. Sometime in 1972 the Ministry of Trade and Industry required the services of enforcement officers for the Ministry. Accordingly the Cabinet Committee on Establishment resolved on 10 October 1972 to authorise the Director-General of Public Services Department to establish and create a scheme of service for the officers on a temporary basis pending approval of a permanent scheme of service. Pursuant to this resolution a scheme of service was established provisionally consisting of

   1. Enforcement Inspectors on a salary scale of $400 x 40 — $600; and

   2. Chief Enforcement Inspectors on a salary scale of $640 x 40 — $880.

2. This scheme of service was referred to by the judge in his judgment as the “ad hoc scheme of service”. On 2 December 1974 the, Director- General of Public Services Department then created and established a permanent scheme of service to replace the temporary or “ad hoc” scheme of service referred to earlier. The permanent scheme of service created two categories of posts and salaries as follows:

   1. Timescale Enforcement Inspectors, on a salary scale: $400 x 25 — 450/480 x 40 — 800/840 x 40 — 1000; and

   2. Enforcement Inspectors Special Grade, on a salary scale of $1000 x 50 — $1,250.

3. It should be noted immediately that apart from overall salary improvements the permanent scheme of service also changed the names of the posts in the provisional scheme from “Enforcement Inspectors” and “Chief Enforcement Inspectors” to “Timescale Enforcement Inspectors” and “Special Grade Enforcement Inspectors”. The permanent scheme of service took effect from 2 December 1974 and has since been approved by the government.

4. Following the creation and establishment of the permanent scheme of service the Director- General of Public Services Department wrote to all the officers concerned to inform them of the permanent scheme of service and that all the officers then serving would automatically thenceforth be governed by the permanent scheme of service. A sample of this letter is shown as “exh BA2A” attached to the affidavit of one Badrul Ahmad affirmed on 27 November 1980 — p 231. All the officers then serving as enforcement officers and chief enforcement officers were then absorbed into the permanent scheme of service.

5. Subsequently nine officers among those affected took out an originating summons citing the Government of Malaysia, the Director-General of Public Services Department and the Chief Secretary of the Ministry of Trade and Industry as defendants. The third plaintiff withdrew his suit before the hearing in the High Court. They sought from the High Court, Kuala Lumpur, a declaration that the action of the defendants on 23 May 1975, to transfer or absorb the plaintiffs with effect from 2 December 1974, from the salary scheme for Chief Enforcement Inspector viz: $640 x 40 — 720/760 x 40 — 880 to or into the new salary scheme for Timescale Enforcement Inspector viz: $400 x 25 — 450/480 x 40/ 840 x 40 — 1,000, was unlawful and or unconstitutional or in any event unfair. They also sought for an order that the plaintiffs be transferred or absorbed instead into the salary scheme for Special Grade Enforcement Inspectors viz: $1,000 x 50 — 1,250.

6. All the plaintiffs had been appointed from amongst serving officers in the public service. It would appear that the rest of the plaintiffs were appointed as Chief Enforcement Inspectors except the first plaintiff who was appointed as Enforcement Inspector in the provisional scheme of service. They were, however, appointed at different points in the salary scale depending on their salaries in their previous service.

7. The grievances of the appellants may be summarised as follows. The absorption process from the temporary scheme to the permanent service would in effect amount to a reduction in rank without giving them the opportunity to be heard and therefore unconstitutional. Their argument was that by the absorption process those officers who were Chief Enforcement Inspectors in the temporary or provisional scheme of service were put together in the same scheme of service as the enforcement officers and therefore had the effect of reducing them in rank by placing them together with officers who were previously subordinate to them. Consequent upon being placed together with officers subordinate to them they were deprived of their normal legitimate prospect of promotion.

8. After carefully setting out the facts of the case the learned trial judge concluded that in actual fact the appellants had not lost anything financially as they were put on a salary scale carrying a higher maximum salary and also placed at a point in accordance with the dates of the first appointment. The learned judge said (at p 21) as follows:

   As I had earlier stated the plaintiffs had not lost anything financially. They were put on a salary scale carrying a higher maximum salary. The dates of their seniority in service, were the dates of their first appointments as Chief Enforcement Inspectors as opposed to the other Enforcement Inspectors whose dates of seniority took effect on 2 December 1974. The plaintiffs’ period of qualifying service for promotion to Special Grade Enforcement Inspectors were reduced by half.

9. We agree with the learned judge as we do not think that the facts can be interpreted in any other way.

10. The complaint of being reduced in rank has no merit. First, a reduction in rank means a reduction in the grade an officer is holding which is a form of penalty, a penalty in the sense that something beneficial to him is taken away. See also Munusamy v Public Services Commission [1967] 1 MLJ 199. On the facts as alluded to earlier we do not agree that there is reduction in rank. In fact the facts of this case are very much similar to Rabu Abdul Ghani v PSDM Public Service Tribunal Reference No 1/78. That case concerned an applicant to the Public Service Tribunal who had earlier been promoted as a storekeeper. Subsequently the government decided to re-grade and restructure the salary scale of storekeepers. The applicant there contended that he should not have been “demoted” to a timescale post (the new post). The chairman of the Tribunal, Abdul Hamid J (as he then was) said:

    Our answer to it is that there is no departure or deviation because the effect of the re-grading and restructuring although it places the Applicant back into the Timescale nevertheless does not entail any loss in salary. In fact he enjoys a higher maximum. There is also no loss in seniority among themselves despite the loss in designation. As to the prospect of promotion we feel that there may be such reduction because the Applicant is placed on a larger and more competitive group but there is no loss in the opportunity to be promoted.

11. Secondly the allegation that the fact that the appellants were placed together with their previous subordinates would amount to reduction in rank is with respect misconceived and selfish. Since they have not lost financially nor in seniority nor in status the grievance is completely unjustified being directed solely to the presence of officers who were previously subordinate, to them in the same scheme of service.

12. Finally, have they lost in terms of prospects of promotion? The facts show and the learned judge found that to qualify for promotion to the post of Enforcement Inspector Special Grade, the new scheme requires a Timescale Enforcement Inspector to serve at least six years as a Timescale Enforcement Inspector and to be confirmed in his post, and to pass the necessary examinations specified in the new scheme. We also take notice that the qualifying period of six years was in fact reduced in the case of the plaintiffs (i.e. those who were formerly Chief Enforcement Inspectors) to three years. For the plaintiffs, the dates of their seniority in service were to begin from the dates they were appointed as Chief Enforcement Inspectors, whereas for those who were Enforcement Inspectors in the ad hoc scheme of service, their seniority would begin from the date of the coming into force of the new scheme of service i.e. with effect from 2 December 1974. When the new permanent scheme of service came into force on December 1974, the scheme of service for Special Grade Enforcement Inspectors were created. but no such post was made available to the Ministry of Trade and Industry until 1 October 1976, when the Public Services Department and the Treasury approved the establishments of 12 posts of Special Grade Enforcement Inspectors. Upon the establishment and availability of these posts, the Promotion Board in the Ministry of Trade and Industry took immediate action to appoint all the 10 former Chief Enforcement Inspectors (including the plaintiffs) to act as Special Grade Enforcement Inspectors on 1 November 1977, and two of them who were confirmed as Enforcement Inspectors were paid acting allowances, while the rest who were not so confirmed were paid charge allowances. Thus it is no wonder that the learned judge concluded (p 22) that the plaintiffs were in fact put in a more advantageous position. He said:

    The plaintiffs, therefore, were put in a more advantageous position than the former Enforcement Inspectors when it came to chances of promotion to the Special Grade Enforcement Inspectors.

13. However, after finding that the appellants’ claims had no merit the learned judge went at length on the question of option and delegation.

14. First, he said the appellants ought to have been given an option in the following alternatives. According to him they should have been offered to retire and be given pension upon the abolition of their posts. Alternatively he said they should be transferred to or absorbed directly into the new scheme of service which carried a higher maximum salary scale than that of Chief Enforcement Inspectors. The third alternative suggested was that the appellants ought to have been given the option to revert to their former appointments.

15. In our view the proposals of the learned judge on the question of option was the result of a misdirection on the facts. The point is there was no abolition of posts. It is made clear in the resolution of the Cabinet Committee on Establishment on 10 October 1972, that the first scheme was provisional and temporary only pending the establishment of a permanent scheme of service. The learned judge himself referred to the provisional scheme as “ad hoc ” scheme. There was therefore only a change in the names of the posts and a restructure of the salary scales subsequently. The question of option therefore does not arise.

16. As regards the question of delegation the learned judge again in our view misdirected himself. He dismissed the plaintiffs’ claims because he held that the provisional or temporary scheme was void because the delegation by the Cabinet Committee on Establishment to the Director- General of Public Services Department was bad in law. He said in his judgment that the powers of the Yang di-Pertuan Agong under Article 132(2) of the Constitution cannot be delegated to the Director-General of the Public Services Department by law or administratively.

17. We have the opportunity of looking at the copy of the minutes of the Cabinet Committee on Establishment at its meeting on 10 October 1972. The Cabinet Committee consisted of the Prime Minister, the Deputy Prime Minister, the Minister of Finance and the Chief Secretary to the Government. The resolution reads in Bahasa Malaysia as follows:

    ... bersetuju, (sementara menantikan kelulusan skim perkhidmatan yang muktamad oleh pehak Kerajaan) memberi kuasa kepada Ketua Pengarah Perkhidmatan Awam Malaysia untuk meluluskan secara pertadbiran Skim-skim perkhidmatan yang perlu diujudkan atau pun dipinda demi kepentingan urusan pengambilan atau pun kenaikan pangkat yang mustahak dijalankan dengan segera dan skim-skim perkhidmatan itu hendaklah dianggap sebagai skim sementara sahaja sehingga skim perkhidmatan yang muktamad diluluskan oleh Kerajaan kelak.

18. The operative words in the resolution are: “memberi kuasa kepada Ketua Pengarah Perkhidmatan Awam Malaysia”. This actually means to authorise the Director-General of the Public Services Department to proceed with the creation and establishment of the temporary or provisional scheme of service pending the establishment of a permanent scheme of service for the enforcement officers required by the Ministry of Trade and Industry.

19. Where is the delegation? The Cabinet Committee system is nowadays normal in the machinery of government — see also de Smith’s Constitutional and Administrative Law 5th Ed under “Executive Power”. The Public Services Department is an administrative department of the government charged with the responsibility for the affairs of the civil service. The Assistant Director of the Public Services Department might have thought that it was a delegation as stated in his affidavit affirmed on 8 April 1985. But in our view delegation does not arise either from the Cabinet to the Cabinet Committee or from the Cabinet Committee to the Director-General of the Public Services Department. It is a mere chain of command.

20. In Metropolitan Borough & Town Clerk of Lewisham v Roberts [1949] 2 KB 608, Bucknill LJ cited with approval the pronouncement of governmental system by Lord Greene in Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 at page 563:

    In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to them. To take the example of the present case no doubt there have been thousands of requisitions in this country by individual ministries. It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind to the matter. The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the minister. The minister is responsible. It is he who must answer before Parliament for anything that his officials have done under his authority, and, if for an important matter he selected an official of such junior standing that he could not be expected competently to perform the work, the minister would have to answer for that in Parliament. The whole system of departmental organisation and administration is based on the view that ministers, being responsible to Parliament, will see that important duties are committed to experienced officials.

21. In Carltona the sole question before the Court of Appeal related to the validity of the requisition order under the Defence (General) Regulations 1939. One of the questions posed was whether the requisition was bad because the persons constituting the requisitioning body (the Commissioner of Works) never brought their minds to bear on the question.

22. In Lewisham Borough v Roberts [1949] 2 KB 608, the court was concerned with a “re-requisition” order also under the same Defence Regulations but this time by the Ministry of Health. The Town Clerk applied to the Minister of Health to re-requisition the whole Premises because the tenant of the ground floor refused access to the upper floor which had been requisitioned earlier. G, a general inspector of the Ministry of Health replied to the Town Clerk in an official letter of the Ministry stating that he was directed by the Minister to say that he delegated to the Town Clerk his functions under the Regulations for the purpose of requisitioning the whole premises. There was no evidence that the Minister had personally instructed G to act on a matter of this kind. By virtue of s 7 of the Emergency Powers (Defence) Act 1939 a document must be deemed to have been made or issued by the Minister of Health until the contrary was proved. It was held that since the contrary was not proved and since the Minister was entitled to act by an authorised official of his department and there was no necessity that it should be shown that the Minister had given his mind to the matter personally, no question of delegation arose as between the Minister and G so that the maxim, delegatus non potest delegare, did not arise.

23. By virtue of Article 132(2) of the Federal Constitution the conditions of service of persons in the federal public services may be regulated by federal law and subject to the provisions of any such law by the Yang di-Pertuan Agong. In this regard we are in the same situation as described by Denning LJ (as he then was) in Lewisham Borough v Roberts where he said in regard to the Power of requisition

    It is a power which Parliament has conferred on the Crown, that is to say, on the Executive acting by the government departments.

24. We accordingly dismiss the appeal for reasons quite different from that of the learned judge. Costs to respondents. Deposit to respondents towards payment of costs.

Cases

Munusamy v Public Services Commission [1967] 1 MLJ 199; Rabu Abdul Ghani v PSDM Public Service Tribunal Reference No 1/78; Metropolitan Borough & Town Clerk of Lewisham v Roberts [1949] 2 KB 608; Carltona Ltd v Commissioners of Works [1943] 2 All ER 560; Lewisham Borough v Roberts [1949] 2 KB 608

Legislations

Federal Constitution: Art. 132(2), (3)

Authors and other references

de Smith’s Constitutional and Administrative Law 5th Ed 

Representation

Mohamed Nor Mohamed for the appellants.

Suriyadi Halim Omar (Senior Federal Counsel) (K Muniandy, Federal Council, with him) for the respondents.