TNAG-0991-FCO40-1210-Policy-on-salaries-and-pensions-for-civil-service-in-Hong-Ko-1980 — Page 325

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Colonial Regulations if binding are binding only on the Governor. Because they are directive, they do not confer rights. For that reason a permanent Government servant cannot e.g. maintain the right only be dismissed in accordance with Colonial Regulations. In my view the Governor need have no fear in disciplining or dismissing civil servants pursuant to the Colonial Regulations. The disciplinary regulations of course, express themselves only to apply to officers confirmed to the permanent establishment. CR 54(2) provides that disciplinary procedure in relation to other officers shall be carried out in accordance with "the regulations" made by the Governor. Note (I) to CR I Colonial Regulations, 1977 Edition (although not the 1956 edition) states that "The main condition of employment of a contract officer are covered by his contract". The "main conditions" being, I suppose; nature of post, salary scale, and duration of employment, no one would dispute that. I can only conclude that it is to some extent an open question whether the Governor may discipline, dismiss etc. permanent civil servants only in accordance with the Colonial Regulations. I would hope the answer is that his residual powers remain and he is empowered to take "such .... disciplinary action as may seem to him desirable" except where he is expressly checked by the Colonial Regulations. As we know, this is far from a merely theoretical matter.

A Contractual Relationship?

If we accept that via Colonial Regulations and Government regulations, civil servants may be controlled by authority extrinsic of contract, it may be doubted whether it was ever intended to apply Government Regulations as a matter of contract. As Cons J. pointed out in Choi Sum & Ors v. A.G. (supra) the regulations of their nature may be amended, applied, or excepted unilaterally, i.e. without reference to the employee, and that, generally, those features are inconsistent with a legally binding contract. There are various forms of offer of employment and memoranda of conditions of service. Typically, the offer of employment

contains the words :

"you would be required to conform to the Regulations of the Hong Kong Government, and Departmental Instructions

in force from time to time."