TNAG-0991-FCO40-1210-Policy-on-salaries-and-pensions-for-civil-service-in-Hong-Ko-1980 — Page 335

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the pay he was to receive for his services.

He sued for the balance of

salary which he claimed was owing under an increment which had been withheld.

The Judicial Committee overruled the reasoning of Lord Blackburn in hulvenna

v. The Admiralty 1926 S.C. 842, which had held there to be an implied condition

to be read into every contract between the Crown and a Public Servant that

they have no right to remuneration which could be enforced in a Civil Court

of Justice. That case was, in effect, long sought for authority for the preposition that every Crown Servant has an enforceable contract of some

kind, at least as to payment of salary. It offers no support for Cons J's

view that the relationship between the Crown and its servants is now one of

"simple contract" subject to the right to dismiss at will under an implied

(3) term.

The matter is put in better perspective, in a slightly different

context, by the learned authors of Halsbury's Laws of England (Vol. 6, Commonwealth and Dependencies para. 1060 and footnote 5) who write :

"The Colonial Regulations as to appointment to public offices

do not purport to create any contract between the Crown and

its Servants. It does not follow, however, that there is no

contract of service. See, e.g. Kodeeswaran v. A.G. of Ceylon".

It was surely fallacious of Cons. J to conclude that the position of Crown

Servants is now defined exclusively by contract. This is manifestly untrue

in the U.K. where the position of Crown Servants is regulated by Order in

Council, October 22 Civil Service Oin C.1969 where the Minister for Civil

Service is empowered under the Royal Prerogative to make regulations or

give instructions for controlling the conduct of the Home Civil Service.

These regulations, are embodied in the Civil Service Pay and Conditions of

(4) Service Code, known as the "Estacode".

In my submission, in Hong Kong and the U.K. prerogative powers are

still of enormous significance in fixing the legal position of Crown Servants.

I do not mean to suggest that in certain cases certain Colonial Regulations

and Government Regulations have not been incorporated into the contracts of

employment of civil servants. My thesis is that in the case of some,

at least,

of such regulations, being concerned with the exercise of prerogative powers

delegated to the Governor, it would not matter whether or not they were terms

of a contract of employment. As I see it, for present purposes, it is not

necessary to examine this aspect further.

(3) In fact, whatever the position elsewhere, in H.K. the Crown's right to dismiss at pleasure depends not on an implied term of the contract but the legislative force of prerogative power under Art. XIV of the Letters Patent

(4)

Para. 14 of the Estacode (July 1977) reads, interestingly: "For the most part, the relationship between the Civil Servant and the Crown remains one regulated under the prerogative and based on personal appointment.

As such,

a Civil Servant does not have a contract of employment enforceable in the Courts but rather a letter of appointment, and technically the Crown still retain the right to dismiss a Civil Servant at pleasure".