File No.
M 6
Page
Mr Waters
PAS (CS) Dev
20.3.92
I regret the delay in letting you have written confirmation of my advice on your M 5.
2.
As
J
a
matter
of Government policy, certain pensionable officers, of whom Mr Broadley is one, are required to retire before attaining their 60th birthdays. Mr Broadley has challenged the legality of such a direction and you have asked me to advise whether his argument is
correct.
3.
Mr Broadley's ingenious argument goes as follows :
(a)
the Letters Patent provide that
appoint such as may lawfully be whom shall, unless by by law, hold their
"The Governor may public officers appointed, all of otherwise provided offices during our pleasure.'
11
Pensions Benefits Ordinance, Cap 99
(b)
the
applies Mr Broadley.
to serving officers
such as
(c)
section 10 (2) provides, So relevant, that
far as
is
4.
(a)
"The retirement age of a serving officer shall be when he attains the age of
60"
therefore since the law provides otherwise the normal common law rule that civil servants can be dismissed at pleasure is, in his case, disapplied.
In my opinion Mr Broadley's argument is flawed
་
because the Pension Benefits Ordinance does not govern the tenure of pensionable officers but the circumstances in which an entitlement to pensions arises. The definition of "retirement age" in section 2 (1) makes it clear that an officer is not necessarily still in service when he attains his retirement age so that the specification of a retirement age in section 10 does not imply that an officer has security of tenure until he attains that age. Whether he could be retired without compensation before attaining the retirement age is a moot point but since generous compensation is in fact on offer under the Limited Compensation Scheme, it is not a point I am called upon to
answer.
G.F. 32
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