HIGH COURT OF LESOTHO
DIRECTOR - NATIONAL 1st APPELLANT
OF EDUCATION 2nd APPELLANT
OF FINANCE 3rd APPELLANT
GENERAL 4th APPELLANT
by the Honourable Mr Justice S.N. Peete on the 14th June. 2002
an appeal against the decision of the Maseru Subordinate Court which
ruled in favour of the respondent directing that the then applicant
(present respondent) be given a yearly and retrospective progression
from the mid-point of new Grade F until he reaches the top notch of
the same grade; it was also ordered that the Minister of Finance pay
applicant's consequential arrears starting from the midpoint of new
Grade F in the new structure with effect from 1st April 1998 to point
63 in the same grade. There were no reasons given in support of this
decision. The Ministry of Public
from which the relevant Circulars regarding the salaries of the
public servants was however not cited.
common cause that the respondent herein held the position of an
assistant lecturer at the National Teachers Training College (NTTC)
and enjoyed Grade 9-10. He is a holder of B.Sc (Ed) degree. He was
originally employed on the 9th July 1990 and was confirmed on a
permanent and pensionable establishment as from 8th July 1992. In his
founding affidavit he states that
reached the maximum point of my grade 9-10 scale in the year 1993-94
even though 1 have up to now not been promoted to a higher scale. My
current salary is M3,685.00 (gross) per month.
also common cause that on the 18th May 1998, the Ministry of Public
Service (sic) issued a Circular No.9 of 1998 entitled –
"Introduction of Job Evaluation, Pay and Grading Structure for
the Public Service"
purpose of this Circular was to inform all Government Ministries of
the Government's approval of a new grading which was to come into
effect as from the 1st April 1998. The most salient feature of the
new scheme was that the then current core civil service 20 grade
structures was being replaced with a new 12 grade structure with
broader bands of 12 notches per grade.
also a 10% across the board inflation adjustment on salaries,
28th July 1998 the Ministry of Public Service issued yet another
"Conversion Rules into New Pay and Grading Structure for
guidance in converting into the new grading structure."
relevance to this appeal are what are termed "overlapping"
and "multiple" grades. They are defined as follows:
grade - where the old grading structure carries six to 12 points to
form one grade and subsequently cuts across the two grades in the new
structure, these grades begin at the mid-point of the new grade and
ends at the midpoint of the next upper grade (e.g. Grade 7-8
involving point 37 in new grade D up to point 48 of new Grade E."
grade - This refers to grade that existed in the old structure where
the job grading involved more than one grade (e.g. Grade 5-6/7-8;
relevant Conversion Rules read as follows:-
general principle that conversion is on a point-to-point basis, in
overlapping grades "progression will only continue to the
midpoint of the next upper grade (e.g. old Grade 7-8 starts at point
37 and ends at point 48 only)."
"Rule 3 applies only to the overlapping part of the grade to
move to the other side of the sledge, the procedure for appointment
on promotion should be followed"
respondent admits in his founding affidavit that
".... my own Grade 9-10 had been affected by that particular
rule (3) which applies in respect of "Overlapping Grades ".
common cause that the old Grade 9-10 starts from notch (point) 49 and
scales to 60 and that this categorises the respondent in the new
structure as being Grade E-F; this obviously is an overlapping grade
and Rule 3 is quite clear in stating that progression within such a
grade will continue to the midpoint of the next upper grade
"e.g. old grade 7-8 starts at point 37 and ends at point 48)".
the old Grade 9-10 starts at 49 and scales up to 60. It should not
progress beyond 60 without the holder being promoted into the upper
matters such as these, it must always be remembered that the grading
of the wages in the civil service is a matter for the prerogative of
the Minister responsible for the public service - see Public Service
Act 1995, section 9; and Attorney General v Makesi-1999-2000 LLR 306.
The courts of law cannot without cogent reason interfere with such
It is the
respondent's contention that the rule 3 should be interpreted to mean
"was entitled to shift to the mid-point of the New Grade F with
effect from 1st April 1998 and progress to the midpoint of G (even
without having been promoted). He says he has however been made to
remain at Grade 9-10 "much to my prejudice" and in
violation of his "clear right to have his salary increased as
envisaged by the circular."
crucial issue to decide is: where did the respondent fall under the
new salary structure? Upon his own admission he enjoyed Grade 9-10
which in the old structure (pre- 1st April 1998) ranged between point
49 to 60 and it is common cause that the respondent was at point 60.
to the new conversion rules, where the old grading structure carrying
twelve points from one grade and subsequently "cuts across two
grades in the new structure, these grades begin at the mid-point of
the next upper grade and an example is given - Grade 7-8 involving
point 37 in the new Grade D up to the point 48 of the New Grade E."
It not in
dispute that the respondent's Grade is 9-10 and is therefore an.
"Overlapping" and not a "multiple" grade which
straddles more than two grades. It is clear therefore that Grade 9-10
begins in the new structure at mid-point of E and ends at 60 which is
the midpoint in F and under Rule 4
... "To move to the other side of the sledge, the procedure for
appointment on promotion should be followed. "
to reason that in order for the respondent to proceed into G of the
new structure, he can only do so only upon promotion to Grade 11-12
or F-G which even upon respondent's own admission is not the case.
March 2000 another Circular No.8 was passed regrading graduate entry
level positions and according to this Circular the respondent's
position was re-graded "F" thus putting the respondent in
the bracket 55-66 as from 1st April 2000.
to Mr Mosae, for the respondent, the 12 points which Grade 9-10
carries should start at 61 and should overlap into G and end at 70. I
am unable to agree with this contention without changing the whole
grading structure and which decision would affect not only the
respondent but many civil servants in his category and many other
I am of
the view that much depends upon the proper interpretation to be given
to Rule 3 which deals with overlapping grades. How then was Grade
9-10 to be converted into the new structure? As I pointed out during
argument, this court is now being asked to perform what is
function. Ministries and Departments were requested by the same
Circular to issue casualty returns "showing those civil servants
who have completed a minimum of 12 months at the maximum of their old
common cause that the respondent was at point 60 and could only
proceed up to 66 under Grade F after the 1st April 2000 as per
Circular 8 of 2000.
learned magistrate did not give reasons for ordering the then
respondents to allow the then applicant a yearly and retrospective
progression from the mid-point of the new Grade F until he reached
the top notch of the same Grade F. At no where does the final order
state that the progression should overlap into Grade G.
Mr Putsoane in his heads concedes that the respondent was entitled to
progress from midpoint of new Grade F (which is 60 to 66 of the said
Grade but only as from 1st April 2000.
Order was wrong to the extend that it ordered that the respondent be
paid arrears in the new structure with effect from 1st April 1998 and
not from 1st April 2000. Casualty Return reflecting this should be
no order as to costs.
Appellants : Mr Putsoane
Respondent : Mr Mosae
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