10- To what extent the legal Assistants are entitled to have the allowance in consideration for the nature of the work during their further studies abroad?

Finding:

The allowance in lieu of the nature of the work is considered part and parcel of the salary of the employee in an inseparable state of existence together, that means if the employee was granted the allowance before his being deputized, he will definitely be entitled to it abroad and will have it accordingly.

Reasoning:

The provision of the Article (27) of the law of the Studying Missions and Deputation No., (9) 1976 provides that any employee who has been deputized to have further studies abroad shall be eligible to be paid the salary of the job he was already occupying in addition to the remuneration he gets as a deputized student, together with the allowances which has been determined for it.

Whereas the allowance in consideration of the nature of the work is an allowance which has been determined to be paid to the occupant of a job which it has its own specialty and uniqueness of environment or that its needs more effort to be exerted on its performance or because of the lack of certain qualified cadres or personnel. This is what has been reached by the Civil Service and Housing Administration whose opinion is to compensate the employee in cash terms in consideration for his work under the difficult conditions that need more effort to be exerted whether physical or mental to an extra ordinary degree.

However, this allowance is among other payable allowances which are unequivocally permitted by the legislator in the rule of law Article (27) of the Studying Missions Deputation aforementioned. The employee being abroad for his further study is supposed to be actually performing the job for which such allowance is permitted by virtue of his actually laboring abroad to perfect the job that has been distinguished and specialized by the legislator by this particular allowance.

Therefore the argument that the employee is entitled to this allowance if and only if he is found practicing the duties of the job cannot stand under those circumstances.

In application to what has been forwarded, and,  in addition to the documentary evidence, the claimants have been deputized for the study abroad. All of them were entitled and all were paid the nature of the work allowance before the commencement of their mission. Therefore, and according to the clear statement of the law, this allowance payment should continue to prevail although the period of their mission abroad has finished up.

As regards the argument which has been forwarded by the Civil Service Systems Administration which was based on an untenable interpretation because it is against the clear provisions of the law and the basis of the well known interpretation of the law, so it is therefore destined to be rejected. It has always been known that where there is an express provision of the law, there is no chance to go to farfetched interpretations that eventually contradict the express and vivid provisions of the law. In this case the express term of the law was inescapable and it must not be avoided to adopt the unfounded interpretations. For instance, the Civil Service Systems Administration has went too far to adduce valueless argument like the looking into the nature of the allowance itself and whether it is static or it follows the person without reference to the clear terms of the law. However, in the mean time the provision of the law reads as clearly as the following: “the salary of the job that is occupied by the employee, increases in the salary and the determined allowances for it”.

In the Administrative law and in what has become a well –established system of advisory opinion that has accumulated legal knowledge, experience and precedents through the laborious efforts of the Fatwa and Contract Administration, this question of the nature of the work allowance has been seen various times and is considered part and parcel of the salary. They go inseparably together. If the employee is paid his basic salary, he must receive the nature of work allowance simultaneously. All of this shall go undisturbed or changed except by the due operation of the law. The aforementioned cancelled law that governed this situation was Article (53) that it shall be awarded upon the satisfaction of the conditions which have been determined and it shall be stopped in case of the two following situations, namely:

- In the case of the annual vacation and the unpaid vacation. Both of these two cases have no any connection or relation with deputation in the study missions abroad, in addition to the rule in Article (27) of the law of organization of the Studying Missions Deputation aforementioned. This law has decided clearly the entitlement of the employees in the increases and allowances that are attached to the salary package and are considered part and parcel of the salary to the extent that it is not permissible to stop the payment of the nature of the work allowance from the deputized claimants by any means during their stay abroad except by the operation of the law. Any inclination to do otherwise shall be against the law without vivid lawful reason.