JUDGMENT

Abdul Hamid Omar FJ:

This appeal is against the decision of Mohd. Zahir J (as he then was) dismissing the appellants' claim with costs.

The sole issue before the learned Judge was whether the appellants were entitled to be placed under the Unified Teachers salary scale (UTS).

The facts are not in dispute. The appellants are a group of 86 vocational school teachers who, in response to an advertisement in the local press, submitted their applications for teacher training and were successful. Letters of offer (surat tawaran) dated 16 January 1969 for teacher training were sent to them. One of the conditions stated in the letter of offer relates to the pay they would receive upon completion of the training. Each successful candidate had to complete a Form of Acceptance and sign a standard agreement.

Condition 3(b) in the letter of offer which is material for purposes of this case reads:

3(b) Syarat-syarat bayaran selepas tamat latihan

Selepas tamat kursus DUA tahun dan selepas lulus sekali lagi Pemeriksaan Doktor, tuan/puan akan di terima sebagai guru dalam Tingkatan Gaji Yang di Persatukan dan di undang mengikut syarat-syarat Perkhidmatan bagi Peraturan Gaji Yang di Persatukan itu. Tuan/Puan akan di beri jawatan sabagai seorang guru oleh Lembaga Pengurus atau Lembaga Pengelola sekolah-sekolah yang berkenaan dan tidak akan di anggap sabagai pekerja Kerajaan. Tuan/Puan juga di haruskan boleh di tempatkan di mana-mana jajahan di Tanah Melayu ini selama lima tahun dari masa tamat latihan mengikut syarat-syarat perjanjian tuan/puan dengan kerajaan.

Translated it means:

Conditions of pay after the completion of the course - after the completion of two year course and on passing medical examination you will be accepted as a teacher on the UTS scale and shall abide by the service conditions relating thereto. You will be employed as a teacher by the relevant School Board of Governors or Management and shall not be treated as a civil servant.

One of the other conditions is that upon acceptance of the offer each appellant was to execute an agreement in five copies (p. 508 AB).

After the two years training the plaintiffs were asked to do an extra year specialist course of training. Upon graduation they were put on attachment on 1 April 1972 on a commencing salary of RM230 p.m. lower than UTS which was RM310 for men and RM275 for women. In this regard however it is to be observed that the appellants were placed on attachment as they had not then successfully completed their course of training. The payment of RM230 was merely an allowance. The date of completion of the course was 6 June 1972. By letter Perlantikan Kejawatan Sementara dated 21 September 1972 (AB 27-28), the appellants were offered a new scale T2 under the Aziz scheme with a starting salary of RM370. This according to the appellants would still be lower than the salary they would have got if they had been placed first under UTS and then opted into Aziz. The appellants claim that there was a breach of the agreement and pray for an order declaring that they are entitled to salaries and allowances in accordance with UTS as it existed on 1 May 1969.

It is clear that at the time the agreement was entered into between the appellants and the respondent the only salary scale in force relating to trained teachers applicable to the appellants was the UTS scale but on completion of the course of training the UTS was no longer in existence. The only salary scale in force then was the salary scale under the Aziz scheme.

In this appeal the appellants rely on the following grounds:

That the learned Judge erred in law and in fact in

(1) upholding the respondent's plea that the contract could not be fulfilled on account of frustration and that it had been discharged

(2) not accepting the submission of the appellants that Circular 10/1971 did not apply to the appellants who were then not yet Government servants.

(3) not following the decision of Thambipillai v. The Government of Malaysia [1969].

(4) holdi