In this application, plaintiff is seeking a declaration that he was a permanent staff of the Government of Malaysia and is entitled to receive pension gratuity and medical benefits from 16.05.1975 to date of retirement.

After having heard submissions from both parties, this Court ruled that the plaintiff's application be dismissed with costs.

The Court arrived at that decision for the following reasons.

All the exercise of absorbing the temporary staff into permanent establishment via Circulars No.23/69, 26/72 and 1/73 is the result of the recommendation of the Royal Commission on the Revision of Salaries and Conditions of Service in the Public Services.

In all the above 3 circulars, other than stating the necessary requirements for the application, it is also clearly stated as follows:-

(i) that the number of temporary staff that would be absorbed into permanency would be subject to the number of posts available and that new posts would not be created just to enable; and

(ii) that those applicants who are successful in their applications and are absorbed into permanency still has to:-

(a) undergo and pass a health examination by a doctor;

(b) liable to undergo a probation period of 1 - 3 years; and

(c) will only be confirmed in their post if they pass all the requisite Government Departmental examinations.

In conclusion, all circulars are couched in terms to the effect that such temporary staff "may apply to be considered" for permanent establishment. In effect the whole tenor of the language in the circulars are non-committal. It did not say that those who applied or opted would be entitled to be emplaced in permanent establishment. And even if so emplaced, the person is still required to satisfy the above 3 requirements before being confirmed in their post.

Bearing the above in mind, we have the following facts before us. The sequence of events were:-

(a) Circular No.23/69 dated 11.11.1969 was issued.

(b) Defendant applied in pursuant to Circular No.23/69 and was called together with 13 others for an interview on 23.07.1971.

(c) Meanwhile Circular Bil.7/70 dated 08.05.1970 was issued recommending that posts held by temporary officers would be filled whenever possible by permanent staff with the requisite qualifications either by absorption of present holders or by replacing them with new recruits (the words so underlined are my own emphasis). Again, it is worthy of note that the tenor of the language is non-committal in nature.

(d) Plaintiff signed the relevant option paper on 02.01.1971.

(e) By 05.01.1971, when plaintiff is still not called for an interview, he wrote a letter to the Ministry of Health through his Head of Department.

(f) As a result he was called for the above interview together with 13 others.

(g) The result was announced in September 1971 that 8 of them (including the plaintiff) had failed in their applications.

(h) Subsequently Circular Nos.26/72 dated 06.12.1972 and Circular No.1/73 dated 28.06.1973 were issued and circulated.

The undeniable effect of plaintiff's failure in the above interview meant that his application to be emplaced in permanent establishment has been rejected, therefore re-confirming and re-establishing himself still as a temporary staff and that his mere exercise of opting for the new scheme in January 1971 does not in any way change his status as a temporary staff.

Plaintiff claimed that Circulars Nos. 26/72 and 1/73 were not brought to his attention. Plaintiff must prove this fact. The 3 witnesses called on behalf of the defendants could not under cross-examination confirm whether the Circular Nos. 26/72 and 1/73 was or was not brought to the plaintiff's attention, but they believed that it was so informed to all the staff. On the other hand, there are evidence to show that other temporary staffs knew of the existence of the abovesaid Circulars and subsequently applied and was absorbed into permanent establishment. There is evidence to the effect that out of those that subsequently