THE HIGH COURT
			1996 No. 6470P
BETWEEN
NIALL O'DONNELL
			PLAINTIFF
AND
AN POST
			DEFENDANT
JUDGMENT of Mr Justice McCracken delivered the 18th day of June 1999 
	The Plaintiff is and was at all material times an employee of the Defendant, and its predecessor, the Department of Posts and Telegraphs, and these proceedings relate to the terms of his employment, particularly in regard to promotion or prospects of promotion in the particular circumstances of his case.  I accept that the terms of employment are contained in two documents.  The first of these is known as Leabhair Eolas, which is a lengthy and very detailed book of rules relating to all employees of the Defendant.  The second is a document setting out procedures for dealing with grievances and disputes which, while it is dated June 1990, it is accepted by the parties applies to the dispute in the present case.  This document came into being as the result of an agreement between the Defendant and the Communication Workers Union.  While the issue is largely a matter of interpretation of the relevant provisions of these documents, it is first necessary to set the history of the dispute in some detail.
Background to Dispute
	The Applicant was first appointed a Post Office Clerk in 1964, and in 1968 he became a Post Office Clerk in Letterkenny.  The next rank above Post Office Clerk is that of Overseer.  It frequently happens that from time to time an Overseer or Overseers are temporarily unavailable for their work, and in each Post Office there exists a List of Post Office Clerks who may be asked to act as Overseer in a temporary capacity, this List being known as the Acting List.  The Acting List may also be used as a guideline for subsequent promotions.  The Plaintiff was placed on the Acting Overseer List on 27th November 1972.
	On 20th August 1985 the Plaintiff was promoted to the post of Overseer, and it followed that, as he was no longer a Post Office Clerk, he ceased to be on the Acting Overseers List.  A few months later he was appointed Group Secretary of the National Investment Group Savings Scheme at  Letterkenny Post Office.
	In 1988 an investigation took place concerning certain irregularities in operating the savings scheme as a result of which the Plaintiff was initially suspended from duty, and on 25th January 1989 was downgraded from Overseer to Post Office Clerk with effect from 30th January 1989 as a disciplinary measure.  It was also directed that he should not be considered for the Acting Overseer List until four years after his demotion.  As a result of his downgrading, be became the longest serving Post Office Clerk in Letterkenny, and was in fact for all purposes other than the Acting List considered to be the Senior Post Office Clerk in Letterkenny.  On a number of occasions between 1989 and 1993 he applied to be put back on the Acting Overseers List but this request was refused until 1993.  Eventually, on 30th November 1993, the Plaintiff was notified that he would be placed on the Acting Overseers List as from 1st December 1993, but would be the Junior Acting Overseer on the List.  The effect of this was that, because of the provisions of Rule 225(c) which I will set out below he could not be considered for promotion for a period of at least two years after being restored to the Acting List.
	In October 1996 a vacancy for Overseer arose, at which time Mr Jim Ferry was in the number one position on the Acting Overseer List, and he was duly appointed to the vacant position.  It is the Plaintiff's case that, on a proper interpretation of the Rules, he ought in fact to have been in the number one position on the Acting List, and ought to have obtained that promotion.
The Relevant Rules
	The rules governing employment by the Defendant are contained in Leabhair Eolas, and the relevant rules for the purpose of this dispute are as follows:-
	"206. Principles of Selection
	(a)	Merit and not seniority should be the deciding factor in the selection of an officer for promotion or for a post carrying an allowance for supervision, and the officer selected should be not only fully qualified, but the best qualified of the eligible officers for the performance of  a higher work.  This is not to be interpreted as excluding seniority from its due weight in balancing the claims of various officers to promotion;  but it should be understood that promotion from the ranks depends upon the distinct exhibition of qualities superior to those of the ordinary officer;  an ability to perform not only the duties of the operative grade, but the supervising and clerical duties of higher grades, should be a most important factor in the selection.
	(b)	It should be understood that the inclusion of an officer's name in an acting list or his employment on substitution duty (see Rrules 218 to 231) does not indicate that he will necessarily be promoted, and that seniority on the acting list affords no indication of the probable order of promotion.  The Minister for Posts and Telegraphs does not bind himself necessarily to promote an officer who is on the acting list, and he reserves to himself the right to select any officer whose promotion is, in his opinion, in the best interests of the service, whether that officer is on the acting list or not.
	(c)       A single serious offence during the preceding five years need not necessarily be regarded as disqualifying an otherwise suitable officer for promotion and, unless of a very serious nature, offences more than five years old should  not, generally speaking, be taken into account.
	 222.  Selection for Lists
  	(a)     The selection of officers for the acting list should be made from the grade generally, including officers employed on writing duties.  The list should be strictly confined to officers from whom the selection for promotion will in ordinary course be made.  Good conduct must not be regarded as a sufficient qualification in itself for employment on the higher duties, and only officers who show distinct aptitude for the higher work should be chosen.  A single serious offence during the preceding five years may not necessarily be regarded as disqualifying an otherwise suitable officer for inclusion in the acting list and unless of a very serious nature, offences more than five years old should not, generally speaking, be taken into account.
	223. Revisions of Lists
	The acting lists should be revised annually.....
	224.  Removal from Lists
	An officer who during the year commits a serious offence or otherwise shows himself unfit for employment on the higher duties should be removed from the acting list at once without waiting for the annual revision, and if necessary another officer may be selected to take his place....
	An officer who has been removed from the acting list for a serious offence may, if otherwise suitable, be restored to the list after a reasonable interval of say two or three years or a longer or shorter period according to the nature of the offence (Rule 222)....
	
	225.  Seniority on Acting Lists
	(a)	 subject to the exceptions mentioned in paragraphs (b) and (c) below seniority on the acting list should be reckoned from the date of entry which will usually be in accordance with normal seniority on the grade.  An officer who refuses to have his name included on the acting list or who is removed at his own request and who subsequently changes his mind and applies for admission or re-admission must take his position on the list as from the date of entry without regard to his normal seniority in his grade.
	(b)	Officers whose previous exclusion or removal from the list was due to health reasons should on entry or re-entry be given normal seniority, i.e. their seniority on the acting list should be reckoned as if they had not been excluded or removed from it.
	(c)	Similarly officers whose previous exclusion or removal from acting list was for disciplinary reasons, or inefficiency or unsuitability, other than on health grounds, should also be given normal seniority on entry or on re-entry.  Where, however, there are junior qualified officers already on the list the new entrant will not be considered for promotion for a period of at least two years, where the acting list concerned is for promotion to a supervising grade and one year in all other cases".

The McNeill Rules
	Paragraph 3.3 of the disciplinary code in this document is as follows:-
	"Written reprimands will remain on an employee's record for two years, serious offences for four years, and thereafter all relevant papers will be destroyed." 

Position when Plaintiff placed on Acting List
	The Plaintiff was eventually placed on the Acting List in November 1993.  It  is arguable that he ought to have been placed on the List in January of that year, namely four years after he had been downgraded to Post Office Clerk, but that is really immaterial to the matters which I have to decide.  When the Plaintiff was demoted in January 1989 his name was not on the Acting Overseers List, as of course he had in fact held the position of Overseer at that time.  However, it is quite clear on the evidence that in January 1989, upon his demotion, he was excluded from the Acting List.  He was entered on the List in November 1993, and under Rule 225(c) he was entitled to "normal seniority" on being entered at that time on the List.  Rule 225(c) commences with the word "similarly", and this can only refer to the provision of Rule 225 (b), and in particular to the definition of "normal seniority" in that sub-rule.  This is stated to be "their seniority on the Acting List should be reckoned as if they have not been excluded or removed from it."  Any reference there to removal from the List must, under Rule 225(b) be due to removal for health reasons, and under Rule 225 (c) due to removal for disciplinary reasons or inefficiency or unsuitability.  Quite clearly the Plaintiff was not removed from the Acting List in this sense, as he was not on the Acting List at the time of the disciplinary action against him, and his removal from the Acting List, which took place on his promotion in 1985 was not on health or disciplinary grounds.  I have no doubt, therefore, that the only possible interpretation of Rule 225(c) is that when the Plaintiff was restored to the Acting List in 1993, he should be given the seniority which he would have had had he been put on the List in January 1989, which is the date he was excluded from it.
	The Plaintiff argues that his normal seniority in January 1989 was that of the Senior Post Office Clerk in Letterkenny, as that was the seniority which operated for other purposes, such as hours of work.  I can see nothing to justify this argument, as in my view the rule is quite clear.  The Plaintiff was not permitted to be put on the List for a period of four years for disciplinary reasons, but under Rule 225, when he is eventually put on the List, he ought to be put on it in a position of seniority as of the date of his exclusion for disciplinary reasons.  I do not think that the Plaintiff is in any different position because he had previously been an Overseer, and had been demoted from that position.  Under the Rules he is in exactly the same position as if he had been a Post Office Clerk who was not on the Acting List at the time the disciplinary proceedings were taken against him.
	The Acting List as of 3rd February 1988 has been put in evidence.  It shows Mr Jim Ferry at No 6 on the List.  The next available List of which evidence has been given was in 1991, and it would appear that there was no revision of the List between those dates.   While Rule 223 provides that the acting lists "should be revised annually", in my view this is not a mandatory provision, and if no annual revision takes place, the last List remains valid.  In my view the Plaintiff's entitlement is to have been placed on the Acting List as of January 1989 as if he had been a new entrant on the List at that date.  This means he would in fact have been at the bottom of the List, and inferior in position to Mr Ferry.

Plaintiff's entitlement on vacancy in 1996
	 The situation is somewhat complicated by the fact that disciplinary action was also taken against Mr Ferry.  In April 1991 he was removed from the Acting List for disciplinary reasons, and was restored to it on 18th January 1993.  Under Rule 225(c) he was restored to the position which he would have held had he not been removed from the List, that is the position which he held in April 1991.  At that date Mr Ferry was ahead of the Plaintiff on the List and therefore, even if the Plaintiff had been included either from the end of January 1993 or from November 1993, his position would of necessity have been below that of Mr Ferry.  By the time the appointment to Overseer was made in 1996, Mr Ferry was clearly number one on the List, and in fact the Plaintiff ought to have been number two on the List.
	It is clear from the evidence that when Mr Ferry was appointed in October 1996, consideration was given, not only to his suitability for the appointment, but to that of a Mr Markey who was next below him on the Acting List as it then existed.  Notwithstanding the provisions of Rule 206, which makes it clear that the position on the Acting List is not the determining factor in promotions, in fact Mr Ferry was promoted rather than Mr Markey.  This is so, even though Mr Ferry had had some disciplinary problems, and the confidential report on him from the Head Postmaster at Letterkenny was not nearly as complimentary as was the report on Mr Markey which was in glowing terms.  In my view the strong probability is that, even if the Plaintiff had been number two on the List in 1996, Mr Ferry would still have been appointed to the vacant position.  Indeed, this is in accordance with the Plaintiff's own evidence that the person who is number one on the List can normally expect to receive the next promotion.  I should add, in fairness to the Plaintiff, that there is no suggestion that he was anything but highly efficient in his job, and any confidential report on him would probably have been just as good as was that on Mr Markey.

Conclusion
	It is my conclusion, therefore, that when the Plaintiff was put on the Acting Overseers List in 1993, he ought to have been placed on that List second to Mr Ferry.  However, had that happened, I do not think that he would have obtained the promotion in 1996, as that would have gone to Mr Ferry in any event.  It does mean, however, that as from the date of Mr Ferry's promotion, the Plaintiff ought to have been number one on the Acting List.  There has been no further promotion opportunities since that time.  I understand that the Plaintiff has in fact not worked for some time, but no argument has been addressed to me as to the possible effect of this on the Acting List, and I do not think that is a matter for consideration by me at this time.  However, it does not seem to me that the Plaintiff has shown that he suffered any loss as a result of the events which have occurred.
	I will hear arguments from Counsel as to the form of the Order.