Relihan v Kerry County Council

JudgeÓ Dálaigh C.J.
Judgment Date14 May 1970
Neutral Citation1965 WJSC-SC 811
CourtSupreme Court
Date14 May 1970
Docket Number16-1969
Relihan v. Kerry County Council
Thomas Relihan
Kerry County Council

1965 WJSC-SC 811




14th May, 1970


Appeal by defendants from High Court (Teevan J.) finding that plaintiff was holder of a permanent office of Clerk of Works with County Council. Appointed in 1951 for period of 6 months to be renewed. No renewal orders made from 1951 until 1964 when County Manager made order purporting to continue "temporary employment" of plaintiff. Similar orders made thereafter. In 1964 County Council decided to create four permanent posts and intimated they wished plaintiff to be appointed to one of these posts.


Judgment of Ó Dálaigh C.J. (nem. diss.) - Whole basis of appointments system set up by County Management Act, 1940is that appointments are placed in hands of County Manager who can act only by order (section 19). No order made appointing plaintiff.


Allow appeal. Set aside order of High Court - enter judgment fordefendants.


Judgment delivered on the 14th day of May, 1970byÓ Dálaigh C.J.

Ó Dálaigh C.J.
An Príomh-Bhreitheamh.

The plaintiff's claim was for a declaration that he held, under the defendants, the permanent office of Clerk of Works, having been duly appointed thereto in or about the month of February, 1951. Mr. Justice Teevan made the declaration sought. The defendants have appealed.


This matter commences with the insertion by the defendants of a notice in the Kerryman newspaper in the month of September, 1950. The notice was in the following form:

(Housing Section)

The Deputy Kerry Co. Manager invites applications for the post of temporary Clerk-of-Works in connection with the Council's housing scheme. Scale salary £7. 17. 6d. per week rising by annual increments of 10/6d. to a maximum of 9 guineas per week. In addition, a temporary allowance of 7½% of the salary will be paid together with travelling expenses and subsistence allowance in accordance with regulations. The Person appointed will enter the appropriate point on the Scale calculated according to his experience. Applications, stating age, qualifications, Professional or otherwise, and experience, should reach the undersigned not later than 11 a.m. on Wednesday, 20th September 1950.






Co. Council Offices,




The plaintiff saw the notice and wrote applying for the post. By letter dated 9th November he was summoned by the County Council to an interview, and he heard nothing further until he received from the County Engineer a letter dated 17th February, 1951. The letterread:

"Dear Sir,"


I wish to refer to your recent application and to say that I am directed to offer you a post as Clerk of works at a salary of eight guineas per week, rising by annual increments of one guinea to ten guineas per week subject to satisfactory services. The position will be terminable by one week's notice on either side. The post subject to satisfactory service, as already mentioned, is however, likely to be of long duration. Copy of the duties is enclosed.


Would you please let me know by return the earliest date in which you would be in a position to take up duty at Killorglin where you should see Mr. P. Howard, B.E. at the Office of the Assistant Co. Engineer, Lower Bridge Street, Killorglin. Mr. Howard will give you further, details of your duties on the contract which is just being commenced atKillorglin.


Yours faithfully,


C.A. Warner


Co. Engineer."


The copy of duties enclosed was a copy of Appendix b to a circular issued by-the Minister for Local Government on 6th October, 1950. It is headed "Duties of resident engineer or clerk of works". It says nothing of either permanent or temporary officers; in its terms it could be applicable to either.


Mr. Relihan replied to this letter on 21st February accepting the post and, on 23rd February, he took up duty. He received no pay at the end of the first week, butduring the second week he was paid. With the pay order he says he received two other documents. He identified one document as a copy of an order by the County Manager dated. 1st December, 1950. That order was in these terms:


"I. W. F. QUINLAN, Deputy County Manager, in pursuance of the County Management Act, 1940, do HEREBY ORDER, as follows:-


No. 1173


That the person named in Column 1 be appointed as Clerk of works under the Council's Housing Programme as and when required at salary indicated in Column 2.

Column 1

Column 2.

Thomas A. O'Connor, 28 New Buildings, Ballytruckle Rd.,Waterford.

10 guineas per week

Thomas Relihan, 16, Michael's St., Waterford.

8 guineas per week rising by annual increments of 1 guinea to 10 guineas p.w. subject to satisfactory service.

Mr. Richard Cusack, 1, James St., Tralee.

8 guineas per week rising by annual increments of 1 guinea to 10 guineas per week, subject to satisfactory service.


Made at Killarney on the 1st December, 1950 at


12.35 p.m.


(Signed) W. F. QUINLAN


Deputy County Manager."


As to the identity of the second document which Mr. Relihan asserted he received along with his first pay order, Mr. Relihan said that it was a letter, or a copy of letter, from the Minister of the Department of Local Government (as he put it) "sanctioning him as clerk of works to the Kerry County Council". This document wasnot forthcoming at the trial. It was, Mr. Relihan said, lost when his office was blown down in a gale on St. Stephen's Day 1951. Mr. Justice Teevan thought Mr. Relihan must have been wrong about the nature of this second document, and he appears to have accepted the suggestion, made on behalf of the defendants, that the document in question was in fact a copy of an order made by the Minister, dated 22 September 1950, headed "office of temporary resident engineer or clerk of works", which I shall refer to later.


Mr. Relihan, since his appointment, has continued to serve the County Council as clerk of works on their several housing schemes; and the issue, as Mr. Justice Teevan succinctly put it, is whether he is, as he claims to be, a permanent, pensionable officer, or, as the defendants say, a temporary officer.


The circular letter of the Minister for Local Government, dated 6th October, 1950, already referred to, opens by stating that for the convenience of local authorities the Minister wished to set out in one circular the conditions governing the recruitment and appointment of temporary resident engineers and clerks of works. It will suffice to quote clauses 2 and 8 of the letter:

"2. As from the date of this circular letter the Minister's approval to undertake a scheme of works may also be taken to include, or to have included, his approval to the appointment, where a local authority thinks it necessary, of a temporary Resident Engineer or Clerk of Works for the supervision of that scheme. Temporary, appointments should be in accordance with the qualifications and particulars of office set out in appendix "A" to this circular letter. In such circumstances, therefore, temporary appoint-ments of the kind may in future be Made be without reference to the Department provided the appointments are in accordance with the terms of this circular letter."

"8. A list of the duties of resident engineers and clerks of works is given in appendix "B" attached. This list Is intended to serve as a guide to local authorities and to persons appointed as Resident Engineers or Clerks of Works..."


The appendix "B" above referred to is a statement of duties, a copy of which was forwarded by the county engineer to the applicant in his letter of 17 February, 1951. Appendix "A", which is of greater interest, is a copy of an order of the Minister for Local Government given under the Minister's seal on 22 September, 1951. It is headed "Office of temporary resident engineer or clerk of works. Particulars of Office." It states the appointment shall be made as the result of an interview and the final clause reads:

"The appointment is for a period, which may be renewed, of not more than six months, and will be terminable at any time subject to one week's notice on either side."


No renewal orders were in fact made by the County Manager in respect of Mr. Relihan's office from 1951 until 1964. In the latter year it came to the notice of the present County Manager, while examining claims for increase of salaries, that no renewal orders had been made; he thereupon, on 9th April, 1964, made such an order purporting to continue "the temporary employment" of Mr. Relihan and others as clerks of works until 30th September, 1964; and thereafter, from time to time he made similar orders.


The County Council next took a hand in the matter. On14th December, 1964, by resolution, they decided to create four permanent posts of clerks of works, and they intimated they wished the four temporary officers, as they described them, to be appointed to these posts. The plaintiff, Mr. Relihan, and his three colleagues, were dissatisfied with this proposal and they took legal advice; and on their behalf their solicitor protested against "this illegal attempt to convert their offices into temporary offices." The next step was this action, seeking a declaration that the plaintiff held, under the defendants, the permanent office of clerk of works.


As I have said Mr. Justice Teevan made the order sought. The ratio of Mr. Justice Teevan's judgment is contained in the last two pages of his judgment. He says:


"I accept the submission that, in the circumstances of this case, I should construe the Order apart from the a advertisement. This was not on the terms of the order of appointment in a temporary employment. If not, and if some essential element-some statutory condition to validity - is lacking for a permanent appointment, then the plaintiff's...

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