Chapter V. Decisions of Administrative Tribunals of the United Nations and related intergovernmental organizations

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DECISIONS OF ADMINISTRATIVE TRIBUNALS OF THE UNITED

NATIONS AND RELATED INTERGOVERNMENTAL ORGANIZATIONS

1. Decisions of the Administrative Tribunal of the United Nations2

   1. JUDGEMENT NO. 343 (3 JUNE 1985): TALWAR V. THE SECRETARY-GENERAL OF THE UNITED

      NATIONS3

      Extension of appointment beyond retirement age—Staff regulation 9.5 and General Assembly resolution 33/143—Precedents cannot be established through the exercise of discretionary and exceptional powers

      The Applicant, a former UNICEF staff member, had claimed the right to be retained in the service of UNICEF beyond the age of 60, relying on a memorandum in which his supervisor recommended such extension and on the fact that other such extensions had been granted to UNICEF staff members. He also asserted that he needed the extension for certain humanitarian reasons.

      The Tribunal did not contest the merits shown in the Applicant's record or the humanitarian factors that might exist in his case but stated that it was bound to point out that those reasons were irrelevant as far as extensions beyond the 60-year age limit were concerned. It observed that extensions beyond the age of 60 were governed by staff regulation 9.5 which provided that: "Staff members shall not be retained in active service beyond the age of sixty years. The Secretary-General may, in the interest of the Organization, extend this age limit in exceptional cases."

      In the opinion of the Tribunal, such "exceptional cases" had been defined by the General Assembly in section II, paragraph 3, of its resolution 33/143 of 20 December 1978 as those in which a suitable replacement for the retiring staff member had not been found, a process which should not normally go beyond six months.

      The Tribunal stated that in the Applicant's case suitable replacements had easily been available and, as a consequence, there appeared to be no need for an extension, in spite of the Applicant's excellent record and of the humanitarian reasons that might have been argued in his favour.

      The Tribunal could not concur with the Applicant's view that the granting of extensions beyond the 60-year age limit to some other staff members had created an expectancy in connection with his own situation, so that any decision in his respect that would differ from those taken in the cases in which extensions were granted would imply discriminatory treatment against him. The Tribunal was of the opinion that extensions beyond retirement age were subject to decisions of an exceptional nature to be taken by the Secretary-General or his representatives, according to their discretion, and as a general rule no exceptional and discretionary decision could create an expectancy. Furthermore, no proof had been provided by the Applicant to substantiate his claim that the decision to put an end to his service at the regular age of 60 had been due to discriminatory reasons.

      The Tribunal held that since under staff regulation 9.5 extensions were only to be granted exceptionally according to the Secretary-General's discretion and within the limits of the decision of the General Assembly, no staff member could normally claim the existence of precedents that could create an expectancy as to his or her continuation in service beyond the normal age limit.

      For the above reasons, all the Applicant's pleas were rejected.

   2. JUDGEMENT NO. 348 (14 JUNE 1985): LUQMAN V. THE SECRETARY-GENERAL OF THE UNITED

      NATIONS4

      Correction of personnel data regarding status—Staff rule 104.4 (a)—Lack of any definite rules

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      or guidelines concerning correction of such data—The Applicant waited too long before requesting the correction

      The Applicant, a former member of UNIDO, had requested recognition of a new date of birth, with concomitant correction of his administrative records.

      The Tribunal observed that there did not seem to be any definite rules or guidelines concerning the correction of basic data such as date of birth which staff members provided for recruitment and personnel purposes. The Tribunal noted, however, that under staff rule 104.4 (a) it was the duty of staff members to supply such information on appointment and that duty imposed on staff members the obligation and the responsibility to make every effort to ensure that the information was correct.

      The Tribunal observed that the Applicant had provided information about his date of birth in 1967 and it was on 21 October 1980 that he had sent to the Administration the memorandum transmitting a copy of the "excerpt of transcript of judgement in lieu of birth certificate" dated 7 February 1980 and requesting a correction of his date of birth. The Tribunal considered that the Applicant had waited too many years before requesting the correction and failed also to give, in his defence, any reason or justification for such a long delay.

      For the above reasons, the Tribunal considered as being without merit the Applicant's request for correction of the date used in his administrative records.

   3. JUDGEMENT NO . 360 (8 NOVEMBER 1985): TAYLOR V. UNITED NATIONS JOINT STAFF PENSION

      BOARD3

      Restoration of prior contributory service—General Assembly resolutions 371131 and 38/233—

      Article 21 ( b) of the Regulations of the United Nations Joint Staff Pension Fund

      The Applicant, a staff member of FAO whose fixed-term appointment had expired in 1982 and had been renewed after an interval of 16 months in 1983, appealed against the refusal of the Joint Staff Pension Board to allow him to restore his former period of contributory service. During the interval in which he was not a Pension Fund participant, the Regulations of the United Nations Joint Staff Pension Fund had been amended by General Assembly resolution 37/131 of 17 December 1982 in such manner as to prevent restoration of the Applicant's prior contributory service, in view of the length of such service.

      The Tribunal, in its majority judgement, considered that the Applicant's period of contributory service, prior to the amendment of the Pension Fund Regulations, had earned him a legal right to restoration of that period, which had not been eliminated by that and a subsequent amendment made by resolution 38/233 of 20 December 1983, since they specifically provided that the amendments were to be without retroactive effect.

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