120 / 300
Mr. Justice Butler said that ordinarily, service to be
a
Pproved, must be given in a recognised secondary
school in Ireland. Accordingly, Father Mulloy would not
Í* entitled to have his teaching service in Nigeria taken
!
n t 0
account for incremental salary purposes. However,
!
n
order to encourage secondary teachers to give service
'«certain under-developed countries in Africa and else-
where, the Department had introduced a scheme under
Much certain teaching service in these countries might
,
e
reckoned as approved teaching service. The condi-
pons under which the scheme operated were embodied
In
supplemental rules for the payment of incremental
a
lary. These rules, and therefore the scheme, applied
°
n
'y to lay secondary teachers.
Mr. Justice Butler said it had not been questioned
, at were Father Mulloy not a religious, the location,
^ r a t i on and type of teaching service he gave in
^Werri was such as might properly be considered by the
e
Partment for the purpose of recognition under the
Su
Pplemental rules.
However, because he was not a lay teacher the rules
'd not apply to him and the Department had refused
ls
claim for consideration under them.
discrimination on Ground of Religious Profession
f a t h er Mulloy had claimed that the rules, by confining
e sc
heme to lay secondary teachers, were repugnant
0
Articles 40 and 44 of the Constitution. His counsel
a
d confirmed his submissions to Article 44 (2), (3),
hich stated that the State shall not impose any disa-
jties or make any discrimination on the ground of
^ •gious profession, belief or status. The argument
a
sed on this provision was that the plaintiff had the
"gious status of a priest, and because of that status he
a s
excluded from having his teaching service in Nigeria
nsidered for the purpose of calculating his incremental
.
r
y under the terms of the scheme. Equivalent ser-
•ce by a lay secondary teacher would qualify for such
tysideration. Therefore, it was submitted, as compared
ll
h a lay teacher he had suffered a disability and was
,s
o subject to discrimination.
Mr. Justice Butler said the question was whether the
stinction between lay and religious persons was a
'uerence in religious status. It was to be noted that in
rticle
44
(2), (3), the concept of religious status was
0
tying other than a question of religious profession
religious belief. These were also mentioned in the
clause and as something different.
^ interpretations possible
Consequently the concept was not merely that of the
^ s e s s i on of
any, or of a particular religious faith, or
ne
> nor of the fact or manner of the profession or
in
SU
°L forth- There remained two possible
ter
pretations : that the concept was of the status of
£ rsons in religion inter se—for example, a professed
r
°ther and a priest or a priest and a bishop, or that it
a
s wider and embraced all the different degrees and
.°nditions of persons in the context of religion. If the
^
ter
s one clearly identifiable difference of status was
e
6veen a lay and religious.
He was of the view that the second broader concept of
ugious status was what the subsection imported. If he
j^
as
correct in holding that the distinction between
V and religious persons was a matter of religious status
rthin the meaning of Article 44, then the plaintiff's
Emission seemed to be both logical and unanswerable,
mattered not, as was urged on behalf of the Minister
and the Attorney-General, and readily accepted by the
plaintiff, that the scheme was designed to help develo-
ping countries by providing an incentive to teachers to
volunteer their services in these countries and that no
such incentive was necessary to secure the services of
missionaries who went because of their vocation and
commitment.
Exclusion as priest unconstitutional
This might explain, but could not justify the exclu-
sion of religious from the scheme, if the exclusion was
repugnant to the Constitution and contravened consti-
tutional rights. Neither was it relevant that under the
rules a teacher had no right to be paid incremental
salary and that every payment was at the absolute
discretion of the Minister. What was in question in the
case was not the right of the plaintiff to be paid incre-
mental salary, but his right to be considered for such
payment on the same footing as a lay teacher in a
position similar to his. What did matter was that
because he was a priest, the plaintiff was excluded from
the terms of the scheme. It was a clear discrimination.
In
Quinn's Supermarket
versus the
Attorney-General,
Mr. Justice Walsh had stated that the State should not
make any distinction on the ground of religious profes-
sion, belief or status. He had also stated that to dis-
criminate in that sense was to create a difference be-
tween persons or bodies, or to distinguish between them
on the ground of religious profession, belief or status.
"It seems to me to be clear beyond argument that the
terms of the scheme confining it to lay teachers does
create a difference and does distinguish between them
and teachers of a different religious status, namely
clerics, such as the plaintiff," said Mr. Justice Butler.
He added that it was also clear that the ground of such
discrimination was the difference in religious status.
Mr. Justice Butler added that for these reasons he was
of opinion, and so declared, that the supplemental rules
for the payment of incremental salary to secondary
teachers were repugnant to Article 44 (2) (3) of the
Constitution in that they were confined to lay secondary
teachers. He added that he was not prepared to make
any further declaration or order, but would give either
party liberty to apply.
[Mulloy v. Minister for Education; Butler J.; un-
reported; 22 March 1974.]
Builder loses appeal over compulsory purchase order.
Case against Corporation and Minister.
The Supreme Court dismissed an appeal brought by
a Dublin builder and company director, Joseph Mur-
phy, of Fitzwilliam Place, against the dismissal by the
President of the High Court of an action in which he
had challenged the making of a compulsory purchase
order in respect of lands in the Poppintree-Balbutcher-
Santry area.
Mr. Murphy had claimed that the compulsory pur-
chase order was
ultra vires
the 1966 Housing Act on a
number of grounds including the following : that prior
to the making of the order "the Dublin Corporation, as
housing authority, had entered into no agreement with
the Dublin County Council for building on the Coun-
cil's land; that the Minister was wrong in confirming
the Compulsory Purchase Order in disregarding the
requirements for such an arrangement, and that he
disregarded the recommendations of the inspector at
100