The Gazette 1974

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