State v Public Service Commission, Ex parte Subedar [1993] FJHC 121; Hbj0036d.1991s (16 December 1993)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

JUDICIAL REVIEW NO. 36 OF 1991

THE STATE

v.

PUBLIC SERVICE COMMISSION

ex-parte MOHAMMED LATIF SUBEDAR

Mr. R.P. Singh for the Applicant
Mr. A. Cope for the Public Service Commission

RULING

This is an opposed application for leave to issue judicial review against a decision of the Public Service Commission (P.S.C.) transferring the applicant pending a decision on his application for a post in which he was co-acting and which was of a higher grade than that to which he was being transferred to within the public service.

There can be no doubt and indeed it is conceded that the applicant has "... a sufficient interest in the matter to which (his) application relates". The application for leave is nevertheless opposed on 2 grounds namely, "delay" and "non-reviewability".

As to the first, learned counsel for the P.S.C. chronicled the sequence of court dates and submitted that there had been "undue delay" in this case in circumstances that are "detrimental to good administration".

In particular counsel referred to the decision complained against having been taken on the 4th of September '91 and communicated by telephone to the applicant on the 6th of September '91 and although counsel accepts that the present application was filed on the 17th of September '91 (i.e. within the 3 months limitation period provided in Order 53 r.4(2)) nevertheless, the subsequent failure of the applicant to prosecute or pursue his application for leave has given rise to "undue delay" so as to disentitle the grant of leave to the applicant.

Counsel for the applicant however submits that the words "undue delay" occurs in Order 53 r. 4 in the following context:

"... where a court considers that there has been undue delay in making an application for judicial review or, in a case to which paragraph (2) applies, the application for leave under rule 3 is made after the relevant period has expired, the Court may refuse to grant - (a) leave for the making of the application, ..."

Furthermore "paragraph (2)" refers to an application for 'certiorari' (which is the remedy being sought by the applicant) and "three months" as being the relevant period within which the 'application for leave' must be made.

In the circumstances counsel submits there has been no 'undue delay' in seeking the leave of the Court to apply for judicial review.

I agree with this latter submission and would only add that in my view Order 53 r.4 draws a distinction for the purposes of 'delay' between 'an application for judicial review' (which is governed by Order 53 r.5) and 'an application for leave' to apply for judicial review (which is required in terms of Order 53 r.3) where the relief sought is "an order of certiorari".

Furthermore although counsel for the P.S.C. has referred to the delay being "detrimental to good administration" no specific 'detriment' was alluded to nor is any plainly obvious to the court. I also note from the applicant's supplementary affidavit filed on 15th October '91 that as from the 27th of September '91 he "began to report for duties ... as requested by the (P.S.C.) in its letter of 4th September '91". There is no substance in this first ground of opposition.

As for the more substantial second ground counsel for the P.S.C. submits that with the passing of the Fiji Service Commission and Public Service (Amendment) Decree No. 10 of 1987 the 'right of appeal' of a public servant against appointments, promotions, gradings and transfers was effectively abolished and since then has not been restored. In these circumstances the applicant it is submitted has no 'arguable case' and the court cannot grant leave to apply for judicial review. I cannot agree.

It is true that the existence of a statutory appeal procedure is a proper factor to be considered by the court in the exercise of its discretion whether or not to grant relief by way of judicial review but conversely, the absence of such an alternative does not mean that the courts are rendered powerless to provide a remedy by way of judicial review in an appropriate case. A much clearer statutory intention is required in this latter instance to oust the court's jurisdiction.

It is necessary to consider further the scheme of legislation since 1987 and in particular any legislation since the coming into force of the 1990 Constitution which expressly provides in Section 127(2):

"No appeal shall lie against decisions of the Public Service Commission with respect to matters concerning appointments, promotions and transfers."

Even so, Regulation 19 of the P.S.C. (Constitution) Regulations, 1990 which was made by P.S.C. in the exercise of powers conferred on it by Section 157(1) of the Constitution specifically provides in relation to 'transfers' within the public service as follows:

"(2) Where the Commission proposes to transfer an officer, the Commission shall, except where the exigencies of the service do not permit, make an order of transfer in writing and shall give not less than 28 days notice to an officer who is to be transferred.

(3) An officer who is aggrieved by an order under sub-regulation (2) may make representations to the Commission for a review of the order within 14 days of the issue of the transfer notice; and

(4) The Commission shall consider the representations of the officer and shall communicate its decision in writing to the officer within 14 days from the date of the receipt of the representations and such decision shall be final."

It is clear from the above Regulation that provision is specifically made for addressing any grievance an officer may have in regard to his transfer within the public service.

In this case it is also clear that the procedure followed by the P.S.C. in transferring the applicant failed to comply in several respects with the notification requirements of its own Regulation.

For instance, the P.S.C. notification of its decision to transfer the applicant is dated the 4th of September '91 and was to take effect 5 days later on the 9th of September '91. It was in clear breach of the '28 days notice' requirements of Regulation 19(2). No reason has been given for the transfer nor has reference even been made to any "exigencies of the service".

Whatsmore the applicant's not unexpected 'grievance' regarding his 'sudden' unexplained transfer was communicated in writing to the P.S.C. by memoranda dated the 9th and 11th of September '91 but to date, and in clear breach of Regulation 19(3), the P.S.C. has not communicated its decision on the applicant's representations.

I accept that P.S.C's letter of 4th September '91 is entitled "POSTING" but that cannot and does not alter the substance or effect of the P.S.C's action which entailed nothing more nor less than the transfer of the applicant to a post in another Ministry.

Nor can the appearance of 'finality' in the P.S.C's letter exclude the 'statutory rights' given to the applicant by Regulation 19 nor excuse the P.S.C. from complying with the mandatory requirements contained therein.

In the circumstances the P.S.C. having prima facie failed to comply with the statutory processes and procedures laid down in a Regulation made by itself, this court has no hesitation in granting the applicant leave to apply for judicial review of the decision of the P.S.C. contained in its letter of 4th December 1991.

For the sake of completeness I should point out that I have read the Fiji Court of Appeal decisions referred to by counsel for the P.S.C. but have found them of little assistance on the facts of this case and at this particular stage of the proceedings.

(D.V. Fatiaki)
JUDGE

At Suva,
16th December, 1993.

HBJ0036D.91S