(iii) &nbbp;&nnbp;&&nbp;;&nbp; ;&bspp;&bssp;&bbsp; &bsp; &nTsp; that UBL P SERCICE CICE COMMISSION acted in
brea the of Nl Justice in reaching its said decision;
(iv) &nnbsp;; &nsp; &nsp; &&nsp; &nbbp;&nnbsp;&nbp; &nbp; &nbssp; &&nsp;;&nsp; &nbp; &nnbp;& Thp; the said decisdecision of
the PUBLIC SERVICE COMMISSION is arby, caous, r, unreasonable, irrational and discrimiy. <
(v) &nbssp; &nsp; &nbbp;&nnbsp; &nbbsp; &nbp; &nbp; &nbssp; &&nsp;;&nsp; &nbp; &nnbp;& Thp; the PUBLICICE CICE CSION d to
give ns fo saidsion and acted contrary to the legitimate exte expectations of the Applicant;
(vi) p;&nbbsp; &bspp; &nbs; &nbs; ;&nbpp; &nnsp;&&nsp; &nbp; &nbbp;&n&np;;p;&nThat UBLICUBLICICE COMMISSION in reaching
the said decision took iook into anto accounccount irrt irrelevaelevant considerations and failed to take into account relevant considers;
(vii) p; &nnsp;&nbp; &nbs; &nbbp;&nnbsp; &nnbsp; &nsp; &nsp; &nbss;&nbbsp; &nsp; That the PUBLIC SERVICE SSMMISSION
had permine matertaining to the Applicanrminaof apment from the Public Service.vice.
About the applicant
The Affidavit filed in support of Application for Leahich said affidavit was used during the hearing) gives deta details pertaining
to the applicant, and the circumstances leading to his termination are also set out therein.
Briefly, the salient facts are as hereunder in so far as they are relevant to the determin of the issue before me.
The applicant was appointed a clerical officer in the Ministry of Education on probation for 12 months from 11 May 1992. He understood
a letter of r of confirmation would be forthcoming as there were no adverse reports on him about his work. On 8 November 1993 h
chargcharged on two counts for criminal offences in the Suva Magistrate's Court being criminal case No. 2451/93. Whereupon on vember
1993 h993 he was interdicted by the PSC because of the said charges having been laid against him. On 5 January 1995 he wquitcquitted
of the charges when the Court upheld a "no case to answer" submission.
Thereupon the learned counsel for the applicant wrote to PSC and the Solicitor-General requesting them to reinstate the applicant.
After numerous correspondence the PSC finally on 1 November 1995 wrote to the applicant conveying the said decision.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The Respond reply
In reply to the applicant's affidavit, MELI BAINIMARAMA the Permanent Secretary for the PSC in his affidavit sworn 5 June 1996 does not dispute most of the facts except to say that the
applicant "never received any favourable reports from his superior officers" and that as a matter of practice "the PSC had never had any policy" to reinstate an officer on interdiction following acquittal on criminal charges. He deposed that SC &quo>"normally takes actions in such circumstances pursuant to Regulation 53 of the Public Service Commission (Constitution)
Regulations, 1990."/span>
Consideration of the issue
Mr. Sharma in his oral submission argued on some of the matters referred to in his grounds of relief (supra) with particular reference
to Regulations 21, 23, 24, 25 and 53. He argued that the proc lare laid down in the said regulations had not been followed at all;
also that regulation 53 entitled the applicant to be reinstated.
He submitted that in view of theged breaches of the said regulations the applicant seeks relief.
Mr. Nakora for the PSC does not dispute the facts. He con, wheed by Court, tht, that the procedure laid down by the the said regulations
have not been followed. He further admits thateports have been prepared on the applicant as required under the regulations contrary
to whto what Mr. Bainimarama stated namely thatapplicant "never received any favourable reports".
The Law
This is an application for judicial review of the sacision of the PSC. It is a procy which the Hihe High High Court exercises its
supervisory jurisdiction over the proceedings and decisions of inferior courts, tribunals and other bodies or persons who carry out
quasi-judicial functions or who are charged with the performance of public acts and duties. The PSC is one sody whose hose decisions
are amenable to judicial review.
In a judiciaiew the Court's function is to review not the merits of the decision in respect of which thch the application for judicial
review is made, but the decision-making process itself. In CHIEF ABLE OF THE NOHE NORTH WALES POLICE v EVANS, [1982] UKHL 10; (1982) 1 WLR 1155 at 1174 LORD BRIGHTMAN said: "Judicial review, as the words imply, is not an appeal from a decision, but a reof the manner in which the the decision was
made". BeI consider the case befo before me it is also pertinent to bear in mind by all those who have cast upon them the duty to make
decisions the following words of LORD HAILSHAM in EVANS
"This remedy, vastly increased in extent, and red, over a long period in recent years, of infinitely more more convenient access
than that provided by the old prerogative writs and actions for a declaration, is intended to protect the individual against the
abuse of power by a wide range of authorities, judicial, quasi-judicial, and, as would originally have been thought when I first
practised at the Bar, administrative. It isintended to take away away from those authorities the powers and discretions properly
vested in them by law and to substitute thrts as the bodies making the decisions. It is intended to set that the relevant aunt authorities use their powers in a proper manner."
(underlining mine for efor emphasis)
Applicability to the case
Having stated what the legal principles applicable to judicial revre I shall now consider the Regulations which empower the Pthe PSC
to deal with the position which the applicant held.
It is under thePUBLIC SERVICE COMMISSION (CONSTITUTION) REGULATIONS (1990) (FRG 18 Dec. 1991) (referreferred to as the "Regulations") that the PSC acted in this case. These Regulations made by e by the PSC in the exercise of the powers conferred upon it by Section
157(1) of the Constitution and are deemed to have come into force on 25 July 1990.
It is abundantly clear from the unded facts that the PSC had in breach of the relevant regulations, namely, Regulations 21, 231, 23,
24, 25 and 53 annulled the applicant's appointment and refused to reinstate him after his acquittal on criminal charges without specifying
any reason whatsoever.
The Regulations which have not been complied with are as hereunder.
Regulation 21 provides for perioperiod of probation on first appointment as follows:
"Except as otherwise provided in this Part, an officer on appointment to the Public Service shall be required to sero serve
on probation for a period of one year.
/p>
Provided always the Commission may at any time in writing confirm or annul the appointment to the Public Slic Service of any probationer."
I agree with Mr. Sharma that the words "at any time" in the proviso mean within the said period of one year or any extended period under Regulation 24 and not as was done in this case.
Regulation 23 provides for the nthe need for confidential reports on officer on probation in these words:
"(1) The Permanent Secretary or Head of Department shall submit to the Secretary confidential reports on an officer on probation
as follows:
(a) aifrest tmonthmonths before the period of probation expires;
&nbs>
(b)   &nbssp; >se one> one month before the period of probation expires.
/p>
(2) In the secoport the Permanent Secretary or Head of Department shall make a firm recommendation:span>
(a) &nbbsp;&&nsp;; bsp; bsp; thp; that the officer be confirmed in the appointment;
(b) that tri peof d obatron beon be extended; or
(c) & p; &nsp; tsp; that the appointmf thof the officer be terminated."
(underlining mine for emphasis)
The applicant's probation would have expired on 11.5.93. By that there no reports orts on h on him at all. Nor was the probationary
deriod extended in terms of Regulation 24 which is as follospan>
 an>
"Before any recommendation is made to the Commission for the extension of the period of probation of an officer or for the termination of his appointment, the Permanent Secretary or Head of Department shall inform the officer of this recommendation and of the specific reasons thereof and he shall invite the officer to submit within 14 days of the date of
receipt of such notice any representations he may wish to make."
(underlining mine for emphasis)
There was no confirmation s appointment which could have been done under Regulation 25 which provides as follows:
"25 - (1) if, after consideration of the secoport of the Permanent Secretary or Head of Department, the the Commission is satisfied
that the service of an officer on probation has been satisfactory and that the has passed such service examinations as may be necessary,
the Commission shall confirm his appointment."
The applicant continued to be employed without formal confirmation until 22 November 1993 when he was interdicted and then finally
on 1 November 1995 his appointment was terminated which is some two years after interdiction and about 11 months after his acquittal.
For some reason the PSC did not terminate him, if it could, immediately after his acquittal although it was aware of the outcome of
the case.
The learned counsel for the Respondent concedes that the requirements of the above Regulations not followed before interdnterdiction
which took place after the expiry of the said one year period and before termination.
Mr. Nakorld not explain to Court why the applicant was not even reinstated when there is clear proviprovision in that regard in Regulation
53 which provides:
"53. An officer ated of > of a criminal charge in any court shall not be dismissed or otherwise punished in respect of any charge of which he has been acquitted, but nothing in this regulation shall prevent his being dismissed or otherwise
punished in respect of any other charge arising out of his conduct in the matter, unless such other charge is substantially the same as that in respect of which he has been
acquitted."
(underlining mine for emphasis).
It is clear that the applicant cannot be "dismissed or otherwise punished" subject of course to the proviso. The applicant's case becomes even stronger when one reads Regulation 54 which provides that even
on conviction a lesser punishment could be inflicted by the PSC.
The law in this case is limited. ssue is confined to a very very narrow compass. It isctual factcomplete dite dise disregard of
the provisions of Regulation 53 which has given rise to disappointment and unhappiness of tplicaspan>
In the light of the chronology of events outlined above and in the face of the clear mandatory provision in Reg. 53 the applicant
was dismissed which shows that there has been procedural impropriety which has led to manifest unfairness in the decision-making
process.
Conclusion
lang=EN-GB style="font-famt-family: Times New Roman">
The Respondent cannot hope to have its decision upheld on the facts of this particularly when it disregisregarded its own Regulations
and is guilty of being procedurally unfair. The manner in which the docision was arrived at leaves much to be desired. The Regulatioe
meant to beto be adhered to and all I can say is that I fo understand why the PSC acted in this manner to the detriment of the applicant.
>
In all the circumstances of this case I have no diffi whatsoever, with the Respondent's counsel in effect concedonceding, in deciding
that the applicant was unfairly and unlawfully terminated from employment as a result of sheer disregard of its own Regulations on
the part of the PSC. Where a decision has tmade made, such as the present one, it is vitally important that the steps leading up
to that decision should be manifestly fairhe party concerned.
<1"> I cannot leave this subject without commenting that it would have saved a waste of public funds if the officers dealing with matters
of this nature paid greater attention to the Regulations. Also, whateveal advice thee the PSC gets should be such that it is proper.
Hl concerned been more vige vigilant and careful, matters would not have come to this pass ring in judicial review with the consequent
loss of time, efe, effort and money in deciding something which should have been as clear as crystal to the decision-makers.
In the outcome, I allowed the application for judicial review and declared that the applicant was nlidly dealt with by the Rese Respondent
before being terminated from employment after his acquittal on the criminal charges. Thision should therefore bore be quashed.
I therefore made the following orders:
(b) & an order of mandamusdamrecdirecting the Public Service Commission to forthwith reinstate the applicant to his former position.n>
(c) an order that thataphe canlicant be paid arrears of salary from 22 November 1993 that is the time of interdiction to date
of reinstatement.
(d) & p;&nbbsp; bsp; anp; anp; an order that the respondent pay the costs of this action to be taxed if not agreed.
I agreed not to make an ordero damages in this case until I had given counsel an opportunity to address should he wish tish to pursue
this.
D. Pathik
Judge
At Suva
14 June 1996
Hbj0004j.96s
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