In re Fijian Teachers Association [1998] FJHC 162; Hbj0010d.1998s (24 November 1998)

Fiji Islands - In re Fijian Teachers Association - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

JUDICIAL REVIEW

ACTION NO. HBJ0010 OF 1998

IN THE MATTER
of an Application by the FIJIAN TEACHERS ASSOCIATION
for Judicial Review

AND

IN THE MATTER
of THE PUBLIC SERVICE COMMISSION
(CONSTITUSTITUTION) REGULATIONS and
THE PUBLIC SERVICE GENERAL ORDERS 1993

BETWEEN:

FIJIAN TEACHERS ASSOCIATION
of 68 Knolly Street, Suva
1st Applicant

AND:

TAMARISI MARAMA YABAKI
of 46 Church Street, Cunningham Stage 1, Tamavua
2nd Applicant

AND:

THE PERMANENT SECRETARY FOR
EDUCATION AND TECHNOLOGY
of Marela House, Suva, Fiji
1st Respondent

AND:

THE PERMANENT SECRETARY FOR THE
PUBLIC SERVICE COMMISSION
2nd Respondent

I. Fa for the Aants Ms N. Basawaiya and A. Rokotinaviti for the Respondents

Dates of Hearing and Submissions: 26th May, 9th, 23re, 3rd July,
4th, 10th and 17th November 1998
Date of Ruling: 24th November 1998

RULING

The Applicants apply for leave to seek Judicial Review of the decision of the 1st Respondent dated on or about the 17th of October 1997 to suspend salary support in the form of leave with pay to the 2nd Applicant while absent at the University of Canberra, Australia undertaking a Master of Education Degree course which she had been awarded in the form of a UNESCO scholarship on or about 12th of June 1997.

The 2nd Applicant is a Senior Education Officer in the Curriculum Development Unit in the Ministry of Education and has been employed as a civil servant for the past 16 years.

The 1st Applicant is a Trade Union whose principal role is to protect the interests of Fijian teachers belonging to it in Fiji.

I accept, and there is no dispute about this, that the Union is recognised by Government to negotiate the terms and conditions of employment of its members and to ensure that its members are dealt with according to law. Prior to Semester II 1997 the Government of Fiji had granted Education Officers who had been awarded UNESCO scholarships leave on full pay but on the 15th of September 1997 the Permanent Secretary for Education and Technology wrote to the 2nd Applicant informing her that as from Semester II 1997 all new awards of this nature were to be subjected to a revised policy of leave without pay In-Service-Training. The letter also informed the 2nd Applicant that she might seek release without salary if she wished to pursue Post Graduate studies.

On the 14th of October 1997 the 2nd Applicant wrote to the Permanent Secretary for Education and Technology stating that she was prepared to accept the scholarship without pay and intended to resume duties again in the year 2000.

In a letter to the Prime Minister dated the 17th of October 1997 the Deputy Prime Minister and Minister for Education and Technology stated that the Ministry considered it prudent and cost-effective at that time to temporarily suspend the salary support to teachers proceeding on long-term In-Service courses. This is the decision of which the Applicants complain and seek leave to quash by Judicial Review.

The application for leave is opposed on three grounds:

(1) That there has been an inordinate delay in applying for relief by the Applicants.

(2) That the grant of leave would be highly prejudicial to the functions and good administration of the Ministry of Education and Technology.

(3) That the Applicants have failed to disclose an arguable case on the merits.

General Order 900 of the Public Service General Orders states so far as relevant that an Officer who is required by Government to undertake a training course or attachment outside Fiji will continue to receive salary and will be paid such allowances and travelling expenses as are appropriate.

The Respondents claim first that the 1st Applicant has no locus standi in this case but argue that even if it has, leave to apply for Judicial Review to both Applicants should be refused because the 2nd Applicant is not required by the Government to undertake the Post Graduate scholarship in Canberra.

On the 4th of November I informed the parties first that I considered both Applicants had sufficient interest in the matter to warrant proceedings being issued and that in the case of the 1st Applicant I was satisfied that Education Officers other than the 2nd Applicant who are represented by the 1st Applicant would also be affected by any decision of the Court if leave were granted to issue a substantive motion for Judicial Review.

I also informed the parties that I considered that there had been no inordinate delay in making the application so that on those two grounds, all other things being equal, I was prepared to grant the Applicants leave to apply for Judicial Review.

However I informed the parties that I was in considerable doubt about the strength of the Applicants' case under General Order 900 because it appeared to me on the material so far provided very arguable that the 2nd Applicant had not been required by Government to undertake her scholarship. I therefore invited further submissions from the parties and gave the Respondents leave to file supplementary affidavits commenting on two further submissions made on behalf of the 2nd Applicant on the 6th of November 1998. These two submissions were first that the Government, upon the 2nd Applicant receiving the scholarship, endorsed and approved of the Applicant's In-Service course. This was shown by paragraph 5 of the 2nd Applicant's affidavit of the 11th of February 1998 in which she stated that upon being advised that she had received the scholarship she informed the Head of her Department who endorsed and approved the Applicant's In-Service training course and recommended that she be granted leave with pay during the tenure of the award. Secondly it was submitted that the Public Service Commission, the principal administrative arm of Government, acknowledges and accepts that all In-Service training must be with salary. Support for this was said to be found in a letter from the Secretary of the Public Service Commission to the Permanent Secretary for Education and Technology dated 3rd November 1997 which was critical of the Department of Education and Technology exceeding its budget and stated that it was re-engaging in the Public Service Commission's super-numerary staff pool for 1997 four named officers.

It was also submitted that under General Order 901 bonding was required for any Officer receiving training at Government expense, including any on aid made available by donor countries and organisations.

In an affidavit sworn and filed on 17th of November 1998 Krish Prakash Singh the Director of Administration and Finance of the 1st Respondent states among other things:

(1) that it is a standard Government procedure for Heads of various Departments to endorse and recommend training courses but that the final decision for approval or refusal is with the Permanent Secretary for Education and Technology;

(2) that the Ministry of Education recognises the in-service training funded by UNESCO as part of the Government's continued training for its teachers but that the programme undertaken by the 2nd Applicant is not a Government priority;

(3) as to the submission by the Applicants that training at Government expense includes "any on aid made available by donor countries and organisations", this refers to aid made available to the Government for the provision of scholarships by donor countries where the Government has used its best endeavours to secure sponsorship for its officers. In this instance the 2nd Applicant on her own initiative applied for and obtained the scholarship in question.

On this further material I am satisfied that the 2nd Applicant was not required by Government to undertake her scholarship and that accordingly if she wishes to do so, in the light of the present policy of the Government, she must do so at her own expense. In my judgment she therefore does not bring herself within the relevant provision of General Order 900 which I have quoted above.

Consequently I find that she has not established grounds for being given leave to apply for Judicial Review and I therefore dismiss the application. There will be no order for costs.

JOHN E. BYRNE
JUDGE

Hbj0010d.98s