In re Application by Lochan [1998] FJHC 38; Hbj0018d.1997s (25 March 1998)

Fiji Islands - In re an Application by Lochan - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

JUDICIAL REVIEW

ACTION NO. HBJ0018 OF 1997

IN THE MATTER of an Application by SASHI MAHENDRA LOCHAN
of Nasinu, Assistant Registrar of Titles (The Applicant)
for LEAVE to apply for JUDICIAL REVIEW

AND

IN THE MATTER of a Decision of the PUBLIC SERVICE COMMISSION
made the 26th day of March, 1997
First Respondent

AND:ATTORNEY GENERAL OF FIJI
Second Respondent

AND

IN THE MATTER of the Public Service Act, Cap. 74
and the Public Service Commission (Constitution) Regulations 1990,
Section 124 of the Constitution of Fiji and
Section 7 of the Land Transfer Act Cap. 131.

V. Maharaj and S. Chandra for the Applicant
K.T. Keteca for the Respondents Dates of Hearing and Submissions: 2nd, 22nd, 29th October, 26th November 1997
Date of Interlocutory Judgment: 25th March 1998

INTERLOCUTORY JUDGMENT

This application for leave to apply for Judicial Review raises a pure question of law namely whether the First Respondent had any legal right on 26th March 1997 to immediately post the Applicant to the Ministry of Youth, Employment Opportunities and Sports from his position as Assistant Registrar of Titles to which he was appointed by the Judicial and Legal Services Commission on 21st of May 1993. The Applicant had previously been appointed Deputy Registrar of Titles by the Attorney-General of Fiji under Section 7 of the Land Transfer Act Cap. 131 from the 8th of May 1987.

The question of law is whether the First Respondent had any right to transfer or post the Applicant at all or whether this right rests solely with the Judicial and Legal Services Commission. It is common ground that by notice in the Government Gazette of the 11th of April 1997 the Applicant's appointment as Deputy Registrar was revoked with effect from 27th March 1997.

The Applicant claims that his transfer or posting to the Ministry of Youth, Employment Opportunities and Sports on a day's notice effectively amounted to his removal from the position of Assistant Registrar of Titles.

The only other relevant common ground between the parties is that the Applicant was appointed by letter to the Civil Service on the 22nd of October 1974 as a Probationary Clerical Officer Class II. I will refer briefly to that letter later.

It appears from the affidavits filed on behalf of the Respondents that the reason why the Applicant was posted to the Ministry of Youth, Employment Opportunities and Sports was as a result of allegations of malpractices against officers of the Titles Office to allow the Police to carry out investigations. The affidavit of Shiri Chand the Acting Director Personnel for the Public Service Commission sworn on the 29th of August 1997 says in Paragraph 4, "That in view of the serious nature of the allegations keeping the officer in the Titles Office would have been detrimental to good administration".

In paragraph 5 of his affidavit Mr. Chand says, "The Applicant will return to the position of Assistant Registrar of Titles if he is cleared of the allegations". Mr. Chand exhibits to this affidavit a copy of the Applicant's Letter of Probationary Appointment and says, "The Public Service Commission is not obliged to give reasons when posting officers from one Department to another because the appointment letter that officers sign when accepting their appointments clearly states that the Government of Fiji reserves the right to post them at any time to any station or place as it thinks fit".

I make two comments about that statement, first the letter is not a letter of appointment but only of probationary appointment and second no where in it does it state in terms that the Government of Fiji reserves the right to post the Applicant at any time to any place to which it thinks fit. Presumably however it may be inferred in that the letter states the Applicant will be subject to the provisions of the General Orders one of which is 305 which says every officer agrees that the Government has the right to employ him or station him where ever his presence is considered necessary.

Section 124(1) of the 1990 Constitution vests in the Judicial and Legal Services Commission the power to make appointments to certain offices and to remove and to exercise disciplinary control over persons holding such appointments including that of Assistant Registrar only in the Judicial and Legal Services Commission.

Section 127 vests in the Public Service Commission the power to make appointments to public offices and to remove and exercise disciplinary control over persons holding such appointments to all persons except, so far as relevant here, Section 127(4)(d) namely any office appointments which are within the functions of the Judicial and Legal Services Commission.

The Respondent argues that Section 124(1) does not cover temporary posting to another Department which is the function only of the Public Service Commission. Although this is only an application for leave to apply for Judicial Review it is only fair that I should say here and now that I cannot accept that claim. Both sections of the constitution are in identical terms and I see nothing in Section 127 which gives the Public Service Commission any right to transfer or even temporarily post any employee validly appointed by the Judicial and Legal Services Commission as is the case of the Applicant. Various other arguments were advanced to me in the lengthy written submissions made to me by the parties but as the Applicant has only at this stage to establish an arguable case for leave to apply for Judicial Review I am satisfied that he has done so.

In my judgment the power to appoint and remove must by implication include the power to transfer or post temporarily. I should also add here that unless the Respondents can make further submissions on the substantive motion persuading me that I am wrong in the views I have just expressed I should be disposed to make an order for Judicial Review on the substantive motion.

In view of the proposals over the last few years to abolish the application for leave in Judicial Review cases and my general support for such proposals I should say that in my opinion this is an excellent example of a case where the Court should be allowed to deal immediately with the substantive motion and, indeed, the merits of the case. It seems to me reading the submissions of the Respondents that they will very likely have nothing more to add on the substantive motion but as to this only time will tell.

There is one final comment which I feel compelled to make here and that is on the justification claim by the Respondents for purporting to transfer the Applicant. In this regard the Respondents base themselves particularly on regulation 39(1)(a) of the Public Service Commission (Constitution) Regulations 1990 which reads:

"When the Commission becomes aware of any act of indiscipline or misconduct and the Commission is of the opinion that the public interest or the repute of the Public Service requires it, the Commission may:

(a) transfer the officer to other duties.

The Public Service Commission appears to think that this gives it the right to transfer any employee against whom an allegation of malpractice have been made. In my judgment it does no such thing.

Under regulation 39, in my view before any employee can be transferred to other duties there must be a known act of indiscipline or misconduct by that employee. The mere suspicion or allegation of such is in my view inadequate because it appears to carry with it the view that suspicion or allegation are enough. So to hold would be a direct negation of all principles of fairness which the Constitution of this country professes to uphold.

The order I make therefore is that the Applicant is given leave to apply for Judicial Review. Costs will be in the cause.

JOHN E. BYRNE
JUDGE

Legislation referred to in Interlocutory Judgment:

1990 Constitution Sections 124 and 127.

Public Service Commission (Constitution) Regulations, 1990.

The following cases were referred to in argument:

HBJ No. 5 of 1997 State v. The Permanent Secretary for Education, Women & Culture Ex-parte: Bijay - unreported judgment of Pathik J. of 15th April 1997.

State v. Minister of Immigration Ex-parte: Kaisiepo - unreported judgment of Pain J. dated 8th February 1996.

M. v. Home Office and Another [1993] UKHL 5; (1994) 1 A.C. 377.

Vermeulen v. Attorney-General and Others (1986) LRC (Const) 786.

Hbj0018d.97s