State v Decision of the Permanent Secretary for Agriculture, Fisheries and Forests, Ex parte Nandlal [2000] FJHC 118; Hbj0039j.1999s (3 November 2000)

Fiji Islands - The State v The Decision of the Permanent Secretary for Agriculture, Fisheries and Forests, Ex parte Nandlal - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

ass=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> JUDICIAL REVIEW NO: HBJ 39 OF 1999

STATE

-v-

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DECISION OF THE PERMANENT SECRETARY span>

AGRICULTURE, FISHERIES & FORESTS

ex parte SATYA NANDLAL

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Mr H. Nagin for Applicant

Mr S. Sharma for Respondent

Hearing: 25^th October 2000

Judgment: 3^rd

rd November 2000

JUDGMENT

The Applicant, a Senior Fisheries Officer at the Ministry for Agriculture, Fisheries and Forests, seeks to review two decisions of the Permanent Secretary for the Ministry. On 30^th June the Permanent Secretary appointed one Malakai Tuiloa as Principal Fisheries Officer. On the same day, he appointed one Aisake Batibasaga as Senior Fisheries Officer. The Applicant who had applied unsuccessfully for both posts, applies for certiorari to quash those decisions, mandamus directing the Permanent Secretary to appoint the Applicant, a declaration that he acted unfairly, in breach of the Applicant’s legitimate expectations and in abuse of discretion, and costs.

The Facts

The Application, which was filed on 30^th September 1999, is supported by the affidavit of Satya Nandlal. Leave was grant 4^th November 19er 1999, and the Respondent filed the Affidavit of Sereani Bainimarama on 28^th December 1999. The Applicant then filed the further affidavit of Satya Nandlal on 2^nd February 2000. Counsel for both parties then filed written submissions.

The positions of Principal Fisheries Officer (Tech Services) and Senior Fisheries Officer (Mariculture) were both advertised on 30^{th November 1998.}

The Principal Fisheries Officer post was advertised as follows:

“Day to day supervision of all technical service administration activities including sdevelopment, development ofnt of budgetary control, budget submission and co-ordination of activities in Central, Eastern, Western and Northern Division, supervise Management and Planning of Vessel, ice-plant, machineries, maintenance and operations, supervision of indents and all T/S purchases, local purchases, supervision of maintenance vessel, vehicles, machineries and rural vessel repairs and maintenance including Prejab Quarters and Fisheries Jetties. Any other duties as maybe directed by Director Fisheries.

Qualifications: An officer of high calibre. Qualifications required for appointment as Senior Fior Fisheries Officer and at least 3 years service in that grade or equivalent. Consistently good reports and ability to manage staff and resources. Must have demonstrated intellectual capacity, drive, determination and flair in existing grade.”

The Senior Fisheries Officer post was advertised as follows:

“Supervise and administer mariculture programmes which includes Giant Clam Project - Makogai, Pearl Oyster - Savusavu, Seaweed Project - Fiji wide, Turtle Project - Makogai, Trochus Project - Makogai, Bech-de-mer Project - Makogai, compile project reports, prepare budgetary requirements for the mariculture programme, control the distribution of funds to various projects, design applied research projects to support development, initiate culture programmes that have the potential to further development into sustainable industry, provide training to local staff on new techniques in aquaculture, any other duties assigned by Manager CDF Aquaculture or Director Fisheries.

Qualifications: Qualifications required for appointment as Fisheries Officer and at least 3 years service in that grade or equivalent. Consistently good reports and assessed potential and ability to progress beyond Senior Fisheries Officer.”

The Applicant applied for both posts. On 10^th Aug999, he was told that the post of Principal Fisheries Officer had been filled by the promotromotion of a Senior Fisheries Officer, Malakai Tuiloa. On the same day he was told that the position of Senior Fisheries Officer had been filled by a Fisheries Officer, Aisake Batibasaga. The Applicant wrote to the Public Service Commission appealing against the decision to promote Malakai Tuiloa. The Public Service Commission, in a memorandum dated 10^th August 1999, responded as follows:

“Your appeal against the appointment on promotion of Mr Malakai Tuiloa torincipal Fisheries Officer (Technical Services) with effectffect from 30/6/99 is disallowed on the grounds that the decision was made by the Permanent Secretary for Agriculture, Fisheries and Forests following the Ministry’s Staff Board Meeting held on 30/6/99.

Please be advised that the Appeal Board only consider any appeals over the decisions of the respective service commissions on prom promotions effective from 1/7/99 and thereafter.”

On 16/8/99, the Applicant received a memorandum from his immedsuperior Esaroma Ledua. He advised the Applicant to take the matter further within the Mini Ministry saying “To be frank, I am somewhat shocked by the decision of the staff board and I would encourage you to seek further clarifications from our Director and Permanent Secretary or PSC.”

According to the affidavit of Sereani Bainimarama applications were received for each of the posts by 21^st December 1998. The appe applications were referred to the Staff Board for assessment. The Staff Board did not meet until 30^th June 1999. When it met it considered all applications and noted that since the Applicant had not been appointed Senior Fisheries Officer, he had not served 3 years as a senior fisheries officer or equivalent and that he did not satisfy the minimum qualification requirement for the post. Ms Bainimarama says in her affidavit that the Staff Board took into account the Applicant’s academic qualifications, his competence, the ethnic composition of the Fisheries Department and the merits of his application. At paragraph 13 she says:

“The position of Principal Fisheries Officer (technical services) is a very senior pon, and after viewing all apll applications, the Staff Board was of the opinion that Mr Tuiloa was the applicant who was best suited for the position. The Staff Board also fully considered the ethnic composition of the Fisheries Department. However, as the two applicants who met the minimum qualification requirements were ethnic Fijians, the Staff Board could not possibly recommend a person of another ethnic background, when that person did not meet the minimum qualification requirements.”

In respect of the Senior Fisheries Officer post, she says:

ass=MsoNormoNormal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> “Mr Nandlal’s application for Senior Fisheries Officer (mariculture) was considered along wther applications in line wine with the Respondent Ministry’s procedures and policies on promotion. However, the Staff Board did not recommend Mr Nandlal as he was not the best applicant in the field of mariculture. The unanimous view of the Staff Board was that Mr Batibasaga was more qualified and most meritorious on the field of mariculture.”

The Staff Board minutes for the 30^th June 1999 shows that all members of the Staff Board were of ethniian background. Item 6(e) a(e) and (f) are economical in their terms. They read as follows:

“The Board recommended that Senior Fisheries Officer, Malakai Tuiloa be appointed on promoti the post of Principal Fish Fisheries Officer (Technical Services).

The Board recommended that Fisheries Officer, Mr Aisake Batibasaga be appointed on promotion to the post nior Fisheries Officer (Mar (Mariculture).”

The minutes which are neither signed nor dated, were according to Ms Bainimarama, endorsed by the Permanent Secretary. It appears that he did so between 30^th June and 14^th July 1999 and instructed Ms Bainimarama to issue letters of appointment. These were issued on 14^th July 1999, but back-dated to 30^th June 1999, and 3^rd December 1997 respectively. The Respondent has not provided evidence of the work history of either of the two successful Applicants.

However, the Applicant’s curriculum vitae, which is not disputed by the Respondent, shows that he has been emplot the Ministry of Fisherieseries since April 1981, that he holds a Diploma in Tropical Fisheries from the University of the South Pacific, a Bachelor of Science in Biology and Chemistry for the University of the South Pacific in 1993, a Masters Degree in Applied Sciences from the Queensland University of Technology in Australia in 1998, and numerous certificates in fisheries, project planning, finance and business management from other institutions. The Applicant was seconded to the Tilapia Genetic Project in 1993 on a salary equivalent to a Senior Fisheries Officer, and acted as Senior Fisheries Officer on numerous occasions from 1993 to 1997.

The Application

The grounds for judicial review are as follows:

span lang=EN-GB> 1) &nbssp; &nsp; &nbbp;&nnbsp; &nbbsp; Tpan>That the Respondent acted unfairly when making both decisions;

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i) &nnsp;&nbp;&&nbp;;&nbpp;&nbp; ;&nspp; failing to p to properly exercise his discretion;

ass=L stylrgin-tgin-top:-top: 1; m 1; marginargin-bott-bottom: 1om: 1"> ii) &nnsp;&&nsp;;&nspp;&nssp;&nsp; &nbsp ; unlawfdlly delegatlegating his powers to the Staff Board;

ass=L stylrgin-top: 1;p: 1; marg margin-boin-bottom: 1"> iii)  p;&nbbsp;&&bsp; &bsp; &nbbp;&nnbsp;

iv) &nbbsp; &nnbsp; b/span>taking iing into acto account irrelevant considerations;

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v) & p; &nsp; &nsp; ;&nbpp; &nnsp;&&nsp; not taknng icco account relevant consideration;

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vii) ;&nspp;&nssp;  p; &nbp; nbsp;nbsp; faili givo give reasons for the decisions.

Counsel for the Applicant submits that the decisions were arrived at unfairly. He submits that the Permanent Secretary approved the Staff Board decisions without exercising his own independent discretion, that such approval amounted to an unlawful sub-delegation of his powers to appoint, that the Staff Board minutes failed to disclose the decision-making process, or reasons for the decisions, that the affidavit of Sereani Bainimarama showed that section 140 of the Constitution was not considered because the Applicant, did not satisfy the minimum qualification requirement of the Principal post, that the ethnic representation of the Department was not considered at all for the Senior post, that no weight was put on the Applicant’s graduate and post-graduate qualifications, nor on the recommendation made by the Director of Fisheries. He also submitted that the date of appointment may have been deliberately back-dated to 30^th June 1999 to avoid the appeal process, which only applied to decisions made on or after 1^st July 1999.

In response, counsel for the Respondent said that this application soug review both decisions on their merits. He said that judicial review was a review of the dehe decision-making process, and that the court could only look at the procedures that had been followed and not the decisions themselves. He submitted that the Staff Board had considered qualifications, experience and the ethnic composition of the Department in making both decisions. He submitted that it was for the Staff Board, acting in an advisory role to the Permanent Secretary, to give weight to these matters and that the Board preferred to give weight to experience over qualifications or ethnic background.

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Procedural Unfairness

Although counsel for the Respondent submits that this review application is involved with the merits of the decisions, this is not correct. The Applicant is also alleging procedural unfairness.

The first claim is that the Permanent Secy who is the appointing authority, did not exercise a discretion at all. The Staff Board sard sat on 30^th June 1999. The decision was either made on the same day, suggesting (the Applicant says) a “rubber-stamping” of the Staff Board minutes which dealt with 33 posts, or was improperly back-dated to 30^th June 1999 to rule out the possibility of an appeal.

The affidavit of Sereani Bainimarama is unhelpful as to the date on which the Permanecretary made his decision pursuant to the powers given to n to him by Legal Notice 138 of 1997, and to Section 127(3) of the 1990 Constitution. In Sherina Begum Khan -v- The Permanent Secretary for Public Service Commission & Others Civil App. No. ABU0003 of 1998S, the Fiji Court of Appeal said at page 8, in respect of a delegated disciplinary charge:

“The Director appointed a Staff Board to assess the charges. We seeing wrong in his using his department’s resources in this whis way to assist in determining their truth and the assessment of any penalty, so long as it is made clear that the decisions reached are his own after due deliberation, and that he did not merely rubber-stamp the Board’s conclusions. We think he has dealt with this adequately in his affidavit, thus answering the allegations of bias and pre-determination raised in the application.”

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Assuming that the decision to appoint was made on 30^th June 1999, what did the Permanent Secretary have before him to allow him to make a decision? He may have had the Staff Board minutes (although we do not know when they were typed since the Respondent has submitted an unsigned and undated copy to the court) and he may have had the applications of all relevant Applicants. Did he read them? If he only had the Staff Board minutes, could he have been aware if the relevant matters had been taken into account? Could he have known that the Applicant’s years as acting Senior Fisheries Officer, and at the Tilapia Project at Senior Fisheries Officer salary, had not been taken into account in assessing the minimum qualification requirement? Could he have known that section 140(d) of the 1997 Constitution was deemed to be irrelevant because the only applications considered as satisfying the MQR were two Fijians?

The Staff Board Minutes are silent on the decision-making procehey are silent on the question of the minimum qualification requirement. They are silent onnt on the date they were given to the Permanent Secretary. They are silent on the reasons given for the decision. They are silent on all matters except for the result of the deliberations of the Staff Board.

Furthermore, the Permanent Secretary has not sworn an affidavit explaining the reasons for his decision to endorse the Staff Board recommendations. Paragraph 22 of Ms Bainimarama’s affidavit is of questionable weight. It reads:

“On or about 14 July 1999, the Permanent Secretary informed that he had perused all the applications for the positions of Principal Fisheries Officer (technical) and Senior Fisheries Officer (mariculture), and agreed with the recommendations of the Staff Board that Mr Tuiloa be appointed as Principal Fisheries Officer (technical services) and Mr Batibasaga be appointed as Senior Fisheries Officer.”

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Firstly, given the silence of the Staff Board minut the reasons for the decisions, the Permanent Secretary might have exercised his discretionetion afresh. If he did, we do not know the reasons for his decision.

If he did not then he simply agreed with the rendations of the Staff Board without exercising his own discretion. If the former is the pohe position, his decision is questionable for failure to give reasons. If the latter is the position, his decision is ultra vires for failing to exercise a discretion vested in him by the law.

There is, of course another possibility. That is, the Permanent Secretary read the minutes and the application, asked for the Staff Board to prto provide reasons for its decision, agreed with those reasons (being the reasons set out in Sereani Bainimarama’s affidavit) and endorsed those decisions. If this was the position (and we do not know) than the decision to appoint was made after 30^th June 1999, and the decision to back-date his decision to the 30^th of June was made in error. Unfortunately, there is no affidavit filed to explain when, why and how the Permanent Secretary’s decision was made.

The Court of Appeal in Pacific Transport Company Ltd. -v- Mohammed Jalil Khan Civil Appeal No. ABU0021 of 1996S considered the effect of a public body failing to give reasons, where there is no statutory requirement to do so. At pages 16, to 20, the Court considered the judicial shift towards requiring administrative bodies to give reasons for decisions in New Zealand and England. It cited with approval the dicta of Bisson J in Baker -v- Public Service Appeal Board (1982) 2 NZLR who said:

“... although there is no statutory duty nor common law duty foro give reasons, reasons are desirable, and in some instancetances its failure to give reasons may cause this court to intervene on the grounds that without giving its reasons the Appeal Board cannot be seen to have been acting within its jurisdiction.”

The Court of Appeal held that the Transport Board should have given reasand that “the failure to do so indicates that the TCB did ndid not necessarily determine whether there were good reasons for its conclusions.”

There may be some cases where, even in the absence of stated reasthe reasons for a decision are self-evident. This is not one of them. The Respondent has noas not provided any evidence that the matters considered by the Staff Board, were considered by the Permanent Secretary. The minutes are unhelpful and disclose no reasons at all. In the absence of reasons, and in the absence of any evidence that the Permanent Secretary considered any of the relevant matters pertinent to the appointment, the Respondent cannot demonstrate that there were good reasons for the decision at all. It follows that I am not satisfied that the Respondent properly exercised the statutory discretion vested in him.

For these reasons, the decisions to appoint Malakai Tuiloa and Aisake Batibasaga to the ions of Principal and Senior Fisheries Officer are ultra vira vires for failure to give reasons, and failure to exercise a statutory discretion.

Unreasonableness

The Applicant also says that the decisions to appoint Malakai Tuiloa and Aisake Batibasaga into the positions adsed, were unreasonable in t in that they failed to take into account relevant matters and took into account irrelevant matters.

In so far as reasons were given, they were given for the recommendations of the Board, and were not communicated to the Permanent Secretarretary. In respect of the Principal Fisheries Officer post, the reasons for rejecting the Applicant’s application were that the Applicant had not served as a substantive Fisheries Officer for three years or more, that his post as Project Officer for the Tilapia Project was not equivalent to the Senior Fisheries Officer post, and that therefore his ethnic background, and his graduate and post-graduate qualifications were of limited relevance.

In respect of the Senior Fisheries Officer post, the Board decided that an applicant ofyears experience with mariculture was to be preferred over over the Applicant’s experience and qualifications.

Lord Greene in Associated Provincial Picture Houses Ltd. -v- Wednesbury Corporation7) 2 ALL ER 680, said at p.482:

“The exercise of sudiscretion must be a real exercise of the discretion. If in the statute conferring the disc discretion, there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion, it must have regard to those matters. Conversely, if the nature of the subject-matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question, the authority must disregard those irrelevant collateral matters.”

In Secretary of State for Education aience -v- Tameside Borough Council (1997) AC 1014 Lord Diplock said that a court ofrt of law cannot substitute its own decision for the decision of the Secretary for State. The question for the court is whether the Secretary had considered all relevant matters. At p.1064, Lord Diplock said:

“Or put more compendiously, the question for the Court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?”

Of course in this case, we do not know what the Permanent Secretary considered, beyond the bare bones of the recdation of the Staff Board. ard. We do however know what the Staff Board considered.

The relevant considerations for the appointing authority to consider are set out in section 140 of the 1997 Constitution, an terms of the advertisementement as published.

Section 140 of the Constitution provides as follows:

“The recruitment of persons to a starvice, the promotion of persons within a state service and the management of a state servicervice must be based on the following principles:

(a)&nbbsp; &nnsp;&&nsp;;&nspp;&nssp;&nsp; gpan>govet poniciesicies should be carried out effectively and efficiently with due economy;

;

(b)  p; &nnsp;&&nsp; &nbp; &nbbp;&nappointmentsments and promotions should be on the basis of merit;

n> (c) & p; &bsp; &nbbsp; men and and women omen equally, and the members of thnic groups, should have adequate and equal opportunities for training and advancement;

(d) &nnbsp; &nnbsp; &nbp; &nbp; the cotiosiof the sthe state service at all levels should reflect as closely as possible the ethnic composition of the populattake countn appropriate, of occupational preferences.”

The Principal Fisheries Officer post was advertised as ring an officer of high calibre, qualifications to be appointed as Senior Fisheries Officerficer and at least 3 years service in that grade or equivalent, consistently good reports, ability to manage intellectual capacity, drive, determination and flair. Posts in research areas required graduate or higher qualifications.

There is no dispute that the Applicant’s application satisfied the requirements of the advertisement, except for the service for 3 years at Senior Fisheries Officer or equivalent. In her affidavit sworn on 28^th December 1999, Ms Bainimarama says that the Applicant had not served as a substantive Senior Fisheries Officer for three years and that he therefore “did not meet the minimum requirements of the position of Principal Fisheries Officer.” In this earlier affidavit Ms Bainimarama does not discuss the three years served by the Applicant as an Acting Senior Fisheries Officer nor the time spent by him on a salary equivalent to that of a Senior Fisheries Officer, as Head of the Tilapia Project.

It would appear from the words “or equivalent” in the advertisement, that service of this nature, whether within or outside of the public service, is a relevant consideration in the recommending of appointments to the post. If the only persons qualifying for the Principal Fisheries Officer are those who have served as substantive Senior Fisheries Officers for at least 3 years, this would rule out persons applying from the private sector, or persons acting as Senior Fisheries Officer for more than 3 years, or persons (such as the Applicant) who had been seconded by the Ministry to projects relevant to the Ministry and for whom salaries had been fixed by reference to salaries within the Ministry. This cannot have been the intention of the public service when it used the words “or equivalent” in the advertisement.

Furthermore, although Ms Bainimarama states the recommendation of the Director of Fisheries was considered, the Respondent has not seet seen fit to disclose this recommendation to the court. Was it disclosed to the Permanent Secretary? What did it say? Did it refer to the application of Mr Tuiloa at all? Given the specific reference to “consistently good reports” in the advertisement, and the Applicant’s claim that Mr Tuiloa’s performance in the Ministry has previously been open to question (Annexure C to the Applicant’s affidavit of 29^th September 1999) the recommendations of the Director are highly relevant, but have not been disclosed.

Finally, what of ethnic representation? Section 140 of the Constitution is clear in its terms. The purposthe section is to ensure thre that appointments are made on merit, but that the need to have a public service which is representative (ethnically) of the community is also taken into account. The purpose of the section is to enhance public confidence in the public service whose duty it is to serve the public.

However appointments cannot be made on ethnic background alone. Merit is clearly the predominant principle in section 140. However the appointing authority must in choosing between equally meritorious individuals, consider the ethnic make-up of the Ministry. The Respondent appears to concede this in the affidavit of Sereani Bainimarama, at paragraph 13. However, the Respondent also appears to say that since Mr Tuiloa’s application was more meritorious, the ethnic composition of the Department became irrelevant.

If this is so, why did the Staff Board consider ethnic composition at all? The Staff Board minutes st that ethnic composition was not considered for any of thef the 33 posts dealt with on 30^th June 1999. Furthermore, unless the Staff Board provided ancillary evidence to the Permanent Secretary, on the ethnic breakdown of the Department, such evidence would not have been disclosed to him either. It is certainly not disclosed to the court. In the interests of transparency and fairness, it would be advisable for the Staff Boards of the public service to refer, where relevant, to the ethnic and gender composition of the Department at all levels in the minutes, and to provide such a breakdown to the appointing body before a decision is made. It should certainly be disclosed in the course of court proceedings where the Applicant has raised gender or ethnic bias. It is further suggested that, to avoid the suspicion and perception of bias, Staff Boards should be gender and ethnically balanced in their membership.

To return to the case before me, it is not a clear whether ethnic parity was considered by the Staff Board, and if it was, whether it w it was considered before the Applicant was ruled out as failing to satisfy the minimum qualification requirements (when it would have been irrelevant) or after (when it would also have been irrelevant).

In all the circumstances, I find that thef Board failed to consider whether the Applicant’s duties as Acting Senior Fisheries Officefficer, and as Project Head of the Tilapia Project satisfied the minimum qualification requirement. I also find that the racial composition of the Department is irrelevant in assessing merit, and that insofar as the Staff Board appears to have considered that, they did so prematurely.

Furthermore, the failure to properly consider the application, the failure to consider iloa’s performance record, the failure to disclose the reas reasons for its decision to the Permanent Secretary, the failure to disclose the Director of Fisheries recommendation, and the failure to provide a gender/ethnic breakdown of the Department to the Permanent Secretary, lead me to the conclusion that the Staff Board acted so unreasonably that no reasonable person would be expected to so act. And, insofar as the Permanent Secretary adopted the Staff Board’s decision to appoint Mr Malakai Tuiloa, that appointment is ultra vires and null and void. It is quashed accordingly.

The Staff Board acted even more unreasonably with the Senior Fisheries Officer post. The Applicant states that he was Mr Aisake Batibas supervisor. However the Sthe Staff Board said that Mr Batibasaga was better suited to this position because he had over 10 years experience in the field of mariculture and “had performed exceptionally well in various mariculture projects around Fiji.”

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Did the Staff Board consider the fact that the Applicant had managed and supervisedculture projects since July 1993? Did it consider that the the Applicant had been acting as Senior Fisheries Officer (Aquaculture) and that he had supervised Mr Batibasaga? It appears not. Furthermore, if the Applicant and Mr Batibasaga both qualified for the position, was section 140 of the Constitution considered? The affidavit of Sereani Bainimarama is silent on this point. If the Constitution was considered for a post for which the Applicant allegedly did not qualify, why was it not considered for the post for which he did qualify?

The information in the affidavit filed by the Resnt poses more questions than it answers. I find that the Staff Board failed to consider relr relevant matters in considering appointment to the Senior Fisheries Officer post, and acted unreasonably and unfairly. The decision insofar as it was adopted by the Permanent Secretary was unfair, unreasonable, ultra vires and invalid. I quash it accordingly.

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Legitimate Expectation

Although legitimate expectation is a ground for this application for review, counsel in his submissions did not amplify this issue. The principle of legitimate expectation:

“.... is that a person may, in certaicumstances, have a legitimate expectation as to procedures to be followed by an admi administrative decision-maker prior to a decision being made. The expectation relates to a privilege, advantage or benefit to which there is no legal right.”

(Pacific Transport Company Ltd. -v- Khan (suprap.9)

It is not apparent on the affidavit evidence, whether a representationmade to the Applicant in respect of the way his application would be processed. It is not snot suggested that he was promised an interview, or that he was told that he would be short-listed for either position. Certainly a recommendation made by the Director of Fisheries, to the Staff Board, could not have given rise to an expectation that his application would be successful.

This ground is therefore unsuccessful.

Conclusion

For the reasons given in this judgment, on the groundprocedural unfairness and unreasonableness, the decisions to appoint Aisake Batibasaga to t to the position of Senior Fisheries Officer, and Malakai Tuiloa to the position of Principal Fisheries Officer are quashed. The Permanent Secretary must now reconsider the applications, this time taking into account all relevant matters, and disregarding all irrelevant considerations. In the absence of any information as to the other Applicants for the posts, I decline the application for mandamus.

The Respondent must pay costs of $1000 to the Applicant within 14 days.

&nbB>

Nazhat Shameem

JUDGE

At Suva

3^rd November 2000

HBJ0039J.99S