(3) No person shall be employed for a longer period than six months without the prior approval of the Coion.’
This Regulation on the other hand, enables the temporary appointment of a person (whatever the age) where `... the prompt despatch of ... business ... renders temporary assistance necessary ...’ and where such assistance cannot be `arranged from other Departments’. Such an appointment however, if it is to be longer than six (6) months, requires `... the prior approval of the Commission’ and not otherwise.
In the present case the second respondent categorically deposed that PSC approval was soug relation to `the inte interested party’, presumably because the proposed temporary appointment was to be in excess of 6 months and indeed the same was granted for 12 months. Nothing has been deposed however as to what efforts were made (if any) to obtain the necessary assistance `from other Departments’.
Finally Regulation 28 provides :
`An Officer
(a) ;&nbssp; shall ball ball be required to retire on attaining the age of fifty-five years;
Provided however that where it is considered appropriate in the opinf the Commission or the Permanent Secretary or Head of Depa Department
that an officer who has attained the compulsory retiring age should regardless of his age be retained to ensure the prompt despatch
of his Department’s business then, the Commission may retain the services of the officer. The conditions upon which such offer shall
be made shall be in accordance with regulations 17 and 18 of these Regulations.’
This Regulation couched in mandatory terms, plainly establishes a compulsory retirement age of fifty five (55) years for officers employed in the public service and imposes a duty on the PSC to require such an Officer to retire subject only to a narrowly circumscribed discretion `(to) retain the services of the officer’.
I am satisfied that in the given circumss this was the Regulation which the second respondent primarily had in mind when shen she sought the retention `of the interested party’ beyond her normal retiring age. In particular, the `proviso’ thereto, which plainly empowers the retention of a retiring officer under certain prescribed circumstances.
In this latter regard the conditions-precedent to the exercise of the discretion /span>
(1) &nbbsp; &nsp; &nbbp;&nnbp;& &nb/span>The offe officer bcer being considered for retention `has attained (not is about to attain)
(2) &nnsp;&&nsp;&nbp;;&nbpp;&nbp; The tioenof a retirretiree `is considered appropriate in the opinion of the Commission or the Permanent Secretary ...’ (presy in bsence of a suitably qualified already serving non-retiree) ;
<
(3) ; &nnsp;&&nsp;;&nbp; &nbp; Tpanretention is being sing sought `to ensure the prompt despatch of (the) Deent’sness’/b> [>Note/i> :similarity in this wording tong to that that contained in Regulation 18(1) abo> above].
In regard to conditions (2) & (3) above the second respondeposed that she `... considered it necessary to reta retain Mrs. Rasolo to ensure that the Northern Office continues to function effectively ...’
and whatsmore `... (she) did not consider that there was anyone else capable of carrying out the duties which (Mrs. Rasolo) performs’. The applicant has sought to challenge both considerations but I am satisfied that it is `the opinion of the ... Permanent Secretary’ which is relevant and no sufficient grounds have been raised by the applicant to successfully challenge the bona fides of the decision in that regard.
There is a stronger basis however hallenging the second respondent’s decision as not complying with condition (1) abov above insofar as the second respondent’s decision to retain `the interested party’ was plainly taken and approval sought almost six (6) months before she `... had attained the compulsory retiring age’.
After due consideration however I am satisfied that this argument has only a sucial attraction in so far as Regulation 28 would be d be rendered unworkable if consideration (not decision) could not be given to the retention of a retiring officer before such officer attained the retiring age and instead, had to wait until after the officer had in fact already attained it.
Needless to say Regulation 28 does not in terms say that an officer shall automatically ceashold office upon attaining ning the compulsory retiring age only that
he `shall be required to retire’ which might be considered a less certain state of affairs.
Furthermore it is undoubtedly a general rule of construction that a `proviso’ is intended to operate by way of qualification on, or exception out of, something which would otherwise be within the ambit of the
substantive or enacting provision : No - Nail Cases Pty. Ltd. v. No - Nail Boxes Ltd. (1944) K.B. 629 at 637. Plainly the `proviso’ to Regulation 28 is intended to operate in that classical manner in regard to officers who have attained the compulsory retiring age.
Even if the second respondent’s decision (which is not clearly the subject of challenge) could be considered unlawfully pre-mature
(which I doubt), the same cannot be said of PSC’s approval letter which expressly operates `... from 17.2.99' which is the day after the interested party `had attained the compulsory retiring age’.
Accordingly it cannot be said that PSC’s`the interested party’ was ultra vires the Public Service Commission (Constitution) Regulations. The first ground for review is dismissed as being without merit.
The applicant’s second ground is clearly framed onassumption that the retention of `the interested party’ was taken pursuant tont to Regulation 18 of the Public Service Commission (Constitution) Regulations 1990 which imposes an additional duty on the part of the appointing authority to, at least, first attempt to obtain the necessary temporary
assistance `... from other Departments’.
With all due regard to counsr the applicant the assumption is misconceived and unsound for the following reasons - firstly the express power to retain a retiring officer is to be found in the `proviso’ to Regulation 28 and not in Regulation 18 ; and secondly, although Regulations 17 & 18 are mentioned in the `proviso’ that reference is necessarily limited and confined to the form and conditions under which the decision to retain (properly taken
under Regulation 28) is to be effected i.e. they are mechanical rather than empowering.
Regulation 18 in my considered view db>not empower the retention of a retiring officefficer rather, it envisages the appointment of a temporary assistant additional to the
existing staff which is clearly not the present case.
ass=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> Had the decision to retain been taken under Regulation 18 there would be some substanceounsel’s submissions but siut since it was not, this ground of complaint must be dismissed.
Even if it could be argued (which I do not accept) that in utilising Reion 18 there was an additional duty imposed to first sest seek assistance from within the public service, the categorical assertion of the
second respondent `... that there was (no one) else capable of carrying out the duties which (the interested party) performs ...’ is, in the absence of clear persuasive evidence, a complete answer.
Finally the applicant complains that inexercise of her regulatory discretion the second respondent `breached (his) his) legitimate expectation to be considered and consulted relative to the post’. This is said to arise in part from the principle enumerated in Section 140(b) of the 1997 Constitution requiring appointments and promotions within the public service to be `on the basis of merit’.
State Counsel in rejecting this submission writes :
`... that section is concerned with appointments and promotions. It is established law that there can be no legitimate expectation
of appointment or promotion : Anuradha Charan v. PSC Civil Appeal Case No.2 of 1992.
The regulations with which this case is concerned are adminiive in that they allow for the efficient administration of n of the civil
service. There can be no implied duty on a Permanent Secretary to consult with a subordinate member of staff on an administrative
matter, if there were then the task of managing the civil service would be virtually impossible.’
In this latter regard, in Anuradha Charan v. PSC Civil Appeal No. 2 of 1992 (unreported) thFiji Court of Appeal inb> in rejecting the `so-called’ distinction for judicial review purposes between `administrative’ and `judicial’ decisions said (at p.22):
`There is no magic in the description of the decision being administrative in char. The attempt in many cases to distinguish between
adminisministrative and judicial decisions and in some way to exclude the former, is a misunderstanding of judicial review. Many
administrative acts require the exercise of a discretion and may therefore be subject to the same requirements as more obviously
judicial decisions.’
In the present case although I reject counsel’s categorisation of the nature of thesion envisaged under the `proviso’ to Regb>Regulation 28, nevertheless, I am satisfied that the only expectation that the applicant can reasonably have or entertain in the matter, is that, in the exercise of her discretion the Permanent Secretary must be satisfied that the retention of the retiree `would ensure the prompt despatch of the Department’s business’.
p class=MsoNormaNormal style="text-align: justify; margin-top: 1; margin-bottom: 1"> Regulation 28 nowhere provides for or envisages any consultation process or procedure nor does it expressly require the exclusion of serving officers
within the Department and it would be a quite unreasonable fetter on the Permanent Secretary’s discretion for this Court to require
the same.
Whatsmore the Fiji Court of Appeal in rejecting the applicant’s claim in the above cas a right to be appointed oned on promotion to a vacancy in the public service
said (at p.19) :
`Nowhere have we been shown a provision of the law to support such a rignd, indeed, we would be startled had the appellant been abln
able to do so. Clearly the Commission must observe the proper rules and procedures in seeking and considering applications for vacancies.
In so doing they must evaluate evidence of all aspects of the candidates abilities, qualifications and attitudes. Having done so,
they are left with a discretion to decide the suitability of the candidate for the post under consideration. That discretion must
include the right to decide, if based on proper grounds that despite fulfilling all the stated qualifications, the candidate may
still not be suitable. There may be many reasons why a particular person should not be appointed despite suitable qualifications
on paper and there is no right of automatic appointment in the event that no other qualified person applies.’
A fortiori where the appointment is a temporary discretionary one ostensibly made .. to ensure the prompt dest despatch of (the) Depnt’s business ...’ ...’ a matter upon which the Permanent Secretary must be considered the person best suited to assess.
ass=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> For the foregoing reason(s) this third and final `ground’ is also without meritan>
The applicant having failed on all t(3) grounds of complaint, the application is accordingly dismissed.
D.V. Fatiaki
Judge
At Suva,
29th 2000.
HBJ0013J.99S
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