State v Public Service Appeal Board, Ex parte Reddy [2000] FJHC 83; Hbj0040j.1999s (17 July 2000)

Fiji Islands - The State v Public Service Appeal Board, Ex parte Reddy - Pacific Law Materials

IN THE HIGH COURT OF FIJI

1"> AT SUVA

CIVIL JURISDICTION

JUDICIAL REVIEW NO: HBJ 0040999

THE STATE

-v-

PUBLIC SE APPEAL BOARD

ex parte MUNSAMY REDDY

Counsel: Mr R. Singh for Applicant

: Mr E. Walker for Respondent

ng: 22^nd June 2000

Judgment: 17^th July 2000

JUDGMENT

On 19^th October 1999 the Applicants applied for leave to judicially review the decision of the Public Service Appeals Board of 10^th October 1999, dismissing the first Applicant’s appeal against the provisional appointment of Ms Elina Raiwalui as Executive Officer, St. Giles Hospital.

The application sought relief as follows:

1. & p;&bssp;&bbsp; &bsp;  &nbbp;&nnbp;& Cpan>Certiorari quashing the decision;

2. &nnsp;&&nsp;;&nspp;&nssp;&nsp; &nbsppan>seclarations that that the decision was null and void and in contravention of the Constit, in h of al ju, madbad fand in excess of jurisdiction, unr, unreasoneasonable and in breach of the Applicant’sant’s legi legitimattimate expe expectations.

At the hearing of the leave application, the Respondents objected to the appearance of the second Appt on the ground that he had no standing. On 3^rd

rdmberember 1999, I found that the second Applicant had no standing and refused him leave. Leave ranted for the firstfirst Applicant only.

The first Applicant then made an application to allow the second Applicant to appear in chambers as his friend. I refused that aationan>

The Respondents then filed the affidaffidavit of Albert Rosa, the Secretary fo Public Service Appeals Board sworn on 17^th Febr February 2000. Finally the Applicaned thed the affidavit of Suresh Charan sworn on 25^th April 2000.

The parties were then given time to file written submissions. pplicant complied. Csp; Counselthe Respondentndents did not, despite asking for, and being given, an extension of time for filing those submissions. It is a m of concern that that the Respondents have failed to comply a court order and that I at I am proceeding to judgment without assistance from State Counsel.

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The facts of the case are that on the 5^th of August 1996, the post of Executive Officer at the St. Giles Hal became vacant. No ; No postis made in resn respect of this position until the 6^th of November 1997, when Ms Raiwalui (the third Respondent) was appointed to act as Executive Officer, by the Public Service Commission.

The post was not advertised until the 22^nd of February 1999. The advertisement stated the person appointed would be responsible to the Medical Supl Superintendent of the St. Giles Hospital for the efficient administratiothe hospital. The officer wouldesponsiblnsible for all staffing matters, and for all all matters relating to equipment, furniture and transport. Qualificatioquired were thre those expected of a Senior Clerical Officer, with a pass in service examination “S”, and at least three years service on that level.

The appointee should have consistently good reports and assessed potential and ability to contribute in a management role.

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The Applicant, who holds the position of Senior Clerical Officer in the Ministry of Health, applied for the pospan>

Interviews were conducted, on 9^th July 1999 by an interview panel up of a Mr Ledua Butukoro, Dr Jude Ohari (the Medical SuperSuperintendent) and a Ms Saras Goundar (Principal Administrative Officer from the Ministry of Health.)

On 9^th August 1999 the Applicant wad that Ms Raiwalui had been appointed provisionally to the post.

The Applicant appealed against the decision of the Public Service Appeals Board. He was requested to fileit written submission and he did so on 17^th September 1999. The appeal was heard on >tsup>th October 1999, and was dismissed on 10^{th> October 1999.}

The affidavit of Albert Rosa states that both parties made oral ssions at the hearing of the appeal. A copy of the submissions of the Ministry of Heaf Health was not served on the Applicant, but it was read out at the appeal, and the Applicant’s representative, Mr Suresh Charan, responded to them.

The Appeals Board had before it, a copy of the Staff Board minutes of 27^th July 1999, whe Ministry of Health had considered all applications. bsp; The SBoard submissionssions, which the Appeals Board also considered, showed the Applicant to be the most senior applicant for the post, with 29 years of service, and 15 years at the grade of Seniorical Officer. In 199n 1996, hiual Confidonfidential Report ranked his performance as outstanding, and stated that he was highly fit for promotion. His subseqACR’s were unavaunavailable. Thlicant was short-listed sted for interview. The other interviewere Mr e Mr Ajay Singh, Ms Kelera Vuadreu, and Ms Raiwalui.

1"> The minutes of the interview (also provided to the Appeals Board) show that the criteria for assessment were:

1. & &nsp; &nbsbsp; &nssp; Knan>Knowledgwledge of the post advertised;

2. &nbs; &nbp; &nsp; &bspp &nbsp&nbbsp &nbs; &nbbsp;

3. &nbbsp; &nbbsp; &nbp; &nbp; &nb/p; Achievements whilswhilst acting on higher level;

 p; &bsp; nbsp;nbsp;&nbsp nnbp;& &nbs; &nbs; &nnbp;& edge of e of PSC ReSC Reform.

&nbspan>p class=MsoNormal style="n-topmargitom: 1"> TheB>The Inte Interviewrview Panel asked the Staff Board to recommend the appointment of Elina Raiwalui. It did so. Tis no record in the minutminutes of these meetings that the Applicant’s previous disciplinary record was considered, or that racial or gender parity in the Ministry was considered.

However in the Ministry’s submissions to the Appeals Board, full reasons for the failure to appoint the Applicant were given.&nbhese reasons were not givengiven to the Applicant before the hearing. Those reasons were that agthough both applicants were almost equally qualified, “Ms Raiwalui has more merit than Mr Munsammy Reddy in terms of academic qualification, her consistently gCR, her proven ability and capability of performing the dute duties of the post in acting capacity and the fact that she is currently acting in the advertised post and the Medical Superintendent is more than satisfied with her performance. She is performie duties ofes of the post effectively and efficiently. She has asant personality lity and her behaviour is exemplary.”

The submission then stated that the Applicant had been charged with Forgery when he was ng as Senior Clerical Officer, Labasa in 1994. The chhe charge een withdrithdrawn by the DPP’s Office for policy reasons, and he had never been disciplined for the alleged offence although the Public Service Commission had recommended disciplinary action.; The submission states:- “s:- “Although the case of forgery was withdrawn by DPP, Mr Reddy’s action in the case shows his lack of maturity, lack of honesty, lacks sense of responsibility, lacks good judgment.”

The submissions stated that when the Applicant had acted as Executive Officer at the Ministry, he had failed to perform well ne of his superiors said thid that he was an 8.00 to 4.30 person, he was not a self-starter and did not use initiative. The Min also took into acco account the fact that the Applicant had not been appointed to the position of Superintendent of the Samabul Peoples Home, which was a much smaller institution.

In its deliberations, the Public Service Appeals Board decided the Applicant had failed to show that he was a better candidate for the post. It is noar what informatiomation the Board relied on in making this assessment, but it appears that weight was put on the Ministry’s subons.

The Board also decided that the procedures followed by the Ministry ofth were not unfair, and that there was nothing improper in the presence of the Medical Supe Superintendent on the Interview Panel, when he was also Ms Raiwalui’s immediate superior.

Finally, the Board decided that racial parity referred to in the Constitution (1997) was a reference to the Public Service generally and not to the position concerned. The appeal was thre dismisismissed.

The same grounds are ventilated in this judicial review application. For the sake of clarityeal deal with them in the categories of procedural ultra vires, and substantive ultra vires.

Procedural Ultra Vires

The Public Service Appeals Board which is provided for under section 151 of the Constitution, gulated by the Public Service Appeal Regulations 1999.&nbsp Thelations generally prescprescribe the way in which an appeal may be lodged, provide for the taking of oral evidence and provide that written reasons for the decision be given to all parties wheappeal has been considered.ered. The Regulations are silent on the service of documents, and the way in which the hearings must be conducted.

Section 26(9) of the Public Service Act 1999 provides:

ass=MsoNormal style="margin-top: 1; margin-bottom: 1">

“In the conduct of an appeal, the Appeal Boa not bound by the procedures, legal forms and rules of evid evidence of a court of law but should -

(a)  p;&nbbsp;&nsp; &nsp;&nnbsp; &nbssp; & accord cord natd natural justice to the parties to the appeal;

n lang=EN-GB>(b)&n;"> ;&nbssp; &nsp; &nsp;  p; &nnsp;& keep a ep a written record of its proceedings; and

ot;">&nbsp &nsp;&nbsp &nbsp &nbssp; &&nsp;;&nsp; &nbp; gpan reveons for its decs decision on the appeal.”

&nbspan> I-GB>In then the absence of specific statutory procedures, the courts (and the Board) must be guided by principles of procedural fairness.

The Applicant’s complaint is that the Ministry’s written submissions were never shown to him before the hearing.&nbspis evident from the minutesnutes of the Appeal Board, that considerable weight was put on these submissions. In particular the nce on t on the merits of the Applicant’s application, can only have been drawn from these submissions because there were no othports about the Applicant’s ability to perform.

These submissions placed heavy reliance on the charge of forgery against the Applicant. Thevance or otherwise of t of this charge is an issue for consideration under “substantive ultra vires”. However the fact that thliApplicant was given no notice of this ground of objectionis appointment until the hehe hearing of his appeal, prejudiced him in the conduct of his appeal. Wiequate notice, he may beay been able to provide evidenvidence of the details of the alleged forgery, and of the role that his superior officer allegedly played . He may have been able to provide correspondence wite with the DPP’s Office (referred to in the DPP’s memorandum to the Public Service Commission), or other documents which might have exonerated him in respect of this offence. As it is, all his representative was able to say on 6^th October 1999, was that the Applicant had never been disciplined for the offence.p class=MsoNormal style="margin-top: 1; margin-bottom: 1">

I note that a number of other documents were considered by the Board, which were not s on the Applicant. Although there was no statutory duty to y to serve these documents on him, it would have been fair to have shown the correspondence relating to the alleged forgery, to the Applicant, before the hearing to give him notice of these matters.

It is clear that the Public Service Act, and the Appeal Regulations set out prres which are not intended to be exclusive. As Lord Dord Diplocd in Hadmor Productions v. Hamilton (1983) 1 AC 191, “... one of the most fundamental rules of natural justice is the right .... to be informed of any point adverse ..at is going to be relied uped upon .... and to be given an opportunity of stating what his answer to it is.”

The alleged offence of forgery was a ground relied upon by the Ministry to appoint a personr than the applicant to the post. This ground featureatured however, for the first time at the appeal hearing, and was not disclosed in advance to the person prejudiced. In the circumstancesnsidersider that the Appeal Board’s failure to disclose theissions in advance, to the the applicant, or to adjourn the hearing to allow him to consider them properly, resulted in procedural uness and is a ground for quor quashing the decision to dismiss the appeal.

Substantive Ultra Vires

The two main issues considered by the Board wer merits of the Applicant’s application, and the consideration of ethnic parity in the civilcivil service.

The Board considered that the Applicant had not shown that his application was more meritorious than Mwalui’s. The Board correctly de “med “merit” as incluincluding suitability, capacity and work-related qualities. However, the ption that that the Board relied on the submissions of the Ministry, which alleged forgery and sub-standard performance is unavoe.

&-GB>

It appears that the Applicant’s recent confidential reports were unavailfor scrutiny. The 1996 report s the Appl Applicant’s performance to be outstanding.&nng. This ot disclosed to the Bthe Board, nor to this court. Yet the Minireferred to a to a report from his superior that his performance was less than satisfactoryp; The two reports are contradictory and called for furtherrther scrutiny. Who made this report? Wasait made in official form? When was it made? The way in which the report was referred to at the hearing of the appeal was questionable.

&-GB>

Furthermore, the alleged forgery offence in 1994 was clearly of no relevance at all. The Applicantnevericted foed for this offence. Thistry decideecided not tnot to discipline him for this alleged offence. The Applicantnever trie thor this offence. The Ministrarly concluded uded (without a hearing) that that the Applicant was guilty of dishonesty anconduct and was therefore unfit for promotion. That conclusion may heen aeen acceptedepted by the Appeals Board although it does not say so in its reasons. HoweverMinistry’s heavy revy reliance on this issue, and the lack of cogent evidence provided on tplicant’s work-performance,ance, suggests that the alleged offence was an important factor in the dismissal of the appeal.

Suspicion of a criminal or disciplinary offence is clearly an irrelevant factor in considethe appointment of a person to a post in the civil service.vice.

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> I consider therefore that weight was put on an irrelevant consideration which would, even without procedural impropriety, justify the quashing of the decision.

Bias

The Applicant also argues that the interview panel was biased because the Medical Superintendent sat on it. The Ministsubmi shows that that the Mthe Medical Superintendent did recommend Ms Raiwalui’s performance. She hted as Executive Offi Officr almost two years.

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It would have been preferable if the Superintendent who had,ffect, become a referee for one of the applicants, to have refrained from taking part in thin the decision-making process. Howehe test for bias is whis whether an informed observer would reasonably apprehend bias, or consider that there was a real danger as in the circumstances (Amina Koya -v- The State Criminal Appeal No. CAV 000V 0002/97). I note that the Superintt dent sat in a panel of interviewers, that all interviewees were asked similar questions, and that there was a grading system.& I note also that the decision to appoint Ms Raiwalui was the subject of recommendation by n by the Staff Board submissions even before the interview was held.

In these circumstances I do not consider that ths evidence of bias on the basis of the presence of the Medical Superintendent on the panel.anel.

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The Constitution

Section 140 of the Constitution provides:

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

(a) &nnsp;&&nsp;;&nspp;&nssp;&nsp; &nbp; an>gpvernment policies shou should be carried out effectively and efficiently and with due economy;

&nbspan> (b) &nnsp;&&nsp;; sppoinppointments and promotions should be on the basis of merit;

p class=Level3 stylestyle="margin-top: 1; margin-bottom: 1"> (c) &&nsp;;&nspp;&nssp;&nbssp;&ssp; nbsspan>men and women equalequally, and the members of all ethnic groups, should have adequate and equal ounitir tra and cemenpan> &-GB> nbsp;

(d) ;&nbssp;&bbsp; &nbssp; &nbp; the sitiosition of the state service at all levels should reflectloselpossihe etcompon of opulation, taking account, when appropriaopriate, ote, of occf occupatiupational onal prefepreferences.”

The obligation on all state services to apply these principles, is mandatory. Iteflected in the publisublisublic Service Circular (ann (annexed to the affidavit of Munsamy Reddy).

The Applicant submitted to the Appeals Board, that the Ministry failed to consider section 140(d) of the Constitution when it appointed a Fijian to a post in a Ministry which already employed 70% Fijians, to 30% Indians at Executive Officer level.

Section 140 of the Constitution appears to strike a balance between the pluralist approach to ethnicrsity, and the assimilationist view. The pluralistic stic approach is that in an ethnically diverse society, a uniform application of the law can result in serious inequalities. These inequas intensify sofy social and economic disadvantages and calldifferential treatment to a to achieve genuine equality. The assimilist approach dech demands that every citizen be treated uniy to create unity and a sena sense of nationhood. Parliament and thets, thro through human rights practices, have developed botnciples, and have often trin tried to balance them to achieve social justice in plural societies.

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Section 140 appears to strike such a balance. It pes that merit is paramparamount in all appointments to statvices, but that gender and and ethnic identity are also relevant. Cy in making all appointmeintments in state services, define“the public service, the Fihe Fiji Police Force or the Republic of Fiji Military Forces” merit, equality of opportunity for men and w and the need to ensure thae that state services are representative of the general population, are all relevant considerations. What weight is to be put on gender over race, for instance, is essentially a matter for the appointing authority, as long as the discretion is exercised reasonably.

In this case, it is not in dispute that se 140 of the Constitution was not considered at all. The Appealsd states that “hat “tht “the section referred to the wider public service and not only to the EO cadre of the Ministry of Health which he was basing his statistical argument from.”

With respect, I think that the Board missed the point. Theose of ensuring an etha ethalance in the public service, is to maintain a representatintative public service. True representatit be impl implemented at alels of the public service and in all state services. bsp; Failure too would resd result in an over-representation of one ethnicp in one department, and of another group in another departepartment. Neither department could then be considered to be represeve of the communities of Fiof Fiji. c representation must be c be considered at all levels within all departments of state serv taking into account, occupational preferences.

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State services provide services to the public on behalf of the state. It is a matter of good huian rights practice, and of good public administration, to ensure that the public considers these services to reflect its many needs in the most representative way possible. It is this pple oial justijustice that that section 140 of the Constitution, seeks to implement.

In dismissing this principle as irrelevant the Board therefore erred in substance. On this grouso, the Applicpplicant’s aption succeeds.

Summary

On the grounds of procedural unfairness and substantive ultra vires, the decision to dismiss the Applicant’s appeal againstappointment of Ms Raiwalui alui to the position of Executive Officer, St. Giles Hospital is therefore quashed.

Costs

The Second Respondents gave an undertaking at leave stage, that the appointment of Ms Raiwalui would remain provisional, until the determination of this application. They did not honour thdertndertaking. Mr Walker, counor Respondepondents informed me before the substantive hearing, that Ms Raiwalui had been confirmed in the position of Executive Officer, St. Giles Hospital.

I consider such a flagrant breach of an undertaking made to the court to be reprehensible.

In the circumstances I consider indemnity costs to be in order. The seRespondent must pay pay thlicant costs of $1000 within 14 days of this decision.

Nazhat Shameem

JUDGE

At Suva

17^th July 2000

HBJ0040J.99S