Re Ram Achal [2001] FJHC 114; Hbj0011d.2000s (29 June 2001)

IN THE HIGH COURT OF FIJI
(AT SUVA)

JUDICIAL REVIEW NO. HBJ 11 OF 2000S

RE: RAM ACHAL
(f/n Hanuman)
Applicant

E. Veretawatini for the Applicant
E. Tuiloma for the Attorney-General

DECISION

This is a contested application for leave to move for judicial review.

The Applicant joined the Ministry of Primary Industries in 1987 as a recorder. This is an unestablished post involving EDP work in the Accounts Section. According to his affidavit in support the Applicant faithfully and diligently performed the duties expected of him during the next several years. Indeed, he went further. He says that he invested in and attended a number of computer courses and thereby enhanced his computing skills. He worked overtime and even forfeited two of his annual leaves. As a result of all these efforts he found himself performing duties normally assigned to a computer programmer or analyst or even to a “Senior Accounts Officer or Principal Accounts Officer”. But he was still employed as a humble recorder.

In May 1998 the Applicant wrote to the Permanent Secretary for Agriculture Fisheries and Forests (who has not been joined as a party to these proceedings). A copy of the letter is Exhibit E to the supporting affidavit. The Applicant says that he was asking the Permanent Secretary for his “job to be classified” but the letter does not in fact contain such a request. What it does do is suggest that the Applicant had been performing beyond the call of duty, that he had not been adequately remunerated for his performance and that his status did not adequately reflect his output.

On 13 August 1998 the Permanent Secretary wrote to the Public Employees Union explaining that the Ministry did not have an established vacant position of computer operator for which the Applicant could be considered. He also pointed out that the Applicant did not meet the Minimum Qualification Requirements for the post of clerical officer and that no suitable vacancy existed for established staff within the Accounts Section.

On 2 February 00 the Applicant launched these proceedings. He says that the Ministry’s “continuing decision” not to promote him to an established position was unfair, unreasonable, arbitrary, biased, null and void and was reached in breach of the requirements of natural justice. He primarily seeks certiorari to quash the “continuing decision”. He also seeks ancillary declarations and damages.

The Respondent’s case is simple. While it concedes that the Applicant has been “a very useful and cooperative officer” it is said that he does not meet the Minimum Qualification Requirements for any suitable permanent established staff position within the Ministry.

The Applicant’s complaints seem to involve the general allegation that he was unfairly treated by not being offered a permanent position commensurate with his skills and the particular allegation that he was not given “an opportunity to be heard to defend(himself) on the charge that he did not have the necessary qualifications ...”.

In answer, Mr. Tuiloma first pointed out that as is well known recruitment to the public service is by way of selection according to pre set criteria and following open advertisement (see E.G. Public Service Commission (Constitution) Regulations 1990 and Public Service (General) Regulations 1990). The Applicant has not contended that he applied for any advertised vacancy and neither has he countered the Permanent Secretary’s contention that no suitable vacancy exists within the Ministry’s establishment.

Neither, as it seems to me, has the Applicant shown that the Ministry erred in concluding that he did not possess the minimum qualification requirements. What precisely these requirements are and how he failed to reach them I was not told but I do not think that it is enough for an applicant merely to complain of error without showing where the error is said to lie.

Mr. Tuiloma also relied on the delay between the matters complained of and the commencement of these proceedings. Order 53 of course requires proceedings to be commenced without “undue delay”.

In my opinion an applicant for Judicial Review cannot complain of a “continuing decision”, whatever that term may mean. In R v. St. Lawrence’s Hospital ex parte Pritchard [1953] 1 WLR 1158, 1166 it was said at:

“It cannot be too clearly understood that the remedy by way of certiorari only lies to bring up to this court and quash something which is a determination or decision.”

I interpret this to mean a definite decision reached on a particular date and not the continuing implementation or non reversal of that decision. Were this not the case then the time limit could easily be circumvented.

I have some sympathy with the Applicant whom I suspect to be an early school leaver who has subsequently made great efforts to improve himself. But, I am satisfied, he cannot, as it were, “gate crash” into the Public Service by way of these judicial review proceedings which in my view have no prospect of success. In these circumstances the application for leave fails and is dismissed.

M.D. Scott
Judge

22 June 01