State v Public Service Appeal Board, Ex parte Lal [2001] FJHC 117; Hbj0034j.2000s (18 July 2001)

IN THE HIGH COURT OF FIJI
(AT SUVA)

JUDICIAL REVIEW NO. HBJ 34 of 2000S

THE STATE

v.

PUBLIC SERVICE APPEAL BOARD
First Respondent

and

MINISTRY OF EDUCATION
Second Respondent

ex parte

SHARDA LAL
Applicant

R. Singh for the Applicant
Y. Singh for the First Respondent
L. Daunivalu for the Second Respondent

JUDGMENT

By these proceedings, commenced on 2 November 00 the Applicant, pursuant to leave granted on 18 January 01 moves for judicial review of a decision of the First Respondent (the Board) reached on about 23 October 00. This decision was to reject the Applicant’s appeal against the provisional appointment of Lusiana Senibulu to the position of Principal, Cathedral Secondary School, Suva.

The following affidavits were filed:

1. Applicant, 2 November 00;
2. Mouga Cakau, in opposition, 8 February 01;
3. Applicant, in answer 27 February 01;
4. Mouga Cakau 8 March 01.
   

Written submissions were filed following the grant of leave:

1. Applicant, 2 March 01;
2. 1^st Respondent, 14 March 01.
   

On 15 March 1999 Public Service Official Circular 5/99 called for applications for the vacant position of Assistant Principal, Cathedral Secondary School. As can be seen from the Circular which is part of Exhibit MC 6 to Ms. Cakau’s first affidavit this vacant position was but one of many others being advertised.

On 7 December 1999 the Staff Board of the Ministry of Education met to consider the applications and to make a recommendation to the Permanent Secretary. A copy of the proceedings of the Staff Board is Exhibit MC 7 to Ms. Cakau’s affidavit.

It will be seen from that exhibit that the Staff Board first eliminated those applicants who were not qualified. It then eliminated applicants who had already been promoted and those recommended for promotion to other positions. After eliminating 3 further applicants only considered marginally suitable the Staff Board was left with 19 candidates including the Applicant and Mrs. Senibulu.

Each of these applicants was considered in detail by the Staff Board and it was at this stage that the Applicant was eliminated. Page 22 of the proceedings reveals that the Applicant was considered well qualified for the position but in view of her rather indifferent performance record as judged by her Annual Confidential Report for the preceding three years (satisfactory/not yet fitted for promotion) she was not considered further. The successful Applicant was chosen from a list of two which did not include the Applicant.

On 17 April 00 the Applicant appealed to the Board (see Part V of the Public Service Act 1999 – the Act). The Board met on 19 October 00 and heard the appeal. The minutes of the proceedings are exhibit MC 10 to Ms. Cakau’s affidavit. On 26 October the Board disallowed the appeal and confirmed Mrs. Senibulu’s appointment. For the reasons set out in paragraph 9.2.1 of the minutes the Board agreed that Mrs. Senibulu had “more merit in terms of experience, qualifications and service at a high grade”. As appears from paragraph 3 of the Applicant’s supporting statement the Applicant seeks a declaration that the dismissal of her appeal by the Board was “null and void, improper, wholly unreasonable, unfair and arbitrary in view of my evidence”.

In paragraph 4 of the statement the Applicant seeks a declaration that the Board failed properly to evaluate and compare her experience with that of Mrs. Senibulu.

In paragraph 2 she seeks a declaration that, on the grounds of merit she, rather than Mrs. Senibulu was entitled to be appointed to the vacant position.

In answer to these claims Counsel for the Respondent says that the Board followed the proper procedures and reached a reasonable decision. The motion for judicial review is described as a “plagiarized” appeal by which I believe is meant a disguised appeal.

The point of describing these proceedings as a disguised appeal is that the Act does not make provision for an appeal from a decision of the Board.

Since all rights of appeal are statutory (R v Special Commissioners of Income Tax [1888] UKLawRpKQB 130; (1888) 21 QBD 313, 319) it is very important that no attempt be made to use judicial review proceedings for appeal purposes. As emphasised by Wade in Administrative Law 6^th Edn p 36 an appeal is radically different from judicial review. Judicial review is concerned with reviewing not the merits of the decision in question but the process by which that decision was reached.

“It is important to remember in every case that the purpose of (the remedy of judicial review) is to ensure that the individual is given fair treatment by the authority to which she has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question” (Chief Constable of North Wales Police v. Evans [1982] UKHL 10; [1982] 1 WLR 1155, 1160; [1982] UKHL 10; [1982] 3 All ER 141, 143 and see also Minister of Aboriginal Affairs v. Peko Wallsend Ltd 162 CLR 24, 40; R v. Cambridge cc ex parte Hagi (1980) 144 JPR 145 and Norbis v. Norbis [1986] HCA 17; (1986) 60 ALJR 335).

In the present case, as may be seen from the extensive written submissions filed, the Applicant first sought to exclude most of Ms. Cakau’s affidavit. It was said that Ms. Cakau should not have deposed her affidavit on behalf of the Respondent Board as it tended to indicate bias on the Board’s part.

Secondly it was said that Ms. Cakau did not have authority to produce the various exhibits to her affidavit as these had not previously been provided to the Applicant despite request being made (see exhibit MC 5).

As to the first submission it seems obvious to me that when the decision of a tribunal is being impugned the Court will wish to have placed before it all papers relevant to the decision reached. I can think of no person better able to produce these papers in this case then the Board’s Senior Administrative Officer who attended the meeting of 20 October. I reject the suggestion that producing this evidence indicates any bias on the part of the Board at the hearing.

As is clear from Ms. Cakau’s second affidavit the Applicant was indeed provided with the Assistant Permanent Secretary’s submission (exhibit 2 MC 1) which was considered by the Board. The suggestion that the Board’s Senior Administrative Officer has no authority to produce papers tabled before the Board seems to me to be rather ridiculous.

The Applicant’s second submission is that the procedures by which the Board reached its conclusion that the appeal be dismissed was unfair.

The minutes (which are not challenged as being inaccurate) need to be considered against section 26 of the Act and in particular section 26 (9). This subsection provides that:

“In the conduct of an appeal, the Appeal Board is not bound by the procedures, legal forms and rules of evidence of a Court of law but should –

(a) accord natural justice to the parties to the appeal;
(b) keep a written record of its proceedings; and
(c) give reasons for its decision on the appeal”.

I have read MC 10 in the light of these requirements and considered each of the many detailed submissions advanced by the Applicant. I can find no merit in any of them. In my opinion the Board conducted this hearing with scrupulous professionalism and fairness. As is evident from paragraph 9.2.1 the Applicant’s application for the vacant position was completely reheard. The Board chose in fact not to follow the Staff Board by rejecting the application because of the Applicant’s somewhat indifferent Annual Confidential Reports. Instead it carried out a detailed comparison of the respective merits of both the Applicants and Mrs. Senibulu before reaching the conclusion that the appointment of Mrs. Senibulu be upheld.

It is this last decision which the Applicant says was unreasonable and should therefore quashed.

In judicial review proceedings the standard of unreasonableness which will justify a court quashing a decision reached is very high. As pointed out in Re W (an infant) [1971] AC 682:

“not every reasonable exercise of Judgment is right and not every mistaken exercise of Judgment is unreasonable”.

Even a grave error of Judgment may be held not to be unreasonable (R v. Independent B.A. ex parte Whitehouse [1984] The Times 14 April).

The sense in which the word is used in Judicial Review proceedings is the sense which was explained in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, 229.

A decision is Wednesbury unreasonable if it is “so absurd that no sensible person could ever dream that it lay within the power of the authority”, “so wrong that no reasonable person could sensibly take that view” (Secretary of State v. Tameside MBC [1976] UKHL 6; [1977] AC 1014) or “so outrageous in its defiance of logic ..... that no sensible person who applied their mind to the question to be decided could have arrived at it” (Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374, 410).

There is nothing in the papers before me which I find even begins to suggest that the Board’s decision was absurd or outrageous. In fact I find the reverse to be the case.

In my opinion there are no grounds for interfering with the Board’s decision. The motion for Judicial Review fails and is dismissed.

M.D. Scott
Judge

18 July 2001