State v Public Service Appeal Board, ex parte Deo [2002] FJHC 163; HBJ0013j.2002B (31 October 2002)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. HBJ0013 OF 2002

Between:

STATE

v

PUBLIC SERVICE APPEAL BOARD
First Respondent

AMRIKA PRASAD
Interested Party/Second Respondent

Ex parte:

SARAN DEO
Applicant

Mr. R.P. Singh for the Applicant
Mr. J. Raidrokadroka for 1st Respondent

JUDGMENT

This is an application by Saran Deo (the >applicant=) for judicial review arising out of an appeal from the decision of the Ministry of Education provisionally promoting Amrika Prasad (the >second respondent=) to the post of Assistant Head Teacher in Grade ED5B at Khemendra Bhartiya School and the subsequent decision of the Public Service Appeal Board (the >Board=)on appeal holding:

AThe Appeal Board has considered your appeal and decided to disallow it. The reason is that Mr. Prasad has an edge over you in terms of holding the higher substantive grade ED6A.@

The relief sought and grounds

The applicant seeks the following relief (as per the Notice of Motion):

1. An order of certiorari to remove the said decision of the Public Service Appeal Board dated 2 April 2002 into this Court and be quashed.
   
2. A declaration that the Board holding that AMr. Prasad has an edge over you in terms of holding the higher substantive grade ED6A@ is unsustainable, it is in excess of jurisdiction, erroneous, totally incorrect, unreasonable, unfair and ultra vires.
   
3. A declaration that the second respondent did not meet the MQR, nor qualify to apply for the said vacant post of Assistant Head Teacher by virtue of his last promotion on 27.3.00 in grade ED6A as he had not served the required service of two years in that grade at the closing of the said vacancy on 21.12.00.
   
4. A declaration that the Board failed to apply the mandatory provisions of section 140(b) and (c) of the 1997 Constitution of Fiji in that the applicant had better merit than the second respondent.
   
5. A declaration that the Board=s reason for dismissing the appeal cannot be applied as it is null and void; it was in contravention of the said section 140 of the Constitution; was in breach of section 4 of the Public Service Act 1999 as there was denial of natural justice, improper, unfair, unreasonable and in breach of the legitimate expectations of the applicant.
   
6. An order of mandamas directing the Board to reconsider the appeal on merit and promote the applicant.
   
7. Costs.
   

Consideration of the application

This judicial review is from the said decision of the Board. Leave to apply as well as stay of the decision was granted by this Court.

An Affidavit in Reply to the applicant=s application of 6 May 2002 was filed by Rajka Prasad, the Secretary to the Board. He deposed that the Board received submissions from the parties and these were exchanged. The applicant replied to the Ministry of Education=s submissions. Then on 3 March 2002 this appeal was heard and the decision was given on 7 April 2002. He said that the decision was made in accordance with the provisions of the Public Service Act No. 8 of 1999.

In this judicial review application Mr. Singh has thrown the whole book at me as far as his grounds for relief are concerned. Some of the grounds overlap and they can be dealt with together. The written submission lacks cohesion and it is too lengthy with a lot of repetition. I think it will be wise for a counsel to bear the following comments in this connection in the judgment of Fiji Court of Appeal delivered 14 November 1997 in Victor Jan Kaisiepo and The Minister for Immigration (Civ. App. No. 54/96S) at p3 in the hope that what is stated therein will be borne in mind in future:

AThe grounds of the application were numerous and included a denial of natural justice, on the grounds of not giving a fair hearing and bias, taking into consideration irrelevant matters, failing to take into account relevant matters, acting unreasonably, not giving regard to or taking into account the legitimate expectations of the applicant and failing to give reasons for the decision. In effect, the appellant raised almost all imaginable grounds available in administrative law to challenge the decision but did not make clear what matters were relied upon to support the individual grounds. This is an unacceptable procedure when seeking judicial review. We add, that adopting this scatter-gun approach is inimical to the applicant=s prospects of success for the Court is left unclear as to what are the important issues in the case.@

Principles pertaining to judicial review

One must understand the basic concepts pertaining to the subject of administrative law when applying for judicial review. Judicial review is not an appeal from a decision but is a review of the manner in which the decision was made. It is concerned, Anot with the decision but with decision-making process. Unless that restriction on the power of the Court is observed, the Court will, in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power@ (Lord Brightman in Chief Constable of the North Wales Police v Evans [1982] UKHL 10; [1982] 1 WLR 1155 at 1173). Further in that case Lord Hailsham at 1160 commented on the purpose of the remedy by way of judicial review under Order 53 as follows which is apt and should be kept in mind:

AThis remedy, vastly increased in extent, and rendered, over a long period in recent years, of infinitely more convenient access than that provided by the old prerogative writs and actions for a declaration, is intended to protect the individual against the abuse of power by a wide range of authorities, judicial, quasi-judicial, and, as would originally have been thought when I first practised at the Bar, administrative. It is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the courts as the bodies making the decisions. It is intended to see that the relevant authorities use their powers in a proper manner.@

In a judicial review the Court is Anot as much concerned with the merits of the decision as with the way in which it was reached@ (Evans, supra at 1174). Also, as put by Lord Templeman in Reg. v Inland Revenue Commissioners, Ex parte Preston [1984] UKHL 5; (1985) A.C. 835 at 862 that:

AJudicial review is available where a decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached, or abuses its powers@.

One of the purposes of judicial review is to ensure that that an applicant is given a fair treatment by the decision-making body in question. The judicial review jurisdiction is supervisory in nature. The Court confines itself to the question of legality when reviewing a decision. The Court=s concern is with whether a decision-making authority exceeded its powers, committed an error of law, committed a breach of the rules of natural justice, reached a decision which no reasonable tribunal could have reached or abused its powers.

Consideration of grounds of review

I shall now consider the various grounds of review under some of the major heads in the light of the principles pertaining to judicial review of a decision. The modern heads of judicial review jurisdictions in respect of a decision are Aillegality@, Airrationality@, Aprocedural impropriety@, or abuse of power as summarised in 1984 in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374). >Illegality= is synonym for >error of law= which includes the taking into account of an irrelevant consideration or failure to take relevant consideration into account. AIrrationality@ describes a decision Awhich is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it@. (CCS Unions (supra) at 951).

I have before me written and oral submission from both counsel and have read all the affidavits filed herein and have given these due consideration.

Procedural impropriety

The head of >procedural impropriety= includes >failure to observe basic rules of natural justice and failure to act with procedural fairness. The requirements of natural justice go to the procedure adopted by the decision taken and the need to allow each party an opportunity to put his case=. (Immigration Law & Practice by Jackson at 19.13).

The Appeal before the Board is governed by the provisions of the Public Service Act 1999 (the >Act=). Sections 25 and 26 of the Act are relevant to the issues before me and I find that the Board complied with them. One relevant section is s26(6) which provides:

(6) At the hearing of an appeal -

(a) the appellant is entitled to be present and may be represented by a legal practitioner or by any other person; and

(b) the officer or person against whose promotion or appointment the appeal has been lodged is entitled to be heard in such manner as the Appeal Board thinks fit and may be represented by a legal practitioner or by any other person.

This section was fully complied with. The applicant was given every opportunity of being heard and make submissions and he availed himself of that right.

The other important section is s26(9). This has also been complied with. It provides:

(9) 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.
  

In the whole of the lengthy written submission, one aspect, and that seems to be the crux of the applicant=s argument through his counsel, which sticks out is that on >merits=, in the applicant=s view, he should have been promoted and not the second respondent.

Although Mr. Singh threw in a number of grounds to review but the thrust of his argument is and he laboured on this point, that the applicant is better qualified than the second respondent and hence he should have been promoted. This line of argument is clearly asking the Court to consider the merits of the case, but as I said hereabove on authorities that that is not the function of the court in a judicial review.

Counsel ought to remember that this application for judicial review is not an appeal. AIt is a protection and not a weapon@ (Lord Keith in Lonrho plc v Secretary of State for Trade and Industry [1989] 2 All E.R. 609 at 617). In an appeal the court is concerned with the merits of the decision under appeal but not so in a judicial review. In this regard in Re Amin [1983] 2 AC 818 at 829, Lord Fraser observed that:

>Judicial review is concerned not with the merits of the decision but with the manner in which the decision was made . . . Judicial review is entirely different from an ordinary appeal. It is made effective by the court quashing an administrative decision without substituting its own decision, and is to be contrasted with an appeal where the appellate tribunal substitutes its own decision on the merits for that of the administrative officer=.

And I have said earlier on, bearing in mind the authorities and the principles governing >judicial review=, it is not within the province of this Court when considering an application for judicial review to delve into the merits of a decision.

Because Mr. Singh has laboured this point at great lengths, and thereby to my mind introduced irrelevant matters for this Court=s consideration, I ought to say a little bit more on this aspect.

The following remarks of the then Chief Justice (Sir Timoci Tuivaga) in Bulou Eta Kacalaini Vosailagi v The Native Lands Commission and Ratu
Sakuisa Kuruicivi Makutu and Native Land Trust Board (High Court Civil Action No. 19 of 1988) is apt on the question of >merits=:

AAt this point it should be made clear that this Court has no jurisdiction to decide the merits of the Ka Levu dispute. The Court has no function in that regard. The Court=s function is to ensure that the process by which the Commission arrived at its decision in the inquiry under Section 17(i) of the Act was done in accordance with the law. In other words, it is the decision making process of the Commission as a statutory tribunal which is under review by this Court and not the merits of the decision itself@.

And on page 20 the Chief Justice goes on to say:

AAs already noted it is not for this Court to decide the merits of the Ka Levu dispute. That decision belongs elsewhere. The function of this Court is to ensure that the Commission as a statutory tribunal acted in accordance with the law in relation to the inquiry held under Section 17(1) of the Act. Whether the Commission came to the right or wrong decision according to Fijian custom and tradition is not for this Court to say.@

The instant case

Now let me examine the nature of the case before me. Here, the second respondent was provisionally promoted by the Ministry of Education and the applicant was aggrieved by the said decision. On appeal to the Board on the ground of what could be termed alleged >superior qualification= he did not succeed.

In a situation such as the present the Board was expected to do its best to reach a judgment on materials before it supplemented by such inquiries as it thought fit to make. A decision as to the factors to be considered is one for the Board, >which is to be treated in this regard as an expert body= to use the words of Fox J in Hurt v Rossall and Others [1982] FCA 188; 1982 64 F.L.R. 102 at 110, Federal court of Australia.

In this case the applicant and the second respondent each presented his own case based on his own credentials. After hearing both sides the Board came to a decision. Hence there is no fault in the decision-making process. Both parties were heard in accordance with the said provisions of the Act. There was nothing wrong in the procedure adopted by the Board. There was no denial of natural justice as alleged.

There has to be procedural fairness. As Fox J said in Hurt (supra) at 108:

ACertainly, what natural justice requires in one case may be quite different from what it requires in another. In Russell v. Duke of Norfolk [1949] 1 All E.R. 109, at p. 118, Tucker L.J. said: AThe requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth.@ Kitto J. stated the situation in an often cited passage in Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 C.L.R. 475, at p. 504: AWhat the law requires in the discharge of a quasi-judicial function is judicial fairness. This is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances.@

In considering the application of the principles of natural justice I consider the following passage from the judgment of Lord Morris of Borth-y-Gest in the House of Lords case of Wiseman v Borneman (1971) A.C. 297 at 308-309 pertinent:

AMy Lords, that the conception of natural justice should at all stages guide those who discharge judicial functions is not merely an acceptable but is an essential part of the philosophy of the law. We often speak of the rules of natural justice. But there is nothing rigid or mechanical about them. What they comprehend has been analysed and described in many authorities. But any analysis must bring into relief rather their spirit and their inspiration than any precision of definition or precision as to application. We do not search for prescriptions which will lay down exactly what must, in various divergent situations, be done. The principles and procedures are to be applied which, in any particular situation or set of circumstances, are right and just and fair. Natural justice, it has been said, is only Afair play in action@. Nor do we wait for directions from Parliament. The common law has abundant riches: there may we find what Byles J. called the justice of the common law@ (Cooper v. Wandsworth Board of Works [1863] EngR 424; (1863) 14 C.B.N.S. 180, 194).

The Act requires that >natural justice= should be accorded to the parties to the appeal. As I said this was done on the evidence before me. The decision that the Board was to make had to be arrived at by simply inquiring into the capability and diligence etc of the applicant and the second respondent based on the material of professional and academic character presented to the Board and to see that the person promoted is a fitter person for the post. They came up with a decision that the second respondent has an >edge= over the applicant. The Court does not interfere in this exercise as there are certain statutory powers vested in the Board which it exercised properly unless there are obvious or glaring errors. As was said in Ansell v Wells & Others [1982] FCA 186; 63 FLR 127 at 133 by Franki J:

AThe major purpose of the legislation is to ensure, in the public interest, that the most efficient person is appointed to the position. There is of course, a need to ensure that the promotion should be made in a way which is fair, that it is likely to promote harmony in the public service, and that public servants have no legitimate grievance in relation to the selection of the person to be promoted to a vacant position.

Here the statute has conferred power on the Board to make a decision affecting the rights or legitimate expectations of the applicant, and it has also stated that the natural justice or the duty to be fair should be accorded.

To conclude on this aspect, in my view, there was no denial of natural justice. It is not a case in which relief should be granted on that ground. The Board considered all the relevant material including the said section of Constitution of which the applicant complains about so forcefully.

Section 140(b) and (c) of 1997 Constitution

Mr. Singh submits that the s.140 (b) and (c) of 1997 Constitution requires that appointment and promotion in the public service be made on merit which he says, > basically includes consideration of qualification, experience and performance of each applicant=.

Here again on this ground Mr. Singh is indirectly suggesting that the Court look into the merits by analyzing the qualifications and experience, inter alia, of the applicant and that of the second respondent who does not merit promotion.

The short answer to Mr. Singh=s argument on this ground is that the matters that he has raised have all been fully dealt with by the Board.

For these reasons I find that there is no breach of the provisions of the Constitution as alleged and hence there is no merit on this ground of review.

Reason for decision

Mr. Singh submits that the Board failed to give proper reasons for its decision as required under s26(9)(c) of the Act.

It is clear that the Act requires under s26(9)(c) that the Board should give reasons for its decisions.

In this case the Board has in its letter clearly stated that the second Respondent has an >edge= over the applicant and therefore he is entitled to be promoted. That clearly is the reason for its decision. What more does the applicant expect? The Board could have said more on its reason but there was no need to do so. The nature of the case was such that it involved analyzing, inter alia, the qualifications and experience of these two teachers and after performing that exercise the Board came to a decision for the reason stated by it. In this type of situation the Court does not interfere and attempt to substitute its own view to that of the Board unless of course there are breaches of the accepted grounds for the review of a decision in a judicial review.

In regard to the mode of >reason-giving=, His Lordship Sir Louis Blom - Cooper Q.C in Regina v Lambath London Borough Council Ex parte Walters 1993 TLR 483 at 485 made the following observation which I consider ought to be noted in a case of this nature:

ASetting too high a standard of reason-giving might produce the unfortunate result of over-legalising what was quintessentially an informal procedure of public administration. The question was always one of degree, not that reasons should or should not be required.@

Here I find the reason given as adequate. To use the words of Hooper J in Regina v Ministry of Defence Ex Parte Murray 1997 TLR (C.A.):

AJudicial review was unlikely to succeed where the reasons were easily discernible albeit not expressed or where no other conclusion than that reached was realistically possible.@

It should not be thought that if the reason given is short that it would normally result in quashing the decision as much will depend on the circumstances of each case. This is not one such case. The articulation of >short reason= as here >would not frustrate or impede the exercise by the court of its customary powers. On the contrary, it would enable the court to ensure that its decision in every case were sound and manifestly just and in the interests of the City=. (Regina v Corporation of the City of London and Another, Ex parte Matson 1995 TLR 528).

The Board had taken into account all that they ought to have and have not looked at irrelevant matters. The decision was not unreasonable in a Wednesbury sense.

Legitimate expectation

Bearing in mind the facts of this case and the nature of the issue before the Board no question of >legitimate expectation= arose. The two teachers were eyeing for the same post and the Board looked at the merits of each applicant and came to a decision.

It has been said that legitimate expectation >arises where a person responsible for taking a decision has induced in someone who may be affected by the decision a reasonable expectation that he will receive or retain a benefit or that he will be granted a hearing before the decision is taken.= (Judicial Review of Administrative Action by De Smith, Woolf and Jowell, 5^th Ed. 417, 8-037). No such situation existed here, but then of course >legitimate expectations= have arisen in many different circumstances and there is no exhaustive list of these situations.

Conclusion

In the outcome, for the reasons given hereabove the relief sought are all refused.

Therefore, the application for judicial review is dismissed with costs to the first respondent in the sum of $300.00.

D. Pathik
Acting Chief Justice

At Suva
31 October 2002