Re Luisa Kamenio [2002] FJHC 19; Hbj0002j.2001 (9 August 2002)

IN THE HIGH COURT OF FIJI
(AT SUVA)

JUDICIAL REVIEW NO. HBJ 2 OF 2001S

Re: LUISA KAMENIO
Applicant

Ms. G. Phillips for the Applicant
Y. Singh and J. Raikadroka for the Respondent

JUDGMENT

This application for leave to move for judicial review proceeds by consent under the expedited provisions of RHC Order 53 r 3 (9).

I am indebted to Ms. Phillips for so clearly and concisely setting out the background facts on page 2 of her written submission filed on 31 July. I quote:

“The applicant is a secondary school teacher, with over 20 years teaching experience. She teaches at St. Joseph’s. Her substantive post is as Head of Department (Social Science) – ED5 Grade. She was appointed to the post and grade on 22 January 1996.

The post of Assistant Principal was advertised on 15 March 1999. The applicant applied. Pending processing of the 99 newly established Assistant Principal posts, the Ministry of Education advised the Principal of St. Joseph’s to forward an appropriate recommendation for acting in the post with effect from 1 June 1999. The applicant was nominated. She was promoted to act as Assistant Principal at St. Joseph’s on 1 July 1999. On 3 April 2000 the acting appointment was extended to 1 December 2000.

Her nomination to act in the post and her subsequent application were fully supported and encouraged by the school management. The letters of support and recommendations contained in the supporting affidavit clearly evidences that the Assistant Principals specific duties, role and responsibilities, in a school having the special religious character of St. Joseph’s would require the successful candidate be attuned and be competent to contribute to the Catholic character of the school. Suffice it to say that the applicant’s experience in the Catholic Education System was considered an integral work-related qualification for a school having the special religious character of St. Joseph’s.

At a meeting held on 25 February 2000, the then Acting Permanent Secretary for Education, decided to provisionally appoint on promotion Ana Seruitanoa as the Assistant Principal of St. Joseph’s. Mrs. Seruitanoa also teaches at St. Joseph’s. She is head of the Home Economics Department. Of the two teachers at the school, the applicant’s candidature for the post was fully endorsed and strongly recommended by the Principal and Management of St. Joseph’s.

The applicant appealed this decision to the PSAB. Her appeal was supported by the Principal and Management of St. Joseph’s. The appeal was heard on 7 December 2000. The applicant was advised by letter dated 15 December 2000 that having considered her appeal the PSAB had decided to disallow it “the reason being that she did not meet the Minimum Qualification Requirement (“MQR”) for the position.”

This is the decision challenged.”

Vacancies in the Civil Service are advertised in the Public Service Official Circular as well as in national newspapers. A copy of the relevant Official Circular is Appendix I to Exhibit MC 12 to the affidavit of Mouga Cakau filed on 15 February 2001. The qualifications for the post include “at least 4 years competent service with a superior assessment in the ED 5 or 3 years in ED 4 or equivalent based upon standard rating scale.”

Appendix II to Exhibit MC 12 is a detailed list of 31 applicants for the post prepared by the Ministry of Education. The first 18 are described as qualified applicants however the remainder including the Applicant, number 27, are described as unqualified. In the case of the Applicant she was stated to lack four years service in ED 5 grade. That the Applicant did indeed not meet the Minimum Qualification Requirement (MQR) for the position at the time it was advertised and at the time at which she applied for it is not disputed.

On 4 January 2000 the Ministry of Education Staff Board met to consider whom substantively to appoint to the vacancy.

A copy of the proceedings of the Board is set out at pages 8 to 20 of Appendix II to MC 12. As will be seen from page 9 the Applicant, No. 9 in the list, was eliminated since she was not qualified for appointment. After what was clearly a scrupulously fair selection procedure the Board recommended that Mrs. Ana Seruitanoa be appointed and that recommendation was accepted by the Acting Permanent Secretary on 25 February 2000 (page 20).

On 10 March 2000 the Applicant appealed to the Public Service Appeal Board against Mrs. Seruitanoa’s appointment. A copy of her letter of appeal is Appendix IV to Exhibit MC 12. On 15 December 2000 the PSAB replied. A copy of the reply is Exhibit MC 7. The reply reads:

“The Appeal Board has considered your appeal and decided to disallow it. The reason is you do not meet the Minimum Qualification Requirement (MQR) for the position.

The second sentence of this reply is not entirely correct. The word “do” should have been “did”. The true situation was that at the time the Applicant applied for the position she did not meet the MQR but that she did eventually meet the MQR on 22 January 2000 (see paragraph 15 (iv) of the Applicant’s supporting affidavit filed on 22 January 2001).

While it cannot be doubted that had she been able to meet the MQR the Applicant would have been a very strong candidate for appointment it is clear to me that the MQR at the time of application is a threshold requirement and that achievement of the MQR at some subsequent time, in this case about 2 weeks after the staff board had met, cannot operate retrospectively so as to annul the original pre-selection process. To hold otherwise would simply lead to chaos.

The Applicant, though otherwise highly qualified did not meet the threshold requirement for the position at the time she applied for it. She was not a person to whom the advertisement, which I view as a form of invitation to treat, was addressed. She was therefore not a candidate. The decision not to offer her the appointment and the decision not to allow her appeal cannot be impugned. The application for leave fails and is dismissed.

M.D. Scott
Judge

9 August 2002