State v Public Service Commission, Ex parte Rabuka [2002] FJHC 267; HBJ0001J.2001S (30 January 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
JUDICIAL REVIEW

ACTION NO. HBJ 0001 OF 2001

STATE

V.

THE PUBLIC SERVICE COMMISSION AND OTHERS

EX-PARTE:

SALOTE SENITOTO RABUKA

M.B. Patel for the Applicant
S. Banuve for the Respondents

Dates of Hearing: 19th April, 14th August 2001
Date of Judgment: 30th January 2002

JUDGMENT

The Applicant applies for Judicial Review of the decision of the Public Service Commission given on the 6th of October 2000 to promote one Ram Chandar to the position of Chief Education Officer, Curriculum and Advisory Services in the Education Department from the 3rd of January 2000 and the Commission’s failure to appoint the Applicant to that position. She seeks orders for certiorari and Mandamus and a declaration that the decision of the Public Service Commission was unreasonable, biased and in breach of the principles of fairness.

The post to which the Applicant sought appointment is a non-appealable one under the Public Service Commission (General) Regulations 1999 and consequently required the Commission to exercise the greatest care and fairness in making an appointment. The Applicant contends that it did not because her qualifications and experience were higher than those of Ram Chandar and secondly her application was more meritorious than that of Mr. Chandar.

It is not disputed that the Applicant has higher academic qualifications in education than Mr. Chandar. She was awarded the Queensland Institute of Educational Administration Award for academic excellence and achievement in the study of educational administration at Griffth University. She is also the most senior Principal Education Officer in the Curriculum and Advisory Services Section and the Ministry Headquarters as a whole. She was appointed Principal Education Officer on 22nd February 1989 whereas Mr. Ram Chandar was so appointed on the 16th of December 1991. She has had much experience in computer education and as at the 2nd of January 2001 controlled an annual budget of nearly $2 million.

The qualifications of Ram Chandar by comparison are that he had approximately 2 years less teaching experience than the Applicant but more than 12 years experience in curriculum development work. The advertisement in the Government Gazette inviting applications for the position was in the following terms:

“MINISTRY OF EDUCATION AND TECHNOLOGY

1091/99 CHIEF EDUCATION OFFICER [CURRICULUM & ADVISORY SERVICES]

Responsible to the Deputy Secretary [Professional] and the Permanent Secretary on matters relating to Curriculum and Advisory Services Unit.

Duties involve the co-ordination of development work in the primary and secondary curriculum division including public examinations, school broadcasting matters and work of the Resources Centre in the Ministry. Monitoring the implementation of policies in the divisions and providing advise to the Deputy Secretary and Permanent Secretary on various issues concerned.

Qualifications: A graduate with specialist degree with at least thirteen year’s service or a graduate with non-specialist degree with at least eighteen year’s service or a non-graduate with at least twenty one year’s service including in each case at least three year’s service at principal level. Previous experience with policy matters and the assessed ability to give advice to the Permanent Secretary at political level and have had experience in negotiations/discussions with senior staff of government and non-government agencies. Applicants should possess well rounded forceful personalities with proven intellectual capacity and a willingness and ability to take far reaching decisions.

Salary: US03 : $40,043 - $50,429.”

He had also served as a part-time lecturer at the University of the South Pacific’s School of Humanities in two courses which were both relevant to curriculum work.

The Respondents contend that the work of the Applicant has largely been in computer education which it is said has little to do with actual curriculum work.

The Respondents admit that the Applicant has higher academic qualifications than Mr. Chandar and was rated higher than Mr. Chandar in that she has a Masters Degree although she was not the only Applicant for the post who held a Masters Degree.

The Respondents point out that academic qualification is but one component of the requirements assessed for the position of Chief Education Officer (Curriculum and Advisory Services) because a non-graduate may also be considered for the position provided he has had the requisite 21 years of service with 3 years service at least in the Principal level. Furthermore the Respondents argue that the Applicant had very little practical experience in curriculum work whereas the Fourth Respondent, Chandar had been directly involved in this work for over 12 years and had headed the Curriculum

Development Unit as its Principal Education Officer since 1991 responsible for Secondary Curriculum in Fiji.

At my request the Respondents filed the record of the decision of the Commission and its panelists’ assessments of the various Applicants after their interview. Their comments on the merits of the Applicant and Mr. Chandar are as follows:

“The merits of the two officers, Mrs. Rabuka and Mr. Ram Chandar are considered equal. Although Mrs. Rabuka is highly qualified in view of her Masters in Education, compared to degree certificate of Mr. Chandar’s. On the other hand Mr. Chandar has spent more years in the Curriculum Division, starting when he was a Senior Education Officer until to-date at Principal Education Officer level and currently acting as Chief Education Officer. He has spent over a period of 12 years in CDU and currently acting as head, provides him the leverage as having a better knowledge of the core functional responsibilities of the post and the unit. The appointment of Mr. Chandar will also narrow the ethnic parity in the grade and in the Service.”

In a Supplementary Affidavit Anare Jale the Secretary to the Public Service Commission states in paragraph 5:

“That I wish to reiterate that in arriving at their decision, the Commission carefully and objectively assessed the merit, the academic qualification and work experience of the applicant. I would also clarify that time was taken to ensure that all procedures were followed and due consideration was given towards the recruitment and promotion policy and principles set out under Section 140 of the Constitution. I attached and mark as exhibit “AJ7" the Commission Submission on vacancy no. 1091/99 which sets out the criteria, procedures and recommendations in the selection of candidates to the said post.”

As is so often the case where a person has failed to obtain a promotion and genuinely believes he or she has been the victim of an injustice as a result of that failure the person seeks relief from the Courts in an attempt to remedy the alleged injustice.

Unfortunately at times the Courts have to refuse relief on the ground that considering all the evidence they are forced to conclude that no injustice has been done to the person seeking relief.

In this case I have come to that conclusion. I do not propose to deal at any length with the numerous cases on Judicial Review which have been cited to me in the submissions of the parties but it is useful to note the remarks of Brennan J. in Attorney-General (N.S.W.) V/ Quin (1990) 170 CLR 1 at p.35 when his Honour referred to the exercise of administrative powers. He said:

“The question can be put quite starkly: when an administrative power is conferred by the legislature on the executive and its lawful exercise is apt to disappoint the expectations of an individual, what is the jurisdiction of the courts to protect that individual’s legitimate expectations against adverse exercises of the powers? I have no doubt that the answer is: none, Judicial Review provides no remedies to protect interests, falling short of enforceable rights, which are apt to be affected by the lawful exercise of executive or administrative power. If it were otherwise, the courts would be asserting a jurisdiction, in protection of individual interests, to override the law by which a power to affect those interests is conferred on the repository.”

In Anuradha Charan v. Public Service Commission & Others Civil Appeal No. 2 of 1992 the Court of Appeal said:

“The Commission must evaluate evidence of all aspects of the candidate’s abilities, qualifications and attitudes. Having done so, they are left with a discretion to decide the suitability of a candidate for the post under consideration. That discretion must include the right to decide, if based on proper grounds, that despite fulfilling all the stated qualification, the candidate may still not be suitable.”

Initially the Respondents refused to give reasons for their decision but as a result of my direction the Court now has those reasons before it. They satisfy me that although naturally the Applicant believes she has cause to complain, considering the evidence I cannot agree. In my judgment the Public Service Commission had to make a choice between two persons with broadly similar qualifications and experience. On balance it considered Mr. Chandar was the better choice. In my judgment its decision was not so patently unreasonable that it should be overturned. I am satisfied that the Applicant was given a fair hearing by the Commission and its panelists. For these reasons I dismiss the application for Judicial Review but make no order for costs.

JOHN E. BYRNE
JUDGE