State v Public Service Appeal Board, Ex parte Keteca [2003] FJHC 124; HBJ0009.2003S (1 August 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBJ0009 OF 2003

IN THE MATTER of an application by JONE KETECA, for Judicial Review under the High Court Rules 1988 Order 53, the Applicant.

AND

IN THE MATTER of the order, decision or
made by the Public Service Appeal Board or on about the 18th day of February 2003.

BETWEEN:

THE STATE

AND:

THE PUBLIC SERVICE APPEAL BOARD
RESPONDENT

EX-PARTE: JONE KETECA
APPLICANT

Mr. K. Muaror for the Applicant
Mr. S. Naivoti for the Respondent

JUDGMENT

Pursuant to leave granted on 26th March 2003, the applicant Jone Keteca applied for judicial review of the decision of respondent Public Service Appeal Board dated 18th February 2003.

The following affidavits were filed:

(a) Applicants affidavit dated 11th March 2003

(b) Josese Bisa Secretary of Public Service Appeal Board (PSAB) dated 22nd April 2003 in opposition

(c) Applicant’s affidavit dated 20th May 2003

(d) Asena Raiwalu of PSAB dated 17th July 2003.

The parties filed comprehensive helpful submissions in advance of the hearing date.

RELIEFS SOUGHT:

The applicant is seeking following reliefs:

(a) An order for certiorari to quash the said decision.

(b) A declaration that the PSAB abused its discretion and power and/or acted unreasonably and/or acted unfairly and contrary to the principles of natural justice and/or contrary to applicant’s legitimate expectations.

FACTS:

On 31st December 2001 in the Fiji Public Service Official Circular an advertisement was inserted for the post of Lecturer-English at Lautoka Teachers’ College. The applicant Jone Keteca applied for the post. By letter dated 12th July 2002 the Ministry of Education informed the applicant that he had been provisionally promoted to the post pending determination of appeals, if any, against such promotion. One of the appellants against the promotion was a teacher named Shyam D. Duber. The PSAB heard the appeal on the 12th February 2003 and delivered its decision on 18th February 2003 allowing Mrs Duber’s appeal against the promotion on the grounds that the appellant had an edge over the applicant as she had the relevant subject majors for the post of Lecturer (English) at Lautoka Teachers’ College.

APPLICANT’S SUBMISSIONS:

The applicant through his counsel submitted that the PSAB failed to take relevant materials and it acted unreasonably and/or arbitrarily. He submitted that the qualifications advertised for the post were “a recognized degree with relevant subject majors and secondly teacher training”.

He submitted the PSAB did not consider that he held a certificate from the Griffith University in the subject area of English. This he submits was a relevant consideration. He submits both the applicant and the appellant Mrs Duber had a Bachelor’s degree but the applicant had progressed and received this added qualification. Secondly he submitted that the PSAB did not consider applicant’s exposure to teacher training. The applicant taught teachers for four years and this gave him edge over the appellant.

He also submitted in his written submissions that he was not given opportunity to reply to appellant’s submissions and therefore there was breach of natural justice. For some reason Mr. Muaror did not pursue this ground and that of legitimate expectation in his oral submissions. He may well have seen the copy of minutes of the proceedings of the PSAB and decided not to press argument on these.

PROCEDURE AT PSAB:

Section 26(6) and Section 26(9) of the Public Service Act 1999 outline the procedure at appeals. Section 26(6) reads:

“At the hearing of the appeal:

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

Section 26(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;

(b) keep a written record of its proceedings; and

(c) give reasons for its decision on the appeal.”

PRINCIPLES RELATING TO JUDICIAL REVIEW:

The courts will not under the guise of Judicial Review investigate the merits of a decision. Judicial review is not an appeal on merits; it concerns process by which a decision was made. The courts will exercise their power and review an exercise of power by a statutory body to see if -

(a) it has made an error of law

(b) it has failed to take all relevant factors into consideration or taken irrelevant factors into consideration

(c) it has acted for the purpose expressly or impliedly authorized by statute

(d) it has acted in a way so unreasonable that no public body would act that way

(e) the statutory body has observed statutory procedural requirements and the common law principles of natural justice and procedural fairness – Council of Civil Service Unions v. Minister for Civil Service – [1983] UKHL 6; 1984 3 All E.R. 935.

Lord Templeman in Reg. v. Inland Revenue Commissioners, Ex-parte: Preston [1984] UKHL 5; (1985) A.C. 835 at 862 expressed the position as follows:

“Judicial 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.”

PRESENT CASE:

In the present case the applicant was promoted but on appeal an appellant’s appeal was upheld. The minutes of appeal hearing are annexed [annexure B] to affidavit of Jone Bisa. These records disclose that the appellant made submissions, the Ministry of Education made submission on support of the applicant, the applicant also made submission. The Board sought clarification on certain issues and then it gave its decision. The statutory provisions of Section 26 of Public Service Act were met. The parties were given an opportunity to present their cases and then a decision was made.

The post that was advertised was for Lecturer in English at Lautoka Teachers’ College. The qualification required was a “recognized degree with relevant subject majors and teacher training”.

The PSAB decided in favour of the appellant as she has “an edge over the provisional promotee as she has the relevant subject majors for the post of Lecturer ...”

The PSAB said in its decision that both had primary teaching experience. It had the necessary materials before it. The certificates of both parties were before it. I note that applicants Bachelor of Education Degree certificate and other certificates were before the PSAB. It is noted from the records of PSAB [paragraph 6.9] that it requested for transcript of Bachelor of Arts degree of the applicant. The PSAB looked at the transcripts. Mr. Muaror vigorously submitted that the certificate issued by Griffith University to the applicant was a relevant matter and not considered by PSAB. Mr. Naivoti submitted that it was not a degree certificate, just a certificate of participation. The requirements for post was a recognized degree with majors.

Therefore this certificate was irrelevant. It was not part of a degree course just a certificate of participation. Contrary to Mr. Muaror’s assertions, I find reference to provisional promotees involvement in BEMTUP programme since September 1996 adverted to in the deliberations of the PSAB at paragraph 8.1(d) of the minutes. The Griffith University certificate is part of BEMTUP programme and it commenced in September 1996 as shown by the certificate itself. It was taken into consideration.

The PSAB was looking at Minimum Qualification Requirement (MQR) and it came in favour of the appellant.

In Fiji Public Service Appeal Board v. Mahendra Singh – Civil Appeal 50/81 F.C.A. the Fiji Court of Appeal at page 7 stated the position as follows:

“There is no right of general appeal in which the rival applicants are entitled to be heard on the question of who is to be appointed. The state, through its legislature, has seen fit to define clearly the subject matter of an appeal and procedure that must be followed. Neither applicant has any greater entitlement to the position than that which has been conceded to him and made available by the necessary legislation.”

Mr. Muaror also submitted that the PSAB did not consider relevance of teacher training. I disagree. The minutes of the deliberations of the PSAB [paragraph 8] show teacher training and service were both considered.

He said that the decision was unreasonable. He submitted that the applicant’s exposure to teacher training was not addressed. When one looks at the advertisement [Exhibit A to the supporting affidavit] there is no requirement that the successful applicant have experience teaching at Lautoka Teachers’ College. While Mrs Duber may not have had experience in teaching potential teachers at Lautoka Teachers’ College, that alone is not a fatal handicap.

The PSAB minutes of appeal are nine pages single spaced fine print. Looking at it, one would note that the approach taken was careful and considered and quite thorough.

The courts have repeatedly said that in a judicial review matter it cannot substitute its own view on evidence for that of the body which has been entrusted by the legislature to decide the matters in issue – Chief Constable of North Wales Police v. Evans – 1982 1 W.L.R. 1 155. Even if I came to the conclusion that the applicant’s qualifications were superior (which I do not) to that of applicant, this court would still not be justified in intervening unless it came to the conclusion that the applicant’s qualifications were so dramatically superior to that of the appellant that no reasonable tribunal could have come to the conclusion to the contrary. A decision in the Wednesbury sense is unreasonable if it is “so wrong that no reasonable person could sensibly take that view” (Secretary of State v. Tameside BCC – [1976] UKHL 6; 1977 A.C. 1014 at 1026 or “so outrageous in its defiance of logic ... that no sensible person ... who had applied his mind to the question to be decided could have arrived at it” – Council of Civil Service Unions v. Minister for the Civil Service – [1983] UKHL 6; 1984 3 All E.R. 935 at 949. A high degree of unreasonableness must be shown before a court would intervene.

Mr. Muaror in his written submissions had submitted that the applicant had legitimate expectation that the principles of natural justice would be observed and he would be treated fairly. In the circumstances of the applicant, the submission made is proper. The applicant was provisionally promoted subject to outcome of appeal. He was given a hearing by PSAB. In that way legitimate expectations were satisfied.

The PSAB I find took into account the relevant matters. Its decision was not absurd, outrageous or unreasonable in the Wednesbury sense. I find no reason for intervening with the Board’s decision. The relief sought is therefore refused. The motion for judicial review is refused with costs that I summarily fix in the sum of $350.00 to the respondent.

[ Jiten Singh ]
JUDGE

At Suva
August 2003