State v Public Service Commission, Ex parte Jitoko [2003] FJHC 37; Hbj0008j.2001s (11 February 2003)

IN THE HIGH COURT OF FIJI
(AT SUVA)

JUDICIAL REVIEW NO. HBJ 8 OF 2001S

THE STATE

v.

THE PUBLIC SERVICE COMMISSION
and
FILIPE JITOKO
Respondents

ex parte

SATISH SINGH
Applicant

R.P. Singh for the Applicant
S. Navoti for the Respondents

JUDGMENT

The Applicant moves for judicial review pursuant to leave granted on 2 April 2002.

The following affidavits were filed:

1. Applicant, in support, 28 February 2001;
2. Savenaca Kaunisela, in opposition, 25 July 2001;
3. Savenaca Kaunisela, supplementary in opposition, 21 November 2001;
4. Applicant, in reply, 12 March 2002.
   

Mr. Singh also filed a written submission on 29 July 2002.

On 15 September 1999 the Public Service Commission (PSC) issued Fiji Public Service Official Circular 17/99 (Exhibit A to the first affidavit). Among other vacancies advertised was the post of Chief Education Officer (Primary). Both the Applicant and the Second Respondent (Jitoko) applied for the position.

As appears from the Commission Submission (Exhibit SK 2 to the second affidavit) the Applicant and the Second Respondent, together with seven other candidates were interviewed in November and December 1999. After the interviews the PSC Secretariat then assessed their qualifications and experience. It also took into account the ethnic and gender composition of the Ministry of Education. On 9 November 2000 the Secretariat recommended that Jitoko be appointed and the recommendation was approved by the PSC. It is this decision to appoint Jitoko which the Applicant wishes to have quashed.

In his Order 53 statement and the written submission filed on his behalf the Applicant contended that:

(a) Jitoko did not satisfy the minimum requirements (MQR) for appointment to the position;

(b) the Applicant was more fitted for appointment to the vacancy then Jitoko and accordingly the PSC breached the Constitutional requirement that appointments and promotions be made on the basis of merit;

(c) the PSC breached the Applicant’s legitimate expectation that he would be appointed to the vacant position; and

(d) the decision to appoint Jitoko to the vacant post was “null and void, ultra vires .... made in bad faith, in excess of jurisdiction, improper, unfair, wholly unreasonable and arbitrary.”

Each of these submissions will be taken in turns.

The written submission filed on behalf of the Applicant is not as clear as one might wish and is somewhat long and repetitive however paragraphs 5.4 and 5.8 make it clear that the Applicant’s case is not merely that the Applicant was better qualified then Jitoko but that Jitoko did not qualify for appointment at all since he had no previous experience in the primary education field. In my view this submission rests on a confusion between the responsibilities of the position and the MQR for appointment.

If the notice of vacancy (Exhibit A to the supporting affidavit) is carefully examined then it will be seen that it is in two parts. The first part describes the responsibilities of the job which, as the title of the position suggests, concerned primary education. The second part of the notice which is headed “Qualifications” makes no mention of primary education at all.

It was suggested in paragraph 5.1 of the Applicant’s submissions that since Jitoko had no primary education experience regulation 12 (2) of the Public Service (Constitution) Regulations 1990 could not be taken into account. I reject that submission as being simply illogical. While the PSC recognised, as pointed out in paragraph 5.4, that Jitoko had almost no or no experience of primary education the evaluation panel were of the view that with the experience which he in fact had (secondary education) he “would have no difficulty in taking up the responsibility of the position”. I find nothing strange or surprising in this conclusion. There was no requirement that Jitoko have primary school experience in order to be eligible for appointment. While doubtless relevant, Jitoko’s lack of experience in the primary education field was not, as I find, a fatal handicap.

The next question is whether the Applicant can reasonably advance the proposition that his candidacy was more meritorious than of Jitoko. The Commission submission referred to is eleven pages long with a further eleven pages of appendices. In my opinion anyone perusing this document with an open mind would find it to be most impressive and reflective of a careful and thoroughly professional approach to the assessment of the various candidates by those involved in its preparation.

As has been repeatedly emphasised by the courts it is not for the court in judicial review proceedings to substitute its own opinion for that of the authority (here the PSC) given the responsibility to decide the matters in question (Chief Constable of North Wales Police v. Evans [1982] UKHL 10; [1982] 1 WLR 1155 and see also Minister of Aboriginal Affairs v. Peko Wallsend 162 CLR 24).

Even if I though (which I do not) that the Applicant’s qualifications were, on the whole, superior to those of Jitoko, intervention would not be justified unless I also thought that the Applicant’s qualifications were in fact so manifestly superior to those of Jitoko that the failure to recognise this fact and to appoint him was such an absurd conclusion “that no sensible person could ever dream” of reaching it (see Secretary of State v. Tameside MBC [1976] UKHL 6; [1977] AC 1014 and Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374, 410), I find the suggestion (paragraph 10.3 of the Applicant’s written submissions) that the PSC decision was “wholly unreasonable in the Wednesbury sense” to be quite unarguable and I reject it.

The gravamen of Mr. Singh’s suggestion that the Applicant’s legitimate expectation had been breached was that his client had, for far longer than was desirable, acted in the position for which he applied. I think it is reasonable to observe that long periods of acting which are not followed by substantive promotion quite understandably, and in my view unnecessarily, tend to create grievances. Mr. Navoti referred me to the relevant PSC Circular on the subject 25/87 (Exhibit SK 4 to the second affidavit). This circular at paragraph 7 states:

“No officer who has been appointed to act or is sitting in a higher office will have a better claim for promotion than his other colleagues”.

The fact that the Applicant had acted in the position under consideration was clearly noted on page 6 of the Commission Submission. As with Jitoko’s lack of primary experience it was undoubtedly a factor to be taken into account but in my opinion did not confer on the Applicant a right to be appointed and accordingly gives rise to no breach of legitimate expectation.

In my opinion the final group of suggestions by the Applicant that the PSC handled this vacancy in bad faith, improperly or unfairly is merely insulting. Frankly, I am surprised that Mr. Singh should put his name to such an unreasonable submission.

Apart from the unfortunate length of his acting appointment, which I have already dealt with, I can find no merit at all in the Applicant’s case. It must fail and be dismissed. Before leaving the matter however I think it appropriate to point out that there seems to lie at the heart of the Applicant’s case a fundamental misconception. The first four reliefs sought, if granted, would have resulted in the PSC’s decision to appoint Jitoko being quashed. But the quashing of that decision would not have led to the Court ordering the PSC to appoint the Applicant in his place. It is the job of the PSC to make appointments to the public service, not the High Court. The best that the Applicant could have hoped for was an order that the appointment process be done through again. As I hope I have made clear I can find nothing to warrant such a course being taken in this case.

M.D. Scott
Judge

11 February 2003