State v Public Service Appeal Board, Ex parte Racava [2003] FJHC 90; HBJ0003J.2002S (13 February 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. HBJ0003 OF 2002

Between:

STATE

v

1. PUBLIC SERVICE APPEAL BOARD
2. MINISTRY OF LANDS AND MINERAL RESOURCES
Respondents

TEVITA NALAWA
Interested Party

ExParte: PENI RACAVA
Applicant

Mr. R. P. Singh for the Applicant
Mr. Rajka Prasad for the 1st Respondent
Ms. A. Rokomokoti for the 2nd Respondent

JUDGMENT

This is an application for judicial review by Peni Racava (the ‘applicant’) of the decision of the Public Service Appeal Board (the first respondent) dated 20 December 2001 dismissing the applicant’s appeal against the provisional promotion of Tevita Nalawa (the ‘interested party’) by the Ministry of Lands and Mineral Resources (the ‘second respondent’) for the post of Principal Surveyor (Northern Division) on the ground “that Mr. Nalawa has an edge over you in terms of exposure to relevant functions of the post”.

Relief sought

The applicant seeks the following relief:

1. For an Order of Certiorari to remove the said decision of the Public Service Appeal Board dated 20 December, 2001 (dismissing the Applicant’s appeal against the provisional promotion of the third Respondent to the said post of Principal Surveyor by the Second Respondent) into this Honourable Court and be quashed;
   
2. For determination and declaration that the First Respondent failed to apply or consider the provisions of section 140 (b) and (c) of the 1997 Constitution;
   
3. For declaration that the First Respondent’s reason in dismissing the appeal cannot be upheld, is null and void, in contravention of section 140 of the 1997 Constitution, breach of section 4 of the Public Service Act, 1999, in denial of natural justice, improper, unfair, unreasonable and breach of the legitimate expectation of the applicant and he has been deprived promotion.
   
4. For an Order for Mandamus directing the First Respondent to re-consider the appeal on merit and promote the Applicant on the said post from the original decision of the first Respondent made on 20 December, 2001;
   

Consideration of the application

On the hearing of this application for judicial review there was representation for the first respondent. I have written submissions from the applicant and the second respondent.

I also have before me for my consideration affidavits filed by the applicant and affidavits in reply of the respondents.

An Affidavit in Reply to the applicant’s application was filed on 29 May 2002 by Rajka Prasad, Secretary to the Board (the first respondent). He deposed, inter alia, that proper procedures were followed by the Board. He said that the Board received submissions from the parties and these were exchanged. The applicant replied to the Ministry for Land’s (second respondent’s) submission. On 13 December 2001 the Appeal was heard when the applicant appeared and made a presentation on the grounds of his Appeal. Then on 20 December 2001 the applicant was informed of the said decision. Mr. Prasad denies the allegation made by the applicant stating that the Board adhered to all regulations regarding the conduct of appeal against an administrative decision. He said that the Board has not breached section 140 of the Constitution because the provisional promotion was made on the basis of merit after an open competitive selection process and moreover in accordance with section 140 of the Constitution. Therefore, he says that the decision was proper, fair and reasonable.

The learned counsel for the applicant has thrown in a large number of grounds some of which overlap and some are irrelevant and unsupported by evidence.

The issue for the Court’s determination is very similar to the one in Judicial Review No. 13 of 2002 between State v Public Service Appeal Board and Amrika Prasad, Ex parte Saran Deo in which I gave judgment on 31 October 2002. I have followed very closely my reasoning in that case in deciding this judicial review and therefore I will be repeating what I stated in that case in so far as it is relevant to the facts of this 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 it is a review of the manner in which the decision was made. It is concerned, “not 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:

“This 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 “not 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:

“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”.

As was said by the Fiji Court of Appeal in The Permanent Secretary for Public Service Commission and The Permanent Secretary for Education, Women & Culture ex p. Lepani Matea Civil Appeal No. ABU0018 of 1998S at 12 that the Court:

“must not do is to determine the merits of the matter, or substitute its opinion for that of the body concerned upon the merits”.

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 jurisdiction in respect of a decision are “illegality”, “irrationality”, “procedural 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. “Irrationality” describes a decision “which 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 submissions from the parties 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 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.

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 for review but the thrust of his argument is, and he laboured on this point, that the applicant is better qualified than the interested party 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 the 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. “It 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’.

As I 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) are apt on the question of merit’:

“At 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 then Chief Justice goes on to say:

“As 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 it is not for this Court to say.”

The instant case

In the case before me, Tevita Nalawa (the interested party) was provisionally promoted by the second respondent and the applicant was aggrieved by the said decision. On appeal to the Board on the ground particularly of what could be termed alleged ‘superior qualifications’ or that Nalawa ‘has an edge over you in terms of exposure to relevant functions of the post’, he did not succeed.

In this case the applicant and the interested party each presented his own case based on his own credentials. After hearing all sides the Board came to a decision. Hence there is no fault in the decision-making process. All 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 v Rossall and Others (1982) 62 F.L.R. 102 at 108:

“Certainly, 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 : “The 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: “What 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:

“My Lords, that the conception of natural justice should at all stages guide those who discharge judicial functions is not merely an acceptable but 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 “fair 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 interested party 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 Nalawa (interested party) 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:

“The 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 the 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 Nalawa who he says 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

As required under s26(9)(c) of the Act the Board has given reasons for its decision on the appeal.

In this case the Board has in its letter clearly stated that Nalawa 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 surveyors 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:

“Setting 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.):

“Judicial 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 the 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 surveyors 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, 5th 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
Judge

At Suva
13 February 2003