State v Public Service Appeal Board, Ex parte Sen [2004] FJHC 109; HBJ0053.2003 (10 June 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO.: HBJ 53 OF 2003

In the matter of an application by HARI GYAN SEN seeking leave to apply for Judicial Review under the RHC Order 53 Rule 3(2), the Applicant

AND

In the matter of the decision of the Public Service Appeal Board dated 12th November 2003 allowing the appeals of Mr. MOHAN LAL and Mr. BIHARI LAL against the provisional promotion of the Applicant, the Respondents.

BETWEEN:

THE STATE

v.

PUBLIC SERVICE APPEAL BOARD
First Respondent

MOHAN LAL
Second Respondent

BIHARI LAL
Third Respondent

MINISTRY OF EDUCATION
Fourth Respondent

EX-PARTE: HARI GYAN SEN
Applicant

Mr. R.P. Singh for Applicant
Mr. H. Rabuku for First Respondent
Mr. J. Raikadroka for Fourth Respondent

JUDGMENT

This is an application for judicial review of two decisions of the first respondent. The decisions were made on 12th November 2003. They concerned the post of Head Teacher at Doctor Ram Lakhan Primary School in Nasinu. It is Grade ED4C school. The Ministry of Education appointed the applicant Hari Gyan Sen to the post. The second and third respondents appealed to the first respondent against the appointment. Both appeals were allowed. The ground for allowing each appeal was that the appellant had “an edge over the provisional promotee in terms of having potential to advance to a higher post”.

The appellant met the MQR and was acting Head Teacher at the school in question since 26th June 2000. The school is an ED4C level which means it must have eleven teachers or 311 or more pupils.

The second respondent also met the MQR. At time of the application for post he was head teacher in Nakilikoso Primary School since 1st January 1998. It is a level ED5E school which means it has six teachers or 136 or more pupils.

The third respondent also met the MQR. He was Head Teacher at Boubale Indian School. It is a level ED5E school which means it has six teachers or 136 or more pupils.

The advertisement in response to which the various applicants applied for the post read:

“390/2002 HEAD TEACHER ED4C

[1] Dr Ram Lakhan Primary School

To administer a ED4C primary school, offer professional guidance to staff, teach and liaise with school committee, parents and Ministry of Education staff. The appointee should be able to contribute towards the social and cultural life of the school and supervise the teaching of vernacular language.

Qualifications: Qualification as for ED8 and at least 1 year service with a superior assessment in the ED4 or 2 years in ED5E or 5 years in ED5A – D or 6 years ED6D grade. Relevant degree from a recognized University and superior administrative ability and professional leadership skills would be an added advantage. Completed 3 years rural service or superior assessment in the last 3 years. For a Special Education post, a relevant tertiary qualification from a recognized institution. Where relevant, hostel management experience will be preferred. Potential to advance to a higher post.”

Paragraph 1 gives the duties and objectives of the post. Paragraph 2 gives the qualifications necessary for appointment what is commonly called the minimum qualification requirements (MQR). It is common ground that all three met the MQR so any one of these three persons qualified. One therefore had to look at some qualities or qualifications over and above the MQR to say why one person was better suited for the post.

The applicant in his notice for motion for leave to apply for judicial review had sought following reliefs:

(a) Order of certiorari to quash the decisions of the first respondent where it allowed appeals of second and third respondents.

(b) For a declaration that the decision allowing the appeal was in “excess of jurisdiction, erroneous, irrational irregular unreasonable and unfair and null and void”.

(c) For a declaration that the applicant is entitled to equal opportunity and advancement for promotion in his assessment by the fourth respondent.

(d) Order for mandamus for rehearing on merit.

(e) Costs.

The applicant submits that the first respondent had considered extraneous matters in reaching the conclusion that the second and third respondents have “an edge over the provisional promotee in terms of having potential to advance to a higher position”. He submits that the applicant had been an Assistant Head Teacher in ED4C for over eight years and Acting Head Teacher for 21/2 years at close of vacancy on 15th June 2001. In short, the applicant submits that he is a better qualified for the post than the second and third respondents.

PROCESS NOT MERITS IS PROPER AMBIT OF JUDICIAL REVIEW:

Courts have over the years developed a body of substantive principles in the field of public law to control public bodies from exceeding their powers, or abusing their powers in the performance of the duties. Consonant with these principles, the court’s will only exercise their power and review exercise of power by a statutory body, to examine if it has, as the fourth respondent put it, -

(a) made an error of law.

(b) failed to take into consideration all relevant factors or has considered irrelevant factors.

(c) Acted for the purpose expressly or impliedly authorized by statute.

(d) Acted in a way so unreasonable that no public body would act in that way.

(e) Observed the statutory procedural requirements and common law principles of natural justice and procedural fairness – Council of Civil Service Unions v. Minister for Civil Service – 1984 4 ALL ER 935.

In short judicial review is not an appeal on merits but concerns the process by which a decision was arrived at. It is not the essence of the judicial review process “to substitute the opinion of the judiciary or of individual judges for that of the authority concerned by law to decide the matters in question” – Chief Constable of North Wales Police vs. Evans – [1982] UKHL 10; 1982 1 WLR 1155.

PRESENT CASE:

With these preliminary statements of law I shall embark on examination of the present case. Since there is an attack on the two appeals as being unreasonable and irrational a somewhat close look at the two decisions is warranted.

The applicant in the present case was promoted by the Ministry of Education but on appeal the appeals by the second and third respondents were upheld. The minutes at the hearing of appeal and the decisions are annexed to the affidavit of Jone Bisa. The decision was made after the parties were afforded opportunity to address the first respondent. The first respondent looked at the MQR and the relative experience, qualifications and certificates held by them. In the case of second respondent, it said that both the applicant and the second respondent met the MQR but the second respondent had a Diploma in Hindi as opposed to applicants Ordinary Diploma in Construction Studies from FIT. It held that the Diploma in Hindi is more relevant for primary school teachers compared to appellant’s diploma. It also looked at Annual Confidential Reports (ACR). In case of appellant his ACR stated “outstanding and highly fitted for promotion” as opposed to applicant’s which stated “good and fitted for promotion”. It said the appellant did not “possess superior administrative ability and professional leadership skill” to support its conclusion. I shall come back to this later.

In case of the third respondent against the first respondent looked the requirements of the MQR. It concluded both the applicant and the third respondent met the MQR. It said that the third respondent had acquired tertiary certificate qualification, a diploma in English and Completed six units towards Bachelor of Education degree. These qualifications are relevant to teaching in primary school as opposed to applicant'’ ordinary Diploma in Construction Studies, which was not relevant. It also looked at the ACR which in case of third respondent was “Outstanding and highly fitted for promotion” and therefore he possessed superior administrative ability and professional leadership skills.

Mr. Singh for the applicant emphasized that the first respondent laid too much emphasis on the ACR. The performance of the applicant was rated as Good and fitted for Promotion whilst that of the second and third respondents was rated as Outstanding and Highly fitted for Promotion. However, this is where the comparison ends. The second and third respondents were based in level ED5E schools which is a school with six teachers or 136 plus pupils. The applicant was in level ED4C which is a school with eleven teachers or 311 or more pupils. Surely the latter is a far more demanding and challenging task than one in level 5 having virtually twice as many teachers and pupils. Despite this the recommendation for the applicant was good and fitted for promotion. The first respondent did not direct its mind towards the greater demand from a person in level 4 when compared to one in level 5. The ACR I am of the view was uncritically given undue prominence by the first respondent without evaluating and comparing the nature and extent of demand and challenge because of the different levels the applicant and the respondents served in. It was a relevant matter and was not addressed by the first respondent in reaching its decision. Accordingly I order that certiorari shall go to quash the said decision of the first respondent made on 12th November 2003. I also award costs against the first, second and third respondents but not the fourth respondent which is only a nominal defendant.

[ Jiten Singh ]
JUDGE

At Suva
10th June 2004