State v Public Service Appeal Board, Ex parte Naloma [2004] FJHC 241; HBJ0008j.2004s (10 September 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. HBJ0008 OF 2004

Between:

STATE

v.

PUBLIC SERVICE APPEAL BOARD
MINISTRY OF EDUCATION
Respondents

Ex parte: JULIA NALOMA
Applicant

Mr. R. P. Singh for the Applicant
No Appearance for the 1st Respondent
Mr. J. Raikadroka for the 2nd Respondent

JUDGMENT

Further to leave and stay granted herein, Julia Naloma (the ‘applicant’) applies for judicial review against the decision of Public Service Appeal Board (the 1st Respondent – the Board) dated 3rd March 2004 disallowing the appeal of the applicant against the decision of the Chief Executive Officer of the Ministry of Education (the 2nd Respondent – the Ministry) to transfer the applicant to another school from her position of Acting Head Teacher at Banivalu Primary School.

Decision impugned

On 5 December 2003 the Ministry through the Divisional Education Officer, Central informed the applicant by a Memorandum as follows:

I am directed to inform you that the Permanent Secretary for Education after a long negotiations, assessments of all deliberations and reports decided to post you to another school.

This is done with due considerations to the current financial regulations to the staffing of schools and multi ethnic composition of Bainivalu Primary School

The Suva Education Office will be informed through a copy of this memo to facilitate your posting.

I take this opportunity to thank you for your contribution to the school.

Then on 16 December 2003 by letter the applicant appealed to the Board stating:

I herein appeal against the decision of the Minsitry of Education dated 5/12/2003 to transfer me from my position of Acting Head Teacher of Bainivalu Primary School, Nausori to Indra Gandhi Memorial Primary School, Suva effecting from 26/01/2004 without complying with Regulation 13 of the Public Service Regulations 1999 and breach of section 140(c) of 1997 Constitution.

The appeal is made under Section 25(1)(c) of the Public Service Act 1999.

The following is the decision of the Board against which the judicial review is sought:

The Appeal Board has considered your appeal against the decision of the Permanent Secretary for Education to transfer you from Bainivalu Memorial School to Indira Gandhi Memorial School.

The Board has decided to disallow the appeal. The reason is that the Ministry had complied with the requirements of Regulation 13 of the Public Service [General] Regulations.

Reliefs sought

The applicant seeks the following reliefs:

(a) An order for certiorari to remove the decision of the Board and to quash it.

(b) A declaration the decision of the Ministry to transfer the applicant is non-compliance of Regulation 13(c) of the Public Service Regulations, 1999 which is in excess of jurisdiction, erroneous, irrational, unreasonable and unfair and null and void.

(c) A declaration that the Board failed to exercise its powers in accordance with law, was biased in predetermining the appeal in denial of natural justice in dismissing the appeal in breach of section 26 of the Public Service Act, 1999.

(d) An order of Mandamas directing the Board to review the appeal on merit.

About the applicant

The applicant is a school teacher. She was posted to Bainivalu Primary School in 1989. She was later promoted as Assistant Head Teacher in TE07 grade in 1993 regraded as ED5A.

On 20 July 2001 she was appointed to act as Head Teacher in ED5E grade at the said school after the substantive Head Teacher retired on 19 July 2001 and since then she had been acting on that vacant post.

Circumstances leading to transfer

The applicant says that she was qualified to apply for the vacant post but the Ministry did not advertise the vacancy.

She alleged that on 5 December 2003 without prior notice the Ministry attempted to transfer the applicant to Indira Gandhi Memorial School.

The applicant then appealed to the Board under section 25(c) of the Pubic Service Act, 1999.

The further facts and circumstances leading to the applicant’s transfer and the reason for it are stated by Mr. Raikadroka (Counsel for the Ministry) as follows in his written submission:

The post of Head Teacher (ED4C) was substantially vacant at Bainivalu Primary School and Mrs. Naloma had been appointed to act on the post since the 21st of July 2001. The Ministry decided to post Mr. Nemani Savumiramira as Head Teacher of Bainivalu Primary since he was an ED4C teacher. This officer was originally posted to Naivucini District School however, someone else had filled that position and so he was transferred to Dilkusha Boys to carry out the duties of an ED8A officer. Before the Ministry posted Mr. Savumiramira to Bainivalu Primary, the School Management was consulted.

The Ministry decided to transfer Mrs. Naloma after considering the multi ethnic composition of the School, meaning that an Indo Fijian Assistant Head Teacher had to be posted to Bainivalu. Mrs. Naloma was transferred to Indira Ghandi Memorial School as Assistant Head Teacher (ED5A) her substantive level.

The Ministry sent a Memo dated 5th December 2003 to Mrs. Naloma informing her that she was to be posted from Bainivalu to Indira Gandhi Primary with effect from the 26th of January 2004 on her existing terms and conditions. On the 16th of December 2003, Mrs. Naloma lodged her appeal with the Public Service Appeals Board (“the Board) against the Ministry’s decision to transfer her and then a day later she lodged her appeal with the Ministry.

Grounds of application

The grounds of application are:

(a) that the Board erred in law in predetermining the appeal on its Secretary’s submission without hearing the appeal contrary to section 25(8) and (9) of the Public Service Act 1999 in denial of natural justice.

(b) that the Board failed to take into account that the Ministry failed to comply with regulation 13(c) of the Public Service Regulations 1999 and for this reason appeal ought to have been allowed.

(c) That the reason given by the Board in disallowing the appeal is ‘erroneous irrational, in excess of its jurisdiction and wholly unreasonable in Wednesbury sense.’

Consideration of the application

In this case the judicial review is not against the decision of the CEO but that of the Board disallowing the appeal on the ground that the CEO has complied with the requirements of Regulation 13 of the Public Service Regulations 1999 (L/N No. 47/99)(the ‘Regulations’).

The said reg. 13 provides:

13. The Commission may transfer an employee without the employee’s agreement only if the Commission has –
    

(a) given the employee 28 days written notice of the transfer;

(b) given the employee an opportunity to state his or her views about the transfer; and

(c) considered any views stated by the employee.

The sequence of events since the receipt of letter of transfer dated 5 December 2003 is very important in considering this application.

The effective date of transfer was from 26 January 2004. The consecutive 28 days taken from 5 December would have expired on or about 2 January 2004. But the applicant lodged her appeal on 16 December 2003 and a day later lodged her appeal with the Ministry.

By this time the Ministry had complied with (a) and (b) of reg. 13. But before it could consider (c) of reg. 13 the applicant had already appealed to the Board and hence the Ministry had to wait until the Board gave its decision.

In other words the Ministry did not have the opportunity to comply fully with reg. 13 and particularly (c) thereof as under s26(10) it is stated that “the Appeal Board may allow or disallow an appeal by an employee and the relevant Commission must implement the decision.”

There is provision in the Act for right of appeal against the transfer. Hence the appeal to the Board was against the letter of transfer of 5 December but the applicant prematurely went ahead to appeal to the Board without letting the Ministry the opportunity to comply the three limbs of reg. 13. In effect the Ministry had not given its final decision in the matter of transfer after hearing what the applicant had to say under reg. 13(b).

This is not a review of the Ministry’s decision to transfer but against the decision of the Board that the Ministry had complied fully with reg.13 and therefore disallowing the appeal.

Conclusion

On the affidavit evidence before me, I find that the applicant’s lodgment of appeal to the Board was premature for the Ministry was prevented from fully considering reg. 13 and reaching a decision which could be appealed.

The appeal in the circumstances could have been rejected outright but it was not. The Board did hear the parties and it did not deny natural justice as suggested.

It disallowed the appeal and explained the reason for doing so by saying that the “Ministry had complied with the requirements of Regulations 13 of the Public Service (General) Regulations”.

But it will be seen that the full compliance was not there, particularly reg.13(c) at the time when the appeal was lodged which prevented the Ministry from complying. The applicant rushed to the Board instead of waiting for a final response from the Ministry.

The Board was quite right when it said in its Minutes herein, inter alia:

The Ministry was restrained from considering any views expressed by the appellant in accordance with Regulation 13(c) because she had lodged her appeal to the Board in accordance with Section 25(1)(c) of the Public Service Act on 17/12/03, the same day she lodged her response to the Ministry.

But because it stated that reg. 13 was complied with, which I hold was wrong, I grant an order of certiorari in respect of the Board’s decision.

To conclude, for the above reasons it follows that the Public Service Appeal Board did not make a proper decision in accordance with the law.

Order

I therefore make an Order of certiorari, quashing and removing the said decision of the Public Service Appeal Board of 30 March 2004 AND under Or.53 r.9(4) of the High Court Rules 1988 I remit the matter to the Ministry of Education to fully comply with the requirements of Regulation 13 particularly Regulation 13(c) which it was prevented from complying when the applicant prematurely went straight to the Board, and to reach a decision in accordance with the findings of the Court.

Each party bear his own costs in the circumstances of this case.

(D. Pathik)
Judge

At Suva
10 September 2004