State v Public Service Appeal Board, Ex parte Qalica [2004] FJHC 309; HBJ0004J.2004S (10 September 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. 4 OF 2004

Between:

STATE

-v-

1. PUBLIC SERVICE APPEAL BOARD
2. PERMANENT SECRETARY FOR YOUTH
AND EMPLOYMENT
Respondents

Ex-parte: PIO QALICA
Applicant

Mr. R.P. Singh for the Applicant
No representation for the 1st Respondent
Mr. E. Tuiloma for the 2nd Respondent

JUDGMENT

This is an application by Pio Qalica (the ‘applicant’) for judicial review of the decision of the Public Service Appeal Board (the “Board” – R1) dated 23 October 2003 disallowing the applicant’s appeal on the ground that “the reason is that the appeal was lodged after more than 3 months instead of within 21 days as provided in s26 (1) (a) of the Public Service Act 1999” (the ‘Act’).

The reliefs sought and grounds for review

The reliefs sought and grounds for review are (as in the motion):

(1) For an Order for Certiorari to remove the said decision of the first Respondent dated 23rd October 2003 disallowing appeal of the Applicant into this Honourable Court and same be quashed.

(2) For declaration that the decision of the Public Service Appeal dated 23/10/03 holding that “the reason is that the Appeal after more than three months instead of within 21 days as provided in section 26 (1) (a) of the Public Service Commission Act 1999” is irregular and irrational in view of the admitted failure of the Ministry of the Permanent Secretary for Youth and Employment to comply with Regulation 23 (3) (b) of the Public Service Regulations 1999 when the Appeal was proper filed on 18/6/03 pursuant to the direction given by the Public Service Commission on 3rd of June 2003.

(3) For declaration that the said decision of the Public Service Board dated 23/10/03 is contrary to provisions of the Public Service Act 1999, irrational irregular and unfair and unreasonable and null and void.

The decision impugned

It is the decision of the Board dated 23 October 2003 which is impugned. It reads:

“The Appeal Board has considered your appeal and decided to disallow it. The reason is that the appeal was lodged after more than 3 months instead of within 21 days as provided in Section 26 (1) (a), of the PSC Act, 1999.”

Consideration of the application

The grounds on which the judicial review was sought are that the decision of the Board is ‘irrational’, ‘irregular’, ‘unfair’, ‘unreasonable’ and ‘null and void’.

The decision which was appealed against to the Board was made on 6 December 2002 when it was decided by the second respondent to post the applicant to Headquarters (Suva) at the expiry of his leave i.e. 03/02/03’. To this the applicant replied on 16 December 2002 protesting against the transfer. On 6 January 2003 R2 informed the applicant that the decision ‘remains in force’ and that he should “make arrangements to move to Suva as soon as possible”.

The applicant was engaged in DISMAC operation during the period of Emergency after Cyclone Ami from 14 January to 14 February 2003. His duties with DISMAC lapsed on 14 February 2003 and he has not still reported on transfer to Headquarters. This was communicated to him and he was asked to explain why his salary should not be suspended from the next pay day viz. 6 March 2003.

The applicant says that he appealed to the Board on 18 June 2003 ‘on advice of the Public Service Commission’ when it said, inter alia, that “Mr. Qalica may appeal the decision to the Appeals Board under s25 (1) (a) of the Public Service Act”

Lodgment of appeal

Under s26 (1) (a) of the Act the applicant should have appealed within 21 days of 6 January 2003 when he was informed that the decision stood.

He did not do so until 18 June 2003. He was well out of time by about six months. He has given his reason for the delay in lodging the appeal.

Be that as it may, the matter that is of some concern to me is that the appeal papers were accepted by the Board presumably under s26 (1) (b) of the Act which provides that the Board may allow ‘further time’ ‘on sufficient reason being shown by the applicant’. That this was so is shown by the papers prepared

for appeal by the Secretary to the Board when he stated on 17 September 2003 that “it is recommended that the Appeal Board deliberate on the issue based on evidence provided and come to a decision.”

Thereafter the Appeal was fully heard on 14 October 2003. There are three and a half pages of Minutes of the proceedings and signed on 24 October 2003. There it stated at the end: “In view of the foregoing the Board has decided to disallow the appeal. The reason is that the appeal was lodged after more than three months instead of within 21 days as provided in Section 26(1) (a) of the PSC Act 1999.”

One wonders why the Board gave its decision on a matter, that is, whether the applicant was out of time or not, which was not before it for its consideration.

It had certain specific issues before it and without deciding on those it decided on something unrelated to the issues.

In other words the Board failed badly in its duty as an appellate body. It actually shirked its responsibility of making a decision on the issues before it after the Appeal papers were accepted by the Board.

Conclusion

For these reasons I find that the Board has not acted in accordance with the law in not giving its decision on the issues before it.

I therefore grant certiorari and quash the decision.

I think I ought to state here that the decision the subject-matter of the appeal had been subsequently adjudicated upon by Jiten Singh J in Judicial Review No. HBJ0020 of 2003 on 17 March 2004 in which the parties were Pio Calica and the Permanent Secretary for Youth and Employment.

I therefore do not see any reason to remit the matter to the tribunal with a direction to reconsider it which is permissible under Or.53 r. 9(4) of the High Court Rules 1988.

For these reasons I grant the order of certiorari and quash the decision with costs to the applicant’s solicitors the sum of $400.00 against the Public Service Appeal Board.

D. Pathik
Judge

At Suva
10 September 2004