State v Public Service Appeal Board, Ex parte Kumar [2004] FJHC 336; HBJ0033.2003S (22 December 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
JUDICIAL REVIEW

JUDICIAL REVIEW NO.: HBJ0033 OF 2003

BETWEEN:

STATE
Plaintiff

AND:

PUBLIC SERVICE APPEAL BOARD
First Respondent

RISHI RAM
Second Respondent

MINISTRY OF FINANCE
Interested Party

Ex-parte: VIJAY KUMAR
Applicant

Counsel: Mr. J. Bisa – for the Plaintiff
Mr. R. Singh – for Respondents

Hearing: 8, 15, 27 July, 2004
Judgment: 22nd December, 2004

JUDGMENT

Background:

Four vacancies for the post of Senior Auditors in the Ministry of Finance and National Planning were advertised in the Fiji Public Service Official Circular on the 15th of July 2002.

The applicant applied but was not considered. He appealed against two of the provisional promotees to the Public Service Appeal Board (“The Board”). The appeal against Kusum Lata Chand was abandoned as she migrated. The second appeal against Rishi Ram is the subject of these proceedings.

The Public Service Appeal Board in a decision of the 27th of August, 2003 dismissed the appeal succinctly stating its grounds as:

“The reason is that you do not meet the minimum qualification requirement for the post”.

This application for judicial review permitted by order of this Honourable Court of the 25th of September 2003 followed shortly thereafter.

The notice of motion for judicial review is framed against:

“The decision of the Public Service Appeal Board dated the 27th of August 2003 disallowing the appeal of the applicant against the provisional promotion of Rishi Ram for the post of Senior Auditor in the Ministry of Finance and National Planning”.

The applicant seeks that the Appeal Board’s decision be quashed. He asked for a declaration that the Appeal Board’s decision is in excess of its jurisdiction, erroneous, irrational, reasonable (sic) and unfair and null and void. It asks for a declaration that the applicant does meet the minimum qualification requirement for the post of Senior Auditor as advertised. It asks for an order for mandamus directing a re-hearing of the appeal. Finally the applicant asks for costs.

The Application

The motion was supported by an affidavit where the applicant focussed his argument on the Board’s alleged misinterpretation of the MQR. In short the applicant says despite the Board’s decision he did indeed meet the minimum qualification requirements for the post. He claims that the narrow and conservative interpretation of the MQR has resulted in an erroneous dismissal of the appeal. In the alternate he claims that the decision is improper, irrational, unfair and unreasonable as the Appeal Board misconceived and misdirected itself on the MQR for the accounting cadre.

This was the motion and supporting affidavit as filed. As part of the process of reply the Board through its Secretary, Josese Bisa, filed an affidavit. That affidavit had annexed to it a confidential Staff Board submission from the original pre-appointment selection process. This document was sent by the Ministry for the purposes of the Appeal Board hearing but under cover of a memorandum dated the 24th of March, 2003.

That memorandum directed in paragraph 2 “that the second enclosure, a Staff Board submission on Mr. Ram’s appointment, was ever only for the Board’s consideration. By inference it was confidential and therefore is not to be made available to the appellant”.

It was only when the applicant received the affidavit in reply from Mr. Bisa that this “confidential” submission was seen by him.

He was annoyed that the document was never brought to his attention at any stage during the appointment or appeal process. Accordingly, he filed a supplementary affidavit annexing parts of that confidential submission critical of him and claims that both the process of appointment selection and the subsequent Appeal Board hearing were tainted by this prejudicial information.

For reasons which I will shortly detail this is an argument which has merit but little effect in these judicial review proceedings.

The applicant despite raising this issue in his supplementary affidavit never sought to bring additional judicial review proceedings challenging the appointment process. He never amended his motion for judicial review to expand the grounds. He never sought to amend the motion or file a new motion to add a further ground of bias. This substantial omission means that the Court’s powers to judicially review the Appeal Board’s decision have never been properly engaged. This failure to amend or expand the proceedings has meant that the respondents and interested party have never had an opportunity to reply to these additional allegations. In my mind it would be wrong for the Court to embark on a considerably widened enquiry in the absence of amendment, expansion of grounds or new proceedings properly filed and served on the respondents and interested party.

In any event I am satisfied that the Board correctly interpreted the MQR. The Board later gave as its only reason for dismissing the appeal the fact that the applicant was not eligible for the position. In those circumstances I am also prepared to find that the non-disclosure of this information did not have a material effect on the outcome. I find ‘obiter’ that the applicant was not prejudiced by the non-disclosure.

In my view all documents filed on an appeal of any kind are to be served on all parties. It was wrong of the Ministry to attach a confidential memorandum in its appeal papers and then request under covering correspondence that it not be disclosed to the appellant. If the Ministry seeks to maintain such confidentiality it cannot use that information to support its case on appeal. The filing of a confidential document in court or tribunal proceedings waives any confidentiality.

The MQR

At the heart of the applicant’s complaint is that the Appeal Board wrongly interpreted the minimum qualification requirements for the post. He believed he was eligible and worthy of appointment. In his appeal and this judicial review he emphasizes this argument.

I find that the Board correctly interpreted the MQR. It noted that the MQR had two limbs. The advertisement for the position reads in part:

“....A degree in accounting and membership with the Fiji Institute of Accountants or a recognized professional body. He or she must have 2-3 years experience as an auditor and has managed the conduct of audits in this period. OR Qualifications required for appointment as an Auditor or Accounts Officer and at least 2-3 years service in that grade or equivalent. Consistently good reports and assessed potential and ability to progress beyond Senior Auditor level”.

The Board found that both candidates had not obtained a degree or diploma and so did not qualify under the first limb. However, the Board noted that the qualification requirement for appointment as an Accounts Officer was:

“A diploma or degree an accounting or business accounting and or not less than one third of the required passes towards diploma or degree in business accounting.”

In this regard Mr. Ram, the promotee interested party had completed 9 out of 10 units towards his Diploma in Accounting. He had served 2 to 3 years as an Accounts Officer. He had consistently good ACR reports. He therefore qualified on the second limb. In contrast the applicant did not technically meet these standards. He had no qualifications. He had less favourable ACR results. He had similar experience.

I find there was no intra vires error of law as the interpretation of the MQR provisions by the Board was correct. For the same simple reasoning I find that there was no ultra vires error of law. I find that the Board did adopt and observe proper procedure. I find the Board did not exceed its jurisdiction when making the decision.

I further find that the decision is unremarkable. The fact that it is succinct is to be commended not deprecated. The Board was clearly satisfied that the applicant did not meet the minimum qualification requirements and was not therefore eligible for the position. For that reason I find the decision of the first respondent to be within its jurisdiction, correct, rational, reasonable, fair and valid.

Secretariat Submission

Although not a strong part of the applicant’s case some criticism was made of the Appeal Board Secretariat’s preparing submissions for the Board summarizing the cases of the applicant, respondent and interested party. It should be clearly understood that the Court would support the preparation of such submissions for the Board’s consideration. In my view the submission is couched in neutral terms, adequately summarizes the available information and specifically leaves the appeal decision to the Board. These summaries merely aid the Board in its decision making process. I have no doubt that without such excellent administrative support the Appeal Board would find it an almost impossible task to marshal and structure information.

Conclusion and Orders

The application for judicial review is dismissed. Costs are to be certified and if necessary taxed by the Deputy Registrar.

Gerard Winter
JUDGE

At Suva
22nd December, 2004