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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
JUDICIAL REVIEW NO. HBJ0013 OF 2004
Between:
STATE
v.
PUBLIC SERVICE APPEAL BOARD
DIRECTOR OF PUBLIC PROSECUTIONS
BHUPENDRA SOLANKI
Respondents
and
Ex-parte: DAVENDRA PRASAD
Applicant
Mr. R.P. Singh for the Applicant
Mr. E. Veretawatini for the 1st Respondent
Mr. H. Rabuku for the 2nd Respondent
JUDGMENT
This is an application for judicial review by Davendra Prasad (the ‘applicant’) pursuant to leave granted on 5 July 2004.
Decision impugned
The decision impugned is that of the Public Service Appeal Board (the ‘PSAB’) the first respondent dated 15 June 2004 which stated:
‘The Appeal Board has considered your appeal and decided to disallow the appeal. The reason is that you did not have the ability to manage and motivate staff and your advocacy level has not been to the required standard.”
The relief sought
The applicant seeks the following relief:
Grounds of application
The grounds on which the application is made are:
(a) that the PSAB acted in breach of natural justice and/or unfairly and ‘biasly’
(b) that the PSAB abused its discretion under the Public Service Act 1999 in that:
- (i) it was biased against the applicant
- (ii) it took irrelevant matters into consideration
- (iii) it did not take relevant matters into consideration
- (iv) it acted arbitrarily and/or in bad faith and/or unfairly and unreasonably
- (v) it failed to apply section 4 of the act and section 140 of the 1997 Constitution
- (vi) it exceeded its jurisdiction
Applicant’s submission
In his written submission the counsel for the applicant has set out at great lengths the applicant’s qualification and experience and the comments on the Director of Public Prosecution’s (Mr. Naigulevu’s) affidavit which is in favour of the third respondent (Bhupendra Solanki).
He submits that since the affidavit evidence of the applicant was ‘not challenged, contradicted or disputed by evidence’ the Appeal should have been allowed.
Counsel submits that the PSAB failed to take into account relevant matter pertaining to the applicant’s work experience compared to the third respondent’s.
First Respondent’s submission
Mr. Eroni Veretawatini, the counsel for the first respondent (PSAB) submitted that the applicant has not provided any evidence that the PSAB was biased in its decision. Further the applicant has not satisfied this Court that there was any illegality or unreasonableness in the promotion of the Provisional Promotee (the 3rd Respondent) and in that sense he has failed to satisfy the Court that Judicial Review ought to be granted.
After referring to a number of authorities, counsel said that the judicial review application should be dismissed with costs.
Second respondent’s submission
The counsel for the second respondent (DPP) made his response to the applicant’s submission. He says that the applicant has no case for substantive relief; he must show and prove an arguable case.
Counsel submits that the decision to provisionally promote the 3rd Respondent was initially made after a wide consideration and selection process under the law. He was considered more meritorious compared to the applicant. This decision was upheld by the PSAB.
He submits that the applicant’s grounds are not substantiated by the facts and he has actually relied on almost all grounds of judicial review which are not applicable in this action.
The applicant is not referring to the procedures followed by the PSAB but to the merit of the decision taken by the DPP.
Counsel submits that the applicant has failed to disclose any evidence at all in law and in fact on which he could rely on to entitle him for any relief against the Respondent.
Mr. Rabuku makes further submission that PSC has delegated certain powers to DPP in regard to appointment to public offices.
In exercising the powers under the 1997 Constitution and the Public Service Act 1999 and the delegations made by Legal Notice 92/2003 and mindful of his responsibilities, duties and principal accountabilities under the Act the DPP decided the 3rd Respondent (Bhupendra Solanki) as a suitable person to be promoted to the post.
Consideration of the application
The decision impugned is that of PSAB dismissing the applicant’s appeal for the reasons already stated hereabove.
The applicant’s counsel has stated so many grounds for the sake of stating them without in any way elaborating on them.
This method of presenting a judicial review application, I do not take too kindly to, particularly when the whole book is thrown in the face of the Court. No responsible counsel will present his case in this manner and he/she should be more careful in future.
Each ground should be argued fully otherwise the grounds are not worth the paper they are written upon.
Principles pertaining to judicial review
In considering this application I have borne in the mind principles, as I have said many times before in the last 12 years, pertaining to judicial review which are as hereunder:
Judicial review 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 W.L.R. 1155 at 1173].
Further in that case Lord Hailsham at 1160 commented on the purpose of the remedy under Order 53 as follows which is apt:
“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, 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.”
The Appeal Board is a creature of statute (Public Service Act No. 8 of 1999) and by judicial review it could not be divested of its powers by Court provided the powers are exercised in a proper manner.
Furthermore, it should be noted and I repeat that 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 Ex parte Preston (1958) 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.
Consideration of grounds of review
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 standard 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).
On the evidence before me I do not find that there are any merits on the applicant’s grounds of review for all that the grounds boil down to is that in the opinion of the applicant he is better or more qualified than the third respondent and that he should have been promoted rather than the 3rd respondent.
If the Court were to consider the counsel’s submission that the applicant should have been promoted and not the 3rd respondent the court will be delving into the merits of the case which is not its province as I said before.
That is the very thing that the Court cannot do, namely, to look into the ‘merits’ of the decision. And, if the Court were required to consider the merits it will tantamount to an ‘appeal’ by the applicant. There cannot be an appeal in a judicial review or that 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 this regard in Re Amin [1983] 2 AC 818 at 829, Lord Fraser observed that:
‘Judicial review is concerned not with the merit 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.’
In considering the appeal the Act has empowered the Board to exercise its own discretion and to decide as counsel says what weight it should give to qualifications over experience and seniority or external qualifications over in-service training or qualifications over exposure to higher responsibilities. (Fiji Public Service Appeal Board and Mahendra Singh s/o Daulat Singh Civil Appeal No. 50/81, F.C.A.).
The Board has been established under the Act and there is set out the procedure on appeal under section 26 of the Act.
Arising out of the Board’s decision, the issue that could arise, and that is where the Court comes in through Judicial Review is as the Fiji Court of Appeal in Mahendra (supra) at page 67 of the judgment said:
“The question is whether or not in the events which happened there has been either a breach of the statutory right of respondent to be heard, or, that the decision of the Appeal Board has been arrived at by a procedure which offends against the principles of natural justice and thus putting the decision outside the decision making authority of the Appeal Board: vide Attorney-General v Ryan P.C. [1980] A.C. 718 at p.725; [1980] 2 W.L.R. 143 at p.152 G. This question requires a careful consideration of the legislature by which the State, through the statutory bodies entrusted with the power to appoint, to see whether or not (a) the statutory procedure has been followed, and (b) the principles of natural justice apply, and, if so, whether they have been observed.”
The following passage from the said judgment at p.7 is also worthy of note and is pertinent to this case:
“There is no right of general appeal in which the rival applicants are entitled to be heard on the question of who is to be appointed. The State, through its legislature, has seen fit to define clearly the subject matter of an appeal and the procedure which must be followed. Neither applicant has any greater entitlement to the position than that which has been conceded to him and made available by the relevant legislation”.
It is quite clear from the evidence of the Director of Public Prosecutions for the reasons given why the third respondent was appointed to the post. Finally on appeal the Board upheld the decision for the reasons it gave after hearing the appeal and after examining the submissions from the parties. The Board was entitled to the decision to which it came. It is a decision which cannot be attacked as being so unreasonable that no reasonable tribunal could have come to. (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, 229). On this principle Lord Templeman in the House of Lords case of Brind v Secretary of State [1991] UKHL 4; [1991] 1 ALL E.R. 720 in 725 said:
“The English courts must, in conformity with the Wednesbury principles (see Association Provincial Picture Houses Ltd v Wednesbury Corp [1947] EWCA Civ 1; [1947] 2 All E R 680, [1948] 1 K.B. 22) discussed by Lord Ackner, consider whether the Home Secretary has taken into account all relevant matters and has ignored irrelevant matters.... If these conditions are satisfied, then it is said on Wednesbury principles the court can only interfere by way of judicial review if the decision of the Home Secretary is ‘irrational’ or ‘perverse’.”
The factors which are to be kept in mind in considering the review of a decision are set out in the following passage from the judgment of Lord Lane C.J. in Regina v Immigration Appeal Tribunal, ex parte Khan (Mahmud) (1983) 2 W.L.R. 759 at 762-3 which is apt:
“Where one gets a decision of a tribunal which either fails to set out the issue which the tribunal is determining either directly or by inference, or fails either directly or by inference to set out the basis upon which they have reached their determination upon that issue, then that is a matter which will be very closely regarded by this court, and in normal circumstances will result in the decision of the tribunal being quashed. The reason is this. A party appearing before a tribunal is entitled to know, either expressly stated by the tribunal or inferentially stated, what it is to which the tribunal is addressing its mind. In some cases it may be perfectly obvious without any express reference to it by the tribunal; in other cases it may not. Secondly, the appellant is entitled to know the basis of fact upon which the conclusion has been reached. Once again in many cases it may be quite obvious without the necessity of expressly stating it, in other cases it may not.” (emphasis added).
Conclusion
In the outcome, for the above reasons and applying the principles applicable to a judicial review application, the applicant fails on all his grounds of review.
The PSAB is constituted under the Public Service Act 1999 and its duties are stated there. The ‘procedure on appeal’ is also laid down in section 26 and in section 26(9); it is required to accord ‘natural justice’, keep a written record of its proceedings and ‘give reasons for its decisions on appeal’. I find that the Board had complied with these requirements.
The decision which the Board was to make had to be arrived at by simply inquiring into the capability and diligence etc. of the applicant and the third respondent 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 arrived at the decision as stated above. The Court does not interfere in this exercise as there are certain statutory powers referred to in the Act vested in the Board which it exercised properly and did not act ultra vires. As was said in Ansell v Wells & Others [1982] FCA 186; 63 F.L.R. 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.”
I find that adequate consideration was given to section 140(b) and (c) of the 1997 Constitution and hence there cannot be any complaint by the applicant in this regard.
I do not find any procedural impropriety or denial of natural justice. All relevant consideration have been taken into account. The decision is not Wednesbury unreasonable. Each party was given the opportunity to present his own case and the Board came to a decision based on the credentials presented to it.
In the outcome, there are no reasons for interfering with the Board’s decision. The reliefs sought are all refused.
The motion for judicial review therefore fails and is dismissed with costs in the sum of $400.00 to the first respondent.
D. Pathik
Judge
At Suva
16 June 2005
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