State v Public Service Commission, Ex parte Tokaibai [2005] FJHC 393; HBJ0016j.2005s (30 November 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. HBJ0016 OF 2005

Between:

STATE

v

PUBLIC SERVICE COMMISSION
MINISTRY OF EDUCATION
Respondents

GOVIND SAMI
Interested Party

Ex-parte: MELI TOKAIBAI
Applicant

Mr. J. Raidrokadroka for the Applicant
Ms. A. Uluiviti for the 1st Respondent
Mr. A. Pratap for the 2nd Respondent
Mr. R.P. Singh for the Interested Party

Date of Judgment: 30 November 2005

JUDGMENT

This is an application by Meli Tokaibai (the ‘applicant’) filed on 15 April 2005 for judicial review of the decision of the Public Service Commission (the ‘PSC’) dated 6 April 2005 to appoint Govind Sami (the ‘interested party’) to the post of Chief Education Officer – Primary.

The application is made under Order 53 of the High Court Rules.

The PSC and the Interested Party have opposed the application. After hearing counsel for the applicant and PSC, on 9 May 2005 I granted leave to the applicant to apply for judicial review and that it shall operate as a stay of proceedings until the determination of the application.

Notice of Motion for judicial review was filed on 16 May 2005.

The applicant filed an affidavit for judicial review on 16 May 2005. The Interested Party filed an affidavit in reply on 25 May. Then on 7 June the applicant filed a supplementary affidavit. The second respondent Ministry of Education (the ‘Ministry’) filed an affidavit in reply on 22 June 2005. This was followed by an affidavit of PSC filed on 22 July in opposition to the application.

The hearing of the application took place on 25 July 2005. Written submissions were filed by the parties for Court’s consideration.

The decision impugned

The decision impugned is that of the PSC of 6 April 2005 when it wrote to the Interested Party (the successful applicant to the advertised vacancy) that the Commission:

“at its meeting held on 5^th April 2005 has decided that you be appointed on promotion to the post of Chief Education Officer (Primary), Ministry of Education with effect from the date you assume duties of the post.”

The reliefs sought

The applicant seeks reliefs as follows:

(a) An order of certiorari to remove the said decision into this Court and that the same be quashed.

(b) An order for mandamus directing the PSC to appoint the applicant to the post of Chief Education – Primary backdating it to the date of his current acting appointment.

(c) For a declaration and determination that the applicant has more merit in terms of qualifications, experience and service and that he is entitled to be appointed rather than the Interested Party.

Grounds for review

The grounds for review are as follows:

(a) decision is ‘irrational’ and ‘breached right to fairness’ since no reasons were given why such an appointment was made nor the basis on which it was made.

(b) Having acted for 28 months as Chief Education Officer – Primary would have given the applicant an edge over other applicants.

(c) The applicant was entitled to legitimate expectation that the respondents would appoint him rather than the Interested Party.

(i) About the applicant

The applicant graduated from Nasinu Teacher’s College in 1969 and joined the Civil Service as an Assistant Teacher.

He served as a teacher in various areas including Gau. In 1980 he became Head Teacher to a Medium School.

In 1989 he graduated from the University of the South Pacific with a Bachelor of Arts degree in Management and Geography. He was then posted to Eastern Education Office.

The applicant has been in the Civil Service for 36 years of which 20 years was spent teaching in various primary schools throughout Fiji and 16 years as an administrator in the Primary Section.

The applicant has been acting as Divisional Education Officer for the last twenty-eight months (at the time of this application).

About Mr. Govind Sami, the applicant said that in comparison to him ‘it was only until his appointment as Divisional Education Officer – Central 2001 that Mr. Sami became involved in Primary Education and since his inception in 1975 into the Civil Service he had never dealt with Primary Education matters’.

(ii) The applicant’s submission

After referring to s4(a) of the Public Service Act 1999, Regulation 5 of the Public Service (General) Regulations 1999 and section 140(b) of the Constitution (Amendment) Act 1997, the counsel for the applicant submitted that appointments on promotion should be made on the basis of merit after an open competitive selection process.

Counsel’s argument on ‘merit’ boils down to this that as far as the Primary Section is concerned he has better qualifications and experience than Mr. Govind Sami (the Interested Party) (Mr. Sami) although the latter has a Masters in Education degree from the University of New South Wales.

Mr. Raikadrokadroka raises the point that reasons for appointment of Mr. Sami should have been given. He says that the applicant has suffered great injustice from the Commission’s decision.

The learned counsel quoted from a number of authorities when and why reasons ought to be given for a decision.

On the ground of ‘legitimate expectations’, counsel submits that the applicant had a high legitimate expectation that he should be appointed to the position since he has been serving in an acting capacity in the position for some 30 months now without any adverse reports made against him.

The applicant submits that his legitimate expectation is based on the direction given in the PSC’s Circular No. 26/99 which re-emphasizes the importance of filling substantive vacancies within a three month time period after advertisement. He said that PSC did not adhere to the direction that it gave in that Circular.

First Respondent’s submission

While opposing the application for judicial review the learned counsel for PSC submitted that the applicant’s application is devoid of merits and that it should be dismissed.

On the allegation that the decision is unreasonable and unfair, counsel submitted that PSC acted within its powers under section 147 of the Constitution (Amendment) Act 1997 in regard to, inter alia, appointments; also under section 140 of the Constitution it is stipulated, inter alia, that appointments and promotions should be on the basis of merit.

It was submitted that the PSC did consider the applicant and Mr. Sami (the promotee) on merits and did take into account their qualifications and experience.

On ‘legitimate expectation’ counsel submitted that the ‘only two expectations that the applicant can reasonably be expected to hold, having undergone the entire advertisement, interview and selection process are that he might be appointed or that he might fail to be appointed, no more and no less.’

Interested Party’s submission

The Interested Party (Mr. Sami) filed his submission in person but at the hearing was represented by his counsel Mr. R.P. Singh.

The interested Party’s educational qualifications are set out in his Affidavit in Reply sworn and filed herein on 25 May 2005.

Mr. Govind Sami is academically highly qualified and is an experienced school teacher particularly in secondary schools.

He said that the applicant has failed to establish ground on which Court could review the decision. His promotion is not amenable to appeal under the Public Service Act 1999.

He submits that he was considered for promotion after an open competitive selection was carried out in which the applicant had participated and was given a fair hearing before a panel of interviewers comprising the former Permanent Secretary for Education and two other Deputy Secretaries from other Ministries.

Mr. Sami submits that in training and merit he had excelled and that his credentials are far superior compared to the applicant, warranting this promotion.

He further says that PSC has properly exercised its discretion in promoting him. The applicant, he says, has failed to establish that he has been unfairly treated. He is in fact asking that the decision be reconsidered on merit which the Court cannot do.

Finally he submits that there is no requirement for PSC to give reasons for administrative decisions. The decision is not Wednesbury unreasonable.

Consideration of the application

The Court has before it the written submissions from all counsel representing the respective parties.

This is a judicial review application from the decision of the PSC. The ‘post’ in question is a non-appealable one under the Public Service Commission (General) Regulations 1999.

The application is opposed by the Interested Party.

In deciding upon the post of Chief Education Officer (Primary) as advertised in the Fiji Public Service Official Circular No. 12/2003 of 15 July 2003, the PSC had before it, inter alia, the full qualifications and experience of both the applicant and the interested Party.

To give a clear picture of the requirements of the post I set out the circular advertisement which is as follows:

Responsible to the Deputy Secretary [Administration/Finance] for planning, administration, co-ordinating and implementing of policies relating to primary education including pre-service primary teacher education, pre-school education, special education and library services’ representing the Ministry on relevant bodies, liaising with Ministries/Departments, school committees, teachers’ organisation, Public Service Commission; preparing aid submissions and budget estimates.

Qualifications: Previous experience with policy matters and assessed ability to give advice to the Permanent Secretary at political levels is required as experience of negotiations/discussions with senior staff of government and non-government agencies. Appointee should have shown evidence of well-rounded forceful personalities with proven intellectual capacity and the willingness and ability to take far-reaching decisions. Proven ability to manage manpower and physical resources effectively as required. The best graduates with specialists degrees entering the service at SS03/SS04 or equivalent levels may achieve this level after not less than 13 years service including at least 3 years at Principal level in their discipline. Non-specialists graduates and non-graduates may achieve this level with not less than 18 years and 21 years service respectively unless specialized training leading to appropriate higher level qualifications has been completed during their career.

I shall now deal with the two main grounds for review.

First ground

The first ground of review is that the decision is unreasonable and that there was ‘breach of principle of fairness’ as no reasons were given.

I have considered all the submissions on this ground.

On the affidavit evidence before me I find that PSC considered the applications for the post as advertised.

Both the applicant and Mr. Sami were given the opportunity of being heard. In fact they were both interviewed by a Panel and a recommendation was made appointing Mr. Sami to the post. The successful applicant was informed of the decision. In his affidavit Mr. Tom Lee, Deputy Secretary PSC said that ‘the interview panels gave the Interested Party the highest rating’ (Annexure PSC 13). ‘... The decision of PSC was conveyed to all interviewees including the applicant on 7 April’ (Annexure PSC 17).

This decision is the one which is impugned.

The law

(a) Judicial review is not an appeal

In a judicial review the Court has a supervisory jurisdiction and that is ‘to review’. It is not an appeal on the facts.

The Court in a judicial review is concerned with legality rather than the merits of the decision. “It seldom involves deciding a question which someone else has already decided. In many cases, the decision-maker will not have addressed his mind to the question at all”. (Lord Hoffmann in Kemper Reinsurance Company v Minister of Finance [2000], A.C. 1, 14H-15A).

In the present application, the manner in which the applicant’s arguments were put forward it gives the clear impression that the application is more in the nature of an appeal for the applicant maintains that the decision should have been in his favour for, inter alia, he is better qualified than the applicant.

It has been held that ‘certiorari will not issue as the cloak of an appeal in disguise’ (R v Northumberland Compensation Appeal Tribunal ex p. Shaw [1951] EWCA Civ 1; [1952] 1 KB 338, 357 – Morris L.J). Also ‘certiorari is not an appellate power’ (Lord Wright in General Medical Council v Spackman [1943] A.C. 627m 640].

On this aspect of appeal distinguishing an ‘appeal’ from ‘judicial review’, I quote from the book “Judicial Review Handbook” 3^rd Ed by Michael Fordham at p.251 where he stated in the Notes to 15.2 as follows which is pertinent in the context of the present application.

“R v Greater Manchester Coroner, ex p Tal [1985] QB 67, 80 G-H (“when a divisional court is constituted to hear an application for judicial review, it is not sitting in an appellate capacity. It is not hearing an appeal from another court, nor is it considering a question of law on a case stated by another court... It is exercising what is often called a supervisory jurisdiction”); R v Inland Revenue Commissioners, ex p Rossminster [1979] UKHL 5; [1980] AC 952, 1013E-H (Lord Diplock: “Where Parliament has designated a public officer as decision-maker for a particular class of decisions the High Court, acting as a reviewing court under Order 53 [now CPR Part 54] is not a court of appeal”); Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, 234 (Lord Greene MR: “The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them”). (emphasis mine).

(b) Judicial review concerns not the decision but the manner of reaching it.

I have already stated hereabove the procedure that has been adopted by PSC in reaching its decision.

I do not find anything wrong in the procedure applied. There was no denial of natural justice to the applicant.

As I said this is not an appeal but an application for judicial review and on such an application “it is the process by which the determination was reached which must be wrong before the court can quash it” (R v Immigration Appeal Tribunal, ex. p Enwia [1984] 1 WLR 117, 136F).

It has to be borne in mind that:

“Judicial review is concerned, not with the decision, but with the 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 the power” (Lord Brightman in Chief Constable of the North Wales Police v Evans [1982] UKHL 10; [1982] 1 WLR 1155, 1173F).

The applicant has been labouring the point to the effect that PSC has come to a wrong decision in complete disregard of the applicant’s qualifications and experience in comparison to the successful applicant.

The applicant is thereby endeavouring to persuade the Court that it should reverse the decision. This is the very thing, bearing in mind the principle involved in a judicial review, that the Court cannot do. “It is not a question whether I, as a member of this court agree with him or not” (Sir Thomas Bingham MR in R v Home Secretary, ex p Bateman & House (1955) 7 Admin LR 175, 183 G-H). Also as Lord Donaldson MR said ‘it is quite beside the point to consider whether I would have reached the same conclusion’. (R v General Medical Council ex p Colman (1990) 1 All ER 489, 511d).

When it is raised that a decision is wrong, there are a number of judicial pronouncements in decided cases as to what are the considerations to be applied in such cases in a judicial review application.

This aspect has been dealt with quite fully as follows by Fordham (supra) at 254 in 15.4.3 and I deal with it at some length because of the applicant’s insistence that a wrong decision has been made and that the Court ought to upset it:

“The question is not whether the decision was wrong. R v Criminal Cases Review Commission, ex p Pearson [1999] 3 All ER 498, 523e-f (“If this court were to hold that a decision one way or the other was objectively right or objectively wrong, it would be exceeding its function”); R v Secretary of State for Trade, ex p Anderson Strathclyde Plc [1983] 2 All ER 233, 243f (“Whether he was right or wrong ... is a matter of political judgment, and not a matter of law”); Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] UKHL 6; [1977] AC 1014, 1074H-1075C (Lord Russell: “it is quite unacceptable ... to proceed from ‘wrong’ to ‘unreasonable’ ... History is replete with genuine accusations of unreasonableness when all that is involved is disagreement, perhaps passionate, between reasonable people... [But] ‘unreasonably’ is a very strong word indeed, the strength of which may fail to be recognised”).

What the task of the Court is, has been stated as follows by Lord Mustill in R v Secretary for the Home Department, ex p Fire Brigades Union [1995] UKHL 3; [1995] 2 AC 513, 560 H-561A:

“The task of the courts is to ensure that powers are lawfully exercised by those to whom they are entrusted, not to take those powers into their own hands and exercise them afresh. A claim that a decision under challenge was wrong leads nowhere, except in the rare case where it can be characterised as so obviously and grossly wrong as to be irrational, in the lawyers’ sense of the word, and hence a symptom that there must have been some failure in the decision-making process”).

(c) Judicial review is not concerned with “the merits”

This is a case in which the PSC had to consider the applications for the post and that involved delving into the merits and demerits of the case before it.

In a judicial review it is not the Court’s function to go over the ‘merits’ for it is exclusively the province of the PSC in this case. In Fordham (supra at 254) it is stated:

“What is meant by ‘the merits’ are those questions (especially fact, judgment, discretion and policy) which the public body has the role of deciding for itself”.

Time and time again judicial reviews have been brought before the Court questioning the decisions based on the ‘merits’ of cases. I think it is time that the principles involved in dealing with ‘merits’ cases ought to be properly brought to the attention of all concerned with this aspect of administrative law. Those principles have been very lucidly and comprehensively put by Fordham (supra) at 254-255 in 15.5.1 and at the risk of being lengthy they are set out hereunder:

“Judicial review is not “merits” review. R v Secretary of State for Education and Employment and the North East London Education Authority, ex p M [1996] ELR 162, 205C-E (Simon Brown LJ: “It has been said time without number that in exercising its supervisory jurisdiction this court is not concerned with the substantive merits of an administrative decision and will not entertain an appeal on the facts”); Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 401G (Lord Fraser: “The issue here is not whether the minister’s instruction was proper or fair or justifiable on its merits. These matters are not for the courts to determine”); R v Somerset County Council, ex p Fewings [1995] 1 All ER 513 (Laws J), 515c-e & f-g (“one of [judicial review’s] most important characteristics is not, I think, generally very clearly understood. It is that in most cases, the judicial review court is not concerned with the merits of the decision under review. The court does not ask itself the question; ‘Is this decision right or wrong?’. Far less does the judge ask himself whether he would himself have arrived at the decision in question... The only question for the judge is whether the decision taken by the body under review was one which it was legally permitted to take the way that it did”.)

Fordham goes on to state:

“Champion v Chief Constable of the Gwent Constabulary [1990] 1 WLR 1, 12C-D (Lord Ackner, dissenting in the result: “On judicial review the court does not operate as a court of appeal, analysing the evidence and reaching its own conclusion as to the correct decision... your Lordships [are] not concerned with the merits of the Chief Constable’s decision, which at first sight ... may seem to some a surprising one”).

(d) Procedural impropriety

As I stated earlier there is no procedural irregularity. Here the first ground of judicial review is ‘procedural impropriety’ which includes:

‘failure to observe basic rules of natural justice and failure to act with procedural fairness. The requirements of natural justice go to the procedure adopted by the decision taken and the need to allow each party an opportunity to put his case’. (Immigration Law & Practice by Jackson at 19.13).

The applicant was not denied natural justice, he was given the opportunity of appearing before the interviewers which he and Mr. Sami did.

The Report of the Panel on the applicant was that it ‘reflected poor leadership capabilities ... which was relevant to the First Respondent’s selection process’ (Lee affidavit).

There was procedural fairness and no denial of natural justice. On this aspect Fox J in Hurt v Rossall and Others (1982) 62 F.L.R. 102 at 108 said as follows which is worth bearing in mind and is pertinent to this case:

“Certainly, what natural justice requires in one case may be quite different from what it requires in another. In Russell v Duke of Norfolk [1949] 1 All E.R. 109, at p.118, Tucker L.J. said: “The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth.” Kitto J. stated the situation in an often cited passage in Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 C.L.R. 475, at p.504: “What the law requires in the discharge of a quasi-judicial function is judicial fairness. This is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances.”

The said affidavit of Mr. Tom Lee sets out in considerable detail how the applications were made by the applicant and the Interested Party and what procedure was followed by the PSC in considering the application. He also states how the PSC pursuant to powers granted it under s147(1)(a) of the Constitution proceeded with the function of appointing to the Post in question.

In circumstances such as the present how natural justice is applied in the discharge of quasi-judicial functions is very well summed up in the following passage from the judgment of Lord Morris of Borth-y-Gest in the House of Lords case of Wiseman v Borneman (1971) A.C. 297 at 308-309 which I consider is apt and ought to be borne in mind:

“My Lords, that the conception of natural justice, should at all stages guide those who discharge judicial functions is not merely an acceptable but an essential part of the philosophy of the law. We often speak of the rules of natural justice. But there is nothing rigid or mechanical about them. What they comprehend has been analysed and described in many authorities. But any analysis must bring into relief rather their spirit and their inspiration than any precision of definition or precision as to application. We do not search for prescriptions which will lay down exactly what must, in various divergent situations, be done. The principles and procedures are to be applied which, in any particular situation or set of circumstances, are right and just and fair. Natural justice, is has been said, is only “fair play in action”. Nor do we wait for directions from Parliament. The common law has abundant riches: there may we find what Byles J. called the justice of the common law” (Cooper v Wandsworth Board of Works [1863] EngR 424; (1863) 14 C.B.N.S. 180, 194).

The applicant says that the decision is ‘irrational’ and ‘unreasonable’ but on the evidence I do not find it to be so or Wednesbury unreasonable to upset the decision. It is not a decision that is ‘so unreasonable that no reasonable authority could ever have come to it.’ [Associated Provincial Picture Houses Ltd v. Wednesbury Corporation (1988) –234]. The Court if it does interfere, it does so ‘not as an appellant authority to override a decision of the World Authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them.’ (Wednesbury case ibid).

(e) Reasons for decision

On this first ground the applicant expected ‘reasons’ to be given for the PSC’s decision.

The PSC had in its letter dated 7 April 2005 (Tom Lee Annexure PSC 12) informed him the outcome when it stated ‘I refer to your application in respect of the above vacancy and regret to advise that it has been unsuccessful.’

That in itself is sufficient enough ‘reason’ or response in a case of this nature. What more does the applicant expect to be told? The nature of the case was such that it involved analyzing, inter alia, qualifications and experience etc. and the Court in this type of situation does not interfere and attempt to substitute its own view to that of PSC unless of course there are breaches of the accepted ground for the review of a decision in a judicial review.

In regard to the mode of ‘reason-giving’, His Lordship Sir Louis Blom-Cooper Q.C. in Regina v Lambeth London Borough Council Ex parte Walters 1993 TLR 483 at 485 made the following observation which I consider ought to be noted in a case of this nature.

“Setting too high a standard of reason-giving might produce the unfortunate result of over-legalising what was quintessentially an informal procedure of public administration. The question was always one of degree, not that reasons should or should not be required.”

Here I find the notification that the applicant was unsuccessful was sufficient. To use the words of Hooper J in Regina v Ministry of Defence Ex Parte Murray 1997 TLR (C.A.):

“Judicial review was unlikely to succeed where the reasons were easily discernible albeit not expressed or where no other conclusion than that reached was realistically possible.”

Second Ground

Is this a case of legitimate expectations?

The other ground on which the applicant relies for judicial review is that he is entitled to ‘legitimate expectation’ in that the respondent (the PSC) would have appointed him rather than the Interested Party (Mr. Sami).

The reasons for raising this ground has already been stated hereabove.

In this case I find that no question of legitimate expectation arises.

These two applicants were eyeing for the same post and had applied for it pursuant to the Gazette advertisement.

The PSC looked at the merits of each applicant. The Commission had before it all the necessary facts together with both the applicants’ qualifications and experience.

The applicants were heard and the PSC came to a decision.

No doubt ‘legitimate expectation’ is an accepted concept which has to be taken into account when considering whether the applicant has had a fair hearing. Here the applicant had a fair hearing after having been afforded ample opportunity to express his views.

Legitimate expectation ‘arises where a person responsible for taking a decision has induced in someone who has been affected by the decision a reasonable expectation that he will receive or retain a benefit or that he will be granted a hearing before the decision is taken. (Judicial Review of Administrative Action by de Smith, Woolf and Jowett 5^th Ed. 147 8-037).

No such situation has arisen in this case, but then of course ‘legitimate expectation’ could arise in many different circumstances there being no exhaustive list of these situations.

The situation here was that the PSC had to arrive at a decision by simply inquiring into the capability and diligence etc of the Applicant and the Interested Party based on the material of professional and academic character presented to it and the Panel and to see that the person promoted is a fitter person for the post.

The PSC came up with the said decision. The Court does not interfere in this exercise as there are statutory powers vested in the PSC which it exercised properly unless there are obvious or glaring errors. As was said in Ansell v Wells & Others [1982] FCA 186; 63 FLR 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.”

Here the power was conferred on the PSC to make a decision affecting the rights or legitimate expectations of the applicant. In the performance of its duties there was no breach of the provisions of the Constitution as alleged and hence there is no merit in this ground of legitimate expectation in this case.

Conclusion

To conclude, upon a careful consideration of all the affidavit evidence before me, upon hearing counsel and considering their useful written submissions and bearing in mind the authorities I find that this application for judicial review has no merits.

The law on the subject of exercise of administrative powers in judicial review particularly in the filling of ‘Posts’ as here has been well put and summarized by Brennan J in Attorney-General (N.S.W.) v Quinn (1990) 170 C.R.R. at p.35 as follows:

“The question can be put quite starkly: when an administrative power is conferred by the legislature on the executive and its lawful exercise is apt to disappoint the expectations of an individual, what is the jurisdiction of the courts to protect that individual’s legitimate expectations against adverse exercises of the powers? I have no doubt that the answer is: none, Judicial Review provides no remedies to protect interests, failing short of enforceable rights, which are apt to be affected by the lawful exercise of executive or administrative power. If it were otherwise, the courts would be asserting a jurisdiction, in protection of individual interests, to override the law by which a power to affect those interests is conferred on the repository.”

The PSC was well within its powers in the manner in which it considered the applications. The process and the procedure by which it arrived at its decision cannot be faulted.

What the Commission is required to do in considering an application of this nature has been well stated by the Court of Appeal in Anuradha Charan v Public Service Commission & Others, Civil Appeal No. 2 of 1992 when it said:

“The Commission must evaluate evidence of all aspects of the candidate’s abilities, qualifications and attitudes. Having done so, they are left with a discretion to decide the suitability of a candidate for the post under consideration. That discretion must include the right to decide, if based on proper grounds, that despite fulfilling all the stated qualification, the candidate may still not be suitable.”

Considering the evidence and the nature of the application it did not warrant the giving of reasons in the form expected by the applicant for the decision reached by the PSC. It was purely a question of choosing between the two applicants who both had good qualifications and who were quite experienced in their respective areas. The PSC chose Mr. Sami after proper deliberation. It cannot be said that the decision was so unreasonable that it should be disturbed in any way. A fair hearing was given to the applicants by the PSC and the Panel.

For these reasons the application for judicial review is dismissed. Each party bear his own costs.

D. Pathik
Judge

At Suva
30 November 2005