State v Public Service Appeal Board, Ex parte Prasad [2005] FJHC 53; HBJ0039J.2003S (11 March 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. HBJ 039J OF 2003S

IN THE MATTER of an application by JAGJENDRA PRASAD
seeking Leave to apply for Judicial Review
under RHC Order 53 rule 3(2), the Applicant.

AND

IN THE MATTER of the decision of the
Public Service Appeal dated 9 October
2001 disallowing the Applicant’s appeal
against the provisional promotion of
Ram Prem, the Respondents.

THE STATE

V.

PUBLIC SERVICE APPEAL BOARD
FIRST RESPONDENT

MINISTRY OF EDUCATION
SECOND RESPONDENT

RAM PREM
INTERESTED PARTY

EX-PARTE: JAGJENDRA PRASAD
APPLICANT

Counsel for the Applicant: R. Singh: Kohli & Singh
Counsel for the 1st Respondent: H. Rabuku: Public Service Commission
Counsel for the 2nd Respondent: J. Raikadroka: Attorney-General’s Chambers
Interested Party: In Person

Date of Judgment: 11th March, 2005
Time of Judgment: 9.30 a.m.

JUDGMENT

This is a claim for judicial review by the Applicant against the decision of the Public Service Appeal’s Board, the first Respondent, of 9 October 2003 to disallow the Applicant’s appeal against the third Respondent’s provisional promotion to be Head Teacher of Sawani Indian School. The reliefs sought are for an order of Certiorari to remove the decision of the Board into Court and the same be quashed; for a declaration that the decision of the Board was in excess of jurisdiction, erroneous, irrational, unreasonable and unfair and therefore null and void; for a declaration that the Applicant met the Minimum Qualification Requirement (MQR) and that he is entitled to have his promotion back-dated; and for an order of mandamus directing the Board to re-hear the appeal.

BACKGROUND

The facts of the case can be briefly described as follows. The post of Head Teacher, Sawani Indian School, was advertised in the Public Service Commission Official Circular No. 13 of 2001. It read:

“495/2001 SAWANI INDIAN SCHOOL

To administer a ED5E primary school, offer professional guidance to the staff, teach and liaise with the school committee, parents and the ministry of education staff. The appointee should be able to contribute towards a social and cultural life of the school and supervise the teaching of vernacular.

Qualifications: Qualification as for teach ED8 and at least 4 years with superior assessment in ED5A-D or 5 years in ED6 grade. Completed 3 years rural service or superior assessment in the last 3 years. Proven administrative ability and management skills. For a Special Education post, a relevant tertiary qualification from a recognised institution. Potential to advance to a high post.”

According to the First Respondent, the Second Respondent received 15 applicants in all for the post. The Second Respondent on 14 November 2002, appointed the Interested Party to the post, on a provisional basis for a period of 21 days to allow for appeals. This the Applicant did which appealed was filed with the First Respondent. The appeal was dismissed and which resulted in this application.

THE LAW

The law on what administrative action is subject to control by judicial review is succinctly summarised in the leading case of Council of Civil Service Unions & Others v. Minister for the Civil Service [1983] UKHL 6; [1984] 3 All ER 935. Three of the five law lords, Lord Scarman, Lord Diplock and Lord Roskill agreed that, the remedy is available under the following situations:

(1) illegality, where the decision-making authority has been guilty of an error, e.g. by purporting to exercise a power it does not possess;

(2) irrationality, where the decision-making authority has acted so unreasonably that no reasonable authority would have made the decision; and

(3) procedural impropriety, where the decision-making authority has failed in its duty to act fairly.

In elaborating on the 3 grounds Lord Diplock stated at pp.950 – 1:

“By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justifiable question to be decision, in the event of dispute, by those persons, the judge, by whom the judicial power of the state is exercisable.

By “irrationality” I mean what by now be succinctly referred to as “Wednesbury unreasonableness” (see Associated Provincial Picture Houses Ltd. v. Wednesbury Corp. [1947] EWCA Civ 1; [1947] 2 All ER 680, [1948] (KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.

I have described the third head as “procedural impropriety” rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the persons who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice.”

These characteristics of the Court’s supervisory jurisdiction in judicial review were reiterated in R v. Panel on Takeovers and Mergers, ex p. Datafin Plc [1986] EWCA Civ 8; [1987] QB 815 and more recently in Reid v. Secretary of State for Scotland [1999] 2 AC 51.

THE APPLICATION

The grounds upon which the claim is based are neither concise nor precise. The pleadings do not point the Court or the Respondents to the exact public law wrongs the First Respondent is alleged to have committed. However, it seems clear from the Applicant’s affidavits and submissions that the grounds upon which the claim is based, using Lord Diplock’s terminology in the Council of Civil Service Union (supra), are illegality and irrationality.

First, illegality. Under this head, the Applicant is claiming that the First and Second Respondents had been guilty of an error in stating that he failed to meet “at least five years service in ED6 grade required under the advertised MQR.”

The Applicant contended that the Respondents were wrong in not including the period from 21 January 1996 to 29 November 1996, when he had acted as Assistant Head Teacher in the ED6 grade, in the 5 years requisite qualifications for ED6 applicants to the vacant post. This period together with the period from 21 January 1997 when he was promoted to the substantive post of Assistant Head Teacher in the ED6A category, would have added to more than 5 years thus qualifying him, under the MQR of the PSC Circular. Furthermore, he argued that his subsequent appointment as Assistant Head Teacher should have been backdated to 22 January 1996 when he was appointed as Acting Head Teacher. This, he said, was in accordance with Order 404 (b) of the General Orders 1993.

General Order 404 (b) stipulates that:

“(b) Where an officer has been continuously acting with full acting allowance in a substantively vacant post to which he is subsequently promoted, his promotion shall be backdated to the date he commenced acting provided that he was fully qualified for appointment to that post when he started acting in it. Otherwise his effective date of promotion is the date of the Commission’s decision.”

The position of the 1st and 2nd Respondents is that the Applicant cannot claim he period 21 January to 29 November 1996 as a qualifying period, because it did not meet the “continuous” acting requirement under General Order 404 (b). In effect, this position is made very clear, in his letter of appointment from the PSC of 29 February 1996. It said:

“I am pleased to inform you that the Public Service Commission has decided to appoint you to act as Assistant Head Teacher TE07, Sawani Indian School in the grade TE07 with effect from 22/1/96 to 29/11/96 or the date the appointment is revoked, whichever is earlier.

You will receive the full acting allowance.”

On the plain reading and interpretation of the General Orders 404 (b) together with his letter of appointment of 29 February 1996, there cannot be any doubt that the Applicant’s acting appointment terminated on 29 November, 1996. But as far as this Court is concerned, that is not the issue. The issue is whether the Applicant’s acting period between 21 January to 29 November, can legitimately be included to the “5 years in the ED6 grade.” The MQR does not speak of “continuous” 5 years in the ED6 grade. The phrase “continuously acting” has been introduced into the equation only because of the Applicant’s claim that his effective date of promotion to the part of Assistant Head Teacher, should have been backdated to 21 January 1996.

As to the Applicant’s claim for backdating, the application is misconceived. The application before me is a claim for judicial review against the decision of the Public Service Appeals Board, the 1st Respondent, for disallowing the Applicant’s appeal against the 3rd Respondent on the latter’s promotion as Head Teacher of Sawani Indian School. The Applicant’s action to rope in the Ministry of Education as the 2nd Respondent and then purportedly attempt to remedy what he now alleges to be a public wrong committed in 1996, by seeking a declaration from the Court that the 2nd Respondent’s action in 1996 was illegal, is not only out of time but clearly an abuse of the Court procedure. The Applicant’s application in this respect is dismissed.

As to whether the period of 21 January to 29 November, qualify towards the “5 years in the ED6 grade” as required by the MQR for the post of Head Teacher, the answer is not as clear, but the presumption that the period of acting qualifies as time spent on the ED6 grade, must be in favour of the Applicant. There are many acting roles and capacities recognised in the public service. There are those that are shared between 2 or more individuals; those that without full acting allowances; and those with full acting allowances. The Applicant in this instance, was appointed with full acting allowances. Full acting allowance is normally given to an officer that requires him in his acting appointment to undertake the full duties and responsibilities of an office higher than his own (see General Order 465). To all intents and purposes, such an officer is a substantive post holder, for not only does he act the post, but assumes full responsibilities for the post, and equally important, full consequences for his actions.

The Applicant in this case was appointed to act in a higher post of Assistant Head Teacher for a full academic year, with full acting allowance. That he successfully carried out the responsibilities of the office is evident from his promotion to the post at the beginning of 1997. In my view, the Applicant’s period of acting from 21 January to 29 November 1996, qualify and can be included to the requirement of 5 years in the ED6 grade under the MQR. To the extent therefore that the Respondent may have decided that the said period did not qualify, such conclusion, in the Court’s view is mistaken.

There is however the question of whether this mistake or error alone makes the 1st Respondent’s decision null and void. For it to be so, the Applicant must show that the error was fundamental and decisive in the 1st Respondent’s deliberation. In other words, the issue of the Applicant not meeting the 5 years MQR was the pivotal factor in the decision not to promote him over the other. I am satisfied that this is not the case. The record of the First Respondent and the deliberations including the assessment made by the 2nd Respondent and tabled before the Board, are detailed enough covering all aspect of both the Applicant and 2nd Respondent’s past records and achievements.

The 1st Respondent’s decision, it is clear from the records of its meeting, was not based solely on the issue of MQR. There were other factors over and above the MQR, including the seniority and wider experience and superior Annual Confidential Reports (ACR) that swayed the 1st Respondent to decide in favour of the Interested Party. MQR of its own therefore was not the overwhelming factor. But even on its own application to both the candidates, the Interested Party’s MQRs were still far superior to those of the Applicant.

In this instance, it is unfortunate that the 1st Respondent had in its reason for its decision which it conveyed to the Applicant, specifically identified MQR as the only ground for the Applicant’s non-success. Obviously from the record before the Court, this was not the case, and while an Applicant is entitled to be given relief it the decision-maker was wrong in fact and in law in reaching its conclusion, the error in this instance would not in the Court’s view, have made any difference to the final conclusion by the Respondent. As the Court correctly pointed out in State v. Public Service Appeals Board Ex-p. Jone Keteca CA HBJ0009.2003:

“even if I came to the conclusion that the applicant’s qualifications were so dramatically superior (which I do not) to that of the other party, this Court would still not be justified in intervening unless it came to the conclusion that the applicant’s qualification were so dramatically superior to that of the other that no reasonable tribunal could have come to the conclusion to the contrary.”

This Court holds the same in this case. The fact that the years for qualification of the Applicant under MQR may have been wrongly decided by the 1st Respondent and given as the only reason for the Applicant’s failed appeal, it would not, in the light of the evidence presented to this court, be adequate of its own, to justify the Court's intervention . It is more than likely that a reasonable tribunal would come to the same conclusion, even if the Applicant qualified under the “5 years in the ED6” MQR.

The Applicant’s second ground is based on irrationality and more commonly referred to as “Wednesbury unreasonableness.” i.e. taking irrelevant matters into account and failing to take relevant matters into account.

In support for this argument, the Applicant detailed a list of matters that the 1st Respondent had failed to take into account, which he believed were relevant to its decision. These include the claim that the Interested Party had not made any efforts to advance his academic qualifications since becoming a teacher; that the Interested Party was only one of two ED5D Assistant Head Teachers in the school, and according to the Applicant, had lesser responsibility in teaching classes 1 to 5; that the Interested Party had, since his last promotion in 1992, failed to apply for any higher post in the last 10 years and would only apply for posts in larger schools because of higher remuneration. On the matters of the Applicant, the 1st Respondent had failed, according to the Applicant to consider his good performance record including “proven administrative ability and management skill.” In addition, he has completed 9 units towards a Bachelor of Arts programme at the University of the South Pacific and as ell as the support of the school management.

The record of the deliberation of the 1st Respondent, as annexed to the affidavit by Josese Bisa, the Board’s Secretary, does not support the Applicant’s contention. The paper prepared and placed before the 1st Respondent categorised in details the work histories of both the Applicant and the Interested Party. This included their respective academic qualifications, work assessments and annual reports (Annual Confidential Reports) length of services, and promotions and acting appointments. The Board paper is comprehensive, to say the least, and it is very clear to this Court, that the 1st Respondent had taken into accounts all relevant matters, which the Applicant claims it failed to do.

The Applicant also relied on section 140 (b) and (c) of our Constitution, which states as follows:

“140. The recruitment of persons to a state service, the promotion of persons within a state service and the management of a state service must be based on the following principles:

(a) ....

(b) Appointments and promotions should be on the basis of merit;

(c) Men and women equally, and the members of all ethnic groups should have adequate opportunities for training and advancement;

(d) ....”

As this Court has already found as a matter of fact above, all relevant matters relating to each candidate for the post of Assistant Head Teacher, Sawani Indian School, were placed before the Board. That is enough. The Court will not interfere on the finding or decision of a tribunal, including a review of the evidence with the purpose of forming its own view about the substantial merits of the Applicant’s case (see Reid v. Secretary of State for Scotland [1998] UKHL 43; [1999] 2 AC 512 per Lord Clyde at p.541).

The Applicant however had further argued that the Interested Party’s failure to apply for promotion or higher posts in the last 10 years, precludes him “from claiming the right to equal opportunity” under section 140 (c) of the Constitution. This is a novel legal argument. Is the Applicant arguing that anyone who failed to take opportunities to apply for promotions and let them go by, should be excluded from opportunities to apply for higher positions later? Howsoever novel this argument may appear to be, this Court does not agree that it has any merit. The fact that the Interested Party had not taken earlier opportunities to apply for a promotion, does not mean that his opportunity to do later is diminished to the benefit of the Applicant. I do not believe that S.140 (c) of the Constitution was intended to be interpreted in this way.

In the end, I find that the Applicant has failed to show any merit in his claim.

The Application is dismissed. Each party to bear its own costs

F. Jitoko
JUDGE

At Suva
11 March 2005