State v Land Transport Authority Appeal Committee, Ex parte Prasad [2005] FJHC 695; HBJ0018.2004L (11 November 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. HBJ0018 OF 2004L

BETWEEN:

THE STATE

AND:

LAND TRANSPORT AUTHORITY APPEAL COMMITTEE
Respondent

Ex-parte: SHALENDRA PRASAD
f/n Sant Prasad
Applicant

Mr. H.A. Shah for the applicant
No Appearance for the respondent

Date of Hearing: 2 September 2005
Date of Ruling: 11 November 2005

RULING

The applicant applies for Judicial Review of the decision of the respondent of the 18^th August 2004.

Leave was granted to the applicant on the 15^th November 2004 and on that same day, an interim stay of the respondent’s advertisement circulated on the 4^th November 2004 was granted by the Court.

The respondent did not appear on the hearing of the application, however, the respondent did forward to the Court a notice purportedly signed by the chairman of the respondent dated the 14^th November 2004. In that notice the respondent says:

“(1) The Land Transport Authority Appeal Committee, which is independent of the Land Transport Authority, dealt with the appeal by Faiyum Ali against the provisional promotion of Shalendra Prasad. The Committee concluded that it was unable to decide on the appeal because the advertisement for the post presented to the Committee by Land Transport Authority was defective. The Appeal Committee is not responsible for the re-advertisement of the post.

(2) The Land Transport Authority Appeal Committee denies that it misread clause 27 of the Collective Agreement.”

In support of the application, the applicant relies upon his affidavit filed on the 9^th November 2004.

The applicant was a Vehicle Examiner with the Land Transport Authority stationed in Lautoka. In or about February 2004, the Land Transport Authority advertised internally for the post of Senior Vehicle Examiner to be stationed in Ba. The applicant applied for the position. On the 23^rd February 2004, the applicant was provisionally promoted to the post of Senior Vehicle Examiner, Ba. One Faiyum Ali appealed to the respondent against the promotion of the applicant.

Clause 27 of the Collective Agreement between the Land Transport Authority and the applicant and other employees sets forth the qualifications required for a Senior Vehicle Examiner. Those qualifications are:

“Qualification required for appointments as a Vehicle Examiner with more than two (2) years in that grade or equivalent and relevant skills and experience in this particular field. Knowledge of Land Transport Act and Regulations OR

Relevant diploma from a recognized institution with at least two (2) years experience in a similar position. Mechanical knowledge is essential.”

The advertisement circularized internally within the Land Transport Authority sets forth the minimum qualifications in terms identical to that contained in Clause 27 of the Collective Agreement.

The advertisement circulated in November 2004 contains minimum qualifications quite different from that in the earlier advertisement and those contained in the Clause 27 of the Collective Agreement. The qualification required by the advertisements are:

“Diploma in Automotive Engineering from a recognized institution with at least three (3) or more years experience as Vehicle Examiner. Must be a licensed Vehicle Examiner. Should have regulation surveillance and enforcement skills. Must be computer literate with good communication and customer relation skills. Must have a thorough knowledge of Land Transport Act and Regulations. Must be a holder of at least Group 2 and 8 Driving License for more than three (3) years. Must be able to live and articulate the LTA values.”

It is not apparent from the material before the Court as to what the respondent is referring to when it says that the Land Transport Authority submitted in an advertisement different from that to which the applicant responded and therefore the respondent was unable to determine the appeal.

The issue appears quite clear. The applicant replied to an advertisement, which set forth minimum qualifications in accordance with the Collective Agreement. There was then an appeal to the respondent. The respondent has failed to determine that appeal.

In the circumstances therefore it seems appropriate that the order of the respondent be quashed and that there be an order of mandamus that the respondent proceed to hear the appeal according to law.

To facilitate this occurring it also seems appropriate that the injunction previously granted to restrain the Land Transport Authority from advertising the position with different minimum qualification requirements should remain in place pending the determination according to law of the appeal by the respondent and accordingly, the Orders of the Court are:

1. An order of certiorari removing the decision of the respondent dated the 18^th August 2004 to this Court and upon removal the same is quashed.
   
2. An order of mandamus directed to the respondent to proceed to hear the appeal against the provisional promotion of the applicant to the position of Senior Vehicle Examiner, Ba according to law.
   
3. The position is not to be re-advertised until such time as the respondent has heard and determined the appeal according to law.
   

JOHN CONNORS
JUDGE

At Lautoka
11 November 2005