State v Public Service Appeals Board, Ex parte Kumar [2005] FJHC 749; HBJ22D.2005S (12 July 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. HBJ 22D OF 2005S

BETWEEN:

STATE

V.

THE PUBLIC SERVICE APPEALS BOARD
THE CHIEF EXECUTIVE OFFICER EXUCATON

EX-PARTE:

SHIU KUMAR

Counsel for the Applicant: J. Raikadroka: Raikadroka Law
Counsel for the 1st Respondent: E. Veretawatini: Veretawatini Esq.
Counsel for the 2nd Respondent: A. Pratap: Attorney-General’sChambers

Date of Decision: 12 July 2005
Time of Decision: 10.00 a.m.

DECISION

The purpose of an application for stay in Judicial Review is to restrain the implementation of a decision or proposal of a public authority or body, which is potentially ultra vires pending the hearing of the Judicial Review application to determine its validity.

The Applicant in this case argues that the decision of the 1st Respondent in upholding the 2nd Respondent’s decision in promoting one Ram Suresh over him,
was both irrational and unreasonable. The point of contention is whether one’s tenure in the position of an acting appointment is a consideration in the assessment under MQR requirements of the Public Service. Notwithstanding the 1st Respondent’s assertion that the issue of the Applicant’s 5 years acting appointment in the grade ED5E had been considered, the issue is whether the Board considered it relevant on not to the MQR frame.

I am satisfied that the Applicant has raised a serious issue and that his claim is neither frivolous nor vexatious.

Having received submissions and especially the latest on the postings of the parties to this proceedings, I am also satisfied that the balance of convenience favours the Applicant and that the status as of today, be not disturbed, until, I decide otherwise.

Having decided on the stay, I believe it follows that I should grant leave for Judicial Review sought by the Applicant. It is in everyone’s interest that this matter is dealt with promptly and under the circumstances I make the following orders:

(1) Order is made for Stay of the implementation of the decision of the 1st Respondent of 29 October 2004.

(2) Leave is hereby granted to the Applicant for judicial review.

(3) Applicant is granted leave to file submission within 14 days.

(4) Respondents have 14 days thereafter to file submissions with liberty to the Applicant to respond 14 days thereafter.

Adjourned to August 31 2005 at 10.00 a.m. for arguments.

F. Jitoko
JUDGE

At Suva
12 July 2005