State v Public Service Commission, Ex parte Kunabuli [2006] FJHC 39; HBJ0043R.2005 (3 February 2006)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. HBJ0043 OF 2005

THE STATE

- v -

PUBLIC SERVICE COMMISSION
Respondent

TOMASI TUI
Interested Party

Ex-parte: PAULA SARANIOGO KUNABULI
Applicant

Counsel: Mr. J. Raikadroka for the Applicant
Ms. A. Uluiviti for the Respondent
Interested Party not represented

Date of Hearing: 20th January 2006
Date of Ruling: 3rd February 2006

RULING UPON APPLICATION FOR LEAVE TO APPLY FOR
JUDICIAL REVIEW

Counsel for the Applicant, in argument, put forward two bases upon which he sought leave for Judicial Review:

1. Whether the successful candidate, Mr. Tomasi Tui, for the post of Commissioner, Ministry of Fijian Affairs, Culture, Heritage and Provincial Development met the appointment qualification concerning the years of service required and in particular at US03/04 level.
   
2. Whether the Public Service Commission is required to give reasons for its decision,
   
   • (a) as a matter of course,
     
   • (b) only upon request.
     

I have before me the application for leave to apply for Judicial Review, the statement filed pursuant, the affidavit of Paula Saraniogo Kunabuli in support, an ex-parte motion to stay the appointment pending judicial review, all filed on the 5th of December 2005, and the affidavit of Paula Saraniogo Kunabuli filed on the 19th of January 2006.

The position of Commissioner for the Eastern Division and also one other division was advertised in the Public Service Official Circular on the 28th of February 2005. It contained a description of the duties and responsibilities of the Commissioner and than set out the qualifications required of applicants for the post. The advertisement concluded as follows:

“The best graduate with specialist degrees entering the service at SS03/04 or equivalent may achieve this level after not less than 16 years of service including at least 3 years at US03/04 level in their respective disciplines. Non-specialist graduates and non-graduates may achieve this level with not less than 18 and 21 years service respectively unless specialised training leading to appropriate higher level qualifications has been completed during their career.”

Mr. Raikadroka stated that his client, the applicant, met all these criteria. He alleged the Interested Party did not. The applicant’s supplementary affidavit status that the interested party, Mr. Tui, “was appointed to the US04 Grade on the 8th of November 2002 and at the date of advertisement had only about 2 years of service in the grade.”

Further, it was alleged that Mr. Tui having been appointed to the service on the 7th of January 1972 did not have any tertiary qualifications and had only satisfied the X3 service exams. He argued that the final two sentences of the ‘qualifications’ section should be read conjunctively and that before a candidate could be considered for the post he or she was required to have at least 3 years service at US03/04 level in their respective disciplines.

Ms. Uluiviti for the respondent argued that, whilst the wording is not as clear as it could be, nevertheless the two sentences should be read disjunctively. The first sentence set out the criteria for “the best graduate with specialist degree entering the service at SS03/04”. That person could achieve the minimum qualification level for the post after not less than 16 years of service of which at least three have to be at US03/04 level in the respective discipline.

She stated it was clear that a separate set of criteria apply to “non-specialist graduates and non-graduates”. Those criteria were that the qualification level might be achieved after 18 years of service for a non-specialist graduate and 21 years for a non-graduate. It would help a non-specialist graduate or a non-graduate if specialised training leading to appropriate higher level qualifications had been completed during their career. It was not argued that this last sentence was applicable in the case of Mr. Tui.

It is common ground that Mr. Tui was appointed to the service in January 1972 and has therefore met the 21 years service qualification criterion for non-graduates.

The respondent therefore argues that any complaint about Mr. Tui’s appointment can only be based on relative merit, which cannot be the subject of judicial review.

In my judgment, the interpretation advanced on behalf of the respondent is the correct one. Whilst the wording of the advertisement might have been a little clearer there is nothing on the face thereof to suggest that the sentences should be read conjunctively and that the criterion for “at least 3 years at US03/04 level” should be imported into the requirements made of a non-specialist graduate or non-graduate. In these circumstances there can be no complaint upon this ground which would give rise to the granting of leave to apply for judicial review.

The second ground of application can be dealt with shortly.

It was advanced in argument that the respondent had failed to give reasons for its decision. This complaint does not appear on the face of the application for leave nor the statement filed pursuant to the application. There is reference in the supporting affidavits. Nevertheless this issue was addressed in argument. The plain fact, as conceded by Mr. Raikadroka, is that his client was informed of the result of the application yet made no request for reasons to be given.

In the absence of a request for reasons, whether or not they should be given as a matter of course, it cannot be argued that there has been any procedural unfairness or failure to meet a legitimate expectation of an unsuccessful candidate.

Accordingly this application for leave for judicial review is rejected. I order the applicant to pay the respondent costs assessed at $300.00.

(R.J. Coventry)
JUDGE