Ministry of Education and The Acting Chief Executive Officer, ex parte Singh [2007] FJHC 152; HBJ0042.2006 (13 July 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. 0042 OF 2006

IN THE MATTER of an application by RAVINDRA SINGH s/o Balram for leave to apply for Judicial Review under Order 53 of the High Court Rules 1988

And

IN THE MATTER of the decision of the ACTING CHIEF EXECUTIVE OFFICER
of the Ministry of Education dated 19th October, 2006

Between:

THE MINISTRY OF EDUCATION AND THE
ACTING CHIEF EXECUTIVE OFFICER
First Respondent

And:

THE ATTORNEY GENERAL OF FIJI
Second Respondent

Ex Parte:

RAVINDRA SINGH s/o Balram
Applicant

Counsel: Ms. T. Draunidalo for the Applicant
Ms. M. Rakuita for the Respondent

Dates of Hearing: 26th April & 11th July 2007
Date of Ruling: 13th July 2007

RULING

[1] By a letter dated 24th January 2006 the applicant, Ravindra Singh was appointed as a temporary teacher (secondary) in the Ministry of Education with effect from the 23rd of January 2006 to the 22nd of January 2007. The letter set out the terms and conditions. In particular at paragraph 4 it states,

"You will be subject to the provisions of section 140 of the Constitution of the Republic of Fiji Islands, Public Service Act 1999, Public Service (General) Regulations 1999 and General Orders, Finance Instructions, Supplies and Services Instructions and Departmental Instructions, in each case as from time to time amended."

[2] Various concerns and allegations arose in relation to the conduct of Mr. Singh in carrying out his duties under the contract. By a letter dated 19th October 2006 his appointment was terminated. That letter was signed by the "Acting Chief Executive Officer, Education". It was the Chief Executive Officer, Education, who had signed his letter of appointment. At paragraphs 2 and 3 the letter of termination stated,

"After the report of the investigation carried out on these allegations against you, it is concluded that you have been found guilty of the allegations. You have been found to have breached the following provisions of the Public Service Code of Conduct:

[Four sections of the code were then set out]

Under the powers delegated to me vide Legal Notice 92/2002 and in accordance with paragraph 3 of your letter of appointment wish to advise that your appointment as a temporary civil servant teacher in the Ministry of Education is hereby terminated with effect from 20/10/06."

[3] The applicant, by his amended application for leave to apply for Judicial Review, applied for the decision of the 19th of October 2006 to be quashed, a declaration that Mr. Singh's employment as a temporary teacher is not terminated, a declaration that the Acting Chief Executive Officer acted in breach of the applicant's legitimate expectation or abused his discretion or exceeded his jurisdiction and acted contrary to the principles of natural justice and for such further declaration or other relief as the court deemed fit.

[4] The amended Notice of Opposition alleged these proceedings are an abuse of process as the matter falls within the realm of private law and not public law. It was also argued before me that since the contract expired in January 2007 in any event the relief applied for by the applicant is academic. The applicant's counsel responded that it was Mr. Singh's reputation that was involved.

[5] I have before me the original application for leave and supporting statement and the amended application for leave and supporting statement. Further. I have the original Notice of Opposition and the Amended Notice of Opposition. I also have before me the affidavits of Ravindra Singh filed on 1/12/06, 29/3/07, 10/5/07 and 11/6/07, Ram Chandar 8/6/07, Jone Ravuikadavu 11/6/07, Ratu Esea Balaenaivalu 11/6/07 and Jimaima Uluiano 12/6/07.

[6] In my judgment the first ground of opposition raised by the respondents is unanswerable. This is not a case where Mr. Singh had been appointed as a permanent civil servant with all the responsibilities and benefits that that brings. He was appointed under a temporary contract for a fix period of one year which could be terminated by one month's notice on either side.

[7] This is a private contract and does not enter into the realms of public law. These are judicial review proceedings and as such should not have been utilised by the applicant to bring before the court any grievance which he felt arose from the termination of his contract.

[8] Counsel for the applicant has cited the fact that paragraph 4 of the letter of temporary appointment imports section 140 of the Constitution, the Public Service Act 1999, the Public Service (General) Regulations 1999 and various other regulations and provisions. The importation of these provisions does not convert this contract from one which exists in the private domain into one which is justiciable by way of judicial review. The contract remains a private one. All that has happened is that it states for the purposes of the contract the various acts and regulations which normally apply to established civil servants are imported into this contract. Accordingly this application must fail on this ground alone and I refuse leave to apply for judicial review.

[9] Applications for leave to apply for judicial review are normally decided on the face of the papers. Expedition is important. In this particular case, given the fact that the applicant has been advised to seek judicial review, rather than proceed by way of any other process, the court considered it right to hear argument from both sides as to whether, in these particular circumstances, judicial review might be maintained.

[10] The applicant in this case has had a number of adjournments and opportunities to amend the application and file additional affidavits. This has put the respondents to considerable time and expense. They are entitled to their costs and I so order.

(R.J. Coventry)
JUDGE