Taulia v Medical Superintendent [2007] FJHC 91; Civil Action 77.2002 (25 September 2007)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO.: 77 OF 2002

BETWEEN:

ATECA TAULIA
Plaintiff

AND:

THE MEDICAL SUPERINTENDENT
THE PERMANENT SECRETARY FOR HEALTH
THE ATTORNEY GENERAL OF FIJI
Defendants

Counsels: Mr. H. Robinson for the Plaintiff
Mr. H. Rabuku for the Defendants

Date of Hearing: 21st August 2007
Date of Judgment: 25th September 2007

JUDGMENT

[1] Ateca Taulia is a pharmacist having graduated in 1994 from the University of Otago with a degree in Bachelor of Pharmacy. She came to Fiji and was appointed Temporary Pharmacy Officer by the Public Service Commission. The period of initial appointment was from 13th March 1995 to 12th June 1995. This temporary appointment was further extended to 12th December 1995, by letter dated 20th July 1995 – (document 2). While she was holding this Temporary Pharmacy Officer’s post, she was appointed by the Public Service Commission to act as Senior Pharmacy Officer from 23rd August 1995 to 12th December 1995: see document 4 dated 11th October 1995. She was paid for acting in the post of Senior Pharmacy Officer up till 12th December 1995.

[2] After 12th December 1995 she continued to conduct the duties of the Senior Pharmacy Officer. This was done at the request of the Medical Superintendent at Labasa Hospital. She continued to carry out such duties without being paid for the extra duty she performed. This state of affairs lasted till 19th February 1997. From 19th February 1997 she was put on probationary appointment as a Pharmacy Officer for a period of one year. It was done by a letter dated 11th April 1997. Nineteen days later she was appointed to act as Senior Pharmacy Officer for three months from 19th February 1997 to 1st June 1997.

[3] This claim is for an allowance for the period 12th December 1995 to 19th February 1997 while she carried out duties of Senior Pharmacy Officer. She also claims a further sum of $12,682.12 for loss of wages and entitlements as Principal Pharmacy Officer from 1st August 1999 to 31st October 2001. This latter claim was abandoned.

[4] The defence as filed is evasive. It does not meet the issues head on. It basically provides dates of appointment to different posts of the plaintiff. Regarding the period 13th December 1995 to 18th February 1997, it states that during the period 13th December 1995 to 18th February 1997 the plaintiff shared the responsibilities and allowance of the acting Pharmacy Officer with one Rajendra Prasad.

[5] The Public Service Commission has the Constitutional function to appoint, discipline or to remove public servants: Section 147 of the Constitution. Consistent with that duty it first appointed the plaintiff to the post of Temporary Pharmacy Officer, extended that period of appointment till 12th December 1995 and to act as Senior Pharmacy Officer on occasions for a limited period. Such appointments be they permanent, temporary or acting cannot be done by the Medical Superintendent or the Chief Pharmacist. They could recommend that the plaintiff act in certain capacity but not appoint. In fact she was recommended by the Medical Superintendent and the Chief Pharmacist to the post of the Senior Pharmacist. The recommendation was sent to the Permanent Secretary for Health. Whether these recommendations were then forwarded to the Public Service Commission, I do not know. These recommendations may still be sitting at the office of the Permanent Secretary for Health as there has been no response either of approval or rejection by the Public Service Commission.

[6] Effectively the State’s argument is that the plaintiff supplied the services under a void contract as she was not appointed by proper authority. The underlying rationale behind this policy is to protect the public purse. The opposing argument is that the State has benefited from the services provided or goods supplied and it would be grossly unfair for the supplier if she was not remunerated. In Wade v. Gold Coast City Council 1972 LGRA 349 Hoare J. expressed the view that a supplier to the government could claim on the basis of quantum recruit. However that was only an obiter statement.

[7] In the present case, the powers of appointment lie with the Public Service Commission. It is the Public Service Commission which is empowered to commit the State to an employment contract regarding the civil service. Neither the Medical Superintendent nor the Chief Pharmacist had the necessary authority to appoint. A public servant who lacks authority altogether or exceeds his or her authority and purports to bind the government, then the contract is void: Seddon on Government contracts 3rd edition at page 148.

[8] I am of the view that the plaintiff was aware that the final say on appointment rested with the Public Service Commission. The appointment letter, the letter of extension and acting appointments originate from that source. Further in a letter dated 8th August 1996 (document 8) she stated that "I am thus being paid manually by cheque as a Temporary Pharmacy Officer without an EDP number and with no extension to my acting appointment at all". Further on 10th February 1997 (document 10) she stated that "the acting appointment has never been reactivated despite my consistent letters and phone calls of enquiry to Mr. Hira Mani".

[9] The expertise and competence of the plaintiff are unquestionable. So is her dedication to duty. In the hope that those in authority would act in fairness towards her and grant her the deserved appointment, she provided her services in acting post free. However this was not to be. In frustration she left the Public Service. I have my sympathies for the plaintiff but given the facts of this case, this Court is not in a position to grant her any relief, bound as I am by the law of the land. The action is dismissed but given that the State has gained so much from her free services, I make no order as to costs.

[ Jiten Singh ]
JUDGE

At Labasa
September 2007