State v Public Service Appeals Board, Ex Parte Nagaiya [2008] FJHC 397; HBJ0017.2008 (27 August 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO.: HBJ0017 OF 2008

BETWEEN:

THE STATE

v

PUBLIC SERVICE APPEALS BOARD
Respondent

EX-PARTE:

SUDHORY NAGAIYA
Applicant

Mr. Ram Chand for Applicant
Mr. E. Veretawatini for Respondent
Ms K. Naidu for Interested Party

Date of Hearing: 18^th August 2008
Date of Judgment: 27^th August 2008

JUDGMENT

This case concerns appointment to the post of Principal Welfare Officer [Assistant Director, Corporate Services]. The post was advertised on 10^th May 2007 in the Fiji Public Service Official Circular. The applicant was one of those who applied for the post. His application was unsuccessful and one Emosi Rakai was provisionally appointed to the post. The applicant appealed the decision to the Public Service Appeals Board, the respondent body, (PSAB). The PSAB heard the appeal on 13^th November 2007. By letter dated 4^th December 2007, the PSAB informed the applicant that the PSAB was unable to reach a decision as assessment reports for the years 2004, 2005 and 2006 were not provided. In short his appeal was disallowed. It also concluded that the provisional promotee Emosi Rakai did not meet the minimum qualification requirements. It recommended that the post be re-advertised. It is this decision of the PSAB that the applicant is challenging in these proceedings.

The grounds of challenge have not been spelled out as no statement in support of judicial review was filed, as the applicant acted in person. However, the grounds so far as they can be gathered from the applicant's affidavits are that the respondent took irrelevant factors into consideration (paragraph 26 of first affidavit), that he was denied natural justice and procedural fairness and that the decision is unreasonable and irrational.

I had invited the applicant who acts in person to serve papers on the relevant Ministry namely the Ministry of Social Welfare. That was done and affidavit of service filed. There has been no affidavit in response from the Ministry. Generally it is the Ministry concerned which responds. In this case it is the PSAB which has filed notice of opposition. This is rather unusual as it is the decision of this body which is under challenge. All the PSAB ought to do is to file record of its proceedings and remain neutral in the proceedings unless the court seeks some clarification.

The minimum qualification requirements for the post are set out in the Public Service Circular. It reads as follows:

"Qualification: Advanced Social Science Degree or a recognized qualification and at least 2-3 years experience as a Senior Welfare Officer and/or Analytical/Report Writing/Presentation skills, and experience in this particular field in any other related organization with consistently good reports and assessed potential and ability to contribute to Senior level OR a Degree in Social Services or related discipline and at least 5 years experience as a Senior Welfare Officer and/or similar level of skills and experience in this particular field in any other related organization with consistently good reports and assessed potential and ability to contribute at Senior Level OR Diploma in Social Services or its equivalent with at least 7 years experience as a Senior Welfare officer and must demonstrate intellectual capacity, planning skills, drive, determination and flair in the existing grade."

A perusal of the minimum qualification requirements shows that an applicant would meet the criteria if he/she satisfied any one of the three criteria laid out in the circular. The MQR shows that an applicant needed to have a recognized tertiary qualification plus a number of years of experience. The length of experience depended on the type of qualification one had. An advanced degree holder needed only two to three years experience, a degree holder at least five years experience and a Diploma holder at least seven years experience. As the academic qualification was higher, the years of experience required became lower.

The applicant is a Diploma Holder. He has Diploma in Tropical Fisheries (not relevant to the present work), Diploma in Community Development and Post Graduate Diploma in Social Policy. The latter two are relevant qualifications.

In the year 2000 he was promoted to Senior Welfare Officer Northern. From 2001 to 2006 he was posted as Senior Welfare Officer Central/Eastern. He still is a Senior Welfare Officer. Hence he has the seven years requisite experience.

All he needed further was to demonstrate intellectual capacity, planning skills, drive, determination and flair in the existing grade. These are all very subjective matters.

The PSAB in its deliberations - page 5 of the record - stated that "as officer previously in charge of Northern and Central Division, it is concluded that he has demonstrated intellectual capacity and planning skills in the everyday running of the Division for seven years". This was a proper inference which could be made.

Having said this, the Board then went on to express somewhat contradictory conclusions. It stated that the Board is unable to assess the potential ability to contribute to a senior level, intellectual capacity, planning skills, drive, determination and flair. The only reason PSAB gave for reaching this conclusion was that the applicant's ACR's for the years 2004, 2005 and 2006 were not made available for Board's consideration.

Ms Naidu in a very forthright manner informed the court that for 2004, 2005 and 2006 there would be no ACR's as the Public Service Commission had introduced the Performance Management System so no ACR's would be available. This was across the board for all public servants.

There is nothing in the minimum qualification requirements which advises applicants to produce their ACR's. ACR's are not the only material on the basis of which the potential etc. of an applicant can be considered or assessed.

There is his curriculum vitae, his work history. The performance management system (PMS) reports can also be accessed. The applicant states that he is still performing the duties which the post entails which points to a measure of confidence the Ministry has in him. Such information could easily have been obtained and a decision made albeit a few days later. It would be a cheaper and more expeditious procedure than re-advertisement. The post is still vacant and has not been re-advertised.

As far as delay is concerned, I accept the applicant's explanation that he went off to Japan on official assignment and returned to Fiji at the beginning of March which caused delay in filing the application. I do not consider that any hardship or prejudice would be caused to the respondents. The post is still vacant and no third party would be affected. There is no evidence of any detriment to administration of justice. Hence I grant leave despite delay.

Final Orders:

(1) Leave granted.

(2) I quash the respondent's decision ordering re-advertisement of the post.

(3) I order the respondent to reconsider afresh the applicant's appeal after obtaining his PMS for 2004 and 2005 and other relevant factors I have stated above.

[JITEN SINGH]
JUDGE

At Suva
27^th August 2008