Ram v Public Service Appeal Board [1975] FJLawRp 10; [1975] 21 FLR 53 (1 July 1975)

[1975] 21 FLR 53

IN THE SUPREME COURT OF FIJI

SUKH RAM

v.

PUBLIC SERVICE APPEAL BOARD AND ANOTHER

[SUPREME COURT, 1975 (Mishra J.), 1st July]

Civil Jurisdiction

Public Service Commission - appeal by officer to respondent Board against the applicant's promotion - applicant neither given notice of appeal nor the opportunity to be heard - appeal successful and promotion revoked - whether breach of natural justice - whether Board appointed in contravention of Constitution - Public Service Act 1974 ss. 13(9), 14 - Public Service Commission (Statutory) Regulations 1974 r. 13 - Fiji Constitution s. 10(8).

Appeal - Public Service Commission - appeal by officer to respondent Board against the applicant's promotion - applicant neither given notice of appeal nor opportunity to be heard - appeal successful and promotion revoked - whether breach of natural justice - Public Service Act 1974 ss. 13(9), 14 - Public Service Commission (Statutory) Regulations 1974 r. 13.

Under Public Service Act 1974 s. 14 an officer appointed by the Public Service Commission had a right of appeal against the promotion of any other officer to a post in the Public Service to which he or she had applied.

In the present case, the applicant had been appointed on promotion to the office of Senior Welfare Officer, but another officer Pyara Singh had lodged an appeal. It was not until the applicant received a notice that Pyara Singh's appeal had been successful that he became aware that an appeal had been lodged and heard.

The applicant applied to the Court for a writ of certiorari to quash the decision of the respondent Board on the ground that it had acted in breach of natural justice in arriving at its decision without allowing the applicant a hearing. The applicant also contended that the appointment of the respondent Board was in contravention of the Constitution.

Held: The Board had reached its decision in breach of natural justice as it ought to have given the applicant a hearing despite the absence of a specific right in the statutory provisions.

The Court found it unnecessary to deal with the second ground of the appeal, but it did find little substance in the arguments put forward in support.

Cases referred to:

Colquhoun v. Brooks [1887] UKLawRpKQB 150; (1887) 19 Q.B.D. 400; (1889) 14 App. Cas. 493.
Wiseman v Borneman [1971] A.C. 297; [1969] 3 All E.R. 275.
Furnell v. Whangarei High Schools Board [1973] 2 W.L.R. 92; [1973] A.C. 660.

Application for an order of certiorari to quash the decision of the Public Service Appeal Board revoking the applicant's promotion.

S. M. Koya for the applicant.
R. Nair for the respondent.

MISHRA J.: [1st July-1975]-

This is an application for an order of certiorari to remove into this Court and quash a decision made by the Public Service Appeal Board (hereinafter referred to as "the Board") on 4th February 1975 the effect of which was to revoke the applicant's provisional appointment to the office of Senior Welfare Officer in the Public Service.

The applicant was appointed on promotion to the said office on 18th December 1974 by the Public Service Commission (hereinafter referred to as "the Commission") and had been informed that his promotion was "subject to confirmation to allow for the determination of appeals if any, in accordance with the provisions of the Public Service Act, 1974". On 6th February 1975 the applicant received a distribution copy of a letter addressed to one Pyara Singh from the Board informing Pyara Singh that the Board had allowed his "appeal against the promotion of Mr Sukh Ram to the post of Senior Welfare Officer". Sukh Ram is the applicant in this case. That was the first intimation he received of an appeal having been lodged and dealt with.

The applicant applies to have this decision quashed on two main grounds. Firstly, that the Board acted in breach of the rules of natural justice in arriving at their decision without according the applicant any form of hearing whatsoever and secondly, that the appointment of the members of the Board was in contravention of section 10(8) of the Constitution of Fiji and was, therefore invalid.

The application names two respondents, the Board and the Commission. Counsel for the applicant concedes that there is no decision made by the Commission, the second respondent, before this Court to which the applicant can take any exception or which this Court can quash. The main purpose in joining the Commission as a respondent would appear to have been to prevent it from implementing the Board's decision. There is, however, no application for an order of prohibition and no order of certiorari can properly issue directed to the second respondent. The application has, therefore, been heard on the basis that there is only one respondent, the Board.

The relevant provisions of section 14 of the Public Service Act, 1974, which deal with the rights of appeal by aggrieved officers, are:

"14. (1) Subject to the provisions of the next succeeding subsection, every officer, other than an officer on probation, appointed by the Commission shall have a right of appeal -to the Appeal Board in accordance with this section against-

(a) the promotion of any officer, or the appointment of any person who is not an officer, to any position in the Public Service for which the appellant had applied, if (in either case) the appointment of, the appellant to that position would have involved his own promotion;

Provided that-

(i) an appeal under this section must be confined to the merits of the appellant for promotion to the position, and must not extend to those of any other person for promotion or appointment to the position;

..........................................................................................

(3) Notice of appeal under subsection (1) of this section, setting out the grounds of the appeal, shall be forwarded to the Secretary of the Appeal Board in writing by registered post within twenty-one days after the date on which the decision has either been published or been notified to the officer concerned, as the case may be, or within such extended time as the Appeal Board may in any case allow after good and sufficient reason has been shown in writing by the appellant.

...........................................................................................................

(5) The Appeal Board may allow or disallow any appeal and the Commission shall implement the decision of the Appeal Board.

(6) In any appeal the onus of proof shall rest with the appellant.

(7) The proceedings of the Appeal Board shall not be open to the public:

Provided that any person authorised by the Board may attend any hearing or part of a hearing.

(8) At the hearing of any appeal the appellant shall be entitled to be present and may be represented or assisted by a barrister and solicitor or any officer.

.........................................................................................................

(10) In matters not expressly provided for in this Act or in any regulations made under this Act, the procedure of the Appeal Board shall be such as the Appeal Board may determine.

(11) Proceedings before the Appeal Board shall not be held bad far want of form. No appeal shall lie from any decision of the Appeal Board, and, except on the ground of- lack of jurisdiction other than for want of form, no proceedings or decision of the Appeal Board shall be liable to be challenged, reviewed, quashed, or called in question in any Court.

........................................................................................................."

Counsel for the respondent concedes that the Board was performing a judicial function in determining this appeal and that, despite section 14 (11) of the Act, this Court has the supervisory jurisdiction to hear this application. He, however, submits that the wording of the subsection ought to make this Court reluctant to interfere with the Board's decision except where exceptional circumstances warrant such interference.

It is common ground that no notice of the hearing of the appeal was sent to the applicant, nor was he invited to make any representation in any form. Part III of the Public Service Commission (Statutory) Regulations, 1974, which deals with such appeals does not require a notice of hearing to be sent to the successful appointee. A copy of the appeal and a notice of hearing are, however, to be sent to the Commission. Rule 13 of those Rules requires the decision of the Board, after the determination of the appeal, to be sent in writing to "both parties to the appeal". It is not clear from the Rules who the parties to the appeal are, but from the requirements relating to notices it would appear that the Commission: might be the respondent in the appeal. In this case, however, copies of the letter of 4th February 1975 containing the decision of the Board were: forwarded -to the Commission as well as to the applicant. Section 13(9) of the Act also refers to "the consent of the parties to the appeal" which is required in certain circumstances for the appointment of an assessor. Again it is not clear from the wording who these parties might be. Section 14(8) of the Act specifically confers upon the aggrieved officer the right to be present and to be heard at the hearing of the appeal. No such right is specifically conferred either on the officer provisionally appointed by the Commission or on the Commission itself. Section 14 (7) of the Act, however, empowers the Board to permit any person to attend the hearing.

The affidavit filed on behalf of the respondent indicates that all the relevant files relating to the two officers concern were available to the Board at the hearing and that the head of the department whose recommendation the Commission had accepted was invited to make submissions in support of the applicant.

Counsel for the applicant -not suggest that the applicant was entitled to know what was in the confidential files or to make oral submissions to refute anything said in support of Pyara Singh, or against himself. His submission is that the applicant was entitled to make some representations on his behalf which would make the hearing of the appeal fair to both the contenders. Counsel for the respondent, on the other hand, submits that the wording of section 14(1)(a)(i) indicates that the legislature intended to avoid any kind of confrontation between the contenders and that the hearing is intended to be ex parte. In support of this contention he points out that while the legislature has given the appellant the specific right to be heard it is completely silent as to that right in relation to the successful provisional appointee. This, according to him, indicates that the maxim expressio unius est exclusio alterius ought to apply and that the Board was correct in deciding that the successful appointee (the applicant in this case) had no right to be heard. One must not, however, forget that the "exclusio" is often the result of inadvertence and an extremely watchful eye is needed to see that an unquestioning application of the maxim does not lead to injustice. (Colquhoun v. Brooks [1887] UKLawRpKQB 150; (1887) 19 Q.B.D. 400 at 406).

My attention has been drawn to an amendment made by the legislature soon after the hearing of this appeal which adds the' following paragraph to subsection (8) of section 14 of the Act:

"(b) On the hearing of the appeal- the officer against whose promotion or appointment the appeal has been lodged shall be entitled to be heard by the Board in such a manner as the Board thinks fit as if he were a respondent in the appeal and such officer may also be represented or assisted by a barrister and solicitor or by another officer."

Whether this amendment represents a rectification of' an inadvertent omission or a new legislative reform is a matter on which I must not speculate and the present application has to be decided on the basis that the applicant, at the time of the hearing, did not have the statutory right now specially conferred by the legislature on officers in a similar situation. The issue before me therefore is whether or not the Board ought to have given the applicant a hearing despite the absence of such a specific right in the statutory provisions.

"Ex parte applications are frequently made to the courts and granted without hearing the party affected: but merely to say this overlooks that procedure invariably exists, and is where necessary invoked, for enabling the party affected rapidly to seek annulment or amendment of the order made against him."

(Wiseman v Borneman [1971] A.C. 297 at 318)

If this application was to be dealt, with ex parte, what remedy would the applicant have after the hearing? It is submitted by counsel that when the Board's decision came to be implemented by the Commission Pyara Singh's appointment, like the applicant's would initially be provisional in terms of regulation 15(1) of the Public Service Commission (Constitution) Regulations, 1974 and that the applicant might have been able to appeal to the Board against that appointment and, in that manner, obtain a hearing. This submission would appear; to be misconceived. The applicant's appointment had resulted from a decision of the Commission which gave all the unsuccessful candidates a right of appeal to the Board under section 14(1) of the Act. The officers dissatisfied with the rejection of their applications could lodge their appeals within 21 days after the date of the Commission's decision (section 14(3) of the Act) and until "all appeals lodged in respect thereof have been duly determined" the applicant's appointment would remain provisional (Regulation 15(1) of Public Service Commission (Constitution) Regulations, 1974). When the Board had made a decision after considering all the appeals, that decision would be implemented by the Commission and, according to section 14(11) of the Act, "no appeal shall lie from any decision of the Appeal Board". This would amount to a final adjudication and any hearing that the applicant might, therefore, have been entitled to would be available only at the hearing of Pyara Singh's appeal.

Counsel for the respondent submits that a hearing, or representations, is not essential to satisfy the rule of natural justice. What is necessary is to show that what was done was fair to the aggrieved party in all the circumstances of the case. He cites Furnell v. Whangarei High Schools Board [1973] 2 W.L.R. 92 at 105, where the Privy Council stated:

"Natural justice is but fairness writ large and juridically. It has been described as 'fair play in action'."

With that statement, there can be no quarrel.

Counsel, however, goes further and contends that no unfairness resulted to the applicant in the present case as all the relevant files and the recommendations in his favour had been fully considered by the Board though he himself, like Furnell in the case cited above, was not invited to make any representations. It is right that every case must be considered on its own peculiar facts. In Furnell's case there was an extremely comprehensive written code calculated to ensure impartial investigation and that code had been strictly followed. Even then, the suspension ordered against Furnell was only "pending further determination of these charges" at which he would have been entitled to make his representations.

This aspect was emphasized in Wiseman v Borneman [(supra), at p. 309] where Lord Morris of Borth-Y-Gest said:

"We do not search for prescriptions which will lay down exactly what must, in various divergent situations, be done. The principles and procedures are to be applied which in any particular situation or set of circumstances, are right and just and fair.................Nor do we wait for direction from Parliament. The common law has abundant riches."

Wiseman v Borneman was a case where the matter was submitted at an early stage of assessment by the Inland Revenue Commissioners to a tribunal established under the Finance Act 1960 to determine whether there was a "prima facie" case for proceeding further in the matter. The taxpayer's request to be represented by counsel at the hearing had been refused and he was not given a copy of the Revenue Commissioner's counter-statement. The House of Lords upheld the Court of Appeal's judgment dismissing the taxpayer's appeal on the ground that there was "nothing so unfair about the principles of natural justice were not followed". Lord Guest in his judgment (p. 310) stated the law as follows:

"It is reasonably clear on the authorities that where a statutory tribunal has been set up to decide final questions affecting parties' rights and duties, if the statute is silent upon the question, the courts will imply into the statutory provision a rule that the principles of natural justice should be applied. This implication will be made upon the basis that Parliament is not to be presumed to take away parties' rights without giving them an opportunity of being heard in their interest. In other words, Parliament is not to be presumed to act unfairly..................

Where, however, the matter which the tribunal has to decide is a preliminary point which does not finally decide the rights of parties, then the question arises whether, and, if so, to what extent, the principles of natural justice should be followed by the tribunal."

In the present case there, was no comprehensive code like that in Furnell, the procedure to be followed by the Board being left largely to the Board itself and once the Board had made a determination of Pyara Singh's appeal its judgment would finally close the door upon the applicant. It is, therefore, for this Court to decide whether in the absence of any hearing or representation given to the applicant under these circumstances, the Board's conduct of the appeal was fair.

When a vacancy occurs in the, Public Service the office is advertised and applications invited from persons intending to seek appointment to it. These applications, most of which may come from serving officers, are considered by the Commission and a provisional appointment made. It is conceded by counsel that the appointment at this stage represents an administrative act and the Commission is not obliged to give a hearing to the applicants. No complaint, as a general rule, may, therefore, be made against the Commission. The Act, however, gives unsuccessful candidates a right of appeal to the Board where each of them is entitled to be heard and to be represented by counsel. At the time Pyara Singh's appeal was heard the only person who had no statutory right to be heard by the Board was the successful candidate. If the appeals were disallowed no one had any ground for complaint. What, however, if any appeal was allowed? Would the hitherto successful candidate not have a reasonable cause for grievance if he were suddenly to receive an abrupt letter advising him that someone had successfully appealed against him and that his provisional appointment had been revoked?

Counsel for the respondent submits that a promotion in the Public Service is only a privilege, not a right, and that a duty to act judicially arises only where a decision is likely to affect an individual's rights. But for the Act of 1974, that would certainly appear to be the case. The legislature has, however, now given public officers applying for a public office a "right" of appeal. Such a right includes the right to be heard. Can the legislature be taken to have intended that unsuccessful applicants should have that right but that it should be denied to the successful applicant when his provisional appointment comes up for revocation? By enacting the subsequent amendment referred to, earlier in this judgment the legislature itself would appear to have given the answer.

Appointment to the Public Service may be a privilege but once applications have been invited and received, certain rights are acquired under the Act of 1974 and a person who is provisionally appointed to an office must certainly be deemed to have acquired as strong (if not stronger) a right under the Act as those who have failed to be so appointed. To revoke such an appointment is certainly of as great (if not greater) a consequence as to reject or allow the appeal of an unsuccessful candidate.

Even where a statute does not confer any specific right upon an individual and the matter concerned may be regarded as being more akin to a privilege (such as the grant of a licence in some cases), the revocation of such a privilege, if, already granted, must generally be regarded as of greater seriousness than the initial rejection of an application for the grant of that privilege.

"Non-renewal of an existing licence is generally a more serious matter than a refusal to grant a licence in the first place ................... To equate a decision summarily to revoke a licence with a decision not to grant a licence in the first instance may be still more unrealistic." Judicial Review o f Administrative Action by S.A. de Smith, Third Edition, page 197).

There is nothing in the Act of 1974 specifically denying the successful candidate the right to be heard and the legislature must be deemed to require the Board, which is a creature of the statute, to act fairly to all the parties concerned. The principle of fair play requires that, where there are several contenders, if a hearing is given by a judicial or quasi-judicial tribunal to one contender, such a hearing should generally be accorded to all of them. This would be particularly so where, after hearing one contender, the tribunal is minded to deprive another contender of something already granted to him even though such a grant might be subject to confirmation.

Finally, counsel for the respondent submits that no real injustice or unfairness can have resulted to the applicant as all the material required for consideration was already before the Board and the applicant could have had little to add to it. That may be so. But that would be true of Pyara Singh too. All the relevant files relating to both the officers were with the Board. Persons called to make submissions were in a position to tell the Board equally about each of the two officers. Neither, if allowed to appear before the Board, was entitled to know what was in the files or what confidential recommendations had been made about him. Neither could go outside the scope of section 14(1)(a)(i) of the Act and speak of the merits and demerits of the other.

Pyara Singh, however, was heard. The applicant was not.

Once the Board had formed the view that Pyara Singh's submissions had merit, the least they could have done was to adjourn the hearing to enable the applicant to make his representations before revoking his appointment, provisional though it was. In the absence of such equal treatment a justifiable sense of grievance must remain. What effect the applicant's representations, if permitted, might have had on the Board's mind must remain a matter for conjecture.

I have, therefore, come to the conclusion that the Board's decision, embodied in its letter dated 4th February 1975, was arrived at in breach of the rules of natural justice. The application against the first respondent is consequently allowed and an order of certiorari will be made to quash that decision. The applicant remains provisionally appointed to the office of Senior Welfare Officer subject to a proper determination of all appeals lodged in respect thereof.

The application against the second respondent is dismissed.

In view of the decision already reached by me it is not necessary to deal, in detail, with the second ground of the application. This ground, however, challenges the validity of the composition of the Board itself as being in contravention of the provisions of the Constitution and it is, therefore, appropriate for me to state that I have found little substance in the arguments put forward in support of that ground. This statement must not be taken as rejecting the generally acceptable submission that he Commission is a highly responsible body with its impartiality and integrity anchored in the provisions of the Constitution and that the composition of the Board ought to ensure extreme care in scrutinising any decision made by the Commission.

Application allowed; order of certiorari granted.

Mishra, J.

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Endnotes

Prior to the delivery of Judgment an amendment was made to Public Service Act s.14. Subsection 8 of that section now reads "On the hearing of the appeal the officer against whose promotion or appointment the appeal has been lodged shall be entitled to be heard by the Board in such a manner as the Board thinks fit as if he were a respondent in the appeal and such officer may also be represented or assisted by a barrister and solicitor or by another officer."