State v Public Service Commission, ex parte Charan [2001] FJLawRp 49; [2001] 2 FLR 182 (23 June 2001)

STATE v PUBLIC SERVICE COMMISSION ex parte Anuradha Charan

High Court Judicial Review Jurisdiction
25 January, 20 June, 23 June, 2001 HBJ 0031/00S

Public service - retirement age - review of various legislative instruments in respect of the retirement age - whether a person having already retired prior to the commencement of amending regulations increasing the retirement age from 55 to 60 can seek relief under the amending regulations – 1997 Constitution s147(1), 194(5); 1990 Constitution ss9(1) & (2), 127(1), 154; Public Service Decree 1990 s9; Pensions (Amendment) Decree 1989; Fiji Public Service Decree 1988 ss 6(1), 18(1); Pensions (Amendment) (No. 1) Decree of 1988; Fiji Service Commissions and Public Service (Amendment) Decree 1987 s23; Fiji Service Commissions and Public Service Decree 1987 ss8(1), 27(2) and 28; Pensions Act 1983 s48; Pensions Act 1958 s9(1)(a); Public Service (General)(Amendment) Regulations 2001- LN 54/01; Public Service Regulations 1999 reg 14(1); Public Service Constitution Regulations 1990 regs 4, 28; Public Service Regulations 1987 reg 27; General Order 223

The Public Service Regulations 1999 (LN 49/99) reg 14(1) specified an employee must be retired from the public service on reaching age 55 years, unless the Constitution or any other written law specifies a different age in respect of any employee. The Public Service (General)(Amendment) Regulations 2001 (LN 54/01) reg 2(a) substituted 60 for 55 (years). The Applicant, who was compulsorily retired, challenged the retiring age of public servant at 55 years. The Applicant claimed she could not be forced to retire at age 55, and was entitled to work to age 60 years as the retiring age was never made retrospective. The Respondent refused her request to remain, citing her administrative skills gave her no special circumstances under General Order 223 to fulfil human resource needs. The Applicant submitted that the Pensions Act 1958 applied to her, being the Act in place when she commenced work, the retirement age being 60. The Court examined the chronology of provisions prescribing retiring age in the various pensions laws and found that the compulsory retirement age is 55 subject to any special circumstances which gave the Commission the power to extend the age to 60.

Held – the right to retire at 60 and any benefits only accrues to or is only acquired by a person who has actually turned 60 before the date of commencement of the Pensions (Amendment) (No. 1) Decree of 1988, and Pensions (Amendment) Decree of 1989 amendments to the Pensions Act 1983. The Applicant is not governed by the amendment reverting the retirement age to 55 as she did not retire before 10 October 1970. This is made clear by section 48 of the 1983 Pensions Act and also of the 1990 ss9(1) & (2), 127(1), 154 and 1997 Constitutions ss147(1), 194(5). The Applicant could also not take advantage of Public Service (General)(Amendment) Regulations 2001 (LN 54/01) which only applies to the members of service at its commencement date of 25 May 2001.

[Note: on appeal to the Court of Appeal, Provisions of 1990 Constitution in force in 1997 Constitution protects pension rights accrued but not retirement age, thus could not assist the Appellant’s argument of entitlement to work to age 60: per Gallen, Smellie, Ellis, JJA in [2003] ABU0060/01S 16 May 2003]

No cases referred to in Judgment

Ganga P. Shankar and Raman Singh for the Applicant
Sharvada Sharma for the Respondent

23 June, 2001 JUDGMENT

Byrne, J
The question raised by this application for Judicial Review, leave for which I granted on the 25^th of January 2001, is whether a person who joined the Public Service when the retirement age was 60 is entitled to remain in the service until that age despite the fact that the retirement age was subsequently changed to 55. The facts are relatively simple and are not in dispute but the law applicable to those facts has been the subject of lengthy submissions to the Court by the parties.

The Applicant turned 55 years of age on 26^th January 2001. On the 28^th of September 2000 the Public Service Commission made a decision requiring her to proceed on pre-retirement leave from 18^th October 2000 and rejected her request to remain in the service for the following 18 months. The Applicant had submitted that she did not turn 60 years until 26^th January 2006 and that consequently, having been appointed when the retiring age was 60 years, she was entitled to enjoy the privileges and benefits of being promoted on appeal on 28^th September 2000 to the post of Principal Administrative Officer.

The Applicant joined the Public Service as a Clerical Officer Class II on 31^st October 1967 and since then has held various responsible positions until her promotion to Principal Administrative Officer on the 28^th of September 2000. She concedes that although the retiring age was subsequently changed by Decree and Regulation 28 of the Public Service Commission Regulations 1990, and the General Orders 1993 that retiring age was never made retrospective and that consequently her previous Contract of Employment remained intact, thus allowing her to remain in the service until she turns 60.

The Respondent (herein “the Commission”) refused her request. It said that proceeding on pre-retirement leave when due is a policy matter applicable to all officers in the service and is covered by the Public Service Regulations 1999 Section 14(1). It rejected her claim that hers were “special circumstances” under General Order 223 which it said gave the Commission a discretion in special circumstances to extend the retiring age of an officer to 60 but had always been applied to manpower needs in the specialised and critical sectors. It said that an administrative cadre position was not regarded as a scarce skill in the service and that even officers in critical sectors such as doctors, nurses and educationists had been asked to proceed on pre-retirement leave when due and, subject to requests from the relevant ministries or departments, retirees were some times later given temporary or contract employment to service the government’s manpower needs. The criterion was the needs of the Service. It further stated that the question of the possible retrospective effect of the legislation reducing the retiring age would only arise in relation to those people who had already retired before the change in the retirement age. For those officers, the retirement age continues to be 60 and there cannot be any retrospective effect for these officers.

It further stated and later contended in this Court that for all employees who were in the Public Service in 1987 when the retirement age was reduced, the new retirement age applies. There can be no issue of retrospectivity for employees who had not retired when the retirement age was reduced in 1987.

The Commission informed the Applicant that the purpose of its policy on pre-retirement leave is to ensure that officers do not unnecessarily accumulate leave before retirement as all leave pending on the retirement age is to be compensated. The rationale behind this policy is said to be to avoid spending public funds in compensating an officer for leave when leave should have been taken up prior to retirement.

In addition to the rights which she claims under the Public Service Regulations and General Orders the Applicant also argues that as she was first appointed in 1967 the Pensions Act 1958 applies to her. Under that Act the retirement age was 60 years.

RELEVANT LEGISLATION
It is convenient to deal first with the Applicant’s claim to be covered by the Pensions Act. She argues that Section 9(1)(a) of that Act was never amended. That submission is simply not correct. The Pensions (Amendment) Decree 1989 clearly provides that the retirement age in the Public Service from the 1^st of May 1988 was to be 55 years. I accept the submission of the Respondent here that this amendment was not made retrospective before 1^st May 1988 because it was not intended to apply to public servants who had already retired. The amendment only applied to public servants who had not retired and were in the Public Service on the 1^st of May 1988.

The relevant statutes and laws governing retirement age in the Public Service are as follows:

(i) Fiji Service Commissions and Public Service Decree 1987.

By Section 8(1), 27(2) and 28 the Public Service Commission was given the power to remove and to require a public officer to retire from the public service.

(ii) Fiji Service Commissions and Public Service (Amendment) Decree 1987.

Section 23 of this Decree contained a Public Service Order which repealed the Public Service Act 1974. In the schedule to this amendment are the Public Service Regulations 1987, under Regulation 27 of which the Commission prescribed the compulsory retirement age of 55 years.

(iii) Fiji Public Service Decree 1988.

This Decree repealed the Fiji Service Commission and Public Service Decree 1987 and the amendment. Section 6(1) of this Decree gave the Public Service Commission the power to appoint or remove a person. Section 18(1) stated that the power to remove also included a power to require a person to retire.

(iv) Pensions (Amendment) (No. 1) Decree of 1988, and Pensions (Amendment) Decree of 1989.

Under these Decrees Section 9 and other sections of the Pensions Act 1983 were amended to reduce the retirement age to 55 years and the voluntary retirement age of 50 years.

The objects and reasons for the amendment were stated to be to lower the compulsory retiring age of civil servants from 60 years to 55, so as to bring about consistencies between the provisions of the Pensions Act 1983 and the Public Service Commission Decree of 1987. The Minister in charge of the implementation of the decree was the then Attorney-General and Minister for Justice, Mr. S.W. Kepa, now the Hon. Mr. Justice Kepa. The amendment applied to all public servants who were in the service on the 1^st of May 1988 which was the commencement date of both amendments.

(v) Section 9 of the Constitution of the Sovereign Democratic Republic of Fiji (Promulgation) Decree 1990.

Section 9(1) of this Decree provided that where a person was required under existing law to vacate an office upon reaching a certain age he or she was required to vacate the office upon the attainment of that age. Sub-section (2) significantly stated that this was without prejudice to the power of any person or authority to make provision for the removal of any person from office, by which I am of the opinion also meant to prescribe a retirement age.

(vi) Section 127(1) and Section 154 of the 1990 Constitution further empowered the Commission to prescribe the compulsory retiring age for all public servants in the employ of the Commission. The 1990 Constitution repealed the Fiji Service Commission Decree 1988.

(vii) Public Service Decree 1990.

Section 9 of this Decree allows the Commission to make Regulations for the purpose of carrying out its functions.

(viii) Public Service Commission Constitution Regulations 1990.

Regulation 4 of these Regulations makes it clear that they apply to all officers unless the context otherwise requires.

Regulation 28 further specifies that the compulsory retirement age is 55 years.

(ix) The Constitution (Amendment) Act 1997 Section 147(1) and 194(5) further empowered the Commission to make regulations prescribing compulsory retirement.

(x) Regulation 14(1) of the Public Service Regulations 1999 once more reiterated that the compulsory retirement age is 55 years.

In my judgment this chronology of the relevant law puts it beyond any doubt that the compulsory retirement age in the Public Service as far as the Applicant was concerned was 55 subject to any special circumstances which gave the Commission the power to extend that age to 60.

In my judgment the right to retire at 60 only accrues to or is only acquired by a person who has actually turned 60 at the date of commencement of the amendment. In my view this is made clear by Section 48 of the 1983 Pensions Act and also the provisions of the 1990 and 1997 Constitutions which I have mentioned above. In my judgment therefore any pension benefits granted to any person before 10^th October 1970 must have been granted by the law in force at the date on which those benefits were granted. It follows that the Applicant is not governed by this provision as in my view she is deemed to have retired at the time when the retirement age was 55 years and she did not retire before 1970. Thus in my view she cannot argue that the rights to receive Pension benefits and to retire at 60 had already been acquired by her.

There is also a contractual factor relevant to this application. The Applicant’s letter of appointment specifically provides that:

“You would be subject to the provisions of General Orders, Financial and Stores Regulations and Departmental Instructions now in force or as from time to time amended.”

The Applicant has also argued that she should first proceed on pre-retirement leave as she has leave to her credit. I consider this argument somewhat strange in that this is the very suggestion the Respondent made to the Applicant but which she rejected. As I am of the opinion that the retirement age for the Applicant is 55 years then the Applicant is entitled to payment in lieu for all benefits and entitlements due to her at the date she attained 55 years.

The Respondent has stated throughout that as the Applicant was not able to take all her leave before she turned 55 the Respondent is ready to pay her immediately a sum in lieu of such leave.

By Legal Notice No. 54 of the 17^th of May 2001 the Public Service (General) (Amendment) Regulations 2001 were made and gazetted on the 25^th of May 2001. The amendment restores the original retirement age of 60 but as it was made well after the previous amendment it cannot apply to the Applicant but only to members of the service at its commencement date.

For these reasons I dismiss the application for Judicial Review. The Respondent has asked for costs in the event of it being successful but in the exercise of my discretion I decline to make any such order.

Application for judicial review refused.

Marie Chan