State v Permanent Secretary for Youth, Employment Opportunities and Sports, ex parte Tuapati [2001] FJLawRp 60; [2001] 2 FLR 248 (1 August 2001)

STATE v PERMANENT SECRETARY FOR YOUTH, EMPLOYMENT OPPORTUNITIES AND SPORTS ex parte Kitione Tuapati

High Court Judicial Review Jurisdiction
1 August, 2001 HBJ 0004/01

Judicial Review – decision of permanent secretary purportedly to terminate the applicant's position as divisional youth officer, and requiring him to revert to substantive post of senior youth officer – whether permanent secretary had delegated power to transfer internally – no legitimate expectation from candidates that one of them fill the position - 1997 Constitution s147(1); Interpretation Act s44; Public Service (General) Regulations 1999 regs 5, 13, Schedule; Delegation of Powers of Public Service Commission (LN 102/99) Sch 1 & 2

The applicant acted in the position of divisional youth officer, and was interviewed for that position. The position was not filled by any interviewees, but by an internal transfer. The Respondent required him to revert to his former post of senior youth officer (Maritime). The applicant sought judicial review on the basis that the decision was wholly unreasonable. The Court disagreed, applying the enabling provision of section 44 of the Interpretation Act. The Court found that LN 102/99 did not confer delegated power to the permanent secretary of each department to transfer within each ministry, which role was left to the secretary for public service. However, the applicant had not complained of this. The Court found that the substantive effect of the transfer was that another person who had not applied for the post was appointed. The Court found that while there was no legitimate expectation that a candidate from amongst those applying fill the post, if none of the candidates were suitable, then courtesy demanded that the position be withdrawn and candidates notified before internal transfer by the Public Service Commission.

Held – The Respondent's decision to revoke an acting appointment, not being a transfer, the applicant had no locus under the Public Service (General) Regulations 1999 reg 13 to challenge it. The permanent secretary had the necessary power, albeit delegated, not only to make an acting appointment of divisional youth officer but also to revoke the conditional nature of it, thus the revocation of an acting appointment is not wholly unreasonable under section 44 of the Interpretation Act. But the permanent secretary had no delegated power to transfer any person within the Ministry, thus acted ultra vires reg 5 of the Public Service (General) Regulations as the appointee was not an applicant for the post, nor interviewed for it. There was no open, competitive selection process. The post should have been withdrawn and the candidates notified before being filled internally.

Case referred to in Ruling
Anuradha Charan v PSC [1993] ABU 2/92 19 November 1993

Sevuloni Valenitabua for the Applicant
Luke Daunivalu for the Respondent

1 August, 2001 RULING

Fatiaki, J
This is an application for leave to judicially review a decision of the Permanent Secretary for Youth Employment Opportunities and Sport ['PS'] taken on the 29th November 2000 in a Memorandum written to the applicant as acting Divisional Youth Officer (Central/Maritime Division) ['DYO (C/M)'], and which is incorrectly entitled: 'Transfer'.

I say 'incorrectly' advisedly because the actual decision taken did not in fact effect or require the transfer of the applicant in any sense in which the term is normally understood in the Public Service [see: the definition of the term in the Public Service (General) Regulations 1999].

Given the compreheprehensive nature of the affidavits and counsel's written submissions I have decided to finally dispose of this case under Order 53 r.3(9) as amended by the High Court (Amendment) (No.2) Rules 1998.

The relevant Memorandum is in the following terms:

'The is to inform you that your acting appointment as the Divisional Youth Officer [Central/Maritime Division] will cease on 29/12/00.

The Permanent Secretary has decided that the current Divisional Youth Officer [Western], Mr. Illiesa Tuikenatabua, will take over the duties of DYO [C/M] with effect from 02/01/01.

Therefore you will revert back to your substantive post of Senior Youth Officer [Maritime] from 02/01/01.'

In essence, the decision taken was the termination of the applicant's acting appointment as Divisional Youth Officer (Central/Maritime Division) ['DYO (C/M)'] thereby reverting him to his substantive post of Senior Youth Officer (Maritime) ['SYO (M)'] in the same station.

Havhus identified the ethe exact nature of the decision affecting the applicant, I turn to consider the basis on which the applicant claims to have a 'sufficient ist' to challenge the PS's decision. In this regard cord counsel writes:

'The applicant was Acting PYO (C/M). The cant applied for the pthe post of PYO (C/M) as advertised. He wterviewed with two (2)o (2) other applicants. No the viewees waoiappointpointed to the post. Aant is aggrieved. H60; He has sieficient intt interest to apply for JR.'

Notwithstanding that the applicant claims that the Permanent Secretaryetary '... acted wholly unreasonably in terminating the Applicant's position as Acting PYO (C/M) and reverting the applicant to SYO (C/M)' and reliance is placed on the provisions of Regulation 5 of the Public Service (General) Regulations 1999 which deals with appointments and promotions 'to an office pursuant to Section 147(1) of the Constitution' of which the Public Service Constitution ('PSC') is the designated appointing authority.

Be that as it may, it is difficult to understand why? or how? the decision to termithe athe applicant's acting appointment could be categorised as 'wholly unreasonable' when the original appointment letter clearly stated that the acting atment. (was) until the post is substantively filled ored or ... ... the appointment is revoked whichever is earlier'. In this case e that both eoth events occurred simultaneously '... with effect from 02/01/01'.

Needless to say it has not beor could it be, suggested that such a condition imposed on an acting appointment is per se r se an unreasonable one, how then, can the activation of the conditindition by the appointing authority with over one month's warning to the incumbent, be considered as '... acting wholly unreasonably'? Plainly it is not.

The matter is placed beyond any possible doubt however, by the clear terms of Legal Notice No.102 of 1999 which empowers the PS to make acting appointments in the Ministry 'in any occupatioroup in grades up to and innd including SS01' which, it is common ground, includes the vacant post of DYO [C/M], read together wection 44 of44 of the Interpretation Act (Cap.7) which expressly provides (so far as relevant):

'Where by or under any written law a power...is conferred...ud...upon any person...to make any appointment..., then, unless a contrary intention appears, the person...having such power...shall also have the power to... revoke the appointment of,...any person appointed in exercise of the power ...'

Plainly the PS had the necessary power, albeit delegated, not only to make the acting appointment but also to revoke it, and, given the conditional nature of the acting appointment in the first instance, and the fact that the post was being 'substantively filled' by an internal transfer, there is no merit at all in the suggestion that the PS's actions were 'wholly unreasonable' and I refuse leave on this ground of complaint.

In the present case applicant was neither ther 'appointed' nor 'promoted' to a substantive office in the Memorandum and, as such, there is considerable doubt as to whether he has a 'sufficient interest' to challenge that aspect of the decision which, at best, referred to another officer not before the Court. Even that other officer, according to the applicant, 'was a confirmed PYO so he could neither have been appointed or promoted. He was also not interviewed (for the vacant post)'.

Similarly, the applicant was not 'transferred' as a re a result of the decision and, again, can have no 'sufficient interest' tolenge the transfer of another officer who is not before thee the Court albeit that the transfer is implied in the Memorandum. Is regard Regulation 13 of13 of the Public Service (General) Regulations 1999 makes it abundantly clear that it is the officer beransferred who has any 'locus' to challenge the transfer decision for want of prior notice tice and/or breach of natural justice (if any).

That is not to say that the applicant has not been affected by the transfer, plainly he has been, but that does not entitle him to challenge the transfer decision which as earlier pointed out, did not directly relate to him.

Be that as it may, applicant's counsel generally submits that '... the (PS) has no power to transfer and/or reshuffle officers (since) the (relevant) Legal Notice confers the power to transfer officers upon the Secretary for Public Service. Not to theanent Secretarietaries'.

The PS for her part, perhaps not surprisingly, asserts that: '... staff transfers and reshu are made in accordance with the powers delegated to me, as Permanent Secretary, under Lega Legal Notice Number 102 of 1999'. Ncific delegation is identidentified however in the affidavit and it is therefore necessary to examine more closely the relevant Notice.

Legal Notice 102 of 1999 is entitled: 'DELEGATION OF POWERS OF PUBLIC BLIC SERVICE COMMISSION' and specifically, under Schedule 1, the power 'to make appointments, including acting and probationary appointments, and to confirm appointments and promotion of officers in the Ministry or Department respectively' is delegated to the 'Permanent Secretary or Head of Department'.

It is equally clear, b the absence of any mention of it, that the 'power to transfer' officers within the public service which is expressly vested in the 'PSC' under Regulatioof thlic Seic Service (General) Regulations 1999 has not beot been delegated to Permanent Secretaries under the above-mentioned deleg.

Rdent's counsel suel suel submits however that such a power (to transfer) is necessarily implied or included in the delegated power to make appointments as expanded in Schedule 2 item (vii).&#1 cannot agree with this subs submission or with the reference to item (vii) which specifically refers to 'the transfer of an officer to another Ministry ....' which has no relevance to the particular circumstances of the present case which involves the internal transfer of an officer within the Ministry.

Additionally, the power to appoint and promote is treated quite separately from the power to transfer under the Public Service (General) Regulations 1999 viz Regulation 5 and Regulation 13 and, this separation is contiand reinforced under Scheduchedule 1 of the Legal Notice No.102 of 1999, which, additionally andratearately, delegates the power 'To transfer officers' within certain occupational groups in whatever Ministry to the 'Secretary for Public Service'.
&#160A similar separate delegation 'to transfer' could have been been granted to Permanent Secretaries in respect of other occupational or professional groups in their respective Ministries not covered under the aforementioned delegation, but this was not done. I accept that the enumerated occupational groups are of the general cadre and might be considered common to all Ministries but that does not affect or alter the legislative scheme of separating the respective powers and even the delegation thereof.
transfers and to dline in respect of all occupational groups...' (my underlining mphasis).&#16>
Why one may well ask, ask, was the power to transfer officers left out in the replacement Legal Notice? Was it intentional or was mt a mistake?
&#160Whatehe answer, it is t is not the function of this Court to info infer the existence of such a power (to transfer an officer internally) er desirable and administratively convenient it may seem.
In the result I am reluctantly driven to the conclusion that there is a 'lacuna' in the powers delegated to the Permanent Secretary under Legal Notice 102 of 1999 in so far as there is wer delegated to the PS to transfer officers within the Mine Ministry such as might occur during a 'reshuffle'. That being said affected oted officer not having complained however, no relief can be granted on that score at the behest of the applicant.
;
That is not, however, the end of the matter since the actual effect of the (irregular)ular) transfer is that the vacant post has, on the PS's own admission, now been filled, therefore, the substance of the internal transfer is that Mr. Iliesa Tuikenatabua has been 'appointed' to the post and although it is a power has expresslyessly been delegated to the PS under the Legaice, it was not apparently ntly exercised in this instance. In others, the substantiventive result of the PS's decision is thatIliesa Tuikenatabua, under nder the guise of being transferred internally, was, in effect, 'appointed' to the vacant post.

The PS's decision ferriferring and/or apor appointing Mr. Iliesa Tuikenatabua [DYO(W)] to the vacant post of DYO(C/M) is accordingly set aside and it is hereby declared that the position of DYO(C/M) remains vacant subject to the transfer being regularised by the PSC should it decide that such a course is the appropriate one to take.

Having said that I accept that the mere fact that a vacant post has been advertised does not mean that an appointment must be made from amongst the candidahat applied for the post. It mal turn out that none none of the applicants are considonsidered suitable and that must be a matter for the determination of the appropriate appointing authority, in this case, the PS. But if was the decision, ton, then courtesy, if nothing else, demanded that the candidates for the position be advised of the result of their candidature and the vacant withdrawn before being filled internally as PSC (not the the PS) decides.

Needless toin this rega regard, I accept State Counsel's submission that there can be no legitimate expectation on the part of a candidate for a vacant position either thaor she will be appointed to the position, or indeed, that that the vacancy will be filled at all from the list of candidates (see unreported judgment ofnt of the Court of Appeal in Anuradha CharaSC Civil Appeal No. 2 of 1992 at p.19). There iserit in this grou grou ground of complaint and leave is accordingly refused therefor.

It be emphasised that, hat, all that the Court is deciding, at this juncture, is that, in thence of a delegated power toer to transfer an officer internally within the Ministry, the PS in purportedly exercising her delegated power of appointment is obliged to comply with the requirements of Regulation 5 of the Public Service (General) Regulation, 1999.

Leave having been refused on all grounds urged by the applicant, the application is accordingly dismissed. In doing sonfess to some some sympathy with the applicant's grievance where the filling of the vacant post was undertaken in a less than trrent manner and in circumstances that applicant's counsel says can give rise to 'nepotism iism in the service'.

There wi no order as toas to costs.

Application fails.

Marie Chan