Mininga v Culligan [1995] PGNC 99; N1348 (26 July 1995)

N1348

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 150 OF 1995(H)

LEO MININGA
Plaintiff

V

MALCOLM CULLIGAN
First Defendant

THE STATE
Second Defendant

JACK KOROMA
Third Defendant

Mount Hagen; Woods J.
26 June 26 July 1995

Parliament - Public Service - right of public servant to resign to seek election and entitlement to reinstatement if fail to be elected - parameters of the legislation - must be strictly interpreted - no power in Court to legislate - categories of general election not envisaged in legislation.

M Tamutai for the Plaintiff
M Pokia for the Defendants

26 July 1995

WOODS, J. The Plaintiff is seeking Judicial Review of a decision not to re-employ him in his former position of Deputy Secretary of the Department of Western Highlands by virtue of the Public Services (Management) Act.

The Plaintiff in 1994 was the Deputy Secretary in the Department of Western Highlands. In December 1994 he resigned the position to contest the Western Highlands Provincial Elections the writs for which were issued in December 1994 and the polling taking place in January 1995. The results were declared on 14 February 1995 and the plaintiff failed in his bid for election. The plaintiff thereupon applied for reinstatement to the Public Service and this request was referred to the Secretary of the Department of Personnel Management.

The Secretary of the Department of Personnel Management endorsed the re-instatement of the Plaintiff although without specifying to what position he was to be reinstated, however the Secretary of the Department of Western Highlands, the first Defendant, did not act on that endorsement and has since failed to reinstate the Plaintiff. Further he has indicated that he will not reinstate the plaintiff. Meanwhile there has been another appointment to the position of Deputy Secretary.

The right to resign from the Public Service to seek election to Parliament and then to seek reinstatement is a peculiar right provided for by Statute so it is necessary to look at the Statute to find the parameters of that right. This right is contained in the Public Services (Management) Act Section 50. There are strict pre-conditions to the use of that right -

(b) whose resignation or retiral was effected:

(i) in the case of a general election to be held at the expiry of the normal term specified for the Parliament or Provincial Assembly - at least six months before and not more that 12 months before the issue of writs for the election; or

(ii) in the case of a general election other than one referred to in subparagraph (i) - within two weeks of the vote occasioning the election; or

(iii) in the case of a by-election - within two weeks of the event occasioning the by-election.

In this case the plaintiff resigned in December 1994 for a general election where the writs were issued later in December and the polling took place in January. But under which category of election does this fall.

The election was clearly a general election, but one after a Government had been suspended and then long after the normal term had expired. There had been some court proceedings to have the Provincial Government system reinstated and orders had been made to have an election held. So therefore it was a general election after the normal term, it did not come after some vote to bring it within the category in (b) (ii) referred to above. However in fact it came two years after the normal term had expired. So really for the purposes of Section 50 (b) (i) persons like the plaintiff had to have showed their intention by resigning early in 1992 the year when the elections should have been held and when in fact writs were issued but then withdrawn. Of course if they had done so they would have then been caught by the problems that arose and the indecision of the National government following the suspension. So it is clear that this general election occurred in circumstances not envisaged by the drafters of the legislation for the Parliament when they debated and passed it. Whilst it appears that the Secretary of the Department of Personnel Management considered that the election was analogous to the situation in Section 50 (b) (ii) by the fact that he issued some statement that it was necessary to resign 2 weeks before the issue of the writs the Secretary was clearly acting contrary to the specific wording of the section.

This Court has no power to consider and add other categories of general elections to the legislation, that is the role and prerogative of Parliament. The power of the Courts to interpret Statutes does not go that far. As I have already stated the right to resign and then be reinstated is a peculiar right given by Statute, it can only be availed of strictly in accordance in the terms of the statute. This Court cannot add to the categories prescribed in the legislation.

Therefore the Plaintiff cannot come under Section 50. I realise that this means that the plaintiff has been left out by difficulties created by the Department of Personnel Management and the vagaries of the Suspension system but that is something between him and the Secretary for Personnel Management. If they see fit to allow him to seek reinstatement to other positions in the Public Service that is between him and the Secretary. I might note here that the Section 50 does not automatically give the right to be reinstated to the exact former position held, but to be re-appointed to the Public Service in such office as the Department head of the Department of Personnel Management directs, and of course this would also be limited to the availability of positions, and in most situations the former position would have been awarded to someone else. There can never be any legal obligation on the Public Service to keep the positions held by persons who have resigned open for them if they fail to be elected. Of course it can be noted here that the former position may have been changed anyway by a restructuring and alteration in the level.

It therefore appears that the plaintiff may have been caught by vagaries which were never properly considered when the legislation was drafted but this court cannot legislate to enlarge the categories referred to in the legislation. The Plaintiff clearly does not come within Section 50 of the legislation and therefore he has no right to reinstatement under that section. Any reinstatement to the Public Service is therefore a matter between him and the Secretary for Personnel Management and it is not a matter for this Court to interfere.

I dismiss the application.

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Lawyer for the Plaintiff: M. Tamutai
Lawyer for the Defendant: Solicitor-General