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Luma v Tetaga [2007] PGNC 137; N3275 (29 June 2007)

N3275


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS 473 OF 2006


Between:


JOEL LUMA
Plaintiff


And:


JERRY TETAGA, TAU O LIU,
RIGO A LUA as Members of the
Public Service Commission
First Defendant


And:


THE PUBLIC SERVICE COMMISSION
Second Defendant


And


THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Third Defendant


Waigani: Salika, J
2007: 29 June


JUDICIAL REVIEW – Appointment of a Departmental Head – Public Service Commission recommendation - Whether recommendation in accordance with relevant laws –Whether appointment procedures were in accordance with the relevant laws.


Counsel:


Mr N Kubak, for Applicant
Mr F Cherake, for the Respondent


29 June, 2007


1. SALIKA J.: Introduction: This is an application for Judicial Review. The applicant is Joel Luma. He is a Civil Engineer by profession and is presently a Senior Engineer with the Department of Works in the Public Service of Papua New guinea. He commenced work with the Department of Works as a Public Service Cadet on 12 February 1975 and became a permanent officer on 13 July 1982. He is a financial member of the Institute of Engineers in Papua New Guinea. He has practiced engineering for about 30 years. The plaintiff graduated with a Bachelor of Engineering in Civil Engineering from the University of Technology in 1978 and a Masters of Science in Construction Management from the University of Sheffield Halam in the United Kingdom in 1996. He also holds various certificates in Engineering and Management from Indonesia, United State of America and Australia.


2. The respondents to this application are Jerry Tetaga, Tau Liu and Rigo Lua as Members of the Public Service Commission as first defendants, the Public Service commission as second defendant and the Independent State of Papua New Guinea as the third defendant.


3. The person who is in the middle of this application and an affected person is Alphonse Niggins who is the Secretary for the Department of Works. Mr Niggins has a career span of 32 years with the Department of Works. He has held various senior management positions in the Department such as being Assistant Secretary (Plant and Transport Branch), First Assistant Secretary (Finance and Administration), Deputy Secretary (Corporate Services) and now as Secretary. Mr Niggins is not a party to these proceedings.


FACTS


4. The applicant Mr Joel Luma and Mr Alphonse Niggins were applicants for the position of Secretary of Works with 6 other aspirants. They all responded to an advertisement for the position in publishing the National Gazette and in the daily newspapers. On 17 May 2006, the National Executive Council confirmed Mr Niggins as Secretary to Works Department. Mr Luma is aggrieved by the appointment of Mr Niggins and seeks a review of the process used to appoint Mr Niggins. The facts relied on in the review are:-


(1) On the 17 May 2006, the National Executive Council confirmed Mr Alphonse Niggins as Secretary for Works Department after 8 months delay since October 2005. It appeared in the Post Courier on the 23 May 2006.


(2) The appointment was made on the basis of a short-list prepared by the Public Service commission which had in order of preference the names, Mr. Alphonse Niggins, Mr Roy Mumu and Mr Joel Luma, the Plaintiff.


(3) Mr Roy Mumu and Mr Joel Luma were on short-list that was screened and assessed by the Department of Personnel Management and Department of Personnel Management and Central Agency Co-ordinating Committee using the Merit-Based Assessment system. The five (5) candidates were Messrs Joel Luma, Barnabas Neausemale, Roy Mumu, Bernard Alois and Nusela Gopave in order of preference of the Central Agency Co-ordinating Committee.


(4) Mr Alphonse Niggins was initially appointed as Secretary for the Department of Works on the 9 January 2001 for a period of four (4) years. His Contract of Employment expired on the 8 January, 2005.


(5) The position became vacant and was then advertised in both daily papers and the National Gazette [No. PSG9] on the 15 April 2005 calling for interested applicants to apply.


(6) This was done in accordance with the requirements of the merit-based appointment process for appointment of Senior Executive under Section 193 of the Constitution (as amended) and Section 31A of the Public Service [Management] Act and Public Service [Management] [Minimum Person Specifications and Competency Requirements for Selection and Appointment of Departmental Heads and Administrators] Regulation of 2003 (Regulation No 6 of 2003).


(7) After the initial screening and assessment process, the Public Service Commission was then provided the short-list of five (5) candidates together with the list of all candidates who had responded to the advertisement.


(8) Public Service commission made its own assessment of the five (5) candidates short-listed and decided on its three (3) preferred candidates which relegated the Plaintiff from the first place on the Five (5) candidate short-list and elevated Roy Mumu from the same short-list up to position 2 on the Public Service Commission preferred short-list to third place of three candidates. Mr Alphonse Niggins who was not on the five (5) candidate short-list and who had scored 15 points on the relevant merit-based assessment matrix, and hence had come 6 in the assessment, became Public Service Commission preferred first candidate.


(9) Neither of the initial five (5) candidates short-listed by Central Agency Co-ordinating Committee were required by Public Service Commission for panel interview to determine their suitability.


(10) Mr Alphonse Niggins had been omitted from the five pre-selected short-listed candidates submitted by the Department of Personnel Management and the Central Agency Co-ordinating Committee to the Public Service Commission .


(11) The Minister for Works, Hon. Gabriel Kapris, MP wrote letters to various people of influence regarding the matter of appointment of Secretary for Department of Works, and copied to the Chairman Public Services Commission.


(12) No reasons were given by Public Service Commission of its decision to relegate the Plaintiff to number three (3) placing, particularly after he had been ranked number one (1) candidate by both the Independent Pre-Selection Committee whose decision was approved by the Departmental Heads who comprise the Central Agencies Co-ordination Committee.


(13) Moreover, no reason was given to include Alphonse Niggins as Public Service Commission ’s first preferred candidate after having been eliminated by the Independent Pre-Selection Committee.


(14) The Public Service Commission after having admitted that there are outstanding serious cases relating to misappropriation and mal-administration not having been cleared as yet by the Ombudsman Commission, failed to disqualify Mr Alphonse Niggins as it did in the cases of Francis Damen and Zachery Gelu.


(15) The Public Service Commission failed to take note that there were restrictions placed on the qualification of the candidates as expressed in Part B "persons qualifications particular to the job" in the National Gazette. He is not an engineer by profession and should be disqualified automatically.


(16) As an applicant for a Departmental Head position, the Plaintiff had a legitimate expectation that the Public Service Commission which exercises constitutional and statutory powers would act within the parameters of these powers.


COMPLAINT OF PLAINTIFF


5. The complaint by the applicant is that the Public Service Commission did not follow the appointment procedure set out under the Public Service Management Act, that led to the appointment of Mr Niggins as the Secretary for Department of Works by the National Executive Council.


RELIEF SOUGHT


6. The reliefs sought by the applicant are:-


(a) An order in the nature of certiorari to remove into this Honourable Court and quash the recommendation of the First Defendants / Respondents, as the Public Service Commission (Second Defendant), under section 31A(1)(d) of the Public Services Management Act 1995 and dated the 11th day of October 2005 made to the National Executive Council through the Office of the Minister for Public Service.


(b) An order that the Second Defendant / Respondent compile a fresh recommendation under section 31A(1)(d) of the Public Services Management Act 1995 based on the report of the Central Agencies Co-ordination Committee submitted to it under letter dated 8 August 2005, and submit it to the Minister for Public Service to the National Executive Council for decision on such recommendation.


(c) A declaration that the Public Service Commission acted in contravention of the relevant law when it recommended a list of candidates for the position of Secretary for the Department of Works that included as its first preference a candidate Mr Niggins who was not on the report submitted to it by the Central Agencies Co-ordination Committee (Central Agency Co-ordinating Committee) under letter dated the 8 August 2005.


(d) Such further or other orders the Court deems just.


(e) Costs of the proceedings.


GROUNDS FOR REVIEW


7. The grounds upon which the reliefs are being sought are:-


(a) The Public Service Commission failed to conduct a valid merit-based assessment of each of the five (5) applicants short-listed and submitted to it by the Department of Personal Management and the Central Agency Co-ordinating Committee.


(b) The Public Service Commission failed to conduct a panel interview of the five (5) applicants short listed to determine the suitability of the said candidates prior to conducting an assessment of all the candidates who responded to the advertisement.


(c) The Public Service Commission failed to exhaust the merit-based assessment of the five (5) candidates short-listed by Central Agency Co-ordinating Committee prior to assessing other applicants not recommended by Central Agency Co-ordinating Committee for purposes of finalizing its list of three (3) preferred candidates to the National Executive Council.


(d) The Public Service Commission contravened the relevant law when it failed to give meaning and effect to the fact that its preferred first candidate on the short-list submitted to National Executive Council had outstanding allegations against him that was being investigated by the Ombudsman Commission. There were no such allegations pending against the Plaintiff or the other candidate on the Public Service Commission short-list.


Facts Not Disputed:


  1. The position of the Secretary for Department of Works became vacant after Mr Alphonse Niggins’ Contract of Employment expired on the 8 January 2005 and the vacancy was advertised in the National Gazette (NO. PS. G0) on the 15 April 2005 (page 1-3) calling for interested applicants to apply and also in the daily paper.
  2. The Department of Personal Management received applications in response to the advertisement and the Central Agency Co-ordinating Committee conducted a pre screening of the applications and graded the applicants using the Merit Based Assessment Criteria based on the requirements of the position, and the Minimum Person Specification prescribed under the Public Service (Management Person Specification and competency Requirement for Selection and Appointment of Departmental Heads and Provincial Administrators) Regulation No 6 of 2003, and came up with a short-list of five(5) candidates in the following order:-
  3. The Central Agency Co-ordinating Committee submitted its short list of the five (5) applicants to the Public Service Commission and the Public Service Commission met on the 5 September 2005 and assessed the five (5) candidates submitted by the Secretary for Department for Personnel Management, together with Mr Alphonse Niggins, and made an Assessment Report.
  4. By letter dated 11 October, 2005 the Public Service Commission submitted its shortlist of three (3) candidates to the Minister for Public Service for appointment by National Executive Council in the following order of preference:-
  5. By letter dated 2 March 2006 the Minister for Public Service queried why Public Service Commission had eliminated certain candidates from the short-list of five (5) applicants submitted by Central Agency Co-ordinating Committee to Public Service Commission .
  6. The Public Service Commission by letter dated 12 April 2006 to the Minister for Public Service advised that it (Public Service Commission ) was empowered as an independent body "to make inter alia its own assessment from the list provided by Department of Personnel Management and Central Agency Co-ordinating Committee, and all applications received in response to the advertisements and compiles its own short-list and recommendation to the National Executive Council.
  7. On the 17 May 2006, the National Executive Council confirmed or appointed Mr Alphonse Niggins as Secretary for Department of Works after 8 months delay (after Public Service Commission submitted its short-list of the three (3) applicants in order of preference on the 11 October 2005).
  8. The Public Service Commission did actually receive copies of letters from the Minister for Department of Works to people of prominence including the Minister for Public Service and Department of Personnel Management Secretary for reappointment of Mr Alphonse Niggins.

Issues for Determination
8. The issues for determination by this Court are:-


(1) Whether the Public Service Commission properly

Complied with the selection process and appointment procedures as stipulated under the Public Service Management Act 1995, the Public Senior (Management) Selection and Appointment of Department Heads and Provincial Administrators) Regulations of 2003, the Public Services (Management) Minimum Person Specification and Compliance Requirement for selection and Appointment of Department Heads and Provincial Administrators) Regulations 2003.


(2) Whether the Public Service Commission’s failure to conduct a panel interview of the 5 applicants submitted by Department of Personal Management and Central Agency Co-ordinating Committee thereby contravened Section 2(3) of Regulation 5 of 2003 and consequently denied natural justice to the applicant.

The Law


9. The provisions of the Constitution, the Public Service Management Act and Regulations are relevant for the purpose of determining the issues.


CONSTITUTION


s.191 Functions of the Commission


(1) The Public Services Commission shall be responsible, in accordance with an Act of the Parliament, for –


(a) the review of personnel matters connected with the National Public Service; and


(b) the continuous review of the State Services (other than the Papua New Guinea Defence Force,) and the services of other governmental bodies, and to advise, either on its own initiative or on request, the National Executive Council and any authority responsible for any or those services, on organizational matters.


(2) The Public Services Commission has such other functions as may be prescribed by or under a constitutional Law or an Act of the Parliament.


(3) In carrying out its function under Subsection (1)(b), the Public Services Commission –


(a) Shall take into account the government policy on a particular matter when advising the National Executive council and the other authorities responsible for those services; and


(b) Shall not have any power to direct or control a State Service or the services of other governmental bodies, and to advise, either on its own initiative or on request, the National Executive Council and any authority responsible for any or those services, on organizational matters.


(4) the Public Services Commission shall, in respect of each year, prepare and forward to the Speaker for presentation to the Parliament, a report on the advice it has given during the year to the National Executive Council or other authorities in accordance with Subsection (1)(b) indicating in particular the nature of the advice given and whether or not that advice was accepted.


s.192 Independence of the Commission.


The Public Services Commission is not subject to direction or control when carrying out its function under Section 191(1)(a)(functions of the Commission).


s.193 Appointments to certain offices


(1) This section applies to and in respect of the following offices and positions:-


(a) all offices in the National Public Service the occupants of which are directly responsible to the National Executive council or to a Minister; and


(b) the offices of the members of the boundaries Commission; and


(c) The office the occupant of which is responsible for the administration of the government broadcasting service, or, if that responsibility rests with a board or commission, the chairman or president of the board or commission; and


(d) the offices of the person (including members of boards or commissions) responsible for the administration of any of the State Services; and


(e) the office of Commissioner of the Police; and


(f) the office of Commander of the Defence Force; and


(g) the office of Secretary to the National Executive Council; and


(h) such other offices and positions as are prescribed by an Act of the Parliament for the purpose,


Other than the offices of the members of the Public Services Commission


(1A) All substantive appointments to offices to which Subsection (1)(a),(g) and (h) apply shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council from a list of persons recommended by the Public Services Commission following procedures prescribed by or under an Act of the Parliament (58)


(1B) All temporary appointments t offices to which subsection (1)(a),(g) or (h) apply shall be made by the Head of State, acting with, and in accordance with the advice of the National Executive Council in accordance with recommendation by the Public Service Commission following procedures prescribed by or under an Act of the Parliament (59).


(1C) The revocation of appointment of persons appointed under Subsection (1A) or (1B) shall be made by the Head of State, acting with, and in accordance with, the advice of the National executive Council given in accordance with a recommendation by the Public Service Commission following procedures prescribed by or under an Act of the Parliament (60).


(1D) The suspension from office of persons appointed under subsection (1A) or (1B) shall be made by the Head of State, acting with, and in accordance with a, recommendation by the Public Services Commission following procedures prescribed by or under an Act of the Parliament (61).


(2) All appointments (whether temporary or substantive) to offices to which Subsection (1)(b), (c), and (e) apply shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given after consultation with the Public Services Commission and any appropriate Permanent Parliamentary Committee, and a report concerning each of them shall be given to the Parliament by the responsible Minister as soon as possible after it has been made.


(3) All appointments (whether temporary or substantive) to which Subsection (1)(d)and (f) apply and such other offices and positions as are prescribed by an Act of the Parliament for the purpose of this subsection, shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given after consultation with the Public Services Commission.

(4) An Act of the Parliament may make provision for an din respect of a temporary appointment to an office to which this section applies until such time as it is practicable to make an appropriate substantive appointment in accordance with Subsection (2)(64).

s.193(1A) All substantive appointments to officers to which subsection (1)(a), (g) and (h) apply shall be made by the Head of State, acting with and in accordance with the advise of the National Executive Council from a list of persons recommended by the Public Service Commission following procedures prescribed by or under an Act of Parliament ...."


Public Service Management Act of 1995


Section 25: Filling of vacancies in certain offices of Departmental Head.


Subject to Section 193 (appointments to certain offices) of the Constitution, a vacancy in an office or Departmental Head may be filled—


(a) by the promotion or transfer of an officer by the Head of State, acting on advice; or

(b) by an appointment in accordance with Section 27.

Section 25A. Merit-based appointment process. (29)


Regulations may prescribe a merit-based appointment process for the filling of a vacancy under Section 25 which –


(a) shall involve a recommendation of the Public Services Commission to be made solely on the basis of an assessment of a candidate’s suitability compared to the minimum person specification as advertised for the vacancy; and

(b) shall be based on the following administrative processes:-

Section 27: Appointments to offices of Departmental Head.


A Departmental Head shall be appointed in accordance with Section 193 (appointments to certain offices) of the Constitution.


"31A – Procedures relating to substantive appointments of Departmental Heads.


(1) The procedures relating to the substantive appointments of Departmental Heads referred to in section 193(1A) (appointments to certain offices) of the Constitution are as follows:-


(a) where an office of Departmental Head becomes vacant or is likely to become vacant, the Departmental Head of the Department of Personal Management shall, subject to Subsections (2) and (3) –


(i) declare that a vacancy in the office of Departmental Head exists or is about to exist; and


(ii) obtain from the Central Agencies Co-ordination Committee the minimum requisites for that office; and


(iii) notify the Commission of the vacancy; and


(iv) advertise for applications for the office—


(A) on at least two occasions in a newspaper circulated nationally; and


(B) in such other manner as it considers appropriate;


(b) after consideration and assessment of the applicants and consultation with the Central Agencies and Co-ordination Committee, the Departmental Head of the Department of Personnel management shall-


(i) compile a list of not less than five candidates who have at least the minimum requisites for the office; and


(ii) submit to the Commission for its consideration—


(A) the list under subparagraph (i); and

(B) all applications received in response to the advertisements under paragraph (a)(iv);


(c) an assessment of an applicant under Paragraph (b) shall be based on—


(i) the minimum requisites for the position; and

(ii) where available any appraisal of performance and discipline under section 24A; and

(iii) prescribed criteria;


(d) the Commission shall consider the list submitted under Paragraph (b)(ii)(A) and all applications received in response to the advertisements under paragraph (a)(iv) and shall—


(i) compile therefrom a list of up to three candidates in order of preference; and


(ii) submit the list under Subparagraph (i) as a recommendation to the National Executive Council;


(e) the National Executive Council may select one of the persons on the list submitted to it under paragraph (d) (ii) for appointments and shall advise the Head of State to make the appropriate substantive appointment as Departmental Head;


(f) where the National Executive Council does not consider any of the persons on the list submitted to it under Paragraph (d)(ii) suitable for appointment—


(i) it shall so advise the Commission and the Departmental head of the Department of Personal Management; and


(ii) the procedure set out in Paragraph (a)(iv), (b), (c), (d) and (e) shall again be followed." (My emphasis)


PUBLIC SERVICES (MANAGEMENT) (SELECTION AND APPOINTMENT OF DEPARTMENTAL HEADS AND PROVINCIAL ADMINISTRATORS) REGULATION 5 OF 2003.


Section"2 – Procedures for appointment of Department Head.


(1) Where an office Departmental Head has been advertised under Section 1 –
(2) On the receipt of the list and recommendations under subsection (1)(v), the Public Services Commission shall review the candidates and compile a short list of three candidates on merit (utilizing the same appointment criteria from the Public Services (Management)(Minimum Person Specification and Competency Requirements for Selection and Appointment of Departmental Heads) Regulation 2003, for recommendation to the National Executive Council under Section 193 (appointment to certain offices (2)) of the Constitution.

(3) In carrying out a review under Subsection (2), the Public Services Commission –

(4) For the purposes of presenting recommendations of the Public Service Commission to the National Executive Council under Subsection (3)(b), the Minister for Public Service shall present a Cabinet Submission prepared by the Departmental Head of the Department of Personnel Management, containing recommendations from the Public Services Commission in respect to the three (3) preferred candidates.

(5) In considering the recommendations made under Subsection (4), the National Executive Council may –

(6) Where the National Executive Council has approved a recommendation under subsection (5) (a) –

PUBLIC SERVICES (MANAGEMENT) (MINIMUM PERSON SPECIFICATION AND COMPETENCY REQUIREMENTS FOR SELECTION AND APPOINTMENT OF DEPARTMENTAL HEADS AND PROVINCIAL ADMINISTRATORS) REGULATION NO 6 OF 2003


Section 1: RECOMMENDATIONS TO BE MADE TO THE NATIONAL EXECUTIVE COUNCIL FOR APPOINTMENT OF DEPARTMENTAL HEADS AND PROVINCIAL ADMINISTRATORS---


(1) All recommendations made by the Public Services Commission to the National Executive Council under section 193 (appointment to (1) certain offices) of the Constitution and to Provincial Executive Councils under section 73 of the Organic Law on Provincial governments (2) and Local Level Government shall be based upon the relative merits of candidates for the positions as assessed by the Public Service Commission against the following criteria:-

(2) The Minister for Public Service shall obtain from each relevant Minister or, in the case of a Provincial Administrator from each relevant Provincial Governor, advice on the specific accountabilities, qualifications, competencies and experiences which will be required to meet the performance expectation of each of the respective Governments in conformity with this Regulation.
(3) A list of the position specifications and requirements as assessed under subsection (2) shall be recorded in a job description referred to under subsection (1)(j), and authorized by the Departmental Head of the Department of personnel Management following Consultation with the Central Agencies coordinating Committee and ratification of the National Executive Council from time to time.
(4) In making a recommendation under the Regulation, the Public Services Commission shall also take into account any determinations of the National Executive Councils which have been communicated to the effect that a position shall be filled by a Papua New Guinea citizen and that therefore applicants of other nationalities are not to be recommended for appointment".

10. The applicant submitted that the Public Service Commission blatantly disregarded one of the prescribed procedures set under s.1(i)(a) of Regulation 6 of 2003. The applicant’s major point of grievance is that on the evidence available Mr Alphonse Niggins did not possess a primary Degree in Civil Engineering from a recognized university nor any relevant post graduate training which was a pre-requisite to the technical requirements of the position of Secretary for the Department of Works. He submitted that on that basis alone Mr Niggins was not qualified to be considered for appointment as Secretary of Works.


11. The second leg of his submission was that Mr Niggins was being investigated by the Ombudsman Commission on allegations of corruption stemming from loss of vehicles from the Department of Works and Transport, improper use of police to evict an officer of the Works Department from his residence, unlawful termination of an officer, conspiracy to lay false charges against officers of the Works Department and appointment of staff without recourse to the appointment procedure under the Public Finance Management Act.


12. The third thrust of the plaintiff’s argument is that the Public Service Commission compromised the guidelines, procedures and standards in including Mr Niggins on the shortlist on 5 September, 2005.


13. The plaintiff submitted that the Public Service Commission must first exhaust the merit based assessment of the 5 applicants short-listed by the Department of Personnel Management and Central Agency Co-ordinating Committee. If after that assessment, the Public Service Commission is not able to come to a further shortlist of 3 candidates from the initial 5, the Public Service Commission can cast the net wider to include those who applied but were not listed in the 5 by Department of Personnel Management and Central Agency Co-ordinating Committee. The plaintiff argued that the Public Service Commission did not exhaust the process of assessing the initial 5 candidates before opening it wider to include Mr Niggins in the process. This submission was based on the decision of Injia, DCJ in John Kawi v Jerry Tetaga, Tau o Liu and Rigo Lua and the Public Service Commission N3100, Unreported National Court decision.


14. The fourth main argument by the plaintiff is that the Public Service Commission abused its powers in failing to conduct panel interviews under s.2(3)(a) of Regulations No 5 of 2005, thereby denying natural justice to the 5 applicants recommended by Department of Personnel Management and Central Agency Co-ordinating Committee.


APPOINTMENT PROCESS OF A DEPARTMENTAL HEAD


15. To me the validity of the recommendations by the Public Service Commission to the National Executive Council and the subsequent appointment of Mr Niggins as Secretary, Department of Works is dependent on whether there was compliance with the procedures set out under the Public service Management Act s.25, s.31A and Public Services Management (Minimum Persons Specification and Competency Requirements of Selection and Appointment of Department Heads and Provincial Administration) Regulations No 6 of 2003.


16. First of all the procedures under s.31A is for a substantive appointment of a department head. In this case Mr Niggins, the plaintiff and others were being considered for permanent appointment as Secretary, Department of Works. At that stage Mr Niggins, the plaintiff and others were applicants for the position


17. The Department Head for the Department of Personnel Management considers and assesses the applicants in consultation with the Central Agency Co-ordinating Committee. The Secretary Department of Personnel Management after consideration and assessments compiles a list of not less than 5 candidates, who have at least the minimum requisites for the office (emphasis mine). In this case this was done.


18. After the list of 5 is done, the Secretary Department of Personnel Management then submits to the Public Service Commission for its consideration not only the 5 names identified by Secretary Department of Personnel Management , but also, all the applicants for the position who responded to the advertisements. This was done in this case.


19. The Public Service Commission then considers the 5 candidates identified by the Department of Personnel Management together with all those that responded to the advertisement (s.31A)(1)(d)). This was done in this case. I note that under this provision there is no specific requirement for the Public Service Commission to consider the 5 candidates identified by the Department of Personnel Management separately from the other candidates. This in my view is vital as regards a merit based recommendation and subsequently a merit based appointment.


20. The Public Service Commission then compiles a list of up to 3 candidates in order of preference, and submits that list as its recommendation to the National Executive Council (s.31A(1)) (d), (h) and (i)). This was done in this case.


21. As alluded to earlier, there is no requirement under s.31A for the Public Service Commission to consider just the 5 candidates listed by Department of Personnel Management on their own first, before opening the process to consider everyone else, who applied for the position. The Public Service Commission considers every applicant for the position. This may be so, for the reason that Public Service Commission is an independent constitutional body and is not subject to direction or control from anyone when carrying out its function. The consideration and assessment of the candidates carried out by the Secretary Department of Personnel Management in consultation with Central Agency Co-ordinating Committee in practice may have no bearing on the assessment done by the Public Service Commission. The assessment carried out by Public Service Commission as it appears to me, is a fresh assessment. That is the assessment that matters most, because it is from the Public Service Commission assessment that a short list of 3 candidates is drawn out from which in turn is submitted to the National Executive Council. This was done in this case.


22. The National Executive Council may select one of the 3 candidates from the short list provided by the Public Service Commission and advise the Head of State to appoint that candidate substantively to the vacant position. This was done in this case.


23. The National Executive Council may also decide that none of the 3 candidates recommended by the Public Service Commission is suitable for appointment. When that happens the National Executive Council advices the Public Service Commission and the Secretary Department of Personnel Management and the entire process is repeated.


24. That in a nutshell to me is the procedure for appointment of a substantive Departmental Head in the National Public Service.


Merit Based Appointment Procedure


25. To me the so called "merit based" appointment procedure under the current laws is a legal fiction. This is because while the Department of Personnel Management Secretary and Central Agency Co-ordinating Committee make a list of 5 persons who they think are suitable candidates the Public Service Commission is not bound to consider those 5 first separately on their own. It considers the entire list of those that applied for the position including the 5 submitted by the Department of Personnel Management. The question that must be asked is what is in the purpose of Department of Personnel Management and Central Agency Co-ordinating Committee carrying out an assessment and coming up with a list of 5. Why do they have to waste their time assessing the applicants, when the Public Service Commission is not bound to consider their assessment separately first before opening it to other applicants. To me the Department of Personnel Management and the Central Agency Co-ordinating Committee could be wasting their time in all this exercise, because it counts to nothing. The entire process to me, may not be merit based at all.


26. In this case Mr Luma complained that the Secretary Department of Personnel Management and Central Agency Co-ordinating Committee came up with a list of 5 candidates who had "at least the minimum requisites for the office. He submitted that Mr Niggins was not in that group because he had no minimum requisites for the office or position. He further submitted that the list provided by them was on merit and constituted a valid assessment.
27. What then are the minimum requisites for the office of Secretary Department of Works? The requirements are spelt out under Section 1 of the Public Services (Management) (Minimum Person Specification and Competency Requirements for Selection and Appointment of Department Heads and Provincial Administrators) Regulations No 6 of 2003.


28. It is clear from this provision that a candidate for the position of Secretary for Works must possess:


(1) a minimum tertiary qualification from a recognized University; together with,
(2) postgraduate training relevant to the technical requirements of the position; and
(3) a management qualification equivalent to the Public Service Intermediate Management Programme.

29. The candidate must also be free from any outstanding investigation or disciplinary proceedings. Those requirements are spelt out under the Regulations.


30. Did Mr Niggins satisfy the requirements under the Regulations? Mr Niggins does have a minimum tertiary degree from a recognized University but not specific to the technical requirements of the position as advertised. Did Mr Niggins have a post graduate training relevant to the technical requirements of the position? No. Did Mr Niggins have management qualification equivalent to the Public Service Intermediate Management Programme? Yes


31. The personal qualifications specific to the job as advertised required the following:


"(a) Bachelor Degree in Civil Engineering, Postgraduate qualifications are a desirable.

(b) Knowledge of Public Service Legislation and exposure to public administration and service delivery.
(c) Skills at high level in management and planning innovative and analytical skills, oral and written communications; a good financial track record with a commitment to transparency, good interpersonal and public relations skills.
(d) Work experience of 8 to 10 years in public administration.

Did Mr Niggins satisfy the above requirements (a) to (d) for the position of Secretary, Department of works?


(a) No, he does not possess a Civil Engineering Degree and has no post graduate degree relevant to the technical requirements for the position.
(b) Yes - He has served in that position and so he would have knowledge of the Public Service laws and would have knowledge of service delivery.
(c) Yes - he would satisfy that requirement.
(d) Yes - he satisfies the requirement under this heading.

32. The crucial question then is, if Mr Niggins has no Civil Engineering degree but has knowledge of the Public Service laws and has wide experience in senior level management and planning for a period of more than 15 years, should he be dropped as a candidate for the position? 33. The primary qualification for the position is that an applicant must have a Civil Engineering degree. Post graduate qualifications would be an added advantage. Mr Niggins does not possess a civil engineering degree, nor does he have a post graduate degree. Mr Niggins therefore did not meet the primary qualification condition for the position. If he did not meet the primary criteria for the position in the first place, should he have been considered for the job?


34. The Public Service Commission was not obliged to agree with the list prepared by Department of Personnel Management and Central Agency Co-ordinating Committee. It came up with a list of its own and recommended accordingly to the National Executive Council. However the Public Service Commission must not come up with a list out of the blue. It must have regard to the requirements stated by law and in this case all the relevant laws mentioned earlier together with the Regulations. Section 1 of Regulation No 6 of 2003 is very specific. The Public Service Commission ’s recommendation to the National Executive Council must be based on:


(a) Candidate is a serving officer of the Public Service. In this case Mr Niggins was and is a serving officer in the Public Service.


(b) Candidate is healthy and fit. I have no reason to doubt Mr Niggin was healthy and fit.


(c) Candidate is not more than 60 years old. In this case Mr Niggins is less than 60 years old.


(d) Candidate possesses as a minimum testimony qualification a Degree from a recognized University, together with a post graduate training relevant to the technical requirements of the position. In this case Mr Niggins does not have a degree or a post graduate training relevant to the position. Mr Niggins however does have management qualification.


(e) Candidate is of good character, with no criminal record Mr Niggins has no such criminal record.


(f) Mr Niggins has no pending criminal charges.


(g) Candidate is free from any outstanding investigation or disciplinary proceedings under any law. Mr Niggins had a report from the Ombudsman Commission of some kind of investigation, which he is not aware of.


(h) Candidate is not barred to hold the position by law or by a Leadership Tribunal. Mr Niggins is not barred to hold office.


(i) Candidate possess proven skills, experience and competences in management, policy formulations and development and project management, financial management and budgetary and manpower placing negotiation and public relation skill, general knowledge of working of government and its structures and systems upholding principles of the Public Services. Mr Niggins had all these qualities in him.


35. A major primary requirement is a degree in Civil Engineering which Mr Niggins does not have. On top of that requirement an applicant or candidate must have management experience which Mr Niggins did have. The Management experience is secondary and additional to the requirement for a Civil Engineering degree, which is the relevant technical requirement for the position of Secretary, Department of Works. That is the requirement under s.1(1)(d) of Regulation No 6 of 2003.
36. I note that the gazettal notice says that "these criteria supplement the minimum person specification" What are those words supposed to mean? Do they mean age, health and good behaviour, record or what?


37. The gazettal notice reads: "Applications are invited from suitably qualified and experienced persons from both the public and private sectors who are able to satisfy the criteria for selection"


38. Is it that the Public Service Commission may have read in irrelevant considerations when making the shortlist of its candidates to the National Executive Council?


39. The plaintiff in this case made out a case in favour of his own appointment to the position which was that he satisfied all the requirements for the position.


40. In all the circumstances, I am of the view that the decision of the Public Service Commission to make the recommendation in the order it did was flawed. For the following reasons:-


(i) Its assessment is not in compliance with s.1(1)(d) of Regulation 6 of 2003.
(ii) Its assessment was not fair to the other candidates by not having the candidates interviewed.
(iii) Mr Niggins did not have the primary qualifications to be considered for the position.

41. In the end result, the recommendation of the Public Service Commission to recommend to the National Executive Council dated is quashed and I order that a fresh process is undertaken to appoint a new Secretary.


42. Costs of these proceedings are awarded to the applicant.


_________________________________________


Kubak Lawyers: Lawyer for the Applicant
Solicitor-General: Lawyer for the Respondent

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