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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS NO 37 OF 2009
YOUNG WADAU, CHAIRMAN OF THE BOARD OF GOVERNORS,
TUSBAB SECONDARY SCHOOL
Plaintiff
V
ROSE AUGUST, ACTING CHAIRMAN,
TEACHING SERVICE COMMISSION
First Defendant
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant
GEORGE IRUM
Third Defendant
MOSES SARIKI, ACTING EDUCATION ADVISER,
EDUCATION BRANCH, MADANG
Fourth Defendant
Cannings J
Madang: 2009: 9 April
Waigani: 2009: 1 May
JUDGMENT
STATUTES – interpretation – general provision conferring power on one body to give directions to another; specific provision conferring power on another body – Education Act 1983, Sections 151 and 39 – powers, functions, duties and responsibilities of education authorities in the National Education System – relationship between Teaching Service Commission and a Provincial Education Board.
A dispute arose over the position of principal of a secondary school. A number of allegations were made against the incumbent principal (the third defendant) in 2006 and he was suspended. However, no charges were laid against him. His suspension was uplifted in early 2008 and he was offered a junior position at another school, which he declined. In the meantime another person was appointed as principal by the Provincial Education Board, on the recommendation of the board of governors of the school. The third defendant felt that he was unfairly treated and complained to the Teaching Service Commission, which considered the matter and directed the Provincial Education Board to reinstate him. That direction was not complied with. Proceedings have been commenced by the chairman of the school’s board of governors (the plaintiff) seeking declarations that, amongst other things, the Teaching Service Commission’s direction is unlawful. At the trial the third defendant argued that the plaintiff lacked standing to commence the proceedings, so a ruling on that issue has been given at the beginning of the judgment.
Held:
(1) The plaintiff is a citizen who has approached the court with good intentions and as chairman of the board of governors he has a particular interest in the question of who is appointed as principal. There is a direct connection between his functions as chairman and such an appointment. He has exhausted his administrative remedies. Thus he was granted standing.
(2) The appointment of the second principal was properly and lawfully made by the Provincial Education Board.
(3) The Teaching Service Commission’s direction to the Provincial Education Board was not authorised by Section 151(1) of the Teaching Service Act and was unlawful.
(4) The third defendant has been dealt with unfairly, but this did not give him a right, or make it just and appropriate for him, to be reinstated.
(5) The second principal should be the principal for the school year 2009.
(6) Declarations and orders made accordingly.
Cases cited
The following cases are cited in the judgment:
Dademo v Angoro, Oro Provincial Education Board and Others (2007) N3235
Opa & Mount Hagen Park Secondary School v Gima, Chairman of Western Highlands Provincial Education Board & Ors (2008) N3343
Re Election of Governor-General (No 1) (2003) SC721
SCR No 4 of 1980; Re Petition of M T Somare [1981] PNGLR 265
Counsel
Y Wadau, the plaintiff, in person
B Meten, for the third defendant
1. CANNINGS J: A dispute has arisen over who should be the principal of Tusbab Secondary School, in Madang. Should it be Mr George Irum, the third defendant, who held the position until he was suspended in June 2006, whose suspension was uplifted in 2008 and who says he is entitled to be reinstated? Or should it be Mrs Margaret Valakvi, who has occupied the position since January 2007 and who has the support of the school’s Board of Governors?
2. The Madang Provincial Education Board says that it should be Mrs Valakvi. At a meeting on 13 January 2009, they appointed her to the position of principal for the school year 2009. They made that decision in accordance with a recommendation from the Board of Governors of Tusbab Secondary School, who support Mrs Valakvi and do not want to see Mr Irum reinstated.
3. The Teaching Service Commission has a different view. They consider that Mr Irum should be the principal. They have nothing against Mrs Valakvi, but consider that Mr Irum has not been dealt with properly by the education authorities. He was suspended as principal of Tusbab Secondary School in 2006 and his suspension was not uplifted until 20 months later. No charges were ever laid against him. Then he was offered a junior position at another school, which amounted to a demotion, and he declined to accept that offer. The Commission’s view is that he deserves to be reinstated and they have given a direction to the Provincial Education Board to reinstate him.
4. The dispute has been brought to court by the chairman of the Board of Governors, Mr Young Wadau, the plaintiff, who seeks a number of declarations, including that the Commission’s direction to the Provincial Education Board is unlawful.
5. The trial was held at Madang and Mr Wadau represented himself. Mr Burnie Meten of Narokobi Lawyers represented Mr Irum. Other defendants were not represented but Mr Wadau and Mr Meten assured me that they knew about the trial and had been given a proper opportunity to appear.
ISSUES
6. Mr Meten took issue with Mr Wadau’s standing in the matter, so that is the first issue to address. If decided against Mr Wadau, that will be the end of his case. But if decided in his favour, other issues will arise about the respective powers of the Provincial Education Board and the Teaching Service Commission. The court must also consider the interests of Mr Irum, who claims to have been dealt with unfairly, and, of course, the interests of Mrs Valakvi. She has not been made a party to the proceedings and nothing adverse about her appears in the evidence but clearly she has an interest in the outcome. As do, of course, the students of Tusbab Secondary School. Their interests must also be considered in deciding on what declarations or other remedies the court should grant.
7. I will address the issues in this sequence:
1 DOES MR WADAU HAVE STANDING TO COMMENCE THESE PROCEEDINGS?
8. Mr Meten submitted that it is not clear whether Mr Wadau commenced the proceedings personally, in his capacity as chairman of the Board of Governors, or whether he commenced the proceedings on behalf of the Board of Governors who authorised him to commence the proceedings. Whatever the case, he submits, Mr Wadau lacks locus standi (sufficient, legally recognisable interest) and the proceedings should be dismissed. Mr Meten points to the provisions of the Education Act that provide for the establishment of boards of governors for secondary schools (Section 65) and for appointment to boards (Sections 66 and 67) and for their powers and functions (Sections 68 and 69). He also relies on Section 85, which, he argues, confers on the Teaching Service Commission the power to appoint teachers by stating:
Except as is specifically provided by or under this Act or any other law relating to education matters, no education authority other than the Teaching Service Commission has any powers in relation to the appointment, promotion, transfer, discipline, suspension, dismissal or conditions of service of teachers generally or of individual teachers in the Teaching Service.
9. Mr Meten submits that these provisions limit the powers and functions of a board of governors to the matters expressly set out in Section 68. Things like planning for school buildings, accounting for money made available to the school, enrolment of students, making of rules for the discipline of students and determining the aims and goals of the school. The Act does not give a board of governors the power to appoint teachers or to question decisions of the Teaching Service Commission regarding the appointment of teachers.
In what capacity did Mr Wadau commence these proceedings?
10. It is clear that he commenced them in his individual capacity as Chairman of the Board of Governors of Tusbab Secondary School, not on behalf of the Board of Governors. On the originating summons he describes himself as the Chairman of the Board of Governors. He does not say ‘for and on behalf of the Board of Governors’ or anything else to suggest that he acts in a representative capacity. So the question is whether someone who is the chairman of a board of governors has a sufficient and legitimate interest in the appointment of teachers to his school, to warrant him challenging the legality of such appointments.
Does a board of governors have standing?
11. In determining the answer to that question it is relevant to note, as highlighted by Mr Meten, that there is no express provision in the Education Act or any other law allowing a board of governors to challenge teacher appointments. But I do not think it follows from that, that a board or its chairman is prohibited from challenging appointments or that they should be denied standing. Just because an Act does not expressly provide for something does not mean that it is prohibited.
12. There are some laws that give a board of governors a say in appointments. For example, Section 68(1)(g) of the Education Act allows a board of governors to appoint a committee "to be responsible for such matters in relation to the appointment of teachers in the school as are provided by or under any law". Section 39 of the Teaching Service Act states that appointments to positions in a provincial high school shall be made by the Provincial Education Board "after having received the recommendation of the Board of Governors". A school board is responsible under Section 68(1)(f)(ii) of the Education Act, not only for determining the aims and goals of its school but also for "supervising the achievement of those aims and goals". A critical way in which to discharge that responsibility is for a board of governors to ensure, as far as is practicable, that suitably qualified and experienced and reputable teachers are appointed to its school; and to ensure that laws and procedures for teacher appointments are followed.
13. In my view a board of governors would not be doing its job if it took no interest in teacher appointments. A board has an inherent and legitimate interest in appointments. That interest should be protected by the courts affording standing to a board of governors if it wishes to challenge the legality of an appointment, subject of course to the court having the power to prevent an abuse of its processes by striking out frivolous or vexatious challenges.
Does a board chairman have standing?
14. What if the board of governors does not challenge an appointment, but, as in this case, the chairman does? I think the court needs to be circumspect. It should be satisfied that the chairman is acting bona fides – with good intentions – and not, for example, advancing some personal vendetta by mounting a legal challenge. Provided that requirement is met, the court should be inclined to afford standing to the chairman.
15. This approach would be consistent with the seminal decision of the Supreme Court on the question of locus standi in SCR No 4 of 1980; Re Petition of M T Somare [1981] PNGLR 265: an individual citizen (in that case the Leader of the Opposition) who has done all he or she could do to challenge the constitutionality of an Act of Parliament and who had no other way of coming before the Supreme Court was afforded standing.
16. A similar approach was taken in Re Election of Governor-General (No 1) (2003) SC721. The Chief Ombudsman, who wanted to challenge the appointment of the Governor-General on the ground that the Parliament had breached the procedures prescribed by an Organic Law, was afforded standing in his capacity as an individual citizen. The Supreme Court took into account that he was a citizen and he had a particular interest in the matter before the court as he was a member of the Ombudsman Commission, so there was a connection between his functions as Chief Ombudsman and the cause of action being pursued. He had done all that he could do to try to cure the defect by writing to the Prime Minister and the Clerk, so he had demonstrated a genuine concern with the issues raised in the court proceedings.
17. Those cases were concerned with challenges to the exercise of legislative and executive powers based on alleged breaches of the Constitutional Laws. But the principles about how to determine whether someone should be granted standing have universal application.
18. In this case, I am satisfied that Mr Wadau is a citizen who has approached the court with good intentions. He wants to see the person that he and the board of governors think is the best person for the job to be appointed as principal. As chairman of the board of governors he has a particular interest in the question of who is appointed. There is a direct connection between his functions as chairman and the appointment of the principal. The evidence shows that he has communicated actively with the Teaching Service Commission and other education authorities to try to have the matter resolved outside court. He has exhausted his administrative remedies. He has demonstrated a genuine concern for the questions he wants determined by the court.
19. I am satisfied that he should be granted standing. I refuse the application that he be denied standing and I will proceed to address the substantive issues raised in the originating summons.
2 WAS MRS VALAKVI PROPERLY APPOINTED BY THE PROVINCIAL EDUCATION BOARD?
20. In normal circumstances, where there is a vacant position in the Teaching Service, the position is advertised in the Education Gazette and the vacancy is filled in accordance with the procedures laid down in Division V.2 (Sections 35 to 73) of the Education Act. The appointing authority for a "provincial high school" is the Provincial Education Board. Section 39(1) states:
Appointments to positions in a provincial high school or a technical school shall be made by the Provincial Education Board, after having received the recommendation of the Board of Governors of the school concerned.
21. It seems to have been agreed by both counsel that Tusbab Secondary School is for the purposes of this provision a provincial high school. Though some provinces have their own provincial laws and a clear distinction is drawn between a provincial high school and a secondary school, Madang Province has no such law and the ordinary meaning must be given to the term "provincial high school". This sets Madang apart from other provinces such as Western Highlands Province, where a clear distinction is drawn between those two types of schools (Opa & Mount Hagen Park Secondary School v Gima, Chairman of Western Highlands Provincial Education Board & Ors (2008) N3343).
22. Mr Meten submitted that Section 39(1) could not be relied on in this case to appoint Mrs Valakvi as there was no vacancy in the position of principal of Tusbab Secondary School. Mr Irum held the position in January 2009 when the Provincial Education Board purported to appoint Mrs Valakvi. He had held the position since the date of his appointment and, though he was suspended in June 2006, he was never charged and never found guilty of any disciplinary offence, so he has not at any time been lawfully removed from the position.
Uplifting of suspension
23. Mr Wadau counters that by pointing to something that happened in February 2008. The Education Adviser with the Madang Provincial Government, Mr Chris Bulu, wrote to Mr Irum and notified him that his suspension had been uplifted and offered him a junior teaching position at Brahman High School. Mr Irum did not take up that appointment. His failure to do so means, according to Mr Wadau’s argument, that by operation of Section 44 of the Teaching Service Act, he forfeited both the appointment to Brahman High School and his former appointment as principal of Tusbab Secondary School.
24. I will deal with Mr Wadau’s argument first as it can be quickly disposed of. Mr Bulu had no power to uplift Mr Irum’s suspension. The suspension could only be removed by the Teaching Service Commission or the person who suspended Mr Irum (the Provincial Administrator, Mr Joseph Dorpar) in accordance with Section 90(2) of the Teaching Service Act, which states:
Suspension may be effected before, at the time of or after the laying of the charge, and may be removed at any time by the Commission or, with the consent of the Commission, by the person who suspended the member.
25. As he had no power to uplift the suspension, Mr Bulu also lacked power to offer an appointment to Mr Irum. Besides that, it is the Provincial Education Board’s function to offer and make appointments, not the Education Adviser’s. Mr Irum therefore did not, by failing to take up the appointment at Brahman High School, forfeit his appointment as principal of Tusbab Secondary School.
26. That raises the question of whether Mr Irum’s suspension has ever been removed properly. Is he still under suspension? This is unclear from the documents that have been admitted into evidence. There is a letter from the Teaching Service Commission to the Provincial Education Board dated 20 October 2006 stating that the Commission was in the process of considering an investigation report in which Mr Irum was seriously implicated and had decided not to lift the suspension. It is difficult to work out what has happened after that.
What term of appointment did Mr Irum have?
27. However, irrespective of whether Mr Irum’s suspension has been lifted, a more pertinent question is: was his term of appointment as principal still current in January 2009 when the Provincial Education Board appointed Mrs Valakvi? Or had it expired? To my mind, this is a critical issue but it seems to have been glossed over by both counsel in their submissions.
28. If Mr Irum’s appointment was current there would be a strong argument to say that the Provincial Education Board had no power to appoint another person to the position. But if his appointment had expired, there would not appear to be much to stop the Provincial Education Board appointing Mrs Valakvi.
29. I am going to make a determination of this question of fact on the best evidence available and I consider that that is provided by the affidavits of the Deputy Chairman of the Provincial Education Board, Bruno Tulemanil (exhibit B), the Director of the Education Branch of Madang, Christopher Bulu (exhibit C) and the plaintiff, Young Wadau (exhibit E), which indicate that appointments to teaching positions are made on an annual basis. Teacher placements are approved from year to year. Towards the end of each academic year all teachers are required to apply for posting. The board of governors of each school submits recommendations to the Provincial Education Board, which then makes the appointments and approves placements and displacements for the forthcoming year.
30. I therefore find as a fact on the balance of probabilities that Mr Irum’s appointment expired at the end of 2006 and that he was not subsequently given a fresh appointment. It does not matter that he was not formally removed from the position. He ceased to occupy the position by the effluxion of time.
31. This means that at the beginning of 2009, as no one else had been appointed substantively to the position of principal of Tusbab Secondary School, it was open to the appointing authority to appoint the person of their choice. The appointing authority is the Provincial Education Board and the person of their choice was Mrs Valakvi.
Power of the Provincial Education Board
32. I reject Mr Meten’s submission that the Provincial Education Board only has power to make appointments when a vacancy is advertised in the Education Gazette. Section 35 of the Teaching Service Act states that a Provincial Education Board "may by advertisement, invite persons to apply for appointment to vacant positions in the Teaching Service". This means that the process of advertisement and gazettal is discretionary, not mandatory. So, whether a vacancy is advertised and gazetted or not, the appointing authority is the Provincial Education Board, which is authorised by Section 39(1) to make appointments after having received the recommendation of the board of governors of the school concerned.
33. It is clear that the board of governors of Tusbab Secondary School recommended that Mrs Valakvi be appointed as principal for the school year 2009. That recommendation (together with other placements at the school) went to the Provincial Education Board’s appointment committee, which met at the Catholic Headquarters Conference Room in Madang on 7 January 2009. The Committee accepted and endorsed the recommendation and forwarded it to the Provincial Education Board, which met on 13 January 2009 at the same venue for a "Special Meeting on Teacher Placements". The Board decided that the placements endorsed by the Committee, showing Mrs Valakvi as principal, be recognised as the "final posting list" for Tusbab Secondary School for 2009.
34. The Board had before it correspondence from the Teaching Service Commission, instructing it to reinstate Mr Irum as principal, but rejected that instruction, taking the view that it contravened the Teaching Service Act and was a nullity.
35. I will examine that instruction in a moment but for present purposes – subject to a determination of its legal effect – I conclude that Mrs Valakvi was properly appointed.
3 WAS THE TEACHING SERVICE COMMISSION’S DIRECTION TO REINSTATE MR IRUM LAWFUL?
36. On 9 January 2009 the Teaching Service Commission gave a direction to the Provincial Education Board in these terms:
The latest decision of the Commission is that, as a result of the Provincial Education Board’s long delay to carry out required disciplinary processes, the Board has been directed to reinstate Mr Irum to the position of principal of Tusbab Secondary School.
37. Mr Meten submits that this was a lawful direction under Section 151(1) of the Teaching Service Act, which states:
The Commission may give to education authorities and members of the Teaching Service directions, not inconsistent with this Act or the Education Act, as to any matter that it is necessary or desirable to regulate for the administration of this Act and the efficient control of the Teaching Service.
38. He submits that the Provincial Education Board, which is an "education authority" by virtue of Section 1(1) of the Teaching Service Act and Section 5(f) of the Education Act, had a duty to comply with the direction under Section 151(2), which states:
Education authorities and members of the Teaching Service shall comply with any direction given under Subsection (1).
Two qualifications to Section 151(1) directions
39. Mr Meten’s submission overlooks two qualifications on the Commission’s power to give directions to a Provincial Education Board, which were highlighted by Mr Wadau:
40. I consider that, given that the Teaching Service Act and the Education Act established various education authorities, including Provincial Education Boards, and conferred on them powers as appointing authorities, it is inconsistent with those Acts for the Teaching Service Commission to give directions on specific appointments. If the Parliament intended the Commission to have a veto power over appointments or a power to direct a Provincial Education Board to appoint a certain person to a certain position, it is reasonably to be expected that it would have made express provision for that. So the first qualification is not met in this case.
41. As for the second qualification, a direction to appoint a certain person to a particular teaching position is not something that can properly be regarded as regulating a matter regarding the administration of the Act and the efficient control of the Teaching Service. Such matters are more in the nature of general policy matters – not very specific matters concerning appointments. So the second qualification is also not met.
Was Section 151(1) properly invoked?
42. I conclude that the Commission has no power to give a direction under Section 151(1) of the sort that it gave to the Provincial Education Board on 9 January 2009.
43. In reaching that conclusion I have carefully considered the opinion of Sakora J in Dademo v Angoro, Oro Provincial Education Board and Others (2007) N3235, which may appear to conflict with mine. His Honour held that Provincial Education Boards have an inferior position in the National Education System to that of the Teaching Service Commission and have a duty to consult and co-operate with the Commission. In the circumstances of that case, his Honour held that the Oro Provincial Education Board had a duty to comply with a direction from the Commission regarding the appointment of the principal of Popondetta Secondary School. His Honour highlighted a litany of breach of procedures by the Oro Provincial Education Board, which provide a basis on which the facts of that case are distinguishable from those of the present case. Also, it appears that the qualifications on the Commission’s power of direction under Section 151(1) were not brought to his attention as effectively as they were by Mr Wadau in the present case. So I do not, with respect, feel obliged, given the differences between the two cases, to make the same finding on this question of law as did his Honour in that case.
44. I conclude that the Teaching Service Commission’s direction to the Madang Provincial Education Board to reappoint Mr Irum was unlawful and that the Provincial Education Board was not obliged to comply with it.
4 HAS MR IRUM BEEN PROPERLY DEALT WITH? IF NOT, SHOULD HE BE REINSTATED?
45. This was not squarely raised as an issue by the originating summons. But it is an important issue to consider as the primary remedy the plaintiff is, in effect, seeking is a declaration that Mrs Valakvi should be regarded as the principal.
46. This is an equitable remedy, which means that the court must be acutely conscious of its duty to reach a fair and just decision that takes account of all legitimate, conflicting interests. It also means that the court has a discretion to exercise. Declarations are not granted as of right. The court must be convinced that it is fair and just to make the declaration sought.
Unfair treatment of Mr Irum
47. These considerations are especially important in this case as it appears that by applying any objective standard of procedural fairness or justice Mr Irum has not been properly dealt with.
48. He was suspended in June 2006 and an investigation was conducted into a number of serious allegations against him. He was, it appears, not questioned or consulted on the allegations and an investigation report was prepared and circulated to the Teaching Service Commission and other authorities without his input. He was not given a copy of the report. In April 2007 he was taken off the payroll and, it seems, he was not put back on the payroll until March this year. All through this time no charges were laid against him. In early 2008 he was told that his suspension was lifted and he was offered a junior teaching position at another school. He must surely have felt insulted by such an offer.
49. This has no doubt been a stressful and distressing part of his professional life and probably his personal life too. Something has gone wrong. Someone has erred. No properly functioning education system should treat any of its members – least of all a senior and experienced teacher – in this way. In my view, Mr Irum has been dealt with most unfairly. The damage to his reputation is significant and he has been denied the right to defend himself. He should explore the possibility of seeking legal redress for what appears to be the negligent manner in which his case has been dealt with.
Consequences of unfair treatment
50. But it does not follow that he should be reinstated.
51. As I said at the beginning of this judgment the interests of the students of Tusbab Secondary School must be given very careful, indeed paramount, consideration. Mr Irum has now, for good reason or bad, been out of the position of principal for more than two and a half years. It would disrupt the smooth running of the school for him to be brought back in now – almost half the way through the school year. He does not have the support of the Board of Governors or the Provincial Education Board, and the allegations against him have – through no fault of his own – still not been resolved.
52. Besides that, he has, as I have determined, no legal right to be reinstated. His appointment has expired. So the best thing is that he not be reinstated; at least, not for the 2009 school year.
5 WHO SHOULD BE THE PRINCIPAL OF TUSBAB SECONDARY SCHOOL?
53. Mrs Valakvi should be the principal. She has been lawfully appointed by the Provincial Education Board for the 2009 school year and that is the way things should remain.
6 WHAT OTHER DECLARATIONS OR ORDERS SHOULD THE COURT MAKE?
54. The originating summons sought eight declarations or orders. I will address them in turn.
DECLARATIONS AND ORDERS
(1) It is declared that Mrs Margaret Valakvi is the duly appointed principal of Tusbab Secondary School for the school year 2009.
(2) It is declared that Mr George Irum is an unattached member of the Teaching Service.
(3) It is declared that the Teaching Service Commission’s direction to the Provincial Education Board to reinstate Mr Irum was unlawful.
(4) It is ordered that the fourth defendant, Moses Sariki, the Acting Education Adviser, is restrained from implementing the Teaching Service Commission’s direction.
(5) It is ordered that Mr Irum is restrained from occupying the position of principal of Tusbab Secondary School.
(6) It is ordered that Mr Irum is permitted to occupy the teacher’s residence at Tusbab Secondary School for a period of three months after the date of this order.
(7) It is ordered that the parties shall bear their own legal costs.
Judgment accordingly.
____________________________
Young Wadau Lawyers: Lawyers for the plaintiff
Narokobi Lawyers: Lawyers for the third defendant
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