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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 715 OF 2013
BETWEEN:
JOSEPH MONDOLAME
Applicant
AND:
UNGIA KEMBO IN HIS CAPACITY AS THE ACTING PROVINCIAL ADMINISTRATOR FOR SOUTHERN HIGHLANDS PROVINCIAL ADMINISTRATION
First Respondent
AND:
ANDREW PEKE MANAGER – HUMAN RESOURCES FOR SOUTHERN HIGHLANDS PROVINCIAL ADMINISTRATION
Second Respondent
AND:
SOUTHERN HIGHLANDS PROVINCIAL ADMINISTRATION
Third Respondent
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent
Waigani: Nablu, AJ
2014: 5th, September
2015: 16th, February
JUDICIAL REVIEW – Refusal to comply with Public Services Commissions' decision – Review of decision of the Acting Provincial Administrator – Whether reasons for Restructure of Administration unreasonable – Reinstatement – Public Services General Orders- Application Refused
Cases cited:
Papua New Guinea cases
Allan Pingah v. Margaret Elias & Others (2005) N2850
Dale Christopher Smith v. Minister for Lands (2009) SC 973
Francis Damen v. Jerry Tetega (2005) N2900
Kekedo v. Burns Philip (PNG) Ltd [1988-89] PNGLR 122
Mision Asiki v. Manasupe Zurenuoc (2005) SC 797
Ombudsman Commission v. Peter Yama (2004) SC 747
Open Bay Timber Limited & Anor v. Hon. Lucas Dekena and Others (2013) N5109
Paul Sireh v. Miai Larelake (2007) N3181
Taka v. Amean & Others [2006] PGNC 62
Tau Mavaru Kamuta v. David Sode (2006) N3067
Overseas Cases
Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1 KB 233.
Counsels:
A. Waria, for the Applicant
N. Gimaia, for the First, Second and Third Respondent
A. Nasu, for the Fourth Respondent
16th February, 2015
1. NABLU, AJ: This is an application for judicial review made under Order 16 Rule 5(1) of the National Court Rules. Leave was granted on 24th October 2013.
2. Joseph Mondolame, the Applicant seeks judicial review of the decision of the Acting Provincial Administrator for Southern Highlands Provincial Administration, not to advertise the position of Human Resources Manager contrary to the Public Services Commissions' decision. The Public Services Commission found that the selection and appointment process for the managers' position was fundamentally flawed. The Acting Administrator decided that the Public Services Commission decision would be accommodated when all the positions in the Administration were upgraded and advertised in the Administrations' Restructure. The Restructure was necessary following the creation of the new Hela Provincial Administration. The First Respondent communicated his decision to the Applicant by way of a letter dated 16th April 2013.
3. The Applicant seeks various reliefs, which I have summarized. The primary relief sought is an order in the nature of certiorari to bring into Court and quash the decision of the First Respondent dated 16th April 2013. He also seeks the following declarations;
4. He also seeks an order to restrain the Second Respondent from performing the duties of the Manager for Human Resources.
Background Facts
5. Since 2006, the Applicant was the Manager of Human Resources in the Southern Highlands Provincial Government Administration. Sometime in 2008, the position was advertised externally. The Applicant applied for the position, however, he was unsuccessful. The Second Respondent was appointed to the position on 9th April 2010. Consequently, the Applicant was rendered an unattached officer. The Applicant then lodged a complaint with the Public Services Commission (PSC), challenging the decision of the Provincial Administrator to appoint the Second Respondent.
6. On 21st March 2012, the PSC made a decision. The PSC annulled the selection of the Second Respondent. They directed that the First Respondent re-advertise the position and re-commence the advertisement and selection process. They also directed that a new selection committee should be appointed for this selection process.
7. In 2012, the Government of the day created a new Province; Hela Province. As a result, the Southern Highlands Provincial Administration had to be re-organized in order to share resources and personnel with the newly created Hela Provincial Administration.
8. The Acting Provincial Administrator then wrote to the Applicant on 16th April 2012 and advised him that the Southern Highlands Provincial Administration was currently undergoing a restructure due to the creation of the new Hela Province. In his letter, he stated that the PSC's decision to re-advertise and conduct fresh selection process would be implemented in a restructure and upgrading of all positions in the Administration. It is this decision which is the subject of judicial review.
Grounds of Review
9. The Applicant now seeks judicial review of the decision of the First Respondent and relied on four (4) grounds of review as summarized below:
(i) The first ground of review is that the First Respondent committed an error of law and his decision was contrary to Section 18 (3)(d)(ii) of the Public Services (Management) Act 1995 because he was bound to comply with the decision of the Public Services Commission.
(ii) The selection and appointment of the Second Respondent was unlawful because he did not possess the required qualification contrary to General Order 3.11 of the Public Services General Orders.
(iii) The decision was made contrary to General Orders 4.43 and 4.50; the First Respondent should have re-instated the Applicant to that position as an unattached or excess officer because the PSC annulled the selection of the Second Respondent.
(iv) The decision of the First Respondent was unreasonable within the meaning of the Wednesbury principles of unreasonableness.
Evidence
10. The Applicant relies on his Affidavits filed on 7th October 2013 and 28th October 2013. In response, the Respondents filed the Affidavit of Ungia Kembo, the Acting Provincial Administrator on 17th December 2013.
Legal Issues
12. The first issue is raised by the first ground of review. It is unclear which grounds of review the rest of the issues correlate to. I propose to deal with the remaining issues under the third ground of review. However, I am of the view, that the main issue for determination is whether the decision of the First Respondent amounted to a refusal to comply with the decision of the Public Services Commission?
The Law
13. There are two pertinent steps involved in the process of determining judicial review applications. Firstly, the Court must be satisfied that the Applicant has proven one or more of its grounds of review. Secondly, if it is proven one or more of its grounds of review, then the court has the discretion to determine what is the appropriate remedy or relief to be granted (Mision Asiki v. Manasupe Zurenuoc (2005) SC 797; Dale Christopher Smith v. Minister for Lands (2009) SC 973; Open Bay Timber Limited & Anor v. Hon Lucas Dekena and Others (2013) N5109).
14. The decision of the Public Services Commission is binding after 30 days from the date of the decision according to Section 18(3) (d) (ii) of the Public Services (Management) Act 1995. The law in regard to the binding nature of the decisions of the Public Services Commission is settled. By operation of law, the Public Services Commissions' decisions are binding (Francis Damem v. Jerry Tetega (2005) N2900, Allan Pingah v. Margaret Elias & Others (2005) N2850).
Analysis of the Law and Facts
Ground One
15. The Applicant argues that the First Respondent's decision was contrary to s.18 (3) (d) (ii) of the Public Services (Management) Act. Mr. Waira of Counsel for the Applicant submitted that the First Respondent was bound by Section 18 of the Public Services (Management) Act to implement the decision of the PSC within 30 days of the date of the decision.
16. The Counsel submitted that the First Respondent was bound to implement the PSC decision. He further submitted that it was the Applicant who laid the initial complaint with the Public Services Commission challenging the validity of the Second Respondents' selection and appointment. The PSC found that the selection and appointment process was fundamentally flawed and therefore the Second Respondent was unlawfully performing the duties of the Human Resources Manager. He submitted that the effect of the PSC decision was that it rendered the whole selection and appointment of the Second Respondent null and void. The First Respondent was bound to advertise the position and conduct a fresh selection process. This meant that the Second Respondent should not continue to hold office and that the Applicant should be re-instated to his substantive position as Human Resources Manager.
17. Mr. Gimaia of Counsel for the Respondents conceded that the PSC Decision was binding 30 days after the date of the decision. He submitted that pursuant to the letter dated 16th April 2013; the First Respondent explained how the PSC decision would be implemented. The First Respondent stated that current political and administrative changes affect the Southern Highlands Provincial Administration. A restructure exercise was in progress following the Governments' decision to create a new Hela Province. Effectively the PSC Decision would be implemented when the restructure was approved.
18. The Respondents argued that this was not a refusal to implement the decision of the PSC but that the implementation would be delayed and included as part of the whole administrations' restructure.
19. Ms. Nasu of Counsel for the State submitted that the State was a nominal Respondent. Therefore she would not make submissions on the legal issues. However, she made submissions on the question of whether the PSC decision was a good decision and one that would not cause any hardship to the Administration and the State.
20. Parties agreed on a number of factual matters. They were that new Hela Province was created. As a result this affected the Southern Highlands Administration, which required changes to its structure. The restructure exercise was in its final stages pending approval.
21. The PSC Decision was made on 21st March 2012 in the following terms;
"1.1 The Commission annuls the selection decision to appoint the successful candidate MR. ANDREW PEKE to position NO. SHPHRMD 001 designated as a Manager – Human Resources Management with Southern Highlands Provincial Administration.
1.2 The Provincial Administrator immediately advertise the said position and conduct fresh selection hearing for the said position in accordance with General Order 3 governing recruitment, selection and appointment in the Public Service.
1.3 A new Selection Committee be appointed which shall not include members of the previous Selection Committee and shall include a delegate of the Secretary of Department of Personnel Management."
22. The decision which is the subject of review was made in a letter dated 16 April 2013. The relevant part of that letter is reproduced below:
"I Ungia Kembo, the Acting Provincial Administrator would like to confirm receipt of the letter dated 28th March 2013 on the 15th April from your office representing the aggrieved officer Joseph Mondolame who seek Public Service Commission (PSC) review on the senior management appointment process particularly the Human Resource Managers appointment [sic].
The decision of the PSC 1.2 has been accommodated or honored by way of upgrading and restructure [sic]. This was a timely move in responding to the separation of the New Hela and Southern Highlands Province where the administration had gone into complete restructure. All process has been completed and waiting for final vetting from the Department of Personnel Management when all the positions will be advertised in May/June 2013.
I'd like to thank you for your understanding of the decisions (1.1, 1.2, & 1.3) of the Public Services Commission that doesn't include the aggrieved officer's automatic reinstatement to the position the he has acted on [sic]. I have honored the decision of the Public Service Commission in the new structure as the administration is going into the important phase of the creation of the new province, Hela and Southern Highlands [sic].
The aggrieved officer, Joseph Mondolame is losing nothing in-terms of salary and still receiving the full benefit of permanent public servant as the senior officer. And it will not do him any harm or jeopardize his benefits and in my best opinion on behalf of the administration, I suggest that Joseph wait and apply when the upgrade positions including human resources managers position will be advertised next month [sic]."
23. PSC decisions are binding pursuant to Section 18(3) (d) (ii) of the Public Services (Management) Act. In this case there is no issue in regard to whether the PSC decision is binding or not. The main issue of contention is whether the decision of the First Respondent complied with the decision of the PSC decision. The Respondents say they will comply with the decision when the restructure is implemented.
24. According to the Amended Statement of Agreed and Disputed Facts, it is not disputed that the PSC made a decision. It is also not disputed that the Southern Highlands Provincial Administration organizational structure was changed following the creation of Hela Province.
25. Another issue which comes to my mind is whether a restructure is a reasonable excuse or explanation for not complying with a PSC decision. Mr. Gimaia, referred me to the case of Taka v. Amean & Others [2006] PNGNC 62 where the Court refused to grant relief by way of a mandamus order, to compel the Enga Provincial Administrator to reinstate the Plaintiff to his former substantive position. In that case, the Provincial Administrator refused to implement the decision of the PSC. In his reasons for refusal, he said that the Department of Personnel Management had approved a restructure exercise. The restructure resulted in the position being reclassified and upgraded. Ultimately another person was appointed to the position.
26. His Honour, Injia, DCJ (as he then was), stated at page 6 that the "prerogative writ of Mandamus is an equitable remedy and it was very much discretionary." The grant of an order in the nature of mandamus may be refused were it would cause administrative hardship. Where a public authority is required to act contrary to law, relief such as an order in the nature of Mandamus may be refused. His Honour was of the view that, the Provincial Administrator was "the man on the ground well versed with the administration...he can only be compelled to perform an act that he can lawfully be permitted and insofar as administratively, feasible, convenient or practicable." I agree and adopt the views expressed by His Honour.
27. Also in the case of Paul Sireh v. Miai Larelake & Others (2007) N3181. His Honour, Injia, DCJ (as he then was) refused an application for leave to review the approval and implementation of a restructure to the Gulf Provincial Administration. In that case, the Court was reluctant to grant leave to challenge the implementation of the approved restructure.
28. Both these cases, though not specifically on point on whether the restructure of an administration is a valid reason to refuse implementation of a PSC decision, they adequately demonstrate the Courts' reluctance to interfere with decisions which are largely administrative in nature. A decision to re-organize the structure of an organization is largely an administrative decision. To compel the Acting Provincial Administrator to implement a PSC decision, during a restructure process would be administratively inconvenient and impracticable. Therefore I am of the view, that an organizational restructure is a valid reason for refusing to comply with a PSC decision.
29. After a careful reading of the letter of the Acting Provincial Administrator, I am not persuaded that he refused to comply with the decision of the PSC. The evidence of the First Respondent was uncontested. I accept the evidence of the First Respondent that there was a restructure in the provincial Public Service and that all positions have been affected, including the one which is the subject of this dispute. The restructure was pending final vetting from the Department of Personnel Management. The Applicant is at liberty to apply for the position once the positions were advertised on the open market, following the approval of the new structure.
30. I reject the submissions by Counsel for the Applicant. I am also of the view that it is not necessary for the Court to consider the submissions from the State's Counsel, on the basis that, the subject decision is a decision of the Acting Provincial Administrator and not a decision of the PSC.
31. Accordingly, I accept the submissions by Mr. Gimaia. I am not satisfied that the First Respondent committed an error of law. The First Respondent clearly states that the PSC decision would be implemented when all the positions are upgraded and the organizational structure for the Administration was finalized. I am not persuaded that the decision made by the First Respondent was a refusal to implement the decision of the PSC.
32. Even if I am wrong the granting of relief is discretionary. According to Order 16 Rule 4 (1) (b) of the National Court Rules, the Court may refuse to grant any relief sought by the applicant, if the Court is of the opinion that the relief sought would be likely to cause substantial hardship to or substantially prejudice the rights of any person or would be detrimental to good administration.
33. If the Court quashed the decision of the Acting Provincial Administrator, it would cause substantial hardship and incur costs to re-advertise the position, call for applications and conduct selections just for this one position. The rights of the other unattached Public Servants pending the restructure would be substantially prejudiced and it would be detrimental to the public service in the Southern Highlands.
34. Bearing in mind that the onus is on the Applicant to prove his case. I find that the Applicant has not made out this ground of review. Ground one of the judicial review is therefore, dismissed.
Ground Two
35. The Applicant argues that the Second Respondent did not possess the right qualification and therefore the PSC decision was correct and in order.
36. The Respondents argue that this ground is irrelevant since the PSC made a decision to annul the selection. This is not a review of the PSC decision but a review of the decision of the First Respondents decision.
37. I uphold the submissions by the Respondents' Counsel.
38. It is not disputed that the PSC made the decision that the selection was null and void. The PSC in its decision provided its reasons for the findings it made. The PSC decision is not the decision that is subject of judicial review. Therefore, this ground is misconceived and therefore dismissed.
Ground Three
39. The Applicant argues that the decision of the first Respondent not to reinstate him was made contrary to General Orders 4.43 and 4.50 of the Public Services General Orders. He says that he should be reinstated after the Second Respondents' selection and appointment was annulled. He argues further that the decision of the First Respondent was made contrary to General Orders 4.43 and 4.50 of the Public Services General Orders.
40. The Respondents argued that this ground of review is misconceived. Counsel for the First, Second and Third Respondent submitted that the provisions of the General Orders have been misinterpreted. The provisions do not support the Applicants' contention.
41. I am of the view that this ground of review, relates to the three remaining legal issues. They are whether the applicant is entitled to reinstatement to the position of Manager Human Resources; whether the reinstatement is not possible because of the restructure and whether the Second Respondent can continue to be employed in the position.
42. Firstly, I will deal with the issue of reinstatement. I find that the evidence is clear. On the face of the record, the PSC decision, does not direct that the Applicant be reinstated to his former position. This I find is a logical, rational and reasonable decision. Unlike a situation where the complainant was dismissed from his substantive position for a disciplinary charge and the disciplinary process was fundamentally flawed. In my view, in those circumstances, the PSC would have the discretion to direct that the complainant be reinstated.
43. However, in the present case, the circumstances are different. The Applicant was an unsuccessful applicant who challenged the selection and appointment of the Second Respondent. In the Applicant's affidavit he states that the position was advertised in 2008. From the evidence, it is unclear as to the reasons why the position was advertised.
44. Interestingly, in his Affidavit he also, states that he was actively involved in the advertisement of the positions and receiving of the applications for other positions as well as the position in dispute. This would appear to be quite improper and irregular. It is trite law, that certiorari is an equitable remedy and is discretionary. It is not available to an applicant that has unclean hands (Tau Mavaru Kamuta v. David Sode (2006) N3067).
45. I find that, the Applicant admitted to having intimate knowledge of who applied for the position. There is a clear conflict of interest, because he was also an applicant for the position. Given that the Applicant has come to equity with unclean hands, equitable remedies, such as mandamus and certiorari are not available to him.
46. In the Applicant's affidavit he annexes a newspaper publication dated 10th April 2010 where the Department of Personnel Management and the Departmental of Provincial & Local Government Affairs and the Southern Highlands Provincial Administration published the Appointment and Selection results for the Senior and Middle Management positions. The public advertisement notified all, that the Provincial Administration had taken necessary steps to restore the public service machinery since the State of Emergency in 2006. From this evidence, I infer that as a result of the State of Emergency in 2006, the positions were advertised in 2008. There is uncontested evidence from the Applicant that he held the position in a substantive capacity prior to 2008. In his Affidavit, he annexes a copy of the Staff Appraisal Form for 2006.
47. According to Annexure D of the Applicant's affidavit, I find that the position was advertised on 13th May 2008 and the applications closed on 16 June 2008. The Applicant applied for the position amongst 31 other applicants.
48. According to Section 33(3) of the Public Services (Management) Act, where a department is re-organized, all the offices in the department are deemed to be vacant and shall be advertised in accordance with the Act, unless the Secretary for Department of Personnel Management exempts certain offices and provides notification in the National Gazette.
49. From the evidence, I find that the position was advertised in order to implement a new structure for the Southern Highlands Administration as a result of the State of Emergency. I find that the advertisement of the position SHPHRMD 001 (Human Resource Manager) was proper. According to s.33 (3) of the Public Service (Management) Act the position was deemed vacant. Therefore, the Applicant was not the substantive holder of the position. It is not clear from the evidence but it appears that he may have been performing the duties in an acting capacity until a permanent appointment was made. He was at liberty to apply for the position, and he did apply for the position.
50. Mr. Waira also submitted that when PSC annulled the selection and appointment of the Second Respondent, the position became vacant and the First Respondent had a statutory duty under General Orders 4.43 and 4.50 to reinstate the Applicant.
51. I reject this submission for the following reasons. First, the position subject of review was deemed vacant and advertised on the open market. This resulted in the Applicant being an excess officer and deemed unattached. He then applied for the position. When he applied for the position he was not the substantive holder of the position. Counsel for the Applicant incorrectly refers to GO.4.43. General Order 4.43 refers to removal expenses on promotion or permanent transfer. The correct provision he intended to refer to, I believe, was General Order 4.40 which states;
"Where a vacancy exists in a Department and in the opinion of the Departmental Head of that Department it is necessary to fill the vacancy, that Departmental Head may make an acting appointment to fill the vacant position. The officer affected shall retain his/her substantive position."
52. General Order 4.40 must be read with the other provisions and not read in isolation. Reading all the provisions as a whole, this General Order does not support the Applicants' contention for two reasons. First, General Order 4.40 is to be read with General Orders 4.38 and 4.39 which relate to the transfer of officers to another position within a department. It does not refer to a reinstatement of officers who were unsuccessful applicants. Second, the wording of the general order connotes that the power to make an acting appointment is discretionary. Acting appointments are made at the discretion of the Departmental Head.
53. Section 39 of the Public Services (Management) Act expressly provides that where there is a vacancy in any office, the Departmental Head has the discretion to appoint another officer to fill the vacancy temporarily. The only exception is in relation to a vacancy in the office of the Departmental Head, which is subject to another process and appointing authority. The Provincial Administrator is deemed a Departmental Head for the purposes of the Public Services (Management) Act (Section 75). Therefore, the Acting Provincial Administrator does have the power and discretion to make acting appointments.
54. It is a well established principle of law in this jurisdiction, that Judicial Review is an equitable remedy and is discretionary. The principles of equity adopted by virtue of Schedule 2.2 of the Constitution provide the parameters of the exercise of this discretion. Judicial Review is not available to scrutinize the reasoning of the public body with a view of replacing that decision (Kekedo v. Burns Philip (PNG) Ltd [1988- 89] PNGLR 122 per Kapi, DCJ).
55. The Court should be reluctant to interfere with the reasons for the decision, in circumstances where the decision is administrative in nature (Tau Mavaru Kamuta v. David Sode (supra).
56. Evidence by the First Respondent is that there is a restructure pending approval. According to Section 33 of the Public Services (Management) Act, this means that all the positions are deemed vacant. By virtue of Section 39 of the Public Services (Management) Act, it is the First Respondent's prerogative to make acting appointments where there is a vacancy. Such decision is largely administrative in nature and the Court should not interfere with that decision unless there are exceptional circumstances.
57. In the present case, I do not find any exceptional reasons why the Court should interfere with this administrative decision. No evidence has been adduced by the Second Respondent. However, parties have agreed that the Second Respondent is still occupying the position. The Second Respondent was appointed on 9th April 2010, from that date until 21st March 2012, he would have been performing the duties of the HR Manager. Since the position is a senior management position, it can be inferred that the Second Respondent signed a contract upon appointment and he was a permanent public servant. The PSC decision was made after 2 years. It is unclear from the evidence, when the First Respondent became aware of the PSC decision, but he responded to the Applicants' lawyers on 16th April 2013. The Second Respondent would have been performing the duties of the HR Manager for 3 years.
58. I find that it would be unreasonable for the Court to interfere at this stage and disrupt the restructure process. To do that would create confusion and chaos. There is a real possibility that it would cause substantial hardship and prejudice to the rights of the Provincial Administrator in exercising his power to make acting appointments in light of the restructure and the day to day work of the administration. The rights of the Second Respondent would also be substantially prejudiced. It would also be detrimental to the good administration of the public service in Southern Highlands Provincial Administration to isolate this one disputed position, re-advertise and conduct fresh selection process, while the other positions in the Administration await the restructure process. It would also be determinental to the good administration of the human resources section of the Administration to suddenly change the management after four (4) years. Such a change would disrupt the restructure process as well as the management of the Human Resources Section.
59. The Applicant also argued that General Order 4.50 is applicable in the circumstances. I reject this submission for two reasons. Firstly, the Applicant submitted incorrect reference to the General Order. The correct general order is GO 4.47. General Order 4.47 must be read as a whole with the surrounding provisions. In order to ascertain whether a particular General Order is applicable, the provision should be read in conjunction with the surrounding provisions. The section of the General Order is entitled Excess and Unattached Officers. General Order 4.44 defines "unattached officers" as officers who were substantively occupying a position which has been abolished or reclassified. An excess officer is an officer in a department or division which had greater number of staff than funded positions and they are identified as being those officers above the cash ceiling.
60. I find that the Applicant was neither an "unattached or excess officer" for the purposes of General Order 4.47. Therefore, in the present case, General Order 4.47 is not applicable.
61. To summarize the answers to the issues, I find that the Applicant is not entitled to reinstatement to the position of HR Manager for the following reasons. Firstly, the PSC did not make a decision directing that the Applicant should be reinstated. Secondly, General Orders 4.50 and 4.47 are inapplicable and do not support the Applicants' contention to be reinstated. Thirdly the power to make acting appointments is administrative in nature and acting appointments are the prerogative of the Provincial Administrator. Finally, there is no valid reason, for instance, a blatant abuse of power or decision tainted with malice that would justify the Courts interference. The Second Respondent was performing the duties of that position for about three (3) years. It would be detrimental for good administration of the Southern Highlands Provincial Administration for this Court to order the First Respondent to make an acting appointment or reinstate the Applicant. Acting appointments are the prerogative of the Provincial Administrator, who is in a good position to form a judgment on an administrative matter, such as this.
62. Overall, I find that this ground of review is misconceived. Therefore, I dismiss this ground.
Ground Four
63. This ground of review is based on the Wednesbury principle of unreasonableness. The Applicant argues that the decision of the First Respondent is unreasonable and the circumstances did not warrant him to make such a decision. The particular circumstances are that the PSC decision was binding. The First Respondent's decision was annulled and the Second Respondent's continued occupation of the position of the HR Manager is illegal. The position which is the subject of this dispute is the HR Managers' position and therefore, the First Respondents' reference to the upgrading and restructure of all the positions resulted in confusion and mislead the Applicant. The principle of good administration requires that the Applicant who is unattached to be reinstated quickly. The delay has denied his right to be reinstated. Therefore the decision is unreasonable and should be set aside.
64. In my view, the summary of the argument by the Applicant relate to the soundness, rationality and reasonableness of the First Respondents' decision. The pertinent issue here is whether the First Respondents' decision was unreasonable?
65. The common law principles of unreasonableness emanate from the classic case of Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1 KB 233. The Wednesbury principles of unreasonableness as they are commonly referred to, has been adopted and applied in numerous cases in this jurisdiction. A succinct summary of the principles was pronounced by the Supreme Court in the case of Ombudsman Commission v. Peter Yama (2004) SC 747. They are as follows;
(1) It must be a real exercise of discretion;
(2) The body must have regard to matters which it is expressly or by implication referred by the statute conferring the discretion;
(3) It must ignore irrelevant considerations;
(4) It must not operate on the basis of bad faith or dishonesty;
(5) It must direct itself properly in law; and
(6) It must act as any reasonable person would act and must not be so absurd in its action that no reasonable person would act in that way.
66. It is the sixth principle which is often referred to as the one that succinctly summarizes the Wednesbury principles.
67. In the present case, the pertinent question is, was the Acting Provincial Administrators decision so unreasonable, absurd and one which no reasonable decision-maker could have made? When applying the principle to the present case, I am not persuaded that the decision of the First Respondent was unreasonable. Firstly, the circumstances were that the provincial administration was undergoing a restructure which was pending approval. Evidence provided by Mr. Kembo, states that all positions including the position in dispute were upgraded and restructured. It is in the public interest that all the positions are re-advertised and applications called for in a wholesome fashion and not by piecemeal. This would cause substantial hardship to the Administration, in terms of the costs like advertisement fees and administration costs of recruitment and selection. It would also be detrimental to the good administration of the Public Service in the Southern Highlands Province.
68. Given the special circumstances of this case, I find that the decision of the First Respondent was neither unreasonable nor absurd. I therefore dismiss this ground.
Conclusion
69. I find that the Applicant has not made out a case for judicial review. Therefore, in the exercise of my discretion I order that the application for judicial review is refused and is dismissed. Costs follow the event.
Court Orders
1. The application for judicial review is refused and is dismissed.
______________________________________________________________
Cappollo Lawyers: Lawyers for the Applicant
Liria Lawyers: Lawyers for the First, Second and Third Respondents
Solicitor General: Lawyers for the Fourth Respondent
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