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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) No. 235 OF 2015
BETWEEN:
VALENTINO MAYO
First Plaintiff
AND:
ERWIN US as Chairman of JIWAKA PROVINCIAL EDUCATION BOARD
Second Plaintiff
AND:
JIWAKA PROVINCIAL GOVERNMENT
Third Plaintiff
AND:
PAUL BANGIE
First Defendant
AND:
BARAN SORI as CHAIRMAN of TEACHING SERVICES COMMISSION
Second Defendant
AND:
TEACHING SERVICES COMMISSION
Third Defendant
AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant
Kundiawa: Liosi AJ
2017: 17th March & 02nd August
ADMINISTRATIVE LAW – Application for Judicial Review – Decision of Teaching Service Commission–revocation of first plaintiff as principal and appointment of first defendant as principal of Minj Secondary School – grounds for review – the second defendant acted ultra vires his powers under section 9&11 of Teaching Service Act 1988 – the second and third defendants acted in breach of Section 39(1)&151(1) of the Teaching Service Act 1988 – giving directions on specific appointments by reinstating first defendant as principal of Minj Secondary School – Teaching Service Act 1988 established Provincial Education Board and conferred on them powers as appointing authorities – Breach of principles of natural justice – second and third defendants failed to give reasons for determining the first defendants appeal which was unfair S.71 Teaching Service Act – acting appointments – no right to tenureship – revocation of acting appointment at any time.
Practice and Procedure – Consequential Order for damages – National Court Rules – Order 16 Rules 7&9(5) – appropriate case for award of damages.
Held:
Case Cited:
Asiki v. Zurenouc [2005] SC797
Godfrey Niggints v. Henry Tokam, Paul Songo & The State [1993] PNGLR 66 Kenehe v. Jogioba [2008] N4025
Mako v. Kimas [2012] N5130
Maisan v. Bank of South Pacific Ltd [2009] N3713
Wadau v. August [2009] N3614
Counsel:
Mr. Michael Kuma, for the Plaintiffs
Mr. Rolland Lenalia, for the 2nd & 3rd Defendants
DECISION
02nd August, 2017
1. LIOSI, AJ: By an Originating Summons filed 4th May 2015, the plaintiff brings this application for judicial review of the decision of the second and third defendants of 26th March 2015, which revoked the appointment of the first plaintiff as the principal of Minj Secondary School and in his stead appointed
the first defendant as principal of that school.
2. The originating summons seeks the following orders:
3. The court granted leave to the plaintiff’s on 18th February 2016 to review the above said decision the subject of this judicial review.
Grounds of review
4. In the amended statement in support for judicial review filed on 19th April 2016, the plaintiff relies on the following grounds for review.
a. Ultra Vires
The second defendant being the chairman of the third defendant and the third defendant did not possess the lawful power of appointment and or are the appointing authority defined in Section 1 of the Teaching Services Act 1988, hence reinstating the first defendant as principal of Minj Secondary School by issuing the letter of reinstatement under second defendant’s hand on the 26 March 2015, the first and second defendant acted ultra vires, their powers and functions under Sections 9 and 11 of the Teaching Services Act 1988.
b. Errors of Law
The second and third defendants are in breach of Sections 39(1) and 151(1) of the Teaching Services Act 1988 in giving directions on specific appointment by reinstating the first defendant as principal of Minj Secondary School when the Teaching Services Act 1988 and the Education Act 1983, established various education authorities, including Provincial Education Boards, and conferred on them powers as appointing authorities.
c. Breach of the principal of natural justice
The second and third defendants did not advise the second plaintiff as the chairman of the Jiwaka Provincial Education Board (JPEB) whose decision was appealed to the third defendant by the first defendant; and gave or made known to Jiwaka Provincial Education Board the reasons for the third defendants determination on the first defendant’s appeal and how the Jiwaka Provincial Education Board erred in its powers to appoint as prescribed by section 39(1) of the Teaching Services Act 1988. The failure by the second and third defendants to give reasons for determining the first defendant’s appeal is unfair and a denial of natural justice and abuse of their duty to give reasons for their actions, determinations and decisions.
The second defendant only wrote to the first defendant and advised him of the third defendant’s determination on his appeal which amounts to biasness, thus a breach of the principles of natural justice prescribed by Section 59 of the Constitution.
Whereof the plaintiff’s claim the above grounds as legitimate and valid grounds for an application for judicial review to be successful and as such the plaintiff’s apply thereof.
Evidence
Issues for trial
8. The issues are as follows;
Services Act, to mean the National and Provincial Education Boards.
(ii) The functions of the Teaching Service Commission are set out in Section 9, Teaching Services Act.
(iii) Appointment to positions in a provincial high school or a technical school shall be made by the Provincial Education Board: Section 39(1), Teaching Services Act.
(iv) Teaching Service Commission may give directions to education
authorities 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: Section 151(1), Teaching Services Act.
(v) Judicial review is about the decision making process under statute and is not concerned with the decision itself: Kenehe v. Jogioba (2008) N4025 (Injia, DCJ (as he then was).
11. I will address the issues as they appear in the order in the counsel’s submissions.
12. Issue No. 1 and 2:
Whether the second defendant being the chairman of the third
defendant possesses lawful powers of appointment and whether the
second and third defendants are appointing authorities defined by Section
1 of the Teaching Services Act.
Whether the second and third defendants breached Sections 39(1) and
151(1) of the Teaching Services (TS) Act in giving directions on specific
appointment by reinstating the first defendant as principal of Minj
Secondary School (MSS).
13. Section 1(1), Teaching Services Act (TSA) provides for interpretation and defines ‘appointing authority’ to mean:
14. It is clear from the above provision that:
15. Section 39(1), Teaching Services Act (TS) in mandatory terms provide that appointments to positions in a provincial high school or a technical school shall be made by the provincial education board. It is clear from the above provision that:
(i) The Provincial Education Board (PEB) is vested with powers to make appointments to positions in provincial high schools and vocational schools; and
(ii) Teaching Services Commission (TSC) has no authority to make appointments to positions in provincial high schools and vocational
schools; and
16. Teaching Services Commission’s (TSC’s) functions and powers are explicitly set out under Sections 9 and 11, Teaching Services Act (TSA). There is nothing under these provisions (Sections 9 and 11, TS Act) empowering or authorizing teaching service commission to appoint or make specific appointments to positions in provincial high schools and vocational schools.
17. Mr. Lenalia of counsel for the second and third defendants submitted that the relevant legislations are S.9, 11, 13(1), 39(1)
& 71(4) of the Teaching Service Act and S. 85 of the Education Act. He submits that S.9 of the Teaching Service Act provides for functions of the Commission. That is to exercise critical oversight of all matters relating to terms and conditions
of service and welfare of members of the Teaching Services Commission and to ensure that decisions of the other authorities under
the Act and the Education Act do not infringe the right or conditions. The Commission’s letter to reinstate the first defendant does not amount to acting
ultra vires according to Section 9. Section 9 of the Act gives powers to the commission to provide any such directions for the betterment
welfare of members of the Teaching Service. The letter of the commission dated the 26th of March 2015 was to reinstate the first defendant. This letter was in response to the first defendant’s appeal letter that
was received by the commission dated the 6th of February 2015. The commission’s letter to reinstate the first defendant was to the fact that, Provincial Education
Board Jiwaka and Jiwaka Provincial Government did not carry out proper investigation before the appointment of the first plaintiff.
The commission found out that, the first plaintiff was a non-citizen, and the first plaintiff had a current and existing contract
signed in 2014 which was to expire in 2017. The first plaintiff signed the contract to be a guidance officer-grade 12.3 within the
Department of Education.
18. All these findings established that the first plaintiff should not have been appointed as a principal of Minj Secondary School. For Jiwaka Provincial Education Board to appoint him on the principal position is a breach of contract with the State. There was a contract variation dated the 26th of August 2014, the variation was to be the guidance officer on a grade 12 position lasting for 36 months. Since Provincial Education Board Jiwaka breached the contract agreement between the state and Valentino Mayo the first plaintiff, the commission upheld the first defendants appeal letter and reinstated the first defendant. Therefore, the commission’s actions by reinstating the first defendant to the principal’s position of Jiwaka Secondary is not Ultra Vires.
19. Section 11 of the Teaching Services Act provides for the general powers of the commission. It states that the commission or the member of the commission may attend any meeting of the National Education Board, a Provincial Education Board or a committee of a Provincial Education Board, when matters relating to the terms and conditions of appointment and service of members of the Teaching Service are being dealt with. This section gives the commission the power to enquire about appointment matters and the commission did what was right according to the Education Act and the Teaching Services Act. The letter from the commission was not an act of ultra vires. It was done accordingly as it was the responsibility and duty of the commission to take appropriate action for the betterment of the school and to make sure those administrative procedures are carried out by the Provincial Education Board Jiwaka, in which they failed. Consequently, the commission wrote the letter of reinstatement for the first defendant which was done according to law. The fact is that, Valentino Mayo was not eligible to be appointed as this would be in breach of his contract and so he could not be appointed to be the principal. For this reason, the commission reinstated the first defendant Paul Bangie.
20. Section 13 of the Teaching Services Act provides for the general right of appeal and circumstances under which a member of the Teaching Service aggrieved by a decision or action of an education authority (other than the commission) may appeal. Consequently, any correspondence from the second plaintiff and third plaintiff in relation to the first plaintiff was not entertained by the commission. This was because the first plaintiff’s appointment was done in breach of a contract. For a non-citizen to be appointed to the position as a principal, there has to be proper variation of contract in order for them to be eligible for the post. As a result the commission appointed the first defendant as the most suitable person for the post.
21. I do not agree with the submissions of the second and third defendants in respect of this issue. I agree with the plaintiff’s counsel. The second and third defendants counsel have not made submissions in respect of the issues at hand. They are whether the second defendant being the chairman of the third defendant possesses lawful powers of appointment and whether the second and third defendants are appointing authorities defined by Section 1 of the Teaching Services Act 1988.
22. Section 151(1), Teaching Services Act provides (not in mandatory terms) that Teaching Service Commission may give to education authorities and members of the Teaching Services directions, not inconsistent with this Act or the Education Act 1983, 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.
23. The effect and meaning of S.151 (1) of the Teaching Service Act was discussed in the case of Wadau v. August (2009) PGNC 36; N3614. The case discussed two qualifications on the commission’s power to give directions to a Provincial Education Board which were
highlighted by the plaintiff’s counsel.
“The two qualifications to Section 151 (1) directions are:
His Honour Cannings J said:
“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 that first qualification is not met in this case.
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?
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 8 January 2009.
..........
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.”
24. It is clear from the above authority that the Teaching Service Commission (TSC) may give direction (not mandatory) to education authorities (PEB) and members of Teaching Service. However, that direction must not be inconsistent with this Act or the Education Act 1983. These are directions relating to any matter that is necessary or desirable to regulate the administration of this Act; and the efficient control of the Teaching Service. However, giving directions on specific appointment to positions in provincial high schools and vocational schools and national institutions is not one of the functions or powers of the Teaching Service Commission.
25. Given this another incidental issue arises. That is whether secondary schools are also included under Section 39 (1) of the Teaching Services Act. Section 39(1) states in mandatory terms that “appointments to positions in a Provincial High School or a Technical School shall be made by a Provincial Education Board (PEB). Counsels have not made submissions on this issue. In any event as I have already ruled that Teaching Service Commission is not an appointing authority under Section 1(1) of the Teaching Service Act. This issue becomes insignificant.
26. Further Section 1(1) of the Teaching Service Act in its interpretation section defines appointing authority to mean;
(a) in relation to a National Institution or to a school specified for the purpose of this definition by the Minister by notice in the Education Gazette – the National Education Board (NEB) or
(b) In relation to any other Education Institution – the Provincial Education Board (PEB).
27. Whilst the Act does not define a National Institution, in my view a National Institution refers to Universities, Colleges and National High Schools which obviously do not come under the control and direction of the Provincial Governments. Further appointments to National Institutions are made by the National Education Board (NEB) through recommendation of the governing council as opposed to the board of governors of a school in a province. In this case we are dealing with Minj Secondary School (MSS) which in the circumstances must come under the Provincial Education Board (PEB). I therefore conclude that secondary schools come under S. 39(1) of the Teaching Service Act.
28. Section 39(1), Teaching Services (TS) Act in mandatory terms provide that appointments to positions in a provincial high school or a technical school shall be made by the Provincial Education Board. It is clear from the above authority and the provision that: The Provincial Education Board (PEB) is vested with powers to make appointments to positions in provincial high schools and vocational schools. Teaching Services Commission (TSC) has no authority to make appointments to positions in provincial high schools and vocational schools.
29. The position of law as discussed above is clear that:
(i) Teaching Service Commission is not one of the appointing authorities defined by Section 1(1), Teaching Services Act, hence has no appointing power or authority.
(ii) Teaching Service Commission’s functions and powers are clearly provided in Sections 9 and 11, Teaching Services Act.
(iii) Making appointments to positions in provincial high schools and vocational schools and national institutions is not one of the functions or powers of Teaching Service Commission.
30. In the present case, the Teaching Service Commission’s decision to reinstate the first defendant as principal of Minj Secondary School (MSS) for one year is a specific appointment. Therefore this is a decision which it has made in excess of its statutory powers and functions or jurisdiction.
31. Teaching Service Commission’s (TSC) direction that ..... Jiwaka Education Division is, through a copy of this letter advised to facilitate this decision is a clear breach of Section 151(1), Teaching Service Act.
32. It is trite law that 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: Wadau v. August (above).
33. In the circumstances I conclude that the Teaching Service Commission:
(i) acted in excess of its powers and functions in its decision to appoint (reinstate) the first defendant as principal of Minj Secondary School for a specific term of one year.
(ii) lacked jurisdiction in its decision to appoint (reinstate) the first defendant as principal of Minj Secondary School for a specific term of one year.
(iii) erred in law in its decision to appoint (reinstate) the first defendant as principal of Minj Secondary School for a specific term of one year.
(iv) breached Section 151(1) of the Teaching Service Act in giving directions to Provincial Education Board (PEB) Jiwaka to facilitate its decision to appoint (reinstate) the first defendant as principal of Minj Secondary School for a specific term of one year.
Issues No. 3 and 4
34. Whether the second and third defendants gave reasons in their determinations, finding and decision to reinstate the first defendant as principal of Minj Secondary School.
Whether the second and third defendant notified the plaintiffs particularly, the first and second plaintiffs of their determinations, findings and decisions to reinstate the first defendant as principal of Minj Secondary School.
35. The requirement to give reasons for an administrative decision is an integral part of the duty to act fairly pursuant to section 59 of the Constitution. In Asiki v. Zurenouc (2005) SC797, the Supreme Court held that:
The duty to give reasons for an administrative decision is an integral part of the duty to accord natural justice. If no reasons
are given it is to be inferred that there were no good reasons for the decision being made.
Godfrey Niggints v. Henry Tokam, Paul Songo and The State [1993]
PNGLR 66 approved.
36. The Teaching Service Commission in its letter of 26 March 2015, reinstated the first defendant as principal of Minj Secondary School for one year. The teaching services commission directed in its letter that Jiwaka Education Division is, through a copy of this letter advised to facilitate this decision. The letter is prima facie evidence that the teaching services commission has made a decision and advised Jiwaka Provincial Education Board to facilitate that decision. However, to date the Teaching Services Commission has given no reasons for the decision. I conclude that the second and third defendants have not given any reasons at all nor have they communicated this to the plaintiffs if there were any reasons given at all. This may have been explained and confirmed by the counsel for the second and third defendants when he said that correspondences from the second and third plaintiff in respect of the first plaintiff were not entertained by the commission as the plaintiffs appointment was a breach of the contract and he was not eligible for the appointment.
Issues 5, 6 and 7
37. Whether the appointment of the first plaintiff is according to the Contract of Employment. Whether the appointment by Provincial Education Board was according to law as per the contract of employment of the first plaintiff. Whether the contract of employment were breached by the plaintiffs.
The current proceedings is for this Court to review the decision of the teaching service commission’s decision to reinstate the first defendant as principal of Minj Secondary School. The letter does not state anything about the first plaintiff’s alleged breach of contract in the decision. Teaching service commission’s letter refers to the first plaintiff as a substantive level 6 teacher and nothing else.
38. The first plaintiff is a registered teacher with Teaching Services Commission as evidenced in the certificate of registration at page 43 of the review book. The first plaintiff had a initial contract with the state as a teacher for 36 months from 9 February 2013 to 8 February 2016. This contract was renewed for another 36 months from 9 February 2016 to 8 February 2019 as evidenced at pages 331–332 of the review book. The first plaintiff’s contract of employment with the state as a teacher is therefore current and valid until 8 February 2019. The first plaintiff sought leave from Teaching Services Commission under Section 106 of the Teaching Services Act and was granted leave to serve under other Acts as evidenced at page 52 of the review book.
39. Section 106 of the Teaching Services Act, provides for leave to serve under other Acts as follows:
(1) If a member of the teaching service is appointed–
(a) to an office provided by or under an Act, other than this Act; or
(b) to be a member of the Commission,
the commission may, on application by the member, grant leave of
absence without pay for a period not exceeding the period for which he is
necessarily unavailable for employment in the teaching service in
consequence of the appointment.
(2)The period during which a member is absent on leave under subsection (1) shall be counted as part of his period of service in the Teaching Service.
(3)When a member is granted leave under this section, his position becomes vacant on the commencement of the period of the leave, and he shall be appointed to a non-institutional position during that period.
(4) At the end of period of leave under this section, a member is, unless he has ceased to be a member of the teaching service or has attained the maximum retiring benefits age, entitled to be appointed to a position not lower in pay than his former position, after taking into account any variation in the pay of that position during the period of the member’s leave under this section.
(5)When there is no vacant position to which a member may suitably be appointed in accordance with subsection (4), he shall be appointed to a non-institutional position at a rate of pay determined in accordance with that subsection until a suitable position becomes available.
40. The first plaintiff then requested a transfer as a guidance officer with the Education Department to principal Minj Secondary School. He promptly informed the Assistant Secretary–Standard and Guidance-Division; Department of Education Ms. Annemarie Kona in a letter dated 26th January 2015. The Provincial Education Board Jiwaka then advised the Teaching Service Commission of the first plaintiff’s appointment through resumption of duty summary (RODS) for its teacher’s postings and resumptions. The requirement of leave to serve under other Acts provided by section 106 of Teaching Services Act has been complied with, hence there is no breach of contract of employment.
41. The above provisions and actions of the plaintiffs make it clear that members of the teaching service can be granted leave to serve under other Acts and still return to teaching. By entering into a contract of employment with the State as a guidance officer attached with the Education Department does not bar/prevent the first plaintiff from returning to teaching. The first plaintiff applied to Jiwaka Provincial Education Board to be principal of Minj Secondary School as evidenced in his application on pages 35 and 39 of the Review Book. Consequently, his application was approved. I therefore conclude that there was no breach of contract in his appointment as principal of Minj Secondary School by the Jiwaka Provincial Education Board.
Issue No. 8:
42. Whether the appointment by the Governing Board and the Provincial Education Board Jiwaka was according to law.
Section 39(1), Teaching Services Act provides that 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. The decision to appoint the first plaintiff by the provincial education board and confirmed and endorsed by Minj Secondary School board of governors is lawful. I have already concluded that the Provincial Education Board Jiwaka had the powers to make the appointment which was endorsed by the school board of governors.
Issue No. 9:
43. Whether the first plaintiff is entitled to the relief sought in the amended notice of motion under Order 16 Rule 5(1), National Court Rules, filed 19 April 2016. Order 16 Rule 7(1) and (2) of the National Court Rules provides for claim for damages as follows:
7. Claim for damages
(1) On an application for judicial review the Court may, subject to sub-rule (2), award damages to the applicant if –
(a) he has included in the statement in support of his application for leave under Rule 3 a claim for damages arising from any matter to which the application relates; and
(b) the Court is satisfied that, if the claim had been made in an action begun by the applicant at the time of making his application, he could have been awarded damages.
(2) Order 8, Division 2, shall apply to a statement relating to a claim
for damages as it applies to a pleading.
44. It is an agreed fact that the first plaintiff has been put off the payroll since pay number 13 of 2015 as evidenced in the statement of agreed facts at page 21 of the review book. The teaching service commission recommended that the first plaintiff is put off the payroll for breach of his contract of employment with the state. This is evidenced in the affidavit of Joel Nava at page 150 of the review book. The first plaintiff was never informed of the teaching service commission’s decision to put him off the payroll as evidenced in the affidavit of the first plaintiff as stated in page 28–29 of the review book.
45. In Asiki v. Zurenuoc (above), the Supreme Court held that the duty to give reasons is now regarded in Papua New Guinea as an integral part of the duty of a public official to accord natural justice to those affected by the official’s decisions. Teaching service commission failed to notify and give reasons for putting the first plaintiff off the payroll which has made the first plaintiff suffer loss of salaries, entitlements and gratuities. In Mako v. Kimas (2012) N5130 (Makail, J), the National Court held that damages be assessed for loss of salaries, leave entitlements and superannuation from the date of dismissal to the date of decision. It is clear that the first plaintiff was deliberately and without any good reasons made to suffer by putting him off the payroll without any charges, or reasons. In the circumstances the first plaintiff is entitled to damages together with other reliefs sought in the amended notice of motion.
46. In my view this is an appropriate case for damages arising from a successful application for judicial review. This was on the basis that the decision of the defendants to reinstate the first defendant as principal of Minj Secondary School and to remove the first plaintiff was unlawful. I hereby order the defendants to pay damages to the first plaintiff for loss of salaries and entitlements to be assessed for endorsement by the Court. Failing this the matter shall return to Court for assessment of damages.
47. I make the following declarations and orders:
Ruling accordingly.
____________________________________________________________
Bradshaw Lawyers: Lawyer for the Plaintiffs
Teaching Services Commission: Lawyer for the Second & Third Defendant
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