Meisake v Public Service Board of Appeal [1971] WSLawRp 2; [1970-1979] WSLR 8 (13 January 1971)

	Home \| Databases \| WorldLII \| Search \| Feedback Samoa Law Reports

ADMINISTRATIVE LAW (Natural justice) - Quaere, whether the principles of natural justice might have been violated if the method of appointment by the Public Service Commission in this case could have been used to defeat the applicant's right of appeal. That question, not being in issue in these proceedings, remained undecided.

ADMINISTRATIVE TRIBUNALS (Jurisdiction) - Public Service Board of Appeal - No appeal lies from an appointment to the Public Service made unlawfully since it is a nullity: Ridge v Baldwin [1963] UKHL 2; [1963] 2 AER 66 applied; Denton v Auckland City Council [1969] NZLR 256 referred to -Board properly declining jurisdiction in such appeal and writ of mandamus to compel it to consider appeal refused.

PRACTICE AND PROCEDURE (Parties) - Judicature Ordinance 1961 s 39 - Power of Court to order a joinder of parties discretionary even if equitable principles would justify such order: Child v Stenning (1877) 46 LJ Ch 523 referred to.

Public Service Official Circular (PSOC) notifying permanent position vacant at specified salary maximum - Public Service Commission appointing a person "too junior for substantive appointment" to the position at the maximum grading advertised and fixing his commencement salary as the minimum for the position and the maximum at considerably less than the amount advertised. Applicant had also applied for the position and had he been appointed on the terms advertised it would have been a promotion for him since he would have gained seniority as well as an increased salary, seniority being based on the salary maximum for class of employment. On applicant's appeal pursuant to s 29(1)(b) of the Samoa Amendment Act, 1949 (NZ) the Board of Appeal declined jurisdiction for the reason that applicant's appointment at the salary awarded the appointee would not have been a promotion for the applicant. His subsequent application for a writ of mandamus to compel the Board to consider his appeal was refused on the ground that the appointment by the Public Service Commission was illegal and a nullity which no form of appeal could alter.

Held: The Samoa Amendment Act, 1949 (NZ) as amended and the Western Samoan Public Service Regulations 1953 constituted a code regulating the relationship of the Public Service to the State: see s 13(1). S 2 defined "Permanent position" and ss 20 and 21 required that such position, be upgraded periodically in accordance with Regulations 80 to 84, inclusive. In fact, the Public Service Commission had created a new position for which there was no authorization in the Act or the Regulations.

Further, the governing factor in determining whether or not the applicant's appointment to the position advertised would have amounted to a promotion for purposes of his right to appeal was what would have been his position had he been appointed: Harris v General Manager of Railways [1950] NZLR 737 (CA) followed.

APP CATION for writ of mandamus.
Loe for applicant.
Slade for respondent.
Apa as amicus curiae.

DONNE ACJ. This is an application for a writ of mandamus which corresponds to the English prerogative writ of mandamus.

The Statement of Claim sets out the allegations upon which the application is based. They are as follows:-

The applicant accordingly claims a writ of mandamus requiring the respondents as the Public Service Board of Appeal for Western Samoa to hear and determine his appeal against the appointment of Mr Meredith to the position of Assistant External Affairs Officer, Prime Minister's Department of the Government of Western Samoa, upon the grounds:-

(a) That the applicant has a valid right of appeal under section 29(1) (b) of the Samoa Amendment Act, 1949; and

(b) That the decision of the respondents dated the 21st day of July, 1970 declining jurisdiction was in error and contrary to law.

When the matter came before me for hearing on the 23rd September, 1970 I was informed that there were available no notes of the evidence taken at the hearing of the Appeal since, through no fault of the Appeal Board the shorthand writer had subsequently left the employment of the Department of Justice taking with her the shorthand record of the proceedings, which she then either destroyed or lost. I was asked, nevertheless, to hear and, if possible, determine the matter on the basis of the pleadings filed and the exhibits produced.

The hearing of the Appeal came before the Public Service Board of Appeal (hereinafter referred to as "the Board") on the 13th July, 1970. On considering the cases stated by the parties and before receiving evidence, the Board raised the question of jurisdiction, it being of the view it had no jurisdiction to hear the appeal. Both the appellant, the applicant in this case, and the Public Service Commission, through their respective advocates, were prepared to waive any question of jurisdiction and requested the Board to determine the Appeal on the premise that it was properly before it. The Board then reserved the question of juris-diction and proceeded with the hearing of the evidence, a course of which I consider, with respect, was the expedient one to adopt in the circumstances.

On further consideration, the Board in its decision of the 21st July, 1970 after deciding it could not waive the question as to jurisdiction, a decision with which I respectfully agree, then held that the appeal was not properly before it, and it accordingly declined jurisdiction.

The facts surrounding the appeal as found by the Board are recorded in its Judgment as follows:-

The Public Service Commission on the 26th March, 1970 advertised in the Public Service Official Circular the position of Assistant External Affairs Officer at $1,900 per annum (maximum). There was no minimum salary indicated nor were there any details of job description or of qualifications required. The same Public Service Circular stated: "The commencing salary will be determined in accordance with the appointee's educational qualifications or experience and maximum fixed at any point of the scale." There were 4 applicants (including the appellant for the position) all of whom were interviewed by a panel consisting of Mrs Suia Petana, Secretary to the Public Service Commission, and Iulai Toma, a Senior Officer of the External Affairs Department.

The panel recommended that E. Meredith be appointed to the position and accordingly on the 16th April, 1970 notice of the appointment of E. Meredith as Assistant External Affairs Officer appeared in the Public Service Official Circular at a salary of $1,530 minimum and $1,710 maximum. It is to be noted that the appointment was made at a maximum less than that advertised on the 26th March, 1970. The Commission's advocate stated that this reduction in salary was made as Meredith was considered "too junior for substantive appointment as Assistant External Affairs Officer at the maximum grading of $1,900 per annum."

The appellant presently holds the position of Visitor Co-ordinator, Department of Economic Development at a salary of $1,530 per annum as from 1 May, 1969 and a maximum for the position of $1,710 per annum. It is apparent from these facts that the appointment appealed against by the appellant Vito P. Meisake would not involve his promotion as Meredith was appointed as Assistant External Affairs Officer at the same salary scale currently enjoyed by the appellant, viz., $1,530/$1,710 maximum. The provisions of section 29(1)(b) (supra) [of the Samoa Amendment Act, 1949] confers a right of appeal on any officer of the Western Samoa Public Service in the event of the transfer to a permanent position by way of promotion of any other officer if the transfer of the appellant to that position would have involved his promotion.

Under the Statute it is clear from a reading of section 29(1) (b) (supra) that an officer may appeal only if appointment to the position would have meant promotion for him. Interpreting the Statute in this way, it is manifest that if the appellant was appointed to the position appealed against he would not have gained promotion.

In the result, therefore, the Board considered the appeal was not properly before it and declined jurisdiction.

The applicant contends that there was evidence at the hearing which clearly established that an appointment of him to the position in question would have resulted in his promotion. Mr Kleis, who appeared as his advocate, has deposed that in answer to a question by a member of the Board, the Secretary of the Public Service Commission, Mrs Suia Petana, said the applicant would have received a salary of $1,900 per annum if he had been appointed. If this would have been the case, the applicant undoubtedly would have received a substantial increase in his salary and, prima facie, an advance in grading.

Now section 29(1) (b) of the Samoa Amendment Act, 1949 reads, inter alia, as follows:-

Any officer of the Western Samoan Public Service shall have a right of appeal against:

(b) The appointment of any person other than an officer to a permanent position in the Western Samoa Public Service or the transfer to such a position by way of promotion of any other officer if in either case the appointment or transfer of the appellant to the position would have involved his promotion.

In considering whether or not an appeal lies, the test is not whether the officer who has failed to secure the appointment would have been promoted if he had acquired the position on the same terms and conditions as the appointee. The governing factor is, what would have been his position if he had been the appointee. Would the particular conditions attaching to the appointment in his case have involved his promotion. In Harris v. General Manager of Railways [1950] NZLR 737 (C.A.), the Court was called upon to consider whether under similar provisions in a New Zealand enactment, the Government Railways Amendment Act, 1927,there was a right of appeal available to a member who, if he had been successful in his application for a position, which would have involved a promotion for him, against the appointment of another member for whom the appointment did not involve promotion. Section 5(7) of the Government Railways Amendment Act, 1927 provided:-

Every appointment made under this section shall be duly notified by the General Manager by official circular, and subject to the provisions of section eleven hereof any member for whom such appointment would have involved promotion may appeal therefrom.

Every member shall have a right of appeal in accordance with this section against . . .

(b) Any determination in respect of an application made by such member for promotion by means of appointment to any office or position for which applications have been called.

Again at page 753, after dealing with certain sections of the Act which for the purposes of this case are irrelevant, the learned Judge added (lines 7 to 15):-

It was admitted in the argument before this Court that it is hopeless to expect perfection in the wording of statutes, and the existence of apparent anomalies is not a sufficient reason for declining to give effect to clear words. This argument also pays perhaps insufficient regard to the consideration emphasized both in section 5(7) and section 11(1) (b) and (c) of the Amendment Act, 1927, that the right of appeal is expressly given for the benefit of officers who would obtain promotion if appointed to the offices they seek, and who may, therefore, claim that they have been denied the promotion to which they were entitled.

It is clear that promotion can involve either a change of salary or status or both, and there is no doubt that an appointment to the position as advertised in the Public Service Official Circular, at a maximum annual salary of $1,900 would have involved a change of status for the applicant notwithstanding his commencing salary. By section 24(1) and (2) of the Samoa Amendment Act, 1949 it is provided, inter alia:-

(1) For the purposes of the last preceding section seniority shall be determined by reference to the maximum salary of the class, subclass, or occupational group or subgroup in which an officer is for the time being graded.

(2) On promotion officers shall be placed at the bottom of the class or group to which they are promoted.

Thus the applicant who is at present in a class with a maximum salary therefor fixed at $1,710 per annum, would have acquired a higher seniority by an appointment to a class with a $1,900 salary maximum. Of course, if he were to receive the maximum salary advertised of $1,900 per annum, that, too, would represent promotion since not only would he thereby be elevated from Class 5 to Class 4 for grading purposes made pursuant to section 20 of the Act, but he would also receive a substantial increase in salary.

In the event, however, the appointment the Board was required to consider was the appointment of Mr Meredith to the aforesaid position at a yearly salary of $1,530 minimum and $1,710 maximum and on the face of that information, the Board, in my view, in the absence of any evidence to the contrary, could come to the view that such an appointment involved no promotion for the applicant, who is already on the same salary scale as that fixed for the new appointee.

Much, therefore, depends upon the evidence adduced at the hearing of the appeal and, indeed, the stage at which it was adduced since the burden of proving the Board's jurisdiction lies on the appellant (the applicant in this case). It was contended by counsel for the respondents that the witness Suia Petana, as Secretary for the Public Service Commission and advocate for it, could not in evidence depose as to what the Commission might have done had the applicant been the successful appointee. She could not anticipate what the Commission's decision as to salary and conditions would be in his case. Be that as it may, I feel the Board would be entitled to receive her information thereon as authoritative since she was appointed by the Commission to represent it. However, I am concerned at the absence of the notes of evidence of the hearing. It is well known that statements can be taken out of their context and thereby portray a different meaning to that which is intended by the persons making them, and that the true meaning of a section of evidence very often can be ascertained only after a study of what evidence leads up to and follows the relevant section.

After careful consideration, therefore, I have decided that I shall hear evidence directed solely to the question as to whether or not in this appeal the Board can properly decline jurisdiction.

I turn now to the allegation contained in paragraph 6 of the Statement of Claim which reads:-

6. That in any event the appointment of E. Meredith was not lawful in that he was appointed to a salary scale which is not in accordance with the laws of Western Samoa. He further says that the Public Service Commission behaved in an arbitrary and unlawful manner in reducing the maximum for the advertised post. If there were no persons who could have been properly appointed to the post at a maximum salary of $1,900 then the position should have been readvertised before making an appointment at a reduced maximum salary. These are matters seriously affecting the Public Service of Western Samoa and within the competency of the Board of Appeal to rule thereon. By declining jurisdiction the Board has not ruled against an unfair practice whereby the Public Service Commission can make appointments by a process of bargaining. Some unsuccessful applicants to a promotion post will lose their right of appeal because the Public Service Commission apparently feels free to affix any salary to a post in disregard of the advertised maximum salary.

In my view, this allegation alleging illegality in the decision of the Public Service Commission in the manner of its appointment to the position in question, if sustained, must defeat the applicant's application in the proceedings in their present form. If the appointment is illegal, as alleged, the applicant is not affirming it and therefore there is nothing upon which an appeal can proceed and thus the writ he seeks could not lie. What would appear to be a somewhat obvious principle occupied the attention of the House of Lords in Ridge v. Baldwin [1963] UKHL 2; [1963] 2 All ER 66, a case involving the dismissal of a Police Constable from his office by a disciplinary body called the Watch Committee. The Committee, neither informing the officer of the charge against him nor affording him a proper opportunity to defend himself, was held to have acted contrary to the principles of natural justice thereby rendering its decision void and consequently the learned Law Lords held that an appeal from such a decision could not make it valid. Lord Reid at page 81 (E3 to 17) said:-

Then there was considerable argument whether in the result the watch committee's decision is void or merely voidable. Time and again in the cases I have cited it has been stated that a decision given without regard to the principles of natural justice is void and that was expressly decided in Wood v. Woad [1874] UKLawRpExch 26; (1874), LR 9 Exch. 190. I see no reason to doubt these authorities. The body with the power to decide cannot lawfully proceed to make a decision until it has afforded to the person affected a proper opportunity to state his case.

Finally there is the question whether by appealing to the Secretary of State the appellant is in some way prevented from now asserting the nullity of the respondents' decision. A person may be prevented from asserting the truth by estoppel but it is not seriously argued that that doctrine applies here. Then it is said that the appellant elected to go to the Secretary of State and thereby waived his right to come to the court. That appears to me to be an attempt to set up what is in effect estoppel where the essential elements for estoppel are not present. There are many cases where-two remedies are open to an aggrieved person but there is no general rule that by going to some other tribunal he puts it out of his power thereafter to assert his rights in court; and there was no express waiver because in appealing to the Secretary of State the appellant reserved his right to maintain that the decision was a nullity. But then it was argued that this case is special because by statute the decision of the Secretary of State is made final and binding. I need not consider what the result would have been if the Secretary of State had heard the case for the appellant and then had given his own independent decision that the appellant should be dismissed. But the Secretary of State did not do that. He merely decided "that there was sufficient material on which the watch committee could properly exercise their power of dismissal under section 191(4)" of the Municipal Corporations Act, 1882. So the only operative decision is that of the watch committee, and if it was a nullity, I do not see how this statement by the Secretary of State can make it valid.

In the result, in my judgment, nothing occurred on Mar. 18 to give validity to what the watch committee had purported to do on Mar. 7. Nor in my view did the action of the appellant in appealing to the Secretary of State have any such effect. If the decision of Mar. 7 was a nullity and void the fact that the appellant appealed made no difference. The decision of Mar. 7 remained a nullity. The appellant made it as plain as possible that he was adhering to and was in no way abandoning his submission that the decision of Mar. 7 had no validity. In these circumstances the provision in s. 2(3) of the Police (Appeals) Act, 1927, that the decision of the Secretary of State on an appeal is to be "final and binding upon all parties" cannot produce the result that validity is given to that which is a nullity.

I doubt whether any question of waiver arises, but I appreciate the force of the opinion expressed by my noble and learned friend Lord Evershed that if Parliament has stated that the appeal is final, that is an end of the matter and the appellant cannot, as it were, start again and by an action for a declaration seek to undermine the decision from which he has unsuccessfully appealed. The answer to this point is, I think, and here again I find myself in disagreement with the Court of Appeal, as well as with my noble and learned friend Lord Evershed, that the decision of Mar. 7, 1958, taken by the watch committee was at all times a nullity, and nothing that was done thereafter by way of appeal could give it validity.

In New Zealand, the case Ridge v. Baldwin, supra, was referred to by Speight J. in Denton v. Auckland City Council [1969] NZLR 256 wherein, after considering a decision of the Judicial Committee of the Privy Council Durayappah v. Fernando [1967] 2 All E.R. 152, the learned Judge concluded that this latter case does not in any way infringe "upon the clear statements contained in the Judgments of Lord Reid and Lord Hodson in Ridge v. Baldwin, supra. In particular, the passages at page 81 in the Judgment of Lord Reid and page 116 of Lord Hodson, ibid.,page 268.

The allegation of illegality caused me to give some consideration to the point by reference to the papers and exhibits filed in this case, and I formed the impression the allegation could be of substance. I feel, however, the Court should not be called upon at this stage to determine the point. There are no notes of evidence available and no argument on the point was addressed to me by counsel, although I posed the question in the course of the hearing. I, consequently, make no finding thereon. The point is nevertheless one for decision, but, as it affects both the Public Service Commission and Mr Meredith, I consider these persons in justice should be heard thereon as the consequences of a finding on this question by this Court could be of some moment to them and could well alter the course of these proceedings.

In the circumstances, it seems to me that consideration should be given as to whether, in the interest of justice, the pleadings at this stage should be amended by joining the Public Service Commission and Mr Meredith as additional defendants to answer the allegation of illegality. This of course would be pleaded in the alternative and give ground for appropriate relief against the added defendants. Section 39 of the Judicature Ordinance 1961 appears to give the Court unfettered power to adopt such procedure in each case as it thinks to be the most consistent with natural justice and convenience. It could be that such a course as herein suggested would enable this contentious matter to be settled conveniently as between all interested parties in a manner "most consistent with natural justice".

Accordingly, therefore, I have decided to hear further argument on the following points:-

(a) Whether the pleadings at this stage should be amended to provide the alternative cause of action alleging illegality as above mentioned and to provide the appropriate relief in respect thereof; and

(b) Whether, and on what terms, the Public Service Commission and/or Mr Meredith should be joined as additional defendants herein.

As to the future course of these proceedings it seems to me it would be convenient for the Court and the parties to deal with the two questions upon which the Court requires further assistance at one hearing, and I have decided that this matter shall stand adjourned for the making of a further fixture by the Registrar at which further hearing the Court will receive the evidence it requires relating to the question of the Board's jurisdiction to hear the applicant's appeal, and will also hear argument addressed to the question of joinder of additional defendants above referred to.

A copy of this decision will be served on the Public Service Commission and Mr Meredith, who shall be permitted to nominate counsel, who will be admitted to appear before this Court as amici curiae and be heard on the question of joinder as aforesaid.
JUDGMENT

DONNE ACJ. This matter came before me for hearing in consequence of my interim Decision in which I desired to hear further evidence on the question of jurisdiction of the respondents relating to the applicant's appeal, and further, to receive argument as to whether the Public Service Commission and Mr Meredith should be joined as additional defendants.

At the hearing, I heard argument as to joinder, and as a result of submissions of counsel thereon, I decided to defer receiving the additional evidence until I had settled the question of joinder. Both counsel for the respondents and Mr Apa, who appeared as amicus curiae to present the Commission's views, were strongly opposed to the suggestion, submitting that joinder at this stage of the proceedings requiring as it did the amendment of the Statement of Claim and the provision of an alternative cause of action with appropriate relief, should not be ordered. They contended that although the powers given by section 39 of the Judicature Ordinance 1961 as to procedure were wide, to do as envisaged would be wrong in the circumstances. Mr Loe at first also was opposed to joinder and sought the amendment of his Statement of Claim by the deletion of the allegation as to illegality. I had no hesitation in refusing his application since I had already given an interim Judgment based upon the case as pleaded. Furthermore, irrespective of whether or not illegality is pleaded, once it is revealed in the course of the proceedings, the Court cannot "turn a blind eye" to it. Upon my refusing his application to amend, Mr Loe, albeit somewhat unenthusiastically, then indicated he would be prepared to support the joinder of the Public Service Commission and Mr Meredith.

In my view, section 39 of the Judicature Ordinance 1961 contains wide powers sufficient for the Court to order a joinder and amendment of the Statement of Claim with the provision of alternative relief as suggested. There are no statutory rules in Western Samoa dealing with parties and I consider that the practice of the Court of Chancery as regards parties is applicable here. This practice is stated in Midford, Pleadings in Suits in the Court of Chancery, 5th ed. (1847) 190, as follows:-

It is the constant aim of a Court of equity to do complete justice by deciding upon and settling the rights of all persons interested in the subject of the suit, to make the performance of the order of the Court perfectly safe to those who are compelled to obey it, and to prevent future litigation. For this purpose all persons materially interested in the subject ought generally to be parties to the suit, plaintiffs or defendants, however numerous they may be, so that the Court may be enabled to do complete justice by deciding upon and settling the rights of all persons interested, and that the orders of the Court may be safely executed by those who are compelled to obey them, and future litigations may be prevented.

These equitable principles in my opinion, would justify the order being made. See also Child v. Stenning (1877) 46 L.J. Ch. 523. Nevertheless, such an order is in the Court's discretion, and in the circumstances, I have decided that the case shall proceed without the addition of further parties.

I have examined carefully the affidavits and exhibits adduced in the proceedings and have come to the conclusion that the appointment of Mr Meredith to the vacancy in the permanent position in question was unlawfully made for the reasons hereinafter appearing. It will not be necessary, therefore, for me to hear any further evidence in this matter.

The Public Service of Western Samoa was originally created in 1921 by section 9 of the Samoa Act, 1921. It was disposed of in eighteen brief sections (sections 9 to 26, inclusive), none of which appear to have been designed to do any more than empower the Government to run the Service according to its own rules. After 1949, the members of the Public Service were given certain rights and the administration was the subject of statutory provisions which were embodied in the Samoa Amendment Act, 1949, which repealed the provisions relating to the Service contained in the principal Act. On the attaining of our Independence, the Public Service was defined in Part VII of The Constitution of the Independent State of Western Samoa, and also created was the Public Service Commission which pursuant to Article 87 is required to administer the Public Service as provided by Act of Parliament. The Public Service Act, 1965 amended the law relating to the Public Service contained in the Samoa Act, 1921 and its amendment as affected by The Constitution, with the result that the Samoa Amendment Act, 1949 as amended (herein-after called "the Act") is the enactment now containing a code regulating the relationship with the State, of officers of the Public Service.

The character and purpose of the Act and the Regulations made thereunder is for the regulation of the Public Service. The legislation sets out the terms of employment of Public servants, and defines the precise powers of the Public Service Commission. Inherently, it is concerned with the administration of the everyday activities of a great number of people, and clearly its aim in giving the Public Service a form and constitution was to secure efficiency and economy in the Service and a regulated system of administration, which would assure members of the Service of fair and equitable treatment.

Now, all appointments whether permanent, probationary or temporary in the Western Samoan Public Service must be made in accordance with the Act. This is mandatory: see section 13 thereof which reads:-

(1) No person shall be appointed to the Western Samoan Public Service otherwise than in accordance with this Act.

We are concerned here with a "permanent position", that of Assistant External Affairs Officer. The requirements of a "permanent position" are set in section 2 as:-

"Permanent Position" means a position in the Western Samoan Public Service which was a permanent position for the purposes of the last grading or regrading of the service under section twenty of this Act or which the Public Service Commission has created as a permanent position after that grading or regrading.
[The underlining is mine].

The provisions of the legislation as to the grading of all permanent positions are contained in sections 20 and 21 of the Act and Regulations 80 to 84, inclusive, of the Western Samoan Public Service Regulations 1953 (hereinafter called "the Regulations"), which were published in terms of section 33 of the Act. The relevant provisions are hereinafter stated.

(1) Subject to section six of this Act, the Public Service Commission shall, on or before the first day of the financial year next following the commencement of this Act, grade and thereafter, at intervals of not more than three years, regrade all permanent positions in the Western Samoan Public Service, and shall assign to each such position a fixed salary or scale of salaries.

It will be seen that salary is dependent on grading and each grading must carry either a fixed salary or a scale of salaries. In the case of an appointment to a position in respect of which there has been fixed a scale of salaries, an appointee may be placed at any point in the scale. Advancement beyond that point is conditional on the Commission being satisfied that his standard of efficiency and conduct merits such advancement: see Regulation 82 of the Regulations. Where a new permanent position is created between periodical gradings under section 20, such new position must be graded forthwith. Section 21(2) provides:-

(2) If at any time any new permanent position is created after the last grading or regrading of the Western Samoan Public Service under section twenty of this Act, the Public Service Commission shall forthwith grade the position.

It is important to note therefore that all permanent positions must carry a grading made in accordance with the Act.

However, before a grading is fixed, the Commission is obliged to classify the permanent position to be graded into one of the Divisions specified in Regulation 80 which reads:-

80(1) For grading purposes permanent positions in the Service shall be classified in the following divisions or such other divisions as the Commissioner shall from time to time determine

(a)

(b)

(c)

(d)

(e)

(f)

Division 1 or Administrative Division . . .

Division 2 or Professional Division . . ..

Division 3 or Intermediate Division . . .

Division 4 or Education Division . . .

Division 5 or Clerical Division . . .

Division 6 or General Division . . .

Unless these conditions are first satisfied there is in fact no permanent position created in accordance with the provisions of the legislation.

The applicant in this case applied to fill what was stated to be a vacancy number 56 in a permanent position as published in the Public Service Official Circular No. 1970/12, dated the 26th March, 1970. The publication is a mandatory requirement of section 22(1) of the Act if the Commission, as in this case, decides that it is not a vacancy which should be filled forthwith.

Vacancies in Western Samoan Public Service - (1) Notice of every vacancy in a permanent position in the Western Samoan Public Service which the Public Service Commission considers should be filled shall be published in such manner as the Public Service Commission may determine:

Provided that the Public Service Commission may fill any such vacancy without publishing notice thereof if he is of opinion that the vacancy should be filled forthwith.

It is, of course, trite to say that there cannot be a vacancy unless there is a position to fill, i.e., one already classified and graded with salary assigned. The vacancy here published was:-

Vacancy No.	Position	Division and Grading
56	Prime Minister's
	Assistant External Affairs Officer	$---/$1,900 p.a. maximum

This publication defines clearly the position to be filled, namely, the permanent position of Assistant External Affairs Officer to which a Division and grading as stated therein had been assigned as required by law. The assigned salary is shown as $1,900 p.a. maximum. The Division is stated in the publication to be in the Prime Minister's Department. Presumably, therefore, applicants would be expected to refer to the Commission's "Official List of Persons employed in the Western Samoan Public Service", which has been produced in this case, (hereinafter referred to as "The Official List") to obtain more explicit details of the classification of the position.

In this "List" the classification is shown to be under Clerical Class Four in the Clerical Division which corresponds to Division 5 as laid down in Regulation 80(1) (e) of the Regulations. According to that "Official List", the salary assigned to this Class of this Division is a scale minimum $1,800, maximum $1,900.

On page 2 of the Official Circular publishing the vacancy appears the following statement:-

The commencing salary will be determined in accordance with the appointee's educational qualifications or experience and maximum fixed at any point of the scale.

Apart from the right of the Commission pursuant to Regulation 82, supra, to place an appointee at any point of the scale of salary already fixed by the Commission for a particular position, I can find no authority in the Act or Regulations which permits the Commission subsequently to fix a maximum salary different from that which has been assigned to the position to be filled. This has already been fixed as a prerequisite to the creation of the permanent position. Again, too, the practice of specifying one salary expressed to be a maximum salary implying that there is a scale the minimum of which is unfixed, I consider, cannot be legally justified. Section 20(1), supra, requires the assignment to a permanent position of either a fixed salary, or a scale of salaries. There must be no uncertainty. The scale must be clearly defined. It could be that reference to the Commission's "Official List" classifying the Division assigned to the position in the Prime Minister's Department would enable the applicant to ascertain the scale of salaries assigned, but for clarity, it is reasonable to expect that the scale be fully set out in the publication of the vacancy. There cannot be an unfixed minimum.

The Commission apparently considered the applicants for the said vacancy and on the 16th April, 1970 in the Public Service Official Circular No. 1970/15 notice of the appointment of Mr Meredith to the position was thus published.

Department.	Vacancy No.	Position filled	Person Appointed
Prime Minister's	56
		Assistant External Affairs Officer ($1,530/$1.710 max.)	Meredith E.

There is, of course, no doubt the Commission intended this appointment to fill the Vacancy Number 56, but, I am of the opinion that it is an appointment not lawfully made, and I so hold. Firstly, it does not fill the vacancy as published. It is in effect an appointment to a position entirely different in grading and classification from the published vacancy. Indeed, there would appear to be created no such permanent position of that grading or classification, and there is certainly no salary scale ranging from $1,530 to $1,710 in the Schedule of Salaries set out in the Commission's "Official List" as being applicable to the Clerical Division in which the position is apparently classified. Secondly, if the appointment could be considered a lawful appointment, (which, of course, I do not hold), by fixing a new scale of salaries ($1,530/$1,710 max.) the Commission regrades and downgrades the position. Apart from the periodical regrading of all permanent positions required to be made under section 20, supra, and this is not such regrading, the only provision for regrading in the interim between such periodical gradings is contained in section 21 of the Act which provides:-

(1) If at any time after the last grading or regrading under section twenty of this Act any permanent position has become of greater importance or the duties thereof more onerous or extensive than at the date of that grading or regrading the Public Service Commissioner may, if he thinks fit, alter the grading of the position and either assign the position to the employee previously employed therein or treat the position as vacant and proceed to fill the vacancy. [The underlining is mine].

This section is obviously intended to permit an interim alteration to a grading of an existing permanent position by upgrading the same, not by downgrading, as would appear to have been done here. Although by section 20 there is power for the Commissioner in a periodical regrading of all permanent positions to alter the grading of any permanent position, there is no authority I can find in the legislation for the interim downgrading of any permanent position, and I conclude that such regrading could not legally be justified.

It could be that the Commission considered none of the applicants for the vacancy to be possessed of the qualifications and merit required for the position at the grading and salary assigned to it. In such a case, the obvious course would have been to make no appointment. Instead, it chose the method of appointment in question, which I have found cannot lawfully be adopted. if, as was suggested in the course of the hearing, the method could have been used to defeat the applicant's right to appeal, then undoubtedly the "principles of natural justice" referred to in the decision of the respondents have been violated. I am, however, not required to make any finding on this point and, indeed, on the evidence before me it would not be possible so to find.

Since, therefore, I have held that the appointment of Mr Meredith to the aforementioned vacancy of Assistant External Affairs Officer was unlawfully made by the Public Service Commission, the applicant's prayer for the issue of a writ of mandamus against the respondent must fail. As stated in my interim decision, if the appointment is illegal, such decision is a nullity and nothing by way of appeal could be done to give it validity - Ridge v. Baldwin [1963] UKHL 2; [1963] 2 All ER 66; Denton v. Auckland City Council [1969] NZLR 256.

I have given consideration to the question of costs. I gained the impression that one of the prime aims of the applicant was to bring this matter to the Court not only in his own interests, but, in the interests of the Public Service generally. I was informed this method of appointment which had been used by the Public Service Commission on previous occasions was viewed with disquiet by many Public Servants and it was desired to obtain a Court ruling thereon. I have decided, therefore, in the circumstances to make no order as to costs.

Samoa Law Reports

Meisake v Public Service Board of Appeal [1971] WSLawRp 2; [1970-1979] WSLR 8 (13 January 1971)