| Fiji Islands - Shandil v Public Service Commission - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
JUDICIAL REVIEW NO. 004 OF 1996
BETWEEN:
RANJAY SHANDIL
s/o Uday Bhan Shandil
Applicant
AND:
PUBLIC SERVICE COMMISSION
Respondent
Mr. S.P. Sharma for the Applicant
Mr. Maika Nakora for the Respondent
JUDGMENT
The applicant, RANJAY SHANDIL, moved by leave granted on 19 February 1996 for judicial review.
After hearing on 10 June 1996 I gave oral extempore judgment granting certain reliefs and I stated that I will give reasons later
which I now hereby do.
The decision impugned is that of the Public Service Commission (referred to as the "PSC") conveyed by letter dated 1 November 1995 annulling the applicant's "probationary appointment as Clerical Officer forthwith in accordance with Regulation 21 of the Public Service Commission (Constitution)
Regulations, 1990" (referred to as the "Regulations").
Relief sought
The relief sought are in the following terms:
(a) AN ORDER OF CERTIORARI to remove the said decision of the PUBLIC SERVICE COMMISSION made on the 1st day of November, 1995 into this Honourable Court and
that the same be quashed;
(b) AN ORDER OF MANDAMUS directing the PUBLIC SERVICE COMMISSION to forthwith reinstate the Applicant to his former substantive position of Clerical Officer
in the Ministry of Education;
(c) A DECLARATION (in any event) that the PUBLIC SERVICE COMMISSION has acted unfairly and/or capriciously and/or unlawfully and/or abused its discretion
under the Public Service Act and the Public Service Commission (Constitution) Regulations 1990 and/or exceeded its jurisdiction;
(d) A DECLARATION that in all the circumstances the Applicant was deemed to be confirmed in his position as a clerical officer in the Ministry of Education;
(e) FOR AN ORDER that the grant of LEAVE FOR JUDICIAL REVIEW shall operate as a stay of proceedings to which the application relates (including stay of the said decision of the Public Service
Commission) until the determination of this application or until this Honourable Court otherwise orders;
(f) FOR AN ORDER under Order 53 Rule 8 of the said Rules directing the PUBLIC SERVICE COMMISSION to make and serve on the Applicant a list of documents
which are or have been in its possession custody or power relating to any matter in question in these proceedings and to make and
file an affidavit verifying such list and to serve a copy thereof on the Applicant;
(g) FOR AN ORDER for costs and damages
(h) FOR SUCH FURTHER OR OTHER ORDERS as this Honourable Court deems just
Grounds of relief
The grounds upon which the applicant is seeking relief are as follows:-
(i) That the said decision of the PUBLIC SERVICE COMMISSION is ultra vires the provisions of the Public
Service Commission (Constitution) Regulations 1990 and in particular Regulations 21, 23, 24 and 25 thereof;
(ii) That the said decision of the PUBLIC SERVICE COMMISSION is illegal unlawful and in excess of
jurisdiction conferred upon the Commission under the Fiji Constitution, the Public Service Act and Regulations made thereunder including the General Orders of the Commission;
(iii) That the PUBLIC SERVICE COMMISSION acted in breach of the Rules of Natural Justice in reaching
its said decision;
(iv) That the said decision of the PUBLIC SERVICE COMMISSION is arbitrary, capricious, unfair, unreasonable,
irrational and discriminatory.
(v) That the PUBLIC SERVICE COMMISSION failed to give reasons for its said decision and acted contrary
to the legitimate expectations of the Applicant;
(vi) That the PUBLIC SERVICE COMMISSION in reaching the said decision took into account irrelevant
considerations and failed to take into account relevant considerations;
(vii) That the PUBLIC SERVICE COMMISSION had predetermined the matter pertaining to the Applicants termination
of appointment from the Public Service.
About the applicant
The Affidavit filed in support of Application for Leave (which said affidavit was used during the hearing) gives details pertaining
to the applicant, and the circumstances leading to his termination are also set out therein.
Briefly, the salient facts are as hereunder in so far as they are relevant to the determination of the issue before me.
The applicant was appointed a clerical officer in the Ministry of Education on probation for 12 months from 11 May 1992. He understood
that a letter of confirmation would be forthcoming as there were no adverse reports on him about his work. On 8 November 1993 he
was charged on two counts for criminal offences in the Suva Magistrate's Court being criminal case No. 2451/93. Whereupon on 22
November 1993 he was interdicted by the PSC because of the said charges having been laid against him. On 5 January 1995 he was acquitted
of the charges when the Court upheld a "no case to answer" submission.
Thereupon the learned counsel for the applicant wrote to PSC and the Solicitor-General requesting them to reinstate the applicant.
After numerous correspondence the PSC finally on 1 November 1995 wrote to the applicant conveying the said decision.
The Respondents' reply
In reply to the applicant's affidavit, MELI BAINIMARAMA the Permanent Secretary for the PSC in his affidavit sworn 5 June 1996 does not dispute most of the facts except to say that the
applicant "never received any favourable reports from his superior officers" and that as a matter of practice "the PSC had never had any policy" to reinstate an officer on interdiction following acquittal on criminal charges. He deposed that the PSC "normally takes actions in such circumstances pursuant to Regulation 53 of the Public Service Commission (Constitution) Regulations,
1990."
Consideration of the issue
Mr. Sharma in his oral submission argued on some of the matters referred to in his grounds of relief (supra) with particular reference
to Regulations 21, 23, 24, 25 and 53. He argued that the procedure laid down in the said regulations had not been followed at all;
also that regulation 53 entitled the applicant to be reinstated.
He submitted that in view of the alleged breaches of the said regulations the applicant seeks relief.
Mr. Nakora for the PSC does not dispute the facts. He concedes, when asked by Court, that the procedure laid down by the said regulations
have not been followed. He further admits that no reports have been prepared on the applicant as required under the regulations
contrary to what Mr. Bainimarama stated namely that the applicant "never received any favourable reports".
The Law
This is an application for judicial review of the said decision of the PSC. It is a process by which the High Court exercises its
supervisory jurisdiction over the proceedings and decisions of inferior courts, tribunals and other bodies or persons who carry out
quasi-judicial functions or who are charged with the performance of public acts and duties. The PSC is one such body whose decisions
are amenable to judicial review.
In a judicial review the Court's function is to review not the merits of the decision in respect of which the application for judicial
review is made, but the decision-making process itself. In CHIEF CONSTABLE OF THE NORTH WALES POLICE v EVANS, [1982] UKHL 10; (1982) 1 WLR 1155 at 1174 LORD BRIGHTMAN said: "Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was
made". Before I consider the case before me it is also pertinent to bear in mind by all those who have cast upon them the duty to make
decisions the following words of LORD HAILSHAM in EVANS (supra) at 1160 on the purpose of the remedy by way of judicial review under order 53:
"This remedy, vastly increased in extent, and rendered, over a long period in recent years, of infinitely more convenient access
than that provided by the old prerogative writs and actions for a declaration, is intended to protect the individual against the
abuse of power by a wide range of authorities, judicial, quasi-judicial, and, as would originally have been thought when I first
practised at the Bar, administrative. It is not intended to take away from those authorities the powers and discretions properly
vested in them by law and to substitute the courts as the bodies making the decisions. It is intended to see that the relevant authorities use their powers in a proper manner."
(underlining mine for emphasis)
Applicability to the case
Having stated what the legal principles applicable to judicial review are I shall now consider the Regulations which empower the PSC
to deal with the position which the applicant held.
It is under the PUBLIC SERVICE COMMISSION (CONSTITUTION) REGULATIONS (1990) (FRG 18 Dec. 1991) (referred to as the "Regulations") that the PSC acted in this case. These Regulations were made by the PSC in the exercise of the powers conferred upon it by Section
157(1) of the Constitution and are deemed to have come into force on 25 July 1990.
It is abundantly clear from the undisputed facts that the PSC had in breach of the relevant regulations, namely, Regulations 21, 23,
24, 25 and 53 annulled the applicant's appointment and refused to reinstate him after his acquittal on criminal charges without specifying
any reason whatsoever.
The Regulations which have not been complied with are as hereunder.
Regulation 21 provides for period of probation on first appointment as follows:
"Except as otherwise provided in this Part, an officer on first appointment to the Public Service shall be required to serve
on probation for a period of one year.
Provided always that the Commission may at any time in writing confirm or annul the appointment to the Public Service of any probationer."
I agree with Mr. Sharma that the words "at any time" in the proviso mean within the said period of one year or any extended period under Regulation 24 and not as was done in this case.
Regulation 23 provides for the need for confidential reports on officer on probation in these words:
"(1) The Permanent Secretary or Head of Department shall submit to the Secretary confidential reports on an officer on probation
as follows:
(a) a first report six months before the period of probation expires;
(b) a second report one month before the period of probation expires.
(2) In the second report the Permanent Secretary or Head of Department shall make a firm recommendation:
(a) that the officer be confirmed in the appointment;
(b) that the period of probation be extended; or
(c) that the appointment of the officer be terminated."
(underlining mine for emphasis)
The applicant's probation would have expired on 11.5.93. By that time there were no reports on him at all. Nor was the probationary
period extended in terms of Regulation 24 which is as follows:
"Before any recommendation is made to the Commission for the extension of the period of probation of an officer or for the termination of his appointment, the Permanent Secretary or Head of Department shall inform the officer of this recommendation and of the specific reasons thereof and he shall invite the officer to submit within 14 days of the date of
receipt of such notice any representations he may wish to make."
(underlining mine for emphasis)
There was no confirmation of his appointment which could have been done under Regulation 25 which provides as follows:
"25 - (1) if, after consideration of the second report of the Permanent Secretary or Head of Department, the Commission is satisfied
that the service of an officer on probation has been satisfactory and that the has passed such service examinations as may be necessary,
the Commission shall confirm his appointment."
The applicant continued to be employed without formal confirmation until 22 November 1993 when he was interdicted and then finally
on 1 November 1995 his appointment was terminated which is some two years after interdiction and about 11 months after his acquittal.
For some reason the PSC did not terminate him, if it could, immediately after his acquittal although it was aware of the outcome of
the case.
The learned counsel for the Respondent concedes that the requirements of the above Regulations were not followed before interdiction
which took place after the expiry of the said one year period and before termination.
Mr. Nakora could not explain to Court why the applicant was not even reinstated when there is clear provision in that regard in Regulation
53 which provides:
"53. An officer acquitted of a criminal charge in any court shall not be dismissed or otherwise punished in respect of any charge of which he has been acquitted, but nothing in this regulation shall prevent his being dismissed or otherwise
punished in respect of any other charge arising out of his conduct in the matter, unless such other charge is substantially the same as that in respect of which he has been
acquitted."
(underlining mine for emphasis).
It is clear that the applicant cannot be "dismissed or otherwise punished" subject of course to the proviso. The applicant's case becomes even stronger when one reads Regulation 54 which provides that even
on conviction a lesser punishment could be inflicted by the PSC.
The law in this case is limited. The issue is confined to a very narrow compass. It is in actual fact the complete disregard of
the provisions of Regulation 53 which has given rise to disappointment and unhappiness of the applicant.
In the light of the chronology of events outlined above and in the face of the clear mandatory provision in Reg. 53 the applicant
was dismissed which shows that there has been procedural impropriety which has led to manifest unfairness in the decision-making
process.
Conclusion
The Respondent cannot hope to have its decision upheld on the facts of this case particularly when it disregarded its own Regulations
and is guilty of being procedurally unfair. The manner in which the decision was arrived at leaves much to be desired. The Regulations
are meant to be adhered to and all I can say is that I fail to understand why the PSC acted in this manner to the detriment of the
applicant.
In all the circumstances of this case I have no difficulty whatsoever, with the Respondent's counsel in effect conceding, in deciding
that the applicant was unfairly and unlawfully terminated from employment as a result of sheer disregard of its own Regulations on
the part of the PSC. Where a decision has to be made, such as the present one, it is vitally important that the steps leading up
to that decision should be manifestly fair to the party concerned.
I cannot leave this subject without commenting that it would have saved a waste of public funds if the officers dealing with matters
of this nature paid greater attention to the Regulations. Also, whatever legal advice the PSC gets should be such that it is proper.
Had all concerned been more vigilant and careful, matters would not have come to this pass resulting in judicial review with the
consequent loss of time, effort and money in deciding something which should have been as clear as crystal to the decision-makers.
In the outcome, I allowed the application for judicial review and declared that the applicant was not validly dealt with by the Respondent
before being terminated from employment after his acquittal on the criminal charges. The decision should therefore be quashed.
I therefore made the following orders:
(a) an order of certiorari removing the said decision of the Public Service Commission made on 1 November 1995 into this Court
and the same is quashed.
(b) an order of mandamus directing the Public Service Commission to forthwith reinstate the applicant to his former position.
(c) an order that the applicant be paid arrears of salary from 22 November 1993 that is the time of interdiction to date of
reinstatement.
(d) an order that the respondent pay the costs of this action to be taxed if not agreed.
I agreed not to make an order as to damages in this case until I had given counsel an opportunity to address should he wish to pursue
this.
D. Pathik
Judge
At Suva
14 June 1996
Hbj0004j.96s
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