| Fiji Islands - The State v Public Service Appeal Board, Ex parte Reddy - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
JUDICIAL REVIEW NO: HBJ 0040 OF 1999
THE STATE
-v-
PUBLIC SERVICE APPEAL BOARD
ex parte MUNSAMY REDDY
Counsel: Mr R. Singh for Applicant
: Mr E. Walker for Respondent
Hearing: 22nd June 2000
Judgment: 17th July 2000
JUDGMENT
On 19th October 1999 the Applicants applied for leave to judicially review the decision of the Public Service Appeals Board of 10th October 1999, dismissing the first Applicant’s appeal against the provisional appointment of Ms Elina Raiwalui as Executive Officer,
St. Giles Hospital.
The application sought relief as follows:
1. Certiorari quashing the decision;
2. Declarations that the decision was null and void and in contravention of the Constitution, in breach of natural justice, made in bad
faith and in excess of jurisdiction, unreasonable and in breach of the Applicant’s legitimate expectations.
At the hearing of the leave application, the Respondents objected to the appearance of the second Applicant on the ground that he
had no standing. On 3rd December 1999, I found that the second Applicant had no standing and refused him leave. Leave was granted for the first Applicant
only.
The first Applicant then made an application to allow the second Applicant to appear in chambers as his friend. I refused that application.
The Respondents then filed the affidavit of Albert Rosa, the Secretary for the Public Service Appeals Board sworn on 17th February 2000. Finally the Applicant filed the affidavit of Suresh Charan sworn on 25th April 2000.
The parties were then given time to file written submissions. The Applicant complied. Counsel for the Respondents did not, despite
asking for, and being given, an extension of time for filing those submissions. It is a matter of concern that the Respondents have
failed to comply with a court order and that I am proceeding to judgment without assistance from State Counsel.
The facts of the case are that on the 5th of August 1996, the post of Executive Officer at the St. Giles Hospital became vacant. No posting was made in respect of this position
until the 6th of November 1997, when Ms Raiwalui (the third Respondent) was appointed to act as Executive Officer, by the Public Service Commission.
The post was not advertised until the 22nd of February 1999. The advertisement stated that the person appointed would be responsible to the Medical Superintendent of the St.
Giles Hospital for the efficient administration of the hospital. The officer would be responsible for all staffing matters, and
for all matters relating to equipment, furniture and transport. Qualifications required were those expected of a Senior Clerical
Officer, with a pass in service examination “S”, and at least three years service on that level.
The appointee should have consistently good reports and assessed potential and ability to contribute in a management role.
The Applicant, who holds the position of Senior Clerical Officer in the Ministry of Health, applied for the post.
Interviews were conducted, on 9th July 1999 by an interview panel made up of a Mr Ledua Butukoro, Dr Jude Ohari (the Medical Superintendent) and a Ms Saras Goundar
(Principal Administrative Officer from the Ministry of Health.)
On 9th August 1999 the Applicant was told that Ms Raiwalui had been appointed provisionally to the post.
The Applicant appealed against the decision of the Public Service Appeals Board. He was requested to file a written submission and
he did so on 17th September 1999. The appeal was heard on 6th October 1999, and was dismissed on 10th October 1999.
The affidavit of Albert Rosa states that both parties made oral submissions at the hearing of the appeal. A copy of the submissions
of the Ministry of Health was not served on the Applicant, but it was read out at the appeal, and the Applicant’s representative,
Mr Suresh Charan, responded to them.
The Appeals Board had before it, a copy of the Staff Board minutes of 27th July 1999, when the Ministry of Health had considered all applications. The Staff Board submissions, which the Appeals Board also
considered, showed the Applicant to be the most senior applicant for the post, with 29 years of service, and 15 years at the grade
of Senior Clerical Officer. In 1996, his Annual Confidential Report ranked his performance as outstanding, and stated that he was
highly fit for promotion. His subsequent ACR’s were unavailable. The Applicant was short-listed for interview. The other interviewees
were Mr Ajay Singh, Ms Kelera Vuadreu, and Ms Raiwalui.
The minutes of the interview (also provided to the Appeals Board) show that the criteria for assessment were:
1. Knowledge of the post advertised;
2. Suitability for the position;
3. Relevant experience;
4. Achievements whilst acting on higher level;
5. Knowledge of PSC Reform.
The Interview Panel asked the Staff Board to recommend the appointment of Elina Raiwalui. It did so. There is no record in the minutes
of these meetings that the Applicant’s previous disciplinary record was considered, or that racial or gender parity in the Ministry
was considered.
However in the Ministry’s submissions to the Appeals Board, full reasons for the failure to appoint the Applicant were given. These
reasons were not given to the Applicant before the hearing. Those reasons were that although both applicants were almost equally
qualified, “Ms Raiwalui has more merit than Mr Munsammy Reddy in terms of academic qualification, her consistently good ACR, her
proven ability and capability of performing the duties of the post in acting capacity and the fact that she is currently acting in
the advertised post and the Medical Superintendent is more than satisfied with her performance. She is performing the duties of
the post effectively and efficiently. She has a pleasant personality and her behaviour is exemplary.”
The submission then stated that the Applicant had been charged with Forgery when he was serving as Senior Clerical Officer, Labasa
in 1994. The charge had been withdrawn by the DPP’s Office for policy reasons, and he had never been disciplined for the alleged
offence although the Public Service Commission had recommended disciplinary action. The submission states:- “Although the case of
forgery was withdrawn by DPP, Mr Reddy’s action in the case shows his lack of maturity, lack of honesty, lacks sense of responsibility,
lacks good judgment.”
The submissions stated that when the Applicant had acted as Executive Officer at the Ministry, he had failed to perform well and one
of his superiors said that he was an 8.00 to 4.30 person, he was not a self-starter and did not use initiative. The Ministry also
took into account the fact that the Applicant had not been appointed to the position of Superintendent of the Samabula Old Peoples
Home, which was a much smaller institution.
In its deliberations, the Public Service Appeals Board decided the Applicant had failed to show that he was a better candidate for
the post. It is not clear what information the Board relied on in making this assessment, but it appears that weight was put on
the Ministry’s submissions.
The Board also decided that the procedures followed by the Ministry of Health were not unfair, and that there was nothing improper
in the presence of the Medical Superintendent on the Interview Panel, when he was also Ms Raiwalui’s immediate superior.
Finally, the Board decided that racial parity referred to in the Constitution (1997) was a reference to the Public Service generally
and not to the position concerned. The appeal was therefore dismissed.
The same grounds are ventilated in this judicial review application. For the sake of clarity, I deal with them in the categories
of procedural ultra vires, and substantive ultra vires.
Procedural Ultra Vires
The Public Service Appeals Board which is provided for under section 151 of the Constitution, is regulated by the Public Service Appeal
Regulations 1999. The Regulations generally prescribe the way in which an appeal may be lodged, provide for the taking of oral evidence
and provide that written reasons for the decision be given to all parties when an appeal has been considered. The Regulations are
silent on the service of documents, and the way in which the hearings must be conducted.
Section 26(9) of the Public Service Act 1999 provides:
“In the conduct of an appeal, the Appeal Board is not bound by the procedures, legal forms and rules of evidence of a court of law
but should -
(a) accord natural justice to the parties to the appeal;
(b) keep a written record of its proceedings; and
(c) give reasons for its decision on the appeal.”
In the absence of specific statutory procedures, the courts (and the Board) must be guided by principles of procedural fairness.
The Applicant’s complaint is that the Ministry’s written submissions were never shown to him before the hearing. It is evident from
the minutes of the Appeal Board, that considerable weight was put on these submissions. In particular the reliance on the merits
of the Applicant’s application, can only have been drawn from these submissions because there were no other reports about the Applicant’s
ability to perform.
These submissions placed heavy reliance on the charge of forgery against the Applicant. The relevance or otherwise of this charge
is an issue for consideration under “substantive ultra vires”. However the fact that the Applicant was given no notice of this ground
of objection to his appointment until the hearing of his appeal, prejudiced him in the conduct of his appeal. With adequate notice,
he may have been able to provide evidence of the details of the alleged forgery, and of the role that his superior officer allegedly
played in it. He may have been able to provide correspondence with the DPP’s Office (referred to in the DPP’s memorandum to the
Public Service Commission), or other documents which might have exonerated him in respect of this offence. As it is, all his representative
was able to say on 6th October 1999, was that the Applicant had never been disciplined for the offence.
I note that a number of other documents were considered by the Board, which were not served on the Applicant. Although there was no
statutory duty to serve these documents on him, it would have been fair to have shown the correspondence relating to the alleged
forgery, to the Applicant, before the hearing to give him notice of these matters.
It is clear that the Public Service Act, and the Appeal Regulations set out procedures which are not intended to be exclusive. As Lord Diplock said in Hadmor Productions v. Hamilton (1983) 1 AC 191, “... one of the most fundamental rules of natural justice is the right .... to be informed of any point adverse .... that is going
to be relied upon .... and to be given an opportunity of stating what his answer to it is.”
The alleged offence of forgery was a ground relied upon by the Ministry to appoint a person other than the applicant to the post.
This ground featured however, for the first time at the appeal hearing, and was not disclosed in advance to the person prejudiced.
In the circumstances I consider that the Appeal Board’s failure to disclose the submissions in advance, to the applicant, or to
adjourn the hearing to allow him to consider them properly, resulted in procedural unfairness and is a ground for quashing the decision
to dismiss the appeal.
Substantive Ultra Vires
The two main issues considered by the Board were the merits of the Applicant’s application, and the consideration of ethnic parity
in the civil service.
The Board considered that the Applicant had not shown that his application was more meritorious than Ms Raiwalui’s. The Board correctly
defined “merit” as including suitability, capacity and work-related qualities. However, the assumption that the Board relied on
the submissions of the Ministry, which alleged forgery and sub-standard performance is unavoidable.
It appears that the Applicant’s recent confidential reports were unavailable for scrutiny. The 1996 report showed the Applicant’s
performance to be outstanding. This was not disclosed to the Board, nor to this court. Yet the Ministry referred to a report from
his superior that his performance was less than satisfactory. The two reports are contradictory and called for further scrutiny.
Who made this report? Was it made in official form? When was it made? The way in which the report was referred to at the hearing
of the appeal was questionable.
Furthermore, the alleged forgery offence in 1994 was clearly of no relevance at all. The Applicant was never convicted for this offence.
The Ministry decided not to discipline him for this alleged offence. The Applicant was never tried for this offence. The Ministry
clearly concluded (without a hearing) that the Applicant was guilty of dishonesty and misconduct and was therefore unfit for promotion.
That conclusion may have been accepted by the Appeals Board although it does not say so in its reasons. However the Ministry’s
heavy reliance on this issue, and the lack of cogent evidence provided on the Applicant’s work-performance, suggests that the alleged
offence was an important factor in the dismissal of the appeal.
Suspicion of a criminal or disciplinary offence is clearly an irrelevant factor in considering the appointment of a person to a post
in the civil service.
I consider therefore that weight was put on an irrelevant consideration which would, even without procedural impropriety, justify
the quashing of the decision.
Bias
The Applicant also argues that the interview panel was biased because the Medical Superintendent sat on it. The Ministry’s submission
shows that the Medical Superintendent did recommend Ms Raiwalui’s performance. She had acted as Executive Officer for almost two
years.
It would have been preferable if the Superintendent who had, in effect, become a referee for one of the applicants, to have refrained
from taking part in the decision-making process. However the test for bias is whether an informed observer would reasonably apprehend
bias, or consider that there was a real danger of bias in the circumstances (Amina Koya -v- The State Criminal Appeal No. CAV 0002/97). I note that the Superintendent sat in a panel of interviewers, that all interviewees were asked
similar questions, and that there was a grading system. I note also that the decision to appoint Ms Raiwalui was the subject of
recommendation by the Staff Board submissions even before the interview was held.
In these circumstances I do not consider that there is evidence of bias on the basis of the presence of the Medical Superintendent
on the panel.
The Constitution
Section 140 of the Constitution provides:
“The recruitment of persons to a state service, the promotion of persons within a state service and the management of a state service
must be based on the following principles:
(a) government policies should be carried out effectively and efficiently and with due economy;
(b) appointments and promotions should be on the basis of merit;
(c) men and women equally, and the members of all ethnic groups, should have adequate and equal opportunities for training and advancement;
(d) the composition of the state service at all levels should reflect as closely as possible the ethnic composition of the population,
taking account, when appropriate, of occupational preferences.”
The obligation on all state services to apply these principles, is mandatory. It is reflected in the published Public Service Circular
(annexed to the affidavit of Munsamy Reddy).
The Applicant submitted to the Appeals Board, that the Ministry failed to consider section 140(d) of the Constitution when it appointed
a Fijian to a post in a Ministry which already employed 70% Fijians, to 30% Indians at Executive Officer level.
Section 140 of the Constitution appears to strike a balance between the pluralist approach to ethnic diversity, and the assimilationist
view. The pluralistic approach is that in an ethnically diverse society, a uniform application of the law can result in serious
inequalities. These inequalities intensify social and economic disadvantages and call for differential treatment to achieve genuine
equality. The assimilationist approach demands that every citizen be treated uniformly to create unity and a sense of nationhood.
Parliament and the courts, through human rights practices, have developed both principles, and have often tried to balance them
to achieve social justice in plural societies.
Section 140 appears to strike such a balance. It provides that merit is paramount in all appointments to state services, but that
gender and ethnic identity are also relevant. Clearly in making all appointments in state services, defined as “the public service,
the Fiji Police Force or the Republic of Fiji Military Forces” merit, equality of opportunity for men and women, and the need to
ensure that state services are representative of the general population, are all relevant considerations. What weight is to be put
on gender over race, for instance, is essentially a matter for the appointing authority, as long as the discretion is exercised reasonably.
In this case, it is not in dispute that section 140 of the Constitution was not considered at all. The Appeals Board states that
“the section referred to the wider public service and not only to the EO cadre of the Ministry of Health which he was basing his
statistical argument from.”
With respect, I think that the Board missed the point. The purpose of ensuring an ethnic balance in the public service, is to maintain
a representative public service. True representation mut be implemented at all levels of the public service and in all state services.
Failure to do so would result in an over-representation of one ethnic group in one department, and of another group in another department.
Neither department could then be considered to be representative of the communities of Fiji. Ethnic representation must be considered
at all levels within all departments of state services, taking into account, occupational preferences.
State services provide services to the public on behalf of the state. It is a matter of good human rights practice, and of good public
administration, to ensure that the public considers these services to reflect its many needs in the most representative way possible.
It is this principle of social justice that section 140 of the Constitution, seeks to implement.
In dismissing this principle as irrelevant the Board therefore erred in substance. On this ground also, the Applicant’s application
succeeds.
Summary
On the grounds of procedural unfairness and substantive ultra vires, the decision to dismiss the Applicant’s appeal against the appointment
of Ms Raiwalui to the position of Executive Officer, St. Giles Hospital is therefore quashed.
Costs
The Second Respondents gave an undertaking at leave stage, that the appointment of Ms Raiwalui would remain provisional, until the
determination of this application. They did not honour this undertaking. Mr Walker, counsel for Respondents informed me before
the substantive hearing, that Ms Raiwalui had been confirmed in the position of Executive Officer, St. Giles Hospital.
I consider such a flagrant breach of an undertaking made to the court to be reprehensible.
In the circumstances I consider indemnity costs to be in order. The second Respondent must pay the Applicant costs of $1000 within
14 days of this decision.
Nazhat Shameem
JUDGE
At Suva
17th July 2000
HBJ0040J.99S
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