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State v Public Service Appeal Board, Ex parte Singh [2001] FJHC 162; Hbj0019j.2001s (21 December 2001)

IN THE HIGH COURT OF FIJI
(AT SUVA)

JUDICIAL REVIEW NO. HBJ 19 OF 20001S

THE STATE

v.

PUBLIC SERVICE APPEAL BOARD
Respondent

ex parte

RANBIR SINGH
Applicant

R.P. Singh for the Applicant
S. Sharma and Y. Singh for the Respondent
S. Nawati for the Interested Parties

JUDGMENT

In July 1997 the Applicant was appointed to act in the vacant post of accounts officer at the Department of the Legislature.

On 30 September 1999 the vacancy was advertised in the Fiji Public Service Official Circular.

On 18 April 2000 the Applicant was substantively appointed to the position by the PSC.

On 2 May 2000 the second interested party, Mrs. Amali Sauduadua (the Appellant) appealed against the appointment.

On 1, 2 and 17 May 2001 the respondent Public Service Appeals Board (the PSAB) heard and deliberated upon the appeal.

On 23 May 2001 the PSAB wrote to the Applicant advising him that the appeal had been allowed for the reason that he did not meet the Minimum Qualification Requirement (MQR) for the post.

This is an application to move for judicial review of the PSAB decision. By agreement of the parties it proceeds under the expedited procedure set out in RHC O 53 rule 3 (9).

The following affidavits were filed:

(i) Applicant, 6 June 2001;
(ii) Albert Rosa, Secretary PSAB, 1 August;
(iii) Applicant, 7 September.

Counsel also helpfully filed written submissions:

(i) Applicant, 7 September 2001;
(ii) PSAB, 18 October;
(iii) Applicant, 26 November.

Under Section 147 (1) (c) of the 1997 Constitution the Public Service Commission (PSC) is given responsibility to make appointments to public offices. Section 140 broadly sets out the recruitment and promotion criteria to be followed. Section 151 allows Parliament to legislate for the hearing of appeals from decisions of the PSC.

The Public Service Act (8/1999) further details the statutory functions of the PSC. Section 4 somewhat idealistically amplifies Section 140 of the Constitution. Section 11 (h) empowers it, in relation to employees to perform the functions of an employer including:

(i) the classification of employees;
(iv) the setting of remuneration and other terms of employment.

Part V of the Act establishes the PSAB.

In his Notice of Motion and supporting affidavit the Applicant complains:

(a) that the PSAB ignored Section 140 of the Constitution;
(b) that the PSAB ignored Section 148 of the Constitution;
(c) failed to take into account the fact that the Applicant had previously met the MQR for the position;
(d) Wrongly applied an MQR which was not applicable to the Applicant;
(e) Wrongly rejected an assessment by the Fiji National Training Council that the Applicant was qualified for appointment;
(f) Overlooked the fact that the Appellant did not meet the “special requirement” for the position as set out in the advertisement for the position in the official circular (see Annexure B to the Applicant’s first affidavit).

The reason given by the PSAB for allowing the Appellant’s appeal was, as has been seen, that the Applicant did not meet the MQR for the position. In my view whether or not the PSAB was correct in reaching that conclusion is the central question raised by this application. I do not think that the Court is concerned with the suitability or otherwise of the Appellant or indeed any other candidate for the position. Obviously the Applicant had a strong claim to the substantive appointment having acted to the satisfaction of his superiors in the position for nearly 3 years. If, however, he did not have the MQR for the position then he was simply not eligible for appointment. If the PSAB erred in reaching the conclusion that the Applicant was not qualified then it would have breached Section 140.

Whether or not the PSAB erred depends on answers to two subsidiary questions: first, what was the applicable MQR and secondly, should the PSAB have accepted the evaluation of the FNTC?

As to the first question, although paragraph 5 of the Applicant’s first affidavit suggests a degree of arbitrariness on the part of the PSC it is clear from Exhibit R2 to his second affidavit that the PSC did not “change the MQR without notice” but in fact altered the MQR not only for the position being sought by the Applicant but for a whole range of positions right across the public Service following an extensive study within the service during 1993. I am satisfied that in altering the MQR for various positions the PSC was perfectly properly performing the functions of an employer given to it by the Public Service Act. I am also satisfied that the relevant MQR for a newly advertised position is the MQR prevailing at the time of appointment and not one which previously applied.

The second question once again raises the problem of dealing with alleged errors of law by an administrative tribunal.

The Public Service Act does not grant a right of appeal from the PSAB. It does not exclude Judicial Review and therefore Judicial Review is available. But this does not mean that the High Court will lightly interfere with the decisions of the PSAB fairly and reasonably reached.

As appears from the evidence the Applicant’s claim that the PSAB erred in deciding that he did not meet the MQR for the post depends on the premise that the PSAB erred in rejecting the Fiji National Training Council’s evaluation of his qualification (see Exhibit AR 5 to Mr. Rosa’s affidavit). Even, however, if it be accepted that the PSAB erred in rejecting the FNTC’s evaluation would that amount to an error of law? In my view it would not unless the conclusion reached was plainly unreasonable.

As has frequently been stressed:

“It is important to remember in every case that the purpose of (the remedy of Judicial Review) is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is not part of the purpose to substitute the opinion of the judiciary or of individual Judges for that of the authority constituted by law to decide the matters in question.” (Chief Constable of North Wales Police v. Evans [1982] UKHL 10; [1982] 1 WLR 1155 and see also Minister of Aboriginal Affairs v. Peko Wallsend Ltd 162 CLR 24).

In the present case the PSAB disagreed with the FNTC’s evaluation of the Applicant’s experience and qualifications. Had there been no room for disagreement as to the value of those qualifications then their rejection would have been capricious. Where however as in this case the PSAB had reasons which it gave for disagreeing with the evaluation of the FNTC and those reasons do not on their face appear to be devoid of merit I do not think it would be right for this court to interfere.

Before leaving the matter I think it appropriate to suggest that the manner in which this vacancy was filled was far from being “effective and efficient” or “professional” as required by Section 4 of the Act. A person should not be left acting in a position for two years without the vacancy being advertised. It should not take 6 months to fill a post following advertisement. I sympathise with the Applicant who I believe has a well founded grievance against those responsible for filling this vacancy. I can however find no fault with the way the PSAB handled the appeal and accordingly the application fails and is dismissed.

M.D. Scott
Judge

21 December 2001.