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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
JUDICIAL REVIEW NO. HBJ0025 OF 2001
STATE
v
1. PUBLIC SERVICE APPEAL BOARD
2. MINISTRY OF EDUCATION
Respondents
VIJAY CHATTIER
Interested Party/
Ex parte:
VIJAY SHARMA
Applicant
Mr. R. P. Singh for Applicant
Ms. M. Rakuita with Mr. Sahu Khan for 1st Respondent
Mr. J. Raikadroka for the 2nd Respondent
No appearance for Interested Party
JUDGMENT
This is an application for judicial review by Vijay Sharma (the >applicant= against: (a) the decision of the Ministry of Education (the 2nd respondent >R2') dated 9 February 2001 provisionally promoting Vijay Chattier (the Interested Party - IP) to the post of Assistant Principal at Andhra High School AND (b) subsequent Decision of the Public Service Appeal Board (the 1st respondent >R1') dismissing his appeal in holding that he does not meet the Minimum Qualification Requirement of having served in the ED5D grade.
Relief sought
The applicant seeks the following relief:
(1) An order of certiorari to remove the said decision of the Public Service Appeal Board dated 5 July 2001 dismissing the applicant=s appeal.
(2) Declaration that the applicant is qualified and was eligible to and had properly applied for the said post of Assistant Principal.
(3) Declaration that the promotion (provisionally) of Vijay Chattier is denial of advancement and promotion to the applicant and its decision is unconstitutional constituting damages.
(4) An order for Mandamus directing the R1 and R2 to promote the applicant on the said post of the Assistant Principal backdating his promotion to the date of his acting appointment.
(5) Damages
Grounds
The Grounds seeking judicial review are as follows (as stated in the Motion filed 27th August 2001):
and which the Applicant had met those qualities and the Ministry of Education had accepted that ABoth the promotee and the appellant are qualified for the position@.
Applicant=s submission
The applicant stated that on 20 March 1999 vacancies were advertised for the post of Assistant Principal, in the various schools with MQR as Aqualifications as for HOD 1 post and at least 1 year in 5D grade or equivalent based upon standard rating scale.@ He says that it is this 5D grade which has created the problem.
The applicant explained the difference between ED5C as level 1 and ED5D in level 2 as follows:
The Head of Department (HOD) are put in two levels, ED5C as level 1, and ED5D in level 2. It is not because of difference of status or standard of teaching but as explained in paragraphs 7-11 of the Applicant=s Affidavit in Reply that HOD in ED5D level is compensated with additional salary for supervising in excess of 100 plus period of week against ED5C for lesser than 100 periods per week.
He goes on to say that there is no difference between the level ED5D and ED5C level. He said that upon objection from the Fiji Teachers Union upon the strict application of MQR of A5D@ grade the Public Service Commission approved the amendment to MQR to Aqualification as for HOD 1 post and at least in ED5 grade or equivalent based upon standard rating scale@.
The applicant made submission on his qualification to R1 and submits that R1's decision that he did not meet the MQR is >erroneous, was misconceived and cannot be upheld= as he has at least met the Aequivalent part of MQR@. He said that R2 has stated in its submission that Aboth the promotee and the appellant are qualified for the position@. He said that R2 had failed to disclose to R1 the subsequent amendment to MQR. He further complains that R1 had considered and allowed appeals with ED5C levels giving instances. In this case he says that MQR was not the issue on appeal before R1 in view of R2's acceptance that both are qualified for the position.
The learned counsel for the applicant submitted that:
The Ministry=s contention was: AThe promotee was considered for promotion ahead of the appellant because he is one grade higher than the appellant and also has longer relevant work experience as Vice Principal of Cuvu College.@ But that contention was not supported by evidence.
No evidence was adduced by the Ministry how ED5D class of HOD became superior grade when the standard of teaching and status were the same as that of ED5C level. The qualification required for appointment of the both levels are the same as shown aforesaid. The provisional promotee was automatically classified as ED5D under job evaluation report because of the school Aover 100 + periods@. He was not appointed on merit. The issue of longer experience or exposure as Acting Vice Principal of the third Respondent is irrelevant as acting appointment is made at the Ministry=s convenience.
Hence, he submitted that the Appeal Board erred in law in considering issue of MQR in dismissing the Applicant=s appeal when it was not an issue on appeal.
Counsel submitted that there was nothing before R1 to support the provisional promotion of the Interested Party.
He says that the applicant meets the required MQR of at least >or equivalent=.
He says that despite the decision of R1, R2 has appointed the IP to act as the Principal at Cuvu College. The IP has not taken up the post of Assistant Principal at Andhra High School.
Respondent=s submissions
In opposing the application the respondents submit that the applicant is attacking the merits of the decision which cannot be done in a judicial review. On the grounds for judicial review they say that there was no procedural impropriety and the applicant was given the opportunity to present his case fully. They say that there cannot be any room for saying that there was a denial of natural justice.
The Respondents argue that the Interested Party (Mr. Vijay Chattier) was properly appointed as he met the Minimum Qualification Requirement (MQR), for the advertised position of grade 5D whilst the applicant was on grade 5C. They refute all the grounds for judicial review filed by the applicant.
Consideration of the issue
I have before me for my consideration affidavits filed by the applicant and affidavits in reply of the respondents, the written submissions from counsel for the parties and the oral evidence of Mr. Munshi, Chief Education Officer Secondary on the hearing of the judicial review in open Court. Apart from filing an affidavit in Reply the Interested Party did not appear at the hearing.
This is an application for judicial review of the decision of R1 in disallowing the applicant=s appeal against the provisional promotion of the IP to the position of Assistant Principal at Andhra High School.
Under the Public Service (Appeal) Regulations 1999 (Legal Notice No. 49 of 1999) appeals lie to the Appeal Board. It provides in Rule 11 that >the Secretary must, as soon as possible after an appeal has been considered forward the decision of the Board with reasons in writing to all parties to the Appeal=.
The main thrust of the applicant=s argument is that he should have been promoted instead of Vijay Chattier (the Interested Party). I have already set out heareabove in considerable detail the arguments put forward by the applicant.
The position was advertised and the minimum qualification requirement (MQR) was spelt out. The R2 and R1 considered the qualifications of both the Applicant and the Interested party and the Interested Party was promoted provisionally and the applicant=s appeal to R1 was not successful.
In the circumstances of this case the question now arises is whether the decision thus reached, after giving the parties a full hearing and after being given the opportunity to put their own views of the case, is reviewable by way of judicial review.
As I see it there was no procedural impropriety in this case. The Court is in effect being asked to substitute its own view to that of R1 and R2 on the matter of who of the two is better qualified for the post under the guise of the misinterpretation of the >qualification requirements= for the post in question and to consider the two applicants= positions in the light of their qualification. May be that both are qualified for the post but one is more qualified than the other in the eyes of R1 and R2. These matters are entirely in the province of R1 and R2 and for their consideration and determination in their professional capacities. If the Courts were to entertain applications for judicial review in circumstances such as this, they will unnecessarily be cluttered with judicial review cases and that would open the floodgates for inappropriate applications.
In coming to the decision to which R1 and R2 have come, I find that there was no procedural impropriety. They have not taken into account any irrelevant consideration. It is not a decision which no reasonable tribunal would have come to. The statement of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; (1948) 1 KB 223 (CA) at 230 it is stated as follows and it is worth noting:
AIt is true to say that, if a decision on a competent matter is so unreasonable that no unreasonable authority would have come to it, the Courts could infer@.
I agree with the Respondents that the applicant has not pointed out to any particular part of either the Public Service Regulations 1999 or Public Service (Appeal) Regulations 1999 which have not been complied with by either R1 or R2 to enable the Court to review the decision. In this case as Lord Hailsham L.C. said in R. W (An infant) (1971) AC 682 at 700:
Atwo reasonable persons can perfectly come to opposite conclusions on the same set of facts without forfeiting their title to be considered reasonable@.
The respondents have acted within the powers vested in them under the said Regulations and section 140 of the 1997 Constitution.
They have followed the following principles established at page 19 of the Judgment of Fiji Court of Appeal in Anuradha Charan v Public Service Commission & Ors. ABU0002.1992 and this is pertinent to the issue before me:
AClearly the Commission must observe the proper rules and procedures in seeking and considering applications for vacancies. In so doing they must evaluate evidence of all aspects of the candidates abilities, qualifications and attitudes. Having done so, they are left with a discretion to decide the suitability of the candidate for the post under consideration. That discretion must include the right to decide, if based on proper grounds, that despite fulfilling all the stated qualifications, the candidate may still not be suitable. There may be many reasons why a particular person should not be appointed despite suitable qualifications on paper and there is no right of automatic appointment in the event that no other qualified person applies@.
In the context of this case the following passage at page 23 from Anuradha Charan (supra) is also worthy of note and the court will only interfere if the decision is unreasonable:
AIn general terms administrative circulars do not have statutory force and are not enforceable by judicial review. However, the Courts have frequently held that the public are entitled to expect an authority to follow guidelines it lays down itself in published circulars..... It would be unrealistic to attempt to enforce every detail of such circulars. The Court will look at the document and consider whether the authority has followed the principles set out if it has failed in any particular aspect, it will only negative the whole decision if it makes it unreasonable@.
Conclusion
On the evidence before me this certainly is not a case for judicial review as I find there are no grounds for it. Judicial review 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.
As I see it, the applicant is in actual fact wanting the Court to go into the merits of the decision which is not the function of 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: AJudicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made@. And as Sir Thomas Bingham MR said on an application for judicial review, in R v Cambridge District Health Authority ex p B (10.3.95 C.A NLJ March 24, 1995 p.415):
A..... that the courts are not, contrary to what is sometimes believed, arbiters as to the merits of the case of this kind. Were we to express opinions as to the likelihood of the effectiveness of medical treatment, or as to the merits of medical judgment, then we should be straying far from the sphere which under our constitution is accorded to us. We have one function only, which is to rule upon the lawfulness of decisions. That is a function to which we should strictly confine ourselves.@
This is a case where one could be tempted to substitute one=s own view for that of R1 and R2 in whom are vested the relevant power and to concern oneself with the merits of the particular case.
It is expected of a decision-maker to bear in mind the following words of Lord Hailsham in Evans (supra) at p.1160 which are quite apt on the facts and circumstances of this case:
AThis 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@.
In the light of the authorities and for the reasons given the Court in this case is unable to usurp the function of the Appeal Board (R1). The decisions arrived at have not been Wednesbury unreasonable.
As was said by Macpherson J in R v Secretary of State for Education and Science ex parte Island (ALR 1992 p177 at p85):
AThe case indicates that parties must be given Aa fair crack of the whip@. They must be allowed to put their case fairly and fully in accordance with the atmosphere of the case and in accordance with the way in which they are entitled to judge that the case is going.@
As stated above this was done in the case before me. There was no denial of natural justice. In a judicial review the Court is only concerned with the lawfulness of the decision-making process and with the requirement that the exercise of any statutory power affecting an applicant=s rights or interests are performed in accordance with the rules of natural justice, that is, fairly. Mr. Munshi, the Chief Education Officer whose evidence I accept cleared the point about the difference between 5D and 5C resulting in the applicant not meeting the MQR.
I shall conclude with the following remarks of Brennan J in Attorney-General (N.S.W.) V Quin (1990) 170 CLR 1 at 35:
AThe question can be put quite starkly: when an administrative power is conferred by the legislature on the executive and its lawful exercise is apt to disappoint the expectations of an individual, what is the jurisdiction of the courts to protect that individual=s legitimate expectations against adverse exercises of the powers? I have no doubt that the answer is: none, Judicial Review provides no remedies to protect interests, falling short of enforceable rights, which are apt to be affected by the lawful exercise of executive or administrative power. If it were otherwise, the courts would be asserting a jurisdiction, in protection of individual interests, to override the law by which a power to affect those interests is conferred on the repository.@
Bearing in mind the availability of grounds for judicial review, the Court has on the facts and circumstances of this case been alive to the possibility of R1 and R2 as decision makers acting unlawfully by acting ultra vires, committing errors of law, or breaches of natural justice, reaching decisions which no reasonable tribunal could have reached, or otherwise abusing its powers.
I find that the application for judicial review is devoid of merits. It is therefore for the above reasons dismissed with costs to the Respondents in the sum of $400.00.
D. Pathik
Atg. Judge
At Suva
3 April 2002
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