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State v Public Service Appeal Board, Ex parte Fiji Public Service Association [2003] FJHC 268; HBC0035.2003 (25 November 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0035 OF 2003

BETWEEN:

THE STATE

v.

THE PUBLIC SERVICE APPEAL BOARD
RESPONDENT

Ex-parte: 1. FIJI PUBLIC SERVICE ASSOCIATION
2. DHIREN DUTT
(f/n Netram Singh)
APPLICANTS

Mr. H. Nagin - For Applicant
No appearance - For Respondents

JUDGMENT

FACTS:

On 16^th December 2002 a Memorandum of Agreement had been reached between the Public Service Commission and Fiji Public Service Association (the first named applicant). The agreement was entered into after the Permanent Secretary for Labor and Industrial Relations and Productivity had on 5^th December 2001 accepted that a trade dispute existed, resulting in the appointment of a three member disputes committee and culminating in the drawing up of the Memorandum of Agreement. The material part of the agreement is contained in Clause 16 of the agreement and reads:

1. THAT all existing vacancies in the Accounting Cadre, except AC04, that are not advertised shall be advertised using the revised MQR as approved by the Commission on 02/10/2002.
   
2. THAT all existing vacancies in the Accounting Cadre except AC04 that are advertised but not processed shall be withdrawn and re-advertised using the revised MQR.
   
3. THAT all existing vacancies in the Accounting Cadre, except AC04, that are advertised and are under different stages of processing but a decision is yet to be made shall be withdrawn and re-advertised.
   
4. THAT the Public Service Appeal Broad be advised of the decision taken by the parties through a copy of this Memorandum of Agreement.
   

The result of the agreement was that all future and pending vacancies in the Accounting Cadre except AC04 vacancies were to be considered under the revised minimum qualification requirement (MQR). The agreement had been signed by the Secretary of the Public Service Commission and by the General Secretary of Fiji Public Service Association.

The subject matter in the present proceedings arose out of a vacancy for accounts officer in the Department of Co-operatives. It was an AC03 post. It was advertised in the PSC Circular dated 31^st July 2002. The applicant was one of the applicants for the post. On 29^th October 2002 he was informed that his application for the post was unsuccessful.

On 18^th November 2002 the applicant appealed to the Public Service Appeal Board. The appeal was for hearing on 1^st July 2003 that is after the memorandum had been signed. On 7^th July 2003 the applicant was informed that his appeal had been disallowed as he did not meet the minimum qualification requirement.

The applicant alleges that the PSAB failed to take into account the memorandum of agreement dated 16^th December 2002 and it made its decision based on the old MQR and not the revised MQR.

The PSAB is constituted with the Public Service Act 1999. One of its functions is to hear appeals from decisions of Public Service Commission. The appeal procedure is laid in Section 26 of the Act. It is required to “accord natural justice” to the parties to the appeal - Section 26(9).

The civil servants play a significant role in the efficient function of all government departments. As such the most suited and the most efficient persons ought to be appointed to such posts. However, the selection process must be transparent and fair to ensure that those not selected and others do not nurse a sense of grievance in relation to the selection process. The purpose of the legislation under which the PSC and PSAB are established is to ensure that the above purpose that is the selection of the best is done in a fair manner – fair to all applicants. By doing this, the PSC and PSAB would promote harmony and co-operation within the public servants.

In this case, some of the Public servants had a grievance regarding the MQR. That grievance was referred to a disputes committee and it resulted in an agreement. As such parties ought and should have regard to the agreement. A party or an affected applicant could expect that the MQR as stipulated in the agreement would be applied to him. The revised MQR could not be ignored as if it were of no consequence.

The PSAB must consider all aspect of a candidate’s abilities, his qualifications, experience and attitudes. Only after having done this, it is left with discretion to decide whether a candidate is suited for the post under consideration. The applicant’s qualification in light of the memorandum of agreement should have been considered.

In Wiseman v. Borneman 1971 AC 297 Lord Morris of Borth - y - Gest at p. 309 commented that concept of natural justice entails that:

“The principles and procedures are to be applied which, in any particular situation or set of circumstances, are right, just and fair.”

Fairness would demand that the revised MQR be taken into consideration and not the old MQR that had been the source of discontent among some public servants. The revised MQR cannot be simply shelved aside as of no consequence. A party must take relevant matters and not irrelevant matters in its deliberations.

It is therefore ordered that certiorari go to quash the decision of the respondent made on 7^th July 2003 dismissing applicant’s appeal. It is only proper that the PSAB hear the appeal bearing into consideration the revised MQR. If I may add and suggest that all vacancies in the Accounting Cadre except AC04 posts should be considered on basis of revised MQR.

Ordered accordingly that certiorari go to quash the decision of the respondent.

[Jiten Singh]
JUDGE

At Suva
25^th November 2003