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State v Public Service Appeal Board, Ex parte Prakash [2005] FJHC 27; HBJ0022.2004 (18 February 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO.: HBJ0022 OF 2004

BETWEEN:

THE STATE

v.

THE PUBLIC SERVICE APPEAL BOARD
1ST RESPONDENT

MEREANI KINI
2ND RESPONDENT

THE MINISTRY OF AGRICULTURE, SUGAR AND
LAND RESETTLEMENT
3RD RESPONDENT

EX-PARTE: KAMLESH PRAKASH
APPLICANT

Counsels: Mr. R.P. Singh for Applicant
Mr. J. Bisa for 1st Respondent
Mr. A Vakaloloma for 2nd Respondent
Mr. S. Sharma & Mr. H. Rabuku for 3rd Respondent

JUDGMENT

The applicant was a provisional promotee to the post of Principal Agricultural Officer. The second respondent appealed to the Public Service Appeal Board (PSAB) the first respondent against such promotion. The PSAB heard her appeal with proper hearing being provided to the parties. The record of all documents filed, submissions and decision of the PSAB are contained in the affidavit of Josese Bisa who is the Secretary of the PSAB. The decision of the Board is contained at page 138 and 139 of above affidavit. The decision was made on 15th September 2004. The PSAB ruled that neither the applicant nor the second respondent met the Minimum Qualification Requirements (MQR) and concluded that the Board was “unable to make a decision as neither the appellant nor the provisional promotee fully met the MQR as advertised”.

The decision did not satisfy either the applicant or the second respondent. While the applicant moved for judicial review, the second respondent took no action but was joined as an interested party.

The applicant in his affidavit in support has asked the court to read into or interpret the decision of PSAB to mean that the second respondent’s appeal was dismissed and therefore the applicant was deemed to be confirmed to the post. Mr. R.P. Singh relied on Section 26(10) of the Public Service Act 1999 to submit to that effect. Section 26(10) reads:

“The Appeal Board may allow or disallow an appeal by an employee and the relevant Commission must implement the decision.”

He submitted that since the second respondent did not succeed on appeal, the applicant must be promoted.

Mr. Sharma however submitted that such an interpretation could lead to absurdity as those not qualified in the opinion of the PSAB would be appointed to the posts.

The words of Section 26(10) are not mandatory. It says the PSAB may allow or disallow and not shall allow or disallow. The PSAB is not a body like a court of law where a decision one way or the other must be given on evidence adduced. It can ask for further clarifications from the parties or the relevant Ministry before it makes a decision.

When a matter of promotion goes to PSAB, it must if it is to discharge its duties first ascertain whether the appellant and the provisional promotee are qualified for the vacant post. Where appellants are questioning the appointment of provisional promotee, inevitably the qualifications of contestants are given a great deal of prominence. If in the course of proceedings, it comes to light that neither party has the MQR, the PSAB cannot simply dismiss the appeal and permit a person who does not meet the MQR to be confirmed to the post. That would be duplicating a serious error.

Mr. Sharma further drew the courts attention to the difference in words of the present section 25 of the Public Service Act with its counterpart Section 14 in Public Service Act Cap 74 which was repealed.

Section 14(1)(a)(i) of the now repealed Act reads:

“Subject to the provisions of subsection (2), every officer, other than an officer on probation, appointed by the Commission shall have a right of appeal to the Appeal board in accordance with this section against –

(a) the promotion of any officer, or the appointment of any person who is not an officer, to any position in the Public Service for which the appellant had applied, if (in either case) the appointment of the appellant to that position would have involved his own promotion:

Provided that –

(i) an appeal under this section must be confined to the merits of the appellant for promotion to the position, and must not extend to those of any other person for promotion or appointment to the position;”

The present Section 25(1)(a) reads:

“Subject to this Section, employee, other than an employee on probation, may appeal to the Appeal Board under this part against –

(a) the promotion of any employee, or the appointment of any person who is not an employee, to a position in the public service for which the appellant, had applied by way of promotion.”

Significantly the proviso which appeared in Section 14 is now omitted paving the way for the PSAB to consider not only the merits of the appellant but it can also look at merits of the provisional promotee.

In the normal run of events, if appellant succeeds he is appointed to the post. If the appeal is dismissed, the provisional promotee gets confirmed. One could always get a third scenario – where neither has the necessary MQR. In such a situation the importance of Regulation 5(2)(b) of Public Service (General) Regulations 1999 cannot be ignored. The above regulation reads:

“An appointment or promotion may only be made if:

(a) irrelevant

(b) an assessment has been made of the relative suitability of the candidates for the duties, after interview or using another competitive selection process.”

The above regulation requires assessment whether a person is fit for the post. This provision cannot be ignored.

Section 140 of our Constitution requires appointments and promotions on merit. The recital to the Public Service Act reads “to make provision, further to that in the Constitution, for the public service ...”. Section 4 of the Public Service Act requires appointments and promotions to be based on merit after an open competitive selection process. Section 4 also envisages public service to deliver services “fairly, effectively and courteously”. One of the objects of the Act is to ensure efficiency in public service by ensuring that only those who are qualified and competent are appointed or promoted to posts. Conversely those not qualified ought not to be appointed or promoted. The PSAB is one of the bodies which is set up to ensure that this object of the Act is achieved. The declaration seeking to have the applicant appointed to the post who in the opinion of the PSAB does not have the MQR would be counter to the objectives of this Act.

The PSAB I conclude was quite correct in its approach to consider whether both the applicant and second respondent met the MQR. This ground therefore fails.

The second ground which Mr. Singh advanced was that the Ministry of Agriculture had appointed the provisional promotee under the second limb that is using relevant skills of the MQR. He submitted the PSAB erred in saying that both limbs must be satisfied. The MQR for the post read as follows. It reads:

“Qualifications: Qualifications required for appointment as Senior Agricultural Officer and at least 2-3 years service in that grade or equivalent and/or relevant skills and experience in this particular field in any other organization with meritorious performance or relevant degree or postgraduate qualification.”

There are two parts to the MQR. Under the first limb those who are serving in civil service or relevant department would normally apply under the second limb (after the words and/or) those who have relevant skills outside of government are also entitled to apply and may qualify. The PSAB in looking at MQR stated at paragraph 8.1 of its decision page 138 of Bisa’s affidavit as follows:

“8.1 The Board noted that the Minimum Qualification Requirement (MQR) as advertised is made up of the following qualification requirements:

(a) Qualifications required for appointment as Senior Agricultural Officer (SAO);

(b) At least:

(i) 2-3 years service in the SAO grade; or

(ii) 2-3 years service in an equivalent grade; and/or

(iii) relevant skills and experience in this particular field in any other organization with:

(aa) meritorious performance;

(bb) relevant degree; or

(cc) relevant postgraduate qualification.”

Both the applicant and the second respondent applied from within the civil service so their application was assessed under the first limb. The PSAB having looked at their present post and years of experience and the requirements of the advertised post concluded neither of them qualified. I am of the view that PSAB looked at MQR correctly.

This application was an attempt to get the court to declare that the applicant ought to be appointed to the post on merits. That is not the realm of judicial review proceedings which are not appeal on merits.

Accordingly I dismiss the application for judicial review. I order the applicant to pay costs to the respondents as well. I summarily fix those costs at $200.00 for each of the respondents to be paid in twenty-one (21) days.

[ Jiten Singh ]
JUDGE

At Suva
18th February 2005