IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Judicial Review No. HBJ 08 of 2008

IN THE MATTER 
of an application by Jimione Buwawa for Judicial Review under 
Order 53, Rule 3(2) of the High Court Rules 1988

AND

IN THE MATTER 
of the decision of the Public Service Commission as conveyed on 7 February 2008 
to promote Mr Rajendra Singh to the post of Deputy Secretary Primary 
& Secondary in the Ministry of Education

BETWEEN

JIMIONE BUWAWA 
of 39 Raisara Road, Raiwei,
Acting Deputy Permanent Secretary – Ministry of Education, Suva
Applicant

AND

PUBLIC SERVICE COMMISSION
of Berkley Crescent, Suva
First Respondent

AND

ATTORNEY GENERAL OF THE REPUBLIC OF THE FIJI ISLANDS 
of Level 7, Suvavou House, Victoria Parade Suva
Second Respondent

Appearances:
Applicant: Mr J. Raikadroka
Respondents: Ms Karen

Hearing Dates: 23 May 2008, 18 August 2008
Date of Judgment: 4 September 2008

JUDGMENT

Headnote

Unsuccessful job applicant claims superior qualifications to appointee; Mandatory job specification not met by successful candidate; Appeal or application for judicial review; Judicial review not a substitute for appeal; Judicial review where no appeal available; Wednesbury ‘unreasonableness’; Right to be heard on adverse comment; Constitution ss. 140, 147; Public Service (General) Regulations 5(1), (2) and (3)

Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223
Attorney General v. Permanent Secretary for Education; Ex parte Sevita Devi Nair (No. 2) (Judicial Review HBJ No. 02 of 2008, 14 August 2008)
Chief Constable of North Wales Police v. Evans [1982] 1 WLR 1155:
General Medical Council v. Spackman [1943] AC 627
Kanda v. Government of Malaya (1962) AC 322:
Re Hussain Gafoor Samut [1986] FJCA 11; [1986] 32 FLR 102 (23 July 1986)
Pal v. Public Service Commission [2000] FJCA 33; ABU0072U.98S (1 December 2000) 
Permanent Secretary for the Public Service Commission and Anor v. Matea (Civil Appeal 16 of 1998)
R. v. Greater Manchester Coroner; Ex parte Tal [1985] QB 67
R. v. Inland Revenue Commissioners; Ex parte Rossminster [1980] AC 952
R. v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338 
Ram v. Public Service Appeals Board [1975] FJSC 4; [1975] 21 FLR 53 (1 July1975) 
Regina v. Lambeth London Borough Council; Ex parte Walters [1993] TLR 483
Regina v. Secretary of State for the Home Department; Ex parte Daly [2001] UKHL 26 (23 May 2001)
State v. Public Service Appeals Board; Ex parte Hari Gyan Sen [2004] FJHC 109; HBJ0053/2003 (10 June 2004)
State v. Public Service Appeals Board; Ex Parte Keteca [2003] FJHC 124; HBJ 0009/2003S (1 August 2003)
State v. Public Service Appeals Board; Ministry of Education and Attorney General of Fiji; Ex parte Manoa Maqanatagane (Judicial Review No. HBJ 36 of 2007, 18 January 2008)
State v. Public Service Appeals Board; Ex parte Ranbir Singh [2001] FJHC 162; Hbj0019j.2001s (21 December 2001)

1.	Application for Judicial Review

On 15 October 2007 Fiji Public Service Official Circular No. 19/2007 (‘Official Circular’) advertised a Public Service Vacancy, being referee 784/07. The advertisement provided:

MINISTRY OF EDUCATION AND TECHNOLOGY

784/07	DEPUTY SECRETARY – PRIMARY & SECONDARY

Responsible to the Permanent Secretary for provision of advice to the Minister on matters relating to development of school teaching staff and management of committees and divisional and district education offices. This will include development and recruitment of qualified and competent staffing for all primary and secondary schools and teacher training colleges; management of industrial issues with staff unions and with school management committees; monitor school’s establishment and negotiate improved teacher pupil ratios; administration of school establishment, school size, upgrading and downgrading of schools; management of affirmative action programmes for underperforming schools and disadvantaged rural remote schools; management and administration of school building and tuition grants, schools monitoring and review; coordination of education form and school management boards matters; and any other matter assigned by the Permanent Secretary from time to time.

Qualifications: Previous experience with policy matters and the assessed ability to give advice to the experience in negotiations/discussions with senior staff of government and non-government agencies. Officer should have shown evidence of well-rounded and forceful personalities with proven intellectual capacity and the willingness and ability to take far-reaching decisions. Proven ability to manage manpower and physical resources. Effectively is required. The best graduates with specialist degrees entering the service at SSO3/4 or equivalent may achieve this level after not less than 16 years service including at least 3 years at US03/US04 levels in their respective disciplines. Non-specialist graduates and non-graduates may achieve this level with not less than 18 years and 21 years service respectively unless specialised training leading to appropriate higher level qualifications has been completed during their career.

Salary: US02 $55,853-$70,059

1.1	The Official Circular carried, in accordance with its standard procedure, a notice stating:

RECRUITMENT AND PROMOTION POLICY 
The Fiji Public Service is an equal employment opportunity employer and vacancies are opened to all Fiji citizens. The following extracts from the 1997 Constitution should be considered in all cases.

‘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 into account, when appropriate, of occupational preferences.’

APPOINTMENT AND PROMOTION 
The following extracts from Regulation 5 of the Public Service (General) Regulations, 1999 should be carefully observed by all recommending employees.

Subsection (1): The appointment or promotion of a person to an office pursuant to section 147(1) of the Constitution must be made on the basis of merit after an open, competitive selection process and in accordance with section 140 of the Constitution.

Subsection (2): An appointment or promotion may only be made if –

(a) the vacancy in the office, or a vacancy in an office with the same duties, was notified in a Public Service Official Circular within the last year as open to any citizen of the State;

(b) an assessment has been made of the relative suitability of the candidates for the duties, after in review or using another competitive selection process;

(c) the assessment was based on the relationship between the candidate’s work-related qualities and the work-related qualities genuinely required for the duties;

(d) the assessment focussed on the relative capacity of the candidates to perform the duties.

Subsection (3): The following work-related qualities may be taken into account in making an assessment referred to in subregulation (2) –

a)	skills and abilities;
b)	qualifications, training and competencies;
c)	standard of work performance;
d)	capacity to perform at the level required;
e)	demonstrated potential for further development;
f)	ability to contribute to team performance.

Subsection (4): Subregulation (3) does not prevent any other relevant matter being taken into account
[Tania Tagicakibau]
Permanent Secretary for the Public Service, Public Enterprise and Public Sector Reform

1.2	Mr Jimione Buwawa applied for the advertised position. He was called for an interview in November 2007. At the time, he was Acting Deputy Secretary for Education – Primary and Secondary, Education and Assets and Monitoring Unit – the post advertised. He had served on the US02 grade since 27 April 2007, holding the Acting Deputy Secretary post from that date, his acting appointment being extended to 1 April 2008. The extension was notified to him by the First Respondent, the Public Service Commission (PSC) in a letter dated 6 November 2007. 

1.3	By letter dated 7 February 2008 the PSC advised Mr Buwawa that his application for the position of Deputy Secretary – Primary & Secondary (‘Deputy Secretary – P&S’) was unsuccessful and Mr Rajendra Singh, Divisional Education Officer, had been appointed on promotion to the post.

1.4	Mr Buwawa now comes before the Court with an application for Judicial Review, seeking the following relief:

a)	An ORDER FOR CERTIORARI to remove the [PSC]’s decision into this Honourable Court and that the same be quashed;

b)	A DECLARATION that the [PSC]’s exercise of discretion infilling the vacant post of Deputy Secretary – Primary & Secondary was made contrary to section 140(b) of the Constitution (Amendment) At 1997 and regulation 5 of the Public Service (General) Regulations 1999 and ins therefore unlawful, void and of no effect.

c)	A DECLARATION that the [PSC]’s decision to appoint Mr Rajendra Singh on promotion to the post of Deputy Secretary – Primary & Secondary was irrational;

d)	A STAY of the [PSC]’s decision as conveyed to [Mr Buwawa] on 7 February 2008 that it had appointed Mr Rajendra Singh on promotion to the post of Deputy Secretary – Primary & Secondary, pending the final determination of this judicial review;

e)	An Order for MANDAMUS directing the [PSC] to reevaluate the applicants short listed for the post of Deputy Secretary – Primary & Secondary and that an appointment be made based on such re-evaluation;

f)	Costs; and

g)	Such further order or other relief this Honourable Court deems just and equitable. 

1.5	The grounds set out in the application are that the PSC:

(i)	Did not correctly understand the lawful requirements of appointing Mr Rajendra Singh on probation as Deputy Secretary – Primary & Secondary and did not give effect to such lawful requirements as he did not meet the qualifications required for such a post and thus could not have been the most meritorious candidate;

(ii)	May have taken into consideration irrelevant matters when exercising the discretion to appoint Mr Rajendra Singh on promotion to the post of Deputy Secretary – Primary & Secondary as he did not meet the minimum qualification required for the post by not having serve at least 3 years in the USO3/4 level.

(iii)	May have failed to take into consideration relevant matters such as [Mr Buwawa’s] having served for some 8 years in the US03/4 level and had performed at a higher level as opposed to Mr Rajendra Singh; and

(iv)	Acted unreasonably and absurdly in appointing Mr Rajendra Singh [the successful applicant] on promotion as Deputy Secretary – Primary & Secondary as he did not meet the required qualifications needed for the post.

1.6	Reference is made to section 140 of the Constitution as governing Public Service appointments, including that to the post in question here. Consistent with the principles set down in the Official Circular, section 140 says:

Recruitment and promotion policy

140.	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)	appointment 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.

1.7	Particular emphasis is placed by the Applicant upon paragraph b) – ‘merit’.

2.	Judicial Review Applicable – Preliminary

This application is not unproblematic. The Respondents say it is not an application for judicial review, but an attempt to use judicial review for the purposes of appeal. This, they say, is not appropriate. Authority supports them: R. v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338; General Medical Council v. Spackman [1943] AC 627; R. v. Greater Manchester Coroner; Ex parte Tal [1985] QB 67; R. v. Inland Revenue Commissioners; Ex parte Rossminster [1980] AC 952; Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223

2.1	The Respondents say that there is no appeal in respect of the particular position, and that Mr Buwawa cannot effectively create his own appeal mechanism by the present application.

2.2	I agree with the Respondents that the application does look very much like an appeal. Although the prayer for relief does not do so, the application effectively (and Mr Buwawa in his Affidavit in Support) asks the Court to instate Mr Buwawa in the position, to replace the successful applicant, upon the basis that Mr Buwawa is properly qualified for the post and the successful applicant is not. 

2.3	This, the Court cannot do. Judicial review is not designed to effect such an outcome. It is about process. The question for judicial review, and hence the question before the Court in this application, is whether any flaw is discernable in the process by which the PSC came to its determination to appoint the successful applicant rather than Mr Buwawa, or not to appoint Mr Buwawa, which brings the decision-making process within the scope of judicial review.

2.4	As was said in Chief Constable of North Wales Police v. Evans [1982] 1 WLR 1155:

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.

2.5	This principle has been affirmed by the High Court of Australia in Minister of Aboriginal Fairs v. Peko Wallsend Ltd 162 CLR 24, and similarly been cited with approval by the Courts of Fiji in many instances – see for example State v. Public Service Appeals Board; Ed parte Singh [2001] FJHC 162; Hbj0019j.2001s (21 December 2001), at 3

2.6	On the other hand, judicial review:

… is available where a decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached, or abuses its powers. [However], judicial review should not be granted where an alternative remedy is available: Reg. v. Inland Revenue Commissioner; Ex parte Preston [1985] AC 835, 862, per Lord Templeman

2.7	In this regard, the application does identify matters that may fall within the scope of judicial review. As the grounds make clear, Mr Buwawa says the process was flawed, leading to the outcome he disputes. The flaws he asserts are flaws in decision-making processes which can found judicial review. Just as the Respondents cite authority for their position, Mr Buwawa cites authority, saying that in making its decision the PSC:

•	Failed to correctly understand and apply the lawful requirements of appointing the successful applicant: State v. Public Service Appeals Board; Ex parte Ranbir Singh [2001] FJHC 162; Hbj0019j.2001s (21 December 2001)

•	May have taken irrelevant matters into consideration in appointing the successful applicant: Associated Picture Houses Limited v. Wednesbury Corporation [1948] 1 KB 223; State v. Public Service Appeals Board; Ex parte Hari Gyan Sen [2004] FJHC 109; HBJ0053/2003 (10 June 2004)

•	May have failed to take a relevant matter into consideration in not appointing Mr Buwawa: Associated Picture Houses Limited v. Wednesbury Corporation [1948] 1 KB 223; State v. Public Service Appeals Board; Ex parte Hari Gyan Sen [2004] FJHC 109; HBJ0053/2003 (10 June 2004)

•	Acted unreasonably and absurdly in appointing the successful applicant: Associated Picture Houses Limited v. Wednesbury Corporation [1948] 1 KB 223; Seafarers Union of Fiji v. Registrar of Trade Unions [1989] FJHC 33; [1989] 35 FLR 134 (28 June 1989); State v. Public Service Appeals Board; Ex Parte Keteca [2003] FJHC 124; HBJ 0009/2003S (1 August 2003)

2.8	The question then is whether this application ‘fits’ within judicial review or if does not. Is Mr Buwawa right in his contention that the grounds bring it within the scope of judicial review, or are the Respondents right in theirs, that this is an appeal ‘against’ the appointment of the successful candidate and ‘for’ his candidacy, and hence the Court has no jurisdiction?

2.9	By reference to the authorities, canvassed in Attorney General v. Permanent Secretary for Education; Ex parte Sevita Devi Nair (No. 2) (Judicial Review HBJ No. 02 of 2008, 14 August 2008)(in respect of a transfer) so not re-canvassed here, the answer can be gained only by looking at the particular facts and circumstances in and surrounding the appointments process followed by the PSC. 

2.10	Therefore, I turn to them.

3.	Decision-Making Process – RKS Performance

There is no suggestion, as I understand it, that there was a flaw in the interview process. Rather, it is said that the error arose at the determination of the actual appointment. At that stage, the flaws pinpointed in the grounds are said to apply.

3.1	The Public Service Commission is bound, in making appointments and promotions to and within the State Service, by section 140 of the Constitution. Making a determination on the basis of ‘merit’ means, or should mean, taking into account all relevant matters and eschewing all irrelevant matters. 

3.2	(a)	RKS Performance Taken into Account: Annexure ‘D’ to the Affidavit in Reply, filed on 3 April 2008, is particularly relevant to this aspect of Mr Buwawa’s application. It is a ‘Confidential Commission Submission’ being a recommendation to the Public Service Commission dated 28 January 2008 and headed PSC File: C29/450/8. It relates to the appointment to the position in question. It is provide in the following context.

3.3	In his Affidavit in Support, Mr Buwawa states amongst other matters:

I am advised by my Solicitors and believe to be true that I may lodge an appeal with the Public Service Appeals Board (‘the Board’) as allowed under regulation 25(1)(a) of the Public Service (General) Regulations 1990 (‘the Regulation’). However I believe such an appeal would take time and since the Board cannot order a STAY of the [Public Service Commission]’s decision pending determination of my appeal, it would not be feasible for me to lodge such an appeal whereas in an application for judicial review seeking Leave and a Stay is [a] more effective remedy to maintain the status quo: para 15

3.4	The Affidavit in Reply says:

In response to paragraph 15 of the Affidavit … the Public Service Regulations (1999), under Recruitment and Promotions Policy subsection (2) (3) and (4) explicitly define the parameters for determining the suitability of a candidate. [Mr Buwawa] in the affidavit had not questioned the procedures adopted for the selection process. He has also made no attempt to justify that he is more meritorious than Mr Rajendra Singh. Mr Singh[‘s] edge over [Mr Buwawa] in terms is length of service, higher academic qualification, successful experience at various levels, standard of work performance, demonstrated potential for further development and ability to contribute to team performance. Annexed is true copy of the Commission decision marked as annexure ‘D’: para 10 (Emphasis in original)

3.5	It appears to me that Mr Buwawa does assert by implication, at least – and by reference to section 140(d) – that he is the ‘more meritorious’. That is not, however, the question before this Court, nor to be answered by the Court. Indeed, it is not only inappropriate but impossible for the Court to determine. Annexure ‘D’ has an importance because it illuminates the selection process, which is the question before the Court. 

3.6	Annexure ‘D’ is headed:

Subject: Vacancy No. 784/2007: Deputy Secretary (Primary & Secondary) Ministry of Education, Culture, Heritage, Youth & Sports

3.7	It then carries a wordprocessed paragraph headed, in turn, ‘Recommendation’:

It is recommended that the Commission approves the appointment on promotion of Mr Jimione Buwawa, Director to be Deputy Secretary (Primacy & Secondary), Ministry of Education, National Heritage, Culture & Arts with effect from 30/04/07 and to receive the salary $56,441 per annum in the salary scale: $56,441 - $70,807 in the grade S02.

3.8	This Recommendation was not, however, followed. 

3.9	This is of course the nature of a recommendation: a ‘recommendation’ does not carry a mandatory requirement that the body to which it is made – in this case, the Public Service Commission – must accept it or follow it. On the contrary, to follow the recommendation without considering it, simply accepting it and applying it, would be for the Public Service Commission to fail in its responsibility. It is the appointing body. It must give due and proper consideration to a recommendation – which includes the capacity to follow or not follow it. However, in considering the recommendation, the Public Service Commission must act in accordance with (for example) section 140 of the Constitution. It cannot ignore the Recommendation or fail to take it into account or refuse to follow it on arbitrary grounds or by reference to irrelevant considerations or ignoring relevant considerations. It must act within the boundaries of the laws governing its appointment powers and decision-making process. If it follows the Recommendation it must do so in accordance with the requirements of any laws governing its processes and outcomes; if it does not follow it, similarly its decision-making must comply with all relevant laws.

3.10	The Public Service Commission did not follow the Recommendation. The next section of Annexure ‘D’ commences with the words ‘Commission Decision’. This is followed by a handwritten sentence stating:

The Commission agreed to appoint Mr Rajendra Singh to be Deputy Sectary (Primacy & Secondary).

3.11	No reasons are given in that part of the form, which is dated ‘05/02/08’ in what appears to be the same hand. However, in a different hand, at the bottom of Annexure ‘D’, the following words appear:

Grounds were: 

1.	Better qualified
2.	Experience more extensive
3.	Mr Buwawa’s performance at RKS as Principal was not satisfactory, hence he was transferred to HQ to be kept under close supervision.

3.12	(b)	RKS Performance – Irrelevant Matter: This is a point of contention. Mr Buwawa says that the reference to his ‘performance at RKS as Principal’ confirms that the Public Service Commission took into account an irrelevant matter and the decision should be set aside for that reason. 

3.13	Mr Buwawa’s curriculum vitae, Annexure ‘JB1’ to the Affidavit in Support filed 15 February 2008, shows that he held the post of Principal (TE01) Ratu Kadavulevu School (RKS) from 12 January 1990 to 1 July 1997, when he became Principal at EDID (JER Grade). Then on 15 September 1997 he came into the post of Senior/Principal Education Officer, Secondary HQ: Annexure ‘JB1’, p. 3

3.14	That Mr Buwawa’s performance at RKS as Principal has apparently been a key matter in the decision not to accept the Recommendation and in turn to decide upon another candidate does have judicial review implications. 

3.15	First, it is not apparent how this is relevant to the qualifications et down in the advertisement carried in the Official Circular. ‘Unsatisfactory performance as Principal’ does not appear to relate to:

•	Previous experience with policy matters; or
•	The assessed ability to give advice to the experience in negotiations/discussions with senior staff of government and on-government agencies; or
•	The willingness and ability to take far-reaching decisions (although it may).

3.16	It may have a relation to:

•	Shown evidence of well-rounded and forceful personalities with proven intellectual capacity; and/or
•	Proven ability to manage manpower and physical resources effectively.

3.17	Even if it may have done so at some stage, does it now? Mr Buwawa has been acting in a position which appears to involve ‘manpower’ management and the management of physical resources, a post in which he has been extended with apparent acclamation. Relevance (if there were any) of his performance at RKS to the position in question (and perhaps all?) would surely lessen with the passage of time, particularly when the person concerned is performing so as to receive positive comment. 

3.18	Mr Buwawa was at RKS for some six and a half years (albeit some of the latter part on leave), then went to another Principalship for some three months, then was at ‘Head Quarters’ in a stipulated position from September 1997 – that is, some ten years prior to the promotion the subject of this application. 

3.19	The Annexure ‘D’ notation says Mr Buwawa was transferred ‘to be kept under close supervision’ yet he has moved on from the first post to which he was assigned and received commendatory remarks on letters relating to his appointments or continued appointment, those remarks relating to the post in which he acted (and remains acting), the post in contention here.

3.20	As the Public Service Commission was rejecting a recommendation and making a determination to appoint another person – and to a post in which Mr Buwawa had been acting with an apparently satisfactory and even commended record and performance, the Public Service Commission’s consideration and decision-making process would seem to require more than the notation referring to ‘RKS’ and Mr Buwawa. 

3.21	This does raise a question whether in classifying the matter in this way – that is, as an irrelevant consideration – the Court is doing precisely what it is not entitled to do in judicial review, namely imposing its assessment upon the decision made by the Public Service Commission rather than directing its attention to the decision-making process. 

3.22	As an undisputed ground of judicial review is ‘taking an irrelevant consideration into account’, then in my opinion the Court is bound to give consideration to the decision-making process of the Public Service Commission as revealed through Annexure ‘D’. That ten years or so ago Mr Buwawa was removed into ‘Head Quarters’ to be ‘under close supervision’ cannot without more be seen as relevant to the position for which he applied and in all the circumstances this inevitably falls into the ‘irrelevant consideration’ category. That is, Annexure ‘D’ is the ‘key’ document standing as the basis upon which the successful candidate was selected by the Public Service Commission. It provides no link between item 3. and the position applied for; it provides nothing to indicate that this is a relevant consideration. 

3.23	For the Court to accept, on the basis of Annexure ‘D’, that because the Public Service Commission includes item 3. that ends consideration of its decision-making process on the matter would be to avoid the role the Court has in assessing that process for the purpose of judicial review. I explicitly raised the matter on 18 August 2008 with the parties, however, received no response from the Respondents. 

3.24	Hence, without more, it appears that Mr Buwawa’s concern that an irrelevant consideration was taken into account in the decision-making process has force. This aspect comes within judicial review.

3.25	(c)	RKS Performance – Denial of Procedural Fairness: Secondly, there is a question whether Mr Buwawa has been denied natural justice or procedural fairness. A decision against the recommendation that he should be appointed to the post was made. According to the notation, a key element of the decision-making process was the taking into account of ‘his performance at RKS’ and the consequences of that ‘performance’. Yet Mr Buwawa was not only not given an opportunity to respond, he was not advised that the matter was being taken into account by the Public Service Commission in its considerations, or that it had potential to, and did, impact on the decision-making process.

3.26	In Re Hussain Gafoor Samut [1986] FJCA 11; [1986] 32 FLR 102 (23 July 1986), a Tribunal as decision-maker (rather than the Public Service Commission) took into account adverse comment contained in employees’ personnel files to come to a determination as to which of the two merited promotion. The Tribunal decided to reverse the original decision, promoting Mr Samut where Mr Akbar had first been the successful promotee.

3.27	The headnote summarises:

The decision of the Tribunal included inter alia references to the personal reports of both [Mr] Samut and [Mr} Akbar, each apparently adverse to them, though the only reference to a report adverse to [Mr] Akbar, relating to one example of arrogance and rudeness and that following the appointment [of Mr Samut to the disputed position]. In their reasons the court referred [to] the much greater criticism of [Mr] Akbar relating to incidents in his file; in most cases the incidents must have been known to him. There was no evidence that n any of these cases [Mr] Akbar had been given a copy of the adverse comments or was aware these comments were in his personal file before the Tribunal. 

3.28	The Court of Appeal said of the judgment of the Court below:

In short the judgment nullified the … decision other ground that the Appeals Tribunal took into account matters in [Mr] Akbar’s personal file adverse to him and of which he was unaware. In his submissions on appeal Counsel for [Mr] Samut did not dispute that [Mr] Akbar was entitled to be informed of allegations adverse to him to be taken into account against him. A submission to the contrary could not have been supported I the light of the well known decisions such as Durayappah v. Fernando (1967) 2 AC 337l Wiseman v. Bourneman (1971) AC 297 and Fraser v. State Services Commission (1984) 1 NZLR 116: at 3

3.29	Later, the Court of Appeal added: 

In most cases the incidents [listed by the Tribunal] must have been known to [Mr] Akbar as they involve correspondence to which he was a party. There is no evidence that in any of those cases a copy of the adverse comment was given to [Mr] Akbar as required by … the collective agreement. More importantly, there is no evidence that [Mr] Akbar at the time of the hearing before the Appeals Tribunal was aware what if any of these ‘adverse comments’ were in his personnel file which was before the Appeals Tribunal.

We do not think it sufficient to establish that [Mr] Akbar must have known of these incidents. In order to comply with the basic principles of natural justice it was necessary to establish that [Mr] Akbar knew that such ‘adverse comments’ were before the Appeals Tribunal and were likely to be held against him in considering his claim to uphold his appointment to the position: at 6

3.30	As the Court of Appeal said in Pal v. Public Service Commission [2000] FJCA 33; ABU0072U.98S (1 December 2000), ‘where a person’s livelihood is at stake, it is a breach of natural justice if he is not given the right to be heard’: at 4

3.31	In Pal v. Public Service Commission, Mr Pal was on disciplinary charges and hence his livelihood was at risk of being lost entirely: his dismissal was in issue. In the present case, the circumstances are different. Nonetheless, an appointment and/or a promotion or denial of them impinges upon a person’s livelihood. Without the appointment – that is, promotion into the post in which he was and had been acting, Mr Buwawa would not be ‘out of a job’. However, he would not be in the same position as that he held and this would (amongst other matters) impact upon his livelihood. 

3.32	In any event, a right to be heard is not limited to situations involving threat of dismissal. In Pal the Court of Appeal went on to cite Permanent Secretary for the Public Service Commission and Anor v. Matea (Civil Appeal 16 of 1998) where it was said:

The requirement that a person be given a fair opportunity to be heard before a body determines a matter that affects him adversely is so fundamental to any civilised legal system that it is to be presumed that the legislative body intended that a failure to observe it would render the decision null and void. If there are no words in the instrument setting up the deciding body requiring that such a person be heard the common law will supply the omission. It will imply the right to be given a fair opportunity to be heard … What is a fair hearing will depend upon the circumstances of each case: at 4

3.33	A word of caution needs be included here. The Public Service Commission is not a ‘tribunal’. Provision exists for appeals to the Public Service Appeals Board in certain circumstances but not the present case. It might therefore be said that no right to be heard exists and Mr Buwawa is not entitled to it.

3.34	This is, however, not a simple case of job advertisement, culling of applications, interviewing and selection. The circumstances are of a particular type: one candidate recommended, and the recommendation being superceded by the appointment of another candidate, with (as similarly in Hussain Gafoor Samut [1986] FJCA 11; [1986] 32 FLR 102 (23 July 1986)) a matter of past performance being taken into account almost ten years on. 

3.35	In Ram v. Public Service Appeals Board [1975] FJSC 4; [1975] 21 FLR 53 (1 July1975) legislation provided a right to be heard for unsuccessful candidates appealing against the successful candidate’s appointment. There was no such right legislated for the successful candidate whose appointment was under challenge. The Court held that this legislative absence did not mean there was no right for the successful candidate to be heard – to defend their appointment against those appealing. 

3.36	In Ram v. Public Service Appeals Board Counsel accepted that the appointment stage no right to be heard existed and the Public Service Commission had no obligation to hear anyone. At the appeal stage, the Court held, the right to be heard extended not only to unsuccessful candidates but to those who succeeded. This was because, even if appointment was a ‘privilege’, so implying no rights accrued, once having gained a provisional appointment a successful candidate was transported into a category of persons accruing rights associated with that status: at 6-7 

3.37	The decision also rested upon the principle that once the right to be heard had extended to one group – the unsuccessful – then it had automatically to extend to the other group – the successful:

The principle of fair play requires that, where there are several contenders, if a hearing is given by a judicial or quasi-judicial tribunal to one contender, such a hearing should generally be accorded to all of them. This would be particularly so where, after hearing one contender, the tribunal is minded to deprive another contender of something already granted to him even though such a grant might be subject to confirmation: at 7

3.38	The Court concluded that hearing from one and not the other breached natural justice principles.

3.39	The circumstances here are different. However, the principle ‘of fair play’ must yet adhere so as to require a decision-maker to hear from a party who stands to be adversely affected by their decision, in circumstances where negative or derogatory information is incorporated into the decision-making process. Mr Buwawa should at least have been given a chance to respond in writing to a contention or suggestion that his performance at RKS was (a) relevant or not relevant to the promotion position; (b) relevant or not relevant to his application for the promotion position; (c) relevant or not relevant to the Public Service Commission’s deliberations and decision-making process vis-à-vis the promotion position. He should also have been told, in advance of his responding to the matter, in what way or ways the Public Service Commission saw his performance as relevant to his application and whether or not his application might be successful.

3.40	(d)	RKS Performance – Extension of Disciplinary Process? It could be suggested that taking into account Mr Buwawa’s performance in the RKS Principalship is effectively a ‘disciplinary’ measure. That so long after he left the posting his performance at RKS should continue to resonate within the decision-making processes of the Public Service Commission inevitably raises questions as to why. 

3.41	As Lord Denning said in Kanda v. Government of Malaya (1962) AC 322:

If a right to be heard is to be a real right which is worth anything, it must carry with it a right to know the case that has to be met: at 337

3.42	Mr Buwawa did not know he had a case to be met at all, much less what it was – until being advised through the judicial review process that a factor in the decision-making process which resulted in his not being appointed to the post was his ‘performance’ at RKS.

3.43	In my opinion, even absent any general right to be heard in respect of the Public Service Board’s deliberation process at recommendation stage, in the circumstances here existing its lack is a wrongful denial of procedural fairness.

3.44	(e)	RKS Performance – Breach of Public Service (General) Regulation 5(2)? As noted by the Respondents, Public Service (General) Regulation 5(1) provides that the appointment or promotion to an office pursuant to section 147(1) of the Constitution ‘must be made on the basis of merit after an open, competitive selection process and in accordance with section 140 of the Constitution’. Regulation 5(2) then says:

3.45	The appointment or promotion may be made only if –

(a)	…
(b)	an assessment has been made of the relative suitability of the candidates for the duties, after interview or using another competitive selection process;
(c)	the assessment was based on the relationship between the candidate’s work-related qualities and the work-related genuinely required for the duties;
(d)	the assessment focused on the relative capacity of the candidates to perform the duties.

3.46	In the reference in Annexure ‘D’ to Mr Buwawa’s performance at RKS or ‘what happened’ after his assignment at RKS – transfer to ‘Head Quarters’ to be ‘under close supervision’, the question must arise whether the decision-making process (‘the assessment’) was based on the relationship between Mr Buwawa’s work-related qualities and the work-related genuinely required for the duties. Mr Buwawa says that RKS was an irrelevant matter taken into account by the Public Service Commission in its decision-making.

3.47	The notation on Annexure ‘D’ provides little confidence that there was a proper assessment of the relevance or otherwise of the RKS factor in the Public Service Commission’s decision-making process in respect of the position in question. There is, for example, no indication of why it was relevant; of how it was ‘work-related genuinely required for the duties’; what ‘duties’ of the position the RKS factor related to or impinged upon, etc. Once it had stated the RKS factor in its list of reasons for its decision, it had to be able to show how it was relevant in its decision-making process. This is not:

Setting too high a standard of reason-giving [that] might produce the unfortunate result of over-legalising what was quintessentially an informal procedure of public demonstration. The question [is] always one of degree, not that reasons should or should not be required: Regina v. Lambeth London Borough Council; Ex parte Walters [1993] TLR 483, at 485, per His Lordship Sir Louis Blom-Cooper, QC

3.48	This is not a question of a requirement to provide reasons to Mr Buwawa. It does go to the decision-making process and how the Public Service Commission itself saw the RKS factor impinging upon Mr Buwawa’s capacity for the position in question. The RKS factor was the ‘number 3’ reason in the list on Annexure ‘D’ and that going directly to Mr Buwawa’s capabilities. Hence, the need for the Public Service Commission itself to take note of how it saw its relevance.

3.49	The bald statement does not do this and taking into account that it was a Principal position and hence not ‘the same’ as the promotion position, and that whatever it indicated as to Mr Buwawa’s capacities, it indicated them as they stood some ten years earlier, the inference must be drawn that it is an irrelevant consideration.

3.50	The responsibility lies, after all, upon the Public Service Commission in its own deliberations to make clear how any matter is relevant and, in this case, the RKS factor vis-à-vis Mr Buwawa. This it did not do on Annexure ‘D’ which appears to be the key document and perhaps the only documentation providing the Public Service Commission’s own deliberations and reasons for its decision. 

3.51	In that circumstance, not only was the RKS factor an irrelevant consideration, but it was a consideration taken into account without regard to Regulation 5(2)(c). Hence, again, it is judicially reviewable.

3.52	(e)	RKS Performance – Breach of Public Service (General) Regulation 5(3)? Public Service (General) Regulation 5(3) sets out various work related qualities which may be taken into account in making the assessment under Regulation 5(2):

a)	skills and abilities;
b)	qualifications, training and competencies;
c)	standard of work performed at the level required;
d)	capacity to perform at the level required;
e)	ability to contribute to team performance.

3.53	Annexure ‘D’ does not reveal how the RKS factor applied to or was revealed as undercutting Mr Buwawa’s skills and abilities for the post; qualifications, training and competencies vis-à-vis the position; standard of work performed at the level required for the position; capacity to perform at the level required for the post; ability to contribute to team performance as required by the position. 

3.54	Again, a work-performance that occurred some ten years prior (the RKS factor) being taken into account in the decision-making process – with the intervening ten years providing much room for consideration of the candidate’s:

a)	skills and abilities for the post; 
b)	qualifications, training and competencies vis-à-vis the position; 
c)	standard of work performed at the level required for the position; 
d)	capacity to perform at the level required for the post; 
e)	ability to contribute to team performance as required by the position,

inevitably brings the decision-making process into question. Again, the proposition that the Public Service Commission in having regard to it as it did, without any indication of its relevance or the way in which it impacted upon any one of the matters listed in Regulation 5(2)(c) gives weight to the contention that it took into account an irrelevant consideration, and one without regard to Regulation 5(2)(c). 

3.55	Hence, again, it is judicially reviewable.

4.	Decision-Making Process – Specialist Degree

The job specification refers to ‘a specialist degree’. In his Affidavit in Support, Mr Buwawa sets out his experience or knowledge as to this qualification in the Ministry context:

… in the Ministry of Education, the reference to a specialist degree means a degree in education with the option of a Masters or Doctorate specializing in a particular area of expertise such as Early Child Care or Technical Vocation being appropriate higher level qualifications. Nowadays the Ministry gives preference to graduates who have acquired Teacher Training Certificates or Degrees in Education rather than opting for those with a Bachelor of Science Degree or Management Degree: at para 10 (Emphasis in original)

4.1	This it appears is the basis for the grounds set out as (i) and (vi), namely that the Public Service Commission:

(i)	Acted unreasonably and absurdly in appointing Mr Rajendra Singh [the successful applicant] on promotion as Deputy Secretary – Primary & Secondary as he did not meet the required qualifications needed for the post.

(vi)	Did not correctly understand the lawful requirements of appointing Mr Rajendra Singh on probation as Deputy Secretary – Primary & Secondary and did not give effect to such lawful requirements as he did not meet the qualifications required for such a post and thus could not have been the most meritorious candidate.

4.2	The Affidavit in Reply denies paragraph 10, stating that the Public Service Commission circular Number 129/2007 of 15 October 2007 – the job description published in the Official Circular – ‘is very clear on the requirements of this post’: Affidavit in Reply, para 6

4.3	At the same time it appears apparent that Mr Singh does qualify in the terms specified by Mr Buwawa. His curriculum vitae, appearing as Annexure ‘B’ to the Affidavit in Reply, confirms that, amongst other qualifications, he hold tertiary qualifications being:

•	Nasinu Teachers College – Teachers Certificate, 1971
•	Massey University (Extension) – Certificate in the Teaching of a Second Language (English (TESSOL), 1979
•	University of the South Pacific (Extension) – Diploma in Educational Administration, 1990
•	University of the South Pacific – Bachelor of Education, 1994
•	University of the South Pacific – Post-Graduate Diploma in Education, 2001
•	University of the South Pacific – Master of Arts in Education, 2007 

4.4	The Bachelor of Education, 1994 and Master of Arts in Education, 2007 fit the ‘specialist degree’ requirement.

4.5	Mr Buwawa’s curriculum vitae – Annexure ‘JB1’ to the Affidavit in Support - indicates as well as a number of short specialist training courses taken over a long period to the present, that he gained his tertiary qualifications earlier than Mr Singh so has held them for substantially longer – 

•	University of the South Pacific – Diploma in Education, 1972
•	University of the South Pacific - Bachelor in Education, 1981

4.6	The job specification does not set out any timeline requirement for the ‘specialist degrees’ – that is, that a successful candidate is required to have held the degree/s for any number of years, or whether the attainment of such a qualification should be recent (so that the content is contemporary) or substantially longer ago (so that the candidate has had the opportunity of putting the learning into practice over time). Hence, insofar as ‘specialist degree’ is concerned, the contention that in appointing Mr Singh the Public Service Commission erred by ‘acting unreasonably and absurdly’ or ‘not correctly understanding the lawful requirements of appointing’ in the decision to appoint Mr Singh cannot be sustained.

4.7	No ground of review lies here.

5.	Decision-Making Process – 3 Years at S03/US04

Mr Buwawa’s application relies upon the requirement as to position-level within the Ministry as a further foundation for the grounds that the Public Service Commission:

(i)	Acted unreasonably and absurdly in appointing Mr Rajendra Singh [the successful applicant] on promotion as Deputy Secretary – Primary & Secondary as he did not meet the required qualifications needed for the post.

(vi)	Did not correctly understand the lawful requirements of appointing Mr Rajendra Singh on probation as Deputy Secretary – Primary & Secondary and did not give effect to such lawful requirements as he did not meet the qualifications required for such a post and thus could not have been the most meritorious candidate.

5.1	Seeking clarification from the parties and particularly from the Respondents on this point, on 18 August 2008 they appeared before the Court in response to the Court’s request. The Court was particularly concerned to clarify the position of the candidates vis-à-vis the ‘SO3/SO4’ status by reference to the curriculum vitaes of Mr Singh and Mr Buwawa as to precisely the position of each of them in this regard. In the event, Mr Buwawa provided a Supplementary Affidavit (filed 17 August 2008) setting out his formal qualifications and experience consistent with the job specification, however the Respondents provided no further information.

5.2	The material now before the Court is thus relied upon.

5.3	(a)	Mandatory Requirement – General: There appears to be no indication in Mr Singh’s curriculum vitae confirming he has held the level SO3 and/or SO4 in the Ministry of Education or at all in his career. There is a reference to Teacher TE14, TE07, HT TE07 and HT TE05 from 1972 through to 1988, under the heading ‘Service’ in his curriculum vitae: Annexure ‘B’, Affidavit in Reply None of these is the equivalent of the level required by the job specification. 

5.4	On 26 January 2004, Mr Singh was ‘Promoted as Divisional Education Officer, Western ED1F’. This again does not qualify as SO3 and/or SO4.

5.5	Annexure ‘C’ to the Affidavit in Reply contains two documents, one headed ‘Biodata of Applicants’ with a listing of Mr Singh and Mr Buwawa’s formal qualifications (degrees etc) and ‘service experience’. None of the listings in ‘Service Experience’ indicates level SO3 or SO4 for either candidate. However, the second document ‘Appendix 1 – Schedule of Applicants’ lists four names. All are serving officers in the Ministry of Education. Mr Singh is listed as holding the post of ‘Divisional Education Officer’ which carries the grade ‘ED1F’. Mr Buwawa is listed as holding the post ‘Director Assets & Monitoring’, graded as ‘US03’. The other two candidates hold Director posts and each is graded ‘US03’.

5.6	Operating on the assumption that a post titled ‘Director’ will be graded at a higher level than an ‘Officer’, the implication is that the grade ‘ED1F’ sits below ‘US03’ in the Ministry hierarchy of positions and grades. 

5.7	It appears that Mr Singh’s qualifications do not, therefore, fulfill the requirement in the job specification of:

… 16 years service including at least 3 years at US03/US04 level in their respective disciplines … (Emphasis added)

5.8	The job specification provides an alternative to this – of ’16 years and 21 years service respectively’. However, this explicitly attaches to ‘non-specialist graduates and non-graduates’ – Mr Singh fits into neither category since gaining his degrees from the University of the South Pacific. Further, he is precluded from this alternative route to appointment through matching the qualification requirements, for it is explicitly ruled out for those who have ‘specialised training leading to appropriate higher level qualifications …. completed during their career’.

5.9	The Respondents say that there ‘were two applicants … [vying] for the same post [who] had applied for it pursuant to the Gazette advertisement’:

The PSC looked at the merits of each applicant. The Commission had before it all the necessary facts together with both the applicants’ qualifications and experience.

The applicants were heard, staff board made its recommendations and the PSC came to a decision.

The situation here was that the PSC had to arrive at a decision by simply inquiring into the capability and diligence etc of the Applicant and the Interested Party based on the material of professional and academic character presented to it and the Panel and to see that the person promoted is a fitter person for the post.

The PSC came up with the said decision. The Court does not interfere in this exercise as there are statutory powers vested in the PSC which it exercised properly unless there are obvious or glaring errors. As was said in Ansell v. Wells & Others 63 FLR 127 at 133 by Franki, J.:

The major purpose of the legislation is to ensure, in the public interest, that the most efficient person is appointed to the position. There is of course a need to ensure that the promotion should be made in a way which is fair, that it is likely to promote harmony in the public service, and that public servants have no legitimate grievance in relation to the selection of the person to be promoted to a vacant position.

Here the power was conferred on the PSC to make a decision affecting the rights or legitimate expectations of the applicant. In the performance of its duties there was no breach of the provisions of the Constitution as alleged and hence there is no merit in this ground of legitimate expectation in this case: Written Submission, paras 29-30

5.10	The difficulty for the Respondents is, however, that if there were a mandatory requirement as appears to be so in the stipulation of:

… 16 years service including at least 3 years at US03/US04 level in their respective disciplines … (Emphasis added)

then this is not a matter of discretion that the Public Service Commission can ignore or pass over or set to one side. It is bound by its own advertisement and position description, the requirements that it presumably set for the post. It cannot do away with the provisions of its own job description midstream in the name of ‘discretion’. To do so is to operate outside the boundaries of its obligations.

5.11	Similarly as to the citation from Anuradha Charan v. Public Service Commission and Ors (Civil Appeal No. 2 of 1992) cited by the Respondents, where the Court of Appeal said:

The Commission must evaluate evidence of all aspects of the candidate’s abilities, qualifications and attitudes. Having done so, they are left with a discretion to decide the suitability of a 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.

5.12	There can be no quibble about this. However, the difficulty Mr Buwawa raises in his application is that the Public Service Commission, in going about its decision-making process, did not abide by the requirements set down as qualifications for the post. 

5.13	A flaw therefore appears in the decision-making process. Because the process involved promoting a candidate who on the evidence did not hold a required qualification – SO3 or SO4 for the requisite period of years or at all, an error lies in the ‘lawful requirements’ of the decision-making process. Amongst other matters, so long as a stipulated and apparently non-negotiable qualification was not met by a candidate whom the decision-making process elevated into the position, section 140(b) arguably can be contended not to have been complied with. That is, the qualifications set in the job specification must at face value (or in the Public Service Commission’s own terms) be designed to achieve ‘best candidate’ outcomes. 

5.12	This is consistent with State v. Public Service Appeals Board; Ex parte Ranbir Singh [2001] FJHC 162; Hbj0019j.2001s (21 December 2001). The appointed candidate had been acting in the position for some three years. An unsuccessful candidate appealed on the basis that the appointee lacked a ‘core’ qualification for the position as stipulated by the job specification. His Lordship Justice Scott said:

The reason given by the [Public Service Appeals Board] for allowing the … appeal was … 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: at pp. 2-3

5.13	This, then, this provides Mr Buwawa with a valid ground for judicial review.

5.14	(b)	Mandatory Requirement – Breach of Public Service (General) Regulation 5(2)? As earlier noted, Public Service (General) Regulation 5(1) provides that the appointment or promotion to an office pursuant to section 147(1) of the Constitution ‘must be made on the basis of merit after an open, competitive selection process and in accordance with section 140 of the Constitution’. Regulation 5(2) then says:

5.15	The appointment or promotion may be made only if –

(a)	…
(b)	an assessment has been made of the relative suitability of the candidates for the duties, after interview or using another competitive selection process;
(c)	the assessment was based on the relationship between the candidate’s work-related qualities and the work-related genuinely required for the duties;
(d)	the assessment focused on the relative capacity of the candidates to perform the duties.

5.16	A mandatory job requirement must figure in an assessment of candidates as required under Regulation 5(2). Further, if it is a mandatory job requirement, set down in the position description, then it must be taken to have some relevance at least to the suitability or otherwise of a candidate for the position. Hence, if a candidate does not have that mandatory requirement Regulation 5(2) must be breached if that lack is not taken into consideration in the decision-making process. If it is mandatory, then any ‘taking it into consideration’ must result in a negative outcome for the candidate who lacks the mandatory requirement.

5.17	Public Service (General) Regulation 5(3) sets out various work related qualities which may be taken into account in making the assessment under Regulation 5(2) of, amongst other matters, ‘qualifications, training and competencies’: (b)

5.18	A mandatory requirement in a job description must be a ‘qualification’ to be taken into account under Regulation 5(2). Again, if a candidate lacks the mandatory requirement, then this must figure in the decision-making process so as to eliminate from consideration the candidate who does not have that mandatory qualification. If it does not, then there is a flaw in that process.

5.19	It may also be contended that a mandatory requirement – and particularly that contained in the job description here – has direct relevance to the ‘capacity to perform at the level required’: (c) If it figures in the decision-making process, again it should eliminate from consideration the candidate without it. If it does not, this indicates a flaw in the process of decision-making.

5.20	Hence, this reveals a failure to comply with Regulation 5 and is judicially reviewable.

6.	Constitution – Sections 140, 147

Section 147 of the Constitution provides amongst other matters:

Functions of Public Service Commission

147.	(1)	The Public Service Commission has the following functions:

(a) to make appointments to public offices; …

6.1	This provision must be read consistent with section 140 – that is, any ‘appointments to public offices’ must be made ‘on the basis of merit’: s. 140(b)

6.2	I do not understand the Respondents to say, however, emphasise that it cannot be said here that Mr Buwawa has no redress through judicial review because the appointment to the position he sought occurred through a decision-making process consistent with section 147(1)(a) alone.

6.3	Further, a contention could be that the use of ‘may’ in the job specification means that the qualification specified thereby is not mandatory but discretionary on the part of the Public Service Board. Hence, the decision-making process is not flawed.

6.4	The job specification says:

Qualifications: Previous experience … The best graduates with specialist degrees entering the service at SSO3/4 or equivalent may achieve this level after not less than 16 years service including at least 3 years at US03/US04 levels in their respective disciplines. Non-specialist graduates and non-graduates may achieve this level with not less than 18 years and 21 years service respectively unless specialised training leading to appropriate higher level qualifications has been completed during their career.

6.5	This is an argument akin to the assertion that section 147(1)(a) can be read independently of section 140. The specificity of the equivalences undercuts any such argument. ‘Not less than 16 years service including at least 3 years at US03/US04 …’ is so specific as to rule out any notion that it is simply a guideline or a ‘suggestion’ that can be put to one side at the instance of the Public Service Commission. Similarly as to the ‘not less than 18 and 21 years service respectively …’

7.	Wednesday Unreasonableness

Mr Buwawa raises Wednesday ‘unreasonableness’ in the decision-making process. Because he has succeeded on other grounds, Mr Buwawa does not need to succeed on this one. As the authorities indicate, the courts are now in rapid movement away from the restrictiveness of this standard for judicial review. In Regina v. Secretary of State for the Home Department; Ex parte Daly [2001] UKHL 26 (23 May 2001)Lord Cooke of Thorndon said, having addressed the matter of human rights and fundamental freedoms being recognised in Conventions, Bills and Charters of Rights, and other international and domestic instruments rather than being created by them, said:

The other matter concerns degrees of judicial review. Lord Steyn illuminates the distinctions between ‘traditional’ (that is to say in terms of English case law, Wednesbury) standards of judicial review and higher standards under the European Convention or the common law of human rights. As he indicates, often the results are the same. But the view that the standards are substantially the same appears to have received its quietus in Smith and Grady v. United Kingdom (1999) 29 EHRR 493 and Lustig-Prean and Beckett v. United Kingdom (1999) 29 EHRR 548. And I think that the day will come when it will be more widely recognised that Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223 was an unfortunately retrogressive decision in English administrative law, insofar as it suggested that here are degrees of unreasonableness and that only a very extreme degree can bring an administrative decision within the legitimate scope of judicial invalidation. The depth of judicial review and the deference due to administrative discretion vary with the subject matter. It may well be, however that the law can never be satisfied in any administrative filed merely by a finding that the decision under review is not capricious or absurd: at para [32]

7.1	The Wednesbury requirement that to be flawed sufficient for judicial review intervention a decision must be ‘so unreasonable that no reasonable Commission would have made it’ does not usefully advance Mr Buwawa’s application. I say this not in criticism of submissions made in respect of that application, but in respect of the Wednesbury formulation itself. Is the decision here ‘so unreasonable that no reasonable Commission would have made it’? In one sense it may be said ‘yes’, due to the flaw in the decision-making by reference to the apparent failure to adhere to the mandatory requirement job of:

… 16 years service including at least 3 years at US03/US04 level in their respective disciplines … (Emphasis added)

7.2	On the other hand, to say that this is ‘so unreasonable …’ is simply to use that formulation when a better formulation is applicable: namely that in the decision-making process the Public Service Commission failed to have regard to a relevant consideration, namely that the appointment had to be of a person who, whatever other qualifications they had for the position and however suitable, conformed to the mandatory requirement of:

… 16 years service including at least 3 years at US03/US04 level in their respective disciplines … (Emphasis added)

7.3	Furthermore, if the job description was composed with a view to ensuring that the ‘best person for the job’ was appointed, consistent with the responsibilities of the Commission per section 140 of the Constitution, then failing to take into account that mandatory requirement in the decision-making process – evidenced by appointing to the position a person who apparently did not have that qualification – means that the decision-making process resulted in making an appointment not based on merit.

7.4	This is not a judgment about the quality of the candidate whom the Public Service Commission appointed, but relates solely to the job description and the components which included that mandatory requirement.

8.	Decision-Making Process – Contentions as to ‘Acting’

Mr Buwawa does not, as I understand it, contend that he should have been appointed to the position because he had been acting in it for some time, albeit he does rely upon the fact that serving in a higher position (as he was, in the acting post) means that a candidate ‘faces a more demanding and challenging task’: Written Submissions, para 20, citing Singh v. Public Service Appeals Board; Ex parte Hari Gyan Sen [2004] HBJ0053/2003 

8.1	If this were his contention, it would not impact on this Court’s determination. That is, whether or not Mr Buwawa was acting in the position is not relevant to the outcome here, in that as stated at the outset it is not this Court’s role to place anyone in the position or to remove them, or to substitute the Court’s opinion (if it had one on the matter) for that of the Public Service Commission. 

8.2	Rather, the power of this Court under judicial review is to quash the decision only. This means that the Public Service Commission will be obliged to revisit its decision-making process and undertake a fresh review of the applicants. At least, it does not mean that this Court will substitute its decision for that of the Board. Indeed, since it is not making a decision as to which candidate of all applying is most meritorious and qualified in accordance with the job specification, it has no decision to substitute.

8.3	In any event, as the authorities make clear, that a candidate has acted in the advertised position does not mean that they have an automatic entitlement to the position; nor does it mean that s/he can be appointed notwithstanding a lack of a ‘compulsory’ qualification or necessary qualification, or a qualification specific in the job description as ‘non-negotiable’: State v. Public Service Appeals Board; Ministry of Education and Attorney General of Fiji; Ex parte Manoa Maqanatagane (Judicial Review No. HBJ 36 of 2007, 18 January 2008)

9.	Alternative Remedy

The Respondents say that the decision the subject of this application for review is not one that is able to be appealed from. Mr Buwawa’s application indicates that he believes there is an avenue for appeal but he seeks judicial review for reasons relating to expedition.

9.1	Taking into account what the Respondents have said, if there is no appeal avenue then Mr Buwawa has no alternative remedy. 

9.2	Hence, this does not stand in his way vis-à-vis judicial review. In any event, it is not immutable that where there is a possible alternative remedy, judicial review does not lie. It is simply the case that where there is, courts should be loath to readily to provide for judicial review as a remedy.

10.	Conclusion

Counsel in this case provided both oral and written submissions and authorities which were of considerable assistance to the Court.

10.1	The Applicant, Mr Buwawa succeeds in his application for judicial review, in respect of:

•	the taking into account of an irrelevant consideration, namely the reference to the RKS Principalship contained in the Public Service Commission Document being Annexure ‘D’ to the Affidavit in Reply; 

•	the failure to take into account a relevant consideration, being the mandatory requirement in the job description: ‘… 16 years service including at least 3 years at US03/US04 level in their respective disciplines …’; 

•	in that regard the failure to comply with section 140(b) of the Constitution (Amendment) Act 1997; and

•	further in that regard the failure to comply with Regulation 5 of the Public Service (General) Regulations 1999.

10.2	The decision is therefore unlawful, void and of no effect.

10.3	Mr Buwawa is entitled to a remedy as set out in the Orders herein.

ORDERS

1.	An Order for Certiorari removing the decision of the First Respondent into this Court, and that the decision be quashed.

2.	A Declaration that the First Respondent’s exercise of discretion in filling the vacant post of Deputy Secretary – Primary & Secondary was made:

a)	contrary to section 140(b) of the Constitution (Amendment) Act 1997 and Regulation 5 of the Public Service (General) Regulations 1999; and

b)	by reference to an irrelevant consideration and without regard to a relevant consideration; 

and is thereby unlawful, void and of no effect.

3.	An Order for Mandamus directing the First Respondent to:

a)	Re-evaluate the Applicants short listed for the post of Deputy Secretary – Primary & Secondary and make an appointment based on such re-evaluation; or

b)	Readvertise the position in the same terms and qualifications as previously and undertake the appointments process according to law.

4.	Costs awarded to the Applicant in an amount to be determined as follows:

a)	The Applicant to file and serve a schedule of costs within fourteen (14) days of the date of this judgment; 

b)	The Respondents to file and serve any short submissions in reply within fourteen (14) days of service of the Applicant’s schedule of costs;

c)	The Court to make an Order taking into account the matters raised by the parties in the schedule and short submissions.

Jocelynne A. Scutt
Judge

Suva
4 September 2008