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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) No. 343 OF 2015
BETWEEN:
DINION GAH
Plaintiff
AND:
MICHAEL N. WARPO, Commissioner of Correctional Services
First Defendant
AND:
THE INDEPENDANT STATE OF PAPUA NEW GUINEA
Second Defendant
Waigani: Gavara-Nanu J.
2016: 17 June
2017: 7 April
JUDICIAL REVIEW – Administrative action – Selection and appointment of Correctional officers to vacant positions –
Promotion of Correctional officers – Powers of the Commissioner for Correctional Service – Direct promotion made by the
Commissioner without going through selection process - Correctional Service Act, 1995; ss. 3, 4, 6, 8, 13, 16, 19, 21, 22 and 30 – Correctional Service Regulation, 1995; ss. 2,4 and 5 – Constitution; ss.188 (2), 207 and 208.
Cases cited:
Papua New Guinea Cases
Dr Allan Marat v. Hanjung Power Ltd (2014) SC1357
Sisipa v. Sikani [2012] PNGNC 113, N4825,
Overseas Cases
Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] EWCA Civ 1; [1948] 1 KB 223
Counsel
T. Dalid, for the Plaintiff
E. Manihambu, for the Defendants
7th April, 2017
1. GAVARA-NANU J: The plaintiff seeks review of the decision of the first defendant made on 29 January, 2015, through a Circular (Instruction) No. 06 of 2015 (“the Circular”), to demote him from a rank of Inspector to his previous substantive rank of Sergeant.
2. The plaintiff is an officer of the PNG Correctional Service and has been with the Service since 1986. He is based at Bomana Correctional Institution. In 2013, he was appointed Acting Transport Officer, taking charge of the fleet of vehicles doing National Court runs. He was a Sergent at that time. He was on duty on 14 May, 2013, when the notoriously dangerous prisoners William Nanua Kapris, Raphael Walimini and Michael Waragu broke out of Bomana gaol. The plaintiff tried to prevent the three prisoners from escaping, he was not successful in his attempt but his actions prevented a possible mass prison breakout.
3. The plaintiff’s actions also prevented a real likelihood of other inmates, Correctional officers and staff from being injured or even killed. The plaintiff’s act of exceptional bravery and courage was recognized by his immediate supervisor, Chief Superintendent Joe K Jako who recommended to the then Correctional Service Commissioner, Martin Bulthazar that the plaintiff be promoted to a higher rank and a Certificate of Commendation be awarded to him for what Chief Superintendent Kako described as “acting beyond his call of duty”. As a result, Commissioner Bulthazar directed the plaintiff to prepare a report detailing his actions in attempting to stop the three notorious criminals from escaping. The report is Annexure “A2” to the plaintiff’s affidavit sworn on 15 June, 2015. I have read the report and it certainly was very brave and courageous of the plaintiff because he also put his own life at risk.
4. The recommendation by Chief Superintendent Jako to Commissioner Bulthazar which is dated 17 July, 2013, is Annexure “B” to the plaintiff’s affidavit. In the last two paragraphs of the recommendation, Chief Superintendent Jako said: “I am of the view that such bold, brave and extremely courageous action displayed by Sergeant Gah also prevented what could have been a total bloodshed at this institution. I therefore recommend a Certificate of Commendation and any other avenues associated with promotion to higher rank and responsibilities to be considered as well”.
5. On 13 December, 2013, Commissioner Balthazar jointly hosted the end of the year parade with the then Correctional Service Minister Hon. Jimmy Simitab, MP. The parade was attended by all the members of the Correctional Service based in Bomana, including the first defendant who at that time was the Deputy Commissioner, Operations. The members of the public and family members of the Service men and women also attended the parade. During the parade the plaintiff was promoted to the rank of Inspector. The Inspector’s pips were pinned on the plaintiff’s shirt by the Minister.
6. It is not disputed that the plaintiff’s promotion was in recognition of his brave and courageous act, following recommendation by Chief Superintendent Jako. Following his promotion, the plaintiff was appointed Acting Operations Manager for Bomana Correctional Institution effective from 10 January, 2014.
7. After the death of Commissioner Balthazar and the then Deputy Commissioner David Melengi on 19 February, 2014 and 22 February, 2014, respectively, the first defendant became Acting Commissioner. He was subsequently appointed Commissioner in about September, 2014. That was when plaintiff’s problems began when the first defendant refused to recognize the plaintiff’s new rank as Inspector, although the plaintiff was performing duties of Acting Operations Manager, the job he was given after his promotion to Inspector. The plaintiff’s salary also remained as that of a Sergeant. This forced the plaintiff to seek clarification from the first defendant as to his rank and salary. The first defendant did not make any direct response to the plaintiff’s enquiries which were put to him in writing. Instead, on 29 January, 2015, the first defendant issued a general Circular to all Service men and women in which he stated that the plaintiff’s promotion was illegal. The Circular was purportedly issued pursuant to s. 13 of the Correctional Service Act 1995. The principal issue raised in the Circular was that the plaintiff’s promotion was made outside the procedures set out under the Correctional Service Act; Correctional Service Regulation1995 and Standing Orders, which he said regulated appointments and promotions of Service men and women. The first defendant reasoned that the Commissioner only had power to award brevet ranks for special occasions for protocol reasons and after such occasions, the brevet ranks automatically reverted to substantive ranks.
8. The first defendant made reference to an occasion when an approval was given by the Bomana Police College Commander for two senior NCOs to be awarded brevet ranks for the Passing out Parade of new police recruits on Friday 23 January, 2015, as an example. The awarding of the brevet ranks to the two NCOs was for the Passing out Parade only. The two NCOs reverted to their substantive ranks after the Parade. Consequently, relying on that example, the first defendant directed that the plaintiff and the other Sergeant, Joe Yamason who was also promoted to Inspector at the same parade by the late Commissioner, to revert to their substantive ranks of Sergeants.
9. The pertinent question is - Was the plaintiff’s promotion legal? In other words, did the late Commissioner have power to promote the plaintiff to Inspector without having to go through the normal selection process set out under the Correctional Act, Correctional Service Regulation, and Standing Orders?
10. The plaintiff argued that his promotion was legal because the late Commissioner had wide power under ss. 13 (1) (b), 16 (2), 19 (a), 22 and 26 of the Correctional Service Act, to make direct and instant promotions in special cases such as his.
11. The plaintiff further argued that the first defendant breached principles of natural justice when he failed to give him an opportunity to be heard before issuing the Circular.
12. Mr. Manihambu of counsel for the first defendant argued that the plaintiff’s promotion was contrary to ss. 4 and 5 of the Correctional Service Regulation, which set out the procedures for appointments and promotions in the Correctional Service. Essentially, under these procedures any vacant position must be advertised and gazetted and interested Correctional officers have to apply for the position. The Correctional Service Promotions Selection Board (“the Board”) would then consider and select applicants based on their qualifications and recommend the applicants to the Commissioner for the vacant position. The Board has no power to make appointments, it can only make recommendations to the Commissioner to appoint an applicant if the applicant was considered suitable for the position by the Board. The power to appoint is vested solely in the Commissioner. It was argued that these procedures were not followed by the late Commissioner.
13. The Correctional Service is established by s. 4 of the Correctional Service Act, pursuant to s. 188 (2) of the Constitution which provides for the establishment of the Correctional Service by an Act of Parliament. Section 195 of the Constitution provides for the Correctional Service Act, to provide for the organizational structure for the Correctional Service as well as the terms and conditions of employment for the members of the Service.
14. Pursuant to ss. 207 and 208 of the Constitution, the Correctional Service is a discipline force. However, unlike the Police and the Defence Forces whose functions and responsibilities for the superintendence, efficient organization and control are stipulated under Divisions 4 and 5 of PART VII of the Constitution, with regard to State Services; for the Correctional Service, these features are stipulated in the Correctional Service Act. Section 4 of the Act, for example provides that the Service shall be comprised of (a) the Commissioner and (b) the members of the Service. Section 6 provides that the Correctional Service is subject to the control of the Minister through the Commissioner but the Minister has no power of command except to the extent provided by a constitutional law or by the Correctional Service Act or by any other law. The day to day operational matters are under the control of the Commissioner.
15. It should be noted that pursuant to s. 7 of the Act, the functions of the Service, are focused primarily on care and treatment of the detainees and prisoners. Section 8 establishes the Office of the Commissioner and s. 13 sets out the powers and functions of the Commissioner. The plaintiff argued that s. 13 confers wide powers on the Commissioner, including power to make direct and instant promotions in special cases without having to go through the procedures set out under the Correctional Service Act and Regulation. Section 13 (1) (b) (i) and (ii) of the Act, are relevant as they vest the superintendence and efficient organization, management of the Service and proper performance by the Service of its functions in the Commissioner.
16. It was submitted on behalf of the plaintiff that powers conferred on the Commissioner by the Act, are so wide that the Commissioner can make direct recruitments, promotions and or transfers in special cases. This power also covers retiring officers where the Commissioner is of the opinion that it is in the overall interest of the Service to do so. To illustrate this point, the plaintiff referred to Sisipa v. Sikani [2012] PNGNC 113, N4825, in that case the then Commissioner issued a compulsory retirement notice to a serving officer of the Service. The Commissioner determined that the retirement age for the officer who at the time was aged 57, was 55 years. The officer argued that he could only retire upon reaching the age of 60, thus pursuant to s. 56 of the Public Service Management Act 1995, only the Secretary for the Department of Personnel Management had power to retire him. The Court however held that Public Services Management Act, had no relevance and application to the Correctional Service members, as the Commissioner was the only authority having power under s. 13 of the Act, to issue a compulsory retirement notice to the officer. This case clearly illustrates the wide powers vested in the Commissioner by s. 13.
17. There is no dispute that the plaintiff possessed all the qualifications required under s.19 of the Act, to be promoted to a higher rank. Section 19 has to be read together with s. 21, because they both prescribe the required qualifications. Section 21 (1) provides among other things, that a person shall not be promoted to a rank in the Service unless he possessed the prescribed qualifications.
18. Section 30 is critically important, it relates to terms and conditions of employment for Service members. Sub-section (1) (a) and (b) provide that subject to the Act, and the Salaries and Conditions Monitoring Committee Act 1988, a Service member is employed on such terms and conditions as are prescribed or as determined by the Commissioner. Section 2 of the Correctional Service Act, which is the interpretation provision, defines ‘a member’ referred to in s. 30 (3) of the Act, as a Correctional Officer or a member of the Correctional Service. The procedures relating to promotion of both non-commissioned and commissioned ranks are set out under ss. 2, 3 and 5 of the Correctional Service Regulation. Sections 2 and 5 define the composition of the Promotion Selection Boards for both non-commissioned and commissioned ranks.
19. Ordinarily, the relevant procedure for the purposes of this application is set out under s. 5 of the Regulation. Under this procedure, any vacant position has to be advertised and gazetted and officers who are interested in such position can then apply to the selection Board to be considered for the position. If the Board considered an applicant suitable for the position, it would then recommend to the Commissioner that the applicant be appointed to the position. It is entirely up to the Commissioner whether to appoint the applicant to the position or not. The decision of the Commissioner is final.
20. There is no doubt that the plaintiff’s promotion to Inspector was not awarding of a brevet rank just for the end of the year parade for ceremonial purposes only, to comply with the tradition purportedly highlighted by the first defendant in his Circular. The plaintiff was given a substantive promotion to Inspector upon recommendation of his immediate superior for his extraordinarily brave and courageous act. It was a direct and instant promotion made by the Commissioner in the exercise of his powers in recognition of the plaintiff’s commitment to duty and act of extraordinary bravery.
21. When one looks at the relevant provisions of the Regulation regarding promotions, they are all made subject to the overall powers of the Commissioner as conferred under the Act.
22. The Regulation being a sub-ordinate legislation; its provisions have to be read subject to the Correctional Service Act, the governing legislation: Dr Allan Marat v. Hanjung Power Ltd (2014) SC1357. The defendants argued that whilst the Commissioner has power to appoint and promote officers within the Service, the power has to be exercised in accordance with the procedures set out under the Regulation. The plaintiff disagreed with this argument; he argued that s. 13 of the Correctional Service Act, confers very wide powers on the Commissioner to make promotions outside of these procedures in special cases.
23. I accept the plaintiff’s argument that Sisipa v. Sikani (supra) is the case in point. In that case the then Commissioner invoked s.30 (1) of the Correctional Service Act, by determining that the compulsory retiring age for the officer was 55. The Court recognized that the Commissioner had power to make such determination as a condition of employment for the officer. In my view, s. 30 (1) has to be read together with s. 13 to find its proper meaning and context.
24. It appears that in Sisipa v. Sikani (supra) the Commissioner determined that given the age of the officer, which was 57, the officer was pursuant to s. 19 of the Act, not qualified or was no longer physically fit enough to continue serving in the Service. In other words, the Commissioner had determined that the officer no longer possessed the level of fitness required of him under the Act, to assist in the proper and effective performance by the Service of its functions. The plaintiff’s case is clearly different from Sisipa in that there was no issue regarding his qualifications because any such issues were put to rest by the recommendation for a Certificate of Commendation and promotion by Chief Superintendent Jako, and plaintiff’s own detailed report on how he tried to prevent the three notorious criminals from escaping. The plaintiff’s level of physical fitness and his commitment to his call of duty were not in issue.
25. It is therefore reasonable to infer from the above that the Commissioner saw the benefit in promoting the plaintiff to the rank of Inspector, viz: so that he could assist and contribute to the efficient functioning of the Service in tangible ways. It is to be noted that the plaintiff’s higher duties which were related to his higher rank of Inspector had to be determined pursuant to s. 30 (1) (b) of the Act.
26. I find that this was the basis the late Commissioner dispensed with the requirements of the relevant procedures set out under the Act and the Regulation for promotions.
27. It should nonetheless be said that the Commissioner’s power to make direct and instant promotions is not absolute, the power has to be exercised sparingly and cautiously and only in special cases. Such promotions should be merit based to prevent abuse of power, and should be made upon proper recommendations to the Commissioner. I am satisfied that the plaintiff’s promotion met these requirements.
28. Consequently, I find that the plaintiff’s promotion was proper and legal and is binding on the defendants, especially the first defendant. Thus he is now obligated to recognize the plaintiff’s promotion and give effect to it. I also find that the Circular issued by the first defendant was ultra vires and was null and void and has no legal effect.
29. In reaching these conclusions, I have taken into account the fact that the Minister for Correctional Service was present during the parade and participated fully in plaintiff’s promotion, thus approving the plaintiff’s promotion. I have also taken into account the fact that the first defendant was present during the parade and was part of the promotion.
30. It is also significant to note that the Circular was issued well over a year after the plaintiff’s promotion. In other words, the plaintiff was allowed to hold the rank of Inspector and perform duties at that level for over a year before the first defendant decided to issue the Circular. In these circumstances, the first defendant’s decision in issuing the Circular was not the type of decision any reasonable tribunal could make, the decision was therefore also unreasonable: Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 233.
31. I bear in mind that the necessary documentation to effect the plaintiff’s promotion may not have been prepared and processed. If this is the case then that is understandable because before such documentation could be prepared and processed which may include issuing of appropriate gazettal notices, the late Commissioner passed away. The current Correctional Service administration under the first defendant obviously could not process the documentation because the first defendant opposed the plaintiff’s promotion. However, now that the Court has found that the plaintiff’s promotion was valid and legally binding on the first defendant, the Court orders that all the necessary administrative actions, including preparation and processing of the relevant documentation, including issuing of gazettal notices to formalize and effect the plaintiff’s promotion to the rank of Inspector, be done forthwith by the first defendant and his administration and the relevant State agencies.
32. For the avoidance of any doubt I find and declare that the plaintiff is and has always been holding a rank of Inspector in the Correctional Service since his promotion to that rank on 13 December, 2013, by late Commissioner Martin Balthazer. In this regard, I note from the plaintiff’s affidavit that he continued to perform higher duties as Acting Operations Manager Bomana Correctional Institution, following his promotion even after he was told in the Circular to revert to his previous rank of Sergent. His attempts both in writing and direct approaches to the relevant authorities including the first defendant and the Minister to discuss and resolve this issue were all unsuccessful.
33. In the circumstances it is only fair and reasonable that the plaintiff be fully reimbursed with all his unpaid salaries and entitlements and any other emoluments relating to his rank as Inspector. Such unpaid salaries, entitlements and other emoluments be calculated from 13 December, 2013 to today, 7 April, 2017, the date of this judgment.
34. The defendants will pay the plaintiff’s costs of and incidental to this proceeding.
35. The Orders of the Court are as follows:
Orders accordingly.
_____________________________________________________________
Gagma Legal Services: Lawyers for the Plaintiffs
Solicitor General: Lawyers for the Defendants
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