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Peter v Mepio [2024] PGNC 415; N11098 (21 October 2024)

N11098

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 283 OF 2020

BETWEEN:
JENNIFER PETER
Plaintiff

AND:
CHEO MEPIO, Chairman
Southern Highlands Provincial Education Board
First Defendant

AND:
Sothern Highlands Provincial Education Board
Second Defendant

AND:
SOUTHERN HIGHLANDS PROVINCIAL GOVERNMENT
Third Defendant

AND:
SAMSON WANGIHOMIES, Chairman
Teachers Services Commission
Fourth Defendant

AND:
MAX TAMBUE
Fifth Defendant

Mt. Hagen: Kangwia J
2024: 10^th & 21^st October

JUDICIAL REVIEW – Revocation of tenure appointment – Guidelines on tenure appointment not complied - Teaching Service Commission direction to reinstate not complied – Powers of appointing authority - Provincial Education Board erred in revoking tenure appointment - PEB liable for damages suffered.

Cases Cited:

Nil

Counsel

D. Gonol, for the Plaintiff
J. Mune, for the First, Second & Third Defendants

21^st October 2024

1. KANGWIA J: The Plaintiff was granted leave to apply for Judicial Review by way of mandamus to compel the Southern Highlands Provincial Education Board (SHPEB) to comply with the decision on appeal by the Teaching Service Commission (TSC) to reinstate the Plaintiff on the tenure position held as head teacher for Yebi High School.

2. The circumstances leading to the application for Judicial Review are that the SHPEB chaired by the First Defendant revoked the tenure position the Plaintiff held as head teacher for Yebi High School and instead appointed the Third Defendant as head teacher. Aggrieved by the decision the Plaintiff appealed to the Teaching Service Commission (TSC). The TSC upheld the appeal and directed the SHPEB to restore the Plaintiff to the original position. The decision of the TSC was not complied with by the SHPEB hence the application to compel the SHPEB to enforce the TSC decision.

3. At the time of hearing the application, it appears that the orders sought are no longer available as events have overtaken the relevance of the TSC decisions sought to be enforced except for the issue of whether the Plaintiff is entitled to the claim for monetary compensation to be assessed and paid by the Defendants for loss and damages the Plaintiff suffered.

4. On the issue of damages all parties concede that since damages ride on the back of liability the issue of liability should be determined first. The issue to be determined therefrom is whether the decision by SHPEB to revoke the tenure appointment of the Plaintiff as head teacher for Yebi High School falls within the powers of appointment the Provincial Education Board has.

5. On the issue Mr. Gonol for the Plaintiff while adopting the submissions filed on behalf of the Fourth Defendant submits that since the Defendants have failed to seek a review of the decision by the TSC the decision of the TSC stands final pursuant to s 41 and should be adopted as the valid decision on appointment for teachers holding tenure positions.

6. It is submitted that while the Provincial Education Boards have the power under s 39 (i) of the Teaching Service Act to make appointments the revocation by the SHPEB was not done according to law. The SHPEB acted in breach of the bar placed by the TSC Teacher Appointment Policies and Procedures Manual when it removed the Plaintiff from the tenure position in circumstances where the power to revoke tenure appointment remains with the TSC pursuant to s 41 of the Teaching Service Act.

7. The Plaintiff was given the tenure position on the recommendation of the SHPEB after advertisement for the position as head teacher of Yebi High School and cannot revoke the tenure appointment.

8. The powers of appointing authority and appealing authority are distinct from each other. Once the appointing authority makes an appointment the next process is the appeal. Under the appeal process an aggrieved teacher can appeal the decision to the appointing authority to the TSC.

9. The decision of the TSC is from a distinct process under s 59 of the Teaching Service Act and is final and the appointing authority has no power to overturn the decision on appeal except by way of a Court Order by a Court of competent jurisdiction.

10. It is also submitted that the SHPEB denied the Plaintiff natural justice when no opportunity was given the Plaintiff to be heard on the reasons for the revocation. Therefore, the TSC is exempt from any damages suffered by the Plaintiff.

11. The submissions by Mr. Gonol are supported in the submissions filed on behalf of the Fourth Defendant.

12. The Fourth Defendants submission states that pursuant to s 41 of the Teaching Service Act, the TSC Teacher Appointment Policies and Procedures Manual bars a teacher on tenure position from being appointed away from the tenure position held. The other submission is that once an appeal is upheld by the TSC it is final and the SHPEB does not have any authority to overturn the TSC decision except through a Court of competent jurisdiction.

13. As to damages it is stated that since the agents and servants of the SHPEB caused the Plaintiff to file Court proceedings they should be blamed and not the TSC.

14. For the 1^st, 2^nd and 3^rd Defendants Mr. Mune submits that despite lack of proper instructions owing to recent engagement submits that the SHPEB has authority to make appointments of teachers, but the terms and conditions are met by the TSC.
15. On whether the Plaintiff can be awarded damages after events have overtaken the relevance of the orders sought, it is submitted that as costs follow the event it is the TSC that should meet the costs for damages claimed as the authority that determines terms and conditions for teachers.

16. The submissions overall invite interpretation of the law on the authority vested in the TSC and the PEB relating to tenure appointments. The authorities are considered accordingly.

Teaching Service Commission

17. At the outset it must be stressed that teachers are members of the Teaching Service pursuant to s 22 of the Teaching Service Act and employment issues of teachers are governed by the Teaching Service Act 1988 under the watchful eyes of the TSC stipulated as functions under s 9 of the Teaching Service Act. This provision when reproduced provides:

9. FUNCTIONS OF THE COMMISSION.

(1) Subject to this Act, the functions of the Commission are–

(a) to exercise a critical oversight of all matters relating to the terms and conditions of service and welfare of members of the Teaching Service; and

(b) to ensure that decisions of other authorities under this Act or the Education Act 1983 do not infringe or abrogate the rights or the conditions of service of members, and where those rights or conditions are infringed or abrogated–

(i) to give such directions; and

(ii) to take such other action within its power under this Act or any other law as may be necessary to correct the situation; and

(c) to act as agent for the State in relation to the responsibilities of the State under this Act as an employer; and

(d) subject to any direction of the Minister, to determine after consultation with the Salaries and Conditions Monitoring Committee–

(i) the salaries and allowances; and

(ii) the other terms and conditions of appointment and service as required and permitted by this Act,

of members of the Teaching Service (other than benefits under Division XI.2); and

(e) to determine appeals as provided for by this Act; and

(f) after consultation with the Departmental Head, to determine conditions for–

(i) the granting of free-place study and assisted study facilities in institutions inside or outside the country; and

(ii) study leave; and

(iii) in-service training; and

(g) to advise education authorities on standard and special allowances that might be paid by education agencies in various circumstances and to recommend standards of accommodation for teachers and standard rentals; and

(h) to advise the National Education Board on personnel aspects of the transfer of, and in-service training arrangements for, members of the Teaching Service; and

(i) to collate and publish, or arrange for the collation and publication of, information in relation to the terms and conditions of appointment and service of members of the Teaching Service; and

(j) any other functions that are necessary or convenient for carrying out, or that are ancillary to, the functions set out in this subsection.

(2) In the exercise and performance of its powers and functions, the Commission shall, as appropriate, consult and co-operate with, and tender advice to Provincial Governments, the Departmental Head, education agencies and the Papua New Guinea Teachers’ Association on all matters in which they or any of them have common interest.

(3) In the exercise and performance of its powers and functions, the Commission shall have regard to any Code of Ethics in force under Section 28.

18. This provision in no uncertain terms confers critical oversight powers on the TSC to exercise in all matters relating to the terms and conditions of service and welfare of members of the Teaching Service. The oversight powers apply universally and countrywide.

19. The oversight power given in order of priority to the TSC to exercise is to ensure that decisions of other authorities under this Act or the Education Act 1983 do not infringe or abrogate the rights or conditions of service of members, and where those rights or conditions are infringed or abrogated–

(i) to give such directions; and
(ii) to take such other action within its power under this Act or any other law as may be necessary to correct the situation; and

20. The oversight powers given the TSC under this provision has the effect of rendering any decision made by Provincial Education Boards become subject to the oversight powers of the TSC. That is because the SHPEB being an authority created by the Teaching Service Act falls under this oversight power the TSC has.

21. Because of the oversight powers that the TSC has, any direction given by the TSC on any decision by the appointing authority prevails and must be complied.

Provincial Education Board

22. The Provincial Education Board (PEB) is given the authority to appoint teachers to positions in high schools and Technical Schools in a province as prescribed by s 39 (1) in the following terms:

39. APPOINTMENTS IN PROVINCIAL HIGH AND TECHNICAL SCHOOLS AND IN NATIONAL INSTITUTIONS.
    

(1) Appointments to positions in a provincial high school or a technical school shall be made by the Provincial Education Board, after having received the recommendation of the Board of Governors of the school concerned.

23. The powers to appoint given to the PEB by that provision can only be exercised in their respective provinces after receiving a recommendation of the Board of Governors.

24. When the PEB derives its power of appointment from s 39 (1) of the Teaching Service Act any decision it makes on appointment of teachers shall as far as practicable use fair and reasonable procedures and criteria pursuant to s 41 of the Teaching Service Act which provides:

41. PROCEDURES IN MAKING APPOINTMENTS.
    

In making appointments, the National Education Board and a Provincial Education Board shall, as far as practicable, use fair and reasonable procedures and criteria, and it is the responsibility of the Commission to suggest such procedures and criteria.

25. This provision further imposes responsibility on the TSC to suggest the procedures and criteria in making appointments. In compliance with this responsibility the TSC promulgated the Teaching Service Commission Teacher Appointment Policy and Procedures Manual (Manual). This Manual is the guide for appointments of teachers by the PEB.

26. The PEB cannot for all intent and purpose make appointments outside the guidelines in the Manual because of the prevailing directive under this provision to use fair and reasonable procedures.

Tenure Appointments

27. The Teaching Service Act as the enabling legislation governing matters relating to teachers does not specifically refer to the name teacher or tenure appointment nor does it prescribe the procedure for appointment of teachers. However, the name teacher and tenure appointments appear in the Teaching Service Commission Teacher Appointment Policies and Procedures manual. This manual derives its authority from s 41 of the Teaching Services Act which prescribes the procedure in making appointments. As stated earlier, s 41 imposes responsibility on the TSC to suggest the procedures and criteria in making appointments.

28. In compliance with the given responsibility the TSC promulgated the manual to guide appointing authorities which includes Provincial Education Boards when making appointments. This manual is the guide under which tenure appointments can be made and no other way.

29. For tenure appointments the overarching policy is that a tenure position is won through advertisement and confirmation. It involves a long process involving applications personal inspections and confirmations in order to secure a tenure appointment. It is not an ordinary or acting appointment for an appointing authority to make.

30. Under schedule 2.13 of the guidelines it prescribes that a teacher appointed to a tenure position shall hold tenure for a period not less than three years. At the expiry of the term of the tenure the teacher concerned must apply for a personal inspection and receive a satisfactory performance report in order for the tenure to be extended for an extension of two years. Where a tenure holder receives an unsatisfactory personal report, the tenure is forfeited.

31. Under Schedule 2.6 of the guidelines a teacher on tenure position should not be re-appointed away from the tenure position unless appointed to a position above the substantive level held.

32. According to clause 2. 9 of the Manual when the holder of the tenure has resigned, retired, deceased, released to other provinces or released to serve under other Acts, or confirmed to a position above the previous substantive level the tenure position becomes vacant.

33. There is no provision under the guidelines of the Manual which prescribes for revocation of a tenure appointment by any authority.

34. According to the affidavit of the Plaintiff the tenure position was given for three years between 2019 and 2021 by the TSC on the recommendation of the PEB. That statement is consistent with the provision under Clause 3.4 of the TSC Manual. Under that provision the teacher given a tenure possess a right to occupy the position for three years. On the lapse of the three years the teacher holding the tenure has options available under the same policies. It follows therefore that the tenure appointment for three years must be on the position applied for and not any other position unless the other position is on a higher level.

35. In the present case the powers of the TSC referred to earlier have been properly exercised in the circumstances of the present case. The decision by the SHPEB to revoke the Plaintiffs tenure appointment appears to have infringed on the rights and conditions of service of the Plaintiff.

36. The Plaintiff exercised the right conferred by s 59 of the Teaching Service Act to appeal the decision from which the TSC in the exercise of its oversight power issued directions to the SHPEB to reinstate the Plaintiff to correct the situation on the tenure appointment of the Plaintiff.

37. The failure by the SHPEB to comply with the direction of the TSC without seeking Judicial Review of the direction given by the TSC effectively gives effect to s 59 of the Teaching Service Act that the decision by the TSC on the Plaintiffs appeal is final.

38. It also appears that the SHPEB has failed to adhere to the prohibitions placed on teachers on tenure positions from being appointed away from the tenure position pursuant to schedule 2.6 of the Manual when it resolved to appoint the Plaintiff away from the tenure position held when the away position was not a higher level from the tenure position held by the Plaintiff.

39. The SHPEB has also failed to adhere to the requirement under schedule 2.13 of the Manual that a teacher must not hold a tenure for less than three years when it resolved to revoke the tenure appointment before the 3 years tenure appointment of the Plaintiff lapsed.
40. Under the circumstance it is the conclusion of the Court that the SHPEB has failed to apply the fair and reasonable procedure and criteria test pursuant to s 41 of the Teaching Service Act when it decided to revoke the tenure appointment of the Plaintiff and is liable for any damages the Plaintiff suffered.

41. On that basis alone the orders sought in the Originating summons would have been granted. That is not possible now since events have overtaken the relevance of the orders sought.

42. Therefore, in the exercise of discretion, the Court orders that the Plaintiff shall be entitled to any damages suffered, and expenses incurred when the SHPEB by intent or default caused the Plaintiff to come to Court to challenge the unlawful revocation of the tenure position.

43. As to damages there is no serious contention by the Defendants on the proposed summary of damages suffered and expenses incurred for being forced to come to Court. The only argument proffered in submissions is on who should pay for the damages and costs.

44. In respect of damages and costs, except for the 4^th Defendant the other 4 Defendants in unison have shown no interest and caused delays with repeated nonappearances to defend the claim. From what is before the Court they have in unison failed to give proper instructions to counsels engaged to act on their behalf.

45. Because of the Defendants’ dilatory conduct there shall be no order for damages to be assessed. Instead, the damages to be awarded shall (except for general damages) be the amounts claimed as costs incurred which is K105, 300.

46. As to general damages I am satisfied that the Plaintiff has been unnecessarily made to suffer the irreparable damages identified in the submissions of counsel. In the absence of any evidence to the contrary the award for general damages shall be K150, 000. Judgment shall be entered in favour of the Plaintiff for the sum of K255, 300. Interest of 2% is awarded on the principal award which shall be K5,106. The total award shall be K260,406.

47. Because the Third Defendant is the appointing authority for the First and Second Defendants the Third Defendant shall pay the Judgement debt as vicarious liability.

48. Any cost not covered in the award for expenses incurred shall also be borne by the Third Defendant to be agreed if not taxed.

________________________________________________________________
Danny Gonol Lawyers: Lawyers for the Plaintiff
In House Lawyers: Lawyers for the First, Second & Third Defendants
MaCKenzie Lawyers: Lawyers for the Fourth Defendant