HIGH COURT OF
SOLOMON ISLANDS
Civil Case No. 216 of
1997
ter">MICHAEL KONIA
-v-
ATTORNEY-GENERAL AND
PUBLIC SLIC SERVICE COMMISSION
="3">Before: Palmer, J.
Hearing: 21st November, 1997 -
Judgment: 16th Ja, 1998
Counsel: A. Nori for the Applicant; B.
Titiulu for the Respondents
PALMER J.:
The Applicant, Michael Konia, is a
Public Officer, working at the material times as
Assistant Deputy Commissioner
(Investigations) at the
Inland Revenue Division. By letter dated 17th May, 1996,
from the Office of the Prime Minister,
he was informed of
an offer for accelerated promotion to Super Scale 1
("SS. 1") for the post of Provincial
Secretary
and to be posted to Malaita Province. A copy of that
letter is annexed to the affidavit of Michael Konia.
filed on 9th September,, 1997 and marked "MK1".
A copy is also annexed to the affidavit of Waeta Ben
Tabusasi filed 19th November, 1997 and marked exhibit
"WBT3".
By an undated letter to the Chairman of
the Public Service Commission (the
"Commission"), (see exhibit
"MW) the
Applicant accepted the promotion and the job offered.
However, whilst waiting for his accommodation
to be
sorted out at the said Provincial Centre to enable him to
take up his posting, he received another letter
dated
23rd July, 1996, from the Office of the Prime Minister,
informing him that his promotion to Super Scale 1
to the
post of Provincial Secretary had been revoked and that he
was being transferred from the Administration
Cadre to
the Accounting Cadre (SIGAS), and to be
"reverted" back to Level 11 with effect from
17th July, 1996.
Not surprisingly this came as a shock
to the Applicant and despite numerous letters and appeals
to the Commission
seeking reinstatement to his former
level, the Commission failed to respond positively to his
complaints. As a
result the Applicant now comes to this
Court for relief seeking the following declarations:
(i) that the Applicant's demotion
from the post of Provincial Secretary to Provincial
Treasurer by the Second
Defendant was in breach of
the Public Service Act and Public Service
Regulations;
(ii) that the applicant should be
re-instated and posted to SS.1 level post or job;
(iii) that the applicant's wages to
be back-dated to the date of demotion;
(iv) that any deductions made to
the applicants wages after demotion be repaid to the
applicant;
(v) that all costs of the applicant
be paid by the respondents plus interest.
The Applicant in essence argues that
the Respondents do not have power to revoke his promotion
unless there are
grounds to warrant a demotion. He
submits that the action of the Public Service Commission
("Commission")
in revoking its earlier decision
to promote him to SS.1, and then "reverting"
him back to his former
level (Level 11), amounted to a
demotion. He argues this has been done in breach of the
Public Service Act and the Regulations. In other words,
the Commission does not have power to do what it has done
in his case.
The Respondent's submission in contrast
is four fold. First, it argues that the revocation of the
appointment of
the Applicant as Provincial Secretary was
done pursuant to its powers under section 116(1) of the
Constitution.
Secondly, that it was not correct to say
that the Applicant had been demoted because no
disciplinary measures had
been taken against him.
Thirdly, that the Applicant had in fact not been promoted
as he had not taken up duty at
his post as required in
the letter of appointment. He cannot be demoted
therefore. And fourthly, the Commission
relied on a
number of factors to justify the revocation of its
earlier decision (see paragraph 18 of the written
submissions filed on behalf of the Respondents).
It is important in my respectful view
to identify and distinguish right from the beginning, a
number of issues that
have been raised. First, the issue
of posting. This is covered by legislation; section 3(d)
of the Public Service Act as amended. It reads:
" Notwithstanding the
provisions of any other law, the Minister may,
There he is of the opinion
that it is in the
public interest to do so, after consulting the
Commission, cause all or any of
the following
acts to be done -
. . . . . . .
(d) approve and review
postings of public officers to within Central
Government Ministries and the
provinces."
Section 3(d) gives power to the
Minister for Public Service to approve posting of the
Applicant to Malaita Province
after consultation with the
Commission. It is not in dispute that by letter dated
17th May, 1996, and the minutes
of the Commission No.
379/96, the posting of the Applicant to Malaita Province
was approved.
It is important to appreciate that the
posting and promotion are very closely linked together.
The Applicant would
not have been eligible for posting to
take up the Post of Provincial Secretary to Malaita
Province without first
being promoted to SS.1 level. The
Post of Provincial Secretary is a SS.1 level post.
The second issue relates to his
accelerated promotion to SS.1 Level for the post of
Provincial Secretary to Malaita
Province. His promotion
has been described as "accelerated promotion"
for the reason that he was still
doing his trial
promotion to Level 11 as Assistant Deputy Commissioner
(Investigations) at the Inland Revenue Division
when this
promotion was offered (see Minute No. 379/96 of the
34th/96 Meeting of the Commission).
Other side issues relate to the
rescission of his appointment as Assistant Deputy
Commissioner (Investigations)
of Inland Revenue Division,
and the question of transfer from the Inland Revenue
Cadre to the Admin./Common Cadre.
The issue of promotion is one of the
crucial issues in this application. Was the Applicant
promoted? One of the
arguments (see paragraph 17 of the
written submissions of the Respondents) put forward by
the Respondents was that
no promotion occurred as it was
conditional upon the Applicant taking up his duties at
his new post.
If the Respondents submission is
correct, that no promotion took place, then that would be
the end of the Applicant's
case. On the other hand, if
there was a valid promotion, this Court would have to
address the question whether
the Commission had power to
revoke its earlier decision. The Commission argues it has
power pursuant to section
116(1) of the Constitution (see
paragraph 15 of the written submissions of the
Respondents).
The power to effect promotions and
transfers, is contained in Parts III and V respectively,
of the Public Service
Commission Regulations, 1979.
Regulation 39 gives power to the
Commission to approve transfers from one cadre, group or
class to another at the
same grade level. Of particular
relevance is regulation 40 which states:
"Where a transfer would
involve promotion, the case will be considered
under the procedure
for substantive promotion in
Part III of the Regulations, except that the
officer's seniority will
not be taken into
account."
It is not in dispute and without doubt,
in my respectful view, that regulation 40 applies to the
facts of this case.
Not only has there been a transfer,
from the Inland Revenue Cadre to the Admin./Common Cadre,
but that it had been
accompanied by a promotion to SS.1.
At the same time, the posting of the Applicant to Malaita
Province as Provincial
Secretary was being approved. So
in a way, three things were being considered together at
the same time; his transfer,
promotion and posting.
Regulation 35 of Part III of the
Regulations apply to the Applicant's case. It reads:
"All substantive
promotions to Level 5 and above shall be subject
to six months trial, extendable,
exceptionally up
to two years at the discretion of the Commission.
If after due warning an officer
on trial does not
reach the required standard he/she will, subject
to the concurrence of the Commission,
be
demoted."
The Applicant's accelerated promotion
to SS.1 clearly comes under regulation 35. It is clear
beyond doubt that the
power to effect a substantive
promotion in this case, vests in the Commission.
Normally, a six months trial period
is given, but may be
extended up to two years at the discretion of the
Commission. After the six months trial period
lapses, the
Commission is obliged to decide whether to confirm a
promotion or not, or to extend the trial period.
Part (b)
of regulation 35 provides that if the officer on trial
does not perform to the required standard, he/she
will be
demoted by the Commission.
The issue whether a promotion had been
effected in the case of the Applicant is a question of
fact. To determine
that question, I must turn to the
evidence before this Court.
The Respondents take the view that the
promotion of the Applicant was subject to and effective
only from the date
he takes up duties at the Provincial
Centre. This he failed to do and accordingly was never
promoted. The Respondents
rely on the letter notifying
him of the posting and promotion dated 17th May, 1996
(Exhibit "MK 1") at
paragraphs (1) and (2).
The Applicant on the other hand takes
the view that a valid promotion had been effected and
that thereby the Commission
was bound to comply with the
Public Service Act and Regulations in any further
dealings thereafter.
What evidence is there with respect to
the Applicant's promotion? The exhibits provided by the
learned Chairman
of the Public Service Commission, in his
affidavit filed 19th November, 1997, have been very
helpful in assisting
the Court come to a clear view on
this issue, and to that extent, I am grateful.
First, exhibit "WBT1". This
is a letter dated 7th May, 1996 from the Office of the
Prime Minister to the
Secretary Public Service
Commission. It seeks the Commission's approval for inter
alia, the promotion of the Applicant
to the post of
Provincial Secretary, Level SS. 1 on six months trial.
Paragraph (1) of that letter reads:
"I am directed to seek
the Commission's concurrence for the transfer, promotion
and posting of Mr M. Konia. "
And paragraph (3) reads:
" As directed per
Minute attached by the Prime Minister, it is
recommended that Mr Konia be
elevated to SS1
Level as Provincial Secretary and to be posted to
Malaita Province. Accordingly,
I seek the
Commission's concurrence on the following:
(a) that Mr Konia be given a
transfer from Inland Revenue Cadre to
Admin./Common Cadre.
(b) that he be given
acceleration promotion to Provincial Secretary,
Level SS1 on 6 months trial.
(c) that he be posted to
Malaita Province." [Emphasis added]
The next document, exhibit
"WBT2" in my respectful view is the determining
document on promotion. It is
a copy of an extract from
the minutes of the 34th/96 Meeting of the Commission held
on Friday 10th May, 1996. The
relevant paragraph of
Minute 379/96 reads as follows:
" . . . the Commission
therefore DECIDED as follows:
(a) That since Mr M Konia
would not be able to satisfactorily serve the six
months trial period
granted by the Commission
under its Minute PSC 279/96, it therefore decided
to RESCIND its decision
and further
decided that Mr Konia be transferred on promotion
from Inland Revenue Cadre to Administration
Cadre
as Provincial Secretary Level SS1 on six months
trial wef 1015196; and
(b) That he be posted to
Malaita Province with immediate effect." [Emphasis
added]
A number of vital matters should be
noted from this very important decision of the
Commission. First, there is a
rescission of its earlier
decision in which the Applicant had been promoted to
Level 11 as Assistant Deputy Commissioner
(Investigation)
at the Inland Revenue Division. The power of the
Commission to rescind its earlier decision to
promote the
Applicant to Level 11 has been misconstrued with respect
in this instance. Though I accept no injustice
and no
issue has been raised by the Applicant; primarily because
the purpose for which that decision to
"rescind" had been taken was for the benefit of
the Applicant. It is important nevertheless to understand
that the Commission cannot unilaterally rescind an
earlier decision to promote where it has been accepted
and in force. The consent of the Applicant must be
obtained. In the peculiar circumstances of this case, the
correct approach would have been to inform the Applicant
of the proposed accelerated promotion, then get his
consent
in writing as to the cancellation or revocation
of his trial promotion to Level 11. That would then have
paved
the way for his promotion to SS. level. The
Commission must be wary at all times of the requirements
of natural
justice, in particular where its decisions are
bound to affect the person concerned.
In the facts of this case, I think it
can be implied that the cancellation of the trial
promotion to level 11 had been agreed to by the Applicant
by his subsequent conduct. It would be advisable
nevertheless, that in such cases the Commission does get
the consent of the person affected in writing and be
given an opportunity to be heard before any final
decisions are made.
The second and vital matter which can
be noted from the decision of the Commission is the very
clear and plain reference
inter alia, to the promotion of
the Applicant to SS.1. It couldn't be clearer. Further,
the Commission did not
stop there. It went on to specify
the date on which the promotion and the trial period
shall take effect; 10th
May, 1996. This in my respectful
view is crucial to the question of promotion. The effect
of this decision must
be properly understood. What it
means is simply this. Subject to acceptance by the
Applicant, the date of his trial
promotion shall commence
with effect from 10th May, 1996.
Now, some confusion appears to have
been generated by the letter from the Office of the Prime
Minister dated 17th
May, 1996 (exhibit "MK1"),
which purports to give a different date as to when the
trial promotion was
to commence; on assumption of duties.
Presumably this meant the date he assumes duty at his
duty station; Auki,
Malaita Province.
The argument sought to be advanced by
the Respondents was that the promotion of the Applicant
was conditional upon
him assuming his duties at his duty
station. Since he never assumed those duties, his
promotion was never implemented
or effected; meaning no
promotion ever took place at the end of the day.
Unfortunately, there is no evidence
whatsoever to suggest that this new condition or term had
been sanctioned by
the Commission, or that a variation
had been made to the original decision of the Commission.
It may have been
different too, if the decision of the
Commission had been a general promotion with no date of
commencement, leaving
that a matter for the Office of the
Prime Minister to fix. That was not so in this case. In
the circumstances,
the Office of the Prime Minister was
obliged in the absence of any evidence to the contrary,
to implement the decision
of the Commission without any
variations.
Also, as a general rule of
interpretation, where there is conflict or possible
conflict in the facts of this case, the
decision of the
Commission must prevail.
This brings me to consider briefly the
document marked exhibit "MK2"; the letter of
acceptance by the
Applicant. The effect of that
acceptance in my respectful view must be construed as
referring to the offer of promotion
made by the
Commission to be effective from 10th May, 1996. That
letter of acceptance effectively sealed his trial
promotion as commencing from 10th May, 1996. Where does
this leave the term included in the letter dated 17th
May, 1996, that his trial promotion was to be effective
from date of assumption of duties. With respect it should
be clear, that there is no evidence whatsoever that would
support any such variation to the date of commencement
of
the trial promotion by the Office of the Prime Minister.
Rather, the only valid and proper decision to be
implemented by the Office of the Prime Minister was that
as contained in Minute 379/96 in the 34th/96 Meeting of
the Commission. If the Office of the Prime Minister
wishes to change any part of that decision, then they
should have referred the matter back to the Commission
for the change. This was not done unfortunately, and in
the specific circumstances of this case, the decision of
the Commission must prevail.
But even if the variation contained in
the letter of 17th May, 1996 is accepted as binding on
the Applicant, the
evidence adduced showed that the
failure of the Applicant to report to his duty station
was not of his own making
but of other supervening
factors beyond his control. See for instance, the letter
of 3rd June, 1996, (exhibit "WBT4"),
which
showed that the posting of the Applicant to Malaita
Province had been hampered by the Provincial Executive
of
Malaita Province. As a matter of law however, the
Provincial Executive does not have power to stop the
Applicant from taking up his duties at his duty station.
They may object and disagree with the posting, but at the
end of the day, they do not have power to stop the
Applicant from taking up his duly assigned duties. It is
unfortunate that the Provincial Executive had seen fit to
act in this manner. One of the very things which the
Executive had complained about was the very thing which
they themselves had not done; to go through normal
procedures and proper channels to challenge the promotion
and posting of the Applicant by the Commission and the
Minister responsible. Defiant behaviour must not be
encouraged because it sets bad precedence and has a way
of repeating itself.
The subsequent actions of the
Commission thereafter however did not assist to
resolve this matter. Instead, it was further confused and
complicated by the decision
of the Commission to revoke
its previous decision.
This ultimately brings me to consider
the next vital issue in this case, that of the purported
revocation by the
Commission of the promotion of the
Applicant. But before embarking on that subject, the
following factors supporting the conclusion that
there was a valid promotion must be mentioned. These
include the contents
of the following exhibits:
(a) Exhibit "WBT6", at
paragraph (1). This was a letter written by the Chief
Administration Officer
on behalf of the Secretary to
the Prime Minister dated 15th July,1996, in which it
was acknowledged that
there had been an appointment
(same as a promotion) to the post of Provincial
Secretary SS.1.
(b) Exhibit "WBT7". This
is the minutes of the 52nd/96 Meeting of the
Commission in which the
submission to revoke the
previous decision of the Commission was considered.
The minutes repeatedly refer
to the promotion of the
Applicant which was to be revoked. If no promotion
had been effected, then why
the need for a revocation
by the Commission?
(c) Exhibit "WBT8". This
is the letter of 23rd July, 1996, written to the
Applicant advising him
of the decision and actions of
the Commission to revoke its earlier decision to
promote him to SS. 1 level.
The same comment in
paragraph (b) above apply.
Finally, it is also significant that
the Applicant had already begun to receive salary at the
SS.1 level at the
time he was notified of the revocation
by the Commission. If no promotion had been effected, no
salary at that
level would have been authorised to be
paid.
When all these documents are considered
together, it is clear beyond doubt that a promotion had
been effected. The
submission therefore that the
Applicant had never been promoted cannot be sustained in
the light of the evidence
before this Court.
This brings me to the question, whether
in the circumstances the Commission had power to revoke
its earlier decision
to promote the Applicant. In his
written submissions before this Court, at paragraph (15),
Mr Titiulu relied on
section 116 (1) of the Constitution
to support the Commission's decision to revoke. Is this
correct?
Section 116(1) reads:
"Subject to the
provisions of this Constitution, power to make
appointments to public offices
(including power
to confirm appointments) and to remove and to
exercise disciplinary control over
persons
holding or acting in such offices is vested in
the Public Service Commission."
Section 116(1) gives power to the
Commission inter alia, to remove and to exercise
disciplinary control over persons
holding or acting in
public offices. There is however a clear distinction in
the power to remove as opposed to
a purported power to
revoke an earlier decision. The Commission may
unilaterally revoke an earlier decision, provided
it has
not been communicated and accepted, and thereby binding.
On the other hand, if a decision has been implemented,
it
may revoke or cancel only by consent. This means that the
person affected would have to be notified, given an
opportunity to be heard before giving his consent. Apart
from those circumstances, the Commission simply does not
have power to revoke an earlier decision; which was the
case here.
In the facts of this case, not only was
the Applicant not notified of the intentions of the
Commission to revoke
his trial promotion, but he was not
given an opportunity to be heard; this amounts to a
denial of his right to
be heard and a breach of the
principles of natural justice. But even if he had been
given opportunity to be heard,
it is clear on the facts
that the Applicant would not have given his consent in
any event. That rules out any suggestions
that the
revocation may have been done by consent.
The Commission is a creature of
statute, and therefore derives its powers from the Act
and Regulations. It does
not have absolute powers to hire
and fire, promote and demote. To exercise any of those
powers, it must refer to
the law to define the limits of
its powers. On that basis, the power to remove must be
understood in the light
of what the Act and Regulations
say.
Part VII, headed Discipline for
instance, describes the procedure to be adopted when
disciplinary measures are undertaken.
It is clear on the
facts that the Commission did not at any time seek to
rely on any of those provisions to justify
or support its
decision to revoke the trial promotion of the Applicant.
In fact, in paragraph 16 of his written
submissions, Mr
Titiulu expressly concedes that regulation 60 does not
apply to the facts of this case, as no disciplinary
actions had been instituted against the Applicant.
Parts VIII and IX of the Regulations do
give powers of removal in specific circumstances but it
is clear those provisions
are not relied on and do not
apply in any event.
The only other provision which might
possibly assist the Respondent's case if relevant is part
(b) of regulation
35. It reads:
" . . . . If after due
warning an officer on trial does not reach the
required standard he/she will, subject to
the concurrence of the Commission, be
demoted."
The Respondents however have repeatedly
denied that there was any demotion as the Applicant had
not been subject
to any disciplinary actions. In this
instance, that would also imply that he had not been duly
warned for sub-standard
work. On the facts, it is clear
this provision does not apply. Where does this leave the
actions of the Commission?
Respectfully, out in the cold.
All the "good reasons" listed in paragraph 18
of the written submissions
of the Respondents, and all
the matters it had taken into account, do not and cannot
give jurisdiction to the Commission
to revoke an earlier
decision that had been accepted and thereby binding.
According to law, the Commission's action
amounted to
nothing less than a demotion. This was where the
confusion and mistake had arisen. It thought it had
the
power to revoke an earlier decision but overlooked the
legal effect and consequences of that decision.
I am satisfied the orders sought must
be granted with some variations.
="3">ORDERS OF THE COURT:
1. DECLARE THAT THE APPLICANT DEMOTION FROM THE POST OF PROVINCIAL SECRETARY TO
PROVINCIAL TREASURER BY T BY THE SECOND
DEFENDANT WAS IN
BREACH OF THE PUBLIC SERVICE ACT AND THE PUBLIC SERVICE
REGULATIONS, 1979;
2. CONSEQUENTIALLY DECLARE THAT
THE APPLICANT HAD NEVER BEEN LAWFULLY DEMOTED AND
THEREFORE STILL THE SUBSTANTIVE
HOLDER ON TRIAL PROMOTION
AT SUPER SCALE 1 LEVEL, OF THE POST OF PROVINCIAL
SECRETARY. (Note, in view of the unfortunate
circumstances surrounding this case and the time lapse
involving the trial promotion of the Applicant, the trial
period given in my respectful view should be extended for
a further period of six months from date of this
judgment.)
3. DECLARE THAT THE APPLICANT
IS ENTITLED TO ALL NORMAL BENEFITS DUE WHILST ON TRIAL
PROMOTION AT THAT LEVEL (SS.1),
INCLUDING WAGES DUE FROM
DATE OF DEMOTION TO THE PRESENT.
4. ORDER THAT ALL THE COSTS OF
THE APPLICANT ON A SOLICITOR AND OWN CLIENT BASIS BE PAID
BY THE SECOND RESPONDENT.
ter">ALBERT R. PALMER
THE COURT.
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