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Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI ISLANDS
APPELLATE JURISDICTION
CIVIL APPEAL NO.ABU0061 OF 2008
[High Court Suva Judicial Review No. HBJ2 of 2008]
BETWEEN:
PERMANENT SECRETARY FOR EDUCATION
ATTORNEY-GENERAL OF FIJI
Appellants
AND:
SAVITA DEVI NAIR
Respondent
Coram: Hon. Justice Sosefo Inoke, Justice of Appeal
Hon. Madam Justice Anjala Wati, Justice of Appeal
Hon. Justice William Marshall, Justice of Appeal
Date of Hearing: Wednesday, 1st September 2010
Counsel: Ms S Levaci for the Appellants
Mr S Leweniqila for the Respondent
Date of Judgment: Wednesday, 5th January 2011
JUDGMENT
Sosefo Inoke, JA
1. I agree with judgment of William Marshall JA and with his reasons for dismissing this application for judicial review.
Anjala Wati, JA
2. I also agree with the judgment and reasons of William Marshall JA.
William Marshall, JA
3. By an application for leave to apply for judicial review dated 23rd January 2008 supported by an affidavit sworn on 22nd January 2008, Mrs. Savita Devi Nair sought judicial review of a decision of the Permanent Secretary for Education made on or about 29th November 2007 to transfer her out of her post of Vice Principal at Rishikul Sanatan College to the post of Vice Principal at Mahatma Gandhi Memorial High School. This is an appeal from a judgment of Madam Justice Jocelyn Scutt dated 14th August 2008 granting judicial review, issuing Certiorari to quash the transfer and making further orders.
The facts
4. Mrs. Savita Nair joined the Civil Service as a career teacher on 24th January 1983. She was posted on promotion to Rishikul Sanatan College as Assistant Principal on 1st February 2001. Her service in this post was exemplary and on February 2007 she was promoted to Vice Principal of Rishikul Sanatan College at ED2A grade.
5. At some point in or before 2007 Mr. Mahen Pal was appointed Acting Principal of Rishikul Sanatan College. This was to become a controversial appointment and after complaint led to an Education Department inquiry on November 2007.
6. The Education Department has had a policy of transferring staff and teaching staff
were reminded of this by Public Service Commission No. 21 of 2007 dated 18th July 2007 entitled "Rotation of Staff after Tour of Duty".
Inter alia it says:
"Officers are being moved as they have been too long on one posting and also to address the concern that this could lead to the officers becoming lethargic and prone to abuse etc. The rotations will also provide for the necessary professional development and proper succession planning. Both the service needs and the welfare of individual officers are being taken into consideration".
7. Before the controversy at Rishikul Sanatan College arose, Mrs. Savita Nair had apparently been earmarked for a transfer to Mahatma Ghandi High School as Vice Principal. This was because a vacancy was due to arise there. The vacancy arose out of a strict policy of not having husband and wife teams, especially at senior levels, serving in the same school. Although considered in advance these changes were not intended to be implemented prior to the start of the new school year on 21st January 2008. Transfers were an accepted part of a teaching career within the Civil Service. When they came they might or might not be welcome to the transferee. But they were accepted as matters without any disciplinary implications. No doubt they had always been used from time to time when there was disunity and tension within a particular school. In this context they might be perceived as a black mark by the transferee. But from the point of view of management the interest of the individual school entity was paramount. So long as administrators intended their administrative decisions purely from the point of view of the interest of the school in question, the transferee's objections, quite properly, are unlikely to prevail. In Circular No. 21/2007 there is the sentence: "Both the service needs and the welfare of individual officers are being taken into consideration".
But individual officers embroiled in conflict might not agree with the Department as to their own welfare. After all a transfer, whatever the transferee might think, is neither a disciplinary measure nor, in most situations, a black mark.
8. The framework for transfers in Public Service (General) Regulations 1999 is Regulation 13. Regulation 13 is headed "Notice of Transfer" and says:
"13 – The Commission may transfer an employee without the employee's agreement only if the Commission has:-
(a) given the employee 28 days written notice of the transfer;
(b) given the employee an opportunity to state his or her views about the matter; and
(c) considered any views stated by the employee."
9. In early November 2007, complaints from parents and teachers had reached the point that the education authority sent Mr. Hewson and Mr. Leawere, who are probably experienced in investigating staff turmoil situations at schools, to interview staff and other relevant persons at Rishikul Sanatan College. No doubt they interviewed a number of persons mostly from the staff. However it seems that many were reticent to complain about the Principal. It seems that Mrs. Savita Nair spoke frankly and informed the investigators as to what she believed the true situation at Rishikul Sanatan College was.
10. On 29th November 2007 Mrs. Savita Nair received a 28 day notification of transfer to Mahatma Ghandi High School as Vice Principal
there, and was told to report there on the first day of the new school year on 21st January 2008. Probably there were two reasons
for this. On the one hand the move had been provisionally agreed within the authority as one of a number of moves by the authority
earlier in the year. On this basis the Notice was already due on 29th November 2007. On the other hand the investigation had shown
that at least at face value, Mr. Mahen Pal was supported by all except the Vice Principal. So it must have seemed reasonable to the
authority in the interests of the college to transfer Mrs. Savita Nair at this time with a view to restoring peace at the troubled
college.
11. Mrs. Savita Nair's letter of objection of 3rd December 2007 to the Permanent Secretary for Education is important and is here
set out in full:
"Dear Madam
Re: OBJECTION TO MY TRANSFER TO M.G.M. HIGH SCHOOL AS VICE PRINCIPAL (ED 2A)
Refer to Director Secondary's fax memo dated 29/11/2007 regarding my transfer as Vice Principal, M.G.M High School with effect from 21/01/2008
I strongly object to my transfer to the above school with the following reasons:
Yours faithfully
SAVITA D. NAIR (Mrs.)"
12. Although lack of good faith is mentioned in this letter, bad faith was not alleged as a ground for judicial review in the application dated 23rd January 2008. Regulation 13 does not require a written reply to this objection. But the Permanent Secretary has to consider the objections. But giving consideration to the transferee's views is not the same as agreeing to cancel the transfer. It is probable that a fair consideration of the views of Mrs. Savita Nair resulted in an even stronger view that the transfer was necessary.
13. If the administration thought that Mrs. Savita Nair was the only person against Mr Mahen Pal and his leadership they must have been surprised by a management lockout of Mr Mahen Pal when Rishikul Sanatan College opened for the new school year on 21st January 2008. On 22nd January 2008 the Fiji Times reported the flavour of the event as follows:
"More than a thousand students at the Rishikul Sanatan College in Nasinu will begin classes today without a principal, after he was banned from entering the school premises yesterday over issues regarding his attitude.
This news did not seem to affect students and teachers who applauded the decision by the school manager to kick their principal out.
There was tension at the school yesterday morning when management stopped the principal Mahendra Pal from entering his office.
School manager, Vijay Nair said complaints were submitted to him in the form of letters from other teachers and parents who raised concerns about Mr Pal's attitude behavior.
Mr Nair said Mr Pal had been the Principal at the school since 2005 shortly before complaints were received against him for allegedly causing duress to teachers and parents.
He was hardly around when parents wanted to see him and teachers have brought complaints about his attitude of finger point and being unfair. We met with the minister today at his office and he has assured us that the position will be re-advertised.
Mr Nair claimed that proper procedures were not followed when Mr Pal was appointed as principal.
When contacted yesterday Mr Pal said he did not want to comment on the allegations but referred all questions to the ministry.
Interim Education Minister Filipe Bole acknowledged he was aware of the incident and announced the assistant principal Praveen Sharup would be in charge until a new principal was appointed."
14. As for Mrs. Savita Nair, she does not say whether she was active or inactive in the lead up to the lockout of Mr. Mahen Pal of 21st January 2008. But we know from a memorandum within the Department that on 11th January 2008 she went to see Mr. J Buwawa the Acting Deputy Secretary Primary and Secondary and lodged another verbal appeal against her transfer to Mahatma Ghandi High School. This memorandum written by Mr. Buwawa sought a written reply to Mrs Savita Nair's letter of 3rd December 2007. It was addressed to the group of civil servants interested and consulted upon the decision. I shall return to this memo later.
15. In her first affidavit Mrs. Savita Nair says:
"When I reported for duties on Monday 21st January I noticed a commotion at Rishikul and found out that the management had locked the Principal out."
In my view it is unlikely that Mrs. Savita Nair was unaware of the intended lock out of the Principal.
16. The response of the education authority to Mrs. Savita Nair's attendance at Rishikul Sanatan College rather than Mahatma Ghandi High School on 21st January 2010 was to send the Deputy Education Officer (Central) to speak with her.
DEO (C) told her that she was supposed to report on this day to Mahatma Ghandi High School. Mrs. Savita Nair replied that she would only go to Mahatma Ghandi High School once the Ministry had responded to her objection of 3rd December 2007.
17. On the next day 22nd January 2008 DEO (C) again visited Mrs. Savita Nair at Rishikul Sanatan College and brought her a copy of the memorandum of Mr. Buwawa referred to above. By 22nd January 2008, the original memorandum had been overwritten with responses and minutes of instruction.
18. DEO (C) did so for two reasons. His first reason was because it contained a minute to Mrs. Savita Nair dated 22nd January 2008 under his signature directing her:
"Please report to MGM this morning."
DEO (C) did so because the previous day, probably after his report of his conversation with Mrs. Savita Nair, he had asked for a decision or comment and/or a direction from his superiors. The response to this was for Mr. J Buwawa the Acting Deputy Secretary (Primary and Secondary) to minute the Deputy Secretary Educations on the same day stating:
"PSE's decision is for her to proceed to MGM."
Upon receipt of this minute the Deputy Secretary (Education) minutes (again on 21st January 2008) the DEO (C):
"Please take note of (c) below."
The notation (c) refers to the last mentioned minute of 21st January 2008 stating the Permanent Secretary for Education's decision on the matter.
19. It follows that part of DEO (C)'s first reason for giving Mrs. Savita Nair a copy of the J Buwawa memorandum plus later minutes was to show Mrs. Savita Nair that the Permanent Secretary for Education had made a decision on the transfer on 21st January 2008 after considering Mrs. Savita Nair's letter of 3rd December 2008 and points therein and after receiving comments from the Deputies.
20. Deputy Education Officer (Central)'s second reason in handing the document to Mrs. Savita Nair on 22nd January 2008 was to inform her of both the consideration given to her letter of 3rd December 2008 and to the reasons for maintaining the transfer decision despite the transferee's objections.
21. What J. Buwawa wrote on 11th January 2008 to Deputy Secretary (Education) was as follows:
"DSE
Re: Mrs Savita Nair, TPF 43551 VP ED2a – Rishikul Sanatan College
The officer came to see me this morning to lodge another verbal appeal against her transfer to MGM High School, as outlined in her notification of transfer.
Her written appeal, dated 3rd December 2007 was also marked to your office and I am still awaiting a written response from Secondary.
Grateful if a response is forwarded from your office by 4.00pm on Monday, 14 January 2008. Please also include in your response the arrangements for her replacement at Rishikul Sanatan College.
Vinaka.
J Buwawa
A/DSPS"
22. In reply on 17th January 2008 at a time when it was believed that only Mrs. Savita Nair had issues with Mr. Mahen Pal as Principal of Rishikul Sanatan College and before the lockout of 21st January 2008, the Deputy Secretary for Education wrote to Mr. J. Buwawa:
"(1) Humble apology for the belated reply.
(2) The officer cannot appeal because transfer is within the district.
(3) The confirmed AP of MGM is the wife of the new MGM Principal who was earmarked to be Acting Vice Principal.
(4) Mr Dhirendra Lal has been transferred from TET to be VP at Rishikul. He is a confirmed ED2A equivalent to the VP level of the school Rishikul.
(5) Investigation on the allegations on the Principal concluded that only the Vice Principal of the School is against the Principal hence the need to throw her out as not to disturb the Principal's organization in the school.
Submitted
(signature illegible)
DSE
17.1.80"
23. These are the facts that are relevant to the relief claimed. As the Court understands the position while Mrs. Savita Nair immediately pressed on with her judicial review, nonetheless she continued her successful career as a secondary school teacher as Vice Principal of Mahatma Ghandi Memorial High School. I will reconsider the facts after considering the principles of public law relevant to this application for judicial review.
The legal principles of public law pertinent to this application for judicial review
24. Judicial review of administrative action developed from very little to become a comprehensive system of public law in the second half of the twentieth century in England. The system of prerogative writs had been vigorously developed in Victorian times by the High Court Judges' determination to supervise the legality of the lower courts, and official bodies to whom state power was being systematically delegated. Of the key developments in the late 20th century, the one that is most pertinent to the present facts is the House of Lords decision expanding supervision to include administrative decisions. This was in Ridge v. Baldwin [1963] UKHL 2; [1964] AC 40 where the Brighton Watch Committee acting under statutory powers had dismissed the Chief Constable without following the rules of natural justice. In the Court of Appeal the view had been that since it was not a judicial or quasi judicial enquiry, the decision of the Watch Committee was not amenable to judicial review and the rules of natural justice did not apply to the decision. The House of Lords decided otherwise.
25. In passing, it should be noted that judicial review in Fiji under Order 53, with very minor differences, mirrors the situation that applied in England between 1977 when Order 53 was amended to provide a framework for the continuing development of administrative law, until 2000 when significantly different rules and procedures were introduced under the Civil Procedure Rules in 2000 and in particular, Civil Procedure Rule 54. Post 2000 decisions and procedures in England may not always be relevant under the Fiji legal framework.
26. After Ridge v. Baldwin (supra) any of the very many of Civil Service and other public sector decisions were potentially within the scope of judicial review. Judicial review could easily get out of control. If it did it would undermine rather than assist the rule of law in supervising administrative decisions. There was also a perceived need for keeping administrative law out of ordinary civil actions and matters. Conversely if the principal relief claimed was based on the application of administrative law to public law decisions, it was felt that the applicant should only be allowed to proceed for judicial review under Order 53. Another area of concern was decisions of a public authority that were of a management or operational nature. These factors have created the concepts of decisions not amenable to judicial review and decisions that do not have a sufficient public law element.
27. In considering whether the decision to transfer Mrs Savita Nair is amenable to judicial review, this Court need only refer to two English decisions. The first of these is R v. East Berkshire Health Authority Ex Parte Walsh [1984] EWCA Civ 6; [1985] 1 QB 152. The second is Regina (Tucker) v. Director General of the National Crime Squad [2003] 1 CR 599. In these cases there are references to many other cases. It may be necessary to refer to these indirectly.
28. In Walsh the applicant was a senior nursing officer employed by East Berkshire Health Authority which is a public body. There was a dispute between doctors and nurses at the hospital where Mr Walsh was employed. That resulted in an independent enquiry which criticised Mr Walsh's actions and recommended his dismissal. The employment framework for nurses in the Health Service was fixed by statute on the basis of nationally agreed terms for the employment of nurses at all levels. Under the contractual terms the District Nursing Officer, Miss Cooper, under the general agreed employment framework, dismissed Mr Walsh. Mr Walsh applied for compensation for unfair dismissal from the industrial tribunal. At the same time he invoked public law remedies by way of judicial review. In his judicial review he was claiming that the delegated power used by Ms Cooper to dismiss him was ultra vires and void, and seeking certiorari in respect of the dismissal and the appeal hearings. When the matter came before the Divisional Court, Mr Justice Hodgson heard a preliminary issue on two grounds as to whether judicial review could apply and decided in Mr Walsh's favour. The authority appealed.
29. In the Court of Appeal the leading judgment was given by Sir John Donaldson M.R. Explaining that Parliament could give the public authority "public law rights" but there was an alternative for Parliament, at page 165 he said:
"Alternatively it can require the authority to contract with its employees on specified terms with a view to the employee acquiring 'private law' rights under the terms of the contract of employment. If the authority fails or refuses to thus create 'private law' rights for the employee, the employee will have 'public law' rights to compel compliance, the remedy being mandamus requiring the authority so to contract or a declaration that the employee has those rights. If, however, the authority gives the employee the required contractual protection, a breach of that contract is not a matter of 'public law' and gives rise to no administrative law remedies."
30. Sir John Donaldson M.R. then considered whether the delegation to Miss Cooper of the Authority's power of dismissal could raise a public law issue. He concluded that it was an issue that did not raise a public law issue and that it could be resolved on the basis of breach of the contract of employment.
31. Sir John Donaldson M.R. then said at page 166 A – C:
"I therefore conclude that there is no 'public law' element in the applicant's complaints which could give rise to any entitlement to administrative law remedies. I confess that I am not sorry to have been led to this conclusion, since a contrary conclusion would have enabled all National Health Service employees to whom the Whitley Council agreement on conditions of service apply to seek judicial review. Whilst it is true that the judge seems to have thought that this right would be confined to senior employees, I see no grounds for any such restriction confined to senior employees, I see no grounds for any such restriction in principle. The most that can be said is that only senior employees could complain of having been dismissed in the exercise of delegated authority, because it is only senior employees who are protected from such dismissal. All employees would, however, have other rights based upon the fact that Parliament had intervened to specify and, on this view, protect those conditions of service as a matter of public law. In my judgment, this is not therefore a case for judicial review."
32. Lord Justice May agreed with the reasoning of the Master of the Rolls and added at page 169H to 170B
"Further, I think that at the present time in at least the great majority of cases involving disputes about the dismissal of an employee by his employer, the most appropriate forum for their resolution is an industrial tribunal. In my opinion the court should not be astute to hold that any particular dispute is appropriate for consideration under the judicial review procedure provided for by R.S.C., Ord.53. Employment disputes not infrequently have political or ideological overtones, or raise what are often described as matters of principle: these are generally best considered not by the Divisional Court but by an industrial tribunal to the members of which, both lay and legally qualified, such overtones or matters of principle are common currency."
33. Lord Justice Purchas also agreed with the reasoning of the Master of the Rolls and he added at page 179 FG:
"In order that there should be a remedy sought by the applicant which makes available to him the relief granted by R.S.C., Ord.53, it is clear that there must be something more than a mere private contractual right upon which the court's supervisory functions can be focussed. Section 31 of the Supreme Court Act 1981, although recognising the wider remedies available under R.S.C., Ord. 53, is no statutory justification for extending the area of jurisdiction beyond that of a supervisory function which is to be directed in relation to remedies sought against public or similar authorities whose actions under their statutory or other powers call for the court's intervention."
34. In the second case referred to above which is R (Tucker) v. Director General of the National Crime Squad [2003] EWCA Civ 57; [2003] ICR 599 the context was slightly different. It was not a dismissal case but it was an operational or management decision of the relevant public authorities which were entities within the police forces of England and Wales. Detective Inspector Tucker of the Derbyshire Constabulary in 1996 was seconded to what was to become the National Crime Squad for a period of five years. On joining he accepted the secondment on the basis that:
"The Director General reserves discretion to terminate an officer's secondment without notice."
In the context of a covert operation into drug related crime, which was monitored by the authority, ten policemen including some national crime squad officers were arrested on suspicion of drug related offences. Two others were returned to their home forces to face disciplinary proceedings arising out their service with the National Squad. Mr Tucker was affected in that the Director General used his power to transfer him without notice and Mr Tucker was ordered to report to Derbyshire Constabulary immediately. When he did so he was handed a piece of paper stating that his fault had been lack of management skills and for that reason he was being transferred back to his home force with immediate effect. He was assured that he was not in the frame for prosecution or disciplinary offences arising out of the covert operation.
35. Mr Tucker was also told that he could not get further reasons on the grounds that the information was sensitive and confidential. It would be contrary to operational needs if Mr Tucker were to be further informed. Since Mr Tucker believed that the manner of his transfer had been badly handled and he could not get further information relevant to the decision he made an application for judicial review. He was concerned that his colleagues would assume that he had been involved in wrongdoing in the covert operation. At first instance Hodgson J found that the application was susceptible to judicial review but that the Director General who had reviewed and upheld the decision, had acted fairly notwithstanding the absence of reasons for this decision and the lack of opportunity for Mr Tucker to make representations. Hodgson J found that there was sufficient public law element, but, on the facts, found that there was no breach of natural justice and dismissed the application for judicial review. Mr Tucker appealed and the Director General cross appealed on whether there was sufficient public law element.
36. The leading judgment in the Court of Appeal was given by Scott Baker L.J. with whom Aldous L.J. and Sir Philip Otton agreed.
37. At page 605 paragraph 14 Lord Justice Scott Baker referred to what he regarded as the starting point in deciding sufficient public law element. He said:
"The starting point, as it seems to me, is that there is no single test or criterion by which the question can be determined. Woolf L.J., as he then was, said in R v. Derbyshire County Council ex parte Noble [1990] 1CR 808, 814E:
Unfortunately in my view there is no universal test which will be applicable to all circumstances which will indicate clearly and beyond peradventure as to when judicial review is or is not available. It is a situation where the courts have, over the years, by decision in individual cases, indicated the approximate divide between those cases which are appropriate to be dealt with judicial review and those cases which are suitable dealt with in ordinary civil proceedings."
38. Scott Baker CJ referred also to Lord Oliver's opinion in Leech v. Deputy Governor of Parkhurst Prison [1988] UKHL 16; [1988] AC 533 at 583B where Lord Oliver said:
"In my judgment, the susceptibility of a decision to the supervision of the courts must depend, in the ultimate analysis, upon the nature and the consequences of the decision and not upon the personality or individual circumstances of the person called upon to make the decision."
39. This was said by Lord Oliver on the issue of whether disciplinary decisions over prisoners made by Prison Governors rather than Boards of Visitors were susceptible to judicial review. Earlier authority had tried to distinguish them on the basis that in the Prison Governor's hands, such decisions were administrative. What Lord Oliver concluded was that the nature of the Governor's powers over prisoner's offences when examined was undoubtedly disciplinary with the consequences of punishment, with the result that they were subject to judicial review. What Scott Baker LJ takes out of this, in context, is surely that the nature of the transfer back to the Home force decisions is not disciplinary but operational and managerial.
40. At paragraph 32 at page 609 AC Lord Justice Scott Baker returns to this:
"Nature of the decision
32. In contradistinction to the decision with regard to the other officers, there was no disciplinary element to the decision in the Appellant's case. He was returned to his force because the Respondent had lost confidence in his ability to carry out his responsibilities. It seems to me that this was an entirely operational decision similar to the kinds of decision that are made with officers up and down the country every day of the week. Examples are transferring officers from uniform to CID or from traffic to other duties. These, to my mind, are run of the mill management decisions involving deployment of staff or running the force. They are decisions that relate to the individual officer personally and have no public element. They are, if you like, the nuts and bolts of operating a police force, be it the NCS or any other. It is, in my judgment, quite inappropriate for the courts to exercise any supervisory jurisdiction over police operational decisions of this kind. There is quite simply, no public law element to them. The position is different where, however, disciplinary proceedings have been taken against an officer and the ordinary principles of fairness have been breached."
This is the passage which substantially decides the matter against the decision being subject to the supervisory jurisdiction of the Court because there exists no sufficient public law element.
41. Earlier in his judgment at paragraph 18 page 606B Lord Justice Scott Baker had said in respect of the fact that the termination of secondment attracted no legal remedy:
"18. It is, of course, beyond dispute that the NCS is a public body and it is also accepted that the Appellant has no private law remedy. Both of these are factors which as a starting point might suggest that the court does have jurisdiction to intervene. But it is necessary to look further and focus on what the Deputy Director General was doing when he made the impugned decision."
42. Other factors that tended to make the termination of the secondment of Mr. Tucker not reviewable were the terms of public service for police officers and the fact that the terms of secondment, including summary return to Mr. Tucker's own police force at the discretion of the Director General, had all been accepted by Mr. Tucker, at page 608 D-H Lord Justice Scott Baker said:
"Nature of the relationship
27. A police officer is in a different position from other employees. On becoming an officer he forfeits certain advantages, for example the right to strike or bring proceedings for unfair dismissal. He is subject to the discipline of his force and has by and large to go where and do what he is told. On the other hand he gains certain advantages for example the right to remain in service, health permitting, and to ill health and injury pensions. Dismissal or other disciplinary punishment is governed by statutory procedures that are amenable to judicial review in the event of any breach of public law principles, such as fairness.
28. When a police officer is seconded to the national crime squad he remains an officer. No new office is created; he retains his existing rights and obligations. His secondment is temporary and he automatically ceases to be a member of national crime squad at the end of his period of temporary service. As I have already mentioned, disciplinary procedures are a matter for his home force. He is in a sense on loan to the national crime squad."
43. Finally in relation to the reviewability issue Lord Justice Scott Baker summed up his conclusions at page 610 B-E.
"In my judgment there is a clear line between disciplinary issues where an officer has the right to public law safeguards such as fairness, and operational or management decisions where the police are entitled to run their own affairs without the intervention of the courts.
Taking the three factors together, I see the position as follows. Any officer joining the national crime squad on secondment will appreciate, if he pauses to consider the conditions of service, that his secondment can end at any time without any notice at all. Bearing in mind the sensitivity of the work of the national crime squad most people would not find this surprising. The officer is, in any event, with the national crime squad which should be able to manage the deployment of its officers so as best to achieve its objective of preventing and detecting serious crime.
The fact that the national crime squad is a public body and that the decision to return the applicant was taken against the background of Operation Lancelot and the arrest of other officers does not turn what was essentially a managerial decision in relation to the applicant into one with a sufficient public law element to trigger the jurisdiction of the Administrative Court. It is true this is not a case in which the applicant can invoke a private law remedy. That is a factor, but not in this case determinative. What is critical is whether the dispute has a sufficient public law element: see R v Lord Chancellor's Department, Ex p Nangle [1991] ICR 743, 756.
In my judgment the decision impugned in the present case does not have a sufficient element of public law to be subject to judicial review. It was of purely domestic nature."
Is Mrs. Savita Nair's transfer amenable to judicial review?
44. In my view the applicable principles discussed in East Berkshire v. Walsh and in Tucker v. Director General are dispositive of this case. There is no sufficient public law element and the decision to transfer sent to Mrs. Savita Nair by letter on or about 29th November 2007 is not amenable to the supervisory jurisdiction by way of application for judicial review.
45. It is clear from East Berkshire v. Walsh that where employees of a public body have by statute a code of remedies governing dismissal from the employment they do not have the option of judicial review. In addition the Courts will not be easily persuaded by arguments purporting to create an issue only resolvable in public law. Given the numbers of employees such as Mr Walsh in the U.K health service, it would be unmanageable if all employees could take judicial review.
46. In respect of Tucker I find that that the principles set out there, are wholly applicable to the case of Mrs Savita Nair. Like the decision to terminate the secondment of Mr Tucker, the decision to transfer Mrs. Savita Nair was managerial and operational. As in Mr. Tucker's case, Mrs. Savita Nair must have known that under Public Service Regulations she could be transferred on Notice whether she desired such transfer or objected to it. As in Tucker's case, the transfer involved no element of disciplinary proceedings or wrongful dismissal and transfer was not a penalty or a punishment. Also there is another factor in common in that in the absence of a public law claim the transferee has no other civil remedy.
47. In Fiji, Tucker has been correctly followed at least three times. First of all by Jitoko J in State v. FIRCA, ex parte Barbara Malimali JRA HBJ 2 of 2003, where the dispute was over an Acting Appointment which clearly is a managerial and operational decision not amenable to judicial review. That decision was followed in State v. FIRCA ex parte Vimal Krishna Civil Action HBJ 014 of 2003 per Mr. Justice O'Connor in a transfer case. Application for leave to apply for judicial review was refused. Then in Ex parte Usmal Nisha Dean HBJ 4 of 2004, a teacher transfer case, Tucker and Ex parte Malimali were again applied. Finally, in another teacher case, the High Court refused leave on the basis that it was a management decision. It was Mohini Devi v. Permanent Secretary for Education and Attorney–General Judicial Review No. HBJ 18D of 2008S. On 24th October 2008, Mr. Justice Jitoko refused leave to appeal. In my view court there are other cases involving disappointed promotion candidates in public services where, although the Court did not consider the point, what was involved were management decisions which were not amenable to judicial review.
Was there any unfairness or bias in the transfer of Mrs. Savita Nair?
48. I give these views although the issues are not relevant because of my above finding. In my view the power of transfer vested in the Permanent Secretary for Education can be properly and lawfully used in situations where there is an issue about the proper administration of a school as there certainly was in Rishikul Sanatan College in November 2007. An enquiry was made but reticence on the part of disputants resulted in Mr. Hewson believing that only Mrs. Savita Nair, who spoke frankly, was opposed to the Principal. In these circumstances when the decision was made, the Permanent Secretary and her officials believed in good faith that only the Vice Principal was complaining about Mr. Mahen Pal. In my opinion in such a situation it is a reasonable and sensible management decision to remove by transfer the party whose views are causing serious disruption within a troubled school. In the case of Mrs. Savita Nair she had been earmarked for transfer some months earlier. The authority must be allowed in good faith to take whatever management decisions and steps that will resolve matters when a school is mired by trouble, dissension and controversy.
49. It is the case that it became apparent that Mr. Hewson and the Permanent Secretary, through no fault of their own, were mislead as to the extent of the trouble. This became known to them with the lockout of Mr. Mahen Pal on the 21st of January 2008. It was not known to them at the date of the transfer decision or on 17th January 2008 when DSE reviewed the decision in writing, maintained it, and gave his reason that the transfer should go ahead "so as not to disturb the Principal's organisation of the school."
50. In context the words "to throw her out" mean no more than "to transfer her out under Regulation 13 to an equivalent position at Mahatma Ghandi High School." The words actually used may have been ill chosen but Mrs. Savita Nair as Vice Principal must have understood both the management's decision being confirmed and the reason for it. She was not being dismissed disciplined or transferred to a post at a lower grade.
51. In my view Mrs. Savita Nair must have understood fully all the implications arising from DEO(C) on 22nd January 2008, handing a piece of paper to her which was both an instruction to her to report to Mahatma Ghandi High School as well as a record of the review and reasons for making and maintaining the decision to transfer. If she understood, her comments in her affidavits do not reflect what was proceeding but rather display an opportunistic distortion of events in order to make a case for judicial review.
52. It follows that in my judgment there was no failure with respect to natural justice. Her objections were reviewed and the Permanent Secretary's reasons for making and maintaining the decision were given to her on 22nd January 2008.
53. As to the allegation of bias against the Permanent Secretary of the decision to transfer which was taken in the interests of restoring or preserving peace at Rishikul Sanatan College, I do not understand how this could have been thought to involve bias against Mrs. Savita Nair. It is important to note that in the application for judicial review there is no allegation of bad faith or abuse of power on the part of the Permanent Secretary decision maker. It is important to note that the Permanent Secretary or indeed anyone involved in the decision is not alleged to have any pre-existing kind of family or social relationship with Mr Mahen Pal. Those entrusted to manage a public authority and its institutions must make the management and operational decisions that they deem necessary. All principals of schools have to liaise with the Ministry. That does not mean that when there is controversy, the authority supports them or is biased in their favour. The inquiry in this case indicates that the authority were not supine to the wishes of Mr Mahen Pal.
54. In my judgment the orders in the Court below should be set aside and the application for judicial review should be dismissed. Although there are two appellants, the Permanent Secretary for Education and the Attorney-General of Fiji, they have both been represented here and below by one Counsel. Nor have there been any points on which the case for the Permanent Secretary differed from the case for the Attorney General. Throughout it appears that there has been preparation by only one team of lawyers. The Respondent succeeded in the Court below but has lost the appeal. In my view the Respondent should pay the costs of the appellants in this Court and in the High Court assessed at $2500.
Sosefo Inoke, JA
55. The orders of this Court are:
Hon. Justice Sosefo Inoke
Justice of Appeal
Hon. Madam Justice Anjala Wati
Justice of Appeal
Hon. Justice William Marshall
Justice of Appeal
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