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Nair v Public Service Commission [2001] FJHC 163; Hbc0359d.2000s (28 May 2001)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. 359 OF 2000

Between:

SHAKUNTALA D. NAIR
Plaintiff

and

THE SECRETARY, PUBLIC SERVICE COMMISSION
1st Defendant

and

THE ATTORNEY-GENERAL
2nd Defendant

Ms. G. Ollsen for the Plaintiff
A.O. Adamu with Y. Singh for the Defendants

DECISION

This is an application by the Defendants to strike out the Plaintiff’s Statement of Claim brought under the provisions of Order 18 r 18 (1) of the High Court Rules on the ground that the action is an abuse of the process of the Court. The relevant facts are not in dispute.

Two affidavits were filed:

(i) Ajay Singh, 14 September 2000;
(ii) Plaintiff, 9 February 2001.

Counsel for the Plaintiff also filed a careful and helpful written submission on the day of the hearing of the application.

The Plaintiff was appointed as a clerical officer at the Legalega Research Station, Ministry of Agriculture, Nadi in May 1980. Some time later she was transferred to the Suva Office of the Department of Forests where she remained until late 1997 rising to Senior Clerical Officer.

It appears that during 1996 and 1997 certain unhappy differences arose between the Plaintiff and her superiors. I was not given details of these matters but in paragraphs c(ii) and c(iii) of her affidavit the Plaintiff says that her superiors were affected by “dislike and personal malice” towards her and that she had been asked by them “to perform unethical tasks”.

On 29 October 1997 the Plaintiff received a notice of transfer from the Conservator of Forests (Exhibit A to Mr. Singh’s affidavit). This advised her that she was to be posted as Senior Clerical Officer Silviculturist to the Office of the Silviculturist at Colo-i-Suva with effect from 3 November 1997. The Plaintiff refused to move.

On 9 December 1997 the Secretary of the Public Service Commission wrote to the Plaintiff (Exhibit B). He pointed out that the Plaintiff had not reported to work following her letter of transfer. After crediting her with all available leave she had been absent without leave for 9 days. The Secretary PSC advised the Plaintiff that unless she presented herself for work the following day she would be deemed to have resigned her appointment by operation of regulation 34 (2) of the Public Service Commission (Constitution) Regulations 1990 (the Regulations). This regulation (see Fiji Republic Gazette 18 Dec. 1990) generally provides that an officer who is absent without leave for an acceptable reason for a period of 7 days shall be deemed, unless the PSC otherwise determines, to have resigned from the service.

On 23 December 1997 not (as I was advised from the bar) having received any reply to its letter of 9 December and the Plaintiff not having returned to work, the PSC wrote to the Plaintiff and advised her that she was deemed to have resigned (Exhibit C).

The writ was issued in August 2000. The Plaintiff’s case is that:

(a) the Defendants failed to give her 28 days notice of transfer as required by Regulation 19 (2) of the Regulations;

(b) the Defendants failed to consider the Plaintiff’s view before finalising the decision to transfer her;
(c) the transfer was motivated by malice and was intended to victimise the Plaintiff in retaliation for her refusal to comply with “unethical and unconscionable” demands made of her; and
(d) that the Defendants totally disregarded the Plaintiff when she “formally notified the first Defendant” of her reasons of objecting to her transfer.

In the premises the Plaintiff says that her employment was wrongly and improperly terminated “on the basis of Regulation 34 (2) of the (Regulations)”.

The Defendants’ application (which I may say was presented with considerable skill by Mr. Adamu) is founded in the distinction between private and public law. The principal authority cited was a decision of the Fiji Court of Appeal Ram Prasad v. Attorney-General (ABU 58/97 – FCA Reps 99/343). On page 9 of the Judgment we read:

“The paragraphs in the amended statement of claim which we have set out earlier make it perfectly plain that the Appellant was relying on what he claimed to have been a failure by the Respondent to comply with the provisions of the regulations, not a breach of any term expressed or implied in any contract of service claimed to have existed. For these reasons we consider that the judge was correct to conclude that, as the Appellant had been appointed under a statutory provision, public law applied to his appointment and any claim resulting from his dismissal can only be brought by an application for judicial review”.

Ms. Ollsen did not specifically refer to Ram Prasad and she conceded the general rule most clearly expounded in the leading case of O’Reilly v. Mackman [1988] 2 AC 237. Instead, citing Roy v Kensington & Chelsea [1991] UKHL 8; [1992] 1 AC 624 she suggested that the Plaintiff was entitled to bring these proceedings in private law since despite being at the relevant time a public servant what was being asserted was the private law right not to be transferred except subject to the restraints imposed by regulation 19 as properly applied.

She suggested:

“The circumstances invoking her private law right relates to the decision made by the first Defendant to transfer her. The conditions for that transfer are statutorily defined at regulation 19 of the Public Service Commission (Constitution) Regulations 1990.

The Plaintiff submits she was not granted the statutory 28 days notice nor were her views of the transfer sought by the first Defendant. In particular, the Plaintiff submits that personal dislike and malice by her then immediate superiors were the motives behind her transfer”.

In my opinion, this ingenious argument must fail. As I see it an employee’s rights in respect of transfer depend either on contract, if the employee is privately employed or on Regulation, if the employee is a public servant. In this case the Plaintiff was a public servant whose position was protected by regulation 19. Regulations 19 (3) and 19 (4) provide an appeal mechanism where a public servant objects to a proposed transfer. Although paragraph 14 of the Plaintiff’s Statement of Claim refer to a “formal” notification of objection to the PSC no evidence of such a notification was placed before me and there is no reference to it in the correspondence exhibited. As can be seen from paragraph 18 of the Statement of Claim the principal ground of complaint is that Regulation 34 (2) was wrongly applied, not that regulation 19 (4) was breached. It will also be noted that there is nothing to suggest that the Plaintiff at any time took advantage of the grievance procedure set out in the Public Service (Personal Grievance Procedure) Regulations 1990.

Although mindful of the fact that the Plaintiff is not seeking re-instatement and that accordingly this action would be unlikely to be detrimental to good administration I am satisfied that the Plaintiff’s complaint should have been brought by way of judicial review seeking certiorari in addition to her claim for damages. In the face of the 3 months requirement imposed by O 53 r 4 (3) a delay of 22 years in commencing proceedings is clearly unacceptable.

In all the circumstances I am satisfied that this application must succeed and I so rule.

M.D. Scott
Judge

28 May 01