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State v Public Service Commission, Ex parte Singh [2001] FJHC 236; HBJ0013.2001 (4 October 2001)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. 13 OF 2001

Between:

STATE

V

PUBLIC SERVICE COMMISSION
PUBLIC SERVICE APPEAL BOARD
ARVIND KUMAR
Respondents

Ex-parte:

AJAY SINGH
Applicant

Mr. R.P. Singh for the Applicant
Mr. J. Udit with Mr. Y. Singh for the Respondents

JUDGMENT

This is an application for judicial review by Ajay Singh (hereafter referred to as ‘the applicant’) pursuant to leave granted on 18 April 2001.

The decision impugned is that of the Public Service Commission (the ‘Commission’) the first respondent and of the Public Service Appeal Board (the ‘Board’) the second respondent. The decisions are as follows as stated by the applicant:

1. the decision of the Public Service Commission promoting the third Respondent Arvind Kumar and gazetting his promotion on the 15th day of February, 2001 while my appeal filed on 2nd day of February 2001 under Section 26 of the Public Service Act 1999 is pending; and
   
2. the decision of the Public Service Appeal Board refusing to hear my appeal filed on the 2nd day of February, 2001, filed in compliance with the Section 26 of the Public Service Act 1999, within the prescribed time of the notice of provisional promotion received on the 15th day of January, 2001.
   

The relief sought

1. For an Order for Certiorari to remove the said decisions of the Public Service Commission and the Public Service Appeal Board purportedly promoting the third Respondent gazetted on 15th day of February 2001, into this Honourable Court and be quashed.
   
2. For Declarations that the said decision of the Public Service Commission in gazetting and promoting the third Respondent to the post of an Administrative Officer, and the decision of the Public Service Appeal Board refusing to hear the Applicant’s appeal filed on 2 February, 2001 on the ground of non-payment of full fee within the prescribed time are null and void, and in contravention of Section 26 of the Public Service Act, 1999, in breach of natural justice, made in bad faith, in excess of jurisdiction, improper, unreasonable and unfair, and in breach of the legitimate expectations of the Applicant.
   

(2)(a) For a Declaration and determination by this Honourable Court that the Applicant has more merit in terms of qualifications, experience and service than the third Respondent is entitled to be promoted.

3. For an Order for Mandamus directing the Public Service Commission and the Appeal Board to promote the Applicant on the said post of an Administrative Officer backdating to the date of his current acting appointment.
   
4. Declaration that the actions of the Public Service Commission and the Public Service Appeal Board denying advancement to the Applicant is exemplary, tortious and unconstitutional constituting damages.
   
5. An Order for damages
   
6. Costs on the solicitor and client basis.
   

The grounds of application

1. That as notified in the Appeal proper the Applicant had filed his appeal within the prescribed time of 21 days on 2 February, 2001, with full fee of $50 after receiving the Public Service Commission’s memorandum on 15 January, 2001, which appeal was endorsed and accepted by the Appeal Board.
   
2. That the Appeal Board has no jurisdiction to refuse the Applicant’s appeal properly filed and subsequent refusal of the appeal on the ground of non-payment of full appeal is null and void, ultra vires, improper, inherently unreasonable and serious breach of its statutory duty.
   
3. That the subsequent advice of the Chairman of the Appeal Board and action of the Public Service Commission in purportedly promoting and gazetting the third Respondent to the post of an Administrative Officer is null and void and improper.
   
4. That both the Public Service Commission and the Appeal Board denied the Applicant advancement and promotion in breach of their constitutional and statutory duties.
   

Background facts

On 19 November 1999 the post of an Administrative Officer (Leave and Passage) in the Personnel Section of the Ministry of Education occurred after the substantive post holder resigned, and the said vacancy was advertised in the Public Service Circular on 15 January 2001.

The applicant who is the acting Administrative Officer in the said Personnel Section of the Ministry of Education was eligible and applied for the said post.

On 15 January 01 (by a letter dated 10 January 2001) the Commission notified the applicant that one Arvind Kumar, the third Respondent herein, was provisionally promoted. Therefore on 29 January 2001 the applicant filed an appeal against the said decision under section 26 of the Public Service Act 1999 but after realising that he had paid only $30 fee instead of $50 he paid another $20 on 1 February 2001 and refiled his Appeal on 2 February 2001, that is, within the prescribed time he says of 21 days from receiving the said memorandum of 15 January. The Appeal was accepted by the Board.

Subsequently the Applicant wrote to both the Board and the Commission. No response was received from the Commission but the Board responded and admitted that the full fee was paid on 1 February 2001. The Commission gazetted the promotion of the third Respondent on 15 February 2001 and transferred him to another ministry.

Thereupon by letter dated 7 March 2001 Messrs. Kohli & Singh told the Commission that they have instructions to take legal action against the Commission for promoting Arvind Kumar without the Board first hearing the appeal despite the fact that the applicant had lodged his appeal in time.

Applicant’s submission

The applicant through his counsel submits that he filed his appeal in conformity with s26(1)(a) of the Public Service Act (No. 8 of 1999) by filing same within 21 days of being notified. The applicant was notified on 15 January 2001 but the notice is dated 10 January and initialled by the Permanent Secretary for education on 15 January. Accordingly 21 days for Appeal would have expired on 5 February 2001. The provisional promotion of Arvind Kumar was made on 15 January. The Board received the appeal on 2 February 2001. Mr. Albert Rosa, the Secretary to the Board admitted that the fees were paid on 1 February 2001 before the appeal was lodged on 2nd February.

Despite these facts Mr. Rosa says that the applicant failed to file Appeal in time on 31 January 2001 and made the decision not to have the Appeal heard . The Secretary had no power to dismiss the appeal summarily. The power is vested in the Board. Therefore the applicant submits that by promoting the third Respondent in these circumstances the Secretary’s or the Board’s actions were ultra vires.

The applicant says that he has lost his constitutional right to Appeal thereby in blatant disregard of the law on the part of the Secretary to the Board; and
Mr. Rosa even went on to say that it was his decision and not that of the Board to disallow the applicant’s Appeal.

Respondents’ submission

The Respondents through the learned State Counsel did not agree with the applicant’s contention. Counsel said in his written submission that the action of the Commission was proper as per the advice of the Board which was given after the expiry of the 21 days appeal period as prescribed by section 26 of the Public Service Act in that there had been no appeal filed and that the provisionally appointed person could be confirmed.

On the computation of time for the appeals period, counsel could not explain to Court when asked how the 21 days was to expire on 31.1.01 when the documents say to the contrary which gave the clear impression that it was purely and simply Mr. Rosa’s interpretation of s.26.

Consideration of the application

In a judicial review the Court’s function is to review not the merits of the decision in respect of which the application for judicial review is made, but the decision-making process. It is ‘a review of the manner in which the decisions was made’ also to ‘see that the relevant authorities use their powers in a proper manner’ (Chief Constable of the North Wales Force v Evans [1982] UKHL 10; (1982) 1 WLR 1155 at 1174).

It is in the light of these principles that I now consider the issues before me.

The Public Service Act (Act No.8 of 1999) (hereafter referred to as the Act) applies to this case. It is section 26(1) under the caption ‘Procedure on Appeal’ which is relevant here. It provides:

"26 - (1) Notice of an appeal under this Part, setting out the grounds of the appeal, must be lodged with the Secretary of the Appeal Board -

1. within 21 days after the date on which the decision was published or notified to the appellant; or
   
2. within any further time allowed by the Appeal Board on sufficient reason being shown by the applicant."
   

It is clear from the circumstances stated hereabove how the said decisions were made.

It was a requirement of the Act that the respondents follow the provisions of the said section. The 1st and 2nd respondents are definitely in breach of the provisions of s26(1)(a). The Appeal was lodged in time and proper fees were paid. This is admitted by the Board. Yet in the face of the obvious facts Mr. Rosa deposes that it was not filed in time and gives his own interpretation of the section. There was no satisfactory answer from the State Counsel, and I do not blame him, when asked by Court to explain how can it be said that 21 days was given when the letter notifying the decision dated 10 January 2001 was still sitting in the Permanent Secretary’s Office until 15th January 2001. She initialled the letter on 15 January.

After blatantly disobeying the requirements of section 26(1), Mr. Rosa goes ahead on his own initiative not to put the Appeal before the Board. This action on the part of a civil servant, and a senior one at that, should not be allowed to pass without some drastic action by the Commission so that there is no recurrence of this type of incident by people who are expected to be competent for the job they are required to do.

The Board’s Secretary should familiarise himself with s.26 and in particular for this purpose sub-section 9 which provides:

"In the conduct of an appeal, the Appeal Board is not bound by the procedures, legal forms and rules of evidence of a Court of Law but should -

1. accord natural justice to the parties to the appeal;
   
2. keep a written record of its proceedings; and
   

100. give reasons for its decision on the appeal."
     

Here the Board disallowed the appeal without hearing it, not on the ground that it is ‘frivolous or vexatious or cannot succeed’ (s.26 (12)) but it just did not hear it at all. The procedure adopted by the Board is definitely wrong and unlawful. This practice should not be allowed to continue if the civil servants are to have any faith in the Board and its staff.

This case was not an error of law but a deliberate and blatant disregard of the law. In the context of this case, it is pertinent to note the following passage from the judgment of Lord Diplock in In re Racal Communications Ltd [1980] UKHL 5; [1981] AC 374 at 382-383

where Parliament confers on an administrative tribunal or authority, as distinct from a court of law, power to decide particular questions defined by the Act conferring the power, Parliament intends to confine that power to answering the question as it has been so defined: and if there has been any doubt as to what that question is, this is a matter for courts of law to resolve in fulfilment of their constitutional role as interpreters of the written law and expounders of the common law and rules of equity. So if the administrative tribunal or authority have asked themselves the wrong question and answered that, they have done something that the Act does not empower them to do and their decision is a nullity. Parliament can, of course, if it so desires, confer upon administrative tribunals or authorities power to decide questions of law as well as questions of fact or of administrative policy; but this requires clear words, for the presumption is that where a decision-making power is conferred on a tribunal or authority that is not a court of law, Parliament did not intend to do so. The break-through made by Anisminic [1968] UKHL 6; [1969] 2 A.C. 147 was that, as respects administrative tribunals and authorities, the old distinction between errors of law that went to jurisdiction and errors of law that did not, was for practical purposes abolished. Any error of law that could be shown to have been made by them in the course of reaching their decision on matters of fact or of administrative policy would result in their having asked themselves the wrong question with the result that the decision they reached would be a nullity." (emphasis added).

In the outcome, for the above reasons the decision of the Commission and the Board are a nullity when they promoted the third respondent as gazetted on 15 February 2001 and refused to hear the Appeal. There was failure to observe the rules of natural justice which means ‘no more than to act fairly towards’ the applicant ‘in carrying out their decision-making process, and I prefer so to put it’ [Lord Diplock in O’Reilly v Mackman [1983] UKHL 1; (1982) 3 All E.R. 1124 at 1126-1127]. Here the procedure adopted by Mr. Rosa did not give the affected party/the applicant a proper opportunity to fairly put his case.

There clearly was procedural impropriety in this case. As I said at the beginning, in considering the application for judicial review the court is concerned with review of the decision-making process, namely, whether the process by which the decision was reached is authorised or valid. The basic question is whether the decision-maker has acted intra vires or within the discretion conferred reasonably and fairly. As stated by Lord Templeman in Reg. v. Inland Revenue Commissioner Ex parte Preston [1984] UKHL 5; (1985) AC 835 at 862 that:

"Judicial review is available where a decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached, or abuses its powers. Judicial review should not be granted where an alternative remedy is available."

In a judicial review courts ensure that administrative actions are intra vires and keep within the bounds of their authority. These actions will be ultra vires if they fail to comply with the requirements of certain statutes and common law. It is important that administrative actions take into account all relevant considerations and ignore any irrelevant considerations. The decisions must be reasonable; they must not be biased or pre-determined; they must be exercised with the rights of natural justice in mind, unless a statute, expressly or by clear implication provides a contrary intention.

On this aspect of ‘procedural impropriety’ I refer also to the following passage as explained by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service (1985) AC 374 at 408:

"I ... describe the third head as "procedural impropriety" rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because the susceptibility to judicial review under this head covers also the failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice."

(emphasis added).

In the result, the actions of Mr. Rosa are in breach of section 26 and the said decisions are therefore unlawful and ultra vires. There was also a denial of natural justice.

Costs

The applicant seeks costs on an indemnity basis. It is quite obvious that there was a complete disregard of the law by Mr. Rosa in acting contrary to the provisions of section 26 of the Act as already stated hereabove. On the basis of the papers filed by them the Respondents had no defence and yet resisted the application for judicial review. In the context of this case I bear in mind the following passage from the judgment of Beldam L.J. in Willis v Redbridge Health Authority (1960) 1 W.L.R. 1228 C.A. at 1232 which is pertinent on the misuse of the process of the court:

"First, I consider that the defendant had prima facie misused the process of the court by putting forward a defence which from the outset it knew was unsustainable. In Afzal v. Ford Motor Co. Ltd [1994] 4 All E.R. 720, 747 I expressed the view that such conduct by a defendant could amount to a misuse of the process of the court. Secondly, I would emphasise that the purpose of an order that one party should pay the other’s costs on an indemnity basis is not penal but compensatory and, where one party causes another to incur legal costs by misusing the process to delay or to defer the trial and payment of sums properly due, the court ought to ensure so far as it can that the sums eventually recovered by a plaintiff are not depleted by irrecoverable legal costs."

Here the Respondents knew it was a misuse of the process of the Court and this amounted to an unreasonable and an unwarranted behaviour on their part particularly on the part of the second respondent.

This is the type of case which cries out for costs on a higher scale and this I will award. Mr. Rosa’s conduct I find was reprehensible and calls for a special order, namely the one that is prayed for in this application.

The statements contained in the following passage from the judgment of Roger C.J. Comm D in Tickell v Trifleska Pty., Ltd (1990) 25 NSWLR 353 at 354-355 are worth bearing in mind as underlying the concept of the use of the cost orders to encourage compromise; and had the Respondent given thought to the views expressed in these statements matters would not have come to a head which indirectly eventually very belatedly forced the Respondents to in effect in their submission concede the error:

"It is the primary aim of any judicial system to attempt to bring the parties to a point where, with fairness to themselves, they are able to dispose of the dispute between them by compromise. It is only in the last resort that a dispute should proceed to trial and to determination. That is for any number of reasons. It is in the interests of the community that scare resources, such as the court, should not be over-taxed. It is in the interests of the community and of the parties themselves that they should not engage in the rancour which a dispute in court necessarily entails. It is in the interests of the parties themselves to save themselves the expenditure of time and energy necessarily entailed in participation in contested court proceedings."

Conclusion

To conclude, for the above reasons it follows that the first and second respondents never made proper decisions in accordance with the law.

I allow the application for judicial review and in the exercise of Court’s discretion, I make the following Orders:

1. an order of certiorari removing the said decisions of the Public Service Commission and The Public Service Appeal Board promoting the third Respondent gazetted on 15 February 2001, into this Court and the same are quashed.
   
2. a declaration that the decision of the Commission in gazetting and promoting the Third Respondent to the post of Administrative Officer is a nullity; so also the refusal of the Board to hear the Applicant’s Appeal is a nullity.
   

100. An order that the Appeal be heard de novo in accordance with the law and that the applicant be granted remission of fees for relodging the Appeal.
     

4. it is ordered that the Commission and the Board pay the applicant’s costs which are to be taxed on a ‘solicitor and client’ basis by the Chief Registrar of the High Court unless agreed.
   

D. Pathik
Judge

At Suva
4 October 2001