| Fiji Islands - The State v The Permanent Secretary for Youth, Employment Opportunities and Sport, Ex parte Tuapati - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction
JUDICIAL REVIEW NO. 0004 OF 2001
The State
v.
The Permanent Secretary for
Youth, Employment Opportunities and Sports
ex-parte
Kitione Tuapati
Mr. S. Valenitabua for the Applicant
Mr. L. Daunivalu for the Respondent
RULING
This is an application for leave to judicially review a decision of the Permanent Secretary for Youth Employment Opportunities and Sport [`PS’] taken on the 29th November 2000 in a Memorandum written to the applicant as acting Divisional Youth Officer (Central/Maritime Division) [`DYO (C/M)’], and which is incorrectly entitled : `Transfer’.
I say `incorrectly’ advisedly because the actual decision taken did not in fact effect or require the transfer of the applicant in any sense in which
the term is normally understood in the Public Service [see : the definition of the term in the Public Service (General) Regulations 1999].
Given the comprehensive nature of the affidavits and counsel’s written submissions I have decided to finally dispose of this case
under Order 53 r.3(9) as amended by the High Court (Amendment) (No.2) Rules 1998.
The relevant Memorandum is in the following terms :
`The is to inform you that your acting appointment as the Divisional Youth Officer [Central/Maritime Division] will cease on 29/12/00.
The Permanent Secretary has decided that the current Divisional Youth Officer [Western], Mr. Illiesa Tuikenatabua, will take over
the duties of DYO [C/M] with effect from 02/01/01.
Therefore you will revert back to your substantive post of Senior Youth Officer [Maritime] from 02/01/01.’
In essence, the decision taken was the termination of the applicant’s acting appointment as Divisional Youth Officer (Central/Maritime Division) [`DYO (C/M)’] thereby reverting him to his substantive post of Senior Youth Officer (Maritime) [`SYO (M)’] in the same station.
Having thus identified the exact nature of the decision affecting the applicant, I turn to consider the basis on which the applicant
claims to have a `sufficient interest’ to challenge the PS’s decision. In this regard counsel writes :
`The applicant was Acting PYO (C/M). The Applicant applied for the post of PYO (C/M) as advertised. He was interviewed with two
(2) other applicants. None of the interviewees was appointed to the post. Applicant is aggrieved. He has sufficient interest to
apply for JR.’
If I may say so none of the above matters are apparent in the Memorandum of 29th November, 2000 which records the decision being challenged. Having said that, the PS in her affidavit accepts that the Memorandum : `...... was issued to notify (the applicant) of the decision made regarding the filling of the vacant post in which he was acting and for which he was interviewed’. In other words, by inference, that his application was unsuccessful and that the post was to be filled by way of an internal transfer
within the Ministry.
Notwithstanding that the applicant claims that the Permanent Secretary `...... acted wholly unreasonably in terminating the Applicants position as Acting PYO (C/M) and reverting the applicant to SYO (C/M)’ and reliance is placed on the provisions of Regulation 5 of the Public Service (General) Regulations 1999 which deals with appointments and promotions `to an office pursuant to Section 147(1) of the Constitution’ of which the Public Service Constitution (`PSC’) is the designated appointing authority.
Be that as it may, it is difficult to understand why ? or how ? the decision to terminate the applicant’s acting appointment could be categorised as `wholly unreasonable’ when the original appointment letter clearly stated that the acting appointment : `...... (was) until the post is substantively filled or ...... the appointment is revoked whichever is earlier’. In this case I note that both events occurred simultaneously `...... with effect from 02/01/01'.
Needless to say it has not been, nor could it be, suggested that such a condition imposed on an acting appointment is per se an unreasonable one, how then, can the mere activation of the condition by the appointing authority with over one month’s warning
to the incumbent, be considered as `...... acting wholly unreasonably’? Plainly it is not.
The matter is placed beyond any possible doubt however, by the clear terms of Legal Notice No.102 of 1999 which empowers the PS to make acting appointments in the Ministry `in any occupational group in grades up to and including SS01' which, it is common ground, includes the vacant post of DYO [C/M], read together with Section 44 of the Interpretation Act (Cap.7) which expressly provides (so far as relevant):
`Where by or under any written law a power ...... is conferred ...... upon any person ...... to make any appointment ......, then,
unless a contrary intention appears, the person ...... having such power ...... shall also have the power to ...... revoke the appointment
of, ...... any person appointed in exercise of the power ......’
Plainly the PS had the necessary power, albeit delegated, not only to make the acting appointment but also to revoke it, and, given the conditional nature of the acting appointment
in the first instance, and the fact that the post was being `substantively filled’ by an internal transfer, there is no merit at all in the suggestion that the PS’s actions were `wholly unreasonable’ and I refuse leave on this ground of complaint.
In the present case, the applicant was neither `appointed’ or `promoted’ to a substantive office in the Memorandum and, as such, there is considerable doubt as to whether he has a `sufficient interest’ to challenge that aspect of the decision which, at best, referred to another officer not before the Court. Even that other officer,
according to the applicant, `was a confirmed PYO so he could neither have been appointed or promoted. He was also not interviewed (for the vacant post)’.
Similarly, the applicant was not `transferred’ as a result of the decision and, again, can have no `sufficient interest’ to challenge the transfer of another officer who is not before the Court albeit that the transfer is implied in the Memorandum. In this regard Regulation 13 of the Public Service (General) Regulations 1999 makes it abundantly clear that it is the officer being transferred who has any `locus’ to challenge the transfer decision for want of prior notice and/or breach of natural justice (if any).
That is not to say that the applicant has not been affected by the transfer, plainly he has been, but that does not entitle him to
challenge the transfer decision which as earlier pointed out, did not directly relate to him.
Be that as it may, applicant’s counsel generally submits that `...... the (PS) has no power to transfer and/or reshuffle officers (since) the (relevant) Legal Notice confers the power to transfer officers upon the Secretary for Public Service. Not to the Permanent Secretaries’.
The PS for her part, perhaps not surprisingly, asserts that : `...... staff transfers and reshuffles are made in accordance with the powers delegated to me, as Permanent Secretary, under Legal
Notice Number 102 of 1999'. No specific delegation is identified however in the affidavit and it is therefore necessary to examine more closely the relevant
Legal Notice.
Legal Notice 102 of 1999 is entitled : `DELEGATION OF POWERS OF PUBLIC SERVICE COMMISSION’ and specifically, under Schedule 1, the power `to make appointments, including acting and probationary appointments, and to confirm appointments and promotion of officers in the
Ministry or Department respectively’ is delegated to the `Permanent Secretary or Head of Department’.
It is equally clear, by the absence of any mention of it, that the `power to transfer’ officers within the public service which is expressly vested in the `PSC’ under Regulation 13 of the Public Service (General) Regulations 1999 has not been delegated to Permanent Secretaries under the above-mentioned delegation.
Respondent’s counsel submits however that such a power (to transfer) is necessarily implied or included in the delegated power to
make appointments as expanded in Schedule 2 item (vii). I cannot agree with this submission or with the reference to item (vii) which specifically refers to `the transfer of an officer to another Ministry ......’ which has no relevance to the particular circumstances of the present case which involves the internal transfer of an officer within the Ministry.
Additionally, the power to appoint and promote is treated quite separately from the power to transfer under the Public Service (General) Regulations 1999 viz Regulation 5 and Regulation 13 and, this separation is continued and reinforced under Schedule 1 of the Legal Notice No.102 of 1999, which, additionally and separately, delegates the power `To transfer officers’ within certain occupational groups in whatever Ministry to the `Secretary for Public Service’.
A similar separate delegation `to transfer’ could have been granted to Permanent Secretaries in respect of other occupational or professional groups in their respective Ministries not covered under the aforementioned delegation,
but this was not done. I accept that the enumerated occupational groups are of the general cadre and might be considered common
to all Ministries but that does not affect or alter the legislative scheme of separating the respective powers and even the delegation
thereof.
Finally, the fore-runner to Legal Notice 102 of 1999 which was revoked by it, namely, Legal Notice 138 of 1997, clearly and expressly delegated to Permanent Secretaries, the PSC’s powers to : `make appointments ......, promotions, transfers and to discipline in respect of all occupational groups ......’ (my underlining for emphasis).
Why then, one may well ask, was the power to transfer officers left out in the replacement Legal Notice ? was it intentional or was it a mistake?
Whatever the answer, it is not the function of this Court to infer the existence of such a power (to transfer an officer internally)
however desirable and administratively convenient it may seem.
In the result I am reluctantly driven to the conclusion that there is a `lacuna’ in the powers delegated to the Permanent Secretary under Legal Notice 102 of 1999 in so far as there is no power delegated to the PS to transfer officers within the Ministry such as might occur during a `reshuffle’. That being said, the affected officer not having complained however, no relief can be granted on that score at the behest of the
applicant.
That is not, however, the end of the matter since the actual effect of the (irregular) transfer is that the vacant post has, on the
PS’s own admission, now been filled, therefore, the substance of the internal transfer is that Mr. Iliesa Tuikenatabua has been `appointed’ to the post and although it is a power that has expressly been delegated to the PS under the Legal Notice, it was not apparently exercised in this instance. In other words, the substantive result of the PS’s decision is that Mr. Iliesa Tuikenatabua, under the guise of being transferred internally, was, in effect, `appointed’ to the vacant post.
On both counts, I am more than satisfied that the PS acted ultra vires in so far as she had no delegated power to transfer anyone within the Ministry, and, although she had the necessary power to appoint someone to fill the vacant post, the exercise of that power was plainly in breach
of the mandatory requirements of Regulation 5 of the Public Service (General) Regulations 1999 in so far as the appointee was not an applicant for the post nor had he been interviewed for it. To adopt the wording of the Regulation the appointment (under the guise of an ultra vires internal transfer) was not made `...... after an open, competitive selection process’.
The PS’s decision transferring and/or appointing Mr. Iliesa Tuikenatabua [DYO(W)] to the vacant post of DYO(C/M) is accordingly set aside and it is hereby declared that the position of DYO(C/M) remains vacant subject to the transfer being regularised by the PSC should it decide that such a course is the appropriate one to take.
Having said that I accept that the mere fact that a vacant post has been advertised does not mean that an appointment must be made
from amongst the candidates that applied for the post. It may well turn out that none of the applicants are considered suitable
and that must be a matter for the determination of the appropriate appointing authority, in this case, the PS. But if that was the decision, then courtesy, if nothing else, demanded that the candidates for the position be advised of the result
of their candidature and the vacant post withdrawn before being filled internally as PSC (not the PS) decides.
Needless to say in this regard, I accept State Counsel’s submission that there can be no legitimate expectation on the part of a candidate
for a vacant position either that he or she will be appointed to the position, or indeed, that the vacancy will be filled at all from the list of candidates (see : The unreported judgment of the Court of Appeal in Anuradha Charan v. PSC Civil Appeal No. 2 of 1992 at p.19). There is no merit in this ground of complaint and leave is accordingly refused therefor.
It must be emphasised that, all that the Court is deciding, at this juncture, is that, in the absence of a delegated power to transfer
an officer internally within the Ministry, the PS in purportedly exercising her delegated power of appointment is obliged to comply with the requirements of Regulation 5 of the Public Service (General) Regulation, 1999.
Leave having been refused on all grounds urged by the applicant, the application is accordingly dismissed. In doing so I confess
to some sympathy with the applicant’s grievance where the filling of the vacant post was undertaken in a less than transparent manner
and in circumstances that applicant’s counsel says can give rise to `nepotism in the service’.
There will be no order as to costs.
D.V. Fatiaki
JUDGE
At Suva,
1st August, 2001.
HBJ0004D.01S
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