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State v Public Service Appeal Board, Ex parte Narayan [2002] FJHC 275; HBJ0014.2001 (14 February 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
JUDICIAL REVIEW

ACTION NO. HBJ 0014 OF 2001

IN THE MATTER of an application made byHARBANS NARAYAN, under RHC Order 53 Rule 3(2) for leave to apply for judicial review of the decision of the Ministry of Labour and Industrial Relations dated 29 June 2000 provisionally promoting Vimlesh Maharaj as Principal Labour Officer

AND:

IN THE MATTER of a decision of the Public Service Appeal Board dated 29 March 2001, dismissing the Applicant’s appeal against the said provisional promotion

THE STATE

V

PUBLIC SERVICE APPEAL BOARD
First Respondent

MINISTRY OF LABOUR AND INDUSTRIAL
RELATIONS
Second Respondent

VIMLESH MAHARAJ
Third Respondent

EX-PARTE:

HARBANS NARAYAN
Applicant

R. Singh for the Applicant
S. Sharma for the First and Second Respondents
J. Apted for the Third Respondent

Dates of Hearing and Submissions - 12th June and 20th August 2001
Date of Ruling - 14th February 2002

RULING

In my Judgment of 30th January 2002 in Action No. HBJ0001 of 2001 State v. The Public Service Commission and Others - Ex-parte: Salote Senitoto Rabuka I refused the Applicant Judicial Review of a decision of the Public Service Commission promoting another person instead of the Applicant Rabuka to the position of Chief Education Officer, Curriculum and Advisory Services in the Department of Education on the ground that I was not satisfied that in appointing another person to the position the Applicant Mrs. Rabuka had been denied natural justice.

Now before me I have an application which is in many ways similar to that in my earlier decision, the difference being that here the Applicant seeks leave to apply for Judicial Review of a decision of the Ministry of Labour and Industrial Relations dated 29th June 2000 provisionally promoting the Third Respondent as Principal Labour Officer and the subsequent decision of the Public Service Appeal Board of the 29th of March 2001 dismissing the Applicant’s appeal from the decision of the Ministry of Labour and Industrial Relations.

The relevant facts are that the Applicant had joined the Government Service on the 12th of May 1970 and work in the office of Senior Labour Officer (Central/Eastern) and Head Office until the 11th of January 1981 and thereafter held various posts as a Labour Officer, Senior Labour Officer and Principal Labour Officer until the 31st of March 2000.

The Third Respondent began as a Public Servant in 1972 as an Assistant Health Inspector.

In May 1973 he was appointed a Labour Inspector Class II and worked in various offices in the Western, Northern and Central Eastern Divisions.

On the 30th of April 1984 he was promoted as a Labour Officer at Headquarters and remained there until the 21st of May 1990 when he resigned from the Government Service. On the 5th of June 1990 he joined the Fiji Posts and Telecommunications Limited as an Assistant Manager Personal Administration but resigned from that Company on the 8th of July 1991 when he was re-appointed as a Labour Officer.

In the Government Gazette of 15th February 2000 the position of Principal Labour Officer (Industrial Relations) was advertised and reads as follows:

“MINISTRY OF LABOUR & INDUSTRIAL RELATIONS

123/2000 PRINCIPAL LABOUR OFFICER [INDUSTRIAL RELATIONS]

Responsible to the Deputy Secretary for the following duties, manage the Ministry’s Industrial relations Services. Provide quality advice to Unions and Employees on Industrial Relations matters. Participate in the formulation of policies and procedures relating to the Ministry’s activities as part of the Corporate Management Group to ensure the smooth and efficient operation of the service, consistent with objectives of the Ministry. Prepare reports on specific issues as and when required for the information of the Permanent Secretary and the Minister for briefing Cabinet and Prime Minister on the subject should the need arise. May also be required to perform the duties of Principal Labour Officer [Labour Administration] or PLO [International Affairs and Training] or any other position of equivalent level.

Qualifications: An officer of high calibre. Qualifications required for appointment as Senior Labour Officer and around 2-3 years service in that grade or equivalent or relevant degree or postgraduate qualifications and/or relevant skills and experience in this particular field in any other organisation. Assessed ability to manage staff and resources. Must have demonstrated intellectual capacity, drive, determination and flair in existing grade. An understanding of the problems of industrial relations is essential and proven to be meritorious performer.

Salary: SS01, $29,408 - $37,137.”

The Applicant applied for the position but was unsuccessful. On the 29th of June 2000 Ministry of Labour and Industrial Relations provisionally appointed the Third Respondent to the post. The Applicant appealed to the Public Service Appeal Board against the decision of the Ministry of Labour and on the 29th of March 2001 the Board dismissed his appeal. He now applies to this Court for leave to judicially review the decision of the Public Service Commission. The grounds on which he seeks leave are:

1. that the decision was contrary to Section 140(b) and (c) of the 1997 Constitution;
   
2. that back-dating the promotion of the Third Respondent from the 27th of October 1997, gazetted on the 3rd of April 1998 was a nullity;
   
3. that the Third Respondent did not meet the minimum qualifications requirement (MQR) and was not eligible to apply for the post of Principal Labour Officer;
   
4. that the Applicant has more merit in terms of experience and service than the Third Respondent and therefore should have been appointed to the post.
   

The First and Third Respondents have filed affidavits opposing the application and I have received written submissions from the parties.

In an affidavit sworn on the 10th of April 2001 the Applicant alleges that by back-dating the promotion of the Third Respondent, first the Ministry of Labour and then the Public Service Appeal Board wrongly discriminated against the Applicant. He also alleges that he was discriminated against by the Department because it did not advertise the vacancy immediately it became vacant on the retirement of the previous holder of the position a Mr. Saukat Ali.

The Applicant claims that the Third Respondent could not have been promoted because at the time the substantive post holder had still not retired, this being on the 6th of May 1998.

Apart from these claims essentially I understand the Applicant’s main complaint to be that because of his seniority he should have been promoted to the post.

In answer to these allegations the Chairman of the Public Service Appeal Board Rigamoto Taito has sworn an affidavit in which he rebuts the allegations of the Applicant. He says that the Ministry of Labour and Industrial Relations and the

Applicant made submissions to the Public Service Appeal Board; the Applicant appeared in person and the Ministry through a Mr. Saverio Baleikanacea. Mr. Taito states that the Applicant was given every opportunity by the Board to be heard in his appeal and he made both verbal and written submissions. The Third Respondent, however was not present during the hearing of the appeal, and therefore was not heard.

After the hearing the Board met on the 29th of March 2001 to consider its decision and after deliberating, it dismissed the appeal on the grounds that the Third Respondent had more merits in terms of experience, exposure to relevant functions, tertiary qualifications and better interview results.

As to the Applicant’s contentions that the Board should not have back-dated the promotion of the Third Respondent Mr. Taito says that the decision to back-date the promotion had been made in 1998 by the Public Service Commission. The decision was not challenged by the Applicant or any other person in 1998.

In addition the Public Service Appeal Board only came into existence in July 1999. The decision to promote the Third Respondent in 1998, with effect from October 1997, was made at a time when the Board did not exist. The Board considered that it did not have any discretion to change or revoke the decision made in 1998 and therefore proceeded to consider the appeal on the basis that the decision was made correctly and that the Third Respondent had been promoted to the position of Senior Labour Officer from October 1997. Therefore, as far as the Board was concerned the Third Respondent was the substantive holder of the position of Senior Labour Officer (Industrial Relations) and had over two years service in that position as required by the minimum qualifications requirement for a Principal Labour Officer.

The evidence before the Board from the Ministry which the Board accepted was that the Applicant had never worked in the Industrial Relations Division of the Ministry and that according to the Ministry the Applicant was seriously lacking in the aspects of industrial relations and had shown no initiative in developing interest, except when he was required at times to chair the Disputes Committee on an ad-hoc basis with direct guidance from the Industrial Relations Division. The Ministry stated the Applicant lacked sufficient relevant experience and knowledge of industrial relations necessary for the post of Principal Industrial Relations Officer (Industrial Relations).

The Board recognised that the Applicant had served more years as a Senior Labour Officer than the Third Respondent but the Ministry was of the clear view that the Third Respondent had demonstrated himself to be far more acquainted with the area of industrial relations than the Applicant.

In these circumstances the Board, like the Ministry, stated that the Third Respondent was better qualified for promotion than the Applicant.

The Third Respondent swore an affidavit on the 19th of July 2001 in which he justifies the back-dating of his appointment under Section 40 of the Interpretation Act Cap. 7. That section reads as follows:

“(1) Where the substantive holder of any public office constituted by or under any written law is on leave of absence pending relinguishment by him of such office, or has been instructed by the Government to take up a special duty or is otherwise absent, it shall be lawful for another person to be appointed, substantively to the same public office.

(2) Where two or more persons are holding the same office by reason of an appointment made in accordance with subsection (1), then, for the purpose of all written law and in respect of every power conferred or duty imposed upon the holder of such office, the person last appointed to the office shall be deemed to be the holder thereof.”

In my judgment the Third Respondent is correct and the Ministry was entitled to rely on Section 40 in back-dating the Third Respondent’s appointment. As has been said time and again it is not this Court’s function to consider the relative merits of an applicant and other persons in applying for promotions. The Court’s duty is simply to judge whether the appointment in the light of all the evidence was fair or, as is frequently said, was procedurally fair. The only time at which this Court can interfere with a decision of an appointing body is when on a review of the evidence, the decision made was so manifestly unreasonable that the decision-maker, properly directing himself could not have reached it.

In my judgment the Applicant has not made out such a case here. I therefore find no reason to interfere with the decision of the Public Service Appeal Board and therefore refuse the Applicant leave to apply for Judicial Review. There will be no order for costs.

JOHN E. BYRNE
JUDGE