IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. HBJ0001 OF 2002

Between:

THE STATE

v

PUBLIC SERVICE APPEAL BOARD
- First Respondent

MINISTRY OF INFORMATION & COMMUNICATION
- Second Respondent

SUZIE GREY
- Third Respondent

Ex-Parte: CHANDRA PRAKASH SINGH
- Applicant

Mr. R.P. Singh for the Applicant
Mr. Y. Singh for the 2nd Respondent
No appearance of 3rd Respondent & Interested Party

JUDGMENT

Pursuant to leave granted herein on 19th February 2002, Chandra Prakash Singh (the ‘applicant’) applies for judicial review of the decision of the Public Service Appeal Board (the 1st Respondent) dated 4th December 2001.

The decision impugned reads:

‘The Appeal Board has considered your appeal and decided to disallow it. The reason is that Ms Grey has an edge over you in terms of relevant exposure.’

The following affidavits have been filed for Court’s consideration:

1)	Applicant’s in support dated 4 January 2002.

2)	Mouga Cakau, Acting Secretary, Public Service Appeals Board (1st Respondent) in opposition sworn 26 April, 2002.

3)	Eliki Bomani, Director of Information (the 2nd Respondent) in opposition sworn 24 April, 2002.

4)	Applicant in Reply to affidavit in (2) and (3) above sworn 25 June, 2002.

Grounds for judicial review (as stated in the Motion)

That the Public Service Appeal Board failed to take into account the Constitutional requirements under section 140(b) and (c) are:

(iii)	that the promotion must be made on merit; and

(iv)	that equal opportunities must be given for training and advancement.

That the Public Service Appeal Board also failed to take into account or give proper weight to the Applicant’s contention that the second Respondent refused to give acting appointment to the Applicant in breach of section 140(c) of 1997 Constitution, despite his application being most senior experience information officer and better qualifications then that of the third Respondent.

That the first Respondent failed to take into account that the second Respondent made irrelevant and unjustified excuses to deny advancement to the Applicant and biasly appointed the third Respondent to act on the said vacant post.

That the acting appointment of the second Respondent on the vacant post or elsewhere was not made on merit was on criteria for promotion.

That no evidence was produced before the first Respondent to challenge or dispute the Applicant’s contention that he had better merit in terms of qualifications, experience and performance than the second Respondent when her appointment to act on the vacant post and subsequent provisional promotion was made on bias ground improperly, unfairly and unreasonably.

Relief

The reliefs sought are:

(a)	The order for certiorari to quash the said decision.

(b)	A determination and declaration that the Applicant was entitled to be promoted on merit under Section 140(b) and (c) of the 1997 Constitution.

(c)	A declaration that 1st Respondent was wrong in its decision that acting appointment is no criteria for promotion resulting in denial of natural justice, ultra vires, improper, unreasonable, unfair and in breach of the legitimate expectation.

(d)	A declaration that there was breach of the provision of Section 140(c) of the 1997 Constitution.

(e)	Mandamus to promote the applicant backdating promotion to 4 December, 2001.

Background Facts

The background facts are well set out at page 2 of second respondent’s written submission. It states:

(a)	The applicant and the third respondent applied for the position of Principal Information Officer (Information Services) in the Ministry of Information and Communications, the vacancy having been advertised on 14 March 2001. (annexure C7 in the affidavit of the applicant, filed on 6 February 2002).

(b)	Both applicants to the vacancy were interviewed by an Interview Panel. The results of the interview panel were that the Applicant had a rating of 45.9, while the third respondent had a consensus rating of 65.4.

(c)	The results of the Interview Panel were submitted to the Staff Board. After a full merit assessment, the Staff Board and the Permanent Secretary agreed that the third respondent was the most meritorious candidate for the vacancy.

(d)	The third respondent was provisionally appointed to this vacancy by the Ministry.

(e)	The Applicant filed an appeal with the first respondent against the third respondent’s promotion on 5 October 2001. (annexure C8 in the affidavit of the Applicant, filed on 6 February 2002).

(f)	The appeal was heard by the first respondent on 22 November 2001, in the presence of all parties, after all parties had been given full opportunity provide written submissions and evidence to the first respondent. (annexures 7.0 in the affidavit of Mouga Cakau, filed on 30 April 2002).

(g)	The first respondent met and deliberated on the appeal on 3 December 2001. After its deliberations, the first respondent made a decision to disallow the appeal. The reason given for disallowing the appeal was that the third respondent had an edge over the Applicant in terms of relevant exposure. (annexure C7 and C8 in the affidavit of Albert Rosa).

Applicant’s submission

The applicant who is 50 years of age became a civil servant on 8 June 1981 rising to the post of Senior Information Officer in the Ministry of Information and Communication.

He said that when the case of acting appointment for the vacant post of Principal Officer in the Ministry became available he was denied it despite his qualifications (double degrees in communication) and his 20 years’ service in the Ministry. The 3rd Respondent was chosen instead from 9 June 2000 without giving the applicant any chance which counsel says is in breach of the said section 140(c) of the Constitution.

The applicant, through his counsel says that the decision of the Board is “improper” as it laid stress on third respondent’s ‘acting appointment’ when it gave its decision. The decision was not made on merit, he says. Not appointing him to act amounted to not only a breach of section 140(c) of the 1997 Constitution but it also contravened section 4 of the Public Service Act 1999 when it denied him equal opportunity for training and advancement. Counsel submits that this was an error of law.

Counsel further submits that the Board failed to apply the rule of fairness (Section 26(5) of the Public Service Act (1999) and accord natural justice (Section 26(9)(a) of the Act) and give proper reasons for decision (Section 26(9)(c) of the Act) resulting in decision being Wednesbury unreasonable.

Consideration of the application

This application for judicial review came about because the Public Service Appeal Board dismissed the applicant’s appeal for the reason it gave, namely, that the third respondent ‘has an edge over you in terms of relevant experience’.

The judicial review hearing took place on 5 September, 2002. There was no appearance for the first and third respondents although I have an affidavit from the first respondent. Apart from their written submissions both counsel were heard orally.

Looking at the grounds for this application and the submissions made by counsel for the applicant a distinct impression is created that principles governing judicial review have been overlooked resulting in the application being misconceived. Indirectly it is an appeal from the decision of the Board.

Principles pertaining to judicial review

I state hereunder some of the principles pertaining to judicial review which ought to be borne in mind in considering the application for judicial review.

Judicial review is not an appeal from a decision but it is a review of the manner in which the decision was made. It is concerned, “not with the decision but with decision-making process. Unless that restriction on the power of the Court is observed, the Court will, in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power” (Lord Brightman in Chief Constable of the North Wales Police v Evans [1982] 1 W.L.R. 1155 at 1173]. Further in that case Lord Hailsham at 1160 commented on the purpose of the remedy under Order 53 as follows which is apt:

“This remedy, vastly increased in extent, and rendered, over a long period in recent years, of infinitely more convenient access than that provided by the old prerogative writs and actions for a declaration, is intended to protect the individual, judicial, quasi-judicial, and, as would originally have been thought when I first practised at the Bar, administrative. It is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the courts as the bodies making the decisions. It is intended to see that the relevant authorities use their powers in a proper manner.

The Appeal Board is a creature of statute (Public Service Act No. 8 of 1999) and by judicial review it could not be divested of its powers by Court provided the powers are exercised in the proper manner.

Furthermore, it should be noted that in a judicial review the Court is “not as much concerned with the merits of the decision as with the way in which it was reached” (Evans, supra at 1174). Also, as put by Lord Templeman in Reg. v Inland Revenue Commissioners, Ex parte Preston (1985) A.C. 835 at 862:

“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”.

As was said by the Fiji Court of Appeal in The Permanent Secretary for Public Service Commission and The Permanent Secretary for Education, Women & Culture ex p. Lepani Matea Civil Appeal No. ABU0018 of 1998S at 12 that the Court:

“must not do is to determine the merits of the matter, or substitute its opinion for that of the body concerned upon the merits”.

One of the purposes of judicial review is to ensure that that an applicant is given a fair treatment by the decision-making body in question. The judicial review jurisdiction is supervisory in nature. The Court confines itself to the question of legality when reviewing a decision.

Consideration of grounds of review

The modern heads of judicial review jurisdiction in respect of a decision are “illegality”, “irrationality”, “procedural impropriety” or abuse of power as summarised in 1984 in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374). ‘Illegality’ is synonym for ‘error of law’ which includes the taking into account of an irrelevant consideration or failure to take relevant consideration into account. “Irrationality” describes a decision “which is so outrageous in its defiance of logic or of accepted moral standard that no sensible person who had applied his mind to the question to be decided could have arrived at it’. (CCS Unions (supra) at 951).

The issue of ‘procedural impropriety’ and ‘illegality’ have been raised by the applicant.

Procedural impropriety

Under the Act, the appeal is governed by the provisions, inter alia, of sections 25 and 26 of the Act. I find that the Board has complied with these provisions.

The relevant sections, namely, 26(6) and 26(9) provide as follows:

Section 26(6)

At the hearing of an appeal –

(a)	the appellant is entitled to be present and may be represented by a legal practitioner or by any other persons; and

(b)	the officer or person against whose promotion or appointment the appeal has been lodged is entitled to be heard in such manner as the Appeal Board thinks fit and may be represented by a legal practitioner or by any other person.

Section 26(9)

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 –

(a)	accord natural justice to the parties to the appeal;

(b)	keep a written record of its proceedings; and

(c)	give reasons for its decision on the appeal.

Mr. Singh, in one of his grounds laboured on the point that on ‘merits’ the applicant should have been promoted and not the first respondent. By raising this ground he is in effect asking the Court to consider the merits of the case, but he should know that that is not the Court’s function in a judicial review. Also, if the Courts were required to consider the merits it will tantamount to the ‘appeal’ by the applicant. Here also, there cannot be an appeal in a judicial review or that judicial review is not an appeal. “It is a protection and not a weapon” (Lord Keith in Lonrho ple v Secretary of State for Trade and Industry [1989] 2 ALL E.R. 609 at 617). In an appeal the court is concerned with the merits of the decision under appeal but not so in a judicial review. In this regard in Re Amin [1983] 2 AC 818 at 829, Lord Fraser observed that:

‘Judicial review is concerned not with the merit of the decision but with the manner in which the decision was made…..Judicial review is entirely different from an ordinary appeal. It is made effective by the court quashing an administrative decision without substituting its own decision, and is to be contrasted with an appeal where the appellate tribunal substitutes its own decision on the merits for that of the administrative officer’.

Instant case

In the instant case the third respondent was promoted and the applicant, who was the aggrieved party, did not succeed on appeal to the Board for the reasons stated hereabove.

Each party was given the opportunity to present his/its own case and the Board came to a decision based on the credentials presented to it.

In considering the appeal the Act has empowered the Board to exercise its own discretion and to decide as counsel says what weight it should give to qualifications over experience and seniority or external qualifications over in-service training or qualifications over exposure to higher responsibilities. Similarly, in the application of section 140 of the Constitution the Board has wide discretionary powers as to what weight it gives to ethnicity over gender or vice-versa. (Fiji Public Service Appeal Board and Mahendra Singh s/o Daulat Singh Civil Appeal No. 50/81, F.C.A.).

The Board has been established under the Act and there is set out the procedure on appeal under section 26 of the Act.

Arising out of the Board’s decision, the issue that could arise, and that is where the Court comes in through Judicial Review is as Fiji Court of Appeal in Mahendra (supra) at page 67 of the judgment said:

“The question is whether or not in the events which happened there has been either a breach of the statutory right of respondent to be heard, or, that the decision of the Appeal Board has been arrived at by a procedure which offends against the principles of natural justice and thus putting the decision outside the decision making authority of the Appeal Board: vide Attorney-General v Ryan P.C. [1980] A.C. 718 at p.725; [1980] 2 W.L.R. 143 at p.152 G. This question requires a careful consideration of the legislature by which the State, through the statutory bodies entrusted with the power to appoint, to see whether or not (a) the statutory procedure has been followed, and (b) the principles of natural justice apply, and, if so, whether they have been observed.

The following passage from the said judgment at p.7 is also worthy of note and is pertinent to this case:

“There is no right of general appeal in which the rival applicants are entitled to be heard on the question of who is to be appointed. The State, through its legislature, has seen fit to define clearly the subject matter of an appeal and the procedure which must be followed. Neither applicant has any greater entitlement to the position than that which has been conceded to him and made available by the relevant legislation”.

The judgment goes on to say (ibid) that:

“Thus the appeal is confined to a very narrow and well-defined issue and does not determine the question which the Appeal Board has to determine, namely, who is the officer who has “most merit” for the appointment.”

The applicant argued forcefully that the Board should not have taken into consideration the ‘acting appointment’ of the third respondent. However, on the evidence this is a misapprehension on the part of the applicant, but there is no doubt that it was, along other factors, taken into account but it cannot be suggested that was a dominant consideration which led to the refusal of the appeal.

It is quite clear from the evidence of Eliki Bomani, the Director of Information for the reasons given why the third respondent was appointed to the post. Finally on appeal the Board upheld the decision for the reasons it gave after hearing the appeal and after examining the submissions from the parties. The Board was entitled to the decision to which it came. It is a decision which cannot be attacked as being so unreasonable that no reasonable tribunal could have come to. (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 229). On this principle Lord Templeman in the House of Lords case of Brind v Secretary of State [1991] 1 ALL E.R. 720 in 725 said:

“The English courts must, in conformity with the Wednesbury principles (see Association Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 ALL ER 680, [1948] 1 K.B. 22) discussed by Lord Ackner, consider whether the Home Secretary has taken into account all relevant matters and has ignored irrelevant matters…. If these conditions are satisfied, then it is said on Wednesbury principles the court can only interfere by way of judicial review if the decision of the Home Secretary is ‘irrational’ or ‘perverse’.”

The factors which are to be kept in mind in considering the review of a decision are set out in the following passage from the judgment of Lord Lane C.J. in Regina v Immigration Appeal Tribunal, ex parte Khan (Mahmud) (1983) 2 W.L.R. 759 at 762-3 which is apt:

“Where one gets a decision of a tribunal which either fails to set out the issue which the tribunal is determining either directly or by inference, or fails either directly or by inference to set out the basis upon which they have reached their determination upon that issue, then that is a matter which will be very closely regarded by this court, and in normal circumstances will result in the decision of the tribunal being quashed. The reason is this. A party appearing before a tribunal is entitled to know, either expressly stated by the tribunal or inferentially stated, what it is to which the tribunal is addressing its mind. In some cases it may be perfectly obvious without any express reference to it by the tribunal; in other cases it may not. Secondly, the appellant is entitled to know the basis of fact upon which the conclusion has been reached. Once again in many cases it may be quite obvious without the necessity of expressly stating it, in other cases it may not.” (emphasis added).

For these reasons I find that there is no procedural impropriety in this case.

Conclusion

To conclude, for the above reasons the applicant fails on all his grounds of review.

The Board is constituted under the Public Service Act 1999 and its duties are stated therein. The ‘procedure on appeal’ is also laid down in section 26 and in section 26(9) it is required to accord ‘natural justice’, keep a written record of its proceedings and ‘give reasons for its decisions on appeal’. I find that the Board had complied with these requirements.

The decision which the Board was to make had to be arrived at by simply inquiring into the capability and diligence etc. of the applicant and the third respondent based on the material of professional and academic character presented to the Board and to see that the person promoted is a fitter person for the post. They arrived at the decision that the third respondent has an ‘edge’ over the applicant. The Court does not interfere in this exercise as there are certain statutory powers referred to in the Act vested in the Board which it exercised properly and did not act ultra vires. As was said in Ansell v Wells & Others 63 F.L.R. 127 at 133 by Franki J:

“The major purpose of the legislation is to ensure, in the public interest, that the most efficient person is appointed to the position. There is of course, a need to ensure that the promotion should be made in a way which is fair, that it is likely to promote harmony in the public service, and that public servants have no legitimate grievance in relation to the selection of the person to be promoted to a vacant position.”

I find that adequate consideration was given to section 140(b) and (c) of the 1997 Constitution and hence there cannot be any complaint by the applicant in this regard.

The Board I find has taken into account all that they ought to have and have not looked at irrelevant matters. The decision was not unreasonable in the Wednesbury sense.

In the outcome, there are no reasons for interfering with the Board’s decision. The relief sought are all refused.

The motion for judicial review therefore fails and is dismissed with costs in the sum of $400.00 to first respondent.

[ D. Pathik ]
Judge

At Suva
31 March 2003