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Ministry of Education v Patel [2004] FJHC 424; HBC0153.2004L (11 June 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0153 OF 2004L

BETWEEN:

MINISTRY OF EDUCATION
Plaintiff

AND:

RAJENDRA PATEL, SHARDA NAND SHARMA,
CHANDAR SEGRAN and ISHWAR PRASAD
all Trustees and Controlling Authority of Tavua College, an Education Institute, Tavua
Defendants

Counsel for the Plaintiff: Ms. S. Tabaiwalu
Counsel for the Defendants: Mr. H.A. Shah

Date of Hearing: 2 and 3 June 2004
Date of Judgment: 11 June 2004

JUDGMENT

The Application

The plaintiff seeks by way of Originating Summons, a declaration that the defendants have no lawful authority to prevent, prohibit or restrain the principal of Tavua College, Mr. Balram, from performing his duties.

The orders sought are opposed.

Background

Tavua College is an educational institution apparently owned, controlled and managed by the defendants. It is registered with the Ministry of Education as a secondary school.

The Ministry of Education appointed Mr. Balram as principal of Tavua College effective from 24 January 2000. The position of principal at Tavua College is graded ED1D.

Sometimes subsequent to Mr. Balram’s appointment, his relationship with the defendants broke down. It is not relevant to this application as to why that relationship broke down.

The defendants have written to the plaintiff asking that Mr. Balram be removed as principal of Tavua College and to threaten to stop Mr. Balram from carrying out his duties as principal at the school.

The Issues

Pursuant to section 147(1)(a) of the Constitution Amendment Act 1997, the Public Service Commission is vested with the power to make appointments to public officers.

Section 150 of the Constitution enables the Public Service Commission to delegate the power of appointment to relevantly a secretary of a department. A similar power of delegation is to be found in section 16 of the Public Service Act 1999.

By gazettal on 29 November 2002, the Public Service Commission delegated to the Permanent Secretary for Education the power to appoint any officer in grades ED1F, AC01 and below. The position held by Mr. Balram at Tavua College, is graded ED1D which is below grade ED1F.

Section 23 of the Education Act (Cap. 262) provides: -

“The appointment of teachers (other than public officers) in any school shall lie with the manager of such school, but every such appointment shall be subject to the prior approval of the Permanent Secretary.”

This section whilst giving the power to the school to appoint teachers specifically excludes the power to appoint “public officers”.

Public Officer is defined in the Constitution, section 194, as relevantly meaning an office in State Service. State Service is defined by section 194 of the Constitution as relevantly meaning the Public Service. Mr. Balram is a public servant being employed by the Ministry of Education. He is a public officer and the school has no right to appoint him or any similar person relying upon the provisions of section 23 of the Education Act.

Section 44 of the Interpretation Act provides that the power to appoint also includes the power to remove, suspend, dismiss or revoke unless of course some contrary intention appears.

It is apparent therefore that the legislative regime detailed gives to the plaintiff the capacity to hire and fire persons such as Mr. Balram and the legislation gives no role or function to the school.

It would seem that the only remedy available to a school in the situation that the Tavua College claims to be in, is that provided in Sections 6 and 7 of the Public Service Act 1999. These Section 6 sets out the Public Service Code of Conduct and section 7 of the Act gives the right for disciplinary action to be taken where appropriate. It would seem however that action can only be taken under this provisions by the plaintiff and that the defendants only right would be to complain to the plaintiff and urge the plaintiff to take action as a result of any alleged breach of the code of conduct.

Conclusion

It would appear that the legislative regime does not enable the defendants to exercise any lawful authority to prevent Mr. Balram from discharging his duties as principal of Tavua College. The only right the defendants have, is to request the Ministry of Education to take action if it is alleged there has been a breach of the code of conduct established under section 6 of the Public Service Act 1999.

Orders of the Court

1. Declare that the defendants have no lawful authority to prevent, prohibit or restrain Mr. Balram from discharging his duties as principal of Tavua College;
   

2. Each party to bear their own costs.

JOHN CONNORS
JUDGE

AT LAUTOKA
11 JUNE 2004

Note for File

In view of the orders made in the Originating Summons and the fact that the Originating Summons was dealt with by consent of the parties, both the plaintiff and defendants Notices of Motion are dismissed.

Connors J.
3 June 2004