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Permanent Secretary for Education v Khan [2004] FJHC 434; HBC0156.2003L (15 July 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0156 of 2003L

BETWEEN:

PERMANENT SECRETARY FOR EDUCATION
Plaintiff

AND:

SIKANDER ALI KHAN
1st Defendant

AND:

HAFI DEAN KHAN as the President,
NAZIM AHMED ALI as the General Secretary and
KHALID HUSSEIN as the Treasurer
of the Fiji Muslim League
2nd Defendants

Counsel for the Plaintiff: Ms. S. Tabaiwalu
Counsel for the Defendants: Mr. S.K. Ram

Date of Hearing: 29 June 2004
Date of Judgment: 15 July 2004

JUDGMENT

The Application

The plaintiff seeks by way of Originating Summons filed on the 29^th of May 2003, a declaration that the defendants do not have the lawful authority to prevent, prohibit or restrain Mohammed Hassan from discharging and performing his duties of head teacher at Ba Muslim Primary School.

The plaintiff also seeks damages and costs.

The orders sought are opposed.

The plaintiff relies on affidavits of Alumita Taganesia sworn on 6^th May 2003 and 7^th October 2003. The defendants rely on an affidavit of Sikander Ali Khan sworn on 4^th June 2003.

Background

The plaintiff is the Permanent Secretary for Education, a person in charge, pursuant to the relevant legislation for the appointment of the head teacher at the Ba Muslim Primary School.

The facts appear from the affidavits filed and might be briefly summarized, as the plaintiff in exercising its statutory role, appointed Mohammed Hassan to the position of head teacher after apparently complying with the prescribed protocol. There was initially an appeal against the appointment but the appellant subsequently withdrew that appeal.

It appears from the material filed, that Mohammed Hassan initially carried out his duties as head teacher uncontroversially. After about 12 months, issues arose, that resulted in him being effectively locked out of the school. There is, it is submitted, on behalf of the plaintiff, a protocol available for dealing with issues such as those that allegedly arose in this instance.

The plaintiff submits that this protocol was followed and the plaintiff satisfied itself that there was no basis for the complaints.

The defendants submit that the conduct of the head teacher was such that it warranted the defendants taking the action they did due to the failure of the plaintiff to properly or adequately carry out an investigation and inquiry and to take appropriate action against the head teacher with respect to the alleged misconduct.

The Issue

The issue for determination to facilitate the declaration as sought by the plaintiff is whether the plaintiff, pursuant to the Education Act [Cap. 262], is the person or authority who appoints head teachers to schools such as the Ba Muslim Primary School.

The Law

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^th 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 in question is an ED5E post, which is below ED1F.

Section 23 of the Education Act 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 powers to appoint “public officers”.

Public officer is defined in the Constitution, section 194, as relevantly meaning an officer in State Service. State Service is defined by section 194 of the Constitution as relevantly meaning the Public Service. The head teacher 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 the head teacher of the Ba Muslim Primary School and the legislation appears to give no role or function to the school in this regard.

Counsel for the defendants submit that “public officer” as referred to in section 23 of the Education Act, is referable to a government school only. This is not apparent from the legislation and this submission is rejected.

Whilst it may be that in some instances the interests of the people at a particular school may well be better served by some or some significant input from the school counsel or the school manager, the legislation does not provide for that to occur.

Similar issues arose and were considered by me in Ministry of Education v Rajendra Patel, Sharda Nand Sharma, Chandra Segran and Ishwar Prasad – HBC0153 of 2004L.

The situation however is not without remedy. Sections 6 and 7 of the Public Service Act 1999 provide for the Public Service Code of Conduct and for disciplinary action to be taken where that code is breached. Action under this legislation can, it would appear, only be taken by the plaintiff, however the defendants have a right 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

For the reasons stated above, I am of the opinion that the legislative regime, for better or worse, does not enable the defendants to exercise any lawful authority to prevent the head teacher from discharging his duties as principal of Ba Muslim Primary School and that the only rights available to the defendants are those pursuant to sections 6 and 7 of the Public Service Act 1999.

The plaintiff has failed to show that it suffered any loss or damage and accordingly it is inappropriate for the court to make any award of damages.

In the circumstances, I consider it appropriate that each party should pay their own costs.

Orders of the Court

1. I declare that the defendants have no lawful authority to prevent, prohibit or restrain Mr. Mohammed Hassan from discharging or performing his duties as head teacher of Ba Muslim Primary School.
   

2. Each party to bear their own costs.

JOHN CONNORS
JUDGE

AT LAUTOKA
15 JULY 2004