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Emasanu v Garap [1996] PGNC 102; N1445 (21 June 1996)

N1445

PAPUA NEW GUINEA
[In the National Court of Justice]

O.S. 192 OF 1996

MONA EMASANU
(Plaintiff)

v

DR. JOHN GARAP
Chairman Representing Board of Angau Memorial Hospital
(First Defendant)

AND

JOHN KALI
Chairman representing the Selection Committee Angau Memorial Hospital
(Second Defendant)

LAE: ANDREW J.
20 & 21 JUNE 1996

Declaratory Orders - Procedures for selection and appointment of officers under the Hospitals Act 1994 - Position of the Director of Nursing Services - Powers of Management Board of a Public Hospital and Selection Committee - Whether bound by the General Rules of the Public Services (Management) Act 1986.

JUDGMENT

ANDREW, J.: In this matter the plaintiff proceeded by way of originating summons seeking the following declarations:

1. "A declaration that the second defendant was not an authorised chairman to chair the selection panel which decided the position of Director of Nursing Service advertised by Angau Memorial Hospital.
   
2. A declaration that the composition of the selection committee was not properly constituted.
   
3. A declaration that the selection committee erred in applying wrong criteria when considering and deciding the applications of the Position of Director of Nursing Services advertised by Angau Memorial Hospital."
   

The Plaintiff was one of three who had been short-listed for the position of Director of Nursing Services at Angau Memorial Hospital but the position was awarded to another applicant. The application is made pursuant to S.155 (4) of the Constitution.

In essence, the Plaintiff submits that the selection process in an application of this nature must be in strict compliance with the Public Services (Management) Act 1986 - and the general orders established thereunder for the selection of officers. Under those orders there are 2 different selection committees used for the selection of national officer. Clause 5.46 is as follows:

"5.46 There are two different selection committees used for the selection of national officers. One selection committee is for positions at Assistant Secretary level and above and the other is for positions below Assistant Secretary in National and Provincial Departments".

For vacancies in National and Provincial Departments below the level of Assistant Secretary - Clause 5.47 says:

"5.47 For all vacancies below the level of Assistant Secretary, National and Provincial Departments will be responsible for administering their own Selection Committees and making selection decisions.

The selection committee shall consist of the following members.

(a) The Departmental Head of the Department, or his delegate, in which the vacancy exists, who will act as Chairman of the Selection Committee.

(b) The Divisional Head of the Division in which the vacancy exists;

(c) The Head of the Staff Development and Training function in the Department in which the vacancy exists; and

(d) The Regional Public Service Inspector (or his nominee) in the case where the vacancy exists in a Provincial Department."

For all vacancies at Assistant Secretary level and above - all Departments: Clause 5.53 and 5.54 apply:

"5.53 The Selection Committees for these vacancies are administered and chaired by the Department of Personnel Management.

5.54 For these vacancies the selection committee shall consist of the following members:

(a) an officer appointed by the Secretary Department of Personnel Management who will be the chairman of the selection committee.

(b) The Departmental Head of the Department in which the vacancy exists.

(c) The Deputy Secretary of the Department in which the vacancy exists or the Departmental Head's nominee.

(d) The Head of the Staff Development and Training function in the Department in which the vacancy exists."

In this case the Plaintiff says that the position of Director of Nursing Services was below that of Assistant Secretary. The defendants say that it is Assistant Secretary level.

In this case the selection committee comprised.

(a) MR. JOHN KALI - Chairman, Department of Personnel Management.

(b) DR. JOHN GARAP - Member (Hospital Board).

(c) MRS JANET PHILEMON - Member (Hospital Board).

(d) MRS HEATHER ATHERTON - Member (Hospital Board).

(e) DR. LIKEI THEO - representing Department of Health.

I am satisfied that the position of Director of Nursing Services equates to that of an Assistant/Secretary. I accept the evidence of Mr. John Kali - the Public Service Regional Manager of the Momase Region, who chaired this selection committee, that Public Hospitals are governed by the Public Hospitals Act of 1994 and the hierarchy and the structure set out thereunder is different to that of the normal Public Service Departmental Structure - the C.E.O. of the public hospital, is for the purposes of the Public Service Management Act - deemed to be the Departmental Head. (Which flows from N.E.C. decision 9/95 of 11th January 1995) and following from that structure, it would normally follow that the Directors (there are 3) namely Nursing Services, Medical Services and Finance and Administration would be deemed to be Assistant Secretaries.

S.6 of the Public Hospitals Act establishes a Management Board for each public Hospital and by S.6 (2):

S.6 (2) The Board of a public Hospital -

(a) Is a corporation, with perpetual succession;

(b) Shall have a seal; and

(c) May acquire, hold and dispose of property; and

(d) May use and be used in its corporate name.

It is therefore a distinct legal entity its functions and powers being set out in ss 7 & 8. It is therefore not, in my view, strictly bound by the rules of the public service.

In relation to the appointment of officers of Public Hospitals - that position is governed by S.26.

"26 (1) The Board of a public Hospital may, through a selection process approved by the Departmental Head of the Department responsible for personnel management, appoint to be officers of that public hospital.

(a) .........

(b) a suitably qualified person to be the Director, Nursing Services.

(c) ........... "

The word 'may' - shows that this is discretionary.

As a separate corporate entity - I think that the Board may appoint a Director in the manner in which it sees fit and is not strictly bound by the rules of the Public Service Management Act in relation to selection of officers. The legislature has recognised the expertise of the Department of Personnel Management in these matters and given the Board the option under S.26 to consult with the Department in such matters.

S. 28 of the Act provides for Regulations for the service of Public Hospitals. These have not yet been passed and therefore the Public Service Management Act and the general orders apply insofar as they are relevant.

In any event I am satisfied that the selection committee in this case was the closest that could be comprised in order to comply with the general orders under the Public Service Management Act. The person appointed to the position of C.E.O. at that time was subject to a court order as that position was being disputed and it was impractical for her to sit on the selection committee.

I have heard the evidence of Mr. Kali. I am satisfied that he was a very professional officer and I accept his evidence that the selection committee complied with the general orders as far as it practically could. In any event, as I have found, the Board was not strictly bound to follow those rules.

I am satisfied the selection process in this case was very thorough and professional. In my view the decision of the selection committee was made properly and fairly. The Committee had a discretion in this matter which it validly made. I see no error and it is not for this Court to determine the merits of each candidate. There is no evidence of any wrong criteria being used.

The application is therefore dismissed.

Costs to the Defendants.

Lawyer for the Plaintiff: Milner & Associates Lawyer
Lawyer for the Defendant: Gamoga & Company Lawyer