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PUBLIC SERVICE COMMISSION v PUBLIC BODIES APPEAL TRIBUNAL

2019 SCJ 137

Record No. 114628

THE SUPREME COURT OF MAURITIUS

In the matter of:-


The Public Service Commission
Applicant

Public Bodies Appeal Tribunal

Respondent

In the presence of:


1. Nassir Ally Khadun
2. Koshik Reesaul
Co-Respondents

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JUDGMENT

In the absence of any objection from the respondent and co-respondents,


leave was granted to the applicant (“the PSC”) to apply for judicial review of the
determination of the respondent (“the Tribunal”) dated 23 February 2017 quashing
the decision of the PSC to appoint the second co-respondent (“Mr Reesaul”) to the
post of Road Transport Commissioner. The PSC is accordingly seeking an order
from this Court –

“(a) directing the Respondent to bring up the records leading to the


Determination dated 23 February 2017;

(b) declaring that the Determination is ultra vires, irrational, and


unreasonable in the Wednesbury sense;

(c) in the nature of Certiorari to issue to quash and/or set aside


and/or reverse the Determination; and

(d) for such other orders that the Court may deem fit to make.”
2

The initial affidavit in support of the Motion Paper contained seven grounds
for seeking relief but learned Counsel for the PSC stated at the hearing before us
that he would only be insisting on the following three grounds –

“The Applicant avers that the determination of the Respondent


is ultra vires, irrational, and unreasonable in the Wednesbury
sense and should therefore be judicially reviewed in as much
as –

(c) the Respondent was wrong in its assessment of the


markings given under the criterion “additional relevant
qualifications”;

(d) the Respondent was wrong to have, after having rightly


concluded that it cannot step into the shoes of the
interviewing panel, found that it cannot accept the way
that the markings were given under the criterion
“relevant additional qualifications” for both parties;

(e) the Respondent was wrong to have considered the


markings as a ground of appeal, thereby acting ultra
vires section 6(5) of the Public Bodies Appeal Act.”

We consider that this belated stand of the PSC not to press the other grounds
is reasonable in the light of the fact that the Tribunal’s finding that both co-
respondents were eligible for the post of Road Transport Commissioner is not being
challenged in this application or indeed any cross-application by any of the co-
respondents. We need however to deplore the fact that this stand of the PSC comes
so late in the day; indeed, had the applicant not included the other four grounds in its
initial application, or had it informed the Court and the other parties earlier that it
would not be insisting on same, there would certainly not have been the need for all
of the four subsequent affidavits filed on behalf of the applicant, six affidavits on
behalf of the Tribunal, four affidavits on behalf of the first co-respondent and three
affidavits on behalf of the second co-respondent – an exceptionally high total number
of affidavits in an application for judicial review.

We have further made it clear at the hearing that we would be disregarding


the verbose and argumentative averments in the affidavits filed by all parties on
issues other than those relating to the operative part of the determination of the
Tribunal to the effect that the PSC’s process for allocating markings under the
criterion “relevant additional qualifications” was flawed in view of the inconsistencies
regarding the assessment of the qualifications of Mr Reesaul.
3

Our final preliminary observation with regard to the affidavits relates to the six
affidavits that the Tribunal has chosen to file. In his very first affidavit, the second co-
respondent took issue with the affidavit filed by the Tribunal at that stage on the
ground that the Tribunal was functus officio and was purporting in its affidavit to
expand materially and substantively on its determination and to emphasise “with
undue favour” the case for the first co-respondent. The second co-respondent
therefore moved that parts of the Tribunal’s affidavits be expunged or disregarded, to
which the Tribunal and the first co-respondent replied in their subsequent affidavits
that the Tribunal was under a duty to put all material facts submitted before it during
the hearing.

At the hearing before us, learned Senior Counsel for the second co-
respondent ably expanded on the issue of the lack of propriety of the Tribunal, as a
quasi-judicial body, purporting to reinforce or qualify its determination in affidavits
filed in this application. Learned Counsel for the Tribunal diffidently replied that the
affidavits of the Tribunal contained no averment over and above what is already in
the determination. We cannot agree. The contents of the Tribunal’s six affidavits,
which spanned over sixty-five A4 pages, were often argumentative in nature and
went far beyond restating the contents of its 19-page determination or objectively
correcting factual inaccuracies in the other parties’ affidavits. Further there was no
personal attack against the members of the respondent, as in Gungah v Sir Cassam
Moollan, QC & Ors [1998 SCJ 192], that might exceptionally have justified the filing
of an affidavit on behalf of a respondent body which is functus officio.

We are of the considered view that, in an application for judicial review of the
determination of a judicial or quasi-judicial body, the determination of the respondent
should speak for itself, unless the Court deems fit to bring up the record. It is most
unbecoming, if not improper, for a quasi-judicial body to enter the fray and seek to
refute particular averments in the other parties’ affidavits and to explain or justify its
determination. We shall therefore disregard averments in the Tribunal’s affidavits
which go beyond setting out factually the contents of the determination, the more so
as all Counsel have agreed that we bring up and consult the record leading to the
determination and we have therefore duly done so for the purpose of determining this
application.
4

We shall briefly go through the determination itself before proceeding to


consider the grounds on which the applicant is still relying.
The Determination

The appeal before the Tribunal was made by Mr Khadun, the first co-
respondent, then appellant, against the decision of the PSC to appoint Mr Reesaul to
the post of Road Transport Commissioner at the National Transport Authority. The
operative parts of the five grounds of appeal lodged by the then appellant before the
Tribunal read as follows –

“1. The Respondent [the PSC] acted in breach of Regulation


14(1)(b) of the Public Service Commission Regulations (“PSC
Regulations”) by:

(a) giving due consideration to the Co-Respondent, since


the Co-Respondent is not qualified for the post of Road
Transport Commissioner (“RTC”) inasmuch as he does
not reckon at least five years’ experience in an
administrative/managerial position in the public service;
and

(b) failing to give due consideration to all qualified officers


who applied for the post of RTC.

2. The Respondent [the PSC] failed to give due consideration to


the qualifications, experience, merit and suitability of the
Appellant for the post, in breach of Regulation 14(1)(c) of the
PSC Regulations, inasmuch as:
(…)

3. The Respondent [the PSC] failed in its assessment of the


Appellant on the criteria specified in Part B, under the heading
“QUALIFICATIONS”, of the Public Service Commission
Circular Note No. 32 of 2015.

4. The Respondent [the PSC] has failed to give due


consideration of the reports, submitted under Regulation 14(5)
of the PSC Regulations, on all candidates for the post of RTC.

5. The Respondent [the PSC] failed to discharge its duties under


Regulation 13(b) of the PSC Regulations in the appointment of
the board for selection of candidates for the post of RTC.”

Evidence was adduced by Mr Khadun on the issue of the eligibility of


Mr Reesaul as he was only a member of the Chartered Institute of Transport
(London) and not a chartered member of same. Mr Khadun stated however that he
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was not questioning Mr Reesaul’s degree in Engineering and Master’s Degree from
the University of Natal, South Africa.

A representative of the PSC deposed before the Tribunal and stated that the
PSC had found both Mr Khadun and Mr Reesaul to be eligible. The Tribunal found
however that the representative of the PSC had given “some very disturbing answers
concerning the eligibility of Co-Respondent” (the underlining is ours). The Tribunal
also requested for and considered confidential information from the PSC regarding
the weightage attached to each criterion and the markings of Mr Khadun and
Mr Reesaul.

The Tribunal stated that the issues which it had to address concerned
eligibility and markings as per relevant criteria. It stated that it had first to consider the
question of eligibility and would then address issues concerning the interview
process and how it was carried out. Since the issues were “intertwined”, the Tribunal
felt it had to delve into the proceedings and documents produced to ascertain which
qualifications were used to decide on the eligibility of the candidates and which ones
were considered to be “relevant additional qualifications” for the purpose of markings.
After directing itself to the provisions of the Public Bodies Appeal Tribunal Act stating
that any appeal to the Tribunal will be based on Grounds of Appeal filed within 21
days of notification of the appointment, the Tribunal went on to consider each ground
of appeal in turn. It is worth highlighting however that, after commenting on each
ground, the Tribunal made no finding as to whether that particular ground failed or
succeeded, except for ground 1(b).

Ground 1(a) was found to deal with the requirement of 5 years’ administrative/
managerial experience and ground 1(b) was discarded as the Tribunal found that it
was not really canvassed during the hearing. Ground 4 concerned reports submitted
on all candidates. Ground 5 was not pressed.

Under ground 2, the Tribunal considered the averment of the PSC to the
effect that Mr Reesaul was eligible under any of three qualifications (that is, the
Fellow of the Chartered Institute of Logistics and Transport (CILT); Bachelor of
Technology in Civil Engineering; and Master of Science in Transportation
Engineering) and found that the only condition for eligibility was Fellowship of CILT. It
took exception to the statement of the representative of the PSC to the effect that all
6

other qualifications questioned by the then appellant were “surplusage” and observed
as follows –

“The fact that the selection panel gave marks to the Co-Respondent
for additional qualifications buttresses the feeling of the Tribunal that
the additional qualifications, which Appellant has put in question (A
degree in Law not recognized by TEC and Doctor in Philosophy
degree from a doubtful institution) tilted the balance in favour of the
Co-Respondent. This is crucial when the total marks of Co-
Respondent was marginally above that of the Appellant”.

The operative part of the determination lies in its five final paragraphs in
which the Tribunal –

(a) finds that neither Mr Khadun nor Mr Reesaul “proved clearly” that he
satisfied the eligibility criteria at the time of the application. However,
the Tribunal declined to delve further into this issue and stated that it
was accepting the stand of the PSC on eligibility;

(b) agreed that Mr Reesaul had five years’ experience in an


administrative/managerial position in the public service;

(c) stated that it “cannot accept the way that the markings were given
under the criterion “relevant additional qualification” for both parties
and found that the process was flawed” in view of the inconsistencies
regarding the exact qualifications assessed for the then co-respondent
as additional qualifications;

(d) acknowledged that it cannot substitute itself for the interviewing panel
but stated that it has wide powers to scrutinise the process; and

(e) quashed the decision of the PSC.

Relevant provisions of PBAT Act

It is apposite at this stage to consider the following relevant provisions of the


PBAT Act –

“6. Procedure and powers of Tribunal


7

(1) Subject to subsection (5), an appeal made under


section 3 –

(a) shall set out concisely and precisely the grounds


on which the appellant seeks to have the decision
of a public body quashed or dealt with otherwise;
(…)

(3) The public body shall lodge before the Tribunal its
objections, if any, against such appeal.

(4) The Tribunal may, upon a consideration of the grounds


set out in an appeal and the objections made against the appeal –

(…)

(b) entertain such appeal and, for that purpose –

(i) call for a report from the public body;

(ii) require the public body to produce any


document or other material which, in the opinion
of the Tribunal, relates to the grounds set out in
the appeal and which is necessary for
consideration of the appeal;

(c) give notice of the appeal to an officer of any other


public body whom the Tribunal considers likely to
have been affected by the decision of the public
body and require such officer to produce before
the Tribunal any material which such officer may
wish to produce before the Tribunal in connection
with such appeal.

(5) The Tribunal shall not entertain any ground of appeal


not raised in the grounds of appeal.”

We are of the view that the above provisions of section 6 of the PBAT Act
must be read, in the case of an appeal from a decision of the PSC before the PBAT,
together with the provisions of the Constitution on these two institutions.

The PSC is set up under section 88 of the Constitution, which also provides
for its composition. Section 89(1) of the Constitution provides as follows –

“Subject to this Constitution, power to appoint persons to hold or act in


any offices in the public service (including power to confirm
appointments), to exercise disciplinary control over persons holding or
acting such offices and to remove such persons from office shall vest
in the Public Service Commission.”
8

The PSC is to regulate its own procedure subject to regulation 118 of the
Constitution (see section 118(3) of the Constitution). Pursuant to section 118(1) of
the Constitution, the PSC has made regulations for regulating its performance of its
functions. For the purposes of this application, we would only highlight regulation
17(1) of the PSC Regulations, which reads as follows –

“The Commission shall determine the procedure to be followed in


dealing with applications for appointment to the public service,
including the proceedings of any selection board appointed by the
Commission to interview candidates.”

Further section 118(4) of the Constitution provides as follows –

“Subject to section 91A, in the exercise of its functions under this


Constitution, no such Commission shall be subject to the direction or
control of any other person or authority.”

The Tribunal, for its part, is set up under section 91A of the Constitution
which was introduced by the Constitution (Amendment) Act [Act No. 9 of 2008],
which must be read together with the Public Bodies Appeal Tribunal Act [Act No.
10 of 2008] (“the PBAT Act”). The latter Act provides for “supplementary and
ancillary matters pertaining to the Public Bodies Appeal Tribunal, including its
jurisdiction, procedure, powers, proceedings and determination” (see sections 3 to 8
of the Act).

It is, in our view, clear from the above provisions of the Constitution that the
provisions of section 6 of the PBAT Act should be read strictly when the Tribunal is
hearing an appeal from a decision of the PSC; the Tribunal can therefore only
entertain a ground of appeal if it is “raised” in the grounds of appeal (see section
6(5)) and each ground of appeal has to be set out “concisely” and “precisely” (see
section 6(1)(a) of the PBAT Act). Although the PBAT is also set up under the
Constitution, it has to operate within the strict statutory parameters laid down in the
PBAT Act. Further, the need for the Tribunal to observe the principles of natural
justice in accordance with section 10(8) of the Constitution and section 7(6) of the
PBAT Act cannot be over-emphasised (see PSC v PBAT [2011 SCJ 382]).

We need therefore to closely examine the grounds of appeal, which have


been set out above, on which the first co-respondent was seeking to have the
decision of the PSC quashed by the Tribunal. It is clear that none of the above
9

grounds purporting to challenge the decision of the PSC, explicitly and “precisely”
challenges the way in which markings were attributed to Mr Reesaul under the
“relevant additional qualification” criterion for both parties.

Indeed, Grounds 2 and 3, which may possibly have been of some relevance,
both concern the assessment of the suitability and qualifications of the appellant, that
is, Mr Khadun. It is also worth noting that the statement of case purporting to
expatiate on the grounds of appeal refers, under the heading “Failure to assess
qualifications (Part B of the PSC Circular Note)”, to the failure of the interviewing
panel to put mandatory questions to him (Mr Khadun) at the interview stage, which
would have allowed the PSC to assess his skills and abilities for the purpose of Part
B (ii), (iii) and (iv) of the Vacancy Circular Note. This confirms that the “precise”
scope of Ground of Appeal 3 was to challenge the assessment by the PSC of the
suitability of Mr Khadun and not that of Mr Reesaul.

Nowhere is there in the Grounds of Appeal a basis for saying that the PSC
was wrong in the way in which it conducted the screening exercise and gave
“markings” under the criterion “relevant additional qualification” and that the whole
process was flawed as a result. This finding of the Tribunal appears, from the
determination, to be based on its assessment of the PSC’s screening exercise as
being “extremely unprofessional” and its disapproval of “inconsistencies regarding
the exact qualifications assessed” for Mr Reesaul.

It seems to us that at this stage the Tribunal had ceased to consider the
grounds of appeal and had based itself on a purported general power of supervision
over decisions of the PSC. Indeed, before quashing the decision of the PSC, it
states –

“Even if the Tribunal cannot substitute itself for the interviewing panel,
it has very wide powers to scrutinise the process as confirmed in the
case of PSC v PBAT ipo Mrs Man Lan Wong Chow Ming [2011
SCJ 382] (...)”

This proposition of the Tribunal seems to be derived from the following


observation of this Court in the judgment quoted by the Tribunal –
10

“(…) there is an unrestricted right of appeal which is not limited only to


a review of the decision-making process of the PSC but it has full
powers to enquire into the merits of the decision of the PSC.”

The observation of this Court has however to be placed in context as it was


aimed at pointing out the difference between an appeal on the merits before the
Tribunal and judicial review before the Supreme Court. It remains that the Tribunal,
in determining an appeal, is bound to comply with the provisions of its governing law.
Indeed, the Supreme Court went on to quash the determination of the Tribunal in that
case on the ground of non-compliance with the principles of natural justice as
contained in section 7(6) of the PBAT Act. Likewise, the Tribunal has to comply with
section 6(5) of the Act and limit itself to grounds raised in the grounds of appeal.

We therefore hold that the Tribunal acted ultra vires section 6(5) of the PBAT
Act in considering the markings and quashing the decision of the PSC on the ground
that the process was flawed, when those matters were not raised in the grounds of
appeal before the Tribunal. We need not in the circumstances consider the
remaining grounds raised by the applicant.

We accordingly quash the determination of the Tribunal.

J. Benjamin G. MARIE JOSEPH


Judge

A.D. Narain
Judge

15 May 2019
-----------------------------

Judgment delivered by Hon. A.D. Narain, Judge

For Applicant : Mr D.K. Manikaran, Senior State Attorney


Mr L. Aujayeb, Assistant Solicitor General
together with Mrs D. Sewpal, Senior State Counsel

For Respondent : Mr M. Mardemootoo, SA


11

Mr M. Sauzier, SC together with


Mrs V. Bunwaree-Goburdhun, of Counsel

For Co-Respondent No. 1 : Mrs F. Maudarbocus-Moolna, SA


Mr D. Basset, SC together with
Mr N. Patten and Mr K. Namdarkhan, of Counsel

For Co-Respondent No. 2 : Mr A. Robert, SA


Mr I. Rajahbalee, SC together with
Mr M. Namdarkhan, of Counsel