Privy Council Appeal No 84 of 2007
(1) Permanent Secretary of the Ministry
of Health and Quality of Life
(2) The Public Service Commission
THE COURT OF APPEAL OF
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JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL
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Present at the hearing:-
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1. Public sector jobs with security of tenure are much sought after in Mauritius, so much so that when the Ministry of Health and Quality of Life (“the Ministry”) published an advertisement in September 2004 inviting applications for appointment to posts as Health Care Assistants (General) (“HCAs”), there were over 14,000 replies. A long process of sifting applications and interviewing followed. Appointments were offered to the leading 388 candidates (the number of posts then available), but withdrawn almost immediately, and then the disappointed candidates were offered one month’s pay in lieu of notice. The appellants sought to challenge the validity of the decision to terminate their appointment by judicial review, but the Supreme Court refused them leave, on the ground that the matter was one of private law and judicial review did not lie.
2. The appellants have appealed against this decision by special leave of the Board. By the time the matter came on for hearing the respondents, correctly in their Lordships’ view, did not seek to uphold the reasoning underlying the decision of the Supreme Court, conceding that there was a sufficient public law element. It is agreed now that the case comes within the class referred to by
3. In September 2004 the Ministry decided to fill vacancies then existing by the appointment of a number of HCAs. At that time the appointment of 222 persons was required to bring the numbers up to establishment level. During the appointment process the number of vacancies increased by another 66 and funding for a further 100 posts was made available in April 2005 when the Government’s supply estimates were produced, an increase which it was suggested was not unconnected with the prospect of an early election.
4. The appointment of employees in the public sector is by virtue of section 89(1) of the Constitution to be carried out by the Public Service Commission. On
5. An advertisement was issued on
6. This was taking place against a background of political uncertainty and change. A member of the National Assembly resigned in September 2004 and speculation developed about the political future. By December 2004 it was widely predicted that a general election would be held. The Government decided that the annual budget would be produced on
7. The Permanent Secretary of the Ministry Mrs Rajamanee Veerapen consulted the Minister on
8. Another appointment exercise for the recruitment of health workers was under way prior to the election. The process had commenced in February 2005 and by the end of
9. When the appointment letters for HCAs went out, there was a veritable storm of controversy. It was alleged that some of the successful candidates had been informed by some means before election day and complaints were already being received that there was an unduly large proportion of appointees from Constituency Number 8, the Minister of Health’s constituency.
10. On or about 4 July Mrs Veerapen directed that an analysis be carried out. The result showed that of those originally interviewed 626 or approximately 9 per cent had come from Constituency Number 8, whereas of the 388 successful candidates 101, approximately 26 per cent, lived in that constituency. The total number appointed and percentage of successful candidates were far larger in that constituency than in any other. The discrepancy was such as to give rise to a very strong suspicion that the marking process had been flawed. There was not at that stage any direct evidence of improper solicitation of votes or rewarding of electors, but the Permanent Secretary states that she formed the view that it was not possible to have confidence in the fairness and integrity of the marking system or in the correctness of the outcome of the appointment process. In paragraph 32 of her affidavit of
“I also considered the effect on public confidence in the integrity of recruitment to the Health Service. Given the intense controversy and the heightened public mood of distrust, in my view at the time, it was impossible to expect to preserve public confidence in the fairness of the HCA selection process once the news of its disproportionate outcome was confirmed by the Ministry and the figures published. Unaddressed, it would be likely to lead to a very serious loss of public trust in the selection procedures for the Health Service in general. In my view, for the reasons I stated at paragraph 7 of my First Affidavit, there was a compelling public interest in ensuring that the recruitments operated by the Ministry were transparently fair.”
12. On 7 July she informed the Secretary to the Cabinet and Head of the Civil Service of her decision to terminate the appointments. On his advice she consulted the Solicitor-General about the implementation of the decision. He advised her that the power to terminate would have to be obtained from the Public Service Commission. She therefore made an urgent request for such authority and received by a letter dated
“the power to remove from office any person appointed in pursuance of the power of appointment, confirmation, promotion and transfer previously delegated to you in respect of the grade of Health Care Assistant (General) in your Ministry.”
Letters dated 7 July were then dispatched to all 388 successful candidates, stating that the offer of employment “is being withdrawn”.
13. The election having resulted in a change of government, the new Minister of Health was sworn in on 7 July and arrived at the Ministry’s offices on the morning of 8 July. The Permanent Secretary briefed him on the actions which she had taken. She states in paragraph 38 of her affidavit of
“He approved the decision that I had reached. Thereafter, he began to supervise the arrangements to be made for the termination of the appointments and withdrawal of the offers.”
14. After receiving protests from some of the candidates,
“Please disregard the previous letter (MH/01/1/2/l) of this Ministry dated
2. I am directed to inform you that by virtue of paragraph 3 of the letter of employment dated
3. You are hereby informed that the employment offered to you has been terminated with effect from
Each recipient subsequently was paid one month’s salary.
16. The appellants attacked the decision under review on a number of grounds, but the main thrust was a challenge to the validity of the respondents’ case that the decision to terminate the HCAs’ employment was taken by the Permanent Secretary, as she averred. They suggested that it was not in reality a decision made by her, but a politically driven decision on the part of the incoming government, which distrusted the allegiance of those appointed. It accordingly was not taken by the Permanent Secretary as the public officer to whom the Public Service Commission had delegated the power of termination. The Minister was not a public officer within the meaning of sections 111 and 112 of the Constitution and the power of termination could not validly be delegated to him. In consequence, it was claimed, the exercise of the delegated power, having been carried out in reality by the Minister, was invalid.
17. Their Lordships do not accept this submission. In their opinion the evidence satisfactorily establishes that the decision was taken, as she avers, by
18. The second major plank of the appellants’ case was that the decision, if truly made by
19. The appellants also argued that the termination was unlawful on the ground that it was carried out in breach of the Public Service Commission Regulations, which applied to their appointment and employment. They submitted, first, that the disciplinary process laid down in Part IV of the Regulations was not observed. Their Lordships do not consider that this Part applied to the case. It was not one of disciplining individual candidates – on the contrary, the respondents did not have any evidence of wrongdoing on their part and did not seek to attribute any to them. Secondly, it was submitted in the alternative that if this was not a case of disciplinary action, it was not covered by the Regulations and required instructions to be obtained from the Commission, in accordance with the requirements of Regulation 51. It is common case that
20. The final argument put forward on behalf of the appellants was that the decision to terminate their appointments deprived them of a legitimate expectation that they would be permitted to commence work as HCAs and obtain the opportunity of a permanent post with the Ministry. It appears questionable whether they can properly be said to have had any such expectation, in view of the clear statement in paragraph 3 of the appointment letter of
21. The basis of the jurisdiction is abuse of power and unfairness to the citizen on the part of a public authority: see R v North and
22. The appellants have accordingly failed to make out a sufficient case for relief in their claim for judicial review. The Board will dismiss their appeal, though on different grounds from those adopted by the Supreme Court, on the basis that they should have been given leave to apply for judicial review, but that the application itself is not well founded.