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Tau v Lailai and The State [1994] PGLawRp 681; [1995] PNGLR 396 (12 May 1994)

PNG Law Reports 1995

[1995] PNGLR 396 - Richard Tau v Lindsay Lailai and The State�

[1995] PNGLR 396

N1220

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

RICHARD TAU

V

LINDSAY LAILAI AND THE STATE

Waigani

Salika J

12 May 1994

EMPLOYMENT IN THE PUBLIC SERVICE - Public Service Management Act - Public Service General Orders - Whether a person appointed outside procedures laid down by Management Act and the General Orders can claim protection under the said Act and General Orders - Plaintiff employed at pleasure of the Secretary.

Facts

The plaintiff was appointed by the Secretary Department of Information and Communication to act as deputy secretary in the Department. This was pending the advertisement of the position and selection. Hitherto he was a member of the Ministerial staff. He was suspended following a number of serious allegations made against and subsequently dismissed. The public service procedures to suspend and terminate were not followed. He sought a judicial review of the Secretary�s decisions.

Held

N1>1.������ The applicant�s appointment was done outside the ambit of the Public Service Act and the General Orders.

N1>2.������ The protection granted in the legislation could not apply to the applicant.

Counsel

S. Holland, for the plaintiff.

R. Reme, for the defendants.

12 May 1994

SALIKA J: The plaintiff was acting deputy secretary of the Department of Information and Communication. He had prior to his appointment been a member of the Ministerial Staff of the Minister for Information and Communications. He was recruited by the Secretary of the Department Mr Lindsay Lailai, on 24 October 1992 to act as Deputy Secretary on a level 5 salary. The appointment was probationary with a substantive selection to be made after the position was advertised. The Secretary was charged with the duty to recruit personnel on acting capacity to help formulate the Department. The plaintiff was hand picked by the Secretary to act as the Deputy Secretary. The letter of 24 October by the Secretary to the plaintiff confirms this.

On 16 April the plaintiff was suspended by the Secretary. The reason for suspension being that: �A number of very serious matters implicating you have been brought to my notice that warrants your suspension�.

On 31 May 1993 the Secretary wrote to the plaintiff advising him of his termination to be effective from the 10 June, 1993. It is from this termination that the plaintiff seeks a judicial review of the decision of the secretary to terminate him as acting deputy secretary of the Department of Information and Communication.

The plaintiff had earlier sought assistance from the Public Service Commission which recommended his reinstatement because the usual disciplinary procedures to suspend and terminate him were not followed.

The defendants through their lawyer submitted that the plaintiff was only a probationary officer and as such the Secretary was entitled to terminate his services at any time without charging him.

Let me deal with the question of probationary officers in the Public Service. To start the process s 35(1) of the Public Service Management Act says that a Departmental head may by notice in the National Gazette or elsewhere invite persons to apply for appointment, promotion or transfer. In this case there is no evidence that the Departmental head published or advertised in the National Gazette or in our daily and weekly newspaper, radio or television for persons to apply for appointment to the position of acting Deputy Secretary. This point was, however, not an issue of contention but I think it is important in determining whether or not a person is a probationary officer in the Public Service and to whom the Public Service Management Act and the General Orders apply.

Section 34 of the Act provides that a person shall not be appointed under this Act as an officer unless he provides evidence of his health and fitness, qualifications, his good character and he subscribes the oath or affirmation.

General Order 3 sets out procedures for appointment to the Public Service. GO 3.2 says that all appointments as a probationary officer will be made by the departmental head. In this case the appointment was made by the departmental head.

Let me also refer to GO 5 which provides for definitions of terminology commonly used. For example GO 5:1 says �recruitment� means the appointing of a person as a probationary officer to the Public Service.

GO 5:4 says �appointment� means the notification to a person that he has been selected for engagement as a probationary officer or for promotion or for transfer. In this case evidence shows the departmental head appointed the plaintiff for engagement as a probationary officer but that appointment was done outside the ambit of the Public Service Act and the General Orders. The defendants had tried to inform this court through their lawyer that the plaintiff was employed on a temporary basis only, in that he was hand picked and that the normal selection process under the Public Service Management Act and the General Orders were not used to appoint him.

I can now see his point when I look at GO 5:5 a process used to identify the most suitable candidates for recruitment. The selection process involves:

N2>*������� attracting range of applicants for a vacant position;

N2>*������� knowing what you are looking for through person profiles and specifications;

N2>*������� knowing where, when and how to find potential applicants.

GO5:9 is important here in that it provides that all recruitments must be made through the selection process described under the General Orders. The only exception to this provision are transfers covered under GO4 where the Secretary, Department of Personnel Management may transfer an officer directly.

In this case there is no evidence of a selection process taking place. There is evidence, however, of the Secretary (the 1^st Deft) appointing the plaintiff on probation and his advise that proper selection would be followed as soon as the positions were advertised. This meant that when the positions were advertised the plaintiff would have to apply for the position. General Order 11:5 says that the departmental head shall normally be the Chairman of any selection committee which decides on promotions, transfers and appointments.

There is evidence from the 1^st defendant through his affidavit that he �was charged with the responsibility of recruiting personnel on an acting basis to assist in the restructure and formulation of the Department until such time he was able to have the Department fully operational and permanent officers appointed thereafter�.

The plaintiff also says that the Department of Information and Communication was only formed when the current government came into being in 1992. The Department was therefore a new department without personnel. The 1^st defendant was appointed Secretary of this new department with no personnel. He appointed the plaintiff to act as the Deputy Secretary without advertising the position. The question then is: Was the plaintiff recruited as envisaged by s 35(1) of the Public Service Management Act?

I go back to s 35(1) of the Public Service Management Act which provides for recruitment. In this case it is my view that the recruitment procedures had not yet began. It would begin when the positions are advertised and persons would apply for appointment to those positions. I think this is a case where the 1^st defendant appointed the plaintiff to help in the formation of the new department. S.34 says that a person shall not be appointed into the Public Service unless he provides evidence to the satisfaction of the Secretary DPM of:-

N2>(1)����� his health and physical fitness.

N2>(2)����� his qualifications

N2>(3)����� his good character

and that he makes and subscribes the Oath and Affirmation. The plaintiff was asked to provide those particulars but there is no evidence the plaintiff has in fact provided them. Even if he provided them the position was not advertised and he was not selected through the usual selection process.

In my view the appointment in the plaintiff�s case is not an appointment which has been made under s 35(1) of the Act. It did not comply with General Order 5:9 i.e. through a selection process.

It appears from evidence that his appointment in the first place was not proper in that it was not done in accordance with the Public Service Management Act and the General Orders. It follows then that the Public Service Management Act and the General Orders do not apply to him as his appointment was not done through the usual public service procedure.

The manner in which he was appointed was the way he was terminated and in my view was proper. His employment at that stage was at the pleasure of the Secretary of the Department.

The Public Service Act and its General Orders do not assist him. This Court refuses the orders that he seeks.

Defendants shall have their costs.

Lawyer for plaintiff: Habuka Lawyers.

Lawyer for defendants: Solicitor General.