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Kembol v State [1990] PGNC 102; [1990] PNGLR 67; N811 (12 February 1990)

N811

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

KEMBOL

V

THE STATE AND ENGA PROVINCIAL GOVERNMENT

Mount Hagen
Woods J

5 December 1989
15 December 1989
12 February 1990

STATE SERVICES - Provincial Government - Assignment of members of National Public Service to provincial governments - Appointment of departmental head - Mode of appointment - Revocation of appointment - Separate acts - Statutory provision for consultation on appointment mandatory - Organic Law on Provincial Government, s 50.

The Organic Law on Provincial Government (the Organic Law), s 50, provides:

"50. National Public Service control of assigned members.

(1) The Prime Minister, on the recommendation of the provincial government made after consultation with the Public Services Commission, may, by notice in the National Gazette, appoint a member of the National Public Service to act for the purposes of this section in relation to a province.

(2) The person appointed under Subsection (1) shall be stationed in the province.

(3) The person appointed under Subsection (1) shall, in relation to:—

(a) members of the National Public Service assigned to a provincial government under section 49; and

(b) offices or proposed offices occupied or intended to be occupied by such officers.

be deemed, for the purposes of the National Public Service Act, to be the Departmental Head.

(4) To the extent to which in the exercise and performance of his powers, functions, duties and responsibilities a Departmental Head may be, under the National Public Service Act, subject to the supervision and control of any person or authority, the person appointed under Subsection (1) is subject to the supervision and control of a Committee of Management to be appointed, under a provincial law, by the provincial executive."

Held:

(1) Failure by the provincial government to "consult" with the Public Services Commission, as required by s 50(1) of the Organic Law, will render any appointment made under s 50(1), null and void.

(2) An appointment under s 50(1) and the revocation of any such appointment are two separate acts; consultation is not required for revocation and failure to consult will not render a revocation invalid.

Cases Cited

The following cases are cited in the judgment:
Coney v Choyce [1975] 1 WLR 422; [1975] 1 All ER 979.
Rollo v Minister of Town and Country Planning [1948] 1 All ER 13.
SCR No 1 of 1984; Re Morobe Provincial Government [1984] PNGLR 212.

Judicial review

This was an application for judicial review of the revocation of appointment of a Departmental Head for National public servants assigned to the Enga Provincial Government and the appointment of a new Departmental Head.

Counsel:

P Kopunye, for the plaintiff.
H Derkley, for the second defendant.
Cur adv vult

12 February 1990

WOODS J.: The plaintiff is seeking review of the revocation of the appointment of Luke Kembol and the appointment of Michael Puio to act for the purposes of s 50 of the Organic Law on Provincial Government (the Organic Law) in relation to the Enga Province and a declaration that such revocation and appointment as made by the State on 15 February 1989 is null and void and of no effect.

Initially, the only defendant named in this action was "The State"; however, for some unknown reason, the State has declined to appear. By virtue of the fact that, at the hearing, it was quite clear and acknowledged that the strict procedures outlined in s 50 of the Organic Law were not followed by the State when it made the appointment in February 1989, I find it most irresponsible of the State to have failed to show any interest in the proceedings.

I allowed the Enga Provincial Government to be joined as a party as the order sought directly affects the efficient administration of the Province.

This application involves the interpretation and application of s 50 of the Organic Law on Provincial Government which provides:

"50. National Public Service control of assigned members.

(1) The Prime Minister, on the recommendation of the provincial government made after consultation with the Public Services Commission, may, by notice in the National Gazette, appoint a member of the National Public Service to act for the purposes of this section in relation to a province.

(2) The person appointed under Subsection (1) shall be stationed in the province.

(3) The person appointed under Subsection (1) shall, in relation to:—

(a) members of the National Public Service assigned to a provincial government under section 49; and

(b) offices or proposed offices occupied or intended to be occupied by such officers,

be deemed, for the purposes of the National Public Service Act, to be the Departmental Head.

(4) To the extent to which in the exercise and performance of his powers, functions, duties and responsibilities a Departmental Head may be, under the National Public Service Act, subject to the supervision and control of any person or authority, the person appointed under Subsection (1) is subject to the supervision and control of a Committee of Management to be appointed, under a provincial law, by the provincial executive."

This section was considered very carefully by the Supreme Court in SCR No 1 of 1984; Re Morobe Provincial Government [1984] PNGLR 212 and amongst its findings the Supreme Court held that, in appointing a person under s 50(1) of the Organic Law in respect of a Province, the Prime Minister is obliged (if he makes any appointment) to appoint a person who has been recommended for the appointment by the Provincial Government of the Province in question and further the term "consultation" in s 50 means that the Provincial Government must seek (but is not obliged to act upon) the view of the Public Services Commission on the name or names of the public servants for appointment. And, of course, any consultation must, in the words of the Constitution, s 255, be meaningful.

It is common ground that, in connection with the appointment on 15 February 1989 for the Enga Province, the Provincial Government did not seek the view of the Public Services Commission. Does this failure nullify the revocation and appointment?

It has been submitted to me that the role of the Public Services Commission has changed radically since 1986 and that by virtue of the changed structure brought about by the Public Service (Management) Act 1986 the Public Services Commission as such is not the body charged with the effective running and management of the National Public Service and therefore is not in a position to give the appropriate advice on the names of public servants being considered for appointment.

Whilst it is quite clear that the Public Services Commission today does not have the same role that it had prior to 1986, I note that, in the words of the Chairman of the Commission, Mr Ekeroma Age, it has a quasi-judicial role, the monitoring of operations throughout the Public Service especially in relation to personnel matters. It is also clear that the Commission has a less direct role in the transfer, training and promotion of public servants. However, I am not satisfied that this changed role can be interpreted to mean that its function under s 50 of the Organic Law on Provincial Government can be waived. Section 50 has not been amended to allow the role of the Public Services Commission to be ignored.

I am therefore not satisfied that I can overlook the failure to consult.

What therefore is the effect of this irregularity?

It is submitted that the irregularity is of a minor nature in view of the changed role of the Public Services Commission and that the consultation role in the Organic Law is not as important. "Consultation", as discussed in the case of Rollo v Minister of Town and Country Planning [1948] 1 All ER 13, must be seen in the context of that legislation. Consultation in our Organic Law is clearly covered by the Constitution and the Morobe case referred to above.

To say that the failure to consult was a minor technicality such as was referred to in the case of Coney v Choyce [1975] 1 All ER 979, overlooks the fact that the appointee under s 50 is deemed within the National Public Service to be the Departmental Head and is, in effect, the Departmental Head over National Public Servants assigned to the Province. Any such appointment must therefore be of great interest and concern to the National body concerned for the well-being and efficient control of National public servants. So, looking at the scope and purpose of s 50, the role of the Public Services Commission in any consultation procedure must be relevant.

I am therefore not satisfied that the irregularity, that is, the failure to consult, can be overlooked.

It was further submitted that there had been undue delay in bringing the matter to the court. I must agree that there has been excessive delay for which no satisfactory answer has been given. The plaintiff should have taken action earlier, immediately he had notice of the action prepared and when he knew of the deficiency. In view of the delay in having the notice of revocation and appointment published and brought into effect, he had ample opportunity to challenge the proposed action by seeking a stay of the notice and having the matter dealt with then.

I find that the revocation and the appointment are two separate acts. Whilst the appointment is an executive act bound by clear procedures for the obvious reason which I have referred to above, the revocation, whilst still an executive act, does not have such an important consultative procedure. The executive must have certain powers over its appointees at that level.

Section 50 only refers to the appointment to "act" for the purposes of the section and does not necessarily give the appointee any more rights and benefits than he already had as a public servant. If his appointment to act is revoked, then he falls back to whatever substantial rights he had as a public servant. Of course, if the plaintiff had acted quickly before the notices were published, the court may have stayed any revocation. However, the plaintiff delayed and I can find no reason to interfere with the revocation.

I am of the view that the irregularity in the appointment cannot be overlooked and I am not satisfied that I have any discretion to so overlook it. For the reason I have given earlier, the consultative procedure must be important and cannot be ignored.

I therefore uphold the revocation of appointment of Luke Kembol but declare the appointment of Michael Puio to be null and void and of no effect.

Declarations so made

___________________

Lawyer for the plaintiff: P Kopunye.
Lawyer for the second defendant: H Derkley.