Descripción general del AVS1-P2

It is difficult to provide an evaluation of all the judgements to discern the lessons and learnings contained therein, as the list is exhaustive. Only the ones of great importance which have contained critical comments and issues will be highlighted in this research.

An evaluation of the Judicial Review judgements over the years lends itself to a scholarly discourse of the lessons contained therein. Evaluating the judgements forced the researcher to discern several recurring themes and sub-themes and by extension lessons. These lessons forced the researcher to engage in critical reflections and raised some key questions on what the judicial judgements mean for the practice of Public Service Human Resource Management. How would these lessons drive organization change and transformation at the level of the Service Commissions and the Service Commissions Department? What new learnings have emerged? Are these learnings/lessons important in terms of organization practice, particularly, Public Service Human Resource Practices?

These lessons if any can assist in the creation of new knowledge about Public Service Human Resource Management and help to shape a community of practice for Public Service Human Resource Management Practitioners. For a community of practice to be effective, it implies that there must be a common understanding of common practice and the use of a common language. For this community of practice to function there will be a need to develop ways of approaching things that are shared to some extent among members. The lessons from the judgements should be used to inform and shape public policies in the area of Human Resource Management.

In the case of Furlonge v O’Brien HCA CV 2098/2063 Justice Jamadar questioned whether Regulations 25, 26, 27 and 28 were mandatory, and stated, “inter alia that in the case of Rajkumar v Lalla PC Appeal No. 1 of 2001 the Privy Council ruled unequivocally that the Public Service Commission Regulations set out a detailed code, for, amongst others, appointment in the Prison Service. The same is unquestionably true or all acting appointments (including those otherwise than as a prelude to a substantive appointment) governed by the Regulations under consideration. He concluded in my opinion the language and context of all the Regulations under consideration point to this conclusion that they are mandatory. Further, where it is recommended that an eligible senior officer be passed over the reason why the general rule in Regulation 26 (1) may be ignored must be generally given to the Public Service Commission if it is to adjudicate properly and fairly. Furthermore, since

the Regulation contemplates a particular scheme of things the reasons required under Regulation 28 must generally be given to the officer being passed over. Further because of the effect recommendations may have on the careers of individuals passed over the general requirement for giving and disclosing reasons in my opinion are incapable of being waived.”

(A copy of Regulations 25, 26, 27 and 28 can be seen as Appendix V).

Also in the case of Harridath Ramoutar v the Commissioner of Prisons and the Public Service Commission [2012] (UKPC 29), the Privy Council ruled that in making acting appointments in accordance with Regulation 26, the Commission must consider the senior officer capable of filling the post and generally he should be appointed. If the Commission wishes to depart from that general position, it must be on the basis of not taking irrelevant facts into consideration and for reasons or on grounds that are reasonable and relevant.

It is noteworthy that in a matter with respect to the FOIA (2000) the Privy Council in Graham v the Police Service Commission [2011] (UKPC 46). Sir John Lewis stated at paragraph 18 “ a Public Authority…….in Judicial Review proceedings owes a duty of candor to disclose material which are reasonably required for the Courts to arrive at an accurate decision.

With respect to promotion, the Commissions have the Constitutional responsibility for promotion in the Public Service, to the exclusion of anyone else however, they do not have authority to lay down terms and condition. This was highlighted in the case of Endell Thomas v the Attorney General [1982] AC 113, PC. In making promotions they must do so in relation to the criteria set down in the relevant regulations. It cannot disregard the regulations in considering the promotion of officers in the Public Service.

In relation to job description and specification the Privy Council in Harridath Maharaj v the Commissioner of Prisons and the Police Service Commissions [2012] (UKPC 29) ruled that they had no statutory status, further, that they should not bind the Commissions to treat it as a criteria for eligibility. Moreover, it stated that job specification and job description because of the use of the words like sound observation skills, and expert knowledge of principles and practices, sound knowledge of, basic knowledge of……. The Privy Council ruled that a position should not be based on criteria which were not susceptible to a paper test yielding yes or no.

Further, in the case of Balbosa and Cooper the Privy Council reinforced the discretionary powers of the Commission when it stated that there is room in the system for taking some

initiative by the Cabinet as a distinction can be drawn between acts that dictates to the Commission what they can or cannot do and the provision of a facility that the Commissions are free to use of not to use as they think fit. The appointment of a Public Service Examination Board by the Cabinet for the Commission to use if they choose to do so is not in itself objectionable. The advantages of using such are obvious and in practice the Commission may well content to continue to make use of them. Until that decision was taken in 2006, the Commission had for decades misunderstood the Law in regard to its jurisdiction relating to Public Service Examination.

On the question of legitimate expectation, the Privy Council ruled that legitimate expectation cannot accrue to an individual on an error. In the matter of Sahadeo Maharaj v the Teaching Service Commission [2006] (UKPC 36) the Privy Council ruled that if a Public Authority makes an error, and it comes to light, the Public Body owes a duty to fix it. Also, a public officer cannot have a legitimate expectation to something for which he is not entitled on the basis of an error to the detriment of others.

The Courts and the Privy Council have also been interpreting Regulations for the guidance of the Commission. In the case of Ashford Sankar and others v the Public Service Commission and Hernia Tyson-Cuffy [2011] (UKPC 27), the Privy Council in delivering judgement on the ACE stated, “that Regulation 14 and 18 must be read together”. That is where a promotion is to be made within the Public Service, it can be done by competition, but the decision on which of the competitors to promote should be made in accordance with Regulation 18.” This provided guidance on the way forward for future use of the ACE.

These judgements are of administrative importance and should play an instrumental role in changing the behaviour of Public Authorities and defining policies for the implementation of their action. The extent of these organizational changes and transformations is open to debate.

While the researcher can speculate on the scope of the change, there is the anticipation that the research can lead to improvement in the quality of the decision making process by stressing that compliance with the Law, the regulatory framework is paramount to good Public Administration.

The judgements point to the whole question of Public Administration in so far as decisions by the Courts pronounce on principles which seek to enhance both the ways decision are arrived at (the process) and the quality of the decision made. The decisions speak to the issue of Public Authorities exercising their function within the legal parameters of their powers. Good

administration dictates that Public Authorities observe the principles of lawfulness, fairness and reasonableness. Judicial Review guards against the rights of individual against the abuse of official power by those who exercise it.

The judgements show that Public Service Human Resource Practitioners display a surprising ignorance of elementary legal principles and a lack of appreciation of the impact of legal consideration on administrative problems resulting in great embarrassment to themselves, and the Commissions and heavy financial burden on the State, a view which has also been expressed by Carla Herbert SC when she commented on the outcome of a matter, that is Seetal Rattansingh v Winston Gibson and the Public Service Commission H.C.A No.1014 of 2001. Senior Counsel Herbert stated Mr. Rattansingh who was transferred by the Chief Technical Officer had acted ultra vires as he had no such power to do so in accordance with the Public Service Commission’s Regulations. That power of transfer should have been exercised by the Permanent Secretary in accordance with the powers delegated to her by the Public Service Commission.

Herbert concluded that the Rattansingh’s case illustrated the need for senior managers to familiarize themselves with the source of the authority, not only in the technical areas, but also in the areas of Human Resource Management. They should also familiarize themselves with the consequences of Public Law as to when they exceed their jurisdiction, act irrationally or with bias or fail to deliver a legitimate expectation or make a bad decision.

Clearly the decision where the decision makers are without authority falls within the category which will cause unnecessary financial burdens on the State and embarrassment to the Public Service Commission or those who act on its behalf. Herbert lamented that the Rattansingh’s case also illustrates the need for Service Commissions to monitor the aspects of their delegations more vigorously to ensure they were being complied with so as to avoid unnecessary litigation. Herbert concluded that Public Service Commissions should put measures in place to sanction officers who fail to comply with written instructions as senior managers in the Public Service can bring Service Commissions by their actions into disrepute.

The judgements call on Human Resource Management Practitioners and Public Administrators to be more aware of the legal implications of the decisions and stressed the need for departmental lawyers to become involved at early stages of the decision and policy making processes. The judgements provide clear and consistent guidelines for the execution

of administrative decisions in that, Public Bodies should provide some form of internal complaints procedure for people dissatisfied with the outcome of a decision or the way in which the decisions are made.