PUBLIC SERVICE.

Dominion, Volume 7, Issue 2169, 6 June 1914, Page 6

PUBLIC SERVICE.

:r ; TEST CASE IN COURT '■■ "' - ■■■ .■, ■.'■■] I ; ' '. '' ■ COMMISSIONERS , POWERS -y} D« PROMOTION CASES IS THERE EIGHT'OS , APPEAL? i I A gtiestion of great interest to <sfflcqts <>i t3ao Public Son-joe, and one ; a&ieting.t.he extent of tie OpmSHSsiou-er-B, powers, was before His Honour ■ tho Chief Jivstjco in tho Supreme Court y-estcrrdfly. 'iha Blatter earn*} i'onvawl in tho shape of an application by ofiglaatftig summons under the Declaratory Judgments Act asking fw a declaratory order detertniamg tho foHoiviag questions:— 1. is tile decision of the po-miajssifißor . '. under iho Public Service. Act, 1013, proffieimg of appoiiitinn; tin officer to- a position that has become vacant- or to a. new position, final and conclusive, -as against aiMrtte officer who claims to bo entitled to and applies for promotion to such va<- ■ oaftt new position? 2. Has ra«n last-iacatwtiod officer right <jf appeal against tile decision of tho CoijimissitMiGf refusing him such, pTomption, and, promoting or ajx pointing the- first-mentioned officer to the said, ttosifieii? 3. GfeKifcfally, *hat are (be powers of the Commissioner, the rights of bffieatsj. and the powers and duties • of tho Board of Appeal unfe See* tioJi fll of tho Public Service Act, 1S12? i. In partietilar, in the «ase of an officer who claims to tare _toon or to be entitled to, and applies far pro-teati-ah, find who has bee* passed over by tho Commissioner, lifts sufih offer asy, aftd what, right of ap- ■ peal? S. Has the v?o.mmrssi*ner the-right t-o wiifclrold tto appeal of any officer . under. Section 31 -of the I'ablio Service Act, 1912? "The parties to the prowedbge ivere tli& New &o,laivd Public Service As-so-eiatkiJi, piaintilts, and Dwiiild RobertKon, Puolfc Service Commissioner, defendant. Mr, M. Myers appeared te tfio PnbMo Setvice ' Asfrooiation, mid tiio Soiicitof-Ocnoral (Mr. J. W. Salmoitd, K'.G.} for fhd Commissioner. - ■•

Gaso for the Public service Association, - Mr. Myeff said-that the sumffione affected the Post and- Telegraph -section as well fcs ottersj and although that seotioa <J.id set apflea.r as i party its offieefs wore associated'-with th-6 plaintiif tody in. bringing-, the matter before tho Cowt,. 'fho questoon that-Jtroso was: \M-ia-t aro tho rights «f civil servants wader the provisions of Seetiaa 31 of tho Public Service' Act, and, particularly, wha-f right oi appeal has a jjtomW -of tlio Servifia>? ' ■, ■• His Honour: Is the sfcatuto not plaisi ? •Mr. Myers; We submit that it is-,- biit a cfintraty rie-w is taken by t-iso- Com. laissianer. Notices of appeal ivcte sent to tlio CoSnnussiofler, Imt instead of sending them, to tbe Appeal Boiitd, cwi~ stitatett wider iko Acti is ealmlv turnfed round ajid dcc Wed tte Blatter for Mmsclf. . Bis Honour* X'ndor what aatliority did he,do that? ... Mr. Myers rcpu'e-d that he did not inoft , . If h<> had h-»cl any doubt, olid •ffould h.av© tboaght that he would have takeft ottt ait origiiin.ttfig -siimmoiiSi or. in- some way, trough* tfeo matter befors the Court* iiist&ad of tlxat ha ftad forcisd ■the JPobiie gen'ico Assoeia-timi before tto Court by telining to , send on the notices oj ajipeat.

Part of Act m\te(L Om His Bsnour; Voa rely on Section- 31. IJnder wliat section docs the Coinnii^ EJoner say that that right of appeal floes not ftceofu©? Mr. Myers: Ho says that Section 81 does.Set .give i-vs the right;, to appeal, k lio CommissioiTCt claimed the right to say; "I oppoint A.M. to a-oorto-m pos-i----tip;n., and- fry apgcintmettt is final." His Honour: What words are you reljing on? sfi. Myers: Socl-io-n 31, which is -as lows■;•--31. (1) Any bffleer dissatisfied with anj? decision of the Co»mis» ei-ohof, or of ony person or persons to wi-vom tiid Commiasjoiier has delegjjted his powers o? funetions, in regard to grade affecting o#cers, or in j-egard to the classification of the work performed by him or assigijdd ta. Mm, or ia regard to 6atery or p'roraotion, may forward to the -Cajrtniissidtie-r, within 30 days alter sueh. deoisien tras h6m\ noti|e.d to him-j A notiee ef app.ea? setting forth the .g-rQiiiKJs df jjis dissatisfaction j .and a Board ai Appeal, constii-tit-ed to tte mftnM-r hereinafter set forth, shall ther-ewpen consider sttch a-ppsal and the gro.un=i}s the-ffio-f, and any furfho-r evidence in relation theroto which tlis board , Sitiy deem necessary fox the proper defcor(ji|B.atioii of the appeal, and may allow or iisAllow the appeal: aad tlte decision •of tlje Board er Appeal thereon Khali be.fiftfl-l, ($) If in the opinion ftf the b<sard jihy ftppeal is -frivolous or vesatio-us tine board may ftrSet the appellant to pay t-ho- costs of the the sum at) β-rdered to be jiifid shall be -fecotara-ble in the ma-iiner p-re-*. ecri-bed for the recovery of fines for fereadhes of regulations.

Typical Case instanced. His Senear; Poes the C©rnm.issioner say thai tboro can bo.no appeal i£ two people apirly ? .Mr, Mj'cr&: to effcoi, Jw says, "1 ata an aatoefat." Supposing that tbcro aro three persons, A.., 8.. and C, and A., at tt-o moment, Wds tJw highest pogWwn in .tli.6 das's. llio persoii mediately above A. wtjres, aftd his IMsitiion hecnfiios vacant.. ' Supposing that 0., who does not apply, is jippointe<J, theft -wo eay tkat A. aUet B. ha-ve the right of appeal beeaiiso tbo appointment of 0, is » promotion. The Oora-, nii&sioner, however, says that there i§ no right of appeal.

"Don? Away Witti ffia King," Mr, Myers subsequently raesttettod that, uftder the Camtuonwealth Act, flityohe who wee afl'tctrf by any rficemmondatioli which liad lieen made by tlio (iomai'Sßioner to tte Govcritor-eenorai m Tc'gaii to promotion might appeal. 'flw Sdicitipr-Genoral; The Canimisskmor appoints under our Act.. tte Chief Jwstico; That is in the law? . ■ fbfl Sdlieiter-Settwnl: xes. ■Tlid Chief Justice: Tlidm it is impioa.sitile any more to call it a Civil Service. It is tlife Geimnissiotter's Service. .You li»V!9 'loira nvay with tfe EiUjD?. So is hot evett astntt-eh as the American con* codes. Ho is »ot evea a rtiblier staftip.. it is certainly tte tafrrt Rtntiitp over passed in & British «ai«roy. Mf. MycTs soiii Vbo Ooinmissionbr -B'ijs good Mieugji 'to admit tJwt n- c«'il BCfvnnt wlia was j'cfiisGjl a.u, increase of £5 salai'!' iras c-ntiHeiJ to *-3}l>oal against tlirit; "decision, biit; vvhon if, came to a. dceisbrt which miglit nitoet- tho wli.olo of a. civil seHraait's «i.rcer, tlso Comniissiofier's rtecisiftH «'3S iiiwl. Tte Chief Justieo: What feisionfi qf tli* Commissioner you sny aro Mot cov«red by t-lie pswor '« aii-penl? Mr. SJvGrs: I say tliut practically no (lc(?i«i!jri of tlie Comiiiivsis!Gi)(?r is felt. It is subject to review by tuo Board of Appeal. tho Gaso foi , the corartrtssianer. The &}ltqitor*C!&uoi , al saisit ftat it had .Jwen made sufficiently, olaat I'v bts

friend's argument that public servants vvcro lioti" appointed fey tlje CaSiiui-ls-sienar. Tho (.tovonibr had Bα longer any power of appointment exc.e.iii> in speetal cases c<mferr>:*d -on fai-in by statute. His friend bad , contended that ■i.n appoint-' niout by the ■Cosmii.issi.oiier was a dfecisioa with respect to the lowuiotioa of ali pCTsons not appointed. It was n»t disputed that, wfieft tfio Ca-nimissionor refused to raise a mnh's salary, thors was an appoa! fraia that, 'fharc was, however, no appeal from an appaiut•ment. _ His Honour: Sepposiiig tlia-t the poshii« of Socretftry of tho Treasury is vacaiitj and tl-irce" cterts in t'Ju> Treasury °£plyj and ho pro-nwites <jbo of tho three, that declsifin is tho first step to the appointment. Sir. Salmond: Tliq decision and tho appaintinejit are the mue thing. It did not i'oltew, continued Jlr. Sajmond, that the term "promotion" used in Section 31 was used- in its widest pewnfesifote soiise. The- Chief Justtce: flow do yea limit tho Word "prem&tirfn"? Mi - . Salin-siid: It means an it&juevensent an tho status of an officer in respect to tho cific&s bold by hiih. Tte Chief Just.ics: An offieat k mxdot «jerk in tho Treasuiy, and tho posi* tion of seetotary to tfe Treasury lie-eo-mes raoaut, and aßofte man is ap> peinted. If the Senior .clerk is- ttet appftiiitwl, then bo Jus , ptmnoiiou. The Solieitor--Geßerai: llio appainfr. niGfit docs not relato to tho ofßeo hela by him. ft relates to an office- held by another man. The Chief Justice; It has attested iiifl. Tho Selieitor-Gener.at: Alietheir man's office; net liis. ConHnuiWgf learned , counsel said tliat it was quite 'possible that in sojbc portion.s of the A«t "promotion" might include "appoititinent," but not in iSeetkni 8L His Honour: To be transferred to tjj© prexessioua-I division from the- clerical Slight involve loss <&f salary. Mi-. , Sataontt: That is'so. His jtionatjr ; That might not bo proffleitOH. tjirai? Mr.-Salmoed: Yes, it would bs an improvement in status. • His HtiM-ur: toa say that promotion mfiftfes promotion in tho office in wttMt he is? ...... Mr. gain-load: Advancement in status is respect te the ftfiico wbiclt' )m notds. His H<aour: ■■g.i.vppasmg fhftt a tnati m_ the Service is appointed by 'Bie Osm* missioner to an oftiee. vMek he docs not want ? « Mr. Shrrae-iid': The only pow-ftr of theCommissimiLH' then is to. dispense with thft_ man's sorvices on thres tiio»ths' Hetice. l\o parson cnii lioixl any office ■W'itTjout- hh own. cai-iscnt. Ooritiauiiift learfled coafise! ssid tbe Reason for tiio nrntoiv- inte-rpTetaiiori of tjie ! wer*? ."jjrertJotiwa" ft-fts the absurdities'-whicl wd«W result from th a opposite eonfeatfon. These absurdities would. l>e ?a grdss as to render tte whole , system .of the Pii-Mto Serv-iee Act unworkable. '

His Honour: What 'has.a- nsalj that in ca-fl appeal against-? • : Mr. Salino-ad ire-pfed that a man eovdri appeiii against his. treatment in 1 the office which he hold, biit if a. Wftn ■diet- iioi got a. position which ha a.pplM for, that. was not a- matter, of ill--treatment in the-office tthieh ho 'held, learned eouiise] wont en to refer to trio -sections of the Act creating penaltics iii the case of offjeef-s wh_o otid-esi-vpat io influence the Cqnim-issieiier for the- purpsse af dstarotig 1 promot-io!!., and 'submitted that if "p-rimjotioii" ineluded !,, apjjofntincnt r "' fton t-ko aero fact of mi -officer ap.pjyiiis For,a position would Render- him liable to dismissal, . Alter further argument Uk Softotvr intimated that his would take -time to consider his d«eisfen> '