PUBLIC SERVICE.

Dominion, Volume 7, Issue 2174, 12 June 1914, Page 6

PUBLIC SERVICE.

TEST CASE DECIDED

COMMISSIONER'S POWEUS

THE RIGHT TO APPEAL AFFIRMED BT THE SWKEMB CQUET A question of great importance to members of the No* Zealand Public Service was detenu inffd in tlie Stipreoie Court yesteiday by His Honour the Chief Justice (Sir Robert Stout). Tiik was the-question of whether a Civil Servant who'considered hiffiself a-ggriev-ed at not being arjp.oi.nted to ft vac-lney which had occurred in tho Servico liad the right to appeal agairist the dedsion of the Public. Service Ooramissionor in appointing someone «Is-e te th« vacant position. Tho matter was afgued before His Honour on Friday afternoon last, Mr. M. Myers' ap.peari&g' for tho New' Zealand Public- Service Association and the Solicitor-Geaera:! (Mr. J. tf. Salmond, K.C.), fat the PuMc Sewfce Commissioner. The judgment of His Honour, delivered yesterday, tt'as as follows:—

The Act, Broattly Wfcttod, , The Court is asked to interpret cer» 'tain provisions of thn Pubfo Service Act; 1913, namely, those regarding appeals from the decision of tho Commissioner. ■ The Act is a. new departure- hi the mode- of appointing Civil Servants, and was-Sβ dsiibt- aimed at removing all appointments, frflffl' the usual method of Ministetifkt Hcommeliclation to the Goterrior. ' TJntl«r" tie €tatute the right to appoint Civil Servants, with a few exceptions, is rested in a commissioner' and assistantcommissioners. I presume ttat. too ap* poiiitment was vested in tho Commissioner, and not in the Qovei-nor so as to absolutely free the appoin-troeat from any political control. Rights.are, however,, given to Civil Servants. aiad the most important is. i|i.e right of 'apgeal from the Commissioner's' deciaiofl. Meaning of Worp "Ppomotien; ,,

_ After quoting Seetiftß 3.1 of the Act, His-Honour continued;—-The dnly worel m the section that ha-s caused'a difference of opinion tirtm-efift the Commis- ! sJorter and the C'ml -Servants is- the wbrd '.'promotion." It is granted Jihat, if'a Civil. Servant is not .pTOmoted to aerade that he thinks be is to, he', may appeal; or, if he- is assignea ■ work that ho does not like, sie niay appeal; or, if he gets bo rise in salary to which ho thinks tvft is entitled, he may appeal. But, though all thes-ft things a'ro really questions of pfoajotion, and are, specifically provided for in. tho statute, for thq words are "in ref?ard_ to grade," "in rpgaKl to fee classification of the tt-ofk, c'te,,"-<» "in regard to salary," yet it- is contended that tho word "promotion" used after the word "salary.". cannot meaa promotion to another, office. It is admitted that the word "prewbtkm, s, .iiii-Km-* ited as' it stands in tho segtion, Way include an advancement to a mew but, it is said, if it jn.eaiis that a greai inconvenience, will arise, antl tliat. tho word "promotion" should be limited to four classes: (1) . Advancement from Clnss Sub-section (&) of Sestian SOti (2), advancement from Snfedtvte-ion A of Class VII, or- from Subdivision 1 of Class VII; (3) adva-iiccMent from t!i© clerical divisiou to the profesiofia-j <ii- I vision; (4) promotion from quo gfttdfe to another. It seems to me thai- all i these advancements t?bwe- andw grade, work, and salary, a;n;i that lffiloss the word "promotion" has to tuoan wl-ta-fc \% ordinarily would include, an appoint ment to a new office, -it was . sary. Nor am I infl'MeiTeftd by the eijTitontion that it would create inconvenience. The inconvenience that ts s-ug- ' tested would be that many thousands of officers would expect ttet tlvc.f weto elißiblo for a new office, afitl if tfiey d.id not got it they might aptsesl, "• siio same mifiht be said if salaries mpa not raised, or if their grade* were Hot sd-* vancod. ' ' '

Notification In Appeals, tt appears to me tkafc Se#on 31 «ontempiates an apffeticm Uy filib Commissioner by the CiviJ Sftrva-nt, and the right of appeal does not arise until there ie a notification. The .dftcisitin has to be notified. Wififiu* «. request or application "to reply to, there is no need of a' notification "tb him'''—that is to tho Civil Servant- It- is sftggcstea that a- general notice of nn officer being appointed would bft a "jtotificitionto him." To sff feiA tlip, seeiion would be to strain -its language.

Ordinary Application different from "Sollcitrng." It was argued thai Section 6 wtralci prohibit any application for advancement in any shape- to tfeo.Camtn.issiwicr. Iho words of the section ate- (Subsection 3): "Any officer tthe dkwtiy or indirectly, solicits or endeavours id influence tho Commissranei , or sa As* sistant-Commissioner for the purpusq of obtaining promotion, or ineteato e£ salary, shall be deemed to be naiflctfjtby' of such promotion of iner&iss, atsd ft shall not bo accorded to Mm; a»a ho shall be liable to immediate; disaissai." The word "solicit" may mean "apply for," but it is, I think, obvious that it means something more.' tftan a fctfmal application. For example, suppose the Commissioner advertised for candidates for an engineersliip, waald it io contended that, if an cflgiheet iti Service applied,- he. was sticking i4.e office? Solicit in its priiftitn-e weanme has something violent ar abnormal m it. It is not a bare application.

on "Decisions" lo Appoint, The next' contention was, that the appeal, if one applied for a different offipo to that which he hold, aiitE it was not granted to him, would not bo a. decision within Section 31 of the Act. It was said the officer is appointee} by the Commissioher, and, once appointed, tl?.o ftppointment remains even if Jlis Ex«:k lency does not issue his warrant, jjStie Section 60.) The Commissioner .must come to a decision before lie actually signs the appointment The decision comes first, and if as, application k made and is declined that is a decision. It may moan that in canning otit the Act, the proper tiling to <fo h to wait until the thirty days—#o time within which to appeal—lapse* before the final npjxnntmont is made. JW ewni-ple., afl officer is second clerk, atod lie applies for.first clerk, conld i$ bo said thcjt.as this would mean a new a:pi3oiiitm«!t there is no right of appeal. That is, ! understand, the cont-eritiaii. If that ia correct, the right of appeal given rs slight indeed. The Word "Promotion"-Again. The word "promotion" Jncnn-s a.fid includes the change to a now eJßfte, aivi, by our Acts Interpretation Act, 1808, Gvory provision in a statute is to ref-eiVe such fair, large, and liberal construe. tion and interpretation 41s ;vi!l best insure tlio attainment of tfoo object of the Act, and of such preywien, or enactment, according to its true intent, meaning, and spirit. " Promotion," meaning as it does appmntnifint to a higher office, I.do nflt fcneiv any authority that.would warrant i«e in limiting its true meaning, Further the general intent of the statuto , ' appears to 1110 to give a broad bikl liberal appeal to Civil Servants. Thfrfft iieed arise no inconvenience if applications' are nuked for, and if tic Sim! apjvoijiU meat is not made until after toirty dart

after the decision has been eomo to, and it k not, therefore, ft. ease in whieh the maxim ni.' incoHvonienti cim be ap-v plied. Ixjrd Halslniry said, in GeoUe v. Charles A. Vcgeler Co.. (1901 A.C. 303, 107) that a Court of Law has no jurisdiction to disregard what the. Legislature has enacted. It cannot balance out- inconvenionee against another inconvenience*, or choose between alternatives. The Finding, The words in this statute are dear, and it does not anprai - to roe that by Hading "promotion as meaning "promotkm" any greater iucoinrcnienass can arise than "way arise in carrying out tiuj other provisions <yf Section 31. 1 imtsfc therefore answer the qitostioxis put as follow:— 'Is the dwisrofl of the Commissioner under the Public- Service Act, ISI2, promotiiig o.r appointing an ofijcef to a position that has became- vac* ant, of to a how .position, final auifl conclusive as against another efflper wise claims to be entitled to and ap* plies for promotion te such, vacant or new position ?-n—"Ko." Has such inst-ffiCJitioiied ojEeor tho fight to appeal to the board againei the decision of - the Commissioner refusing hitn. such pro-Bio* tio-u atid promoting or appointing tilts first-men Waned officer to -the . said position?—" Yes." General*}-, what are the pwrers o : f the Commissiofier, thn rights of officers, and tiso-potters and duties of the ■ • Board of Appeal under Section 31 of tlie Public ServiM- Act, 1912?— '■The officer caiii after appiieation far all effioo afid iwtificatioft_ of the cteoisieri .*<& Wi<? Oo.rrsruission&f against hittj, appeal ie the board." I.ft particular, in th'a easei of An officer who claims to hare lieem or W be Aniiflfid to, and. who fljjplies for . promotion and who has been passed over !>}; the Coifltoissioirer, Ims such ■ officer any an-tt what right, to jipw . peal tq -(Ae BaaTii'of Appeal? — "Yes, lie ea-U appesl." [, "Has tin Commissieiier the tigM to feitifeld ffora Wm Bpa.rd of Appeal the appeal of asiy oSSeer ferwardetl ' to him on .in,¥ matter wider Seotimi 31 of tlio I'ftblic Service Act, M 2? —"Nβ:" i