Appeal Court dismisses claim: Public servant was not transferred

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THE Court of Appeal has dismissed an appeal by public servant Farzia Mohammed, ruling that her reassignment within the Ministry of Agriculture, Land and Fisheries was a lawful administrative posting and not a transfer requiring review by the Public Service Commission.

In a majority decision delivered by Justice of Appeal Nolan Bereaux, the court held that Mohammed’s move from the Regional Administration North Engineering Unit to the St George West County Office – Lands Unit fell within management’s authority to deploy staff within the same division and ministry. As a result, regulations governing transfers and commission review did not apply.

Mohammed, an acting Agricultural Assistant III whose substantive post is Agricultural Assistant II, was reassigned effective July 1, 2022, to fill a supervisory vacancy. She challenged the decision, arguing it amounted to a transfer under the Public Service Commission Regulations and that her constitutional rights were breached when the matter was not referred to the commission for review.

The court rejected that argument, relying on the Civil Service Regulations’ distinction between a “transfer” – movement between divisions or ministries – and a “posting,” defined as an assignment of duties within the same ministry without a change of office. Because both units were part of the Regional Administration North Division, the reassignment was deemed a posting.

“The director was acting well within her authority,” Bereaux said, adding that requiring commission oversight for routine internal deployments would lead to inefficiency in public administration.

He noted, “In my judgment, the Civil Service Regulations contemplate that there will be personnel deployments required at a divisional level which can be addressed within the division rather than by the Commission.

“ It cannot be that the Commission is required to sit and contemplate every basic administrative arrangement in the public service which falls to be decided. That is a recipe for sloth and inefficiency.”

Justice of Appeal James Aboud concurred. He held that the case involved movement within a single ministry rather than between separate statutory entities.

“Interpretation of the word ‘transfer’ in the regulation made under the Statutory Authorities Act Chap 24:01 cannot be equated with the words ‘transfer’ or ‘assignment’ used in Regulation 30 of the Public Service Commission Regulations.

“There is nothing known as a statutory authority ‘public service’. When we use the term ‘the public service’ we mean the public service created in our Constitution and controlled by the Public Service Commission Regulations.

“Each statutory authority is a separate corporate or statutory entity, unlike in the facts of this appeal.

“The appeal before us concerns the movement of a public servant within the same ministry of government in the identical grade and not between autonomous or separate legal entities.”

Justice of Appeal Peter Rajkumar dissented, finding that the reassignment had the same effect as a transfer and that Mohammed should have been afforded a statutory right of review. He would have declared the decision unlawful and awarded damages.

“This is a matter with non-trivial consequences as is exemplified by the circumstances of this case.

“That artificially introduced distinction between a reassignment and a transfer had the effect of removing the right to review by the Commission, a right which still exists despite, and as an express condition of, the delegation of the power to transfer from the Service Commission to the Permanent Secretary in the Ministry.

“That semantic distinction would defeat that right of review which is one that could only be displaced by clear and express words.

“These are matters that should not engage the attention of a court, especially when the regulations have already provided and defined the role of the Public Service Commission in relation to appeals on these matters. The substance of these matters is not one that a court should be required to address.”

The majority ruling upholds an earlier High Court decision that dismissed Mohammed’s judicial review claim in its entirety.