The First Hall of the Civil Court, presided over by Honorary Judge Joseph R. Micallef in the case ‘Dr Daniel Grixti Soler et v Kummissjoni Dwar is-Servizz Pubbliku et’ on April 10, 2015, held, among others things, that the Public Service Commission did not abuse of powers granted to it by law and acted contrary to the principles of natural justice, when it cancelled the result it had published regarding a call for applications and the selection process for the appointment of ‘general practitioner trainees’.

This was an action for judicial review filed by plaintiffs who are medical doctors. The lawsuit concerned an application submitted by the plaintiffs in response to a call for applications regarding the appointment of ‘general practitioner trainees’.

They claimed that when the Public Service Commission published the results and it transpired that the plaintiffs had been chosen, the Commission cancelled the selection process and ordered the process to be done again. They requested the court to declare, among other things, that:

• Their appointment as general practitioner trainees by the Commission following a call for applications made in the Government Gazette was final, since they satisfied the requirements listed in the call for applications and the results regarding persons chosen were published;

• Since they were appointed as general practitioner trainees before other candidates who were not yet registered with the Medical Council, or had not yet obtained their warrant and the Foundation Achievement of Compliance Document, their appointment must be given priority over the appointment of other candidates; and

• The Commission abused of powers granted to it by law (ultra vires) and acted contrary to the principles of natural justice when it cancelled the result it had published, because such acts infringe the Public Service Commission Regulations (the regulations).

The Commission alleged that the regulations allowed it to cancel the call for applications. The selection process did not guarantee that the best candidates would be chosen. The result published indicated that persons who got low marks were chosen before others who got higher marks.

Applicants that were put on a ‘subsidiary’ list, in terms of clause 4.4 of the call for applications, got a higher mark than most of the plaintiffs whose names were listed on the main list under clause 4.1 and the plaintiffs had to be chosen before those persons listed under clause 4.4.

Candidates who qualified under clause 4.1 (that also included the plaintiffs) had their mind at rest that the subsidiary candidates could not be chosen before the candidates listed under the main list in terms of clause 4.1. Consequently, it gave directions for another call for applications to be published wherein all the applicants would be included on one list and would be considered together to ensure transparency and that the decision would be based on merit, that is, on the mark given to the applicants during the interview.

The plaintiffs alleged that once the Commission decided to publish the result and no complaints about the result were filed, the Commission had no right to cancel the result and nullify the selection process

The Commission had the duty to ensure that in every process of selection of public officers, the best persons would be chosen. The other defendants alleged that the sector agreement – the agreement that the government entered into with the Medical Association of Malta (MAM) – binds the parties and it regulates the relationship between the plaintiffs and the defendants. MAM made a request to cancel the selection process and such request was done in accordance with powers granted to it by the agreement and, consequently, it bind the plaintiffs.

The courts had to ascertain whether the Commission’s act was compliant with law and the rights granted to it by law, and that it did not infringe the principles of natural justice and it did not amount to an abuse of power.

The plaintiffs based their lawsuit on sub-paragraphs (ii), (iii) and (iv) of article 469A(1)(b) of the Code of Organisation and Civil Procedure:

“1. Saving as is otherwise provided by law, the courts of justice of civil jurisdiction may enquire into the validity of any administrative act or declare such act null, invalid or without effect only in the following cases:

(b) when the administrative act is ultra vires on any of the following grounds:

… (ii) when a public authority has failed to observe the principles of natural justice or mandatory procedural requirements in performing the administrative act or in its prior deliberations thereon; or

(iii) when the administrative act constitutes an abuse of the public authority’s power in that it is done for improper purposes or on the basis of irrelevant considerations; or

(iv) when the administrative act is otherwise contrary to law.”

The plaintiffs claimed that the Commission infringed the regulations. Regulation 17(e) of the regulations states that:

“Where the Commission finds that there is a breach of the provisions of these regulations or any applicable directives and guidelines, or where the Commission finds that a selection process was not conducted in accordance with the merit principle, it may take such action as it deems fit by way of remedy, including:

(i) the suspension or termination of a selection process;

(ii) the cancellation of a call for applications, and the subsequent publication of a revised call with such amendments as the Commission may decide upon;

(iii) the annulment of a selection result;

(iv) the making of a recommendation to the prime minister for the revocation of an appointment, subject to regulation 23(2); and

(v) the making of recommendations to the prime minister or to other authorities as appropriate, to take such disciplinary or criminal action as it may consider appropriate in the circumstances.”

It provides that the Commission may recommend the revocation of an appointment made under article 110 of the Constitution if “that appointment was manifestly not in accordance with the principle of merit”. The principle of merit shall be understood in accordance with article 21 of the Public Administration Act: “(1)... appointments to public offices shall be made by competitive selection on merit.”

The Commission had the discretion to decide whether to take one of the measures mentioned in the regulations. The cancellation of the results published or the cancellation of the selection process are among measures that the regulations permit the Commission to take without the need to receive a formal complaint from anyone.

The reasons which permit one to take the said measures are: (a) a breach of the regulations; or (b) a breach of the directives or guidelines regarding the sector; or (c) a breach of the principle of merit. The measures laid down in Regulation 17(e) are not mandatory and the Commission may take other measures.

The plaintiffs alleged that once the Commission decided to publish the result (on two separate lists) and no complaints about the result were filed, the Commission had no right to cancel the result and nullify the selection process.

If it is true that the Commission cancelled the result because it felt that it was not complying with the principle of merit, this falls under the rights granted to it by Regulation 17(e). Therefore, when it chose to do this, it did not go beyond the powers granted to it by law.

This case focuses on whether the administrative decision was reasonable. The concept of reasonableness is linked to the element of discretion. Discretion means the power to make a choice between alternative courses of action or inaction. Discretion must be exercised within the parameters of the law, in a reasonable manner, in accordance with equity and rights and without any abuse of the same discretionary power.

In order to ascertain whether an authority exercised its discretion in a reasonable manner, it must be shown that the authority did what it had to do or should have done and not that which it could have done. It must be exercised in accordance with established procedure and rights which means that it must be exercised in a reasonable manner:

“A person in whom is vested a discretion must exercise his discretion upon reasonable grounds. A discretion does not empower a man to do what he likes merely because he is minded to do so – he must in the exercise of his discretion do not what he likes but what he ought. In other words, he must, by the use of his reason, ascertain and follow the course which reason directs. He must act reasonably.” (Roberts v Hopwood)

The Commission chose to cancel the results for the following reasons. MAM held that having two separate lists amounts to a breach of the agreement. In the Maltese legal system, a sectoral agreement has the force of law between the parties and binds the persons to whom it applies and in the event that there is a lack of compliance, either one of the parties may take legal action (Malta Shipyards Ltd v General Workers’ Union).

The agreement states that the criteria for qualification and exercise of the profession on the merits take precedence over the criteria of seniority. For the Commission to be able to resort to one of the measures in Regulation 17(e), it was not necessary for a formal complaint to be filed. When the Commission is evaluating the selection process of a call for applications, it is enough if it notices that there is a circumstance which could lead to the taking of a measure of the kind.

Abiding by the criteria found in the call for applications was going to lead to a situation where candidates who got a higher mark would not be chosen before the plaintiffs were chosen, even if they got a lower mark than the other candidates.

The problem was that the call for applications stated that, no matter what mark the candidates obtained in their interview, the candidates on the main list would be chosen before those on the subsidiary list. Consequently, when the results were published and it was clear that the candidates with a higher mark were not going to be considered until the plaintiffs were chosen, the Commission felt that the principle of merit was not being complied with.

The court took the view that the Commission’s reasons were valid when it exercised its discretion. By taking the measures found in Regulation 17(e), it did not act in breach of law or on the basis of reasons or considerations which are irrelevant or abusive.

It held that the Commission’s decision to cancel the result was not beyond its powers, unreasonable or in breach of law.

The plaintiffs’ requests were unfounded and, consequently, the court rejected their requests.

Rebecca Micallef is a lawyer at Ganado Advocates.