The Public Bodies Appeal Tribunal &The Public Bodies Appeal Act 2008.

The Constitution was amended by The Constitution (Amendment) Act 2008 (Act 9/ 2008) by inserting section 91A
in the Constitution, 1968. Section 91 A of the Constitution as amended enacts that:
―(1)There shall be a Public Bodies Appeal Tribunal which shall, notwithstanding section 119 but
subject to subsection(3), have jurisdiction to hear and determine appeals made by the public officers
against such final decisions of such Commission established under this Constitution, as may be
prescribed, or of any Commissioner or other person exercising powers delegated by that
Commission.‖
Section 3(1) of the Public Bodies Appeal Tribunal Act 2008 prescribed that the Tribunal shall hear and
determine an appeal made by any public officer against any decision of the Public Service Commission. The
Public Bodies Appeal Tribunal is operational since June 2009 and is governed by the Public Bodies Appeal
Tribunal Act 2008 (Act 10 of 2008). It is constituted of a Chairperson (who is a barrister of not less than 10
years‘ standing) and two members (a law practitioner of not less than 5 years‘ standing and a former public
officer who had reached the level of a Permanent Secretary or to her Supervising Officer, or a higher level in
the public service), and they have jurisdiction to hear appeals, within 21 days of the notification to the officer
of the decision, made by any public officer, or any local government officer, against any decision of the Public
Service Commission (Public Service Commission Act) or the local Government Service Commission (Local
Government Service Commission Act and the Local Government Service Commission Regulations). The Public Bodies Appeal
Tribunal Act 2008 (Act 10 of 2008) will not entertain action outside the statutory delay of 21 days.

Public Service Commission vPublic Bodies Appeal Tribunal (ipoMrs Man Lan Wong Chow Ming-
Co-Respondent) (Record No. 2011 SCJ 382)
In this case, it has been provided that to give a faire determination before the PBAT, the onus of proof rest
upon the Appellant as per Section7(3) of the PBAT Act 2008, also it should be taken into consideration
whether the Respondent has followed the rules in appointing the respective officers while acting in the
―Wednesbury‖ form. Facts of this case revealed that the Judgment of the Supreme Court followed that all
appointees, who feel affected, should be given an opportunity to be heard during the proceedings. The matter
of the case was handed again to the Tribunal where it was heard anew. Following this case, all appointees are
known as Co-Respondents.

Section 4 Public Bodies Appeal Tribunal (PBAT) Act 2008 (Act 10/2008. Adviser to Tribunal(1) Where it
appears to the Tribunal to be expedient to do so, it may appoint such number of advisers on an ad hoc basis as
it considers necessary to assist the Tribunal in the determination of any appeal before the Tribunal. (2) Where,
in the course of any proceedings before the Tribunal, an adviser appointed under subsection (1) is absent, the
Tribunal may continue and conclude those proceedings notwithstanding the absence of the adviser. (3) Any
decision of the Tribunal shall be that of the members of the Tribunal.
 Section 5 Public Bodies Appeal Tribunal (PBAT) 2008 (Act 10/2008).Qualifications of members of Tribunal.
The members of the Tribunal, other than the Chairperson, shall respectively be – (a) a law practitioner of not
less than 5 years‘ standing; and (b) a former public officer who, on ceasing to be a public officer, had reached at
least the level of a Permanent Secretary or other Supervising Officer, or a higher level in the public service. 6.
Procedure and powers of Tribunal (1) Subject to subsection (5), an appeal made under section 3 – (a) shall set
out concisely and precisely the grounds on which the appellant seeks to have the decision of a public body
quashed or dealt with otherwise; and (b) shall be signed by the appellant. (2) Upon receipt of an appeal under
subsection (1), the Tribunal shall – (a) notify the public body of such fact; and (b) forthwith forward a copy of
such appeal to the public body. (3) The public body shall lodge before the Tribunal its objections, if any,
against such appeal. (4) The Tribunal may, upon a consideration of the grounds set out in an appeal and the
objections made against the appeal –(a) dismiss the appeal, where it appears to the Tribunal that it is trivial,
frivolous or vexatious; or (b) entertain such appeal and, for that purpose – (i) call for a report from the public
body; (ii) require the public body to produce any document or other material which, in the opinion of the
Tribunal, relates to the grounds set out in the appeal and which is necessary for consideration of the appeal; (c)
give notice of the appeal to an officer of any other public body whom the Tribunal considers likely to have
been affected by the decision of the public body and require such officer to produce before the Tribunal any
material which such officer may wish to produce before the Tribunal in connection with such appeal. (5) The
Tribunal shall not entertain any ground of appeal not raised in the grounds of appeal.

Jolicoeur M & ORS v Public Bodies Appeal Tribunal 2015 SCJ 73

Interestingly this case focus on an important Section 3 (1) of the Public Bodies Appeal Tribunal Act 2008, the
jurisdiction of the respective Tribunal can be seen as follows: The Tribunal shall hear and determine an appeal
made by a Public Officer, Local Government Service Officer in challenging the decision of the Public Service
Commission or Local Government officer when the matter pertains to the appointment exercise or to a
disciplinary action against that officer. Therefore, following the judgment of this, the Applicant sought an
appeal against the Co- Respondent decision related to the termination of the Applicant‘s temporary
employment. In no circumstances, it related to an appointment exercise or any disciplinary action against the
Applicants. In inference, it can be seen that the Respondent, that is the Public Bodies Appeal Tribunal, had no
jurisdiction to hear the appeal. Therefore, the tribunal‘s determination is considered to be null.
Section 9 Public Bodies Appeal Tribunal (PBAT) 2008 (Act 10/2008. Judicial review (1) Any party who is
dissatisfied with a decision of the Tribunal under section 8may apply to the Supreme Court for a judicial review
of the decision. (2) Any party wishing to make an application to the Supreme Court under subsection (1) shall,
within 21 days of the date of the notification of the decision of the Tribunal to him – (a) lodge the application
and the grounds thereof at the Registry of the Supreme Court; (b) at the same time, serve a notice of the
application to the Tribunal and the other party.

Krishnajee O.A. v Local Government Service Commission 2017 SCJ 387

This case relates to an application for leave of Judicial Review of the Respondent who is the Local Government
Commission, in relation to a decision of the latter in dismissing the Applicant, who was an employment of the
Co-Respondent. However, the judgment of this case could not go further and this clearly illustrate that an
individual, the case of Applicant should exhaust alternative remedies available before heading to the Supreme
Court. In this case, therefore alternative remedy was the right of appeal available to him under Section 3 (1) of
the Public Bodies Appeal Tribunal Act 2008. Which jurisdiction elaborates as follows: “The Tribunal shall hear and
determine an appeal made by any public officer, or any local government officer, against any decision of the
Public Service Commission of the Local Government Service commission, as the case may be, pertaining to an
appointment exercises or to a disciplinary action taken against that officer‖.Within the same case, it could be
seen that the Applicant was subjected to previous convictions while being an employee of the Co-Respondent,
therefore leave was not granted and the application was set aside. Referring to the Rulings 3 of 2017, it has also
been brought into consideration when a public officer is sanctioned to his previous posting that is not based on
an administrative error, it relates to a disciplinary action, therefore the PBAT has full jurisdiction to hear such
matter. Additionally, the powers of the PBAT should not be questioned by a conservative gratitude of what
amounts to a disciplinary action.
 Pothunnah P v The Public Bodies Appeal Tribunal& Anor 2015 SCJ 163
Following a post of Assistant chief executive in the Local Government Service, Mr Thorul felt disappointed
following the appointment by the LGSC and referred the matter to the Public Bodies Appeal Tribunal, where it
quashed the decisions of the LGSC and remitted for a fresh selection of candidates which had also rendered
the appointment of the selected candidates including Mr Pothunnah, who is the Appellant under this case, to
be null and void. Therefore, leave was obtained for Judicial Review, the Grounds brought forward was that
under Section 3(3) of the Public Bodies Appeal Tribunal Act 2008, the PBAT has no jurisdiction to hear the matter
when it relates to an appointment made through the call of application by public advertisement. It was held that
PBAT has acted outside its jurisdiction.

Heeramun G v The Public Bodies Appeal Tribunal 2015 SCJ 269

In following case, the Applicant applies for Judicial Review of the decision of the PBAT, whereby the decisions
for the appointment of the Respondents of no 2 to no 56 as Deputy Directors is illegal, null and void and
unfairly carried out, thereby was quashed by the Tribunal. It was also found that the grounds for selection of
candidates matter both objectively and subjectively. An appeal against the decisions of the Tribunal, that is the
Public Bodies Appeal revealed that under Section 7(3) of PBAT Act 2008, there was a failure of justification of the
Applicant‘s criticism that the Tribunal failed to cater for relevant documents. The Applicant being more
experienced and possessed seniority position, opted to be selected among the candidates but according to the
PSC, the Applicant failed to meet the subjectivity criterion at the interview panel. The Tribunal reviewed the
selection exercise and concluded that seniority is not a sole factor in designing a post, experiences, merits,
qualifications and suitability requirements are necessary. It was held that the PBAT did not err when dealing
with the final decisions of the PSC. Therefore, it was held that the grounds leveled by the Applicant in
challenging the decision-making process of the Tribunal by way of Judicial Review has no merit and shall be set
aside.

Public Service Commission v The Public Bodies Appeal Tribunal 2012 SCJ 432
The Respondent in this case is the Public Bodies Appeal Tribunal, whereby it had quashed the decision
following the Applicant appointment of the 2nd and 3rd Co-Respondents. The 1st Respondent alleged against
their appointment as senior Gangman. According to the scheme of the service ―appointment is to be made by
experience and merits following a promotion of qualified workers‖. The 2nd and 3rd Co-Respondents were
senior compare to the 1st Co-Respondent. In fact, the PBAT, current Respondent of this case has challenged
the Applicant‘s decision to promote the above-mentioned Respondents. It was held that the Respondent had
erred in terms that the scheme of service did not cater for the 1st Co-Respondent‘s experience in another field
which was unrelated to the post of Gangman. Therefore, the Supreme Court granted the application for
review and the Public Appeal Bodies Tribunal decision was quashed and decision of the Applicant was
restored. This case provides that the PBAT is subjected to review as per the Constitution of Mauritius,
whereby the Supreme Court has unlimited jurisdiction to hear any matters (section 76)

Public Service Commission v The Public Bodies Appeal Tribunal 2014 SCJ 94 [(Record No. 107241)
(Record No. 107242), (Record No. 107243), (Record No. 107244), (Record No. 107245)]
This is a five application of related matters and the Respondent is the Public Appeal Tribunal, single judgment
is provided, The Applicant had appointed each Co-Respondent as Labour and Industrial Relations Officer ina
substantive capacity with effect from 16 November 2011, except for the Co-Respondent in the first case who
had taken five days‘ leave and whose substantive appointment took effect from 23 November 2011. Onappeal,
the Respondent had determined that the effective date of substantive appointment was 16 May 2011.The
Applicant is challenging that decision essentially on the ground that it is illegal and ultra vires. The
 respondent has countered by referring to the Human Resource Management Manual which provided that the
effective date of appointment of or promotion of an officer shall be the date of his/her assumption of duty,
there should be no gap. between the acting ship/assignment of duties and the date of offer of appointment
but it was held that the Manual cannot replace the Public Service Commission Regulations made under section
118(1) of the Constitution. Under these regulations, the mode of appointment is to be specified in the scheme
of service. Therefore, the determination of the respondent was quashed, the effective date of appointment will
therefore be substitute after the completion of 6-month period of training.

Zaid Backar v The Public Bodies Appeal Tribunal(Record No:111789)

The decision of the PBAT was quashed and the lGSC had to carry out a fresh selection while complying to the
LGSC regulations. As per Section 6 of the PBAT Act 2008, the Tribunal had requested for the list of criteria,
weightage and marks allocated to the candidates. The correspondent failed to provide this information as per
requested but gave the total marking instead of the marking under each criterion. The Tribunal quashed the
decision of the Co-Respondent. Furthermore, it has been agreed that the process of candidate‘s selection ab
inito did not comply with Rule 13 of the Local Government Service Commission Regulationsof 1984. It was held by the
Tribunal that it would not be able to carry a proper review of the exercises, therefore reverted towards afresh
selection of candidates.

The Public Bodies Appeal Tribunal usually verifies for any lacuna, flaws or biasness in the process of
selection. The decision of the tribunal is Final, unless where the parties involved are dissatisfied with a decision of
the Tribunal under Section 8, they may apply for Judicial Review as per Section 9 of the PBAT Act 2008.The
party should make an application within 21 days of the date of notification of the Public Bodies Appeal
Tribunal decision. He/she also need to lodge the grounds of the Supreme Court. Appeals are made on the
merits of a case but an application for leave for judicial review is not made on the merits of a case, the Supreme
Court can reject the application even if the application has been made promptly within 3 months.
5.1 The Supreme Court.The Supreme Court is the highest court in Mauritius. As per section 76 of the
Constitution, 1968 it has unlimited jurisdiction in all civil and criminal proceedings. Therefore, it has huge
powers to order a new trial, to amend any decision from an inferior/lower court, to quash its decision, to allow
an appeal to the JCPC or to refuse an appeal especially if it is outside the statutory prescribed delay of 21
days,to interpret the Constitution, to allow or to refuse an appeal to their Law Lords of the Judicial committee
of the Privy Council (JCPC) as per the criteria and conditions which are available under section 81of the
Constitution, 1968.

In the case of Doger De Speville M v United Docks Ltd 2017 SCJ 198, the appellant claims for severance allowance
at punitive rate for unjustified dismissal. The appellant was summarily dismissed for gross misconduct but he
was not informed of the exact charges held against him. In view of various reasons, the judgment of the trial
court was reversed and the respondent was ordered to compensate all the costs of the present appeal and the
Court below. This has also occurred in Fraser (Captain) A S. v Air Mauritius Ltd 2011 SCJ 373, where the
plaintiff claimed for compensations for the unlawful and unjustified dismissal of employment by the defendant. In
this case the plaintiff has not been dismissed on the ground of any misconduct but rather on his own failureto
hold a legal license and thus it would be unlawful for the both parties to pursue the contract which is nulland
void. It was found that the plaintiff could not prove that he was unlawfully dismissed and therefore, the
plaintiff‘s claim is consequently dismissed with costs.

And it has inherent jurisdiction in matters of divorce and divorce petition, election petition and an
application for leave for judicial review.

Worked Example
In which circumstances there may be a New Trial? Explain. In case of fraud, violence or new evidence is now
available but which was not present at the time of the judgment was given, the defendant may apply for a new
trial within 14 days before the same court, otherwise, the application will be time-bound. A new trial is not an
appeal because an appeal is made 21 days from an inferior court to a superior court.

The Supreme Court: An Application for Leave for Judicial Review.

Inspired from UK Order 53, judicial review is not an appeal and is not based on the merits of the case. It is a
discretionary remedy whenever there are public rights against a public statutory body (The Public Service Commission
Act, The Local Government Service Commission Act, The Judicial and Legal Service Commission Act, The University of
Mauritius Act, The Bank of Mauritius Act, The University of Technology Act, The PSSA Act) made ex parte at the first
or filtering stage before ajudge of the Supreme Court provided the application has made a full and frank disclose,
has an arguable case, that the applicant has sufficient interest in the matter (or locus standi) or that the
applicant has been made promptly or within three months after the decision reached by the public statutory
body provided there is a public element in it otherwise the application for leave for judicial review will be set
aside. Application is made by way of motion plus affidavit and if application is granted, the applicant may move
to the second stage. Theapplicant must have solid grounds for judicial review. In other words, the decision
reached by that public statutory body was so illegal, irrational and unlawful and against the rules of natural as per
the Wednesbury case.At the second, two judges of the Supreme Court will then decide on the substantive merits
of the case.
In the case of Maitaram J. v The Financial Services Commission 2011 SCJ 143, whilst on probation, the applicant
was dismissed by the FSC. She applied for a judicial review of the respondent‘s decision and decision-making
process and a motion for a mandamus order (a judicial writ issued as a command to an inferior court to perform a
public/statutory duty) compelling the respondent to pay to her a sum of 10 million rupees as damages. She also
added that her employment was terminated for reasons unknown to her and without any hearing. Applicant
relied on the case of Bhadain but the court held that: All the grounds relate to an alleged unjustified breach of
employment and are devoid of any significant public element in respect of which an application for judicial
review would lie. However, applicant can seek effective and appropriate remedies by entering an action for
breach of her contract of employment against the respondent, on the basis of the facts averred by her, under
the applicable civil or industrial law. Hence, she was not granted leave for Judicial Review.

PROCEDURAL IMPROPRIETY & PROMOTION AND RELATED ISSUES IN THE

PUBLIC SECTOR

45 Abb-Ebara-Wbho v Th CEB & Ors 2006 51 Chittoo v UTM 2014 SCJ 323
SCJ 186
TABLE 7
In the case of S.R. Issur Applicant v The University of Mauritius as respondent and Mrs S.D. Goordyal, Mr S.K.A.
Parahoo as Co-Respondents, it was an application for a judicial review of the decision of the respondent -(a) to
appoint the first co-respondent as Registrar on a 2-year contract; (b) not to appoint the applicant as Registrar;
(b) to appoint the second co-respondent as Director of the Centre for Distance Learning. The main complaint
of the applicant, who did not apply for the post of Director of the Centre for Distance Learning, was that the
second co-respondent was not qualified for the post. The applicant was found to be the best candidate after
the interview but it does not satisfy the qualifications in relation to age. On the recommendation of the Staff
Committee appointed the first co-respondent, who was about to retire from her substantive post of Registrar
on grounds of age, on a two-year post retirement contract in as much as there was no suitable candidate. When
viewed in that context, the complaints of the applicant have no substance. It was never the case of the
applicant that a person over 60 could not be appointed on contract and in any event learned counsel for the
applicant was unable to say how such an appointment was in breach of the law regulating the University of
Mauritius. His reference to paragraph 23(2) of the Statutes was totally off the mark. This application was
dismissed with costs.
In the case of Dr H.B. ChittooApplicant v The University of Technology Mauritius Respondent, it was an
application to apply for leave to apply for judicial review of the decision of the respondent, on the basis that it
has acted (a) ultra vires its promotion policy of 2011; (b) unreasonably and contrary to the legitimate
expectation of the applicant; and (c) irrationally. The respondent, who chose not to file any affidavit at this
stage, is objecting to leave being granted on the basis that (a) all the relevant parties have not been put into
cause; and (b) the application does not disclose any arguable case
In thecase of Ramjeeawon M v The Public Service Commission andAnor (2013 SCJ 194), an application for judicial
review is made by the applicant for the decision taken by The Public Service Commission to appoint Mrs
Manogary Rangasamy to the post of Principal Arts Officer at the Ministry of Education, Culture and Human
Resources. He argued that the decision taken by the PSC is:
(a) In breach of the rules of natural justice
(b) In breach of the established selection exercise which is to go by seniority
(c) Unreasonable in the Wednesbury sense
(d) Unfair and in breach of the applicant‘s legitimate expectations.
The Board referred to the case of Naidoo v Public Service Commission and anor [2007 SCJ 77] and it was found
that there was no material change in circumstances as to affect the decision-making process. The second
ground was devoid of merit since the Public Service Commission Regulations provides that, in exercising its powers
in connection with the appointment or promotion of officers in the public service, the Commission shall have
regard to the maintenance of the high standard of efficiency necessary in the public service and shall ―in the
case of officers in the public service take into account qualifications, experience and merit before seniority in
the public service. It was also put forward that Mrs Rangasamy was appointed since she met all required
qualifications according to the scheme of service for the post of Principal Arts Officer and based on her
performance during her interview process. The appeal was set aside since it was found that the applicant failed
to establish any of the grounds invoked by him in this application for judicial review.
In the case of Hauroo P. v National Library Board & Ors (2015 SCJ 19), an application for leave for judicial
review to challenge the decision of the respondent and others is made by the applicant for having appointed
Mrs T.K. Hurrynag-Ramnauth to the post of post of Director of the National Library. The applicant argues
that the appointment of Mrs Ramnauth was unfair, unreasonable in the Wednesbury sense and in breach of the
applicant‘s legitimate expectations to be appointed as Director. The first reason stated by the applicant was that
Mrs Ramnauth was a Senior Librarian at Carnegie Library, Municipal Council of Curepipe, at all material time a
member of the National Library Board, set up a committee for reviewing and amending the scheme of service
for the post of Director and failed to disclose her interest in the said post. However this point was unsupported
since Mrs Ramnuauth had written letter in which she mentioned to have step down temporarily as board
member as long as the selection exercise is to be completed since it would cause conflict of interest.Secondly,
the case presented by the applicant is only one sided since it provides information only that of thelatter‘s
qualifications, experience and merits. The Board mentions that no substantial issues were put forwardto show
that the applicant has an arguable case whereby the decision making process was flawed. Thus the application
was dismissed with costs.
In the case ofKhedun –Sewgobind T v The Public Service Commission 2010 SCJ, in June 2003 the applicant, who
reckons 7 more years of service that the co-respondent no.1 (Roshnee Bissessur), applied for leave for a
Judicial Review of a decision of the respondent reached in April 2005 appointed co-respondent no.1 as
Deputy Chief Government Valuer (DCGV) ―on a temporary basis‖ there was no objection to the application
for leave and leave was granted on 16th January 2006. The applicant claimed that she has been object of bias
and discrimination at the hands of the then CGV during her career. In the present case, the CGV, against
whom the applicant had made several complains, was not only presented at the deliberation of the selection
board, but also took an active part to the extent of allocating marks to the candidate and submitting a special
report on request from the respondent subsequent to the interview. The review is granted and the decision of
the respondent to appoint the co-respondent as DCGV is quashed with cost against the respondent.
In the case of Augustave v Mauritius Sugar Terminal Corporation and Iysurey 1990 SCJ 347, this is an application
for a judicial review of the decision of the respondent to appoint the co-respondent to a post of accounts clerk
in a temporary capacity to give preference to the co-respondent's qualifications, thereby paying insufficient
attention to applicant‘s seniority. The respondent, apart from contending on the merits that its decision is
perfectly in order, challenged the applicant's right to seek the remedy in a matter which has no public law
element. It was held that:
 1. Respondent is a statutory body
2. It may appoint officers on "on such terms and conditions as it thinks fit" through its Board of
Directors.
The Court cited the case of O'Reilly v Mackman 19831 2 AC 237: Employment by a public authority does
not per se inject any element of public law. The ordinary employer is free to act in breach of his contracts of
employment and if he does so his employee will acquire certain private law rights and remedies in damages for
wrongful dismissal, compensation for unfair dismissal, an order for reinstatement or re-engagement and so on. The
application was accordingly set aside with costs.

Société Royal Gardens et Compagnie & Ors v Mauritius Revenue Authority

This is an application for a judicial review of a decision of the former Commissioner of Income Tax (―the
Commissioner‖) to disallow certain capital allowances and revise the losses claimed by the applicants. The first
applicant and its associates, the third to ninth applicants, had by various transactions acquired the leasehold
rights and the uncompleted buildings from Blue Sun (Mauritius) Ltd in the name of the first applicant and
eventually surrendered their rights to the second applicant. No evidence was adduced by the only witness for
the applicants before the Tribunal on the issue of capital allowances; nor was that issue of capital allowances
pressed before the Tribunal. And accordingly there was no finding from the Tribunal on that issue. The
determination of the Tribunal was binding on the parties only to the extent that there has been a determination
on the issue pressed. In the circumstances we hold that the principle of ―autorité de la chose jugée" cannot
avail the applicants. In view of what we have said above, the application for judicial review fails and is set aside
with costs.

In the case ofRamjeeawon M v the Public Service Commission and Anor 2013 SCJ 194, this is an application for a
judicial review of the decision making process of the decision of the respondent 1 (PSC) appointing
respondent No2 Mrs Manogary Rangasamy as Principle Arts Officer at the Ministry of Education Culture and
HR. The grounds for review, as per the statement of the case, are that the decision of the respondent No1 is:
1. In breach of the rules of natural justice
a. The selection exercise was effected on the basis of a merit list which has been drawn up in the
course of a previous selection exercise 6 months back.
b.No reasons were given as to why the respondent No.2 was appointed and the applicant was not.
2.In breach of the established selection exercise which is to go by seniority
3.
4.
However Judicial Review is not based on seniority only but on qualifications, performance at work,
behavior and attitude.
5.Unreasonable and unfairness of the decision and is in breach of the applicants legitimate expectation.
The applicant‘s case is essentially to the effect that he was, at the time of appointment, the senior of the
respondent No.2 and also more qualified than her. However according to the applicable scheme of service for
the post of Principle Arts Officer specified under regulation 15 of the Public Service Commission (PSC) Regulations
1967, we read under the heading ―Qualification‖; ―by selection from among officers in the grade of senior Art
Officer reckoning at least 3 year service in a substantive capacity in the grade and who: (i) possess
organizational ability and have a good communication and interpersonal skills. For all the above reasons, we
find that the applicant has failed to establish any of the grounds invoked by him in his application which the
Judge set aside with cost.
In the case of R. v. North and East Devon Health Authority, ex parte Coughlan R. v North and East Devon Health
Authority, ex parte Coughlan is a seminal case decided by the Court of Appeal of England and Wales in 1999
which clarified the court's role in relation to cases which involve substantive legitimate expectations. The Court
held that when reviewing a decision of a public authority which is contrary to a prior assurance or
representation by the authority, its role is not always limited to assessing if the decision is Wednesbury
unreasonable or irrational. In some situations, it is entitled to determine whether it is fair to compel the
authority to fulfill its representation, or whether there is a sufficient overriding public interest which justifies
allowing the authority to depart from the promise made. The case involved a severely disabled lady, Miss
Coughlan, who was receiving nursing care in Mardon House, a National Health Service facility managed by the
North and East Devon Health Authority. The Authority had made several representations to her that she
would be able to live out her days in Mardon House. Subsequently, the Health Authority decided to shut the
facility down as the cost of operating it was becoming excessive. Coughlan sought judicial review of the
Authority's decision, claiming that its representations had induced in her a legitimate expectation that Mardon
House would be her home for life. The Court of Appeal decided the matter in Coughlan's favour. It took into
account the importance of the promise to her, and the fact that the consequence to the Health Authority of
honouring the promise was merely financial in nature, and while the Authority had agreed to fund the cost of
her treatment it had offered no alternative permanent accommodation. In the circumstances, the Court was of
the view that for the Authority to frustrate Coughlan's legitimate expectation was so unfair that it amounted to
an abuse of power. Furthermore, there were no overriding public interest considerations to justify the
Authority's decision. The Court distinguished Coughlan's situation from one where an authority had not given
an express promise but had only made a representation that an individual was entitled to be treated in a manner
consistent with a policy in force at the time. In this situation, the authority is only compelled to take into
account its previous position or the representation made to the individual before deciding how it should
proceed, and if it has done so the court may only determine if the authority acted in a Wednesbury-
unreasonable manner.
In the case ofS.G.Domah v The Judicial and Legal Service Commission, on the 23 April 2001, the applicant filed a
motion in court for an order granting him leave to apply for judicial review of the respondent's decision dated
17 April 2001, recommending to co-respondent no. 1- The President of the Republic the appointment of co-
respondent no. 6- Ashraf Ally Caunhye to the post of Puisne Judge instead of the applicant. When the case was
called, learned Counsel for the applicant respectfully objected to the case being heard by two Judges, as it
would defeat the very aim of his request made on the 23 April 2001. He nonetheless reiterated his request and
was prepared to offer argument on the issue. It is the contention of learned Counsel for the applicant that in
England and Wales applications for judicial review are heard by a single Judge and that by virtue of the above
provision we have imported the practice which obtains in England and Wales into our judicial system.
Therefore, according to learned Counsel, the case ought to be heard by a single Judge. Learned Counsel has
very forcefully submitted that there is a perception of bias in the decision of co-respondent no. 2 - (1) to have
listed the case before a two Judge bench. As rightly submitted by learned Counsel for co-respondent no. 6 had
the case been fixed before a single Judge questions there would have been asked. Taking into account, that only
our Supreme Court consists of nine Judges, four Judges are already disqualified from hearing the case, two
others were taken with the Hurnam's cases and one of us was in the case from the start, no right thinking man
could possibly perceive that there was the slightest element of bias. The objection raised by learned Counsel for
the applicant is overruled. As firstly the set-up of our judicial system is different from that of England and
Wales, where applications for judicial review are now dealt with by the Administrative Court; secondly the
composition of the various divisions of the Supreme Court is prescribed by the Courts Act and our
Constitution. Thirdly the well-established practice of the composition of the Court with two Judges when
hearing matters relating to prerogative orders.
In the case of Luchmun v The Mauritius Sugar Terminal Corporation 1990 MR S43 SCJ241, the applicant who
works for the respondent as a clerical assistant avers that on 18th April 1989 the corporation invited applicants
for the filling a post of temporary accountant clerk. Of the 4 candidates who applied only two had the required
qualifications the correspondent and the applicant himself. The correspondent was selected and was appointed
temporary account clerk as from 24 July 1989.The applicant avers that he is the senior of the correspondent by
almost 2 years, has more experience in accounting, has never had an adverse report.The applicant avers that by
appointing the correspondent the respondent acted unfairly and against the principle of natural justice. The
court held that the applicant himself admitted that the correspondent did possess the necessary academic
qualification to postulate for the post of accountant clerk and that they were duly interviewed. The main bone
of contention is that he had the advantage of seniority. However, seniority is not a ground for judicial review.
The applicant failed to make an arguable case. The leave is accordingly refused and the application is set aside
with cost.
In the case of Taramatee v PSC, in June 2005 the applicant, who reckons 7 more years of service than the
correspondent no. 1 Roshnee Bissessur, applied for leave for a Judicial Review of a decision of the respondent
reached in April 2005 appointing co-respondent no.1 as Deputy Chief Government Valuer (DCGV)―on a
temporary basis‖. There was no objection raised to the application for leave and leave was granted on 16
January 2006.The application came to be heard on the merits on 2 October 2007 and at the close of the
hearing which called for the respondent to submit its record on the appointment exercise to the Court. The
appointment of co-respondent no. 1 has been made amidst dissatisfaction of the applicant that she had been
the object of bias and discrimination at the hands of the then Chief. Government Valuer (CGV) during her
career. Again, it was claimed that it was improper on the part of the respondent to have accepted the then
CGV as member of the Selection Board. Yet again, it was claimed that the Selection Board of the respondent,
subsequent to the interview of the 7 candidates to the post of DCGV, had inappropriately called upon the
then CGV to put up a special report on these candidates. In her application the applicant has averred a
number of instances wherein she would have been unfairly treated by the then CGV.The respondent found it
necessary, after carrying out the interview of the various candidates, to request the then CGV to submit the
confidential reports of the officers for the last three years, as well as a special report on each of the officers
who had attended the interview. The recommendation of the Selection Board made on 4 April 2005 that the
co-respondent no.1 be appointed DCGV, albeit in a temporary capacity for an initial period, was said to have
been made ―on the basis of the qualification and experience of the candidates, their performance at the
interview and the ad hoc report submitted on them.‖The then CGV, against whom the applicant had made
several complaints, was not only present at the deliberations of the Selection Board, but also took an active
part to the extent of allocating marks to the candidates and submitting a special report on request from the
respondent subsequent to the interview. In this case, the Supreme Court (in a majority judgment) which was
dealing with an appointment made by the Public Service Commission stated the following: Although, pursuant to
Regulation 17(1) of the Regulations, the respondent has control over the procedure to be followed in dealing
with applications for appointment to the public service, yet any procedure it adopts must be consistent with
fairness. The review is granted and the decision of the respondent to appoint the correspondent no. 1 asDCGV
is quashed. With costs against the respondent.
In the case of Nurkoo v The Public Service Commission 1998 SCJ 280, it was an application for leave to apply
for judicial review up a decision the respondent appointing the 2nd correspondent to the post of music
organizer in the Ministry of Education Science and Technology basically on the ground but it is contrary to a
scheme of service. It is not disputed that both applicants and the second correspondent had the prescribed
qualification and that neither of them had a Teacher's diploma in singing. However, the applicant contents
that he possesses qualifications other one was in the scheme of service and that he was appointed educator
officer grade A long before the 2nd correspondent. However, the applicant has failed to establish when
Nature and standard of the additional qualifications that he holds. Moreover, Judicial review is not concerned
with the merits of a decision but the decision making process. As the second correspondent holds the
prescribed qualifications his appointment cannot be said to be contrary the scheme of service. Leave is
accordingly refused and the application is set aside with cost.
In the case of Jewdhun and Ors v The Local Government Service Commission and Ors 1990 JCJ 116, it was held that
seniority is not a ground for calling a Judicial Review. It was found that the applicant has merely averred an
administrative error but has not made out an arguable case that there are grounds for a reasonable suspicion of
illegality in the respondent's decision making process.

JURISDICTION OF THE SUPREME COURT

Precedents
Ismael v Jay Fashion 1988 SCJ 497
New Mauritius Hotels Co. Ltd v L‘Hoste 1979 MR 163
Periag v International Beverage Ltd 1983 MR 108
UBS Co. Ltd v Etiennete 1995 SCJ 344
Raman Ismael v United Bus Service (UBS) Co. Ltd 1986 MR 182
BG Fashions v Huet 1989 SCJ 370
Flacq Bus Service Co Ltd v Bansee 1968 MR 159
PS of Ministry of Labour v Manager Rose Belle S.E 1966 MR 14