Khetsi v Attorney-General (CIV/T 52 of 89) [1995] LSCA 153 (17 October 1995)

IN THE HIGH COURT OF LESOTHO In the m a t t er between: SELLO KHETSI and ATTORNEY-GENERAL CIV/T/52/89 PLAINTIFF DEFENDANT J U D G M E NT Delivered by the Honourable Chief Justice, Mr. Justice J. L. Kheola on the 17th day of October, 1995. This is an action in which the plaintiff claims: (a) Judgment in the sum of M17,108-43 as area salary; (b) Interest thereon at the rate of 1 8% a tempore m o r a e; (c) Costs of suit; (d) Further and/or alternative relief. In his declaration the plaintiff avers that at all material times he w as employed by the public service as the Chief Extension Officer with the Ministry of Agriculture till he retired from the public service on the 15th September, 1988. On or about the 1st April, 1985 till on or about the 15th September, 1988 due to some inadvertence, error, mistake or negligence on the part of some officers in the Ministry of Agriculture the plaintiff's post was not upgraded from salary scale MAP1 to MAP6 like other posts of equivalent status in the Ministry of Agriculture w h i ch were accordingly upgraded. Plaintiff avers that the aforesaid error, mistake, inadvertence or negligence was rectified when plaintiff's post was upgraded on the 1st A p r i l, 1988. As a result of the failure to upgrade the post as aforesaid the plaintiff was not over the said period till to the date of his retirement, paid arrear salary in the aforesaid amount. In his plea the defendant says that when the regrading of posts was done, not every officer in the same category of salary scale was affected - some officers' positions remained unchanged. The change in grades that affected plaintiff was based on a decision by the Ministry of Public Service which was aimed at eliminating certain anomalies that existed in the grading of some officers with plaintiff's Ministry and was not made as a result of inadvertence, mistake or negligence as alleged or at all. When the upgrading of plaintiff's post was brought into effect on the 1st April, 1988 it was not intended that it should have a retrospective effect. The first witness called by the plaintiff is one Malefetsane Lepele who is the former Director of Field Services under whose supervision the plaintiff worked. His department was known as department of Field Services. He testified that the plaintiff was head of a division. He was a Chief Extension Officer. The other divisions were Nutrition Officer; another division was the Agricultural Information Division, headed by the Chief Agricultural Information Officer. All the above officers were on the same salary scale until the upgrading in April, 1985. They were all on Salary Scale MAP1. However when the upgrading was made the last two posts mentioned above were upgraded to MAP6. The post of the plaintiff was not upgraded, and he remained on MAP1. P. W.1 says that as plaintiff's supervisor he referred this matter to the Principal Secretary for the Ministry of Agriculture. The latter's reply was that he would refer the matter to the Deputy Principal Secretary so that she must look into the matter. She in fact did so and took up the matter with the Ministry of Public Service. Until he left the Ministry of Agriculture in 1986 the matter had not been resolved. He does not know the reason for the omission of the plaintiff's post when the upgrading was done. He says that he refers to it as an omission because positions of similar nature were upgraded and that when he asked he was told that the matter was being looked into. The plaintiff testified that he was holding the position of Chief Extension Officer when the upgrading was done in 1985. His salary scale was the same with that of the two officers in his department. Their positions were upgraded but his was not. No reason was given to him. He then approached P. W. I who was his supervisor. The reply he got was that the matter was being looked into. The applicant then wrote a letter to his Principal Secretary (see Exhibit "C") . The latter wrote a savingram to the Public Service Personnel (see Exhibit " B " ). In that savingram he explained that the irregularity occurred in 1985. On the 22nd January, 1988 P. S. Agriculture wrote a savingram to P. S. Public Service (P) (see Exhibit "A") . In that savingram he recommended that the oversight should be rectified and that the applicant's post be upgraded like the other two from MAP1 to MAP6. The post was eventually upgraded to MAPS with effect from April, 1988. This upgrading coincided with the general revision of salaries of the civil servants. There was a memo accompanying the salary revision document to the effect that incumbents of posts which have been upgraded shall not be entitled to any arrears and that the new salaries should start on the first of April, 1988. D. W.1 Lenono Mosoeunyane testified that in 1985 he was working in Cabinet (Personnel) which subsequently changed to Ministry of Public Service and he was Principal Personnel Officer (2). He knows the complaint of the plaintiff but says that there were other posts which were not upgraded in the same manner as that of the plaintiff. After being shown Exhibits "A", "B" and "C" D. M. I admitted that there was an oversight when the upgrading of posts similar to that of the plaintiff was made but the plaintiff's post was left behind. The facts of this case are common cause. They are that in April, 1985 the posts of Chief Nutrition Officer and the Chief Agricultural Information Officer were upgraded from MAP1 to MAP6. These two posts were of the equivalent status as that of the applicant who was the Chief Extension Officer. For some strange reason the applicant's post was not upgraded. In his plea the defendant says that the change in grades that affected the plaintiff was based on a decision by the Ministry of Public Service which was aimed at eliminating certain anomalies that existed in the grading of some officers within plaintiff's Ministry and was not made as a result of mistake, inadvertence or negligence as alleged or at all. I expected that the defendant would lead evidence of people from the Ministry of Public Service who would explain what anomalies there were in the Ministry of Agriculture in 1985. The evidence of D. W. I did not explain the anomalies. He finally admitted that failure to upgrade the posts of the plaintiff was due to inadvertence. In this respect he is supported by P. S. Agriculture in Exhibits "A" and "B". If evidence had been led to explain the anomalies alleged in the plea, there would be further evidence necessary to show how those anomalies were cured or rectified so that in 1988 they no longer existed and the Ministry of Public Service was then able to upgrade the post of the plaintiff. There is no explanation of the nature of the anomalies in 1985 and their non-existence in 1988. A civil servant cannot normally force the Government to upgrade his post. However, where there is evidence that failure to upgrade was due to inadvertence, mistake or negligence, it seems to me that the civil servant can ask that the mistake or oversight or negligence be rectified. In the present case the plaintiff has proved on a balance of probabilities that the officers of Government failed to upgrade his post as a result of oversight or inadvertence or mistake or negligence. This allegation has been admitted by the defendant's witnesses. If the mistake or oversight is not rectified the plaintiff will rightly feel that he has been discriminated against because his colleagues holding the equivalent positions in the same department had their posts upgraded. No reason was given why plaintiff's post was left behind. The supervisors of the plaintiff confirm that failure to upgrade his post was due to an oversight, inadvertence, mistake or negligence. When the mistake was rectified in April, 1988 someone in the Ministry of Public Service decided that the plaintiff should not be paid any arrear salary. I am satisfied that the decision was unfair and arbitrary. It was not the plaintiff's fault that his salary was not paid at the time that it should have been paid. The blame must lie at the door of the Ministry of Public Service. They obviously made a mistake and they have now failed to prove that their decision not to upgrade the post of the plaintiff was due to the fact that they wanted to eliminate certain anomalies in the plaintiff's Ministry. I have found that there were no such anomalies. Mr. Putsoane, Counsel for the defendant submitted that the upgrading of the post of the plaintiff falls under the discretionary powers of the Minister of Public Service. I have no quarrel with that submission but even where an authority does have exclusive power to decide, its discretion must be exercised according to certain minimum standards and within certain constraints. Many of these standards and constraints will not be found in the enabling legislation; rather they have been developed by the courts. (See Administrative Law by Lawrence Baxter; second Impression 1994 page 474). Such standards and constraints regard unreasonableness, discrimination, improper motive. In the present case no reasons for the decision were given. What appears in the plea as the reason for the decision for not upgrading the post of the plaintiff is not supported by any evidence. The decision not to upgrade the salary of the plaintiff seems to be unfair, unreasonable, discriminatory and motivated by improper motive. Mr. Putsoane submitted further that there was no duty to upgrade the post. I do not agree with that submission because the Honourable Minister for the Ministry of Public Service cannot be allowed to discriminate the plaintiff by treating him differently from his own colleagues. It is the duty of the Minister to be fair in the exercise of his discretionary powers. In the result judgment is entered in favour of plaintiff as prayed for in the summons with costs. J. L. Kheola CHIEF JUSTICE 19/9/95 For Plaintiff: Mr. L. Pheko For Defendant: Mr. Putsoane