SOBORUN S. v THE PUBLIC BODIES APPEAL TRIBUNAL & ORS
2025 SCJ 135
Record No. 124403 (5A/94/23)
THE SUPREME COURT OF MAURITIUS
In the matter of:
SOBORUN Sobodhsing
Applicant
v.
The Public Bodies Appeal Tribunal
Respondent
In the presence of:
1. The Public Service Commission
2. BUMMA Venkata Ratnam
3. SAHYE Lila Davee
Co-Respondents
——————–
JUDGMENT
The applicant was appointed on 30 December 2021 as Deputy Chief Town and Country Planning Officer by co-respondent No. 1, the Public Service Commission (“PSC”).
The Public Bodies Appeal Tribunal (the “PBAT”) on 28 March 2023 quashed his appointment as Deputy Chief Town and Country Planning Officer following an appeal made by co-respondent No. 2 (“Mrs Bumma”). The applicant is now seeking a judicial review of the decision of the PBAT taken on 28 March 2023, after leave was granted, on the basis that the 2
decision is (i) illegal and/or ultra vires and (ii) irrational and/or unreasonable under the Wednesbury principles.
Co-respondent No. 3, Mrs Lila Davee Sahye was appointed on 30 December 2021 together with the applicant by the PSC and although she is a party to the present proceedings as well as before the PBAT, her appointment is not challenged and is therefore valid. This has been agreed by all counsel at the hearing. For clarity, her appointment to the post of Deputy Chief Town and Country Planning Officer as from 30 December 2021 remains and is not affected in any manner whatsoever.
The contention in the appeal before the PBAT, by way of grounds of appeal, and before the present court, is the manner in which the former dealt with the issue of experience of the applicant and that of Mrs Bumma.
It is necessary to set out the grounds of appeal before the PBAT.
1. The decision of the Public Service Commission (PSC) to appoint Mr Soobodhsing Soborun and Mrs Lila Davee Sahye as Deputy Chief Town and Country Planning Officers must be quashed, set aside, reversed or otherwise dealt with because the PSC failed to properly assess the experience of the Appellant and of Mr Soobodhsing Soborun and Mrs Lila Davee Sahye who applied for the post. Had the PSC made a proper assessment of experience, it would have appointed Appellant.
2. The decision of the PSC to appoint Mr Soobodhsing Soborun and Mrs Lila Davee Sahye as Deputy Chief Town and Country Planning Officers must be quashed, set aside, reversed or otherwise dealt with in as much as it failed to properly assess the experience of the Appellant for the post. Had the PSC properly assessed Appellant’s experience, it ought to have considered that the Appellant:
(i) Had 22 years of experience in the service and eight and a half years of experience as Principal Town and Country Planning Officer;
(ii) Had been granted actingship as Deputy Chief Town and Country Planning Officer from 10th June 2021 to 30th December 2021;
(iii) Was involved in strategic and statutory planning and development control;
(iv) Assisted in formulation of planning policies;
(v) Prepared Master plans;
(vi) Assisted the Chief Town and Country Planning Officer in the review of the Planning Policy Guidance (PPG); and
(vii) Was a committee member of the National RAMSAR Committee at the Ministry of Agro-Industry and Food Security, Traffic Impact Committee at the Ministry of Public Infrastructure, Morcellement Board at the Ministry of Housing and Lands among others.
3. The decision of the PSC to appoint the Mr Soobodhsing Soborun to the post of Deputy Chief Town and Country Planning Officer must be quashed, set aside, reversed or otherwise dealt with because the Respondent failed to assess that Mr Soobodhsing Soborun had no experience for any of the duties specified on part IV of the Duties for the post of Deputy Chief and Country Planning Officer, whilst had the PSC made a proper assessment of the experience of the Applicants for the post, it ought to have considered that:
(i) At the time of selection and interview, the Appellant had already performed all duties specified in part IV 1, 2, 3, 4 and 5 of the scheme of duties;
(ii) Mr Soobodhsing Soborun had not performed none of the duties specified in part IV 1, 2, 3, 4, 5 6, 7 and 9.
4. The decision of the PSC to appoint Mr Soobodhsing Soborun and Mrs Lila Davee Sahye should be quashed, set aside, reversed or otherwise dealt with in as much as PSC failed to properly assess the ability of the Applicants for the post as required for the post of Deputy Chief Town and Country Planning Officer because:
(a) Monitored and coordinated the work of subordinate staff;
(b) Ensured proper staffing and distribution of work;
(c) Had experience at managerial level, which was also a criterion for the post, as compared to Mr Soobodhsing Soborun;
(d) Had the necessary interaction skills for the post for having liaised with several ministries on Town and Country Planning issues.
It is the contention of the applicant that the PBAT, while considering grounds 1 to 3, was wrong to limit its consideration on the issue of experience to the markings given to each of the three candidates. The applicant identifies 3 errors, firstly that the PBAT usurped the functions of the PSC in assessing the marks allocated under the set criterion of selection. Secondly, it made an error as to the relevant time Mrs Bumma had acted as Deputy Chief. Thirdly, there was no consensus between the parties that the “markings under the criterion “Experience” will determine the case.” 4
The relevant extract of the PBAT’s Determination is as follows:
“Since Grounds 1, 2 and 3 are interlinked with the issue of experience, it was the view of all parties that being given the proceeding of the case concentrated mainly on this subject matter, the markings under the criterion “Experience” will determine the case”
We propose to deal first with what has been characterised as the second ‘flaw’ by the applicant. The appointment was by selection and the closing date for the submission of the application forms was 7 October 20211. Note 5 of the “Notes and Instructions for online applications”2 states that qualifications obtained after the closing date for the submission of applications will not be accepted. Note 7 of the same document states that the filled in form should contain full details regarding qualifications, previous experience and any factors which would qualify candidate for consideration relating to the post applied for. We are of the view that in the present case, this would therefore exclude any experience obtained after the closing date.
1 Annex A, page 137 of the brief.
2 Annex A1, Page 138 of the brief.
Annex A sets out the criteria for selection in the following manner:
By selection from among officers, in the grade of Principal Town and Country Planning Officer who reckon at least three years’ service in a substantive capacity in the grade and who:
a) possess a postgraduate degree in the field of Town and Country Planning from a recognised institution or an equivalent qualification, acceptable to the Public Service Commission;
b) possess managerial skills and are able to interact effectively at all levels;
c) possess good communication and interpersonal skills; and
d) are able to contribute to sound decision-making.
Experience at managerial level is desirable.
NOTE
1. Candidates should produce written evidence of experience claimed.
2. The onus for the submission of written evidence of experience claimed and equivalent of qualification (if applicable) from the relevant authorities [ ] rests on the candidates. Applications will not be considered in case of non-submission of
written evidence of experience claimed and equivalence certificate, as appropriate, by the closing date.
[our underlining]
The above reproduction illustrates the importance and emphasis given to the production of written evidence with respect to experience “by the closing date”. The interview panel of the PSC and the PBAT (when relevant) should therefore be very careful when considering experience post the closing date.
In the case at hand, we find that the PBAT did consider assignment of duties and equated it to experience at pages 6 to 8 of its Determination and set out the duties assigned to each of the three candidates. The PBAT also set out the periods of said assignments for each candidate and with respect to Mrs Bumma states the following:
“Appellant [Mrs Bumma] was also assigned duties for a short period of about three weeks in January/February 2021 as well as a continuous period of more than six months from 10 June 2021 to 29th of December 2021. Whereas co-respondent no. 1 [Mr Soborun] did perform the duties of the post for only one short period of 9 December 2021 to 27 December 2021.”
We find that there is a wrong consideration by the PBAT of the period of assignment of Mrs Bumma and Mr Soborun after the closing date of the application, that is, 7 October 2021. The period of assignment of duties clearly influenced the decision of the PBAT as can be seen from the wording of the Determination and the following is an illustration of how it influenced their decision in the following extract3:
3 Page 7 and 8 of the Determination.
Appellant [Mrs Bumma] was also appointed as Principal Town and Country Planning Officer before Co-Respondent no. 1 [Mr Soborun] and had been assigned duties to the post for a short period and a further continuous period of more than six months whereas Co-Respondent no. 1 was assigned duties to the post for only a short period of three weeks. Therefore, it is clear that appellant had gained more experience in the post than Co-Respondent no. 1.
…
However, the difference in the experience of Appellant and Co-Respondent no. 1 should have been reflected in allocation of marks under this criterion and they should not have been treated at par. 6
This is an error of fact which has been heavily relied upon by the PBAT to reach their decision. As to the effect of this error of fact, we agree with the submissions of learned Counsel for the applicant on this score and reproduce the extract from Judicial Review Handbook (6th Edition) by Fordham which he provided:
“49.2 Fundamental/material error of fact.
Judicial review judges have traditionally been cautious about fact-based judicial review challenges. Factual questions are primarily entrusted to the public body. Their reinvestigating would expand the Court’s case-load and function. But, as everywhere in judicial review, there is a principled balance to be struck. The Courts are incrementally developing a reserve-power to exercise their supervisory jurisdiction where a factual error is of a nature and significance to warrant judicial intervention. Alongside precedent fact and objective fact, appropriate cases will include (a) an unsupported or unsustainable factual conclusion, (b) the disregard of an established and material fact, and even (c) a material error of fact. These categories of case are not sensibly be regarded as closed.
…
49.2.7 Unsustainable conclusion of fact as unreasonableness.
Council of Civil Service Unions v Minister of the Civil Service [1985] AC 374, 410G-411A (no need for “ingenious” Edwards v Baristow solution of inferred mistakes of law: “Irrationally” by now can stand upon its own feet”); R v Housing Benefit Review Board of the London Borough of Sutton ex p Keegan (1995) 27 HLR 92, 100 (Conclusion “was arrived at in the end of the teeth of the evidence and was accordingly Wednesbury unreasonable”); … ‘ [underlining added]”
We also find it useful to cite the following extract from Forsyth et al (eds), (Effective Judicial Review: A Cornerstone of Good Governance) (Oxford 2010) at 259-60 which is referred in Administrative Law , Text and Materials, Fifth Edition, Elliot & Varuhas at Page 72, 2.4: 7
Material mistakes of fact may be viewed as intrinsically unfair. In the absence of bad faith, it is reasonable and rational to assume that where there is a dispute between the decision-maker and the person affected, the individual tasked with resolving the dispute acts on the basis that he has understood the facts upon which the decision is based. Clearly there may be disagreements as to whose version of the facts is true, and this will be for the person hearing the dispute to decide. But where a factual finding which has an impact on the outcome is objectively shown to be mistaken, the process of fair dispute resolution can be seen to have failed. The outcome is no longer rooted in factual reality, putting the decision in the same category as one which is irrational, or is based on an irrelevant consideration, or is infected by bias. A material error of fact has the same effect on a decision as a mistake about the applicable law: the decision is rendered incorrect and unfairness results to one or both parties, or to the public interest generally. This analysis provides a compelling basis for concluding that material error of fact which causes unfairness should be viewed as an error of law in the same way that irrationality, bias, or a literal misdirection on the law, are.
Since we have found that the PBAT made a material mistake of fact, we find its decision is unreasonable and must be quashed. We order accordingly.
In the circumstances, we find it unnecessary to consider the two other grounds raised by the applicant.
R. Teelock
Judge
V. Kwok Yin Siong Yen
Judge
31 March 2025
Judgment delivered by Hon. R. Teelock, Judge
| For Applicant | Mr. R. Bucktowonsingh, State Attorney Mr. A. Sunassee, together with Mr. V. Reddi, both of Counsel |
| For Respondent | Mr. R. Rajroop, Attorney at Law Mr. N. Patten, of Counsel |
| For Co-Respondent No.1 | Ms. A. Mohun, Senior State Attorney |
| Mr. S. Bhoyroo, Principal State Counsel together with Ms. A. Aubeeluck, of State Counsel | |
| For Co-Respondent No.2 | Mrs. B. R. Venkatasamy, Attorney at Law |
| Ms. M. Luchman, of Counsel | |
| For Co-Respondent No.3 | Mrs. A. K. Ghose, Attorney at Law |
| Mr. R. Appaya, of Counsel |