Supreme Court
Action No. 389 of 1982
7th April, 1983
Moe, CJ.

Mr. Michael Young for the Plaintiffs.
Mr. George Brown, Solicitor General, for the Defendant.

Public Officer - Constitution - Whether posting is transfer - Whether transfer properly effected by Chief Education Officer - Jurisdiction of Public Service Commission - Transfer held to be unconstitutional.

J U D G M E N T

The four Plaintiffs are public officers. They were appointed as follows: the first to the post of Assistant Lecturer (Psychology or General Science) at the Belize Teachers' College; the second to the post of Assistant Lecturer (Home Economics and Educational Psychology) at the Belize Teachers' College; the third to the post of Temporary Lecturer (Educational Psychology) at the Belize Teachers' College, and the fourth to the post of Lecturer (English) at the Belize Teachers' College. Each of them received a letter dated the 24th August, 1982 under the hand of the Acting Chief Education Officer.

The important portions of the relevant letters sufficient to be set out for this purpose are as follows:- That to the first Plaintiff stated, inter alia, "This is to inform you that with the re-structuring of the Belize Teachers' College and the re-organisation of the courses there it has not been found possible to assign you subjects other than science and provisions have already been made for the teaching of that subject. You will therefore be posted at the Belize Junior Secondary School No. 2 where I am sure your teaching competence will be much better utilised. The effective date of your posting is 30th August, 1982. That to the second stated, inter alia, "I am to inform you that effective from the 30th August, 1982 you will be posted at the Belize Junior Secondary School No. 2. This posting is a consequence of the re-structuring of the Belize Teachers' College and the re-organisation of its courses." To the third, "I am to inform you that effective from 30th August, 1982 you will be posted to teach at the Belize Junior Secondary School No. 1. This posting is a consequence of the re-structuring of the Belize Teacher's College and the re-organisation of the courses at that institution." To the fourth, "As you are aware, the Belize Teachers' College is being re-structured and its courses are being re-organised. Consequently it has been found necessary to second you to the Belmopan Comprehensive School." The fourth received a further letter dated 13th September, 1982 asking that the word "post" be read in place of the word "second".

Each Plaintiff now claims that he or she was transferred from one post by virtue of the letter dated the 24th August, 1982 without his or her consent and seeks a declaration that such a transfer is unconstitutional and void. The Defendant says that there was no transfer from the respective posts as claimed, but that each Plaintiff was posted to an institution under the direction and control of the Ministry of Education. He seeks a declaration that the posting was constitutional and valid.

The issues raised in this Action are of great public importance. They highlight a matter to which I adverted in an address to the Court on 19th January, 1982; namely, the need for a clear understanding of the new constitutional status and faithful counselling in the situation. The first issue for determination is whether there was a transfer. The Solicitor General in support of the contention that there was "posting" relied on the following: - (a) the use of the word "posted" in the letters concerned. Such use he argues is deliberate and intended to mean that it is a situation which is not permanent; (b) the institutions involved are all sections within one department, the Department of Education. In such a situation the head of department can assign officers to perform suitable duties; and (c) there was an assignment of suitable duties as provided for by the General Orders for the Public Service Regulations in Chapter 10 paragraph 3 thereof which reads as follows:-

"Officers are required to discharge the usual duties of the office to which they are appointed and any other suitable duties which the Permanent Secretary or Head of Department may call upon them to perform."

Mr. Young for the Plaintiffs contended that it is an exercise in semantics to draw a difference between the words "post" and "transfer". That there is no special magic in either word. The Court has to look at the facts and situation before it.

It is clearly the duty of the Court to determine what in fact transpired irrespective of the name given to or the term used to describe the matter under consideration. I must, therefore, determine the true nature of the event or transaction. What then is the substance of the transaction? The letters concerned told the Plaintiffs "you will be "posted" at or to the relevant school. According to the Solicitor General that is intended to mean that the Plaintiffs are in a situation which is not permanent. But the question is what has happened or is happening that is not permanent? The clear inference is that the Plaintiffs are to assume duties in some post at the respective schools. There is nothing before me to show that the word "posted" is to be given any particular meaning or defined in any particular way. Giving it its ordinary meaning, the one relevant to the context of this matter which I find in Websters New Twentieth Century Dictionary is "stationed at or assigned to a post". In the Shorter Oxford English Dictionary "post" is defined as "to place, to station". By this approach alone the letters have said you will be "stationed at" or "assigned to a post" at the relevant school.

The evidence shows that Assistant Lecturer (Psychology or General Science) Belize Teachers' College and Teacher, Belize Junior Secondary School No. 2 are separate posts; Assistant Lecturer (Home Economics and Educational Psychology) Belize Teachers' College and Teacher, Belize Junior Secondary School No.2 are separate posts; Lecturer (Educational Sociology) Belize Teachers' College and Teacher Belize Junior Secondary School No.1 are separate posts; and Lecturer (English) Belize Teachers' College and Teacher, Belmopan Comprehensive School are separate posts. The effect of the respective letters was to require the person concerned to "shift", "move" or "go" from duties in one post to duties in another post. To move from one place to another place is to transfer and it is a transfer by whatever term the move is described, whether it be shift, move, post or transfer. Further, it is a transfer notwithstanding that the "shift" or "move" or "posting" is not permanent. Again the fact that the posts are at institutions within one department does not alter the fact that there is a transfer from one post to another albeit within the same department. Consequently I hold that in this case there was a transfer of the Plaintiffs on the occasion concerned.

The next issue is whether the transfer was properly effected. Who has jurisdiction to transfer such public officers? Section 106 of the Constitution provides "(1) The power to appoint persons to hold or act in offices in the public service (including the power to confirm appointments) and subject to the provisions of section 111 of this Constitution, the power to exercise disciplinary control over persons holding or acting in such offices and the power to remove such persons from office shall vest in the Public Services Commission constituted for each case as prescribed in section 105(11) of this Constitution". It is further provided in section 123 (ibid) "(1) Any reference in this Constitution to power to make appointments to any public office shall be construed as including a reference to power to make appointments on promotion and transfer to that office ---." The Constitution has thus vested in the Public Service Commission two classes of power: (I) the power to make appointments to the service, promotions and transfers within the service, and (II) the power to remove and exercise disciplinary control over members of the service. There are certain exceptions provided for in the said section which are not of concern to us here. It would be seen from a careful study of the Constitution that the powers thus vested in the Public Service Commission is to the exclusion of any other person or authority.

I observe, firstly, that the provision contained in section 106(1) is part of a chapter similar to chapters contained in many Constitutions of the New Commonwealth. In the Caribbean, see Chapter VIII Bahamas Constitution; Chapter VIII Barbados Constitution; Chapter IX Jamaica Constitution; Chapter VIII Constitution of Trinidad and Tobago. The purpose of these provisions such as are set out in Chapter VIII of the Constitution placed under that head "The Public Service" is to isolate members of the public service from undue influence and unwarranted interference. Having vested the Commission with the powers just adumbrated above, the Constitution also excludes it from being itself a part of the public service; secures its independence of the executive and legislature; and provides security of tenure.

Secondly, there cannot be two authorities with concurrent power or jurisdiction to make appointments, or promotions or transfers. The Constitution is the supreme law of the land. It has vested the powers under consideration in the Public Service Commission. Any other law which provides for the contrary is void in that respect and the Constitution must prevail. That this must be the position is inherit in a judgment of Lord Denning delivered as far back as 1962 in the Privy Council in Kanda v. Government of the Federation of Malaya [1962] A.C. 322. If it were otherwise a person or authority with concurrent power could thwart the exercise by the Commission of its functions. You therefore cannot have persons taking actions which in effect amount to doing what the Constitution says the Public Services Commission is to do. Thus, even if Chapter 10 paragraph 3 of the General Orders for the Public Service properly interpreted means a head of department can assign officers to perform suitable duties, the extent of such power must be construed in conformity with the provisions of the Constitution.

The Public Service Commission then is the authority with the power to transfer the persons concerned. It is to be noted also that by virtue of section 106(5) the Commission may delegate any one of its powers. It is accepted by all that it was the Acting Chief Education Officer who performed the act under consideration. There is no evidence that he was simply communicating a decision of the Public Service Commission to transfer the persons concerned or that the power of the Commission to transfer was delegated to him. In the result, I must hold that the transfer of the Plaintiffs was not in keeping with the Constitution and thus invalid.

The Plaintiffs will have their declarations accordingly. They are to have their costs.

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