MAHADEO S.

v THE MAURITIUS STANDARDS BUREAU & ANOR

2022 SCJ 98

Record No. 120878

THE SUPREME COURT OF MAURITIUS

In the matter of:-

Suresh Mahadeo
Applicant
v

1. The Mauritius Standards Bureau

2. The Standards Council

Respondents

In the presence of:-

Mohammad Yusuf Foondun

Co-Respondent
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JUDGMENT

The applicant is seeking leave to apply for judicial review of the respondents’ decision
to appoint the co-respondent to the post of Deputy Director and for an order of certiorari
“directing and ordering the respondents to bring before the Supreme Court all the records
relating to its decision to appoint the co-respondent to the post of Deputy Director in order to
have the said decision quashed, set aside, reversed or otherwise” on the grounds that it is
tainted with procedural unfairness and procedural irregularity, Wednesbury unreasonable,
erroneous, flawed, irrational and is in breach of the applicant’s legitimate expectations.

The respondents have raised the following objections regarding leave:

“a. The exercise conducted by the respondent no. 1 and approved by

respondent no. 2 was the filling of a vacancy by way of internal
advertisement, a purely management exercise, in the day to day running
of the Bureau’s workforce,

b. This purely internal work force management decision within the

framework of an employment relationship, devoid of any Public Law
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issue or element, is a matter of private Contractual Employment Law

Rights and is not amenable or reviewable by Judicial Review, and

c. The remedy of the applicant lies somewhere else.”

The co-respondent is abiding by our decision.

As stated by Sir John Donaldson M.R. in R v East Berkshire Health Authority, Ex

parte Walsh [1984] 3 All ER 425 at page 153, “Employment by a public authority does not per
se inject any element of public law” and this general principle has been consistently followed
by our Court as demonstrated by our body of case laws.

In Augustave v Mauritius Sugar Terminal Corporation and Lysurey [1990 MR

222], the Court held that “… the remedy of judicial review cannot be available to someone who
wishes to exercise rights arising under a contract of employment unless there is what has
been termed a “public element”, which could well be, for example, an alleged violation of the
Constitution. Such a person must seek redress by an action such as one for unjustified
dismissal or in damages. But, applying the principles laid down in the English cases referred
to earlier (i.e. R v East Berkshire Health Authority, Ex parte Walsh [1984] 3 All ER 425,
Vine v National Dock Labour Board [1956] 3 All ER 939, Ridge v Baldwin [1963] 2 All ER
66, Malloch v Aberdeen Corporation [1971] 2 ALL ER 1278, R v Secretary of State for the
Home, Department, ex parte Benwell [1984] 3 ALL ER 854, R v Panel on Take-Overs and
Mergers, ex parte Datafin PLC and anor [1987] 2 WLR 699), it becomes clear that we are
here dealing with a decision taken by the respondent, or rather by its Board, in a purely
managerial capacity on the basis of its own internal self-regulation, and that it was not in any
way confined or circumscribed, in the exercise of its powers of appointment, and still less so in
relation to temporary appointments, by any statutory strictures or parameters.” [Underling is
ours]

In M.R. Achameesing v The Mahatma Gandhi Institute [2014 SCJ 431], the Court
questioned the appropriateness of the remedy of judicial review in a case where the applicant
sought to challenge the decision of her employer to appoint the co-respondent instead of her
to the post of Rector merely in view of the fact that the employer is a public body. The court
referred to J. Maitaram v The Financial Services Commission [2011 MR 123], Augustave
(supra), B. Boodhun v The Private Secondary Schools Authority and Ors [1998 SCJ 484],
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H. Thakooree v Rodrigues Educational Development Co. Ltd [2013 SCJ 2] and held that
there was no sufficient public law element involved, by any statutory underpinning or otherwise
in the decision of the respondent to appoint the co-respondent as Rector. The Court also held
that “It was essentially a decision which fell within the province of the ordinary management
powers of the respondent as a statutory body with regard to employment of its employees
which would not be amenable to judicial review.”

In J. Shirao v Polytechnics Mauritius Ltd & Ors [2020 SCJ 19], in deciding whether
the decisions of Polytechnics Mauritius Ltd (i) not to appoint the applicant to the post of Nurse
Educator following a first advertisement for the said post in October 2017, (ii) to change the
qualifications required for the post and to substitute same by a new set of qualifications when
the post was advertised anew in January 2018, and (iii) to appoint respondents nos. 2 and 3 to
the post of Nurse Educator following a second advertisement in January 2018 involved a
public law element, the Court stated the following-

“… even if it may be argued that respondent No.1 performs duties and functions
of a public nature, the question that needs to be determined is whether there is
a sufficient public law element in the power which has been exercised by
respondent No. 1. The impugned decisions of respondent No. 1 relate to its
power of appointment and its power of determining the qualifications for the
posts which it has advertised. In the exercise of those powers, respondent No.
1 is in no way different, from any commercial or other employer. The exercise
of those powers are not enough in themselves to inject any element of public
law into the matter sufficient to justify the Court’s intervention.”

It is to be noted that leave was accordingly refused.

In H. Seechurn v The Outer Islands Development Corporation & Ors [2020

SCJ 180], leave to challenge the decision-making process and the decision of the
respondents to appoint the co-respondent to the post of Administrative Officer was refused.
The Court’s decision that the appointment of the co-respondent did not have a “public law
element” in it, was reached on the basis that sections 10 and 11 of the Outer Islands
Development Corporation Act which give the respondent the power to appoint employees for
the proper discharge of the functions of the Corporation and to make provisions to govern the
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conditions of service of its employees “…cannot be equated to a special statutory

underpinning or restrictions on dismissal.” The Court also found that “…there is no specific
provision in the Act for the removal or appointment to the post of Administrative Officer”.

Furthermore, as stated at page 13 in Halsbury’s Laws of England, Volume 61A, Fifth

Edition, 2018, “…whether a decision has a sufficient public law element to justify the
intervention of the Administrative Court by judicial review is often as much a matter of feel, as
deciding whether any particular criteria are met.”

A contrario in the following cases, leave was granted based on the finding of the Court
that the exercise of the powers conferred on the statutory body involved a sufficient public law
element or that it had a statutory underpinning such as specific statutory provisions governing
employment/dismissal/termination.

In D.A. Bhagwan v The Private Secondary Schools Authority & Ors

[2014 SCJ 144], the applicants sought an order of mandamus directing the Private Secondary
Schools Authority and the Minister of Education & Human Resources (the respondents) to
adjust their salaries. The Court referred to section 12 of the Private Secondary Schools
Authority Act (“the Act”) and stated that it confers statutory discretion on the Board of the
Private Secondary Schools Authority (the PSSA) to make provision for the conditions of
service of its staff including with regard to their pay. We may reproduce section 12 which is as
follows-

“12. Conditions of service of staff

The Board may, with the approval of the Minister, make provision for the
conditions of service of the staff of the Authority, and, in particular, for-

(a) the appointment, dismissal, discipline, pay and leave of, and
the security to be given by, staff;

[…]” [underlining not ours]

The Court also stated that “…the exercise of its (i.e. the Board of the PSSA) statutory
power...is not absolute. It is qualified by the express legal duty to obtain the approval of the
 5

Minister for a valid exercise of its statutory power to make provision for the conditions of
service of its staff including with regard to the determination of their pay or salaries.”

The Court went on and stated-

“Section 12 of the Act accordingly enjoins the PSSA to exercise its power in a
prescribed manner and to that extent provides a statutory underpinning to the
mode of exercise of its statutory power which is to be exercised subject to a
specified condition.”

The Court further stated –

“Section 12(a) of the Act therefore provides a statutory underpinning in at least

one material respect. The Board in the exercise of its statutory powers under
Section 12(a) may make provision for the conditions of service of the applicants
and in particular with regard to their pay. But it is only empowered to do so
“with the approval of the Minister.

The PSSA would not merely be acting in a pure employment situation in the
course of its normal management powers but would in its determination of the
conditions of service of the applicants, and more particularly the pay or salaries
of the applicants, have to subscribe to the statutory condition imposed by
Section 12. This statutory obligation provides sufficient statutory underpinning
which imparts in that connection an element of public law in the decision-
making process of the PSSA.”

Similarly in the case of S. Beeharry v Sugar Industry Labour Welfare Fund & Ors
[2016 SCJ 513], in deciding whether there was a public law element involved or a statutory
underpinning in the decision and decision-making process of the respondents in appointing the
co-respondent as Deputy Commissioner, Community Development, the Court referred to the
provisions of sections 14 and 16 of the Sugar Industry Labour Welfare Fund Act and held that
they provided sufficient statutory underpinning to permit a review of the decision-making
process of the first two respondents. We may reproduce sections 14 and 16 which are as
follows-

“14. Appointment of other employees

(1) The Committee may appoint or employ, on such terms and

conditions as the Committee may, with the approval of the Minister,
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determine, such officers and other employees as maybe reasonably

necessary for the purposes of or in connection with the discharge of
its functions.

(2) Every officer and employee shall be under the administrative control
of the General Manager. [Emphasis is Ours]

16. Conditions of service of staff

The Committee may make rules, in such form as it may determine, to

govern the conditions of service of its officers and other employees and
in particular, to deal with-

(a) the appointment, dismissal, discipline, pay and leave of, and
the security to be given by, officers and other employees;

(b) appeals by officers and other employees against dismissal

and other disciplinary measures;

(c) the establishment and maintenance of provident and pension

fund schemes, and the contributions payable and the benefits
recoverable.”

In N. Meetarbhan v D. Kowlessur & Ors [2017 SCJ 189], in deciding the point of
public law element, the Court referred to the Competition Act, in particular to section 23, and
found that it provides specific procedures for the removal from office of the Executive Director
of the Competition Commission of Mauritius, which post the applicant held prior to her
appointment being terminated by the President, acting on the advice of the Prime Minister, and
that it also provides specific procedures wherever disciplinary action is contemplated against
the Executive Director. Leave to apply for judicial review of the decision of respondents nos. 1
and/or 2 to suspend the applicant from her post of Deputy Executive Director and Chief Legal
Adviser of the Competition Commission and to prefer charges of alleged misconduct relating
to her tenure as Executive Director of the Competition Commission was accordingly granted.

In L. Jhuboo v The Mauritius Cane Industry Authority & Anor [2021 SCJ 152], the
applicant complained that he was excluded from the selection exercise and sought leave to
apply for judicial review of the respondent’s decision to call only co-respondent for an interview
for the post of Administrative Manager and to subsequently appoint the latter to the post. In
deciding that the appointment of the co-respondent was not a purely private matter with no
 7

public element involved and in deciding to grant leave, the Court referred to sections 12 and
13 of the Mauritius Cane Industry Authority Act and to the applicant’s complaint regarding the
manner in which the respondent, a body entrusted with public functions, purported to exercise
its statutory power of appointment.

It is therefore settled law that for the remedy of judicial review to be available to the
applicant he must show that the decision-making process and decision of the respondents
involve a public law element or there is a statutory underpinning of his appointment. In order
to decide the point raised by the respondents, we shall refer to the factual background to the
present application for leave as disclosed in the applicant’s affidavit which is as follows. The
applicant and the co-respondent were respectively the Head of Business Development Unit
and the Head of Quality Assurance Unit at the Mauritius Standards Bureau (“the MSB”). On
24 August 2020, the then Acting Director and Deputy Director of the MSB went on pre-
retirement leave. In the absence of a director, the MSB appointed one Mrs Sandhya Boygah
as General Manager. Through an internal advertisement dated 24 August 2020, the MSB
invited applications from internal qualified candidates who wished to be considered for
appointment to the post of Deputy Director. The appointment was by selection and the
necessary qualifications which the potential candidates were required to possess were spelt
out in the said advertisement.

The applicant and the co-respondent applied for the post and were called for an
interview on 1 September 2020. According to the applicant his interview lasted for about 30
minutes whereas the co-respondent came out about 9 minutes after he was called in.
Following the interview, the MSB held a special Council meeting on 2 September 2020 and on
the same day appointed the co-respondent to the post of Deputy Director.

After he was informed of the co-respondent’s appointment, the applicant complained to

the General Manager of what he believed were irregularities and unfairness surrounding the
appointment of the co-respondent. During the meeting with the General Manager, discussions
about the creation of two posts of Deputy Director took place and he (the applicant) agreed to
put in writing the subject matter of the discussions for the Council to consider at a meeting
which was to be held on 25 September 2020. On 24 September 2020 the applicant submitted
his written requests to the General Manager and the Chairman of the Council but was not
made aware of the outcome of the meeting, hence the present application.
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The applicant then made a comparison between his academic qualifications and
experience and those of the co-respondent and averred that he is more qualified and has
more experience than the co-respondent who is his junior and therefore he ought to have been
appointed Deputy Director. The applicant also referred to the advertisement and for reasons
he has spelt out in his affidavit averred that it was a sham and that the interview was an
eyewash.

The question therefore is whether the applicant’s complaints, in respect of which leave
is being sought, although arising out of his employment with a body whose decision may be
amenable to judicial review, involve an element of public law sufficient to attract public law
remedies or is there a statutory underpinning of the appointment of the co-respondent to the
post of Deputy Director which will inject the element of public law in the decision-making
process and decision of the respondents.

In deciding this question the nature of the complaint and whether the decision was
made under a statutory power are relevant factors to be taken into consideration.

The decision complained of is that the co-respondent has been appointed to the post of
Deputy Director to the prejudice of the applicant. We agree with learned Senior Counsel for
the respondents that having regard to the nature of the applicant’s complaints there is no
public law element involved in the respondents’ decision to appoint the co-respondent instead
of the applicant to the post of Deputy Director.

The relevant provisions of the Mauritius Standards Bureau Act (“the MSB Act”) are
sections 9 and 10 which read-

“9. Appointment of employees

(1) Subject to subsection (3), the Council may employ, on such

terms and conditions as it thinks fit, such employees as may be
necessary for the proper discharge of the functions of the
Bureau.

(2) Every employee shall be under the administrative control of the

Director.
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(3) No employee shall take an active part in politics or seek election

as a member of the Assembly or a local authority.

10. Conditions of service of employees

The Council may make provision, in such form as it may determine, to

govern the conditions of service of employees and, in particular, to deal
with-
(a) the appointment, dismissal, discipline, pay and leave of, and the
security to be given by, employees;

(b) appeals by employees against dismissal or other disciplinary

measures; and

(c) the establishment and maintenance of provident and pension

fund schemes, and the contributions payable to, and benefits
recoverable from, those schemes.”

Sections 9 and 10 of the MSB Act do not contain any express provisions regarding the
manner in which the appointment of the employees of the MSB is to be made. In addition,
section 10 does not enjoin the Council to exercise its power in a prescribed manner. Whilst
the power of the respondents to appoint the co-respondent to the post of Deputy Director was
exercised under the above sections, it, however, lacks any statutory underpinning which would
have injected the element of public law to the decision-making process and decision of the
respondents. As we have already pointed out, sections 9 and 10 do not prescribe any specific
procedures which the respondents were bound to follow in the exercise of their freedom and
right to appoint an employee to the post of Deputy Director and which they have failed to
comply with. There are no prescribed procedures laid down either in the MSB Act or any
Regulations made thereunder for appointment to the post of Deputy Director. Thus, the
exercise of the power to appoint the co-respondent to the post of Deputy Director is not
underpinned by any specific statutory provisions the infringement of which would open the
door to the remedy of judicial review to the applicant. As stated in Augustave (supra), “…we
are here dealing with a decision taken by the respondent (s), or rather by its Board, in a purely
managerial capacity on the basis of its own internal self-regulation, and that it was not in any
way confined or circumscribed, in the exercise of its powers of appointment, …by any statutory
strictures or parameters.”
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Leave to apply for judicial review of the respondents’ decision and decision-making
process not to appoint the applicant to the post of Deputy Director is accordingly refused. The
application is set aside. With costs.

N. Devat
Senior Puisne Judge

M. J. Lau Yuk Poon

Judge

16 March 2022

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Judgment delivered by Hon. N. Devat, Senior Puisne Judge

For Applicant : Mrs D. Ghose-Radhakeessoon, Attorney at Law

Mr D. Pursem, Senior Counsel
Ms M.D. Maunick, of Counsel

For Respondents : Mr R. Bucktowonsing, Senior Attorney

Mr Y.H. Aboobaker, Senior Counsel
Mr R. Currimjee, of Counsel

For Co-Respondent: In person (will abide)