Devitt v Minister for Education

• Jurisdiction: Ireland
• Judge: Mr. Justice Lardner
• Judgment Date: 01 January 1989
• Neutral Citation: 1989 WJSC-HC 67
• Docket Number: No. 7 J.R./1988
• Court: High Court
• Date: 01 January 1989

DEVITT v. MIN EDUCATION

JUDICIAL REVIEW

BETWEEN/

IRENE DEVITT

APPLICANT

AND

THE MINISTER FOR EDUCATION

RESPONDENT

1989 WJSC-HC 67

No. 7 J.R./1988

THE HIGH COURT

Synopsis:

EDUCATION

Teacher

Appointment - Validity - Vocational education committee - Powers - Approval of Minister of State required - Whether Minister's powers waived or abandoned - Doctrine of estoppel ineffective to prevent exercise of statutory power by Minister of State - Minister's approval of appointment which had not been offered or sought - Section 23, sub-s. 1, of the Act of 1930 states that, subject to the provisions of the section, every vocational education committee shall appoint a chief executive officer and such other officers and servants as it from time to time thinks necessary for the due performance of its powers and duties under that Act - Sub-section 2 of that section states that the numbers, qualifications, salaries or remuneration and appointment of all officers shall be subject to the approval of the Minister for Education - In March, 1987, the County Dublin Vocational Education Committee advertised for applicants for whole-time teaching posts in the Committee's schools; the advertisements stated that appointments were subject to the sanction of the respondent Minister - On 12/6/87 the said Committee appointed the applicant to the permanent whole-time post of teacher of Commerce and French, and the applicant started work as such teacher at Fingal Community College on 1/9/87 at a salary commensurate with that post - On 17/12/87 the respondent Minister approved of the appointment of the applicant as a teacher of Commerce and French on a temporary whole-time basis, which post carried a smaller salary - Having obtained leave on 18/1/88 the applicant applied for an order of certiorari quashing the said decision of the respondent - At the hearing of her application, the applicant contended that the respondent had ceased, after the year 1972, to insist upon compliance with a directive, issued in 1967, which required a V.E.C. to submit to the Minister for Education for his sanction every proposal by the V.E.C. to make an appointment of a permanent whole-time teacher - Held that s. 23 of the Act gave the respondent Minister power to approve an appointment made by a V.E.C. and power to withold approval from such appointment and, in considering the exercise of that power, to take into consideration the funds available to the relevant V.E.C. - Held that since 1972 the County Dublin V.E.C. had advertised for teachers and had interviewed applicants without obtaining, in the first place, the sanction of the Minister for Education for doing so; and that for that period the Minister for Education had not insisted upon compliance with the directive issued in 1967 - Held, however, that there had been no abandonment of the requirements of the said directive and no curtailment of the statutory power of the respondent - Held that the doctrine of estoppel could not be invoked by the applicant to frustrate the exercise of a statutory power conferred on the respondent: ~In re Green Dale Building Co.~ [1977] I.R. 256 considered - Held that the circumstances were such that the applicant did not have a legitimate expectation of being appointed to a permanent whole-time post: ~Webb v. Ireland~ (Supreme Court - 16/12/87) distinguished - Held that the respondent's approval dated 17/12/87 must be quashed as it had been made ~ultra vires~ since the respondent had purported to approve an appointment which had been neither sought nor offered - Vocational Education Act, 1930. s. 23 - (1988/7 JR - Lardner J. - 13/5/88) 1989 ILRM 639

|Devitt v. Minister for Education|

EVIDENCE

Estoppel

Statute - Conflict - Minister of State - Statutory powers - Exercise - Doctrine of estoppel ineffective to prevent exercise of statutory power by Minister - ~See~ Education, teacher - (1988/7 JR - Lardner J. - 13/5/88) 1989 ILRM 639

|Devitt v. Minister of Education|

MINISTER OF STATE

Powers

Exercise - Statute - Teacher - Appointment - Approval - Doctrine of estoppel ineffective to prevent exercise of statutory powers by Minister - ~See~ Education, teacher - (1988/7 JR - Lardner J. - 13/5/88) 1989 ILRM 639

|Devitt v. Minister for Education|

Citations:

VOCATIONAL EDUCATION ACT 1930 S30

LATCHFORD V MIN INDUSTRY & COMMERCE 1950 IR 33

KHAN, R V HOME SECRETARY 1985 1 AER 40

RUDDOCK, R V HOME SECRETARY 1987 2 AER 518

WEBB V IRELAND 1988 ILRM 565, 1988 IR 353

VOCATIONAL EDUCATION ACT 1930 S23(1)

VOCATIONAL EDUCATION ACT 1930 S23(2)

VOCATIONAL EDUCATION ACT 1930 S44(2)

VOCATIONAL EDUCATION ACT 1930 S44(3)

VOCATIONAL EDUCATION ACT 1930 S44(4)

VOCATIONAL EDUCATION ACT 1930 S41

VOCATIONAL EDUCATION ACT 1930 S23

CIVIL LIABILITY ACT S60(7)

SHEEHAN, STATE V IRELAND 1988 ILRM 437

AMALGAMATED INVESTMENT V TEXAS COMMERCE INVESTMENT BANK LTD 1982 QB 84, 1981 3 WLR, 1981 3 AER 577

GREENDALE BUILDING CO, IN RE 1977 IR 256

PHELAN V LAOIS VEC UNREP MCWILLIAM 28.2.77 1977/7/1286

1 Judgment of Mr. Justice Lardner delivered the 13th day of May, 1988.

2 The Applicant's claim in these proceedings is for a Judicial Review of the decision of the Respondent made on or about the 17th of December 1987 to issue approval of the appointment of the Applicant by the County Dublin Vocational Education Committee as a temporary whole-time teacher rather than as a permanent a whole-time teacher. The circumstances in which she brings this application are as follows. About the 1st of March 1987 advertisements by County Dublin Vocational Education Committee appeared in Sunday newspapers inviting applications for teaching posts in their Schools and Colleges. These advertisements stated inter alia that all the posts which were advertised were permanent whole-time appointments except where otherwise indicated and that each appointment was subject to the sanction of the Department of Education. Having seen the advertisement the Applicant applied to the County Dublin Vocational Education Committee for a post as teacher of Commerce and French which had been advertised as a whole-time position. On or about the 26th of March 1987 she was interviewed by a board consisting of three members of the Vocational Education Committee and an Inspector from the Department of Education. About the 13th of June 1987 she received a letter from the County Dublin Vocational Education Committee dated the 12th of June 1987 informing her that she had been appointed to the permanent whole-time post of teacher of Commerce with French. This letter then went on to state that the appointment was subject to the approval of the Department of Education and that the centre at which she would be working for the session of 1987/88 was the Final Community College, Seatown Road, Swords, County Dublin. The Applicant replied to this letter confirming her acceptance of the position which she had been offered. During the month of July 1987 she received a document giving details of her conditions of service from the County Dublin Vocational Education Committee and she signed this document on the 27th of July and returned it to the County Dublin Vocational Education Committee. In her Affidavit she says she was aware that this document was subsequently signed as accepted on behalf of the County Dublin Vocational Education Committee by the Chief Executive Officer on the 23rd of September 1987. The Applicant had previously been employed by the Department of Education and as a result would have been entitled to a certain seniority and with a view to ascertaining the position regarding this she wrote on the 30th of July 1987 to the Department of Education asking for details of the point on the salary scale on which she would be placed in her new appointment and by a letter dated the 30th of July from the Department of Education she was informed that she had left her previous employment on the seventh point of the salary scale and on re-employment would be due to go on to the eight point of the salary scale.

3 The Applicant subsequently commenced work as a Commerce and French teacher in Fingal Community College on the 1st of September 1987. Salary was paid to her on the basis of her previous experience at the eighth point of the increment scale. Superannuation contributions were deducted from her monthly salary and both the payment of increments and the deduction of superannuation payments it is accepted would not have been appropriate in respect of a temporary whole-time teacher appointment. Subsequently in October an "A" post of responsibility became available in the school and the Applicant applied for this post which was determined by a selection board including an official from the Department of Education and about the 19th of December she received a letter dated the 18th of December from the County Dublin Vocational Education Committee informing her that she had been appointed to the "A" post of responsibility at Fingal Community College. This letter went on to state that the appointment was subject to the approval of the Department of Education. About the 20th of December 1987 the Applicant learned that the Respondent. The Minister for Education, had approved of her appointment as a Commerce teacher with French on a temporary whole-time basis only rather than granting approval of her appointment as a permanent whole-time teacher. It is not disputed that a temporary whole-time teacher receives a lesser renumeration and is not eligible to hold an "A" post of responsibility in the college. The loss of increments and loss of extra payment for the "A" post of responsibility amount the Applicant alleges to a continuing loss of approximately £379 per month while in addition a temporary whole-time appointment lasts for one year only and will necessitate her re-applying for the post for the following academic year.

4 Shortly afterwards, in January of 1988, the Applicant sought...