Gilheaney v Revenue Commissioners
|Mr. Justice Costello.
|04 October 1995
|1995 WJSC-HC 4552
|04 October 1995
1995 WJSC-HC 4552
THE HIGH COURT
CIVIL SERVICE REGULATION ACT 1956 S17
CIRCULAR NO 12/49
PROVISIONAL GOVT (TRANSFER OF FUNCTIONS) ORDER 1922
IRISH FREE STATE (AGREEMENT) ACT 1922
CONSTITUTION SAORSTAT EIREANN ART 77
CIVIL SERVICE REGULATION ACT 1923
CIVIL SERVICE REGULATION ACT 1924 S9
COGAN V MIN FOR FINANCE
MINISTERS & SECRETARIES ACT 1924 S2(2)
MINISTERS & SECRETARIES ACT 1924 S3(2)
CIVIL SERVICE COMMISSIONERS ACT 1956
CIVIL SERVICE REGULATION ACT 1956 S5
CIVIL SERVICE REGULATION ACT 1956 S17(2)
MCMAHON V MIN FOR FINANCE UNREP KENNY 13.5.63
R V CIVIL SERVICE APPEAL BOARD 1988 3 AER 686
R V CIVIL SERVICE APPEAL BOARD 1989 2 AER 207
AYR HARBOUR TRUSTEES V OSWARD 8 AC 623
CORY (WILLIAMS) & SON LTD V LONDON CORPORATION
GLEESON, STATE V MIN FOR DEFENCE
COUNCIL OF CIVIL SERVICE UNIONS V MIN FOR PUBLIC SERVICE
WEBB V IRELAND
TARA PROPERTIES LTD V MIN FOR ENERGY
DEVITT V MIN FOR EDUCATION
FINDLAY, IN RE
KEEGAN, STATE V STARDUST VICTIMS COMPENSATION FUND
Appointment - Tenure - Terms - Promotion - Opportunity - Applicant not selected - Applicant's name placed on panel of unsuccessful applicants - Panel members suitable for future promotion - Next promotion given to person not on panel - Whether any contract between Minister of State and applicant - Whether any legitimate expectation of promotion - Minister's discretionary powers to make administrative decisions - Delegation by Minister of his statutory powers - Civil Service Regulation Act, 1956, ss. 5, 17 - (1994/395 JR - Costello P. - 4/10/95) -
|Gilheaney v. The Revenue Commissioners|
MINISTER OF STATE
Exercise - Restraint - Prohibition - Statute - Power - Conferment - Alleged contract by Minister - Exercise of statutory power cannot be inhibited by contractual term - (1994/395 JR - Costello P. - 4/10/95) -
|Gilheaney v. The Revenue Commissioners|
Mr. Justice Costello.Delivered the 4 October, 1995.
Mr. Patrick Gilheaney is an Executive Officer in the Collector General's Office of the Revenue Commissioners. In October 1993 he applied for promotion as Press Officer in the Office of the Revenue Commissioners, an office which holds the grade of Higher Executive Officer. He was not immediately successful but was placed on a panel for future promotion. Before that took place a decision was taken to fill a Press Officer vacancy which had arisen by means of a transfer of a Higher Executive Officer and not by means of promotion of an Executive Officer. The applicant claims that this decision was invalid and seeks a declaration that the respondents are obliged to appoint him to the post. In summary he claims:
(a) that he has a contractual right to the appointment arising from a contract entered into in October 1993;
(b) that he has a right to the appointment arising from his conditions of service;
(c) that the decision to make the appointment otherwise than from the panel established by the respondents (on which he had been placed) is invalid in that it breaches the legitimate expectation which the applicant held thatappointments would be made from the panel;
(d) that the decision not to make the appointment from the panel is invalid on the grounds that it is ultra vires as being unreasonable andirrational.
Mr. Richard Meehan is also an Executive Officer serving in the Office of the Revenue Commissioners. He applied for promotion to the position of Training Officer. He suffered an experience similar to that of Mr. Gilheaney. He too has applied for declaratory and other relief in terms similar to that claimed by Mr. Gilheaney. Although the facts in each case are not identical similar legal issues arise and I heard both applications together. I propose firstly to deal with Mr. Gilheaney'sclaim.
The applicant is now employed as an Executive Officer in the Collector General's Office having entered the service of the Revenue Commissioners after his appointment to the civil service under the provisions of the Civil ServiceRegulation Act 1956.
By Circular E 5158 dated the 27th of October, 1993 headed" Vacancy for Press Officer (Higher ExecutiveOfficer)" signed by the respondent's personnel officer, officers in the Office of the Revenue Commissioners were invited to apply for the post of "Press Officer, Higher Executive Officer" in the Revenue Press Office. The circular contained a description of the job and its requirements as well as the requirements which candidates for appointment should possess. It explained that those eligible to apply were Higher Executive Officers or "Executive Officers with not less than five years service in the grade or with not less than seven years experience of which a total of not less than two years service has been given in the Executive Officer grade". The circular went on to direct that applications should be made to the Head of the Branch in which the candidate was serving, that the Head of Branch should not send on the officer's application for consideration unless satisfied that certain specified conditions were complied with, and that applications would be reviewed by a selection board and that candidates might be invited to attend for interview.
Mr. Gilheaney applied for the post and received a letter of the 29th of November, 1993 headed " Competition for Appointment as Press Officer(Higher Executive Officer) - Circular E 5158" which stated that he had been "placed third on the panel of successfulcandidates".
Circular E 5158 had made no mention of the fact that a panel would be created from successful applicants but the evidence established that on previous occasions the post of Press Officer had been filled by competition held by the respondents which had been open to Higher Executive Officers and Executive Officers, that the candidate who obtained the highest result was appointed, and that a panel was formed from the remaining successful candidates in order of merit from which candidates would be chosen in the event of future vacancies arising. The evidence also established that the creation of panels is a method of selection frequently employed in all Departments in the Public Service. There is, however, no uniform practice and sometimes the circular inviting applications will make no reference to the creation of a panel of successful candidates but nonetheless a panel is created, sometimes the circular will state that a panel will be created for a fixed period, and sometimes the circular will state that a panel will be created without specifying the length of time it will remain in existence.
Prior to the 3rd of October, 1994 a vacancy had again arisen in the post of Press Officer. The applicant who had been listed second on the panelcreated in 1993 was not available to fill it as he had obtained a promotion in another position in the service of the Revenue Commissioners. If the post was to be filled from the panel created in 1993 then Mr. Gilheaney was the next candidate for promotion. He was, however, not offered the post. Instead a decision was taken (which is the decision impugned in these proceedings) which is evidenced in a Circular No. E 5242 dated the 4th of October, 1994 and signed by the personnel officer. It is headed " Vacancy for Press Officer (H.E.O.) and Training Officer (H.E.O.)" It is signed by the personnel officer Mr. Gleeson and its first paragraph invites applications from "serving Dublin based Higher Executive Officers for the Press Officer (Higher Executive Officer) post in the Revenue Press Office and for a Training Officer (Higher Executive Officer) post in the Revenue Training Centre". The circular contained information similar to that in Circular E 5158 relating to the job description of the two posts and the abilities required by applicants for appointment. It is to be noted that Mr. Gilheaney was ineligible to apply as only Dublin-based Higher Executive Officers could do so and he had not yet reached that rank. By letter of the 6th of October, 1994 objection was taken by Mr. Gilheaney's union to the contents of the circular and the decision to which it referred. This was replied to by letter of the 10th of October in which it was explained why the post was being filled by "lateral transfer" (that is by the appointment of a serving Higher Executive Officer to the post) rather thanby "promotion" (as envisaged in the previous circular, E 5158). The applicant's claim was taken up on his behalf by his solicitors and subsequently an application was made for leave to institute these judicial review proceedings. By order of the 27th of October, 1994 leave was granted and these proceedings were instituted by motion of the 4th of November, 1994. An interlocutory injunction obtained by the applicant was discharged by order of the 12th of December, 1994 on the basis of certain undertakings given by therespondents.
The reasons, and the evidence relating to the reasons, for the respondents decision can be summarised as follows.
Section 17 of the Civil Service Regulation Act, 1956provides that the Minister for Finance is responsible for the regulation and control of the civil service, including the fixing of terms and conditions of service and the conditions governing promotion of Civil Servants. By Circular No. 12/49 dated the 26th October 1949 the minister delegated certain of his Section 17 functions and powers to Departments including...
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