Gilheaney v Revenue Commissioners

• Jurisdiction: Ireland
• Judgment Date: 01 January 1998
• Date: 01 January 1998
• Docket Number: [1994 No. 395 J.R.]
• Court: High Court

High Court

[1994 No. 395 J.R.]

[1994 No. 396 J.R.]

Gilheaney v. Revenue Commissioners

Patrick Gilheaney

Applicant

and

The Revenue Commissioners

Respondents

Gilheaney v. Revenue Commissioners

Richard Meehan

Applicant

and

The Revenue Commissioners

Respondents

Cases mentioned in this report:-

Ayr Harbour Trustees v. Osward (1883) 8 App. Cas. 623.

C.C.S.U. v. Minister for Civil Service [1985] A.C. 374; [1984] 1 W.L.R. 1174; [1984] 3 All E.R. 935.

Cogan and Others v. Minister for Finance [1941] I.R. 389; (1941) 75 I.L.T.R. 126.

Devitt v. Minister for Education [1989] I.L.R.M. 639.

In re Findlay [1985] A.C. 318; [1984] 3 W.L.R. 1159; [1984] 3 All E.R. 801.

McMahon v. Minister for Finance (Unreported, High Court, Kenny J., 13th May, 1963).

R. v. Civil Service Appeal Board [1988] 3 All E.R. 686; [1988] I.C.R. 649 D.C.; [1989] 2 All E.R. 907; [1989] I.C.R. 171 C.A.

Ransom & Luck v. Surbiton Borough Council [1949] Ch. 180.

The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642; [1987] I.L.R.M. 202.

The State (Gleeson) v. Minister for Defence [1976] I.R. 280.

Tara Prospecting Ltd. v. Minister for Energy [1993] I.L.R.M. 771.

Webb v. Ireland [1988] I.R. 353; [1988] I.L.R.M. 565.

William Cory & Son v. London Corporation [1951] 2 K.B. 476; [1951] 2 All E.R. 85; [1951] 2 T.L.R. 174.

Civil service - Employment - Office holder - Contract - Applicant civil servant - Whether contract of employment - Panel of persons eligible for appointment - Whether term of contract that applicant be appointed to fill vacancy - Another appointment to vacancy - Whether breach of terms of applicant's employment - Whether breach of implied terms of applicant's employment - Civil Service Regulations Act, 1956 (No. 46), s. 17 - Constitution of Saorstát Éireann éireann, 1922, article 77.

Legitimate expectation - Applicant at head of panel of persons eligible for promotion - Whether applicant had legitimate expectation he would be appointed to fill vacancy in the civil service - Whether actionable legitimate expectation.

Judicial review.

The facts are summarised in the headnote and are fully set out in the judgment of Costello J.,infra.

Liberty was granted by the High Court (Barr J.) on the 27th October, 1994, to apply by way of judicial review forcertiorari quashing the respondents' decision to appoint a person other than the applicant to the position of press officer. The applicant obtained an interlocutory injunction on the 27th October, 1994, restraining the respondents from filling the vacancy. This was discharged on the 12th December, 1994, by the High Court (O'Hanlon J.) on the basis of certain undertakings given by the respondents.

The application was heard by the High Court (Costello J.) on the 21st and 22nd June, 1994.

Section 17 of the Civil Service Regulation Act, 1956, provides,inter alia:-

"The Minister shall be responsible for the following matters -

. . .

• (c) the fixing of -

  • (i) the terms and conditions of service of civil servants, and

  • (ii) the conditions governing the promotion of civil servants.

    • (2) The Minister may, for the purpose of subsection (1) of this section, make such arrangements as he thinks fit and may cancel or vary those arrangements."

The applicant, a civil servant, appointed under the terms of the Civil Service Regulation Act, 1956, was an executive officer in the Collector General's Office of the respondents. In a circular in October, 1993, the respondents invited applications for the post of press officer, with the grade of higher executive officer. The applicant applied for the post but was not appointed and, in line with common practice and procedure in the civil service, his name was placed on a panel of successful candidates from which future vacancies would be filled.

When a vacancy arose in October, 1994, the applicant was the next candidate for promotion from the panel. A decision was taken not to fill the post from the panel but by way of lateral transfer from Dublin based higher executive officers. The applicant, as an executive officer, was not eligible.

The applicant claimed that the decision of the respondents to fill the post by lateral transfer, rather than from the panel established the previous year, was invalid and sought an order ofcertiorari quashing the decision and a declaration that the respondents were obliged to appoint him to fill the vacancy. The applicant claimed he had a contractual right to the appointment arising from a contract entered into in October, 1993, that he had a right to the appointment arising from his conditions of service, and that the decision to make the appointment otherwise from a panel established in October, 1993, was invalid as it breached his legitimate expectation that appointments would be made from the panel and finally, that the decision wasultra vires as being unreasonable and irrational. The respondents denied that the applicant had a contractual right to the disputed appointment. He was an office holder and did not serve under a contract of employment, secondly, if there were a contract of employment, it was subject to the provisions of s. 17 of the Civil Service Regulation Act, 1956, and thus could be varied by the respondents, exercising the delegated powers of the Minister, without giving rise to any claim by the applicant. The decision to fill the post by lateral transfer rather than by promoting from the panel was neither unreasonable nor irrational because of the need to reduce the number of staff in Dublin under the government's decentralisation programme and the respondents' obligations to make appointments from an inter-departmental panel under the inter-departmental promotion scheme.

Held by Costello J., in refusing the application forcertiorari and the declarations sought, 1, that civil servants were holders of an office to which they were appointed by the Minister (or his delegatee) who fixed the terms and conditions of salary under which their office was held.

Cogan and Others v. Minister for Finance [1941] I.R. 389 followed.

2. That, while the respondents exercising the powers of the Minister for Finance, might enter into contracts of employment with the civil servants, they could not by contract disable themselves from exercising their discretionary statutory power conferred by s. 17 of the Act of 1956 to vary the terms and conditions of the appointment of such civil servants.

McMahon v. Minister for Finance (Unreported, High Court, Kenny J., 13th May, 1963);Ayr Harbour Trustees v. Osward(1883) 8 App. Cas. 623;Ransom & Luck v. Surbiton Borough Council[1949] Ch. 180 andWilliam Cory & Son v. London Corporation[1951] 2 K.B. 476 followed.

3. That in the absence of any evidence that the applicant's appointment to the civil service was made by contract, the applicant was appointed by the respondents under their statutory powers and was an office holder.

• R. v. Civil Service Appeal Board [1988] 3 All E.R. 686 followed.The State (Gleeson) v. Minister for Defence[1976] I.R. 280 distinguished.

4. That there was no evidence to suggest that in issuing the circular of October, 1993, that the respondents intended to enter into a contractual relationship with the applicant and thus the applicant had no contractual rights based on the circular.

5. That, even if the respondents had entered into a contract with the applicant, it would be valid only to the extent that it retained the respondents' unfettered discretionary power to vary the terms and conditions. Thus the failure to appoint the applicant to the vacancy by reason of the subsequent circular of October, 1994, could not amount to an actionable breach of the applicant's terms of employment.

6. That, as there was no contract of employment between the applicant and the respondents, there could be no breach by the respondents of any implied contractual term relating to the promotion of the applicant.

7. That the doctrine of legitimate expectation could not be invoked to limit the exercise of a discretionary statutory power and therefore the applicant did not have an actionable legitimate expectation to the disputed promotion.

Tara Prospecting Ltd. v. Minister for Energy [1993] I.L.R.M. 771;C.C.S.U. v. Minister for Civil Service[1985] A.C. 374;Webb v. Ireland[1988] I.R. 353;Devitt v. Minister for Education[1989] I.L.R.M. 639 andIn re Findlay[1985] A.C. 318 applied.

8. That a decision of the respondents to fill the vacancy by way of lateral transfer from Dublin based executive officers rather than from the panel established in October, 1993, was not unreasonable in view of the respondents' obligations under the government's decentralisation programme and the inter-departmental promotion scheme and thus was notultra vires.

The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642 applied.

Cur. adv. vult.

Costello J. 4th October, 1995

Introduction

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...