Min Education v Rtc (Letterkenny)
| Jurisdiction | Ireland |
| Judge | Mr. Justice Costello, |
| Judgment Date | 13 May 1994 |
| Neutral Citation | 1994 WJSC-HC 3647 |
| Docket Number | 346 JR/1993 |
| Court | High Court |
| Date | 13 May 1994 |
1994 WJSC-HC 3647
THE HIGH COURT
BETWEEN
AND
AND
Citations:
REGIONAL COLLEGES TECHNICAL ACT 1992 S11(1)(a)
REGIONAL COLLEGES TECHNICAL ACT 1992 S11(1)(b)
VOCATIONAL EDUCATION ACT 1930 S23(2)
RSC O.34 r21(1)
RSC O.84 r22(4)
REGIONAL COLLEGES TECHNICAL ACT 1992 S3(5)
REGIONAL COLLEGES TECHNICAL ACT 1992
REGIONAL COLLEGES TECHNICAL ACT 1992 S12
Synopsis:
DELAY
Judicial review
Application - Promptness - Requirement - Employee - Appointment made ~ultra vires~ appointing corporation - (1993/346 JR - Costello J. - 13/5/94) [1997] 1 IR 433
|Minister for Education v. Regional Technical College,
Letterkenny|
EMPLOYMENT
Terms
Statute - Requirements - Appointee - Qualifications - Minister - Approval - Regional Technical College - Secretary - Appointment made contrary to procedures determined by Minister - Judicial review - Application - Promptness - Rules of the Superior Courts, 1986, order 84, rr. 21, 22 - (1993/346 JR - Costello J. - 13/5/94) [1997] 1 IR 433
|Minister for Education v. Regional Technical College, Letterkenny|
Judgment of Mr. Justice Costello, Delivered the 13 day of May 1994,
On the 22 November 1993 the Minister for Education obtained leave to institute these proceedings in which he claims an Order of Certiorari quashing the appointment of Mr. Colin Morrow as Secretary/Financial Controller of Letterkenny Regional Technical College and certain declaratory relief. The Minister's claim is that Mr. Morrow's purported appointment (which was made by the Governing Body of the College on the 14 July 1993) was made both in contravention of section II(I)(a) and section II(I)(b) of the Regional Colleges Technical Act 1992.
The Regional Technical Colleges Act 1992 came into operation on the 1 January 1993. Under its provisions the Regional Technical College, Letterkenny, became a body corporate. The relevant provisions of the Act for the purpose of these proceedings are those contained in section II(I) which read as follows;
a "(a) A college may appoint such and so many persons to be its officers (in addition to the Director) and servants as, subject to the approval of the Minister given with the concurrence of the Minister for Finance, the Governing Body from time to time thinks proper.
(b) The selection of such officers and servants shall be a function of the college in accordance with the procedures which may be determined by the Minister from time to time".
The Minister's claim is that Mr. Morrow's appointment is void because (a) he did not possess the qualifications for the post approved of by the Minister and (b) it was made in contravention of the procedures determined by the Minister.
The Minister for Education commissioned a report from the Institute of Public Administration on the senior management structures of each of the new Regional Technical Colleges, which became available in February 1993 and was circulated to each Director of each Regional Technical College. It proposed that there should be a Secretary/Financial Controller for each Regional College and that this officer would be responsible for the financial planning, budgetary policy and financial control of the relevant college as well as its legal affairs and personnel and ancillary services. The reports stated that the qualifications for the post should be:-
"A relevant professional qualification will be required together with some five years experience of the financial function at management level in a large organisation".
By letter dated the 22 March 1993 the Principal Officer, Higher Education Section of the Department of Education, Miss Ni Bhriain, wrote to the Director of the Letterkenny Regional Technical Colleges, referring to section 11 of the 1992 Act and enclosing "in accordance with the provisions of that section, selection procedures for the appointment of staff including composition of selection boards".
The document sent to the Director was headed "Selection Proceedings determined by the Minister for Education" and referred specifically to section II(I)(b). It provided that all vacancies were to be advertised and that there should be a screening process. Paragraph 2 stated that:-
"the Director, in consultation with the appropriate Head of Function, shall be responsible for the screening of all applications to ensure that only candidates who appear to meet the requirements for the post are considered by the Selection Board. The screening procedure shall provide detail information to the selection board on the basis for acceptance or rejection of each application".
Paragraph 3 provided that a selection board could short-list candidates for interview and paragraph 4 that the Selection Board was to be constituted in accordance with the provisions in the Annex.
After receiving the report from the Institute the Minister requested the Council of Directors (a body representing all the Directors of the Regional Technical Colleges) to draw up a draft document incorporating a job description and qualification for the post of Secretary/Financial Controller. A working group prepared drafts and following consultation with officials from the Department a draft job description and qualifications was submitted to a meeting of Directors of Regional Technical Colleges on the 26 May 1993. At that meeting, attended by Mr. Fitzsimons, the Director of the Letterkenny Regional Technical College, the draft job description and qualifications was, after amendments, approved by all those present, including Mr. Fitzsimons. Representatives from the Department of Education also attended the meeting and Miss Ni Bhriain and her colleagues approved the job description and qualifications.
Following the meeting a document entitled "Job Description" was faxed by the Department to all the eleven Directors of the Regional Technical Colleges in the State. Having described the position of Secretary/Financial Controller as a "senior college post" and that its duties would include a "college-wide responsibility for resource management and administrative affairs of the College and all its enterprises", that financial planning budgetary allocation and control fell within the purview of the post and having set out the broad categories of responsibilities falling within its remit the document went on:-
This senior management position requires extensive administrative and financial management experience at an appropriate level in a Commercial, Public Sector or Higher Education Organisation.
The post will require significant organisational, leadership and communication skills.
The successful candidate will have a relevant Degree with First or Second Class Honours and/or professional qualification together with at least five years post qualification senior management experience.
Post-graduate qualifications are highly desirable".
The document ended by stating that the salary scale would be between £32,263 and £39,616.
Advertisements for the post of Secretary/Financial Controller in all eleven colleges were published in daily newspapers on 28 May 1993.
Miss Ni Bhriain had a meeting with the Director of the Letterkenny College on the 14 June following which a letter was written approving the Operational Programme which had been submitted on behalf of the College.
On the 8 June 1983 Mr. Morrow forwarded to the College an application form for the post. This showed that at that time he was aged 41 and was employed in the Donegal County Council as an administrative officer. He had obtained a pass in the Leaving Certificate and had not gone to University or obtained any third level education. Nor had he any professional qualifications. His application form showed that his career had been in different local authorities and that from May 1984 to January 1992 he had been Town Clerk of Letterkenny Urban District Council.
The Selection Procedures as determined by the Minister required the Director "in consultation with the appropriate Head of Function" to screen the applications to ensure that only candidates who met the requirements for the post were considered by the Selection Board. In carrying out this task the Director consulted with the Chairman of the Selection Board, Councillor Bernard McGlinchy. Notwithstanding the fact that Mr. Morrow had no University degree or professional qualification he sent his name forward to the Selection Board. It met on the 9 July 1993 and on that day interviewed 27 candidates, including Mr. Morrow. It recommended Mr. Morrow's appointment to the Governing Body. In the course of his evidence the Director said that he had not known Mr. Morrow personally and in a letter of the 7 September 1993 he explained that the Selection Board was aware that Mr. Morrow did not have a degree, that nevertheless it felt "that his performance at interview and his previous professional record over a long number of years was so outstanding" that it was able to recommend his appointment.
The Governing Body was due to meet on the 13 July. On the 12th the Director telephoned the Department and spoke to Mr. James Malone. A difference of recollection exists as to what was said. Having heard the witnesses I think that Mr. Malone's recollection is the correct one. The Director was inquiring about the acceptability of a person for appointment to the post of Secretary/Financial Controller who had County Council experience but who had no other qualifications. He did not name the person or state when the appointment was to be made. Having been informed of the contents of the Job Description and the qualifications contained in it and having discussed the position with some of...
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