Public Service Commission v Lai Swee Lin Linda

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 29 January 2001
• Neutral Citation: [2001] SGCA 5
• Docket Number: Civil Appeal No 69 of 2000
• Date: 29 January 2001
• Published date: 19 September 2003
• Year: 2001
• Plaintiff Counsel: Jeffrey Chan and Hema Subramaniam (Attorney General's Chambers)
• Citation: [2001] SGCA 5
• Defendant Counsel: Harpreet Singh Nehal, Rama S Tiwari and Adrian Kwong (Drew & Napier)
• Court: Court of Appeal (Singapore)
• Subject Matter: Whether element of public law involved,Whether relationship between parties governed by contract or law,Whether decisions of general application affecting employees of a public body,Judicial review,Application for orders of certiorari and mandamus,Whether source of power exercised in making decisions derived from contract or law,Whether Civil Service Instructions Manual has statutory force,Whether matters susceptible to judicial review,Ex parte application for leave,Administrative Law,Approach to ex parte application for leave

(delivering the judgment of the court): Introduction

This appeal arises from an application made by the respondent, Ms Linda Lai Swee Lin (`Ms Lai`), to the High Court under O 53 r 1 of the Rules of Court Order for leave to apply for an order of certiorari to quash the following:

(a) the decision of the Commissioner for Lands/Permanent Secretary (Law) conveyed to Ms Lai on 19 August 1998 extending her probationary period as a Senior Officer Grade III (Law) for one year retrospectively with effect from 28 November 1997;

(b) the decision of the Senior Personnel Board F conveyed to Ms Lai on 17 December 1998 terminating her appointment as Senior Officer Grade III;

(c) the decision of the appellant [`the PSC`] refusing Ms Lai`s appeal against the retrospective extension of the probationary period and the termination of Ms Lai`s appointment;

and also for leave to apply for an order of mandamus to reinstate Ms Lai as a confirmed Senior Officer Grade III with effect from 28 November 1997. Pursuant to O 53 r 1(2) the application was made ex parte, supported by a statement and an affidavit of Ms Lai verifying the facts relied on. Pursuant to O 53 r 1(3) the application together with the statement and affidavit was served on the Attorney General`s Chambers.

At the hearing before the judge below, Mr Jeffrey Chan, senior state counsel from the Attorney General`s Chambers, appeared for the PSC and resisted the application. At the conclusion of the hearing, the judge granted leave to Ms Lai to apply for the order of certiorari sought but refused her leave to apply for the order of mandamus. The PSC now appeals against the order of the judge.

Facts

The relevant facts which led to the application by Ms Lai were set out in her statement and affidavit filed below and at this stage these were the only facts before the court. Both before us and before the judge, the hearing proceeded on the assumption that the facts as stated in the statement and deposed to in the affidavit are correct.

Ms Lai, an Asean scholar, graduated from the University of Malaya with an LL B degree in 1979. She worked for various Malaysian government departments for a number of years, before going into private practice. She migrated to Singapore in 1991, and in 1993, she graduated from the National University of Singapore with an LL M degree. She became a Singapore citizen in 1994.

She was appointed as a Senior Officer Grade III at the Land Office, Ministry of Law, in November 1996. The letter of appointment issued by the Commissioner of Lands (`Commissioner`) and dated 19 November 1996 stated that her tenure of office was `Permanent`. It also stated that the period of probation was one year with effect from the date of assumption of duty. The letter had conditions overleaf and with regard to these conditions the letter stated: `Conditions 1 to 9 and 17 overleaf are applicable`. The material conditions, Conditions 2 and 4 respectively provide:

2 During the whole period of your service, you will be governed by instructions, however styled, that are in force or may be made.

4 Your appointment is in accordance with your Scheme of Service.

The Civil Service Instructions Manual (`IM`) contain instructions to all civil servants and by virtue of Condition 2 was made applicable to Ms Lai. We shall refer shortly to some of the material provisions of the IM.

On 28 November 1996, Ms Lai assumed duty at the Land Office. She was then designated Head (Legal) reporting to the Deputy Commissioner of Land, Mr Liew Choon Boon. On 30 June 1997 or thereabouts, she was requested by the Deputy Commissioner to take on added responsibilities. In the course of her duties, the applicant oversaw the operations of the Lease Administration Section in carrying out title management work, in particular, lifting of title restriction, upgrading of lease tenure and enforcement of the covenants.

Under the IM, a confidential staff report was required every six months during the probationary period of all public servants. The PSC was given such a staff confidential report form to be completed and passed on to her immediate superior, the Deputy Commissioner, for the two six-month periods during her probation. In this regard para 42 of IM No 2 section B provides:

A Permanent Secretary must make sure that Staff Confidential Reports are put up every 6 months on all probationary officers in Divisions I, II and III under his charge. ... If Staff Confidential Reports contain adverse remarks or if an officer is not making enough progress in his work, the Permanent Secretary has to follow the instructions in paragraph B20.

And para 20 of IM No 2 section B provides:

During the probationary or trial period, an officer has:

(a) ...

(b) ...

If an officer receives an adverse report after six months` service, his Permanent Secretary has to inform him verbally of his shortcomings, and, where necessary, give him all possible help to overcome them. If the shortcomings persist in the next six months, they have to be made known to the officer, in writing. If the Permanent Secretary has doubts about the suitability of the officer, or feels that the officer`s progress has not been of a high enough standard for him to be confirmed, the Permanent Secretary has to consider:

(c) extending his service for a further six months or a year; and

(d) stopping or deferring his increment at the same time.

If it is unlikely that the officer will qualify for confirmation at the end of the extended period, the Permanent Secretary will consider:

(e) terminating the officer`s service under para P25; or

(f) reverting him (putting him back) to his previous grade under para B115 and B116.

In either case, the Permanent Secretary, if he is not the Appointing Authority, has to refer the case to the Appointing Authority at least two months before the end of the officer`s probationary or trial period. The Appointing Authority will then submit the case to the PSC together with a recommendation to terminate the officer`s service, or revert him (put him back) to his previous grade, as the case may be.

Thus, under the IM if there are any adverse comments on an officer in the report within the first six months, the Permanent Secretary of the Ministry should verbally inform the officer of his or her shortcomings. If these shortcomings persist in the next six months, the officer will have to be informed in writing. The respondent at no time during her probationary period received any adverse report; nor was she informed verbally or in writing of any shortcomings or that she was not performing up to expectation. This was conceded by the PSC.

In the normal course, in accordance with the IM, by 27 November 1997 or thereabouts, Ms Lai would have been informed officially in writing whether she was confirmed or her probation was extended or her service was no longer required. This is provided for in paras B66, B20 and P25 of IM No 2. However, Ms Lai received no such formal notification. The PSC conceded that Ms Lai should have been informed of her non-confirmation either on or before this date or soon thereafter.

Sometime during the period between November and December of 1997, pursuant to a query from Ms Lai, the Deputy Commissioner of Lands informed her that he had requested Director of Alienation 2 to appraise her and that the Director had given her a `generous appraisal`. The respondent expected that her confirmation was no more than a mere formality.

On 29 May 1998, there was a meeting of various senior officers in the Land Office, including Ms Lai. This meeting was called as a result of the query from the then President of the Republic of Singapore, Mr Ong Teng Chong, on the inefficiency of the Land Office with respect to land titles, which had been forwarded to him for approval after years of delay. It appeared that some 128 titles had been delayed, and some for a period between 10 and 20 years. After the meeting, on the next day, Ms Lai sent an email to her immediate superior, the Deputy Commissioner, alleging that her two senior officers, Directors of Alienation 1 and 2, did not accurately reflect the extent of the backlog of work. She also sent a copy of the email to the then Commissioner. In it, she highlighted the serious nature of the backlog of work.

By that time, 18 months had lapsed since Ms Lai`s assumption of duty. She had not received any adverse report. Nor had she been informed of any shortcomings on her part, whether orally or in writing. On 31 May 1998, Ms Lai alleged that she was verbally informed by the then Commissioner that her appointment would not be confirmed as there were frictions between her and the Director of Alienation 1. On 1 June 1998, Ms Lai was re-designated as Head (Remnant Land). Until this time, her designation was Head (Legal/Remnant). The significance of this re-designation did not emerge clearly from the documents. The respondent claimed that this was an indication that her performance at the Land Office was at least acceptable.

On or about 19 August 1998, which was some nine months after her probationary period, Ms Lai received a letter stating that adverse reports have been received with regard to her service from 28 November 1996 to 27 November 1997 and on account of these adverse reports Ms Lai`s appointment was not confirmed, and that the probationary period would be extended for one year with effect from 28 November 1997 to 27 November 1998. As there had already been a lapse of nine months before Ms Lai received this written notification, the extension of her probation was, in effect, for another three more months. On the basis of what Ms Lai said, clearly there were serious breaches of provisions of paras B 20 and 42 of the IM.

On 1 September 1998, Ms Lai wrote to the new Commissioner setting out her grievances and sought an appointment to see him. She asked that the Director of...