Det 16. of 2014
Anybody who satisfies the requirements of a Scheme of Service can be appointed to the
post advertised.
Merit lists are confidential and cannot be revealed to parties. The Tribunal cannot invite
the Respondent to appoint anyone as it is the sole prerogative of the Respondent under
section 89 of the Constitution.
The appellant is an USU at the Ministry of .... He is challenging the decision of the
Respondent not to appoint him as SCS.
Appellant’s Case
The Appellant averred that he had been in public service for 34 years, initially as
…Clerk and the last sixteen years as USU
He claimed that six ASC who were not promoted to the grade of USU which was a
higher position were appointed thus bypassing him.
He claimed that Co-Respondent No 57 did not have the required qualifications for the
post. He also averred that six of the Co-Respondents had not worked in the workplace.
The Appellant stated that he had worked as USU for sixteen years and the duties of
SCS were similar to those of USU except that for the former position the duties included some
administrative functions. He found it unfair that all USU had been appointed except him and
another colleague.
The Appellant found his non-appointment as anomalous and sought redress from the
Tribunal.
Respondent’s Case
The Respondent averred that the Pay Research Bureau (PRB) in its 2008 report had
observed that in the context of reforms in the … sector, there was a need to restructure the
administrative support services with the setting up of an Administrative Support Unit to be
headed by a SCS who would take over the functions devolving on the USU so that the
functions of USU could be included in the SCS functions amongst others. The restructuring
would also involve incumbents in the grades of Senior … Clerk and … Clerk. The Errors,
Omissions and Clarifications report of 2008 also recommended that the grade of USU be
made evanescent.
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According to the Scheme of Service prescribed on … for the post of SCS, the post was
to be filled by selection from among officers holding a substantive appointment in any of the
grades listed in the Scheme of Service and who possessed the ability, attitude and skills laid
down therein. As a result, the number of years in service was not a determinant factor.
There were 63 vacancies in the post and the Responsible Officer had recommended
that 62 vacancies be filled. These vacancies were advertised on ... Eligible candidates were
called for interview …, following which 62 candidates were offered appointment. However,
only 59 of them accepted the offer.
The Appellant was eligible and his application was duly considered but he was not
selected.
The Respondent admitted that the post of ASC was lower in hierarchy, than the grade
of USU. However, the six ASC who were appointed were fully qualified for the post and
possessed all the requirements as per the Scheme of Service. The post of SCS was filled by
selection and due consideration was given to the Scheme of Service, the criteria for selection,
performance at the interview and the provisions of Regulation 14 of the Public Service
Commission Regulations .
The Respondent denied that the duties of USU were similar to those of SCS. In fact, a
cursory look at the duties of SCS shows that the duties of USU are subsumed under those of
SCS which also includes administrative duties.
The Respondent moved that the appeal be set aside.
Determination
This appeal concerns the appointment of the 59 candidates to the post of SCS.
Among the appointees, one was a former Higher Executive Officer (HEO), six were former
Senior Officers/ Executive Officers, and six were former ASC and the rest were former USU.
During the proceedings before this Tribunal, the Appellant has not put in question the
whole appointment exercise. He grounded his appeal only on the fact that, according to him,
the HEO and the Senior Officers had no experience in working in the specific workplace and
the six ASC who were lower than him in rank were appointed. He had no grudge against the
appointment of his fellow USU.
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The Scheme of Service is clear that appointment to the post is by selection. The fact that
the Appellant has been in service for about 34 years is not a determining element in a
selection process.
It is also evident that the post is open to officers in different grades and the Appellant
cannot question the decision of the Respondent to appoint officers coming from the grades
mentioned in the Scheme of Service. These officers have an equal claim to appointment
provided they meet all the other requirements of the post.
The Appellant averred that the HEO and the Senior Officers did not have any experience
working in the particular job. The Respondent stated at the hearing that HEO’s and Senior
Officers were posted to the workplace. The Appellant averred that officers from these two
grades who were appointed were not in the workplace but on cross-examination he was not
able to say whether they worked in the workplace previously. In any case, this is immaterial
as it is not a requirement for eligibility. Nevertheless it is noted from confidential information
provided to the Tribunal by the Respondent that experience acquired for having worked in the
workplace has been taken into account under the item ‘relevant experience’ of the selection
criteria and Appellant scored full marks on this item.
As to Co-Respondent No 57, the Respondent maintained that he met all the requirements
of the Scheme of Service.
At the hearing the Appellant enquired about his ranking in the merit list coming after those
who were appointed. As there were three vacancies that remained to be filled, he said that he
could consider withdrawing the appeal if he stood a chance of being appointed in the next
appointment exercise. He was told that the merit list was confidential. In any case it is not for
this Tribunal to request Respondent to appoint anyone as the power of appointment to any
post in the Public Service is exclusively vested with Respondent by Section 89 of the
Constitution.
The Appellant has not been able to buttress his claim that he should have been appointed
or that those in the grades other than USU should not have been appointed.
The appeal is, therefore, set aside.
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