Mohamad Nizam Bin Malik v Ketua Pengarah Pertanian, Jabatan Pertanian Malaysia (WA-25-344-11/2018)

JABATAN PERTANIAN MALAYSIA

3.

LEMBAGA KENAIKAN PANGKAT PERKHIDMATAN AWAM KERAJAAN MALAYSIA …RESPONDEN-RESPONDEN JUDGMENT The Background [1] The applicant was an Agriculture Officer Grade G48 (Acting Grade G52) at the Department of Agriculture. The Department was under the then Ministry of Agriculture and Agro-Based Industry (“the Ministry”). The Ministry is now known as the Ministry of Agriculture and Food Security. [2] The 1st respondent is the Director General of the Agriculture Department (“Director General”). The 2nd respondent is the Director of the Plant Biosecurity Division, Department of Agriculture (“the Biosecurity Director”). The 3rd respondent is the Public Services Promotion Board (“Promotion Board”). The 4th respondent is the Government of Malaysia. [3] A disciplinary investigation was carried out against the applicant in 2017 under the Public Officers (Conduct and Discipline) Regulations 1993 (the “1993 Regulations”). S/N 3awRtbDqFUil2EafQ3EoMw [4] The applicant was alleged to have appointed five companies to perform maintenance services at the Kompleks Pertanian Serdang without authorisation to procure such services. The letter dated 24.11.2017 inter alia states as follows: Tindakan tuan itu adalah bertentangan dengan perenggan 5(iv) i.,

Pekeliling Perbendaharaan (1PP): Kaedah Perolehan Kerajaan (P.K 2.1) yang memperuntukkan Pihak Berkuasa Melulus bagi pembelian terus dan sebut harga bagi perolehan bekalan dan perkhidmatan sehingga RM20,000.00 setahun atau sesuatu kontrak adalah pegawai Pengawal, Ketua Jabatan atau Pegawai yang diturunkan kuasa, perkara ini adalah disahkan oleh Bahagian Pengurusan, Jabatan Pertanian Malaysia bahawa tuan bukanlah pegawai yang diberi kuasa untuk melaksanakan perolehan bagi pihak Jabatan. Tindakan tuan itu juga telah mengakibatkan Kerajaan terpaksa bertanggungan dari segi kewangan terhadap perkhidmatan yang telah dilaksanakan oleh syarikat yang dilantik oleh tuan tanpa mengikut tatacara kewangan Kerajaan. [5] In the same letter, the applicant was given the opportunity to make a written representation to the Chairman of the Public Service Disciplinary Board (“Disciplinary Board”) within 21 days from the date of receipt of the same. [6] Disciplinary action was taken against the Applicant under the 1993 Regulations, not with a view to dismissal or reduction in rank. [7] By a letter dated 31.5.2018, the Disciplinary Board informed the applicant that it had found the applicant guilty of the charge against him. The Disciplinary Board imposed deferment of salary movement for a period of 6 months against the applicant. [8] Dissatisfied, the applicant appealed to the Public Service Disciplinary Appeal Board (“Appeal Board”). S/N 3awRtbDqFUil2EafQ3EoMw [9] Subsequently, the applicant received a letter dated 1.11.2018 from the 2nd respondent, the Biosecurity Director. The letter stated that the applicant had been temporarily placed as the agriculture officer at the Biosecurity Division (“the 2nd Impugned Decision”). [10] The Director also enclosed another letter addressed to him from the Director General dated 25.10.2018 (“the 25.10.2018 letter”). In the 25.10.2018 letter, the 1st respondent informed the Biosecurity Director that the Promotion Board had agreed to the termination of the applicant’s acting as Grade 52 in its meeting on 22.3.2018 (“the 1st Impugned Decision”). [11] The Public Service Disciplinary Appeal Board (“Disciplinary Appeal Board”), which is not a party to this judicial review application, had, on 17.12.2018, affirmed the decision and sentence imposed by the Disciplinary Board (also not a party to this judicial review). It states as follows: Saya merujuk kepada surat rayuan tuan terhadap keputusan Lembaga Tatatertib Perkhidmatan Awam Kumpulan Pengurusan (No. 1) yang telah mengenakan hukuman tangguh pergerakan gaji bagi tempoh enam (6) bulan ke atas tuan.

Lembaga Rayuan Tatatertib Perkhidmatan Awam dalam mesyuaratnya Bil 39/2018 (1663) pada 17.12.2018 setelah menimbangkan rayuan tuan itu, mendapati rayuan tersebut tidak mempunyai asas yang kukuh bagi mengubah keputusan Lembaga Tatatertib berkenaan. Dengan hal yang demikian, Lembaga Rayuan Tatatertib Perkhidmatan Awam bersetuju mengesahkan keputusan Lembaga Tatatertib tersebut. [12] Aggrieved, the applicant commenced the application for leave for judicial review, seeking inter alia to quash the impugned decision. [13] The application for leave was heard by my learned predecessor, who dismissed it on 4.12.2018. Dissatisfied, the applicant appealed to the Court of Appeal against the High Court’s refusal to grant leave. S/N 3awRtbDqFUil2EafQ3EoMw [14] On 7.10.2020, the Court of Appeal allowed the applicant’s appeal and granted leave to the applicant to commence the judicial proceedings and remitted the matter to this Court. The Judicial Review [15] This judicial review application is supported by the applicant’s affidavit in Encl 3 (“AIS-3”). [16] In this application for judicial review, the applicant inter alia seeks for the following orders:

A declaration that the 1st impugned decision, as stated in the 25.10.2018 letter informing the Promotion Board’s decision dated 22.3.2018 to terminate the applicant’s grade as acting Grade G52 Agriculture Officer, is null and void.

A declaration that the letter from the Biosecurity Director dated 1.11.2018, the 2nd Impugned Decision attaching the 25.10.2018 letter, is null and void.

A declaration that the Promotion Board’s decision dated 22.3.2018 in terminating the applicant’s grade as Acting Grade G52, Agriculture Officer, is null and void.

An order of certiorari against the 1st respondent to quash the 1st impugned decision as stated in the letter dated 1.11.2018. Was the applicant demoted? [17] The applicant averred that terminating his grade as Acting Grade G52 is a demotion. In para 16(f) of AIS-3, the applicant affirmed that: Penamatan pemangkuan adalah satu bentuk penurunan pangkat yang sebenarnya di luar skop prosiding tatatertib terhadap saya. S/N 3awRtbDqFUil2EafQ3EoMw The question that arises is, was the applicant, at any material time, promoted to Grade G52? Has he been confirmed in that Grade? The answer unfortunately, is in the negative. A public officer placed in a certain grade in an acting capacity, by any stretch of any legal imagination, can never be said to be in a confirmed position in which he is acting. He is not promoted. In the circumstances, he can be reverted to his substantive G48 position at any time. The reversion cannot be construed as a demotion. [18] My reasons are these. First, reg 2 of the Public Services Promotion Board Regulations 2010 (“the 2010 Regulations”) defines “acting” as: in relation to a public officer, mean performing, the duties on full-time basis, of another post which is of a higher grade than the officer’s substantive grade in the same service and scheme of service with the approval of the Board. [19] Secondly, reg 16 of the 2010 Regulations empowers the Promotion Board to promote an officer as determined in his scheme of service. However, before the officer is promoted, sub-reg (4) states that the Promotion Board may require the officer to undergo acting before being considered for promotion as the Board considers appropriate. [20] It is therefore apparent that undergoing an acting position does not ipso facto mean that the officer will be promoted in any event. [21] There is nothing novel about the proposition that I have just stated. In Domnic Selvam a/l S Gnanapragasam v Kerajaan Malaysia & Ors [2007] 2 MLJ 761, the plaintiff was, at the material time, working with the Royal Malaysian Police (“PDRM”) and held the rank of ASP. He was later transferred to Taiping, Perak and given an acting rank of DSP. The plaintiff was later found guilty of both charges, as alluded to in the disciplinary letter, and he was sentenced to a fine of two days’ pay and given a warning. Subsequently, the plaintiff was transferred to Kota Kinabalu and his rank was reverted to ASP. Dissatisfied, the plaintiff brought an action against the defendants seeking, inter alia, that the ‘demotion’ from the rank of DSP to the rank of ASP and the disciplinary action against him was null and void. S/N 3awRtbDqFUil2EafQ3EoMw [22] The High Court allowed the defendants’ application for the plaintiff’s writ and statement of claim to be struck out on the ground that the claim was scandalous, frivolous and vexatious or otherwise an abuse of the process of the court. Abdul Malik Ishak J (later JCA) held that: It is a correct assertion to say and I so say that even though the plaintiff was acting on the rank of DSP, that does not mean that he was guaranteed a confirmation or promotion to that rank. The plaintiff is only an officer who may be ‘fit to be chosen’ and not ‘entitled’ to be confirmed or promoted. [23] Thirdly, the learned Federal Council referred me to the unreported case of G. Parameswaran a/l K. Govindasamy v Ketua Setiausaha Negara & 6 Ors (Judicial Review Application No. R1- 25-226-09/2011). In that case, the applicant sought to review the decision of the respondent, who failed to confirm the applicant into the JUSA C post that he had been acting on. Instead, the applicant’s grade was reverted to his substantive M54 position. [24] Abang Iskandar J (as the learned PCA then was) was of the view that the applicant was never promoted to the JUSA C post. He was only placed on the JUSA C in an acting capacity. After about a year, he was put back into his substantive post on M54. His Lordship further held that: In effect, no promotion was conferred on the applicant as he was never confirmed on the Jusa C post that he was acting on. When he was placed back to his substantive M54 post, there was no demotion in post occasioned against him. [25] As I alluded to earlier, there was no guarantee that the Grade G52 that the applicant was acting on would lead to the applicant being confirmed on the same grade as a matter of course. [26] The fact that the applicant was put on acting does not give him a legitimate expectation of any sort that he would be eventually confirmed. This is so even if the applicant had been acting on Grade G52 for two years. S/N 3awRtbDqFUil2EafQ3EoMw [27] In para 23 of his Statement, the applicant also cited cl 10 of the Pekeliling Perkhidmatan Bilangan 7 Tahun 2010 (“the 2010 Circular”). It provides as follows: Pegawai yang telah memenuhi syarat di perenggan 9 layak dipertimbangkan pemangkuan termasuk pegawai-pegawai berikut:

...

...

...

Pegawai yang sedang di dalam prosiding tatatertib. Walau bagaimanapun kes pegawai hendaklah dimaklumkan kepada Lembaga. With respect, cl 10 of the 2010 Circular is irrelevant and inapplicable since, at the material time, the applicant was already on acting Grade G52. Agriculture officer at the Biosecurity Division [28] In his Statement, the applicant took exception to being placed temporarily as the agriculture officer at the Biosecurity Division. [29] He therefore seeks an order of certiorari to quash the emplacement. [30] In Pengarah Pelajaran, Wilayah Persekutuan & Ors v Loot Ting Yee [1982] 1 MLJ 68 FC, the respondent had been told that he was transferred from a school in Kuala Lumpur to a school in Terengganu. Dissatisfied, the respondent appealed to the Minister of Education. The Minister confirmed the transfer. Aggrieved by the ministerial decision, the respondent thereupon applied for a declaration that the transfer was inoperative and void. [31] The Federal Court held that whether a civil servant should be transferred, and if so, where and when the transfer is to be made, are matters for the Government to decide. In the circumstances, there was absolutely no legal basis for the court to interfere with the Government's discretion. Salleh Abas FJ (as the former Lord President then was) further held as follows: S/N 3awRtbDqFUil2EafQ3EoMw As regards the allegation that the transferring authority had no absolute right to transfer him, the answer is that the respondent holds office during pleasure of the Yang di-Pertuan Agong. If an officer can be dismissed at pleasure (subject only to observance of Article 135) similarly he can be asked to serve anywhere at pleasure. No officer can therefore claim to have legal right of non-transferability because by joining the Government service he has become liable to transfer. [32] So, even if we assume for one moment that no disciplinary action has been taken against the applicant, the applicant cannot claim to have a legal right of non-transferability. By joining the Government service, the applicant has become liable for being transferred to the Biosecurity Division. [33] Another complaint of the applicant, which is quite related, is this. As his appeal against the 1st Impugned Decision to the Disciplinary Appeal Board is pending, the applicant was transferred to the Biosecurity Division. The appellant’s contention is that the Promotion Board should have waited for his appeal to be exhausted first. [34] The applicant also referred to cl 40 of the 2010 Circular, which states that an officer can only be terminated once he is sentenced for a disciplinary offence. [35] With respect, I cannot assent to this line of argument. In the first place, it is trite that an appeal does not operate as a stay of other processes. The question that arises is, what if the applicant’s appeal to the Disciplinary Appeal Board were to be allowed? My answer to the question is it would not have prejudiced the applicant because his acting post would have been returned to him anyway, no matter where his then posting was. [36] In any event, the issue is rather academic since the 1st Impugned Decision was affirmed by the Disciplinary Appeal Board. [37] As stated earlier, the question of the 2nd Impugned Decision has breached the legitimate expectation of the applicant does not therefore arise since the Promotion Board, on the authority of Loot Ting Yee and G. Parameswaran, is at liberty to transfer the applicant S/N 3awRtbDqFUil2EafQ3EoMw to the Biosecurity Division irrespective of the outcome of the appeal to the Disciplinary Appeal Board. Was there a collusion between the respondents? [38] In his Statement, the applicant alleged that there had been a collusion between the 1st respondent and the Promotion Board or at the very least, interference by the 1st respondent in the Promotion Board’s 2nd Impugned Decision, which had affected the Promotion Board’s neutrality. [39] The applicant’s line of argument is this. The 1st Impugned Decision of the Disciplinary Board was made on 22.3.2018 and he had been informed of the same on 31.5.2018. [40] The applicant took umbrage at the fact that the 2nd Impugned Decision to terminate the applicant’s acting position was made on the same day. [41] But my respectful view is that even if there is no pending disciplinary proceeding against the applicant, the Promotion Board, again, on the authority of both Loot Ting Yee and G. Parameswaran, could still proceed in terminating the applicant's acting position of Grade G52. From that perspective, even if the termination of the acting Grade is independent of the disciplinary action, the termination is still within the jurisdiction of the Promotion Board. [42] Even if the Promotion Board, in terminating the applicant’s position as Acting G52, relied on the applicant’s finding of guilt by the Disciplinary Board as affirmed by the Disciplinary Appeal Board, I am finding difficulty in reviewing the finding of guilt. [43] I say this for two reasons. First, the applicant never challenged the finding of guilt. No relief was sought to quash the finding. It therefore means that the applicant had accepted the finding of guilt. Secondly, the Disciplinary Board and the Disciplinary Appeal Board were not made parties to this judicial review proceedings, which made it impossible for me to review their decisions; Dr Lourdes Dava Raj a/l Curuz Durai Raj v Dr Milton Lum Siew Wah & Anor [2020] 5 MLJ 185 FC. S/N 3awRtbDqFUil2EafQ3EoMw [44] Therefore, the issue of collusion or mala fide on the part of the Promotion Board or the remaining respondents does not arise. In any event, the alleged collusion was not sufficiently particularised in the applicant’s Statement in Encl 2; Crofter Hand Woven Harris Tweed Co Ltd and Others v Veitch and Another [1942] 1 All ER 142 HL. Findings [45] For the aforesaid reasons, my findings are as follows:

The termination of the applicant’s acting Grade G52 and the reversion to his substantive Grade G48 cannot be construed as a demotion.

There was no promotion accorded to the applicant when he was put on acting Grade G52. In that sense, the applicant is only an officer who may be ‘fit to be chosen’ and not ‘entitled’ to be confirmed or promoted.

When the Promotion Board put the applicant on an acting Grade G52 there was no guarantee that it would lead to the applicant being confirmed on the same grade as a matter of course. It does not give the applicant a legitimate expectation of any sort that he would be eventually confirmed.

There was nothing legally wrong when the applicant was transferred to the Biosecurity Division on his substantive Grade G48. Whether a civil servant should be transferred and if so, where and when the transfer is to be made are matters for the Government to decide. This Court has no jurisdiction to interfere.

The so-called right of non-transferability is unknown in law because the applicant has become liable to transfer by joining the Government service.

The fact that his appeal against the 1st Impugned Decision to the Disciplinary Appeal Board is pending does not preclude the applicant from being transferred to the Biosecurity Division. There is no procedural impropriety here. S/N 3awRtbDqFUil2EafQ3EoMw

Even if no disciplinary proceeding is pending against the applicant, the Promotion Board, on the authority of both Loot Ting Yee and G. Parameswaran, could still proceed to terminate the applicant's acting position of Grade G52. Even reg 16(4) of the 2010 Regulations provides that when an officer is put in an acting position, he is eligible to be considered by the Promotion Board for promotion. It is not a matter of course.

In any event, the applicant is not challenging or seeking to quash the finding of guilt by the Disciplinary Board as affirmed by the Disciplinary Appeal Board. It therefore means that the applicant had accepted the finding of guilt against him.

The allegation of collusion that the respondents were purportedly part of was not sufficiently particularised in the applicant’s Statement in Encl 2.

On the issue of notification raised by the applicant, he was notified of the Promotion Board’s decision by the Biosecurity Director via the Director General’s letter dated 1.11.2018 informing him of the termination of the acting post. Reg 18 of the 2010 Regulations has been satisfied. [46] For the reasons aforesaid, the 1st and 2nd Impugned Decisions are not tainted with procedural impropriety, Wednesbury unreasonableness or Anisminic error to make it amenable to judicial review. [47] This application for judicial review is therefore dismissed with no order as to costs. Tarikh: 25 November 2024 (WAN AHMAD FARID BIN WAN SALLEH) Hakim Mahkamah Tinggi Kuala Lumpur. S/N 3awRtbDqFUil2EafQ3EoMw Pihak-pihak: Bagi Pihak Pemohon : Mohamad Nizam Bin Malik In Person Bagi Pihak Responden : Puan Kogilambiga a/p Muthusamy FC Jabatan Peguam Negara, Putrajaya S/N 3awRtbDqFUil2EafQ3EoMw