CIV/APN/98/04
IN THE HIGH COURT OF LESOTHO
In the matter between:
KONOSOANG TLALI APPLICANT
And
THE PRINCIPAL OF PAUL VI
HlGH SCHOOL 1st RESPONDENT
THE SCHOOL BOARD OF PAUL VI
HIGH SCHOOL 2nd RESPONDENT
RELEBOHILE MOHALE 3rd RESPONDENT
TEACHING SERVICE COMMISSION 4th RESPONDENT
ATTORNEY-GENERAL 5th RESPONDENT
JUDGMENT
Delivered by the Honourable Mr. Justice G. N. Mofolo On the 21st day of November, 2005
This is an application in which the applicant approached this Court on an urgent basis to declare 2nd respondent's decision not to consider applicant for a teaching service to be declared null and void and of no force or effect and 4th respondent's decision to fill the vacancy without applicant's candidature to be also declared null and void.
This Court granted the application with costs intimating its reasons would follow. Here now are reasons for judgment.
It is common cause that applicant applied for the post. In her application she draw attention to the fact that by reason of holding a degree relevant to the post, she was better qualified to fill the post. However it does seem that at time of applying for the post applicant was plagued by issues which made her go on an extended sick leave. It was while she was on leave that the post was filled by 3rd respondent who, incidentally was less qualified than the applicant.
In his Answering Affidavit the 1st respondent who has deposed to the affidavit also on behalf of the 2nd respondent by virtue of him being secretary of the 2nd respondent, 1st respondent admits that applicant applied but by reason of illness was not discharging her duties from January, 2003 to November, 2003 (para. 4.1.3). At para 4.1.4 1st respondent says 3rd respondent also applied for the post and 2nd respondent considered all the applications for the vacant post and made its recommendations to the 4th respondent. Also, according to the 1st respondent "while it is conceded that it is desirable to fill a vacant post with a person possessing higher
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qualifications, that is not the only consideration" for "the availability of the prospective candidate to discharge the functions of the post is another and perhaps the overriding consideration." (para. 4.1.5).
With regard to 4.1.4, section 18 (3) of the Teaching Service Regulations 2002 is to the effect that "any person who wishes to be considered for a vacancy at a particular school shall apply to the School Board or Management Committee through the Principal."
This is what the applicant did. Sub-section 5 is to the effect the School Board or Management Committee may invite such teachers (if any) and other applicants for interview meaning it is not obligatory to invite them for interview. Sub-section 6 is peremptory in that in the case of a teaching post, it shall then submit its recommendation to the Commission using a form similar to schedule 17.
Now schedule 17 on page 35 of the Regulations above is self-explanatory except highlight the following:-
1st Choice Name Reg. No.
Present School (if any
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Qualifications Qualification date
Comments
2nd choice, 3rd choice, 4th choice, 5th choice, 6th choice, etc. I read this as meaning that the Board is to forward names of candidates to the Teaching Service Commission with recommendations meaning the Board is empowered to state its preference or not, for any reason, withhold the application for if the Board is not disposed to a particular candidate according to the note to schedule 17, reasons must be given for such preference or not-preference in which case it will be up to the Teaching Service Commission to agree or disagree with the Teaching Service Board or Commission. In this case the applicant was shut out by the 4th respondent for wrong reasons afterall despite her illness applicant was a practicing teacher.
I am of the view the 4th respondent failed to apply its mind to the problem in hand and acted unfairly to the prejudice of the applicant.
Mr. Mda for the applicant has submitted applicant expected that her application would, along with others, be submitted to 4 respondent
with recommendations. Contrary to this expectation which 1st respondent
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conceded, none of this was done for applicant's application was not forwarded to 4 respondent with recommendations against expectation by the applicant that the application would be so forwarded and considered by the 4th respondent. Applicant had a legitimate expectation that her application would be forwarded and considered but it was neither forwarded nor considered to her prejudice. I could not agree more.
I am of the view that 2nd respondent failed to apply its mind to the problem in hand and acted unfairly to the prejudice of the applicant. It is for these reasons that the application was granted as prayed with costs to the applicant.
G.N. MOFOLO
For the applicant: Mr. Mda
For the 1st, 2nd and 3rd respondents: Ms. Lekalakala
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