The Presiding Judge, Abuja judicial division of the National Industrial Court, Hon. Justice Osatohanmwen Obaseki-Osaghae granted an order of mandatory injunction compelling the Federal Civil Service Commission, Head of Federal Civil Service and the Honourable Minister, Federal Ministry of Information & Culture and their agents, servants, privies by whatsoever name called to immediately Promote Mr. Olujimi Oyetomi to the position of Cadre Officer on Salary Grade Level (SGL) 17 in the Federal Civil Service.
The Court ordered the Federal Civil Service Commission, Head of Federal Civil Service and the Honourable Minister, Federal Ministry of Information & Culture jointly and severally to immediately pay Mr Oyetomi his monthly salaries and other benefits accruing from 01/01/2018 being the effective date of the Promotion of Officers who sat for the 2018 Promotion Examination of the Federal Civil Service Commission pursuant to the 2018 Directorate Level Promotion/Evaluation Exercise till date, with the sum of 2,500,000.00 (Two Million, Five Hundred Thousand Naira) as general damages, and N500k cost of action.
Justice Obaseki-Osaghae stressed that an officer should not be subject to a penalty or disadvantage in the exercise of a constitutional right that the decision of the Federal Civil Service Commission to withhold Mr Olujimi’s 2018 promotion examination results is unfair, unjustified, and amounts to a denial of his promotion expectation in the Federal Civil Service.
From facts, the Claimant- Mr. Olujimi Oyetomi has pleaded that in 2017 he participated in the Federal Civil Service Commission Promotion Examination/Interview Exercise for the post of Director (Information) on Salary Grade Level 17 and was shortlisted along with 20 other candidates of his cadre only 5 candidates were promoted based on the available vacancies declared by the Ministry.
Mr. Olujimi averred that in February 2018, a supplementary promotion exercise was carried out by the Federal Civil Service Commission through the Office of the Head of Federal Civil Service and 11 candidates out of the remaining 17 candidates that participated in the 2017 Promotion Exercise were promoted, reducing the number of the candidates not promoted to 6.
He further averred that on June 28, 2018, he sat for a written examination together with others, and on July 1, 2019, himself, the second claimant (who filed a notice of discontinuance), and four others were shortlisted for oral interviews by the Federal Civil Service Commission. Their results were not released by the Commission despite the Ministry’s declaration of vacancies for their cadre.
Mr. Olujimi stated that he and some of the other affected Deputy Directors subsequently met with the Permanent Secretary and wrote to the Honourable Chairman of the Federal Civil Service Commission, the Head of the Federal Civil Service, the Honourable Minister, Federal Ministry of Information & Culture, and the President & Commander-in-Chief of the Federal Republic of Nigeria to resolve their promotion issue, but it was all to no avail.
Mr Olujimi stated that he complied with the administrative procedure, process, and steps for the Federal Civil Service Commission’s 2018 Directorate Cadre Level Promotional/Evaluation Exercise in accordance with the Public Service Rules 2008, Guidelines on Appointments, Promotion & Discipline, Schemes of Service and other extant Public Service Guidelines, and urged the Court to grant the reliefs sought.
In defence, the 1st Defendant- Federal Civil Service Commission averred that Mr Olujimi failed to seek and obtain the permission of the Head of Federal Civil Service before filing the suit in accordance with the provisions of the circular issued by the head of Civil Service which is a condition precedent to filing the suit; and that there is no reasonable cause of action against the commission.
The 2nd defendant- Head of Federal Civil Service stated that Promotion in the Federal Civil Service is under the exclusive preserve of the Federal Civil Service Commission; and that an Officer’s promotion is determined by his performance, scores, and vacancies as determined by his employer. The Head of the Federal Civil Service further stated that promotion in public service is not a justiciable right.
The 3rd defendant- Honourable Minister, Federal Ministry of Information & Culture stated that it does not have the powers to influence the promotion of any civil servant including Mr. Olujimi; and that no reasonable cause of action is disclosed against it.
In a well-considered judgment, the presiding Judge, Justice Obaseki-Osaghae held that the defence of the Head of Federal Civil Service and the Honourable Minister, Federal Ministry of Information & Culture were deemed abandoned for their failure to take part in the trial and failure to call oral evidence.
On the assertion of the Federal Civil Service Commission challenging the jurisdiction of the Court on the need for the fulfilment of condition precedent, the Court emphasized that circulars cannot amend or override clear provisions of the Public Service Rules (PSR) especially if it is understood that the Rules themselves derive from the Constitution and accordingly have constitutional force.
Justice Obaseki-Osaghae held that the Public Service Rules does not make litigation conditional upon the exhaustion of internal remedies as erroneously submitted by the Federal Civil Service Commission, and reiterated that Mr. Olujimi complied with Public Service Rule and the Head of Federal Civil Service circular by exhausting the avenues for redress before proceeding to Court.
The Court held that the Federal Civil Service Commission’s claim/defence that Mr Olujimi was not promoted because there were no vacancies available in the Ministry’s Directorate cadre for Salary Grade Level 17 does not hold water because the content of exhibits the Circular and Oral interview, and the promotion of Mr Eric Ojiekwe in 2019 is proof of the existence of such vacancies.
Justice Obaseki-Osaghae declared the non-promotion of Mr Olujimi from Salary Grade Level (SGL) 16 to Salary Grade Level (SGL) 17 in the 2018 Promotion Exercise by the Federal Civil Service Commission, Head of Federal Civil Service and the Honourable Minister, Federal Ministry of Information & Culture was not in accordance with the Public Service Rules; Guidelines on Appointments, Promotion & Discipline; Schemes of Service and other extant Public Service Guidelines as applicable in the Federal Public Service.
The Court held that Mr Olujimi has been treated differently and put at a disadvantage on the same set of facts and circumstances; and reiterated that a vindictive denial of promotion is an unfair labour practice.
“I hold that the Claimant has satisfied the requirements declared by the 1st Defendant for promotion to the position of Director Salary Grade Level 17 in the 2018 Promotion Exercise.” The Court ruled.
