The authority to transfer public officers rests with the Public Service Commission unless duly delegated, and a public officer's categorization affects transfer validity.

Abdul Malek Ahmad FCJ:

When leave to appeal was granted by this court on 3 May 1999, the two questions sought to be determined in the appeal before us were firstly, whether the respondent was in the common user service and who is to determine this and secondly, who has the power to transfer the respondent.

The agreed facts were that the respondent was appointed a public officer by the appellant on 2 October 1961. On 16 April 1975, by way of appointment by transfer, he was made senior accounting officer (hereinafter "SAO") in the Jabatan Kerja Raya (hereinafter "JKR") in Simanggang. In 1977, he was transferred to the JKR in Kuching.

On 28 April 1987, he was directed by the State Secretary to report and serve as SAO in the Treasury Department in Limbang. The respondent refused to comply with the transfer order and the State Secretary reported the matter to the appellant which, following disciplinary action, dismissed the respondent from the post of SAO in the Sarawak Civil Service on 14 December 1988 effective from 1 January 1989.

The respondent applied for an order of certiorari against the appellant to declare his dismissal unlawful which was granted by the High Court and on appeal to the Court of Appeal, that decision was upheld. Hence this appeal.

It is relevant to revert back to April 1975. Prior to that date, the respondent was a Government Officer in the Audit Department belonging to the Clerical and Technical Group. He had applied for the post of SAO, the vacancy being in the JKR in Simanggang, in response to the appellant's notice inviting applications from Malaysian citizens domiciled in Sarawak and from serving Government Officers. The respondent attended the interview for the post which was in the Executive and Sub-Professional Group.

On 10 April 1975, the respondent was offered the post pursuant to an appointment by transfer. The offer came from the office of the Chief Minister signed on behalf of the State Secretary. The appointment was on a permanent basis and on pensionable terms. The respondent was required to serve a probationary period of one year with effect from the date of his appointment meaning the date he assumed duties in the new post. He accepted the offer and served the JKR in Simanggang and later in Kuching.

He had, however, refused to comply with the transfer as SAO to the Treasury Department in Limbang pursuant to the State Secretary's letter dated 28 April 1987.

It would be quite appropriate at this stage to examine the earlier High Court decision on this matter (Sarjit Singh Khaira V. Government Of The State Of Sarawak & Anor. ) where the respondent as plaintiff had sued the Government of the State of Sarawak and the relevant State Secretary for wrongful dismissal from the service of the first defendant and for arrears of pay. He sought a declaration that the second defendant acted wrongfully and in bad faith with an ulterior motive in procuring the purported dismissal. Both the defendants applied to set aside the writ and service pursuant to O. 18 r. 19 of the Rules of the High Court 1980 (hereinafter "the RHC").

After dealing with the terms "no reasonable cause of action", "frivolous or vexatious" and "abuse of the process of the court", which are contained in that order, Haidar, J (as he then was) said:

Having thus set out the principles governing an application under O. 18 r. 19 of RHC, I will then apply them to the pleadings and the facts of this case. The thrust of the argument of counsel for the defendants is that the issue is essentially one of transfer and therefore it is non-justiciable. He relied heavily on the Federal Court case of Pengarah Pelajaran Wilayah Persekutuan & Ors v. Loot Ting Yee in support thereof. To begin with, Loot Ting Yee's case is solely confined to the issue of whether the power of the government to transfer its officers is reviewable by the courts.

In this respect, the Federal Court at p. 69 said:

In our view as a civil servant holds office du