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1. By Order of the now President of the High Court, Mr. Justice F.R. Morris, dated the 14th day of May 1997, the Applicant was given leave to apply by way of application for Judicial Review for the reliefs set out in the said Order on the grounds set forth in the Applicant's statement grounding his application for Judicial Review.

2. The reliefs were:-

3. The following are the uncontested or agreed facts:-

4. In an Affidavit sworn herein on the 9th May, 1997, the Applicant asserts that he had applied for the post of District Superintendent in the said training unit in the month of February 1995 because he wished to advance his career as he believed that, while his grade as District Superintendent would remain unchanged were he appointed to the training post, the challenge of the post; in particular the fact that it involved taking charge of twelve hundred staff members in the training area, would enhance his standing in the Civil Service if he met the demands of that challenge. I do not doubt that assertion. In the said Affidavit, the Applicant also maintained that, when he was appointed to the post of District Superintendent in the said training unit, he believed that such appointment was a tacit acknowledgement that his application and commitment to his work in the past was being recognised; if for no other reason than that the said circular of the 15th February, 1995 emphasised that the post of District Superintendent in the training unit involved special skills and abilities. Not only do I not doubt that this was the Applicant's belief but I think that, having regard to all the circumstances surrounding the creation of the post of District Superintendent in the said training unit, he was entitled to that belief. In this regard, it is relevant to note that it is accepted by the Respondent that the requirement that the Applicant be interviewed to establish whether or not he was suitable to be transferred to the post of District Superintendent in the said training unit was an unusual, although not a unique, requirement. The Applicant further maintains that, in the circumstance that, in the said letter of the

5. Mr. John McCarthy of the Personnel Division of the Department of Agriculture following his unsuccessful application for the post of Area Superintendent in the said training unit, the Applicant recognised that he would be replaced as Technical Officer with responsibility for technical training and indicated his preferred option with regard to the alternative post to which he might be transferred. In this connection, the Applicant purports to negative the implications of the contents of that letter of the 4th April, 1997 to Mr. McCarthy aforesaid on the grounds that it was written by him without the benefit of independent legal advice and that, therefore, in the absence of such advice, he did not appreciate the significance of the concessions made therein. While I do not doubt the assertion that that letter was written without the benefit of independent legal advice and I accept that, had the Applicant sought such advice before he wrote it, the likelihood is that he would not have written a letter in those terms, nevertheless, it seems to me that the contents of that letter reflects the Applicant's state of mind with regard to the permanency of his post as District Superintendent in the said training unit; a state of mind which recognised that that post was no more permanent than any other post to which a District Superintendent might be appointed. In any event, while it is a fact that the post of District Superintendent in the said training unit to which the Applicant was appointed on the 21st March, 1995 was, at the time of that appointment, a newly created post and was expressed to involve special skills and abilities and that, contrary to the usual practice, Applicants for transfer to that post were required to submit to interview, it is also a fact that the successful Applicant for appointment to that post would retain the grade of District Superintendent in the Department of Agriculture, in other words, his status in the Department would not change. It follows, in my view, that, in the absence of any express proviso to the contrary, the successful Applicant for the post of District Superintendent in the said training unit would continue to be subject to the conditions of service which were applicable to that grade of officer. Accordingly, in the absence of any express stipulation that, following his appointment as District Superintendent in the said training unit, the Applicant would be subject to or would enjoy any different conditions of service from those which obtained on his appointment to the grade of District Superintendent in the month of January 1994, it seems to me that even after his transfer to the post of District Superintendent in the said training unit, the Applicant continued to be subject to the limitations imposed on him by the form of acceptance which he executed following his promotion to the grade of District Superintendent whereby he is obliged to perform any duties, appropriate to that grade which may, from time to time, be assigned to him by the Respondent. In these circumstances, I do not consider that the said letter to the Applicant of the 10th April, 1997 either purports to or in fact varies the Applicant's conditions and/or contract of service. On the contrary I think that it reflects the entitlement of the Respondent to assign to the Applicant any duties appropriate to the grade of District Superintendent which, from time to time, are deemed expedient as acknowledged by the Applicant in the form of acceptance which he executed on the 16th March, 1994 following his promotion to the grade of District Superintendent in the Department of Agriculture.

6. While, as I have indicated, I am not persuaded that the said letter of the

7. For the Respondent, Mr. Butler, submitted that the Applicant's removal from the post of District Superintendent in the training unit was not a demotion, in that, he still retained his grade as a District Superintendent in the Department of Agriculture and that any loss of job satisfaction resulting from that removal was irrelevant. While contending that the Applicant's conditions of service entitled the Respondent to transfer him to duties appropriate to his grade, Mr. Butler conceded that that right was not an arbitrary one and could only be exercised with reason. In this regard, however, Mr. Butler maintained that the agreement between the Trade Union, IMPACT and the Department of Agriculture whereby an Area Superintendent, who would carry out the functions theretofore carried out by the District Superintendent, would be appointed to the said training unit was a sufficient reason for the Applicant's removal from his position as District Superintendent in the said training unit and he suggested that the Applicant's real grievance was not so much that he had been demoted but that he had failed to secure promotion to the grade of Area Superintendent. In those circumstances, Mr. Butler submitted that the removal of the Applicant from his post as District Superintendent in the said training unit was neither arbitrary nor capricious, and he rejected the suggestion that any assurances given to the Applicant by either the Trade Union or by Mr. Shorthall with regard to the continuance of his functions in the said training unit after an Area Superintendent had been appointed thereto superseded the entitlement of the Respondent to rely on the Applicant's conditions of service for the purpose of transferring him to another post because neither the Trade Union nor Mr. Shorthall had any authority to vary the Applicant's conditions of service. Mr. Butler also asserted that, in the circumstance that the Applicant was a member of the Trade Union, IMPACT, the Trade Union were presumed to be representing his interests in the course of the negotiations aforesaid with the Department of Agriculture and that, therefore, the Applicant had not been deprived of the opportunity of challenging the decision to remove him from his post as District Superintendent in the said training unit to the extent that that decision was arrived at without regard for the Applicant's interests and did not accord with the principles of natural and constitutional justice. In this regard, Mr. Butler maintained that, if the Applicant had a legitimate grievance, it was against his Trade Union rather than the Respondent. Moreover, Mr. Butler submitted that any relief granted to the Applicant in these proceedings would seriously prejudice the Respondent with regard to the agreement arrived at with the Trade Union for the restructuring of Agricultural Officer grades.

8. In my view, the decision to remove the Applicant from his post as District Superintendent in the said training unit was not arbitrary or capricious. It was a pragmatic decision based on the reality that, following an agreement lawfully entered into, an Area Superintendent be assigned to the said unit, the position of a District Superintendent therein was redundant. Moreover, as I have already indicated, I do not accept that the purported removal of the Applicant from the said post constituted a variance of his conditions of service or was, otherwise, invalid. In the circumstance that his removal from the post of District Superintendent in the said unit did not involve any alteration in his grade of seniority in the Department of Agriculture, I am satisfied that that removal did not constitute a demotion and I am not persuaded that any loss of job satisfaction which the Applicant may experience as a result of such removal is relevant to any issue which I have to decide. Moreover, I accept that any assurances which the Applicant may have received from his Trade Union, IMPACT, or from Mr. Shorthall of the Department of Agriculture with regard to the continuance of his functions in the said training unit did not prohibit the Respondent from exercising his right to remove the Applicant therefrom. Furthermore, for the reasons which I have already outlined, I do not consider that the Applicant had any legitimate expectation that he would remain in the post of District Superintendent in the said training unit unless found guilty of misconduct or inadequate performance. I also believe that the these proceedings were motivated; more by the Applicant's failure to secure promotion to the post of Area Superintendent in the said training unit and the unavailability of his preferred option of the post of District Superintendent in the DVO at Agricultural House, than by the fact of his removal from his post in the said training unit. However, notwithstanding those findings, I think that the fact that it is accepted that the Applicant had given every satisfaction in the performance of his duties as District Superintendent in the said training unit and that, before his removal from that post, he had been given assurances that proposed restructuring of Agricultural Officer grades would not alter his functions in the unit (I am satisfied that those assurances were given), I think that, before a final decision was taken to remove him from that post, he was entitled; firstly, to be notified that there was a real possibility that he would lose his position as District Superintendent in the said training unit and, secondly, to be given the opportunity to argue against that possibility. In fact, he was never given the opportunity to challenge the propriety of the decision to remove him from his post as District Superintendent in the said training unit but I do not accept that his membership of the Trade Union, IMPACT, disentitled him to that opportunity.

9. The Department of Agriculture is an administrative body to whom certain functions are entrusted; in particular and in the context of this case, those functions include the right to assign duties to personnel employed in the Department. In The State (Crowley) -v- The Irish Land Commission (1951 I.R. at page 250) the Supreme Court considered the tests to be applied in determining whether in respect of any particular function entrusted to it, an administrative body is bound to act judicially. In the light of the tests laid down by that case, I am of the opinion that, when considering whether or not to remove the Applicant from his post as District Superintendent in the said training unit, the Respondent was required to act judicially and to observe fair procedures because the decision arising from that consideration affected the Applicant's rights. In my view, by failing to advise the Applicant that his post as District Superintendent in the said training unit was in jeopardy and by failing to afford him the opportunity to argue against his removal from that post, the Respondent did not act judicially and failed to comply with the requirements of natural justice.