����AV

There is always a rebuttable presumption that official acts have been regularly performed. If the management can even minimally show that an appellant’s candidature was given full and fair consideration, then the presumption of law stands satisfied. Thereafter the burden of proof shifts to the appellant who must show through clear and convincing evidence that he/she was denied a fair chance of promotion or selection. The standard of review adopted in the Appeals Tribunal jurisprudence mandates the following issues for consideration: (a) whether the procedure as laid down in the [applicable rules] was followed (b) whether the Applicant was given fair and adequate consideration and (c) whether the applicable Regulations and Rules were applied in a fair, transparent and non-discriminatory manner. An internal candidate has the right to be given the “fullest consideration”. He or she, however, has no right to have external candidates excluded from the competition, no matter the nature of the job advertised. A mere availability of “suitable” internal candidates does not bar the Organization’s seeking the best candidates available internally and externally. Regarding the “fullest regard” under staff regulation 4.4 and para. 7l of the PPA, as affirmed recently by the Appeals Tribunal, it is not an entitlement of the staff member solely by virtue of being an internal candidate to be given priority consideration for a post. “Fullest regard” will rather denote an obligation to consider the internal candidate in the selection process by default, until she or he has been firmly disqualified from further competition. An appointment of a candidate who does not meet the fundamental condition for an appointment is invalid.