Chapter V. Decisions of Administrative Tribunals of the United Nations and related intergovernmental organizations

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DECISIONS OF ADMINISTRATIVE TRIBUNALS OF THE UNITED NATIONS AND RELATED INTERGOVERNMENTAL ORGANIZATIONS

1. Decisions of the United Nations Administrative Tribunal2

   1. JUDGEMENT NO. 870 (31 JULY 1998): CHOUDHURY AND RAMCHANDANI v. THE SECRETARY-GENERAL OF THE UNITED NATIONS3

      Non-promotion — Question of bias or discrimination — Committee taking administrative decisions should be properly constituted — Mere expectancy of promotion does not create a right to promotion

      Both Applicants were employed by the United Nations Military Observer Group in India and Pakistan (UNMOGIP) in the New Delhi off‌ice. Applicant Choudhury had been promoted, on 1 April 1985, to Senior Typist/Clerk at the G-5 level, and the overall rating on all his performance evaluation reports since 1977 had been “a very good performance”. Applicant Ramchandani was at level ND-5, effective 1 July 1994, as a result of the salary scale being converted to a seven-level structure. His overall rating on his performance evaluation report for the period from 12 July 1988 to 28 February 1993 was “an excellent performance”.

      By memoranda in 1992, the Chief, Field Personnel Section, Field Operations Division, transmitted to the Off‌ice of Human Resources Management, the Division’s recommendations for promotion, based on the review and recommendation of the 1992 UNMOGIP Subsidiary Promotion Review Panel for locally recruited General Service staff. The Applicants were not among the eight staff members recommended for promotion, and they appealed.

      However, the Joint Appeals Board, in its report of 23 January 1996, stated that the Panel had concluded that the two had failed to show convincingly that the decision not to include them in the 1992 promotion listed violated their rights.

      In its consideration of the case, the Tribunal acknowledged that it would not substitute its own judgement for that of the Administration (Judgement No. 275, Vassiliou (1981)), but that it would ascertain whether there had been an abuse of discretion. In that regard, the Tribunal noted that the Applicants had alleged discrimination, claiming that (a) the Subsidiary Promotion Review Panel sat in Rawalpindi, Pakistan, (b) the Panel had representation only from the Rawalpindi off‌ice, and (c) the number of staff promoted at the New Delhi off‌ice was low in comparison with the number promoted from the Rawalpindi off‌ice. The Tribunal, on the other hand, was of the view that none of these factors, assuming them to be true, supported by themselves the conclusion that there was bias or discrimination against the Applicants in the decision not be promote them.

      The Tribunal next addressed the issue of the composition of the UNMOGIP Subsidiary Promotion Review Panel that had carried out the review and made recommendations regarding the 1992 promotions. In its consideration, the Tribunal

      noted that it was a general principle of international administrative law that a committee involved in the taking of administrative decisions should be properly constituted (cf. Judgement No. 28, Wallach (1953)), and, furthermore, that the principle required that, in the constitution of a committee, in keeping with the maxim that justice must not only be done, but must seem to be done, if there was representation on a committee, there must be properly distributed representation. And, as the Tribunal pointed out, the constitution of the Subsidiary Promotion Review Panel was defective in that regard, as there was no representation, direct or indirect, of the Local Staff Association in New Delhi or of the staff in Srinagar. The Tribunal had found the Respondent’s explanation for the lack of representation that the travel restrictions between Pakistan and India prevented representation from staff in the New Delhi and Srinagar off‌ices inadequate. In the opinion of the Tribunal, the disproportionate representation was a procedural irregularity which violated the rights of the Applicants, and it was not necessary for the Applicants to show that had there been proper representation they would have been promoted, nor was it signif‌icant that the Subsidiary Promotion Review Panel was an advisory body and not the authority taking the f‌inal decision on promotions. Here, there was suff‌icient injury to the Applicants for which compensation was due.

      The Tribunal also considered the Applicants’ subsidiary claim that they had an expectancy of being promoted. The fact that Applicant Ramchandani relied on the conduct of his supervisor in virtually assuring him that he would be promoted did not, in the opinion of the Tribunal, amount to the giving of a promise that the Applicant would be promoted, nor was there evidence of an agreement to promote the Applicant.

      For the foregoing reasons, the Tribunal ordered the Respondent to pay each of the Applicants three months of the Applicants’ net base salary, as well as ordered the Respondent to undertake a meaningful review of the constitution of the UNOGIP appointment and promotion bodies with a view to securing fair representation of all staff in the India and Pakistan off‌ices.

   2. Ju d g emen t No . 872 (31 Ju l y 1998): Hjel mq v ist v . t h e Sec r et a r y Gen er a l o f t h e Un it ed Na t io n s4

      Question of a grossly negligent medical evacuation — Compensation for service-incurred injury — Question of reimbursement for travel expenses — Appendix D to the United Nations Staff Rules — Compensation of an unreasonable delay — Entitlement to daily subsistence allowance while recuperating from an injury — Access to United Nations medical f‌iles—Award of compensation under special circumstances

      The Applicant entered United Nations service on 8 September 1987, on a short-term appointment, and on 27 May 1991 he commenced service with the United Nations Guard Contingent in Iraq (UNGCI) and was assigned to Suleimaniyah in the Northern Territory, effective 15 June 1991.

      On 17 August 1992, the Applicant and two colleagues were in a United Nations vehicle on patrol outside Suleimaniyah when they were f‌ired upon. The Applicant was hit by a bullet, which grazed his right forearm and penetrated his lower abdomen. His left leg also was injured during the episode. According to the investigation report, some 30 minutes after the shooting incident, the Applicant was taken to a dispensary at Kolar, and then transferred by car to Suleimaniyah Hospital, a journey of about two hours. On the same day, the United Nations representative

      in Suleimaniyah faxed a report on the “shooting incident” to the United Nations Designated Off‌icial for Security, describing the Applicant as “in stable condition and alert” and “in high spirits”, but, because surgical intervention was necessary for his leg wound and facilities at Suleimaniyah were inadequate, the Senior Medical Off‌icer, United Nations Special Commission (UNSCOM), Baghdad, recommended a medical evacuation. Still on the same day, the Senior Medical Off‌icer, UNSCOM, asked the Deputy Medical Director of the United Nations Medical Service at Headquarters, by telephone, to authorize the medical evacuation of the Applicant. Authorization was given by the Deputy Medical Director for a medical evacuation to New York via Zurich. On 18 August 1992, a fax was prepared in New York to provide written conf‌irmation of such authorization to the Senior Medical Off‌icer, UNSCOM, in Baghdad. However, that fax, while marked “RUSH”, was not transmitted until 19 August 1992.

      According to the statement of facts agreed to by the parties, before the written authorization arrived in Baghdad, UNGCI arranged, in consultation with the Senior Medical Off‌icer, UNSCOM, an immediate medical evacuation to Sweden, the Applicant’s home country. Also according to that agreed statement of facts, as well as according to the 19 August 1992 report of the Senior Medical Off‌icer, UNGCI, Baghdad, on 18 August 1992, the Applicant was driven from Suleimaniyah to Kirkuk by ambulance, f‌lown from Kirkuk to Baghdad by helicopter, transported to Habaniya airport, some 80 kilometers away, by UNSCOM ambulance, f‌lown to Kuwait on an UNSCOM f‌light, and thence to Sweden on a Swissair Ambulance. The Applicant underwent several operations at Lund University Hospital to remove such bullet fragments as were accessible and to transplant a vein from his right leg into his left to replace the ruptured femoral vein. Soon after his surgery, he developed a thrombosis in his left leg, and was put on anticoagulants. On 30 September 1992, the Applicant was discharged from Lund Hospital, and then moved to Värnamo, where his parents lived, and his medical treatment was continued at Värnamo Hospital.

      On 17 January 1993, the Applicant submitted a claim for compensation under Appendix D to the United Nations Staff Rules to the Advisory Board on Compensation Claims for reimbursement of his medical expenses. Upon a request from the United Nations Deputy Medical Director in January 1993, the Lund surgeon reported in April 1993 that the Applicant would probably not be able to return to work as a Security Off‌icer before September 1993. Furthermore, on 8 April 1993, the Applicant requested travel authorization to return to New York, and on the basis of the surgeon’s Medical Statement, the Deputy Medical Director certif‌ied him as f‌it for travel. He further authorized the Applicant to travel in business class, based on the recommendation of the Applicant’s surgeon. The Applicant returned to New York on 30 April 1993, and the Medical Service referred him to a vascular surgeon for an evaluation, who subsequently wrote on 25 May 1993 that the Applicant would require contrast venography to delineate the anatomy of his venous system, but felt that “the additional time of continued physiotherapy to build collateral is preferable at this time and intervention either diagnostically or therapeutically is premature”. He noted that “it is my feeling that his present plan of returning to Sweden in the late summer, at...