republic of trinidad and tobago in the high court of...

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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE Claim No. CV2018-00626

BETWEEN

KOFI CHAPMAN Claimant

AND

THE PUBLIC SERVICE COMMISSION

Defendant Claim No. CV2018-00627

BETWEEN

JANICE NURSE Claimant

AND

THE PUBLIC SERVICE COMMISSION Defendant

Claim No. CV2018-00667

BETWEEN

VALERIE HAMLET-BOBCOMBE Claimant

AND


Claim No. CV2018-00668

BETWEEN

MICHAEL GUELMO Claimant

AND


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Before the Honourable Mr. Justice V. Kokaram

Date of Delivery: Friday 22 February, 2019

Appearances:

Mr. Kenneth Thompson instructed by Mr. Roland Bain, Ms. Nekisha Charles and Mr. Carlos

Waldron, Attorneys at Law for the Claimants.

Ms. Nadine Nabie, Ms. Kristy Mohan, Ms. Nicol Yee Fung instructed by Ms. Savi Ramhit, Ms.

Radha Sookdeo and Ms. Sangeeta Latchan, Attorneys at Law for the Defendant.

JUDGMENT

1. Appointments in the public service by the Public Service Commission (the Commission) has

for some years been a controversial and increasingly litigious matter in this jurisdiction. Our

public law jurisprudence has developed exponentially in resolving these disputes in the public

sector and has set out the clear boundaries of good public administration. Public law claims

such as these seek to deal with the underlying tensions of the demands of the

employee/public officer for accountability, transparency and integrity in decision making and

the needs of the State to maintain the highest standards of administrative governance.

Inevitably, in the sensitive dynamic of the employee/employer relationship in the public

service, disappointment attendant with frustrated expectations of upward mobility tends to

lead to controversy.

2. In this case, the controversy is not about the non-selection of candidates for a vacant post or

the compilation of an order of merit list or the conduct of interviews by the Commission for

a vacant post. The controversy surrounds the screening process for shortlisting candidates to

be interviewed for the post of Chief Executive Officer (CEO) in the public service and what

constitutes the requisite experience and training suitable to be shortlisted for interviews to

be conducted by the Commission.

3. Sensibly, no argument has been made by the Claimants that the Commission must interview

all applicants who apply for a vacancy. However the Claimants, all senior public officers with

over ten (10) years service in the Public Service, feel strongly that they have met the minimum

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experience and training required for the job to be in the “running” or shortlisted for

interviews. They are disappointed that they were not. At best a positive outcome in this

litigation simply would permit them to be reconsidered for shortlisting for an interview.

Whether they are shortlisted or if shortlisted pass or fail that interview is an entirely different

matter and is not the subject of this litigation. Those interviews in any event have long gone.

4. In these mixed constitutional law and judicial review proceedings the Claimants are seeking

declaratory reliefs against the Commission that its failure to select and interview the

Claimants for the post of CEO thereby not affording them the opportunity to have their names

placed on an Order of Merit List was unreasonable, an abuse of power, contravened the

principles of natural justice and their right to equality of treatment and the protection of the

law guaranteed by Sections 4(d) and 4 (b) of the Constitution of Trinidad and Tobago1.

5. The main contentions of the Claimants were that the Director of Personnel Administration

(DPA) wrongly usurped the powers of the Commission in shortlisting candidates for the

Commission to be interviewed for the post; the Commission erroneously interpreted the

requirement for experience and training suitable for the post and unfairly discriminated

against these Claimants when compared to other similar public officers.

6. Upon considering the evidence in this case and the parties’ submissions, I am not satisfied

that the Commission’s approach to determining the question of the minimum level of

experience and training was flawed or irrational in the Wednesbury unreasonableness sense.

Further, the process of shortlisting by the DPA was not a usurpation of the Commission’s

selection process but a legitimate administrative process to weed out applicants that did not

fulfil the advertised criteria. Finally, there were legitimate distinctions between the manner

in which these Claimants were treated and other persons they identified in the service. I am

not satisfied that the Commission did not proscribe to the highest standards of good

administration. Although understandably frustrated and disappointed in not being

interviewed or given the chance to be selected as CEO, their disappointment does not rise to

the level of justiciability or unconstitutionality as articulated in their claims.

1The Constitution of the Republic of Trinidad and Tobago Chapter 1.01

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Brief Factual background

7. The Commission caused the advertisement of the vacancy in the office of the CEO (Range 67)

to be placed both internally in the public service and externally through advertisements in

the local newspapers. The Commission no doubt pursuant to section 15 of the Public Service

Commission Regulations (PSC Regulations) has the discretion to do so to expand the scope of

potential candidates to ensure the best person for the job. See Nairob Smart v Director of

Personnel Administration Civ. App. No. S 134 of 2105.

8. The Claimants were all in receipt of the internal advertisement by Circular Memorandum E

4/15 dated 13th April 2015 issued from the DPA to all Permanent Secretaries and Heads of

Department (the Circular Memorandum). The Circular Memorandum in inviting applications

from the relevant ministries or departments set out the minimum requirements for the post

as follows:

“Minimum Experience and Training

Extensive (over 8 years) experience in Local Government Administration and training as

evidenced by a recognized University degree or diploma or by having passed prescribed

examination for entry into the Administrative Class or any equivalent combination of

experience and training.”

9. The deadline date for the applications was set at 12th May, 2015 and were to be addressed

to “The Director of Personnel Administration, Service Commissions Department.”

10. Applicants were invited to access the Notice of Vacancy, the Application Form and the Job

Specification at the Service Commissions Department and on the website at

“www.scd.org.tt”. The website contained details as to: Information/documents to be

submitted; and Applications which are deemed incomplete and unsuitable. The

advertisement made it abundantly clear that “INCOMPLETE AND UNSUITABLE

APPLICATIONS WILL NOT BE ACKNOWLEDGED”. On this basis alone there could be no

expectation nor requirement that the Commission would interview all applicants. Indeed

there must be a process to determine if an application was completed and suitable to be

acknowledged.

http://www.scd.org.tt/

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11. The Claimants claim that they possess the requisite experience and training for the office of

CEO as advertised in this Circular Memorandum in particular Extensive (over 8 years)

experience in Local Government Administration and as such they had a legitimate

expectation that they would have been selected and interviewed for appointment in the

office of CEO.

12. The Claimants, with the exception of Ms. Kofi Chapman, completed and submitted their

applications for CEO on 8th May 2015. Ms. Chapman completed and submitted her application

on 11th May 2015. None of the Claimants2 received any responses to their application but

were informed by other persons that they were contacted by the Commission and invited to

be interviewed for the position of CEO.

13. With respect to the requirement of experience they contend, without submitting any

evidence or rationale, that the required administrative experience is not limited to experience

gained in offices in the Administrative Class of the Civil Service Regulations but apply to other

Classes such as the Professional and Technical Class. They also contend that as at the date of

the Circular Memorandum, they remained senior and more qualified and experienced than

the following officers whose name appear on the OML: Mrs Betty Ramdass-Ali; Mrs. Shivastri

Ramawadh; Mrs. Magdalene Matthew; Mrs. Dianne Lakhan; Ms. Satragie Maharaj; Mrs. Ann

Hosein; Ms. Betty Ann Dial and Mrs. Kathy-Ann Mills-Mark.

14. They contend that they were similarly circumstanced to persons whom the Commission

interviewed and those persons were given an unfair advantage to be appointed to the office

of CEO by virtue of them being interviewed, being placed on the OML and being one step

away from the office of the CEO. This, they contend, is a contravention of the principles of

natural justice as well as a breach of their fundamental rights to protection of the law and

equality of treatment.

15. There were some distinguishing particulars in each of the Claimants’ case.

16. Ms. Kofi Chapman was an officer of the Public Service for the past twelve (12 years assigned

2 Save for Kofi Chapman whom the Commission alleges was issued a letter dated 1st September 2017

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to the Ministry of Rural Development and the Local Government. Her substantive post is

Economist II (Range 53E), however, since 18th October 2016, she has been acting in the office

of CEO in the San Juan/Laventille Regional Corporation.

17. She stated that she held the following positions which qualify as the requisite experience for

the Office of CEO:

(i) Planning Officer II (3rd January 2012-31st January 2012; 2nd July 2012- 20th

September 2013);

(ii) CEO, Princes Town Regional Corporation (5th September 2016- 17th October

2016);

(iii) Director of Municipal Corporations Relations (4th August 2014-31st December

2014; 1st January 2015 - 1st June 2016); and

(iv) Member of the Cabinet Appointed Technical Committee on the Transitioning of

the Ministry tasked with the responsibility of formulating and preparing the Draft

Policy of Local Government Reform (28th October 2015).

18. She also stated that she had a number of educational credentials which qualify as the

requisite training for the office of CEO.3

19. Ms. Janice Nurse’s substantive office is Planning Officer I (Range 46) and she contends that

she has been in the public service for the past twelve (12) years. She was assigned to the

Ministry of Rural Development and Local Government on a temporary basis from 20th March

2006 and was made permanent on 24th April 2008.

20. She contends that she held the following positions which qualify as the requisite experience

for the Office of CEO:

(i) Executive Assistant CAREC (1996-2003);

(ii) Secretary to the Board of Governors, IMA (2004-2006); and

3(Bachelor of Science Degree in Economics (Major), Psychology and Human Resource Management (Minor); Masters

of Science Degree in Project Management (ongoing/incomplete as at the date of application).

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(iii) Secretary in the Human Resource Department at the National Insurance Board

(1982-1995).

21. She too contends that she has educational credentials which qualify as the requisite training

for the office of CEO.4

22. Ms. Valerie Hamlet-Bobcombe is Road Officer II (Range 34G). She has been in the public

service for the past twenty (20) years and is assigned to the Ministry of Rural Development

and Local Government where she has been assigned to the San Juan/Laventille Regional

Corporation effective 26th April 2007.

23. She contends that she held the following offices which form part of the requisite experience:

(i) Road Officer I, Ministry of Rural Development and Local Government (2000-

2004);

(ii) Works Supervisor I, Ministry of Works and Transport (1997-2000); and

(iii) Engineering Assistant, Ministry of Works and Transport (1993-1997).

24. She further contends that she has educational credentials which form part of the requisite

training5.

25. She named the following persons who hold offices in the Technical Class who have been

appointed as CEO within the Ministry of Rural Development and Local Government:

(i) Mr. Jameel Chadee, former Road Officer and Civil Engineer;

(ii) Mr. Rabindranath Gangoo, former Road Officer II and Ag, Country Superintendent

and Project Officer I;

(iii) Mr. Raymond Seepaul, former Country Superintendent; and

4 Bachelor of Science Degree in Sociology (Major) and Human Resource Management (Minor); Administrative

Professional Secretaryship Certificate; Masters of Business Administration.

5 Certificate in Public Administration; Diplomas in Supervisory Management, Civil Engineering and Junior Building

Technician; and Master of Business Administration.

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(iv) Mr. Kenwyn Pantin, former Road Officer and County Superintendent.

26. Mr. Michael Guelmo’s substantive office is Building Inspector I (Range 34) and he has been in

the public service for the past thirty five (35) years. He is assigned to the Ministry of Rural

Development and Local Government where he has been assigned to San Juan/Laventille

Regional Corporation effective 2nd June 2014.

27. He contends that he held the following offices which form part of the requisite experience:

(i) Road Officer I (November 2006-2010);

(ii) Checker;

(iii) Member of Cabinet Appointment sub-committee on the Transitioning of the

Ministry tasked with the responsibility of formulating and preparing the Draft

policy of Local Government Reform (2016).

28. He also contends that he satisfied the requisite training by possessing a Certificate in Public

Administration (2014).

29. In her affidavit in reply6, Ms. O’Brady, the Executive Director, Human Resource Management

the Acting Deputy Director of Personnel Administration explained that in response to the

Circular Memorandum, ninety five (95) persons submitted applications.

Screening and Shortlisting

30. Ms. O’Brady explained that upon receipt of the applications, the DPA screens the applications

in that she checked whether they were submitted on time, duly signed and dated and

endorsed by the Permanent Secretary/HOD where applicable and contained the required

documents as stated on the Service Commissions Department (SCD) website which applicants

are directed to in the Memorandum. If an application did not comply with the requirements

it would not pass the screening stage and the applicant would not be considered for the

shortlisting stage. In the instant case, the Claimants were successfully screened.

31. Subsequent to the screening stage the DPA shortlists the applications for interviews. This

6 Filed 25th June 2018

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process includes checking the supporting documents attached to each application for the

required training and experience as set out in the Circular Memorandum. It seems to me that

it would not make sense to short list an applicant who did not have the requisite supporting

documents or provided information that was irrelevant to the post advertised. So, for

example, an applicant who made an application for the job of Courier clearly ought not to be

shortlisted. On the other end of the spectrum, an applicant who did not supply the

information to qualify for consideration under the minimum requirements ought not to be

shortlisted.

32. The experience and training required for the office of CEO was provided for in the Circular

Memorandum as “Extensive (over 8 years) experience in Local Government Administration

and training as evidenced by a recognized University degree or diploma or having passed the

prescribed examination for entry into the Administrative Class or any equivalent combination

of experience and training.” She contends that the application must satisfy both the

experience and training requirements in order to be eligible for the interview and the

determination of whether an applicant satisfies this is in the discretion of the DPA.

33. She went on to explain that the requirement of eight (8) years experience in Local

Government Administration means that an application must have at least eight (8) years

experience in an office listed in the Administrative Class of offices under Part I of the Schedule

to the Civil Service Regulations in local government. If an applicant does not have the required

eight (8) years of experience, the DPA would look at the Job Specification of that office if

available or the documentation provided by the application to determine whether the

applicant’s experience can be deemed equivalent to eight (8) years’ experience in an office

listed in the Administrative Class. I understand her evidence to suggest that the first

requirement is that the experience must be in the Administrative Class or in administration

in local government. This is apparent from the advertisement itself which seeks to recruit

persons with experience in local government administration. Second, even if the minimum

number of years was not met in that class, an equivalency exercise is conducted to determine

whether the experience gained in the Administrative class is equivalent to eight (8) years

experience.

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34. If an application does not meet the requirement for training (a recognized University

degree/diploma/pass in the prescribed examination) the DPA would look at the applicant’s

resume to determine whether the applicant’s training is equivalent to a recognized University

degree/diploma or a pass in the prescribed examination.

35. She further explained that administrative experience is generally gained through the clerical

duties of increasing complexity and such duties include but are not limited to general

administration, Accounts unit, HR unit, Record and Registry of General Administration/

Corporate Service. It must be understood, however, she explained that clerical and

administrative duties are separate and distinct from Technical/Professional/Secretarial

duties. She contends that the offices in the Corporation fall under the Statutory Authorities

Service Commission (SASC) which utilizes the same job specification issued by the CPO and

are governed by the PSC Regulations.

36. She contends that Ms. Janice Nurse was not shortlisted for the interview because even

though she met the requirements for training, she held the office of Panning Officer I at the

Ministry of Rural Development and Local Government which is not in the Administrative

Class. She explained that the offices listed in the Schedule are not a complete list of offices in

the Civil Service and there are other offices that are not contained in the Schedule. There are

also posts in the Schedule which are not related to local government such as Hospital

Manager I which are listed in the Administrative Class. Therefore, it is an office in the

Administrative Class which is specific to Local Government that would satisfy the required

criteria for experience.

37. Ms. Valarie Hamlet-Bobcombe satisfied the training requirement but her substantive post as

Road Officer II was in the technical class as well as her acting position of Road Officer I so she

did not have the required administrative experience.

38. Mr. Michael Guelmo did not have a degree or a diploma from a recognized University nor did

he indicate in his application that he passed the prescribed examination for entry into the

Administrative Class. Therefore, he did not satisfy the requirements for training. Since he did

not possess the required training, there was no need to peruse his application for experience.

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In any event, he held the substantive office of Road Officer I and acted in the capacity of

Building Inspector I, neither of which are within the Administrative Class.

39. Ms. Kofi Chapman satisfied the training requirement, but did not satisfy the administrative

experience since the office of Economist I and Planning Officer II do not fall within the

Administrative Class. She was informed of same by letter dated 1st September 2017 that she

could not be considered and/or interviewed for the post of CEO because she did not possess

the required experience.

40. Ms. O’Brady was informed that Ms. Chapman was appointed by the Commission to act in the

office of the Director of the Municipal Corporation from 25th April 2016 to 31st April 2016

which would give her experience in Local Government Administration but this experience was

acquired after the closing date for the submission of applications.

41. For the most part in their affidavits in reply7, the Claimants denied that the Director of DPA

has a discretion to determine whether an applicant satisfied the equivalent requirements of

experience and training as outlined in the Circular Memorandum since such determination

lies with the Commission and not the DPA. They also deny that extensive experience in Local

Government Administration must be acquired in an office listed in the Administrative Class

of offices under Part I of the Schedule of the Civil Service Regulations.

42. The difficulty the Claimants face is that without a proper report or evaluation of the nature

of the offices conducted by an expert, it is difficult to assert that any experience they may

have earned in any particular class or job should be considered as “administrative experience

in local government.” Similarly, without this evidence, it is difficult to point to the rationale

of the Commission, the specialist body, to demonstrate that their reasoning is flawed, illogical

or perverse.

Selection and Interview

43. Ms. O’Brady contends that out of ninety five (95) applications, eight (8) were successfully

shortlisted and invited to interviews scheduled for 19th and 20th December 2016. The

7 Filed 9th August 2018

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interviews were conducted by a five (5) member Selection Board. Subsequent to the

interviews, the applications which were received were screened again, except the eight (8)

persons shortlisted for the interviews out of concern that there may have been applicants

who were not shortlisted who ought to have been. Again, the Claimants were not shortlisted.

However, eighteen (18) applicants were shortlisted and invited for interviews. Based on the

results of all the interviews and the scores of each candidate, an OML comprising thirteen

(13) candidates with the highest marks was prepared by the Selection Board.

44. On 7th November 2017 the Commission established the OML for the office of CEP comprising

the top thirteen (13) candidates. From the OML, four (4) persons were appointed on 25th

January 2018.

45. She contends that the Claimants were not similarly circumstanced as Mr. Satragie Maharaj,

Mrs. Magdalene Mathew, Mrs. Shivrastri Ramawadh, Mrs. Dianne Lakhan, Mrs. Kathy-Ann

Mills-Mark, Betty Ramdass-Ali, Betty Dial and Ann-Hosein since these persons would have

satisfied both the training and experience requirement. With respect to the experience

requirement relevant to this dispute, they all either held a position in the Administrative Class

or an administrative office in local government.

Issues

46. The following issues fall for determination:

(a) Whether the Commission unlawfully delegated its powers to the DPA to carry out this

screening process;

(b) Was the application of the listed criteria for the post of CEO irrational or unreasonable;

(c) Did the Commission act unfairly in failing to give the Claimants an opportunity to be

heard;

(d) Were the actions in failing to shortlist the Claimants a breach of their constitutional rights

to equal treatment and protection of the law.

47. In summary my findings are as follows:

(a) The DPA did not usurp the functions of the Commission in carrying out a selection of

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candidates. The Commission lawfully delegated the administrative task of shortlisting

candidates for consideration of the Commission to the DPA.

(b) In any event, the Commission through the Selection Board considered the applications of

the Claimants and found them not to have the requisite experience to be shortlisted to

be interviewed.

(c) The Commission’s interpretation of the minimum experience and training is not irrational.

They have selected as the important area of experience the administrative class in local

administration of the public service. Once a candidate has such experience of a minimum

of eight (8) years together with the requisite training, the candidate would be shortlisted

for consideration. However, if the experience in such Administrative Class was less than

eight (8) years due allowance was given for the nature of his duties performed as well as

the nature of his academic qualifications. Reference to the CPO guidelines to assist in

interpreting the minimum experience and training criteria was not absurd, illogical or

irrational. In any event, no equivalency exercise was appropriate for these Claimants as

they simply did not hold a post within the Administrative Class of the public service.

(d) For these reasons, there was no breach of the right to the protection of the law.

(e) The discrimination claim must fail as there were no true comparators identified by the

Claimants and if so, there was an acceptable justification by the Commission for treating

the Claimants differently.

The role of the Commission and the authority of the DPA to shortlist candidates

48. The Claimants argued that the selection process must only be done by the Commission and

not the DPA. Further, in recruiting the DPA to select candidates, the Commission was in

breach of Regulation 16 of the PSC Regulations.

49. The argument is flawed simply on the basis that the DPA did not engage in a selection process

in relation to the Claimants. She conducted a purely administrative exercise of determining

whether the Claimants’ applications were suitably compliant with the advertised criteria for

consideration by the Commission itself or the Selection Board. Additionally and in any event,

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the Selection Board also considered their applications and found them to have been non-

compliant with the advertised criteria.

50. It is accepted that the Commission is the only body vested with the constitutional power

pursuant to section 121(1) of the Constitution to appoint on promotion, to appoint, to act,

transfer, remove and exercise disciplinary control:

“121. (1) Subject to the provisions of this Constitution, power to appoint persons to hold

or act in offices to which this section applies, including power to make appointments on

promotion and transfer and to confirm appointments, and to remove and exercise

disciplinary control over persons holding or acting in such offices and to enforce standards

of conduct on such officers shall vest in the Public Service Commission.”

51. By virtue of section 129 of the Constitution, the Commission can regulate its own procedures

through the use of Regulations or otherwise:

“129. (1) Subject to subsection (3), a Service Commission may, with the consent of the

Prime Minister, by regulation or otherwise regulate its own procedure, including the

procedure for consultation with persons with whom it is required by this Constitution to

consult, and confer powers and impose duties on any public officer or, in the case of the

holder of an office referred to in section 111(2), a Judge or on any authority of the

Government, for the purpose of the discharge of its functions.”

52. The PSC Regulations were adopted pursuant to section 129(1) of the Constitution.

Specifically, in relation to the filling of vacancies the relevant regulations provide as follows:

“13. (1) As soon as it is known that a vacancy will occur the Permanent Secretary or Head

of Department shall communicate to the Director in writing and shall make his

recommendations regarding the filling of the vacancy.

(2) Where a vacancy exists for more than three months and no request has been made

by the Permanent Secretary or Head of Department for the filling of the vacant post, the

Director shall send to each Permanent Secretary or Head of Department a statement of

existing vacancies in his Ministry or Department requesting early recommendations for

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filling vacancies.

(3) If recommendations, or satisfactory explanations for a lack thereof, are not received

within a month, the Director shall report the fact to the Commission and the Commission

shall require the Permanent Secretary or Head of Department to inform it of the reasons

for failure to request the filling of the vacancy.

(4) The Director shall, from time to time by circular memorandum or by publication in the

Gazette, give notice of vacancies which exist in the particular service and any officer may

make application for appointment to any such vacancy. Such application shall be

forwarded through the appropriate Permanent Secretary or Head of Department to the

Director, but the failure to apply shall not prejudice the consideration of the claims of all

eligible public officers.

(5) Notwithstanding subregulation (4), a Permanent Secretary or Head of Department

may with the consent of the Public Service Commission and in consultation with the

Director of Personnel Administration by—

(a) circular memorandum; and

(b) publication in the Gazette,

give notice of vacancies which exist in offices specific to the particular Ministry or

Department to which any eligible officer may apply.

(6) An application to fill a vacancy as advertised pursuant to subregulation (5) shall be

made directly to the Permanent Secretary or Head of Department.

(7) The failure of an eligible officer to apply for a vacancy as advertised pursuant to

subregulation (5) shall not prejudice the Commission’s consideration of the claims by that

officer.

14. Whenever in the opinion of the Commission it is possible to do so and it is in the best

interest of the particular service within the public service, appointments shall be made

from within the particular service by competition, subject to any Regulations limiting the

number of appointments that may be made to any specified office in the particular

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service.

15. Where the Commission considers either that there is no suitable candidate already in

the particular service available for the filling of any vacancy or that having regard to

qualifications, experience and merit, it would be advantageous and in the best interest of

the particular service that the services of a person not already in that service be secured,

the Commission may authorise the advertisement of such vacancy.

16. (1) The Commission may from time to time appoint one or more Selection Boards to

assist in the selection of candidates for appointment to the public service and the

composition of any such Board and the form in which its reports are to be submitted shall

be in the discretion of the Commission.

(2) On consideration of any report of a Selection Board, the Commission may, in its

discretion, summon for interview any of the candidates recommended by such Board.

(3) Where a Permanent Secretary or Head of Department has issued a notice of vacancy

pursuant to regulation 13(5), that Permanent Secretary or Head of Department shall

appoint a Selection Board to assist in the selection of a candidate for appointment to the

vacancy.

(4) The Selection Board appointed under subregulation (3) shall include the Director or

his representative and shall be constituted in accordance with guidelines issued by the

Public Service Commission.

(5) A Selection Board appointed under subregulation (3) shall follow the procedures

outlined by the Public Service Commission in “Guidelines for the selection of candidates”

issued from time to time.

(6) The report of a Selection Board appointed under subregulation (3) shall be submitted

to the Public Service Commission for consideration and the Commission may in its

discretion summon for interview any of the candidates recommended by that Selection

Board.

18. (1) In considering the eligibility of officers for promotion, the Commission shall take

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into account the seniority, experience, educational qualifications, merit and ability,

together with relative efficiency of such officers, and in the event of an equality of

efficiency of two or more officers, shall give consideration to the relative seniority of the

officers available for promotion to the vacancy.

(2) The Commission, in considering the eligibility of officers under subregulation (1) for an

appointment on promotion, shall attach greater weight to—

(a) seniority, where promotion is to an office that involves work of a routine

nature, or

(b) merit and ability, where promotion is to an office that involves work of

progressively greater and higher responsibility and initiative than is required for

an office specified in paragraph (a).

(3) In the performance of its functions under subregulations (1) and (2), the Commission

shall take into account as respects each officer—

(a) his general fitness;

(b) the position of his name on the seniority list;

(c) any special qualifications;

(d) any special courses of training that he may have undergone (whether at the

expense of Government or otherwise);

(e) the evaluation of his overall performance as reflected in annual staff reports

by any Permanent Secretary, Head of Department or other senior officer under

whom the officer worked during his service;

(f) any letters of commendation or special reports in respect of any special work

done by the officer;

(g) the duties of which he has had knowledge;

(h) the duties of the office for which he is a candidate;

(i) any specific recommendation of the Permanent Secretary for filling the

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particular office;

(j) any previous employment of his in the public service, or otherwise;

(k) any special reports for which the Commission may call;

(l) his devotion to duty.

(4) In addition to the requirements prescribed in subregulations (1), (2) and (3), the

Commission shall consider any specifications that may be required from time to time for

appointment to the particular office.”

53. It is clear from the PSC Regulations that the DPA plays an integral role in the process of

recruitment. The SCD is the secretariat to all Service Commissions under the Constitution

including the Commission. Under section 129 of the Constitution, the SCD and by extension

the DPA is vested with the power to provide administrative support services and advise the

PSC in the exercise of its functions including those of appointments, promotions, transfers as

well as the power to remove and exercise disciplinary control over officers. However, the role

of the DPA in the appointment process is restricted to administrative assistance. The exercise

of a discretion is reserved only for the Commission. It is also clear that the DPA was very clear

that it was the Commission which reserves the power to make appointments. In so far as she

played a role in this recruitment process she outlined her administrative role in screening and

shortlisting candidates to be interviewed by the Commission which precedes the decision to

appoint or not to appoint persons to the vacancy.

54. Certainly, Regulation 16 gives the Commission a broad discretion to appoint a Selection Board

from time to time. This was the Commission providing by regulation a method of selection.

However, section 129 of the Constitution also preserves unto the Commission the power to

regulate its own procedure “otherwise” than by regulation and conferring powers and

imposing duties on any public officer. There was nothing sinister nor suspicious in conferring

a power on the DPA to provide the administrative assistance she rendered in this case.

Indeed, several cases have acknowledged the high workload of the Commission and the

impracticality of requiring the Commission itself to accomplish many of the necessary but

ordinary tasks associated with recruitment. See Harridath Maharaj v Public Service

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Commission CV2007-01093, Robert Ramsahai v Teaching Service Commission [2011] UKPC

26 and Ashford Sankar and ors v Public Service Commission [2011] UKPC 27. In this case, it

was a sifting exercise to “check the papers” and determine if the applicants “pre-qualify”

based on the information they provided. If there were certificates missing they cannot be

shortlisted. If they provided the wrong information they cannot be shortlisted. If, as in this

case, they simply do not fall within the class of persons recognised by the Commission as

having the required experience as advertised they cannot be shortlisted.

55. By analogy in Ashford Sankar and others v The Public Service Commission [2011] UKPC 27

the Judicial Committee of the Privy Council held that the outsourcing of the examination to

Assessment Centre Exercise (ACE) was a legitimate tool to shortlist candidates. The

shortlisting was done using an ACE through the Public Service Commission of Canada. The

methodology of the ACE was challenged. There was an agreement between the Ministry of

Public Administration and Information and the United Nations Development Program (UNDP)

regarding the provision of project management services to improve, inter alia, efficiency and

new mechanisms for career management. The UNDP engaged the services of the Canadian

Public Service Commission to design an ACE for the selection of Candidates for Deputy

Permanent Secretary after the Commission agreed to use the Canadian Public Service

Commission as consultants for the ACE. The Court found that there was no breach of the

regulations.

56. In any event, it could not logically be expected that the Commission would sift all the

applications and some administrative support would be required. See Cooper & Anor v.

Director of Personnel Administration & Anor [2006] UKPC 37.

57. Further in De Smith’s Judicial Review, Sixth Edition, the learned authors observed:

“5-138 It is a well-known principle of law that when a power has been conferred to a

person in circumstances indicating that trust is being placed in his individual judgment

and discretion, he must exercise that power personally unless he has been expressly

empowered to delegate it to another….

5-139…. The principle does not amount to a rule that knows no exception; it is a rule of

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construction which makes the presumption that “a discretion conferred by statute is

prima facie intended to be exercised by the authority on which the statute has conferred

it and by no other authority, but this presumption may be rebutted by any contrary

indications, found in the language, scope or object of the statute.”

58. The mischief of the presumption against sub-delegation is the loss by the delegate of the

power to decide, conferred on it by the enabling power. In Judicial Review Handbook 6th

Edition by Michael Fordham QC, the learned author observed at paragraph 50.3:

“There are sound practical reasons for a degree of shared or transferred responsibility,

for example between a Minister and department officials. However, a public body may

not “give away” its key functions to another body or delegate impermissibly to its own

officials or committees. What is permissible depends on any statutory scheme, the

arrangements made, the relevant function and the particular context.”

59. There have been several authorities which confirm the principle that where a statute does

not prescribe the manner in which a public body is to carry out their duties, the public

authority is given a broad discretion as to the manner in which to carry out such duty. In R v

Secretary of State for the Home Department ex p Doody [1994] 1 AC 531 Lord Keith of Kinkle

observed at 548:

“Unless Parliament has indicated that the Secretary of State must make a particular

decision personally, it is a matter for him to arrange the business of his department.”

60. Further, Lord Mustill commented at 560-561:

“..the respondents acknowledge that it is not enough for them to persuade the court that

some procedure other than the one adopted by the decision-maker would be better or

more fair. Rather, they must show that the procedure is actually unfair. The court must

constantly bear in mind that it is to the decision maker, not the court, that Parliament has

entrusted not only the making of the decision but also the choice as to how the decision

is made.”

61. Where the statute is silent as to the manner in which a public authority is to conduct the duty,

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Lord Diplock observed in Bushell v Secretary of State for the Environment [1981] AC 75:

“Where rules regulating the procedure to be followed at a local inquiry held pursuant to

a particular statutory provision have been made by the Lord Chancellor under section 11

of the Tribunals and Inquiries Act 1971, the minister and the inspector appointed to hold

the inquiry must observe those rules; but no such rules were applicable in the instant case

- they had not yet been made. The Highways Act 1959 being itself silent as to the

procedure to be followed at the inquiry, that procedure, within such limits as are

necessarily imposed by its qualifying for the description "local inquiry," must necessarily

be left to the discretion of the minister or the inspector appointed by him to hold the

inquiry on his behalf, or partly to one and partly to the other. In exercising that discretion,

as in exercising any other administrative function, they owe a constitutional duty to

perform it fairly and honestly and to the best of their ability…”8

62. Bridges v R 1952 CanLII 9 (SCC) highlight that in determining Parliament’s intention, it may

be necessary to distinguish between obligations that are purely administrative and those

which discretion or personal performance is necessary. In Bridges, it was submitted that there

was an unauthorized delegation of the City Clerk of the Council’s discretionary right to decide

which groups of person shall be issued “extension permits.” All of the requirements for

issuing the permits were outlined in the relevant statutory bye laws. The statutory bye laws

had provided the conditions for issuing permits and therefore the Court found that the

Council had not substituted the clerk’s judgment and discretion for its own. The clerk’s duties

were administrative only and the delegation was not unlawful.

63. Famously, the Carltona Principle in Carltona Limited v Commissioner of Works [1943] 2 All

ER 560 (CA) where Lord Greene observed at 563:

“In the administration of government in this country the functions which are given to

ministers (and constitutionally properly given to ministers because they are

constitutionally responsible) are functions so multifarious that no minister could ever

personally attend to them…..The duties imposed upon ministers and the powers given to

8 Bushell v Secretary of State for the Environment [1981] AC 75 at 94-95

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ministers are normally exercised under the authority of the ministers by responsible

officials of the department. Public business could not be carried on if that were not the

case. Constitutionally, the decision of such an official is, of course, the decision of the

minister.”

64. In R v Secretary of State for the Home Department ex pa Oladehinde [1991] AC 254, Lord

Griffiths noted at paragraph 300:

“It is obvious that the Secretary of State cannot personally take every decision…The

decision must be taken by a person of suitable seniority in the Home Office for whom the

Home Secretary accepts responsibility. This devolution of responsibility was recognised

as a practical necessity in the administration of government by the Court of Appeal

in Carltona Ltd. v. Commissioners of Works[1943] 2 All E.R. 560 and has come to be known

as the Carltona principle.”

65. The DPA was further assisted in this screening exercise by a Circular Memorandum under

“experience and training requirements”, and where equivalency is concerned and applied, by

the guidelines handed down by the CPO and by the job descriptions of the positions held in

the past by applicants.

66. The DPA’s exercise of power in this instance does not therefore constitute an invalid power

nor one which usurped the prime constitutional functions vested in the Service Commission

to appoint officers.

67. Further, there is no evidence of irregularity made by the Claimants that the DPA was not

authorized to conduct the first shortlist and in the absence of rebutting evidence, there is the

presumption of regularity in the acts and conduct of officials. See Mohanlal Bhagwandeen v

The Attorney General of Trinidad and Tobago No. 45 of 2003.

68. The DPA was not conducting any assessment nor weighing exercise in relation to these

Defendants. It was not even appropriate to conduct any equivalency exercise as the Claimants

simply did not meet the advertised criteria of having the experience in the Administrative

Class. In any event, the Claimants were further screened by the Selection Board.

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69. The Claimants can only succeed on this challenge by showing either (a) that they did fall

within an administrative class of the Second Schedule of the Civil Service Regulations in the

Civil Service Act Chap 23:01 in local government (b) that utilising such an approach or

requiring experience in an office listed in the Administration Class or Administration in local

government is unreasonable and (c) that in any event they were treated unfairly when

compared to other persons who were not in an administrative class yet were shortlisted for

interviews. None of these submissions are sustainable.

The advertised criteria

70. It is important at this stage to examine the advertised criteria that is material to this public

law challenge. The Commission was on the search for a candidate for the office of CEO whose

duties have been set out in the materials. It is an administrative post. The advertisement was

open to the widest pool of applicants both internally and externally. There are two sets of

criteria that must be fulfilled (a) experience and (b) training. There is no dispute that the

Claimants satisfied the training requirements. With respect to the requirement of experience

the application must on its face reveal “extensive (over 8 years experience) in Local

Government Administration”. Without this no applicant can remotely expect to have any

chance of being considered. The only issue in this case is what is reasonably to be considered

as experience in “Local Government Administration”. The Commission had stipulated that the

search was focused in experience in an office listed in the Administrative Class or in

administration in local government. If your application did not contain evidence of this, the

candidate cannot be interviewed. It indeed would be a waste of the Commission’s resources

to do so and it would be unfair to other applicants who have met the listed criteria. The real

issue is whether the approach to determining the experience required by the Commission

was irrational or unreasonable.

A reasonable criteria

71. It is patent that this Court is not being asked to substitute its own view as to what should be

the criteria for determining administrative experience in local government. Not only is that

not the function of judicial review, this Court is ill equipped to do so either in principle or on

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the evidence before it.

72. Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER

935 (CCSU) famously fashioned the tripartite grounds of review conveniently under the tags

of irrationality, illegality and procedural propriety. On the question of irrationality, a short

hand expression of Wednesbury unreasonableness, he was quick to acknowledge that the

concept was a sliding scale but that experienced Judges would be well equipped to recognise

whether a decision was unreasonable so that it defies logic or is absurd.

73. In Primanth Geelal and Rupnarine Geelal v The Chairman, Aldermen, Councillors And

Electors Of The Region Of San Juan/Laventille CV2017-04558, I recently set out the general

principles of judicial review to guide the Court on the irrationality/illegality/proportionality

challenge:

“71. Judicial review is the mechanism by which the Courts fulfil the rule of law by

preventing arbitrary, unwarranted and unlawful actions of the executive and public

bodies. The principles governing judicial review seek to address the tension between

judicial vigilance and judicial restraint to arrive at the right balance of legitimate

administrative action. See Kangaloo JA in Steve Ferguson v The Attorney General of

Trinidad and Tobago C.A. CIV 207/2010.35

72. Judicial review actions ought not to be viewed by this Defendant as an attack or an

action against it but rather an examination of its decision and where appropriate be seen

as an opportunity to improve the quality of the decision making process. See Re Waldron

1986 QB 824.

73. The Court in an application for judicial review will not substitute its views for that of

the administrator nor conduct an “appeal” of its decision. Its focus is on the process by

which administrative decisions are made. See Fordham, Judicial Review Handbook, 6th

Edition para 2.1.3 and R v Panel on take overs and mergers ex parte Datafin PLC and

another [1987] QB 815.

74. Decisions of a public body will be unlawful if it is irrational, illegal or procedurally

improper. The test of “Wednesbury unreasonableness” is whether the decision could

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have been reached by a decision maker acting reasonably or whether it was within the

range of reasonable decisions open to the decision maker. A deferential approach to an

authority in not conducting merit based reviews preserves the doctrine of separation of

powers. However, there are cases which warrant a greater intensity of review such as

where property and human rights are involved. In such cases, the demands of

accountability, transparency, rationality and fairness all call for anxious scrutiny of the

merits of the decision. To this end, the Court have developed an issue sensitive approach

to the question of the reasonableness test. See Council of Civil Service Unions v Minister

for the Civil Service [1984] 3 All ER 935, R v Secretary of State for the Home Department

[2003] EWCA Civ 364.

75. In appropriate cases therefore the traditional Wednesbury unreasonableness37 test

gives way to a hard edged review or to a test of proportionality. Wednesbury is not to be

regarded as a monolithic concept. It is a mutable standard of review; “it is no Procrustean

bed”. There are now various standards of the Wednesbury ground of review. The graver

the impact of the decision on the individual affected by it, the more substantial the

justification that will be required of the decision maker and the discretionary area of

judgment of the decision-maker is smaller; the standard of review of the Court is

stricter…..

77. An administrator or executive authority entrusted with the exercise of a discretion

must direct itself properly in law. A public body cannot choose to deploy powers it enjoys

under statute in so draconian a fashion that the hardship suffered by the affected

individual in consequence will justify the Court in condemning the exercise as irrational

and perverse. See Kennedy v Information Comr (SC(E)).

78. A public body must act conscientiously, fairly and not so unfairly as to abuse it powers.

Fairness will often require that a person who may be adversely affected by the decision

will have an opportunity to make representations on his own behalf either before the

decision is taken with a view to procuring a favourable result or after it is taken with a

view to procuring its modification or both. R v Secretary of State for the Home

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Department ex p Doody [1994] 1 AC 531 and Lloyd v McMahon [1987] AC 625.”9

74. Since CCSU, Judges have grappled with the concept of irrationality or Wednesbury

unreasonableness to the extent that the concept has been refined to several strands of

varying degrees of rationality or irrationality prompting some judicial calls for the recognition

of a separate ground of “proportionality”. I had explained that the uncertainty with the exact

parameters of the ground of unreasonableness reveals the underlying tension between

adopting a deferential approach to the exercise of administrative power and anxious scrutiny.

75. In R v Secretary of State for the Home Department ex p Brind [1990] 1 All ER 469 it was

9See also TOSL Engineering Ltd v Minister of Labour and Small Micro Enterprise Development CV2013-02501 this Court observed at paragraph 19:

“19. The traditional heads of reasonableness and irrationality are viewed as sufficient to advance the purpose of judicial review without engaging in a merit based review. However, there will be cases where the judicial review court must force the issue and adopt a more robust review of a decision which resembles a reconsideration of the merits. Such a hard edged review has been recognised especially in cases where breaches of the Constitution may arise. In T Mobile (UK) Ltd v Office of Communications [2009] Bus. L.R. 794: “Traditionally those limits indeed confined the courts to considering things like procedural unfairness or Wednesbury unreasonableness (Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223)—various forms of error of law. Judicial review did not allow an attack purely on the merits of the impugned decision. And that is still broadly so, as the cases cited by Lord Pannick demonstrate. He took us to R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 and R (SB) v Governors of Denbigh High School [2007] 1 AC 100. Both were concerned with the impact of the European Convention for the Protection of Human Rights and Fundamental Freedoms in judicial review cases. It is sufficient for present purposes to go to what Lord Bingham of Cornhill said in the latter case, at para 30:

“Secondly, it is clear that the court's approach to an issue of proportionality under the Convention must go beyond that traditionally adopted to judicial review in a domestic setting. The inadequacy of that approach was exposed in Smith and Grady v United Kingdom (1999) 29 EHRR 493, para 138, and the new approach required under the 1998 Act was described by Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, paras 25–28, in terms which have never to my knowledge been questioned. There is no shift to a merits review, but the intensity of review is greater than was previously appropriate, and greater even than the heightened scrutiny test adopted by the Court of Appeal in R v Ministry of Defence, Ex p Smith [1996] QB 517, 554. In the context of human rights, Miss Rose showed us cases where it was held that it was necessary to go into the merits on a judicial review application. Thus in R (Wilkinson) v Broadmoor Special Hospital Page 11 of 41 Authority [2002] 1 WLR 419, this was held necessary in the context of a case concerning the human rights of a compulsorily detained convicted mental patient. The issue was whether the patient was mentally capable or not to consent to a treatment regime. The court held that this issue could be investigated in judicial review proceedings, even, if necessary, by the calling of medical witnesses in those very proceedings.””

Brooke LJ referred to the availability of a “full merits review”: “Super Wednesbury is not enough. The Claimant is entitled to a proper hearing on the merits of whether the statutory grounds for imposing this treatment upon him against his will are made out.”

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observed:

“Proportionality

In Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935 at 950,

[1985] AC 375 at 410 Lord Diplock classified under three heads the grounds on which

administrative action was subject to judicial control. These were illegality, irrationality

and procedural impropriety. However, he added:

That is not to say that further development on a case by case basis may not in

course of time add further grounds. I have in mind particularly the possible

adoption in the future of the principle of "proportionality" which is recognised in

the administrative law of several of our fellow members of the European

Economic community ... '

Even at that time, the principle that administrative action could be quashed if it was

disproportionate to the mischief at which it was aimed had been accepted by the courts,

albeit not as a classified ground for judicial review: see R v Barnsley Metropolitan BC, ex

p Hook [1976] 3 All ER 452 at 456, 461, [1976] 1 WLR 1052 at 1057, 1063. Encouraged by

Lord Diplock's speech, the concept surfaced again in R v Secretary of State for Transport,

ex p Pegasus Holidays (London) Ltd [1989] 2 All ER 481 at 490, [1988] 1 WLR 990 at 1001,

where Schiemann J accepted a submission that it was but an aspect of irrationality and

asked himself the question: 'Is there here such [Wednesbury] total lack of proportionality

or lack of reasonableness?' (see Associated Provincial Picture Houses Ltd v Wednesbury

Corp [1947] 2 All ER 680, [1948] 1 KB 223). It also made a fleeting appearance in R v Brent

London BC, ex p Assegai (1987) Times, June 18, where Woolf LJ, with the agreement of

McCullough J, sitting as a Divisional Court, said that the council's action was--

'wholly out of proportion to what Dr Assegai had done. Where the response is out

of proportion with the cause to this extent, this provides a very clear indication or

unreasonableness in a Wednesbury sense.'

In the instant case the Divisional Court held that ground 2 (proportionality) and ground 3

(Wednesbury unreasonableness) were identical. Watkins LJ continued:

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'The contention arising from them is that the principle of proportionality in the

law of the United Kingdom being one test or tool to be used in resolving the

question, was the decision under consideration unreasonable in the sense that

the decision was one which no reasonable minister properly directing himself as

to the law could have taken? Applying that test, if, for example, a sledge hammer

is taken to crack a nut when there are a pair of efficient nut crackers readily

available, that is a powerful indication that the decision to use the sledge hammer

was absurd, unreasonable. Our response to that is, in our view, that the law of the

United Kingdom has not developed so that a decision, which is neither perverse

nor absurd and which is one which a reasonable minister properly taking into

account the relevant law could take, becomes unlawful simply because it can be

shown that it was not in proportion to the benefit to be obtained or the mischief

to be avoided by the taking of the decision. In our opinion the application of such

a concept of proportionality would result in the courts substituting their own

decisions for that of the minister, and that is something which the courts of this

country have consistently declined to do. The courts will not arrogate to

themselves executive or administrative decisions which should be taken by

executive or administrative bodies.'”10

76. In Geelal delivered today11 I re-examined the question of Wednesbury unreasonableness

challenges and their synergy with proportionality. I opined that there may come a time when

full discussion would be needed to adopt proportionality as a more appropriate test to gauge

whether administrative decisions can pass public law muster and can ensure accountability,

transparency and honesty in public administration.

77. I also commented in TOSL at paragraph 24:

“24. What then should be the approach? There is no reason to depart from the salutary

role of the judicial review court as being a court exercising supervisory jurisdiction. It will

10 R v Secretary of State for the Home Department ex p Brind [1990] 1 All ER 469 at 479-480 11 Primanth Geelal and Rupnarine Geelal v The Chairman, Aldermen, Councillors And Electors Of The Region Of San Juan/Laventille CV2017-04558

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be wrong in the absence of a statutory requirement to do so for the judicial review court

to rise to the status of an appellate court. It is also wrong in principle if there is meaning

to the separation of powers. In this context, a degree of deference must be given to the

decision of public officers and bodies engaged in specialised areas of expertise. This does

not jettison the foundational principles of rationality, procedural impropriety and legality.

However in cases where human rights are concerned the Court must be more robust and

demanding of the decision maker. This is not such a case. I agree therefore in this context

with the submissions of the Minister that deference should be paid to the special

knowledge of the Minister of good industrial relations practice. Deference however is no

synonym for reverence and where the decision cannot pass judicial review muster on

grounds of irrationality or proportionality it would be struck down. The context of the

decision paving the way for more robust review where necessary.”

78. There are several reasons why the Claimants’ reasonableness challenge fails in this case: the

Commission is well equipped to make the determination as to what criteria is suitable for the

advertised post; there is no competing rational which would demonstrate that the

Commission’s logic defies comprehension or is absurd, even if one applies a proportionality

test.

79. The Claimants themselves have not advanced any evidence other than their own testimony

to demonstrate that the choice by the Commission of the criteria of examining experience in

the administrative class is logically flawed or absurd. The post of CEO carried administrative

duties. The advertisement itself spoke to training requirements with respect to

Administrative Class. The Commission was selecting persons from the widest pool possible

both inside and outside of the public service. The administrative experience considered with

posts in Local Government on its face is reasonable in determining administrative experience.

How is this logic flawed? The Claimants only argument is not that this logic is flawed but that

simply they were better than those who were short listed. Such an argument simply does not

raise a Wednesbury unreasonableness challenge.

80. Even if a proportionality test is applied to the decision making process, the Commission will

not be found wanting. There was a legitimate object pursued in selecting the criteria. The

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DPA set out objectively her reasons for choosing the criteria. There was no issue of

disadvantage to any other class of persons save for the natural consequence of selection by

open competition where the rules are the same for all candidates.

81. On this aspect the Claimants submit that the screening process is flawed in that the

Commission failed to take into account the suitability criteria set out Regulation 18 when it

decided to shortlist the Claimants. This argument is misconceived. Regulation 18 sets out the

principles for selection for promotion and where several persons are vying for promotion to

a particular post, the appointment must be based on considerations such as seniority, merit

and ability together with relative efficiency. However, in this case, the issue is a fresh

appointment advertised to the public at large and therefore such considerations do not arise

in the same way as they would for a “promotion case”. Once Regulation 15 is engaged, it

renders Regulation 18 inapplicable.

82. In Nairob Smart and others v DPA and JLSC CV2014-00038, Jones J made the following

observations on Regulations 15 and 18 at paragraphs 24, 25, 30, 38:

“24. The clear purpose of regulation 15 is to attract persons from outside the Service in

circumstances where the Commission considers that either (a) there is no suitable

candidate in the Service or (b) having regard to qualifications, experience and merit, it

would be advantageous and in the best interest of the Service to secure the services of a

person not in the Service. In either circumstance the Commission must advertise such

vacancy. By this regulation the Commission therefore once it considers that either (a) or

(b) is applicable can in fact by pass the requirements of both regulations 14 and 18 in that

it can go outside the Service to make the appointment but it must advertise.

25. Regulation 18 deals specifically with the eligibility of officers for appointment on

promotion. ‘Promotion’ is defined by the Regulations “as the appointment of an officer

to an office in a grade carrying a higher remuneration whether such office be in the same

Ministry or Department or not”. The regulation sets out the criteria to be taken into

account by the Commission when considering eligibility of officers within the service for

promotion. It deals with the suitability of officers available for promotion; what criteria is

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to be used in this regard and the manner of preferring one over the other. It does no more

than require the Commission when dealing with such suitability to have regard to certain

benchmarks. The regulation does not determine who is entitled to be promoted. It merely

provides a guide to the Commission as to the criteria to be used when considering

promotions.

30. Similarly regulation 15 applies when regulation 14 and 18 does not. Its purpose is to

attract persons outside of the Service. The regulation applies when the Commission

considers that either (a) there is no suitable candidate in the Service or (b) having regard

to qualifications, experience and merit, it would be advantageous and in the best interest

of the Service to secure the services of a person not in the Service. Indeed it would seem

to me that the purpose of regulation 15 is to get the best candidate for the job.

38. By the Regulations the fact that the Commission considered that having regard to

qualifications, experience and merit it would be advantageous and in the best interest of

the Service to secure the services of a person not already in the Service only permitted

the Commission to advertise the post. The Commission was required to consider all the

candidates for the post including those in the Service who responded to the

advertisement. And in doing so was required to consider the candidates fairly and treat

each by the same benchmarks. In the circumstances the Commission could not apply

regulation 18 considerations to the persons within the Service to the exclusion of the

other candidates.”

83. By this authority the following propositions are sufficient answers to the Claimants’ concerns:

(a) the recruitment process was conducted pursuant to Regulation 15 (b) its purpose is to

attract the widest pool of persons (c) Regulation 15 is entirely delinked from Regulation 18

(d) it would be patently unfair to apply the considerations of Regulation 18 to one class of

applicants and not to do the same for other applicants who are applying from outside of the

public service (d) the presumption that the Commission has acted in the best interest of the

public service without any particular interest to serve is an extremely strong one.

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Natural Justice

84. Fairness has many faces. What is fair is contextual. See Rees v Crane [1994] 2 AC 173. See

Roy Thompson and Lennox Clarke v The Public Service Commission CV2016-01437 per

Donaldson-Honeywell:

“55. In the case of Barnett v Commissioner of Police, the court considered a situation

where the Commissioner of Police made the decision to promote officers who ranked

below the Claimants on the Order of Merit list. The court determined that this was within

the Commissioner’s powers but that there had been an established practice of making

promotions in accordance with such list and the Claimants were justified in conceiving a

legitimate expectation of such continued practice. On this basis the judge determined:

“17. …However, in so far as the claimants held a legitimate expectation, fairness

required that they be afforded an opportunity to be heard before action was taken

against their expectations.”

56. This view is supported by Denning MR in the case of Breen v Amalgamated

Engineering Union. At p. 1154 he stated:

“It all depends on what is fair in the circumstances. If a man seeks a privilege to

which he has no particular claim—such as an appointment to some post or other—

then he can be turned away without a word. He need not be heard. No explanation

need be given”.

57. This can be contrasted with the present case where such an established practice has

been determined not to have existed, and even if it had, the Commission did not act

unfairly in not continuing such practice. It follows therefore that there could be no real

unfairness in not hearing the Claimants before the decision was made. Therefore, the

Claimants’ claim under this head must also fail.”12

85. In this case, the Claimants could not have had an opportunity to be heard as the process had

not passed beyond the administrative stage of determining whether the application was

12 Roy Thompson and Lennox Clarke v The Public Service Commission CV2016-01437 paragraphs 55-57

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suitable. The advertisement itself clearly stated that unsuitable applications would not be

acknowledged. In such an instance if an applicant is not contacted it is presumed that the

application was deemed unsuitable or incomplete without more.

86. The judicial review challenges therefore all fail. The interpretive criteria was rational, the

Commission acted lawfully and fairly.

The Constitutional Law Challenges: Protection of the Law

87. It stands to reason from the analysis of the evidence above that the Claimants cannot contend

that they were denied the protection of the law. They were not entitled to reasons nor could

there be any legitimate expectation to any in circumstances where their applications were

deemed insufficient.

Equality of Treatment

88. The Claimants have pointed to several officers and contended that they were short listed and

there is no reason why they are to be treated differently from those officers. The Claimants

contend that employees such as Ms. Satragie Maharaj fall under the jurisdiction of the

Statutory Authorities Service Commission and not the Commission. They contend that the

Commission took into consideration the experience gained by Ms. Maharaj in the office of

the Assistant Executive Officer from June 2015 to January 2016 but did not take into

consideration the experience he gained as acting CEO and Director of the Municipal

Corporation after 2015.

89. They contend that none of the offices held by Ms. Betty Ramdass-Ali falls within Commission

and none of them fall under the Administrative Class. They also contend that it is not true

that Ms. Magdalene Matthew held several offices in the Administrative Class and that Ms.

Dianne Lakhan held several offices in the Administrative Staff.

90. They contend that none of the offices listed which Ms. Betty Ann Dial held fell within the

Administrative Class. It is also not true that Ms. Shivastri Ramawadh, Ms. Kathy Ann Mills-

Mark and Ms. Ann Hosein even held office which falls under the administrative class. They

further contend that they were similarly circumstanced at these officers in that they were all

certified at tertiary level, they never held an office in the Administrative Class and they have

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served for long periods under the jurisdiction of the Commission or the SASC.

91. The DPA however has explained fully why there is in fact a world of difference between the

Claimants and those officers:

92. Satragie Maharaj held the following offices: Acting Administrative Assistant, Port of Spain City

Corporation (October 2008 to January 2010); Acting Administrative Officer II, Port of Spain

City Corporation (February 2010 to March 2010); Acting Human Resource Officer, Port of

Spain City Corporation (March 2010-July 2010), Acting Marketing Administrator, Port of Spain

City Corporation (July 2010 to July 2014); Acting Clerk IV Port of Spain City Corporation (July

2014 to June 2015) and Assistant Executive Officer Port of Spain City Corporation (June 2015

to January 2016). Having held several offices in the Port of Spain City Corporation he had

extensive administrative experience in the field of local government.

93. Betty Ramdass-Ali held the following offices: Acting Clerk III Port of Spain City Corporation

(2004 to 2006); Acting Accounting Assistant, Port of Spain City Corporation (2006 to 2009);

Acting Administrative Assistant, Port of Spain City Corporation (2009 to 2010); Acting

Personnel and Industrial Relations Officer I, San Fernando City Corporation, Ministry of Local

Government (July 2010 to February 2017. Having held several officers in the multiple city

corporations she had extensive administrative experience in the field of local government.

94. Magdalene Matthew held the following offices: Clerk I, Registrar General Department (1980

to 1981), Clerk I, Point Fortin Borough Corporation (1981 to 1990); Clerk II, Point Fortin

Borough Corporation (1990 to 1997), Clerk III Point Fortin Borough Corporation (1997 TO

2001), Accounting Assistant and Acting Clerk IV Point Fortin Borough Corporation (2001 TO

2008); Acting Personnel and Industrial Relations Officer I, Point Fortin Borough Corporation

(2008 to February 2017) and Acting Deputy Chief Executive Officer, Point Fortin Borough

Corporation (October 2014 to November 2014). Having held several officers in the

Administrative Class, several offices in the Point Fortin Borough Corporation and having acted

in the office of the CEO, she therefore had extensive experience in the field of local

government.

95. Ravindranath Gangoo held the following offices: Road Officer I, Ministry of Local Government

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(1993); Acting Project Officer I, Ministry of Local Government (1993 to 1997), acting as Project

Officer I, Ministry of Local Government (1997), acted as Chief Executive Officer, Ministry of

Local Government (1997 to 1999); promoted as Road Officer II, Ministry of Local Government

(2000 to 2007); promoted as Road Officer III Ministry of Local Government (2007-2013) and

Acting Country Superintendent Ministry of Local Government (from 2013). Having held

several offices in the Ministry of Local Government since 1993, he was have deemed to have

the equivalent experience based on Part 2(1) of the CPO guidelines.

96. Dianne Lakhan held the following offices: Clerk I, Ministry of Education (1990 to 1993); Acting

Office Manager/Clerk II/I Princes Town Regional Corporation (1993 to 2008); Clerk II Ministry

of Local Government (2006), Acting Personnel Industrial Relations Officer/Acting

Administrative Assistant, Ministry of Local Government (2009); Acting Administrative Officer

II/ Administrative Assistant, Ministry of Energy and Energy Affairs (2010 to 2011) and Acting

Human Resource Officer II, Ministry of Local Government (2011 to present). Having held

various officers in the Administrative Class in Local Government and offices in the Princess

Town Regional Corporation, she had extensive experience in the field of local government.

97. Betty Ann Dial held the following officers: Storekeeping I, Accounting Assistant, Clerk I, Clerk

II, Clerk III, Clerk IV, Ministry of Local Government (1990 to 2009); Accounting Assistant Clerk

IV Unemployment Relief Programme (2009 to 2010); Administrative Assistant Office of the

Prime Minister (2010 to 2011); Budget Analyst I, Ministry of Finance and the Economy (2011)

and Acting Budget Analyst II, Ministry of Finance and Economy (April 2013 to December

2014). Having held several offices in the Ministry of Local Government and considering she

gained clerical experience of increasing complexity for entry into the administrative class

from the offices of Clerk IV, Storekeeper and Accounting Assistant, she satisfied the

experience requirement.

98. Shivastri Ramawadh held the following offices: Clerk I Personnel Department (1983 to 1984);

Clerk I, Ministry of Education (1989); Acting Administrative Assistant/Personnel Industrial and

Relations Officer I/ Clerk II/ Clerk III, Ministry of Rural Development and Local Government

(1990 to present), promoted to Clerk II, Ministry of Education (2002); Clerk IV, Princes Town

Regional Corporation (2005 to 2012); Personnel and Industrial Relations Officer I, Princes

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Town Regional Corporation (2006); Acting Administrative Assistant Ministry of Rural

Development and Local Development (2008); Acting Administrative Officer II, Ministry of

Rural Development and Local Government (2012 to 2014) and Project Officer I, Ministry of

Rural Development and Local Government (2014 to 2015). Having held several offices in the

Administrative class since 1989 in the Ministry of Local Government and several officers in

the Princes Town Regional Corporation she satisfied the experience requirement.

99. Kathy Ann Mills-Mark held the following offices: Clerk I, II, III, Acting Auditing Assistant, Port

of Spain City Corporation (September 1983 to September 2005); Accounting Assistant, Port

of Spain City Corporation (September 2005 to July 2008); Clerk IV, Port of Spain City

Corporation (July 2008 to October 2008); Administrative Assistant, Port of Spain City

Corporation (October 2008 to July 2009); Administrative Officer II, Port of Spain City

Corporation (April 2009 to May 2009); Human Resource Officer I, Port of Spain City

Corporation (July 2009 to July 2014); Auditing Assistant, Port of Spain City Corporation (July

2014); Acting Auditor I, Port of Spain City Corporation (August 2014 to May 2015) and

Personnel and Industrial Relations Officer I, Port of Spain City Corporation (May 2015 to

present). Having held offices in the Administrative Class in the Port of Spain City Corporation,

she satisfied the experience requirement.

100. Ann Hosein held the following offices: Temporary Clerk I, Ministry of Finance (1989 to

1993); Clerk I, Ministry of Finance (December 1992), Acting Clerk II, Ministry of Finance (1989

to 1993); Clerk IV, Contract Officer, Siparia Regional Corporation (1995 to 2002); Community

Coordinator, Penal/Debe Regional Corporation (2002 to 2007); Communication Coordinator,

Penal/Debe Regional Corporation (2004 to 2006); Health and Safety Coordinator, Siparia

Regional Corporation (2008 to 2009); Project Officer, Repairs and Maintenance Division,

Education Facilities Company Ltd (2011 to 2012); Acting Clerk II, Ministry of Rural

Development and Local Government (2012 to 2015); Planning Officer, Ministry of Rural

Development and Local Government (March 2012 to present). Having held several offices in

the Administrative Class and multiple offices in multiple regional corporations, she satisfied

the experience requirement.

101. Jameel Chadee entered the public service as a Temporary Road Officer I, was promoted

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to Civil Engineer I and acted as Civil Engineer II where he gained experience in areas of Local

Government Laws, Bye Laws and regulations. He was required to report to an administrative

head, the Chief Engineer which would have allowed him to gain exposure to administrative

procedure in local government. Mr. Kerwyn Pantin also gained experience on secondment in

the Ministry of Local Government as an Assistant City Engineer which included areas of

procurement, supervisory skill, financial experience and project supervision.

102. In further response to Mr. Guelmo, she contends that at the time of the submission of his

application, the Certificate in Public Administration was not attached to his CV. This indicated

that the course was completed and that he was awaiting the Certificate which did not satisfy

the training component at the closing date for submission of the applications. He also did not

have the requisite Local Government administrative experience.

103. In Mohanlal Bhagwandeen v The Attorney General of Trinidad and Tobago No. 45 of

2003 it was observed by Lord Carswell at paragraph 20:

“[20] The proposition that to establish a case of discrimination by a public official it is

necessary to prove mala fides on his part appears in several cases in the courts of Trinidad

and Tobago, notably the judgment at first instance in Smith v LJ Williams Ltd (1980) 32

WIR 395 and that of the Court of Appeal in A-G v KC Confectionery Ltd (1985) 34 WIR 387.

In the former case Bernard J considered Indian and United States authorities and stated

at page 411:

“In so far as official acts are concerned, the nub of the matter is, in my view, that the

section both guarantees and is intended to ensure that where parties are similarly placed

under the law they are entitled to like treatment under that law. However, there is a

presumption of regularity in the acts and conducts of officials. Consequently, the burden

of proof is upon the aggrieved party to establish mala fides in the administration of the

enactment.”

In A-G v KC Confectionery Ltd the Court of Appeal adopted a similar approach, accepting

as correct the propositions that there is a presumption of regularity in the acts of officials

and that it is necessary to show a clear and intentional discrimination when a claimant

https://www.lexisnexis.com/uk/legal/search/enhRunRemoteLink.do?linkInfo=F%23GB%23WIR%23sel1%251980%25vol%2532%25year%251980%25page%25395%25sel2%2532%25&A=0.9850427754328844&backKey=20_T28456872401&service=citation&ersKey=23_T28456869886&langcountry=GB



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alleges unequal treatment at the hands of a public official or authority. Bernard JA, as he

had then become, said at page 415:

“Having held that the presumption of regularity in the acts of public officials exists in this

jurisdiction, I entertain the view that it can only be discharged by proof of mala fides on

a balance of probability.”

104. The Claimants must identify persons who were comparable, analogous or broadly similar.

It is then for the authority to justify the difference in treatment. To do so there must be a

legitimate aim and there must be a reasonable relationship of proportionality between the

means employed and the aim sought to be realised. Based on this evidence of the DPA, the

Claimants not only have failed to identify suitable comparators but even so, there is ample

justification revealed in the DPA’s evidence examined above with a legitimate aim

proportionate to the purpose of determining the suitable candidate which corresponds to

the advertised criteria.

Conclusion

105. It is difficult to see the end of controversial litigation involving the Commission as they

continue to make decisions which will affect the delicate employer/employee relationships

in the public service. The demands of our citizens, not least our public officers, continue that

administrative decisions comport with the basic principles of fairness, transparency and

accountability. While deference will be paid to the Commission in their decisions made in the

best interest of the service, such deference is not to be misinterpreted as reverence to

conveniently immunize the Commission from scrutiny.

106. Equally, the Courts should be vigilant to protect the Commission from unwarranted

assault and disruptions in their recruitment processes when it is found to be consistent with

the principles of rationality, proportionality, fundamental fairness and constitutionality. This

is such a case. The claims are dismissed.

107. On the question of costs I will hear both parties. However, the Commission must convince

me that in light of their poor pre-action conduct that the appropriate order should not be no

order as to costs.

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Vasheist Kokaram

Judge

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