REPUBLIC OF TRINIDAD AND TOBAGO IN THE COURT...

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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

Civ. App. No. S134 of 2015 Claim No. CV2014-00038

BETWEEN

Nairob Smart Appellant/Claimant

AND

Director of Personnel Administration Judicial and Legal Service Commission

Respondents/Defendants

Civ. App. No. S164 of 2015 Claim No. CV2014-02019

BETWEEN

Lesley Amarales Appellant/Claimant

AND

Director of Personnel Administration

Judicial and Legal Service Commission


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Claim No. CV2014-02021

BETWEEN

Svetlana Dass Savi Ramhit

Appellants/Claimants

AND

Director of Personnel Administration Judicial and Legal Service Commission


*************** Panel:

A. Soo-Hon J.A.

R. Narine J.A.

M. Mohammed J.A.

Appearances: Ms. P. Basdeo for Nairob Smart Mr. R. L. Maharaj S.C., and Mr. R. Bissessar instructed by Mr. V. Gopaul-Gosine for Lesley Almarales, Svetlana Dass and Savi Ramhit Mr. R. Martineau S.C., and Ms. V. Gopaul instructed by Ms. E. Araujo for the respondents

DATE DELIVERED: 5th April, 2017

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DISSENTING JUDGMENT

Delivered by R. Narine J.A.

It is my misfortune that I disagree with my learned sister and brother. My reasons for so

doing appear hereunder.

INTRODUCTION

1. These are two consolidated appeals against the trial judge’s decision in judicial

review proceedings regarding the decision of the second respondent (the

Commission) to accept recommendations of the Chief State Solicitor and

Permanent Secretary in the Ministry of the Attorney General to advertise the vacant

posts of Senior State Solicitor in the Chief State Solicitor’s Department (the

Department) in the Ministry of the Attorney General, to conduct interviews and

establish an order of merit list which excluded all four appellants and from which

Petal Roopnarine (Roopnarine), a contract legal officer was appointed and Florence

Ramdin (Ramdin) and Priscilla Rampersad (Rampersad) were promoted to the

vacant posts.

2. The appellants alleged that the appointment and promotions were contrary to the

Public Service Commission Regulations (the Regulations) and in breach of their

legitimate expectation that promotions would be made on the basis of the

Regulations and seniority. Additionally, the appellant Smart contended that the

decisions were unreasonable, unfair and irrational and occasioned by bad faith and

bias.

3. The trial judge found that the Regulations permitted the actions of the Commission

and accordingly dismissed the appellants’ applications for judicial review.

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THE FACTS

4. The key facts are not in dispute. All four appellants were employed with the

Department as State Solicitors II. They were also members of the Judicial and

Legal Service (the Service). They all acted in the position of Senior State Solicitor

at various times and were all eligible for promotion to the vacant posts of Senior

State Solicitor. They all had unblemished performance appraisals. None of them

had any unfavourable reports against them.

5. Roopnarine was employed in the Department, though not a member of the Service.

She was an Attorney-at-Law employed on contract by the Ministry of the Attorney

General. Ramdin and Rampersad however, were employed with the Department

and were also members of the Service.

6. Prior to July 2012 a vacant post in the Department for the position of Senior State

Solicitor arose. As head of the Department, the Chief State Solicitor issued a

circular memorandum dated 25th July 2012 addressed to the first respondent (the

DPA), recommending that the appellants Almarales and Ramdin be interviewed for

the vacant post. In this memorandum he conveyed that he did not favour one or the

other.

7. The Chief State Solicitor thereafter wrote to the Attorney General on the 20th

September 2012, highly recommending Roopnarine for the vacant post and

requesting his assistance in having the vacant post urgently advertised. A letter

dated 19th September 2012 to the Chief State Solicitor from Roopnarine on the

subject was annexed to the letter dated 20th September 2012.

8. Subsequent to this, two vacant posts of Senior State Solicitor arose. To address the

staff shortage in the Department, the Chief State Solicitor requested that the two

vacant posts be urgently advertised in accordance with regulations 14 and 15 of the

Regulations. It was the recommendation of the Chief State Solicitor that the vacant

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posts be advertised in order to attract Attorneys-at-Law with considerable legal

experience, practice, knowledge and expertise to the Department. This request was

made by a circular memorandum dated 25th October 2012 sent to the DPA under

the cover of another circular memorandum dated 26th October 2012 from the

Permanent Secretary of the Ministry of the Attorney General.

9. By circular memorandum dated 16th November 2012 the Permanent Secretary in

the Ministry of the Attorney General wrote again to the DPA advising of and

endorsing the recommendations of the Chief State Solicitor that the vacant posts be

advertised.

10. Circular memorandum number E 84/2012 dated 10th December 2012 was issued by

the DPA to Permanent Secretaries and Heads of Departments to be circulated for

the attention of their staff, inviting applications from suitably qualified officers to fill

the vacant posts of Senior State Solicitor. Details of the required qualifications,

experience and skills were outlined on the memorandum. The memorandum also

indicated that interested officers should apply on the prescribed application for

promotion forms.

11. In response to this internal advertisement, the appellant Smart on the 13th

December 2012, applied for the position on the prescribed promotion form.

12. The vacant posts were subsequently advertised in the Daily Express newspaper on

the 17th December 2012 and on the 7th January 2013. It was also advertised on the

1st January 2013 in the Guardian newspaper. The contents of the advertisements

and the memorandum dated 10th December 2012 were identical except for the form

to be utilized when applying.

13. At the time the memorandum dated 10th December 2012 was circulated, Almarales

was not attached to the Department because she had been granted leave of

absence without pay to perform the functions of Senior Legal Officer at another

Ministry. On the 7th January 2013 she responded to the advertisement contained in

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the Daily Express newspaper for the vacant position using the promotion form

instead of the form prescribed in the advertisement.

14. Smart, Almarales and other members of the Department thereafter wrote a letter of

protest dated 25th February 2013 to the DPA expressing their disapproval of the

external advertisement of the posts. They articulated their concern that there were

suitable applicants in the Service to fill the vacant posts and that the external

advertisement was in contravention of the Regulations. Enquiries were also made

concerning the decision to use an interview process for filling the vacancies which

they maintained was not the settled practice in the Department. No response to this

letter was received from the DPA.

15. The appellants Dass and Ramhit were unaware of the advertisement and for that

reason they made no application for the vacant posts.

16. Interviews were held for the vacant posts in June 2013. Persons both within and

outside of the service were interviewed. A total of eleven candidates including

Smart, Almarales, Ramdin and Rampersad who were all within the Service were

interviewed as well as Roopnarine who was outside of the Service. Smart and

Almarales were unsuccessful at the interview. The successful candidates were

placed on a merit list. The successful candidates were Roopnarine, Ramdin and

Rampersad and they were placed on the merit list in that order.

17. By letter dated 23rd September 2013 Smart questioned the decisions of the

Commission to conduct the interviews and to invite candidates outside of the

Service to be interviewed. He received no response to his letter.

18. Roopnarine was appointed to the post of Senior State Solicitor. She assumed

duties on 1st October 2013. Ramdin was appointed to the post but failed to occupy

the position. Rampersad was subsequently appointed to the other vacancy.

19. The appellants instituted proceedings for judicial review of the decisions of the

Commission to accept recommendations to advertise the vacant posts, conduct

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interviews and establish an order of merit list from which the appointment of

Roopnarine, and the promotions of Ramdin and Rampersad, were made. Smart

commenced proceedings in CV2014-00038, Almarales in CV2014-02019 and Dass

and Ramhit in CV2014-02021 wherein they sought against the DPA and the

Commission multiple and similar reliefs which included inter alia, the following:

(a) A declaration that the decision of the DPA and the Commission to invite

and interview persons for the vacant posts including persons not being

Legal Officers as defined by the Judicial and Legal Service Act Chapter

6:01 is unreasonable, unfair and irrational and is accordingly illegal, null,

void and of no effect.

(b) A declaration that the decision to disregard section 18 of the Regulations

and to advertise the post of Senior State Solicitor when there were

suitably qualified officers within the department, is in contravention of the

Regulations, the rules of procedural fairness and the principles of

rationality.

(c) A declaration that the decision to interview candidates and use the

interviews as the principal basis for making appointments violates or

contravenes or deprives the appellants of their legitimate expectation that

they would be assessed for promotion in accordance with the settled

practice in applying the criteria specified in Regulation 18.

(d) A declaration that the appointment of Roopnarine and the promotion of

Ramdin and Rampersad to the post of Senior State Solicitor based on the

order of merit list compiled pursuant to the interviews conducted are null,

void and of no effect.

FINDINGS OF THE TRIAL JUDGE

20. The applications for judicial review were heard together. In her judgment dated 29th

May 2015, the judge held that the Regulations permitted the actions of the

Commission and that the appellants showed no valid basis for challenging the

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decisions of the Commission made pursuant to Regulation 15. The applications

were accordingly dismissed.

21. The trial judge found that it was clear that both regulations 14 and 18 dealt with

appointments and promotions within the service. It was the opinion of the court that

regulations 14, 15 and 18 sought to address three different situations or types of

appointments:

(i) where it is in the best interest of the service to make appointments by

way of competition within the service and it is possible to do so:

Regulation 14;

(ii) where there is no suitable candidate or having regard to qualifications,

experience or merit it would be advantageous to secure the services of a

person outside the service: Regulation 15; and

(iii) where none of the conditions set out in Regulations 14 or 15 apply and

the appointments are of a routine nature by way of promotion: Regulation

18.The court was of the opinion that regulation 18 does not apply to

appointments made pursuant to an advertisement under regulation 15.

22. The judge was also satisfied that:

(i) from the wording of the advertisement there was one advertisement

made both within the service and externally;

(ii) in those circumstances the most logical, fair and cost-effective way of

determining the merits of the candidates was by interviews and, further,

the Regulations did not prevent the use of interviews;

(iii) that there was no irrationality or unreasonableness in such a decision;

and

(iv) once it was determined that interviews were the appropriate means of

determining the merits of each candidate then the establishment of a

merit list was the next logical step; that too was not prohibited by the

Regulations.

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23. In the judge's opinion, procedural fairness mandated that the Commission treat with

all the candidates in the same way. All the candidates were applying in response to

an advertisement made pursuant to regulation 15 and in the circumstances the

Commission could not apply regulation 18 considerations to the persons within the

service to the exclusion of the other candidates.

24. The judge further found that regulation 15 focused on qualifications, experience and

merit. In those circumstances it was the applicants’ experience in the service, not

their seniority that would be a relevant factor as would the experience of any of the

other persons interviewed.

25. The judge found that the appellants had failed to show that the Chief State

Solicitor’s memorandum of the 25th July 2012 and his letter of the 20th September

2012, had been brought to the attention of the Commission prior to, at the time of

their decisions or at all. The fact that the documents had been shown to be in the

possession of the DPA was insufficient to infer knowledge to the Commission.

26. The judge was also of the opinion that none of the decisions which the appellants

sought to impugn were open to challenge on the ground of being contrary to the

Regulations, lacking procedural fairness or Wednesbury unreasonable. Additionally,

the appellants had failed to prove the existence of an established settled practice of

using seniority as the principal criteria for promotions.

APPELLANTS’ SUBMISSIONS

27. Mr. Maharaj summarised his written submissions as follows:

(i) While it is mandatory to apply the provisions of regulation 18 in every

decision to effect promotions in the service, regulation 14 only applies

where it is in the best interest of the service within the service for

appointments to be made from within the service specifically by

competition.

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(ii) There is considerable interplay between regulations 14 and 18 which

must be read together when promotions are to be made. However,

regulation 18 can be read on its own when there is to be a promotion

within a particular department without competition.

(iii) Regulation 18 sets out the criteria which must be considered in making all

promotions within the department or the service and therefore could not

have been excluded or disregarded when making the impugned

decisions. The respondents erred in refusing to consider regulation 18

when persons who were also within the service were interviewed. This

placed these officers at a disadvantage since the officers’ years of

service were not considered as the officers were treated as first time

appointees.

(iv) In order for the Commission to invoke its powers under regulation 15, it

should engage the process contemplated by the regulations and not

simply say that they consider that they should go outside the service or

accept any recommendation from the Chief State Solicitor or the

Permanent Secretary to advertise. There are certain conditions

precedent which must be satisfied before regulation 15 is invoked. The

Commission would have had to utilise the procedure under regulation 18

and determine whether there were suitable candidates within the service

to fill the vacancy. Having done so, the Commission will then consider

whether having regard to the qualifications, experience and merits of the

candidates, it would be in the best interest of the service that a person

not already in the service be appointed. The Commission therefore,

cannot whimsically or capriciously invoke regulation 15 and bypass

regulations 13(4), 14 and 18. The regulations mandate that it must first

be established that there are no suitable candidates within the service.

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(v) The trial judge erred in law when she held that regulation 18 merely

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

considering promotions. The provisions of regulation 18 are mandatory

when considering the suitability of officers for promotion within the service

since the word “shall” is used. The trial judge erred further when she

concluded that regulation 18 contained no preconditions for its

application. Regulation 18(1) and (2) state that in considering the

eligibility of officers for promotion the Commission must follow specific

criteria. The condition precedent for applying regulation 18 therefore is

the eligibility of officers for promotion and this must be an issue for

determination by the Commission.

(vi) The judge erred when she held that the Commission did not have to be

satisfied or be of the opinion that either of the conditions precedent set

out in regulation 15 applied and that the word “consider” suggests a much

lower threshold of conviction.

(vii) Regulation 15 cannot be triggered in an arbitrary manner whenever the

respondents consider that it ought to be invoked. They must first decide

what the service is lacking and that there are no suitably qualified

persons already in the service, or determine what exactly they consider

advantageous and in the best interest of the service before they invite

applications from person(s) not already in the service. Regulation 15

cannot be reconciled with the scheme of the regulations. As much as

regulation 15 enables the Commission to advertise the post, that

advertisement is aimed at securing the services of a person not already

in the service. This is because regulation 15 deals with first time

appointments to the service. Even if it does not treat with the words

appoint or appointment, the intention of regulation 15 is clear. It cannot

apply to promotions.

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(viii) The appellants’ case was premised on the argument that once an officer

is being considered for promotion, it is mandatory for the Commission to

consider the criteria under regulation 18 and that regulation 15 cannot

apply to such an officer. Conversely, regulation 18 cannot be applied to

persons who are not within the service and who are being interviewed

pursuant to a regulation 15 advertisement.

(ix) Regulation 15 must be confined to first time appointments to a particular

service and never to persons who are to be promoted within a particular

service. Despite this clear and unambiguous construction, the

uncontradicted evidence was that two officers from within the department

were offered the position of Senior State Solicitor pursuant to regulation

15 interviews. The promotion of Rampersad cannot be classified as

anything other than a promotion of a State Solicitor I to the post of Senior

State Solicitor.

(x) The judge also failed to enquire into the qualifications of the person the

Commission was looking for to fill the vacancies when the Commission

decided to advertise under regulation 15, if the suitability for promotion of

persons already in the Service was not being considered. The trial judge

erred since two out of the three persons selected by the Commission

were already in the Service. The respondents adduced no evidence of

the different type of person they were looking for other than one found

suitable under regulation 15.

(xi) The decision making process was unfair having regard inter alia to the

contents of the Chief State Solicitor’s memorandum dated 25th July 2012

and the letter dated 20th September 2012.

28. Ms. Basdeo submitted on behalf of Smart:

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(i) The judge failed to consider properly or at all whether the precedent

conditions contained in regulation 15 existed in fact. The evidential

burden to establish these facts shifted to the decision maker (the

Commission) to set out the relevant facts necessary to fully meet the

challenge to its decision. Without this evidence the court would not be

able to properly review the decision.

(ii) In deciding whether the precedent facts existed, the court was required

to determine whether the respondents:

(a) took into account relevant information, and ignored irrelevant

information;

(b) asked the right questions and undertook sufficient enquiry, and

(c) delegated a decision for which they are exclusively responsible.

(iii) An interview process is not one of the criteria for assessing the eligibility

of legal officers for promotion under regulation 18. The Commission has

no constitutional power to alter the regulations without the consent of the

Prime Minster or the President.

(iv) The chronological history of the events showed that the Commission

considered irrelevant information, and the use of the regulation 15

process was predetermined. It was submitted that the Commission was

guided by irrelevant matters contained in the Chief State Solicitor’s

memorandum dated 25th July 2012 and 25th October 2012 and his letter

dated 20th September 2012, and the memorandum of the Permanent

Secretary in the Ministry of the Attorney General, which requested that

the two vacancies be advertised as a matter of urgency.

(v) The Commission failed to ask itself the right questions and failed in its

duty to make basic enquiries, which would have revealed that there were

four legal officers within the Service who were eligible to be promoted to

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the vacant offices. The Chief State Solicitor’s letter of 25th July 2012

clearly indicated that there were at least two officers eligible to be

promoted to the offices.

(vi) The respondents changed the process in order to accommodate Petal

Roopnarine, and by doing so they irrationally and unfairly neglected their

mandatory obligations under the regulations to consider Mr. Smart under

the criteria set out in regulation 18.

(vii) The trial judge found that under the regulations the DPA is the person in

whom the administrative responsibilities of the Commission are vested.

Unless there is evidence to rebut the presumption of regularity, the DPA

is presumed to have properly discharged its official duties by forwarding

all relevant documents to the Commission, including the memorandum of

25th July 2012, and the letter of 20th September 2012, which the

Commission never denied having in its possession in any event.

(viii) Since the Commission did not challenge Smart’s assertion on affidavit

that he received the disputed documents from the Commission’s

Executive Director, there was no need for Smart to apply to cross-

examine on this issue.

(ix) There was a settled practice which cultivated in Smart a legitimate

expectation that he would be considered for promotion under regulation

18 and be promoted on the basis of his eligibility, seniority and the

recommendations of the Chief State Solicitor.

RESPONDENTS’ SUBMISSIONS

29. Promotions within the Service are governed by Regulation 18. However, Regulation

18 deals with criteria relating to the final decision whether or not to promote: Sankar

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v. Public Service Commission [2011] PC App. Nos. 45 and 74 of 2010 paragraphs

17 and 18.

30. Where a promotion is to be made from within the Service, it should be made by

competition: Regulation 14.

31. There is nothing in the regulations which requires the Commission to take regulation

18 into account when making appointments pursuant to regulation 15. In this case

the Commission was not considering making promotions within the Service. It was

considering whether, having regard to qualifications, experience and merit, it would

be advantageous and in the best interest of the service that a person not already in

the service should be appointed.

32. The Commission did not act in a manner that was procedurally incorrect or irrational

in making use of interviews to assess all applicants both from inside and outside of

the service. In the absence of regulations prescribing the criteria for interviews

under regulation 15, it was for the Commission to prescribe its own criteria. Having

done so, the Commission must treat all interviewees alike.

33. The fact that the regulation 15 exercise resulted in what was in effect a promotion

for Ms. Ramdin and Ms. Rampersad, does not make it a promotion exercise.

Judicial review is concerned with substance and not form.

34. It is not correct that under regulation 15 the Commission must first consider whether

there are suitable candidates within the Service pursuant to regulations 18 and

13(3). There is an alternative basis under regulation 15 where the Commission

considers that it would be advantageous and in the best interest of the particular

service to secure the services of a person outside of the particular Service. If in

carrying out that exercise persons already in the Service apply, the Commission is

entitled to consider them.

35. In the absence of evidence of the criteria used by the Commission in deciding

whether it was advantageous and in the best interest of the Service, the

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presumption of regularity applies. Further, this is a determination to be made by the

Commission alone.

36. Once the Commission is acting under regulation 15, regulations 14 and 18 are not

relevant to that exercise. Regulation 14 expressly provides for appointment from

within the Service by competition, impliedly contemplating promotion, in which case

regulation 18 becomes relevant.

37. The decision of the Chief State Solicitor in first recommending Almarales and

Ramdin for the position (when there was one vacancy) and subsequently requesting

that the position be advertised was not the subject of challenge in these

proceedings. There is no evidence or pleading that the alleged motive of the Chief

State Solicitor persuaded the Commission. There was no evidential basis for

imputing unfairness or bad faith on the part of the Commission. The presumption is

that it acted fairly.

38. The trial judge was correct in finding that there was no evidence of a settled practice

in making promotions principally or solely based upon seniority pursuant to

regulation 18. In fact regulation 18 takes into account (in addition to seniority)

experience, educational qualifications, merit and ability among other things.

Accordingly, there was no basis for the alleged legitimate expectation as claimed by

the appellants.

ISSUES

39. From the submissions of counsel, the main issues to be determined in this appeal

are:

(i) whether the Commission erred in using the procedure under

regulation 15 without first ascertaining whether there were suitably

qualified persons within the particular service;

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(ii) Whether the appellants suffered prejudice as a result of the use of

the procedure under regulation 15 without regard to the criteria for

promotion contained in regulation 18;

(iii) Whether the decision making process was procedurally unfair to the

appellants; and

(iv) Whether the respondents acted in breach of the appellants’

legitimate expectation based upon a settled practice of the

respondents to use seniority as the principal criterion in making

promotions.

THE REGULATIONS

40. Regulations 14, 15 and 18 of the Public Service Commission Regulations (the

Regulations) as contained in the Constitution of the Republic of Trinidad and

Tobago Chap. 1:01 provide as follows:

“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

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

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Commission may authorise the advertisement of

such vacancy.

18. (1) In considering the eligibility of officers for

promotion, the Commission shall take 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 sub regulation (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 sub

regulations (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);

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(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 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.”

THE FIRST & SECOND ISSUES: ILLEGALITY

41. A literal interpretation of regulations 14, 15 and 18 yield the following largely

undisputed propositions:

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(i) Regulation 14 applies to appointments or promotions made from within a

particular service. Such appointments are to be made by competition.

(ii) Regulation 14 is applied where the opinion of the Commission is that:

(a) It is possible to make such an appointment from within the particular

service, and

(b) It is in the best interest of the particular service to do so.

(iii) Regulation 15 applies to an appointment of a person to fill a vacancy

within a particular Service, who is not a member of that particular service.

There are two conditions which must exist before this can take place.

The Commission must either:

(a) Consider that there is no suitable candidate already in the particular

service, or

(b) Consider that having regard to qualifications, experience and merit,

it would be advantageous and in the best interest of the particular

service.

(iv) Where the Commission considers that either (a) or (b) above exists, then

it may authorise the advertisement of the vacancy.

42. Regulation 18 deals with promotion of officers within the Service. It sets out the

criteria to be considered by the Commission in assessing the eligibility of officers for

promotion. There is interplay between regulation 14 and regulation 18. Clearly

when a vacancy is to be filled from within the particular service and involves a

promotion, it is to be done by competition using the criteria set out in regulation 18.

43. Since regulation 15 clearly deals with appointments to be made of persons not

already in the particular service, it does not involve promotion of officers. Clearly

regulation 18 has no application to such appointments.

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44. It is not in dispute in this case that applications were invited from persons who were

both within and outside of the particular service. The respondents contend that the

Commission was carrying out an exercise pursuant to regulation 15 in order to

secure the services of the persons best suited to fill the vacancies, in the best

interest of the particular service. In the absence of regulations prescribing criteria

for interviews under regulation 15, the Commission interviewed all the applicants

and treated all interviewees alike.

45. It is clear that the litigation in this case has arisen from the application of regulation

15, which on its face applies only to appointments from outside of the particular

service, to persons who were clearly within the particular service such as the

appellants.

46. The scheme of the regulations is clear on its face. Regulation 14 applies to

appointments made within the particular service, while regulation 15 plainly applies

to appointments of persons “not already in that service”. The Public Service

Regulations do not prescribe a procedure for the Commission to consider in one

exercise the appointment of persons from both within and outside of the particular

service to fill a vacancy within that service.

47. The appellants submit that there are certain conditions precedent which must be

satisfied before regulation 15 can be invoked. The Commission should first

determine (using regulation 18 criteria) whether there are suitable candidates within

the particular service to fill the vacancy, or that having regard to the qualifications,

experience and merit of the candidates (presumably within the service), it would be

in the best interest of the particular service to appoint a person from outside of that

service. This submission appears to interpret the two conditions outlined in

regulation 15 sequentially. The respondents submit that the conditions should be

interpreted disjunctively. In other words, the second limb – “or that having, regard to

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

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interest of the service” - stands as a separate and independent consideration, on

which the Commission can proceed under regulation 15.

48. In support of his submission that the Commission must first consider the first limb of

regulation 15 before it moves on to the second, Mr. Maharaj relied on a decision of

this court in Winston Gibson v. Public Service Commission Civ. App. No. 56 of

2006, in which Archie CJ opined at paragraph 16:

“…The process of selection and appointment begins with a

consideration of whether it is possible and in the best interest of

the particular service to fill the vacancy from within that service.

This applies to all appointments, of which appointments on

promotion are but a sub-set.”

49. In my view, this approach is consistent with both logic and good sense. The officers

within the particular service are more likely to be conversant with the practices and

procedures that are employed within that service and the duties of the office to be

filled, than persons who are entirely new to that service. Further, if the Commission

has not made some kind of assessment of the qualifications, experience and merit

of persons within the service, on what basis can it conclude that it would be

advantageous and in the best interest of the particular service to fill the vacancy

from outside of that service?

50. Further, the appellants submitted that the Commission led no evidence as to what

criteria it used to decide that it was advantageous and in the best interest of the

service to fill the vacancies from outside of the particular service. The respondents’

answer to this is two-fold – the presumption of regularity applies, and these are

determinations for the Commission alone to make.

51. In Mohanlal Bhagwandeen v. The Attorney General of Trinidad & Tobago PCA

No. 45 of 2003, the Privy Council opined at paragraph 22:

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“[22] The presumption of regularity comes into play in this context

when there is no evidence either way whether a public authority or

official has taken into account the correct considerations in

reaching an administrative decision. In such case the decider is

entitled to the benefit of the presumption of regularity and is not

obliged to adduce evidence to establish that he took only the

correct factors into account. In consequence, in the absence of

contrary evidence the application for judicial review will fail.”

52. In Police Service Commission v. Dennis Graham Civ. App. No. 2727 of 2006,

Jamadar JA stated at paragraph 20:

“It is in this context of cooperation, where a court has granted

leave to pursue judicial review and where the full and candid

disclosure of the claimant’s evidence as well as the full, frank and

uninhibited explanation - with all primary documents relevant to

the challenge (subject only to lawful exemptions) of the public

authority are before the court, that the process of evaluation

contemplated by judicial review is to be undertaken. And it is in

this context that the presumption of regularity comes into play as

explained by Lord Carswell in Bhagwandeen v. The General.

Therefore, as I sought to explain in Furlonge v. O’Brien, the

presumption of regularity ought not to operate as a shield behind

which a public authority can hide by refusing to give evidence on

the basis that it is for a claimant to prove his case. This is an

erroneous and misplaced view of how the presumption of

regularity ought to operate in public law matters. Indeed, a

presumption of bona fides ought to willingly lead to full disclosure

of all relevant information at the earliest opportunity – including in

response to pre-action enquiries.”

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53. I associate myself with the view expressed by Jamadar JA in the dictum quoted

above. It must have been clear to the Commission that the appellants were

challenging its decision to advertise the vacancies and interview persons pursuant

to regulation 15, and that the appellants were alleging that in doing so the

Commission was improperly influenced by the Chief State Solicitor. Faced with this

challenge the Commission failed or refused to place before the court the

considerations which it took into account in deciding under regulation 15 that either

there was no suitable candidate already in the particular service or that having

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

best interest of the particular service to appoint someone from outside. These were

matters that would lie in the bosom of the Commission. The appellants would hardly

be in a position to place before the court evidence of these matters which would be

peculiarly within the knowledge of the Commission.

54. Mr Martineau acknowledges the failure of the Commission to provide such

evidence. However, he relies on the presumption of regularity, and further submits

that it is for the Commission and no one else to decide what is in the best interest of

the service. While this may be so, where a challenge is made to the procedure

employed by a public body, it can hardly be satisfactory for such a body to provide

no evidence of the matters it considered in engaging that process, and say simply

that it relies on the presumption of regularity. Such an attitude provides no

assistance to the court in determining whether the procedure adopted was flawed or

contrary to the law.

55. Where the public body fails to disclose the matters it considered in making its

decision, Mr Martineau submits that the court is entitled to draw an inference from

such an evidential failure. However, he contends that the court is not entitled to

draw an inference that the body failed to consider the matter at all, since the

presumption of regularity operates in its favour.

56. I must confess that I have some difficulty with this submission. In a situation where

a challenge is frontally made to the procedure adopted by a public body, and it fails

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to put before the court the matters it considered, why should the court be precluded

from making a finding that it did not consider the matter at all? In my view, to hold

that the body is entitled to rely on the presumption of regularity, so as to prevent an

adverse inference being made against it in such circumstances, defies logic and

good sense. If this is correct, it means that a public body will be able to avoid its

duty of full disclosure of all relevant information, and rely on the presumption of

regularity to say that it considered the matters that it should have. Such a

proposition has only to be stated to be rejected.

57. Moreover, the Commission’s decision to promote Ramdin and Rampersad to the

vacant posts of Senior State Solicitor, clearly demonstrates that there were in fact

suitable candidates within the particular service. In addition, the memorandum from

the Chief State Solicitor to the DPA dated 25th July 2012, clearly stated that both

Ramdin and Almarales were suitable candidates for the position. However, if the

Commission was acting on the second limb of regulation 15, “that having regard to

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

interest of the particular service” to appoint someone from outside of the particular

service, the Commission has not placed before the court the “qualifications,

experience and merit” that it considered was not available within the particular

service, in deciding that it was “advantageous and in the best interest of the service”

to go outside of the particular service to fill the vacancies. In fact, the eventual

decision of the Commission clearly shows that in fact there were persons within the

particular service who possessed the requisite qualifications, experience and merit.

It follows that the decision to proceed under regulation 15 was not justified in the

circumstances.

58. The appellants submit that the Commission’s decision to proceed under regulation

15, deprived them of the benefit they would have derived from a consideration of the

factors set out in regulation 18, namely, seniority, experience, educational

qualifications, merit and ability, efficiency, staff reports and any special courses of

training undergone. In the appellants’ submissions, the failure of the Commission to

consider these factors, placed them at a disadvantage, since their years of service

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and performance appraisals would not have been considered in a regulation 15

exercise. In this regard it was not disputed that Almarales was the most senior

State Solicitor II in the department.

59. The respondents submit in response that regulation 18 only becomes relevant in a

promotion exercise. The fact that an appointment to the office of Senior State

Solicitor would have been a promotion for the appellants did not convert the process

from a regulation 15 exercise aimed at appointing the best person for the position, to

a promotion exercise under regulation 18.

60. I have found that the decision to engage the procedure under regulation 15 was

flawed. No evidence was put before the court that the Commission conducted any

exercise to ascertain whether there was any suitable candidate already within the

particular service available to fill the vacancy, nor has the Commission placed

before the court evidence of the “qualifications, experience and merit” that it was

looking for to base its conclusion that “it was advantageous and in the best interest”

of the particular service to fill the vacancy from outside. Logically, to reach an

informed decision with respect to the second limb of regulation 15, one ought to

consider the first limb, that is, the availability of a suitable candidate within the

particular service.

61. In construing the word “consider” in regulation 15, the trial judge expressed the view

that the Commission “does not have to be satisfied or be of the opinion” that either

the first or second limb of regulation 15 applies. Her view is that the word “consider”

suggests “a much lower threshold of conviction”. I do not agree. The Commission

is a decision making body entrusted with the function of making appointments and

promotions essential to the proper administration of the judicial system. Under

regulation 15, the Commission is given the authority to advertise vacant positions

where it “considers” that one of two situations exist, that is:

(i) There is no suitable candidates available in the particular service, or

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(ii) Having regard to the qualifications, experience and merit, it would be

advantageous and in the best interest of the particular service to secure

the services of a person from outside.

62. Before deciding that it is desirable to proceed under regulation 15 to fill a vacancy,

the Commission must address its mind to the matters contained in both limbs as set

out in (i) and (ii) above. It must make the relevant inquiries and acquaint itself with

the relevant facts so as to make an informed decision as to whether either (i) or (ii)

applies, and only then is it empowered to authorise the advertisement of the

vacancy.

63. In my view, the word “considers” in the context of regulation 15, does not simply

mean “thinks” or “believes”, or even “is of the view”. It implies a much deeper level

of engagement of mind, or a closer examination of relevant facts and

circumstances, before a determination is made of the matters contained in either (i)

or (ii) as set out above. As noted above, save for the conclusion that the

Commission considered it advantageous and in the best interest of the service to

advertise the vacancy, there was no evidence placed before the court that the

Commission considered the matters contained in both limbs of regulation 15.

64. Having decided to proceed under regulation 15, the vacant positions were

advertised in the daily press in December 2012 and January 2013. However, by

circular memorandum dated 10th December 2012 issued by the first respondent,

applications were also invited from suitably qualified officers within the department

of the Chief State Solicitor. In this memorandum, interested officers were advised to

apply on the prescribed application for promotion forms. Almarales and Smart

subsequently applied using the prescribed application for promotion forms, as

directed. Having done so, the appellants were entitled to the benefits to be derived

from a consideration of the matters contained in regulation 18, which clearly would

not apply to candidates who apply from outside of the service. Since, by its own

admission the Commission did not consider the regulation 18 factors in assessing

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the eligibility of the appellants, they were deprived of the benefit of such factors as

seniority and performance appraisal reports to which they would have been entitled

in a promotion exercise under regulation 18.

65. As noted earlier, the regulations do not provide for a procedure for the filling of a

vacancy by persons from both within and outside of a particular service in the same

exercise. Regulation 14 clearly applies to filling vacancies by appointing persons

from within the service by competition. Regulation 18 applies where persons are

promoted from within the service. Regulation 15 provides for first time appointments

from outside of the particular service, to which regulation 18 will not apply. To lump

together applicants to whom regulation 18 applies, with persons from outside the

service to whom regulation 18 does not apply, without applying the regulation 18

criteria, results in the loss of a benefit to persons within the service for whom the

position is in effect a promotion. On the other hand, the Commission could not

apply regulation 18 considerations to persons from outside the service.

66. The Commission found itself in this position because it chose to interview

candidates from both inside and outside of the particular service using the regulation

15 procedure which was expressly intended for attracting applicants from outside

the service only. The inclusion in a regulation 15 exercise of persons from within

the service for whom the position would be a promotion, was clearly not

contemplated by the framers of the regulations. Provision for such persons is made

in regulation 18, which spells out the matters to be considered in a promotion

exercise.

67. The trial judge clearly appreciated the dilemma in which the Commission was

placed. It had to consider all candidates fairly using the same benchmarks. It could

not apply regulation 18 to persons within the service to the exclusion of the

applicants from outside. In my view, respectfully, this reasoning provides no

justification for depriving the appellants of the benefit of the regulation 18

considerations in an effort to provide a level playing for candidates to whom

regulation 18 clearly does not apply.

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68. I have had the opportunity to peruse the majority judgement in this appeal. I agree

with the majority that regulation 15 is a stand alone provision. But it is clearly

applicable where the Commission considers that the vacancy should be filled by “a

person not already in that service”. I further agree that the decision as to whether it

would be advantageous and in the best interest of the particular service to fill the

vacancy with a candidate from outside the service, is a matter for the Commission

alone. However, where that decision is being challenged in proceedings for judicial

review, the Commission cannot simply sit back and rely on the presumption of

regularity. It must put before the court the matters it considered in coming to that

determination. These are matters which would be entirely within its own knowledge.

It cannot be (as the majority decision states at paragraph 36) that the appellants

must adduce evidence to show that the Commission could not have considered the

matter. The appellants cannot be expected to be privy to the internal decision

making processes of the Commissions, unless it discloses same.

69. For these reasons, I find that the Commission was wrong to adopt the procedure

under regulation 15 to fill the vacancies, without having considered properly or at all,

the preconditions for triggering a regulation 15 exercise, and was wrong to include

candidates both from inside and outside of the service in that exercise.

PROCEDURAL UNFAIRNESS

70. The appellants submitted that the decision-making process was unfair to them

having regard to the contents of the Chief State Solicitor’s memorandum dated 25th

July 2012 and his letter dated 20th September 2012. These documents are set out

in full hereunder.

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MEMORANDUM

AG:CSS:1/2/1

FROM : Chief State Solicitor

TO : Director of Personnel Administration

DATE : July 25, 2012

SUBJECT : Filling of vacant office of Senior State Solicitor (Group L4B),

Chief State Solicitor’s Department, Ministry of the Attorney

General

________________________________________________________________

Your memorandum CPF: 62504 dated June 28, 2012, P:9/9/9 Vol. III and P:9/9/7

Vol. 8 dated July 5, 2012 refer.

Mrs. Lesley Almarales, State Solicitor II initially proceeded on two (2) years leave

of absence from duty without pay on grounds of Public Policy, to enable her to

take up employment as Senior Legal officer, Ministry of Science, Technology and

Tertiary Education (M.S.T.T.E) from June 17, 2009 to June 16, 2011 and has

extended it twice since then from June 17, 2009 to June 16, 2011 to June, 2012

and February 2, 2013.

In the meantime, Miss Florence Ramdin, State Solicitor II has been acting Senior

State Solicitor in the litigation schedule, which is seriously challenged for staff. I

am not in a position to advance one’s cause against the other.

I believe that the fairest resolution of this issue would be if in accordance with

Regulation 14 of the Public Service Commission Regulations as adopted by the

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Judicial and Legal Service Commission, you interview both Mrs. Lesley Almarales

(nee Gray) State Solicitor II and Miss Florence Ramdin, State Solicitor II, to fill the

vacant office of Senior State Solicitor (Group L4), Chief State Solicitor’s

Department, Ministry of the Attorney General. Thus the one who tops the

interview process (the “competition” as envisaged by Regulation 14) should be the

one to be promoted on merit.

The option to interview Mrs. Lesley Almarales, State Solicitor II and Miss Florence

Ramdin, State Solicitor II, for the position of Senior State Solicitor, will afford them

an equal opportunity at the position since their claims are on the grounds of

seniority and experience respectively.

Attached is a comparison of their service.

Respectfully submitted for your consideration therefore.

…………………………………………..

/f/ Chief State Solicitor

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20th September, 2012

The Honourable Attorney General,

Ministry of the Attorney General,

“Cabildo Chambers”,

23-27 St. Vincent Street,

Port of Spain

Dear Sir,

Re: Request for advertising of the Post of Senior State Solicitor in the Chief State

Solicitor’s (CSS) Department.

I write with reference to Ms. Petal Roopnarine, Legal Officer III attached to the

Chief State Solicitor’s Department. Ms. Roopnarine has written to me by letter

dated September 19, 2012 expressing her frustration and stagnancy as a Legal

Officer III on contract. She is particularly concerned about the lack of security of

tenure that this affords her and expressed therein her wish to become part of the

establishment of the Chief State Solicitor’s Department. See letter attached dated

September 19, 2012 for your ease of reference.

Ms. Roopnarine has served this department since 2006, on two successive

contractual terms in a senior position. She has made sterling contributions to our

commercial law portfolio especially in the areas of our Contract and Conveyancing

Schedules. Her advisory work has been exemplary. You may recall her deep

research re the tracing of title for the Queen’s Park Savannah on the point of

whether there were any restrictive covenants placed there by the Peschier Family

limiting the use thereof re permanent structures. She was the main Conveyancer

in the difficult agreements that had to be drawn up after the auction of the

Jamaat’s property. She has also assisted in some complex Official Receiver

matters. It is for those reasons that I assert that Ms. Roopnarine’s research skills

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and private sector experience (she worked with the leading commercial firm of

Fitzwilliam & Company and Hamel-Smith & Company for ten years before she

joined the State) make her a valuable asset to our Department.

Ms. Roopnarine is also the holder of a LLM and in every aspect her resume is

superior to the present incumbents of the Senior State Solicitor’s post on the

establishment. This is the position for which she would like to be considered,

which underscores what she has already demonstrated, that she wishes to make a

long-term contribution to the State’s Civil Law Department. I firmly believe that this

unusual sacrifice should be eagerly embraced by the State and everything be

done to assist Ms. Roopnarine in her quest to come unto the establishment.

It is in these circumstances therefore that I am requesting that you use your good

offices to ensure by communication with the Chief Justice as head of the Judicial

and Legal Service Commission that the vacancy in the post of Senior State

Solicitor that currently exists on the Chief State Solicitor’s establishment be

urgently advertised so that the process of interviews can commence.

Yours respectfully,

……………………………..

Christophe Grant

Chief State Solicitor

cc. Director of Public Administration

Service Commission Department

71. In the memo dated 25th July 2016 the Chief State Solicitor recommended Almarales

and Ramdin for the position of Senior State Solicitor, for which there was one

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vacancy at the time. The letter clearly demonstrates that there were in fact suitably

qualified candidates within the particular service. The recommendation was

expressly based on the seniority and experience of these officers. However as the

letter of 25th September 2012 reveals, there was a dramatic change in the Chief

State Solicitor’s position. In this letter written just two months later he makes no

mention of Almarales and Ramdin, but instead sets out in some detail the

qualifications and experience of Roopnarine, and suggests that “everything be done

to assist Ms. Roopnarine in her quest to come unto (sic) the establishment”.

72. The letter of 20th September 2012 was addressed to the Attorney General and

copied to the first respondent. Significantly, in the last paragraph, the Chief State

Solicitor requests the Attorney-General to use his “good offices to ensure by

communication with the Chief Justice as head of the Judicial and Legal Service

Commission” that the vacancy be urgently advertised so that the process of

interviews could begin.

73. The trial judge found that the letter of 20th September 2012 “to say the least, was

inappropriate”. However, she went on to hold that the appellants had failed to show

that these documents had been brought to the attention of the Commission prior to

or at the time of their decision. The fact that the documents had been shown to be

in the possession of the DPA was, in the opinion of the judge, insufficient to infer

knowledge to the Commission. This, in the view of the judge was “a key area for

cross-examination”. The judge indicated further that she was satisfied that there

was a lack of candour by the DPA in her failure to disclose the letter of 20th

September 2012, and the memorandum of 25th July 2012. She noted that “as

deplorable as such behaviour was”, she could not draw the inference that the

Commission’s decision was illegal as a result of the bad faith of the Chief State

Solicitor and on the basis of a lack of candour on the part of a person who was not

the decision-maker.

74. The situation that arises in this case highlights the importance of full and frank

disclosure of both the applicant and the public authority in judicial review

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proceedings. Without such disclosure the court is unable to examine the process by

which public authorities come to their decisions. In such a case, the court is

severely handicapped in properly carrying out its function. The letter and the

memorandum should have been disclosed by the respondents at the earliest

opportunity. These documents would not have been in the possession of the

applicants. Once the documents came to light and the inference of improper

conduct of the Chief State Solicitor arose, it was for the DPA and the Commission to

put evidence before the court as to whether these documents received the attention

of the Commission, and if so, whether the Commission took these letters into

consideration in making its decisions. This was a matter which would be peculiarly

within the knowledge of the respondents. It would be unrealistic to expect the

appellants to provide evidence to the court that the documents were placed before

the Commission before or at the time of its decision.

75. In the Gibson case (supra), Archie CJ emphasised the importance of full and frank

disclosure in public law matters at paragraph 41 of his judgment:

41. I agree entirely with the proposition that in public law

matters, there is a duty of full and frank disclosure and for

clarity and future guidance, it bears repetition here. The

general principles are set out in two cases that are often

cited before these courts. They may be summarized thus:

a. It is for the applicant to make out his case and not for the

respondent to do it for him;

b. However, since it is often the case that much of the

pertinent information that will assist the courts lies in the

possession of the respondent public authority, it has a

duty to respond as fully and as transparently as the

circumstances require. This has been described as

conducting the proceedings “with all the cards faced

upwards on the table”;

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c. Courts have a very good appreciation of the complexities

and realities of public administration and, while it may be

presumed in the absence of evidence to the contrary that

authorities have acted properly, it does not assist the

authority or the court merely to give a blanket assertion

that it has acted properly;

d. Accordingly, once an applicant can satisfy the court that,

prima facie, something has gone wrong and leave to apply

for judicial review has been granted, the respondent must

dispel that perception. …”

76. In this matter Smart filed a supplemental affidavit on 26th September 2014 in which

he deposed that, pursuant to a request he had made in December 2013 to the DPA

under the Freedom of Information Act Chapter 22:02, he received a response in July

2014. As requested by the letter, he subsequently attended the office of the DPA,

where a person who identified herself as the Executive Director to the JLSC handed

over four documents, which included the memorandum of 25th July 2012, and the

letter of 20th September 2012 written by the Chief State Solicitor. This was the first

time that these documents surfaced in this matter. The DPA had filed two affidavits

on 5th May 2014 and 29th May 2014 before these documents surfaced.

77. The affidavit of 5th May 2014 annexes certain correspondence including a

memorandum dated 25th October 2012 from the Chief State Solicitor to the DPA,

which expressly makes reference to the Chief State Solicitor memorandum of 25th

July 2012, and letter of 20th September 2012, and repeats his request that the two

positions of Senior State Solicitor be advertised. The affidavit annexes other

correspondence dated 25th October 2012, 26th October 2012 and 16th November

2012 in which the Permanent Secretary in the Ministry of the Attorney-General

repeats the request that the DPA advertise the positions as a matter of urgency.

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78. Curiously, no mention was made in the respondents’ affidavits filed in May 2014 of

the memorandum and letter of the Chief State Solicitor dated 25th July 2012 and 20th

September 2012 and they were not disclosed until 30th July 2014 when they were

handed over to Smart at the office of the DPA.

79. In his supplemental affidavit filed on 26th September 2014, Smart deposes that he

believed that the documents dated 25th July 2012, and 20th September 2012, would

have been before the Commission and would have formed part of the decision

making process. He further alleged that the Commission simply “rubber stamped”

the Chief State Solicitor’s recommendation that the vacancies be advertised, and

adopted the regulation 15 procedure in order to facilitate the appointment of

Roopnarine. There was no challenge to this evidence, and so there was no need

for cross-examination on these matters.

80. The judge was satisfied on the evidence before her that the relevant memoranda

before the Commission were those referred to by the DPA in her affidavit, dated 25th

and 26th October 2012 and 16th November 2012, and went on to hold that it was

open to the Commission to accept the recommendations of the Chief State Solicitor

and the Permanent Secretary in the Ministry of the Attorney-General to advertise.

81. Two matters arise from these findings. The first is that there is no logical basis to

support a finding that some of the correspondence was placed before the

Commission, while some were inexplicably withheld. The judge expressly found

that the DPA was the person under the regulations in whom the administrative

responsibilities of the Commission are vested. The DPA as a public body must be

presumed to have properly discharged its responsibilities, unless there is evidence

to rebut the presumption of regularity. In this case, having regard to the assertion of

Smart that the disputed documents would have been before the Commission and

would have influenced its decision, surely it was incumbent on the respondents to

challenge this assertion, if it did not represent the true state of affairs. In addition to

failing to make full and frank disclosure in relation to the disputed documents, the

respondents failed to answer the assertion of Smart that the disputed documents did

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in fact inform the decision making process, and further failed to cross-examine

Smart on this issue.

82. The second matter arises from the judge’s finding that it was open to the

Commission to accept the recommendations of the Chief State Solicitor and the

Permanent Secretary to advertise the posts. The absence of any evidence that the

Commission carried out any process of its own to establish whether any of the

precedent conditions in regulation 15 in fact existed, provides some support for the

inference that the Commission merely rubber-stamped the recommendations of the

Chief State Solicitor and the Permanent Secretary without exercising its own

independent judgment.

83. In my view there are sufficient grounds in this case to draw the inference that the

documents were in fact before the Commission at the material time. These are:

(i) the failure of the DPA to disclose the documents at an early stage;

(ii) the failure of both respondents to deny that the documents were placed

before the Commission and duly considered;

(iii) the expectation that the DPA in the exercise of her functions, would place

before the Commission all relevant documents in her possession;

(iv) the express reference to the disputed documents in the Chief State

Solicitor’s memorandum of 25th October 2012, which was found to be

before the Commission, and which would have placed it on notice that

there was other correspondence issuing from the Chief State Solicitor,

(v) the evidence that the disputed documents were in the possession of the

DPA, and the failure of the DPA to provide any reason as to why it was

not placed before the Commission if that was the case,

(vi) the plea made by the Chief State Solicitor in his letter of 20th September

2012, for the Attorney General to communicate with the Chief Justice that

the vacancy be “urgently” advertised and

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(vii) the absence of any evidence that the Commission carried out any inquiry

in order to ascertain whether there were officers within the particular

service who were suitably qualified to fill the vacancy.

84. For these reasons, in my judgment there are reasonable grounds to draw the

inference that the documents were in fact placed before the Commission, and were

considered by the Commission in coming to their decision. Accordingly, I find that

the process was tainted by a consideration of the disputed documents which

influenced the decision to advertise the posts, and resulted in the selection of

Roopnarine for the position. Having regard to the matters set out in the majority

judgment at paragraphs 52 and 53, I wish to make it clear that I have formed no

view that the Chief State Solicitor or the Commission acted in bad faith, or with any

motive to discriminate against the appellants. I am however of the view that the

evidence suggests that the letter of 20th September 2012 was placed before the

Commission, and this document had the potential to unfairly and improperly

influence the Commission in favour of appointing Roopnarine.

LEGITIMATE EXPECTATION

85. The appellants contended before the trial judge that there was a settled practice that

the respondents interpreted and applied regulation 18, so as to make seniority the

main criterion for making promotions within the department. The Commission

promoted officers based on seniority, qualifications, experience and a consideration

of their staff reports.

86. At the close of his oral submissions, Mr Maharaj indicated that he would not pursue

this ground. Ms. Basdeo, however, gave no such indication.

87. The trial judge considered whether the appellants had established on their evidence

whether such a settled practice existed in fact. She found as a fact that the

appellants on their evidence had failed to prove that there was a settled practice

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which was clear, unambiguous and devoid of relevant qualification. A perusal of the

evidence reveals that the trial judge was justified in arriving at her decision on this

issue.

OTHER ISSUES

88. Attorney-at-law for Smart submitted that the Commission had no authority to

conduct interviews of legal officers applying for promotion to which regulation 18

applied. Their authority to conduct interviews was limited to first time appointments

under regulations 15 and 16. Mr. Maharaj, in his oral submissions agreed that the

Commission may conduct interviews when it is acting under regulation 15 as it

purported to do in this case.

89. Ms Basdeo further contended that there were specific regulations which empowered

the DPA to establish and use a merit list based upon the result of an examination,

evaluation and/or interview process. These regulations pertain to promotions in the

Prison Service, Fire Service and Police Service: See regulations 166(4), 173(4),

150(3) 19(9) and 20(4). There are no similar regulations which empower the JLSC

to establish such a list in respect of legal officers. It follows in her submission, that

the Commission exceeded its statutory authority in purporting to establish such a

list.

90. Ms. Basdeo further submitted that to compose such a list comprising officers from

both outside and inside the service was an affront to common-sense, and unfair to

candidates who are currently performing the duties of the office and gaining hands-

on experience in the position. The unfairness of the situation is further compounded

by the selection of candidates within the Service who are less senior, without taking

the regulation 18 criteria into account. In this case, Smart was senior to Rampersad

both in terms of admission to practise at the Bar, and in the Service, and was acting

in the post.

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91. The trial judge noted in her judgment, that this was a regulation 15 exercise as

opposed to a promotion exercise. Both persons from within and outside of the

service were to be assessed for the position. In her view “the most logical, fair and

cost effective way of determining the merits of the candidates was by interviews”.

Once that was decided, the establishment of a merit list was the next logical step.

92. The judge recognised that the regulations did not provide for the holding of

interviews, but noted that the regulations do not prevent the use of interviews. Like

the judge, I can think of no reason in principle why the Commission should not have

the implied power in carrying out its statutory functions, to use interviews in order to

evaluate the merits of the candidates and their suitability for the position. In my

view, where the Commission erred in this case, was in lumping together candidates

from both within and outside of the service in the same process, without first

ascertaining whether there were suitable candidates within the service, and applying

regulation 18 criteria to them. While there may be no reason in principle in ranking

candidates from within the service in an order of merit list, taking into account their

seniority, experience, qualifications and the other regulation 18 criteria, the

procedure adopted by the Commission resulted in unfairness to the appellants, and

an order of merit list that was intrinsically flawed.

DISPOSITION

93. It follows that I would have allowed this appeal and set aside the orders of the trial

judge.

Dated the 5th day of April, 2017.

R. Narine Justice of Appeal.

REPUBLIC OF TRINIDAD AND TOBAGO IN THE COURT...

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