IN THE COURT OF APPEAL

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO Civ. App. No. S 134 of 2015 Claim No. CV IN THE COURT OF APPEAL IN THE MATTER OF THE JUDICIAL REVIEW ACT CHAPTER 7:08 AND IN THE MATTER OF AN APPLICATION BY NAIROB SMART FOR LEAVE TO APPLY FOR JUDICIAL REVIEW BETWEEN NAIROB SMART AND Appellant Civil Appeal No. S 164 of 2015 Claim No. CV DIRECTOR OF PERSONNEL ADMINISTRATION First Respondent JUDICIAL AND LEGAL SERVICE COMMISSION Second Respondent IN THE MATTER OF THE JUDICIAL REVIEW ACT CHAPTER 7:08 AND IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW IN ACCORDANCE WITH PART 56.3 Of THE CIVIL PROCEEDINGS RULES 1998 (AS AMENDED) BETWEEN LESLEY ALMARALES AND Appellant DIRECTOR OF PERSONNEL ADMINISTRATION First Respondent Page 1 of 49

2 Claim No. CV JUDICIAL AND LEGAL SERVICE COMMISSION Second Respondent IN THE MATTER OF THE JUDICIAL REVIEW ACT CHAPTER 7:08 AND IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW IN ACCORDANCE WITH PART 56.3 Of THE CIVIL PROCEEDINGS RULES 1998 (AS AMENDED) BETWEEN SVETLANA DASS SAVI RAMHIT AND Appellants DIRECTOR OF PERSONNEL ADMINISTRATION First Respondent JUDICIAL AND LEGAL SERVICE COMMISSION Second Respondent PANEL: A. Yorke-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 OF DELIVERY: 5 th April, 2017 Page 2 of 49

3 JUDGMENT [A. Yorke-Soo Hon J.A. and M. Mohammed J.A. concurring; Narine J.A. dissenting in a separate written judgment.] I agree with the judgment of M. Mohammed J.A. and have nothing to add. Majority judgment delivered by M. Mohammed J.A. A. Yorke-Soo Hon, Justice of Appeal Introduction 1. This appeal concerns an application made by the appellants for judicial review. The appellants are seeking to challenge the decision of the respondents to advertise the post of Senior State Solicitor under regulation 15 of the Public Service Commission Regulations (the Regulations), and thereafter to conduct interviews for the post, create a merit list and from that list appoint persons other than the appellants to assume the post. 2. The four appellants, namely, Nairob Smart (Smart), Lesley Almarales (Almarales), Svetlana Dass (Dass) and Savi Ramhit (Ramhit), were all legal officers employed with the Chief State Solicitor s Department and at the relevant time held the position of State Solicitor II. All four appellants were also members of the Judicial and Legal Service. 3. The first respondent, the Director of Personnel Administration (the DPA), is vested with the administrative responsibilities of the second respondent, the Judicial Legal Service Commission (the Commission), including those pertaining to staffing. Page 3 of 49

4 4. The Commission is a body established under section 110 of the Constitution of the Republic of Trinidad and Tobago and has the power to, among other things, appoint persons to hold or act in prescribed legal public offices. The Commission also has the power to make appointments on promotion, to transfer and confirm persons under its jurisdiction and to remove or exercise disciplinary control over persons holding or acting in certain legal offices. The Commission is responsible for appointments and promotions within the Chief State Solicitor s Department. Background Facts 5. In December of 2012, the four appellants held the position of State Solicitor II in the Chief State Solicitor s Department. At that time, there were two vacant posts for Senior State Solicitor in the Department. The job specifications for the post of Senior State Solicitor, as prescribed by the Chief Personnel Officer (CPO), required applicants to possess inter alia experience in professional legal work such as may have been gained in the lower classes (State Solicitor I & II) or in private practice On the 20 th September, 2012, the Chief State Solicitor wrote to the Attorney General via letter seeking assistance to have the post of Senior State Solicitor in the Chief State Solicitor s Department advertised. The Chief State Solicitor also requested that the Attorney General contact the Chief Justice, the head of the Commission, so that the vacant posts might be advertised. In the letter, Ms. Petal Roopnarine (Roopnarine) was recommended for the post. Annexed to that letter was correspondence from Roopnarine herself dated the 19 th September, In her letter, Roopnarine expressed her frustration about her stagnancy in her contractual position of Legal Officer III and the ensuing lack of security and she indicated that she wished to become part of the establishment of the Chief State Solicitor s Department 2. Roopnarine was then an attorney-at-law with nineteen years experience and served in the Chief State Solicitor s Department in a contractual senior position. She was the holder of a Master of Laws and had 1 See paragraph 14 of the Affidavit of Marcia Pile-O Brady at page 271 of the Record of Appeal: Volume 2 2 See page 350 of the Record of Appeal: Volume 2 Page 4 of 49

5 worked with two well respected law firms over a period of ten years before being contractually employed in the service There was evidence that the Chief State Solicitor s letter dated the 20 th September, 2012, together with the letter from Roopnarine dated the 19 th September, 2012, came to the attention of the DPA, but there was no evidence that those documents came to the attention of the Commission. 8. Under cover of a memorandum dated the 26 th October, 2012, the Chief State Solicitor sent to the Permanent Secretary in the Ministry of the Attorney General another memorandum dated the 25 th October, 2012, in which he indicated to the DPA that the request to have the two posts of Senior State Solicitor advertised in accordance with regulations 14 and 15 of the Public Service Regulations, still stood By memorandum dated the 26 th October, 2012 the Permanent Secretary in the Ministry of the Attorney General notified the DPA that there were two vacant posts of Senior State Solicitor within the Chief State Solicitor s Department. The Permanent Secretary also informed the DPA that over the years, the department had been faced with a severe shortage of experienced attorneys-at-law at the mid-management level due to a rapid turnover of staff at that level. In an effort to attract attorneys-at-law capable of filling those positions, the Permanent Secretary informed the DPA that the Chief State Solicitor thought that it was in the best interest of the department that the position be advertised. The Permanent Secretary referred to regulation 15 of the Public Service Commission Regulations which allowed for the advertising of vacancies A circular memorandum dated the 10 th December, 2012 was sent to the Permanent Secretaries and the Heads of Departments advertising the post of Senior State Solicitor 6. That memorandum set out the required qualifications, experience and skills for the position as well as its duties and 3 See paragraph 16 of the Affidavit of Marcia Pile-O Brady at pages of the Record of Appeal: Volume 2 4 See pages of the Record of Appeal: Volume 2 5 See paragraph 15 of the Affidavit of Marcia Pile-O Brady at page 271 of the Record of Appeal: Volume 2; page 278 of the Record of Appeal: Volume 2 6 See paragraph 6 of the Affidavit of Marcia Pile-O Brady at pages of the Record of Appeal: Volume 2 Page 5 of 49

6 responsibilities. The memorandum indicated that interested officers should apply on the prescribed application form for promotion The posts were thereafter advertised in the Express Newspaper on the 17 th December, 2012 and on the 7 th January, 2013, as well as in the Guardian Newspaper, on the 1 st January, The advertisements also set out the required qualifications, experience and skills for the position as well as its duties and responsibilities. 12. On the 13 th December, 2012, Smart applied for the position on the prescribed promotion form. Noted within the form were positive comments made by the Chief State Solicitor on Smart s work performance. 13. On the 7 th January, 2013, Almarales applied for the position using the prescribed promotion form. Her application was also endorsed by the Chief State Solicitor. She had seen the advertisement in the newspaper on the 17 th December, Dass and Ramhit did not apply for the posts as they had neither seen the circular memorandum nor the newspaper advertisements advertising the vacant posts within the Chief State Solicitor s Department. 15. By letter dated the 25 th February, 2013, Smart and Almarales, along with other members of the Chief State Solicitor s Department, wrote to the DPA enquiring why a decision had been made to employ the interview process for filling the vacancies and why the decision had been made to invite and interview candidates who were not within the Chief State Solicitor s office and the public service. There was no response from the DPA to this letter. 16. Almarales deposed in her Affidavit dated the 27 th May, 2014, filed in the proceedings below, that in 2008, vacancies had been announced for the position of State Solicitor II and Senior State Solicitor. According to Almarales, officers who were promoted to the post of Senior State Solicitor received their promotions without interviews being conducted. She stated that the 7 See page 282 of the Record of Appeal: Volume 2 8 See paragraph 6 of the Affidavit of Marcia Pile-O Brady at page 266 of the Record of Appeal: Volume 2 Page 6 of 49

7 established practice of the Commission had been to promote the most senior officer who was qualified and experienced as provided for in the Regulations Interviews for the post of Senior State Solicitor were conducted on the 21 st June, Eleven candidates were interviewed, including persons from within the service, namely Smart, Almarales, Ramdin and Priscilla Rampersad as well as persons from outside of the service, including Roopnarine. Only three candidates were successful at the interview and an order of merit list was compiled. The order of merit was as follows: (1) Petal Roopnarine; (2) Florence Ramdin; and (3) Priscilla Rampersad. Smart and Almarales were unsuccessful at the interview stage. Roopnarine assumed the post of Senior State Solicitor on the 1 st October, Ramdin did not assume the post and thereafter, Rampersad was offered the post and subsequently assumed duty 10. Procedural History 18. The appellants commenced judicial review proceedings against the respondents and sought the following declarations: (i) A declaration that the decision of the respondents to advertise the post of Senior State Solicitor, pursuant to regulation 15 of the Public Service Commission Regulations (the Regulations), was null, void and of no legal effect; (ii) A declaration that the decision of the respondents to invite and interview persons, pursuant to regulation 15, who were officers in the Chief State Solicitors Department and in the service, together with persons who were not in the service, was illegal, unreasonable, irrational, unfair and procedurally irregular; 9 See paragraph 26 of the Affidavit of Lesley Almarales at pages of the Record of Appeal: Volume 2 10 See paragraph 7 of the Affidavit of Marcia Pile-O Brady at page 267 of the Record of Appeal: Volume 2 Page 7 of 49

8 (iii) A declaration that the decision to disregard regulation 18 of the Regulations and the settled practice for promoting officers to the post of Senior State Solicitor when there were suitably qualified officers within the Chief State Solicitor s Department was in contravention of the Regulations, the rules of procedural fairness and the principles of rationality; (iv) A declaration that the continuing decision to interview candidates and to use the interviews as the principal basis for making appointments to the post of Senior State Solicitor violated or contravened or deprived 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; and (v) A declaration that the decision to promote/appoint a person who was not an eligible officer, namely Ms. Petal Roopnarine, to the post of Senior State Solicitor when there were several suitable and qualified persons within the particular service, was a breach of the Regulations and the decision was accordingly null, void and of no legal effect. The Regulations 19. Regulations 14, 15 and 18 of the Public Service Commission Regulations are relevant and it is convenient to set out their provisions now. These regulations provide that: 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. Page 8 of 49

9 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 authorize 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 subregulation (1) for an appointment on promotion, shall attach greater weight to (a) (b) seniority, where promotion is to an office that involves work of a routine nature, or 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) (b) (c) his general fitness; the position of his name on the seniority list; any special qualifications; Page 9 of 49

10 (d) (e) (f) (g) (h) (i) (j) (k) (l) any special courses of training that he may have undergone (whether at the expense of Government or otherwise); 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; any letters of commendation or special reports in respect of any special work done by the officer; the duties of which he has had knowledge; the duties of the office for which he is a candidate; any specific recommendation of the Permanent Secretary for filling the particular office; any previous employment of his in the public service, or otherwise; any special reports for which the Commission may call; 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. (emphasis added) Page 10 of 49

11 The Judge s Reasoning 20. The matters were heard together. By judgment dated the 29 th May, 2015, the judge, Jones J. (as she then was) dismissed the action. The judge considered regulations 14, 15 and 18 of the Public Service Regulations and the claimants submissions on procedural fairness and legitimate expectation. The core reasoning of the judge is summarised hereunder. The Regulations (a) Regulation 14 dealt with persons within the service and provided that under certain conditions, determinable by the Commission, appointments made from within the service shall be made by competition. (b) The clear purpose of Regulation 15 was to attract persons from outside of the service in circumstances where the Commission considered that either (a) there was 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 appoint a person not already in the service. In either circumstance, the Commission must advertise such vacancy. (c) Regulation 18 dealt specifically with the eligibility of officers for appointment on promotion. It merely provided a guide to the Commission as to the criteria to be used when considering promotions. Unlike regulations 14 and 15, regulation 18 contained no preconditions for its application and did not provide that seniority was the basis for promotion. (d) Regulation 18 applied whenever there was need for a promotion to be made in a department without competition. Regulation 14 applied when the Commission decided that it was in the best interest of the service to make appointments by competition. Page 11 of 49

12 (e) Regulation 15 applied when regulations 14 and 18 did not. Its purpose was to attract persons outside of the service. The regulation applied when the Commission considered 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 already in the service. The purpose of regulation 15 was to get the best candidate for the job. Here, the Commission did not have to be satisfied or be of the opinion that either (a) or (b) applied but merely had to consider that one or the other applied. The word consider suggested a much lower threshold of conviction. Regulation 15 did not treat with the word appoint or appointment, but it required the post to be advertised, thereby suggesting the need for a decision taken from among all the persons or candidates who had applied for the post. In such an exercise it appeared that the eligibility of an officer for promotion was irrelevant. (f) Regulation 15 is a stand-alone regulation, the application of which did not require the Commission to apply the regulation 18 criteria. An advertisement pursuant to regulation 15 rendered the application of regulation 18 otiose. To have applied regulation 18 to a regulation 15 advertisement would have defeated the very purpose of the regulation. The Commission would have been bound to take into consideration the criteria in the regulation to the detriment of the very persons whom the regulation wished to attract. Procedural Fairness (g) The exercise under regulation 15 was not an exercise to determine the suitability of an officer for promotion. In such an instance, the Regulations required the Commission to advertise the vacancies. The Commission did so, and was entitled to do so. Page 12 of 49

13 (h) The most logical, fair and cost effective way of determining the merits of the candidates was by way of interviews. There was no irrationality or unreasonableness in such a decision. The establishment of a merit list was the next logical step and was not prohibited by the Regulations. (i) Procedural fairness mandated that the Commission treat with all the candidates in the same way. It was not open to the Commission to say to those persons within the service who had applied, Go away, this exercise is not for you. The Commission was required to consider all the candidates for the post, including those in the service who responded to the advertisement, and was required to treat each candidate by the same benchmark. The Commission could not apply the regulation 18 considerations to the persons within the service to the exclusion of the other candidates. (j) The wording of regulation 15 suggested that the focus of that regulation was to qualifications, experience and merit. It was the claimant s experience in the service, not their seniority, that would be a relevant factor, as would the experience of any of the other persons interviewed. (k) The Commission s decision was not illegal. None of the decisions which the Applicants sought to impugn were open to challenge on the ground of being contrary to the Regulations, lacking procedural fairness or Wednesbury unreasonableness. Legitimate Expectation (l) The Applicants failed to prove the existence of an established settled practice whereby the Defendants applied regulation 18 with seniority as the principal criteria for appointments or promotions. Page 13 of 49

14 The Submissions The Appellant s Submissions - Nairob Smart 21. Ms. Basdeo, on behalf of Smart, submitted that: (a) The judge, having identified that precedent conditions were required for the use of regulation 15, failed to properly consider whether those jurisdictional pre-conditions existed. The court was required to either consider and determine whether there were suitable eligible officers within the service, or having regard to the qualifications, experience and merit of the eligible officers, it was advantageous and in the best interest of the service that a person outside the service be appointed. This was the precedent fact that had to be established before the regulation 15 process could legally be used; (b) The evidential burden in this precedent fact scenario shifted to the decision-making Commission to set out the relevant facts necessary to fully and fairly meet the challenge in these proceedings and enable the court to do justice in this matter. It was further submitted that without such evidence, the court would be unable to make a proper assessment of the decision; (c) In deciding whether the precedent facts existed, the court was required to determine whether the respondents: (i) took into account relevant information, and ignored irrelevant information; (ii) asked the right questions and undertook sufficient enquiry; and (iii) delegated a decision for which they were exclusively responsible; (d) An interview process is not one of the criteria used in assessing the eligibility of legal officers for promotion under regulation 18. Interviews were reserved for first time appointments under regulations 15 and 16. The Commission had no constitutional Page 14 of 49

15 power to unilaterally alter the regulations without the consent of the Prime Minster or the President; (e) The Commission exceeded its statutory authority in establishing an order of merit list. The regulations did not give the Commission the authority to create an order of merit list. In instances where the regulations required the establishment of such a list, it specifically said so, for example, regulations pertaining to promotions in the Prison Service, Fire Service and Police Service 11. Further, the creation of an order of merit list comprising of officers from both inside and outside of the service was unfair to those persons who were at that time performing the duties of the office and gaining the requisite experience from the position. In this regard, it was submitted that the establishment of a merit list with officers of varying hierarchical offices was unfair. This meant that Priscilla Rampersad, State Solicitor I, who was junior to Smart and the other State Solicitor II officers in terms of admission to the Bar and experience in the service, was to be promoted to Senior State Solicitor despite there being officers in the position of State Solicitor II who were eligible for such promotion. The appellant Smart had even acted in the position of Senior State Solicitor at certain times. (f) The chronological history of the events showed that the Commission considered irrelevant information, and that the use of the regulation 15 process was predetermined. Smart contended that the Commission was guided by irrelevant matters contained in: (i) (ii) (iii) The Chief State Solicitor s memoranda dated the 25 th July, 2012 and the 25 th October, 2012; The Chief State Solicitor s letter dated the 20 th 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; 11 see Regulations 19, 20(4), 150(3) 166(4), 173(4) of the Public Service Commission Regulations Page 15 of 49

16 (g) 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 the vacant posts of Senior State Solicitor. The Chief State Solicitor s letter dated the 25 th July, 2012 clearly indicated that there were at least two officers eligible to be promoted to the posts. It was argued that the Commission, as a public body decision maker, was required to sufficiently acquaint itself with the relevant information presented to it; (h) The respondents started a regulation 18 promotion process which they irrationally departed from in order to bypass Smart and to facilitate Roopnarine and subsequently appointed her to the post of Senior State Solicitor. By changing the process to accommodate Roopnarine, the respondents irrationally and unfairly neglected their mandatory obligations under their regulatory framework to consider Smart under the criteria set out under regulation 18; (i) The judge failed to consider the respondents tardy disclosure of certain highly relevant documents, namely the Chief State s Solicitor s memorandum of the 25 th July 2012, and his letter dated the 20 th September 2012, and their failure to provide evidence that those documents were not in their possession at the relevant time. The court could therefore draw adverse inferences from the failure to provide such evidence; (j) The judge found under the Regulations that the DPA was the person in whom the administrative responsibilities of the Commission was vested. Unless there was evidence to rebut the presumption of regularity, the DPA was presumed to have properly discharged its official duties by forwarding all relevant documents to the Commission, including the memorandum of the 25 th July 2012, and the letter dated the 20 th September 2012, which the Commission never denied having in its possession. 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 the DPA on this issue; Page 16 of 49

17 (k) This appellant accused the Commission of rubber-stamping the recommendation made by the Chief State Solicitor in his letter dated the 20 th September, It was also alleged that the Commission thereafter held a sham interview process to illegally bypass Smart in order to appoint Roopnarine to the position of Senior State Solicitor; and (l) Although Smart had no constitutional right to be promoted, he had a right to be treated equally and fairly by the respondents. It had been the long-standing practice of the respondents, in performing their constitutional function of filling vacancies of nonentry level public offices and in accordance with the Regulations, to first employ the use of regulation 18 once there were qualified, suitable and eligible legal officers within the particular service to fill the post. This practice cultivated in Smart a legitimate expectation that he would be considered for promotion under regulation 18 and be so promoted given his eligibility, seniority and his endorsement by the Chief State Solicitor. The Appellants Submissions- Almarales, Dass, and Ramhit 22. Mr. Maharaj S.C., on behalf of Almarales, Dass and Ramhit, submitted that: (a) 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 for appointments to be made from within the service specifically by competition; (b) 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; Page 17 of 49

18 (c) Regulation 18 sets out the criteria which must be considered in making all promotions within the department or the service and therefore could not be 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 being interviewed in consequence of the advertisement. This placed those officers at a disadvantage since the officers years of service was not considered as they were treated as first time appointees; (d) In order for the Commission to invoke its powers under regulation 15, it should have engaged the process contemplated by the Regulations and not simply baldly assert that they considered 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 should have utilised the procedure under regulation 18 and determine whether there were suitable candidates within the service to fill the vacancy or that having regard to the qualifications, experience and merit of the candidates, it would be in the best interest of the particular service that a person not already in the service be appointed. It is only after having first engaged that process could the Commission then conclude that it should advertise to persons outside of the service. The decision in Winston Gibson v. Public Service Commission 12 was relied on in support of this submission. In that case, Archie, C.J. 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 ; 12 Civ. App. No. 56 of 2006 Page 18 of 49

19 (e) The judge erred in law when she held that regulation 18 merely provided 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; (f) The judge erred further when she concluded that regulation 18 contained no preconditions for its application. Regulations 18(1) and 18(2) provide 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; (m) In interpreting regulation 15, the judge erred when she held that that regulation applied when the Commission considered 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 already in the service. The judge further erred when she held that (1) the Commission did not have to be satisfied or be of the opinion that either (a) or (b) applied but merely had to consider that one or the other applied and that (2) the word consider suggested a much lower threshold of conviction. (g) Regulation 15 cannot be triggered in an arbitrary manner whenever the Commission considered that it ought to be invoked. The Commission 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; (h) 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. The judge correctly stated that the purpose of regulation 15 was to attract persons outside of the service and thus it was clearly wrong to hold that persons within the particular service could be considered under regulation 15, notwithstanding that it was aimed at attracting persons outside of the service. The judge s reasoning on this issue Page 19 of 49

20 was contradictory. 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; (i) Once an officer is being considered for promotion, it is mandatory for the Commission to consider the criteria under regulation 18 and 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; (j) 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 appointment of Rampersad to the post could not be classified as anything other than a promotion of a State Solicitor I to the post of Senior State Solicitor; (k) The Commission failed to consider the suitability of officers within the Department under regulation 18 before engaging in the regulation 15 exercise. The Commission failed to enquire into the qualifications of the persons it sought to fill the vacancies when it decided to advertise under regulation 15. It was also submitted that the judge did not properly address her mind to these material omissions in arriving at her conclusion. The respondents adduced no evidence of the different type of person they were looking for other than one found suitable using the regulation 18 criteria before they invoked regulation 15. The decision making process was unfair having regard to, among other things, the contents of the Chief State Solicitor s memorandum dated 25 th July 2012 and his letter dated 20 th September 2012; (l) The Commission proffered no evidence as to what criteria it used to establish that it was in fact advantageous and in the best interest of the service to fill the vacancies from outside of the service. In the circumstances, the Court could draw adverse inferences as a result of the failure to provide such material; Page 20 of 49

21 (m) The Commission was entitled to conduct interviews when validly adopting regulation 15. However, the Regulations did not give the Commission the authority to create an order of merit list. Where the Regulations required the use of interviews and the drafting of an order of merit list, it was explicitly stated; (n) In his memorandum dated the 25 th July, 2012, the Chief State Solicitor recommended that Ramdin and Almarales be interviewed for the post of Senior State Solicitor and that one of them be promoted on merit. It was submitted that the memorandum demonstrated that there were at least two candidates suitable for promotion to the vacant post, namely Ramdin and Almarales. It was further submitted that of the two candidates, Almarales was the more senior officer and that the Chief State Solicitor in suggesting that the promotion be by competition was in error as to the use and application of the Regulations. This is because regulation 18(1) provides that in the event of an equality of efficiency of two or more officers, the Commission shall give consideration to the relative seniority of the officers available for promotion; (o) The judge elected not to consider the reasonable implications of the memorandum of the 25th July, 2012 and the letter dated the 20th September, 2012, which suggested a plan by the Chief State Solicitor to have interviews convened for the post of Senior State Solicitor in order to facilitate the appointment of Roopnarine. The court could not shut its eyes to the Chief State Solicitor s motive which not only persuaded the Commission, but undermined the Regulations, an essential purpose of which was to insulate appointees from favouritism and bias; and (p) The appellants contended that the respondents acted in breach of their legitimate expectation of a substantive benefit and of procedural protection based on the settled practice of the respondents in making promotions solely based upon regulation 18. It was submitted that the respondents in the past interpreted regulation 18 in such a way that of the criteria therein, it had become the settled practice to use seniority as the principal criterion. The appellants, by reason of the settled practice and because they had not been informed of a change in the settled practice, had a legitimate expectation that they would be promoted to the vacant post of Senior State Solicitor, being next in Page 21 of 49

22 line for promotion and having exceeded the minimum qualifications and experience required for the vacancy 13. The Respondents Submissions 23. Mr. Martineau S.C. submitted the following on behalf of the respondents: (a) When considering promotions within the service, regulation 18 must always apply. However, regulation 18 applies at the final stage when the decision to promote or not to promote is being made. The decision in Ashford Sankar and Ors v. Public Service Commission and Ors 14 was relied on in support of this argument. In that decision, Lord Mance opined at paragraph 18:...in the context of Regulation 18 the Board has no doubt that the word eligibility is the equivalent of suitability, and relates to the final decision whether or not to promote. Otherwise, the Regulations would contain no criteria at all regarding the basis for final decisions whether or not to promote. The Board therefore agrees with the Court of Appeal that Regulations 14 and 18 must be read together. Where a promotion is to be made from within the public service, it should be by competition, but the decision which of the competitors to promote should be made taking into account the criteria set out in Regulation 18 It was further submitted that where a promotion is to be made from within the service, it should be made by competition as per regulation 14; 13 See R (on the application of Bibi) v Newham LBC [2002] 1 WLR 237 at paragraph 59 and Paponette and Ors v Attorney General of Trinidad and Tobago [2010] UKPC [2011] UKPC 27 Page 22 of 49

23 (b) It is not correct that under regulation 15, the Commission must first consider whether there are suitable candidates within the service pursuant to regulation 18. 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 appoint a person outside of that service. If in carrying out that exercise persons already in the service apply, the Commission was entitled to consider them. Persons in the service might well satisfy what the Commission was looking for at the relevant time to fill a particular position, even though they might not be eligible to do so by virtue of the regulation 18 criteria; (c) Upon advertising the vacancy, the Commission proceeded to interview and appoint persons, which it had the power to do under section 111(1) of the Constitution. Under section 45(2) of the Interpretation Act Chapter 3:01, there was the statutory power to use such procedure as was reasonably necessary for the filling of vacant offices. The respondents reiterated that the power was being exercised in respect of candidates who had been interviewed pursuant to regulation 15, even if some of those persons were in the service at the time. It was further submitted that just as it was legitimate to use the Assessment Centre Exercise as a tool to shortlist candidates in Ashford Sankar and Ors v. Public Service Commission and Ors 15, it was also legitimate in the present case to establish an order of merit list of persons interviewed pursuant to regulation 15. In making the appointments, the Commission ranked the interviewees in an order of merit list. It was not improper for the Commission to use the process of an interview as a tool to rank the interviewees and to place their names in an order of merit list; (d) 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 was required to treat all interviewees alike. Further, the fact that the regulation 15 exercise resulted in what was in effect a promotion for Ramdin and Rampersad, did not 15 Supra Page 23 of 49

24 make what was not a promotion exercise, a promotion exercise. Judicial review is concerned with substance and not form; (e) A precedent condition for the Commission s exercise of its powers under regulation 15 existed. The evidence was that the Commission advertised the vacancy for Senior State Solicitor under regulation 15 because it considered it advantageous and in the best interest of the service to do so. In the absence of evidence of the criteria used by the Commission in deciding whether it was in fact advantageous and in the best interest of the service, the presumption of regularity applied. This question was one for the Commission alone to decide 16. There was also the contextual evidence of the opinion of the Chief State Solicitor of what was in the best interest of the service, which was to advertise the post. The Chief State Solicitor by virtue of his office would be in an optimal position to determine what was advantageous and in the best interest of the service, in terms of the perceived specific gaps and deficiencies and the specific needs of his department and of its overall structure; (f) Once the Commission was acting under regulation 15, regulations 14 and 18 were not relevant to that exercise. Regulation 14 expressly provided for appointments from within the service by competition, impliedly contemplating promotion, in which case regulation 18 became relevant; (g) In arriving at the decision to adopt regulation 15, the Commission relied on the three memoranda, dated the 25 th October, 2012, 26 th October, 2012 and 16 th November, 2012, sent to the DPA from the Chief State Solicitor and the Permanent Secretary in the Ministry of the Attorney General. There was no evidence that the memorandum of the 25th July, 2012 and the letter of the Chief State Solicitor dated the 20th September, 2012, which were in favour of Roopnaine s appointment, were before the Commission. There was also no evidence to show that the Commission considered those memoranda or was influenced by them in arriving at their decision to advertise the post. Even if the Commission had information of those documents at the relevant time, that does not provide evidence of unfairness on the Commission s part as those documents speak to the conduct of the Chief 16 See The Police Service Commission v Murray CA Civ. 143/1994 at page 16 Page 24 of 49

25 State Solicitor and not of the Commission. It is not for the Chief State Solicitor to establish that it was in the best interest of the service to have competition and the Commission did not act pursuant to competition. The Commission s evidence was that it considered that it was advantageous and in the best interest of the service to seek the services of a person outside of the service for the post and to advertise the post. In any event, the alleged error on the part of the Chief State Solicitor could not lead to the conclusion that the Commission acted unfairly; (h) 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 the proceedings. There was 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 and therefore the presumption is that it acted fairly; (i) There was no evidence of the rubber-stamping of the Chief State Solicitor s recommendations. The respondents gave evidence that the Commission considered it advantageous and in the best interest of the Service to do so having regard to the matters stated in regulation In the absence of cross-examination, proof of bad faith required cogent and compelling evidence. This is even more important where bad faith is being attributed to a group of persons. In addition, the alleged bad faith of the Chief State Solicitor, if any, who was not part of the proceedings and not a witness in the matter, could not be attributed to the Commission. Mr. Martineau relied on the decision in Police Service Commission and Another v Hayde 18 where Sharma, J.A. opined at pages 9-10: When an applicant has to prove bad faith as a necessary element to some right, it would in my view be very difficult to do so by the affidavit evidence alone unless facts are clearly undisputed and bad faith can be unquestionably inferred. In my respectful judgment, a court is more likely to be influenced by cross-examination of the relevant witnesses in order to form some opinion or assessment of him. 17 See paragraph 10 of the Affidavit of Marcia Pile-O Brady at page 210 of the Record of Appeal: Volume 2 18 C.A. Civ. 12/1999. Page 25 of 49

26 The other point I wish to make is that a court is more likely to infer bad faith if one individual is involved as opposed to a group or some commission or body. I say this because a court will be extremely reluctant to infer bad faith in the latter as this would mean that there was impropriety on the part of all. Compelling and cogent evidence would be required in a case like this ; and (j) 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 24. The following issues arise to be considered: a) Whether the Commission was mandated to first ascertain whether there were suitably qualified persons within the Chief State Solicitor s department before proceeding to advertise the vacancy for Senior State Solicitor? b) Whether regulation 15 by implication hinders persons from within the service from applying for a position which has been advertised? c) Whether regulation 15 confers upon the Commission a discretion to advertise a post in the service although there may be suitably qualified persons within the service? d) Whether the Commission had the authority to interview persons and to create a merit list in respect of persons who were within the service at the time as well as persons who were outside of the service? e) Whether the decision making process was procedurally unfair to the appellants? Page 26 of 49

27 f) Whether the respondents breached the appellants legitimate expectation based upon a settled practice that seniority was the principal criterion for appointments and promotions within the service? Analysis and Reasoning [A] The Interpretation of Regulation The crux of the matter turns on the interpretation of regulation 15. Regulation 15 provides that: 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 authorize the advertisement of such vacancy. (emphasis added) 26. It was submitted on behalf of the appellants that there are certain conditions precedent which must first be satisfied before the adoption of regulation 15. In essence, the appellants submitted that the conditions set out in regulation 15 must be considered sequentially. According to the appellants, the Commission was first required to determine, with the aid of the regulation 18 criteria, whether there existed suitable persons within the particular service to fill the vacancy, or that having regard to the qualifications, experience and merit of those persons, it would be in the best interest of the service to appoint a person from outside of the service. 27. On the other hand, the respondents submitted that the conditions in regulation 15 should be interpreted disjunctively and that the second condition constituted an independent consideration. This meant that the Commission could proceed under regulation 15 if it Page 27 of 49

28 considered that with regard to qualifications, experience and merit, it would be advantageous and in the best interest of the service to appoint a person outside of the service. 28. Regulation 15 sets out two separate conditions for appointments of persons not already in the service, namely, (i) where there is no suitable candidate already in the particular service available for the filling of any vacancy, or (ii) that having regard to qualifications, experience and merit, it would be advantageous and in the best interest of the particular service to secure the services of a person not already in that service. In our view, the language of regulation 15 supports the conclusion that the conditions set out in that regulation are to be interpreted disjunctively. In this case, a precedent condition for the Commission s exercise of its powers under regulation 15 existed under the second independently existing limb, when it considered it advantageous and in the best interest of the service to secure the services of a person not already in the service. The Commission went on to take the necessary steps to ensure compliance with the regulation by advertising the two vacant posts of Senior State Solicitor. 29. The placement of regulation 15 in the scheme of the regulations and its contents substantiate that it is to be regarded as a stand-alone provision. We agree with the reasoning of the judge. The use of the words, where the Commission considers in our opinion, does nothing more than confer a discretion on the Commission to decide whether it should authorise the advertisement of a vacancy. This wording further suggests that what is contemplated is not a definitive evaluation of officers who are within the service such as would lead to a threshold conclusion that those officers are not suitable, even before the decision to advertise occurs. Rather, the language of regulation 15, and in particular the second limb, suggests the need for a broader, more panoramic type of evaluation, by allowing for the expansion of the pool of candidates, consistent with the intention of Parliament. In this regard, we respectfully disagree with Narine J.A. at paragraphs of his dissenting judgment. 30. In our judgment and in disagreement with the submissions of Mr. Maharaj S.C. and Ms. Basdeo, there is no requirement for a threshold determination of the unsuitability of officers within the service, as a condition precedent for advertising the vacancies. It follows that we do not agree with Narine J.A. at paragraph 49 of his dissenting judgment, that he considered it consistent Page 28 of 49