Attorney General v Jaipaul

• Jurisdiction: Trinidad & Tobago
• Judge: Moosai, J.A.
• Judgment Date: 28 January 2015
• Neutral Citation: TT 2015 CA 3
• Docket Number: Civ. App. 35 of 2011; CV 2008-00264
• Court: Court of Appeal (Trinidad and Tobago)
• Date: 28 January 2015

Court of Appeal

Yorke-Soo, J.A.; Narine, J.A.; Moosai, J.A.

Civ. App. 35 of 2011; CV 2008-00264

Attorney General

and

Jaipaul

Appearances

Mr. N. Byam, Mr. C. Sieuchand and Ms. K. Oliverie for the appellant.

Mr. K. Ramkissoon, Mr. K. Samlal and Ms. S. Mohammed for the respondent.

Civil practice and procedure - Whether it was correct for the appellant to be party to the originating motion — Whether the originating motion should have been brought directly against the Public Service Commission — Whether the originating motion was an abuse of process if an alternate remedy was available — Whether there was a worthwhile purpose in the grant of a declaration that the respondent be appointed with retroactive effect — Whether the judge had the power to grant such a declaration in retrospective terms.

Constitutional Law - Fundamental rights and freedoms – Equality of treatment – Claim that the Public Service Commission had breached established practice and procedure by promoting officers ranked lower than the appellant to the position of Customs and Excise Officer I – Whether the judge erred in law in finding that the respondent's right to equality of treatment from any public authority in the exercise of its functions pursuant to section 4(d) of the Constitution had been breached.

Moosai, J.A.

I. INTRODUCTION.

1 This appeal concerns a constitutional motion filed by the respondent alleging inequality of treatment contrary to section 4(d) of the Constitution of Trinidad and Tobago [Chap. 1:01] (“the Constitution”) and seeking constitutional redress pursuant to section 14 thereof. The respondent claimed that the Public Service Commission (“PSC”) breached established practice and procedure by promoting to the position of Customs and Excise Officer I, officers in the public service who were ranked lower than the respondent on the Order of Merit list, despite the fact that promotions in the public service are to be made in accordance with the placement or ranking of officers on the Order of Merit List. The trial judge, Madam Justice Dean-Armorer, held in favour of the respondent, concluding that there was inequality of treatment against the respondent by the PSC. She also granted a declaration in favour of the respondent against the State (which was the only named defendant to the proceedings) for the constitutional breach by the PSC, to the effect that the respondent was entitled to be appointed to the office of Customs and Excise Officer I with retroactive effect in accordance with his position on the Order of Merit list. The State (hereinafter “the appellant”) now appeals the entirety of the trial judge's decision.

2 Having regard to the issues canvassed, I find:

• (a) The PSC performs core public functions. It is an authority within the meaning of sections 19(8) and (9) of the State Liability and Proceedings Act (SLPA) [Chap. 8:02]. Sections 19(8) and (9) provide that proceedings against such authorities are deemed proceedings against the State. The Privy Council in Attorney General v. Carmel Smith [(2009) UKPC 50] determined that in constitutional proceedings for redress pursuant to section 14 of the Constitution, the Attorney General is to represent any statutory body which is deemed by section 19 (8) and (9) to be part of the State. Thus, the appellant is the proper party to these proceedings. It may have been an option, however, to join the PSC as a second named defendant and interested party in the matter under rule 19.2 of the CPR. I agree with this decision of the trial judge;

• (b) There was a clear prima facie case that the respondent was treated less favourably than others similarly circumstanced, and that the appellant could not objectively justify the difference in treatment. Thus, the respondent could not have been criticized for continuing along the constitutional path. Moreover, on the facts of this case, it is doubtful whether judicial review, rather than a constitutional motion, would provide an adequate or effective remedy. Accordingly, and in agreement with the trial judge, it was proper for the respondent to commence proceedings by way of a constitutional motion;

• (c) That ordering that the respondent be promoted to the office of Customs and Excise Officer I with retroactive effect in accordance with his position on the Order of Merit List, would serve no worthwhile purpose. The respondent had already been properly promoted by the PSC in the course of the proceedings. It was thus within the jurisdiction of the trial judge, in accordance with rule 26(1)(l) of the CPR, to exclude this particular issue from determination, as substantive justice could be done between the parties on the other issues before the court;

• (d) As regards his promotion, the respondent was treated differently from his comparators and the PSC failed to objectively justify the difference in treatment. Therefore, the trial judge was correct in finding that there was a breach by the PSC of the respondent's right to equality of treatment contrary to section 4(d) of the Constitution; and

• (e) There is merit in the appellant's ground of appeal that the judge fell into error by granting a declaration that the respondent was entitled to be appointed and/or promoted to the position with retroactive effect in accordance with his position on the Order of Merit List.

II. FACTUAL BACKGROUND.

3 In December 1994, the respondent was appointed to the post of Clerk 1 in the Ministry of Works and Transport. Three years later, in November 1997, a circular memorandum was issued by the Director of Personnel Administration to Permanent Secretaries and Heads of Department in the government service, inviting applications from suitably qualified officers to fill the office of Customs and Excise Officer I, a post in the Ministry of Finance. The memorandum also stated that, upon successful completion of a three-year in-service training course, the salary of the Customs and Excise Officer I would be in Range 31. In response to the said memorandum, the respondent applied for the position of Customs and Excise Officer 1 with the Ministry of Finance.

4 The PSC is guided in respect of the criteria for appointment by regulation 12 of the Public Service Commission Regulations (“the Regulations”), which provides that candidates for permanent appointment shall be selected on the basis of written competitive examinations and interviews. Candidates are assessed on the required knowledge, skills and abilities and from this an Order of Merit List is compiled. It is the established practice and procedure of the PSC that promotions are made based on the ranking and placement of officers on the Order of Merit List.

5 By letter dated 27 March 2000 the respondent was informed that he had been accepted as a candidate to write the supplemental Civil Service Entrance Examination for the said position. He wrote the exam, was successful and became qualified for the promotion interview. On 25 September 2000 the respondent was interviewed by a three-member panel for about thirty minutes. In his affidavit evidence, he deposed that the Chairman of the interview panel informed him that candidates would be promoted on the basis of a merit list which is compiled by reference to the candidate's performance and score in the interview. This evidence was consistent with the evidence of the appellant in respect of the criteria for appointment.

6 Following the interview, nearly six years passed and the respondent had not received any feedback in respect of the status of his application for the position of Customs and Excise Officer I. Rather, in July 2006, the respondent was informed by another applicant that other officers had been appointed to the position of Customs and Excise Officer I. Among those appointed was Mr. Knux Laltah. Upon receipt of this information the respondent, convinced that his performance in the exam and interview was good, made enquiries as to his own status, but his efforts were futile. He then sought the advice of his attorney-at-law and was advised to make an application to the PSC under the Freedom of Information Act [Chap. 22:02] (the FOIA), in order to obtain a copy of the Order of Merit List which detailed his ranking among other applicants.

7 The respondent made his first application for information under the FOIA on 19 July 2006, whereby he requested:

• (i) a copy of the Order of Merit List of persons who passed the interviews held for Customs and Excise Officer I on 2/09/2000 at the PSC;

• (ii) a copy of seniority list for the Customs and Excise Department; and

• (iii) a copy of the list of names of all persons presently in training for appointment to the office of Customs and Excise Officer I at the invitation of the PSC.

8 Section 15 of the FOIA specifies that the time limit for determining such applications for information is “as soon as practicable but in any case not later than thirty 30 days after the day when the request is made”. The statutory deadline for providing the requested information under the FOIA expired on 19 August 2006. Though the respondent's application was acknowledged by the PSC, the information sought was not supplied. On 21 August 2006, the respondent caused his attorney to issue a formal pre-action protocol letter to the PSC. The PSC then made partial disclosure of the Order of Merit List, showing the names of officers, but omitting their ranks or placement numbers as well as the scores and marks awarded to the various officers who were interviewed.

9 This caused the respondent's attorney to file another application under the FOIA on 20 September 2006 specifically requesting a copy of the Order of Merit List, this time bearing the details which were excluded from the first list that the respondent received. It was further requested that the merit list be properly headed and include the actual scores of officers interviewed. In response to this...