Boyd et Al v Commissioner of Police; University of The Southern Caribbean and Justex System Inc.

• Jurisdiction: Trinidad & Tobago
• Judge: Rahim, J.
• Judgment Date: 10 November 2014
• Neutral Citation: TT 2014 HC 374
• Docket Number: CV 607 of 2014
• Court: High Court (Trinidad and Tobago)
• Date: 10 November 2014

High Court

Rahim, J.

CV 607 of 2014

Boyd et al

and

Commissioner Of Police; University Of The Southern Caribbean And Justex System Inc.

Appearances:

Mr. K. Wright instructed by Mr. F. Hinds for the claimants

Mr. R. Martineau SC and Mr. G Ramdeen for the First defendant

No appearance of the Second and Third defendants

Civil practice and procedure - Res judicata — Whether issue of estoppel applies in claims of judicialreview — Application for judicial review of decision of the Commissioner of Police to require claimantsto re-sit part of promotion exam.

Rahim, J.

1 The claimants wereall Second Division officers of the Trinidad and TobagoPolice Service and they bring this application for Judicial Review of the decision of the First defendant, theCommissioner of Police (COP) to require them to re-sit the written part of the examination for promotion to the First Division they having previously done so on one occasion, on the basis that the COP is bound by the order of another court made in a case with similar circumstances and they seek consequential orders in respect thereof. The Second and Third defendants have played no part in these proceedings.

2 The fixed date claim filed on the 28th February 2014 was amended by the claimants on the 7th April 2014, and so the relief whichthey now seek are a declaration that the decision of the COP to have them re-sit the examination is unreasonable, improper and unfair; an order of certiorari to quash that decision and a declaration that the examination administered on the 18th February 2014 (prior to the court's grant of permission to apply for judicial review and the grant of an interim injunction which was later discharged), is null and void. There are no other relief prayed save for damages and costs and further relief as the court sees fit. In particular the claimants havenot asked this court to declare that the policy procedure and/or system used by the defendant and/or the person contracted for evaluating and/or assessing First Division Police Officers for promotion under Regulation 19 of the Police Service Regulations is unfair, null and void and of no effect.

3 The claimants allege that the COP has the ultimate responsibility to makepromotions within the police service by virtue of a combination of the provisions of the Constitution and the Police Service Act Chap 15:01. In so doing the COP is to be guided by the regulations contained in the Police Service Regulations 2007, in particular regulation 19. It is the claimants' case that the COP has acted contrary to these regulations by deciding to implement what they refer to as a pass mark of 65. This decision, they say, goes against that which is set out in Regulation 19(3).

4 To understand the claim it is necessary to set out sub-regulations 1 to 11 and 13 of regulation 19 which read as follows:

19

(1) The Commissioner shall publish a Departmental Order specifying the points system to be followedby a supervising officer in the preparation of a performance appraisal report. (2) The points awarded to a police officer basedon his performance appraisal report shall represent twenty-five per cent and the results of the promotional assessment process shall represent seventy-five per cent of his final grade as stated in the Order of Merit Listmentioned in sub-regulation (9). (3) A police officer shall not be considered forpromotion to and within the First Division unless he has attained sixty or more points on his performance appraisal report. (4) The promotional assessment process shall be conducted by the person contracted, who shall appoint such number of panels, comprising not less than three persons each, as the person considers necessary and the members of each panel shall possess appropriate skills, expertise and qualification in policing and particularly to the rank under consideration. (5) The promotional assessment process shall comprise of two stages as follows: (a) stage one shall require every qualifying officer to write a qualifying examination, from which only the top performing candidates as determined by the person shall proceed to stage two; and (b) stage two shall be a suitability assessment process. (6) To assess the competencies of an officer relevant to the position for which he is being considered, the suitability assessment process may include, inter alia, role play, exercises dealing with hypothetical situations, and other appropriate methods of assessment that are consistent with contemporary professional standards and needs of policing. (7) The person shall establish the competencies before conducting the suitability assessment process and such competencies shall be given in writing to each qualifying candidate at least one week before the suitability assessment process is conducted. (8) The competencies, which may comprise core ortechnical competencies, may include matters such as leadership, communication, initiative, decision making, problem solving, customer relations, integrity, and organizational awareness. (9) Subject to sub-regulation (2), every officerconsidered for promotion shall be rated according to the results of the promotional assessment process specified in this regulation together with the points awarded to him based on his performance appraisal report and beplaced on an Order of Merit List. (10) The person shall, as soon as the promotional assessment process is completed, submit the Order of Merit List to the Commissioner, who shall immediately cause it to be published in a Departmental Order. (11) Subject to sub-regulation (12), an Order ofMerit List shall be valid for a period of twelve monthsfrom the date of its publication under sub-regulation (10). (13) An officer who is not promoted during the twelve month period or such other period as ordered by the Commissioner under sub-regulation (12) is required, to repeat the promotional assessment process.

5 The court understands the process as set out in the regulations to be this; in order for an officer of the Second Division to move on to the promotional assessment process he must first have obtained sixty or more points in his performance appraisal report (a report submitted by a supervisor and not a written examination). This performance appraisal report accounts for 25% of the final grade.

6 Once an officer has been selected as a candidate for promotion via the performance appraisal report, the officer is then required to enter the promotional assessment process. This in itself is a two stage process. At the first stage the officer sits a written qualifying examination. The second stage takes the form of an interview which may include practical exercises. This second stage of the promotional assessment process is called the suitability assessment process. The promotional assessment process, inclusive of the suitability assessment process, accounts for the balance of the final grade inthe amount of 75%. Having completed the entire process, the officers who are found eligible for promotion by way of final grade rating are placed on a merit list.

7 It is with the promotional assessment process and in particular the firststage thereof that the claimants' complaints lie. They claim that having qualified for candidacy by way of theperformance appraisal report in 2011, they sat the written examinations. All things being equal, according to them, the next stage would have been the interview stage, that is, the suitability assessment process. The claimants say that they were prevented from entering upon this suitability assessment process because of the decision of the COP to institute a pass mark for qualifyingentry into the said suitability assessment process after they had already written the first stage of the promotional assessment process. This pass mark they say is that of 65. The Police Service Regulations provide no such criteria but sets out that only the “top performing candidates” shall proceed to the suitability assessment process, see Regulation 19(5(a). As a result of the imposition of a pass mark, the claimants say that they have been prohibited from advancing to the suitability assessment stage. They say that when they entered into the written examination no such pass mark existed or could have existed pursuant to the Regulations and therefore the decision to now deny them advancement to the interview stage on that basis is unfair, arbitrary and unlawful. So too by extension is the decisionto have them re-sit the first stage written examinations which were originally carded for the 18th February and 19th March 2014 but have since been postponed. This, the court understands to be the fulcrum of the case forthe claimants.

8 In answer the COP submits that there simply is no evidence that he has infact applied a pass mark of 65 in relation to the written stage of the promotional assessment process and thatthere is no credible and reliable evidence on the claimants' case to this effect. Further and in any event he submits that the body responsible for the conduct both stages of the promotional assessment process is not theCOP but the “person” who is referred to in regulation 19, namely the entity contracted to conduct such examinations. So that it is his submission that not only did he not institute a pass mark, her could not have done so according to the regulations and so did not.

9 Further, the claimants submit that the decision of the COP goes against the grain of the order made by my brother Rampersad J inthe case of Hazel and Caruth v. The Commissioner of Police and The Attorney General of Trinidad and Tobago CV2011 01894 as far as that order purports to rule inter alia that the policy, procedure and/or system used for promotion under regulation 19 is null and void. They say that their circumstances are the same as that of the claimants in Hazel and Caruth and that they ought to be treated in the same manner. That the policy, procedure...