Dindayal v Attorney General of Trinidad and Tobago

• Jurisdiction: Trinidad & Tobago
• Judge: Dean-Armorer, J.
• Judgment Date: 01 December 2005
• Neutral Citation: TT 2005 HC 107
• Docket Number: H.C.A. No. S-1680 of 2003
• Court: High Court (Trinidad and Tobago)
• Date: 01 December 2005

High Court

Dean-Armorer, J.

H.C.A. No. S-1680 of 2003

Dindayal

and

Attorney General of Trinidad and Tobago

Appearances:

Mr. Anand Ramlogan assisted by Mr. Narendra Lalbeharry for the applicant.

Ms. Ann Marie Rambarran assisted by Ms. Cielto for the respondent.

Constitutional law - Fundamental rights and freedoms — Discrimination — Applicant fire fighter bringing constitutional motion due to denial of fire service administration to give him qualification examination allowance — Whether administration in breach of ss. 4 and 5 of Constitution — Whether proof of mala fides necessary element in claim under s. 4(b) or 4(d) of constitution — First Service Regulations — Public Service Commission Regulations — Consideration of relevant law — Inequity of treatment proved — Judgment for applicant.

Dean-Armorer, J.

Introduction:

1 In this Constitutional Motion, the applicant is a fire-fighter with some twenty three (23) years of service in the Fire Service of Trinidad and Tobago.

2 The applicant alleges that ss. 4(a), (b), (d) and 5 (2) (h) of the Constitution have been contravened in relation to him by the continued denial of the administration of the Fire Service to give him an allowance termed the Qualification Examination Allowance (Q.E.A.) which was payable by virtue of a 1991 Cabinet decision.

3 In this matter, the Court was required to consider whether the proof of mala fides ought to be a necessary element of a claim that either s. 4(b) or s. 4(d) of the Constitution has been infringed.

4 Brief History of Proceedings

By Notice of Motion filed on the 19th September 2003, the applicant, Michael Dindayal, sought redress under s.14 of the Constitution, and alleged that ss.4(b) and (d) and section 5(2) (h) of the Constitution had been contravened in relation to him. 2. The applicant has sought the following declarations and relief: a) A declaration that the Chief Fire Officer and/or the Public Service Commission (“P.S.C.”) as agents of the State has treated the applicant unequally and/or unfairly and has discriminated against him in contravention of Section 4 (b) and/or (d) of the Constitution. b) A declaration that the applicant's right to the enjoyment of his property and the right not to be deprived thereof except by due process of law has been and continues to be contravened. c) A declaration that the qualifying examination allowance is payable to all fire officers holding office in the Second Division of the Fire Service of Trinidad and Tobago who have qualified for promotion via the Institute of Fire Engineers. d) A declaration that the applicant is entitled to be paid the qualifying examination allowance in accordance with the Memorandum dated 18th day of October 1991 from the Permanent Secretary, Ministry of Justice and National Security. e) Damages. f) Costs. g) All such further Orders, Writs, directions and reliefs as may be appropriate or necessary for enforcing or securing the enforcement of the fundamental rights and freedoms guaranteed to the Applicant under Section 4(b), 4(d) and 5(2) (h) of the Constitution as the nature of the case and justice may require. 3. The applicant has also identified the following as the grounds upon which his application was based: a) The applicant is a firefighter with over twenty three (23) years experience having enlisted for service in February, 1980; b) The applicant is qualified for promotion to the ranks of Fire Sub-Officer and Fire Sub-Station Officer; c) There has always existed in the Fire Service of Trinidad and Tobago a settled practice and/or policy that accepts qualifications from the Institute of Fire Engineers as satisfying the requirement for promotion to ranks within the Second Division which include Firefighter, FSO and FSSO; d) This practice/policy was recognized, codified, incorporated expressly adopted in the Fire Service (Terms and Conditions of Employment) Regulations 1998 - see Regulations 6-8; e) The right to equality of treatment from a public authority in the exercise of its functions as guaranteed by Section 4 of the Constitution of Trinidad and Tobago includes the right to equality in matters on public employment by the State. This is a corollary and incident of the application of the concept of equality to all officers employed by the State, including those in the fire service and in particular, the applicant; f) The Chief Fire Officer was authorized to pay a “Qualifying Examination Allowance” to officers in the Second Division of the Fire Service of Trinidad and Tobago who had qualified for promotion to the next higher rank but had not yet been promoted; g) The applicant has to date been denied his entitlement to payment of the qualifying examination allowance despite being qualified for promotion to the rank of FSO and FSSO; h) The Chief Fire Officer has unlawfully and arbitrarily taken a decision not to pay the qualifying examination allowance to officers who have qualified for promotion via the Institute of Fire Engineers; i) This failure of and/or refusal by the Chief Fire Officer to pay the applicant a qualifying examination allowance amounts to discrimination, inequality of treatment and violates his constitutional rights under Section 4(b) and or (d) of the Constitution. j) The applicant has been treated in an arbitrary, unequal and unfair manner because he performs the same job but receives an inferior remuneration package despite being equally qualified for promotion. 4. After having been adjourned several times with the usual directions for the filing of affidavits and written submissions, hearing of this application began on the 17th May 2005. 5. On the first day of hearing, learned counsel for the applicant sought and obtained the Court's leave, with the consent of learned counsel for the respondent for the amendment of his Notice of Motion. 6. The amended Notice of Motion included the following plea at paragraph (g) of the grounds:

1 “This qualifying examination allowance amounts to property within the meaning of s. 4(a) of the Constitution and the continuing denial of this applicant's right to the enjoyment of his property without due process of law contrary to s. 4(a) of the Constitution.”

FACTS

The Evidence

5 The totality of the evidence in this matter consisted of three affidavits:

• a) the supporting affidavit of the applicant, Michael Dindayal. This affidavit was sworn by the applicant and filed herein on the 19th September 2003;

• b) the affidavit sworn by John Springle, on the 23rd April 2004 and filed herein on the 26th April 2004;

• c) affidavit of the applicant filed on the 2nd July 2004 in reply.

6 The Affidavit of the Applicant

1

In his supporting affidavit, which bears the filing stamp of the 19th September 2003, the applicant deposed that he was an officer of the Second Division of the Fire Service of Trinidad and Tobago, that he had more than twenty-three (23) years of service and that he had never been promoted. 2. At paragraph 6 of his affidavit, the applicant testified that at the time of his recruitment in the fire service, there were two (2) routes by which an officer could become qualified for promotion. According to the applicant the two routes were: a)success in the local examination set by the Promotion Advisory Board of the Public Service Commission. The applicant cites Regulation 150(2) of the Public Service Commission Regulations. b)The second route, by which according to the applicant, a Fire Officer could become qualified for promotion was by success in the examination leading to the Preliminary Certificate from the Institute of Fire Engineers (“the I.F.E. “) in the United Kingdom. 3. Paragraph 7 of the applicant's affidavit reinforces his earlier submission and at paragraph 8, the applicant deposes, with no objection from the learned counsel for the Attorney General, that the settled practice was codified in the 1998 Regulations. In the sole affidavit filed on behalf of the respondent Attorney General there is no denial of the existence of the settled practice as alleged by the applicant. 4. At paragraph 9 and 10 the applicant extracts in full the contents a memorandum which was sent from the Ministry of Justice and National Security to the Chief Fire Officer. This memo has been referred to by the Chief Fire Officer as “the Authority”. I have considered it later in this judgment. 5. At paragraph 11 of his affidavit, the applicant deposes that Fire Officers who have passed the local examination have received the Q.E.A since October 1991. The query of Fire Officer Sookhansingh as to the apparent discrimination has been exhibited by the Applicant as “M.D. 3”. 6. The applicant stated that at paragraph 15 that he holds the Preliminary Certificate from the I.F.E. and as such is eligible for promotion. 7. The applicant has itemized and exhibited his numerous ancillary qualifications as well his numerous letters of commendation.

7 Affidavit for the Attorney General

1

In his affidavit, Fire Station Officer John Springle after testifying as to preliminary matters, quoted the points agreed upon by Cabinet in Cabinet Minute 1738 of 30th September 1991 (the 1991 Cabinet Minute). At paragraph 8, this deponent made the following assertion: “One can qualify for promotion by passing the written examinations set by the Public Service Commission….” Although Mr. Springle is silent as to the premise of his assertion, it appears to have been based on his interpretation of the 1991 Cabinet Minute. 2. At paragraph 9 of his affidavit, Mr. Springle alluded to the two allowances, the Qualification Allowance (“the Q.A.”) and the Q.E.A. Of these, Fire Station Officer Springle testified: “The payment of the Qualification Allowance and the Qualifying Examination Allowance were intended as a form of compensation to officers who have qualified for membership of the Institution of Fire Engineers and for firemen who have passed promotional exams in the...