Nikhil Milan Sankar v The Permanent Secretary of the Ministry of Education
| Jurisdiction | Trinidad & Tobago |
| Judge | Mr. Justice K. Ramcharan |
| Judgment Date | 31 March 2020 |
| Neutral Citation | TT 2020 HC 98 |
| Court | High Court (Trinidad and Tobago) |
| Docket Number | Claim No: CV2019-00355 |
| Date | 31 March 2020 |
IN THE HIGH COURT OF JUSTICE
(PORT OF SPAIN)
the Honourable Mr. Justice K. Ramcharan
Claim No: CV2019-00355
Mr. Anand Ramlogan, SC. Mr. Douglas Bayley instructed by Mr. Che Dindial for the Claimant Ms. Maria Belmar-Williams instructed by Ms. Svetlana Dass for the Defendant.
In Trinidad and Tobago, students completing 7 years of secondary education take exams over a 2-year period called the Caribbean Advanced Proficiency Examinations (CAPE). These examinations are administered by the Caribbean Examination Council (CXC). Each subject is graded on a scale of I – V, and within each subject, there are different segments which are graded A – E. Every year, the Government of Trinidad and Tobago awards scholarships based on the results of CAPE to students. The recipients are awarded on the basis of performance in the examinations, subject to certain criteria, and are afforded tuition and other fees at tertiary institutions. The reward for the student is therefore of significance, and many schools base their reputation on the number of scholarships they attain each year.
The Claimant in this matter wrote CAPE in mid-2018, and was hopeful of being awarded a scholarship. However, when the list of awardees was announced by the Ministry of Education, he was not selected for a scholarship.
On the 18th of February, 2019, leave was granted to the Claimant to apply for judicial review against the failure of the Defendant to award the Claimant a Caribbean Advanced Proficiency Examination (CAPE) National Scholarship, in the category of General Studies, Open (hereinafter referred to as an “open scholarship”).
The instant proceedings also concerns the failure of the Defendant to take into account relevant information in awarding the said open scholarship and the deprivation of the Claimant's legitimate expectation to be awarded the said scholarship.
By Fixed Date Claim Form filed on the 28th of February, 2019, the Claimant sought the following reliefs:
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i. An order of certiorari to remove into the High Court of Justice and quash the said decision;
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ii. A declaration that the failure of the Defendant to award the Claimant a Caribbean Advanced Proficiency Examination (CAPE) National Scholarship, in the category of General Studies, Open on the 26th of October, 2018, is plainly unreasonable and irrational in the circumstances of this case;
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iii. A declaration that the Defendant failed to take into account relevant information and acted in bad faith in his failure and refusal to award the Claimant a Caribbean Advanced Proficiency Examination (CAPE) National Scholarship, in the category of General Studies, Open;
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iv. A declaration that the decision of the Defendant dated the 26th of October, 2018, to refuse to award the Claimant a Caribbean Advanced Proficiency Examination (CAPE) National Scholarship, in the category of General Studies, Open deprived the Claimant of his legitimate expectation that he would award that said Scholarship;
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v. A declaration that the Defendant is entitled to an award of an Open Scholarship in General Studies Caribbean Advanced Proficiency Examination (CAPE) National Scholarship, 2018;
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vi. An order of certiorari to remove into this Honorable Court to quash the failure and refusal of the decision of the Defendant made on the 26th of October 2018, to award the Claimant a Caribbean Advanced Proficiency Examination (CAPE) National Scholarship, in the category of General Studies, Open;
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vii. An order of certiorari to remove to this Honorable Court to quash the policy where candidates are only placed into General Studies cognate group if their subject selection do not place them into one of the other nine cognate groups;
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viii. An order of mandamus directing the Permanent Secretary, Ministry of Education to consider awarding the Claimant a Caribbean Advanced Proficiency Examination (CAPE) National Scholarship, in the category of General Studies, Open;
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ix. Costs;
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x. Any further relief as to the Honorable Court may consider just.
The grounds relied on by the Claimant are as follows:
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(i) Unreasonable and irregular or improper exercise of discretion;
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(ii) Bad faith and irrelevant considerations;
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(iii) Deprivation of a legitimate expectation.
On the 14th of August, 2019, the Claimant filed its written submissions. The Respondent filed written submission on the 27th of September, 2019, and the Claimant replied thereto on the 25th of October, 2019.
After the Claimant completed his CAPE studies and examinations he attained Grade 1s with a straight A profile in the following subjects:
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i. Communication Studies Unit 1
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ii. Accounting Units 1 & 2
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iii. Computer Science Units 1 & 2
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iv. Pure Mathematics Units 1 & 2
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v. Caribbean Studies Unit 1
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vi. Economics Unit 1.
The Claimant received a Grade 2 in Economics Unit 2 with a profile of A, C, B.
Due to his choice of subjects, the Claimant fell into two cognate groups, namely, Business Studies and General Studies.
A Circular Memorandum No. 8 of 2018 dated the 15th of February, 2018, (hereinafter referred to as “the Memorandum”) was issued by the Defendant to candidates where they were informed of the following criteria for the selection and ranking of National scholarships:
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(i) A candidate must be a citizen of Trinidad and Tobago and must be able to provide proof of citizenship of Trinidad and Tobago;
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(ii) A candidate must attain Grades I or II in at least eight (8) subject Units, over a period not exceeding two (2) consecutive years in Form 6;
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(iii) The eight Units must comprise Caribbean Studies, Communication Studies, and six Units of Groups A and B as specified in the attached Appendix. Both Units of each subject are required for the specific cognate groupings: Business Studies, Creative and Performance Studies, Environmental Studies, General/Overall Studies, Modern Studies/Humanities, Information and Communication Technology Studies, Language Studies, Mathematics, Natural Sciences and Technical Studies.
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(iv) At least five of the Units from Groups A and B must be at Grade 1.
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(v) Variations to ii and iv above may be considered for the seared of scholarship in the cognate groupings Creative and Performance Studies, Information and Communication Technology Studies and Technical Studies.
The Claimant satisfied the above-mentioned criteria. Further, there also existed a benchmark for the award of scholarships which was brought to the attention of the Claimant. It informed them of the number of Grade 1s and A's required for open and additional scholarships. In particular, for an award of a scholarship in General Studies the criteria are as followed:
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i. To be eligible—any three subjects.
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ii. Benchmark — for an open scholarship — 8 Grade 1's.
The Claimant did an additional subject and as such satisfied the second requirement of the benchmark.
On the 26th of October, 2018, when scholarships were announced the Claimant was not awarded one. The Principal was informed by the Director of Scholarships and Advanced Training Division that although he was considered under the Business Studies cognate group he did not meet the established benchmark having attained grade 1s in seven units as opposed to eight units.
The Claimant was also informed that in order for him to be considered for the General Studies cognate group, he must not have been eligible within any other group. This was the first time the Claimant or his principal was ever informed of this policy.
The Claimant issued a pre-action protocol letter to which the Defendant responded by stating that there exists a policy which provides that candidates are placed in the General Studies cognate group if their subject selections do not place them into one of the other nine cognate groups.
The Claimant's Attorney-at-Law then wrote to the Defendant requesting a copy of the said policy but it was never provided. Instead, the Defendant produced the Memorandum which contained the criteria that was already within the Claimant's knowledge.
The Claimant maintained that neither was there a policy/document provided nor communicated to him which evidenced that if he fell into one cognate group he could not be placed in the General Studies cognate group prior to taking the CAPE examination.
Ms. Gajadhar gave evidence of the core functions of the Scholarship and Advanced Training Division (hereinafter referred to as “the SATD”):
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i. Processing the offer of training awards to nationals;
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ii. Serving as the Secretariat of the Scholarship Selection Committee and the Scholarship Review Committee;
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iii. Implementing procedures to enable successful candidates to take up their awards;
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iv. Servicing awards, monitoring the progress of trainees and ensuring that they make themselves available to fulfil their contractual obligations;
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v. Facilitating the placement of returned scholars;
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vi. Ensuring the recovery of monies spent on awards in the case of defaulting trainees.
Ms. Gajadhar stated that Cabinet Minute No. 213 of 11th of February, 2016, (hereinafter referred to as “the Cabinet Minute”) provided a quota system for the award of scholarships in that no more than 400 should be awarded in a given year. A further decision was taken in that there should be an establishment of quotas in each subject group aligned with the list of national human resource development needs.
She also went on to state that from time to time the cognate groups may be altered to: reflect changes in CAPE subjects offered to students; attempt to balance inequities that may arise as a result of the number of students writing an examination in a particular...
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