Police Constable #14321 Richardo Morris, Police Constable #12163 Richard Hood and Police Constable #14332 Richard Smith v The Commissioner of Police and The Promotion Advisory Board
| Jurisdiction | Trinidad & Tobago |
| Judge | Madam Justice Dean-Armorer |
| Judgment Date | 17 October 2018 |
| Neutral Citation | TT 2018 HC 213 |
| Docket Number | Claim No. CV2016-02527 |
| Court | High Court (Trinidad and Tobago) |
| Date | 17 October 2018 |
IN THE HIGH COURT OF JUSTICE
BEFORE THE HONOURABLE Madam Justice Dean-Armorer
Claim No. CV2016-02527
and
Mr. Brent D. Winter, Attorney-at-Law for the Claimant
Ms. Monica Smith and Ms. Avaria Niles, Attorneys-at-Law for the Defendants
Judicial Review - Application for judicial review of the Defendant not to award thirty-five points in respect of the police qualifying examinations to the rank of Sergeant of Police — Whether the decision was irrational, procedurally unfair and in breach of the legitimate expectations of the claimants — Whether the decision of the defendants to extend holders of the L.L.B. degree an exemption from examinations was unfair and ultra vires — Whether the Order of Merit List 2016 had been published sufficiently in advance of the promotions.
Constitutional Law - Whether the decision not to award the Claimant's maximum points in the examination contravened their rights under section 4(d) of the Constitution to equality of treatment by a public authority.
The Claimants, as Corporals of Police applied, unsuccessfully to be promoted to the rank of sergeant. It was their contention that they were denied the benefit of a regular practice by which maximum point, were awarded to all officers, who had previously been successful in the qualifying examinations.
The Claimants have initiated judicial review proceedings, claiming inter alia, that they had conceived a legitimate expectation which had been frustrated by the Defendants.
On the March, 2018, I found in their favour. My reasons for so doing are set out below.
On the 20 th July, 2016, the applicants applied pursuant to Part 56:3 of CPR 1 for leave to institute judicial review proceedings.
On 30th September 2016, I granted permission to the Claimants to apply for judicial review and to seek these orders:
“3.3. An order of certiorari to remove into this Honourable Court and quash the decision of the Commissioner and/or the PAB not to award the Applicants/Intended Claimants the maximum 35 points for the EXAMINATION MARK of the promotion assessment process to the rank of Sergeant.
3.4. A declaration that the decision of the Commissioner and/or the PAB not to award the Applicants/Intended Claimants the maximum 35 points for the examination mark was unreasonable, irregular or improper exercise of discretion, contrary to section 5(3)(e) of the Judicial Review Act Ch. 7:08 (‘JRA’)
3.5. A declaration that the Commissioner and/or the PAB, in making the decision not to award the Applicants/Intended Claimants the maximum 35 points for the EXAMINATION MARK:
(a) acted in breach of the principles of natural justice and procedural fairness, contrary to section 5(3)(d) and section 20 of the JRA; and
(b) deprived the Applicants/Intended Claimants of a legitimate expectation, contrary to section 5(3)(m) of the JRA.
3.6. A declaration that the decision of the Commissioner and /or the PAB not to award the Applicants/Intended Claimants the maximum 35 points for the EXAMINATION MARK contravened their right to equality of treatment from a public authority in exercise of its functions, contrary to section 4(d) of the Constitution.
3.7. An order of mandamus to direct the Commissioner and/or the PAB that the Applicants/Intended Claimants be given the maximum of 35 points for the EXAMINATION MARK.
3.8. A declaration that the decision of the Commissioner and/or the PAB to exempt officers who held a Bachelor of Laws Degree from writing the qualifying examination for promotion to the rank of Sergeant and to award them the maximum 35 points for the EXAMINATION MARK was unreasonable, unfair and ultra vires section 20(1) of the Police Service Act, Ch. 15:01
3.9. A declaration that the decision of the Commissioner to the effect promotions to the rank of Sergeant on the 22nd day of April, 2016, without first publishing the OML as a Departmental Order in sufficient time in advancing of the making of said promotions was illegal, irrational, unreasonable, unfair and/or contrary to regulation 20(6) of the Police Service regulations 2007, and also in contravention of spirit of section 19(5) of the Police Service Act, and intended to deprive the Applicants/Intended Claimants of the opportunity to be heard.
3.10. An order mandamus to direct the PAB to compile and submit to the Commissioner a revised OML for promotion to the rank of Sergeant to reflect the proper ranking of the Applicants/Intended Claimants and for it to be published as a Departmental Order.
3.11. An order of mandamus to direct the Commissioner to make such appointments to the rank of Sergeant in compliance with the said OML.
3.12. Cost.
3.13. Such further or other, directions, or writs as this Honourable Court considers just and as the circumstances warrant.
On 30 th September, 2016, I also granted permission to the Claimants, to amend their application to seek an injunction restraining the Commissioner of Police from publishing and or considering the results of an imminent qualifying examination 2. After considering written submissions on the issue, I refused the application for an interim injunction. 3
A few days later, on 18 th November, 2016, the Claimant applied for an order for disclosure of documents. An order was made on 1 st December, 2016 granting the application for disclosure
On the 12 th January, 2017, I gave directions for the filing and service of affidavits in the substantive application. In compliance with my direction, the following affidavits were filed:
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I. The affidavit of Stephen Williams, Acting Commissioner of Police filed on the 15 th March, 2017 in opposition to the application. By his affidavit, Acting Commissioner Williams referred to and relied on the affidavit of ACP Harold Phillip, filed on 7 th October, 2016.
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II. The affidavit of Richard Smith on behalf of all the applicants in reply.
On 22 nd April 2016, the Acting Commissioner of Police Stephen Williams presided over a ceremony for the promotion of 460 officers to the rank of Sergeant of Police.
The Claimants in these proceedings had participated in the promotion process but were not among those promoted. In setting out the allegations, in support of their application for judicial review, the Claimants begin their narrative from the year 2005. At that time, promotions were based on a number of criteria including qualifications, performance and general fitness, as well as examinations consisting of four papers: English Language, Police Duties, Law I and Law II. The Claimants, then Constables, were successful at their attempt of the qualifying examination to the rank of Sergeant.
From 2006, there were alterations to the structure of the qualifying examinations. Following the year 2006, the number of papers was reduced to three: English Language, Police Duties and Law. Candidates were exempted from writing the English Paper, if they held a passing grade in English at CXC or GCE O' Levels.
Further changes were made to the structure of the promotion process. These were engendered by the Police Service Amendment Act No 13 of 2007 and the Police Service Regulations 2007. 5
Departmental Orders were issued under the hand of the Commissioner of Police, setting out the details of the new promotion procedures. Accordingly Departmental order 211 of 2007 informed the Police Service of the formation of the Promotion Advisory Board, in accordance with the Police Service Act as amended by Act 13 of 2007. The Departmental Order set out three criteria for promotion, in respect of which candidates would receive points. The maximum of 40 points could be attained under the heading of performance appraisal, while 25 points could be attained at the interview and 35 points for the examination.
Departmental Order 211 of 2007 exempted altogether holders of an LLB degree from the requirement of an examination. Accordingly, paragraph 3:9:1 provided:
“An officer who is the holder of a Bachelor of Laws Degree….shall be exempted from writing the qualifying examination for promotion….and shall be awarded thirty-five (35) points.”
Departmental Order 211 of 2007 also provided a conversion system for the conversion of marks to points, in respect of persons who had been successful in the qualifying examination prior 2006. The Departmental Order set out three tables showing the points which would be awarded for marks, which had been obtained. The first table converted to points, those marks in English earned at GCE O'Level, CXC or Police English Exam. The second table converted non-English scores achieved before 2006 and the third table converted non-English scores achieved after 2006.
Departmental order 211 of 2007 was amended by Departmental order 213 of 2007 also issued under the hand of the Commissioner of Police. Paragraph 3:8:1 of the Amended Order made this provision:
“Officers in the Second Division who have successfully passed the qualifying examination in English Language or who have been exempted from writing the qualifying examination in English Language shall be awarded 35 points”
On 17th October, 2008, Acting Commissioner of Police, James Philbert in response to an application under the Freedom of Information Act wrote to Attorney at Law Ms. Cindy Bhagwandeen in these terms:
“I have read your letter dated the 15 th September, 2008 and perused the attached documents. I am to inform you...
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