Re Trinidad & Tobago Unified Teachers' Association
| Jurisdiction | Trinidad & Tobago |
| Judge | Jairam, J. |
| Judgment Date | 13 June 1997 |
| Neutral Citation | TT 1997 HC 115 |
| Docket Number | No. 414 of 1996 |
| Court | High Court (Trinidad and Tobago) |
| Date | 13 June 1997 |
High Court
Jairam, J.
No. 414 of 1996
Mr. Douglas Mendes instructed by Ms. Roberta Clarke for the applicant.
Mr. Nolan Bereaux and Mr. Ricky Harnanan instructed by Ms. Christine Charles for the respondents.
Judicial review - Whether the Government was empowered to employ persons to perform functions performed by members of the Teaching Service since the same functions are normally performed by members who are appointed by the Commission — Whether the issue was one of constitutional improprietory or whether it was one of freedom of contract — The court found that the Government had not sought to employ any person in the public services when it employed the tutors to complement its teaching programme — Court also found that there was no express or implied provision in the Constitution prohibiting the state from contracting with individuals to perform functions identical or similar to those established in the public service — Motion dismissed.
This matter involves an issue of great constitutional significance and I have been told by both sides that this is a unique case as no one has ever brought a case like this or similar to is before the courts in this country.
The power which the respondents are contending for in the face of the Constitution of the Republic of Trinidad and Tobago (“the Constitution”) requires a determination of the boundaries of the Constitution. The main issue or question in this application to apply for judicial review, is whether the Permanent Secretary (“the Permanent Secretary”) of the Ministry of Education (“the Ministry” or “the Minister” where the context so admits) acting on behalf and on the direction, of the Government of Trinidad and Tobago (“the Government”), is authorised by law to enter into contracts with persons or to appoint persons to perform duties normally performed by members of the Teaching Service of Trinidad and Tobago (“the Teaching Service”), having regard to the fact that members of the Teaching Service are appointed by the Teaching Service Commission for Trinidad and Tobago (“the Commission).
In order to resolve this matter, some of the questions which arise are:
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(1) Is the Government empowered to employ persons to perform functions performed by members of the Teaching Service since the same functions are normally performed by members who are appointed by the Commission?
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(2) Is this an issue of constitutional impropriety, or, is it one of freedom of contract?
The material facts which raise the main issue or question are not in dispute and I now state them. I take these facts from the sole affidavit filed on February 14, 1996 on behalf of the applicant by one Mr. McKensley Nathasingh, the Second Vice President of the applicant as well as from the only affidavit filed on April 8, 1997 on behalf of the respondents by one Mr. Rawle Richardson, the Director of School Supervision in the Ministry. The applicant is The Trinidad and Tobago Unified Teachers' Association (“the applicant” or “TTUTA” or “the Association”) and was and is at all material times, certified by the Registration Recognition and Certification Board established under the Industrial Relations Act, Chap. 88:01 as the appropriate recognised majority Association in respect of “all persons holding posts listed in the First Schedule to the” Education Act, Chap.39:01 (“the Act”).
The school system which is established and regulated by and under the Act comprises 2 main types of school, i.e. primary schools and secondary schools. In primary schools, students are tutored to sit the Common Entrance Examination, on the basis of which entry to secondary schools is determined. In the secondary school system, students are tutored to sit ‘O’ Level (CXC) and ‘A’ Level examinations. There are of course, a finite number of places in the secondary school system with the consequence that not all students who are successful at the Common Entrance Examination gain entry into a secondary school. A student is considered to have failed the examination if he/she is not successful in obtaining placement in a secondary school.
Students who are not placed and are young enough, are permitted a second opportunity to sit the Common Entrance Examination. However, for those students who remain unplaced and who do not qualify to have another chance to sit the Common Entrance Exam it has been a settled practice to admit them into a programme leading to an examination called “the School Leaving Certificate”. For this purpose, students who select to take this route have been required to undergo a two year programme in Standard 6 and 7 at a primary school or at a Post Primary Centre (“a Centre” or “the Centre”) set up for this purpose. Classes for this programme are conducted either at the existing facilities at primary schools or at Centres constructed specifically for that purpose at primary schools.
Prior to September 1995, staffing for the programme was obtained exclusively from the existing primary school teaching establishment. The teachers in this programme, over the years, were persons working in the primary school teaching system and holding the posts of Assistant Teacher II or III or Teacher I.
Both the primary schools and the programme are normally staffed by persons appointed by the Commission to the post of Teacher 1. Eligibility for such an appointment is successful upon completion of the 2 year course at a Teachers' Training College as evidenced by the Teachers' Training College Certificate. As is not to be entirely unexpected, there has always been a dearth of suitably qualified persons in those posts with the consequence of which is that the Commission in the discharge of its functions has, over the years, given persons temporary appointments to Assistant Teachers II or III, so as to ensure adequate staffing of both the primary schools and the programme.
At present over 2,000 of these temporary appointments are in respect of posts which are supposed to be filled by Teachers I. Eligibility for appointment as Assistant Teacher II is 5 ‘0’ Level passes; Assistant Teacher III is a minimum of 5 ‘O’ Level and 2 ‘A’ Level passes. Apparently, the policy of the Ministry has always been that persons holding these temporary appointments will be encouraged to obtain the Teachers' Training College Certificate which ensures eligibility for a permanent appointment as Teacher I. Undoubtedly, the effect of the foregoing will be to raise the standards in the education system and is indeed laudable.
The Commission, as preserved by the Constitution (the Commission having been established by Act No.25 of 1968 (which was promulgated on September 26, 1968) which amended the Trinidad and Tobago (Constitution) Order in Council 1962 (“the 1962 Constitution”) by adding, inter alia, section 99A(1)) is the competent authority to make appointments to the posts of Teacher I, Assistant Teacher II and III in the Teaching Service. And these are made on the basis of recommendations made to the Commission by the Recruiting Committee of the Ministry (“the Committee”). The Committee is comprised of officials from the Ministry and has been delegated with the authority to interview candidates for these posts. The Committee prioritise candidates in order of merit, and places and recommends them to the Commission for appointment.
Due to the number of students unplaced after the Common Entrance Examination, the needs of the programme have always varied over the years. Of the approximately 33,000 students who wrote the Common Entrance Examination in 1994, about 21,000 were placed at government assisted and public secondary schools at public expense. However, some 12,000 students were unable to be placed at public secondary schools because of the relatively limited number of Form 1 places at those schools. Of those 12,000 unplaced students, 5,000 were entitled to a second opportunity at the Common Entrance Examination. The remaining 7,000 did not! In August 1994, only 2,000 students could have been accommodated in the programme which meant that approximately 5,000 unplaced students did not have any opportunity to further their education.
It would however appear that participation by students in the programme dwindled over the years to the point where such programmes were being conducted in only a few primary schools or Centres. Consequently, in or about 1994, renewed efforts were made by the Ministry to revive and revitalise the programme. This is borne out by a Memorandum dated May 3, 1994 signed by Mr. Hatim Gardener, the Acting Director of School Supervision on behalf of the Permanent Secretary to School Supervisors I and II and all Principals of primary schools (see exhibit “MN 2”).
Mr. Rawle Richardson in his aforesaid affidavit said that the Ministry viewed this situation with grave concern having regard to:
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(2) the spiralling rate of youth crime,
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(3) the reportedly large number of young citizens with low self-esteem,
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(4) the large number of young people deficient in basic numeracy and literacy skills,
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(5) and the high rate of youth unemployment.
In view of the foregoing, the then Honourable Minister of Education requested approval of the then Cabinet in August, 1994 for a further 2,474 places in the programme by (i) the establishment of 52 new Post Primary Centres by the construction of 104 additional classrooms, 2 each at the existing primary schools; and (ii) an increase by 52 of the number of posts in the teaching establishment of the primary schools in order to facilitate the proposed expanded programme.
In pursuance of the aforesaid request, Cabinet, on September 1, 1994 agreed to the construction of the 52 new Centres and to an increase in the teaching establishment at the primary level by the creation of 52 posts of Assistant...
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