Rudolph Jones v The Public Service Commission

• Jurisdiction: Trinidad & Tobago
• Judge: Mr. Justice Frank Seepersad
• Judgment Date: 26 July 2023
• Neutral Citation: TT 2023 HC 232
• Docket Number: Claim No. CV2021-01659
• Court: High Court (Trinidad and Tobago)

Between

Rudolph Jones

Claimant

and

The Public Service Commission

Defendant

Before

the Honourable Mr. Justice Frank Seepersad

Claim No. CV2021-01659

In the High Court of Justice

Appearances:

1. Mr. K. Thompson, Attorney-at-law for the Claimant.

2. Ms. N. Nabie, Ms. J. Chong Sing and Ms. M. Benjamin, Attorneys-at-law for the Defendant and the Attorney General.

DECISION

1 Before the Court for its determination is the Claimant's Fixed Date Claim Form filed on 2 March 2022 whereby the Claimant sought the following:

• a. A Declaration that the decision of the Public Service Commission (“PSC”) whereby it considered for promotion and promoted retroactively retired public servants, Mr. Sherwin Welch, Ms. Mary Rarnirez and Ms. Patricia Lashley, while it failed in November 2016 to consider and promote retroactively the Applicant, a retired public servant, to the office of Fire Station Officer, contravened the Applicant's fundamental right to equality of treatment from a public authority in the exercise of a public function as guaranteed by Section (b) of the Constitution of Trinidad and Tobago (the Constitution);

• b. A Declaration that the decision of the PSC made in or about December 2001, considering for promotion and promoting Mr. Dougnath Rajkumar to the office of Prison Officer II pursuant to an order of the Judicial Committee of the Privy Council (the Privy Council) in Privy Council Appeal No. 1 of 2001 and its decision made in or about 2009 considering for promotion and promoting Mr. Sherwin Welch to the office of Field Auditor IV pursuant to an order of the High Court in CV2007-03007, while deciding in February 2021, not to promote the Applicant to the office of Fire Station Officer pursuant to an order of the Honourable Justice Frank Seepersad dated the 31st day of July 2018 in CV2017-00796, requiring it to consider the question of so promoting the Applicant, contravened the Applicant's fundamental right to equality of treatment from a public authority in the exercise of a public function as guaranteed by Section 4 (d) of the Constitution;

• c. A Declaration that the conduct of the PSC at (b) above, constituted a contravention of principles of natural justice and an abuse of power;

• d. A declaration that the decision of the PSC made on the 9th day of February 2021 not to promote the Applicant as a retired public officer retroactively to the office of Fire Station Officer, having considered the question of so promoting the Applicant pursuant to the order dated the 31st day of July 2018 of the Honourable Justice Frank Seepersad in CV2017-00796, constituted an improper exercise of its discretion and was made by way of taking into account irrelevant considerations and failing to take into account relevant considerations;

• e. An order of certiorari removing into the Court and quashing the decision of the Respondent at (d) above;

• f. A Declaration that the failure of the PSC to fill in a timely manner, vacancies which existed in the office of Fire Station Officer between 2011 and August 4th 2016, constituted a contravention of Regulation 151 of the Public Service Commission Regulations, Chapter 1:01 and the Applicant's fundamental right to the protection of the law as guaranteed by Section 4 (b);

• g. An order requiring the PSC to promote the Applicant retroactively to the office of Fire Station Officer, alternatively requiring it to consider the question of doing so

• h. An order for damages/monetary compensation to be assessed in favour of the Applicant for the contravention of his aforesaid fundamental rights; and

• i. Costs.

The Claimant's Affidavit in Support of the Fixed Date Claim Form:

2 The Claimant was enlisted as a firefighter in the Trinidad and Tobago Fire Service (“TTFS”) in 1982 and was promoted to the office of Fire Sub Officer in 2005. Subsequently, he was promoted to the office of Fire Sub Station Officer (“FSSO”) in 2007. The office immediately above FSSO is that of Fire Station Officer (“FSO”).

3 Between 2011 and 2016 several vacancies existed in the office of FSO. The Claimant was appointed by the Defendant (“PSC”) to act in the office of FSO effective June 2011 until May 2016 when he proceeded on pre-retirement leave and then retired holding the office of FSSO in August 2016 having attained the compulsory retirement age of 55 years.

4 The Claimant's performance appraisal reports in the office of FSO were either “very good” or “outstanding”.

5 His pleaded case is that several other FSSOs who were junior to and less experienced than him were appointed by the PSC to act in the office of FSO before 2011 and between 2011 and 2016. Upon his pre-retirement in 2016, there were several vacancies in the office of FSO and the PSC filled these vacancies in the office of FSO by promoting 34 FSSOs to FSO effective 1 November 2016. The Claimant, however, was not promoted but most of the 34 officers who were promoted were junior to and less experienced than him.

6 As a result of this, the Claimant filed judicial review proceedings in CV2017-00796 for the review of the PSC's decision whereby it failed to promote him to the office. By order of the Court on 31 July 2018, the PSC had to consider the issue of promoting the Claimant retroactively to the office of FSO but the PSC did not consider that issue in a reasonable time and the Claimant filed another judicial review claim in CV2020-02490 against the PSC which is still to be determined.

7 The PSC considered the issue of the Claimant's promotion on 9 February 2021 but decided not to promote him and by virtue of the letter dated 15 March 2021 which was sent to his attorney, the reasons for the PSC's decision were outlined. One of the reasons for not retroactively promoting the Claimant, according to the said letter, was that the Claimant was considered previously to be assessed for promotion in 2011 in accordance with Regulation 8 of the Fire Service (Terms and Conditions of Employment) Regulations and Regulations 158 and 160 of the Public Service Commission Regulations using the Points System and the letter further stated that he was ineligible to be assessed for promotion to the office of FSO as he did not possess the training qualifications. In addition, the letter stated that the PSC did not consider the promotion of officers who had already retired from the Public Service and who were not recommended for promotion.

8 The Claimant stated that it was untrue that he did not satisfy the requirements for the office of FSO and disputed the assertion that the PSC does not promote retired public officers. He referenced the fact that he obtained the Associate Degree in Management Studies for the protective services in 2013 and referred to a number of retired officers who were promoted.

9 The Claimant specifically referenced three persons who were promoted retroactively namely:

• a. Patricia Lashley—promoted by the PSC in 2017 to the office of Treasury Executive II retroactively to the 30 October 2014. She obtained the compulsory retirement age of 60 years on 18 April 2015.

• b. Mary Ramirez was promoted by the PSC in 2020 from the office of Field Auditor IV to Field Auditor V retroactive to the 5 July 2014. She attained the compulsory retirement age of 60 years on 26 March 2018.

• c. Sherwin Welch was promoted by the PSC from the office of Field Auditor V to Assistant Commissioner of Inland Revenue after he retired.

10 The Claimant also stated that in Rajkumar v the Public Service Commission (Privy Council Appeal No. 1 of 2001) the Privy Council remitted to the PSC for consideration the issue of promoting Mr. Rajkumar to the office of Prison Officer II. In that case, the PSC considered the matter and promoted Mr. Rajkumar to the office. Further, In Sherwin Welch and Cynthia Hackett v The Chief Personnel Officer (CPO) [CV2007-03007], the High Court, directed the CPO to submit Mr. Welch's name to the PSC to consider the question of promoting him to the office of Field Auditor IV, and the PSC promoted him to the office.

11 The Claimant advanced that he was similarly circumstanced to Mr Rajkumar and Mr Welch in that they all received judgments from the courts in judicial review proceedings directing the PSC to consider the question of their promotion.

12 The Claimant pleaded that by promoting the 34 officers while failing to consider him, the PSC contravened his right to equality of treatment guaranteed under Section 4(d) of the Republican Constitution (“the Constitution”) and violated the principles of natural justice.

The PSC's Affidavit in Reply:

13 The Defendant filed two affidavits of Helen Warner dated 20th July 2022 and 17th January 2023 respectively.

14 The affidavits confirmed that the Claimant acted as a Fire Station Officer with effect from 14th June 2011 to 6th May 2016 and that he was compulsorily retired from the Service on 4th August 2016.

15 It further outlined that the office of Fire Station Officer was advertised on 17th June 2010 with a closing date of 16th July 2010. One week prior to the date scheduled for interviews the Fire Service Association made representations that the officers be assessed by use of the point system and not by interviews and the Defendant agreed to this request at its meeting of 24th March 2014.

16 At its meeting of 2nd June 2015, the Defendant formulated an Order of Merit List comprising twelve persons and promoted these persons to the office of Fire Station Officer with dates ranging from 2nd June 2015 to 13th June 2015. There were thirty-five (35) remaining vacant offices of FSO which could not be filled as the officers in the lower ranks were not eligible to be considered for promotion.

17 At its meeting of 28th July 2016, the Defendant agreed to a moratorium for the filling of vacant offices in the Fire Service in accordance with Regulations 158 and 160 of the Public Service Commission Regulations for the period 1st August...