Sahatoo v Attorney General

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Bereaux, J.A.
• Judgment Date: 15 October 2015
• Neutral Citation: TT 2015 CA 28
• Docket Number: Civil Appeal S-14 of 2012; H.C.C. CV 2008-03218
• Date: 15 October 2015

Court of Appeal

Mendonça, J.A.; Yorke-Soo Hon, J.A.; Bereaux, J.A.

Civil Appeal S-14 of 2012; H.C.C. CV 2008-03218

Sahatoo

and

Attorney General

Appearances:

G. Ramdeen, K. Samlal and S. Mohammed for the appellant

R. Martineau, SC, R. Hector and S. Julien for the respondent

Constitutional Law - Right to equality of treatment — Comparators — Different treatment — Whether appellant's permanent appointment adversely affected by representation such as to constitute different treatment — Court held there was different treatment but the treatment was justified — Differences between applicants were sufficiently material to justify difference in treatment — No breach of Constitution — Appeal dismissed.

Bereaux, J.A.

1 The issue in this appeal is whether the appellant Samoorath Sahatoo was treated unequally by the Public Service Commission (the Commission) in appointing him to the post of Road Officer 1 in the public service, contrary to section 4(d) of the Constitution. The appellant, Mr. Sahatoo, alleges that he was. He alleges that other officers were appointed in accordance with their position on the merit list whereas, when his turn came, he was not.

2 He contends that the established practice and procedure or the policy for appointment in the public service is that an “order of merit” list of approved candidates for the substantive post is compiled after examinations and interviews are held. Appointments and promotions are made from the list, based on and in accordance with the officer's position on the list.

3 He alleges that the policy is that acting appointments are made in accordance with an officer's position on the seniority lists. Seniority is also a crucial factor in promotions. The effective date of his appointment to the post of Road Officer 1 was 9th August, 1993. He points to ten officers, appointed before him, who placed below him on the merit list in 1986; after a written examination in 1985 and after interviews in 1986 were conducted for the post of Road Officer 1. However, these ten officers were all appointed to the post of Road Officer 1 before him and, based on their seniority, obtained subsequent promotions ahead of him.

4 The ten officers were Azim Hosein, Rabindranath Gokool, Hadeed Mohammed, Daniel Abraham, Raymond Seuchan, Ravindranath Gangoo, Latchman Maraj, Winston Regis, Azim Bassarath and Mahindranath Ramnanan. Azim Hosein was appointed Road Officer 1 on 1st July 1991, Rabindranath Gokool was appointed on 23 June 1993 and Hadeed Mohammed was appointed on the 7th August 1993. The other officers were all appointed on 8th August 1993, one day before the appellant.

5 The judge dismissed the constitutional motion on the basis that the ten officers were not true comparators with the appellant.

6 It is necessary to consider the evidence in some detail. Three affidavits are relevant. The affidavit of the appellant filed on 22nd August 2008, the affidavit of Ms. Dawn Harding filed in reply on 1st December 2008 and the appellant's affidavit in answer, filed on 5th February 2009. Mr. Heathcliffe Gomez also swore to an affidavit on behalf of the Attorney General. His evidence has no bearing on the outcome of this appeal.

THE APPELLANT'S EVIDENCE

7 Mr. Sahatoo deposed that he applied for the post of Road Officer on 14th July 1984. It was a post on the permanent establishment of the public service. He wrote an examination in February 1985 and attended a follow up interview on 23rd June 1986. He placed sixth on the order of merit list of approved candidates. Mr. Sahatoo was informed that he had been placed on the merit list but was not told his order of placement. On 7th August 1987, he received correspondence from the Service Commissions Department asking him to call its office immediately upon receipt of the correspondence. He said he contacted the office in person and was told that the purpose of the correspondence was to update the merit list.

8 Mr. Sahatoo received correspondence dated 7th May 1990 from the department enquiring whether he was “still interested in a temporary appointment as Road Officer 1” and asking that if he were interested, he should contact the department as early as possible, in person or by telephone.

9 He visited the offices of the Service Commissions Department. He met with one Ms. Ellis. He confirmed his interest in being appointed as Road Officer 1. He deposed that he “asked Ms. Ellis whether this temporary appointment could lead to a permanent appointment. Ms. Ellis indicated that temporary acting appointments did not give the appointee any special claim to promotion as promotion/permanent appointment was based on and in accordance with an officer's place on the order of merit list”.

10 He said that the temporary appointment was for a short period and since it would not affect or assist his “promotion/appointment prospect”, he indicated that he would wait for a longer acting appointment. He added that:

“I did not indicate that I was not interested in temporary appointment on the whole but merely this particular temporary appointment which was too short in duration. Ms. Ellis had informed me and I verily believed that there were other vacancies which needed to be filled and other acting opportunities would come up and I was therefore confident that I would not be adversely affected by waiting for a short while.”

11 Mr. Sahatoo's contention that he visited the offices of the Service Commissions Department in response to the Commissions' letter of 7th May, 1990, is inconsistent with his letter to the department dated 21st May 1990. In that letter (in which he referred to the letter of 7th May) he spoke of telephoning the offices of the Service Commissions Department on the 14th May, 1990 to indicate his continued “interest in the job”. He then wrote the letter of 21st May 1990 to confirm his telephone conversation expressing his “willingness to take up the appointment at your earliest convenience”.

12 His follow up letter dated 12th August 1990, produced no response. In September 1992, he visited the offices of the Service Commissions Department in response to a telephone call from Ms. Ellis who had informed him that his name had been struck off the merit list.

13 In the course of his conversation with Ms. Ellis he asked her “whether those officers who had gained temporary appointments would have a competitive edge. Ms. Ellis indicated that permanent appointments were based on the ranking and placement of officers on the order of merit list.”

14 He eventually started work as a temporary Road Officer 1 on 19th March 1993 and on 18th September 1995, was appointed to the permanent post of Road Officer 1 with effect from 9th August 1993. He was eventually appointed to act as Road Officer II on 30th November 1998 on a temporary basis. He was again appointed to act as Road Officer II in July 2004. He continued to act in that post until he was appointed to the substantive post, with effect from 26th June 2004.

15 By letter of 18th February, 2008 pursuant to the appellant's request under the Freedom of Information Act Chap 22:02, the Commission confirmed the dates of appointment of officers appointed to the post of Road Officer 1. He stated that the list showed that many of the officers were appointed to act before him and that ten (10) officers, referred to in paragraph 3 above, who were placed lower than him on the 1986 merit list were appointed permanently to the post of Road Officer 1 before he was. All ten of them started acting in the post of Road Officer 1 before he took up his acting appointment.

EVIDENCE ON BEHALF OF THE RESPONDENT - DAWN HARDING

16 Ms. Harding, the Deputy Director of Personnel Administration, confirmed that Mr. Sahatoo was placed sixth on the merit list after he wrote the 1985 examination and after he was interviewed for the post in 1986. She deposed that substantive appointments to a particular post in the public service can only be made if there is a vacancy in the particular post. Until then, there can be no appointment to that post.

17 There are occasions however when a post becomes “vacant” temporarily, for a period of time, for example, when the holder of the post goes on sick leave, vacation leave, pre-retirement leave or is appointed to act in a higher post. When these temporary vacancies arise, the Commission may make temporary appointments to the post from the names that appear on the merit list for the particular post.

18 To fill such temporary vacancies, the Commission would write those applicants, whose names appear on the order of merit list, enquiring whether the applicant would be interested in a temporary appointment.

19 The Commission wrote to Mr. Sahatoo “on occasions” inviting him to attend its offices so as to ascertain from him whether he was still interested in the post. The Commission also wrote to him “on occasions” specifically asking whether he was interested in temporary appointments. The purpose of those letters was not to update the order of merit list as he claimed but was to confirm whether he was still interested in the post of Road Officer 1. It was also to confirm whether he may have been interested in a temporary appointment. As his letter of 7th September, 1992 demonstrated Mr. Sahatoo was interested in employment in the form of “longer term arrangement rather than … a short stint.”

20 Ms. Harding added that on the 7th May 1990, the Commission again wrote to Mr. Sahatoo enquiring whether he was interested in a temporary appointment as a Road Officer 1 and if so, to contact the Commission (see “SS 2”). The Commission can find no record of Mr. Sahatoo having visited the offices of the Service Commissions Department in response to the letter or any record of his having spoken with Ms. Ellis. Indeed, there is no record with the Commission that Mr. Sahatoo attended its offices and spoke to Ms. Ellis on any of...