Smart v The Director of Personnel et Al; Amarales v The Director of Personnel et Al; Dass v The Director of Personnel et Al

• Jurisdiction: Trinidad & Tobago
• Judge: A. Yorke-Soo Hon J.A.,M. Mohammed J.A.,Narine J.A.
• Judgment Date: 05 April 2017
• Neutral Citation: TT 2017 CA 15
• Docket Number: Civ. App. No. S 134 of 2015 Civil Appeal No. S 164 of 2015 Claim No. CV 2014-02019 Claim No. CV 2014-02021
• Court: Court of Appeal (Trinidad and Tobago)
• Date: 05 April 2017

IN THE COURT OF APPEAL

Panel:

A. Yorke-Soo Hon, J.A.

R. Narine, J.A.

M. Mohammed, J.A.

Civ. App. No. S 134 of 2015

Claim No. CV 2014-00038

Civil Appeal No. S 164 of 2015

Claim No. CV 2014-02019

Claim No. CV 2014-02021

In the Matter of the Judicial Review Act Chapter 7:08

and

In the Matter of an Application by Nairob Smart for Leave to Apply for Judicial Review

Between

Nairob Smart

Appellant

and

Director Of Personnel Administration

First Respondent

Judicial and Legal Service Commission

Second Respondent

In the Matter of the Judicial Review Act Chapter 7:08

and

In the Matter of an Application for Judicial Review in Accordance with Part 56.3 of the Civil Proceedings Rules 1998 (As Amended)

Between

Lesley Almarales

Appellant

and

Director of Personnel Administration

First Respondent

Judicial and Legal Service Commission

Second Respondent

In the Matter of the Judicial Review Act Chapter 7:08

and

In the Matter of an Application for Judicial Review in Accordance with Part 56.3 of the Civil Proceedings Rules 1998 (As Amended)

Between

Svetlana Dass Savi Ramhit

Appellants

and

Director of Personnel Administration

First Respondent

Judicial and Legal Service Commission

Second Respondent

APPEARANCES:

Ms. P. Basdeo for Nairob Smart.

Mr. R. L. Maharaj S.C., and Mr. R. Bissessar instructed by Mr. V. Gopaul-Gosine for Lesley Almarales, Svetlana Dass and Savi Ramhit.

Mr. R. Martineau S.C., and Ms. V. Gopaul instructed by Ms. E. Araujo for the Respondents.

Legislation:

Public Service Commission Regulations Regs. 14, 15 18

Judicial Review - Application for judicial review — Appeal — Public service — Legitimate expectation — Procedural fairness — Whether 2nd respondent mandated to first ascertain whether suitably qualified persons available before advertisement made — Whether regulations hindered persons from within service from applying for advertised position — Whether decision making process procedurally unfair to appellants — Whether respondents had legitimate expectation that seniority was principal criterion for appointment/ promotions

JUDGMENT

[A. Yorke-Soo Hon J.A.andM. Mohammed J.A.concurring; Narine J.A.dissenting in a separate written judgment.]

Majority judgment delivered by M. Mohammed J.A.

Introduction

1. This appeal concerns an application made by the appellants for judicial review. The appellants are seeking to challenge the decision of the respondents to advertise the post of Senior State Solicitor under regulation 15 of the Public Service Commission Regulations (the Regulations), and thereafter to conduct interviews for the post, create a merit list and from that list appoint persons other than the appellants to assume the post.

2. The four appellants, namely, Nairob Smart (Smart), Lesley Almarales (Almarales), Svetlana Dass (Dass) and Savi Ramhit (Ramhit), were all legal officers employed with the Chief State Solicitor's Department and at the relevant time held the position of State Solicitor II. All four appellants were also members of the Judicial and Legal Service.

3. The first respondent, the Director of Personnel Administration (the DPA), is vested with the administrative responsibilities of the second respondent, the Judicial Legal Service Commission (the Commission), including those pertaining to staffing.

4. The Commission is a body established under section 110 of the Constitution of the Republic of Trinidad and Tobago and has the power to, among other things, appoint persons to hold or act in prescribed legal public offices. The Commission also has the power to make appointments on promotion, to transfer and confirm persons under its jurisdiction and to remove or exercise disciplinary control over persons holding or acting in certain legal offices. The Commission is responsible for appointments and promotions within the Chief State Solicitor's Department.

Background Facts

5. In December of 2012, the four appellants held the position of State Solicitor II in the Chief State Solicitor's Department. At that time, there were two vacant posts for Senior State Solicitor in the Department. The job specifications for the post of Senior State Solicitor, as prescribed by the Chief Personnel Officer (CPO), required applicants to possess inter alia “experience in professional legal work such as may have been gained in the lower classes (State Solicitor I & II) or in private practice”1.

6. On the 20^th September, 2012, the Chief State Solicitor wrote to the Attorney General via letter seeking assistance to have the post of Senior State Solicitor in the Chief State Solicitor's Department advertised. The Chief State Solicitor also requested that the Attorney General contact the Chief Justice, the head of the Commission, so that the vacant posts might be advertised. In the letter, Ms. Petal Roopnarine (Roopnarine) was recommended for the post. Annexed to that letter was correspondence from Roopnarine herself dated the 19^th September, 2012. In her letter, Roopnarine expressed her frustration about her stagnancy in her contractual position of Legal Officer III and the ensuing lack of security and she indicated that she wished to become part of the establishment of the Chief State Solicitor's Department2. Roopnarine was then an attorney-at-law with nineteen years' experience and served in the Chief State Solicitor's Department in a contractual senior position. She was the holder of a Master of Laws and had

worked with two well respected law firms over a period of ten years before being contractually employed in the service3.

7. There was evidence that the Chief State Solicitor's letter dated the 20^th September, 2012, together with the letter from Roopnarine dated the 19^th September, 2012, came to the attention of the DPA, but there was no evidence that those documents came to the attention of the Commission.

8. Under cover of a memorandum dated the 26^th October, 2012, the Chief State Solicitor sent to the Permanent Secretary in the Ministry of the Attorney General another memorandum dated the 25^th October, 2012, in which he indicated to the DPA that the request to have the two posts of Senior State Solicitor advertised in accordance with regulations 14 and 15 of the Public Service Regulations, still stood4.

9. By memorandum dated the 26^th October, 2012 the Permanent Secretary in the Ministry of the Attorney General notified the DPA that there were two vacant posts of Senior State Solicitor within the Chief State Solicitor's Department. The Permanent Secretary also informed the DPA that over the years, the department had been faced with a severe shortage of experienced attorneys-at-law at the mid-management level due to a rapid turnover of staff at that level. In an effort to attract attorneys-at-law capable of filling those positions, the Permanent Secretary informed the DPA that the Chief State Solicitor thought that it was in the best interest of the department that the position be advertised. The Permanent Secretary referred to regulation 15 of the Public Service Commission Regulations which allowed for the advertising of vacancies5.

10. A circular memorandum dated the 10^th December, 2012 was sent to the Permanent Secretaries and the Heads of Departments advertising the post of Senior State Solicitor6. That memorandum set out the required qualifications, experience and skills for the position as well as its duties and

responsibilities. The memorandum indicated that interested officers should apply on the prescribed application form for promotion7.

11. The posts were thereafter advertised in the Express Newspaper on the 17^th December, 2012 and on the 7^th January, 2013, as well as in the Guardian Newspaper, on the 1^st January, 20138. The advertisements also set out the required qualifications, experience and skills for the position as well as its duties and responsibilities.

12. On the 13^th December, 2012, Smart applied for the position on the prescribed promotion form. Noted within the form were positive comments made by the Chief State Solicitor on Smart's work performance.

13. On the 7^th January, 2013, Almarales applied for the position using the prescribed promotion form. Her application was also endorsed by the Chief State Solicitor. She had seen the advertisement in the newspaper on the 17^th December, 2012.

14. Dass and Ramhit did not apply for the posts as they had neither seen the circular memorandum nor the newspaper advertisements advertising the vacant posts within the Chief State Solicitor's Department.

15. By letter dated the 25^th February, 2013, Smart and Almarales, along with other members of the Chief State Solicitor's Department, wrote to the DPA enquiring why a decision had been made to employ the interview process for filling the vacancies and why the decision had been made to invite and interview candidates who were not within the Chief State Solicitor's office and the public service. There was no response from the DPA to this letter.

16. Almarales deposed in her Affidavit dated the 27^th May, 2014, filed in the proceedings below, that in 2008, vacancies had been announced for the position of State Solicitor II and Senior State Solicitor. According to Almarales, officers who were promoted to the post of Senior State Solicitor received their promotions without interviews being conducted. She stated that the

established practice of the Commission had been to promote the most senior officer who was qualified and experienced as provided for in the Regulations9.

17. Interviews for the post of Senior State Solicitor were conducted on the 21^st June, 2013. Eleven candidates were interviewed, including persons from within the service, namely Smart, Almarales, Ramdin and Priscilla Rampersad as well as persons from outside of the service, including Roopnarine. Only three candidates were successful at the interview and an order of merit list was compiled. The order of merit was as follows: (1) Petal Roopnarine; (2) Florence...