The Public Services Association of Trinidad and Tobago v The Permanent Secretary Ministry of Energy and Energy Industries

• Jurisdiction: Trinidad & Tobago
• Judge: Mr. Justice V. Kokaram
• Judgment Date: 28 February 2018
• Neutral Citation: TT 2018 HC 223
• Court: High Court (Trinidad and Tobago)
• Docket Number: Claim No.: CV2017—02934
• Date: 28 February 2018

IN THE HIGH COURT OF JUSTICE

Before the Honourable Mr. Justice V. Kokaram

Claim No.: CV2017—02934

In the Matter of the Judicial Review Act No 60 of 2000

And

In the Matter of an Application by Public Services Association of Trinidad and Tobago for Permission to Apply for Judicial Review

And

In the Matter of the Decision(s) of the Permanent Secretary in the Ministry of Energy and Energy Industries to Act Upon and Implement the Purported Delegation Pursuant to Legal Notice No 267 of 2007 Made by the Public Service Commission to the Permanent Secretary to Advertise Certain Vacancies in the Ministry, Receive and Process Applications in Respect Thereof in Order to Fill the Same to Wit, the Offices of Chemical Engineer I/II, Geophysicist I/II, Geologist I/II, Petroleum Engineer I/II, Petroleum Chemist (Range 53) Petroleum Inspector 1 Geologist Assistant and Petroleum Engineering Assistant

Between

The Public Services Association of Trinidad and Tobago

Claimant

and

The Permanent Secretary

Ministry of Energy and Energy Industries

Defendant

Appearances:

Mr. Avory Sinanan SC leads Mr. Travers Sinanan instructed by Mr. Kelvin Ramkissoon for the Claimant

Mr. Russell Martineau SC leads Ms. Antonette Alleyne and Ms. Daniella Boxill instructed by Ms. Kendra Mark and Ms. Kadine Matthew for the Defendant

Administrative law - Defendant's decision to advertise vacancies and receive and process applications in respect of vacancies without consulting the claimant — Whether the defendant was required to consult with the claimant on matters of recruitment before advertising vacancies — Whether a duty to consult with the claimant can be implied by section 14(1)(c) of the Civil Service Act — Judicial review — Test for setting aside leave for Judicial Review — Whether breach of legitimate expectation — Whether the claimant has an arguable case with a realistic prospect of success — Whether the 1973 Circular is capable of fettering the defendant's right to carry out the mandate of the Public Service Commission or impose a duty on the defendant to consult with the claimant prior to making recruitment decisions — Whether the lack of consultation dilutes the constitutional importance of the appointment of public officers and exposes it to the threat of political interference — Whether the defendants decision was illegal — Section 14 of the Civil Service Act — 1973 Circular issued by the Chief Personnel Officer — Section 127 of the Constitution — Thomas v. Attorney General (1981) 32 W.I.R. 375 — Sharma v. Antoine [2007] 1 W.L.R. 780 — Mohammed v. Public Service Commission [2017] U.K.P.C. 31 — Thomas v. Attorney General [1982] A.C. 113 — Cooper and Balbosa v. Director of Personnel Administration and the Public Service Commission [2007] 1 W.L.R. 101 — Paponette v. Attorney General of Trinidad and Tobago [2010] U.K.P.C. 32 — R (BAPIO Action Ltd.) v. Secretary of State for the Department [2008] 1 A.C. 1003.

Introduction

1 The Defendant has applied to set aside leave which was granted to the Claimant to seek judicial review of the Defendant's decision to advertise certain vacancies in the Ministry of Energy and Energy Industries (“the Ministry”) and to receive and process applications in respect of those vacancies (“the Defendant's application”). The Defendant also seeks to discharge an injunction restraining it from taking steps to advertise and fill those vacancies. The decision by the Defendant to advertise those vacancies was made pursuant to powers delegated to the Defendant by the Public Service Commission and was a step in a process of appointing officers to fill vacancies which exist in the Ministry.

2 The Claimant alleges that such a decision made by the Defendant without consulting it and bypassing a settled consultative process established between the Claimant and the Ministry is illegal, irrational, procedurally improper, a breach of its legitimate expectations and is void and of no effect. Such a consultative process was set out in a 1973 Circular issued by the Chief Personnel Officer (CPO) pursuant to section 14 of the Civil Service Act Chap 23:01 (“the 1973 Circular”). Section 14 of the Civil Service Act imposes on the Personnel Department of the civil service a statutory duty to consult with the appropriate recognised association, in this case the Claimant, on among other things, terms and conditions of employment. The 1973 Circular had established a Joint Consultative Committee (JCC) comprising representatives of both staff and management as the consultative machinery to encourage co-operation between administration and staff in dealing with matters set out in that circular. Both the provisions of the Act and the terms of the 1973 Circular are central to this dispute.

3 This is the first time that the Defendant has ever embarked upon a process of advertising vacancies and of taking steps to assist the Public Service Commission in the appointment of officers in the public service. The fact that, the Defendant is intimately engaged in a process which falls within the exclusive purview of the Public Service Commission, recognised as an autonomous body insulated from Executive interference, has caused the Claimant to call upon the Court to carefully scrutinise this power. The Claimant goes further to say that a duty of consultation with the Claimant on the Defendant is implied or imposed as an incident of general fairness which these unique circumstances demand.

4 The main issue, but by no means the only one, arising on the Defendant's application, is whether in appointing or recruiting officers in the public service, a distinction should be drawn between matters relating to their terms and conditions of employment in contrast to their actual appointment in the public service. The Public Service Commission is responsible for the latter and the former lies within the purview of the Personnel Department headed by the CPO. It is accepted by the parties in this case that the Defendant was at the material time acting pursuant to delegated authority legitimately conferred by the Public Service Commission pursuant to Legal Notice No. 267 of 2007. Such an act was therefore one of the constitutionally protected functions of the Public Service Commission of appointment of public officers. It is also accepted by the parties that there is no duty on the Public Service Commission to consult with the Claimant or anyone else (outside the provisions of the Constitution) in the making of such appointments to the public service.

5 However, the consultative process established by the 1973 Circular intended to deal with terms and conditions of employment which mentions among other things, “recruitment”. The Claimant has argued that to have the Defendant act as a delegate of the Public Service Commission yet ignore the very consultative process which was established to deal with terms and conditions of employment and “recruitment” is to characterise the Defendant as having a split personality with split functions. The Defendant cannot compartmentalise his duties and he simply cannot ignore his duty to consult as set out in the 1973 Circular.

6 The short point therefore is whether the Defendant, notwithstanding his duties as delegated by the Public Service Commission, was also obliged to engage the consultative machinery established by the 1973 Circular and to consult with the Claimant on matters of recruitment such as job descriptions or salary ranges before advertising the vacancies. It is the type of point which is suitable to be re-examined on an application to set aside leave where leave was granted without a hearing and when this issue was not then considered by me in any detail.

7 I am grateful to the parties' Senior Counsel for their helpful submissions and the economy with which they were presented. I am satisfied, however, that there is no legitimacy in any expectation that the Defendant is obliged to consult with the Claimant either pursuant to section 14 of the Civil Service Act Chap. 23:01 or the 1973 Circular prior to making his decision in this case. Both section 14 of the Civil Service Act and the 1973 Circular do not and cannot include matters concerning the appointment of officers which fall within the purview of the Public Service Commission. The Defendant therefore in advertising public sector offices acted within his remit pursuant to the Public Service Regulations.

8 The statutory duty to consult created by section 14 of the Civil Service Act is limited only to the issues of classification of offices, grievances, remuneration and terms and conditions of employment, none of which arises in this case. Further, that duty of consultation is imposed on the Personnel Department and by extension the CPO and not on the Public Service Commission. The power or duty to appoint persons to the public service falls within the power of the Public Service Commission under section 121 of the Constitution 1 and does not form part of the CPO's duty to set terms and conditions of employment. Insofar as the 1973 Circular established a consultative machinery, it can then only be within the confines of the matters expressly provided in section 14 of the Civil Service Act. It cannot legitimately extend or overreach the powers exercised by the Public Service Commission relevant to the appointment of officers short of constitutional amendment.

9 Whereas it can be argued that the Permanent Secretary may be impressed with knowledge of the 1973 Circular of long standing, there is no settled practice demonstrated on the facts of this case of any consultative machinery activated to deal with the appointment and recruitment of officers. Further, there are no special features of this case, given the established statutory context and recognised jurisprudence on the functions of service commissions, to impose any such duty of consultation on the Defendant as an incident of common law...