REPUBLIC OF TRINIDAD AND TOBAGO IN THE COURT...

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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

Civil Appeal No. 38/2009

CV No. 2007-00587

BETWEEN

AUDINE MOOTOO

Appellant

AND

THE ATTORNEY GENERAL

THE PUBLIC SERVICE COMMISSION

Respondents

PANEL: A. YORKE-SOO HON, JA

R. NARINE, JA

P. MOOSAI, JA

APPEARANCES:

Mr G. Ramdeen for the Appellant

Mr A. Byam for the 1st named Respondent

Mr R. Martineau S.C., Ms T. Maharajh and Ms O. Pierre for the 2nd named respondent

DATE DELIVERED: 5th April, 2017

I have read the judgment of Moosai JA and agree with it.

A. Yorke-Soo Hon

Justice of Appeal

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I have read the judgment of Moosai JA and I too agree.

R. Narine

Justice of Appeal

I. Introduction

[1] The crucial issue arising for determination is whether the appellant has suffered unequal

treatment in contravention of her fundamental right to equality of treatment from a public

authority in the exercise of its functions as enshrined in section 4 (d) of the Constitution. The

appellant contends that she was discriminated against with respect to four different offices

between the period August 2004 to March 2006, namely:

i. Her being bypassed for the office of acting Deputy Director, Extension

Training and Information Services (Extension post);

ii. Her reversion to her substantive office after acting in the office of Technical

Officer (Horticulture) (Horticulture, Ministry of Agriculture) for

approximately six months;

iii. Her being bypassed for the office of Deputy Director, Agricultural Services

Division (Crop Production) (Crop Production post) on more than one

occasion; and

iv. Her being bypassed for the office of Acting Director, Horticultural Services,

Ministry of Public Utilities (Horticulture, Ministry of Public Utilities).

[2] There are subsidiary procedural issues, namely whether the judge was correct in adding the

Public Service Commission (the PSC) as a party; and whether the filing of a constitutional

motion was an abuse of process.

[3] On the major issue, I have found that the cumulative effect of the treatment meted out to the

appellant, across a broad spectrum of acting appointments, smacks of unfairness and

arbitrariness and constitutes evidence of unequal treatment contrary to section 4 (d) of the

Constitution. Accordingly, damages are to be assessed by a Master.

[4] On the procedural issues I find that:

1) the Attorney General is the proper party to these proceedings;

2) the filing of a constitutional motion was not an abuse of process.

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II. The Trial Judge’s Findings

[5] The judge found that it was clear from the terms of the PSC Circular No 1 of 2004, which came

into effect on 3 January 2005, that the PSC was changing the policy that had previously applied

with respect to acting appointments and promotions in the public service. This Circular

expressly provided that, effective 3 January 2005, the PSC would no longer consider

recommendations for acting appointments and/or promotions in respect of officers who did not

satisfy the training and experience requirements for the particular office. However, “exceptions

may be made in special circumstances”. The judge also found that, at the time of the appellant’s

application to act in the post of Deputy Director, Extension on 25 August 2004, the post was not

yet available. A vacancy only arose after 31 December 2004. Accordingly, and, contrary to the

appellant’s assertion that the Circular did not apply to her as her application pre-dated it, any

consideration of the appellant to fill this vacancy would be governed by the Circular. It would

also follow that the comparators relied on by the appellant could not be appropriate comparators

as consideration of their circumstances would have taken place prior to the Circular coming into

effect. Thus, the appellant failed to establish a claim for unequal treatment pursuant to section 4

(d) of the Constitution.

[6] As the onus of proof in the instant case was on the appellant, wherever there was a dispute of

fact between the evidence of the appellant and that of the PSC, the judge resolved that dispute in

favour of the PSC. On the evidence, the judge relied on the principle espoused in R v Reigate

Justices, ex parte Curl1 to the effect that, where there is a dispute of fact on the affidavit

evidence, the court ought, in the absence of cross-examination, to proceed on the basis of the

affidavit evidence of the person who does not have the onus of proof.

III. Grounds of Appeal

[7] The appellant filed extensive grounds of appeal, both procedural and substantive. They may

conveniently be summarized as follows:

i. The decision is wrong in law and contrary to the weight of evidence;

1 (1991) COD 66.

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ii. The absence of any legal basis and/or justification for the joinder of the PSC

as a respondent to this constitutional motion;

iii. The court erred in treating the amended constitutional motion as if it were

an application for leave to apply for judicial review. The court ignored the

fact that the joinder of the second respondent, the PSC, mandated the

appellant to pray for relief against this new party. The relief claimed fell

within the constitutional jurisdiction of the court and within the concept of

‘constitutional redress’ pursuant to section 14 of the Constitution. There was

never any application for judicial review;

iv. The court was wrong to find that there was unreasonable delay in bringing

the application and that leave should be refused on the basis that to grant

relief at this stage would have been detrimental to good administration and

prejudicial to other officers. The court misunderstood the nature of the

appellant’s claim for constitutional redress which would not have

necessarily affected third parties as monetary compensation could have

adequately remedied and vindicated the breach of constitutional rights;

v. The court erred in refusing to dismiss as an abuse of process the application

made by the Attorney General to dismiss the action. This was an objection

in limine and should have been dismissed with costs on the hearing of the

application as there was no basis for it;

vi. The court erred further in refusing to award the appellant her costs on the

preliminary point in limine. As the court had expressly refused to strike out

the claim as against the Attorney General, this meant that the appellant was

successful on this point and therefore entitled to her costs;

vii. The court fell into error in holding that the disputed facts must be resolved

in favour of the PSC in the absence of cross-examination. The court was

duty bound to weigh the evidence against the backdrop of the documentary

evidence and assess its probative value on a balance of probabilities;

viii. The court erred in accepting without question the evidence of Verna

Johnson and ought to have held on a balance of probabilities that the

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appellant was told that a Master’s degree in the relevant discipline was a

pre-requisite to appointment to a higher office;

ix. The court fell into error by refusing to grant relief against the Attorney

General given the role of the Ministry and its several unchallenged acts of

victimization, unfairness and discrimination complained of based on the

conduct and/or actions of its servants and/or agents;

x. The court ought to have held that in the absence of any challenge to the

evidence presented against the Ministry, the State was liable in damages for

discrimination. The comment of Jones J at paragraph 25 of her judgment

that, “as may be expected, no evidence was presented on behalf of the

Attorney General”, belies the fact that the court denied an application by the

State for leave to file evidence in opposition to the claim on the ground that

several directions for the filing of evidence had been breached with no

explanation;

xi. The court erred in finding that there was no evidential basis for the

assessment of loss suffered by the appellant and that this was fatal to her

claim for monetary compensation. The court ought to have taken into

account the nature of the violation and the resulting loss of a chance of

acting appointments and promotion. This loss would have obviously been

more appropriately dealt with in a subsequent assessment of damages

hearing.

IV. Preliminary issues

[8] By fixed claim form filed on 23 February 2007, Ms Audine Mootoo (the claimant and appellant

to this appeal) sought constitutional redress pursuant to section 14 of the Constitution against the

Attorney General, the sole defendant at the time. Ms Mootoo, whose substantive post was that

of Biochemist II in the Ministry of Agriculture, contended that the PSC subjected her to unequal

and discriminatory treatment when she was bypassed for certain acting appointments and/or

promotions in her employment in contravention of her right to equality of treatment from a

public authority in the exercise of its functions as enshrined in section 4 (d) of the Constitution.

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[9] An affidavit in support of her claim was filed by Ms Mootoo on 23 February 2007. Her claim

for relief, apart from the question of costs, all related to the constitutional breach complained of

and included:

i. A declaration that the Attorney General had been guilty of unequal and

discriminatory treatment of Ms Mootoo in violation of her right under

section 4 (d);

ii. Damages and/or compensation including aggravated and/or exemplary

damages for the contravention of her fundamental right.

[10] Early on in the proceedings and before filing any affidavits in opposition, the Attorney General

applied to have the action dismissed. The preliminary issue relied on two grounds, namely that:

(a) the PSC and not the Attorney General was the proper party to the action; and (b) resort to the

constitutional procedure in these circumstances was inappropriate and an abuse of the court’s

process. Counsel for Ms Mootoo, Mr Ramlogan (as he then was, now SC) submitted that the

PSC, although autonomous and independent, is a public authority and, on a proper construction

of the constitutional and statutory provisions, proceedings by or against the State must be

instituted by or against the Attorney General.2

[11] On the abuse of process point, Mr Ramlogan submitted that, as this was a case of discrimination

by a public authority in the exercise of its jurisdiction, resort to the constitutional procedure was

appropriate.3

[12] The judge refused to dismiss the action on either of the grounds relied on by the Attorney

General and ordered that the PSC be joined as a defendant. She also granted leave to the

appellant to amend the claim form in terms of the draft filed on 18 September 2007, and to make

the necessary amendments consequential on the joining of the new defendant. Even though she

did not provide any reasons for her decision at the time, the judge incorporated these in her

written judgment dated 29 January 2009.

[13] On the preliminary issue, the judge found that the conjoint effect of sections 14 (3) and 75 (2) of

the Constitution rendered the Attorney General a proper party to the action. She further held

that, in any event, the joinder of the Attorney General was particularly necessary in order to give

effect to any orders for monetary compensation which might be made in favour of the appellant.

2 Record of Appeal, p182. 3 Ibid.

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Moreover, as the actions complained of were the actions of the PSC, a service commission made

independent of the State under the Constitution, the PSC should in the circumstances have been

joined as a party to the action. With respect to the abuse of process argument, the judge held that

it was more appropriate to adjudicate on this when all the parties and all the relevant facts were

placed before the court.

[14] The appellant now appeals against the findings of the judge:

a) That it was necessary to join the PSC; and

b) That it was appropriate to adjudicate on the abuse of process argument when

all the parties and all relevant facts were placed before the court.

a) The order for joinder of the PSC

[15] It would be of some assistance to set out at this juncture the material provisions of both the

Constitution and the State Liability and Proceedings Act, Chapter 8:02 (“the SLPA”).

The Constitution:

"14. (1) For the removal of doubts it is hereby declared that if any person

alleges that any of the provisions of this Chapter has been, is being, or is

likely to be contravened in relation to him, then without prejudice to any

other action with respect to the same matter which is lawfully available, that

person may apply to the High Court for redress by way of originating

motion.

(2) The High Court shall have original jurisdiction-

(a) to hear and determine any application made by any person in

pursuance of subsection (1); and

(b) to determine any question arising in the case of any person

which is referred to it in pursuance of subsection (4), and may,

subject to subsection (3), make such orders, issue such writs and

give such directions as it may consider appropriate for the purpose

of enforcing, or securing the enforcement of, any of the provisions

of this Chapter to the protection of which the person concerned is

entitled.

(3) The State Liability and Proceedings Act shall have effect for the purpose

of any proceedings under this section.”...........................................

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76. (2) The Attorney General shall, subject to section 79, be responsible for

the administration of legal affairs in Trinidad and Tobago and legal

proceedings for and against the State shall be taken-

(a) in the case of civil proceedings, in the name of the Attorney

General;

(b) in the case of criminal proceedings, in the name of the State."

The State Liability and Proceedings Act:

(8) Proceedings against an authority established by the Constitution or a

member thereof arising out of or in connection with the exercise of the

powers of the authority or the performance of its functions or duties are

deemed to be proceedings against the State.………………………………

(9) In this section, “authority” means a Service Commission as defined in

section 3(1) of the Constitution.

………………………………

19 (2) Subject to this Act and to any other written law, proceedings against

the State shall be instituted against the Attorney General.

Section 3 (1) of the Constitution defines a “service commission” as “the Judicial and Legal

Service Commission, the Public Service Commission, the Police Service Commission or the

Teaching Service Commission.”

The Civil Proceedings Rules

Change of parties—general

19.2 (1) This rule applies where a party is to be added or substituted.

……………………………

(3) The court may add a new party to proceedings if—

(a) it is desirable to add the new party so that the court can resolve

all the matters in dispute in the proceedings; or

(b) there is an issue involving the new party which is connected to

the matters in dispute in the proceedings and it is desirable to add

the new party so that the court can resolve that issue.

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Case management conference

56.12 (3) At the case management conference the judge may allow any

person who appears to have sufficient interest in the subject matter of the

claim to be heard whether or not he has been served with the claim.

(4) The judge must direct whether any person or body having such interest

is to make submissions by way of written brief or whether such person or

body may make oral submissions at the hearing.

Hearing of application

56.14(1) At the hearing of the application the judge may allow any person

or body which appears to have a sufficient interest in the subject matter of

the claim to make submissions whether or not he has been served with the

application.

(2) Such a person or body must make submissions by way of a written brief

unless the judge orders otherwise.

[16] The essence of the appellant’s arguments is that the Attorney General was the proper defendant

for two reasons:

i. The PSC is part of the executive in the constitutional separation of powers

between the legislature, the executive and the judiciary.

ii. The Constitution which is the supreme law requires and allows proceedings

to be brought against the Attorney General in respect of State action.

[17] Mr Martineau SC, counsel for the PSC, submitted that the law on the proper parties to be

defendants to a claim for constitutional redress under section 14 of the Constitution has now

been settled by the Privy Council in the Attorney General v Carmel Smith4 case. Thus, the

Attorney General is to represent the PSC in proceedings brought pursuant to section 14 of the

Constitution. Mr Martineau, in his oral arguments before us contended that with respect to the

PSC, the Privy Council in Carmel Smith did not address the further issue as to whether you

could have such a public authority also as a defendant or interested party to the proceedings.

Counsel referred us to the decision of this court in Attorney General of Trinidad and Tobago v

Ravi Jaipaul5 to support his contention. He posited that it would be quite wrong for a public

authority not to have at least been heard in a scenario where a court makes a declaration

seriously condemnatory of the action of a public authority.

4 [2009] MHRC 50. 5 Civ. App. No. 35 of 2011.

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[18] Counsel for the Attorney General, Mr Byam, disagreed with the submission of the PSC and

submitted that the proper defendant to an action where a claimant alleges a service commission

established by the Constitution (in this case the PSC) has infringed upon her fundamental rights

is the commission itself. Mr Byam contended that section 18 (8) and (9) of the SLPA creates a

state indemnity for the service commissions established by the Constitution against any award

of damages made against it and guarantees that claimants can easily recover such awards. Mr

Byam further argued that the Privy Council decision in Carmel Smith does not decide that

service commissions established by the Constitution are deemed to be part of the State, but is

limited to holding that the Statutory Authorities Service Commission was not a part of the State.

[19] In my view the judge was correct in her decision not to dismiss the action on the preliminary

objection taken by the Attorney General. The Attorney General is the proper party to the suit.

However, she fell into error by adding the PSC as a defendant in these circumstances.

[20] It is to be noted from the very outset that section 14 (1) of the Constitution enables any person

who “alleges that any of the provisions of this Chapter has been, is being, or is likely to be

contravened in relation to him… may apply to the High Court for redress”. Section 14 (2)

invests the High Court with original jurisdiction (a) to hear and determine any application made

by any person in pursuance of subsection (1) “and may… make such orders, issue such writs

and give such directions as it may consider appropriate for the purpose of enforcing, or securing

the enforcement of, any of the provisions of this Chapter to the protection of which the person

concerned is entitled”. Where there has been a contravention of a fundamental right the court

has the power, in an appropriate case, to fashion a remedy to give effective relief within the

broad limits of section 14: Gairy v Attorney General of Grenada.6 This is so even where there

has been a failure by Parliament or the rule-making authority of the Supreme Court of Judicature

to regulate the practice and procedure to be followed upon applications to the High Court for

constitutional redress: Jaundoo v Attorney General of Guyana.7 Lord Diplock at pages 982 to

983 stated:

“To "apply to the High Court for redress" was not a term of art at the time

the Constitution was made. It was an expression which was first used in the

Constitution of 1961 and was not descriptive of any procedure which then

existed under Rules of Court for enforcing any legal right. It was a newly

6 [2002] 1 AC 167 [PC]. 7 [1971] AC 972 [PC].

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created right of access to the High Court to invoke a jurisdiction which was

itself newly created by article 13 (2) of the 1961 Constitution now replaced

by article 19 (2). These words in their Lordships' view, are wide enough to

cover the use by an applicant of any form of procedure by which the High

Court can be approached to invoke the exercise of any of its powers. They

are not confined to the procedure appropriate to an ordinary civil action,

although they would include that procedure until other provision was made

under article 19 (6). The clear intention of the Constitution that a person

who alleges that his fundamental rights are threatened should have

unhindered access to the High Court is not to be defeated by any failure of

Parliament or the rule-making authority to make specific provision as to

how that access is to be gained.”

[21] Some four decades ago the Privy Council in Maharaj v Attorney General of Trinidad and

Tobago8 held that the redress claimed by the appellant, an attorney at law, under section 6 (now

section 14) of the Constitution was redress from the State for a contravention of the appellant’s

constitutional rights by the judicial arm of the State and, in accordance with section 19 (2) of the

SLPA, the Attorney General was the proper respondent to the originating motion.

[22] Recently in Carmel Smith, the Privy Council considered in greater detail the broad procedural

issue as to the proper party to be the defendant to a claim for constitutional redress under section

14 of the Constitution.9 In so doing, the Board did not restrict its consideration, as suggested by

the appellant, to only the Statutory Authorities Service Commission, a statutory body

established under section of the Statutory Authorities Act, Chapter 24:01 (“the SASC”). Rather,

the Board examined the autonomous commissions established under the Constitution, namely

the Judicial and Legal Service Commission, the PSC, the Police Service Commission, the

Teaching Service Commission; as well as two other commissions with more limited and specific

functions, namely the Integrity Commission and the Salaries Review Commission (sections 138-

139 and 140-141 respectively).

[23] The Board opined that “the procedural issue is one of statutory construction which depends on

the language of the Constitution and the State Liability and Proceedings Act, construed in a

purposive and practical way”10. Lord Walker at paragraphs [18] and [24] propounded what must

be taken to be the settled position on this procedural issue:

"When the new Constitution was being drafted and considered the Service

Commissions were already in existence, carrying out the important functions

8 (No 2) (1978) 30 WIR 310 [PC]. 9 Carmel Smith at para [1]. 10 Carmel Smith at para [17].

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described by Lord Diplock in Thomas v A-G of Trinidad and Tobago. SASC was

already in existence carrying out similar functions in relation to statutory

authorities. The fact that the former but not the latter were given constitutional

status may reflect Parliament's view that the functions of the Service Commissions

are closer to what is sometimes called 'core functions'. That view would tend to be

confirmed by the amendments to s 19 of the State Liability and Proceedings Act

made by Parliament in 1998. But whether or not that is correct… it is

inconceivable that Parliament did not have it well in mind, in making the

amendments, that they were making an important procedural distinction between

the four Service Commissions, on the one hand, and the Integrity Commission, the

Salaries Review Commission, and the SASC, on the other hand.

………………………

In the Board's opinion the scheme and language are clear. The Attorney General

is to represent the State (in effect, Central Government). The Attorney General is

also to represent (except in judicial review proceedings) statutory bodies which

(presumably because of their core functions) are deemed by s 19 (8) and (9) to be

part of the State. Other statutory bodies, even if public authorities amenable to

constitutional redress proceedings under s 14 of the Constitution, are not part of

the State, and are not deemed to be part of the State."

[24] Our court of appeal in Jaipaul applied Carmel Smith in concluding that the Attorney General

and not the PSC is the proper party to be defendant to a claim for constitutional redress under

section 14 of the Constitution.11 This court stated at paragraph 36:

“The PSC, as a public body, performs core public functions with respect to the

appointment, promotion, transfer and disciplining of officers in that part of the

public sector for which the Constitution gives them exclusive responsibility.

Pursuant to section 19 (8) and (9) of the SLPA, the PSC is one of the bodies for

which proceedings in connection with the exercise of the powers of the authority

or the performance of its functions will be deemed to be proceedings against the

State. Carmel Smith establishes that, in constitutional proceedings for redress

pursuant to section 14, the Attorney General is to represent any statutory body

which is deemed by section 19 (8) and (9) to be part of the State. Accordingly, this

being a constitutional motion in connection with the exercise of the powers of the

PSC, which is a service commission as defined under section 3 (1) of the

Constitution, and therefore an authority within the meaning of sections 19 (8) and

(9) of the SLPA, it follows that the proper party against whom proceedings are to

be brought is the appellant.”

[25] The court in Jaipaul also hinted at the possibility of such a commission being joined in

constitutional proceedings pursuant to the Civil Proceedings Rules 1998 (“the CPR”) as a

defendant or interested party. However, it did not go on to provide the circumstances in which

such a commission could be so added nor did the submissions extend that far. The resolution of

11 Jaipaul at paras [29]-[37].

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this issue may be better dealt with on a case by case basis applying, as mentioned before, the

relevant rules of the CPR, including CPR 19 and CPR 56 (the latter providing for administrative

orders which include a claim under section 14 (1) of the Constitution). CPR 19 deals with the

addition or substitution of parties after proceedings have been commenced: CPR Pt 19.1. Under

CPR Pt 19, the court has extensive powers to add or substitute parties. The court must seek to

give effect to the overriding objective when it interprets the meaning of any rule or exercises

any discretion given to it by the Rules: CPR Pt 1.2. A defendant is defined as a person against

whom a claim is made: CPR Pt 2.3. Pursuant to CPR Pt 19.2 (3), the court has a discretion to

add a new party to proceedings if:

“(a) it is desirable to add the new party so that the court can resolve all the

matters in dispute in the proceedings; or

(b) there is an issue involving the new party which is connected to the matters in

dispute in the proceedings and it is desirable to add the new party so that the

court can resolve that issue.”

[26] It would appear that the conjoint effect of CPR Pt 19 and CPR Pt 56 contemplates different

degrees of participation by persons who have some kind of interest in an application for

constitutional relief. This would exclude persons with insufficient interests, such as cranks and

mere busybodies. The court has a discretion under CPR Pt 56.12, at the case management

conference, to allow any person who appears to have sufficient interest in the subject matter of

the claim to be heard whether or not he has been served with the claim. Further, the judge must

direct whether any person or body having such interest is to make submissions by way of

written brief or whether such a person or body makes oral submissions at the hearing: CPR Pt

56.12 (4). This degree of participation seems more limited and less direct than where someone is

added as a party under CPR Pt 19.2 (3).

[27] In its determination as to joinder in constitutional proceedings, a court would of course have to

be mindful that there may be a distinction depending on whether the proceedings are purely civil

and private, or, whether they concern issues of public law; an assessment of the nature and

extent of the interest may also be relevant. One can, for example, envisage a situation, hopefully

rare, where joinder may be desirable in circumstances where there is a real possibility that the

independence of a commission might be interfered with or compromised by having the Attorney

General as sole defendant. Basu Shorter Constitution of India12 posits that, as a matter of

12 Basu Shorter Constitution of India 14th ed. (2009), Vol 2, pp 1276-1277.

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principle, the essential question to be asked is whether the presence of a person is necessary to

render an effective decision. Merely because certain questions will have to be determined

incidentally in awarding relief does not make each and every person interested in such questions

necessary parties to such proceedings.13

[28] However, at the stage at which the judge was considering the preliminary objection in the

instant case, all that was before her was an ex facie constitutional motion seeking vindication of

the appellant’s constitutional right against discrimination pursuant to section 4 (d). There was

nothing to suggest that the joinder of the PSC was desirable. The Attorney General, in its role as

guardian of the public interest, could be relied upon to fairly, faithfully and independently

resolve all matters in dispute, or all issues involving the PSC which were connected to the

matters in dispute in the proceedings. Any redress being sought by the appellant, such as a

declaration for contravention of a fundamental right or monetary compensation, could have been

effectively provided by the Attorney General in its role as exclusive defendant.

b) Abuse of Process

[29] The court’s general powers of case management, set out in CPR Pt 26.1, are extensive. Its

discretionary powers must be exercised so as to further the overriding objective of dealing with

cases justly (CPR Pt 25.1). The court must further the overriding objective by actively managing

cases (CPR Pt 25.1).

[30] CPR Pt 25 confers no powers, but rather, “spells out the aims or policies that are behind many of

the CPR provisions and which the court must keep in mind when giving management

directions.”14 Pursuant to CPR Pt 25.1, active case management includes:

(a) identifying the issues at an early stage;

(b) deciding promptly which issues need full investigation and trial and

accordingly disposing summarily of the others;

…………………

(f) deciding the order in which issues are to be resolved.

Insofar as addressing specific issues arising during the course of proceedings, express case

management powers are conferred on the court, including:

(g) to decide the order in which issues are to be tried;

(h) to direct a separate trial of any issue;

……………….....

13 Ibid. 14 Zuckerman on Civil Procedure 3rd ed (2013) at para 11.61.

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(k) to dismiss or give judgment on a claim after a decision on a preliminary issue;

(w) to take any other step, give any other direction or make any other order for

the purpose of managing the case and furthering the overriding objective.

[31] In addition to its case management powers under the CPR, the court has a wide discretionary

power, arising from its inherent jurisdiction at common law, to prevent its process from being

abused.15

[32] In Johnatty v A.G of Trinidad and Tobago,16 the Privy Council held that the fact that the

alternative remedies of breach of contract and judicial review were available was fatal to the

appellant’s application for constitutional relief. Lord Hope summarized on this particular type of

abuse as follows:

“The fact that these alternative remedies [judicial review and breach of

contract] were available is fatal to the appellant's argument that he ought

to have been allowed to seek a constitutional remedy. In Harrikissoon v

Attorney General of Trinidad and Tobago [1980] AC 265, 268 Lord

Diplock warned against the misuse of the right to apply for constitutional

redress when other procedures were available. He said that its value

would be seriously diminished if it is allowed to be used as a general

substitute for the normal procedures for invoking judicial control of

administrative action. This warning has been repeated many times…........

In Jaroo v Attorney General of Trinidad and Tobago [2002] UKPC 5;

[2002] 1 AC 871, para 39 Lord Hope of Craighead said that before he

resorts to this procedure the applicant must consider the true nature of the

right that was allegedly contravened and whether, having regard to all the

circumstances of the case, some other procedure might not more

conveniently be invoked. In Attorney General of Trinidad and Tobago v

Ramanoop [2005] UKPC 15, [2006] 1 AC 328, para 25 Lord Nichols of

Birkenhead said that where there is a parallel remedy constitutional relief

should not be sought unless the circumstances of which complaint is made

includes some feature which makes it appropriate to take such a course.”

[33] I am of the view that the judge, within the ambit of the exercise of her case management powers

under the CPR, could have postponed adjudication of the appellant’s preliminary abuse of

process issue to such a point that she deemed more appropriate.17 This is because at that stage of

the proceedings the judge only had before her the appellant’s version of events. This revealed

what on the face of it appeared to be a legitimate constitutional claim for discrimination based

on the cumulative treatment meted out to her. The judge could not be faulted for deferring

15 Ibid at para 11.235. 16 [2008] UKPC 55 [22]. 17 Judgment of Jones J at para [4].

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consideration of this issue until she had considered the respondents’ version, as this would have

allowed her to make an informed decision as to whether the appellant was seeking constitutional

protection as a general substitute for the normal procedures for invoking judicial control of

administrative action. As it turned out, after all the evidence had been introduced by the parties,

she did not determine the abuse of process issue again. Implicit in her determining the case on

its merits is a recognition by the judge that there was no merit in the second respondent’s

argument on abuse of process. It is clear that determination of a preliminary issue may be

beneficial under the CPR: see Steele v Steele.18 However, it is worth bearing in mind that Lord

Scarman in Tilling v Whiteman,19 cautioned that preliminary issues were often “treacherous

shortcuts” which could lead to “delay, anxiety and expense”.

[34] Consequent upon the judge’s order to amend, the appellant sought, as the judge found, to

expand on what was initially a constitutional motion for violation of a fundamental right, to

include a claim for judicial review. Thus, in the amended claim form, the appellant included,

among other matters:

i. A claim for a declaration that she was treated unfairly and/or illegally and/or

irrationally by the PSC contrary to the principles of natural justice and

section 20 of the Judicial Review Act (“JRA”).

ii. Grounds pursuant to section 5 (3) of the JRA, including the traditional

grounds of illegality, irrationality and procedural impropriety.

[35] The judge found that the mere granting of permission to amend the claim form constituted

neither an application for leave to apply for judicial review, nor was it a substitute for such

leave. She went on to hold that even if the proper procedure had been followed, the application

would have failed nonetheless at the leave stage on the ground of delay. The judge reasoned

that, save for one decision which the appellant alleged she discovered in April 2007, the

impugned decisions to act in or to be promoted to a higher post all took place in 2006. As the

amendment to the claim for judicial review was only filed in 28 September 2007, there would

have been unreasonable delay in the bringing of the application for judicial review with respect

to all the contested decisions. Further, in determining whether to grant leave or relief, the judge

considered that the granting of such leave or relief would be detrimental to good administration

18 (2001) Times 5 June. 19 [1980] 1 AC 1, 25.

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and would substantially prejudice the rights of persons now holding the various offices.20 The

appellant initially challenged various facets of these findings. However, at both hearings before

this court, the appellant signaled her intention to no longer pursue those aspects.21

Costs on the preliminary issues

[36] The appellant, having succeeded on both preliminary points as to the proper party to the

proceedings and abuse of process, would have been entitled to an order of costs in her favour on

these issues. Likewise, the respondent having been successful on the judicial review issue, an

order for costs should so reflect.

V. Relevant facts and background.

Affidavits.

[37] The appellant filed the following affidavits:

i. 23 February 2007;

ii. 26 September 2007;

iii. 30 January 2008.

The second respondent filed the following affidavits in opposition:

i. three affidavits of Gloria Edwards-Joseph, the Director of Public

Administration (“the DPA”) filed on:

a. 6 December 2007;

b. 6 December 2007;

c. 18 March 2008.

ii. Verna Johnson, Director Human Resource, filed on 6 December 2007.

[38] The appellant is a career public servant some fifty-nine years old with a very impressive

academic record. In 1979 the University of the West Indies (“UWI”) awarded the appellant a

20 Judgment of Jones J at para 20. 21 See CAT 15 June 2011, p 3, 8 – 27; CAT 13 November 2015, p 2, 38.

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Bachelor of Science degree with First Class Honours. She was awarded a Canadian

Commonwealth Scholarship and in 1983 graduated with a Master of Science degree in

Horticultural Sciences from the University of Guelph in Canada.

[39] She taught for one year (1979-1980). She then started off as an Agricultural Officer I in what is

now the Ministry of Agriculture, Land and Fisheries (“Ministry of Agriculture”) in 1980 and has

worked in this Ministry for her entire working life, save for the period 1991 to 1992 when she

was on secondment as a lecturer in plant physiology and botany at UWI.

[40] From 1 January 1993 and even up to the time of the commencement of these proceedings in

February 2007, the appellant’s substantive post was that of Biochemist II. However, while this

action was pending, the PSC on 12 November 2007 advised the appellant of her promotion to

the substantive post of Technical Officer (Agriculture) Horticulture (Range 63) with effect from

16 October 2007.

[41] On 25 August 2004 the appellant, by way of a memorandum signed by the appellant and four

other officers of the Ministry and addressed to the Director of Personnel Administration

(“DPA”), indicated their capability and willingness to act in the position of Deputy Director,

Extension Training and Information Services.

[42] With respect to this 2004 application, the appellant alleges that she was present at a meeting in

August or September 2004 with two officials of the Ministry of Agriculture, namely Mr

Winston Gibson, Acting Personnel Secretary, and Ms Verna Johnson, Director of Human

Resources Division I. At this meeting she was advised that, notwithstanding her seniority over

the person appointed to the post of Deputy Director Extension, she would not be so appointed as

her Master’s degree in Horticulture was insufficient because the preferred candidate possessed a

Master’s degree in extension and this was now a precondition.

[43] The appellant stated that she objected to this new policy as in the past officers without such a

qualification had been appointed to act. Ms Johnson, the appellant alleges, went on to explain

that, with the new policy, seniority was no longer the guiding factor as it once was for acting

appointments. Rather a specialist Master’s in the relevant discipline for the higher office to

which acting appointment and/or promotion was sought was now a pre-requisite.

[44] The appellant alleged that the vast majority of officers who had previously held the Extension

post were not subjected to the pre-requisite of having a Master’s degree in Extension; nor did

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most of them have such a degree. Such persons would have included Mr Samuel Rivers, Mr

Vernon Douglas, Dr G Bhola, Ms Mona Jones and Mr Mohammed Halim.

[45] Ms Johnson, in her affidavit filed on 6 December 2007, did not recall the appellant being told of

a new policy. Further she expressly disavows: (i) telling the appellant that a Master’s degree in

the relevant discipline for the higher offices to which acting appointment and/or promotion was

sought was now a pre-requisite; (ii) telling the appellant that a Master’s degree in Extension was

now a pre-condition for appointment to act in the position of Deputy Director, Extension. While

Ms Johnson does not recall the precise words spoken, she stated that whatever was said to the

appellant would have been guided by the contents of Circular No. 1 of 2004 from the DPA.

[46] It may be appropriate at this stage to set out the contents of this circular which took effect on 3

January 2005. This circular emanated from the DPA and was directed to Permanent Secretaries

and Heads of Department. The subject matter dealt with compliance by these officers with the

Public Service Commission Regulations. It recorded that the PSC had decided, among other

matters:

“(3) Effective January 3, 2005 the Commission will no longer consider

recommendations for acting appointments and /or promotions in respect of

officers who do not satisfy the training and experience requirements for the

particular office. Exceptions may be made in special circumstances.

……………………………

(5) Effective January 3, 2005 the Commission will not consider recommendations

that do not comply with the above conditions and in such situations the

Commission may require the personal attendance of the Permanent Secretary or

Head of Department to explain the particular circumstances.”

The PSC underscored the responsibility placed upon Permanent Secretaries and Heads of

Department to ensure compliance so that officers under their supervision are not disadvantaged.

[47] Mrs Edwards-Joseph, the DPA at the material time, in her affidavit filed on 6 December, 2007

weighed in on this issue of the appointment to act in the office of Deputy Director, Extension.

She exhibited the job specification for the post. She stated that the job specification required

evidence in training by post-graduate training in Agricultural Extension or an appropriate field,

or any equivalent combination of training and experience.

[48] She explained why another officer, Mr Adrian Bhekoo, was selected for this acting appointment.

The Permanent Secretary in this Ministry had recommended Mr Bhekoo to act in that position.

Mr Bhekoo held a Master of Philosophy in agricultural extension. The PSC considered that

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post-graduate training in Agricultural Extension was more relevant to the post at that time.

However, the PSC did not treat the post-graduate training in Agricultural Extension as a pre-

requisite. Rather, in choosing between Mr Bhekoo and the appellant, whose post-graduate

training was in another field (Horticulture), it accorded greater weight to Mr Bhekoo’s post-

graduate training in the specific field and concluded that, in all the circumstances, it was in the

interest of good administration to appoint Mr Bhekoo at that time.

[49] With respect to any conversations between the appellant and Mr Gibson and Mrs Johnson, Mrs

Edwards-Joseph remarked that neither of the latter two can speak to the policy of the PSC

except to the extent that the Commission has informed them of its policy. The Commission’s

policy is based on the PSC Regulations. By Circular No. 1 of 2004 (dated 8 December 2004),

the Commission informed all Permanent Secretaries and Heads of Department of its decision,

inter alia, that, effective 3 January 2005, it would no longer consider recommendations for

acting appointments in respect of officers who do not satisfy the training and experience

requirements for particular offices; however, exceptions may be made in special circumstances.

The contents of this Circular were also published in the press for public information on 15 June

2005.

[50] On the issue of an acting appointment in the office of Deputy Director, Extension, the appellant

countered that she had the equivalent combination of training and experience. She highlighted

the fact that in her undergraduate program, she had taken several courses in Agricultural

Extension. Further, at the Ministry, she had a close working relationship with the Extension

Division and had participated in “innumerable programs and training sessions where I presented

papers, lectured and chaired workshop sessions for stakeholders in the industry. I have also

written several training manuals and fact sheet for the benefit of extensionists and farmers. The

Ministry also sent me on various short courses at the University of California where I gained

firsthand experience in this field. These courses were hosted by the University Extension

Department in the Faculty of Agriculture which is internationally renowned for its proficiency in

this field. The experience I gained in the area of linkages between research, extension and

stakeholders in the industry would have been a tremendous asset in the performance of duties as

Department Director, Extension Training and Information Service”22.

22 Memorandum of 16 July 2006, Record of Appeal p 83.

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[51] The appellant was also critical of Ms Edwards-Joseph making no mention of any

recommendation being made by the Permanent Secretary or Head of Department as is required

under regulations 25 to 28. The appellant also complains that, in breach of regulation 25, the

failure to notify her that an acting appointment was about to be made meant that she was unable

to make any representations on her behalf and resulted in her being treated unfairly.

[52] Ms Edwards-Joseph in her final response maintained that the appellant did not possess the post-

graduate training in Agricultural Extension or an appropriate field nor the prescribed equivalent

combination of experience and training. “The Claimant did not possess the postgraduate training

in Agricultural Extension or an appropriate field. The Commission decides whether an Officer

possesses the equivalent combination of experience and training and if the officer does, how it is

to be ranked using guidelines established by the Chief Personnel Officer”.23 Ms Edwards-Joseph

goes on to make the point that the statutory obligation under regulations 25 to 28 of the Public

Service Commission Regulations is on the Permanent Secretary, not the PSC, to notify the

officers who are eligible for consideration for an acting appointment and to make

recommendations. As the appellant did not possess the prescribed or equivalent training and

experience, she was not entitled for consideration and as a consequence not entitled to

notification.

[53] Finally, Ms Edwards-Joseph deposed that, even though the appellant applied for the acting

Extension post on 25 August 2004, that post was not yet vacant as Mr Halim was appointed to

the position until 31 December 2004.

Crop Production

[54] Following the indication in the memorandum of 25 August 2004 of her capability and

willingness to act in the post of Deputy Director, Extension, the appellant was appointed to act

in the post of Deputy Director, Crop Production (the third post) from 2 May 2005 to 24 June

2005. The appellant contended that this was all a part of the unequal treatment meted out to her

as she did not even possess a Master’s degree in Crop Production, the requisite post-graduate

qualification.

23 Affidavit of Ms Edwards-Joseph dated 18 March 2008 at para 3.

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Horticulture

[55] On the very day that this acting appointment in Crop Production ended, the appellant on 24 June

2005 requested consideration by the PSC for the post of Technical Officer, Horticulture,

Agricultural Services Division, namely Technical Officer (Agriculture) Horticulture, as the

incumbent was due to retire very shortly. It is common ground that the appellant’s post-graduate

qualification was in Horticulture. The appellant contended that this was an important acting

appointment as a permanent vacancy had effectively arisen and she “expected to act as a prelude

to a subsequent promotion in the said office”.24

[56] The appellant attached memorandum dated 6 July 200525, from the Acting Director, Agricultural

Services Division, Ms Mona Jones, strongly recommending her for promotion to this post of

Technical Officer, Horticulture. The Acting Director stated therein:

“Ms Mootoo demonstrated both the capability and the vision required for

implementation of our recently approved strategic plan. If we were to move

forward towards a serious 20/20 vision for agriculture in Trinidad and Tobago I

would recommend that we capitalize on Ms Mootoo’s analytical abilities and

scientific capacity. Her work in the Research Division has allowed her to develop

sensitivity for quality produce and to this end she initiated a quality management

seminar during her short stint in the division in 2004. This was a very successful

experience and demonstrated the type of leadership qualities, which could

enhance the Division’s output and thus satisfy both national and international

standards.”

[57] By letter dated 19 September 2005, the Permanent Secretary in the Ministry of Agriculture

acknowledged that a recommendation had been made to the DPA for the appellant to act in the

Horticulture post “from 19th September 2005 and continuing vice Dr George Bola on pre-

retirement leave and in the ensuing vacancy from 2nd November, 2005”.26

[58] There seems to be some uncertainty as to whether it was the PSC or the Permanent Secretary of

the Ministry that continued the acting appointment of the appellant beyond 31 December 2005.

Ms Edwards-Joseph in her affidavit of 6 December 2007 at paragraph 627 deposed that it was the

PSC that appointed the appellant to act in the Horticulture post from 19 September 2005 to 31

December 2005 and from 1 January 2006 to 28 February 2006. Yet, surprisingly, Ms Edwards-

24 Affidavit of 23 February 2007, Record of Appeal p 28 at para 8. 25 Record of Appeal p 51. 26 Ibid p 55. 27 Ibid p 316.

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Joseph asserted in her affidavit of 18 March 2008 (at paragraph 7) that it was the Permanent

Secretary of the Ministry who permitted the appellant to act beyond 31 December 2005.

However, the appellant could have been under no illusion as to the nature of the acting

appointment. This was clearly not an acting appointment made as a prelude to a substantive

appointment. The DPA in her letter of 7 November 2005 referred to this acting appointment

made by the PSC and concluded as follows:28

“This acting appointment gives you no claim to promotion to the office of

Technical Officer (Agriculture).”

The exact date this acting appointment came to an end, while uncertain, is immaterial for present

purposes. It is 23 February 2006 or 2 March 2006 on the appellant’s evidence; or 28 February

2006 on the evidence of Ms Edwards-Joseph.

[59] By letter dated 16 February 2006, the Permanent Secretary informed the appellant that her

acting appointment would cease on 23 February 2006, with her reverting to her substantive post

from that date.

[60] At the time that the appellant was appointed to act in the Horticulture Post, Mr Nadeer Baksh

was already acting in the post in the equivalent Range 63, namely Deputy Director, Agricultural

Services (Crop Production).29

[61] By memorandum dated 8 March 2006, the appellant requested an explanation for the sudden

termination of her acting appointment after six months. Further, by memoranda in July and

August 2006, the appellant complained to the DPA that, despite being the most senior person

with a Master’s degree in Horticulture, she was bypassed for acting appointment and/or

promotion to this post, and an officer with post-graduate training in another discipline was

appointed to act.

[62] In response, Ms Edwards-Joseph, in her affidavit of 6 December 2007,30 stated that neither the

PSC nor the DPA received:

i. the appellant’s memorandum of 24 June 2005 requesting consideration for

the Horticulture post; or,

ii. the recommendation of Ms Jones of 6 July 2005 to the Permanent Secretary

for the appointment of the appellant to the Horticulture Post.

28 Affidavit of Ms Edwards-Joseph dated 18 March 2008 at para 7. 29 Ibid at para 6. 30 Record of Appeal p 316 at para 6.

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Notwithstanding, the PSC appointed the appellant to act in the Horticulture

post from 19 September 2005 to 31 December 2005, and from 1 January

2006 to 28 February 2006.

[62] Ms Edwards-Joseph proffered the reason why the PSC appointed Mr Nadeer Baksh to act in the

Horticulture post from 1 March 2006 in place of the appellant.31 Prior to that date, Mr Baksh had

acted as Deputy Director, Agricultural Services (Crop Production), a post at the same level,

Range 63, but he had to relinquish that position when the substantive holder returned to it. She

stated:

“Mr Baksh was the senior officer in the Ministry eligible for acting appointment

as Technical Officer (Agriculture) Horticulture. He was senior to the Claimant.

The job specification for [Horticulture] is covered by the job specification for

Technical Officer (Agriculture). There is not a specific one for Horticulture. The

training is evidenced by a recognized degree in agriculture and post-graduate

degree training in an appropriate field. The Commission considered the

qualifications of Mr Baksh to be sufficiently related to the job specifications to

allow him to act in the position given his seniority…

The [appellant] has since been promoted to the post of Technical Officer

(Agriculture) Horticulture with effect from 16th October 2007 and Mr Baksh

promoted to Deputy Director Agricultural Services (Crop Production) with effect

from 14th August 2006…”32

[63] With respect to the appellant’s promotion, Ms Edwards-Joseph stated that the PSC considered

the appellant and on 16 October 2007 decided to promote her. As was stated earlier, the PSC on

12 November 2007 advised the appellant of her promotion to the substantive post of Technical

Officer (Agriculture) Horticulture (Range 63) with effect from October 16 2007.

[64] Ms Edwards-Joseph referred to certain memoranda of the appellant of 17 May, 16 July and 22

August, 2006 which contained the essentials of the appellant’s grievances with respect to the

three posts of Extension, Horticulture and Crop Production. She said that these were only

received by the PSC and the DPA on 25 August 2006. As a result, the PSC, very shortly after,

by memorandum dated 30 August 2006, requested the comments of the Permanent Secretary in

the Ministry on the appellant’s memorandum of 16 July 2006 and the issues raised therein.

[65] Further, with respect to the appellant’s specific memorandum of 25 August 2006 seeking an

explanation for her alleged unequal treatment as it related to the Extension and Horticulture

31 Affidavit of 6 December 2007, Record of Appeal p 316 at para 7. 32 Ibid.

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posts, Ms Edwards-Joseph stated that the PSC only received this memorandum on 4 September

2006.

[66] With respect to the appellant’s allegation in her memorandum of 17 May 2006 of an offer for an

acting appointment in the post of Deputy Director, Agricultural Services Division (Crop

Production), Ms Edwards-Joseph indicated that the PSC never offered this position to the

appellant by notice dated 16 March 2006. Indeed, the PSC never knew of such an offer by

anyone until it received this memorandum on 25 August 2006. The background to this acting

appointment, Crop Production, can be captured from Ms Edwards-Joseph and the Permanent

Secretary. The effect thereof is that approval was conveyed by the Permanent Secretary under

delegated authority33 for this acting arrangement and an offer was made to the appellant since 11

April 2006.34

By her memorandum of 17 May 2006, the appellant declined the offer to act in the Crop

Production post and requested reconsideration of the offer to so act. She requested in lieu

thereof that she be considered for the Horticulture post.35 However, by memorandum of 22

August 2006,36 the appellant changed her stance and indicated her willingness to assume this

acting position. Finally, by memorandum of 2 November 2006, the appellant declined this

acting appointment on medical grounds, citing a medical condition which was “severely

aggravated by long and tedious driving”.37 The respondent contends that, in these circumstances,

even if she had been bypassed, the appellant has suffered no real disadvantage.

[67] Following the request by the PSC for the investigation of the issues raised in the appellant’s

memorandum of 16 July 2006, the Permanent Secretary eventually responded by memorandum

dated 9 November 2006.38 The comments by the Permanent Secretary with respect to the

Extension and Horticulture posts (Ministry of Agriculture) are consistent with the position as

previously set out by Ms Edwards-Joseph. However, with respect to the acting appointment for

the office of Deputy Director, Research (Crops), the Permanent Secretary stated:

33 Public Service Commission (Delegation of Powers) Order Section 3; First Schedule, Part II (1) (c), Constitution

of Trinidad and Tobago Chap. 1:01. 34 Record of Appeal p 361. 35 Ibid p 75. 36 Ibid p 97. 37 Affidavit of Ms Edwards-Joseph dated 18 March 2008, Exhibit GEJ 3. 38 Record of Appeal p 357.

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“In her August representations [see memorandum 22 August 2006, p 97 ROA],

Ms Mootoo claims to have been bypassed for the office of Deputy Director,

Research (Crops) on more than one occasion…This is indeed the case [Emphasis

added]. The officer who was recommended ahead of her is Dr Mario Fortune,

Plant Pathologist, who holds a Master’s Degree in Plant Pathology. In making a

recommendation on the matter, the Director of Research commented as follows:-‘

… operations of the Crop Protection and its Sub-Division require technical and

scientific competence in Sanitary and Phytosanitary (SPS) measures. Based on

this criterion, Dr Mario Fortune is recommended to act in the higher capacity of

Deputy Director, Research (Crops)…”39

Director, Horticultural Services (Range 63), Ministry of Public Utilities.

[68] By memorandum of 28 March 2006, the Permanent Secretary in the Ministry of Agriculture

invited applications from suitably qualified officers for an acting appointment in the vacant

office of Director, Horticultural Services (Range 63) in the Ministry of Public Utilities. The

appellant in her memorandum of 28 September 2007 stated that she applied for this position on

19 May 2006 and annexed all relevant documents in support thereof.

[69] The appellant complains that in or about April 2007, she became aware that she had been

bypassed and her junior, Ms Gloria Simon, was appointed to act in the said post. As a result, on

23 April 2007 she requested an explanation from the DPA. By its response dated 27 July 2007,

the PSC indicated that:

i. the Permanent Secretary in the Ministry of Agriculture was requested to

ascertain whether qualified officers in this Ministry were interested in the

acting appointment; and

ii. Ms Gloria Simon was the senior officer to indicate interest and was

appointed to act in the post from 26 March to 30 June 2007.

Ms Edwards-Joseph made clear that no application from the appellant was received by the

Service Commission Department.

[70] From the foregoing narrative, there are two instances in which the PSC claims not to have

received correspondence submitted by, or on behalf of, the appellant. Both pertained to

Horticulture, the first in the Ministry of Agriculture, and the other in Ministry of Public Utilities.

39 Ibid pp 359-361.

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However, it is noteworthy that no affirmative evidence has been led by the respondent

suggesting that the persons to whom the correspondence was directly addressed did not receive

them.

VI. Appellant’s Arguments

[71] The appellant submits that:

i. She suffered severe prejudice as a result of the unequal and unfair treatment,

contrary to section 4 (d) of the Constitution, in relation to appointments to

the various positions available from time to time. Consequently, she claims

compensation for loss of earnings and distress and inconvenience.

ii. The directive in Circular No 1 of 2004 contravenes the PSC Regulations in

respect of acting appointments.40 An acting appointment which is not a

prelude to a substantive appointment is governed by regulation 26 which

applies after officers who are eligible for such an appointment have been

notified by the Permanent Secretary or the Head of Department in pursuance

of regulation 25.41

iii. These regulations require submission of recommendations in a timely

manner and where an officer was being bypassed for a particular post,

reasons should be stated along with the recommendations. There was no

evidence as to whether recommendations were made nor whether any

reasons were provided as to why the appellant was bypassed.42

iv. The PSC misconstrued the relevant regulations. As a result, the appellant

was denied acting appointments to which she was entitled if:

a) She had seniority; or

40 Appellant’s Skeleton Arguments filed 21 May 2009 at p 14, para 15. 41 Ibid. 42 Ibid p 14, para 16.

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b) Was able to assume and discharge the duties and

responsibilities of the offices to which she sought acting

appointments.43

v. The State adduced no evidence to show that the procedure whereby officers,

including the appellant, who were eligible for acting appointments, were

notified in accordance with regulation 25.44

vi. Non-compliance with regulations 25 to 28 deprived officers, including the

appellant, from making representations with respect to the omission of their

names from the list of eligible officers.45

vii. The effect of the absence of cross-examination is not that disputed facts are

to be automatically resolved in favour of the defendants. A court must

consider the totality of the evidence and give greater weight to

contemporaneous documents and the silence of the respondents during the

pre-action stage when the appellant and her attorney wrote several important

letters outlining her grievances.

VII. Second Respondent’s Arguments

[72] With respect to the violation of the constitutional right to equality of treatment pursuant to

section 4 (d), the second respondent submits as follows (these submissions have been adopted

by the first respondent):

i. All the complaints about discriminatory treatment really concerned

administrative acts rather than constitutional complaints and should not

therefore engage the constitutional court.46

ii. Even if the court considers the constitutional issue of unequal treatment, the

judge found that a prima facie case was not made out since the publication

of Circular No 1 of 2004 did not deem the persons named by the appellant

43 Ibid para 17. 44 Ibid. 45 Ibid para 18. 46 Second Respondent’s Skeleton Submissions dated 8 June 2011 at p 15, para 15.

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as proper comparators. Accordingly, there was no shift of the burden of

proof.

iii. Even if the appellant were to succeed in her constitutional claim, a

declaration would be an adequate remedy. In any event, there is no evidence

on which damages can be assessed.47

EXTENSION

iv. With respect to the Extension (Ag.) post, Mr Halim, Mr Bola, Ms Jones and

Mr Douglas are not appropriate comparators as they were all appointed prior

to Circular No 1 of 2004 taking effect on 3 January 2005. Further, there is

no evidence of Mr Rivers acting in this post. This Circular applied to this

acting appointment as a vacancy only arose after 3 January 2005.48

v. The PSC was justified, under the regulations, in selecting Mr Bheekoo over

the appellant for the appointment to the Extension post on the basis that

greater weight was given to his post-graduate training.49 In any event, under

regulation 26, the PSC has a discretion in making such an acting

appointment. In doing so, the PSC is the sole judge of who is better suited to

fill the vacancy.50

vi. With respect to the appellant’s contention as to alleged breaches of

regulations 25 to 28, the second respondent submits that there were none.

The appellant was not eligible for consideration for the acting appointment

to the Extension post as she did not have the requisite training and

experience. Consequently, she was not entitled to notification pursuant to

regulation 25.51

HORTICULTURE

47 Ibid p 25, para 37. 48 Ibid p 3, para 7; p 29, para 45. 49 Ibid p 29, para 46. 50 Ibid para 47. 51 Ibid pp 29-30, paras 48, 49, 50.

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vii. With respect to the Horticulture post, the PSC contends that it never

received:

i. The appellant’s request for consideration of 24 July 2005;

nor

ii. The recommendation of Ms Jones, the Director (Ag.),

Agricultural Services Division, for promotion of the

appellant to this post.

Notwithstanding, the appellant was appointed to act from 19 September 2005 to 28 February

2006 when she was replaced by Mr Nadeer Baksh, who was her senior and eligible for acting in

the said post.52

CROP PRODUCTION

viii. The appellant says that by notice dated 16 March 2006 she was asked

whether she was interested in acting in the post of Deputy Director,

Crop Production. She had previously acted from 2 May 2005 to 24

June 2005. By memorandum dated 17 May 2006 the appellant

requested a reconsideration of her acting in this post, and asked instead

that consideration be given to her in the Horticultural post. The PSC

contends that it did not know of the offer of the Crop Production post

to the appellant until receipt of the memorandum from the Permanent

Secretary dated 9 November 2006.53

The second respondent submits that there are no alleged comparators

on the basis of which the appellant can make a claim for

discrimination. As such, the second respondent was not in a position to

deal with them specifically. Further, even if Dr Fortune can be

considered a comparator, the PSC has sufficiently explained and

justified the difference in treatment by showing that Dr Fortune was

materially differently qualified from the appellant.54

52 Ibid p 4, paras 8 & 9. 53 Ibid p 4, para 10. 54 Ibid p 16, para 21; Record of Appeal p 428 at para 36.

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HORTICULTURE, PUBLIC UTILITIES

ix. With respect to the complaint concerning the Horticulture post in the

Ministry of Public Utilities, the second respondent contends that the

appellant alleges she was bypassed in favour of a junior officer, Ms

Simon, for an acting appointment for which she had applied. By letter

dated 27 July 2007, the second respondent indicated that Ms Simon

was the senior officer to apply for the acting appointment. No

application from the appellant had been received by the Service

Commission Department.55

The second respondent goes on to assert that Ms Simon was appointed

to act in this post from 26 March 2007 to 30 June 2007. Further, even

if the appellant were to succeed, a declaration would be an adequate

remedy as the appellant was shortly thereafter promoted to the

Horticulture post, Ministry of Agriculture, on 16 October 2007.56

VIII. Discussion

Regulations

2. “Acting appointment” means the temporary appointment of an officer to a

higher office or otherwise whether that office is vacant or not;”

…………………………

18. (1) In considering the eligibility of officers for promotion, the Commission

shall take into account the seniority, experience, educational qualifications, merit

and ability, together with relative efficiency of such officers, and in the event of an

equality of efficiency of two or more officers, shall give consideration to the

relative seniority of the officers available for promotion to the vacancy.

55 Second Respondent’s Skeleton Submissions dated 8 June 2011 at p 16, para 11. 56 Ibid para 37.

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(2) The Commission, in considering the eligibility of officers under subregulation

(1) for an appointment on promotion, shall attach greater weight to—

(a) seniority, where promotion is to an office that involves work of a routine

nature, or

(b) merit and ability, where promotion is to an office that involves work of

progressively greater and higher responsibility and initiative than is

required for an office specified in paragraph (a).

(3) In the performance of its functions under subregulations (1) and (2), the

Commission shall take into account as respects each officer—

(a) his general fitness;

(b) the position of his name on the seniority list;

(c) any special qualifications;

(d) any special courses of training that he may have undergone (whether at

the expense of Government or otherwise);

(e) the evaluation of his overall performance as reflected in annual staff

reports by any Permanent Secretary, Head of Department or other senior

officer under whom the officer worked during his service;

(f) any letters of commendation or special reports in respect of any special

work done by the officer;

(g) the duties of which he has had knowledge;

(h) the duties of the office for which he is a candidate;

(i) any specific recommendation of the Permanent Secretary for filling the

particular office;

(j) any previous employment of his in the public service, or otherwise;

(k) any special reports for which the Commission may call;

(l) his devotion to duty.

(4) In addition to the requirements prescribed in subregulations (1), (2) and (3),

the Commission shall consider any specifications that may be required from time

to time for appointment to the particular office.

…………………………

20. (1) The Director shall keep up-to-date seniority lists of all officers holding

offices in the several grades in the public service.

(2) The Permanent Secretary or Head of Department shall keep in the prescribed

form, up-to-date seniority lists of all officers holding offices in the several grades

in his Ministry or Department, for the purpose of making recommendations for

promotion and acting appointments.

…………………………

24. (1) The Permanent Secretary or Head of Department shall ensure that any

recommendation made in relation to an acting appointment as a prelude to a

substantive appointment shall be based on the principles prescribed in regulation

18.

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(2) Where, in the exigencies of the particular service, it has not been practicable

to apply the principles prescribed in regulation 18, an officer selected for an

acting appointment in consequence of a recommendation made under

subregulation (1) shall not thereby have any special claim to the substantive

appointment.

(3) In considering the claims of eligible candidates for a substantive appointment,

the Commission shall take into account the claims of all eligible officers.

25. (1) Where an acting appointment falls to be made whether as a prelude to a

substantive appointment or not, the Permanent Secretary or Head of Department

shall notify those officers within the Ministry or Department who are eligible for

consideration.

(2) The Permanent Secretary or Head of Department shall, after notification as

required by subregulation (1), allow a period of seven days to elapse before

forwarding any recommendations in relation to such acting appointment, for the

purpose of allowing the officers of the Ministry or Department to make

representations on the filling of such vacancy.

(3) Where representations have been made by or on behalf of any officer in the

Ministry or Department, the Permanent Secretary or Head of Department shall

forward such representations in their original form to the Director.

(4) Where a vacancy occurs in an office and an acting appointment falls to be

made for a period not likely to exceed twenty-eight days as a result of sudden

illness or other very special circumstances, the Permanent Secretary or Head of

Department may appoint an officer to act for such period and the provisions of

subregulations (1), (2) and (3) shall not apply to such acting appointment.

26. (1) Where an acting appointment falls to be made otherwise than as a prelude

to a substantive appointment, the officer appointed shall—

(a) as a general rule be the senior officer in the Ministry or Department

eligible for such acting appointment;

(b) assume and discharge the duties and responsibilities of the office to

which he is appointed to act.

(2) In submitting any recommendations for an acting appointment, the

Commission shall examine whether the exigencies of the particular service would

best be served by transferring an officer from another district next in line of

seniority to act when there is an officer in the same district who is capable of

performing the duties of the higher grade, and in such examination the question of

additional Government expenditure for travelling and subsistence allowances and

other expenditure shall be borne in mind.

27. The Permanent Secretary or Head of Department shall submit, well in

advance, recommendations for acting appointments to permit of their

consideration by the Commission before the date on which the acting appointment

is intended to become effective, but the Commission may waive the provisions of

this regulation where the necessity to submit recommendations has been

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occasioned by sudden illness, or very special circumstances or in any other

circumstances which the

Commission may consider appropriate.

28. In submitting recommendations for acting appointments, Permanent

Secretaries and Heads of Departments shall state the reasons why officers, if any,

are being passed over.

The Constitution

4. It is hereby recognized and declared that in Trinidad and Tobago there have

existed and shall continue to exist, without discrimination by reason of race,

origin, colour, religion or sex, the following fundamental human rights and

freedoms, namely:

…………………………

(d) the right of the individual to equality of treatment from any public

authority in the exercise of any functions.

[73] Section 4 (d) is an independent, free-standing constitutional right embodying the core

constitutional value of equality, in this instance equality of treatment by public authorities. It is

not limited to discrimination on the enumerated grounds of colour, origin, race, religion or sex,

but is of general application. The unequal treatment or discrimination complained of in the

instant case falls, not within the enumerated grounds, but within the latter category. In Annissa

Webster v The Attorney General of Trinidad and Tobago,57 the Privy Council set out the

current approach where a claim is founded on the fundamental right to equality of treatment

from a public authority under section 4 (d) of the Constitution. At paragraphs [24] – [25] Lady

Hale stated:

“[24]…

(1) The situations must be comparable, analogous, or broadly similar,

but need not be identical. Any differences between them must be

material to the difference in treatment.

(2) Once such broad comparability is shown, it is for the public

authority to explain and justify the difference in treatment.

(3) To be justified, the difference in treatment must have a legitimate aim

and there must be a reasonable relationship of proportionality between

the means employed and the aim sought to be realised.

(4) Weighty reasons will be required to justify differences in treatment

based upon the personal characteristics mentioned at the outset of s 4:

race, origin, colour, religion or sex.

57 [2015] UKPC 10.

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(5) It is not necessary to prove mala fides on the part of the public

authority in question (unless of course this is specifically alleged).

[25] It must, however, be acknowledged that there is a considerable overlap

between the “sameness” question at (1) above and the justification question at

(3). This is because the question of whether a difference between the two

situations is material will to some extent at least depend upon whether it is

sufficient to explain and justify the difference in treatment.”

[74] The appellant contends that the cumulative effect of the treatment meted out to her between the

period August 2004 to March 2006 with respect to four different posts was arbitrary and

inconsistent and constituted inequality of treatment. These posts are in: (i) Extension; (ii)

Horticulture (Ministry of Agriculture); (iii) Crop Production; and (iv) Horticulture (Ministry of

Public Utilities). This unequal treatment occurred when she was treated differently from other

similarly circumstanced persons. Thus, the appellant alleges that she was passed over for acting

appointments or promotions on the basis that, under the new policy, a post-graduate

qualification in the relevant discipline for the higher office to which acting appointments and/or

promotions were sought was now a pre-requisite to such an appointment. However, the

appellant goes on to contend that this new policy, in the words of the trial judge, “was not

applied to other similarly circumstanced officers who nonetheless received acting appointments

and/or promotions to higher offices and indeed was not applied to her when she was

subsequently appointed to act in one of the posts”. Both parties have proceeded on the basis that

this policy was new and I propose to treat it as such. The appellant also highlights the arbitrary

conduct of the respondent in its application of the regulations to her in the respective posts. The

appellant submits that this unequal or discriminatory treatment has resulted in serious prejudice

to her career in the public service.

[75] The trial judge held:

“43. It is clear from the terms of the Circular that the Commission was changing

the policy that had previously applied with respect to acting appointments and

promotions. I accept the evidence of the Commission and find as a fact that the

appointments of the other officers were made prior to the Circular. I also find that

at the time of the Claimant’s application the post was not as yet available and

only became available after the 31st December 2004. Accordingly the Circular

would have applied in the Claimant’s case unlike the case of the other officers. In

my opinion the other officers were not proper comparators and the Claimant has

therefore failed to establish that the Commission is guilty of unequal treatment

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and has contravened her right to equality of treatment from any public authority

in the exercise of its functions…”

[76] The evidence establishes that, by a joint memorandum dated 25 August 2004 and addressed to

the DPA, the appellant and four other officers of the Ministry of Agriculture indicated their

capability and willingness to act in the Extension Post. However, their application seemed

premature as at that time a vacancy had not yet arisen. It only arose after 31 December 2004.

[77] A significant feature of the appellant’s case relies on certain representations made to her by

officials of the Ministry of Agriculture in or around August or September 2004 as it related to

the new policy to be implemented. These officials were Mr Winston Gibson, Acting Personnel

Secretary and Ms Verna Johnson, Director of Human Resources Division I. The effect of these

representations was that, under the new policy, a post-graduate qualification in the relevant

discipline for the higher office to which acting appointments and/or promotions were sought was

now a pre-requisite to such an appointment. The appellant alleged that she objected to this new

policy as, in the past, the majority of officers who had previously been appointed to act in the

Extension Post were not subjected to the pre-requisite of having a Master’s degree in extension,

nor indeed did most of them have such a degree.

[78] Ms Johnson denies making any representations to the appellant to that effect. While not

recalling the precise words spoken, Ms Johnson stated that whatever was said to the appellant

would have been guided by the contents of Circular No. 1 of 2004 from the DPA.

[79] Manifestly a dispute of fact arose as to the nature of any representation made. The difficulty is

that neither party elected to cross-examine any of the deponents. The trial judge held that where

there was a dispute of fact “between the evidence of the Claimant and the evidence presented by

the Commission I resolved that dispute in favour of the Commission”. In coming to that

conclusion the judge relied on ex parte Curl, a case involving judicial review, which held that,

in the absence of cross-examination, where there is a dispute of fact on the affidavit evidence,

the Court ought to proceed on the basis of the affidavit evidence of the person who does not

have the onus of proof. Recently this court in the matter of Ramnath v Public Service

Commission58 pronounced on the principle, with Bereaux JA placing reliance upon R v

58 Civil Appeal No. 123 of 2008.

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Oxfordshire Local Valuation Panel ex parte Oxford City Council.59 In the latter case Woolf J

stated:

“In so far as there is a conflict between Mr Seward's account of what occurred

and Mr Magor's account, this court, only having the affidavits before it, cannot

resolve that dispute. The position is well established that as the applicants have

the onus of proof placed upon them to establish their case, in those circumstances

the proper course to adopt is to act on the evidence given on behalf of the

respondents -- here that of Mr Seward -- in so far as it is impossible from the

internal evidence to come to any conclusion as to which account is the more

credible.” [Emphasis added.]

[80] Such an approach would conduce to the evidence being properly evaluated. Thus a court can, in

an appropriate case, include in its examination matters such as the contemporaneous documents

and the inherent probability or improbability of the rival contentions, in the light in particular of

facts and matters which are common ground or unchallenged: Attorney General of Trinidad

and Tobago v Samlal.60 In my view this Circular cannot reasonably be read as introducing a

post-graduate qualification as a condition precedent. However, the contemporaneous document,

namely Circular No. 1 of 2004, might have lent weight to the respondent’s contention that any

representation made would have accorded with this Circular. It is implicit from the Circular that,

except in special circumstances, only persons who satisfied the training and experience

requirements would be considered by the PSC for acting appointments and/or promotions. Thus,

it would not shut the door on someone who may, in an appropriate case, be eligible for

consideration solely by virtue of his/her experience.

Extension: the comparator issue

[81] With respect to the Extension post, the appellant relies on actual comparators whose situations,

she alleges, to use the language of Webster, were comparable, analogous or broadly similar to

hers. Thus, at paragraph 4 of her affidavit of 23 February 200761 she stated:

“The vast majority of officers who had previously held the [Extension] post were

not subjected to the pre-requisite of a masters degree in agricultural extension.

Most of the officers appointed to act did not possess a masters degree in

59 [1981] 79 LGR 432, 440. 60 [1987] 36 WIR 382,387 (PC). 61 Record of Appeal p 26.

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agricultural extension. Examples would include Mr Samuel Rivers, Mr Vernon

Douglas, Dr. G Bola, Ms Mona Jones and Mr Mohammed Halim.”

[82] I am of the view that the trial judge cannot be faulted in holding that the persons relied upon by

the appellant as actual comparators were not valid comparators. This is because their situations

could not be considered to be comparable, analogous, or broadly similar. Thus, and for

essentially the same reasons as the trial judge, I find:

i. It was clear from the terms of Circular No 1 of 2004, which came into effect

on 3 January 2005, that the PSC was changing the policy previously

applicable to acting appointments and promotions in the public service.

ii. This Circular expressly provided that, effective 3 January 2005, the PSC

would no longer consider recommendations for acting appointments and/or

promotions in respect of officers who did not satisfy the training and

experience requirements for the particular office. However, “exceptions may

be made in special circumstances”.

iii. At the time of the appellant’s application to act in the post of Deputy

Director, Extension on 25 August 2004, the post was not yet available. A

vacancy only arose after 31 December 2004.

iv. Accordingly, and, contrary to the appellant’s assertion that the Circular did

not apply to her as her application pre-dated it, any consideration of the

appellant to fill this vacancy would be governed by this Circular.

v. It would also follow that the comparators relied on by the appellant, save

and except Samuel Rivers, could not be appropriate comparators as

consideration of their circumstances would have taken place prior to this

Circular coming into effect.

vi. Samuel Rivers could not be considered a valid comparator as the PSC had

no record of him ever acting in the Extension post.

Equality: the other dimension

[83] Notwithstanding the failure of the appellant to establish that the persons relied on were valid

comparators for the Extension post, her case had another dimension to it. As part of her claim to

unequal treatment, the appellant also relied on the unfair and arbitrary treatment by the

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respondent in its application of the regulations to her in this post of Extension, as well as the

posts of Horticulture (Ministry of Agriculture), Crop Production and Horticulture (Ministry of

Public Utilities). Essentially the appellant focuses on non-compliance with regulations 25 to 28.

In spite of that, the trial judge, in my respectful view, omitted to deal with this additional feature

of the appellant’s claim to unequal treatment. Once she ascertained that the persons relied on by

the appellant in the Extension post would not be appropriate comparators, the judge incorrectly

concluded that there was no breach of the right to equality of treatment. It must be borne in mind

that the constitutional concept of equality of treatment is significantly wide to encompass the

duty to act consistently. Accordingly, like cases should be treated alike.

[84] It would follow that what was further required was a consideration of the constitutional

implications of the contention as to the arbitrary and inconsistent application of the regulations

towards her in these posts, while other similarly circumstanced persons in the respective fields

(Bheekoo, Baksh, Fortune and Simon) were treated differently.

[85] Unfortunately, the respondent in submissions before us also adopted a similarly restrictive

approach on this constitutional issue arising thereon. Thus, the respondent argued that even if

there was any breach of the regulations, rather than resort to the constitution, the appellant could

avail herself of the alternative remedy of judicial review; and in the alternative, a prima facie

case was not made out as the persons relied on by the appellant were not proper comparators.

[86] Section 129 (1) of the Constitution stipulates that a Service Commission may regulate its own

procedure. Section 121 (1) of the Constitution confers the following on the Public Service

Commission, an autonomous commission:

“Subject to the provisions of this Constitution, power to appoint persons to hold

or act in offices to which this section applies, including power to make

appointments or promotion and transfer and to confirm appointments, and to

remove and exercise disciplinary control over persons holding or acting in such

offices and to enforce standards of conduct on such officers shall vest in the

Public Service Commission.”

[87] The procedure of the PSC is regulated by the Public Service Commission Regulations. Chapter

III of these regulations embodies the procedure for appointments, promotions and transfers by

the PSC. Regulations 24 to 28 govern the procedure for acting appointments, whether as a

prelude to a substantive appointment or not.

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[88] The Privy Council had cause to examine regulations 25 and 26 in Ramoutar v Commissioner of

Prisons62 which concerned an application for judicial review of the decision of the

Commissioner of Prisons not to consider Mr Ramoutar (“Ramoutar”), Prison Welfare Officer II,

for an acting appointment to a higher grade as Chief Prison Welfare Officer. Ramoutar was the

next most senior officer and applied for the temporary post. In October 2007 the respondent

informed Ramoutar that he was unable to recommend him for the acting post as he lacked one of

the qualifications required, namely “a bachelor’s degree in social work from a recognized

institution or equivalent”. Ramoutar exercised his right to make representations to the PSC. The

PSC agreed with the respondent that, in the absence of a relevant degree, Ramoutar was not

eligible for appointment. Thus, the PSC did not consider the merits of Ramoutar’s application.

The court granted a declaration that the PSC had acted unlawfully in treating Ramoutar as

ineligible for consideration for the acting appointment by reason only that he did not have a

degree in social work from a recognized institution or equivalent.

[89] It was held that the word “eligible” in regulation 26 (1) imports a threshold condition of

appointability. The respondents treated the possession of the qualification as a matter of

threshold eligibility when it was not. Accordingly, they never performed their statutory function

of considering Ramoutar’s application on its merits. It may be of assistance to set out Lord

Sumption’s extensive analysis:

“12. Regulation 26 does not impose an absolute rule of appointment by seniority,

but only a “general rule” to that effect. In other words, it is capable of being

displaced by other relevant considerations. But this is irrelevant to the issue

before the Board. In Mr Ramoutar’s case, the general rule of appointment by

seniority was not displaced by other considerations. He was not considered at all.

The only legal basis on which that could be justified is that although he was the

senior officer, he was not “eligible for such acting appointment” within the

meaning of Regulation 26(1)(a).

13. Normally the word “eligible” imports a threshold condition of appointability.

It does not normally mean “suitable”. It means capable of being appointed if

found suitable. The position is, however, complicated by the fact that the

Regulations do not consistently use the term in its normal sense. In the

introductory words of Regulations 18 and 172, it is clear that the draftsman

intended “eligibility” to mean the same as “suitability”, for the criteria of

eligibility which follow all relate to the assessed qualities of the candidate. On the

other hand, it is equally clear that Regulation 25, which requires the Permanent

62 [2012] UKPC 29.

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Secretary or Head of Department to notify forthcoming acting appointments to all

officers within his service “who are eligible for consideration”, is referring to

eligibility in its normal sense. In the Board’s opinion, “eligible” in Regulation

26(1)(a) is used in the same sense. It is a threshold condition of appointability.

Otherwise, appointment on seniority would hardly count as the general rule that it

is clearly intended to be. But it does not matter, for it is only on the footing that

“eligible” in Regulation 26(1)(a) imports a threshold condition of this kind that

the decision of the Public Service Commission in this case can be defended. If it

meant “suitable”, then it would have been incumbent on the Commission to assess

Mr Ramoutar’s suitability, which it never did.

14. On the footing that eligibility in Regulation 26(1)(a) is a threshold condition,

what are the relevant criteria of eligibility? None are specified in Regulation 26,

except that that the person appointed must be a current officer of the prison

service. Nor is there anything in the Regulations which can be described as a

criterion for eligibility for acting appointments generally. The Respondent

Commission submits, as it has to, that the possession of a degree in social work

was a threshold condition. But the only basis for that submission is that it was

part of the Job Specification and Description for the corresponding permanent

appointment. The Board rejects this submission for three reasons.

15. The first is that it is apparent from Chapter III of the Regulations read as a

whole that the criteria for making permanent appointments and acting

appointments as the prelude to permanent appointments have no application to

acting appointments where the person appointed is simply standing in for

permanent office-holder. Appointments of the latter kind are subject to a distinct

regime. In the case of permanent appointments and appointments intended as the

prelude to permanent appointments, seniority is one factor among many in the

assessment of candidates, but it is never conclusive, and for the more responsible

appointments it may be of very limited weight; whereas for purely acting

appointments it is stated to be the general rule. This reflects significant

differences in the nature of these appointments. The appointment of a stand-in on

an acting basis is essentially an internal reallocation of the duties of existing staff

to meet the exigencies of the service. It is temporary. It may fall to be made at

short notice and sometimes for short periods. Those who are chosen will

necessarily be within the prison service already and have satisfied the criteria for

appointment to an office at the next level down. This is, as it appears to the Board,

the reason why the Regulations require acting appointments which are the

prelude to permanent appointments to be made on the same principles as

permanent appointments, but impose no corresponding requirement for the

appointment of stand-ins on a purely acting basis.

……………………………

18. The Board considers that in Regulation 26(1)(a), “eligible” officers are

existing officers of the prison service who are capable of performing the duties.

This is, as it seems to them, consistent with Regulation 26(2), which addresses the

situation where the officer who is next in line of seniority comes from another

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district, and there is an officer in the same district who is “capable of performing

the duties of the higher grade.” In that case, the Commission is empowered to

take account of the cost to the government of paying the more senior officer’s

travel and subsistence allowances, in a way that would not otherwise be open to

them. As between officers who are capable of performing the duties, the most

senior is entitled to be appointed unless there are reasons for displacing the

“general rule”. The Commission has a very wide discretion to determine what

reasons it will regard as sufficient to justify departing from the general rule in a

particular case. But this is not a discretion that can be exercised without

considering the result of applying the general rule of appointment by seniority. To

do that, they must at the very least consider the qualities of the most senior

eligible officer.

19. The Board accepts that if every officer capable of performing the duties is

eligible, this may sometimes give rise to practical difficulties under Regulation

25(1), which requires the Head of Department (in this case the Prisons

Commissioner) to notify all those “eligible for consideration”. But these

difficulties should not be overstated and are unlikely to be insuperable. For

present purposes, it is enough to point out that the difficulties would be even

greater if eligibility fell to be decided in accordance with the numerous and highly

subjective criteria listed in the Job Specification and Description.

20. The courts do not sit as a court of appeal from the decisions of the

Commissioner of Prisons or the Public Service Commission, and are in no way

concerned with the merits of candidates for promotion or the micro-management

of personnel decisions in the prison service. The courts are, however, concerned

to ensure that public bodies carry out the functions that the relevant legislation

assigns to them. The difficulty in this case has arisen from the fact that the Prisons

Commissioner and the Public Service Commission treated the possession of a

degree as a matter of threshold eligibility when it was not. They therefore never

performed their statutory function of considering Mr Ramoutar’s application on

its merits. They neither applied the general rule of selection by seniority

prescribed by their Regulations, nor considered whether to depart from the

general rule in all the circumstances of this case.”

Extension

[90] With respect to the appointment to act in the office of Deputy Director, Extension, it is common

ground that:

i. The appellant was senior to Mr Bheekoo, the officer selected to so act; and

ii. Mr Bheekoo held post-graduate qualification, namely a Master of

Philosophy in Agricultural Extension, while the appellant’s was in

Horticulture.

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[91] In support of her claim to unequal treatment, the appellant set out her training and experience in

extension. She asserted:

i. As part of her undergraduate training she had taken several courses in

extension;

ii. She participated in programs and training sessions where she presented

papers, lectured and chaired workshop sessions for stakeholders in the

industry;

iii. She wrote several training manuals and fact-sheets for the benefit of

extensionists and farmers; and

iv. She was sent on various short courses at the University of California which

is internationally recognized for its proficiency in the field of extension.

The appellant’s evidence in this regard has not been challenged.

[92] The respondent initially asserted that the appellant was given some kind of consideration for the

position. On the assumption that the PSC properly considered the appellant for this post, it could

not have been faulted in the discharge of its statutory function for according greater weight to

Mr Bheekoo’s specialist post-graduate qualification in the specific field over that of the

appellant whose specialist qualification was in another field. It is manifest that this vacancy in

Extension was for a position requiring some degree of technical expertise. Subject to the express

provisions of regulation 26, there are no criteria governing eligibility for acting appointments

otherwise than as a prelude to a substantive appointment, when made by the PSC. In these

circumstances, the PSC had, within the confines of its statutory powers, a wide discretion as to

the factors to be considered and the weight to be attached thereto.

[93] The appellant quite rightly submitted that, in the event that the PSC was purporting to consider

her, proper consideration would have necessitated substantial compliance with regulations 25 to

28. In the instant case the nature and extent of these considerations remain unclear insofar as it

pertained to the appellant. Indeed, on the assumption that she was considered, the appellant

would have been deprived of the opportunity, as she was lawfully entitled, to be notified and to

make representations to the PSC as to why she should have been appointed: regulation 25. The

PSC could also have been assisted in its deliberations by the Head of Department discharging its

statutory functions under regulation 28 of providing the reasons why the appellant was being

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passed over for this particular appointment. It is noteworthy that regulation 20 (1) requires the

DPA to keep up-to-date seniority lists of all officers holding offices in the several grades in the

public service. The Permanent Secretary or Head of Department is also required to keep up-to-

date seniority lists of all public officers holding offices in the several grades in his Ministry or

Department for the purpose of making recommendations for promotion and acting

appointments: regulation 20 (2). Thus, the PSC, when determining the officers eligible for

consideration for this acting appointment, ought to have had in its possession a seniority list

showing all those officers who were senior to Mr Bheekoo. Correspondingly, under regulation

20 (2), the Permanent Secretary or Head of Department ought to have been aware of the

respective seniority of public officers in his Ministry or Department for the stated purpose of

making recommendations for promotions and acting appointments.

[94] On the issue of eligibility for consideration, the respondent in answer submitted that there were

no breaches of these regulations as, strictly speaking, the appellant was not so eligible and

therefore not entitled to notification under regulation 25. I respectfully disagree. Ramoutar

makes clear that “eligible” is to be given the same meaning in both regulations 25 and 26. It

imports a threshold condition of appointability and means “capable of being appointed if found

suitable”. Thus, as long as the appellant was capable of performing the duties of acting Deputy

Director, Extension, she should have been notified of the vacancy. The difficulty that arises in

the instant case is that the respondent never applied this test. Rather, it incorrectly asked itself

whether or not the appellant was, by virtue of her training and experience, eligible for

consideration and therefore entitled to notification. Misdirecting itself in such a manner would,

by way of example, exclude from consideration altogether anyone who was capable of

discharging the duties of the higher grade by virtue of their experience only;63 directly

contradicting regulation 26 which allows, as a general rule, seniority-based appointments. As

was held in Ramoutar, regulation 26 requires: “As between officers who are capable of

performing the duties, the most senior is entitled to be appointed unless there are reasons for

displacing the “general rule”. The Commission has a very wide discretion to determine what

reasons it will regard as sufficient to justify departing from the general rule in a particular

case”.64 Ramoutar goes on however to posit that, “this is not a discretion that can be exercised

63 Ramoutar paras [12]–[18]. 64 Ibid para [18].

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without considering the result of applying the general rule of seniority. To do that, they must at

the very least consider the qualities of the most senior eligible officer.” Thus, the PSC, by

applying a test centered around an amalgamation of training and experience, failed to consider

whether the appellant, as a senior officer, was capable of performing the duties of the higher

grade. The public service structure is built upon a legislative foundation which holds seniority as

a vital tenet. The implementation of a test which has the effect of unjustifiably discounting the

seniority of an officer runs counter to the express requirements and general tenor of the

legislation.

[95] It is my view therefore that the PSC failed to substantially comply with the provisions of

regulations 25 to 28 and deprived the appellant of the opportunity to have her case fully

considered in the manner contemplated by these regulations.

Horticulture

[96] By memorandum dated 24 June 2005, addressed to the Permanent Secretary in the Ministry, the

appellant requested consideration for appointment to the substantive post of Technical Officer

(Agriculture) Horticulture as the incumbent was due to retire. She avers that she was specifically

recommended for this position by Ms Mona Jones, Director (Ag.) Agricultural Services, in a

memorandum dated 6 July 2005. The PSC contends that it received neither the appellant’s

request for consideration, nor the recommendation letter of Ms Mona Jones. Pausing there, it is

a reoccurring and somewhat disconcerting feature of this case that some of the correspondence

apparently sent by or on behalf of the appellant through the proper channels appear not to have

been received by the PSC.65

[97] Irrespective of these divergent views, it is common ground that the appellant was appointed to

act as Technical Officer (Agriculture) Horticulture from 19 September 2005. By letter dated 16

February 2006, the Permanent Secretary informed the appellant that her acting appointment was

to cease on 23 February 2006, with her reverting to her substantive post from that date. She in

fact reverted to this post a few days after 23 February 2006. The appellant was replaced by Mr

Nadeer Baksh, an officer senior to her and eligible for acting in the post of Technical Officer.

Indeed both the appellant and Mr Baksh had specialist qualifications in the field of Horticulture,

with Mr Baksh being the more senior officer. The reason proffered by the PSC for the cessation

65 See para [70] above.

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of the appellant’s and Mr Baksh’s subsequent appointment to this post was that, prior to Mr

Baksh’s appointment on 1 March 2006, he would have acted as Deputy Director Agricultural

Services (Crop Production), a post at the same level – Range 63, which he had to vacate upon

the return of the substantive office holder. The appellant challenges this decision.

[98] In my view the express terms of the correspondence dated 7 November 200566 made clear that

the appellant’s acting appointment was merely temporary and not as a prelude to a substantive

appointment. The PSC, in determining the merits of an appointment, was entitled, contrary to

the appellant’s assertions, to apply the general rule of seniority prescribed by regulation 26 (1)

and appoint Mr Baksh. In any event it should be noted that the appellant was eventually

promoted to this substantive post in Horticulture albeit with effect from 16 October 2007, while

Mr Baksh was promoted to the post of Deputy Director, Agricultural Services (Crop Production)

with effect from 14 August 2006.

Crop Production and Horticulture (Ministry of Public Utilities)

[99] It is common ground that: (1) the appellant was eligible for consideration for acting

appointments in the post of Deputy Director, Agricultural Services Division (Crop Production)

and Director, Horticultural Services (Ministry of Public Utilities); and (2) the appellant was

senior to persons who were appointed to both posts ahead of her. Indeed, the appellant acted in

this Crop Production post from 2 May to 24 June 2005. With respect to this Crop Production

post, the respondent accepts that the appellant had been bypassed on more than one occasion.

While the exact number has not been specified and the details are unclear, it is safe to conclude

that it must have been on at least two occasions. The officer who was recommended ahead of

her, and who acted in the post was Dr. Mario Fortune, Plant Pathologist, who held a Master’s

degree in Plant Pathology. The respondent has advanced no reasons why the appellant had been

bypassed on at least two occasions.

[100] With respect to the acting appointment in Horticulture (Ministry of Public Utilities), it is clear

that the appellant was once again bypassed for an acting appointment. The evidence reveals that,

in response to the memorandum of 28 March 2006 inviting applications from suitably qualified

applicants, the appellant, on 19 May 2006, duly applied for the position. However, an officer

junior to her, Ms Gloria Simon, was appointed to act in the said post. In response to her

66 See para [57] above.

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complaint, the PSC on 27 July 2007 indicated that it appointed Ms Simon, the senior officer to

express interest in the post, from 26 March to 30 June 2007. Ms Edwards-Joseph disclosed that

no application from the appellant had been received by the DPA or Service Commissions

Department. While there has been denial of receipt of this application by the PSC, there is no

affirmative evidence on the part of the respondent suggesting that the persons to whom the

correspondence was directly addressed67 did not receive them68.

IX. Conclusion

[101] Equality of treatment recognizes that decision-makers must be consistent in the procedure and

criteria that they apply and that like cases should be treated alike. The cumulative effect of the

treatment meted out to the appellant is not confined to a singular post but extends across a broad

spectrum of acting appointments, namely: Extension, Crop Production and Horticulture

(Ministry of Public Utilities). Its effect thereof smacks of unfairness and arbitrariness and

constitutes prima facie evidence of unequal treatment contrary to section 4 (d) of the

Constitution. Of relevance at this juncture is the fact that Mr Nadeer Baksh, an officer senior to

her, appears to have been given full consideration under the regulations, specifically regulation

26, as it was the operation of the “general rule” which saw him being appointed to the

Horticulture post, Ministry of Agriculture, over the appellant. However, in the field of

Extension, the PSC wrongly subscribed to the view, despite the seniority of the appellant, that

she was not eligible for consideration; alternatively, if considered, the nature and extent of these

considerations remain unclear. In the post of Crop Production, she was admittedly bypassed on

at least two occasions, even though she had acted in the position on a previous occasion. No

reasons were given for such bypassing. In the post of Horticulture (Ministry of Public Utilities),

the PSC again failed to consider the appellant, citing in this instance non-receipt of her

application, even though the appellant had submitted this application through the proper

channels.

[102] In all three posts, even though senior to the eventual appointees, the appellant was deprived of

the opportunity of the fullest consideration under the regulations by the PSC of her claims to

67 Record of Appeal p 295. 68 See para [70] above.

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these acting appointments. Even more startling is the fact that she was bypassed for

consideration for the post in her own area of expertise (horticulture). The express procedural

safeguards she could reasonably expect to be applied to her case were not substantially complied

with. It must be remembered that acting appointments that are to be made pursuant to these

regulations, with the attendant requirements which include notification to, and representations

by, officers incorporate fundamental aspects of procedural fairness which conduce to good and

effective administration. As Professor Fiadjoe remarks: “Embedded in the bowels of Caribbean

Constitutions are the principles of natural justice.”69 However, there has been no suggestion of

mala fides on the part of the PSC.

[103] Insofar as differences in treatment are concerned, the PSC appointed Mr Baksh to act in the

Horticulture post (Ministry of Agriculture) over the appellant by applying the general rule of

seniority. However, the appellant, while senior to the eventual appointees in the other three

respective posts and entitled under regulation 26 as a general rule to these acting appointments

(unless displaced by other relevant considerations),70 never had the benefit of being lawfully

considered under the material parts of regulations 25 to 28. Thus, this differential treatment is

such as to call upon the PSC to explain and justify the difference in treatment. No, or no

satisfactory, explanation has been forthcoming from the respondent as to why the appellant was

not considered, by virtue of her seniority under the same governing regulations, for appointment

to the posts of Extension, Crop Production and Horticulture (Ministry of Public Utilities). In

these circumstances, the respondent has contravened the appellant’s right to equality of

treatment under section 4 (d) of the Constitution.

X. Remedies/Relief

[104] Where there has been a breach of a fundamental right the court has the power, in an appropriate

case, to fashion a remedy to give effective relief.71 In Attorney General v Ramanoop,72 the

purpose of constitutional redress was stated to be:

69 Commonwealth Caribbean Public Law, 3rd ed (2008), p 9. 70 Ramoutar at para [12]. 71 Section 14 (1) of the Constitution; Gairy v A.G. of Grenada. 72 (2005) UKPC 15, [18]-[19].

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“[18] When exercising this constitutional jurisdiction the court is concerned to

uphold, or vindicate, the constitutional right which has been contravened. A

declaration by the court will articulate the fact of the violation, but in most cases

more will be required than words. If the person wronged has suffered damage, the

court may award him compensation. The comparable common law measure of

damages will often be a useful guide in assessing the amount of this

compensation. But this measure is no more than a guide because the award of

compensation under s 14 is discretionary and, moreover, the violation of the

constitutional right will not always be co-terminous with the cause of action at

law.

[19] An award of compensation will go some distance towards vindicating the

infringed constitutional right. How far it goes will depend on the circumstances,

but in principle it may well not suffice. The fact that the right violated was a

constitutional right adds an extra dimension to the wrong. An additional award,

not necessarily of substantial size, may be needed to reflect the sense of public

outrage, emphasise the importance of the constitutional right and the gravity of

the breach, and deter further breaches. All these elements have a place in this

additional award. “Redress” in s 14 is apt to encompass such an award if the

court considers it is required having regard to all the circumstances.”

Further, in the case of Romauld James v The A.G. of Trinidad and Tobago,73 the Privy Council

articulated the following points:

“[27] In any event, the very fact of discrimination having occurred can inflict

damage on those who have been discriminated against. The sense of having been

wronged, the uncertainty over one’s status as a consequence of the discriminatory

conduct and the distress associated with having to resort to litigation in order to

have the discrimination exposed and corrected can all be recognized as damage,

perhaps not in the conventional personal injury sense, but damage nonetheless.

[28] An injury suffered as a result of discrimination is no less real because it does

not possess tangible physical or financial consequences. And the difficulty in

assessing the amount of compensation for that type of injury should not deter a

court from recognizing its compensatable potential.”

[105] The appellant is a career public officer with an impressive academic record. In this case the

impugned conduct spans the posts of Extenstion, Crop Production (bypassed on at least two

occasions)74 and Horticulture (Ministry of Public Utilities). It is manifest that at every turn when

these acting vacancies arose, the appellant clamoured for transparent, equitable and consistent

treatment. Regrettably, the cumulative effect of the treatment meted out to her was arbitrary,

inconsistent and discriminatory and necessitated resort to litigation to obtain relief. On the other

73 [2010] UKPC 23 at paras [27] & [28]. 74 See para [67] above.

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hand, there is no evidence of mala fides or deliberate wrongdoing. Indeed, in Extension, the PSC

gave her some form of consideration, the extent of which is unclear. In Crop Production there is

an admission by the PSC, after investigation, that she was bypassed on more than one occasion.

However, even in this post, there seems to have been a measure of vacillation by the appellant in

the acceptance thereof. Finally, in Horticulture (Public Utilities) the PSC posited that it did not

receive her application for this acting appointment. It is manifest that the nature and gravity of

these breaches are not sufficiently egregious to justify a vindicatory award reflecting a sense of

public outrage or serving as a deterrent against future breaches. However, the appellant has

mounted a claim for loss of acting allowances (the periods of which are easily ascertainable) and

distress and inconvenience.75

It is my view therefore that effective relief for the vindication of this fundamental right to

equality of treatment in these circumstances can adequately be met by:

i. the granting of a declaration;

ii. a compensatory award for any loss of earnings occasioned by the PSC’s

failure to consider her in the posts of Extension, Crop Production and

Horticulture (Public Utilities); and

iii. a reasonable compensatory award for the non-pecuniary distress and

inconvenience suffered as a direct result of being bypassed and/or

overlooked in respect of these three acting appointments.76

The assessment of a suitable award for the breach in the circumstances of this case is, in my

view, best left to determination by a Master. A Master would, in the computation of any award

for loss of earnings, have to consider the chance of the appellant being successfully appointed to

each acting post.

XI. Disposition

[106] The appeal is allowed. There will be:

75 See Appellant’s Submissions filed 21 May 2009 at paras 41-42; Amended Claim Form filed 18 September 2007;

Paras 31-32 of Appellant’s affidavit filed 23 February 2007. 76 See Appellant’s Submissions filed 21 May 2009 at paras 41-42; Amended Claim Form filed 18 September 2007;

Paras 31-32 of Appellant’s affidavit filed 23 February 2007.

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i. A declaration that there has been a contravention of the appellant’s right to

equality of treatment from a public authority in the exercise of its functions

under section 4 (d) of the Constitution.

ii. An order that the appellant is entitled to a compensatory award for:

a. any loss of earnings occasioned by the PSC’s failure to consider her;

b. distress and inconvenience suffered as a result of the breach of her

fundamental right.

Such sums to be assessed by a Master.

[107] We shall hear the parties on the issue of costs.

P. Moosai

Justice of Appeal

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