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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CV No. 2014 -00038

IN THE MATTER OF THE

JUDICIAL REVIEW ACT CHAPTER 7:08

AND

IN THE MATTER OF AN APPLICATION BY

NAIROB SMART FOR LEAVE TO APPLY FOR

JUDICIAL REVIEW

BETWEEN

NAIROB SMART

Applicant

AND

DIRECTOR OF PERSONNEL ADMINISTRATION

JUDICIAL AND LEGAL SERVICE COMMISSION

Defendants

CV No. 2014 -02019

IN THE MATTER OF THE

JUDICIAL REVIEW ACT CHAPTER 7:08

AND

IN THE MATTER OF AN APPLICATION FOR

JUDICIAL REVIEW IN ACCORDANCE WITH PART 56.3

Of THE CIVIL PROCEEDINGS RULES 1998 AS (AMENDED)

BETWEEN

LESLEY ALMARALES

Applicant

AND

DIRECTOR OF PERSONNEL ADMINISTRATION

JUDICIAL AND LEGAL SERVICE COMMISSION

Defendants

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CV No. 2014-02021

IN THE MATTER OF THE

JUDICIAL REVIEW ACT CHAPTER 7:08

AND

IN THE MATTER OF AN APPLICATION FOR

JUDICIAL REVIEW IN ACCORDANCE WITH PART 56.3

Of THE CIVIL PROCEEDINGS RULES 1998 AS (AMENDED)

BETWEEN

SVETLANA DASS

SAVI RAMHIT

Applicants

AND

DIRECTOR OF PERSONNEL ADMINISTRATION

JUDICIAL AND LEGAL SERVICE COMMISSION

Defendants

BEFORE THE HONOURABLE MADAM JUSTICE JONES

Appearances:

Ms. P. Basdeo for Nairob Smart.

Mr. R. L. Maharaj S.C., and Mr. R. Bissessar instructed by Mr. V. Gopaul-

Gosine for Lesley Almarales, Svetlana Dass and Savi Ramhit.

Mr. R. Martineau S.C., and Mr. G. Ramdeen instructed by Ms. A. Ramsaran

for the Defendants.

JUDGMENT

1. The Applicants, Nairob Smart, Lesley Almarales, Svetlana Dass and Savi

Ramhit, are all legal officers employed with the Chief State Solicitor’s Department as

State Solicitors II and are members of the Judicial and Legal Service (“the Service”).

The First Defendant is the Director of Personnel Administration (“the DPA”) and the

person under the Public Service Regulations1

in whom the administrative

1 Chap,1:01

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responsibilities of the Service are vested. The Second Defendant, the Judicial and

Legal Service Commission (“the Commission”) is the body appointed by the

Constitution to, among other things, make appointments on promotion or otherwise to

posts in the Service. In particular the Commission has the jurisdiction to appoint and

promote persons to offices in the Chief State Solicitor’s Department in the Ministry of

the Attorney General (“the Department”).

2. By these applications for judicial review the Applicants seek to challenge

the decisions of the Commission to:

1. accept the recommendations of the Chief State Solicitor and

the Permanent Secretary in the Ministry of the Attorney

General to advertise the post of Senior State Solicitor under

Regulation 15 of the Public Service Regulations adopted by

the Commission (“the Regulations”);

2. require interviews for vacant posts of Senior State Solicitor

and from those interviews establish an order of merit list

which excluded all four applicants and from which future

appointments were to be made; and

3. appoint a contract legal officer, Petal Roopnarine

(“Roopnarine”) and promote Florence Ramdin (“Ramdin”)

and Priscilla Rampersad (“Rampersad”) to the vacant posts

of Senior State Solicitor without considering properly or at

all the claims of the Applicants to these posts;

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3. At issue here is the process used by the Commission to arrive at the

decisions being challenged. The Applicants contend that the said decisions are in

breach of the Regulations, contrary to the rules of procedural fairness and frustrates

their legitimate expectation that all appointments and promotions to the post of Senior

State Solicitor would be based on the Regulations and the settled practice in the

Department that promotion be based primarily on seniority. In addition Smart

contends that the decisions were unreasonable, unfair and irrational and occasioned

by bad faith and bias.

4. The facts, in the main, are not in dispute. There has been no cross-

examination on any of the affidavits filed. All four Applicants were eligible for

promotion to the vacant posts of Senior State Solicitor. All four Applicants also, at

various times, had been appointed to act in the position of Senior State Solicitor. Each

acting appointment however specified that the appointment was not to be considered a

prelude to permanent appointment and would give them no claim to promotion. They

all had good performance appraisals and none had any adverse reports made against

them. All of the Applicants, except Smart, had at various times at their request been

employed out of the Department. These appointments had no effect on their service or

seniority.

5. Once in the Service all four Applicants, save perhaps Almarales, had been

promoted to the positions they now hold without recourse to an interview process.

With respect to Almarales she says that in 2008 while she was a Senior State Solicitor

she was informed of two vacancies in the post of Senior State Solicitor II. Persons

interested were required to apply and attend interviews. She attended the interview.

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Persons who were not in the service were also interviewed. By letter dated 3rd

March

2009 she and other State Solicitors protested this fact. There was no substantive

response from the DPA. A year later she was promoted to one of the vacant posts. She

says that there was no reference to the interview in her promotion letter.

6. Roopnarine was also employed in the Department. Although not in the

Service she was an Attorney at Law employed on contract by the Attorney General.

Sometime prior July 2012 at least one vacancy in the position of Senior State Solicitor

in the Department arose. By a memorandum dated 25th

July 2012 the head of the

Department, the Chief State Solicitor, wrote to the DPA recommending that

Almarales and Ramdin be interviewed to fill the vacant post in the Department. His

stated position was that he could not prefer one to the other. There is no evidence that

this memorandum came to the attention of the Commission.

7. By December 2012 there were two vacant posts of Senior State Solicitor in

the Department. By a letter dated 20th

September 2012 the Chief State Solicitor wrote

to the Attorney General requesting his assistance in having the post of Senior State

Solicitor in the Department advertised. By the letter the Chief State Solicitor

requested the Attorney General use his good offices to ensure, by communication

with the Chief Justice as Chief Justice and head of the Commission, that the vacancy

in the post be urgently advertised.

8. The letter also recommended Roopnarine for the post and annexed a letter

dated the 19th

September 2012 to him from Roopnarine in this regard. There is no

evidence that either of these letters came to the attention of the Commission. There is

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however evidence that the letter of 20th

September without the annexure came to the

attention of and was in the possession of the DPA. Neither is there any evidence or

allegation of any communication between the Attorney General and the Chief Justice

with regard to the contents of that letter or the sentiments of the Chief State Solicitor

contained therein.

9. By a memorandum dated the 25th

October 2012 sent to the DPA the Chief

State Solicitor requested that the two posts of Senior State Solicitor be advertised in

accordance with regulations 14 and 15 of the Regulations. This memorandum was

sent to the DPA under the cover of another memorandum dated 26th

October 2012

from the Permanent Secretary of the Ministry of the Attorney General.

10. The memorandum from the Permanent Secretary referred to the vacancies;

the fact that there was a severe shortage of experienced Attorneys at Law at middle

management level in the Department due to a rapid turnover of staff at that level and

stated that in order to attract Attorneys at Law with considerable legal experience,

practice, knowledge and expertise to the Department and capable of filling the two

vacant positions the Chief State Solicitor was of the view that it is in the best interest

of the Department that the positions be advertised and has made such a

recommendation. By the memorandum the Permanent Secretary also requested that

the positions be advertised as a matter of urgency to address the current staff

shortages in the Department at that level.

11. By a memorandum dated 16th

November 2012 from the Permanent

Secretary in the Ministry of the Attorney General to the DPA the Permanent Secretary

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once again advised of the Chief State Solicitor’s recommendation that the vacant

posts be advertised and once again endorsed that recommendation. From the terms of

this memorandum it is fair to say that it constituted a gentle reminder to the

Commission. The Commission admits knowledge of the memoranda of the 25th

, 26th

and 16th

.

12. Thereafter by a memorandum dated 10th

December 2012 and circulated to

all Permanent Secretaries and Heads of Departments the DPA advertised the vacant

posts and applications were invited from all interested officers. Under required

qualifications, experience and skills the circular included experience in legal

professional work such as may have been gained in the lower classes (State Solicitors

I &II) or in private practice. The advertisement requested that interested officers apply

on the prescribed application for promotion forms. Pursuant to the circular on the 13th

December 2012 Smart applied for the position on the requisite promotion form. The

comments on his performance, made by the Chief State Solicitor, were dated 17th

December 2012 and were complimentary.

13. On 17th

December 2012, 1st January 2013 and 7

th January 2013 the vacant

posts were advertised in two daily newspapers. Except for the form to be used to

apply the advertisement was in exactly the same terms as contained in the

memorandum circulated within the Service. The advertisement in the newspapers

came to the attention of Almarales and by an application dated 7th

January 2013 she

applied for the position using, instead of the form required by the advertisement, the

requisite promotion form. As with Smart the comments made by the Chief State

Solicitor with respect to her performance were complimentary.

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14. Dass and Ramhit not having seen the advertisement did not apply for the

post. By a letter dated 25th

February 2013, addressed to the DPA, Smart and

Almarales and other members of the Department protested the fact that the posts were

advertised externally. The letter noted that the required experience included as an

option experience in private practice; took issue with the fact that the posts were

advertised externally and suggested that the Commission erred in employing its

statutory discretion under regulation 15 as there were suitable candidates in the

Service for filling the vacancy. There was no response from the DPA to this letter of

protest.

15. Interviews for the vacant posts were held in June 2013. Persons within the

Service including Smart, Almarales, Ramdin and Rampersad and persons outside of

the service, including Roopnarine, attended the interview. Arising out of the

interviews three persons, Roopnarine, Ramdin and Rampersad were successful and

were placed on an order of merit list in that order. Almarales and Smart were not

successful. By a letter dated 23rd

September 2013 Smart once again protested the

decision to hold interviews and to invite persons who were not public officers to be

interviewed. Again he received no response. Roopnarine assumed duty on 1st October

2013. Ramdin was appointed but failed to take up the position. Some time thereafter

and during the course of these proceedings Rampersad was appointed to the other

vacancy.

16. According to the DPA the Commission advertised the vacancies externally

because it considered it advantageous and in the best interest of the Service to do so.

Accordingly interviews were held and the successful candidates were those placed on

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the merit list. She says that all the candidates for the post were treated in the same

manner in the interviews.

17. There are three areas of dispute on the facts: the number of candidates

interviewed for the vacant posts, the seniority in the Department and the existence of

a settled practice of appointment by seniority. I propose to deal with the Applicants’

challenges to the decisions under three broad heads: the Regulations; procedural

fairness and legitimate expectation.

The Regulations

18. In my opinion this is the main plank of the challenges presented by the

Applicants. Many of the arguments presented by them stand or fall on the

interpretation and application of regulation 15. As I understand the contending

positions between the parties: the Commission is saying that the posts were advertised

pursuant to regulation 15 and accordingly regulation 18 had no application and that

this is so even though two of the persons subsequently appointed, Ramdin and

Rampersad, were from within the Service.

19. The Applicants, Almarales, Dass and Ramhit, on the other hand basically

submit that all officers being considered for promotion must be assessed in

accordance with regulation 18. Although they make no specific submission with

respect to regulation 15 they submit that regulation 14 applies only after the

Defendants have first considered regulation 18. They further submit that where there

is to be a promotion within a particular department without competition then

regulation 18 applies on its own. Smart’s position is that regulation 18 is mandatory

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and applies once a promotion is made. He submits however that regulation 14 only

applies with respect to a first time appointment into the service.

20. Chapter III of the Regulations deals with appointments, promotions and

transfers. We are here dealing with appointments and promotions. Of relevance to my

determination are regulations 14, 15 and 18. Insofar as the Applicants submit that

there is a relationship between regulation 14 and regulation 18 I do not understand the

Defendants to be saying anything different. It is clear that both regulations 14 and 18

deal with appointments/promotions within the service. The real question for my

determination is the relationship, if any, between regulation 15 and regulation 18.

21. Regulations 14, 15 and 18 provide:

“14. Whenever in the opinion of the Commission it is possible to

do so and it is in the best interests of the particular service within

the public service, appointments shall be made from within the

particular service by competition, subject to any Regulations

limiting the number of appointments that may be made to any

specified office in the particular service.

15. Where the Commission considers that either there is no

suitable candidate already the particular service available for the

filling of any vacancy or that having regard to qualifications,

experience and merit, it would be advantageous and the best

interest of the particular service that the services of a person not

already in that service be secured, the Commission may authorise

the advertisement of such vacancy.”

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22. Regulation 18 (1) and (2) states:

“(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 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.

(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;

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

involves work of progressively greater and higher

responsibility and initiative that is required for an office

specified paragraph (a).”

Subregulations 18(3) and (4) deal with the factors the Commission is required to take

into account and need not be repeated here.

23. Regulation 14 therefore deals with persons within the Service and provides

that under certain conditions, determinable by the Commission, appointments made

from within the Service shall be made by competition. ‘Appointment’ is defined by

the Regulations as “the placing of a person in an office in the public service”. Smart

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suggests that regulation 14 deals with only first time appointments to the Service but

the regulation, in my opinion, does not admit such a restrictive interpretation.

24. The clear purpose of regulation 15 is to attract persons from outside the

Service in circumstances where the Commission considers that either (a) there is no

suitable candidate in the Service or (b) having regard to qualifications, experience and

merit, it would be advantageous and in the best interest of the Service to secure the

services of a person not in the Service. In either circumstance the Commission must

advertise such vacancy. By this regulation the Commission therefore once it considers

that either (a) or (b) is applicable can in fact by pass the requirements of both

regulations 14 and 18 in that it can go outside the Service to make the appointment

but it must advertise.

25. Regulation 18 deals specifically with the eligibility of officers for

appointment on promotion. ‘Promotion’ is defined by the Regulations “as the

appointment of an officer to an office in a grade carrying a higher remuneration

whether such office be in the same Ministry or Department or not”. The regulation

sets out the criteria to be taken into account by the Commission when considering

eligibility of officers within the service for promotion. It deals with the suitability of

officers available for promotion; what criteria is to be used in this regard and the

manner of preferring one over the other. It does no more than require the Commission

when dealing with such suitability to have regard to certain benchmarks. The

regulation does not determine who is entitled to be promoted. It merely provides a

guide to the Commission as to the criteria to be used when considering promotions.

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Unlike regulations 14 and 15 regulation 18 contains no preconditions for its

application. Neither does it make seniority the basis for promotion.

26. Insofar as seniority is concerned while the regulation requires the

Commission to consider seniority this is not the only consideration. Seniority together

with experience, educational qualifications, merit and ability, and relative efficiency

are all considerations to be taken into account by the Commission when assessing

eligibility of officers for promotion. The regulation requires the Commission to do no

more than that.

27. Neither, except in two instances, does it specify how the Commission is to

treat with or what weight the Commission is required to put on each of the criteria.

These two instances both deal with seniority: where there is equality in efficiency the

Commission is to give consideration to seniority and the Commission is to attach

greater weight to seniority where the promotion is to an office that involves work of a

routine nature but where the vacancy is to an office that involves work of a

progressively greater and higher responsibility and initiative than work of a routine

nature then merit and ability trumps seniority.

28. Both regulations 14 and 18 deal with appointments/ promotions within

the Service. Regulation 14 treats only with appointments while regulation 18 treats

with promotions which are themselves a type of appointment. It is clear however that

in the Regulations the use of these words are intended to connote different processes.

That this is so is clearly illustrated by the use of the phrase ‘appointment on

promotion’ in subregulation 18 (2).

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29. I agree with the Applicants when they submit that regulation 18 is to be

construed as applying whenever there is need for a promotion to be made in a

department without competition. Put another way, with respect to appointments

within the Service, regulation 18 applies when regulation 14 does not. When in the

opinion of the Commission it is in the best interest of the Service to make

appointments by competition and it is possible to do so then regulation 14 will apply.

Since these appointments are not necessarily first time appointments this process must

of necessity also include appointments that may in fact be promotions.

30. Similarly regulation 15 applies when regulation 14 and 18 does not. Its

purpose is to attract persons outside of the Service. The regulation applies when the

Commission considers that either (a) there is no suitable candidate in the Service or

(b) having regard to qualifications, experience and merit, it would be advantageous

and in the best interest of the Service to secure the services of a person not in the

Service. Indeed it would seem to me that the purpose of regulation 15 is to get the

best candidate for the job.

31. Here the Commission does not have to be satisfied or be of the opinion

that either (a) or (b) applies but merely has to consider that one or the other applies.

The word ‘consider’ suggests to me a much lower threshold of conviction. Regulation

15 does not treat with the word ‘appoint’ or ‘appointment’ what it does is to require

the post to be advertised. Thereby suggesting the need for a decision taken from

among all the persons or candidates who have applied for the post. In such an exercise

it would seem to me that the eligibility of an officer for promotion is irrelevant.

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32. It would seem to me therefore that regulations 14, 15 and 18 seek to

address three different situations or types of appointments: (i) where it is in the best

interest of the Service to make appointments by way of competition within the

Service and it is possible to do so: Regulation 14; (ii) where there is no suitable

candidate or having regard to qualifications, experience or merit it would be

advantageous to secure the services of a person outside the Service: Regulation 15;

and (iii) where none of the conditions set out in Regulations 14 or 15 apply and the

appointments are of a routine nature by way of promotion: Regulation 18. It is in

these circumstances and in an attempt to avoid arbitrariness on the part of the

Commission that regulation 18 sets out the criteria to be applied on appointments by

promotion. That said there is clearly some correlation between regulations 14 and 182.

33. In the circumstances I am satisfied that regulation 15 is a stand-alone

regulation the application of which does not require the Commission to apply the

regulation 18 criteria. An advertisement pursuant to regulation 15 in my opinion

renders the application of regulation 18 otiose. Indeed to apply regulation 18 to a

regulation 15 advertisement in my view would defeat the very purpose of the

regulation. The Commission would be bound to take into consideration the criteria in

the regulation to the detriment of the very persons whom the regulation wishes to

attract.

34. To apply regulation 18 in a situation such as this could not have been the

intention of the legislation. It would seem to me that the purpose of regulation 15 is,

in the appropriate situation, to allow the Commission to attract a different type of

2 Ashford Sankar & Others v Public Services Commission and Hermia Tyson-Cuffie v Public Services Commission PC app Nos. 0045 and 0074 of 2010

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person than one found suitable using the regulation 18 criteria. In the circumstances I

am of the opinion that regulation 18 does not apply to appointments made pursuant to

an advertisement under regulation 15.

Procedural fairness

(a) the interview process and the establishment of a merit list

35. Objection is made by all the Applicants to the use by the Commission of

the interview process. The first point to be made is that the exercise under regulation

15 is not an exercise to determine the suitability of an officer for promotion. It is an

exercise to find the best person for the job undertaken because the Commission

considered that having regard to qualifications, experience and merit it would be

advantageous and in the best interests of the Service to secure the services of a person

not already in the Service.

36. In these circumstances the Regulations require the Commission to

advertise the vacancies. The Commission did so and, as they were entitled to do, in

response persons from within and outside of the Service applied. From the wording of

the advertisement I am satisfied that there was one advertisement made both within

the Service and externally. In my opinion in these circumstances the most logical, fair

and cost effective way of determining the merits of the candidates was by interviews.

In my opinion there is no irrationality or unreasonableness in such a decision. Neither

do the Regulations prevent the use of interviews. Similarly once it is determined that

interviews were the appropriate means of determining the merits of each candidate

then in my opinion the establishment of a merit list was the next logical step. This too

is not prohibited by the Regulations.

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37. The Applicants challenge the fact that, according to the Commission, all of

the candidates were treated in the same manner. In my opinion procedural fairness

mandated that the Commission treat with all the candidates in the same way. All the

candidates were applying to an advertisement made pursuant to regulation 15. It was

therefore not open to the Commission to say to those persons within the Service who

had applied go away this exercise is not for you. You are only to be considered under

regulations 14 and 18 only.

38. By the Regulations the fact that the Commission considered that having

regard to qualifications, experience and merit it would be advantageous and in the

best interest of the Service to secure the services of a person not already in the Service

only permitted the Commission to advertise the post. The Commission was required

to consider all the candidates for the post including those in the Service who

responded to the advertisement. And in doing so was required to consider the

candidates fairly and treat each by the same benchmarks. In the circumstances the

Commission could not apply regulation 18 considerations to the persons within the

Service to the exclusion of the other candidates.

39. The fact that the Commission interviewed Smart and Almarales to my

mind rather than put them at a disadvantage was to their benefit. They had the

opportunity to present their case on why they were the appropriate person for the job

despite the Commission’s consideration in accordance with regulation 15. By

advertising not only in the newspapers but by the memorandum circulated internally

all qualified persons in the Service were given the opportunity to apply and put their

qualifications, experience and merit before the Commission.

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40. In this case both Almarales and Smart applied and were considered.

Neither Dass nor Ramhit responded to the advertisement. Since the advertisements

were circulated internally and placed in two daily newspapers blame for this cannot

be attributed to the Defendants. The fact is that the Applicants as well as other

persons within the Service were all given the opportunity to apply and be interviewed.

With respect to Dass and Ramhit it is perhaps appropriate here to refer to regulation

13(4) which seems to suggest that the fact that they did not apply ought not to

prejudice the consideration of their claims. It would seem to me that to make sense

regulation 13(4) must be taken to apply to regulation 18 appointments and not to

appointments made pursuant to the procedure set out in regulations 14 or 15.

41. The Applicants submit that to subject them to the interview process was

unfair since the process would not allow consideration of their seniority in the Service

by virtue of the length of their tenure. This submission while technically sound is to

my mind misleading. While the Applicants would not have been able to rely on

seniority as a factor in the interviews held pursuant to an advertisement under

regulation 15 as they would have had under a regulation 18 routine promotion the fact

is, as the wording of regulation 15 suggests, the focus of the regulation is to

qualifications, experience and merit. In these circumstances it is their experience in

the Service, not their seniority, that would be a relevant factor as would the

experience of any of the other persons interviewed. The fact that two persons from the

Service were successful in the interview to my mind speaks to the equality of

treatment at the interview between those within and outside of the Service.

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42. The fact that the appointments of Ramdin and Rampersad amounted to

promotion for them does not make the appointments any less appointments made

pursuant to regulation 15. While the effect of the appointment was a promotion for

them the fact is that under regulation 15 the Commission was not required to take into

consideration either Ramdin nor Rampersad’s eligibility for promotion which is what

regulation 18 actually addresses. In any event regulation 18 merely determines

eligibility for promotion it does not determine who is entitled to be promoted. It

provides a guide to the Commission as to the criteria to be used when considering

such promotions.

(b) The recommendations of the Chief State Solicitor

43. In coming to their decision to adopt regulation 15 the evidence on behalf

of the Commission is that it relied on the three memoranda sent to the DPA from the

Chief State Solicitor and the Permanent Secretary in the Ministry of the Attorney

General. The Applicants do not dispute this. They however rely on the existence of

the memorandum of the 25th

July and the letter of the Chief State Solicitor dated the

20th

September to the Attorney General as the basis for their submission that the Chief

State Solicitor acted in bad faith in seeking to prefer Roopnarine over them for the

post of Senior State Solicitor and that the aim of his recommendations was solely for

that purpose. The submission is that these documents reveal the true purpose of the

Chief State Solicitor’s recommendations to advertise and in the circumstances any

decision to advertise based on the recommendations of the Chief State Solicitor is null

and void as a result of his bad faith.

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44. While I accept that the letter of the 20th

September to the Attorney

General, to say the least, was inappropriate the Chief State Solicitor is not on trial

here. The problem is that even if I accept their submissions with respect to the Chief

State Solicitor’s intent the Applicants have missed one vital step in the process of

having this nullify the Commission’s decisions. They fail to show that these

documents, the memorandum of the 25th

July and the letter of the 20th

September, had

been brought to the attention of the Commission prior to, at the time of their decisions

or at all. The fact that the documents have been shown to be in the possession of the

DPA is in my opinion insufficient to infer knowledge on the Commission. This, to my

mind, was a key area for cross-examination. The absence of which renders me, in my

view, unable to make the inference that is required by the Applicants.

45. In the circumstances I cannot come to the conclusion sought by the

Applicants that the decision of the Commission is illegal as a result of the bad faith of

the Chief State Solicitor. I am satisfied that there has been a lack of candour by the

DPA in her failure to disclose the letter of the 20th

September and the memorandum

of the 25th

July. While a court is entitled to chastise or even condemn a party in costs

in this regard as deplorable as such behavior is a court cannot merely on the basis of a

lack of candour on the part of a party who is not the decision maker make inferences

not available to it on the evidence.

46. On the evidence before me I am satisfied that the relevant memoranda

before the Commission were those referred to by the DPA in her affidavit: those dated

the 25th

and 26th

October 2012 and 16th

November 2012. Based on those memoranda

and in particular the statement by the Permanent Secretary of the Ministry of the

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Attorney General that there existed a severe shortage of experienced Attorneys at Law

in the Department at mid-management level due to a rapid turn over of staff it was

open to the Commission to accept the recommendations of both the Chief State

Solicitor and the Permanent Secretary in the Ministry of the Attorney General to

advertise. To my mind the fact that in his request of 25th

October the Chief State

Solicitor recommended employing both regulations 14 and 15 is of no moment. The

fact is that the request was for the Commission to go outside of the regulation 18

routine appointments.

47. In the circumstances I am of the opinion that none of the decisions which

the Applicants seek to impugn are open to challenge on the ground of being contrary

to the Regulations, lacking procedural fairness or Wednesbury unreasonable. Insofar

as both Almarales and Smart allege bias there is no evidence from which I can infer

bias on the part of the Commission either against Almarales, as suggested by her or in

favour of Roopnarine as submitted by Smart.

Legitimate expectation

48. The Applicants’ case here is based on a settled or established practice. The

Applicants case is that the Defendants have by way of a settled practice interpreted

and applied regulation 18 giving seniority as the principal criteria for appointments or

promotions so that the Commission usually promoted the most senior officer within

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the Department who was qualified and experienced and upon a consideration of their

staff reports.

49. The first point to be made here is that there is an issue of fact as to whether

there was in fact such a settled practice. The Applicants say there was. The

Defendants say there was not. There was no cross-examination on this point. This is

not a conflict that, in my view, can be resolved on a consideration of the affidavits

only. In these circumstances the authorities suggest that I resolve the dilemma in

favor of the Defendants 3. In any event he who alleges must prove. In the light of the

conflict in the evidence the Applicants have failed to prove the existence of an

established settled practice.

50. As fundamental is the requirement that the Applicants establish that the

practice relied on was clear, unambigious and devoid of qualification. 4 The problem

here is that regulation 18 does not in fact promote seniority over all else but as we

have seen provides a list of criteria, seniority being but one, that the Commission is

required to take into consideration. To satisfy the requirement of such a settled

practice the Applicants will have to show that the appointments that have been made

in the past were made because of seniority and not by happenstance after applying all

the criteria.

51. Further it would seem to me that the post of Senior State Solicitor may be

one to which regulation 18(2)(b) applies: one which involves work of greater and

3 R v (Al-Sweeny) v Secretary of State for Defence[2009]EWHC 2387 4 Paul Lai v The Attorney General of Trinidad and Tobago Civ. App No P129 of 2012

Page 23 of 24

higher responsibility to that of State Solicitor II. Given the regulation therefore the

Applicants will have to show either that this does not apply to promotions to this post

or that even in these circumstances the Commission has treated seniority as the

principle criteria for promotions to that post.

52. Finally even if the Applicants can overcome these three hurdles which in

my opinion they have not, this is not a promotion case. To establish a settled practice

so as to bind the Commission the Applicants will have to show that even in regulation

15 situations the Commission’s settled practice was to prefer seniority. Again they

have not been able to demonstrate this.

53. It is extremely unfortunate that this case has generated so much discord

and acrimony within the Department. Hard words have been said. Unfortunate but to

some extent understandable. The Applicants, career public servants, have been faced

with a situation where an outsider as it were, in effect, has been promoted over them

in circumstances that has left a bitter taste in their mouths. The position taken by the

DPA has not assisted in this regard. Leaving aside the failure to disclose or produce

the memorandum of 25th

July or the letter of 20th

September it may very well have

been that a response to the two letters of protest by members of the Department would

have gone a long way to resolving the impasse that developed. Had the Commission’s

position been clearly outlined early in the day the resulting disharmony in the

Department may have been avoided.

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54. In my opinion however, as difficult as it may be for the Applicants to

accept, the Regulations permit the actions of the Commission and the Applicants have

shown no valid basis for challenging the decisions of the Commission made pursuant

to regulation 15. Accordingly the applications are dismissed.

Dated this 29th

day of May, 2015.

Judith Jones

Judge