IN THE HIGH COURT OF JUSTICE IN THE MATTER OF AN APPLICATION BY RYAN RAMPERSAD FOR LEAVE TO APPLY FOR JUDICIAL REVIEW AND

Transcription

1 IN THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No IN THE MATTER OF AN APPLICATION BY RYAN RAMPERSAD FOR LEAVE TO APPLY FOR JUDICIAL REVIEW AND IN THE MATTER OF THE FAILURE AND OR OMISSION OF THE DIRECTOR OF PERSONNEL ADMINISTRATION TO CONSIDER THE CLAIMANT SUITABLY QUALIFIED TO WRITE A PROMOTION EXAMINATION HELD ON OR ABOUT THE 23 RD DAY OF FEBRUARY 2015 FOR THE POSITION OF ASSISTANT TREASURY OFFICER (RANGE 31 C) IN THE MINISTRY OF FINANCE AND THE ECONOMY BETWEEN RYAN RAMPERSAD Claimant AND THE DIRECTOR OF PERSONNEL ADMINISTRATION Defendant Before the Honourable Madame Justice Margaret Y Mohammed Dated the 25 th January 2016 Appearances Mr. Sunil Gopaul-Gosine for the Claimant Mr. Sanjeev Lalla and Mr Roshan Harracksingh for the Defendant Page 1 of 21

2 JUDGMENT 1. The Claimant is an Acting Treasury Officer I employed in the Public Service of Trinidad and Tobago at the Treasury Division in the Ministry of Finance and the Economy. On the 30 th November 2012, the Defendant issued a Circular Memorandum No 85 of 2012 ( the Memorandum ) to Permanent Secretaries and Heads of Departments with the subject Notice of Vacancy of the office of Assistant Treasury Officer (Range 31 C) in the Ministry of Finance and the Economy ( the position ). Pursuant to the Memorandum, applications were invited from suitably qualified officers in the Ministry Departments for the office of Assistant Treasury Officer (Range 31 C) in the Ministry of Finance and the Economy. The minimum experience and training requirements as set out in the Memorandum were Some (from 6 to 18 months) experience in treasury accounting / management work and training as evidenced by a GCE Ordinary Level with passes in five subjects, two of which must be English Language and Mathematics; or any equivalent combination of experience and training. 2. The Claimant applied ( the Claimant s application ) for the said position through the required standard application for promotion form which was sent within the prescribed time via the Human Resource Department of the Ministry of Finance and the Economy which was forwarded to the Service Commissions Department. At the time of the Claimant s application he had almost 25 years experience working in the Public Service in the Treasury Division since he had begun his employ in the public service around the 6 th February 1990, in the Ministry of Finance at the Treasury Division. In or around the 29 th December 1992 he took up his first appointment as a Clerk I and was thereafter promoted to the position of Clerk II with effect from around the 1 st August During the period 29 th May 2008 to 31 st January 2012 he was Acting Assistant Treasury Officer and from the 1 st February 2012 to present he has been in the position of Acting Treasury Officer I. Page 2 of 21

3 3. The academic qualifications which he possessed at the time of the Claimant s application were : Subject Grade Examination Chemistry B G.C.E. (1985) Physics B G.C.E. (1985) Biology D G.C.E. (1985) Mathematics C G.C.E (2005) English A I C.X.C (2006) Geography III C.X.C (1985) Science Technician Diploma from National Examinations Council Subject Physic Theory II Biology Theory II Grade B A Chemistry Theory II B+ Integrated Laboratory Techniques B+ Laboratory Management And Quality Control Theory Scientific Instrument Maintenance and Glass Blowing Theory D C Computer Training and Services Ltd. (August 2003) Certificate of participation in Microsoft Excel ECA SERVICES COMPANY LIMITED (September 2006) Certificate of Participation in Leadership in a Vision 2020 Environment 4. The Claimant s application also stated that he was pursuing an Associate Degree in Music at the College of Science, Technology and Applied Arts in Trinidad and Tobago but he did not provide any documents in support of this position. Page 3 of 21

4 5. The Claimant was not selected to sit the promotion exam for the position which was scheduled in February He contacted the Examinations Sections in the Service Commission Department and was informed that he did not qualify to write the exam since he had a Grade III in Geography. He was also advised that there would be a supplemental list of persons suitably qualified to write the said examination but his name did not appear on it. 6. The Claimant was not satisfied with the decision to exclude him from sitting the promotion exam for the position. He therefore applied on the 13 th May 2015 for permission ( the leave application ) to seek judicial review of the Defendant s decision to exclude him from sitting the promotion exam on the basis that he was ineligible. On the 14 th May the Claimant obtained permission to apply for judicial review for the following relief : 1. An order of certiorari to bring into this Honourable Court and quash the decision of the Director of Personal Administration in failing or refusing to consider the Claimant as being eligible and/or suitably qualified to write a promotion examination held on or about the 23 rd February, 2015 for the position of Assistant Treasury Officer (Range 31C) in the Ministry of Finance and The Economy. 2. A declaration that the decision of The Director of Personal Administration in failing or refusing to consider the Claimant as being eligible and/or suitably qualified to write a promotion examination held on or about the 23 rd February, 2015 for the position of Assistant Treasury Officer (Range 31C) in the Ministry of Finance and The Economy is unlawful and/or unreasonable and/or procedurally improper. 3.A declaration that the Claimant should have been considered eligible and/or suitably qualified by the Respondent with respect to his education, experience or training to write a promotion examination held one or about the 23 rd February, 2015 for the position of Assistant Treasury Officer (Range 31C) in the Ministry of Finance and The Economy. 4. Damages. Page 4 of 21

5 5. Costs. 6. Such further orders, directions or writs as the Court considers just and as the circumstances warrant. 7. On the 20 th May 2015 the Claimant issued a Fixed Date Claim ( the Fixed Date Claim ) seeking the aforesaid reliefs. In support was an affidavit filed by the Claimant on the 20 th May 2015 and he also sought permission to rely on his affidavit filed in support of the leave application which was filed on the 13 th May At paragraph 11 of the Claimant s affidavit filed on the 20 th May 2015 he also contended the additional grounds in relation to the instant action under section 5 of the Judicial Review Act 1 ( the JRA ) namely: In addition the Claimant will further contend the additional grounds in relation to this action based under Section 5 of the Judicial Review Act to include: i. That the decision was unauthorised or contrary to law ii. iii. iv. in excess or without jurisdiction; failure to satisfy or observe conditions or procedures required by the Public Service Regulations; procedurally improper and in breach of the rules of natural justice. v. unreasonable, irregular or improper exercise of discretion; vi. vii. viii. ix. abuse of power; bad faith, improper purpose or irrelevant consideration; abuse of process; conflict with the policy of the Public Service Regulations; x. absence of evidence on which a finding or assumption of fact could reasonably be based; xi. breach of or omission to perform a duty; 1 Chapter 7:08 Page 5 of 21

6 xii. xiii. deprivation of a legitimate expectation; An exercise of a power in a manner that is so unreasonable that no reasonable tribunal or person could have so exercised the power. 8. Subsequently, with the Court s permission, the Claimant filed a supplemental affidavit on the 24 th July 2015 where he annexed a letter dated the 15 th July 2015 ( the letter ) from the Accreditation Council of Trinidad and Tobago which stated that the NEC Science Technician Diploma ( the NEC Diploma ) is at a higher level than a pass grade in CSEC/ GCE Ordinary Level qualifications. On the 28 th September 2015 the Court extended time for the Defendant to file and serve its affidavit in response to the 16 th October On that day the Defendant filed the affidavit of Mona Aknath Afong, the Acting Director of Personnel Administration ( the Defendant s affidavit ) in opposition to the relief sought by the Claimant. 9. The basis for the Claimant s claim was that based on section 13(4); section 17(1) (2) and section 18 of the Public Service Regulations 2, he had a legitimate expectation that based on his experience and qualifications he should have been considered eligible or suitably qualified to write the exam for promotion for the position. His position was that the combination of his experience and training was sufficient to make him eligible due to his higher academic qualification (the NEC Diploma), his experience and seniority of almost 25 years in the Public Service of the Treasury Division, his having performed the duties of Acting Assistant Treasury Officer from the 29 th May 2008 to the 31 st January 2012 and holding the position of Acting Treasury Officer I with effect from the 1 st February 2012 to present, all of which gave him the experience and the technical skills to perform the said duties for the position. 10. The Defendant s affidavit set out the basis for the opposition to the reliefs sought. It did not dispute the contents of the Memorandum, the Claimant s appointment as a Clerk I in the Ministry of Finance with effect from the 29 th December 1992 and his subsequent promotion to Clerk II, Ministry of Finance and the Economy with effect from the 1 st 2 Chapter 1:01 Page 6 of 21

7 August 2012 and the Claimant s application for promotion which was dated the 4 th January The other matters in the Defendant s affidavit can be summarised as follows. (a) The Claimant s application was initially processed by the Recruitment Unit of the Service Commissions Department. (b) In the present case an applicant was required to write a promotional examination for the position. (c) Upon examination of the Claimant s application he was not in possession of the minimum experience and training of five GCE Ordinary level passes including English and Mathematics. The Claimant had three GCE Ordinary Level passes and one CXC pass. (d) The directive from the Ministry of Education that a Grade III at CXC would be accepted as a pass took effect from 1998 and onwards. The Claimant s grade III in Geography was obtained in 1985, therefore the said directive did not allow the Claimant s Grade III in Geography to be considered a pass. (e) The Claimant did not submit the letter in the Claimant s application and the Chief Personnel Officer is the competent authority to assess qualifications of public officers to determine their suitability to office. In any event, the letter is silent on the specific date of publication or application of the Draft Tertiary Qualifications Framework and /or Government Circulars mandating the acceptance and application of it by the Service Commissions Department. There was also no indication whether the Draft Framework was approved by Cabinet and the letter was silent on whether the draft framework applied to qualifications obtained prior to its date of application/ approval more particularly since the Claimant s qualifications were obtained in December (f) The NEC Diploma and the alleged pursuit of an Associate Degree in Music were not considered to be relevant to the position since the said position required an emphasis on accounting and financial management. In addition, Page 7 of 21

8 the majority of the Claimant s experience related to pension and leave, stores and other areas which were not of a significantly similar nature to the duties of the position. (g) Although the Claimant stated that he was acting as Assistant Treasury Officer and Treasury Officer I since 1 st August 2008, the duties he described himself as performing were not of a sufficiently similar nature to those required for the position. (h) The appointment of the Claimant by the Director of Human Resources Unit, Ministry of Finance and the Economy to act in the post of Assistant Treasury Officer was in contravention of the policy in the public service since such appointment had to come from the Service Commission Department. 11. The following issues are to be determined. (a) Should the Defendant s decision not to consider the Claimant eligible to sit the promotion exam for the position be quashed? (b) If the answer to (a) is yes, is the Claimant entitled to damages? Should the Defendant s decision not to consider the Claimant eligible to sit the promotion exam for the position be quashed? 12. In Council of Civil Service Unions v Minister for the Civil Service 3 Diplock LJ described the principles of illegality, irrationality and procedural impropriety in the context of a decision which can be judicially reviewed as- By illegality as a ground for judicial review I mean that the decision maker must understand correctly the law that regulates his decision making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges by whom the judicial power of the state is exercisable. 3 [1985] AC 374, 410D-411B Page 8 of 21

9 By irrationality I mean what can now be succinctly referred to as Wednesbury unreasonableness. It applies to a decision which is so outrageous its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. I have described the third head as procedural impropriety rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of justice. 13. At paragraph page 620 of Michael Fordham s Judicial Review Handbook, the author cited R v Secretary of State for the Environment, ex parte Greater London Council (3 rd April, 1985) unreported and the decision of Mustill LJ who identified the ways in which a decision under review might be regarded as being procedurally improper as:- (a) unfair behaviour towards person affected by the decision (b) failure to follow a procedure laid down by legislation (c) failure properly to marshal the evidence on which the decision should be based. (d) taking into account an immaterial factor or failing to take into account a material factor or failing to take reasonable steps to obtain the relevant information; and (e) failure to approach the decision in the right spirit. For example, where the decision maker is actuated by bias, or where he is content to let the decision be made by chance. Page 9 of 21

10 14. Section 5(3) of the Judicial Review Act 4 ( the JRA ) sets out the grounds upon which the Court may grant relief to a person who has filed an application for judicial review to include the following: (3) The grounds upon which the Court may grant relief to a person who filed an application for judicial review includes the following: (a) that the decision was in any way unauthorised or contrary of law; (b) excess of jurisdiction; (c) failure to satisfy or observe conditions or procedures required by law; (d) breach of the principles of natural justice; (e) unreasonable, irregular or improper exercise of discretion; (f) abuse of power; (g) fraud, bad faith, improper purpose or irrelevant consideration; (h) acting on instructions from an unauthorised person; (i) conflict with the policy of an Act; (j) error of law, whether or not apparent on the face of the record; (k) absence of evidence on which a finding of assumption of fact could reasonable be based; (l) breach of or omission to perform a duty; (m) deprivation of a legitimate expectation; (n) a defect in form or a technical irregularity resulting in a substantial wrong or miscarriage of justice; or (o) an exercise of a power in a manner that is so unreasonable that no reasonable person could have so exercised the power Having heard the parties I am satisfied that it was unreasonable, irrational, and unfair for the Claimant to be denied the opportunity to write the examination for promotion to the position for the following reasons. 16. Firstly, the evidence which the Defendant sought to rely on to explain its reasons was highly speculative, without foundation and lacking in credibility. The Claimant contended that the person who considered the application did not swear to the Defendant s affidavit and therefore at best it is hearsay and speculative information. The Defendant s position was that where there was a dispute of fact namely on the Claimant s 4 Chap 7:08 Page 10 of 21

11 combination of experience and training, the onus was on the Claimant to cross examine the deponent of the Defendant s affidavit since he was challenging the Defendant s decision that the Claimant lacked the combination of experience and training. 17. The deponent of the Defendant s affidavit, Ms Afong, stated that she was the Acting Director of Personnel Administration since the 5 th October She also stated that the matters deposed to in the Defendant s affidavit were from her own personal knowledge unless otherwise stated. Therefore she was not the person who reviewed the Claimant s application. She stated at paragraph 7 that: The Claimant s application and supporting documentation/ certificates were initially processed by the Recruitment Unit of the Service Commissions Department. 18. At paragraph 12 she continued that:..in the instant case, the Director of the Human Resources Unit, Ministry of Finance and the Economy appointed Mr Rampersad to act as Assistant Treasury Officer even though he did not satisfy the requirement of the office. This is more particularly so since the Required Knowledge, Skills and Abilities contained on page 2 in the Notice of Vacancy, and against which the Recruitment Unit of the Service Commission Department would have examined Mr Rampersad s application, emphasized treasury accounting and management work/ functions would be a necessity to be eligible for this role, something which at a basic level the Claimant s application failed to demonstrate that he possessed. 19. It was therefore clear that the deponent of the Defendant s affidavit did not review the Claimant s application neither did she state that she was informed by the relevant personnel from the Recruitment Unit who examined the Claimant s application and verily believed it to be true. Further she failed to provide any supporting documentation to verify the matters she deposed to in the Defendant s affidavit. Indeed the information in the Defendant s affidavit can be construed as highly speculative since she made Page 11 of 21

12 assumptions on matters which the personnel in the Recruitment Unit would have examined and concluded. In the circumstances, I agree with Counsel for the Claimant that the evidence in the Defendant s affidavit is highly speculative, is without foundation and lacks credibility. In my view there was no benefit to be derived from the crossexamination of the deponent of the Defendant s affidavit to resolve any issues of fact, since the matters stated therein were not based on information within her knowledge. 20. Secondly, the Defendant abused its power under section 5(3) (f) of the JRA since the Defendant s affidavit fell short in explaining what the Defendant considered to be equivalent combination and experience. In the often cited Privy Council decision in Jaroo v The Attorney General of Trinidad a Tobago 5, at paragraph 23 of the judgment Lord Hope explained the due process provisions in section 4(a) of the Constitution as:- First, there is the right to protection against the abuse of power. Secondly, there is the requirement that when powers are exercised by the State against the individual they must be exercised lawfully and not arbitrarily. 21. The aforesaid principles in Jaroo are equally applicable in the instant matter since it concerns the exercise of a discretion by a public official against an individual. The Claimant submitted that the onus was on the Defendant to state what it considered to be the equivalent combination and experience since the Claimant s combination of experience and training was higher than the minimum requirement set out in the Memorandum. 22. The Defendant s position was that the Court can only examine the documents which were placed before the Defendant when the Claimant s application was considered and the Claimant s staff reports were not placed before the Defendant. Further the onus was on the Claimant to prove that the NEC Diploma was a recognised qualification and in the absence of proof the Defendant acted properly by not considering it as part of the Claimant s qualifications. If the Claimant is relying on the second limb of the 5 [2002] 1 AC 871 Page 12 of 21

13 Memorandum then he cannot rely on the NEC Diploma. In any event the Defendant does not set qualifications and therefore it could not have accepted it. 23. The Memorandum stated that the Minimum Experience and Training Requirements were Some (from 6 to 18 months) experience in treasury accounting / management work and training as evidenced by a GCE Ordinary Level with passes in five subjects, two of which must be English Language and mathematics; or any equivalent combination of experience and training. It was not in dispute that the Claimant s submission that he was eligible to sit the promotion exam was based on the second limb of the Memorandum. The Defendant s affidavit set out reasons why the Claimant s application was not considered to be any equivalent combination of experience and training. It stated that the Claimant had only four GCE Ordinary level passes since the Grade III in Geography which was attained in 1985 was not considered as a pass since the Ministry of Education directive to accept Grade III CXC passes was only after It also stated that the NEC Diploma and the pursuit of an Associate Degree in Music were not considered relevant to the position since that office required an emphasis on accounting and financial management and that the duties which the Claimant described as performing as acting as Assistant Treasury Officer and Treasury Officer I since 1 st August 2008 were not of a sufficiently similar nature to those required for the position. 24. While the Defendant s affidavit set out the reasons why the Claimant s combination of training and experience were inadequate it failed to set out what the Defendant considered to be any equivalent combination of experience and training. In the absence of any explanation from the Defendant on what it considered to be suitable applications under the second limb as opposed to what were considered to be unsuitable, it left the interpretation of the second limb of the Memorandum to be open to an arbitrary application without any degree of certainty. This, in my view, is what occurred with the Claimant s application. 25. Thirdly, the Defendant breached section 5(3) (g) of the JRA by taking into account the manner in which the Claimant was appointed to act in the position of Assistant Treasury Page 13 of 21

14 Officer and Treasury Officer I, which was an irrelevant consideration. The Claimant submitted that the Defendant cannot challenge the Claimant s acting in the position of Assistant Treasury Officer Treasury Officer I since there is a presumption of regularity. Counsel for the Defendant did not make any specific submission on this issue. 26. Paragraph 12 of the Defendant s affidavit addresses this matters as: Despite an indication from the Claimant on the said application that he was acting as Assistant Treasury Officer and Treasury Officer 1 since 1 st August, 2008, the duties which he described himself as performing were not of a sufficiently similar nature to those required for the position of Assistant Treasury Officer. Further, in keeping with the policy of the Public Service Commission, an officer serving in clearly related promotional stream, for example, clerical class can be appointed to act in an officer in the Technical Class. In so doing, the Commission is required to appoint the officer to act and not the Permanent Secretary/Head of Department. This first acting appointment in this regard cannot be effected under delegated authority. In the instant case, the Director of the Human Resource Unit, Ministry of Finance and the Economy appointment Mr. Rampersad to act as Assistant Treasury Officer even though he did not satisfy the requirements of the office. This is more particularly so since the Required Knowledge, Skills and Abilities contained on page 2 in the Notice of Vacancy and against which, the Recruitment Unit of the Service Commissions Department would have examined Mr. Rampersad s application emphasized treasury accounting and management work/functions would be a necessity to be eligible for this role, something which, at a very basic level, the Claimant s application failed to demonstrate that he possessed. It was therefore not possible for the Recruitment Unit of the Service Commissions Department to make an informed assessment that Mr. Rampersad was eligible to be selected to write the examination for the office of Assistant Treasury Officer as he was deemed to be neither in possession of five (5) Ordinary Level/CXC passes nor any equivalent combination of experience and training. 27. This paragraph clearly demonstrates that the Defendant took into consideration the manner of the Claimant s appointment to act in the position of Assistant Treasury Officer and Treasury Officer I when considering the similarities of the Claimant s duties with the duties set out for the positon. In my view this was irrelevant in determining the Page 14 of 21

15 Claimant s application, since the Claimant s appointment to act in the position of Assistant Treasury Officer I was not of his own action and therefore after four years there is a presumption that his appointment to act in the post was regular. 28. Fourthly, the Defendant breached the principles of natural justice pursuant to section 5(3) (d) of the JRA by not calling upon the Claimant to explain the NEC Diploma and his four years experience. Counsel for the Claimant accepted that the letter was not before the Defendant, but submitted that the onus was on the Defendant to enquire from the Accreditation Council to determine the status of the NEC Diploma since according to paragraph 11 of the Defendant s affidavit it was considered in reviewing the Claimant s application. Counsel for the Defendant submitted that while the Claimant s application contained the NEC Diploma it did not contain the letter and therefore the information contained therein cannot now be relied on by the Claimant to support its position and that the Defendant had no duty. 29. Section 20 of the JRA captured the principles of a duty by a person acting in the exercise of a public duty to perform that duty in accordance with the principles of natural justice or in a fair manner. It states: 20. An inferior Court, tribunal, public body, public authority or a person acting in the exercise of a public duty or function in accordance with any law shall exercise that duty or perform that function in accordance with the principles of natural justice or in a fair manner. 30. In Michael Fordham s Judicial Review Handbook, at page 626, paragraph the learned author explained the meaning of fairness in the context of the principles of natural justice and cited with approval the dicta of Mustill LJ in R v Secretary of State for the Home Department ex p Doody 6 :- Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf 6 [1994] 1 AC 531 Page 15 of 21

16 either before the decision is taken with a view to procuring a favourable result or after it is taken, with a view to procuring its modification; or both Paragraph 11 of the Defendant s affidavit stated : More particularly, the Claimant was in possession of only four (4) GCE Ordinary Level and CXC passes, NEC Technician Diploma (Science Technician) and allegedly in pursuit of an Associate Degree in Music. The latter 2 qualifications were not considered to be relevant to the position of Assistant Treasury Officer given that this office required emphasis on accounting and financial management. 32. The Defendant had a duty to act fairly in determining the eligibility of the officers to sit the promotion exam for the position. The duty of fairness included informing the Claimant who was not going to be selected to sit the exam and giving him an opportunity to be heard and to make representations in his favour as to why he should be selected. There was no evidence that this was done by the Defendant. In my view, the onus was on the Defendant to enquire about the status of the NEC Diploma before the decision was taken that it was not a relevant qualification to the position. In the absence of such enquiry, there was no proper basis for the Defendant concluding that the NEC Diploma was not relevant. The Defendant s evidence was that the NEC Diploma was considered but in my view it was not properly considered. Indeed the evidence was that the Defendant chose to discount the NEC Diploma without even making any enquiries from him. In the circumstances, by excluding the NEC Diploma from the exercise of its discretion, the Defendant failed to take into account a relevant consideration in the exercise of its discretion in determining that the Claimant s application did not meet the minimum requirements for the position. 33. Fifthly, the Defendant failed to comply with the provisions of an Act contrary to section 5(3) (i) of the JRA. The Claimant contended that the Defendant failed to follow the procedures set out in sections 13 (4), 17 (1) (2) and section 18 of the Public Service 7 560D-G Page 16 of 21

17 Regulations 8 by excluding him from sitting the promotion exam for the position of Assistant Treasury Officer. The Defendant s position was that section 17 was irrelevant since it dealt with the setting and marking exam papers and that the instant matter was about eligibility to write a promotion exam. 34. Section 13 (4) states: The Director shall, from time by circular memorandum or by publication in the Gazette, give notice of vacancies which exist in the particular service and any officer may make application for appointment to any such vacancy. Such application shall be forwarded through the appropriate Permanent Secretary or Head of Department to the Director, but the failure to apply shall not prejudice the consideration of the claims of all eligible public officers. 35. Section 17 (1) and (2) provides: (1) All examinations to be held under these Regulations shall be set and the papers marked by such Examination Board as may be appointed for the purpose. (2) The Director shall be responsible for the conduct of examinations set under subregulation (1). 36. Section 18 states: 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. (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 8 Chapter 1:01 Page 17 of 21

18 (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 letter of commendation or special reports in respect of any special work done by the officer;. (g) the duties of which he had 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 specification that may be required from time to time for appointment to the particular office. 37. It was not in dispute that the subject of the Memorandum was Notice of Vacancy for the office of Assistant Treasury Officer (Ranger 31 C), Ministry of Finance and the Economy ; it was sent to Permanent Secretaries and Heads of Departments for Page 18 of 21

19 circulation to their staff and that the Claimant s application was done on an Application for promotion in the Public Service Form. Therefore for all intents and purposes the subject matter of the Memorandum fell under section 18 of the Public Service Regulations because it was contemplated by the Defendant when it issued the Memorandum that the candidate to fill the position of Assistant Treasury Officer would have been holding a lower position in the Public Service. 38. The Defendant stated at paragraph 7 of the Defendant s affidavit that: In the present case, an applicant was required to write the promotional examination for the office of Assistant Treasury Officer provided that he or she met the minimum experience and training requirements of the office. 39. However the Defendant failed to state the policy or basis in law it relied on to set a promotional examination for the said office. In the absence of such evidence the Claimant cannot be faulted for assuming that sections 13 and 18 were the applicable law and procedure. It was therefore clear that in breach of section 18 the Defendant failed to take into account the Claimant s previous employment in the public service which was his 25 years experience and his 4 years acting in the position of Assistant Treasury Officer and Treasury Officer. Is the Claimant entitled to damages? 40. Counsel for the Claimant submitted that the damages which the Claimant is entitled to is the lost opportunity to write the exam since if successful he may have the opportunity to gain promotion in the public service from his substantive post of Clerk 2 to the position. 41. Counsel for the Defendant disagreed with this position and stated that there is no common law right to be awarded damages in judicial review proceedings and that in any event the damages which the Claimant seeks is too remote to be awarded since the Claimant first has to pass the promotion exam before he can be considered for promotion. Page 19 of 21

20 42. Section 8 (4) of the JRA makes provision for the Court to award damages. It states: 8. (4) On an application for judicial review, the Court may award damages to the applicant if- (a) the applicant has included in the application a claim for damages arising from any matter to which the application relates; and (b) the Court is satisfied that, if the claim has been in an action begun by the applicant at the time of making the application, the applicant could have been awarded damages. 43. The Claimant made a claim for damages in the Fixed Date Claim. The extent of his evidence on the loss he has suffered as a result of the Defendant s decision not to consider him eligible to write the exam is set out at paragraph 12 of his affidavit filed on the 13 th May 2015 which states:..i therefore claim that I was treated unfairly and unequally and I have suffered prejudice and the loss of an opportunity to write the said examination to further my career and be promoted in the public service. 44. In my view the Claimant has failed to adduce any cogent evidence to persuade the Court to make an award for damages for the loss of an opportunity to write the exam. The Claimant has succeeded in obtaining the substantive reliefs which he sought in the Fixed Date Claim. This means that he would be entitled to sit the promotion exam for the position which in my view is adequate to compensate the Claimant. In any event, there was no evidence that this loss of opportunity extended to an opportunity to be promoted in the public service since this is too remote. ORDER 45. The decision of the Defendant in failing or refusing to consider the Claimant as being eligible and/or suitably qualified to write a promotion examination held on or about the Page 20 of 21

21 23 rd February, 2015 for the position of Assistant Treasury Officer (Range 31C) in the Ministry of Finance and The Economy is quashed. 46. It is declared that the decision of the Defendant in failing or refusing to consider the Claimant as being eligible and/or suitably qualified to write a promotion examination held on or about the 23 rd February, 2015 for the position of Assistant Treasury Officer (Range 31C) in the Ministry of Finance and The Economy was unlawful and/or unreasonable and/or procedurally improper. 47. The Defendant is to reconsider the Claimant s eligibility to write the promotion exam for the position of Assistant Treasury Officer (Range 31C) in the Ministry of Finance and The Economy. 48. The Defendant to pay the Claimant s costs to be assessed by the Court in default of agreement. Margaret Y Mohammed Judge Page 21 of 21