REPUBLIC OF TRINIDAD AND TOBAGO CV2008-02391 IN THE HIGH COURT OF JUSTICE BETWEEN CHARLES MITCHELL APPLICANT AND PUBLIC SERVICE COMMISSION CHIEF FIRE OFFICER PUBLIC SERVICE EXAMINATION BOARD AND TRINIDAD AND TOBAGO FIRE SERVICE EXAMINATION BOARD DEFENDANTS BEFORE THE HON. MADAME JUSTICE JOAN CHARLES Appearances: For the Claimant: For the Defendant: Mr. Seepersad and Ms. Bhagwandeen Mr. Singh, led by Mr. Martineau, Instructed by Ms. Chance Date of Delivery: 20 th September, 2011 JUDGMENT Page 1 of 11
BACKGROUND [1] The Applicant, a fire fighter, sat the Fire Service Practical Promotional Examinations in November 2006 ( the 2006 promotional examinations ) which was carried out by the Trinidad and Tobago Fire Service Examination Board (TTFSEB). The Applicant was informed by letter, dated the 2 nd July, 2007, that he was unsuccessful in the promotional examinations and the results were subsequently published by the Fire Services Examinations Board (FSEB) via Station Notice No. 13/2007 and dated the 10 th July, 2007. [2] Thereafter, on the 20 th July, 2007, the Applicant requested a review of his scores by a letter to the Chief Fire Officer (CFO), who notified him that his request should be sent to the Secretary of the Examination Board, Fire Service School Headquarters instead. The Applicant was informed by letter, dated the 11 th September, 2007, from the Secretary of the Examination Board that his review was unsuccessful. [3] On the 19 th September, 2007, the Applicant sent a letter of complaint to the Chairman of the Public Service Commission (PSC) questioning the involvement of two junior officers, Darron Dasent and Nigel Lampkin, in the 2006 promotional examinations process in light of the fact that they were also vying for the same promotion as the Applicant. In his complaint, the Applicant alleged that the results of the 2006 promotional examinations were vitiated by bias as a result of the involvement of these two officers. Page 2 of 11
[4] Subsequently, on the 16 th November, 2007, the Applicant made a request under the FREEDOM OF INFORMATION ACT, CHAP. 22:02 (FOIA) to the CFO requesting access to his results. [5] By Station Notice No. 3/2008, dated the 31 st January, 2008, the PSC Examination Board adopted the results of the 2006 promotional examinations and rescinded Station Notice No. 13 of 2007. As a result of this a Pre-action Letter, dated the 12 th March, 2008, was sent to the PSC by the Applicant challenging the adoption of the said results as it was vitiated by bias and therefore illegal. A FOIA application was also sent to the PSC requesting information and a reminder letter was issued on the 18 th April, 2008. [6] Some officers who passed the 2006 promotional examinations were appointed to act in the post of Fire Sub-Officer by virtue of the Fire Service Order No. 8/2008 dated the 14 th April, 2008. The Applicant challenged these appointments alleging they were made in violation of REGULATION 154 and 155 of the PUBLIC SERVICE REGULATIONS these officers were junior to the Applicant, he was never notified that appointments were made and had no opportunity to make representations. [7] Based on the foregoing, the Applicant issued a fresh application under the FOIA by letter dated the 28 th May, 2008 and by a letter dated the 16 th June, 2008, the Applicant was supplied with the requested information. Page 3 of 11
[8] The Applicant filed an application for judicial review on the 1 st July, 2008. However, this application was refused by the Honourable Mr. Justice Delzin on the 24 th October, 2008. This decision was appealed on the 29 th October, 2008. The appeal was heard by the Honourable Justice of Appeal Jamadar who overturned the decision of the Honourable Mr. Justice Delzin on the 10 th November, 2008 and granted the Applicant leave to seek judicial review but limited the relief sought to the following: i. An order of certiorari to quash the decision of the Public Service Examination Board (PSEB) to adopt the result of the 2006 practical promotional examinations results which were conducted by the FSEB published in Station Notice No. 3/2008 and dated the 31 st January, 2008; and, ii. A declaration that the PSEB cannot lawfully adopt the results of the 2006 practical examinations results because it was tainted and/or vitiated by bias; iii. A declaration that the acting appointment of the fire fighters who were successful in the 2006 practical promotional examinations by the CFO and/or the PSC on the basis that such officers who were now qualified for promotional to the rank of Fire-Sub officer is illegal; iv. A declaration that the aforesaid appointments were made in violation of the procedure stipulated in REGULATION 155 of the PUBLIC SERVICE COMMISSION (AMENDMENT) (NO. 2) REGULATIONS 1998; and, v. A declaration that the Applicant has been treated unfairly contrary to the principles of natural justice. Page 4 of 11
[9] By a Fixed Date Claim Form filed on the 17 th November, 2008, the Applicant sought the following reliefs: i. A declaration that the Fire-sub officer practical examinations held in October/December 2006 by the Trinidad and Tobago Fire Services Examinations Board were unfair and illegal and the results of the same are null and void and of no legal effect; ii. iii. An order of certiorari to quash the decision of the Public Service Examination Board (PSEB) to adopt the result of the 2006 practical promotional examinations results which were conducted by the Fire Services Examinations Board (FSEB) published in Station Notice No. 3/2008 and dated the 31 st January, 2008; and, A declaration that the PSEB cannot lawfully adopt the results of the 2006 practical examinations results because it was tainted and/or vitiated by bias. [10] The relief sought at sub-paragraph (i) in the Applicant s Claim Form was not part of the relief allowed by Jamadar JA and will not be considered. In addition, the Claimant did not claim the reliefs relating to the acting appointments, which were allowed by Jamadar JA although in the Applicant s submissions filed on the 16 th September, 2009 the reliefs were addressed. Since these reliefs do not form part of the Applicant s Fixed Date Claim they will not be considered. Page 5 of 11
ISSUES [11] The issues for consideration by the Court are as follows: i. Whether the Public Service Commission was entitled to adopt the results of the Fire Service Promotional Examinations Board; and, ii. Whether the results of the 2006 promotional examinations were tainted or vitiated by bias. ANALYSIS Whether the Public Service Commission was entitled to adopt the results of the Fire Service Promotional Examinations Board [12] The Applicant is challenging the decision of the PSEB to adopt the results of the 2006 promotional examinations on the following grounds: i. The results were a nullity in law and therefore could not be adopted; ii. iii. The PSEB was under a duty to set and mark the examination papers for the promotion of fire officers; The adoption was an unlawful attempt to negate the decision of the Privy Council in Cooper and Balbosa v Director of Personnel Administration and Police Service Commission, PCA No. 47/2005, and to allow the results which were nullified in the consequence of that decision, to operate as if those results were lawful; Page 6 of 11
iv. The PSC had no jurisdiction or authority to adopt the unlawful results; v. The candidates at the 2006 promotional examinations were not lawfully examined and so would be deemed as having taken no examination with the consequence that they had no results; vi. The adoption of the results of the 2006 promotional examinations by the PSC did not remove the taint of unconstitutionality from the results of that examination; and, vii. The procedure followed by the PSC to determine who passed the 2006 promotional examinations was not supported by the PUBLIC SERVICE REGULATIONS or by any act of Parliament and was therefore unlawful. [13] The procedure as to how the PSEB adopted the results of examinations conducted by the FSEB was explained by Dawn Harding in her affidavit of 20 th April, 2009 filed on behalf of the Defendant, where she stated: The 2006 practical examinations were conducted by the [FSEB]... established under the Fire Services Act. However, on July 6, 2006 the Privy Council delivered its advice in Cooper v DPA [supra]. According to this advice, promotional examinations set and marked by an Examinations Board appointed by the [PSC] was to have ultimate control of the settling and marking of the examination paper by the Board. The Commission having received the advice of the Judicial Committee of the Privy Council and having the same considered the same, chose to use the [FSEB] and its Page 7 of 11
results for the 2006 promotional examinations... and adopted those results assuming ultimate responsibility and control thereof... [14] In Cooper v DPA (supra), the appellants were two police officers who took promotional examinations which were conducted by a Cabinet-appointed Board. The constitutionality of this Board and the conduct of the promotional examinations were called into question. The Privy Council held that the sole responsibility for the conduct of promotional examinations in the Police Service rested with the Police Service Commission and the manner in which this commission chose to discharge its duties are to be determined by the commission alone. The Committee also added that it was within the purview of the Police Service Commission or the Public Service Commission to utilize the services of the Board appointed by the Cabinet with the underlying principle that no interference by the Executive is exercised. This was highlighted at paragraphs 28-29 of the decision, as follows: The appointment of a Public Service Examination Board by the cabinet, for the commissions to use if they chose to do so is not in itself objectionable. The advantages of using such a centralized body are obvious, and in practice the commissions may well be content to continue to make use of them... It is for the Commission to exercise its own initiative in this matter, free from influence or interference by the executive. [15] Further, in the local decision of Imtiaz Mohammed v The Public Service Commission, The Public Service Examinations Board and The Trinidad and Tobago Fire Service Examinations Board, C.V. 2008-04363, Dean- Page 8 of 11
Armorer J., ruling on similar arguments raised by the Applicant herein, stated that it was within the powers of the PSC to make use of an examination board appointed by the Minister of National Security and opined at p. 9:... the appointment of an examination board by the Minister of National Security is not objectionable per se. The illegality would arise where the Commission permits the examination board to be used as an instrument of interference by the executive. [16] The Court finds that it was within the power of the PSC to use the FSEB established under the FIRE SERVICE ACT, CHAP. 35:50 and that there was no evidence to suggest that the PSC was influenced by the Executive in its decision to adopt the results of the 2006 promotional examinations. As such the results of the promotional examinations were lawfully adopted by the PSC having exercised their own initiative, free from influences or interference by the Executive. Whether the results of the Examination were tainted or vitiated by bias [17] The Applicant contended that fire officers Darron Dasent and Nigel Lampkin were not entitled to be participants in the conduct of the 2006 promotional examinations; they were not members of the examinations board and the appointment of these two officers to participate in the assessment was an abuse of power as they were in contest with the other examinees including the Claimant. Therefore, the results of the promotional examination were tainted by bias. Page 9 of 11
[18] Officer Dasent and Lampkin testified that they did not in any way supervise the 2006 promotional examinations instead they assisted in the evaluation of candidates in the First Aid component of the 2006 promotional examinations and were supervised by Mr. Horace Leach, an examiner for the practical examination to the rank of Fire-Sub officer. For this component of the promotional examination the Applicant was successful, therefore a claim for bias cannot succeed. Further, under cross examination, the Applicant admitted that although he knew of the Officers involvement in the promotional examinations since 2006, he did not make a complaint until September 2007 some nine (9) months after. It is trite law that an allegation of bias must be made at the earliest opportunity. [19] When questioned under cross examination as to why his review letter of 20 th July, 2007 did not complain about the involvement of the officers in the promotional examinations, the Applicant responded that he knew he had passed that component so he just wanted a review. It was noted in Amjad v Steadman-Bryne (2007) 1 WLR 2484, that the courts do not look favourably upon complaints of vitiating bias where the applicant took his chance on the outcome and upon finding it disadvantageous sought to rely on it. Further in R v Sussex Justices ex parte McCarthy [1924] 1 K.B. 256, the court held that in circumstances where a conviction is to be quashed on the basis that a person acting in an advisory capacity was so related to the case as to be incapable of being partial, the conviction would not be quashed where it can be shown that the applicant was aware of this point but refrained from making it and upon the conviction being recorded thereafter sought to take the point. Page 10 of 11
[20] The Court therefore finds that there was no instance of bias and in any event the Applicant was aware of the officers involvement yet made no complaints, even when he saw them physically participating in the 2006 promotional examinations. As such he is deemed to have waived his right to thereafter complain based on the foregoing authorities. CONCLUSION [21] In the circumstances, the Claimant s claim is hereby dismissed. [22] On the issue of costs, a costs budget in the sum of one hundred and fifty thousand dollars ($150,000.00) had been set by Delzin J. (as he then was) on the 20 th March, 2009. However, there were only two issues to be determined by the Court. Although both were decided against the Claimant, the issues were fairly straight-forward and so I consider that the award of $150,000.00 against him to be oppressive. I therefore vary the Order by reducing same by 40% of the budgeted costs. In the circumstances, I order that the Claimant pay to the Defendants 60% of the budgeted costs, that is to say the sum of ninety thousand dollars ($90,000.00). JOAN CHARLES JUDGE Page 11 of 11