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REPUBLIC OF TRINIDAD AND TOBAGO
IN THE COURT OF APPEAL
Civil Appeal No. S -14 of 2012
H.C.C. No. CV2008-03218
BETWEEN
SAMOORATH SAHATOO
Appellant
AND
THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO
Respondent
PANEL: A. MENDONÇA, J.A.
A. YORKE-SOO HON, J.A.
N. BEREAUX, J.A.
APPEARANCES: G. Ramdeen, K. Samlal and S. Mohammed for the
Appellant
R. Martineau, SC, R. Hector and S. Julien for the
Respondent
DATE DELIVERED: 15 October 2015
I have read in draft the judgment of Bereaux J.A. I agree with it and do not wish
to add anything.
A. Mendonça
Justice of Appeal
Page 2 of 17
I too agree.
A. Yorke-Soo Hon Justice of Appeal
JUDGMENT
Delivered by Bereaux, J.A.
[1] The issue in this appeal is whether the appellant Samoorath Sahatoo was
treated unequally by the Public Service Commission (the Commission) in
appointing him to the post of Road Officer 1 in the public service, contrary to
section 4(d) of the Constitution. The appellant, Mr. Sahatoo, alleges that he was.
He alleges that other officers were appointed in accordance with their position on
the merit list whereas, when his turn came, he was not.
[2] He contends that the established practice and procedure or the policy for
appointment in the public service is that an “order of merit” list of approved
candidates for the substantive post is compiled after examinations and interviews
are held. Appointments and promotions are made from the list, based on and in
accordance with the officer’s position on the list.
[3] He alleges that the policy is that acting appointments are made in
accordance with an officer’s position on the seniority lists. Seniority is also a
crucial factor in promotions. The effective date of his appointment to the post of
Road Officer 1 was 9th
August, 1993. He points to ten officers, appointed before
him, who placed below him on the merit list in 1986; after a written examination
in 1985 and after interviews in 1986 were conducted for the post of Road Officer
1. However, these ten officers were all appointed to the post of Road Officer 1
before him and, based on their seniority, obtained subsequent promotions ahead
of him.
Page 3 of 17
[4] The ten officers were Azim Hosein, Rabindranath Gokool, Hadeed
Mohammed, Daniel Abraham, Raymond Seuchan, Ravindranath Gangoo,
Latchman Maraj, Winston Regis, Azim Bassarath and Mahindranath Ramnanan.
Azim Hosein was appointed Road Officer 1 on 1st July 1991, Rabindranath
Gokool was appointed on 23 June 1993 and Hadeed Mohammed was appointed
on the 7th
August 1993. The other officers were all appointed on 8th
August 1993,
one day before the appellant.
[5] The judge dismissed the constitutional motion on the basis that the ten
officers were not true comparators with the appellant.
[6] It is necessary to consider the evidence in some detail. Three affidavits are
relevant. The affidavit of the appellant filed on 22nd
August 2008, the affidavit of
Ms. Dawn Harding filed in reply on 1st December 2008 and the appellant’s
affidavit in answer, filed on 5th
February 2009. Mr. Heathcliffe Gomez also
swore to an affidavit on behalf of the Attorney General. His evidence has no
bearing on the outcome of this appeal.
The appellant’s evidence
[7] Mr. Sahatoo deposed that he applied for the post of Road Officer on 14th
July 1984. It was a post on the permanent establishment of the public service. He
wrote an examination in February 1985 and attended a follow up interview on
23rd
June 1986. He placed sixth on the order of merit list of approved candidates.
Mr. Sahatoo was informed that he had been placed on the merit list but was not
told his order of placement. On 7th
August 1987, he received correspondence
from the Service Commissions Department asking him to call its office
immediately upon receipt of the correspondence. He said he contacted the office
in person and was told that the purpose of the correspondence was to update the
merit list.
[8] Mr. Sahatoo received correspondence dated 7th
May 1990 from the
Page 4 of 17
department enquiring whether he was “still interested in a temporary appointment
as Road Officer 1” and asking that if he were interested, he should contact the
department as early as possible, in person or by telephone.
[9] He visited the offices of the Service Commissions Department. He met
with one Ms. Ellis. He confirmed his interest in being appointed as Road Officer
1. He deposed that he “asked Ms. Ellis whether this temporary appointment
could lead to a permanent appointment. Ms. Ellis indicated that temporary acting
appointments did not give the appointee any special claim to promotion as
promotion/permanent appointment was based on and in accordance with an
officer’s place on the order of merit list”.
[10] He said that the temporary appointment was for a short period and since it
would not affect or assist his “promotion/appointment prospect”, he indicated
that he would wait for a longer acting appointment. He added that:
“I did not indicate that I was not interested in temporary
appointment on the whole but merely this particular temporary
appointment which was too short in duration. Ms. Ellis had
informed me and I verily believed that there were other vacancies
which needed to be filled and other acting opportunities would
come up and I was therefore confident that I would not be
adversely affected by waiting for a short while.”
[11] Mr. Sahatoo’s contention that he visited the offices of the Service
Commissions Department in response to the Commissions’ letter of 7th
May,
1990, is inconsistent with his letter to the department dated 21st May 1990. In that
letter (in which he referred to the letter of 7th
May) he spoke of telephoning the
offices of the Service Commissions Department on the 14th
May, 1990 to indicate
his continued “interest in the job”. He then wrote the letter of 21st May 1990 to
confirm his telephone conversation expressing his “willingness to take up the
appointment at your earliest convenience”.
Page 5 of 17
[12] His follow up letter dated 12th
August 1990, produced no response. In
September 1992, he visited the offices of the Service Commissions Department in
response to a telephone call from Ms. Ellis who had informed him that his name
had been struck off the merit list.
[13] In the course of his conversation with Ms. Ellis he asked her “whether
those officers who had gained temporary appointments would have a competitive
edge. Ms. Ellis indicated that permanent appointments were based on the ranking
and placement of officers on the order of merit list.”
[14] He eventually started work as a temporary Road Officer 1 on 19th
March
1993 and on 18th
September 1995, was appointed to the permanent post of Road
Officer 1 with effect from 9th
August 1993. He was eventually appointed to act as
Road Officer II on 30th
November 1998 on a temporary basis. He was again
appointed to act as Road Officer II in July 2004. He continued to act in that post
until he was appointed to the substantive post, with effect from 26th
June 2004.
[15] By letter of 18th
February, 2008 pursuant to the appellant’s request under
the Freedom of Information Act Chap 22:02, the Commission confirmed the dates
of appointment of officers appointed to the post of Road Officer 1. He stated that
the list showed that many of the officers were appointed to act before him and that
ten (10) officers, referred to in paragraph 3 above, who were placed lower than
him on the 1986 merit list were appointed permanently to the post of Road Officer
1 before he was. All ten of them started acting in the post of Road Officer 1
before he took up his acting appointment.
Evidence on behalf of the respondent - Dawn Harding
[16] Ms. Harding, the Deputy Director of Personnel Administration, confirmed
that Mr. Sahatoo was placed sixth on the merit list after he wrote the 1985
examination and after he was interviewed for the post in 1986. She deposed that
substantive appointments to a particular post in the public service can only be
Page 6 of 17
made if there is a vacancy in the particular post. Until then, there can be no
appointment to that post.
[17] There are occasions however when a post becomes “vacant” temporarily,
for a period of time, for example, when the holder of the post goes on sick leave,
vacation leave, pre-retirement leave or is appointed to act in a higher post. When
these temporary vacancies arise, the Commission may make temporary
appointments to the post from the names that appear on the merit list for the
particular post.
[18] To fill such temporary vacancies, the Commission would write those
applicants, whose names appear on the order of merit list, enquiring whether the
applicant would be interested in a temporary appointment.
[19] The Commission wrote to Mr. Sahatoo “on occasions” inviting him to
attend its offices so as to ascertain from him whether he was still interested in the
post. The Commission also wrote to him “on occasions” specifically asking
whether he was interested in temporary appointments. The purpose of those
letters was not to update the order of merit list as he claimed but was to confirm
whether he was still interested in the post of Road Officer 1. It was also to
confirm whether he may have been interested in a temporary appointment. As his
letter of 7th
September, 1992 demonstrated Mr. Sahatoo was interested in
employment in the form of “longer term arrangement rather than … a short
stint.”
[20] Ms. Harding added that on the 7th
May 1990, the Commission again wrote
to Mr. Sahatoo enquiring whether he was interested in a temporary appointment
as a Road Officer 1 and if so, to contact the Commission (see “SS 2”). The
Commission can find no record of Mr. Sahatoo having visited the offices of the
Service Commissions Department in response to the letter or any record of his
having spoken with Ms. Ellis. Indeed, there is no record with the Commission
that Mr. Sahatoo attended its offices and spoke to Ms. Ellis on any of the
Page 7 of 17
occasions referred to in his affidavit. Ms. Ellis is no longer in the employ of the
Commission and resides out of the country. The Commission unsuccessfully tried
to contact her. However, by letter dated the 21st May 1990, Mr. Sahatoo
confirmed his willingness to take up an acting appointment. By that time
however, a number of other applicants who were on the merit list had indicated
their interest in temporary appointments including short term temporary
appointments and were appointed accordingly.
[21] Ms. Harding stated that the position of the Commission with respect to
temporary appointments is that successful candidates were not entitled to any
prior claim by virtue of their appointments. But in making its appointments the
Commission deals with each appointment on a case by case basis.
[22] By letter dated 30th
December 1992, the Commission again wrote to Mr.
Sahatoo enquiring whether he was interested in a temporary appointment (see “SS
5”). Thereafter by letter dated the 20th
January 1993 Mr. Sahatoo was offered a
temporary appointment for 6 months which he accepted and began employment
on the 19th
March 1993. Mr. Sahatoo took up his first temporary appointment as
Road Officer 1 on the 19th
March 1993. Mr. Sahatoo’s name was never removed
from the merit list and he was so informed by letter dated 5th
May 1993. On the
18th
September 1995 he was given a permanent appointment as Road Officer 1
with effect from the 9th
August 1993, (see “SS 7”).
[23] With respect to the 10 (ten) officers referred at paragraph 3, Ms. Harding
said this:
“… the 10 officers referred to by the Claimant in paragraph 38
of his affidavit were placed lower on the merit list than the
Claimant. However they were appointed Road Officers 1 prior to
the Claimant. Their prior appointments took place because they
had all accepted temporary appointments and actually performed
as Road Officers 1 long before the Claimant accepted such
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appointment, and the period of their acting in such appointments
was very long particularly as many of those appointments turned
out to be successive short term appointments without a break”
I have deduced from her evidence, of the acting appointments of each officer, the
following facts in relation to those officers and Mr. Sahatoo:
i. Azim Hosein - acted continuously as Road Officer 1 from 2nd
June 1986 to the date of his substantive appointment on 1st
July 1991.
ii. Rabindranath Gokool - acted from 1st May 1986 as Road
Officer 1 to 13th
May 1986 and from 16th
January 1987 until
his substantive appointment on 23rd
June 1993.
iii. Hadeed Mohammed - acted as Road Officer 1 continuously
from 1st May 1986 until his substantive appointment on 7
th
August 1993.
iv. Daniel Abraham - acted as Road Officer 1 continuously from
the 1st May 1986 until his substantive appointment on 8
th
August 1993.
v. Raymond Seuchan - acted as Road Officer 1 continuously
from 1st May 1986 and until his substantive appointment on
8th
August 1993.
vi. Ravindranath Gangoo - acted as Road Officer 1 continuously
from 2nd
May 1986 to 8th
August 1993 when he was appointed
to the post.
vii. Latchman Maharaj - acted continuously as Road Officer 1
Page 9 of 17
from 1st May 1986 until his substantive appointment on 8
th
August 1993.
viii. Winston Regis - acted continuously as Road Officer 1 from
14th
May 1986 to 8th
August 1993, the date of his substantive
appointment.
ix. Azim Bassarath - acted as Road Officer 1 from 1st May 1986
to November 1987 and from 23rd
November 1987 to 10th
January 1988. Thereafter acted as Road Officer 1 from 25
January 1988 to the date of his appointment to the
substantive post of Road Officer 1 on 8/8/93.
x. Mahindranath Ramnanan - acted as Road Officer 1 from 1st
May 1986 to 13 October 1985 and thereafter with effect from
12th
June 1989 until his substantive appointment on 8 August
1993.
xi. The appellant, Samoorath Sahatoo - appointed to act as Road
Officer 1 from the date of his assumption of duty on the 19th
March 1993 to 31st August 1993 and from the 1
st September
1993 to the 28th
February 1994. He continued to act as
temporary Road Officer 1 until his substantive appointment
retroactively from 9th
August 1993.
[24] Ms. Harding also sought to distinguish Mr. Sahatoo’s circumstances from
certain other officers. She contended that prior to his appointment on the 8th
August 1993, Mr. Sahatoo was never in the public service. Azim Hosein,
Rabindranath Gokool and Hadeed Mohammed all served as daily-paid Checkers
for several years prior to their temporary appointments as Road Officers 1 and
before Mr. Sahatoo entered the public service. Azim Hosein was employed as a
checker with the Ministry of Works, Maintenance and Drainage since 1980. He
Page 10 of 17
also held temporary acting appointments as Road Officer 1 since 1986. Mr.
Rabindranath Gokool was also employed in the service since 1979 as a checker
with the then Ministry of Community Development and Local Government and
also held temporary appointments as Road Officer 1 since 1986. Mr. Hadeed
Mohammed was employed as a checker with the Ministry of Community and
Local Government since 1974 and held temporary appointments as Road Officer
1 since 1986.
[25] As to the allegation that he was not appointed according to the
Commission’s policy, Ms. Harding stated that in making the respective
appointments, the Commission not only considered the officers’ positions on the
merit list but gave due regard to the special circumstances of the case of the ten
officers. They had performed the duties of the office for a substantial period of
time (virtually more than 6 years) far longer than Mr. Sahatoo. It is true that Mr.
Sahatoo was not appointed in accordance with the chronological listing on the
merit list but, on the other hand, he did not have an equally lengthy period of
temporary appointment when he was appointed to the substantive position.
[26] She concluded her evidence by stating that promotion by the Commission
is made in accordance with the criteria set out in regulation 18 of the Public
Service Commission Regulations of which seniority is only one of the many
criteria.
Appellant’s evidence in reply
[27] In reply Mr. Sahatoo stated that his refusal of the temporary appointments
was always conditional on the representations made to him. These were that
acting appointments did not entitle the person so appointed to any special claim
for promotion otherwise than in accordance with his place on the merit list. He
noted that had he known that acting appointments were a factor in making
promotion, “I would have accepted temporary employment to ‘pad’ my resume
and enhance the competitive edge my higher relative placement on the merit list
Page 11 of 17
gave me”.
The Law
[28] The legal principles which now govern a section 4(d) breach of the
Constitution were settled in the recent decision of the Privy Council in Webster
& Ors. v. The Attorney General of Trinidad and Tobago (unreported) [2015]
UKPC 10. Lady Hale, who delivered the decision of the Board, stated at
paragraph 12 of the judgment that it is “well established that the right to equality
of treatment extends to public officials in their relationships with their state
employers” and that section 4(d) (like section 4(b)) is “of general application and
not limited to discrimination on the grounds of race, origin, colour, religion or
sex”. She noted that the “problem” in formulating legal principles with respect to
section 4(d) was that “the law necessarily has to treat different groups of people
differently. The question is whether such distinctions are justified”. (see
paragraph 15). She also noted at paragraph 18, (in considering Article 14 of the
European Convention on Human Rights) that “a test of sameness is inadequate to
secure real equality of treatment. It is almost always possible to find some
difference between people who have been treated differently.”
[29] At paragraph 24, having reviewed the authorities Lady Hale summarised
the legal principles applicable under section 4(d) as follows:
“(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
Page 12 of 17
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 section 4: race, origin, colour, religion or sex.
(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).”
Lady Hale added the proviso that:
“…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.”
Conclusions
[30] The decision of the judge turned on whether Mr. Sahatoo was similarly
circumstanced with the ten officers to whom he refers; or as she put it, “whether
the relevant circumstances in Mr. Sahatoo’s case, are materially different from
the other officers”. She held that the fact that a person accepted and held a prior
temporary appointment was a material difference which removed the ten named
officers from the classification of persons similarly circumstanced to Mr. Sahatoo.
[31] The decision in Webster, decided after the judge’s decision in this case,
directs that the comparators’ situation must be “comparable, analogous, or
Page 13 of 17
broadly similar but need not be identical”. Any differences between them must
be material to the difference in treatment.
[32] Mr. Sahatoo and the ten other officers were all applicants for the post of
Road Officer 1 in 1986. They were all placed on a list in order of merit based on
their performances in an examination and in interviews. They were, no doubt, all
similarly qualified and seeking appointment to the same office. In that broad
sense they were all comparators to be treated equally in terms of policy by the
Commission.
[33] Mr. Sahatoo was placed ahead of them all on the merit list. But he was not
appointed to the post of Road Officer 1 in the order of priority pursuant to the
merit list. Ms. Harding at paragraph 12 of her affidavit stated that the position of
the Commission, with respect to the temporary appointments, is that successful
candidates were not entitled to any prior claim by virtue of their acting
appointments but in making its appointment (which I take to mean permanent
appointments) the Commission deals with each appointment on a case by case
basis.
[34] The fact is however that having been told by Ms. Ellis that the permanent
appointments would be made on the basis of the merit list ranking, Mr. Sahatoo
chose initially not to take up an acting appointment. But subsequently, the
Commission decided to take such appointments into account in appointing the ten
public officers to the post of Road Officer 1. She explained that the ten officers
“had all accepted temporary appointments and actually performed as Road
Officers 1 long before the [appellant] accepted such an appointment and the
periods of their acting in such appointments were very long, particularly as many
of those appointments turned out to be successive term appointments without a
break.” Ms. Harding stated that the Commission considered not only the officers
positions on the merit list but gave due regard to the special circumstances of the
ten officers who had performed the duties of Road Officer 1 for virtually six
years.
Page 14 of 17
[35] The factoring of time served in acting appointments into the decision to
appoint the ten officers permanently to the post of Road Officer 1 is therefore
central to the outcome of this appeal.
[36] The trial judge found as a fact that Mr. Sahatoo visited the offices of the
Service Commissions Department on two occasions, 7th
May 1990 and August
1992. On both occasions he was informed by Ms. Ellis that temporary
appointments would not give an officer any special claim to promotion or any
competitive edge; and that appointments were based solely on placement on the
order of merit list. (See paragraphs 7, 11 and 22 of the judgment) See also
paragraph 5 under the rubric “Reasoning and Decision” at page 13 of the
judgment. These findings were not challenged on appeal.
[37] The judge found in effect that Ms. Ellis had misinformed Mr. Sahatoo of
the policy of the Commission. Such misinformation was an express
representation emanating from an official source on which Mr. Sahatoo was
entitled to rely. However to the extent that he had a legitimate expectation based
on that representation, the judge held that it in no way assisted him in this case.
The ten officers had accepted temporary appointments for the stipulated period of
time and this rendered their circumstances materially different from the
applicants’.
[38] Mr. Sahatoo had been subject to cross-examination on his visits to the
Service Commissions Department. The judge was entitled to find on the evidence
that Mr. Sahatoo was told on two occasions by Ms. Ellis that temporary
appointments would give an officer no prior claim to promotion (or appointment
to the office) or any competitive edge.
[39] The question which next arises is whether Mr. Sahatoo’s permanent
appointment was adversely affected by Ms. Ellis’ representation such as to
amount to different treatment under section 4(d) of the Constitution.
Page 15 of 17
[40] The answer to that question is in the negative. Even if Mr. Sahatoo had
accepted the acting appointment then offered, the other officers had already been
acting continuously as Road Officers for some four years prior. The operative
date for the purposes of this appeal is 7th
May 1990 which is the date when the
acting appointment was first offered and when the first representation was made.
By that time the ten other officers had been holding acting appointments for a
continuous period of four years or close to four years. With the exception of
Azim Hosein and Winston Regis, all of them had been acting Road Officers 1
before Mr. Sahatoo had even been interviewed in 1986. Azim Hosein had been
acting as Road Officer 1 since 2nd
June 1986, Winston Regis since 14th
May 1986.
Those were significant periods of time, sufficient to warrant special consideration
and different treatment by the Commission. Further, Azim Hosein, Rabindranath
Gokool and Hadeed Mohammed all served as daily paid Checkers for several
years prior to their acting appointments. They were serving public officers long
before Mr. Sahatoo. These periods of service were significant to merit retroactive
appointments which were senior to Mr. Sahatoo by periods ranging from 2 years,
to 2 months, to 2 days, to 1 day.
[41] It is true that had Mr. Sahatoo taken up the appointment offered on 7th
May, 1990 and had he worked continuously as appears to have been the practice,
Mr. Sahatoo would have had an additional two years service to be considered by
the Commission in appointing him to the permanent position. I cannot say that
those additional years service would necessarily have tipped the balance in Mr.
Sahatoo’s favour. That was a matter entirely for the Commission. The bottom line
remains that even with those two additional years service the other officers had
significantly more years of acting service.
[42] My concern is with whether there was different treatment and whether it
was justified. In my judgment, there was different treatment but such treatment
was justified. Even if he had started acting on 7th
May 1990, the other officers
would still have been well advanced in service compared to Mr. Sahatoo. This is
sufficient to justify their appointments to permanent positions, ahead of him.
Page 16 of 17
Moreover, the differences stated by Ms. Harding set out at paragraph 24 are also
sufficient to justify the difference in treatment.
[43] Thus while Mr. Sahatoo and the ten other officers were, broadly speaking,
similarly circumstanced as being applicants for the post of Road Officer 1, there
were differences between them which were sufficiently “material to justify the
difference in treatment.” The overlap between the “sameness” question at (1) of
paragraph 29 and the justification question at (3) of the same paragraph is
demonstrated here.
[44] The justification question is also satisfied. The Commission must be
concerned with appointing both competent and deserving officers to the public
service offices. In this case, the decision struck a balance between merit and
experience which was both rational and proportionate to the aim of appointing the
best officers to the posts. It was also fair. The Commission is charged under the
Constitution with the responsibility of appointing persons to offices in the public
service. In discharging that duty it will be faced with the competing interests of
persons vying for appointments. It is bound to take decisions which adversely
affect some persons while benefitting others. Once it acts fairly, and within the
four corners of its authority it cannot be faulted. The interests of fairness will
sometimes require the Commission in discharging its duty to consider the
particular circumstances of a given case. In doing so, the Commission cannot be
expected to adhere, inflexibly, to a fixed policy, when to do so will produce an
unjust result.
[45] In this case, I consider, the Commission was right to have looked at the
interests of the other officers who had been serving far longer than Mr. Sahatoo.
Indeed if it had not, it may well have been faced with another high court action in
these courts.
[46] In my judgment, while the Commission did treat Mr. Sahatoo differently,
it has properly explained the basis for such different treatment. It has not
Page 17 of 17
breached section 4(d) of the Constitution. The appeal must be dismissed. We
will hear the parties on costs.
Nolan P.G. Bereaux
Justice of Appeal
Recommended