IN THE HIGH COURT OF JUSTICE BETWEEN AND THE PUBLIC SERVICE COMMISSION THE CHIEF FIRE OFFICER

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No. CV BETWEEN FIRE SERVICE ASSOCIATION OF TRINIDAD AND TOBAGO (SECOND DIVISION) AND THE PUBLIC SERVICE COMMISSION THE CHIEF FIRE OFFICER Claimant 1 st Defendant 2 nd Defendant BEFORE THE HONOURABLE MADAM JUSTICE DEAN-ARMORER APPEARANCES Mr. Ramesh Lawrence Maharaj S.C., Mr. Vijaya Maharaj and Mr. Kenneth Thompson, Attorney-at-laws for the Claimant. Mr. Russell Martineau S.C., Mr. Kelvin Ramkissoon and Ms. Ramrattan, Attorneys-at-law for the Defendants. JUDGMENT Introduction 1. This was a claim for judicial review against an alleged decision of the Chief Fire Officer to induct Auxiliary Firefighters for training. In the course of this decision, the Court considered whether the decision of the Chief Fire Officer was illegal and whether he was obligated to adhere to the terms of the Public Service Commission Regulations. Page 1 of 32

2 Procedural History 2. By an Application without notice filed under Part 56 of the Civil Proceedings Rules, the claimant applied for leave to apply for judicial review of the decision of the Public Service Commission and the Chief Fire Officer whereby they had embarked on a process of selection of candidates for training and appointment to the office of firefighter in nonobservance of the law governing such selection and appointment. 3. The claimant sought the following items of relief: a. A Declaration that the decision of the Public Service Commission and the Chief Fire Officer whereby they have embarked on a process of selection of candidates for induction into training for appointment to the office of Firefighting in the Public Service contravenes, the procedural requirements set forth in Regulations 149 and 150 of the Public Service (Amendment) (No. 2) Regulations 1998, and is otherwise unlawful; b. A Declaration that the said decision is ultra vires, void and of no legal effect; c. A Declaration that if the Public Service Commission and the Chief Fire Officer induct the candidates into training to be firefighters and/or appoint them to the office of Firefighter in the Public Service, such induction and appointment will be ultra vires, null and void and of no legal effect; d. A Declaration that the conduct of the Chief Fire Officer in seeking and obtaining a variation of the Examination requirement of the Page 2 of 32

3 selection of candidates for appointment to the office of Firefighter, is ulta [sic]vires and void; e. An order removing into the Honourable Court and quashing the said decision; f. An injunction pending the hearing and determination of this claim, restraining the Public Service Commission and the Chief Fire Officer, their servants or agents howsoever from inducting the candidates into training and/or appointing them to the office of Firefighter in the Public Service; g. An order directed to the Defendants requiring them to observe the procedural and other requirements of the law governing the Selection of Candidates for appointment to the office of Firefighter. h. An Order directed to the Public Service Commission and the Chief Fire Officer requiring them to desist from using the selection process which they have employed in selecting the aforesaid candidates; and i. Costs. 4. On the 13 th May, 2015, the Court granted leave as sought, but adjourned the hearing of an application for an ex parte injunction and directed that this application be heard inter partes. 5. On the 19 th May, 2014, the Court heard oral submissions on behalf of the respective parties. On the following day, the Court dismissed the application for an interim injunction. The claimant appealed against the Court s order. The appeal was dismissed. Page 3 of 32

4 6. Pursuant to the grant of leave, the claimant filed its Fixed Date Claim on the 27 th May, The claimant relied on the supporting affidavit of Dave Sennon. This affidavit was filed on 27 th May, In opposition, the first defendant filed and relied on the affidavit of Marva Blackman filed on the 19 th May, The second defendant filed and relied on the affidavit of Nayar Rampersad filed on the 18 th July, In reply, the applicant filed three (3) affidavits on the 26 th September, 2014: Dave Sennon John Springle Jevon Perch Facts 7. There was no cross-examination in these proceedings and the facts in this matter were to be gleaned entirely from the affidavit evidence. In the paragraphs which follow, I have set out my findings of fact. 8. There are two (2) divisions in the Fire Service of Trinidad and Tobago. The first and more Senior Division is the First Division. There are approximately thirty (30) Officers in the First Division and two thousand and five hundred (2,500) officers in the Second Division which consists of officers of lower ranks Section 30 of the Fire Services Act 3 provides for the formation of Associations which represents the interests of each of the two Divisions. The claimant in these proceedings represents the Officers of the Second Division. The Second Division Association is duly 1 The first defendant filed a Notice of its intentions to read and use the affidavit filed on the 19 th May, See the principal affidavit of Dave Sennon at paragraph 9, as well as the affidavit sworn by Nayar Rampersad on the 18 th June, Provided for at Section 30 of the Fire Service Act Ch. 35:50 Page 4 of 32

5 recognized by the Minister of Finance as the appropriate association for the purposes of consultation and negotiation with the Personnel Department with respect to the terms and conditions of the Second Division Officers 4. Mr. Dave Sennon, the chief witness for the claimant, occupies the post of Acting Secretary of the Second Division Association. 10. In April, 2014, there were a number of vacancies in the ranks of the Second Division of the Fire Service. The Chief Fire Officer told the Court that there were ninety-nine (99) vacancies and two hundred and thirty-seven (237) consequential vacancies, which are vacancies which are created in consequence of promotions to higher ranks. 11. In June, 2014, the Chief Fire Officer, Nayar Rampersad arranged for members of the Auxiliary Fire Service to undertake a course of training as provided by Regulations 3 of the Fire Service (Terms and Conditions of Employment) Regulations The Chief Fire Officer published a Station Notice inviting Auxiliary Firefighters to apply for induction training in the Fire Service. The salient parts of the Station Notice are reproduced below: STATION NOTICE No. 5 of 2014 This Notice is not to be published in the media or communicate in any form to any individual or organization outside of the Fire Service unless permission is granted by the Chief Fire Officer. INDUCTION TRAINING AUXILIARY FIRE FIGHTERS Auxiliary fire-fighters who are eligible under Regulation 3 (1) (b) (I to iv) of the Trinidad and Tobago (Terms and Conditions of Employment) Regulations 4 See the principal affidavit of Dave Sennon at paragraph 8 5 See paragraph 11 of the affidavit sworn by Nayar Rampersad on the 18 th June, Page 5 of 32

6 1998, are invited to submit an application to be considered for enlistment for induction training in the Trinidad and Tobago Fire Service. Applications must be hand-delivered to the Divisional Fire Officer, Public Relations, Welfare and Research, Fire Service Headquarters, Port of Spain, on or before Friday March 21, Applications from personnel of the Tobago Division must reach the office of the Assistance Chief Fire Officer, Tobago, on or before the given date. 13. One hundred and sixty-six (166) Auxiliary Firefighters applied. They were subjected to two (2) sets of screening, an aptitude test, which included a practical test. Applicants were interviewed and placed on a merit list. Sixty-five (65) applicants were selected to submit to medical test. All of these events were conducted by Divisions of the Fire Service. The Public Service Commission played no part in this exercise On the 16 th April, 2014, Mr. Sennon wrote to the Chief Fire Officer on behalf of the Second Division Association referring to a process of Enlistment of Auxiliary Firefighters for the position of Firefighter Mr. Sennon made this complaint: The Fire Service Association of Trinidad and Tobago (Second Division) contends that the procedure adopted for the aforementioned Enlistment is contrary to the Fire Service Act and constitutes a unilateral variation of the Fire Service Terms and Conditions of Employment Regulations (1998) (Exhibited to the principal affidavit of Mr. Sennon as D.S.4 ) 6 See paragraph 12 of the affidavit sworn by Nayar Rampersad on the 18 th June, See paragraph 36 of the principal affidavit of Dave Sennon and the document exhibited as D.S.4 Page 6 of 32

7 Mr. Sennon complained as well that the Second Division Association had not been consulted. 16. The Chief Fire Officer responded by a letter dated the 25 th April, He assured Mr. Sennon that no attempt was being made to change the Fire Service Regulations. 17. The Chief Fire Officer also made this assertion: The selection of personnel from the Auxiliary Fire Service to undergo a course of training at the Fire School is in no breach of legislation [sic] Mr. Sennon made a similar complaint to the Chairman of the Public Service Commission, by way of a letter dated the 16 th April, He received no reply. 19. This letter was followed by a letter of Mr. Kenneth Thompson, attorney-at-law for the claimant 9. In the course of his letter, Mr. Thompson referred to a Memorandum dated the 27 th February, 2014, learned attorney-at-law for the claimant contended that this Memorandum constituted advice upon which the Chief Fire Officer relied The memorandum which was exhibited to the affidavit of Mr. Sennon was dated the 27 th February, It was sent to the Chief Fire Officer under the hand of the Permanent Secretary, Ministry of National Security on the subject of: Request for Approval for a Waiver of the Entrance Examination for Eligible Auxiliary Firefighters for Enlistment for Training for the position of Firefighter. 21. The Permanent Secretary in the Ministry of National Security made the following observation on the basis of advice from the Honourable Attorney General: 8 The exhibit to the principal affidavit of Dave Sennon as D.S.5 9 Exhibited as D.S.7 to the principal affidavit of Mr. Sennon 10 Letter of Mr. Thompson exhibited as D.S. Page 7 of 32

8 i. the Chief Fire Officer, pursuant to Regulation 3(1)(a) of the Fire Service (Terms and Conditions of Employment) Regulations, 1998, Fire Service Act, can exercise his discretion to adopt one of the options set out hereunder to facilitate the waiver of the Fire Service Examination for entry into the Trinidad and Tobago Fire Service: a. the Chief Fire Officer may recognize the course of training received by the Auxiliary Fire Fighters as equivalent to the course conducted by the Fire Service School (pursuant to Regulation 3(1)(a) of the Act; or b. in the event that the Chief Fire Officer is not inclined to recognize the course of training received by the Auxiliary Fire Fighters as equivalent to the course conducted by the Fire Service School which the Chief Fire Officer would recognize as a course equivalent to the course conducted by the Fire Service School. ii. the eligible Auxiliary Fire Fighters who are currently employed with the Auxiliary Fire Service on a part-time/hourly basis may be selected for enlistment in the training programme for Fire Fighters; and iii. the exemption of the examination would only apply to Auxiliary Fire Fighters who satisfy all other criteria as detailed hereunder: a. in accordance with Regulation 3(b)(i) to (iv) of the Fire Service (Terms and Conditions of Employment) Regulations, 1998: b. satisfactory performance in current position over the last year with recommendations for supervisors; Page 8 of 32

9 c. an aptitude test; d. interviews by a panel of Senior Fire Officers; and e. a medical examination for entry into the Trinidad and Tobago Fire Service. You may therefore wish to proceed with relevant action in this regard and you are kindly asked to keep the Ministry apprised of developments in this matter please. 22. The Chief Fire Officer, Mr. Rampersad accepted that he considered the advice which was provided by the Honourable Attorney General to the Permanent Secretary National Security and set out on the letter of the 27 th February, It was the contention of Mr. Rampersad that the advice of the Attorney General is advice in relation to Regulation 3(1)(a) of the Fire Service (Terms and Conditions of Employment) Regulations. 23. Mr. Rampersad at paragraph 23 of his affidavit, continued with his interpretation of the advice of the Attorney General in this way: The advice of the Attorney General does not deal with Regulation 12 of the Public Service Commission Regulations Exmination [sic] but with Regulation 3(1)(a) of the Fire Service (Terms and Conditions of Employment) Regulations which deals with qualifications to be eligible for appointment 24. By June, persons had already been interviewed and selected for training. According to the Chief Fire Officer, upon completion of training, he would write to the Director of Personnel Administration for the purpose of devising a practical test to be followed by interviews. Thereafter an order of merit list would be made from which 11 Date of filing of Mr. Rampersad s affidavit Page 9 of 32

10 persons may be appointed. Ultimately, the Chief Fire Officer will make appointments pursuant to his delegated authority 12. Affidavits in Reply 25. Three (3) affidavits were filed in reply: those of Dave Sennon, John Springle and Jevon Perch. 26. By his Reply affidavit, Mr. Sennon referred to a procedure which was set out in the Public Service Commission Regulations and claimed that the procedure had been followed for the last thirty (30) years. By his affidavit, Mr. Rampersad identified seven (7) steps which, have been followed as a settled practice. They are set out below: (a) Where vacancies arise, the Chief Fire Officer ( CFO ) is required to notify the Director of Personnel Administration of the vacancies in the office of Firefighter within 14 days of that vacancy (Regulation 149 (1) of the Public Service Commission Regulations ( PSCR ). (b) The Commission then causes the vacancies to be advertised in the newspapers (Regulation 149 (2) of the PSCR). (c) Applicants are invited to apply in person at specific venues on a specific date. Interested applicants apply in person at a specified venue where they present themselves for selection. Officers assigned by the Chief Fire Officer ( CFO ) take the necessary details including their certificates and height measurements. The CFO ensures that the applicants satisfy all the requirements for selection as a Firefighter and since 1998 under regulation 3 (1)(b) of the Fire Service Regulations 12 See paragraph 14 of the affidavit of Nayar Rampersad filed on the 18 th June, Page 10 of 32

11 which stipulates the qualifications a firefighter is required to have at the time of making the qualification (Regulations 149 (5) of the PSCR). (d) Applicants who qualified for selection are notified by the Commission that they have been selected as candidates and are then invited to write an examination conducted by the Commission and once successful in this examination, the Applicant is also subjected to a practical test devised by the Commission after consultation with the CFO (See Regulation 150 (2) of the PSCR). (e) Successful candidates are also interviewed by a Committee established by the Commission. (See Regulation 150 (4) of the PSCR) and subjected to a medical examination conducted by a doctor. The merits of the candidates are determined by the results of the practical test and interview (Regulations 150 (3) of the PSCR). (f) The successful candidates then commence training at the fire service school which training is conducted by the CFO (Regulation 3 (1) of the Fire Service Regulations). Upon completion of the training the Applicant is assigned a fire service number and appointed a firefighter. They receive letters of appointment from the Commission. 13 According to Mr. Sennon this procedure had been followed when he was selected, trained and appointed. 27. There was no application for permission to file further evidence for the purpose of contradicting Mr. Sennon. There was also no application to strike his evidence as being 13 See paragraph 3 of the affidavit in reply of Dave Sennon. Page 11 of 32

12 inadmissible in the context of a Reply affidavit. Accordingly, I accept the evidence as set out at paragraph 3 of the Reply affidavit of Mr. Sennon At paragraph 10 of his Reply affidavit, Mr. Sennon makes this allegation: It is clear that the CFO is intent on appointing the auxiliary firefighters who are currently undergoing induction training without genuinely following the procedure set out in Regulation 149 and 150 of the PSCR In support of this allegation, Mr. Sennon cites the example of Denique Greene and exhibited her letters from the Chief Fire Officer. The letter dated June 2 nd, 2014 from the Acting Divisional Fire Officer to Ms. Greene was exhibited in these proceedings without objection. This was standard form letter, indicating that Ms. Greene was required to present herself at the Fire Service School, Couva, to commence induction training. The letter specified what she was required to provide for herself. 29. The letter of June 2 nd 2014 was followed by a letter of June 4 th, At the penultimate paragraph of that letter, the Acting Divisional Fire Officer wrote: If you successfully complete the Induction Training Course you will be required to successfully complete a practical test. You will then be eligible as a candidate for appointment to the office of Firefighter 30. The defendants made no objection to the letter of June 4 th 2014 from the Chief Fire Officer to Ms. Greene. The defendants did not seek the Court s permission to file any affidavit to contradict the letter of June 4 th Accordingly, I accept the authenticity of this letter and that it had been sent to Ms. Denique Greene. Affidavit of John Springle 14 See paragraph 3 of the affidavit in reply of Dave Sennon. Page 12 of 32

13 31. John Springle swore his affidavit in Reply to the affidavits of Nayar Rampersad and Marva Blackman. Mr. Springle told the Court that he had been employed as an Assistant Chief Fire Officer between the years 2009 and 2012 and that from August, 2009 and August, 2010, he was the Divisional Fire Officer in charge of the Fire Service School. 32. Mr. Springle deposed that in the capacity of Chief Fire Officer he was very familiar with the process of selecting, training and appointing firefighters. Mr. Springle testified that selection, training and appointment were conducted in accordance with the Public Service Regulations and with the practice outlined in the affidavit of Dave Sennon. 33. Mr. Springle stated that during his tenure as Divisional Fire Officer in charge of the Fire School there was never an occasion where persons were trained in Fire Service School in order to qualify them as firefighters before the selection and appointment process were triggered. 34. At paragraph 5 of his affidavit, Mr. Springle narrated the events which led to his own appointment as a fireman. Mr. Springle stated that he responded to an advertisement in the newspaper, inviting suitably qualified persons to apply for the post of fireman. He then attended the Mon Repos Fire Station where his details were taken and copies of certificates received. Mr. Spingle was invited by the Commission to undertake an examination a practical test and an interview. Mr. Springle was then inducted for training in 1974 at the Fire Service School and was eventually appointed as a fireman. Affidavit of Jevon Perch 35. Jevon Perch swore an affidavit on the 26 th September, 2014, in reply to the affidavits which were filed on behalf of the defendants. The defendants made no objection to this affidavit. Page 13 of 32

14 36. Mr. Perch told the Court that he had been employed as a firefighter since At paragraph 4 of his affidavit, Mr. Perch made this assertion: there is no procedure for qualifying persons before the appointment process under the Public Service Commission Regulations or the Fire Service Terms and Conditions of Employment 1998 are followed 37. Mr. Perch then set out the narrative of his own appointment as Firefighter. He stated that he saw an advertisement in the newspaper inviting suitably qualified persons to apply for the position of Firefighter. Mr. Perch stated that he recalled the advertisement listing qualifications for the post. According to Mr. Perch, these included criteria such as age, height, character and educational requirements. The advertisement did not require training at the Fire Service School before an application was made. 38. Mr. Perch stated that he applied for the position, took his resume into the Mon Repos Fire Station on a specified date and his details were taken. Mr. Perch was then invited to write an examination by the Commission. He was then subjected to a practical test, he was interviewed, subjected to a medical test and in 2005 inducted as a trainee at the Firefighter School. After having completed training at the School he received a Service Number and began serving a probationary period as a Firefighter. 39. The Court accepts the evidence of Mr. Springle and Mr. Perch as un-contradicted statements of fact. Submissions 40. In these proceedings, the parties relied on the Written Submissions of their respective Senior Counsel. Mr. Maharaj learned Senior Counsel for the claimant and Mr. Page 14 of 32

15 Ramkissoon, learned Junior Counsel for the defendants supplemented the Written Submission with oral submissions. 41. It was the argument of learned Senior Counsel for the claimant that the Chief Fire Officer was acting illegally by circumventing and disregarding the provisions of the Public Service Commission Regulations and the Fire Service Regulations and the Fire Service Regulations Learned attorneys-at-law for the claimant argued further that the effect of the decision of the Chief Fire Officer would be to give Auxiliary Firefighters an unfair advantage In respect of the Public Service Commission, learned attorneys-at-law argued that the Public Service Commission retains supervisory control over the Chief Fire Officer in respect of his delegated authority Learned Senior and Junior Counsel for the defendants filed their Written Submissions on the 28 th November, For the defendants, learned Senior and Junior Counsel argued that there was no evidence of a decision by the Chief Fire Officer Learned Senior Counsel argued that the appointment of a Firefighter was a two tiered process. Learned attorneys-at-law for the defendants identified two sets of qualifications. The first were those required by Regulations 149(5) of the Public Service Commission Regulations 19. The second set of qualifications is those which are supervised by the Chief Fire Officer pursuant to Regulation 3 of the Fire Service Regulations. According to 15 See paragraph 12 of the Written Submissions of the claimant filed on the 15 th October, See paragraph 23 Ibid. 17 See paragraph 29 Ibid 18 Paragraph 6 of the Written Submissions of the defendants filed on the 28 th November, Erroneously referred to in the defendant s Written Submissions as Fire Service Regulations Page 15 of 32

16 learned attorneys-at-law for the defendants, the Chief Fire Officer in his affidavit made it clear that it was the Regulation 3 training that he had undertaken. According to learned attorneys-at-law this fell to the executive as employer and not for the Commission. According to learned attorneys-at-law, this had nothing to do with the Commission. 47. The claimant filed a Written Submission in Reply on the 28 th November, 2014 and relied on the Privy Council decision of Romain v. The Police Service Commission In his supplemental viva voce submission, learned Senior Counsel Mr. Maharaj relied on the decision of Romain v. The Police Service Commission 21 and argued that on the basis of that decision Regulations ought to be followed strictly unless the Regulations made an exception. 49. Learned Counsel, Mr. Ramkissoon for the defendants argued that under Regulation 3 of the Fire Service Regulations, the Chief Fire Officer wears the hat of teacher. 50. Learned Counsel referred to the decision of the Court of Appeal, in dismissing the claimant s appeal against my refusal of injunctive relief. At that time, the Honourable Justice of Appeal Smith had this to say: The Chief Fire Officer has indicated that he is going to be selecting personnel from the Auxiliary Fire Services to undergo a course of training at the Fire Services School. There is no suggestion yet of anybody applying for appointment to a post of firefighter under Regulation 145 of the Public Service Commission Regulations or of any appointment to the post of firefighter under Regulation 150 of the Public Service Commission Regulations. 20 Lovell Romain v. Police Service Commission [2014] UKPC Lovell Romain v. Police Service Commission [2014] UKPC 32 Page 16 of 32

17 As yet, there is no breach or threatened breach of Regulations 149 or 150 of the Public Service Regulations to allege that any ultra vires action has, or is being threatened. In the circumstances, we uphold the decision of the trial judge not to continue this injunction. Law 51. By Section 127(1) of the Constitution 22, a Service Commission is empowered, with the approval of the Prime Minister to delegate any of its functions to any of its members. 52. Part II of the Public Service Commission Regulations provides for appoints, promotions and transfers within the Public Service. 53. Regulations 149 of the Public Service Commission Regulations provides: 149. (1) The Chief Fire Officer shall advise the Director of a vacancy in the office of Firefighter within fourteen (14) days of that vacancy occurring. (2) The Commission may cause the vacancy to be advertised through the Press and electronic media inviting persons to apply. (3) A person when applying in response to the advertisement shall do so on the appropriate form to the Director. (4) The Director shall forward the applications to the Chief Fire Officer. (5) The Chief Fire Officer shall examine the applications and verify that the applicants qualify as candidates in accordance with the 22 The Constitution, Ch. 1:01 Page 17 of 32

18 qualifications prescribed in the Fire Service (Terms and Conditions of Employment) Regulations, 1998, and for the purpose of the examination may make enquiries from the Police concerning the character of any applicant (1) The Director shall notify all candidates for the office of Firefighter of the place, date and time at which they may present themselves for selection by the Commission. (2) A candidate who qualifies for appointment to the office of Firefighter is selected on merit by the Commission for appointment on the basis of a practical test devised by the Commission after consultation with the Chief Fire Officer and an interview. (3) The relative merits of the candidates are determined by the results of performance in the practical test and interview. (4) The Commission may establish a Selection Board consisting of the Deputy Chief Fire Officer, the officer in charge of the Fire Service School and the Director, or his representative to be not lower than an Executive Director, Human Resource Management, to interview candidates for the office of Firefighter and to make recommendations to the Commission on the candidates. 54. Fire Service (Terms and Conditions of Employment) Regulations 3. (1) A person who Page 18 of 32

19 (a) successfully completes a course approved by the Chief Fire Officer and conducted by the Fire Service School or completed a course recognised by the Chief Fire Officer as the equivalent of the course conducted by the Fire Service School; and (b) at the time of application (i) is of good character as evidenced by a testimonial from the Police and a member of standing in the community; (ii) is not younger than eighteen years nor older than thirtyfive years; (iii) is of good physique of at least centimetres in height in the case of males and 160 centimetres in height in the case of females; (iv) (A) possesses Caribbean Examination Council passes in General Proficiency, Grade I, II or III or Basic Grade I in English Language and General Proficiency Grade I, II or III or Basic Grade I or II in two other subjects; (B) General Certificate of Education at ordinary level with passes in three subjects one of which is English Language at Grade A, B; or (C) such other qualification assessed to be suitable by the Chief Fire Officer after consultation with the Permanent Secretary and the Chief Personnel Officer, is Page 19 of 32

20 eligible as a candidate for appointment to the office of Firefighter. (2) A person who successfully completes his apprenticeship training on terms and conditions as approved by the Chief Fire Officer and satisfies the requirements specified in sub-regulation (1)(b)(i), (ii) and (iii) is eligible as a candidate for appointment to the office of Firefighter. (3) A person who at the commencement of these Regulations (a) is a member of the Auxiliary Fire Service established under section 3 of the Auxiliary Fire Service Act; (b) satisfies the requirements specified in sub regulation (1)(b)(i) and (iii); and (c) (4) A person who has been performing the duties of the office of Firefighter on a fulltime, continuous basis (a) is a member of the Auxiliary Fire Service established under section 3 of the Auxiliary Fire Service Act; and (b) satisfies the requirements (i) specified in subregulation (1)(b)(i), (ii)and (iv) and has been performing the duties of Firefighter on a full-time, continuous basis under section 9 of the Auxiliary Fire Service Act and who, as at 31st December, 2002 would Page 20 of 32

21 have served in the office of Firefighter for a period of three or more years; or (ii) (iii) specified in sub regulation (1)(b)(i) and and has been performing the duties of Firefighter on a fulltime, continuous basis under section 9 of the Auxiliary Fire Service Act and who, as at 31st December, 2002 would have served in the office of Firefighter for a period of five or more years, is eligible as a candidate for appointment to the office of Firefighter. 55. In Cooper and another v. Director of Personnel Administration and another [2006] UKPC 37, the appellants sat an examination for promotion to the rank of police sergeant in the year There was a delay in the publication of the results of the examination. In 2003, the Police Service Commission issued a media release in which it disclaimed responsibility for the conduct of the examinations and the release of the results was under the purview of the Public Service Examination Boards. 56. In July 2003, the appellants commenced proceedings for judicial review and sought declarations that the setting of the examinations by the Public Services Examination Board was unconstitutional and that there had been an unreasonable delay in the publication of the results and further applied for an order of mandamus that the Director of Personnel should correct the papers and release the results. 57. In December 2003, Myers J found in their favour and declared that the appointment of the Public Service Examinations Board by the Cabinet was unconstitutional, illegal, null, void Page 21 of 32

22 and of no effect and that the Police Service Commission was the only authority responsible for the conduct of promotion examinations for the Police Service. 58. The Respondents appealed against Myers J s finding that the appointment of the Public Service Examination Board was unconstitutional. In January 2005, the Court of Appeal allowed the appeal and set aside the declarations and orders made by Myers J. 59. Thereafter, the appellants were granted final leave to appeal to the Privy Council. The Privy Council ruled that S. 123 of the Constitution declares that the power of appointment of persons to hold office in the Police Service, including appointments on promotion and transfer is vested in the Police Service Commission and that the sole responsibility for the conduct of examinations for the appointment and promotion of police officers lies with the Commission. How the Commission discharges the responsibility is a matter for the commission itself to determine in the exercise of its powers under the Commission s regulations. 60. It was declared that it is the sole responsibility of the Police Service Commission to appoint the examination board referred to in Regulation 19(2) of the Police Service Commission Regulations and that the setting and marking of the papers by the examination board is subject to the ultimate control of the Police Service Commission. The respondents were ordered to pay the appellant s costs before the Board and in the Courts below. 61. In Lovell Romain v. Police Service Commission [2014] UKPC 32, the appellant sat an examination for promotion to the rank of sergeant in In spite of having passed the exam, he was not promoted. Thereafter, on three occasions, he sought to get an exemption from the exam for promotion to the rank of corporal and was unsuccessful in all attempts. Page 22 of 32

23 62. In May 2002, the appellant also wrote to the Chief Personnel Officer of the Department of Personnel Administration asking her to use her good offices grant the exemption. A response was received in March 2005 wherein it was the view of the Chief Personnel Officer that the appellant should be exempted from having to sit the examination for promotion to the rank of corporal. 63. In April 2006, the appellant retained legal counsel whereby a pre-action letter was sent to the Director of Personnel Administration threatening to bring judicial review proceedings unless the respondent accepted the validity of the exemption as granted by the Chief Personnel Officer. The respondent replied in June 2006, and indicated that the Chief Personnel Officer had no power to exempt any officer from taking an exam and discussions were on-going and that the Appellant would be notified when a final decision was made. 64. In December 2006, the appellant filed an application to apply for judicial review. Gobin J held that the Chief Personnel Officer s letter was a grant of exemption and was binding on the Respondent. The order of Gobin J was set aside on appeal. 65. The appellant, Lovell Romain appealed to the Privy Council. Lord Toulson, delivering judgment on behalf of the Board identified this as the core issue: whether the provisions of the regulations regarding the procedure for making promotions are a comprehensive code or whether the respondent has a discretionary power to depart from the regulations 23 At paragraph 28, Lord Toulson said: 23 Lovell Romain v. Public Service Commission [2014] UKPC 32 at paragraph 4 Page 23 of 32

24 there is a public interest in the process for appointment of public officers such as police officers being clearly identified To permit the Commission to waive parts of the process when it thinks its appropriate would have the potential to create an uncertain and unequal playing field 24 the regulations are intended to provide a self-contained, comprehensive code governing promotions within the service Ultimately Lord Toulson upheld the arguments for the Police Service Commission in this way: For those reasons, the Board accepts the submission made by Mr. Peter Knox QC on behalf of the respondent that the regulations are intended to provide a self contained comprehensive code governing promotions within the service. 26 Issues 67. In these proceedings the following issues arise for the Court s determination: (i) Whether there is evidence that the Chief Fire Officer made a decision and embarked on a process of selection of Auxiliary Firefighters for induction into training for appointment to the office of firefighter. (ii) If so, whether such decision is illegal and ultra vires having regard to the provision of Regulation 149 of the Public Service Commission Regulations and the Fire Services (Terms and Conditions of Employment) Regulations. (iii) Whether the Chief Fire Officer sought and obtained a variation of the requirement of selection of candidates for appointment. 24 Ibid at paragraph Ibid at paragraph Ibid at paragraph 29 Page 24 of 32

25 (iv) (v) If so, whether in so doing the Chief Fire Officer acted ultra vires. Whether the Public Service Commission embarked on a process of selection of candidates for induction into training and (vi) If so, whether the action or in action of the Public Service Commission was unlawful. 68. In this application for judicial review, the claimant, the Fire Service Association stands mainly on the ground of illegality, contending that the Chief Fire Officer and the Public Service Commission acted illegally. 69. It was the evidence of the Chief Fire Officer himself that in April, 2014, the Chief Fire Officer issued a Station Notice inviting Auxiliary Fire Fighters to submit applications for enlistment for induction training in the Fire Service of Trinidad and Tobago. 70. It was also the evidence of the Chief Fire Officer that there were one hundred and sixty-six (166) applicants, all of whom were screened. They were also finger printed and subjected to an aptitude test. Of the total of one hundred and sixty-six (166) Auxiliary Officers, sixty-five (65) were selected. 71. The affidavit of the Chief Fire Officer had been sworn in June, The Court has no updated evidence and has not been apprised of any developments in respect of the training of the selected Auxiliary firefighters. 72. Against this backdrop the Court also received the evidence of two fire officers, John Springle and Jevon Perch. Both Firefighters testified without contradiction that they had been appointed according to procedures laid down in Regulations 149 of the Public Service Commission Regulations. Page 25 of 32

26 73. Both officers testified without contradiction that they had responded to advertisements published in newspapers, that their certificates were checked by the Fire Service, that they were subjected to tests and that ultimately they were sent for training at the Fire Service School. 74. The Court also considered a letter date the 4 th June, 2014, which had been forwarded by the Chief Fire Officer to Denique Greene. The letter stated clearly that upon completion of induction training the recipient of the letter will be eligible as a candidate for appointment to the office of Firefighter. 75. It was also accepted by all parties that the appointment process for Fire Officers is governed by Regulations 149 and 150 of the Public Service Commission Regulations and Regulation 3 of the Fire Service (Terms and Conditions of Employment) Regulations. 76. It is also accepted that the power to appoint Fire Officers had been invested in the Public Service Commission by virtue of Section 127 of the Constitution, but that this power had been delegated to the Chief Fire Officer by virtue of the Public Service Commission (Delegations of Powers)(Amendment) Order Having examined the provisions of the Regulations 149 and 150 of the Public Service Commission Regulations together with Regulation 3 of the Fire Service Regulations 28 it is my view that together these Regulations provide a comprehensive process for the selection of persons for the post of Fire Officer. 78. The process begins under Regulations 149(1) of the Public Service Commission Regulations 29 by collaboration between the Chief Fire Officer and the Director of 27 Legal Notice 105 dated the 24 th may, Fire Service (Terms and Conditions of Employment) Regulations, Fire Service Act Ch 35:50 29 Public Service Regulations, The Constitution of the Republic of Trinidad and Tobago Ch 1:01 Page 26 of 32

27 Personnel Administration, whereby the Chief Fire Officer advises the Director of Personnel Administration of the existence of vacancies in the office of Firefighter. 79. The Commission is empowered at that stage to advertise the vacancy. Persons are required to apply in response to the advertisement on an appropriate form to the Director. 80. The collaboration between the Chief Fire Officer and the Director of Personnel Administration continues as the Director forwards the applications to the Chief Fire Officer under Regulation 149(5) Regulation 149(5) 31 requires the Chief Fire Officer to examine applications and to verify that applicants qualify as candidates in accordance with the Fire Service Regulations. 82. Regulation 149(5) 32 impliedly refers to Section 3 of the Fire Service Regulations. This section is set out in full earlier in this judgment Regulation 3 34 is divided into two parts. The first requires the applicant to complete a course approved by the Chief Fire Officer. The second part provides a menu of qualities, both physical, academic and moral that the applicant must satisfy. A question which arises in this proceedings is whether the provisions of Regulation 3(a) ought to precede those of Regulation 3(b). 35 In my view the phrase at the time of the application appearing at Regulation 3(b) requires that the qualification listed at 3(b) be present when the applicant first makes the application in response to the advertisement prescribed at Regulation 149 of the Public Service Commission Regulations Public Service Regulations, The Constitution of the Republic of Trinidad and Tobago Ch 1:01 31 Public Service Regulations, The Constitution of the Republic of Trinidad and Tobago Ch 1:01 32 Public Service Regulations, The Constitution of the Republic of Trinidad and Tobago Ch 1:01 33 Pages of the Judgment 34 Fire Service (Terms and Conditions of Employment) Regulations, Fire Service Act Ch 35:50 35 Fire Service (Terms and Conditions of Employment) Regulations, Fire Service Act Ch 35:50 36 Public Service Regulations, The Constitution of the Republic of Trinidad and Tobago Ch 1:01 Page 27 of 32

28 84. The Regulations in fact, prescribed a two tiered process of qualification. Those prescribed by Regulation 3(b) 37 are those which are required first in time. These are necessary qualifications without which the applicant may not even enter the metaphorical door. 85. The second tier of qualification is one provided by the Chief Fire Officer. The applicant embarks upon a process of training either through the Fire School or through another course conducted at his discretion. The person who has proceeded through all the stages of responding to an advertisement and being screened by the Chief Fire Officer for qualification under Regulation 3(1)(a) 38 now enjoys the benefit of training. That person is required however, to complete his training successfully. 86. In determining the issues in this case, I was guided by the definition of Lord Diplock in CCSU, 39 the decision maker must understand correctly the law that regulates his decision-making power 87. I was also guided by the words of Lord Toulson in Romain v. The Police Service Commission. 40 There is a public interest in the process for the appointment of public officers being clearly defined and potential candidates knowing what it is. To permit the Commission to waive parts of the process when it thinks appropriate would have the potential to create an uncertain and unequal playing field 37 Fire Service (Terms and Conditions of Employment) Regulations, Fire Service Act Ch 35:50 38 Fire Service (Terms and Conditions of Employment) Regulations, Fire Service Act Ch 35:50 39 CCSU v. Minister for the Civil Service [1984] 3 AER Lovell Romain v. Police Service Commission [2014] UKPC 32 Page 28 of 32

29 88. Before applying the law to the facts of this case, I must first consider the submission which had been made on behalf of the defendants that here is no evidence of any decision on the part of the defendants. 89. I agree that there was no decision on the part of the Public Service Commission and that in itself is a ground for complaint. 90. In respect of the Chief Fire Officer, however, it is his own words which condemn him. At paragraphs 11 and 12 of his affidavit Mr. Rampersad deposed that he arranged for members of the Auxiliary Fire Service to undertake a course of training under Regulation 3 of the Fire Service Regulations. This was itself a decision which was susceptible to judicial review. 91. Mr. Rampersad also referred to the Station Notice which he published. 92. It is my view that the actions of the Chief Fire Officer, clearly circumvented the first part of the process identified at Regulations 149(1) of the Public Service Commission Regulations which require that the process begin with an advertisement at the direction of the Commission. I agree with learned attorneys-at-law for the claimant that to circumvent the procedure would have the effect of restricting the applications to those persons to whom the Station Notice was directed. 93. In this regard, I am guided by the principle expounded by their Lordships in Romain v. The Police Service Commission 41. The Commission and those to whom the Commission has delegated its authority are not permitted to waive parts of the process when they think it appropriate. 41 Lovell Romain v. Police Service Commission [2014] UKPC 32 Page 29 of 32

30 94. It is my view and I hold that the Chief Fire Officer by embarking on a process of selecting candidates for induction into training acted contrary to the provisions of Regulation 149 of the Public Service Commission Regulations and his actions were therefore illegal, null and void. 95. I am mindful that a different view was expressed by Justice of Appeal Smith when the claimants appealed my refusal of the injunction. It is my view however, that on that occasion a different issue engaged the Court of Appeal that is to say whether an interlocutory injunction was appropriate. Moreover, the Justices of Appeal did not have evidence of the Chief Fire Officer or the affidavits which were filed by the claimant in Reply. I therefore do not consider myself bound by the view expressed by the Court of Appeal, when they dismissed the claimant s appeal against my refusal to grant the injunction. 96. I turn now to consider the other issues. In my view, the Public Service Commission cannot be faulted in these proceedings. The omission was not on their part and the evidence suggests that the Chief Fire Officer acted entirely on his own. There is no requirement that the Chief Fire Officer is required to obtain the permission of the Commission every decision that he makes. 97. It is also my view that the Chief Fire Officer can in no way be faulted for seeking the advice of the Permanent Secretary of National Security, which is his line Ministry. 98. The only remaining issue for the Court to consider is the appropriate relief to be granted. In my view that the claimant would be entitled to the first declarations which it seeks at paragraph (a),(b) and (e) of the Notice of Motion, in so far as the declarations pertain to the Chief Fire Officer. Page 30 of 32

31 99. In respect of the order sought at paragraph (e), I have considered the effect of an order of certiorari on third parties, that is to say the Auxiliary Officers who had been selected for training. This argument had not been raised by learned attorneys-at-law for the defendants. The Court is left to conjecture as to why it had not been raised. It appears to me that the answer must be that such officers would suffer no detriment, by a grant of certiorari. If by the date of this order, their course of training had been completed, the auxiliary officers, as third parties, would have derived the benefit of training and would not have suffered any detriment. If their course of training had not yet been completed as, at the date of this order, they would simply have to revert, as a consequence of an order of certiorari, to their original position, thereby suffering no detriment. It is therefore my view that an order of certiorari would have no detrimental effect on the auxiliary officers as third parties Accordingly, it is my view and I hold that the claimants are entitled the order which they seek at paragraph (e). Orders a. A Declaration that the decision of the Chief Fire Officer whereby he has embarked on a process of selection of candidates for induction into training for appointment to the office of Firefighting in the Public Service contravenes, the procedural requirements set forth in Regulations 149 and 150 of the Public Service (Amendment) (No. 2) Regulations 1998, and is otherwise unlawful; b. A Declaration that the said decision is ultra vires, void and of no legal effect; Page 31 of 32

32 e. An order removing into the Honourable Court and quashing the said decision. Dated this 16 th day of December, M. Dean-Armorer Judge Page 32 of 32