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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. 2016-00861

BETWEEN

MICHAEL BLACKMAN

Claimants

AND

PUBLIC SERVICE COMMISSION

1STDefendant

THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

2NDDefendant

Before the Hon. Madam Justice C. Gobin

Date of Delivery: June 24, 2020

Appearances: -

Mr. Scotland, Ms. Jacqueline Chang, Attorneys at Law, instructed by Ms. S. Daniel for the Claimant

Mr. Sanjiv Lalla, Attorney at Law for the 1stDefendant

Ms. Nadine Nabbie, Attorney at Law, instructed by Mr. Brent James for the 2nd Defendant

JUDGMENT

1. In this matter the Claimant Michael Blackman claims that his right to equality of treatment

guaranteed by S.4 (d) of the Constitution was breached by the Public Service Commission, in matters

relating to his appointment/promotion to the post of Deputy Comptroller of Customs and Excise

(DCCE).

2. S.4(d) of the Constitution provides:

i. (4) It is hereby recognised and declared that in Trinidad and Tobago there have

existed and shall continue to exist, without discrimination by reason of race, origin,

colour, religion or sex the following fundamental human rights and freedoms

namely:

(d) the right of the individual to equality of treatment from any public

authority in the exercise of any functions.

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3. It has been established that a Claimant who alleges a breach of his S.4(d) right need only show that

he was treated less favourably than ones similarly circumstanced (comparators) or that they were

more favourably treated than he was. The court must consider the evidence and once a prima facie

case of violation of the right is raised, the onus shifts to the public authority to justify its decision

and to show that there is no breach of the right. Proof of mala fides is not a pre-requisite to a finding

of equality of treatment. The applicant may be entitled to redress even if the discriminatory result

is capricious or irrational. (Police Service Commission v Dennis Graham Civ App No. 143/2006

paragraphs 37 to 41)

Background

4. The material facts were for the main part undisputed. At the date of the commencement of the

proceedings, the Claimant had been a long-serving public servant of some thirty-seven years. He

began his career as a Lab Assistant with the Ministry of Education in 1977 then went on to join the

Division of Customs and Excise, Ministry of Finance and the Economy as a Customs and Excise Officer

I. Mr. Blackman settled into his career, achieved professional success, enhanced his academic

qualifications along the way and made contributions through his membership on important

committees serving at a national and in some instances international level. His service within the

Division was recognised, he received awards for his dedication, contribution and accomplishments

in 2001, 2002, 2004, 2007, 2008 and 2010.

5. The establishment of the Division of Customs and Excise consists of the Comptroller at the top, then

three DCCEs and then Customs and Excise Officers III, with lower ranking officers following. By

January 2012, two of the three positions of DCCE were vacant, having become so upon the

retirement of Mr. Kelvin Perez on 20th January 2010 and Mr. Richard Layne on 10/01/2011. The sole

DCCE in the office was Mr. Anthony Chandler and the retirement of the Comptroller Mr. Fitzroy John

was looming. (Mr. John eventually proceeded on pre-retirement leave in January 2014).

6. By circular memo dated 15/08/2011 the Director of Personnel Administration advertised a notice of

vacancy for the office of DCCE. Mr. Blackman who was at that date acting as a Customs and Excise

Officer III applied, as did several other officers in the division, some of whom were senior to him.

Mr. Blackman was invited to an interview and by letter dated 03/10/2012 he was advised that he

had been successful and had been placed on the OML at position no.3. It is agreed that the OML

was established on 08/05/2012 and expired on 07/05/2014.

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7. More than one year after the OML had been settled, the DPA notified the Permanent Secretary,

Ministry of Finance of it with a clear directive. The notice read:

“Public Service Commission has established an Order of Merit List for the office of

Deputy Comptroller of Customs and Excise (Group 3B) Customs and Excise Division,

Ministry of Finance and the Economy from which acting appointments/promotions

could be made.

This list which is valid for two (2) years comprises the undermentioned officers:-

Ms. Linda Harry

Mrs. Carol Spencer-Falby

Mr. Michael Blackman

Please be advised that the acting appointments/promotions must be made in

strict order-of-merit as obtained on the List”.

8. On the basis of the OML the only two persons who were immediately appointable or entitled to be

promoted to the two vacant DCCE posts (subject to the veto of the Prime Minister under S.121 of

the Constitution) were Ms. Harry and Mrs. Spencer-Falby. His placement at number three on the

OML indicated that Mr. Blackman had, despite the eligibility of persons senior within the division,

and although he was fourteenth on the seniority list had outperformed many including Mr. Ammar

Samaroo and Mr. Glen Singh. He was entitled to be promoted above the others in the division as

soon as a vacancy arose upon the retirement of Mr. Chandler (subject to the Prime Minister’s veto),

and he was entitled to an acting appointment as a prelude to his permanent appointment based on

the directive to the Permanent Secretary above.

9. In creating the OML and placing Mr. Blackman ahead of these senior officers, the Commission and

the Selection Board who had conducted the interviews presumably applied the criteria under

Regulation 18 (2) b. Regulation 18 provides:

18(1) In considering the eligibility of Officers for promotion, the Commission shall

take into account the seniority, experience, educational qualifications, merit and

ability, together with the relative efficiency of such officers, and in the event of an

equality of efficiency of two or more officers, shall give consideration to the relative

seniority of the officers available for promotion to the vacancy.

18(2) The Commission in considering the eligibility of officers under sub-regulation

(1) for an appointment or promotion shall attach greater weight to-

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(a) seniority, where promotion is to an office that involves work of a routine nature,

or

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

progressively greater and higher responsibility and initiative that is required for an

office specified under paragraph (a). (emphasis added)

10. The job summary with duties and responsibilities dated 24/05/2011 was provided to the Claimant

in a response to his attorney. (MB 27) The summary:

“An incumbent in this office provides managerial support to the Comptroller of

Customs and Excise. Work involves assisting the Comptroller of Customs and Excise

in the planning, organizing and directing of all activities in one of the functional

areas within the Customs and Excise Division. Work also involves contributing to the

formulation of policies, reviewing legislation ad making appropriate

recommendations; and performing administrative responsibilities concerned mainly

with the application of various laws as they apply to the work of the Division. Work

is performed, with imitative and independent judgment, within the broad

framework established government policies, procedures and applicable Customs

and Excise laws and regulations and is viewed for efficacy and adherence to policy

through reports and discussions with the Comptroller of Customs and Excise.

When regard is had to the weighty responsibilities of the office, the skills, disciplines and techniques

that were required for the post, which were set out in that document, it was clearly an office which

attracted 18(2) (b) considerations and it was therefore not surprising that seniority was not the

deciding factor.

11. It is a matter of record that even with the existence of two vacancies in the post of DCCE at the date

of the establishment of the OML, and the directive to the PS, Ms. Harry and Mrs. Spencer-Falby

were not promoted to the posts. They both proceeded to retirement without enjoying the benefit

of their achievements at the interview and without the fulfilment of their legitimate expectations

following the establishment of the OML. Both women subsequently filed actions alleging breach of

their constitutional rights in the circumstances of the neglect or refusal of the Commission to

appoint them to the office of DCCE on very similar grounds to Mr. Blackman’s. Their cases were

docketed to me. The matters were all listed together with Mr. Blackman’s. In those matters senior

counsel Mr. Mendes appeared for the Attorney General.

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12. I consider the conduct and outcome of those proceedings to be relevant to Mr. Blackman’s case.

Very early on in the course of the case management Mr. Mendes conceded from the bar table that

those Claimants at (1) and (2) on the OML should have been appointed to the posts of DCCE since

May 2012 about the time of the establishment of the OML. Consent orders were subsequently

entered in identical terms, the material ones being:

(1) As between the Claimant and the 2nd Defendant – the 2nd Defendant to pay the

Claimant the sum of $40,000.00 as vindicatory damages

(2) As between the Claimant and the 1st Defendant the Claimant is deemed to be

appointed to the post of DCCE (Group 3B) Customs and Excise Division, Ministry of

Finance effective 10th May 2012.

13. It is reasonable to infer that the agreement to pay a sum of money as vindicatory damages indicated

a concession that the constitutional rights of the Claimants had been breached, and that the award

of compensation was needed, at least, to reflect the importance of the right. It is therefore

important to look at the facts here and to determine if and to what extent Mr. Blackman’s case is

affected by those concessions and whether the peculiar facts of his case permit of a different

outcome.

14. Mr. Blackman’s complaint is that his right to equality of treatment was similarly breached. Although

he placed third on the OML he, too, was not appointed at the time when he ought to have been.

His argument as I now understand is Ms. Harry and Mrs. Spencer-Falby were entitled to be

appointed at the date of the OML to fill the two existing vacancies (as the consent orders

subsequently confirmed) and in accordance with the directive in the notice to the Permanent

Secretary. He in turn was entitled to act as DCCE when Mr. Chandler proceeded on pre-retirement

leave on July, 2013 and to be appointed to the substantive post at the date of Mr. Chandler’s

retirement on 29/11/2013.

15. His argument continues that had he been appointed to act in accordance with the OML and the

Commission’s directive at that earliest date in July or August 2013, he would have been entitled to

a legitimate expectation that he would have been in line, if not first in line, for consideration for the

appointment even to act as Comptroller of Customs or to the substantive post on the retirement of

Ms. Harry or Mrs. Spencer-Falby, who were the only two persons who could have had any superior

claim.

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16. Mr. Blackman was in fact recommended to act as DCCE by the Permanent Secretary on 27/12/2013

with effect from 02/01/2014. The Permanent Secretary says in making the recommendation he was

acting pursuant to S. 26 of the Regulations. The recommendation was contained in this letter:-

To: (Attention Mrs. Sellier)

Acting Comptroller of Customs and Excise

From: Permanent Secretary

Ministry of Finance and the Economy

Date: January 2 2014

Subject: Acting Appointment as Comptroller of Customs and Excise (Group 2B)

and Deputy of Comptroller of Customs and Excise (Group 3B), Ministry

of Finance and Economy

The subject matters refers.

The following recommendations for acting appointments with effect from January 02,

2014 have been forwarded to the Director of Personnel administration for approval:

(i) Mr. Ammar Samaroo, Customs and Excise Supervisor (Range 53F) as

Comptroller of Customs and Excise (Group 2B) vice Mr. Fitzroy John,

Comptroller of Customs and Excise on vacation leave from January 02, 2014

to May 01, 2014 preceding his compulsory retirement from the Public Service

with effect from May 02, 2014;

(ii) Ms. Gertrude Ann Browne-John, Customs and Excise Officer III (Range 47E)

as Deputy Comptroller of Customs and Excise in a vacant office consequent

on the retirement of Mr. Kelvin Perez, Deputy Comptroller of Customs and

Excise with effect from January 20, 2010;

(iii) Mr. Glen Singh Customs and Excise Officer III ( Range 47E) as Deputy

Comptroller of Customs and Excise in a vacant office consequent on the

retirement of Mr. Richard Layne, Deputy Comptroller of Customs and Excise

with effect from January 10, 2011; and

(iv) Mr. Michael Blackman, Customs and Excise Officer II (Range 40E) as Deputy

Comptroller of Customs and Excuse (Group 3B) in a vacant office consequent

on the retirement of Mr. Anthony Chandler, Deputy Comptroller of Customs

and Excise with effect from November 30, 2013.

Letters are enclosed for delivery to the officers.

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My memorandum of even reference dated December 30th, 2013 is hereby amended.

…………………………..

/f/Permanent Secretary

Ministry of Finance and the Economy

The recommendations were made subject to the approval of the Director of Personnel

Administration. As the Permanent Secretary has underscored, they were recommendations only.

He had no power to appoint.

17. Mr. Blackman claimed that the persons who were recommended for appointment by the Permanent

Secretary i.e. Mrs. Browne-John, Mr. Glen Singh, Mr. Ammar Samaroo, were treated more

favourably than he was. These persons were for the purposes of his constitutional claim “the

comparators”. In so far as Ms. Browne-John’s recommendation was concerned, the claimant says

she was not even qualified for the acting appointment because she did not have a required degree.

This was confirmed by the acting DPA Ms. Coomarie Goolabsingh in her affidavit when she simply

stated “It is to be noted that Mrs. Browne-John did not satisfy the training requirement of the office

of DCCE and was therefore not considered by the Commission for an acting appointment”.

18. This rejection of Mrs. Browne-John occurred after more than a year had passed since the Permanent

Secretary had made his recommendation on the basis of which Mr. Dhanpaul had been inviting

persons to assume duty. But the effective date of her recommendation was significant in assessing

Mr. Blackman’s complaint, it was from 20th January, 2010 i.e. the date of Mr. Perez’s retirement.

This recommendation was being made with no regard to the OML. Indeed Ms. Browne-John had

not applied for the post of DCCE when it was advertised. Mr. Blackman said that the

recommendation for her appointment was arbitrary and capricious in the circumstances. It was

demonstrated to be so by her eventual non-appointment.

19. In the case of Mr. Singh, he had placed 6th on the OML. Mr. Blackman had outdone him in the

interview having scored 985 to Mr. Singh’s 666, but he was being recommended to act

retrospectively from 10/01/2011(Mr. Layne’s retirement date) while Mr. Blackman was being

recommended to act with effect from 30/11/2013. These recommendations on the face of them

were eroding the entitlement which Mr. Blackman had earned and his reasonable and legitimate

expectations for upward mobility based on strict adherence to the Commission’s stated policy and

directive following the establishment of the OML. In other words his complaint was that while he

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was entitled to an acting appointment as a prelude to his promotion since July/ August 2013, upon

Mr. Chandler’s exit on pre-retirement leave, here he was almost eighteen months after he had

placed third on the OML, being less favourably treated than persons who had not made the grade

and they were being offered acting appointments which predated his. They were being offered

acting appointments to posts which should have been filled by Ms. Harry and Mrs. Spencer-Falby.

If the Commission felt that anything prevented promotion of the women on the basis of the OML

then, they should have simply moved to the next candidate on the list. No recommendation for an

acting post should have pre-dated his.

20. Mr. Blackman had a more serious complaint of unfairness and unequal treatment arising out of the

recommendation of the Permanent Secretary of Mr. Ammar Samaroo to act as Comptroller pending

the anticipated departure of Mr. Fitzroy John in May 2014. The case as I understand it is, had Mr.

Blackman been allowed to fill the vacancy left by Mr. Chandler’s departure, to have assumed the

acting position as a prelude to his appointment (even subject to the S. 121 veto power of the PM),

he would in the normal course of things have had a chance at the recommendation for the post of

Comptroller or to act in it as soon as an acting appointment became available.

21. Mr. Blackman contended that Mr. Samaroo, who had not made the top 3 positions in OML for the

less exalted post of DCCE, and while the OML was still subsisting, could not reasonably or fairly have

qualified to be considered for the post of Comptroller over him. The decision to recommend him

was therefore capricious, arbitrary and unfair.

The Defendants’ answer to the Claimant’s Claims of inequality treatment

22. The Defendants say that there is no merit in the claim first, because Mr. Blackman has no legitimate

cause for complaint since he was actually recommended at the earliest opportunity though along

with Ms. Browne-John and Mr. Singh. In other words he was deprived of nothing. I reject this

because as I have said before Mr Blackman was appointable at the date of Mr Chandler’s exit on

pre-retirement vacation leave as a prelude to his appointment and his assumption would have been

delayed to only because Ms. Harry and Mrs. Spencer-Falby should have filled the vacancies existing

before that date. But if consideration had to be given for any reason to have anyone else fill them,

he should have been the first choice for retroactive appointment to January 2010. He was not.

23. Neither party addressed on this, but in my opinion the Claimant was entitled to a recommendation

based not on S (26) of the regulations but on the provisions of S.24 (1) which imposed a statutory

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duty on the Permanent Secretary to make recommendation as a prelude to a substantive

appointment and in accordance with the directive of the Commission, which had already established

the OML applying S.18 considerations. The role of the Permanent Secretary under S.25 had already

been overtaken by the OML.

24. The Defendants’ second answer is that his claim should fail because the Mrs Browne John, Mr. Singh

and Mr. Samaroo are not proper comparators since they were not on the OML. The true

comparators they contend, are Ms. Harry and Mrs. Spencer-Falby who were similarly circumstanced

by virtue of their placement on the OML and moreover with neither of them actually being

appointed. This submission too, has to be rejected. The fact the three top listed persons on the

OML were unfairly treated does not affect Mr. Blackman’s claim. The Commission disclosed that

Mr. Samaroo and Mr. Singh placed 5th and 6th on the OML, and confirmed that Mrs. Browne-John

did not apply. But they were all senior officers in the Division, who belonged to the pool of senior

officers who were considered for promotion, whether rightly or wrongly. In the case of Mr. Singh

and Mr. Samaroo, they had been interviewed and had placed lower down on the rankings, on the

OML. These officers were all in my view similarly circumstanced and appropriate comparators for

the purpose of the exercise required by the law. Indeed Ms. Browne-John was recommended on

the basis of her seniority with little consideration for her eligibility otherwise. In the words of Lady

Hale in Annissa Webster & Anor v The Attorney General [2015] UKPC 10 at paragraph 24 page 10

their circumstances were “comparable, analogous and broadly similar”. The law did not require

them to be identical.

25. I found that a prima facie case of inequality had been established and it fell to the Defendants to

justify the treatment and to show that there had been no breach of the right.

26. The Defendants sought to do so on several grounds. They claimed first that the treatment of Mr.

Samaroo and Mr. Singh did not breach Mr. Blackman’s right to equality of treatment. Affidavits

were filed by Ms. Coomarie Goolabsingh, the acting Director of Personnel Administration and Mr.

Vishnu Dhanpaul the Permanent Secretary, Ministry of Finance. The Defendants’ case is that the

OML was established on 08/05/2012 and that almost immediately thereafter by letter dd.

10/05/2012 the Prime Minister was consulted on the proposed promotions of Ms. Harry and Mrs.

Spencer-Falby to the existing posts of DCCE, pursuant to s. 121 (4) of the constitution. There was

no response from the Prime Minister until March 2013 when some general concerns were raised

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about seniority. The Commission reviewed the matter but resubmitted the names in May 2013, a

year after the consultation had been initiated. There was no further word from the Prime Minister.

27. A crisis was looming at the Division with most of the senior persons including Ms. Harry and Mrs.

Spencer-Falby, the Comptroller Mr. John, Mr. Chandler the last DCCE in office approaching

mandatory retirement age. The Commission was powerless because it could not meet to take

urgent steps to deal with it. There was no appointed Deputy Commissioner. In those circumstances

and to avoid the crisis, Mr. Dhanpaul the Permanent Secretary was asked to make a

recommendation specifically for an acting appointment to the post of Comptroller, (according to

Ms. Goolabsingh). But in view of the critical shortage of senior staff with no DCCE’s in office, Mr.

Dhanpaul made the further recommendations that he did. The recommendations appeared to be

open ended. The Defendants say that in the circumstances they were forced to resort to S. 26 of

the regulations.

S. 26 provides:

(1) Where an acting appointment falls to be made otherwise that as a prelude to a

substantive appointment, the officer appointed shall –

(a) as a general rule be the senior officer in the Ministry or Department

eligible for such acting appointment;

(b) assume and discharge the duties and responsibilities of the office to which

he is appointed to act.

28. Mr. Dhanpaul’s purported resort to S. 26 in relation to Mr. Blackman cannot stand. The section

clearly excludes appointments to be made as a prelude to appointment. The Claimant was at the

date of Permanent Secretary’s recommendation already entitled to his substantive appointment

(subject to S. 121 (4). Mr. Blackman had since in July 2013 been entitled to an acting appointment

as a prelude to his appointment to the post. Mr. Dhanpaul did say that Mr. Blackman was

recommended based on the OML, but there was no need for Mr. Blackman to be recommended

along with the others. He already had a superior claim. The unfairness that the recommendation

disclosed was evident from the proposed retro-active dates of appointment. Ms. Browne-John and

Mr. Singh who were less appointable were being favoured. This was capricious and unfair.

29. But in any case, in my opinion Mr. Dhanpaul had no power to make the open-ended recommendations

that he made together with the requests for the dates of assumption of duty from the officers.

While Mr. Dhanpaul emphasised that he was simply making recommendations, he alleges that on

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the basis of the recommendations and even before the DPA approved them, Mr. Samaroo and Mr.

Glen Singh assumed duty. As it turned out, the Commission did not deal with the recommendations

until February 2015 by which date, Mr. Samaroo had been installed on the recommendation of Mr.

Dhanpaul for over a year. (I have found an inconsistency on the alleged date of Mr. Singh’s

assumption of duty).The recommendations were more than just such, they had far reaching

consequences.

30. Having considered the argument on s.26 I find that as a matter of law the Defendants could not rely

on that regulation to justify their actions. In the judgment of the Privy Council in the case of

Harinath Ramoutar v Commissioner of Prisons (2) Public Service Commission [2012] UKPC 29. Lord

Sumption considered Chapter III of the PSC Regulations and analysed the provisions as they relate

to appointments and the distinction between permanent appointments, acting appointments made

as a prelude to permanent appointment and acting appointments which are not a prelude to

permanent appointment.

31. At paragraph 15 (indicating why the court was rejecting certain submissions) Lord Sumption

elucidated:

It is apparent from Chapter III of the Regulations read as a whole that the criteria for making

permanent appointments and acting appointments as the prelude to permanent

appointments have no application to acting appointments where the person appointed is

simply standing in for permanent office-holder. Appointments of the latter kind are subject

to a distinct regime. In the case of permanent appointments and appointments intended as

the prelude to permanent appointments, seniority is one factor among many in the

assessment of candidates, but it is never conclusive, and for the more responsible

appointments it may be of very limited weight; whereas for purely acting appointments it is

stated to be the general rule. This reflects significant differences in the nature of these

appointments. The appointment of a stand-in on an acting basis is essentially an internal

reallocation of the duties of existing staff to meet the exigencies of the service. It is

temporary. It may fall to be made at short notice and sometimes for short periods. Those who

are chosen will necessarily be within the prison service already and have satisfied the criteria

for appointment to an office at the next level down. This is, as it appears to the Board, the

reason why the Regulations require acting appointments which are the prelude to permanent

appointments to be made on the same principles as permanent appointments, but impose

no corresponding requirement for the appointment of stand-ins on a purely acting basis.

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32. The Permanent Secretary could only have been recommending what Lord Sumption referred to as

stand-in appointments, which these did not appear to be .As I noted before they were open ended.

By assuming that he had the power to make recommendations under S. 26, and the Commission by

wrongly permitting him to do so, the Permanent Secretary effectively treated Mr. Blackman and Mr.

Singh and Mrs. Browne-John as persons eligible for temporary acting appointments, when Mr.

Blackman was entitled to an appointment as a prelude to appointment. This treatment was clearly

disadvantageous to Mr. Blackman. It may have been unintentional but it was the unavoidable

consequence.

33. The Defendants further sought to justify the resort to S. 26 because they believed that because the

Prime Minister had not responded on the recommendations for promotions of Ms. Harry and Mrs.

Spencer-Falby, their hands were tied. They could not fill the vacant spots, it seems they felt

constrained to abandon the OML in t meantime and with it any consideration of Mr. Blackman’s

claim as third in line to the substantive post. According to Ms. Goolabsingh, it was “because the

Commission was awaiting confirmation from the Prime Minister in respect of the initial

recommendations made for the promotion of the candidates nos. (1) and (2) on the OML for the

office of DCCE, Mr. Singh and Mr. Ammar Samaroo were recommended for acting appointments as

DCCE while the Claimants recommendation was based on the OML”.

34. Mr. Dhanpaul justified the S. 26 procedure because he said in September 2013 (that is almost 16

months after the first submission of the names and four months after the names were resubmitted)

“there was no response from the office of the Prime Minister”. He took the position that the lack

of response provided justification for the treatment of Mr. Blackman. It seemed they believed his

permanent appointment had to be put on hold. Ms. Goolabsingh sought to explain that because the

Commission “was awaiting confirmation” from the Prime Minister, the Harry and Falby

appointments were on hold, and consequently Mr. Blackman’s promotion to the substantive post

could not be made. The Defendants explanation/attempts at justification in this regard are also

rejected.

35. It is agreed that the post of DCCE is one to which S 121 of the Constitution applies. It states:

(1) Subject to the provisions of this Constitution, power to appoint persons to hold or

act in offices to which this section applies, including power to make appointments on

promotion and transfer and to confirm appointments, and to remove and exercise

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disciplinary control over persons holding or acting in such offices and to enforce

standards of conduct on such officers shall vest in the Public Service Commission.

(2) The Public Service Commission shall not remove, or inflict any punishment on, a

public officer on the grounds of any act done or omitted to be done by that officer

in the exercise of a judicial function conferred upon him unless the Judicial and

Legal Service Commission concurs therein.

(3) Before the Public Service Commission makes any appointment to an office to which

this subsection applies, it shall consult the Prime Minister.

(4) A person shall not be appointed to an office to which subsection (3) applies if the

Prime Minister signifies to the Public Service Commission his objection to the

appointment of that person to that office.

36. What the section provides is an opportunity to exercise his/her veto to the appointments. There

was no need to await the Prime Minister’s approval or “confirmation” and there was no obligation

to in any case wait for an inordinate length of time as it seems the Commission was prepared to do.

The legal requirement of consultation had been satisfied. Between 10 May 2012 and March 2013,

the Prime Minister had not signified her objection. When on the second occasion they resubmitted

the names, the Prime Minister still neglected to signify an objection. Between the time the

resubmission of the original two names in May of 2013 and up to the time of the retirement of the

two women, the Prime Minister had not signified an objection. In the circumstance the Defendants

cannot explain the departure from the OML and the resulting unfair treatment on Mr. Blackman on

the business of the veto. The law did not require the Prime Minister’s “confirmation” and there was

no justification for putting matters on hold while the Commission awaited a response. This is not to

suggest that courtesies to the office were not due.

37. No time is fixed for the exercise of the veto power but S.23 of the Interpretation Act is applicable in

the circumstances.

S. 23 Where a written law requires or authorises something to be done but does not prescribe

the time within which it shall or may be done, the law shall be construed as requiring or

authorising the thing to be done without unreasonable delay having regard to the

circumstances and as often as due occasion arises.

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38. Against the background of the dire state of affairs at the Division, I should think a period of no less

than 28 days or no more than three months, would have been sufficient time for an indication of an

objection of the Prime Minister, but these are only suggestions as to what might have been more

reasonable. The Commission having had no response, was in my opinion entitled to conclude that

there were no objections to the persons named and they were duty bound to proceed to confirm the

promotions of the persons on the OML. The reasons proffered for failing to make those

appointments, and the consequent failure to make Mr. Blackman’s appointment in turn are therefore

rejected. Again there was no justification for the treatment.

39. I have rejected the explanation as to the delay while they were awaiting word from the Prime

Minister but in my opinion even while the consultation was ongoing and even if it was felt the

Commission would give the Prime Minister more time than was reasonable, it was in any case

entitled to appoint Ms. Grant and Mrs. Spencer-Falby and (when his time came), Mr. Blackman, to

act in the vacant posts as a prelude to their permanent appointments subject to consultation with

the Prime Minister. S. 121(4) in my view provides for the Prime Minister’s veto in relation to the

appointment to office (substantive) as opposed to acting appointments referred to in SS (1).What

the Commission needed to do was to advise the persons who were being appointed to act in the

clearest terms including that the confirmation would be subject to the Prime Minister’s veto power.

The Commission was entitled to inform its actions on the principle that the veto power is subject to

constitutional rights including the right to equal treatment. (Permanent Secretary, Ministry of Foreign

Affairs & Prime Minister Patrick Manning v Feroza Ramjohn; PM Patrick Manning & PSC v Ganga Persad

Kissoon [2011] UKPC 20)

40. What is clear is that Mr. Blackman’s name was not submitted to the PM pursuant to S.121 even at

a time when all three offices were vacant. It was eventually submitted in February 2015 after his

attorney, had written a pre-action letter. The failure of the PM to communicate on the proposed

promotion of (1) and (2) by the time the third post had become vacant could not have affected his

position. Fairness and equality of treatment and the due process of the law required that his name

should have been sent irrespective of what had delayed the appointments of Ms. Harry and Mrs.

Spencer Falby.

41. The Commission’s position vis a vis Mr. Samaroo’s recommendation to act as Comptroller with

effect from 2nd January 2014 (he was subsequently appointed to the substantive position in May

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2014) was that there had been no advertisement, no interviews, no OML for the post of Comptroller

therefore Mr. Blackman could have had no claim to be considered for promotion or to act in that

the post. The OML for the post of DCCE was irrelevant. The Commission relied purely on S.26 to

justify the acting appointment to the highest post in the establishment of someone who had not

quite made the grade to the second highest post and it did it in on the basis of seniority exclusively.

42. The question then was whether the Commission’s application of the selection of Mr. Samaroo to act

as Comptroller purely on the basis of his seniority was justifiable even assuming that S. 26 permitted

Mr. Dhanpaul to make recommendations and that the recommendation could have installed him

even to act in the office. The answer in my view is that it was not. Lord Sumption’s guidance in

Harinath Ramoutar v Commissioner of Prisons and Public Service Commission provides further

guidance. He considered regulation 26 and the approach that should be adopted by the Commission

in exercising its powers thereunder. Lord Sumption said this:

“Regulation 26 does not impose an absolute rule of appointment by seniority but only a

“general rule” to that effect. In other words it is capable of being displaced by other

considerations”.

43. At paragraph 20 he explained:

“The courts do not sit as a court of appeal from the decisions of the Commissioner of Prisons

or the Public Service Commission, and are in no way concerned with the merits of

candidates for promotion or the micro-management of personnel decisions in the prison

service. The courts are, however, concerned to ensure that public bodies carry out the

functions that the relevant legislation assigns to them. The difficulty in this case has arisen

from the fact that the Prisons Commissioner and the Public Service Commission treated the

possession of a degree as a matter of threshold eligibility when it was not. They therefore

never performed their statutory function of considering Mr. Ramoutar's application on its

merits. They neither applied the general rule of selection by seniority prescribed by their

Regulations, nor considered whether to depart from the general rule in all the

circumstances of this case”.

44. Applying the guidance above to the facts of this case I find that in recommending Mr. Samaroo to

act as Comptroller with effect from 2nd January 2014 the Commission applied the general rule of

selection by seniority, finding Mr. Samaroo eligible and appointable without considering whether to

depart it in the circumstances of the OML and the fact of Mr. Samaroo’s placement on it at a level

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below Mr Blackman’s. It failed to consider the post in the context of s 18 (2) b and Mr Blackman’s

legitimate claims based on the establishment of the OML albeit for the post of DCCE. It limited itself

to making the recommendation on the basis of the general rule of seniority and in effect failed to

fully perform its statutory functions. The result was that Mr. Blackman was denied the opportunity

of the fullest consideration under the regulations of his claim to be considered for the acting

appointment to the post of Comptroller.

45. I do not suggest that Mr. Blackman was entitled to the appointment to the office. He had no

constitutional right to be promoted to the post of Comptroller. It may very well be that had the

Commission considered all the relevant factors they may have appointed Mr. Samaroo anyway.

What Mr. Blackman lost is the opportunity to compete for the post with Mr. Samaroo in

circumstances in which seniority ought not to have been the sole deciding factor. The Commission

may have misconstrued its power under the regulations, but the result is that the Claimant received

discriminatory treatment.

46. The treatment of Ms. Harry and Mrs. Spencer Falby was corrected by the consent orders. I do not

think that I can properly ignore the domino effect of the consent orders. They confirm that the

claimant would similarly have been entitled at least to his acting position in July 2013 and subject

to the veto to a substantive appointment in December 2013. A further adverse consequence of the

unlawful action of the Commission is that Mr. Samaroo who was unfairly considered above him for

the acting appointment was eventually appointed to the substantive post based on his seniority.

While Mr. Dhanpaul claims to have made recommendation only, the evidence established that Mr.

Samaroo, assumed office for a year before the Commission got around to approving the

appointments. The mere “recommendations” of the Permanent Secretary had an effect of making

acting appointments which in my opinion were not contemplated in the regulations. Lord

Sumption’s analysis was clear as to how stand-in vacancies were to be filled. Nothing such as what

occurred here was contemplated.

47. On the issue of financial loss, the Defendants say that Mr. Blackman has lost nothing because of his

non-appointment between the period January 2014 and September 2015. He had deliberately

declined to assume duty pursuant to Mr. Dhanpaul’s invitation following the recommendation. The

Defendant claimed that Mr. Blackman deliberately refused to assume the acting position because

he preferred to remain where he was to take advantage of the ability to earn significant income

from out postings, which would have been unavailable had he assumed the acting position of DCCE.

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The Permanent Secretary produced evidence of the salary and income earned by an acting DCCE

and compared it with what Mr. Blackman earned in overtime for the same period. It was established

that there was very little difference if any. The State’s position is that it was better for Mr. Blackman

not to assume duty and he chose to earn more by delaying the assumption.

48. Mr. Blackman agrees that he did not indicate his assumption of duty but said it was because he

insisted that he would do so only when he received formal notice from the DPA of his appointment

to the post for which he had been recommended. Indeed the Permanent Secretary confirmed that

he could do nothing beyond making the recommendations and the letter of recommendation itself

state it was subject to the approval of the DPA. This was the sole issue on which cross-examination

was required and in the course of it the PS confirmed that it was not unreasonable for Mr. Blackman

to insist on a formal communication from the DPA. Indeed Mrs. Browne-John similarly insisted on

the DPA’s communication.

49. Mr. Blackman was justified in my view in insisting on the formal letter of appointment. The fact that

his insistence allowed him to earn substantial sums while he waited does not affect his credibility.

Given that the PS could do no more than make recommendations, the evidence of his attempts to

persuaded Mr. Blackman to assume duty was irrelevant. This is especially so because in relation to

Mr. Blackman, given my finding that he was entitled to the acting appointment as a prelude to his

substantive appointment after Mr. Chandler left in August 2013, the PS had no role to play in his

assumption of duty. It was a matter for the Commission and the DPA should have notified him of

his appointment at that stage. I am not going to speculate about whether Mr. Blackman would have

similarly sought to defer his assumption had he been formally appointed by the Commission to act

in August 2013. I am also not impressed with the inconsistency in the alleged date of assumption

of duty of Mr. Glen Singh. Mr. Dhanpaul said it was 14/01/2014 and produced a document in

support, while Ms. Goolabsingh said he assumed on 30th June, 2015. Whether Mr. Blackman

eventually assumed office without formal approval from the DPA almost two years later did not

significantly affect his credibility. He was entitled to delay his assumption of duty. By that date he

had in hand a letter dated 23/06/2015 appointing him to act as DCCE.

Disposition

50. 1) There shall be judgment for the Claimant;

2) The court declares that the right of the Claimant to equality of treatment under S (4) d of

the Constitution was breached by the Defendants.

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3) On the issue of damages I have considered the guidance of the courts in Jorsingh v the AG

(1997) 52 WIR 504 at 505 and the more recent decision of the PC in Maharaj v Prime

Minister [2016] UKPC 37. I find the following awards appropriate;

i) The 2nd Defendant to pay vindicatory damages in the sum of $40,000.00;

ii) Damages for loss of opportunity in the sum of $100,000.00;

4) Mr. Blackman is entitled to compensation representing the shortfall in salary and income

if any that might have occurred as a result of the failure of the Commission to appoint him

to the substantive post of Deputy Comptroller of Customs and Excise with effect from July

2013 to the date of his appointment to the substantive post. (Parties to revert to the court

with the calculated sum); and

5) The Defendants are ordered to pay the Claimant’s costs of the claim to be assessed in

default of agreement.

Carol Gobin

Judge