Page 1 of 36 TRINIDAD and TOBAGO in the HIGH COURT OF

IN THE HIGH COURT OF JUSTICE San Fernando

H.C.A. NO. S-628 of 2004

IN THE MATTER OF THE JUDICIAL REVIEW ACT, 2000

AND

IN THE MATTER OF AN APPLICATION BY THE APPLICANTS FOR JUDICIAL REVIEW OF

(a) The refusal and/or failure of and/or the continuing refusal and/or failure of the respondent to appoint the applicants to the substantive monthly paid post of Road Officer I (Range 30) in the civil service, Ministry of Local Government, notwithstanding that the applicants have been required to perform and have successfully performed the duties and functions of the holder of the post of Road Officer I while employed in regional corporations and have been recommended by the chief executive officers and senior technical officers of such regional corporations for appointment to the substantive posts;

(b) The decision by the respondent to refuse to appoint the applicants to the said post notwithstanding the applicants’ written request of 9 February 2004 that they be so appointed.

BETWEEN

1. SURENDRANATH RAMNATH 2. DHANRAJ RAMSUBHAGH 3. SOOGRIM BELLARSARIO 4. ERROL LUTCHMAN 5. KAMEEL ALI 6. CHANKA KOON KOON 7. HAROLD BABOOLAL 8. ROY RAMNATH Applicants

AND

THE PUBLIC SERVICE COMMISSION Respondent

BEFORE The Honourable Mr. Justice James C. Aboud (Ag.)

Appearances: Mr. R. L. Maharaj SC, leading Ms. V. Maharaj for the applicants Mr. R. T. Armour SC, leading Ms F. Ali-Khan for the respondent

Dated: 29 May 2008

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BRIEF STATEMENT OF FACTS AND FINDINGS

The applicants are employees of various Regional Corporations. For different periods of time they have been carrying out job functions for their employers that are identical to those carried out by public servants in the government service. The respondent is constitutionally charged, among other things, with the responsibility to appoint public servants. There are vacancies in the public service for the posts that the applicants de facto perform and the respondent has a duty to fill the vacancies. The applicants allege that they have made written applications to the respondent for appointment as public servants, but have never been appointed. They say that, having regard to the functions they performed and the fact that 44 other similarly circumstanced employees were appointed, they had a legitimate expectation of a substantive benefit and that the respondent’s failure to appoint them is illegal, unreasonable, and unfair. The respondent says that it has acted in accordance with its regulatory procedures, in particular, the formal requirements of a proper written application. It contradicted the applicant’s evidence of having sent numerous written applications. The availability of an alternative remedy, namely the dispute resolution mechanisms at the Industrial Court, was also raised as a bar to relief.

HELD (a) Whenever there are two competing factual accounts in proceedings in which there has been full disclosure, and it is impossible for the court to determine which account is more credible, the account given by the respondent is to be preferred. R v Oxfordshire Local Valuation Panel, ex Parte Oxford City Council [1981] 79 LGR 432, 440 applied. (b) The applicants are unable on the facts to prove that they complied with the procedural formalities of an application to join the public service and also failed to prove that the 44 successful applicants were similarly circumstanced. (c) In order for the applicants to enjoy protectable rights they must first comply with the respondent’s regulatory and procedural requirements. Protectable rights or interests are created by statute or recognised at common law. In the

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latter case, they originate out of representations, whether express or implied, or by a settled course of conduct that must be clear and unqualified. The respondent’s conduct does not amount to such a representation. (d) While the duty of procedural fairness is a general duty and not to be confined by inflexible categories, the applicants cannot claim a breach of the duty without first acquiring protectable rights or interests. They cannot claim unfairness in their non-appointment until their applications for appointment are properly before the decision maker. (e) A right to be heard only accrues when there is lawfully something to be said and someone is legally obligated to listen. The applicants have no right to the supply of reasons because the respondent is not lawfully in a position to make a decision. (f) Only in exceptional circumstances will the courts recognise the creation of a legitimate expectation outside of the parameters of R. v IRC ex parte MFK Underwriting Agents Ltd [1990] 1 WLR 1545 , which requires clear and unambiguous representations. The legitimacy of the applicants’ expectation depended more on the conduct of the Regional Corporations than on the representations or actions of the respondent. (g) The avenue of redress in the Industrial Court is not an effective or convenient alternative to these proceedings. (h) The application for judicial review is dismissed.

JUDGMENT

FACTUAL BACKGROUND

1. The applicants are substantively employed in various capacities by different Regional Corporations. Save for the first applicant, who was originally employed by the Caroni County Council, the predecessor of the Couva-Tabaquite-Talparo Regional Corporation, the employment records of all the applicants originate in the

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Regional Corporations. The Regional Corporations were established in 1991, upon proclamation of the Municipal Corporations Act (Act No. 90 of 1990), and they inherited all the functions of the former County Councils. Prior to the passage of the Municipal Corporations Act, the County Councils were unincorporated local government bodies, accountable, in the main, to the Minister of Local Government. The Municipal Corporations Act was passed in accordance with a 1987 government policy of de-centralisation of the functions of local government. The Regional Corporations are independent statutory corporations. They are responsible for raising capital to meet their recurrent expenditure, and they operate bank accounts independent from the government’s Consolidated Fund. Save for their income and expenditure budgets, which must be approved by the Minister of Local Government and the Minister of Finance, and their annual accounts, which are subject to audit by the Auditor General, the Regional Corporations are, generally speaking, independent from central government. The appointment, transfer, promotion, and discipline of their employees is vested in the Statutory Authorities Service Commission, which is a commission independent from the respondent, and is governed by the statutory regime found in the Statutory Authorities Act, Chap. 34:01.

2. The applicants are permanent daily-paid employees of the Regional corporations. They were variously employed in the substantive posts of “Checker”, “Charge Hand”, or “Foreman”. In the course of their employment at the different Regional Corporations they said they were “required to perform” the functions and duties of Road Officer I (“RO1”). The office of RO1 is a monthly paid position in the Ministry of Local Government. There is no office in the service of the Regional Corporations known as RO1. A RO1 in the service of the Ministry of Local Government basically supervises the construction and maintenance of roads and bridges in distinct parts of the island. It is not known in sufficient detail whether the applicants voluntarily agreed to perform these functions as part of their general duties or whether their respective Regional Corporations commanded them to do so against their wills. It is obvious from the respondent’s evidence that the respondent

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did not require or command them to perform this function. In this sense they were deployed rather than employed in the post of RO1 by the Regional Corporations. It is also not known whether there is any distinction or overlap between the road building and road maintenance responsibilities of the Corporations and those of the Ministry of Local Government. The evidence in this regard is skeletal. It may be that the Regional Corporations had a responsibility to build and maintain minor or tertiary roads (commonly referred to as “traces”) for which they utilised the services of persons employed by them as “road supervisors”. I do not know. I was not told. More than likely, the applicants were carrying out the Local Government functions of a RO1, and may also have been performing other duties relative to their Corporation’s functions. In districts in which the applicants were deployed, which fell within the boundaries of the various Regional Corporations, the posts of RO1 were vacant. It can therefore rightfully be inferred that they were carrying out necessary Local Government functions in the absence of the vacancies being filled. The applicants, while performing the functions of a RO1, were paid the salaries and allowances that were due to them in their substantive posts as daily-paid, permanent workers in the Regional Corporations, together with a “supervisor’s allowance”. Even with the “supervisor’s allowance”, the salary of a daily-paid Corporation employee is lower than that of a monthly-paid, public service RO1.

History of deployment as RO1 by the Regional Corporations

3. The period under review commences with the applicants’ first deployment and ends with the filing of these proceedings on 5 April 2004. (a) The first applicant has continuously since 21 July 1994 performed the functions and duties of RO1 at the Couva-Tabaquite-Talparo Regional Corporation, an uninterrupted period of almost ten years and continuing. (b) The second applicant performed the functions and duties at the Penal-Debe Regional Corporation from 1996 to 2003, after which he was requested to

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assist another person appointed by the respondent to the post. He was deployed as a RO1 for an uninterrupted period of seven years, and no more. (c) The third applicant performed the functions and duties at the Penal Debe Regional Corporation from July 1996 to some time in 2003, after which he was requested to assist another person who was appointed by the respondent to the post. He was deployed as a RO1 for an uninterrupted period of seven years, and no more. (d) The fourth applicant performed the functions and duties at the Couva- Tabaquite-Talparo Regional Corporation from July 1997 to February 2004, at which time the respondent appointed another person to the post of RO1. He was deployed as a RO1 for an uninterrupted period of just under seven years, and no more. (e) The fifth applicant has continuously since November 1997 performed the functions and duties of RO1 at the San Juan- Lavantille Regional Corporation, an uninterrupted period of almost eight years, and continuing. (f) The sixth applicant has continuously since May 1994 performed the functions and duties of RO1 at the San Juan- Lavantille Regional Corporation, an uninterrupted period of ten years, and continuing. (g) The seventh applicant has performed the functions and duties at the Mayaro- Rio Claro Regional Corporation continuously from May 2000 to sometime in 2004, when he ceased this function. After the filing of these proceedings he was deployed in another public service function, namely Works Supervisor I. The respondent then appointed another person to the post of RO1. He functioned as a RO1 for a continuous period of approximately four years and no more. (h) The eighth applicant has performed the functions and duties of a RO1 at the Mayaro-Rio Claro Regional Corporation from June 2002 to July 2005, at which time he ceased this function. In November 2005 he was deployed as a Work Supervisor I. He functioned as a RO1 for a continuous period of three years and no more.

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History of written applications

4. The applicants say that over the course of many years they made numerous written applications to be appointed to the post of RO1 and, save for letters of acknowledgement of their applications, obtained no positive response from the respondent. In most cases they say that the Chief Executive Officers wrote letters of recommendation that they attached to their applications, particularly those that they made in or around 1998 and 2003. The first applicant says that he applied in 1982, 1985, 1989, 1992, 1997, 1998, 2002, and 2003 and he received and tendered into evidence letters of acknowledgement dated 7 January 1999 and 5 January 1999. The second applicant says that he applied twice in 1998 and he received and tendered into evidence letters of acknowledgement dated 4 January 1999 and 7 January 1999. The third applicant says that he applied in 1998 and 2003 and received and tendered into evidence a letter of acknowledgement dated 7 January 1999. The fourth applicant says that he applied in 1992 and 1998 and he received and tendered into evidence letters of acknowledgement dated 9 March 1993 and 4 January 1999. The fifth applicant says that he applied in 2003 and received no letter of acknowledgement. The sixth applicant says that he applied in 1987, 1991, 1996, 1998, and 2002 and he received and tendered into evidence letters of acknowledgement dated 3 September 1991, 23 August 1996, 11 January 1999, and 21 December 1998. On 18 January 1993 he also received a letter from the respondent that referred to a previous application and enquired whether he was still interested in an appointment. I was not told whether he replied. The seventh applicant says that he applied in 1999, 2002 and 2003 and he received no letter of acknowledgement. The eighth applicant says that he applied in 2002 and 2003 and received no letters of acknowledgement.

5. The applications were not hand-delivered to the respondent. Instead, they were delivered to the CEO’s of the Regional Corporations, with the presumed intention

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that they would be transmitted to the respondent. The applicants said that the applications were in fact forwarded by the CEO’s to the respondent but provided no proof beyond a bald assertion. An affidavit from one of the CEO’s would have put the matter beyond doubt. Evidence of these deliveries was not fleshed out in the affidavits and I can only surmise whether every alleged application was delivered to the respondent by the CEO’s of the Corporations. This fact is very important to establish because the respondent says that it only has the applications of three of the applicants on their files, namely those of the fourth, seventh, and eighth applicants, none of whom possessed the stipulated entrance qualifications. I will examine the respondent’s evidence on this point later in the judgment.

6. The applicants allege that it is the regular or settled practice of the respondent that Corporation employees such as the applicants, who perform the functions of RO1, are appointed to that post in the public service. They say that the settled practice amounts to a representation upon which they are entitled to rely. They supplied the names of 44 such Corporation employees and alleged unequal treatment in the handling of their own applications.

7. By their attorney’s letter of 9 February 2004 the applicants requested the Director of Personnel Administration (“DPA”) and the Permanent Secretary, Ministry of Local Government to supply the reasons, if any, for the refusal of the applicants’ applications. The letter indicated that a refusal to provide the reasons within seven days would be relied upon as evidence that there were no reasons for the refusal to appoint them. The applicants did not receive a reply from the respondent within the stipulated time and on 5 April 2004 they filed this application for judicial review of the respondent’s decision or action in not making the respective appointments.

8. On 19 April 2004 Bereaux J granted leave to the applicants to apply for judicial review to seek the following relief:

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(a) A declaration that the refusal and/or failure of and/or the continuing refusal and/or failure of the Public Service Commission to appoint each of the applicants respectively to the substantive monthly paid post of Road Officer I (Range 30) in the Civil Service (Technical class), Ministry of Local Government, notwithstanding that the applicants have been required to perform and have successfully performed the duties and functions of the holder of the post of Road Officer I while employed as permanent daily paid workers in Regional Corporations and have been recommended by the Chief Executive Officers of such Regional Corporations for appointment to the substantive post of Road Officer I is unlawful and is accordingly illegal, null and void and of no effect: (b) A declaration that the decision by the Public Service Commission to refuse to appoint the applicants to the post of Road Officer I notwithstanding the request of the applicants by letter dated 9 th February, 2004 that they be so appointed is unlawful and is accordingly illegal, null and void and of no effect; (c) An order of certiorari to remove into this Honourable Court and quash the decision mentioned in paragraph (b) above; (d) A declaration that each of the applicants are entitled to be appointed by the Public Service Commission to the post of Road Officer I; (e) An order to mandamus directing the Public Service Commission to appoint the applicants to the post of Road Officer I; (f) Alternatively, an order of mandamus directing the Public Service Commission to reconsider the applicants’ request for appointment made by letter 9 February 2004 in accordance with the judgment of the Court; (g) Damages including damages for the contravention of the applicants’ rights under sections 4 and 5 of the Constitution; (h) Costs; and (i) Such other orders, directions, or writs as the Court considers just and as the circumstances warrant.

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Respondent’s evidence

9. The opposing affidavits of the respondent told a different tale. Two were tendered; one from Michael Mahabir, the DPA, and the other from Gloria Edwards-Joseph, the Deputy DPA. These are their main points. The applicants cannot “act” in the post of RO1 because only the respondent has the authority to make such an appointment. If Regional Corporations appointed them to carry out public service functions, they were acting ultra vires the respondent’s regulations. There is no settled practice that employees of the Regional Corporations are appointed to the post of RO1 if they have been carrying out functions identical or similar to a RO1. Everything turns on compliance with the formal procedures for entry into the public service. The prescribed form must be directed to the DPA. All proper applications are put on file. Applications are either solicited or unsolicited. A solicited application is one made pursuant to a circular memorandum issued by the respondent and sent to all permanent secretaries and heads of departments (including the CEO’s of the Regional Corporations). They are also published in the daily newspapers. The circular memorandum is sent out as one mechanism to fill vacancies in the public service. The decision to solicit applications is solely made by the respondent. No advertisement or circular memorandum issued by any other department or government ministry is authorised, as the responsibility for making appointments to the public service resides solely in the respondent. Outlined in the memorandum and the advertisement are instructions, including the necessary qualifications, the deadline for submission, and the address to which the applications should be sent. Solicited and unsolicited applications are acknowledged. However, since around 2001, due to an acute shortage of staff, unsolicited applications have not been acknowledged.

10. Upon receipt, the applications are reviewed by the respondent to certify that they meet the required qualifications. Those that do are short-listed, and these applicants are invited to attend an interview on a given day and time. If there are too many

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applications the respondent will set an entrance examination and only the most successful candidates will be invited to the interview. The interviewed applicants are awarded marks based on their interviews and a selection board then prepares a report containing the marks and setting out its recommendations to the respondent. Based on the recommendations an Order of Merit list is prepared, and the candidates are appointed in accordance with their rank on the list and the number of vacancies to be filled. The primary focus of the respondent is the application made pursuant to an advertisement. If an application is made outside of the period specified in the advertisement, the applicant must re-apply whenever another advertisement is published. This is so because the respondent does not know whether those applicants are still interested in the post, or whether they are still available. The respondent has no system in place to verify whether applicants are still interested. Vacancies may arise after the exhaustion of an Order of Merit list. In such cases, where another list is not yet prepared, the respondent will consider recommendations from the Permanent Secretary, Ministry of Local Government, to appoint daily-paid employees on a temporary or acting basis, but the individuals must still meet the requisite qualifications.

11. With respect to the advertisements for the post of RO1, the applicants produced two memoranda. One was issued by the Permanent Secretary, Ministry of Local Government and dated 17 December 1997. It was specifically addressed to the CEO’s of the Regional Corporations for the attention of “all officers, including daily rated persons”. It invited applicants to send their applications directly to the Permanent Secretary by 15 January 1998. The requested qualifications were as follows: “ Supervisory experience in the maintenance and construction of roads such as may have been gained in the lower classes; and training as evidenced by a primary school leaving certificate, or any equivalent combination of training and experience”. The other memorandum was issued by the DPA on behalf of the respondent and dated 29 August 2002. It was addressed to Permanent Secretaries and Heads of Department, inviting them to bring its contents to the attention of their staff. The following words appear at the bottom of the memorandum: “Interested

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officers must send their applications through their Permanent Secretaries or Heads of Department no later than 20 September 2002 to:- Director of Personnel Administration, Cyril Duprey Building, 41-43 St. Vincent Street, Port of Spain”. In this memorandum the qualifications were upgraded. The minimum experience and training requirements were stated as follows: “Experience in the construction and maintenance of roads and bridges including some supervisory experience and training as evidenced by the completion of the First and Second Year Civil Engineering Technician Course or its equivalent; or any equivalent combination of experience and training”. The respondent stated that the National Certificate in Civil Engineering and the Higher National Certificate in Building Studies offered by the John Donaldson Technical Institute and the San Fernando Technical Institute are considered to be the equivalent of the Civil Engineering Technician Course. Further, an equivalent combination of experience and training is a matter that falls under the purview of the Chief Personnel Officer, who represents the State as employer, and not the respondent. The respondent further said that applicants who responded to the first memorandum ought to have re-applied to the second, which was properly issued by the DPA. It said that it does not accept any arrangement whereby Permanent Secretaries advertise vacancies, hold interviews, and make recommendations.

12. The claim of a settled practice was disputed. Of the 44 employees of Regional Corporations (alleged to have been “checkers”) who were appointed to the post of RO1, records exist of 32 of them. Their appointments go back to the early 1980’s. Those persons had all been interviewed in 1981 and placed on an Order of Merit list. There were at that time 31 vacancies. Another Order of Merit list was prepared in 1986. In 2000 some seven of these employees were added to the 1986 Order of Merit list. The respondent tendered copies of the various reports and resolutions. These appointments were all made in accordance with the procedures of the respondent set out above, namely, solicited application, short-listing, and interviews, and were not appointed in accordance with any settled practice to appoint long serving employees of the Regional Corporations. The respondent said

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that before the qualifications were revised in 2002 the employees of Regional Corporations fared better at the interviews, especially as a result of their practical experience. No interviews have been held since 2002 in respect of the Circular Memorandum of 29 August 2002, but the respondent says that it is now in the process of conducting interviews and making appointments to fill vacancies. Some have been filled since the filing of this application.

13. The letter of 9 February 2004 sent by the applicants’ attorney was received but because it was worded as a claim it was sent to the respondent’s complaints section for investigation and was not answered within the stipulated time. I accept that it was an oversight on the part of the respondent to have sworn in the first of its affidavits that it had not received the letter. The question of delay in providing reasons for non-appointment therefore does not arise.

ISSUES OF FACT TO BE DECIDED

14. Before identifying the issues of law to be decided in this matter I must address my mind to the disputes of fact that have unfortunately emerged on the affidavits. It will help to narrow the focus of legal enquiry. To my mind, there are two questions of fact: i. Whether any of the application forms, and if so, which of them, were delivered to the respondent; ii. Whether there is sufficient evidence to establish that the 44 Corporation employees appointed to the post of RO1 were similarly circumstanced to the applicants.

15. I note at the outset that the applicants have withdrawn their application to cross- examine the respondent’s deponents. I also bear in mind the words of Woolf J (as he then was) in R v. Oxfordshire Local Valuation Panel ex parte Oxford City Council [1981] 79 LGR 432 , 440 :

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In so far as there is a conflict between the accounts of what occurred…, this court, only having the affidavits before it, cannot resolve that dispute. The position is well established that as the [applicants] have the onus of proof placed upon them to establish their case, in those circumstances the proper course to adopt is to act on the evidence given on behalf of the [respondents]…in so far as it is impossible from the internal evidence to come to any conclusion as to which account is the more credible.

I must balance this seemingly severe but practical principle with those enunciated in more recent times, for example, R v. Lancashire County Council ex parte Huddleston [1986] 2 All ER 941,954 and Belize Alliance of Conservation Non- Governmental Organisations v. The Department of the Environment and Anor, (unreported) Privy Council Appeal No. 47 of 2003, per Lord Walker of Gestingthorpe, p. 22 , which hold respondents in public law matters to the highest possible standards of evidential disclosure. Obviously, a conflict of evidence that might have been resolved by full disclosure is qualitatively different from one in which there has been full disclosure. If not, respondents might selectively present evidence with a view to manufacturing conflicts that full disclosure might resolve, thus firewalling the veracity their deponents’ affidavits. In this matter, I find no reason to doubt that the respondent has made as full a disclosure as its records permit, and the Oxfordshire direction is therefore intact and applicable.

Proof of submission of applications

16. Cross-examination of the respondent’s deponents would have been useful, because the conflict on this issue pits the applicants’ account of the submission of dozens of applications against the respondent’s account of only receiving three. I must place more weight on written records unless the competing oral accounts are compelling, corroborative, and credible. Having tabulated all the exhibits attached to the affidavits of the applicants and scrutinised all the testimony I have come to the following conclusions: (a) There were two Circular Memoranda, the Permanent Secretary’s of 17 December 1998, and the DPA’s of 29 August 2002. The DPA’s memorandum was also advertised in the daily papers, but the dates of

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publication were not given. In the absence of any denial by the applicants, it is likely that the advertisement was published in a timelier manner than the memorandum, which arrived at the first applicant’s Corporation a few days before the submission deadline date. The arrival of the other memoranda at the other Corporations was not stated and I cannot assume that they were likewise late delivered. (b) There is adequate documentary proof that five of the applicants filled out applications but none of them bears any stamp evidencing that they were received by the respondent. In that sense they only verify that forms were filled out, and therefore constitute self-serving evidence. However, it would be parsimonious and mechanical for the court to disregard them for that reason. I have not found any evidence of dishonesty such as would undermine the allegation that the forms were filled out and submitted to the Corporation CEO’s. However, I am not certain whether the CEO’s actually delivered them to the respondent. The following therefore were proven has having been submitted to the CEO’s: First applicant : 16 October 2002 Second applicant : 17 December 1998 Third applicant : 12 January 1998 Fifth applicant : 26 June 2003 Sixth applicant : 5 January 1998, 9 October 2002, and one undated

There is no written application from the fourth, seventh, and eighth applicants. It follows from this, bearing in mind the deadlines for submission stated in both memoranda, that the first applicant filled out his form 27 days after the deadline stipulated in the DPA’s memorandum. The second applicant filled out his form 11 months after the Permanent Secretary’s memorandum. The third applicant filled out his form within the time stipulated in the Permanent Secretary’s memorandum. The fifth applicant filled out his form 9 months after the deadline stipulated in the DPA’s memorandum. Of the sixth applicant’s two dated forms, the first, in

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response to the Permanent Secretary’s memorandum, was filled out in time, and the second, in response to the DPA’s memorandum, was filled out 20 days after the deadline for submission. The date that the form was filled out is not necessarily the date that it was delivered to the CEO’s or the date when the CEO’s forwarded it to the respondent (if, in some cases, the CEO’s did so at all). (c) The DPA issued letters of acknowledgment in respect of the following applications: First applicant : 14 and 18 December 1998 Second applicant : 14 and 17 December 1998 Third applicant : 2 December 1998 Fourth applicant : 20 February 1992 and 15 December 1998 Sixth applicant : 2 August 1991, unknown date in August 1996, 8 December 1998, 16 December 1998 There is no record of any acknowledgement letters in response to any application(s) by the fifth, seventh, and eighth applicants. All these applications were either unsolicited or late submissions in response to the Permanent Secretary’s memorandum. Further, it appears that the respondent’s contention that prior to 2001 it did in fact acknowledge unsolicited applications is true, although a record or file of such acknowledgement letters was not accurately maintained. (d) The respondent says that it has received only three applications, namely from the fourth, seventh, and eighth applicants. It does not provide the dates of these applications. According to the affidavit evidence, these three applicants said that they submitted applications in response to the DPA’s memorandum, but they did not produce a copy of their forms. The respondent did not write a letter acknowledging receipt of these applications, but it has nonetheless deposed that they were received. I conclude from this either that the CEO’s of the respective Regional Corporations delivered these three applications, or that these three applicants personally ensured that they were delivered. The applications of

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the other applicants, according to my understanding, fall into one or more of three classes: late applications to the DPA’s advertisements, unsolicited applications, or applications pursuant to the Permanent Secretary’s memorandum. (e) The applicants, other than the fourth, seventh, and eighth applicants, have not proven that their applications were properly before the respondent, and I therefore have no choice but to accept the evidence of the respondent on this point. In relation to these three applicants, the respondent says that none of them possessed the stipulated minimum training and experience qualifications and, again, I accept this evidence.

Are the 44 successful applicants similarly circumstanced?

17. The applicants allege that 44 persons employed as “checkers” in the Regional Corporations were appointed to the post of RO1. They say that this proves that there is a settled practice to make such appointments. I note that none of the 44 appointees swore an affidavit. This would have given a tremendous insight into their circumstances. The respondent has records in relation to 32 of the 44 appointees, most of whose applications date back to the Order of Merit lists drawn up in 1981 and 1986. I do not think that these employees were similarly circumstanced to the applicants. Firstly, their applications were submitted to the respondent, leading to their subsequent short-listing, interview, and placement on the Order of Merit lists. There is no confusion as to whether or not they were delivered via the Chairpersons of the County Councils. Secondly, in the absence of evidence to the contrary, it is to be presumed that their applications were made in a timely manner, because they were processed. Thirdly, evidence of their qualifications, or of the qualifications of any of the other applicants in 1981 or 1986, was not adduced, so it is not known whether their qualifications were similar. Fourthly, 30 of the 44 employees were appointed prior to the 2002 revision of the entry qualifications, which naturally means that the class of eligible persons was then larger, because the standards were lower. The two remaining employees (in the

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respondent’s record books) who were placed on the Order of Merit list after 2002 cannot - because of their number - constitute a useful comparator class. Fifthly, the work experience of the appointees in relation to the function of a RO1 in the 1980’s is unknown. I note that the revised qualifications include experience in the construction of roads and bridges, and not only roads, as previously was the case. The applicants have not set out their duties in sufficient detail, and neither have they set out the duties of the successful applicants. In all the circumstances, the evidence is not compelling enough for the court to feel comfortable in holding that these employees were similarly circumstanced, or even that there was a settled practice to make appointments outside of the regulatory procedures. Events that occurred 20 years ago and then stopped cannot easily amount to a settled practice. My findings of fact on this issue obviate the necessity for an enquiry into the infringement of the applicants’ constitutional right not to be treated unequally.

ISSUES OF LAW TO BE DECIDED

18. With all due regard to Mr. Maharaj, who approached this dispute with his customary zeal and exhaustive scholarship, I believe that the many issues he identified can be boiled down to three essential areas of contention: (a) Whether the applicants have protectable rights or interests that entitle them to (i) procedural fairness or propriety, (ii) appointment to the vacant posts, or (iii) the provision of reasons for the respondent’s actions, the denial of any of which will amount to illegality, or a breach of the rules of natural justice; (b) whether the applicants have a legitimate expectation of a substantive right to an appointment; and (c) whether the applicants have an alternative remedy.

ANALYSIS OF ISSUES (a) Whether the applicants have protectable rights or interests that entitle them to (i) procedural fairness or propriety, (ii) appointment to the vacant posts, or (iii)

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the provision of reasons for the respondent’s actions, the denial of any of which will amount to illegality, or a breach of the rules of natural justice

Procedural impropriety and protectable rights or interests

19. The applicants submitted that the respondent acted illegally in that it did not correctly understand the law that governed the exercise of its powers towards the applicants. It failed to understand that the nature of the rights of the applicants was that they had protectable interests in public law that required it to act fairly towards the applicants. The respondent could not lawfully exercise its power of appointment to fill the post of RO1 without it first acting fairly towards the applicants.

20. In my view there are two distinct jurisdictional streams that flow through the landscape of this dispute. They need to be identified. The applicants are employed by the Regional Corporations, created under the Municipal Corporations Act, 1990. Section 82 of the Interpretation Act Chap 3:01 defines “municipality” to include all of the Municipal and Regional Corporations. Under the Municipal Corporations Act 1990, “commission” means the Statutory Authorities Service Commission (“SASC”) established under the Statutory Authorities Act, Chap 24:01. The SASC is empowered inter alia to appoint, transfer, promote, and discipline officers in the service of the Regional Corporations, and its functions are governed by regulations made under its enabling legislation. The respondent is a Commission created under section 120 of the Constitution. Section 121 empowers the respondent inter alia to appoint persons to hold or act in public service offices, among them offices in the Ministry of Local Government, and to transfer, promote and discipline those public servants. The respondent is empowered under section 129 to regulate its own procedure. The post of RO1 is a public service post. Regulation 4 (c) of the Civil Service Regulations Chap 23:01 provides that the civil service shall inter alia comprise a Technical Class who are the public offices specified in Part III of the

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schedule. Part III of the schedule identifies the post of RO1. The post of RO1 does not exist in the Regional Corporations.

21. Regulations 11 to 16 deal with the appointment, promotion, and transfer of public servants: 11. Every application for first appointment to the public service shall be addressed to the Director [ of the respondent ] on the prescribed form.

12. (1) Candidates for permanent appointment to public offices in the clerical or secretarial classes as prescribed by the Civil Service Regulations and to such other classes in the public service as the Commission may from time to time specify, shall be selected on the basis of written competitive examinations and interviews. (2) [ Provides for candidates who fail examination to re-apply and re-submit himself for examination. ] (3) A candidate who passes the examination for entry into the class or classes specified in sub-regulation (1) in any year but fails to obtain an appointment shall, if he wishes to be considered for a permanent appointment be required to re-apply and re-submit himself for examination in the following year, but the Commission may in such case as it shall think fit, waive the requirements of this sub-regulation.

13. (1) As soon as it is known that a vacancy will occur the Permanent Secretary or Head of Department shall communicate to the Director in writing and shall make his recommendations regarding the filling of the vacancy. (2) Where a vacancy exists for more than three months and no request has been made by the Permanent Secretary or Head of Department for the filling of the vacant post, the Director shall send to each Permanent Secretary or Head of Departments a statement of existing vacancies in his Ministry or Department requesting early recommendations for filling vacancies. (3) If recommendations, or satisfactory explanations for a lack thereof, are not received within a month, the Director shall report the fact to the Commission and the Commission shall require the Permanent Secretary or Head of Department to inform it of the reasons for failure to request the filling of the vacancy. (4) The Director shall, from time to time by circular memorandum or by publication in the Gazette, give notice of vacancies which exist in the particular service and any officer may make application for appointment to any such vacancy. Such application shall be forwarded through the appropriate Permanent Secretary or Head of Department to the Director, but the failure to apply shall not prejudice the consideration of the claims of all eligible public officers.

14. [ Provides that, where possible, appointments should made from the ranks of the particular service by competition ] 15. Where the Commission considers either that there is no suitable candidate already in the particular service available for the filling of any vacancy or that having

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regard to qualifications, experience and merit, it would be advantageous and in the best interest of the particular service that the service of a person not already in that service be secured, the Commission may authorize the advertisement of such vacancy.

16. The Commission may from time to time appoint one or more Selection Boards to assist in the selection of candidates for appointment to the public service and the composition of any such Board and the form in which its reports are to be submitted shall be in the discretion of the Commission.

22. Acting appointments in the public service are governed by regulations 25 to 28 of the Public Service Commission Regulations. Regulation 25 provides: (1) Where an acting appointment falls to be made whether as a prelude to a substantive appointment or not, the Permanent Secretary or Head of Department shall notify those officers within the Ministry or Department who are eligible for consideration. (2) The Permanent Secretary or Head of Department shall, after notification as required by sub-regulation (1), allow a period of seven days to elapse before forwarding any recommendations in relation to such acting appointment, for the purpose of allowing the officers of the Ministry or Department to make representations on the filing of such vacancy. (3) Where representations have been made by or on behalf of any officer in the Ministry or Department, the Permanent Secretary or Head of Department shall forward such representations in their original form to the Director. (4) Where a vacancy occurs in an office and an acting appointment falls to be made for a period not likely to exceed twenty-eight days as a result of sudden illness or other very special circumstances, the Permanent Secretary or Head of Department may appoint an officer to act for such period and the provisions of sub-regulation (1), (2), and (3) shall not apply to such acting appointment.

23. It will be seen from the above that the appointment of public servants is a regulated activity. The application for first appointment must be made to the Director, and on the prescribed form. The respondent has the option of seeking candidates from outside the service where a post needs to be filled, including the Regional Corporations. The application is made pursuant to the Director’s advertisement of vacancies. In cases where an application is unsuccessful or where the applicant was successful at the interview but not appointed he must re-apply. The language is indicative of a general policy of re-application. The power to promote is different from the power to appoint. The applicants are seeking appointment, not promotion. They are not public servants, and therefore have no right to promotion within the public service. The applicants’ case is that they ought to be appointed to the substantive post. They are not saying that they are eligible for an acting

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appointment. An acting appointment is an appointment of an officer employed by a Ministry or Government Department to temporarily carry out functions in a vacant public service post, and it can either be made as a prelude to a substantive appointment, in which case it has the character of a probationary appointment, or for a fixed term to meet any emergency caused by a vacancy. The language of the regulations suggests that acting appointments are made from the cadre of officers already in the public service, and not those outside it. The applicants’ legal status is not governed by the Civil Service Act, but by the Statutory Authorities Act. They are statutory strangers to the rights created under the Public Service Regulations unless they comply with its procedures for appointment, and fulfil the respondent’s administrative requirements. But strangers may also have rights, and the question is whether these strangers acquired any.

24. The main plank of the applicant’s alleged rights is their long years of service performing the functions of RO1. I place more emphasis on their long service as a qualification rather than their diplomas and certificates. I am not in a position to accurately judge whether one certificate is better than another, or whether any one or more of them is equivalent to or better than those identified by the respondent. Likewise, I am not in a position to accurately judge what combination of experience and training is ideal. I note that of the three applications that the respondent acknowledged receiving, none of these applicants possessed the requisite qualifications. The assessment of an applicant’s paper qualifications is a matter for the respondent and not this court. The qualifications are determined by the Chief Personnel Officer in his notional capacity as employer. Evidence of the weight or equivalency of the various certificates was not satisfactorily adduced. What I can say, however, is that some of the applicants, but not all, have numerous certificates, and seem serious enough about their self-development to be regarded as conscientious employees. However, their years of service are the most compelling of all the factors in their favour.

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25. Protectable rights, whether to procedural propriety, appointment, or the provision of reasons, do not materialize out of thin air. They are created, either specifically or by inference. They originate in either statute or at common law. The alleged rights in this case do not arise out of statute. A grant, such as is recognised at common law, can be made by a representation or by conduct that amounts to a representation, and it is usual that it is made by the body against whom the judicial review is directed. In this case, the applicants are relying on their peculiar status in the Regional Corporations as establishing their entitlement. The respondent has no control over the actions of these Corporations. When the applicants say they were required to perform the functions of a RO1, it does not mean that that the respondent had any part to play in their deployment. It seems to me, in the absence of evidence to the contrary, that they had the right to refuse to function as RO1’s, regardless of the requirements of their employers. I find it hard to believe that the applicants did not voluntarily accept these posts, especially since they would have obtained a “supervisor’s allowance” while performing the function. The allowance was likely to have been a pecuniary incentive to accept the functions. The applicants are not, by virtue of their employment in the Regional Corporations, employees of the government “by extension”, as contended by Mr. Maharaj. The position might have been different if the applicants were employed by the former County Councils. I do not know how such a cross-jurisdictional lifeline can be thrown to them when the legal autonomy of the Corporations is so clearly spelt out. In any event, no authority supporting “employment by extension” was cited.

26. Mr. Maharaj made a spirited and commendable attempt to stir the conscience of the court. Clearly, something has gone wrong in the careers of these hard working men, and the casebooks are filled with remedies to address almost every administrative wrong. He cited Council of Civil Service Unions v. Minister for the Civil Service [1985] 1 AC 374, 410 in which Lord Diplock declared that the law which regulates the decision-making process must be correctly understood and applied. He said that an uninformed decision leads to illegality. However, I find it difficult to ignore the meaning and effect of the regulations. They also constitute

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law that must be applied, and the applicants have not convinced me that the regulations were not correctly understood, or that there is some improper motive for insisting on compliance, or even that the respondent held out at any time that it would depart from strict adherence to the regulations. Far from it, the respondent has said that it is bound by its regulations. They are written in language as plain as day. Save for their labour, which might have been mistakenly undertaken, and, perhaps, regarded as an avenue for favourable consideration on an application for an appointment, I find it difficult to identify any misunderstanding of the governing regulations by the respondent. Mr. Maharaj gamely submitted that the respondent “had a residual power to dispense with the formalities of an application form and other procedural formalities in respect of its constitutional duties and functions, which included making appointments”. I cannot see where that power arises on the facts of this case. Its exercise would expose the respondent to complaints from public servants and other employees of statutory authorities, including the Regional and Municipal Corporations, who have complied with the formalities. The “lawful” appointment of the applicants, in the manner suggested by Mr. Maharaj, might unlawfully deprive other applicants not before the court. The fact that so many vacancies exist, and that the applicants have been performing functions that diminish the adverse effect of perpetual vacancies, is not beyond the reproach of this court. Clearly, the respondent has a duty to maintain up-to-date Order of Merit lists and to take every possible step to fill all vacancies in the public service. But that is a matter that involves a discussion about allocations in the national budget and the respondent’s manpower resources. It is more a matter of bureaucratic administration than public law, at least in the context of this case.

27. In order for the respondent’s decisions or actions to be illegal (whether by way of procedural unfairness or otherwise) the applicants’ protectable rights or interests must first crystallize. This occurs when an application is properly before the respondent and it is procedurally or legally mishandled. Mishandling includes the injection of unreasonableness or one of the other ingredients of a breach of natural

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justice. In this case, the applicants’ rights have not crystallized because, as I have already held on the facts, there is no proper application before the respondent.

Procedural fairness

28. Mr. Maharaj submitted that the applicants’ protectable interests include a legitimate expectation of a right of being heard. He said that the respondent must be taken to be aware of the functions being carried out by the applicants, and that the failure to appoint them without a hearing or the provision of reasons contravened the legitimacy of their expectations and affected their status, standing, and reputation. Again, the requirement of compliance with the regulations on the part of both parties does not evaporate, even if I assume that the respondent was aware of the applicants’ activities. Mr. Maharaj submitted that the principles of fairness are concerned with form, not substance. He said that the respondent’s powers must be exercised with a view to protecting the rights of affected persons. The key protection is provided by the representations and participation of these persons in the decision-making process. In the current state of the law it boils down to a fair hearing. A recent appendage to this right is the right to obtain reasons for an adverse decision.

29. Mr. Maharaj contended that as “potential appointees” the respondent had a duty (a) to consider them, (b) to inform them of the gist of the matters that it held against them, (c) to afford them an adequate opportunity to make worthwhile representations, (d) to genuinely consider those representations, and (f) to provide reasons for its decisions. In McInnes v Onslow Fane [1978] 1 WLR 1520 three classes of cases were distinguished in the context of procedural fairness: a. “forfeiture” or “deprivation” cases, where a vested interest (such as a licence to trade) has been withdrawn; b. “application” cases, where no interest yet exists, but is merely being sought (such as an application for a licence, passport, or a council house); and

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c. “expectation” cases, where there is a reasonable expectation of a continuation of an existing benefit which falls short of a right.

30. The case law has evolved since McInnes . The courts have progressively included situations not covered by the McInnes approach. De Smith, Woolf & Jowell (Judicial Review of Administrative Action 5 th ed ., pp. 404-407 ) argue that the time has come to recognize that the duty of fairness cannot and should not be restricted by artificial barriers or confined by inflexible categories. They posit that the duty to observe procedural fairness is a general one that governs a broad spectrum of situations.

31. Mr. Maharaj relied on a number of decided cases in which the inference of a fair hearing was based on the need to safeguard a right or interest. He submitted that the applicants’ interest in pursuing a livelihood and the interests of their personal reputation must be recognised. Among the cases cited were the following: R. v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 HL ; Barl Naraynsingh v Commissioner of Police (unreported) Privy Council Appeal No. 42 of 2003 ; R v Liverpool Corporation, ex parte Liverpool Taxi Fleet Operator’s Association [1972] 2 QB 299 ; R. v Gaming Board for Great Britain, ex parte Benain and Khaida [1970] 2 QB 417 ; R. v Secretary of State for the Home Department, ex parte Fayed [1998] 1 WLR 763 ; and Naidike v Attorney General of Trinidad and Tobago[2005] 1 AC 538, 546-547 . These decisions demonstrate that the jurisprudence in this area of the law is evolving in exciting ways, but none of them is on all fours with the facts before me. Doody concerned the vested interest of a prisoner to have access to certain statutory rights of parole, and a practice that had been published and subscribed by the Home Secretary. In this case, there is no equivalent statutory right or officially published pronouncement. Naraynsingh involved the revocation of a firearms users’ licence, which falls into the class of “forfeiture” or “deprivation” cases whereas the instant case is a pure “application” case in which the respondent denies receipt of an application. Liverpool Taxi Fleet Operators concerned a departure from a City Council’s clear public undertakings

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and past history of conduct. In Benain and Khaida the applicants had complied with procedural formalities. Fayed was a pure “application” case that turned on its unique facts, and involved a procedurally correct application. In Naidike the duty to act fairly was examined within the context of a claim for breach of a legitimate expectation that a work permit would not be revoked, as it led to the termination of Dr. Naidike’s employment in Trinidad and Tobago and compromised the welfare of an infant daughter.

32. This is what Lord Mustill said in R v Secretary for the Home Secretary, ex parte Doody [1994] 1 AC 531, 560:

What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf, either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what may weigh against his interest, fairness will very often require that he is informed of the gist of the case which he has to answer.

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33. The application of principles of fairness is not a mechanical exercise. It is obvious that each case will turn on its own merits and that the courts often adopt an intuitive approach. However, intuition is not a substitute for reason. It triggers an alarm, but some alarms are false alarms. The context of the respondent’s decisions or actions must be taken into account. Lord Mustill specifically drew attention to this. The overriding context in this case is the regulatory framework within which the respondent operates. The applicants are at the pre-“application for a licence” stage. They possess embryonic rights or benefits, not amounting to substantive rights or protectable interests, which are putatively derived from their years of service. It may well be that they are entitled to a right of procedural propriety in accordance with McInnes and the cases that expanded its scope, including the right to be informed of the gist of the reason for their non-appointment, but, unless they comply with procedural requirements, these rights are still born. As a matter of law, standards of procedural fairness must be applied across the board. They cannot be selectively imposed on the party who failed to make the appointment and not on the party who failed to submit a proper application. The special circumstances and context of this case include the following: (a) the applicants have not adequately proven compliance with the respondent’s procedural formalities or satisfactorily established the suitability of their qualifications; (b) they are first applicants for posts in the public service with inchoate claims falling short of rights; (c) they do not have better claims than the applicants from other Regional Corporations (or from within the public service), who may have been carrying out the same or superior functions, or who may already be on an Order of Merit list; and (d) the sense of the regulations is that it is mandatory for the respondent to process applications in accordance with specific procedures.

Entitlement to appointment to fill vacant posts

34. Mr. Maharaj argued that the entitlement to an appointment arose as a result of both procedural propriety and the legitimate expectation of a substantive right of appointment. I will deal with the legitimate expectation argument later in this

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judgment. The question now is whether as a matter of procedural propriety or fairness the applicants are entitled to be appointed. I answer it in the negative. In the first place, the right to an appointment is created by procedural compliance, and not by a history of satisfactorily performing the functions of RO1. If it were otherwise then rights to appointment might be manufactured by employees in many statutory corporations, who voluntarily agree to function in roles specifically intended to be filled by public servants. They might also be manufactured by the executives of the Regional and other corporations who direct their workers to carry out functions that are identical to those in the public service. The court is not blind to the fact that vacancies needed to be filled and that, in order to better serve the public interest, the applicants performed functions that ought to have been performed by properly appointed public servants. This demonstrates initiative on the part of the Corporations and a lack of initiative on the part of the respondent. However, that fact, by itself, cannot convert credentials into rights. It might result in favourable consideration after compliance with regulatory procedures, but it remains in the realm of moral rather than legal entitlement until the application is made and the qualifications are met.

The right to obtain reasons

35. Fayed is a case where a right to be heard and a duty to give reasons was held to exist and this despite a statutory framework that did not create such a duty. There, the Fayed brothers, well-known businessmen with substantial investments in the United Kingdom, had made applications for naturalisation as British citizens that were in the public domain. Their careers, both before and after their arrival in Britain, had been the subject of controversy and media interest. The refusal of the applications, and, more importantly, the failure to provide reasons for the refusal, had damaging implications to their reputations and investment interests. Their characters were put in doubt because, save for satisfying the Secretary of State’s nebulous discretion to refuse an application on the basis of “character” or “if he thinks it fit”, they had fulfilled every legal requirement for naturalisation. In a

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majority decision, the Court of Appeal held that the Secretary of State, in discharging his duty to act fairly, ought to have informed the applicants of any matters weighing against their applications and given them an opportunity to be heard. In already famous words Lord Woolf said (at page 776), “The days when it used to be said that a person seeking a privilege is not entitled to be heard are long gone”.

36. So-called “application” or “privilege” cases no longer occupy the bottom rung of the natural justice ladder. Principles of fairness, as recognised by de Smith, apply at every level. However, there is no template of fairness that can be uniformly applied to every fact situation. The facts in Fayed clearly demanded a right to be heard and a right for reasons to be provided. However, the facts of the instant case are set in a matrix quite different from those in Fayed . Firstly, the applicants have not complied with the respondent’s application procedure and entry qualifications. A right to be heard only accrues when there is lawfully something to be said and someone is legally obligated to listen. Likewise, reasons cannot be provided until the respondent is lawfully in a position to make a decision. Secondly, the applicants’ damaged reputation and status cannot provide the same justification for the provision of reasons as it did in Fayed . Their reputations are solely derived from the decisions or actions of the Regional Corporations, or from the applicants’ voluntary acceptance of the RO1 functions, and not from the actions or decisions of the respondent. Their status is that of employees of the Regional Corporations performing higher functions and receiving a “supervisor’s allowance”. They are de facto members of a higher-grade corporation employee, not proto-public servants. The deployment of many of the applicants has not been continuous. In some cases, their deployment ceased permanently. It is therefore doubtful whether they could compel the Regional Corporations to maintain their deployment and pecuniary advantages. Their status as higher-grade employees is therefore dependent on the decisions of Regional Corporations and/or their personal choices, and may be entirely capricious or situational. The respondent ought not to be held accountable for any damage that arises out of such unpredictable circumstances, or which may

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have been self-inflicted or occasioned by the decisions of the Regional Corporations.

(b) Whether the applicants have a legitimate expectation of a substantive right to an appointment

37. Mr. Maharaj submitted that the applicants had a legitimate expectation that the respondent would appoint them or, alternatively, that it would not refuse to appoint them save for good reason. It was said that the respondent induced the legitimate expectation by means of a settled course of conduct or practice in which the applicants were permitted by their employers, without objection from the respondent, to perform the functions and duties of RO1. It was submitted that the respondent knew or ought to have known that the applicants were performing these functions. The respondent by its actions and/or inactions or conduct was said to have represented to the applicants that they were capable to perform the functions and duties of RO1, thus verifying their eligibility for appointment. The creation of the legitimate expectation was fortified by the evidence that the respondent was aware that it, or its predecessors, had previously appointed persons like the applicants from the ranks of the Regional Corporations.

38. In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 408 (HL), Lord Diplock, having noted that the judicial review of administrative action had been, and was being, developed on a case by case basis, defined a legitimate expectation in this way: “To qualify as a subject for judicial review the decision must have consequences that affect some person (or body of persons) other than the decision-maker, although it may affect him too. It must affect such other person either: (a) by altering rights or obligations of that person which are enforceable by or against him in private law; or (b) by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker [ that the benefit or advantage ] will not be withdrawn

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without giving him an opportunity of advancing reasons for contending that they should not be withdrawn. (I prefer to continue to call the kind of expectation that qualifies a decision for inclusion in class (b) a “legitimate expectation” rather than a “reasonable expectation” in order thereby to indicate that it has consequences to which effect will be given in public law, whereas an expectation or hope that some benefit or advantaged would continue to be enjoyed, although it might well be entertained by a “reasonable” man, would not necessarily have such consequences.”

39. The law recognises that for an expectation to be legitimate it must be either induced by the decision-maker expressly, by means of a promise or undertaking, or implicitly, by means of settled past conduct or practice. In 2002, the English Court of Appeal in R v Newham London Borough Council ex parte Bibi [2002] 1 WLR 237 further clarified the definition of legitimate expectations, and gave a salutary warning. This is what Lord Justice Schiemann said: “17. We gratefully adopt what was said of the phase “legitimate expectation” by Lord Fraser of Tullybelton in Attorney General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629, 636 : ‘It is in many ways an apt one to express the underlying principle, though it is somewhat lacking in precision. In Salemi v MacKellar (No 2) (1977) 137 CLR 396, 404 , Barwick CJ construed the word ‘legitimate’ in that phrase as expressing the concept of ‘entitlement or recognition by law’. So understood, the expression (as Barwick CJ rightly observed) ‘adds little, if anything, to the concept of a right’. With great respect to Barwick CJ, their Lordships consider that the word ‘legitimate’ in that expression falls to be read as meaning ‘reasonable’. Accordingly ‘legitimate expectations’ in this context are capable of including expectations which go beyond enforceable legal rights, provided they have some reasonable basis: See R v Criminal Injuries Compensation board, Ex p Lain [1967] QB 864 .”

18. The case law is replete with words such as ‘legitimate’ and ‘fair’, ‘abuse of power’ and ‘inconsistent with good administration’. When reading the judgments care needs to be taken to distinguish analytical tools from conclusions which encapsulate value judgments, but do not give any indication of the route to those conclusions. In all legitimate expectation cases, whether substantive or procedural, three practical questions arise. The first question is to what has the public authority, whether by practice or by promise, committed itself; the second is whether the authority has acted or proposes to act unlawfully in relation to its commitment; the third is what the court should do.”

In that case, the Borough Council had made a promise to provide protected tenancies, mistakenly believing that it had a statutory obligation to do so, and later reneged on its promise when the law was clarified. Schiemann LJ adopted the Page 32 of 36

statement of Lord Fraser of Tullybelton that legitimate expectations can “go beyond enforceable legal rights, provided they have some reasonable basis”. I take that to mean that an expectation might be legitimate even though the representation on which it is based has no legal foundation, provided that, in all the circumstances, it is reasonable for the representee to believe that it was lawfully made. Schiemann LJ pointed out that a negative answer to the first practical question is usually dispositive of the case.

40. It is quite clear that for a representation to be foundational of a legitimate expectation it must be made by the respondent in terms that are clear, unambiguous, and devoid of qualification and that it must be made to the applicants and, if not, it must be otherwise reasonable for the applicants to rely on it: R v Inland Revenue Commissioners, ex parte MFK Underwriting Agents Ltd. [1990] 1 WLR 1545 .

41. In R. v Inland Revenue Commissioners, ex parte Unilever PLC [1996] STC 681 the representation relied upon was silence and inaction on the part of the Revenue in failing to point out and disallow a taxpayer’s numerous late claims. The Revenue was not aware that the claims were belatedly made, so the question of acquiescence or of a settled practice did not arise. The English Court of Appeal nonetheless held that a case of legitimate expectation was made out saying that “the categories of unfairness are not closed, and precedent should act as a guide not a cage” ( per Lord Bingham MR) and “the MFK category of legitimate expectation [ is ] essentially but a head of Wednesbury unreasonableness, [ and ] not necessarily exhaustive of the grounds upon which a successful substantive unfairness challenge may be based” per Simon Brown LJ). That case, however, was exceptional. In the words of Simon Brown LJ: “Any unfairness challenge must inevitably turn on its own individual facts. True, as Lord Templeman made clear in Preston v Inland Revenue Commissioners [1985] AC 835, 864 , it can only ever succeed in ‘exceptional circumstances’. True, too, the court must always guard against straying into the field of public administration and substituting its own view for that of the administrator. In these circumstances I am very ready to accept that rare indeed will be the case when a fairness challenge will succeed outside of the MFK parameters. It is certainly difficult to envisage many

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situations when, absent breach of a clear representation, a highly reputable and responsible body, such as the Revenue, will properly be stigmatised as having acted so unfairly as to have abused their powers – here, their power to accept late claims.”

42. The evidence before me is not exceptional enough to take the case outside of the MFK parameters. The representation relied upon was conduct. The conduct, in my view, cannot be described as unambiguous and devoid of qualification. The conduct was said to be the respondent’s acquiescence in “allowing” the applicants to function in the post of RO1, while making sporadic appointments of persons similarly circumstanced. The linchpin of the argument is the deployment of the applicants to carry out the functions of a RO1. The respondent had no part to play in that deployment. It is a stranger to the Regional Corporations’ actions. It is a stranger to the applicants’ mental deliberations in agreeing to accept those functions. I cannot get past the first practical question posed by Schiemann LJ in Bibi , namely, to what has the respondent committed itself? It seems to me that it has basically committed itself to carrying out its functions in accordance with a prescribed procedure. Its failure to fill vacancies in the public service as and when they occur cannot create legitimate expectations in those who are voluntarily plugging the holes caused by the vacancies.

43. I also have difficulty bringing the case within the generous ambit of Lord Fraser of Tullybelton’s definition of legitimate expectation in Ng Yuen Shiu . This is because I do not think that on the basis of the facts it was reasonable for the applicants to believe that, outside of the procedural formalities, they could legitimately expect an appointment as a matter of course. The appointments of the 44 employees cannot amount to a settled practice, as I have already held. This is not to say that principles of fairness are not involved, but the facts fall short of compelling this court to make the declarations and orders sought.

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44. In light of my findings, the question of a remedy alternative to judicial review is of academic interest only. In my opinion, the Industrial Relations Act Chap. 88:01 (“the IRA”) does not provide more effective or convenient remedies. In fact, the applicants have no remedies under that Act. I will briefly say why. The applicants are members of the daily paid section of the National Union of Government and Federated Workers (“the NUGFW”). The recognised majority union of monthly paid public servants in the Ministry of Local Government is the Public Services Association (“the PSA”). The applicants say that the NUGFW has refused to represent them because the post of RO1 is a monthly paid position. They say also that the PSA refused to assist them because they are not members of the union. Section 51 of the IRA prescribes that the only parties that can validly report a trade dispute to the Minister are the employer, the recognized majority union, or, where there is no recognized majority union, any trade union, of which the workers who are parties to the dispute are members in good standing. A trade dispute is defined in section 2 as a dispute that involves a dispute between workers and their employer and is connected to the terms and conditions of employment, and the dismissal, employment, non-employment, suspension from employment, refusal to employ, re-employment or reinstatement of workers. “Workers” must necessarily refer to persons who have a contract of employment with their employers and not to persons who work for employers who are not parties to the dispute. In other words, the employee/employer relationship must first be proven to exist. Here there is no relationship. The applicants have no rights under the collective agreement made between the Chief Personnel officer and the PSA, thus preventing the PSA’s representation. The NUGFW is not the recognised majority union of monthly paid public servants in the Ministry of Local Government. The applicants cannot report a trade dispute to the Minister in their own names. The doors to the Industrial Court are therefore shut. In any event, the legal issues raised in this matter are more effectively dealt with by the high court. The position would be otherwise if the applicants had the rights they claimed to have.

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CONCLUSION

45. I have no choice but to dismiss the application with costs certified fit for senior counsel. I do so with regret because the applicants stand just a few steps away from the doorway of legal protection. There is no prerogative writ or creative declaration that will not amount to a judicial encroachment. It may be that the respondent ought to sit down immediately with these unfortunate gentlemen and provide some guidance as to how best they can achieve an appointment to the public service. Such a conversation is long overdue.

James Christopher Aboud Judge (Ag.)

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