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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

Civil Appeal No. S -14 of 2012

H.C.C. No. CV2008-03218

BETWEEN

SAMOORATH SAHATOO

Appellant

AND

THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

Respondent

PANEL: A. MENDONÇA, J.A.

A. YORKE-SOO HON, J.A.

N. BEREAUX, J.A.

APPEARANCES: G. Ramdeen, K. Samlal and S. Mohammed for the

Appellant

R. Martineau, SC, R. Hector and S. Julien for the

Respondent

DATE DELIVERED: 15 October 2015

I have read in draft the judgment of Bereaux J.A. I agree with it and do not wish

to add anything.

A. Mendonça

Justice of Appeal

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I too agree.

A. Yorke-Soo Hon Justice of Appeal

JUDGMENT

Delivered by Bereaux, J.A.

[1] The issue in this appeal is whether the appellant Samoorath Sahatoo was

treated unequally by the Public Service Commission (the Commission) in

appointing him to the post of Road Officer 1 in the public service, contrary to

section 4(d) of the Constitution. The appellant, Mr. Sahatoo, alleges that he was.

He alleges that other officers were appointed in accordance with their position on

the merit list whereas, when his turn came, he was not.

[2] He contends that the established practice and procedure or the policy for

appointment in the public service is that an “order of merit” list of approved

candidates for the substantive post is compiled after examinations and interviews

are held. Appointments and promotions are made from the list, based on and in

accordance with the officer’s position on the list.

[3] He alleges that the policy is that acting appointments are made in

accordance with an officer’s position on the seniority lists. Seniority is also a

crucial factor in promotions. The effective date of his appointment to the post of

Road Officer 1 was 9th

August, 1993. He points to ten officers, appointed before

him, who placed below him on the merit list in 1986; after a written examination

in 1985 and after interviews in 1986 were conducted for the post of Road Officer

1. However, these ten officers were all appointed to the post of Road Officer 1

before him and, based on their seniority, obtained subsequent promotions ahead

of him.

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[4] The ten officers were Azim Hosein, Rabindranath Gokool, Hadeed

Mohammed, Daniel Abraham, Raymond Seuchan, Ravindranath Gangoo,

Latchman Maraj, Winston Regis, Azim Bassarath and Mahindranath Ramnanan.

Azim Hosein was appointed Road Officer 1 on 1st July 1991, Rabindranath

Gokool was appointed on 23 June 1993 and Hadeed Mohammed was appointed

on the 7th

August 1993. The other officers were all appointed on 8th

August 1993,

one day before the appellant.

[5] The judge dismissed the constitutional motion on the basis that the ten

officers were not true comparators with the appellant.

[6] It is necessary to consider the evidence in some detail. Three affidavits are

relevant. The affidavit of the appellant filed on 22nd

August 2008, the affidavit of

Ms. Dawn Harding filed in reply on 1st December 2008 and the appellant’s

affidavit in answer, filed on 5th

February 2009. Mr. Heathcliffe Gomez also

swore to an affidavit on behalf of the Attorney General. His evidence has no

bearing on the outcome of this appeal.

The appellant’s evidence

[7] Mr. Sahatoo deposed that he applied for the post of Road Officer on 14th

July 1984. It was a post on the permanent establishment of the public service. He

wrote an examination in February 1985 and attended a follow up interview on

23rd

June 1986. He placed sixth on the order of merit list of approved candidates.

Mr. Sahatoo was informed that he had been placed on the merit list but was not

told his order of placement. On 7th

August 1987, he received correspondence

from the Service Commissions Department asking him to call its office

immediately upon receipt of the correspondence. He said he contacted the office

in person and was told that the purpose of the correspondence was to update the

merit list.

[8] Mr. Sahatoo received correspondence dated 7th

May 1990 from the

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department enquiring whether he was “still interested in a temporary appointment

as Road Officer 1” and asking that if he were interested, he should contact the

department as early as possible, in person or by telephone.

[9] He visited the offices of the Service Commissions Department. He met

with one Ms. Ellis. He confirmed his interest in being appointed as Road Officer

1. He deposed that he “asked Ms. Ellis whether this temporary appointment

could lead to a permanent appointment. Ms. Ellis indicated that temporary acting

appointments did not give the appointee any special claim to promotion as

promotion/permanent appointment was based on and in accordance with an

officer’s place on the order of merit list”.

[10] He said that the temporary appointment was for a short period and since it

would not affect or assist his “promotion/appointment prospect”, he indicated

that he would wait for a longer acting appointment. He added that:

“I did not indicate that I was not interested in temporary

appointment on the whole but merely this particular temporary

appointment which was too short in duration. Ms. Ellis had

informed me and I verily believed that there were other vacancies

which needed to be filled and other acting opportunities would

come up and I was therefore confident that I would not be

adversely affected by waiting for a short while.”

[11] Mr. Sahatoo’s contention that he visited the offices of the Service

Commissions Department in response to the Commissions’ letter of 7th

May,

1990, is inconsistent with his letter to the department dated 21st May 1990. In that

letter (in which he referred to the letter of 7th

May) he spoke of telephoning the

offices of the Service Commissions Department on the 14th

May, 1990 to indicate

his continued “interest in the job”. He then wrote the letter of 21st May 1990 to

confirm his telephone conversation expressing his “willingness to take up the

appointment at your earliest convenience”.

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[12] His follow up letter dated 12th

August 1990, produced no response. In

September 1992, he visited the offices of the Service Commissions Department in

response to a telephone call from Ms. Ellis who had informed him that his name

had been struck off the merit list.

[13] In the course of his conversation with Ms. Ellis he asked her “whether

those officers who had gained temporary appointments would have a competitive

edge. Ms. Ellis indicated that permanent appointments were based on the ranking

and placement of officers on the order of merit list.”

[14] He eventually started work as a temporary Road Officer 1 on 19th

March

1993 and on 18th

September 1995, was appointed to the permanent post of Road

Officer 1 with effect from 9th

August 1993. He was eventually appointed to act as

Road Officer II on 30th

November 1998 on a temporary basis. He was again

appointed to act as Road Officer II in July 2004. He continued to act in that post

until he was appointed to the substantive post, with effect from 26th

June 2004.

[15] By letter of 18th

February, 2008 pursuant to the appellant’s request under

the Freedom of Information Act Chap 22:02, the Commission confirmed the dates

of appointment of officers appointed to the post of Road Officer 1. He stated that

the list showed that many of the officers were appointed to act before him and that

ten (10) officers, referred to in paragraph 3 above, who were placed lower than

him on the 1986 merit list were appointed permanently to the post of Road Officer

1 before he was. All ten of them started acting in the post of Road Officer 1

before he took up his acting appointment.

Evidence on behalf of the respondent - Dawn Harding

[16] Ms. Harding, the Deputy Director of Personnel Administration, confirmed

that Mr. Sahatoo was placed sixth on the merit list after he wrote the 1985

examination and after he was interviewed for the post in 1986. She deposed that

substantive appointments to a particular post in the public service can only be

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made if there is a vacancy in the particular post. Until then, there can be no

appointment to that post.

[17] There are occasions however when a post becomes “vacant” temporarily,

for a period of time, for example, when the holder of the post goes on sick leave,

vacation leave, pre-retirement leave or is appointed to act in a higher post. When

these temporary vacancies arise, the Commission may make temporary

appointments to the post from the names that appear on the merit list for the

particular post.

[18] To fill such temporary vacancies, the Commission would write those

applicants, whose names appear on the order of merit list, enquiring whether the

applicant would be interested in a temporary appointment.

[19] The Commission wrote to Mr. Sahatoo “on occasions” inviting him to

attend its offices so as to ascertain from him whether he was still interested in the

post. The Commission also wrote to him “on occasions” specifically asking

whether he was interested in temporary appointments. The purpose of those

letters was not to update the order of merit list as he claimed but was to confirm

whether he was still interested in the post of Road Officer 1. It was also to

confirm whether he may have been interested in a temporary appointment. As his

letter of 7th

September, 1992 demonstrated Mr. Sahatoo was interested in

employment in the form of “longer term arrangement rather than … a short

stint.”

[20] Ms. Harding added that on the 7th

May 1990, the Commission again wrote

to Mr. Sahatoo enquiring whether he was interested in a temporary appointment

as a Road Officer 1 and if so, to contact the Commission (see “SS 2”). The

Commission can find no record of Mr. Sahatoo having visited the offices of the

Service Commissions Department in response to the letter or any record of his

having spoken with Ms. Ellis. Indeed, there is no record with the Commission

that Mr. Sahatoo attended its offices and spoke to Ms. Ellis on any of the

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occasions referred to in his affidavit. Ms. Ellis is no longer in the employ of the

Commission and resides out of the country. The Commission unsuccessfully tried

to contact her. However, by letter dated the 21st May 1990, Mr. Sahatoo

confirmed his willingness to take up an acting appointment. By that time

however, a number of other applicants who were on the merit list had indicated

their interest in temporary appointments including short term temporary

appointments and were appointed accordingly.

[21] Ms. Harding stated that the position of the Commission with respect to

temporary appointments is that successful candidates were not entitled to any

prior claim by virtue of their appointments. But in making its appointments the

Commission deals with each appointment on a case by case basis.

[22] By letter dated 30th

December 1992, the Commission again wrote to Mr.

Sahatoo enquiring whether he was interested in a temporary appointment (see “SS

5”). Thereafter by letter dated the 20th

January 1993 Mr. Sahatoo was offered a

temporary appointment for 6 months which he accepted and began employment

on the 19th

March 1993. Mr. Sahatoo took up his first temporary appointment as

Road Officer 1 on the 19th

March 1993. Mr. Sahatoo’s name was never removed

from the merit list and he was so informed by letter dated 5th

May 1993. On the

18th

September 1995 he was given a permanent appointment as Road Officer 1

with effect from the 9th

August 1993, (see “SS 7”).

[23] With respect to the 10 (ten) officers referred at paragraph 3, Ms. Harding

said this:

“… the 10 officers referred to by the Claimant in paragraph 38

of his affidavit were placed lower on the merit list than the

Claimant. However they were appointed Road Officers 1 prior to

the Claimant. Their prior appointments took place because they

had all accepted temporary appointments and actually performed

as Road Officers 1 long before the Claimant accepted such

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appointment, and the period of their acting in such appointments

was very long particularly as many of those appointments turned

out to be successive short term appointments without a break”

I have deduced from her evidence, of the acting appointments of each officer, the

following facts in relation to those officers and Mr. Sahatoo:

i. Azim Hosein - acted continuously as Road Officer 1 from 2nd

June 1986 to the date of his substantive appointment on 1st

July 1991.

ii. Rabindranath Gokool - acted from 1st May 1986 as Road

Officer 1 to 13th

May 1986 and from 16th

January 1987 until

his substantive appointment on 23rd

June 1993.

iii. Hadeed Mohammed - acted as Road Officer 1 continuously

from 1st May 1986 until his substantive appointment on 7

th

August 1993.

iv. Daniel Abraham - acted as Road Officer 1 continuously from

the 1st May 1986 until his substantive appointment on 8

th

August 1993.

v. Raymond Seuchan - acted as Road Officer 1 continuously

from 1st May 1986 and until his substantive appointment on

8th

August 1993.

vi. Ravindranath Gangoo - acted as Road Officer 1 continuously

from 2nd

May 1986 to 8th

August 1993 when he was appointed

to the post.

vii. Latchman Maharaj - acted continuously as Road Officer 1

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from 1st May 1986 until his substantive appointment on 8

th

August 1993.

viii. Winston Regis - acted continuously as Road Officer 1 from

14th

May 1986 to 8th

August 1993, the date of his substantive

appointment.

ix. Azim Bassarath - acted as Road Officer 1 from 1st May 1986

to November 1987 and from 23rd

November 1987 to 10th

January 1988. Thereafter acted as Road Officer 1 from 25

January 1988 to the date of his appointment to the

substantive post of Road Officer 1 on 8/8/93.

x. Mahindranath Ramnanan - acted as Road Officer 1 from 1st

May 1986 to 13 October 1985 and thereafter with effect from

12th

June 1989 until his substantive appointment on 8 August

1993.

xi. The appellant, Samoorath Sahatoo - appointed to act as Road

Officer 1 from the date of his assumption of duty on the 19th

March 1993 to 31st August 1993 and from the 1

st September

1993 to the 28th

February 1994. He continued to act as

temporary Road Officer 1 until his substantive appointment

retroactively from 9th

August 1993.

[24] Ms. Harding also sought to distinguish Mr. Sahatoo’s circumstances from

certain other officers. She contended that prior to his appointment on the 8th

August 1993, Mr. Sahatoo was never in the public service. Azim Hosein,

Rabindranath Gokool and Hadeed Mohammed all served as daily-paid Checkers

for several years prior to their temporary appointments as Road Officers 1 and

before Mr. Sahatoo entered the public service. Azim Hosein was employed as a

checker with the Ministry of Works, Maintenance and Drainage since 1980. He

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also held temporary acting appointments as Road Officer 1 since 1986. Mr.

Rabindranath Gokool was also employed in the service since 1979 as a checker

with the then Ministry of Community Development and Local Government and

also held temporary appointments as Road Officer 1 since 1986. Mr. Hadeed

Mohammed was employed as a checker with the Ministry of Community and

Local Government since 1974 and held temporary appointments as Road Officer

1 since 1986.

[25] As to the allegation that he was not appointed according to the

Commission’s policy, Ms. Harding stated that in making the respective

appointments, the Commission not only considered the officers’ positions on the

merit list but gave due regard to the special circumstances of the case of the ten

officers. They had performed the duties of the office for a substantial period of

time (virtually more than 6 years) far longer than Mr. Sahatoo. It is true that Mr.

Sahatoo was not appointed in accordance with the chronological listing on the

merit list but, on the other hand, he did not have an equally lengthy period of

temporary appointment when he was appointed to the substantive position.

[26] She concluded her evidence by stating that promotion by the Commission

is made in accordance with the criteria set out in regulation 18 of the Public

Service Commission Regulations of which seniority is only one of the many

criteria.

Appellant’s evidence in reply

[27] In reply Mr. Sahatoo stated that his refusal of the temporary appointments

was always conditional on the representations made to him. These were that

acting appointments did not entitle the person so appointed to any special claim

for promotion otherwise than in accordance with his place on the merit list. He

noted that had he known that acting appointments were a factor in making

promotion, “I would have accepted temporary employment to ‘pad’ my resume

and enhance the competitive edge my higher relative placement on the merit list

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gave me”.

The Law

[28] The legal principles which now govern a section 4(d) breach of the

Constitution were settled in the recent decision of the Privy Council in Webster

& Ors. v. The Attorney General of Trinidad and Tobago (unreported) [2015]

UKPC 10. Lady Hale, who delivered the decision of the Board, stated at

paragraph 12 of the judgment that it is “well established that the right to equality

of treatment extends to public officials in their relationships with their state

employers” and that section 4(d) (like section 4(b)) is “of general application and

not limited to discrimination on the grounds of race, origin, colour, religion or

sex”. She noted that the “problem” in formulating legal principles with respect to

section 4(d) was that “the law necessarily has to treat different groups of people

differently. The question is whether such distinctions are justified”. (see

paragraph 15). She also noted at paragraph 18, (in considering Article 14 of the

European Convention on Human Rights) that “a test of sameness is inadequate to

secure real equality of treatment. It is almost always possible to find some

difference between people who have been treated differently.”

[29] At paragraph 24, having reviewed the authorities Lady Hale summarised

the legal principles applicable under section 4(d) as follows:

“(1) The situations must be comparable, analogous, or broadly

similar, but need not be identical. Any differences between them

must be material to the difference in treatment.

(2) Once such broad comparability is shown, it is for the

public authority to explain and justify the difference in

treatment.

(3) To be justified, the difference in treatment must have a

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legitimate aim and there must be a reasonable relationship of

proportionality between the means employed and the aim sought

to be realised.

(4) Weighty reasons will be required to justify differences in

treatment based upon the personal characteristics mentioned at

the outset of section 4: race, origin, colour, religion or sex.

(5) It is not necessary to prove mala fides on the part of the

public authority in question (unless of course this is specifically

alleged).”

Lady Hale added the proviso that:

“…that there is a considerable overlap between the “sameness”

question at (1) above and the justification question at (3). This is

because the question of whether a difference between the two

situations is material will to some extent at least depend upon

whether it is sufficient to explain and justify the difference in

treatment.”

Conclusions

[30] The decision of the judge turned on whether Mr. Sahatoo was similarly

circumstanced with the ten officers to whom he refers; or as she put it, “whether

the relevant circumstances in Mr. Sahatoo’s case, are materially different from

the other officers”. She held that the fact that a person accepted and held a prior

temporary appointment was a material difference which removed the ten named

officers from the classification of persons similarly circumstanced to Mr. Sahatoo.

[31] The decision in Webster, decided after the judge’s decision in this case,

directs that the comparators’ situation must be “comparable, analogous, or

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broadly similar but need not be identical”. Any differences between them must

be material to the difference in treatment.

[32] Mr. Sahatoo and the ten other officers were all applicants for the post of

Road Officer 1 in 1986. They were all placed on a list in order of merit based on

their performances in an examination and in interviews. They were, no doubt, all

similarly qualified and seeking appointment to the same office. In that broad

sense they were all comparators to be treated equally in terms of policy by the

Commission.

[33] Mr. Sahatoo was placed ahead of them all on the merit list. But he was not

appointed to the post of Road Officer 1 in the order of priority pursuant to the

merit list. Ms. Harding at paragraph 12 of her affidavit stated that the position of

the Commission, with respect to the temporary appointments, is that successful

candidates were not entitled to any prior claim by virtue of their acting

appointments but in making its appointment (which I take to mean permanent

appointments) the Commission deals with each appointment on a case by case

basis.

[34] The fact is however that having been told by Ms. Ellis that the permanent

appointments would be made on the basis of the merit list ranking, Mr. Sahatoo

chose initially not to take up an acting appointment. But subsequently, the

Commission decided to take such appointments into account in appointing the ten

public officers to the post of Road Officer 1. She explained that the ten officers

“had all accepted temporary appointments and actually performed as Road

Officers 1 long before the [appellant] accepted such an appointment and the

periods of their acting in such appointments were very long, particularly as many

of those appointments turned out to be successive term appointments without a

break.” Ms. Harding stated that the Commission considered not only the officers

positions on the merit list but gave due regard to the special circumstances of the

ten officers who had performed the duties of Road Officer 1 for virtually six

years.

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[35] The factoring of time served in acting appointments into the decision to

appoint the ten officers permanently to the post of Road Officer 1 is therefore

central to the outcome of this appeal.

[36] The trial judge found as a fact that Mr. Sahatoo visited the offices of the

Service Commissions Department on two occasions, 7th

May 1990 and August

1992. On both occasions he was informed by Ms. Ellis that temporary

appointments would not give an officer any special claim to promotion or any

competitive edge; and that appointments were based solely on placement on the

order of merit list. (See paragraphs 7, 11 and 22 of the judgment) See also

paragraph 5 under the rubric “Reasoning and Decision” at page 13 of the

judgment. These findings were not challenged on appeal.

[37] The judge found in effect that Ms. Ellis had misinformed Mr. Sahatoo of

the policy of the Commission. Such misinformation was an express

representation emanating from an official source on which Mr. Sahatoo was

entitled to rely. However to the extent that he had a legitimate expectation based

on that representation, the judge held that it in no way assisted him in this case.

The ten officers had accepted temporary appointments for the stipulated period of

time and this rendered their circumstances materially different from the

applicants’.

[38] Mr. Sahatoo had been subject to cross-examination on his visits to the

Service Commissions Department. The judge was entitled to find on the evidence

that Mr. Sahatoo was told on two occasions by Ms. Ellis that temporary

appointments would give an officer no prior claim to promotion (or appointment

to the office) or any competitive edge.

[39] The question which next arises is whether Mr. Sahatoo’s permanent

appointment was adversely affected by Ms. Ellis’ representation such as to

amount to different treatment under section 4(d) of the Constitution.

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[40] The answer to that question is in the negative. Even if Mr. Sahatoo had

accepted the acting appointment then offered, the other officers had already been

acting continuously as Road Officers for some four years prior. The operative

date for the purposes of this appeal is 7th

May 1990 which is the date when the

acting appointment was first offered and when the first representation was made.

By that time the ten other officers had been holding acting appointments for a

continuous period of four years or close to four years. With the exception of

Azim Hosein and Winston Regis, all of them had been acting Road Officers 1

before Mr. Sahatoo had even been interviewed in 1986. Azim Hosein had been

acting as Road Officer 1 since 2nd

June 1986, Winston Regis since 14th

May 1986.

Those were significant periods of time, sufficient to warrant special consideration

and different treatment by the Commission. Further, Azim Hosein, Rabindranath

Gokool and Hadeed Mohammed all served as daily paid Checkers for several

years prior to their acting appointments. They were serving public officers long

before Mr. Sahatoo. These periods of service were significant to merit retroactive

appointments which were senior to Mr. Sahatoo by periods ranging from 2 years,

to 2 months, to 2 days, to 1 day.

[41] It is true that had Mr. Sahatoo taken up the appointment offered on 7th

May, 1990 and had he worked continuously as appears to have been the practice,

Mr. Sahatoo would have had an additional two years service to be considered by

the Commission in appointing him to the permanent position. I cannot say that

those additional years service would necessarily have tipped the balance in Mr.

Sahatoo’s favour. That was a matter entirely for the Commission. The bottom line

remains that even with those two additional years service the other officers had

significantly more years of acting service.

[42] My concern is with whether there was different treatment and whether it

was justified. In my judgment, there was different treatment but such treatment

was justified. Even if he had started acting on 7th

May 1990, the other officers

would still have been well advanced in service compared to Mr. Sahatoo. This is

sufficient to justify their appointments to permanent positions, ahead of him.

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Moreover, the differences stated by Ms. Harding set out at paragraph 24 are also

sufficient to justify the difference in treatment.

[43] Thus while Mr. Sahatoo and the ten other officers were, broadly speaking,

similarly circumstanced as being applicants for the post of Road Officer 1, there

were differences between them which were sufficiently “material to justify the

difference in treatment.” The overlap between the “sameness” question at (1) of

paragraph 29 and the justification question at (3) of the same paragraph is

demonstrated here.

[44] The justification question is also satisfied. The Commission must be

concerned with appointing both competent and deserving officers to the public

service offices. In this case, the decision struck a balance between merit and

experience which was both rational and proportionate to the aim of appointing the

best officers to the posts. It was also fair. The Commission is charged under the

Constitution with the responsibility of appointing persons to offices in the public

service. In discharging that duty it will be faced with the competing interests of

persons vying for appointments. It is bound to take decisions which adversely

affect some persons while benefitting others. Once it acts fairly, and within the

four corners of its authority it cannot be faulted. The interests of fairness will

sometimes require the Commission in discharging its duty to consider the

particular circumstances of a given case. In doing so, the Commission cannot be

expected to adhere, inflexibly, to a fixed policy, when to do so will produce an

unjust result.

[45] In this case, I consider, the Commission was right to have looked at the

interests of the other officers who had been serving far longer than Mr. Sahatoo.

Indeed if it had not, it may well have been faced with another high court action in

these courts.

[46] In my judgment, while the Commission did treat Mr. Sahatoo differently,

it has properly explained the basis for such different treatment. It has not

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breached section 4(d) of the Constitution. The appeal must be dismissed. We

will hear the parties on costs.

Nolan P.G. Bereaux

Justice of Appeal