Maharaj v. Teaching Service Commission & Anor (Trinidad and Tobago ) [2006] UKPC 36

Judicial Committee of the Privy Council

Case No Privy Council Appeal No 48 of 2005

Venue FROM THE COURT OF APPEAL OF TRINIDAD AND TOBAGO - - - - - - - - - - - - - - - - -

Between

MaharajAppellant

Teaching Service Commission & Anor (Trinidad and Tobago )Respondent

Before

Lord Hoffmann

Lord Hope of Craighead

Lord Hutton

Lord Brown of Eaton-under-Heywood

Lord Mance

Date 6 July 2006

[1]:- Lord Hoffmann Lord Hope of Craighead Lord Hutton Lord Brown of Eaton-under-Heywood Lord Mance - - - - - - - - - - - - - - - - [Delivered by Lord Hope of Craighead ] The appellant has devoted most of his lifetime to teaching. He entered the teaching service in May 1960. On 10 December 2001, as he was nearing retirement, the Principal of Corinth Teachers Training College went on her pre-retirement leave. The Vice-Principal of the College was appointed to act in her place. This created a vacancy in the post of Vice-Principal, which had to be filled. The established procedure was for the Teaching Services Commission ("the Commission") to appoint the most senior Teacher II to this post. The appellant had been a Teacher II for many years, and he expected to be given this appointment. But it went instead to Mr Martin Jones, who entered the teaching service in September 1972. This was because his position was above that of the appellant on the seniority list.

[2]The appellant sought judicial review of the decision to appoint Mr Jones, as he believed that there was an error in the entry of the date of his appointment as a Teacher II on the seniority list. The date of his appointment to this position was shown on the list as 9 November 1976. The date of Mr Jones's appointment was shown as 4 October 1976. The effect of these entries was that Mr Jones was number 70 on the seniority list, and the appellant was number 94. The appellant's case was that he had been led by the Commission to believe that the date of his appointment as a Teacher II was 9 September 1976 and that he was entitled to be dealt with on that basis. There would, of course, be grounds for his complaint if this was indeed the date of his appointment. He would then have been senior to Mr Jones and would have had a prior claim to the vacancy. The question which lies at the heart of the case is whether his claim that he was senior to Mr Jones is supported by the evidence.

[3]The evidence on which the appellant based his case was a letter which he received from the Commission dated 29 April 1980. The relevant part of this letter was in these terms:

"I wish to inform you that your probationary period expired on 8 September 1977, and the Teaching Service Commission has been pleased to confirm you in your appointment as a Teacher II, Ministry of Education and Culture, with effect from 9 September 1976."

Shortly afterwards, on 15 May 1980, confirmation of the appellant's appointment was published in the Trinidad and Tobago Gazette. In the Gazette entry too it was stated that the date of the expiry of the appellant's probationary period was 8 September 1977, and that the date of his appointment as a Teacher II was 9 September 1976.

[4]The Commission, on the other hand, maintained that the error lay in the dates set out in the letter of 29 April 1980 and in the Gazette entry, and not in the seniority list on which the name of Mr Jones was entered above that of the appellant. Its response was based on the letter of appointment which it sent to the appellant dated 31 October 1979, the relevant part of which was in these terms:

"I wish to inform you that the Teaching Service Commission has been pleased to promote you as a Teacher II, Ministry of Education and Culture, on one year's probation, with salary in Range 46: $1,057 - $1,373 per month (1976) with effect from 9 November 1976."

[5]The case came to trial before Mendonca J, who heard evidence on the issue as to which of these two dates was the correct one. The significant events in the history are summarised in his careful judgment. The appellant acted for a number of years first as a pupil teacher and then as a Teacher I. He was then appointed in September 1975 to act in the post of Special Teacher III at the Government Teachers' College. This was the highest post in which the appellant could have been placed at that time commensurate with his qualifications. In 1976 however a post of Teacher II became available. This vacancy had been created by the resignation of one of the lecturers at the Government Teachers' College. On 21 September 1976 the appellant wrote to the Permanent Secretary of the Ministry of Education and Culture asking to be upgraded to the post of Teacher II. On 13 October 1976 the Principal of Corinth Teachers' College wrote to the Permanent Secretary to inform him that the appellant had assumed duties as a Temporary Teacher II. This was to fill a vacancy that had been created there by the promotion of Mr K Seepersad, its Vice-Principal II. On 12 December 1978 the appellant wrote again to the Permanent Secretary. He referred to the fact that he had been appointed to act as a Teacher II at Corinth Teachers' College in place of Mr Seepersad on 12 October 1976 and asked to be confirmed in the post of Teacher II with effect from that date. When he was informed on 31 October 1979 that he had been promoted following one year's probation to the post of Teacher II with effect from 9 November 1976 he went to the Commission's offices to protest that that date was incorrect. He told an official in the Commission that he had assumed his duties as a Teacher II on 12 October 1976.

[6]The system of probationary appointments to the public service is provided for in Chapter V of the Public Service Commission Regulations. The basic rule, which is set out in regulation 37, is that an officer on first appointment to the public service is required to serve on probation for a period of two years. But this rule is subject to the following regulations, among which is regulation 39(1). It provides:

"Subject to regulation 38, an officer who is appointed on promotion to an office shall be required to serve on probation for one year in the office to which he is promoted."

Regulation 44 provides:

"(1) If, after consideration of the final report of the Permanent Secretary or Head of Department, the Commission is satisfied that the service of an officer on probation has been satisfactory, the Commission shall confirm his appointment with effect from the date of appointment. (2) If the Commission is not satisfied that the service of an officer on probation has been satisfactory, the Commission may extend the period of probation for a further period."

Regulation 46 provides that a Permanent Secretary or Head of Department shall keep a record of every officer who has been appointed on probation to an office in his Ministry or Department.

[7]The judge held that the decision of the Commission in 1980 to confirm the appellant's appointment with effect from 9 September 1976 was based on erroneous information. In its letter of appointment dated 31 October 1979 the Commission stated that the appellant's period of probation was one year, with effect from 9 November 1976. As the judge observed, the Commission was authorised by regulation 44 to do no more than confirm the appellant's appointment on the successful completion of his probation. According to his letter of appointment, the appellant's period of probation was not due to expire until 8 November 1977. As for the letter of 29 April 1980, there was no indication that the Commission had decided to alter the date of the appellant's appointment from that stated in the letter of 31 October 1979. The letter of 29 April 1980 appeared to have been written simply to confirm the appellant in his appointment on the expiry of his probationary period. Having reviewed the evidence, the judge held that it had been demonstrated that the date of 9 September 1976 as from which the appellant was confirmed in his appointment to the post of Teacher II was an error. He dismissed the appellant's motion for judicial review. But, in recognition of the fact that the appellant had been misled by this error, he restricted his award of costs to the Commission to one half.

[8]In the Court of Appeal, at the outset of an admirably succinct judgment, Archie JA said that the case was about the ability of a public body to reverse a decision taken in error when a person affected had relied upon and enjoyed the benefit of that decision. The decision that had been taken in error was to give the appellant a seniority date ahead of persons who had been originally appointed before him. The appellant's claim that he had been unfairly treated and discriminated against failed, because the removal of a benefit to which he was not lawfully entitled could not constitute discrimination or inequality of treatment. Archie JA noted that nowhere prior to 29 April 1980 was the date 9 September 1976 mentioned in any of the documents. He said that this was not surprising, as nothing significant happened at that date whether in terms of assumption of duty or otherwise. In the light of the judge's findings the conclusion that the Commission acted in error was unassailable. There was no other reasonable conclusion that could be drawn, in the absence of any rational explanation of where the date of 9 September 1976 came from. The appeal was dismissed with costs.

[9]Sir Fenton Ramsahoye QC who opened for the appellant invited the Board to conduct a fresh review of the evidence. He said that that the decision of the Commission to confirm the appellant in his appointment with effect from 9 September 1976 as recorded in its letter of 29 April 1980 ought to receive effect. He submitted that it was open to the Ministry to make arrangements retrospectively to conform with the decisions of the Commission and that it should be assumed that is what had been done in this case. But he very frankly acknowledged that there was no document which showed that the appellant had actually been appointed as a Teacher II with effect from 9 September 1976. He also accepted that that date could not be reconciled with the fact that it was not until 21 September 1976 that the appellant himself wrote to the Permanent Secretary applying to be upgraded from the post of Acting Teacher III to the post of Teacher II. He accepted too that the date of 9 September 1976 was inconsistent with the appellant's letter to the Permanent Secretary dated 12 December 1978, in which he applied to be confirmed in that post at Corinth Teachers' College with effect from 12 October 1976. In the end Sir Fenton was forced to accept that, at best for the appellant, 12 October 1976 was the date as from which he began his period of probation as a Teacher II. On that assumption, the letter of 31 October 1979 ought to have referred to that date, not to 9 November 1976, as the date with effect from which he had been promoted to that post. But this would still come after the date of Mr Jones' appointment to the post of Teacher II, which was correctly shown on the seniority list as 4 October 1976.

[10]Mr Ramlogan, who followed Sir Fenton, stressed the unfairness of the situation in which the appellant found himself. He submitted that the appellant was entirely justified in commencing these proceedings on the basis that the date in the letter of confirmation was the right date. This was not just because of the terms of the letter of 29 April 1980. He said that it was open to the Commission, when the probationary period was over and the medical requirements had been satisfied, to issue a confirmation of an appointment from a given date, and that that date would supersede the date stated in the letter of appointment. He referred to regulation 31(2) of the Public Service Commission Regulations, which provides that the date of appointment on promotion shall be such date as the Commission shall specify. He explained that it was only after leave had been given and all the documents had become available that the appellant became aware that there might have been a mistake. It was unfair for the Commission, two decades later, to assert that the letter of 29 April 1980 had been written in error.

[11]Their Lordships do not doubt that the appellant genuinely believed that he was entitled to seniority as a Teacher II as from 9 September 1976 and that he ought to have been promoted to the vacancy in the post of Vice-Principal instead of Mr Jones. But there is no getting away from the fact that the appellant's case is not supported by the evidence. There are concurrent findings of the courts below that the date stated in the letter of 29 April 1980 as the date with effect from which he had been appointed to the post of Teacher II was an error. Their Lordships are not persuaded that there is any flaw in these findings. Nor should the position of Mr Jones be overlooked. The appellant seeks an order directing the Commission to reconsider its decision to appoint Mr Jones as Vice-Principal. But there is no suggestion that the erroneous information that was communicated to the appellant can be attributed in any way to Mr Jones. Sir Fenton was unable to advance any argument which might justify the conclusion that Mr Jones ought to be deprived of his appointment as Vice-Principal to which, on the evidence, he was clearly entitled simply because the Commission made an error when it confirmed the date of the appellant's appointment in 1980. The unfairness of which the appellant complains may well attract sympathy. It is regrettable that he was so sadly misled for so long by the Commission's inaccurate record-keeping. But the law cannot provide him with the remedy which he seeks, to which he is plainly not entitled on the facts. The appeal must be dismissed.

[12]The respondents asked for the costs of the appeal. Sir Fenton invited the Board not to give effect to that motion in all the circumstances. He said that the proceedings had been brought about by the Commission's own error, and that the appellant had now retired and was unwell. Those are factors to which some weight may be given at first instance, as Mendonca J did when he restricted his ward of costs to one half. But they lose their force at the stage of an appeal. The appellant must be assumed to have undertaken the further appeal to their Lordships in full knowledge of the risks to which he was exposing himself. The ordinary rule is that costs follow the event, and that is the rule that must be applied at this stage. The appellant must pay the respondents' costs before the Board.