TRINIDAD AND TOBAGO - DOC 9 by wLF1HSz

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									TRINIDAD AND TOBAGO
                IN THE HIGH COURT OF JUSTICE

H.C.A. No. S 50 of 2002


                      IN THE MATTER OF AN APPLICATION BY
                                SAHADEO MAHARAJ
                    OF NO. 13 FRIAR’S COURT, ALTYRE DRIVE
                        COCOYEA VILLAGE SAN FERNANDO
                      IN TRINIDAD FOR LEAVE TO APPLY FOR
                     JUDICIAL REVIEW PURSUANT TO ORDER
                           53 RULE 3 (2) (8) OF THE RULES
                              OF THE SUPREME COURT
                                         AND
                    IN THE MATTER OF THE DECISION OF THE
                  TEACHING SERVICE COMMISSION TO BYPASS
               THE APPLICANT AND APPOINT MR. MARTIN JONES
                   TO ACT IN THE POST OF VICE PRINCIPAL OF
                THE CORINTH TEACHERS’ TRAINING COLLEGE
                      CONTRARY TO THE TEACHING SERVICE
                        COMMISSION REGULATIONS AND/OR
               THE PUBLIC SERVICE COMMISSION REGULATIONS
                       AND/OR CONTRARY TO THE RULES OF
                                 NATURAL JUSTICE
                                         AND
                     IN THE MATTER OF THE WRONGFUL MIS-
                 STATEMENT OF THE APPLICANT’S EFFECTIVE
                DATE OF APPOINTMENT AS TEACHER II AND HIS
                CONSEQUENT WRONGFUL PLACEMENT ON THE
                 SENIORITY LIST FOR TEACHER II’S ATTACHED
               TO THE CORINTH TEACHERS’ TRAINING COLLEGE

                                BETWEEN

                           SAHADEO MAHARAJ           Applicant

                                  AND

                   THE TEACHING SERVICE COMMISSION
                                 And
                  CORINTH TEACHERS’ TRAINING COLLEGE
                                                   Respondents




Page 1 of 23
Before Hon. Mr. Justice A. Mendonca

Appearances:
Mr. A. Ramlogan for the Applicant
Ms. J. Baptiste for the Respondents



                                      JUDGMENT



The Applicant in these judicial review proceeding seeks the following reliefs:



   (a) An order of certiorari to remove into this Honourable Court and quash the

       decision of the Teaching Service Commission (“TSC”) to appoint Mr. Martin

       Jones instead of and in priority to him to act as vice principal of the Corinth

       Teachers’ Training College (“CTTC”);

   (b) A declaration that the effective date of the permanent appointment of the

       Applicant to the post of Teacher II is the 9th day of September, 1976;

   (c) An order of mandamus directing the TSC and/or the CTTC to rectify the

       wrongful placement of the Applicant on its Seniority List and/or correct the

       date of the Applicant’s permanent appointment on the said Seniority List;

   (d) An order directing the TSC to reconsider its decision to appoint Mr. Martin

       Jones to act as vice-principal of the CTTC with effect from 19th day of

       December, 2001;

   (e) A declaration that the Applicant is senior to Mr. Martin Jones, Teacher II;

   (f) Damages.




Page 2 of 23
The facts in this matter are not complex and are largely not in dispute. The

Applicant was a teacher since May 1st 1960. In that year he was an acting Pupil

Teacher and went on to be confirmed in the post. At some time later the Applicant

became a Teacher I. While a Teacher I the Applicant obtained a degree of Bachelor

of Education from the University of the West Indies. Thereafter in 1975 he was

appointed to act in the higher post of Special Teacher III.     According to the

Applicant this was the highest non-graduate post in which he could have been

placed and paid in a manner commensurate with his qualifications. At that time

there was no vacancy in a graduate post. The Applicant had accepted the post of

Acting Special Teacher III on the understanding that he would be upgraded to the

post of Teacher II when one became vacant. In 1976 such a post became available

and by a letter dated September 21st 1976 the Applicant wrote to the Permanent

Secretary in the Ministry of Education and Culture applying to be upgraded from

the post of Acting Special Teacher III to the post of Teacher II “owing to the

resignation of Ms. Joyce Heeraman” an education lecturer at the Government

Teacher’s College.



On October 31st 1979 the Applicant received a letter of the same date from the

Teaching Service Commission (the TSC) informing him that he had been promoted

on a one year’s probation to the post of Teacher II with effect from November 9 th

1976.   The Applicant was allotted for duty at the Corinth Teachers’ Training

College (CTTC). He had in fact assumed duties at the CTTC on October 12 th 1976




Page 3 of 23
where he had been assigned as a Temporary Teacher II. According to the Applicant

when he received the letter he visited the offices of the TSC to protest the effective

date of his appointment. He spoke to someone there pointing out that he had in fact

assumed duties at the CTTC on October 12th 1976 and that he had been acting as a

Special Teacher III for approximately one year prior to that. A note was made of

his complaint and the Applicant was informed by the person he spoke to that his

complaint would be addressed when the TSC met to decide on the substantive date

of his promotion.



On or about April 29th 1980 the Applicant received a letter from the TSC informing

him that he had been appointed a Teacher II with effect from September 9 th 1976.

The letter was in the following terms:

                                                                April 29th 1980

          Sir,

                    I wish to inform you that your probationary period expired on

          8th 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 9th September, 1976.



                                                           I have the honour to be,

                                                                  Sir,

                                                        Your obedient servant

                                              Director of Personnel Administration




Page 4 of 23
The confirmation of the Applicant’s appointment was duly published in the

Trinidad and Tobago Gazette of May 15th 1980. In that publication the date of the

Applicant’s appointment appeared as September 9th 1976 and the date of

termination of his probation was given as September 7th 1977. Both these dates

were inconsistent with those appearing in the Applicant’s letter of appointment

dated October, 31st 1979. The Applicant however assumed that his representations

had borne fruit and the actual date when he assumed duties at the CTTC was

favourably taken into consideration in deciding the effective date of his promotion.



On October 10th 2001 the Principal of the CTTC, Mrs. Lynette Simmons, went on

pre-retirement leave. The vice-principal, Ms. Judith Elcock, was appointed to act in

her stead leaving the post of vice-principal to be filled on an acting basis. It is not in

dispute that the established procedure dictated that the most senior Teacher II

would be appointed to the post. The Applicant expected that he would be appointed

but instead Mr. Martin Jones was appointed to act. The Applicant subsequent to

Mr. Jones’ appointment was given a copy of the seniority list which showed that the

date of his appointment was November 9th 1976 and not September 9th 1976 and also

showed that Mr. Jones’ date of appointment was October 4th 1976. The Applicant

caused a letter to be written by the Trinidad and Tobago Unified Teacher’s

Association on November 27th 2001 to the Ministry of Education, complaining that

the correct date of his appointment was September 9th 1976 and not November 9th,

1976. It seems that no response was received to the letter.




Page 5 of 23
These are in essence the undisputed facts. The respondents named in the motion

filed in this matter are the TSC and the CTTC. Counsel for the Respondents

objected that they are not the proper respondents. Counsel contended that as

against these Respondents there is no arguable case. They had nothing to do with

the decision complained of.



The Applicant essentially complains of the appointment of Mr. Martin Jones over

him and his placement on the seniority list. The Applicant contends that he should

have been appointed before Mr. Jones as being the most senior Teacher II and that

his date of appointment is misstated on the seniority list. Among the grounds relied

on in the Statement filed pursuant to Order 53 are the following:



       (8) The Applicant is senior to Mr. Martin Jones. The effective date of his

          permanent appointment as Teacher II is 9th day of September, 1976

          whilst that of Mr. Jones is the 5th day of October, 1976. The decision to

          appoint Mr. Jones to act as vice-principal instead of the Applicant is an

          unreasonable, irregular or improper exercise in the discretion vested in

          the TSC;

       (9) The date of the Applicant’s permanent appointment to the post of

          Teacher II is misstated on the CTTC Seniority List of Teachers II as the

          9th day of November 1976. The correct date is the 9th day of September,

          1976;




Page 6 of 23
With respect to the appointment of Mr. Jones it is clear on the evidence that his

appointment was not made by any of the Respondents. His appointment was made

by the Ministry of Education (the Ministry). According to the affidavit of Ms.

Headley this appointment was made pursuant to an authority delegated to the

Ministry. Counsel for the Respondents initially submitted that this power was

delegated to it by the Public Service Commission (Delegation of Powers) Order.

However it was subsequently conceded by Counsel that the order did not delegate

such authority to the Ministry. Counsel for the Respondents then sought to contend

that the appointment was made by the Ministry pursuant to an established practice.

But there is no evidence of such a practice.      Indeed in the affidavit of Ms.

Karamsingh which, inter alia, sets out the procedure for making acting

appointments, no mention is made of any practice that the Ministry made such

appointments. Counsel for the Applicant in resisting the submission that the TSC is

not a proper respondent to these proceedings submitted that the appointment was

made by the Ministry as agent for the TSC. But here too there is no evidence on

which I can come to such a conclusion. Indeed on the evidence and in the light of

Counsel for the Respondents’ submissions, the position is that the Ministry made

the appointment in purported reliance on the power contained in the delegation

order. The net effect of all of this is that Mr. Jones’ appointment by the Ministry

appears to have wrongfully made. The decision by the Ministry to appoint Mr.

Jones however has been overtaken by subsequent events. The Court was informed

by Counsel for the Respondents that Mr. Jones was subsequently appointed by the

TSC from the same day that he was appointed by the Ministry and that was




Page 7 of 23
accepted to be so by Counsel for the Applicant.         That appointment is made

subsequent to these proceedings and is not the subject of these proceedings. In those

circumstances it seems that no practical purpose will be served in reviewing the

decision of the Ministry to appoint Mr. Jones.



In any event, in my judgment, the correct test to determine whether a party has

been properly made a respondent is to inquire whether he will be directly affected

by any order which may be made in the proceedings. In relation to the appointment

of Mr. Jones the Applicant seeks an order quashing the decision to appoint him and

consequential relief directing the TSC to reconsider its decision to appoint Mr.

Jones. This relief, as noted previously, was based on an incorrect premise that the

decision to appoint Mr. Jones was made by the TSC and not the Ministry. It is

difficult however to see that any of the Respondents will be directly affected by any

order the court may make in relation to the appointment of Mr. Jones which was

improperly made by the Ministry.



The position however is different with respect to the placement of the Applicant on

the seniority list. The relief sought by the Applicant includes a declaration that the

effective date of his appointment is September 9th 1976. The Applicant also seeks an

order directing the Respondents to rectify his wrongful placement on the seniority

list. Although that order is also misconceived as it is the duty of the Permanent

Secretary and Director of Personnel Administration to keep seniority lists (see

regulation 20 Public Service Commission Regulations), it is clear that the TSC will




Page 8 of 23
be directly affected by a declaration that the date of the Applicant’s appointment is

September 9, 1976. For one thing as the commission which appointed the Applicant

the TSC is contending that the correct date of the Applicant’s appointment is

November 9th 1976 and will be directly affected by a determination which impacts

on that. For another thing the seniority list is of importance in making acting

appointments and appointments on probation (see Regulations 18 and 26(1) of the

Public Service Commission Regulations). The TSC must consider the person’s

seniority. It therefore has an interest in the placement of the Applicant on the

Seniority List and will be directly affected by an order affecting the seniority of the

Applicant.



With respect to the CTTC I can see no basis for having made it a respondent.



It seems to me that a proper inference on the evidence is that the seniority list on

which reliance was placed in appointing Mr. Jones is the list kept by the Permanent

Secretary in the Ministry. I say so because Ms. Headley in making the appointment

of Mr. Jones acted on the list supplied to her by the Ministry.              In these

circumstances it was appropriate to name the Permanent Secretary as a respondent.

This was not done but there is however no need to do so. As was pointed out by

Persaud J.A. in Civil Appeal 109 of 1988 Sooknanan v The Conservator of Forests

& Anor. (at page 12) with reference to Order 53:




Page 9 of 23
        There is no provision for the naming of parties as in a civil action. It seems

        to me that in the instant case once the matter was properly identified in the

        rubric, and copies of the motion paper together with the supporting

        documents served upon all parties who may be affected, there would be

        enough compliance.



In this case the motion and the supporting documents were served on the person

authorised to accept service of documents on behalf of the Ministry and I think that

is all that is required in this case so far as the Permanent Secretary is concerned.



In the circumstances therefore I agree with Counsel for the Respondents that the

CTTC is not a proper respondent but in my opinion the TSC is.



The Applicant contends that the correct date of his appointment is September 9 th,

1976.    The letter dated April 29th 1980 from the Director of Personnel

Administration makes it clear that he was promoted from that date after he

protested his initial date of appointment. There is no error or mistake. The TSC

was therefore wrong to treat the date of his appointment as any date other than

September 9th 1976. The Respondents on the other hand contend that the only

relevant date is the date contained in the letter of appointment and they contend

that when the date in the letter of appointment conflicts with the date with the letter

of confirmation or the gazetted notice of appointment it is the date of appointment

that stands.




Page 10 of 23
I however cannot accept that contention of the Respondents. It seems to assume

that the TSC could not vary the date of appointment. I see no logical reason,

speaking generally, why it could not be so. The letter of appointment cannot stand

alone. The letter of confirmation it seems to me must be considered. It cannot

simply be ignored. This is particularly so in this case as there is no doubt on the

evidence that the TSC in 1980 decided to confirm the Applicant’s appointment from

September 9th 1976. The letter of confirmation therefore contains the decision of the

TSC and communicated it correctly to the Applicant.



It is however also clear on the evidence that the decision of the TSC in 1980 to

confirm the Applicant to his post with effect from September 9th 1976 was based on

erroneous information.     In the Note For Confirmation by Written Opinion by

which the TSC considered the confirmation of the Applicant’s appointment it is

there stated that he was appointed on one years’ probation with effect from

September 9th 1976 and that his probationary period expired on September 8th 1977.

This is clearly wrong. The Applicant’s period of probation at the time of his

appointment was one year from November 9 th 1976. It would therefore not have

expired until November 8th 1976. There is no mention in the Note that the TSC was

asked to review the Applicant’s date of appointment. Also the letter of confirmation

makes no reference to a change of the effective date of appointment as would be

expected if it were the intention of the TSC to change the date of appointment.




Page 11 of 23
I think regulation 44(1) of the Public Service Commission Regulations is relevant

here. This provides as follows:



       44(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.



According to the regulation therefore the TSC is authorised to do no more than

confirm the Applicant’s appointment on the successful completion of his probation

from the date of his appointment.



I do not doubt that the TSC could have reviewed the effective date of the

Applicant’s appointment if it intended so to do but there is no indication on the

evidence that that is what it intended. To my mind it is clear that the TSC was

simply considering the confirmation of the Applicant on the successful completion of

his probation. I have little doubt that the confirmation of the Application in his

appointment with effect from the 9th September, 1976 was an error. This is the

purport of the evidence put before the Court by the Respondents which I think is

clearly correct. In paragraph 5 of the principal affidavit of Ms. Karamsingh she

states as follows:




Page 12 of 23
       .... By minute dated March 23rd 1980 the Teaching Service Commission

       considered the appointment of the Applicant and agreed to confirm the

       appointment with effect from 9th September 1976. This was clearly an error

       made by the Teaching Service Commission. This is a situation that has to be

       rectified by the Teaching Service Commission. The letter of confirmation is

       not a letter of appointment and accordingly the fact that the Applicant has a

       letter confirming his appointment at a different date than his appointment

       does not give him a claim to promotion at an earlier date. The Applicant’s

       true date of appointment to the post of Teacher II is the 9th November, 1976

       and this is the date which would be considered when there is to be further

       appointments and/or promotions within the Teaching Service.



As is evident from that paragraph not only are the Respondents saying that the date

of appointment is the 9th November, 1976 and that the TSC made an error by

confirming the appointment from 9th September 1976 but the Applicant was not

treated as having been appointed on the 9th November, 1976. This point is also

made in the affidavit of Ms. Headley at paragraphs 5 and 6:



       5. The said installations would have taken place on the same day but

        Mr. Jones’s installation was delayed for a further 8 days since I was

        trying to contact the Applicant prior to my installing the Acting Vice

        Principal. This was because it had come to my attention that the Applicant

        claimed to have a letter appointing him to the office of Teacher II at an




Page 13 of 23
                  earlier date than the 9th of November, 1976 which is the effective date of the

                  Applicant’s appointment to the said office evidenced by the appointment

                  letter on the Applicant’s file dated the 31st October 1979...



6.               6.   Due to my inability to contact the Applicant I went to the Ministry of

                  Education, Secondary and Further Section and requested that the

                  Applicant’s file be searched for another letter of appointment. The letter

                  of confirmation dated the 29th of April, 1980 was discovered to have

                  confirmed his appointment from the 9th September 1976 rather than the 9th

                  November 1976 as stated in the Applicant’s appointment letter. In a case

                  such as this, where the appointment date stated on another document a

                  letter of confirmation or gazetted notice of appointment, differs from the

                  date in the letter of appointment, it is the date on the letter of appointment

                  that stands.



     I think the conclusion that the TSC did not intend to alter the Applicant’s date of

     appointment when it considered the confirmation of his appointment is also evidenced by

     the fact that the vacancy to which the Applicant was appointed did not arise until

     November 9th, 1976. The TSC could not have intended to make the appointment effective

     from a date prior to that. It was submitted by Counsel for the Applicant that the TSC

     has the power to make an appointment on promotion retroactive. In other words the

     TSC may stipulate any date from which the appointment is to be effective. This, in his




          Page 14 of 23
submission, is the effect of Regulation 31 of the Public Service Commission Regulations

which provide as follows:



           31(1) The date of appointment to an office in a particular within the Public

           Service shall normally be the date on which the officer assumed substantively the

           duties of the office to which he has been appointed.

           (2)    The date of appointment and promotion shall be such date as the

                 Commission shall specify.

           (3) If an officer is selected for appointment from outside Trinidad and Tobago,

                 the date of appointment shall be the date specified in the letter of

                 appointment.



     Counsel submitted that Regulation 31(2) gave the TSC “elbow room” to make an

     appointment on promotion to take effect from a date before the vacancy arose. I

     however do not agree with that submission.



     The regulations must be construed as a whole. The term “appointment” is defined

     to mean the placing of the person in an office in the Public Service (see Regulation

     2).     This is to be contrasted with the definition of “acting appointment” which

     means the temporary appointment of an officer whether on promotion or otherwise

     to a higher office whether that office is vacant or not. Quite clearly there may be a

     need for an acting appointment although the office may not be vacant. When

     however it comes to the appointment to an office whether a first time appointment




     Page 15 of 23
or an appointment on probation the function of the TSC is to fill a vacancy. This is

clear from regulation 13 which speaks of the filling of vacancies. Regulation 14 also

points to the position that the number of appointments the Commission may make is

limited.



Regulation 18 deals specifically with appointments on promotion and speaks of an

officer available for “promotion to the vacancy”. Regulation 18(1) is instructive and

provides as follows:

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

       shall take into account the seniority, experience, educational qualifications,

       merit and ability, together with relative efficiency of such offices, and in the

       event of an equality of efficiency of two or more offices, shall give

       consideration to relative seniority of the officers available for promotion to

       the vacancy.

( See also regulation 7 of the Education (Teaching Service) Regulations).



In my judgment regulation 31(2) does not authorise the TSC to specify a date of an

appointment on promotion which predates the date from which the office became

vacant.



It was submitted by Counsel for the Applicant that the court could not inquire into

the appointment of the Applicant in 1976 as its jurisdiction to do so is ousted by

Section 129(3) of the Constitution. I however do not agree that what the court is




Page 16 of 23
doing is enquiring into the exercise of the function of the TSC in 1979. What the

Court is doing is enquiring into the placement of the Applicant on the seniority list

with a date of appointment of November 9, 1976. The list is not kept by the TSC.

As I mentioned it is kept by the Permanent Secretary (see Regulation 20(2)). In

considering this I have before me evidence put before the Court by the TSC that it

made an error in confirming the appointment with effect from September 9th 1976.

I can see nothing unlawful in keeping the seniority list with the date of the Applicant

as being the 9th November, 1976 nor is it unreasonable when it is clear that the TSC

did not intend to alter the Applicant’s date of appointment and have so indicated. I

think that good public administration requires that the list be properly kept and

that the Applicant not benefit from an erroneous date of appointment and be

unfairly preferred over others senior to him.



Even if it is said that it is too narrow a view to take that the Court is not enquiring

into the exercise of the function of the TSC, in my opinion the court is not so

prevented. This requires consideration of Section 129(3) of the Constitution.



At the time of the decision of the TSC to confirm the Applicant in the post of

Teacher II the Constitution contained a provision ousting the jurisdiction of the

Court. Section 129(3) of the Constitution provided:



    The question whether –




Page 17 of 23
       (a) a Service Commission has validly performed any function vested in it by

          this Constitution;

       (b) a member of a Service Commission or any other person has validly

          performed any function delegated to that member or person under

          section 127;

       (c) a member of a Service Commission or any other person or authority has

          validly performed any other function in relation to the work of the

          Commission or in relation to any such function as is referred to in

          paragraph (b),

 may not be inquired into in any Court.



For present purposes the relevant provision is 129(3)(a). Although Section 129(3)

has been repealed in its entirety it was however accepted by Counsel for the parties

that the effect of the repeal is that the Court can enquire into the exercise of any

function occurring after the repeal but not before unless the Court could do so on

one of the recognized grounds.



It is well settled that unless a Service Commission acted outside its jurisdiction or

contravened the rights of an individual to a fair hearing section 129(3)(a) excluded

the Court from enquiring into whether the Commission validly performed its

function. The Service Commission in view of Section 129(3) (a) may have failed to

validly perform its functions, it may have made errors but unless it acted outside its

jurisdiction or in breach of the rules of natural justice Section 129(3) prevented a




Page 18 of 23
Court from enquiring into the exercise of the function. As Hamel-Smith J.A. said in

Civil Appeal 157 of 1994 the Teaching Service Commission v Lynette Maharaj ( at

page 8):

       The fact that failure to comply with a particular regulation or to construe or

       apply it properly may result in a function vested in it not being validly

       performed is precisely the purpose of the ouster clause.



The jurisdiction of the TSC derives from Section 125 of the Constitution and this

provides as follows:



       Subject to the provisions of this constitution, power to appoint persons to

       hold or act in public offices in the Teaching Service established under the

       Education Act, including power to make appointments on promotion and

       transfer and to confirm appointments, and to remove or exercise disciplinary

       control over persons holding or acting in such appointments shall vest in the

       Teaching Service Commission.



It is clear on the evidence that the TSC did not intend to appoint the Applicant from

September 1976.        But if that was intended the TSC acted in breach of the

regulations in promoting the Applicant to a post that was not then vacant and in

confirming the Applicant to his appointment on a date other than the date from

which he was appointed. It is of course not a breach of every regulation that will

permit the Court to enquire into the functions of the TSC ,but as was stated in Civil




Page 19 of 23
Appeal 157 of 1994 Teaching Service Commission v Lynette Maharaj ,supra, that

result can come about if the regulation question goes to jurisdiction. In my opinion

the regulations referred to go to the jurisdiction of the TSC to make appointments

on promotion.     Put another way the jurisdiction under Section 125 of the

Constitution to make appointments on promotion arises when such appointments

fall to be made which cannot be before the post to which the appointment is made is

vacant.



So that even if an enquiry of the placement of the Applicant on the Seniority List

kept by the Permanent Secretary amounts to an inquiry into the question whether

the TSC had validly performed its functions, in my judgment the Court is not

excluded from doing that. But as I had mentioned I do not view it in that way and I

consider it a question of determining whether on the evidence before me the

Permanent Secretary acted unlawfully in placing the name of the Applicant on the

seniority list with a date of appointment later than that of Mr. Jones. His duty must

be to keep an accurate list. I see nothing objectionable to the keeper in discharge of

his duty to keep an accurate list placing the Applicant on it with a date of

appointment of November 9, 1976 which must have been the intention of the TSC as

the evidence has revealed and what that Respondent has in fact stated to be the

Applicant’s date of appointment.



The other submissions of Counsel may be dealt with briefly.




Page 20 of 23
Counsel submitted that the Applicant has a legitimate expectation that the policy,

practice or procedure to appoint the most Senior Teacher II as Acting Vice

Principal would have been followed and that he would have been appointed to act as

Vice Principal instead of Mr. Jones. The relevant ground of the grounds in the

statement filed under order 53 provides as follows:



       The Applicant had a legitimate expectation that this policy practice and

       procedure would have been followed when the principal of the CTTC

       proceeded on pre-retirement leave and the vice-principal was appointed to

       act as principal. The Applicant as the most senior Teacher II ought to have

       been appointed to act as Vice Principal instead of Mr. Martin Jones.



As I mentioned the appointment of Mr. Jones by the Ministry has been overtaken

by the appointment by the TSC of Mr. Jones subsequent to these proceedings from

the same date he was appointed by the Ministry and that decision is not the subject

of these proceedings. In any event as the Applicant is not senior to Mr. Jones he

should have no legitimate expectation that the policy, practice or procedure of

appointing the most Senior Teacher II would apply to him.



In written submissions delivered to the Court by the Applicant the position was

argued somewhat differently.     There it is contended that the Applicant has a

legitimate expectation that he would be treated by the Respondents as having been

promoted on the 9th day of September, 1976. But put in this way it also does not




Page 21 of 23
assist the Applicant. The error of the TSC in confirming the Applicant to his

appointment from 9th September, 1976 cannot extend its powers or dates to

appointment teachers on promotion when the vacancy does not exist and to confirm

the Applicant other than from the date of the appointment. Nor can the error

authorize the Ministry contrary to its obligation, to keep a list that does accurately

reflect the factual position. (See Rootkin v Kent C.C. [1981] 1 WLR 1186. The

Applicant can have no legitimate expectation that the TSC and the Ministry would

act outside their powers.



Counsel also submitted that the Respondents are estopped from contesting or

disputing the effective date of the Applicant’s appointment as being September 9 th

1976. It would be unfair to change the position up to two decades after it was

represented to the Applicant that his date of appointment was September 9th 1976.



In my judgment however estoppel does not apply here. It cannot apply where it is

incompatible with the lawful exercise of the authority’s duty. An authority cannot

bind itself to act outside of its lawful functions. The duty on the part of the Ministry

is to keep an accurate seniority list. The seniority of a teacher is important. A list

with an incorrect date of appointment of a particular teacher may adversely affect

not only that teacher but others on the list as well. That is so in this case. The date

of appointment contended for by the Applicant will put him as senior to Mr Jones

when it is clear on the evidence that that is not so. It can have repercussions

throughout the teaching service. The duty to keep accurate seniority lists cannot be




Page 22 of 23
avoided or defeated by a mistake and if a mistake comes to light the authority is

duty bound to correct it. Good public administration requires no less. If it were

otherwise estoppel would operate to legitimise the keeping of inaccurate lists which

would be in clear violation of the duty and adverse to the wider interest of the

teaching service and the public. Similarly with respect to the TSC if estoppel were

to apply so as to bind the TSC to the appointment date of September 9 1976, it

would operate so as to extend the TSC’s powers to appoint a teacher to a post not

yet vacant and to confirm the person in that post before the date of appointment.



Counsel also sought to rely on the presumption of regularity in relation to the

confirmation of the Applicant with effect from 9th September, 1976. But that seems

to me to be misplaced. The presumption is simply that; a presumption. It may be

rebutted by evidence. The TSC has put sufficient evidence before this Court to

demonstrate that the date from which the Applicant was confirmed in his

appointment is an error.



In the circumstances I dismiss the Applicant’s motion. The Applicant shall pay to

the Respondent one half their costs to be taxed.



Dated this 28th day of February, 2003.




                                                   A. Mendonca
                                                      Judge



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