Ashford Sankar and others v Public Services Commission (Trinidad and Tobago)

For promotion within the public service, the appointing commission must use the statutory criteria governing promotion, including seniority, experience, qualifications, merit, ability and relative efficiency. Those criteria need not all be applied to every candidate at the same stage. A commission may identify core skills which an appointee must demonstrate to a minimum standard and may use a structured assessment exercise to short-list candidates, provided the exercise falls within the statutory criteria and the commission retains its constitutional responsibility for the appointment decision.

Executive involvement is permissible where it provides a facility which the commission remains free to use or reject. A previously stated policy may be withdrawn with adequate notice, and a rigorous assessment process is not procedurally unfair merely because candidates have little scope for preparation where the process is designed to test existing skills.

Seven senior public servants challenged the Public Services Commission’s use, between 2003 and 2005, of an Assessment Centre Exercise to select candidates for promotion to Deputy Permanent Secretary. The exercise included an In-Basket Exercise and later simulation tests. Candidates who failed an assessment stage were excluded from further consideration.

The appellants succeeded before Gobin J but failed in the Court of Appeal of the Republic of Trinidad and Tobago. Before the Board they argued that the exercise unlawfully delegated or surrendered the Commission’s constitutional function, contravened Regulation 18 of the Public Service Commission Regulations, frustrated legitimate expectations arising from earlier policy statements, and was procedurally unfair. The central issue was whether the exercise could lawfully be used as a short-listing tool despite not testing every Regulation 18 criterion.

The appeals were dismissed. The Board held that the Commission lawfully used the Assessment Centre Exercise (“ACE”) to short-list candidates for promotion.

1. Constitutional responsibility. The appellants’ reliance on Cooper & Anor v Director of Personnel Administration & Anor [2006] UKPC 37 did not establish executive interference. That decision distinguishes between executive acts which dictate what a commission must do and the provision of a facility which the commission remains free to use. The Commission’s unchallenged evidence showed that it had decided to use the ACE, and there was no evidential basis for finding that the executive had imposed it.

2. Regulation 18. Regulations 14 and 18 must be read together. Promotion within the service is by competition, but the decision which competitor to promote must take account of Regulation 18. “Eligibility” in Regulation 18 means suitability for the final promotion decision, rather than merely a threshold qualification.

3. The ACE did not test every matter listed in Regulation 18(3), including staff reports, commendations, specific recommendations and probably devotion to duty. That did not invalidate it. Under Regulation 18(3), the Commission could conclude that a candidate had to satisfy certain criteria, particularly core merit and ability, to a minimum standard before the remaining criteria became relevant. The ACE tested core skills required for the senior posts and involved no skills outside the general criteria of merit and ability in Regulation 18(1) and (2).

4. The Court of Appeal’s alternative analysis under Regulation 18(4), treating the ACE as a specification introduced by the Commission, was doubtful. Regulation 18(4) directs consideration of specifications required for appointment; it does not authorise the Commission itself to create specifications. The result nevertheless followed from Regulation 18(3).

5. The earlier policy statements did not create an irrevocable expectation that long-serving acting officers would be promoted without assessment. Any expectation was capable of withdrawal on appropriate notice, and the appellants had ample warning of the ACE process. The complaints of unfairness likewise failed: the process was carefully prepared, was designed to test existing skills without extensive preparation, and the evidence did not show unfairness sufficient to invalidate the exercise or decisions based on it.

1. Privy Council: Appeals from the Court of Appeal of the Republic of Trinidad and Tobago were dismissed on all issues.

2. Court of Appeal of the Republic of Trinidad and Tobago: The appellants’ challenges failed, reversing the trial judge’s decision.

3. Trial judge, Gobin J: The appellants succeeded in challenging the use of the Assessment Centre Exercise.