Gopichand Ganga and others v Commissioner of Police/Police Service Commission

Where a statutory commission retains the final power to promote officers, it may seek recommendations from the operational head, who may use an analogous procedure for another class of officer. A points-based assessment is lawful if its measures are rationally connected to the statutory criteria; it need not be flawless. Reasonable cut-off periods and measuring general fitness by sick leave are not irrational merely because other approaches are possible. Academic qualifications need not directly relate to the post where other criteria bear more directly on suitability. Judicial review may be refused where applicants challenge recommendations without first engaging with the decision-maker’s representations process or challenging the operative decision.

Police First Division officers challenged the Commissioner’s failure to recommend them for promotion. They argued that applying the procedure in the Police Service Commission Regulations 1966 concerning Second Division officers was ultra vires, and that the points-based assessment system was irrational and unfair under Regulation 20.

Madam Justice Rajnauth-Lee dismissed the judicial review claim. The Court of Appeal of the Republic of Trinidad and Tobago dismissed the appeal and suggested that the appellants be permitted to make representations to the Commission. The Commission considered those representations but declined to promote them. The central issues before the Board were the legality of the analogous procedure and the rational connection between the points system and the statutory promotion criteria.

The Board dismissed the appeals.

1. Commissioner’s recommendations. The Police Service Commission Regulations 1966 left responsibility for promotion with the Commission. Regulation 8 gave the Commission a broad power to consult any person considered proper and desirable, and Regulation 20(2)(g) expressly permitted it to seek the Commissioner’s specific recommendation for filling a particular office. Regulation 15(5) confirmed that the Commission remained responsible for promotion. The Commissioner’s involvement therefore did not amount to an unlawful delegation or infringe section 123(1) of the Constitution of the Republic of Trinidad and Tobago 1976.
2. The distinction between submitting a list and commenting on individual applicants was artificial. A list could be compiled after considering each officer individually. The Commissioner was entitled to use a procedure analogous to Regulation 15 for First Division officers, particularly to promote fairness and transparency by giving unsuccessful officers an opportunity to make representations.
3. Points-based system. The applicable test was whether the measures were rationally connected to the objective of taking account of the Regulation 20 criteria, as stated in R (Association of British Civilian Internees: Far East Region) v Secretary of State for Defence [2003] QB 1397. The system did not have to eliminate every possible flaw. The omission of special training courses had been corrected by amendment; reasonable appraisal cut-off periods were permissible; general fitness could be assessed by reference to sick leave; and unrelated academic qualifications could still indicate competence, particularly where other headings addressed suitability more directly.
4. In any event, the material decision was that of the Commission. The appellants did not allege that it slavishly followed the Commissioner’s recommendations or that they lacked an untrammelled opportunity to make representations by reference to Regulation 20. The irrationality and unfairness challenges therefore failed.
5. Relief. The appellants challenged only the Commissioner’s recommendations, not an unlawful decision by the Commission, and had not first made representations or sought to persuade the Commission not to act. Even if the recommendations had been unlawful, refusal of judicial review relief would have been justified on these facts.

• Privy Council: dismissed the appeals from the Court of Appeal.
• Court of Appeal of the Republic of Trinidad and Tobago: dismissed the appeal; Hamel-Smith JA gave the substantive judgment and suggested that the appellants be permitted to make representations.
• High Court: Madam Justice Rajnauth-Lee dismissed the judicial review claim.