Mohammed v Public Service Commission and others

Constitutional independence does not prevent an executive-appointed examination board from being made available to an independent public-service commission as a voluntary facility. The commission must remain free to use or reject that facility and must exercise its own judgment without executive influence. Those principles may permit the commission to adopt examination results already declared by an executive-appointed board and later use them in promotion decisions. The retrospective nature of the adoption does not itself make the decision unlawful.

The appellant, a fire-fighter, challenged the decision of the Public Service Examination Board (PSEB) to adopt examination results previously declared by the Fire Service Examination Board (FSEB). The FSEB members had been appointed by the Minister of National Security under regulation 14(1) of the Fire Service (Terms and Conditions of Employment) Regulations. The appellant argued that the appointment was unconstitutional and that the FSEB’s results could not be validated by later adoption. Dean-Armorer J dismissed the judicial-review claim on 15 February 2011. The Court of Appeal of Trinidad and Tobago dismissed the appeal on 24 November 2014. The central issue before the Board was whether the constitutional principles identified in Cooper and another v Director of Personnel Administration and another permitted the PSEB, once lawfully appointed by the Public Service Commission, to adopt the earlier results.

1. Appeal dismissed. The PSEB’s decision to adopt the FSEB’s examination results, and the Public Service Commission’s later use of them in promotion decisions, were lawful.
2. The Board reconsidered its earlier decision in Cooper and another v Director of Personnel Administration and another [2006] UKPC 37, [2007] 1 WLR 101. It declined either to depart from or distinguish the relevant observations. Those observations drew a valid distinction between executive dictation of what an independent commission must do and the provision of an examination facility which the commission may choose to use.
3. The constitutional safeguard is that the independent commission must retain freedom to use or reject the facility and must exercise its own judgment. Section 121(1) of the Constitution placed the appointment and promotion of fire-fighters under the Public Service Commission. The PSEB had been lawfully appointed by that commission on 14 December 2007, and it independently decided to adopt the results. The commission later independently decided whether to use them in granting or refusing promotions.
4. There was no suggestion of actual executive interference in the FSEB’s setting or marking of the 2006 examinations. The appellant’s argument that retrospective adoption could not give the results any greater validity than they had possessed previously was rejected. The later adoption was a distinct exercise of judgment by a constitutionally independent body, not an imposition by the executive.
5. The practical advantages of adopting the results, and the complications that would have followed from refusing to do so, supported the conclusion but were not substitutes for the constitutional requirement of independent judgment.

• Privy Council: On 19 October 2017 the Board dismissed the further appeal.
• Court of Appeal of Trinidad and Tobago: On 24 November 2014 the court dismissed the appellant’s appeal from the first-instance decision.
• High Court: Dean-Armorer J dismissed the judicial-review claim on 15 February 2011.