Ian Green v Public Service Commission (Trinidad and Tobago); Ian Green and another v Public Service Commission No 2 (Trinidad and Tobago)

The constitutional power to appoint and promote public officers does not include the power to set minimum qualifications. Subject to legislation, that function belongs to the executive as employer. The Public Service Commission must assess candidates who satisfy the prescribed criteria. Under regulation 8(1)(b) of the Fire Service (Terms and Conditions of Employment) Regulations 1998, only the Chief Fire Officer, after the required consultation, may determine that a qualification is equivalent. A positive determination binds the Commission; without one, the Commission cannot make its own determination. A preliminary view before consultation is insufficient. A new factual contention requiring evidence should not ordinarily be raised for the first time on appeal. The appeals were allowed and the first-instance dismissal restored.

The respondent, a Fire Sub-Station Officer, challenged the refusal of the Public Service Commission to promote him to Fire Station Officer. He lacked the prescribed examination pass and Graduate Diploma but claimed that his human-resource qualifications were equivalent. The High Court dismissed his judicial-review claim on 14 December 2016. The Court of Appeal allowed his appeal on 16 December 2022, holding that the qualification provisions required reading down and that the Commission had acted irrationally and unfairly. It subsequently found a constitutional breach and remitted damages assessment to the High Court on 11 December 2023. The Board heard conjoined appeals concerning the constitutional allocation of power, the existence of a valid equivalence determination, and the fairness and rationality of the promotion decision.

Lord Doherty delivered the judgment of the majority, with Lord Lloyd-Jones, Lord Briggs and Lord Burrows agreeing. The appeals were allowed.

1. Allocation of constitutional functions. The executive’s functions include deciding what public offices to create and prescribing the qualifications required for them, subject to legislation. Sections 121(1) and 129(1) of the Constitution of Trinidad and Tobago Act vest appointment and related powers in the Public Service Commission, but do not transfer qualification-setting to it. Setting eligibility criteria and assessing eligible candidates are distinct functions. The Board rejected the Court of Appeal’s contrary reading.
2. Fire Service qualification scheme. Section 34(1)(aa) of the Fire Service Act 1965 validly authorised the executive to prescribe qualifications. Regulation 8(1)(b) of the Fire Service (Terms and Conditions of Employment) Regulations 1998 gives the Chief Fire Officer, after consultation with the Permanent Secretary and Chief Personnel Officer, the exclusive power to determine equivalence. The Public Service Commission must accept a positive determination and cannot itself make one in its absence.
3. Application to the respondent. The Chief Fire Officer’s memorandum of 12 July 2006 was only a preliminary view before consultation. The letter of 11 May 2007, issued after consultation, communicated the concluded view that the respondent’s diploma was not equivalent. The first-instance judge was entitled to reject later evidence seeking to undermine that letter. The respondent therefore lacked the qualification required by regulation 8(1)(b).
4. Late appellate contention. The Court of Appeal should not have entertained the contention that the 2013 list implied an equivalence determination. It was not a pure point of law, evidence would probably have been led had it been raised at first instance, and the finality principle identified in Primeo Fund v Bank of Bermuda (Cayman) Ltd [2023] UKPC 40 applied.
5. Rationality and fairness. The evidence did not establish that the Commission acted blindly on the Chief Personnel Officer’s advice. It acted on the absence of a valid Chief Fire Officer determination and the 2007 letter. The material before it was not ambivalent, so no further opportunity for representations was required.
6. Role of the Chief Personnel Officer. The Board rejected the Court of Appeal’s unduly narrow view of the Chief Personnel Officer’s role. The statutory and regulatory framework permits public bodies to seek his advice on matters within the expertise of the Personnel Department, including qualifications and equivalence.
7. Dissent. Sir Anthony Smellie agreed with the majority on the constitutional issue and the Chief Personnel Officer’s role, but considered the evidence materially ambivalent. He would have held that the 2013 list required proper enquiry and would have dismissed the appeal on the merits.
8. The Court of Appeal’s orders of 16 December 2022 and 11 December 2023 were set aside. The High Court order of 14 December 2016 dismissing the claim and awarding costs was restored.

1. Privy Council: In [2026] UKPC 20, the Board allowed both appeals, set aside the Court of Appeal’s orders and restored the High Court’s dismissal.
2. Court of Appeal of the Republic of Trinidad and Tobago: On 16 December 2022 it allowed the respondent’s appeal and granted declarations of unlawfulness, irrationality and procedural unfairness. On 11 December 2023 a majority found a constitutional breach and remitted damages assessment to the High Court.
3. High Court: Seepersad J dismissed the judicial-review claim on 14 December 2016 and ordered the respondent to pay costs.