UKPC 26
Privy Council Appeal No 0095 of 2012
Balram Singh (Appellant) v The Public Service Commission (Respondent)
Sir Fenton Ramsahoye SC
(Instructed by Bankside Commercial Solicitors)
Peter Knox QC
(Instructed by Charles Russell LLP)
"… the office of Motor Vehicle Inspector I is the entry-level position for the Motor Vehicle Inspector stream and in the absence of an Order-of-Merit-List for the office, qualified officers in the Licensing Division are recommended for acting appointment as Motor Vehicle Inspector I on the basis of date of qualifications.
The officers to whom reference was made in your letters satisfied the requirements of the office of Motor Vehicle Inspector I before Mr Singh and as such they were recommended for acting appointment in the office ahead of him. Mr Singh would be considered for acting appointment as a Motor Vehicle Inspector I on the basis of the date of his qualifications, pending the establishment of an Order-of-Merit-List for the office."
In a letter of the same date to the appellant, the Director indicated that his name had not been on the list of qualified officers for the post submitted by the Permanent Secretary in 2001 since he was not qualified for it at the time, but that he was on the list submitted on 11 November 2003.
"26(1) Where an acting appointment falls to be made otherwise than as a prelude to a substantive appointment, the officer appointed shall –
(a) as a general rule be the senior officer in the Ministry or Department eligible for such acting appointment;
(b) assume and discharge the duties and responsibilities of the office to which he is appointed to act.
(2) In submitting any recommendations for an acting appointment, the Commission shall examine whether the exigencies of the particular service would best be served by transferring an officer from another district next in line of seniority to act when there is an officer in the same district who is capable of performing the duties of the higher grade, and in such examination the question of additional Government expenditure for travelling and subsistence allowances and other expenditure shall be borne in mind."
The issues and submissions in summary
(i) Were regulation 26 and the concept of "seniority" which it contains applicable to the appellant's case, and if so, in what sense could he be said to have been senior to those appointed before him?
(ii) If regulation 26 applied, did the selection method used by the respondent amount to a breach of regulation 26?
(iii) In any event, was the appellant's claim that he had been bypassed by officers junior to him after 2002 made out on the evidence?
"Regulation 26 does not impose an absolute rule of appointment by seniority, but only a 'general rule' to that effect. In other words, it is capable of being displaced by other relevant considerations. But this is irrelevant to the issue before the Board. In Mr Ramoutar's case, the general rule of appointment by seniority was not displaced by other considerations. He was not considered at all…"
"As between officers who are capable of performing the duties, the most senior is entitled to be appointed unless there are reasons for displacing the 'general rule'. The Commission has a very wide discretion to determine what reasons it will regard as sufficient to justify departing from the general rule in a particular case. But this is not a discretion that can be exercised without considering the result of applying the general rule of appointment by seniority. To do that, they must at the very least consider the qualities of the most senior eligible officer." (para 18 emphasis added)
Mr Tom Richards, junior counsel for the appellant, places particular weight on the last sentence, which he said was part of the ratio of the decision. He accepts that the Commission were entitled to depart from the general rule for good reason and he does not question the lawfulness or rationality of the criteria in themselves. However, according to his submission, the Commission should first have given consideration to the application of the general rule to the appellant's case, and to his qualities as the most senior eligible officer. This they failed to do.