Harinath Ramoutar v Commissioner of Prisons and Another
| Jurisdiction | UK Non-devolved |
| Judge | Lord Sumption |
| Judgment Date | 16 August 2012 |
| Neutral Citation | [2012] UKPC 29 |
| Date | 16 August 2012 |
| Docket Number | Appeal No 0025 of 2011 |
| Court | Privy Council |
[2012] UKPC 29
Lord Walker
Lord Kerr
Lord Sumption
Lord Carnwath
Sir Stephen Sedley
Appeal No 0025 of 2011
Privy Council
Appellant
Sir Fenton Ramsahoye SC
Tom Richards
(Instructed by Bankside Commercial Solicitors)
Respondent
Peter Knox QC
(Instructed by Charles Russell LLP)
Heard on 27 June 2012
This appeal arises out of an application for judicial review of the decision not to consider Mr. Harinath Ramoutar for an appointment as acting Chief Prison Welfare Officer of the Trinidad and Tobago Prisons Service. Technically, the Board is dealing with an application for leave to apply for judicial review, since Mr. Ramoutar was refused leave by both Pemberton J and the Court of Appeal. But the matter was treated by both courts below as 'rolled up' application in which the merits were fully examined. The Board will therefore adopt the same approach.
The facts are that in July 2007, the office of Chief Prisons Welfare Officer became temporarily vacant as a result of the transfer of the office-holder to other duties for a period of three years. The position was initially filled on an acting basis by a Mr. Mattis, who was then the senior Prison Welfare Officer holding the rank of Prison Officer II, the rank immediately below that of Chief Prisons Welfare Officer. Mr. Mattis, however, was due to leave on 29 October 2007, when the position would become vacant once more. It was decided to replace him with another acting holder of the office until the permanent holder should return. Mr. Ramoutar was the next most senior Prison Welfare Officer II, and he applied for the job.
Prison officers are public officers whose appointment and promotion are the responsibility of the Public Services Commission, an independent body established under the Constitution. The Commission is empowered to publish Regulations for the discharge of its functions. The relevant regulations were the Public Service Commission Regulations. Chapters III to X of the Regulations contain provisions applicable generally to the public service. They are subject to the more specific provisions of subsequent chapters governing particular services, including Chapter XIII which deals with the prison service.
Under Regulation 168, part of Chapter XIII, the procedure is for the Commissioner of Prisons to submit to the Public Service Commission a list of Prison Officers II whom he considers suitable for promotion to the office in question. He is required to submit with it a list of Prison Officers II who, although not considered suitable for promotion, have been in the service for longer or have more experience in performing the duties of the office in question than those recommended. Under Regulation 168(3), officers on this second list must be notified. They are then entitled to make representations to the Public Services Commission. Finally, the Commission makes the appointment having regard to the recommendations of the Commissioner of Prisons and any representations received from an officer who has been by-passed.
On 25 October 2007, the Commissioner of Prisons wrote to Mr. Ramoutar in response to his application. He referred to the "Job Specification and Description" for the office of Chief Prisons Welfare Officer. This was a document agreed in 1998 between the Permanent Secretary of the Ministry of National Security, the Chief Personnel Officer of the Prison Service and the Prison Officers' Association. It contains a brief description of the functions of the office, a list of the qualities required most of them described in very general terms, and a summary of the working conditions, reporting relationships and duties, together with certain criteria by which performance of those duties would be assessed. Among the formal qualifications shown as required is a "bachelor's degree in social work from a recognised institution or equivalent." In his letter, the Commissioner pointed out that Mr. Ramoutar did not have such a degree, and said that for that reason he was unable to recommend him for promotion. He concluded:
"In view of the fact that you do not possess this imperative prerequisite, it renders you unsuitable for favourable consideration. Hence, in accordance with 168(3) of [the Regulations] you are advised that you will not be considered at this time to perform in the post of Chief Prisons Welfare Officer."
Mr. Ramoutar exercised his right to make representations to the Public Service Commission. The Commission considered the recommendation of the Commissioner of Prisons together with the representations of Mr. Ramoutar on 12 February 2008, and decided to appoint a Mr. Charles as acting Chief Prisons Welfare Officer. Mr. Charles, who was the candidate recommended by the Prisons Commissioner, was the next most senior Prison Welfare Officer II after Mr. Ramoutar and the most senior to possess a degree in social work. The affidavit sworn on behalf of the Public Service Commission confirms that it agreed with the Commissioner of Prisons that in the absence of a relevant degree, Mr. Ramoutar was not eligible for appointment. It was common ground before the Board that this was treated as a matter of threshold eligibility, and that in those circumstances no consideration was given to the merits of his application.
Chapter III of the Regulations deals with the general principles for appointments, promotions and transfers in the public service. It distinguishes between permanent appointments, acting appointments made as a prelude to a permanent appointment, and acting appointments which are not the prelude to a permanent appointment. The principles governing these three categories are different.
Permanent appointments by way of promotion are required by Regulation 18 to be made by reference to a number of criteria whose relative weight will vary. It provides:
"18. (1) In considering the eligibility of officers for promotion, the Commission shall take into account the seniority, experience, educational qualifications, merit and ability, together with relative efficiency of such officers, and in the event of an equality of efficiency of two or more officers, shall give consideration to the relative seniority of the officers available for promotion to the vacancy.
(2) The Commission, in considering the eligibility of officers under subregulation (1) for an appointment on promotion, shall attach greater weight to-
(a) seniority, where promotion is to an office that involves work of a routine nature, or
(b) merit and ability, where promotion is to an office that involves work of progressively greater and higher responsibility and initiative than is required for an office specified in paragraph (a)."
Regulation 18(3) then lists a number of matters to be taken into account in arriving at these assessments. Regulation 18(4) then provides:
"(4) In addition to the requirements prescribed in subregulatons (1), (2) and (3), the Commission shall consider any specifications that may be required from time to time for appointment to the particular office."
In the case of prison officers, the provisions of Regulation 18 are superseded by the specific provisions of Chapter XIII relating to such promotions in the prison service. These are very similar. Regulation 172(1) provides:
"172. (1) In considering the eligibility of prison officers for promotion,...
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