Court upholds public service decision not to promote 2 firemen

A High Court judge has upheld the Public Service Commission’s decision not to promote two senior officers in the Fire Service (TTFS).

Justice Frank Seepersad dismissed Hayden Holder and Anthony Williams’ claim on January 21.

They had challenged the commission’s refusal to promote them to the position of assistant divisional officer (ADFO), alleging abuse of power unreasonable delay and contravention of their constitutional rights.

The judge said although there was a delay by the commission, it was not unreasonable or inordinate. However, he said vacancies in the public service should always be filled with alacrity “as good administration is dependent upon the various component departments having a full complement of staff.”

The two firemen enlisted in the fire service in the early 1990s. They were promoted to fire sub-station officer (FSSO) and then applied for promotion to ADFO in 2021.

After an assessment exercise, their names were included in an initial order of merit list (OML).

However, after a legal challenge, their names were removed from the OML because they did not meet the eligibility requirements under Regulation 9 of the Fire Service (Terms and Conditions of Employment) Regulations 1998.

They were later promoted to the rank of FSO in 2022 and acted in the ADFO role. Despite this, the commission determined in 2023 that they lacked the requisite two years of experience at the FSO level, rendering them ineligible for substantive promotion to ADFO.

Holder and Williams contended that this decision and the delay in filling vacancies violated their rights to protection of the law and natural justice.

Seepersad disagreed. He said, “The commission must operate within the demarcations of its statutory mandate and was bound to follow proper procedure and to remove the 14 candidates’ names, inclusive of the claimants, from the OML for the office of ADFO.”

He said it would have been unfair and contrary to the regulations if the 14, including the two, remained on the list.

“The commission adopted a proactive approach and corrected a fundamental error of process.

“This is the type of behaviour and approach that should be the norm as it is consistent with good administration.

“The commission’s stance was, therefore, refreshing and should be applauded.”

He also said the commission could not promote Holder and Williams to ADFO because they did not meet the requirements so their “right to equality before the law and protection of the law under Section 4 (b) of the Constitution was not breached.”

The judge said, “The commission was duty bound to revisit and correct any administrative decision which was taken in error and it discharged its duty.

“Although the claimants acted in the office of FSO before their formal appointment, the regulation is clear and expressly outlines that to be eligible for promotion to ADFO an applicant shall be selected from among those persons holding the office of FSO or FES (fire equipment supervisor).”

He said Holder and Williams were only promoted to FSO after the amended merit list was generated.

“The commission’s decision to not promote the claimants to the office of ADFO neither amounted to an abuse of power nor contravened the principles of natural justice.

“The claimants’ non-promotion was procedurally proper, proportionate and justified as it acted under Regulation 9 of the Fire Service Regulations,” the judge ruled.

He also held that promotion was not an entitlement but a discretionary decision guided by merit and eligibility.

“There is no automatic right to promotion.” He said, “The court holds the view that the claimants’ right to protection of the law was not breached as the commission neither acted arbitrarily or unfairly nor did it deprive them of their basic constitutional rights.

“The claimants were not eligible to be promoted at the time and their desire to be promoted could not have compelled the commission to so do, given the existence of a valid OML.

“The commission’s actions were procedurally proper and the commission acted in accordance with the Fire Service Regulations.”

Although Holder and Williams were not successful in their lawsuit, they were not ordered to pay the commission’s costs.