High Court orders TTDF to reconsider army major's promotion date

A High Court judge has ordered the Defence Force to reconsider the promotion date of an army major, ruling that the delay in his advancement was unlawful and unreasonable.

Justice Ricky Rahim made the order on February 21.

The judge presided over a judicial challenge filed by an army officer who had been eligible for promotion to major since August 24, 2019, but was only promoted on January 1, 2022. The officer, who asked for his name not to be published, argued that his delayed promotion resulted in a loss of seniority, salary, and benefits.

In his lawsuit, the officer sought several declarations that he was wrongfully denied promotion when he became eligible in 2019, and the TTDF’s decision to use a policy requiring two consecutive positive performance appraisals as a promotion criterion was unlawful.

In deciding the case, Rahim quashed the decision to apply the policy. He also ordered the defendants – the Regiment and the Defence Force Commissions Board – to reconsider the date the officer should be promoted in keeping with the Defence Force Commissions Board rules without applying the restrictive policy.

In his claim, the officer argued his constitutional right to equality before the law had been violated and he should be retroactively promoted from August 24, 2019, with full salary and benefits.

But Rahim said the court’s remit was supervisory, not decision-making.

“Judicial review is about process and the decision must ultimately remain with the decision-maker unless there is otherwise good reason for the court to so intervene.

“In this case, there is none and the decision will be remitted for consideration in keeping with the lawful criteria.”

In its defence, the TTDF argued that while the officer met the eligibility requirements, promotion was not automatic and was subject to additional performance criteria, including two consecutive positive appraisals.

Rahim ruled that the policy requiring two consecutive positive appraisals was not legally valid, as it restricted the wider performance evaluation outlined in Rule 8 of the Defence Force Commissions Board Rules.

He also held that the officer’s overall performance should have been assessed holistically, not just based on two specific years.

“Once, therefore, the considerations at Rule 8 are applied fairly and correctly there is no bar to the promotion taking effect from a date other than the date at which the officer attained eligibility and the court so finds.”

He also added, “In this case, the evidence is that this criteria was, in fact, used as the basis for not applying his effective date of promotion as of his date of eligibility so that there is a direct relation between the application of the criteria in a restrictive manner and the disadvantage suffered by the claimant.

“A wide view of his performance in that regard is likely to give the reasonable likelihood of his performance going forward. This is a crucial factor for determining the benefits that he is likely to bring to the institution."

Rahim warned any attempt to truncate the assessment of an officer’s performance to two consecutive positive reports only "is to ignore the scheme of the rule and legislation which requires a fulsome consideration of performance."

“In the absence of relevant, clear and unambiguous words of restriction, it was unlawful to so restrict the criteria."

He added, "The result of such a restrictive approach is clear and only has to be contextualised to demonstrate the danger in applying same.

“It may well be that the last of the last two performance reports of an officer who is being considered for promotion is not a good one but his overall

performance throughout his many years of service had been stellar…The contrary is also true so that an officer who has been a non-performer for most of his career may be considered favourably because he has attained two good consecutive reports.

“This may be detrimental to the proper administration of the Defence Force. Hence, there is wisdom in Rule 8 that overall performance is to be considered.”

Rahim also found that ignoring the officer's overall performance would have been unreasonable, as performance should be assessed broadly in line with the legislation's intent.

“To have applied such a restrictive view would have been to have robbed the decision of logic and the court so finds.”

The Defence Force was given 30 days to complete the reconsideration and communicate to the officer within seven days of completion.

Arden Williams and Mariah Ramrattan represented the officer.