Privy Council Appeal No. 1 of 2001

Dougnath Rajkumar	Appellant
	v.
(1) Kenneth Lalla
(2) Henley Wooding
(3) Corinre Mohammed
(4) Carlyle Walters
(5) Sakal Seemungal (Members of the Public Service
       Commission) and
(6) Cipriani Baptiste (The Commissioner of Prisons)	Respondents

	FROM

	THE COURT OF APPEAL OF TRINIDAD
AND TOBAGO
	---------------

	JUDGMENT OF THE LORDS OF THE JUDICIAL
	COMMITTEE OF THE PRIVY COUNCIL,
	Delivered the 29th November 2001
	------------------

	Present at the hearing:-
			Lord Nicholls of Birkenhead
			Lord Mackay of Clashfern
			Lord Hobhouse of Woodborough
			Lord Millett
			Sir Andrew Leggatt
		  	[Delivered by Lord Mackay of Clashfern]
	------------------

1. 	The appellant is some 54 of years of age.  He was appointed a night watchman in the prison service on 26th February 1968. On 1st October 1968 he was appointed Prison Officer I on two years’ probation.  On 1st October 1970 he was confirmed as POI. From February 1980 until April 1990 he acted as Prison Officer II.  Again since 5th August 1997 he has acted as Prison Officer II.  His service in this capacity was still continuing at the date of the hearing before the Board.  

2.	In 1983 he passed the promotion examination for the position of Prison Officer II and Supervisor of Prisons.  He had applied to take the promotion examination for Assistant Superintendent of Prisons but was exempted from so doing because he possessed a GCE Ordinary Level pass in English language which he obtained in the course of studies which led to additional qualifications beyond what was required for promotion.  In 1994 he received a Long Service Award Medal. 

3.	In 1984 he was interviewed for the position of Prison Officer II and Supervisor of Prisons.  He was subsequently interviewed for the position of Prison Officer II in 1985, 1989 and August 1994.  August 1994 was the last time he was interviewed for promotion.  He has never been promoted.  He has never been informed by the Commissioner of Prisons or any other authority in the service that he has been inadequate or in any way disqualified for a higher position than Prison Officer I.  Although he has served as an acting Prison Officer II for some 14 years in all no complaint has ever been made about his service in that capacity nor has any suggestion been made that his work was not properly done or that he was inadequate for it.

4.	When his period as acting Prison Officer II was terminated in April 1990 this happened suddenly without any reason being given for it.  The appellant has written many letters complaining of his treatment.  In particular he wrote on 14th May 1996.  The Director of Personnel Administration of the Service Commissions Department replied by letter dated 29th May 1998 stating that the Public Service Commission was satisfied that he had not been passed over for promotion, that he had secured a place in the 1995 order of merit list and consideration would be given to his claim along with those of other eligible officers when next promotions to the office were being made.  During 1998 while the appellant was acting as Prison Officer II three sets of promotions to Prison Officer II were made affecting ten officers in all. 

5.	In September 1998 the appellant applied for leave to move for judicial review and this was granted on 25th September 1998.  On 26th October 1999 the application for judicial review was granted and an order was made by Lucky J that the appellant be promoted.  This order was appealed by a notice of appeal dated 28th October 1999 when a summons was lodged for a stay of the High Court order.  On 1st November 1999 the case came before de la Bastide CJ when he stayed the order of the High Court and also made an order with regard to the Record of the Proceedings that was to be prepared for the Court of Appeal.  Both of these orders were necessary if the matter was to come before the Court of Appeal in a way that left it completely open for the Court of Appeal to decide.  On 10th November 1999 the appellant gave notice of an appeal against the judgment of the Chief Justice and a hearing with regard to this matter in the Court of Appeal took place when judgment was reserved.  Before any judgment was delivered, the case was again put out for hearing and on 10th May 2000 the Court of Appeal delivered judgment on the substantial merits of the appeal and took the view that it was not necessary to decide the appeal from the order of the Chief Justice as the effect of his orders had been overtaken by the judgment of the Court of Appeal on the substance of the appellant’s case.  By its judgment the Court of Appeal allowed the appeal, quashed the orders made by Lucky J and specified that no order would be made as to costs either in the Court of Appeal or the court below, the order for costs in the court below which was made by Lucky J being set aside.

6.	A preliminary objection was taken to the appeal in this case being considered by the Court of Appeal on the basis that section 38(2)(c) of the Supreme Court of Judicature Act Chapter 4:01 made it necessary for leave to be granted either by the judge making the order or the Court of Appeal before the appeal could lie.  So far as relevant the section provides:
“No appeal shall lie, except by leave of the judge making the order or of the Court of Appeal from –
(a)	…
(b)	…
(c)	a final order of a Judge of the High Court made in a summary proceeding.”

The submission was that judicial review is a summary proceeding and therefore leave either of the judge or the Court of Appeal was necessary before an appeal could lie to the Court of Appeal.

7.	This matter was raised before Lucky J by the respondents and he declined to grant leave on the view that none was necessary.  The point was taken in the Court of Appeal but while they took the view that no leave was required, having regard to their powers under the rules of the Supreme Court of Trinidad and Tobago the Court of Appeal itself could grant leave even though it was beyond the time normally specified for so doing.  In the present case therefore the point had no ultimate importance but since it is a matter of general practice it is right that this Board should express its view upon it.  In the absence of any applicable statutory definition of “summary proceeding” their Lordships take the view that in essence a summary proceeding is one which can be distinguished from a more formal proceeding such as occurs in the distinction between trials on indictment in the criminal law and summary proceedings where no jury trial with its attendant procedure is required but the judgment is committed to another tribunal with the expectation that the proceedings will take less time and that they will not require the same elaboration of procedure which is attendant on a jury trial. In the civil law a summary judgment under Order 14 of the Rules of the Supreme Court is an illustration of summary proceedings. Although in judicial review there are various parts of the full trial process that may apply in an ordinary action which in general will not be used in a judicial review, the judicial review procedure is not an optional procedure in order to secure a result without the procedures of an ordinary action but is a procedure, as was very clearly decided in O’Reilly v Mackman [1983] 2 AC 237, which has protections built into it for authorities which may be subject to judicial review which would not apply to an ordinary action.  In consequence judicial review is in no sense an optional less formal procedure for the decision of a matter than an ordinary action but rather is a proceeding for dealing with matters of public law for which an ordinary action is not appropriate, lacking as it does the safeguards to which their Lordships have referred.

8.	The appellant founded on the decision of McMillan JA (Ag) in Jones v Solomon (Civil Appeal No. 11 of 1986) in the Court of Appeal of Trinidad and Tobago which is based on the view that judicial review proceedings do not involve the full trial process, and are therefore summary.  In this connection the learned Justice of Appeal relied upon an observation of Lord Scarman in R v Inland Revenue Commissioners ex p Rossminster [1980] AC 952 at page 1025 where Lord Scarman indicates that in a judicial review “If issues of fact, or law and fact, are raised which it is neither just or convenient to decide without the full trial process, the court may dismiss the application or order in effect, a trial”. The later decision in O’Reilly v Mackman makes clear that the option referred to by Lord Scarman is no longer available if it was intended to suggest that the trial was not in the judicial review process.  While therefore some proceedings for judicial review may require more elaborate procedures than others, judicial review is in no sense an optional procedure to be contrasted with some more formal procedure.  Accordingly the Board is of opinion that judicial review proceedings are not summary proceedings and do not constitute a summary proceeding within the meaning of section 38(2)(c) of the Supreme Court of Judicature Act Chapter 4:01.  Therefore no leave is required from a final order in such proceedings.  This accords with the tentative view of the Court of Appeal of Trinidad and Tobago in Romain v Water and Sewerage Authority [1997] No 24 where the point was not argued.

9.	The second preliminary matter is that objection was taken on behalf of the appellant to the Chief Justice dealing with this case in November 1999 where he made an order staying the order of the High Court and settling the Record for the purposes of the appeal.  At that time the Chief Justice indicated that he would not sit in the Court of Appeal for the hearing of the appeal from the order of Lucky J.  The objection taken to the Chief Justice sitting was based upon two grounds.  First that he was the Chairman of the Legal Services Commission and that his colleague on that Commission was the Chairman of the Public Service Commission which was the respondent in the appeal, and secondly that when consideration was being given in Parliament to the removal of the provisions in the Constitution which protect the Service Commissions from actions in court - the so-called ouster clauses - the Chief Justice had written to the press expressing satisfaction with the situation under the then prevailing law in relation to such ouster clauses.  The Court of Appeal heard argument upon this appeal from the order of the Chief Justice but never gave judgment on the view that the matter was superseded by the judgment on the merits which was given in May 2000.  Although it is true that the appeal from the Chief Justice’s order has been deprived of any effect now that the judgment on the full hearing has been given, in fairness to the Chief Justice their Lordships express the view that on neither of the two grounds referred to was there any reason for the Chief Justice to decline to sit to deal with the matters which were then before him and that his decision not to sit as a member of the Court of Appeal in relation to the appeal from the order of Lucky J which was made out of abundant caution was not a course which in the view of the Board the law required him to take.

10.	The prison service was regulated by the Public Service Commission Regulations which were first made in 1966 with the consent of the Prime Minister pursuant to section 102 of the Constitution of Trinidad and Tobago in the second schedule to the Trinidad and Tobago (Constitution) Order in Council (SI 1962 No 1875) and continue in force notwithstanding the new Constitution by virtue of section 29(3) of the Interpretation Act (Ch 3:01). These regulations set out a detailed code for, amongst others, appointments in the prison service.  The special provisions with regard to the prison service are contained in Chapter 12 of the Regulations.  So far as relevant, regulations 168 to 179 provide:-
“168.(1)  A Promotions Advisory Board is established which shall consist of -
(a)	a member of the Commission selected by the Commission who shall be chairman; 
(b)	the Deputy Commissioner of Prisons;  and 
(c)	one Senior Superintendent of Prisons nominated by the Commissioner.

   (2)  A prison officer in a grade lower than that of Prison Assistant Superintendent may apply to the Promotions Advisory Board to take any promotion examination when he has been in the service for at least four years and subject to subregulation (3), but the qualifying period of four years may be waived where such prison officer is in possession of the educational qualifications equivalent or superior to the prescribed qualifications. 

   (3)  In order to determine whether a prison officer in a grade lower than that of Prison Assistant Superintendent who applies to take a promotion examination is a suitable candidate to take the examination, the Promotions Advisory Board shall examine the record of every such prison officer.

   (4)  A prison officer who is successful in the promotion examination shall be interviewed by the Commission and shall be placed in order of merit based on performance in the examination and the interview.

   (5)  A prison officer who is successful in the promotion examination for an appointment to an office in the Service shall be interviewed jointly by the Chairman of the Promotions Advisory Board, by a member of the Examinations Board nominated by such Board and by the Commissioner and shall be placed in order of merit based on performance in the examination and the interview.

169.	Notwithstanding that a prison officer may have been successful in a promotion examination, if such prison officer is not appointed on promotion within three years, he shall re-sit the examination for promotion.

170.	Whenever in the opinion of the Commissioner it is possible to do so and it is in the best interests of the Service, appointments shall be made from within the Service in accordance with these Regulations.
…

172. (1)  In considering the eligibility of prison officers for promotion the Commission shall take into account the seniority, experience, educational qualifications, merit and ability, together with the relative efficiency of such prison officers and, in the event of an equality of efficiency of two or more prison officers, shall give consideration to the relative seniority of the prison officers available for promotion to the vacancy.  

   (2) In the performance of its functions under subregulation (1), the Commission shall take into account as regards each prison officer –
(a)	his general fitness;
(b)	his position on the seniority list and on the list of results of the promotion examinations;
(c)	any special qualifications;
(d)	any special courses of training that he may have undergone (whether at the expense of Government or otherwise);
(e)	an evaluation of the officers overall performance as reflected in the annual staff reports;
(f)		any letters of commendation or special reports in respect of any special work done by the prison officer;
(g)	the duties of which he has had knowledge;
(h)	any specific recommendation of the Permanent Secretary for filling the particular office;
(i)		any previous employment of his in the Service or in the public service, or otherwise;
(j)		any special reports for which the Commission may call;  and
(k)	his devotion to duty.

173.(1)	  The Director shall keep up-to-date seniority lists of all prison officers.

    (2)  The Commissioner shall ensure for purposes of making recommendations for promotion and acting appointments that up-to-date seniority lists are kept of all prison officers showing in respect of each officer the date of appointment to his present office, date of appointment to his previous office and date of first appointment in the Service. 

   (3)  The seniority of a prison officer shall be determined by the date of his appointment to the particular office in which he is serving.  The seniority of prison officers promoted to the same office from the same date shall be in accordance with their seniority in their previous office.

   (4)  Where prison officers have entered the Service by competitive examination and are appointed to the same office with effect on the same date, their relative seniority shall be determined according to the order of merit in which they were placed in the examination and interview.

   (5)  Where any doubts arises in respect of seniority of a prison officer, the Commission shall determine the seniority of such prison officer.

174.(1)	 The Commissioner shall ensure that recommendations made in relation to an acting appointment as a prelude to a substantive appointment shall be based on the principles prescribed in regulation 172.

	  (2)  Where in the exigencies of the Service, it has not been practicable to apply the principles prescribed in regulation 172, any prison officer selected for an acting appointment in consequence of a recommendation made under subregulation (1) shall not thereby have any special claim to the substantive appointment.

   (3)  In considering the claims of eligible candidates for a substantive appointment, the Commission shall take into account the claims of all eligible officers.

175.(1) Where an acting appointment falls to be made otherwise than as a prelude to a substantive appointment, the prison officer appointed shall –
(a)	as a general rule be the senior prison officer eligible for such acting appointment;
(b)	assume and discharge the duties and responsibilities of the office to which he is appointed to act.
  (2)  …

176.(1)  Where an acting appointment falls to be made whether as a prelude to a substantive appointment or not the Commissioner shall notify the prison officers who are eligible for consideration.

   (2)  The Commissioner shall, after notification as required by subregulation (1), allow a period of seven days to elapse before forwarding any recommendations for the filling of such vacancy, for the purpose of allowing the prison officers to make representations on the filling of such vacancy.

   (3)  Where representations have been made by or on behalf of any prison officer, the Commission shall forward such representations in their original form to the Director. 

177.	Except in very special circumstances or in cases of sudden illness, the Commissioner shall submit, well in advance, recommendations for acting appointments to permit of their consideration by the Commission before the date on which the acting appointment is intended to become effective.

178.	In submitting recommendations for acting appointments in any office the Commissioner shall state the reasons why prison officers, if any, are being passed over.

179.	Where the Commission delegates its power to the Commissioner to appoint a prison officer to act in an office and such acting appointment falls to be made as a result of sudden illness or other very special circumstances for a period not likely to exceed twenty-eight days the provisions of regulation 176 shall not apply.”

Amongst the general regulations in Chapter 4 there are important provisions on Staff Reports which apply to the Prison Service:
“34.(1)  A Permanent Secretary or Head of Department shall forward to the Director in each year –
(a)	in respect of all officers who are within the scale of pay, a staff report not later than sixty days before an increment is due to an officer;  and
(b)	in respect of all officers who are at the maximum in the scale of pay or who receive a fixed pay, a staff report not later than the anniversary of the date of appointment of an officer to the office.

    (2)  A staff report shall relate to the period of service during the immediately preceding twelve months. 

   (3)  In the preparation of a staff report, the Permanent Secretary or Head of Department shall be guided by his own deliberate judgment and shall in such report - 
(a)	make an unbiased assessment of the officer's performance and conduct over the past twelve months, and 
(b)	give an indication of the future prospects of the officer. 

   (4)  A staff report shall be in such form as may from time to time be prescribed by the Commission and shall be made in respect of every officer whether he holds an acting appointment, a temporary appointment or is employed for a specified period.

35.  In order that an officer may be given every opportunity to correct any shortcomings which he might evince during the course of the twelve months’ period of service to be reported on, a Permanent Secretary or Head of Department shall – 
(a)	as and when such shortcomings are noticed, cause the officer to be informed in writing thereof; 
(b)	when adverse markings are included in the staff report cause the officer to be informed in writing thereof before he submits the report to the Director. 

36.(1)  A staff report made in respect of an officer under regulation 34 shall be the basis for determining the eligibility of an officer for – 
(a)	an increment, and
(b)	promotion.
…”

11.	By the Public Service Commission (Delegation of Powers) Order the power to appoint prison officers to offices in the Prison Service below the rank of Prison Supervisor in accordance with the Regulations is delegated to the Commission and the power to appoint prison officers to act in offices in the Prison Service below the office of Prison Supervisor is also delegated to the Commissioner and in the exercise of this latter power the Commissioner is directed to apply the principles of selection prescribed in regulations 172 and 175, and the provisions of regulations 174 and 176.  By the Public Service Commission (Amendment) Regulations 1990 the Promotions Advisory Board could include the Commissioner of Prisons instead of the Deputy Commissioner.  The 1990 Regulations deleted subregulations (2), (3), (4) and (5) of regulation 168 and substituted:-
“(2)	The Promotions Advisory Board shall interview a prison officer who has qualified for promotion to an office up to Range 53F (Assistant Superintendent of Prisons) as specified in the First Schedule to the Act.

(3)	An officer being considered for promotion to an office by the Promotions Advisory Board shall be rated according to the criteria specified in regulation 172 and be placed in accordance with that rating on a list to be known as an Order of Merit List.

(4)	Notwithstanding subregulation (2), the Commission may interview an officer for promotion to a higher office;”

12.	The 1990 amendment regulations also revoked regulations 174, 175, 176 and 181 with a result that regulations 24, 25 and 26 are applicable to the Prison Service in relation to acting appointments.  These regulations are broadly similar to regulations 174, 175 and 176 that have been revoked.  By the Public Service Commission (Amendment) Regulations 2000 regulation 168 has been revoked and the following has been substituted:-
“168(1)(a)  A prison officer may apply to the Commission to be allowed to take the Promotion Examination for Prison Officer II when he has been in the service for at least two years. 

	  (b)  A prison officer in a grade lower than that of Prison Assistant Superintendent who has passed an Examination for Promotion to Prison Officer II may apply to the Commission to be allowed to take any promotion examination. 

	 (c) A prison officer who is successful in a promotion examination may be considered for promotion in accordance with this Regulation. 

   (2)	  The Commissioner of Prisons shall, after taking into account the criteria (specified in Regulation 172) submit to the Commission a list of the Officers in the Second Division – 
(a)	whom he considers suitable for promotion to an office;  and 
(b)	who are not being considered for promotion yet but who have served in the Service for a longer period in an office, or who have more experience in performing the duties of that office than the officers being recommended.

	   (3)	  The Commissioner shall, also advise those officers referred to to in sub-regulation 2(b) of their omission from the list for promotion, together with the reasons for such omission. 

	  (4)  An officer who is advised under sub-regulation 2(b) may make representations on his own behalf to the Commission within fourteen days of being so advised and the Commission may invite him for interview on the basis of his representations. 

    (5)  The Commission shall advise those officers making representations under this Regulation of the outcome of their representations. 

    (6)	The Commission may, after considering all the representations made, endorse or otherwise, the recommendations of the Commissioner when promoting an officer.”

13.	It is accepted on behalf of the respondents that the most recent annual staff reports available for the appellant were those he saw in the late 80’s or early 90’s.  The respondents accept that no staff reports were prepared from 1991 to 1994 and that this failure amounted to maladministration and a breach of regulation 34.  According to the information available to the Board no staff reports since that time have been prepared.  By affidavit dated 22nd September 1999 the appellant stated that subsequent to the filing of his application for judicial review in or about 25th May 1999 he was asked to view and sign backdated staff reports for the years 1995, 1996 and 1997 which were prepared not by those who had supervised him in these years but by his then supervisor Allister James.  The appellant refused to sign these staff reports as he considered it to be wrong to agree with a staff report prepared by Mr James when he was not under supervision of Mr James in the relevant period.  For the avoidance of doubt he recorded his position in a letter dated 26th May 1999 addressed to the Commissioner of Prisons.  Subsequent to this letter he states he was informed by a superintendent in the Service that the Commissioner had issued instructions for his staff reports for the years 1995, 1996 and 1997 to be redone by the appropriate supervisors under whose charge he then worked.  He had not seen these staff reports and until he had seen the affidavit of the Commissioner he had assumed that because the Commissioner was obliged to prepare staff reports these had been prepared although he had not seen them.  Since 1991 general orders of the Public Service Commission required officers to be shown their staff reports.  These orders also required officers to be alerted to their deficiencies and required on the job or further training to be given to officers to enable them to exhibit improved performance and conduct to show themselves fit for promotion.  These orders were issued because it came to the attention of the Commission that staff reports were not being prepared as was required by the regulations.

14.	The respondents also accept that by promulgating regulations which required staff reports for promotion decisions, the Commission generated a legitimate expectation that staff reports would be taken into account in an assessment of regulation 172 factors.  

15.	The appellant submits with considerable force that there is serious prejudice to him by reason of the failure to provide staff reports.  In view of the emphasis given to seniority and experience in the regulation 172 factors he further submitted that the long experience he has had amounting to over 14 years in all of acting as a Prison Officer II without any adverse comment or complaint cannot have been properly taken into account.  In his original affidavit the Commissioner of Prisons stated that the appellant had acted in the position of Prison Officer II during the following periods, from 5th August 1997 to 15th September 1997, from 17th September 1997 to 23rd September 1997, and from 16th July 1998 to the present time.  The Commissioner attached to his affidavit an exhibit he describes as “the records of dealing with Particulars of Officers Acting in the Higher Grade” wherein the applicant’s history in acting positions is recorded.  The absence of acceptance that the appellant had acted as Prison Officer II from 1980 to 1990 is explained by counsel for the respondents on the basis that if that allegation was not traversed it was held to be accepted.  Their Lordships are left with the impression that the present acceptance by the respondents that the appellant acted as a Prison Officer II for some 14 years is not based on records that were readily available to the Commissioner when he swore the original affidavit.

16.	The Commissioner in his affidavit dated 20th September 1999 states that “the interviews which were in fact concluded (sic) for the construction of the 1995 merit list involved rigorous questioning of the officers by very experienced officers of the Prison Service on important aspects of the duties of a Prison Officer II.  In the absence of staff reports the panel of interviewers, of which I was one, would have been able to assess the officer on the basis of his response to our questions.  I reiterate what I stated in my affidavit filed on 10th November 1999, if the applicant has not yet been promoted it is because his turn as determined by the 1995 merit list has not yet come”.  The Commissioner explains that after the preparation of the 1995 merit list over a hundred officers had been promoted to the post of Prison Officer II on the basis of that list.

17.	In the Court of Appeal the main judgment was given by Nelson JA, with whom Sharma JA and Ibrahim JA agreed, Sharma JA adding comments on the power of the judge in judicial review applications to make the decision himself in substitution for a decision which he held to be flawed.  In the principal judgment Nelson JA had reviewed the facts in some detail noting the appellant’s abiding sense of injustice that despite such protracted acting as Prison Officer II he has not been given the substantive post.  He also states that “In the present case there is no evidence of any shortcomings or adverse comments in relation to the respondent [now the appellant].  Therefore none are to be assumed”.  Later he went on “Since consideration of annual staff reports is only one of the many factors to be taken into account in assessing an officer’s entitlement to promotion, all other factors having been considered I would hold that there was substantial compliance with the Regulations”.  He also stated that the appellant had intact his right of appeal to the Public Service Appeal Board.  This is incorrect.  The appeal referred to, is available only in disciplinary cases.

18.	Their Lordships were informed that at the hearing before the Court of Appeal in Trinidad and Tobago the issue of the length of time the appellant had acted as a Prison Officer II came up and the court expressed serious concerns about the fact that a Prison Officer I could be in an acting position for ten years continuously between 1980 and 1990, resume acting in 1997, continue in that position and not be promoted.  The court decided they could not properly intervene but Sharma JA presiding made the point that, notwithstanding the court’s inability to intervene, he would hope that the court’s comments would be listened to, and requested whether an undertaking would be given to ask the Public Service Commission to reconsider the appellant’s case and in particular his years as an acting Prison Officer II when the next vacancy for the post of Prison Officer II came up.  The Deputy Solicitor General gave such an undertaking and a copy of his letter to the Director of Personnel Administration dated February 3rd 2000 in implement of his undertaking was submitted to their Lordships. Apparently no action has resulted from this communication.

19.	At the hearing before their Lordships counsel for the respondents accepted that having regard to the history of this matter this might well be a case in which reasons were required for the absence of promotion and he submitted that the reason was given in the evidence of the Commissioner that the appellant was placed on the order of merit list prepared in 1995 and although he had not as yet secured promotion.

20.	It is true as the Court of Appeal has said that the absence of staff reports was something that affected all applicants for promotion, but not necessarily equally.  For some the way they had done the work might commend them more effectively for promotion, than answering questions in an interview.

21.	Their Lordships have reached the conclusion that in restricting consideration of the appellant’s promotion to the order of merit list of 1995 - already three years old - and disregarding the other matters referred to in regulation 172, in particular (e) an evaluation of the officer’s overall performance as reflected in the annual staff reports, the approach taken to the decision on the appellant’s promotion was fundamentally flawed.

22.	The Commissioner’s account of the matter which their Lordships have already quoted proceeds on the ability of the panel of interviewers to assess the officer on the basis of his response to their questions and makes no reference whatsoever to his experience or service in the office to which he was seeking promotion.  Against that background to refuse him promotion because his turn as determined by the out-of-date merit list had not yet come is not substantial compliance with the terms of regulation 172 and is unfair to the appellant.  

23.	While there may be cases in which the result of a successful judicial review is that the legal considerations provide a unique admissible decision which the statutory authority could lawfully give in the circumstances, that is not the position in the present case since promotion to Prison Officer II is necessarily competitive.  For this reason the decision of Lucky J cannot be supported.  In the circumstances their Lordships are of the view that the appellant is entitled to a decision that insofar as the decisions impugned did not promote him they are flawed, but on the other hand their Lordships cannot accede to setting aside these decisions insofar as they appoint others whose promotion their Lordships are not empowered to question.  The appropriate relief accordingly is that the case should be remitted to the Public Service Commission urgently to review the appellant’s application for promotion, to take account in that consideration of the length of time for which the appellant has served in the position of acting Prison Officer II without complaint or adverse comment, to take account of all the other matters mentioned in regulation 172 and in the light of that to decide whether the applicant’s present position as acting Prison Officer II should be upgraded to a full substantive appointment as Prison Officer II; and if the Commission decides not to award the promotion it shall give its reasons for doing so under each of the applicable heads of regulation 172.

24.	Since the appellant has been successful on the merits of his application for judicial review he should be entitled to his costs against the respondents both before this Board and in the courts below.