Jhagroo v Teaching Service Commission (Trinidad and Tobago) [2002] UKPC 63 (4 December 2002)

	ADVANCE COPY

	Privy Council Appeal No. 35 of 2001

Vinode Jhagroo	Appellant
	v.
The Teaching Service Commission	Respondent

	FROM

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

	JUDGMENT OF THE LORDS OF THE JUDICIAL
	COMMITTEE OF THE PRIVY COUNCIL,
	Delivered the 4th December 2002
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	Present at the hearing:-
			Lord Hope of Craighead
Lord Hutton
Lord Scott of Foscote
Lord Walker of Gestingthorpe
		  	[Delivered by Lord Walker of Gestingthorpe]
	------------------

1. 	This appeal raises issues as to the appointment and terms of service of school teachers in public (that is, state-maintained) schools in Trinidad and Tobago.  The relevant statutory framework is to be found mainly in Chapter 9 of the Constitution, in the Education Act, 1 of 1966 (“the Act”) and in the Education (Teaching Service) Regulations (“the Regulations”) made under section 85(11) of the Act.

2. 	Under section 11 of the Act the school system consists of public and private schools, and public schools are classified as either Government schools (wholly owned by the Government) or assisted schools (managed by a board of management which receives public funds).  In practice all assisted schools in Trinidad and Tobago have a religious affiliation.  This appeal is concerned with the time which the appellant Mr Vinode Jhagroo spent as a teacher at two assisted schools in Trinidad, Holy Faith Convent, Penal (“Holy Faith”) and the Fyzabad Anglican Secondary School (“Fyzabad ASS”).

3. 	Under Part II of the Act all teachers (whether in public or private schools) must be registered on the official register.  Section 53(1) establishes a unified Teaching Service, membership of which consists of the teachers and some senior administrators in public schools.  Section 53(2), (3) and (4) and the First Schedule to the Act provide for the classification of offices in the Teaching Service.  The provisions of the First Schedule are quite elaborate but for present purposes the most material point is that Assistant Teacher III is the office and grade next below Teacher I.  The same sort of graduation is reflected in regulations 4 and 5 of the Regulations, which are as follows:
“4.	The Teaching Service shall comprise the following categories of teachers, within which grades may be established –
(a)	Principal;
(b)	Vice-Principal;
(c)	Head of Department;
(d)	Teacher – holder of a university degree, or a teacher’s certificate or other equivalent qualification;
(e)	Special teacher;
(f)	Assistant teacher;
(g)	Part-time teacher;
(h)	Pupil teacher.

5.		The minimum requirements for entry into, and for appointment to grades and posts in, the Teaching Service are subject to such modifications as may from time to time be considered necessary and expedient by the Minister.”

4. 	Appointments to the Teaching Service are made by the Teaching Service Commission (“the TSC”), a public authority established by section 124 of the Constitution.  Section 125 of the Constitution provides as follows:
“Subject to the provisions of this Constitution, power to appoint persons to hold or act in public offices in the Teaching Service established under the Education Act, including power to make appointments on promotion and transfer and to confirm appointments, and to remove and exercise disciplinary control over persons holding or acting in such offices shall vest in the Teaching Service Commission.”

5. 	Members of the Teaching Service are therefore (subject to the power of delegation mentioned below) appointed and removed by the TSC, but they are paid by the Government, which is in the position of their employer.  The constitutional reason for conferring these powers on the TSC (and for conferring similar powers on other service commissions such as the Police Service Commission) was explained by Lord Diplock, giving the judgment of the Board in Thomas v. Attorney-General of Trinidad and Tobago [1982] AC 113, 124, as being to insulate members of the civil service, the teaching service and the police service in Trinidad and Tobago from political influence exercised directly on them by the government of the day.

6. 	The attainment of that purpose has been qualified to a limited extent since the delegation of powers of service commissions is permitted by section 127 of the Constitution.  Delegation of powers has been effected, in the case of the TSC, by the Teaching Service Commission (Delegation of Powers) Order, which delegates to the Permanent Secretary of the Ministry of Education and Culture a number of the TSC’s powers under the Act, including (in paragraph 1(1) of the schedule):
“The power to appoint persons temporarily in the office of Teacher for both Government and Assisted Schools, for a period not exceeding three months, from a priority list of candidates approved by the [TSC].”

7. 	Sections 58 and 59 of the Act, which are of central importance to this appeal, are in the following terms:
“58.	A member of the Teaching Service shall hold office subject to this Act and any other written law, and unless some other period of employment is specified, for an indeterminate period. 

59.	A person who is appointed to an office in the Teaching Service for a specified period shall cease to be a member of the Service at the expiration of that period.” 

Section 61 imposes on members of the Teaching Service (by subsection (2)) a positive obligation to work full time during the prescribed school hours, and (by subsection (1)) a negative obligation prohibiting any other gainful activity unless authorised.  Section 62 provides as follows for modes of leaving service:
“The modes by which a member of the Teaching Service may leave the Teaching Service are as follows:
(a)	on dismissal or removal in consequence of disciplinary proceedings;
(b)	on compulsory retirement;
(c)	on voluntary retirement;
(d)	on retirement for medical reasons;
(e)	on resignation;
(f)	on the expiry or other termination of an appointment for a specified period;
(g)	on the abolition of office;
(h)	in the case of a member of the Teaching Service on probation, on the termination of appointment;
(i)	in the case of a member of the Teaching Service holding a non-pensionable office with no service in a pensionable office, on the termination of appointment.”

8. 	Regulation 2 of the Regulations contains a definition of “temporary appointment” which was relied on in the course of argument:
“… the appointment of a teacher to a temporary office or the appointment of a person temporarily to a permanent office.”

However it appears that the expression is used only twice in the Regulations (that is in Regulations 25 and 33) and in each case only to indicate that permanent or temporary status is a matter of indifference.  It was suggested that the difference may be material for the purpose of entitlement to a pension, but this point is left unclear by the Regulations (see Regulation 14) and was not fully explored in argument.

9. 	The appellant’s history, in brief outline, is that he was born in 1952.  From 1971 he was a teacher in a succession of private schools, the last (from 1980) being Holy Faith.  In 1988 Holy Faith became an assisted school and the appellant was required to obtain further qualifications in order to be appointed to the Teaching Service.  He did so and he continued to teach at Holy Faith until the end of the summer term in 1991.  He was then transferred to Fyzabad ASS and taught there from September 1991 until December 1994, but with two substantial interruptions for sick leave during 1994.

10. 	During the period from September 1990 to December 1994 the appellant received a series of letters from the TSC’s Director of Personnel Administration appointing him as an Assistant Teacher III for fixed periods (usually of two terms and two school holiday periods).  In every case the specified period had already commenced, and in some cases it had already expired, when the letter was received.  Finally on 6th January 1995 the principal of Fyzabad ASS delivered to the appellant at his home a copy of a letter dated 21st December 1994 from the Director of Personnel appointing the appellant for a period ending on 31st December 1994.  The principal also showed him another letter stating that the TSC was not prepared to offer the appellant employment after that date.  That led to the appellant’s application on 5th April 1995 for leave to apply for judicial review.  The appellant succeeded at first instance before Warner J (who made an order in his favour on 16th February 1996) but this order was reversed by the Court of Appeal, after many delays, on 18th February 1999.

11. 	That is, in bare outline, the origin of this appeal.  But because of the course which the argument has taken it is necessary to set out the facts, so far as they can be ascertained, in much more detail. Unfortunately the affidavit evidence (especially on the respondent’s side) is sketchy and unclear on some points.  The evidence was supplemented by a note (on the allocation of teachers to assisted schools) prepared by Mr Knox (who appeared with the Deputy Solicitor General of Trinidad and Tobago, Miss Hernandez, for TSC).  This note was not objected to by Mr Fitzgerald QC (who appeared with Mr Mendes for the appellant). However it did not provide answers to all the questions raised by their Lordships as to the practical working of the system in relation to teachers on fixed-term appointments.

12. 	Before Warner J there were two affidavits sworn by Mr Nathasingh, who was then the Second Vice-President of the Trinidad and Tobago Unified Teachers’ Association (“TTUTA”). In his first affidavit he deposed to having had problems with what he referred to as so-called “temporary” teachers.  He referred to two sets of legal proceedings, one settled in favour of the teacher (Mr Chang Kit) in November 1988 and the other decided in favour of the teacher (Mr Tudor) in July 1990.  In the latter case (Public Service Appeal Board and Director of Personnel Administration v Tudor, Civil Appeal No 52 of 1985) des Isles JA (with whom McMillan JA and Davis JA agreed) referred to section 58 of the Act and stated,
“No law, correctly interpreted, permits a temporary appointment other than for a specified limited period.  There cannot be a temporary appointment ad infinitum …”

Mr Nathasingh deposed that the TSC then changed its standard letter of appointment and made general use of a form of letter which had previously been used only for temporary appointments in place of another teacher who was temporarily absent on leave or for some other specified period.

13. 	The principal deponent on behalf of the respondent was Miss Jeanne Roseman, the Director of Personnel Administration at the Service Commissions Department.  She did not comment on Mr Nathasingh’s affidavit (although it had been made four months before) but she did give evidence as to the policy of the TSC:
“Although the office of Assistant Teacher III is to be found in the Classification of Officers in the Teaching Service, it is the policy that a person holding temporary appointments as an Assistant Teacher III is not considered for a permanent appointment in the Teaching Service unless and until that person obtains the diploma from a Teachers’ Training college or a relevant University degree.  Further the office of Assistant Teacher III is used to facilitate the hiring of staff where there are shortages, thus, it is in the interest of the students’ welfare that the temporary appointment of a person to this office be made on a continuous basis so that the students would not be without a teacher.  This policy also facilit[ates] the good administration of the teaching service in that the Teaching Service Commission can use the office of Assistant Teacher III to temporarily fill vacancies in order to ensure that students are not left without a teacher.”

14. 	Miss Roseman also stated that the TSC’s decision not to offer the appellant further teaching work was because he had during his temporary appointments made no effort to obtain the necessary qualifications to allow him to be considered for a permanent position in the Teaching Service.  The appellant’s evidence was that it was only on reading Miss Roseman’s affidavit (made on 22nd September 1995) that he was aware that his continued employment depended on obtaining further qualifications.  He had not been told this at the commencement of his employment, or during his employment, or at the time when it came to an end.  He stated that he had in fact applied to the University of the West Indies and been accepted to study for a history degree in 1993-4, but that he did not proceed with that plan because he expected to have to undergo surgery (as in fact happened) early in 1994.

15. 	There were also short affidavits from the two joint Permanent Secretaries in the Ministry of Education, Mr Justin Paul and Dr Claudia Harvey.  Neither of them challenged Mr Nathasingh’s account of the development of the practice of making temporary appointments, although Mr Paul challenged his account of a particular meeting to discuss the appellant’s case.

16. 	In his second affidavit made on 9th October 1995 Mr Nathasingh commented as follows on what Miss Roseman had said about the policy of the TSC:
“The qualifications needed for an appointment to a post in the Teaching Service are set by the Ministry of Education. As a teacher and as an elected officer of TTUTA, which is the appropriate recognised association for teachers, I have become quite familiar with the qualifications set by the Ministry for appointments to teaching posts.  The requirement that a teacher obtain a diploma from a Teacher’s Training College or a relevant University degree applies only in respect of appointments in the Teaching Service to the post of Teacher I and above.  For an appointment to the post of Assistant Teacher III, it is sufficient if the Applicant has obtained five subjects at the Ordinary Level and two subjects at the Advanced Level. 

In practice, the Commission has not been making any so called permanent appointments to the post of Assistant Teacher III and below even though the candidate may have the necessary qualifications as noted above.  Instead the Commission has been appointing persons to those posts under the ‘temporary appointment’ type fixed term letters referred to above. The Commission has developed the practice of making so called permanent appointments only to posts in the ranges above that of Assistant Teacher III where a diploma or a University degree is required.  There is, therefore, some truth in the statement contained in paragraph 12 of the Roseman affidavit that ‘a person holding temporary appointments as an Assistant Teacher III is not considered for a permanent appointment in the Teaching Service unless that person obtains the diploma from a Teachers’ Training College or a relevant University degree’.  This is because in practice the Commission would only appoint that person ‘permanently’ to the post of Teacher I or higher.”

17. 	That was the gist of the evidence as to the TSC’s policy and how it had developed.  It is now necessary to go back and give a more detailed account of the appellant’s career after  Holy Faith became an assisted school in September 1988.  In April 1990 he obtained the further qualification (an “A” level in history) to meet the requirement for appointment by the TSC.  In June 1990 he was recommended by the Board of Management of Holy Faith, and in July and September 1990 he was interviewed by the TSC.  He was throughout this period continuing to teach at Holy Faith, except that he was no longer Vice Principal, Dean of Discipline (as he had been when Holy Faith was a private school).  It is not clear where his remuneration came from between September 1988 and September 1990 but neither side regarded that as particularly significant.  The appellant in his evidence emphasised the apparent continuity of his employment.

18. 	Public schools in Trinidad have three terms in an academic year which starts in September.  The second term begins in the first week of January and ends just before Easter.  The third term begins soon after Easter and ends in July.  Just before Easter in 1991 the appellant received the first of a series of letters of appointment. The letter (dated 22nd March 1991) was from the Director of Personnel Administration at the Service Commissions Department, Port of Spain.  It must be set out in full as it laid down the pattern for later letters:
“Teaching Service Commission has approved your temporary appointment as an Assistant Teacher III, Holy Faith Convent, Penal, Ministry of Education, from the date of your assumption of duty (but not earlier than 26th September, 1990) to the end of the second term of the 1990/1991 academic year.

Your salary is at the rate of $1,711.00 per month in Range 23: $1,711-$2,308 per month (1989).

This temporary appointment is terminable by either party giving one month’s notice of termination.

This appointment is a purely temporary one within the meaning given in [Regulation] 2 of the Education (Teaching Service) Regulations, Chapter 39:01 and is not a first appointment within the meaning of Regulation 11 of the Education (Teaching Service) Regulations, Chapter 39:01 or Regulation 37 of the Public Service Commission, Chapter 1:01 as adopted by the Teaching Service Commission.

Your attention is also drawn to the fact that this appointment gives you no claim to eventual permanent appointment or to entry into a Teachers’ Training College or any teacher training programme.”

19. 	The letter was obviously at pains to stress the appointment’s temporary nature, which is referred to, one way or another, in four places.  The letter was also almost wholly retrospective, as it was sent at about the time that the appointment was to expire.  These features recurred in several later letters.

20. 	The appellant’s evidence was that after getting the first letter he was concerned and spoke to the Principal of Holy Faith, Sister Columba.  She told him that despite the terms of the letter he would get a permanent appointment after a period of probation. (Regulation 11 of the Regulations, referred to in the letter, provides for a two-year probationary period on first appointment to the Teaching Service.)

21. 	The second letter, dated 31st July 1991, was in similar form, but was not wholly retrospective as it covered two terms at Holy Faith, from Easter 1991 to Christmas 1991 (including the Easter and summer holidays).

22. 	The third letter, dated 21st January 1993, covered the largest period: the second and third terms of the 1990-1 academic year at Holy Faith and the whole of the 1991-2 academic year at Fyzabad ASS with all associated holidays.  By the time the letter was written the appellant had already been transferred to Fyzabad ASS and was teaching history there.

23. 	The appellant next received two letters, both dated 28th July 1993.  These were in the same form as before (except that the salaries in Range 23 had increased).  They covered different periods.  The first was wholly retrospective, covering the 1992 summer holiday and the first two terms of the 1992-3 academic year, including the Christmas holiday.  The second covered the period from 3rd April 1993 until the end of the first term of the 1993-4 academic year.  The second letter differed from previous letters by omitting the sentence about either party giving one month’s notice of termination.

24. 	The appellant needed surgery on his leg (this was what led him to give up the idea of reading for a degree in 1993-4) and he was granted sick leave with full pay from 3rd January to 23rd January 1994 under regulation 47 of the Regulations.  He was then on further sick leave, without pay, from 24th January to 16th April 1994, when he returned to work.  During this period he received his sixth letter of appointment, dated 31st January 1994, covering the period from 11th December 1993 to 8th July 1994.  Again, this letter contained no reference to one month’s notice.

25. 	The appellant’s evidence was that when he returned to work in April 1994 his salary payments were not resumed, and that in fact he received no salary for the entire year 1994.  The evidence on this point is far from clear (and no findings were made about it below).  The appellant deposed that the Principal of Fyzabad ASS, Mr Zephrin, told him that Ms Duncan (an official at the Ministry of Education) was considering the termination of his appointment because of his sick leave.  Ms Duncan deposed that the Ministry told the Principal that the appellant should not be allowed to resume his duties without a medical certificate of fitness (and that the appellant did obtain a certificate).  It is not in dispute that the appellant went to Mr Nathasingh for help and Mr Nathasingh had a meeting with Mr Paul (one of the Permanent Secretaries) but there was a conflict of evidence as to precisely what was agreed at the meeting.

26. 	Mr Knox suggested that the non-payment of the appellant’s salary during 1994 marked the termination of the appellant’s employment by the TSC, but the evidence is to the contrary.  The appellant had obtained sick leave for a necessary operation; he obtained a medical certificate of his fitness to resume his duties, as required by the Ministry; and he did in fact resume his duties, apparently with a good deal of success in terms of his pupils’ examination results (during his sick leave the appellant had continued to send written and audio-taped lessons to his pupils).

27. 	The non-payment of the appellant’s salary was probably caused by most regrettable administrative inefficiency.  It had a profound effect on the appellant’s health and happiness.  On 28th December 1994 the appellant wrote a manuscript letter to Dr Harvey in which he spoke of his teaching vocation and the results which he had achieved, despite his sick leave.  He continued:-
“However, the insecurity of my status and not having received any salary for the year is taking a very heavy toll on my life.  The frustrations keep piling up on frustrations which is one of the factors that is having its effects on the performance of my work.  Added to this is the fact that I cannot afford proper dress; meals or medication for functioning with the efficiency and dedication to which I am accustomed.  Further to this the bank is threatening to sell my property in order to repay my mortgage.  The result of all this is not only  my pauperisation but further deterioration of my health and destruction of my life.

Dr. Harvey, I know that I have a great deal to offer my students and my community if given the opportunity.  However, that opportunity is being taken away from me.  It has reached the state where I was unable to report for duty for the last six (6) weeks of the school term because ill-health, depression and frustration resulting from not being able to afford living a normal life.”

28. 	As that letter indicates, the appellant had been away from teaching from 29th October 1994 until the end of term.  He applied for sick leave, which was granted.  But on 14th December 1994 the TSC decided that the appellant should no longer be employed.  This decision was conveyed to the Permanent Secretary by a memorandum dated 21st December 1994.  This referred to a memorandum dated 26th August 1994 from the Permanent Secretary (which has never been disclosed).  It continued:-
“Teaching Service Commission has appointed on a temporary basis Mr Vinode Jhagroo as an Assistant Teacher III, Fyzabad Anglican Secondary School from 9th July, 1994 to 31st December, 1994 in an office of Special Teacher I-III/Teacher I/Assistant Teacher III/Technical Vocational Teacher I-IV consequent on the promotion of Mrs Geeta Ramoutar, Special Teacher II as a Teacher II with effect from 29th August, 1985.

A letter is enclosed for delivery to Mr Jhagroo together with a copy for your records.

The Commission also wishes to inform you that it is not prepared to offer Mr Jhagroo employment beyond 31st December, 1994.”

29. 	At the same time the Director of Personnel Administration wrote a letter dated 21st December 1994 appointing the appellant as Assistant Teacher III, Fyzabad ASS, from 9th July to 31st December 1994.  The letter contained no reference to the decision not to offer the appellant further employment.  It was left to Mr Zephrin to break this news when he delivered the letter on 6th January 1995, three days before the appellant was expecting to start the next term’s teaching.  The appellant deposed that as a result he did not attend school to resume his duties, and that his employment had effectively been terminated.

30. 	In the proceedings the appellant applied for relief under four heads: (i) certiorari to quash the TSC’s decision not to employ him after 31st December 1994; (ii) mandamus directing the TSC to appoint him substantively to the post of Assistant Teacher III; (iii) a declaration that he already substantively held that post; and (iv) damages.  In her judgment Warner J referred to the doubt, not dispelled by the evidence, as to whether the real reason for the TSC’s decision was the appellant’s lengthy sick leave, or the explanation (of failure to obtain further qualifications) put forward by Miss Roseman in her affidavit.  Warner J accepted that the TSC could make a series of fixed-term appointments, but that on the evidence it had not correctly understood its powers.  It had in effect set a new minimum requirement for entry into the Teaching Service, that is that the applicant should be qualified for appointment to the post of Teacher I.  Warner J quashed the decision not to consider the appellant for permanent appointment to the post of Assistant Teacher III.

31. 	In the Court of Appeal the leading judgment was given by Permanand JA, with whom Sharma JA and Jones JA agreed. Permanand JA drew attention to the clear terms of the successive letters of appointment, which were understood by the appellant (as appeared from the concern which he expressed to the Principal of Holy Faith).  She rejected the submission that temporary appointments could be made only by way of short-term cover for absent teachers.  She held that the TSC’s policy (as described in Miss Roseman’s affidavit) was not unreasonable.  Thus she concluded the main issue against the appellant.  She also rejected his case on legitimate expectation, basically on the ground that the appellant was well aware of the clear terms of his letters of appointment.  He could not therefore have any legitimate expectation that his appointments would continue indefinitely.

32. 	Before their Lordships Mr Fitzgerald put forward three main lines of argument in support of the appeal:
(i)	that in reality the appellant was appointed for an indefinite period – if not from the first appointment letter, at least from the time when he had been in post for two years;
(ii)	that the TSC’s decision not to renew the appellant’s appointment was ultra vires (either because the TSC’s policy was an unlawful fettering of its discretion, or because it did not give the appellant a right to be heard) with the result that the appellant was entitled to reinstatement or to damages; and
(iii)	that the appellant had a substantive legitimate expectation that his temporary appointment would be renewed (again, leading to reinstatement or damages).
Mr Knox vigorously opposed all these submissions, insisting on 31st December 1994 as the crucial date and emphasising that the appellant knew of the temporary nature of his employment, never complained about it, and must be taken to have accepted it.

33. 	Initially Mr Fitzgerald put his main case on the basis of sham, or something close to sham, citing the observations of Thomas J in Principal of Auckland College of Education v Hagg [1997] 2 NZLR 537, 556:
“… causes for this shift in the nature of the employment relationship may arise where there is an express or implied promise by the employer that the contract will be renewed, where there is a legitimate expectation on the part of the employee to that effect, where the contractual basis is in effect a sham or, if not fully deserving of that term, the evidence reveals that, irrespective of the terms of the formal contract, the employment relationship is in substance and reality ongoing employment.”

However Mr Fitzgerald did not in the end rely strongly on sham. He did rely on the submission that the TSC’s policy had the effect of creating an “underclass” of teachers who were deprived of permanent status, and so of the constitutional safeguards described by Lord Diplock in Thomas v Attorney-General of Trinidad and Tobago [1982] AC 113.  Mr Knox submitted that there were on the contrary sound policy reasons for the TSC to make fixed-term appointments of teachers at the level of Assistant Teacher III.

34. 	Their Lordships consider that Mr Fitzgerald was right not to press the sham argument, and they derive little assistance from the Auckland case, which was concerned with the issue of unfair dismissal in a different statutory context.  Their Lordships do see some force in the criticisms of the TSC’s policy as described by Miss Roseman in her affidavit.  But the policy is not clearly described and their Lordships are not willing to say that the policy must have involved an unlawful fettering of discretion.  The rather sketchy evidential material is not a satisfactory foundation for a conclusion with such potentially far-reaching consequences and it is possible to dispose of this appeal on narrower grounds.

35. 	In his detailed review of the facts Mr Knox invited the Board to focus on the position at the end of 1994.  During the latter part of 1994, he said, the appellant did not have any letter of appointment and was not a member of the Teaching Service.  Their Lordships agree that the most helpful approach is to look closely at the position at the end of the appellant’s time at Fyzabad ASS.  But they cannot accept that the appellant had by then ceased to be a member of the Teaching Service, or that his non-receipt of salary was evidence of anything other than administrative error.  After 29th October 1994 the appellant was on authorised sick leave, as Ms Duncan acknowledged in her affidavit.

36. 	The TSC’s decision not to continue to employ the appellant was taken, according to Ms Duncan, on 14th December 1994.  The decision to issue a final standard-form letter of appointment (sent on 21st December 1994) must have been made on the same occasion, or as a consequential step.  It was a flawed decision because although it was in form conferring on the appellant the benefit of a fixed-term appointment, it was in substance part of a decision to terminate the appellant’s career in the Teaching Service.  At the beginning of December 1994 the appellant was a member of the Teaching Service, albeit absent on authorised sick leave.  He was not holding an appointment for a fixed term.  He was therefore holding office for an indeterminate period under section 58 of the Act, as it was not open to the TSC, by a retrospective appointment letter, to deprive him of the protection of section 62 of the Act.

37. 	On this narrow ground, which does not depend on any far-reaching conclusion as to the lawfulness of the TSC’s policies, their Lordships would allow the appeal.  They do not find it necessary to go further into the significance of the partial delegation to the Permanent Secretary of some of the TSC’s powers.  Nor is it necessary to go into the alternative grounds of legitimate expectation (which were addressed only briefly in the oral argument).  It remains to consider what relief should be granted to the appellant.

38. 	Mr Fitzgerald’s primary submission was that the appellant was not merely an employee, but was also an office-holder, and that there had never been any valid decision of the TSC which brought his tenure of office to an end.  The appropriate remedy, therefore, was a declaration, and so far as monetary compensation was concerned, the appellant’s claim was not a claim for damages, but was founded in debt.  Mr Fitzgerald relied on the decision of the House of Lords in Malloch v Aberdeen Corporation [1971] 1 WLR 1578 and the decision of the Constitution Court of South Africa in Hoffmann v South African Airways [2001] 2 LRC 277 (especially at pp 297-8).

39. 	In Malloch a teacher had been wrongly dismissed by the Aberdeen Corporation and succeeded in the House of Lords (by a bare majority) in obtaining an order for reduction of the authority’s resolution to dismiss him.  One striking feature of the case was that the appellant appeared in person in the Lords, and another was that (in contrast to the present case) little more than two years elapsed between the date of the teacher’s dismissal and the judgment of the Lords.  Of the majority for allowing the appeal only Lord Wilberforce (at p 1598) made a passing reference to Mr Malloch being left “as legally in his appointment with salary and pension consequences to date”.  Earlier in his speech, however, Lord Wilberforce had (at p 1595) referred to as “illogical and even bizarre” the distinction between what he called “pure master and servant cases” and those involving a office or (as in Vine v National Dock Labour Board [1957] AC 488) a statutory status.

40. 	Malloch was cited but was not discussed by the Court of Appeal in Gunton v Richmond-on-Thames London Borough Council [1981] Ch 448, in which the education authority had failed to observe the correct disciplinary procedure in terminating the employment of a college registrar whose contract could be terminated at one month’s notice.  It was argued that the registrar had a continuing claim for his salary.  That argument was rejected, since the registrar had accepted the repudiation of his contract of employment (Buckley LJ at p 469) and the employment relationship had come to an end (Brightman LJ at p 474).

41. 	This is not an appropriate case for their Lordships to embark on a full analysis of the sometimes obscure border between tenure of a statutory office and employment under a contract of service. Even if the position is regarded in terms of a statutory office regulated by public law, it is a matter of judicial discretion whether a litigant who has been unlawfully dismissed (or compelled to resign), and has in fact ceased to perform any of the duties of the office, should be granted an order for reinstatement: see Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155.

42. 	In the present case there would be a high degree of unreality in a declaration that the appellant is still a member of the Teaching Service, or in an order directing the TSC to reappoint him to the Teaching Service.  It is now over eight years since the appellant last taught at Fyzabad ASS.  He is now 50 years of age.  Since he was forced to stop teaching he has had very serious health problems which have resulted in the amputation of both his legs.

43. 	Their Lordships feel great sympathy for the appellant in these grave misfortunes.  But it would not be appropriate to make an order which had the practical effect of requiring the TSC to appoint the appellant (who may not be well enough to discharge his duties) to an office which is no doubt now held by another history teacher. The appellant himself seems to have recognised, in his first affidavit, that his employment had effectively been terminated.

44. 	In these circumstances the appropriate relief to be granted is a declaration that immediately before 6th January 1994 the appellant held office as an Assistant Teacher III, and held this office for an indeterminate period under section 58 of the Act; and the remission of this matter to the High Court for the assessment of damages on the footing that the appellant’s position was held for an indeterminate period and could only be terminated in one of the ways set out in section 62 of the Act.

45. 	Mr Knox pointed out that since any damages would be payable by the Government (rather than by the TSC) the Attorney-General of Trinidad and Tobago is a necessary party to any further proceedings for the assessment of damages.  Both sides accept that the joinder of the Attorney-General, and directions for pleadings on the issue of damages, should be dealt with by the High Court.

46. 	Their Lordships will therefore allow the appeal with costs here and below, make a declaration in the terms set out in paragraph 44 above and remit the matter to the High Court for the assessment of damages.