Officer ordered to pay costs after losing promotion lawsuit

Derek Achong

Se­nior Re­porter

[email protected]

A po­lice of­fi­cer fac­ing cor­rup­tion charges has lost his law­suit chal­leng­ing the de­ci­sion to by­pass him for pro­mo­tion.

In a re­cent judg­ment, High Court Judge Devin­dra Ram­per­sad dis­missed In­spec­tor David Subero’s case against the Com­mis­sion­er of Po­lice over the de­ci­sion not to pro­mote him while crim­i­nal charges against him were pend­ing.

Jus­tice Ram­per­sad found that the de­ci­sion could not be fault­ed.

“It was not il­le­gal, un­law­ful or con­trary to law; it was not in breach of the prin­ci­ples of nat­ur­al jus­tice or pro­ce­dur­al fair­ness; it was not an abuse of pow­er; it was not in breach of any le­git­i­mate ex­pec­ta­tion; and it was not un­rea­son­able,” he said.

Subero claimed that a de­ci­sion on De­cem­ber 22, 2020, to pro­mote col­leagues ranked both above and be­low him on a mer­it list for pro­mo­tion to As­sis­tant Su­per­in­ten­dent (ASP) was un­law­ful.

Al­most a month be­fore the pro­mo­tions, Subero and a po­lice con­sta­ble were joint­ly charged with mis­be­hav­iour in pub­lic of­fice and two cor­rup­tion of­fences. They were ac­cused of ac­cept­ing a $5,000 bribe from a cou­ple in ex­change for not pros­e­cut­ing them for al­leged­ly op­er­at­ing gam­bling ma­chines with­out a li­cence at their Fyz­abad restau­rant.

The then Po­lice Com­mis­sion­er ap­proved Subero’s sus­pen­sion based on the charges sev­er­al weeks be­fore the pro­mo­tion ex­er­cise. How­ev­er, Subero learned of the de­ci­sion a week af­ter the pro­mo­tions be­cause of dif­fi­cul­ties serv­ing him with the no­tice.

In his judg­ment, Ram­per­sad not­ed that nei­ther the Po­lice Ser­vice Act nor its reg­u­la­tions re­quired the Com­mis­sion­er to au­to­mat­i­cal­ly pro­mote of­fi­cers based on their po­si­tion on a mer­it list.

“Place­ment on an Or­der of Mer­it List there­fore con­fers el­i­gi­bil­i­ty for pro­mo­tion and not a right to it,” he said.

Ram­per­sad al­so re­ject­ed Subero’s claim that no of­fi­cial pol­i­cy barred the pro­mo­tion of sus­pend­ed of­fi­cers fac­ing crim­i­nal charges at the time.

“The ab­sence of a writ­ten pro­hi­bi­tion does not con­vert a dis­cre­tionary pow­er in­to a du­ty, and the Com­mis­sion­er did not re­quire a writ­ten pol­i­cy in or­der to de­cline to ex­er­cise the dis­cre­tion in the claimant’s favour,” he said.

Find­ing no breach of nat­ur­al jus­tice or pro­ce­dur­al fair­ness, Ram­per­sad not­ed that the TTPS uni­form­ly ap­plied the prac­tice of pro­mot­ing sus­pend­ed of­fi­cers on­ly af­ter their sus­pen­sions were lift­ed.

He al­so said Subero had been told his pro­mo­tion would be re­con­sid­ered if the charges were re­solved in his favour.

Ram­per­sad re­ject­ed Subero’s claims of con­sti­tu­tion­al breach­es be­cause the Of­fice of the At­tor­ney Gen­er­al was not ini­tial­ly named as a par­ty to the case.

He or­dered Subero to pay the le­gal costs in­curred by the TTPS in de­fend­ing the law­suit.

Subero was rep­re­sent­ed by Navin­dra Ram­nanan and Ricky Pan­do­hee. Krys­ta Jal­im, Janique Mitchell and Her­schell Bark­er rep­re­sent­ed the Po­lice Com­mis­sion­er’s Of­fice.