PITSILLIDOU ν. REPUBLIC
(1978)3 CLR 349 THE CYPRUS LAW REPORTS ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων
(1978)3 CLR 349 1978 December 13 [A. LOIZOU, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION ELPINIKI PITSILLIDOU, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC SERVICE COMMISSION, Respondent. (Case No. 251/77). Public Officers-Promotions-Post of Mental Nurse (Psychiatric)- Qualifications-Applicant and interested parties equally qualified- Seniority-Applicant senior to two of the interested parties- Merit-Confidential reports-Two of the interested parties better reported than applicant-And confidential reports of applicant and of the other three interested parties more or less the same- Interested parties recommended by Head of Department-Performance of candidates at the interview-Reasonably open to the respondent Commission, on the material before it, to arrive at the sub judice decision-Respondent Commission has not failed in its duty to select the best candidate-Principles on which this Court will interfere to set aside a decision of the Commission-Section 44
(2)of the Public Service Law, 1967 (Law 33/67). Public Officers-Promotions-Principles on which Court intervenes. The applicant, a Staff Nurse (F) (Psychiatric), was a candidate for the vacant post of Mental Nurse (Psychiatric), a first entry and promotion post. Out of thirteen candidates eleven were invited for an interview by the respondent Public Service Commission, which took place in the presence of the representatives of the Department of Medical Services. The Commission observed that during the interview the five interested parties gave very satisfactory replies to questions put to them and generally they proved to be the best candidates for appointment or promotion to the said post. The representatives of the Department stated that the interested parties were serving in the post of Staff Nurse, their services have been very satisfactory and that they considered them very suitable for the post of Mental Nurse. The Commission, after taking into consideration the above and all the facts appertaining to each candidate decided to promote the five interested parties. Hence the present recourse. Applicant and the interested parties possessed more or less the same qualifications but interested party No. 5 had also attended a post-graduate nursing course. Applicant was senior to interested party No. 5, slightly senior to interested party No.4 and junior to interested parties Nos. 1, 2 and 3. The confidential reports of applicant and interested parties Nos. 1, 2 and 3 were more or less the same, and if anything those of these interested parties were slightly better. Interested party No. 4 was better reported than applicant and interested party No. 5 was unquestionably the best of them all. Held, dismissing the recourse,
(1)that all the above material coupled with the recommendation of the representatives of the Department and the performance of the candidates at the interview lead this Court to the conclusion that the sub judice decision was lawfully taken by the respondent Commission in accordance with the provisions of section 44
(2)of the Public Service Law, 1967 and the general principles of Administrative Law; that the administrative discretion in the matter was duly exercised and this Court has not been persuaded that it should interfere with it, as on the material before the respondent Commission it was reasonably open to it to arrive at the sub judice decision.
(2)That the respondent Commission did not fail in its paramount duty to select the candidates most suitable for the post in question and this Court cannot intervene in order to set aside such a decision unless the applicant in a recourse satisfies it that he was an eligible candidate strikingly superior to those or anyone of those selected, a burden which the applicant has not discharged in this case.
(3)That, moreover, the sub judice decision is duly and cogently reasoned in all respects; that the preference of interested party No. 5 is explained by such material in the file regarding this candidate as the contents of the confidential reports, his performance at the interview and the view of the representatives of the Department; and that, accordingly, the present recourse will be dismissed. Application dismissed. Recourse. Recourse against the decision of the respondent Public Service Commission to promote the five interested parties to the post of Mental Nurse (Psychiatric) in preference and instead of herself. E. Lemonaris, for the applicant. C. Antoniades, Counsel of the Republic, for the respondent. P. Sarris, for interested party Pavios Georghiades. Cur. adv. vult. A. LOIZOU J. read the following judgment. By the present recourse the applicant seeks a declaration that the decision of the respondent Commission by which, 1. Androulla S. Nicolaidou, 2. Panayiota M. Chrysostomidou, 3. Angeliki Th. Petrou, 4. Frosoulla Prodromou, and 5. Pavios Georghiades (hereinafter to be referred to as the interested parties), were promoted to the permanent post of Mental Nurse (Psychiatric) instead of herself, is null and void and of no effect whatsoever. The application is based on the following grounds of Law: 1. The respondents disregarded applicant's superior merits, qualifications and seniority thus acting contrary to the provisions of s. 44
(2)of Law 33/67 and in abuse of powers.
- The respondents failed in their paramount duty to select the best candidate thus acting contrary to the principles of Administrative Law enunciated by the Supreme Constitutional Court in the case of Michael Theodossiou v. The Republic Vol. 2, R.S.C.C. 44 thus acting contrary to law and in abuse of powers.
- The respondents disregarded applicant's substantially greater seniority without cogent reasons, thus acting contrary to the decision of the Supreme Court in the case of Partellides v. The Republic
(1969)3 C.L.R. 480 and in abuse of powers.
- Respondents decision is not duly reasoned and/or the reasoning behind same is wrong in law or defective. The relevant facts of the case are as follows: The aforesaid post is a first entry and promotion post and out of the thirteen applicants, eleven were invited for an interview, which took place in the presence of Dr. K. Economou, Assistant Director of the Department of Medical Services and Dr. P. Matsas, Medical Superintendent, Psychiatric Institutions. The Commission, as well as the representatives of the department of Medical Services put several questions to all the candidates on matters of general knowledge and on matters connected with the duties of the post as shown in the relevant scheme of service, as it appears from the minutes of the meeting of the respondent Commission of the 5th May, 1977 which read as follows: "The Commission considered the merits, qualifications and experience of the candidates interviewed as well as their performance during the interview (personality, alertness of mind, general intelligence and the correctness of answers to questions put to them etc.). The Personal Files and the Annual Confidential Reports of the candidates already in the service were also taken into consideration. The Commission observed that, during the interview, Frosoulla G. Prodromou, Androulla S. Michaelidou, Angeliki Th. Petrou, Panayiota M. Chrysostomidou and Pavios Georghiou Georghiades gave very satisfactory replies to questions put to them and generally they proved to be the best candidates for appointment or promotion to the above post. The Representatives of the Department of Medical Services stated that the officers referred to in the preceding paragraph were serving in the post of Staff Nurse, their services have been very satisfactory and that they considered them very suitable for the post of Mental Nurse. After considering all the above and after taking into consideration all the facts appertaining to each one of the candidates and after giving proper weight to the merits, qualifications, abilities and experience of these candidates, as well as to their suitability for appointment to the above post as shown at the interview, the Commission came to the conclusion that the following candidates were on the whole the best. The Commission accordingly decided that the candidates in question be promoted to the permanent post of Mental Nurse (Psychiatric) w.e.f. 15.7.77: Frosoulla G. Prodromou, Androulla S. Michaelidou Angeliki Th. Petrou Panayiota M. Chrysostomidou Pavlos Georghiou Georghiades." A brief examination of the qualifications, career and confidential reports of the applicant and the five interested parties is inevitable for the determination of this recourse. All parties possess more or less the same qualifications. They are all graduates of secondary schools and registered Mental Nurses, having qualified in that respect in Cyprus, but interested party No. 2, Chrysostomidou and No. 3, Petrou are the holders of the Psychiatric Nursing Administration Certificate also. Interested party No. 5, Georghiades, however, was trained in England and in 1976 he was granted a nine months' scholarship in Community Psychiatric Nursing, which is recognized as a post-graduate nursing course, and successfully passed the required course assessment. The applicant entered the Medical Services in 1957 and became a Staff Nurse (F) (Psych.) on the 1st June,
- Interested party No: 1, Michaelidou entered the service in 1955 and became a Staff Nurse on Secondment on 1st January, and permanently on 1st February,
- Interested party No. 2, Chrysostomidou entered the service in 1956 and became a Staff Nurse on 1st March,
- Interested party No. 3, Petrou, entered the service in 1961 and became a Staff Nurse on the 1st March,
- These three interested parties are senior to the applicant. Interested party Prodromou, entered the service in 1958 and became a Staff Nurse on the 1st June, 1970, as the applicant. Being therefore a simultaneous promotion to this particular office, their seniority has to be determined under section 46
(2)of the Public Service Law, 1967, according to their previous seniority, in which again we see that they were both promoted to the post of Assistant Nurse, 1st grade, on the 1st November, 1968 and to the previous one on the 1st June,
- It is only when we go back to 1963 that we find that the applicant was made an Assistant Nurse on secondment on the 1st March of that year, whereas this interested party was made a Female Assistant on a Temporary basis in August
- Interested party Georghiades entered the service directly as a Staff Nurse on daily wages on the 1st January, 1971, obviously on the strength of his qualifications he possessed at the time, and his seven years of employment in U.K. in nursing. He was made permanent on the 1st July, 1971 which makes him the junior of them all. With regard to their Annual Confidential Reports I need not go into great detail. Suffice it to say that the confidential reports of the applicant and interested parties, Nos. 1, 2, and. 3 are more or less the same, if anything those of the said three interested parties are slightly better. Interested party Prodromou is definitely better reported than the applicant. In the report for the year 1974 she is stated to be one of the best Staff Nurses available, most progressive and promising with very good organizing and administrative abilities, tactful with patients and staff. Similar observations are to be found also for the year 1975-
- The confidential reports on Pavlos Georghiades are unquestionably the best of them all. All this material coupled with the recommendation of the representatives of the department and the performance of the candidates at the interview lead me to the conclusion that the sub judice decision was lawfully taken by the respondent Commission in accordance with the provisions of section 44
(2)of the Public Service Law, 1967 and the General Principles of Administrative Law. The administrative discretion in the matter was duly exercised and I have not been persuaded that I should interfere with it, as on the material before the respondent Commission it was reasonably open to it to arrive at the sub judice decision. The respondent Commission did not fail in their paramount duty to select the candidates most suitable for the post in question and this Court cannot intervene in order to set aside such a decision unless the applicant in a recourse satisfies it that he was an eligible candi5 date strikingly superior to those or anyone of those selected, a burden which the applicant has not discharged in this case. It is only in such a case that the administrative organ concerned is deemed to have exceeded the limits of its discretion and therefore to have acted in excess or abuse of its powers. Moreover the decision is duly and cogently reasoned in all respects. The preference of interested party Georghiades is explained by such material in the file regarding this candidate as the contents of the confidential reports his performance at the interview and the view of the representatives of the department. For all the above reasons the present recourse is dismissed but in the circumstances I make no order as to costs. Application dismissed. No order as to costs. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο