ANTONIADES ν. REPUBLIC
(1987)3 CLR 2154 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
(1987)3 CLR 2154 1987 January 4 [TRIANTAFYLLIDES. P.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION CHARALAMBOS ANTONIADES, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC SERVICE COMMISSION, Respondent. (Case No. 291/83). Public Officers - Promotions - Departmental Boards - Composition of- The Circular containing the arrangements relating to the functioning of such Board - Filling of a vacancy in a department, not in a Ministry - Composition regulated by para. 1(b), not para 1(a) of the Circular. Public Officers - Promotions - Irregularities - Considering in breach of para. 7of the Circular containing arrangement for the functioning of the Departmental Boards of additional candidates to those recommended by the Board - As no-one of such candidates was among the interested parties, the irregularity is not material- Confidential reports of one of interested parties not before Departmental Board - Irregularity of a minor nature, cured by the fact that the Commission had before it such reports. Public Offices - Promotions - Departmental Boards - Confidential reports for a particular year not yet prepared - Whether Board can take into consideration the performance of candidates during such year - In the circumstances question answered in the affirmative. By means of this recourse the applicant impugns the validity of the promotions of the interested parties to the post of Senior Warder. The interested parties were among those recommended by the Departmental Board, whilst the applicant was not. In addition to those recommended as aforesaid, the Commission decided to consider five additional candidates. Neither the applicant nor the interested parties were among those five persons. Held, dismissing the recourse:
(1)The recommendations of the Departmental Committee and the sub judice decision of the respondent Commission are parts of a composite administrative process. 2) The decision to consider for promotion the five candidates, who had not been recommended by the Departmental Board, was contrary to paragraph
(7)of the Circular containing the administrative arrangements governing the functioning of Departmental Committees, but the irregularity is not material. because the three interested parties were not among those additional five candidates. 3) The fact that the Departmental Board did not have before it the confidential reports file in respect of interested party Ioannou is a minor irregularity which was completely cured by the fact that, later on, the respondent Commission had before it the confidential reports filed in respect of Ioannou, too. 4) As the present case involved the filling of a vacancy in a Department (the Central Prisons) and not in a Ministry, the composition of the Departmental Board is regulated by para 1(b), and not, as suggested by counsel for applicants, by para 1(a) of the aforesaid circular. 5) Notwithstanding the absence of confidential reports for 1982, the Departmental Board, which consisted of officers superior to those considered, could not ignore the performance of the candidates for the year. 6) The complaint that the Departmental Board did not act in an advisory capacity, but in a binding manner, is unfounded. 7) Though the applicant was senior to the interested parties, it was reasonably open to the Departmental Committee to prefer the interest d parties because of their better confidential reports. Recourse dismissed. No order as to costs. Cases referred to: Michaeloudes v. The Republic
(1979)3 C.L.R. 56; Ioannou v. The Electricity Authority of Cyprus
(1981)3 C.L.R. 280; Agrotis v. The Electricity Authority of Cyprus
(1981)3 C.L.R.
- Recourse. Recourse against the decision of the respondent to promote the interested parties to the post of Senior Warder of Prisons in preference and instead of the applicant. A.S. Angelides, for the applicant. R. Gavrielides, Senior Counsel of the Republic, for the Respondent. Cur. adv. vult. TRIANTAFYLLIDES P. read the following judgment. By means of the present recourse the applicant is challenging the decision of the respondent Public Service Commission to promote, instead of him, interested parties A. Ioannou, A. Makkoufis and A. Panayiotou to the post of Senior Warder of Prisons. The post of Senior Warder is a promotion post. A Departmental Committee, under the chairmanship of the Director of Prisons, met on 6 December 1982 and, having considered ninety-six Prison Warders in relation to the filling of three vacant posts of Senior Warder, it decided to recommend twelve Prison Warders for promotion, amongst whom were all the interested parties, but not the applicant. On 23 December 1982 the Director of Prisons, in his capacity as Chairman of the Departmental Committee, informed the Public Service Commission that eight out of the remaining eighty-four had not been recommended because they did not possess the required qualifications and. that the remaining, seventy-six candidates, though they were qualified for promotion, were not recommended because they were inferior to those recommended. The respondent Commission at its meeting on 19 April 1983 decided to consider, together with those recommended; another five candidates, amongst whom was not the applicant. The sub judice decision to promote the three interested parties was reached by the Commission on 29 May
- Counsel for the applicant has mainly complained against the part of the administrative process which was conducted by the Departmental Committee, because the respondent Commission failed to consider the applicant as a candidate eligible to be promoted due to the fact that he was not recommended by the Departmental Committee. Counsel for the applicant has argued, in this respect, that the whole process constituted a composite administrative action and, therefore, if any part thereof, which is a prerequisite of the final act, is invalid it renders all acts whichfollow, including the sub judice decision, null and void; and reference was made, inter alia, to Michaeloudes v. The Republic,
(1979)3 C.L.R. 56, 71, 72, Ioannou v. The Electricity Authority of Cyprus,
(1981)3 C.L.R. 280, 299 and Agrotis v. The Electricity Authority of Cyprus,
(1981)3 C.LR 503, 513. I do agree that the recommendations of the Departmental Committee and the, sub judice decision of the respondent Commission are parts of a composite administrative process. The first issue raised by counsel for the applicant was that the decision of the Commission to consider as candidates for promotion another five. Prison Warders, in addition .to those recommended by the Departmental Committee, was contrary to paragraph
(7)of the Circular containing the administrative arrangements' governing the functioning of Departmental Committees. It is true that the second proviso to the said paragraph
(7)empowers the Public Service Commission to call for interview any candidate not recommended by a Departmental Committee whom it considers as suitable, or to advertise afresh a vacancy only in case those recommended by a Departmental Committee are not considered as suitable for appointment or promotion by the Commission. This was not the situation in the present instance and, therefore, the decision of the Commission to consider five additional candidates was an irregularity, but I cannot treat it as a material one leading to the annulment of the sub judice decision because the three interested parties were not among those additional five candidates. It has been further contended by counsel for the applicant that the Departmental Committee has failed to carry out a due inquiry because at its meeting on 6 December 1982 it did not have before it the confidential reports file in respect of interested party Ioannou, which at that time, was at the Attorney-General's Office. In my view this is a minor irregularity which was completely cured by the fact that, later on, the respondent Commission had before it the confidential reports file in respect of Ioannou, too. It has been, also, submitted on behalf of the applicant that the composition of the Departmental Committee was not in accordance with paragraph
(1)(a) of the relevant Circular in that its Chairman was not the Director-General of the Ministry of Justice. The said paragraph
(1)(a) is not, in my view, applicable in the present case because it relates to the filling of a vacancy in a Ministry and not to the filling of the vacancy in a Department, such as the Central Prisons, which comes under the Ministry of Justice and to this case it is paragraph
(1)(b) of the aforesaid Circular which is applicable. Counsel for the applicant has complained, also, that the Departmental Committee in submitting a. list of those recommended by it for promotion by the Public Service Commission was not acting in a merely advisory capacity, but in a binding manner, contrary to the relevant legislative provisions and, particularly, contrary to section .5 of the Public Service Law, 1967 (Law 33/67). In my opinion this complaint is unfounded. It is perfectly clear from all the material before me that the respondent Commission decided to promote the, three interested parties by exercising in an entirely unfettered manner its relevant discretionary powers and this is amply shown, too, by the fact that in this particular case the Commission decided to consider five more candidates in addition to those recommended by the Departmental Committee. Counsel for the applicant has contended that the seniority of the applicant over those recommended for promotion was wrongly disregarded by the Departmental Committee. Also, that the performance of the candidates in 1982 could not have been taken into account by the Departmental Committee as the confidential reports in respect of that year had not yet been prepared. Seniority is only one of the factors to be taken into account and inasmuch as the confidential reports for the interested parties were better than those for the applicant it was reasonably open to the Departmental Committee to prefer the interested parties. Moreover, the performance of the candidates in 1982 could not be ignored by their superiors who were members of the Departmental Committee. I have dealt with all the issues which were raised by counsel for the applicant: and which appeared to have merited specific mention in-this judgment. There were, also, raised some other minor issues to which I need not refer in particular as I have not found them to be of even prima facie significance. In the light of all the foregoing the present recourse fails and it is dismissed accordingly; but with no order as to its costs. Recourse dismissed. No order as to costs. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο