clr/1968/1968_3_653.pdf

(1965)3 C.L.R. 519) and/or having been made in excess or abuse of powers. The facts of this case are very shortly as follows: In 1958 the Applicant was a Land Clerk, 1st Grade, posted at Limassol. As from the 4th December, 1958, he was instructed to perform the duties of Director of the Lands Ofnceiat Limassol and on the 18th December, 1958 his acting appointment with effect from the 4th December 1958 as Lands Officer Class II, was published in the Official Gazette. On the 2nd May, 1963,the Respondent Public Service Commission considered the filling of the vacant posts of Lands Officer and decided to promote nine persons, including the Applicant to these vacant posts; the promotion of five of them, including the Applicant, was to be with effect from 1st January, 1963, and in the case of the other four as from the 1st May, 1963. The Commission did not deal with the question of the grant of additional increments to the officers thus promoted, but decided to inform the Director of the Department of Lands and Surveys that he could take up this matter with the Minister of Finance. The Applicant always took the position that he was aggrieved by the decision of the Commission to make his promotion with effect from the 1st January, 1963 only and not with effect from the date when he was appointed as Acting District Lands Officer, viz. from the 4th December, 1958 (supra). Hence his aforesaid former recourse No. 132/63 (supra), as a result of which the Court declared the aforementioned decision of the Public Service Commission dated the 2nd May, 1963 null and void but only in so far asit related to the date on which the Applicant's promotion became effective. The Grounds upon which the decision was annulled were (

1. a)the failure of the Commission to deal with the question of increments themselvesand (
2. b)the wrongprinciple applied by them in considering the question of the retrospective effect of the Applicant's 654 promotion and more particularly because their decision not tomakethe saidpromotion withretrospective effect asclaimed was not based on the merits of the case but on preconceived policy. Thejudgment in that recourse No. 132/63 concludes as follows: "For all the reasons stated in this Judgment, it is hereby declaredthat thedecisionofthe PublicService Commission to make the promotion of Applicant with effect from the 1st January, 1963, is null and void and of no effect whatsoever. The promotion itself is not annulled, only the decision regarding the date of its effect. The Commission has now to reconsider the matter of the date of effect of the promotion of the Applicant in the light of this Judgment." This the Commission proceeded to do on the 5th July, 1966, when they took the new decision, subject-matter of the present recourse, that the effective date of the Applicant's promotion should remain the 1st January, 1963, as it was originally decided (supra). It was argued by counsel for the Applicant that in considering afresh this case the Respondent Commission took into account matters other than those which they considered at the time of their original decision and he submitted that once that decision was annulled the new decision had to be based exclusively on those facts and circumstances on which the original decision was based as having not been affected by the Judgment and not on new facts and circumstances which in any event ought to have been known to the Public ServiceCommission at the timethe original decision was taken. Dismissing the recourse, the Court:Held,

(1). Once the decision was annulled and the Respondent had to reconsider the case it was perfectly legitimate for them to take into account all facts which existed at the time ofthe original decision irrespective of whether the decision annulled was in effect based on such facts or not, and they were not bound to base their new decision exlusively on the facts and circumstances on which the original decision was based.

(2)With regard to the two particular grounds as a result of which the original decision was annulled i.e. the question 655 1968 Nov. 22 PANTELAKIS Z . KYPRIANIDES V. REPUBLIC (PUBLIC SERVICE COMMISSION) 1968 Nov. 22 PANTELAKIS Ζ. KYPRIANIDES V. REPUBLIC (PUBLIC SERVICE COMMISSION) of increments and that of the retrospective promotion, it is quite clear both from the documents put in evidence that the Respondent Commission paid due regard to both these . matters before taking their new decision.

(3)It has been stated time and again that this Court will not interfere with a decision of the Commission by sub­ stituting its own discretion for that of the Commission, and so long as a decision of the Commission was reasonably open to them, on the material before them, the Court will confirm that decision, even if in exercising its own disretion on the merits it could have reached a different conclusion. Recourse dismissed with costs. Cases referred to: Kyprianides and The Republic

(1965)3C.L.R. 519; Constantinou and The GreekCommunal Chamber

(1965)3 C.L.R.

1. Recourse. Recourse against the decision of the Respondent to the effect that the effective date of the Applicant's promotion to the post of Land Officer in the Department of Lands and Surveys should remain the 1st January,
2. G. Cacoyiannis, for the Applicant. A. Frangos, Senior Counsel of the Republic, for the Respondent. Cur. adv. vult. The following Judgment* was delivered by: Loizou, J.: By this recourse the Applicant challenges the decision of the Respondent to the effect that the effective date of the Applicant's promotion to the post of Land Officer in the department of Lands and Surveys should remain the 1stJanuary, 1963andseeksadeclaration thatsuch decision is null and void and of no effect whatsoever as being contrary to the provisions of the Constitution and/or contrary to the decision of the Supreme Court in recourse No. 132/63 and/or as having been made in excess and/or in abuse of powers. There is a long history behind these proceedings and in fact this is the third recourse by theApplicant on substantially * For final decision on appeal see

(1970)6 J.S.C. 608 to be reported in due course in

(1970)5 C.L.R. 656 thesamesubject-matter. Butfor thepurposes ofthispresent case it is only necessary to refer to recourse No. 132/63, the Judgment in which was delivered on the 30th October, 1965 and by the Judgment the decision complained of in the said recourse wasdeclared nulland voidand of no effect and it was directed that the matter should be reconsidered in the light of the Judgment. The Judgment in recourse No. 132/63 is reported in

(1965)3 C.L.R. at p.

1. The factswhichleduptothatrecourseandwhicharealsomaterial in the present case are given in the said Judgment of the court at p. 524 et seq. andhavebeenadopted inthepresent case. They are shortly as follows: In 1958the Applicant wasaLand Clerk, 1stGrade, posted at Limassol. On the 4th December, 1958, the Land Officer posted at Limassol at the time, a certain Mr. Savvides, went on leave prior to his retirement which was due on the 26th February,
2. As from the 4th December, 1958, the Applicant wasinstructed toperform theduties of Director ofthe Lands Office at Limassol and on the 18th December, 1958, his acting appointment, with effect from the 4th December, 1958,asLandsOfficer, ClassII,waspublished intheGazette. This acting appointment went on until May, 1963, when the Applicant was promoted to the post of Lands Officer. (By this time, it would appear, the two classes of Lands Officer had been amalgamated into one uniform post). The Public Service Commission which had been dealing with the vacancies in the various government departments in turn, came to deal, as from 1962, with the Department ofLandsandSurveysandonthe2ndMay,1963,itconsidered thefillingofthevacantpostsofLandsOfficer. Theydecided to promote nine persons, including the Applicant, to these vacant posts; the promotion of five of them, including the Applicant, was to be with effect from the 1st January, 1963, and in the case of the other four as from the 1stMay,
3. The Commission did not deal with the question of the grant of additional increments to the officers thus promoted, but decided to inform the Director of the Department of Lands and Surveys that he could take up this.matter with the Minister of Finance, if he so thought proper. On the 6th May, 1963, the Commission informed the Applicant by a letter of even date of their decision; on the 657 1968 Nov. 22 PANTELAKIS Z . KYPRIANIDES V. REPUBLIC (PUBLIC SERVICE COMMISSION) 1968 Nov. 22 PANTELAKIS Ζ. KYPRIANIDES V. REPUBLIC (PUBLIC SERVICE COMMISSION) 18th May, 1963,theApplicant wrote back totheCommission and informed themthat heaccepted the offer for promotion but hewent on to say that hewas aggrieved by theirdecision to make his promotion with effect from the 1st January, 1963, only and not with effect from the date when he was appointed as Acting District Lands Officer. Further re­ presentations by the Applicant through his counsel were dismissed by the Public Service Commission and Applicant was requested to say clearly within fifteen days whether he was prepared to accept the promotion as offered to him or not. On the 5th July, 1963, the Applicant wrote to the Public Service Commission accepting the appointment in question at the same time reserving his rights to challenge the date of hispromotion throughcourtproceedings. Inconsequence recourse No. 132/63 was filed on the 31st August,
4. As statedearlier on,having heardthecasethecourtdeclared the decision of the Public Service Commission null and void in sofar asitrelatedtothedateof theeffect of the Appli­ cant's promotion. The grounds as a result of which the decision was annulled were (a)the failure of theCommission to deal with the question of increments themselves, as they ought to have done, instead of leaving it to the Head of Applicant's departmenttotakeupthematterwiththeMinistry of Finance,if hesothoughtproperand(b)thewrongprinciple applied by theminconsidering thequestion of theretrospecti­ ve promotionof theApplicant and moreparticularly because their decision not to make Applicant's promotion with re­ trospective effect was not based on the merits of the case but on preconceived policy. In dealing with ground (a) the court had this to say (at pp. 527-8). "When the Commission decides to promote an officer to a post, in which he has been acting for such a length of time as to give rise to the issue of whether or not his promotion ought to relate back to his acting service or any proper part thereof, as the case may be, and this is to be done, if decided upon, through the grant to such officer of increments above the minimum salary of the salary scale attaching to the post to which he is being promoted,as in the present Case, it is theduty of the Commission to decide the question of such in658 crements, because it is part and parcel of the effect of the promotion itself. Bysomehow leaving aside the question of the granting of increments to Applicant, the Commission, in dealing with the date of effect of Applicant's promotion, has failed to pay due regard to a most relevant consideration and has omitted to deal with a most vital aspect of the matter, thus bringing about an incomplete and defective exercise of its relevant discretion; consequently it has become necessary to annul its subjudice decision. (Vide Constantinou and The Greek Communal Chamber,

(1965)3 C.L.R. p. 96)". After dealing with the evidence given in that recourse bya member of the Public Service Commission and commenting thereon the learned Judge had this to say with regard to ground (b) (at pp. 528-29): "In my view, it cannot be a question of rigid policy whether or not a retrospective promotion ought to be made in a case such as the Applicant's where the acting appointment did not last for the usual reasonably short period required to fill a vacancy, but for nearly four and a half years, and during which period, through no fault of Applicant's, no decision was taken about filling the vacancy in which he was acting all along; this was a matter which ought to have been dealt with on its merits. The Commission may have paid due regard to all relevant factors, ascontained in the personal fileof Applicant but in the end it appears to have erroneously based itself not on the particular merits of Applicant's claim to a retrospective promotion, but on preconceived policy. I am of the opinion that such an approach to the question of the retrospectivity of the promotion ofApplicant constitutes, in this Case, a defective exercise of the relevant discretion of the Commission, in that it has not been based on all relevant considerations, and in the result the subjudice decision of the Commission has to be annulled". and then the Judgment goes on (at p. 529) as follows: "For all the reasons stated in this Judgment, it is hereby declared that the decision of the Public Service Com659 1968 Nov. 22 PANTELAKIS Z . KYPRIANIDES V. REPUBLIC (PUBUC SERVICE COMMISSION) 1968 Nov. 22 PANTELAKIS Ζ. KYPRIANIDES V. REPUBLIC (PUBUC SERVICE COMMISSION) mission to make the promotion of Applicant with effect from the 1st January, 1963, is null and void and of no effect whatsoever. The promotion itself is not annulled only the decision regarding the date of its effect. The Commission has now to reconsider the matter of the date of effect of the promotion of Applicant in the light of this Judgment". This the Commission proceeded to do on the 5th July, 1966, and exhibit 1 is the extract from the minutes of that meeting which relates to the present case. It was contended by learned counsel for the Applicant that in considering this case the Respondent took into con­ sideration matters other than those which they considered at the time of their original decision and he submitted that once thatdecision was declared null and void thenew decision had to be based exclusively on those facts and circumstances on which the original decision was based as having not been affected by theJudgment andnotonnewfacts andcircumstan­ ces which in any event ought to have been known to the Public Service Commission at the time the original decision was taken. 1 am of the view that once the decision was annulled and the Respondent had to reconsider the case it was perfectly legitimate for them totake intoaccountall facts which existed at the time of the original decision irrespective of whether the decision annulled was in effect based on such facts or not, and they were not bound to base their new decision exclusively onthefacts andcircumstancesonwhich the original decision was based. With regard to the two particular grounds as a result of which the original decision was annulled i.e. the question of increments and that of the retrospective promotion, it is quite clear both from the minutes of the meeting at which the decision complained of was taken (exhibit 1) and the letter by means of which the decision was communicated to the Applicant (exhibit 8) that the Commission paid due regard to both these matters before taking their new decision. It has been stated time and again and it is hardly necessary to repeat it that this Court will not interfere with a decision of the Commission by substituting its own discretion for that of the Commission, and so long as a decision of the 660 Commission was reasonably open to it, on the material before it, the Court will confirm that decision, even if in exercising its own discretion on the merits it could have reached a different conclusion. Having regard to allthecircumstances of thecase,it cannot, in my view, be said that it was not reasonably open to the Commission to reach the decision complained of and, therefore, I would not bejustified in interfering with such decision. Intheresultthis recoursemust fail and itishereby dismissed accordingly with costs. Application dismissed with costs. 661 1968 Nov. 22 PANTELAKIS Z. KYPRIANIDES V. REPUBLIC (PUBUC SERVICE COMMISSION)