1975 April 28 NIKI MICHAEL (No. 1) v. REPUBLIC (PUBLIC SERVICB [A. LOIZOU, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION NIKI MICHAEL (NO. 1), Applicant, and COMMISSION) THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC SERVICE COMMISSION, Respondent. (Case No. 289/74). Public Officers—Promotions—Topographer—Irrigation Engineer— Merits, qualifications, abilities and experience of candidates—As well as the recommendations of the Head of Department, the confidentialreports,thesix-monthly reportsandrepliestoquestions put to candidates during the interview—Duly taken into conside· 5 ration—Reasonably open to the respondent Commission to decide as it did—Sub judice decision a duly reasoned one—No abuse or excess of powers. Public Officers—Promotions—Qualifications—Not for Court to decide whether a person appointed was qualified in a case where it was \Q reasonably open to the Public Service Commission to find that he was so qualified. Public Officers—Promotions—Excess or abuse of powers—Burden of proof that Public Service Commission has acted inexcess orabuse of powers lay with the applicant. 15 Public Officers—Promotions—Discretionary powers—Principles on which Court interferes with the exercise of discretion by the Public Service Commission. Excess or abuse of powers—Burden of establishing. The applicant complained against the decision of the respondent Commission to appoint the interested party to the post of Topographer-Irrigation Engineer, a first entry post. • 136 20 5 10 15 20 25 The qualifications required for the said post are: " University Diploma or Degree as Topographer Engineer or Irrigation Engineer or an equivalent qualification. Good knowledge of English, integrity and good character. Administrative and organizing ability. Post-graduate experience in Topography and other water work project will be considered as an advantage". The Director of the Water Development Department was present at the relevant meeting of the Commission; and the Commission as well as the Director put several questions to all candidates on matters of general knowledge and on matters connected with the duties of the post. The Commission, after stating in its relevant minute that they took into consideration the personal files and the confidential reportsonthecandidates already intheservice,proceeded to observe that the interested party "gave very satisfactory replies to questions put to him and generally he proved to be the best candidate". They then stated that he is "in possession of adiploma inAgriculture, which heobtained from the University of Salonica in 1965, and an M.Sc. Degree in Irrigation which he obtained from the University of California (Davis) in 1971. Finally the Commission stated that "after taking into consideration allthe facts appertaining to each one of thecandidates and after giving 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 interested party was on the whole the best. Counsel for the applicant contended: 30 35 40 (a) That the interested Party did not possess the academic qualifications laid down by the scheme of service and that in any case the Commission did not carry out the sufficiently necessary inquiry into this most material aspect of the matter. (b) That the respondent Commission failed in its paramount duty to select the best candidate for the post and the sub judice decision is not duly reasoned. Held,
(1)The qualifications of the interested party were before the respondent Commission, and as it is well established, it isnot for the Court to decidewhether a person appointed was qualified in a case where it was reasonably open to the Com137 1975 April 28 NIKI MICHAEL (No. 1) V. REPUBLIC (PUBLIC SERVICE COMMISSION) 1975 April 28 mission to find that he was so qualified, as in the present case. (See, inter alia, Papapetrou and The Republic, 2 R.S.C.C. 61). NIKI
(2)On the totality of the circumstances, one is led to the conclusion that the Commission carried out a sufficient i n quiry regarding the qualifications of the interested party in the presence of the Director of the Water Development Department, an expert on the subject. MICHAEL (No. 1) v. REPUBLIC (PUBLIC SERVICE 5 COMMISSION)
(3)This Court will not interfere with the discretion of the Commission unless it is satisfied that it was improperly or wrongly exercised, which is not the case in the circumstances of 10 this recourse, the decision reached being reasonably open to the respondent Commission (See Koukoullis and Others and The Republic, 3 R.S.C.C. 134 at p. 137).
(4)The applicant upon whom the burden of proof lay has not discharged same by establishing that she had striking superiority over the interested party. 15
(5)I am satisfied that the subjudice decision is duly reasoned and their reasoning, to be found in the minutes, is fully supplemented from the material in the relevant files. Application dismissed. Cases referred to: Papapetrou and 77ie Republic, 2 R.S.C.C. 61; Josephides and The Republic, 2 R.S.C.C. 72; Koukoullis and The Republic, 3 R.S.C.C. 134, at p. 137; Neophytou v. The Republic, 1964 C.L.R. 280; 25 Athos Georghiadesv. The Republic
(1967)3 C.L.R. 653 at p.
- Recourse. Recourse against the decision of the respondent Public Service Commission whereby the interested party was seconded to the temporary (D) post of Topographer-Irrigation Engineer in preference and instead of the applicant. A. Xenophontos, for the applicant. A. Angelides, for the respondent. Cur. adv. vult. 138 30 20 The following judgment* was delivered by:A. Loizou, J.: The applicant is a Topographer Engineer specialized in designing and executing distribution systems and water engineering works. She obtained her diploma at the 5 National Technical University of Athens in
- Between August and December, 1970 she was employed on daily wages, as a Surveyor, Grade I in the Computer Section of the Department of Lands and Surveys. In March, 1971 she was employed as Topographer—Irrigation Engineer in the Water Development 10 Department where she worked on the raising of Galini—Kalo Chorio Klirou dam and on the design of the distribution system of the Morphou—Tilliria and the Kissonerga—Chloraka projects. The interested party obtained a diploma in Agriculture at the 15 University of Salonica in
- In January, 1966 he taught physics at the Paphos Gymnasium until May when he was employed by the Department of Agriculture as an Assistant Agricultural Officer, holding permanently that post since March,
- 20 25 Whilst in the Government Service he was awarded a twoyear scholarship for post-graduate studies at the University of Davis of California, where he obtained the degree of Master of Science in Irrigation in
- He is also the holder of a certificate of a five-week course on irrigation by the Israel Extension Service and of a certificate on computer programming. His duties, as they appear from the material in the files and in particular the six-monthly reports on officers serving on probation in exhibit 3 and the Annual Confidential Reports {exhibit 3(A)), were calculation of crop water requirements and 30 of the irrigable area from dams under the Cyprus Water Planning Project; designing improved systems of irrigation, engaging with the work of Morphou—Tylliria project on water use manners, including special studies of surface water utilization. In response to an advertisement in the official Gazette of the 35 Republic regarding a vacancy in the post of Topographer— Irrigation Engineer, a first entry post, ten applications were submitted. The respondent Commission invited eight of them for interview, among whom werethe applicant and the interested party. * For final judgment on appeal see p. 432 in this Part, post. 139 1975 April 28 NIKI MICHAEL (No. I) v. REPUBLIC (PUBLIC SERVICE COMMISSION) 1975 April 28 Νικι MICHAEL (No. 1) v. REPUBLIC (PUBLIC SERVICE COMMISSION) The Director of the Department of Water Development was present at the relevant meeting of the respondent Commission of the 26th February, 1974 when the interviews took place and the sub judice decision was reached. The Commission, as it appears from the relevant minute (enclosure 7), as well as the Director of the Water Development Department, 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 (enclosure 3). 5 These duties and responsibilities are—the carrying out of research and survey for large and small projects, for the super vision of water resources, irrigation, drainage systems and domestic water works, the preparation of plans for the con struction of channels, piping and other irrigation and water 15 work projects, supervision of the construction of the said pro jects and any other duties which might be assigned to the holder of the post. The .required qualifications are—University Diploma or Degree as Topographer Engineer or Irrigation Engineer or an 20 equivalent qualification. Good knowledge of English, integrity and good character. Administrative and organizing ability. Post-graduate experience in Topography and other water work projects will be considered as an advantage. The applicant claims that the interested party did not possess 25 the academic qualifications laid down by the scheme of service and that in any case the Commission did not carry out the sufficiently necessary inquiry into this most material aspect of the matter. The interested party gave evidence before me and stated that 30 the respondent Commission inquired with him as to the courses he took at the Davis University for his Master's Degree and. presented to them a list, copy of which has been produced to this Court as exhibit 6 and which includes, inter alia, water distribution systems, water resources engineering, drainage 35 engineering, hydrology, irrigation principles and practices, etc. On the totality of the circumstances, one is led to the con clusion that the respondent Commission carried out a sufficient inquiry regarding the qualifications of the interested party in the presence of the Director of the Water Development Depart- 40 140 10 ment, an expert on the subject. Also, in forwarding the interes ted party's application for the post in question, his Head of Department strongly recommended same and described the applicant as hard working, honest, capable and efficient officer. 5 The qualifications of the interested party were before the respondent Commission, and as it is well established, it is not for the Court to decide whether a person appointed was qualified in a case where it was reasonably open to the Commission to find that he was so qualified, as the present case is. (Vide 10 Papapetrou and The Republic, 2 R.S.C.C, p. 61, Josephides and The Republic, 2 R.S.C.C, p. 72, Koukoullis and The Re public, 3 R.S.C.C, p. 134, Neophytou v. The Republic, 1964 C.L.R., p. 280 and Athos Georghiadesv. The Republic
(1967)3 C.L.R. 653, at p. 668). 15 The last two grounds of law that may conveniently be taken together, are that the respondent Commission failed in its paramount duty to select the best candidate for the post and the subjudice decision is not duly reasoned, acting in this way, contrary to the established principles of Administrative Law. 20 The respondent Commission after stating in the relevant minute that it took into consideration the personal files and the confidential reports on the candidates already in. the service, says:- 25 30 · 35 40 " The Commission observed, during the interview, that Mr. Loucas P. Sawides gave very satisfactory replies to questions put to him and generally he proved to be the best candidate. Mr. Sawides is in possession of a Diploma in Agriculture, which he obtained from the University of Salonica in 1965, and an M. Sc. Degree in Irrigation which he obtained from the University of California (Davis) in 1971. After considering the above and after taking into con sideration all the facts appertaining to each one of the candidates and after giving weight to the merits, qualifi'cations, 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 decided that Mr. Loucas P. Sawides was on the whole the best and that he be seconded to the temporary (D) post of Topographer/ ' Irrigation Engineer w.e.f. 15.4.74". 141 1975 April 28 NIKι MICHAEL (No. I) · v. REPUBLIC (PUBLIC SERVICE COMMISSION) 1975 April 28 Νικι MICHAEL • ( N o . 1) v. REPUBLIC ( P U B L I C SERVICE COMMISSION) I have already referred to the recommendation of the Head of the Departmentto be found on the application submitted for the post. In addition, the respondent Commission had before it the confidential reports on the interested party, as well as the six-monthly reports prepared on officers serving on probation, 5 as the interested party was at the time, which reveal a con scientious person of considerable merit, capable, obedient, hard working with excellent efficiency and whose contribution to the work of the Morphou—Tylliria project which was the last one on which he was engaged before his appointment was judged 10 as very useful. As to the contention that the respondent Commission has acted in excess or abuse of powers in appointing the interested party, because, allegedly, he was not the most suitable for the post in question, 1 can only repeat what has been stated in 15 many similar cases, that, "this Court will not interfere with the discretion of the Commission in such a matter, unless it is satisfied that it was improperly or wrongly exercised", which is not the case in the circumstances of this recourse, the decision reached being reasonably open to the respondent Commission. 20 (Vide Koukoullis and Others and TheRepublic(supra), page 137). The applicant upon whom the burden of proof lies, has not discharged same by establishing that she had striking superiority over the interested party. In conclusion, I am satisfied that the sub judice decision is 25 duly reasoned and their reasoning to be found in the minutes, is fully supplemented from the material in the relevant files. For all the above reasons the present recourse fails, but in the circumstances I make no order as to costs. Application dismissed. 30 No order as to costs. 142