clr/1976/1976_3_237.pdf

(1975)3 C.L.R. 187 distinguished. Administrative Law—Adnnnistrative Act-—Relating to promotion of public officers—Presumption that it was reached after a correct ascertainment of .the relevant facts. 10 15 20 Public Officers—Promotions—Head of Department—Recommendations—No statutory requirement for their communication to the candidates—Section 44

(3)of the Public Service Law, 1967 (Law 33 of 1967). Natural Justice—Audi alteram partem—Rule of—Public officersPromotions—Recommendations of Head of Department—Non disclosure of, to candidates—Does not amount to violation of the said rule. Public Officers—Promotions—Promotion office—Filling of vacancies in—PublicService Commission undernoduty to inform candidates and ask them to supply their qualifications—Section 31

(2)of the • Public Service Law, 1967 (Law 33 of 1967). Public Officers—Promotions—Head of Department—Presence and participation at the deliberations of the Public Service Commission —Section 18 of the Public Service Law, 1967 (Law 33 of 1967). Public Officers—Confidential Reports—Adverse confidential reports— 237 V· REPUBLIC (PUBLIC SERVICE COMMISSION) THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC SERVICE COMMISSION, 5 AND ANOTHER 1976 Aug. 31 PANTELIS Τ Η . MlCHANICOS AND ANOTHER v. REPUBLIC (PUBLIC SERVICE COMMISSION) Non communication to officerconcerned—Effect—Section 45

(4)of the PublicService Law, 1967(Law 33 of 1967). PublicOfficers—Promotions—Post of AssistantCollector ofCustoms —Selection of the most suitable candidate—Factors to which the PublicServiceCommission is required to havedue regard—Se­ ction 44

(3)of the PublicServiceLaw, 1967—Merit, qualifica­ tions,seniorityandrecommendations of Head of Department— RespondentCommission did notfail in its paramountduty to select the most suitablecandidate, in the circumstances of this particular case. 10 Public Service Commission—-Decision of, relating topromotions— Cannot be interfered withunless it hasbeenestablished thatthe persons not selected didhavestrikingsuperiority over those se­ lected—Onus insuch a caseliesalwayson the applicants—Who havefailed to discharge thisburden in theinstant case. 15 Public Officers—Promotions—Head of Department—Recommenda­ tions—Shouldweighwith the Public Service Commission and shouldnot be lightly disregarded. Public Officers-—Promotions—Seniority—Is not by itself the deter­ miningfactor but part of the overall picture of each candidate. 20 The applicant Pantelis Michanicos by means of Recourse No. 374/74challenges the validityof thepromotion of interested parties Lambis, Antoniades andChrysochou to thepost ofAs­ sistant Collector of Customs inthe Departmentof Customsand Excise and applicant Hadjilosif challenges the promotion of interested party Lambis only by means of recourse No.380/74. Regarding the qualifications of the two applicants andthe interested parties, with the exception of interested party Chrysochos, who was theholder of a diploma in law from Athens University, no oneelse possessed any qualification which con­ stituted anadvantage under the relevant scheme ofservice. Ap­ plicant Michanicos, however, has passed more General Certi­ ficateof Education subjects, both ordinary andadvanced, than any of the interested parties. Andwith regard totheir seniority interested party Lambis was senior to both applicants butap­ plicant Michanicos wassenior to thetwootherinterested parties. The picture of the merit of the candidates appeared inthe confidential reports (see pp. 251-252post). By means of a letter of recommendation dated May23,1974, 238 25 30 35 addressed to the Public Service Commission, the Head of Department named the officers who were considered by him as suitable for promotion. Applicant Hjilosif was included in this letter but applicant Michanicos was not. 1976 Aug. 31 PANTELIS TH. MICHANICOS AND ANOTHER 5 The Head of Department who was present at the relevant meeting* of the Commission stated that heconsidered interested parties Lambis, Antoniades and Chrysochou as the best and recommended them for promotion. Counsel for the applicants contended: 10

(1)That applicant Michanicos was excluded from the list of candidates considered by the respondent Commission because he was neither mentioned in its minutes nor included in the letter of recommendation of the Head of Department dated May 23, 1974. 15

(2)That the said recommendation of the Head of Department (dated May 23, 1974) was not communicated to applicant Michanicos and that the omission to communicateitamounted toaviolation oftheaudialterampartem rule of natural justice. 20 25

(3)That although under section 31

(2)of the Public Service Law, 1967 (Law 33 of 1967) a vacancy in a promotion office shall be filled without advertisement by the promotion of an officer service in the immediately lower grade or office the administration had a duty to inform thecandidates andaskthem tosupply their qualifications. 30

(4)That there was no room for a Head of Department to be present at the deliberations of the respondent Commission and that such presence made the composition of the collective organ faulty and any decision taken null and void.

(5)That the choice was not made by the Commission but by the Head of Department himself. 35

(6)That the omission of the Head of Department to disclose to applicant Michanicos an unfavourable comment made by the former in the annual confidential report of 1971 amounted to a violation of section 45

(4)of the Public See the minutes of the Commision at pp. 247-248 post. 239. v. REPUBLIC (PUBLIC SERVICE COMMISSION) 1976 Aug. 3V PANTELIS TH, MICHANICOS AND ANOTHER v. REPUBLIC (PUBLIC SERVICE COMMISSION) Service Law, 1967 and to a ground for annulment of the sub judice decision. Held, (I) with regard to contention

(1)above: That as according to its minute the respondent Commission considered "the merits, qualifications, seniority, service and 5 experience of all the officers serving in the post ofCustoms and Excise Officer 1st Grade", and as applicant was one of the officers serving in the said post, his complaint that he was excluded from the list of candidates considered by the Commission, cannot stand; and that, in this case, the presumption that the admi- 10 nistrative act in question was reached on this point, after a correct ascertainment of the relevant facts, is applicable (see Republic v. Ekkeshis

(1975)3 C.L.R.- 548 at pp. 556-557; Kyprianou (No. 2) v. 7Vie Republic is clearly distinguishable on its very facts). 15 Held, (//) with regard to contention

(2)above: That under section 44

(3)of the Public Service Law, 1967, in making a promotion, the Commission must have due regard to the recommendations made in that respect by the Head of the Department in which the vacancy exists; that there is no statu- 20 tory requirement calling for the communication of such recommendation to the candidates; and that the non-disclosure of the said recommendation does not amount to a violation of the audi alteram partem rule of natural justice, which is neither provided for in the statute nor is it to be read into it because of 25 the nature of the inquiry conducted for the purpose of a promotion. Held, (Hi) with regard to contention

(3)above: That the administration had no duty, under section 31

(2)of the Public Service Law, 1967, to inform the candidates and ask 30 them to supply their qualifications; that it is not the function of this Court to supplement the legislation and read into it provisions that cannot be found in it; and that apart from the personal file which normally contains all necessary material regarding a public officer's career in the Government Service, 35 therearetheconfidential reports which every year afford a public offiicer the opportunity of himself including on the front page in Section I thereof, everything relating to his duties and additional qualifications obtained during the year covered by such confidential report. 40 240 - Held, (IV) witli'regard to contentions

(4)and

(5)above: ' 5 10 15 20 25 30 35 40

(1)That as.it appears from its relevant minute the respondent Commission inquired into the merits of the recommendations of the Head of the Department, as compared with the annual confidential reports on all the candidates who had been considered by the Commission and then it is stated that having regard to the assessments made in their annual confidential reports as well as their seniority"and qualifications, he (the Head of Department) considered Messrs." Charalambos Lambis, Antonios Antoniades and Eleftherios Chrysochos as the best and recommended them for promotion; that this is not a"participation in the deliberations of the Commission but a review by him, for the reasons stated in the minute, of his own original recommendation; and that this was duly authorized by the Law (s. 18) and consistent with the practice of the respondent Commission to summon the Head of the Department to be present at .their meetings, as it appears from the reports of this Court.

(2)That the Commission having ascertained what the final recommendation of the Head of the Department was, proceeded to deliberate itself, by saying in another paragraph of its minutes, "Bearing in mind all the above and after giving due regard to the annual confidential reports accordingly decided that the candidates in question be promoted"; that there is nothing in the aforesaid minute showing or suggesting that the Head of the Department was present when the principal face of their meeting, that is, that of discussion and voting, took place, nor any evidence was called, to that effect, by the applicant; and that it is, therefore, not necessary for this Court to decide whether the decision should have been annulled had he remained there until the end of their meeting although it is doubtful if mere presence is enough reason to annul a decision. Held, (V) with regard to contention

(6)above: That the non-communication to the applicant of the adverse comment in his confidential report (see s. 45

(4)of the Public Service Law, 1967) is not a reason for annulment of the sub judice decision but its only consequence is the disciplinary liability of the person responsible for the non-communication (see, inter alia, Kyriacopoulou v. The Republic,

(1973)3 C.L.R. 1 at p. 12). Held, (VI) on the question whether the respondent Commission chose the most suitable candidatesfor the post in question:

(1)That there was a complete record regarding each candidate 241 1976 Aug". 31 PANTELIS T H . -MICHANICOS A N D ANOTHER v. REPUBLIC (PUBLIC SERVICE COMMISSION) 1976 Aug. 31 PANTELIS Τ Η . MICHANICOS AND ANOTHER v. REPUBLIC (PUBLIC SERVICE COMMISSION) including the confidential reports on the candidates and the recommendations made for the purpose of the said promotion by theHeadof the Department,factors towhich therespondent Commission is required by section 44

(3)of the Public Service Law, 1967 to have due regard, particularly so, to the recom- 5 mendations of the Head of the Departmentwhich, as repeatedly stated, should have weighed with the respondent Commission and should not have been lightly disregarded (see Theodossiou andTheRepublic, 2R.S.C.C.44at p.48);and that the subjudice decision was reached after due inquiry in a proper exercise of 10 administrative discretion inasmuch as all relevant factors were taken into account,there has been no misconception of fact and it is duly reasoned.

(2)That being a selection for promotion on merit, qualifica­ tions and seniority, the respondent Commission did not fail in 15 their paramount duty to select the candidate most suitable, in the circumstances of the particular case for the post in question, and this Court, as it has been repeatedly stated, cannot interfere with such a decision and set aside same, unless it has been esta­ blished thatthepersons not selected did have striking superiority 20 over those selected and the onusin such a case liesalways onthe applicant in a recourse (see Evangelou v. The Republic,

(1965)3 C.L.R. 292 at p. 300 and Georghiades and Another v. The Republic,

(1970)3 C.L.R. 257 at 263); and that in the present case both applicants have failed to discharge this burden. 25

(3)That with regard to the seniority of applicant Michanicos as against the two of the three interested parties, this Court repeats what was said in the case of Evangelou v. The Republic

(1965)3C.L.R. 292,thatseniority by itselfisnotthedetermining factor but part of the overall picture of each candidate; that in 30 the present case seniority had to be weighed in relation to the contents of the confidential reports and the recommendations madeby the Headof the Department,andin thecase of interest­ ed party Chrysochos his diploma in law as well which consti­ tutes an advantage under the scheme of service; and that, there- 35 fore, both recourses will have to be dismissed. Applications dismissed. Cases referred to: Republic v. Ekkeshis

(1975)3 C.L.R. 548 at pp. 556-557; ' Kyprianou (No. 2) v. TheRepublic

(1975)3 C.L.R. 187; Pearlberg v. Varty (Inspector of Taxes) [1972] 2 AH E.R. 6 at pp. 11, 17; 242 40 5 10 Arsalides v. Republic

(1965)3 C.L.R. 706 at p.711; . Pierides v. Republic

(1971)3 C.L.R. 233 at p. 250; Kyriacopoulou v. Republic

(1973)3 C.L.R. 1at p. 12; Korai and Another v. C.B.C.

(1973)3C.L.R. 546at pp. 570and 573; Petridesv. Republic

(1975)3 C.L.R. 371; Theodossiou and Republic, 2 R.S.C.C. 44 at p. 48; Evangelou v. Republic

(1965)3 C.L.R. 292 at p. 300; Georghiades andAnother v. Republic

(1970)3 C.L.R. 257 at p.

1. Recourses. Recourses against the decision of the respondent Public Service Commission to promote the interested parties to the permanent post of Assistant Collector of Customs in preference 15 and instead of the applicants. A. Emilianides with K. Talarides, for the applicant in case No. 374/
2. L. Papaphilippou, for the applicant in Case No 380/
3. Gl. Michaelides, for the respondent in both Cases. 20 Cur. adv. vult. The following judgment was delivered by:A. Loizou, J.: The respondent Commission at its meeting of the 27th May, 1974 considered the filling of vacancies in the Department of Customs and Excise and, inter alia, it promoted 25 to the permanent post of Assistant Collector of Customs, with effect from the 1st June, 1974, Charalambos Lambis, Antonios Antoniades and Eleftherios Chrysochou. The validity of the decision for the promotion of all three interested parties is challenged by Pantelis Michanicos in Recourse No. 374/74, whereas 30 applicant losif Hadjilosif ischallenging by Recourse No. 380/74, the promotion of Charalambos Lambis only. The two recourses were, by consent of the parties, tried together, as they presented common questions of law and fact and they related to the same administrative decision. 35 According to the relevant scheme of service (exhibit 1,end. 2), the post of Assistant Collector of Customs is a promotion post from the immediately lower post of Customs and Excise Officer, 1st Grade. The qualifications for the said post are, "a good general education not below the standard of a six-year seconda243 1976 Aug. 31 PANTELIS TH. "MICHANICOS AND ANOTHER v. REPUBLIC (PUBLIC SERVICE COMMISSION) 1976 Aug. 31 PANTELIS Τ Η . MICHANICOS AND ANOTHER v. REPUBLIC (PUBLIC SERVICE COMMISSION) ry school. Wide practical experience of the department's work. The ability to encourage, manage and control staff and to deal tactfully but firmly with subordinates and members of the public as necessary. Ability to write clear and balanced reports. A very good knowledge of Greek and English or of Turkish and 5 English. A University diploma or degree or other equivalent qualification in commerce, economics, law (including Barristerat-law), or accountancy will be an advantage". Persons appointed in the Civil Service before the 1st Decem­ ber, 1961, either permanently or temporarily and/or serving on 10 a monthly basis on the 1st February, 1968 who had a certificate of a five-year secondary school or other equivalent qualification or although they do not possess such a certificate or qualifica­ tion, have a general knowledge of a standard considered as equal to the level of a five-year secondary school, could be con- 15 sidered as suitable for appointment or promotion,if they possess the other qualifications. According to its minute the respondent Commission con­ sidered "the merits, qualifications, seniority, service and ex­ perience of all the officers serving in the post of Customs and 20 Excise Officer, 1st Grade, as reflected in their personal files and in their annual confidential reports". The complaint therefore, of applicant Michanicos that he was neither mentioned in the minutes of the respondent Commission by name, not included in the letter of recommendation of the Director of the 23rd May, 25 1974 (exhibit 1, encl. 5) cannot stand, as he was one of the offi­ cers "serving in the post of Customs and Excise Officer, 1st Grade" expressly stated to have been considered by the respon­ dent Commission for promotion. In the absence of any evi­ dence or other indication to the contrary that he was either 30 intentionally or mistakenly, as claimed, excluded from the list of candidates considered by the respondent Commission, this complaint must fail. If anything, it applies in this instance, the presumption that the administrative act in question was reached on this point, after a correct ascertainment of the relevant facts. 35 (See The Republic v. Ekkeshis,

(1975)3 C.L.R. 548 at pp. 556557 and the authorities therein stated). The case of Pantelis Kyprianou (No. 2) v. The Republic

(1975)3C.L.R. 187, is clearly distinguishable on its very facts. In the aforementioned letter of recommendation the Director of the Departmentof Customs and Excise, informed the respon- 244 40 5 10 dent Commission that, from among the officers 1st Grade he considered as suitable for promotion, in order of seniority, Messrs. Charalambos Lambis, P.M. Papadopoulos, Antonios Antoniades, Costas Hj. Stylianou, Eleftherios Chrysochou, Loizos Constantinou, losif Hj. losif, Georghios Asprou and Andreas Petrou, and added that special attention should be given to Eleftherios Chrysochou who possessed a University Diploma in law, Loizos Constantinou who was the back-bone in the Administration Section of the Headquarters and losif Hj. losif, the applicant in Recourse No. 380/74 who "impresses with his unprecedented and effective action in the anti-smug­ gling Investigation Section of the Department". The said recommendation was not communicated to the applicant and it has been argued that this omission amounted to 15 a violation of the rules of naturaljustice, which, I take it to refer to the rule regarding the right of one to be heard, the audi alterampartem rule. Under section 44

(3)of the Law, in making a promotion, the Commission must have due regard to the recommendations 20 made in that respect by the Head of the Department in which the vacancy exists. There is no statutory requirement calling for the communication of such recommendation to the candi­ dates. As stated by Lord Hailsham in Pearlberg v. Varty (Inspector of Taxes) [1972] 2 All E.R. p. 6 at p. 11, 25 30 " It is true, of course, that the Courts will lean heavily against any construction of a statute which would be ma­ nifestly unfair. But they have no power to amend or supplement the language of a statute merely because on one view of the matter a subject feels himself entitled to a larger degree of say in the making of a decision than the statute accords him". β In the same case, Lord Pearson, at p. 17, also said:- 35 40 " But where some person or body is entrusted by Parliament with administrative or executive functions, there is no presumption that compliance with the principles of natural justice is required, although, as 'Parliament is not to be presumed to act unfairly', theCourtsmay be able in suitable cases (perhaps always) to imply an obligation to act with fairness. Fairness, however, does not necessarily require a plurality of hearings or representations and counterrepresentations. If there were too much elaboration of 245 1976 Aug. 31 PANTELIS TH. MICHANICOS AND ANOTHER v. REPUBLIC (PUBLIC SERVICE COMMISSION) 1976 u ^_ PANTELIS TH. MICHANICOS AND ANOTHER v. . .REPUBLIC (PUBLIC SERVICE COMMISSION) . procedural safeguards, nothing could be done simply and ' quickly and cheaply. Administrative or executive efficiency and economy should not be too readily sacrificed". . " * n t n e P r e s e n t case > justice and fairness cannot be invoked to supply the absence of a legislative provision calling for the dis- 5 closure of a recommendation to the candidates concerned or likely to be affected thereby. A recommendation made under section 44

(3)of the Law and at that a recommendation of the nature of the one in hand submitted to the Public Service Commission as part of the material to be considered by it in deciding 10 a promotion, does not cast a duty on the Commission to communicate its contents to a candidate. Its non-disclosure does not amount to a violation of the audialterampartem rule which is neither provided for in the stature nor is it to be read into it because of the nature of the inquiry conducted for the purpose 15 of a promotion. The next point raised is that although under section 31

(2)of the Public Service Law, 1967 (Law 33/67) a vacancy in a promotion office shall be filled without advertisement by the promotion of an officer serving in the immediately lower grade 20 or office of the particular section or sub-section of the Public Service, yet, the administration had a duty to inform the candidates and ask them to supply their qualifications, and this, inspite of the fact that the applicant does not claim to have obtained any qualifications between the period covered by the 25 last confidential report that was before the Commission, namely, the one for the year 1973 and May, 1974 when the sub judice decision was taken. I am afraid I cannot subscribe to that view; it is not the function of this Court to supplement the legislation and read into 30 it provisions that cannot befound irlit. Apart from the personal file which normally contains all necessary material regarding a public officer's career in the Government Service, there are the confidential reports which every year afford a public officer the opportunity of himself including on the front page in Section 35 I thereof, everything which relates to his duties, hobbies, courses and additional qualifications during the year covered by such confidential report. (See also the case of Arsalides v. The Republic

(1965)3 C.L.R. p. 706 at p. 711). Before dealing with the grounds of law relating to the choice 40 of the most suitable, candidate for the post and questions of 246 qualifications, merit and seniority argued also by Mr. Emilianides on behalf of applicant Michanicos, I think it is proper, at this stage,to turn to the legal groundsthat have been argued on behalf of the same applicant, by Mr. Talarides who also ap5 peared for him; but it will be helpful, however, if I quote from the minutes of the respondent Commission, (exhibit1,encl.4) which, after referring to the contents of the letter of recommendation, read as follows:10 15 20 25 30 35 40 " The Director of the Department of Customs and Excise, who was present at this meeting reiterated the above and stated that the services of all the officers referred to above had been very satisfactory; the Director of the Department added that Messrs. E. Chrysochou, L. Constantinou and J. Hadji Joseph were better than the remaining candidates and could perform the duties of the post of Assistant Collector of Customsin an excellent manner. The Director of the Department added further that Mr. E. Chrysochou possesses a legal qualification and is an excellent officer and that Messrs. L. Constantinou and J. Hadji Josephwere devoted to their work. The Director of the Department agreed, however, that seniority should be taken into considereation in selecting themost suitable candidates. With regard to Mr. A. K. Kousoulides,who wasone of themost senior candidates, the Director of the Department stated that the candidate in question did not show willingness to assume more responsibilities. After the Annual Confidential Reports of all the candidateshad been considered bytheCommission, the Director oftheDepartment ofCustomsand Excisestatedthat having regard to theassessmentsmadeintheirAnnual Confidential Reports as well as their seniority and qualifications, he considered Messrs. Charalambos Lambis, Antonios Antoniades and Eleftherios Chrysochou as the best and recommended them for promotion. Bearing in mind all the above and after giving due consideration to the Annual Confidential Reports of all the candidates as well as to the views and recommendations of . the Director of the Department of Customsand Excise, 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 247 1976 Aug. 31 PANTELIS T H . MICHANICOS A N D ANOTHER v. REPUBLIC (PUBLIC SERVICE COMMISSION) 1976 Aug. 31 PANTELIS T H . MICHANICOS AND ANOTHER· v. REPUBLIC (PUBLIC SERVICE COMMISSION) promoted to the permanent post of Assistant Collector of Customs w.e.f. 1.6. 1974: Charalambos Lambis Antonios Antoniades Eleftherios Chrysochou." Two main points, divided in more parts, were made by Mr. Talarides. Thefirstpart of the first point isthat on the lawas it stands, there is no room for a Head of a Department to be present at the deliberations of the respondent Commission, that such presence makes the composition of the collective 10 organ faulty and any decision taken null and void. The second part of the first point is that the choice was not made by the Commission but by the Head of the Department himself. Counsel for the respondent relied on the provision of section 15 18of the Public Service Law, 1967,which empowers the Commission to require any public officer—which term includes the Head of a Department—"to attend . . . . or assist the Commission concerning any matter which the Commission is required to consider in the exercise of its functions ". 20 As it appears also from the minute set out hereinabove, the respondent Commission inquired into the merits of the recommendations of the Head of the Department, as compared with the annual confidential reports on all the candidates who had been considered by the Commission and then it is stated that 25 having regard to the assessments made in their annual confidentialreports as well as their seniority and qualifications, he considered Messrs. Charalambos Lambis, Antonios Antoniades and Eleftherios Chrysochos as the best and recommended them for promotion. This isnot a participation in the deliberations 30 of the Commission but a review by him, for the reasons stated in the minute, of his own original recommendation. This was duly authorized by the Law(s.18supra) and consistent with the practice of therespondent Commission to summon the Head of the Department to be present at their meetings, as it appears 35 from the reports of this Court. The Commission having ascertained what the final recommendation of the Head of the Department was, proceeded to deliberate itself, by saying in another paragraph of its minutes, "Bearing inmind alltheaboveandafter givingdueregard tothe 40 248 5 annual confidential reports accordingly decided that the candidates in question be promoted". There is nothing in the aforesaid minute showing or suggesting that the Head of the Department was present when the principal face of their meet5 ing, that is, that of discussion and voting, took place, nor any evidence was called, to that effect, by the applicant. It is, therefore, not necessary for me to decide whether the decision should have been annulled had he remained there until the end of their meeting although I doubt if mere presence is enough reason to 10 annul a decision. The second point of Mr. Talarides arises from the fact that in the case of his client there was in the annual confidential report for the year 1971,an unfavourable comment by the Head of the Department, which reads: "Despite his academic advancement 15 his work suffers from lack of zeal and tact in his dealings with the public. Unsuitable to hold a higher post". Of course, there followed two other annual confidential reports, namely one for 1972and the other for 1973,the two years preceding the sub judice decision, and, therefore, this is not an instance that falls 20 within section 44(l)(c) of Law 33/67, to the effect that he could not be promoted as he had been reported upon in the last two annual confidential reports as unsuitable for promotion. More so, because in the said last two confidential reports, the comment of the Head of theDepartment is in respect of 1972that "he has 25 the ability and should do better than at hiswork", and in respect of 1973,"an officer of high academicmerit. In the performance of his duties he shows considerable improvement". 30 35 The point made is that under section 45

(4)the person preparing a confidental report of a particular officer in which the latter is criticized for negligence, failures or improper behaviour in the performance of his duties, must, on the submission thereof, communicate to the officer concerned, this part of the report and, therefore, the omission to disclose to him amounts to a violation of the aforesaid statutory provision and a ground for annulment of the subjudice decision. The question of non-disclosure of unfavourable reports and the effect of such omission, was considered in a number of cases. In Pieridesv. TheRepublic

(1971)3C.L.R. p.233at p.250where Hadjianastassiou, J. had this to say: 40 " In the absence of any authority, lack of communication to the officer concerned does not make the report null and 249 1976 Aug. 31 PANTELIS TH. - MICHANICOS AND ANOTHER v. REPUBLIC (PUBLIC SERVICB COMMISSION) 1976 Aug. 31 PANTELIS T H . MICHANICOS AND ANOTHER v. REPUBLIC (PUBLIC SERVICE COMMISSION) void, simply because if such a serious consequence was intended by the legislature, it ought to have been specifically referred to in the Public Service Law, 1967. I think the view I have taken in this judgment is supported by Stassinopoulos in his textbook on the Lessons on Administrative Law, 1957, 2nd edn. at p. 347". 5 ThenwehavethecaseofKyriacopoulouv. The Republic

(1973)3 C.L.R. p. 1at p. 12 where I said with reference to the corresponding section 36

(3)of the Public Educational Service Law, 1969 (Law 10/69). 10 ".... I would again say that the non-communication to the applicant ofsuchpart that hadtobecommunicated wasnot a reason to annul a decision subsequently taken, in viewof the wording of the section which did not provide for the annulment of a decision taken in reliance to such a report. 15 Similar approach has been consistently taken by the Greek Council of State in relation to analogous provisions to be found in section 92of the Code of the Civil Administrative Servants. It was found that the obligation to communicate tocivil servantsadversereportshasaconsequence only 20 the disciplinary liability of the person responsible for such violation, but not theannulment of the non-communicated report and the annulment of the decision based thereon. (SeeDecisions oftheGreek Council ofState, Nos.2345/62, 1438/67,732/68 &1213/69)". 25 The third case is that of Korai and Another v. Cyprus Broadcasting Corporation

(1973)3C.L.R. 546atpp. 570and 573where reference ismade to the similar situation in Greece and inparticular to Decisions of the Greek Council of State Nos. 1438/67 and 742/1968and recently in thecaseofPetridesv. TheRepublic 30

(1975)3C.L.R. 371,where L. Loizou, J. approached thematter in the same way. In the light oftheaforesaid exposition ofthelawand theconsistency with which cases were decided along the same line by thisCourt,IseenoreasonwhyIshoulddepartfrom itandannul 35 a decision for the non-disclosure of an expression of opinion, adverse in character, in a confidential report. Regarding the qualifications of the two applicants and the interested parties, it should be pointed out that with the exception of interested party Chrysochos who is the holder of a 40 250 diploma in law from Athens University, no one else possesses any qualification which, under the scheme, constitutes an advantage. It would bean omission, however, ifit was not noted that applicant Michanicos has passed more General Certificate of Education subjects both ordinary and advanced, than any of the interested parties. 1976 Aug. 31 PANTELIS T H . MICHANICOS A N D ANOTHER F. REPUBLIC 15 With regard to their seniority, interested party Lambis was promoted to the post of Customs and Excise Officer, 1st Grade, on 1.3. 1964. Applicant Michanicos on 1.7. 1965, applicant Hj. losif on 1.8. 1967 on which date interested parties Antonios Antoniades and Eleftherios Chrysochos were also promoted to the same post. It is apparent,, therefore, that interested party Lambis is senior to both applicants under section 46

(1)of the Public ServiceLaw, 1967,whereas applicant Michanicos is senior to interested parties Antonios Antoniades and Eleftherios Chrysochos. I need not determine under section 46

(2)of the Public Service Law, the seniority of applicant Hj. losif as against interested parties Antoniades and Chrysochos by examining these officers' 20 previous seniority, as their promotion is not challenged by him. The picture of the merit of each candidate, is to be found, of course, in the confidential reports prepared annually in respect of each one of them. In addition to the comments made regarding applicant Michanicos, to which I have already referred, 25 heisrated in themore recent confidential reports, namely for the years 1970, 1971, 1972 and 1973, as very good on most ratable items, and for some of them, especially in the last two reports, he is rated as excellent. Applicant Hj. losif israted as excellent in the last confidential 30 report and in the remaining reports, for the years 1970, 1971and 1972, he is rated, generally speaking, as excellent. The Head of the Department makes for him the following observation in the 1973report: "He does not only possess to an admirable degree an inherent talent for investigation work; he is also widely ex35 perienced in customs procedures and can discharge and has often been entrusted with duties beyond the compass of an officer of his grade". Similar observations are to be found in the reports for the two preceding years;in particular, in the 1972 report, his reporting officer recommends him for accelerated 40 promotion. Interested party Lambis is rated on the whole as excellent in 251 ( P U B U C SERVICE COMMISSION) 1976 Aug. 31 PANTELIS Τ Η . MICHANICOS AND ANOTHER - v. REPUBLIC the reports of the three years preceding the subjudicedecision and is described by the Head of the Department, in the last report, as "a bright officer with wide experience, hard-working, tactful and of a pleasant personality". Similar or stronger observations are to be found in the reports of the preceding 5 years. His reporting officer also recommendshim unreservedly for promotion to the post of Assistant Collector. (PUBLIC SERVICE COMMISSION) Interested party Antoniades is rated as excellent in all reports since

1. His reporting officer for 1973 stronglyrecommends him for promotion to the post of Assistant Collector when op- 10 portunity arises, after describing himas an officer of outstanding ability, integrity andcompetence. TheHeadof theDepartment as counter-signing officer expresses theviewthat heis an officer of outstanding merit, "he is notonly an authority in thefieldin which he is currently employed, but is also of high calibre and 15 can discharge any higher duties assigned to him". Similar ob­ servations are also to be found in thereports for the preceding years. Interested party Chrysochos is also rated as excellent, very reliable, remarkable, commendable, etc. He is described by 20 his reporting officer of 1973 as "a hardworking officer and his qualification in law makes him of invaluable assistance to the Department in legal matters." The Head of the Department expresses theview that "his background qualification and high acumen raise him above the level of officers in his grade. His 25 promotion on the first opportunity is imperative". There are no confidential reports for him for the4 preceding years, as the said officer was on study leave abroad during that time. Because of this situation, Mr. Talarides has argued that he was selected by the Head of the Department,firstof all be- 30 cause of the University qualification to which undueweight was given andtherewas noevidence before theCommissionwhether he was during those four years in a position to carry out the duties of Customs and Excise Officer, 1st Grade. Therecom­ mendation of the Head of the Departmentis not restricted only 35 to the officers' academic qualifications but also to his overall performance in the Department. In fact, he had served as Customs and Excise Officer, 1st Gradejust over a year before proceeding on study leave. Thereis aconfidential report cover­ ing part of this period where he is described by his reporting 40 officer as one of the best officers of the Department, very intel­ ligent and hard working, thorough,studious and solidly reliable, 252 can manage subordinate staff with efficiency and to which the then Head of the Department, Mr. Philippides, as countersigning officer, agrees and expresses the view that he is a sharp minded and persevering officer who aspires to higher level of education and efficiency. In addition, the officer was on active service for about a month in the summer of 1969and then since the completion of his studies in 1972, he resumed his duties at the Customs Headquarters and was so serving for about a year and five months until the sub judice decision was taken, and 10 there is the confidential report already referred to covering the year
2. In my view, he was long enough on actual service as a 1st Grade officer for anyone to judge his merit and there was sufficient material for-the respondent Commission to decide about 15 his actual experience and performance in office. The aforesaid gives a general picture of the merits of the candidates, their qualifications and experience which the respondent Commission had before it when it took the sub judice decision. There was a complete record regarding each candi20 date including the confidential reports on the candidates and the recommendations made for the purpose of the said promotion bythe Head of the Department, factors to whichthe respondent Commission is required by section 44

(3)of the Public Service Law, 1967to have due regard, particularly so, to the recommen25 dations of the Head of the Department which, as repeatedly stated, should have weighed with the respondent Commission and should not have been lightly disregarded. (Vide Theodossiou and The Republic, 2 R.S.C.C. 44 at p. 48). In my view, the subjudice decision was reached after due inquiry in a proper 30 exercise of administrative discretion inasmuch as all relevant factors were taken into account, there has been no misconception of fact and it is duly reasoned. Being a selection for promotion on merit, qualification and seniority, the respondent Commission did not fail in their 35 paramount duty to select the candidate most suitable, in the circumstances of the particular case for the post in question, and this Court, as it has been repeatedly stated, cannot interfere with such a decision and set aside same, unless it has been established that the persons not selected did have striking superiority over 40 those selected and the onus in such a case lies always on the applicant in a recourse. (See Evangelouv. The Republic,

(1965)3 C.L.R. 292 at p. 300 and Georghiades and Another v. The Re253 1976 Aug. 31 PANTELIS T H . MICHANICOS A N D ANOTHER v. REPUBLIC ( P U B U C SERVICB COMMISSION) 1976 Aug. 31 PANTELIS Τ Η . MICHANICOS AND ANOTHER v. REPUBLIC (PUBUC SERVICE COMMISSION) public,

(1970)3 C.L.R. 257 at 263). In the present case both applicants have failed to discharge this burden. With regard to the seniority of applicant Michanicos as against the two of the three interested parties, I can repeat what was said in the case of Evangelou v. The Republic,

(1965)3 C.L.R. 292, that seniority by itself is not the determining factor but part of the overall picture of each candidate and in the pre­ sent case it had to be weighed in relation to the contents of the confidential reports and the recommendations made by the Head of the Department, and in the case of interested party Chrysochos his diploma in law as well which constitutes an advantage under the scheme of service. For all the above reasons both recourses are dismissed, but in the circumstances, I make no order as to costs. Applications dismissed. No or­ der as to costs. 254 10 15