clr/1976/1976_3_36.pdf

(1)that as respondents when considering the qualifications of candidates they go by what exists in their personal files it was up to the applicant to submit (in accordance with a circular issued to that effect) all certificates regarding his qualifications for inclusion in his personal file; and that, accordingly, on the material in the file there could not be any misconception of fact.

(2)That as the significance of the course has been assessed by the Chief Engineer of the respondent Board, a man most suitably qualified to decide as to the character of a particular course, this Court is not prepared to disagree with his assessment; and that, accordingly, it cannot be accepted that on the material in the file there could be either any misconception of fact, or that there could arise the possibility of any doubt as to the facts (see Mallouros &Another v. The Electricity Authority

(1974)3 C.L.R. 220 at p. 224).

(3)That seniority ought to prevail when all other things are more or less equal; that on the material before the Court and particularly in view of the different assessments made in respect of applicants' merit, all things were not equal.

(4)That on the totality of the material before the respondent Board it appears that there was a proper exercise of their administrative discretion in the matter, inasmuch as all relevant factors were taken into account; and that, accordingly, it was reasonably open to the respondent to arrive at the sub judice decision and no reason has been shown why this Court should interfere with same. Applications dismissed. Cases referred to: Partcllides v. Republic

(1969)3 C.L.R. 480; Mallouros &Another v. The Electricity Authority

(1974)3 C.L.R. 220 at p.

1. Recourses. 35 40 Recourses against the decision of the respondent to promote the interested parties to the post of Technical Superintendent in preference and instead of the applicants. /. Nicolaou (Miss), for the applicant in Case No. 358/
2. P. loannides, for the applicant in Case-No. 435/
3. K. Chrysostomides, for the respondent in both Cases. Cur. adv. vult. 37 1976 Febr. 28 MICHAEL ANDREOU AND ANOTHER v. CYPRUS BROADCASTING CORPORATION 1976 Febr. 28 MlCHAEL ANDREOU AND ANOTHER v. CYPRUS BROADCASTING CORPORATION The following judgment was delivered by:A. LOIZOT, J.: The applicant in recourse No.358/73,(here­ inafter referred to as "applicant Andreou"), challenges, by the said recourse, thevalidity of the appointmentand/orpromotion of Andreas Patsios andAndreas Ktorides, to thepost of Techni- 5 cal Superintendent, whereas applicant in recourse No. 435/
4. (hereinafter referred to as "applicant Gogakis"), challenges the validity of the appointment and/or promotion of interested party Ktorides only. The sub judice decision was taken on the 26th July, 1973, 10 and the relevant minute (exhibit ΓA'), reads as follows: " The Board considered the minutes of the Advisory Selection Committeesfor theposts.... Technical Superinten­ dent and adopted same. Then,having heard theDirectorGeneral, decided to make the following promotions: 15 (e) Andreas Patsios ) to the post of Andreas Ktorides) Technical Superintendent." There were two vacancies in the post of Technical Superin­ tendent, onein the Sound Studio Maintenanceand the otherin theTele CineSuiteandthereweresevenapplicantsfor bothposts, 20 among whom the two applicants and the interested parties. The Advisory Selection Committee, in the minutes of which (exhibit ΓΕ'), one may see clearly the career of the applicants and the interested parties with the respondent Corporation, as well as their qualifications and their previous selection for 25 promotion, after examination of the applications in conjunction with the schemes of service, found that all the applicants pos­ sessed the required qualifications for both posts and decided to invite them to an oral interview. At the request of the re­ presentatives of the staff, reference was mentioned also in the 30 minutes with regard to those candidates that were found, in the past, suitable for promotion,to thepost of Technical Super­ intendent. After themeetingof theAdvisory SelectionCommit­ tee of the 5th June, 1973, namely, on the 14th June, 1973, on the request of the Deputy Director-General,the Chief Engineer 35 and the Assistant Chief Engineer submitted a report to the Director-General on the candidates who had applied for the 38 two vacant posts of Technical Superintendent. (Exhibit I'D'). Thefollowing extract isto befound on page 1 thereof: 5 " A. Patsios, G. Gogakis and A. Ktorides also possess the Final Certificate which means that they have passed the 4th year examinations at one sitting and thus can proceed to the Full Technological Certificate. Mr. M. Andreou does not have the Final Certificate and cannot proceed to the Full Technological Certificate". According to the relevant records,MichaelAndreou, Andreas 10 Patsios and George Gogakis were all appointed to the post of TechnicalAssistant onthe 1stDecember, 1968,applicantAndreou is senior to the interested parties, and interested party Ktorides was appointed to the same post on the 1st November,
5. The seniority of the first three has to be determined by 15 reference to their previous service which is as follows: Applicant Andreou, was appointed to the post of Technician, on 1.12.64, applicant Gogakis on 16.10.67, interested party Patsios on 1.9.
6. The Chief Engineer and his Assistant recommended for pro20 motionfour candidates,amongwhomweretheinterested parties Patsiosand Ktorides,butexcluded therefrom thetwoapplicants. Thiswasthematerial that went to the Board of the respondent Corporation which accepted this recommendation which selected out of the four candidates the two interested parties, 25 though theywerethird and fourth, in order of preference, in the recommendations of the Chief Engineer and Assistant Chief Engineer, this shows that the Board of the respondent Corporation exercised its own competence on thematter and made its own selection. 30 As stated in evidence by Mr. Astreos, the Chief Engineer of the C.B.C. the qualifications of each member of the Technical staff whichcomesunder him, aremainly found in their personal files, because, as soon as each one of them obtains a particular qualification, he submits the relevant certificate, in accordance 35 with acircular issued to that effect, and beingalsoin hisinterest todoso;it isthen photocopied andfiledinthe respectivepersonal files. In the course of the hearing of this case, the Final Certificate of the City and Guilds for applicant Andreou was produced 40 (exhibit 14), as well as a letter dated the 16th December, 1974 39 1976 Febr. 28 MICHAEL ANDREOU AND ANOTHER v. CYPRUS BROADCASTING CORPORATION 1976 Febr. 28 MICHAEL ANDREOU AND ANOTHER v. CYPRUS BROADCASTING CORPORATION (exhibit 15), signifying theapproval of theInstitutefor applicant Andreou to enter for its examinations, as an external candidate, in Part III, which, I understand,is theFull Technological Certi­ ficate. These facts were claimed to substantiate the ground of misconception of fact relied upon in respect of applicant Andre- 5 ou regarding his qualifications, in the sense that in the report prepared by Mr. Astreos (exhibit 1'D*), he was shown as not possessing the Final Certificate, as compared with applicant Gogakis and interested parties Patsios and Ktorides. It was further argued that on the strength of thepasses of the 10 12 subjects passed by applicant Andreou, as shown inexhibit 1 Έ',he was entitled tobe treated as possessingthe FinalCerti­ ficate. It has not been claimed that the applicant did at any time submit this certificate (exhibit 14) to the respondent Au­ thority. In his application for the sub judice post (Red 85, 15 exhibit 2), he refers to the certificates submitted, which, as mentioned therein, were attached to his previous application of the26th April, 1973,where,again, thiscertificate is not attached. Mr. Astreos stated that when considering the qualifications of candidates, they go by what exists in theirfiles,and applicant 20 Andreou, at the time, had Telecommunication Principles C, passed in May—June 1969, (Red 62 A in exhibit 2) and Tele­ communication Radio C,passed in May—June, 1970 (Red 69 A in exhibit 2). As these two examinations were not passed at one sitting, according totherelevant City orGuilds Regulations, 25 (exhibit 17), applicant Andreou could not benefit from any exception to this Regulation at the time and in view of thema­ terial that the applicant Andreou had chosen to put in the file at the time, the conclusions of the Chief Engineer were correct. The explanations given by himin respect of the certificate (exhi- 30 bit 14) were that either applicant Andreou was in possession of passes in individual subjects which he did not present to them and theywere notaware of themor thathewas notin possession of these passesat thetime,but as theCity &Guilds Regulations regarding the award of certificates are modified from time to 35 time, he probably took advantage of a later relaxation and ap­ plied and was awarded the certificate. In the circumstances, therefore, if anything, applicant Andreou had to blame himself for this situation. Hecould only be treated as entitled to the Final Certificate, according to the City & Guilds Regulations 40 (exhibit 17, p. 51 6(c)) if he had forwarded for inclusion in his filea certificate that he had failed "one only of the Τ2 papers 40 and obtained a grade 7 on that paper and that he had attempted it again by itself within a period of not greater than 14 months" which, information was lacking from his file. In any event, these qualifications were not among the minimum required for the subjudice post, but as a prerequisite for proceeding to the Full Technological Certificate, a necessary qualification for the next higher post, that of engineer. 10 It was further complained on behalf of this applicant, that on account of his seniority he should have been preferred as against the interested parties. As stated in the case of Partellides v. TheRepublic

(1969)3C.L.R. p.480, "all other things being more or less equal, seniority ought to prevail". On the material before me and particularly so in view of the assessment of this applicant made by the Chief and Assistant 15 Chief Engineers, (exhibit 1 'D'), all things were not equal, though seniority appears to have been duly taken into account. On the totality of thematerial before the Board of the respondent Corporation it appears that there was a proper exercise of their administrative discretion in the matter, inasmuch as all 20 relevant factors were taken into account and it was reasonably open to them to arrive at the subjudice decision, after taking into account the suggestions and proposals of the Advisory Selection Committee, as well as the report prepared by the Chief Engineer and his Assistant, the views of the Director-General 25 and no reason has been shown why this Court should interfere with same. Therefore, the recourse of applicant Andreou fails. I turn now to the applicant Gogakis who, in addition to his other qualifications, he had taken a course on Television Studio work in Germany and in respect of which the following is to be 30 found in the report of the Chief Engineer and his Assistant, exhibit 1 ' D ' : "He has taken a practical course on Television Studio work in Germany from which he has profited on the purely practical side. However, the importance of this course should not be over-estimated by people who are not familiar 35 with the work of the technical staff, particularly since a great deal of his time abroad was spent in learning the German language in preparation for the course". The significance of this course was examined on a previous occasion and, in fact, the Chief Engineer asked both applicant Gogakis, as well as the 40 German Authorities to supply information regarding the exa41 1976 Febr. 28 MICHAEL ANDREOU AND ANOTHER v. CYPRUS BROADCASTING CORPORATION 1976 Febr. 28 mination questions, but did not receive them. In the circumstances, a proper inquiry was carried out. MICHAEL ANDREOU Going through the relevant material in thefile,I am not prepared to disagree with Mr. Astreos, a man most suitably qualifiedto decide as to thecharacter of a particular course relating 5 to his profession. If anything, Mr. Astreos is a man who impresses with his thoroughness. Therefore, I do not accept that on the material in the file there could be either any misconception of fact, or that there appearsto have arisen the possibility of any doubt as to thefacts. (See Mallouros & Another v. The 10 Electricity Authority

(1974)3 C.L.R. 220 at p.224). AND ANOTHER v. CYPRUS BROADCASTING CORPORATION Itwasalsocomplained that therehasbeenamisconception of material fact arising from the statement found in exhibit1 'D' that Patsios, Gogakis and Ktorides possessed the Final Certificate and they were treated as having passed the 4th year exa- 15 mination at one sitting, which is not the case. Gogakis passed both examinations in December, 1972, which means that he obtained the qualification under the rule and not under the exception as Ktorides. Mr Astreos explained that when examining the qualifications of candidates with regard to promo- 20 tions, they attribute importance only to the fact of possessing a particular certificate and not to the grades. In any event, this does not appear to have been material, in the circumstances, because,intheassessment oftheChief Engineer regardingapplicant Gogakis and interested party Ktorides,wehave thefollow- 25 ing observations: " Mr. G. Gogakis, when given the chance to speak before theBoard, spokeasif hewasthecentralfigureof theTelevision Studio Section, describing his achievements in a manner which produced smiles to his superiors, who knew 30 something about thefacts His performance before the Board followed exactly the descriptions and impressionswe had of him before, as a big talker but without any solid foundation for his assertions". Whereas Ktorides wasdescribed ashavingleft the Board with 35 very good impressions and as being:" Serious, hard-working and with a lot to show for his relatively short stayin theTechnical section oftheDivision. It isa pitty that hisexperience hasbeenmostly in theaudio equipment and has little Television equipment knowledge. 40 42 This however is through no fault of his own, since he has never been given an opportunity to be acquainted withTV equipment." It isapparent, therefore that inperforming their duty toselect themost suitable candidate for thepost in question and bearing in mind all this relevant material, including the seniority of applicant Gogakis as against Ktorides, a seniority which, as already stated should prevail if all other factors were equal, which do not appear to be in this case in view of the different 10 assessments made in respect of their merit, the subjudicedecision was reasonably open and wasreached in a proper exercise of administrative discretion and nothing has been sho\vn entitlingmetointerfere withit. Therefore, thisrecoursefails too. 15 In the result the subjudicedecisions are confirmed and both recourses are dismissed, but there will be no order as to costs. Applications dismissed. No orderas tocosts. 43 1976 Febr. 28 MICHAEL ANDREOU AND ANOTHER v. CYPRUS BROADCASTING CORPORATION