clr/1976/1976_3_431.pdf

(1969)3 C.L.R. 480 followed—But distinguished as far as the remaining officers are concerned. Administrative Law—Administrative decision—Reasoning—Adequacy of 20 Public Officers—Promotions—Qualifications—Higher Qualifications — Weight—Confidential reports—And reports from different reporting officers—Use of—Factors to be taken into consideration in determining the merits of public officers for promotion. Head of Department—Recommendations—Not consistent with the confidential reports—See, also under "Public Officers'*. 25 The applicant in this recourse challenged the validity of the decision of the respondent Public ServiceCommission by means of which 14 officers were promoted to the post of Clerk 2nd 431 REPUBLIC 1976 Dec. 31 Νικι lOANNOU V. REPUBLIC (PUBLIC SERVICE COMMISSION) Grade, General Clerical Staff, in preference and instead of her­ self. In making thesubjudicepromotionsthe Public ServiceCom­ mission* took into consideration all the facts appertaining to each one of the officers serving in the post of Clerical Assistant 5 and gave proper weight to their merits, qualifications, seniority, service and experience, as well as to their suitability for promo­ tion to the above post, as shown in their personal files and in their annual confidential reports. The Commission, further, took into consideration the recommendations of the Head of 10 Department who stated that he considered the interested parties as the best candidates and recommended them for promotion. The applicant was not recommended for promotion by the Head of Department. The applicant was junior to interested parties Nos. 1, 2, 4, 5, 7, 8, 9 and 10; but she was senior to interested party No. 3 by ten months,to interested party No. 6 by 19 months,tointer­ ested party No.11 by about a year and to interested parties Nos. 12, 13 and 14,by at least 4 years. 15 The applicant possessed somehow higher qualifications than most of the interested parties. 20 With regard to merit, interested parties Nos.1,2, 4, 5, 7, 8,9 and 10, were, having regard to their confidential reports, better than theapplicant;andinterestedparties Nos.12,13 and 14had, on the whole, better reports thanher. Onthe other handappli- 25 cant had equal, if notbetter, confidential reports than interested parties Nos.3, 6 and II. Held,

(1)that though applicant possesses somehow higher qualifications than most of the interested parties, all interested parties possess all the qualifications required for the post in 30 question; and that higher qualifications should not weigh so greatlywith the mind of the Commission but they should decide in selecting the best candidate on the totality of all thecircum­ stances before them (see Bagdages v. CentralBank ofCyprus

(1973)3 C.L.R. 417 at p. 427). 35

(2){After referring to theprinciples governing the use ofcon­ fidentialreports andto thefactorstobetakenintoconsideration in determining themeritsof public officers for promotion—vide pp. 437-43S/J05/)- That themerit ofinterestedpartiesNos. 1,2,4,5, * See the relevant minutes at p. 434-435 post. 432 7,8,9 and 10 is better than that of the applicant and they are se : nior to her; that interested parties Nos. 12,' 13 and 14 have, on the whole, better reports than the applicant; that though these interested parties are junior to the applicant, their promotion should be considered in the light also, of the recommendation of the Head of the Department, which, in their case, is supported by the contents of the annual confidential "reports; and that though no reasons are given by the Head of Department their case is distinguishable from that of Partellides v. The Republic

(1969)3 C.L.R. 480, where there had not been-recorded in the Commissions's minutes, any specific views of the Head of Department concerned which could be treated as justifying the course of overlooking the seniority of the applicant in that case (vide Antoniou v. The Republic

(1975)3 C.L.R. 510 at pp. 515-516).

(3)That the applicant has got equal if not better confidential reports than interested parties Nos. 3, 6, and 11; that as these reports emanate from different reporting officers they could only be regarded asconstituting part of the overval picture of the merits of each candidate which the Commission had to weigh as a whole (see Georghiouv. The Republic

(1975)3 C.L.R. p. 156at p. 159 and Evangelou v. The Republic

(1965)3 C.L.R. p. 292 at p. 297); that unlike the case of the remaining officers whereJ:he •recommendation of the Head of the Department is consistent with the administrative reports to which they had referred and to the other facts which they took into account, in the case of these three officers this is not so; that even if their reports were equal, the situation would not have changed; that there does not appear to have been recorded in the Commission's minutes, any specific views of the Head of the Department concerned which'could be treated as justifying the course of overlooking the seniority of the applicant and the very good reports on her in this case, nor the recommendation of the Head of Department (the Director of Personnel) is supported, on the face of it, by the contents of the relevant annual confidential reports, a situation that makes the reasoning ofthesubjudice decision inadequate (see Partellides (supra)at p. 484); and that, accordingly, the recourse will succeed as the promotion of these three interested parties (Nos. 3, 6 and 11) is concerned and will be dismissed in so far as it relates to the promotion of the remaining interested parties. Promotion of interested parties - Nos. 3, 6 and 11 annulled. Otherwise recourse dismissed. 433 1976 Dec. 31 NIKI lOANNOU V. REPUBLIC 0?UBLIC SERVICE COMMISSION) 1976 Dec.31 Νικι lOANNOU V. REPUBLIC 0?UBLIC SERVICE COMMISSION) Cases referred to: Georghiades andAnother v. Republic

(1975)3 C.L.R. 143 at pp. 150, 151, 152; Lardis v. Republic

(1967)3 C.L.R. 64 at p. 71; Partellides v. Republic

(1969)3 C.L.R. 480 at p. 484; Bagdades v. Central Bank of Cyprus

(1973)3 C.L.R. 417 at p. 427; HjiGregoriou v. Republic

(1975)3 C.L.R. 477 at p. 483; Antoniouv. The Republic

(1975)3 C.L.R. 510 at pp. 515-516; Georghiou v. TheRepublic

(1975)3 C.L.R. 156 at p. 159; Evangelou v. The Republic

(1965)3 C.L.R. 292 at p. 297! 5 10 Recourse. Recourse against the decision of the respondent to promote the interested parties to the post of Clerk 2nd Grade in the General Clerical Staff in preference and instead of the applicant. 15 P. Theodorou, for the applicant. R. Gavrielides, Counsel of the Republic, for therespondent. Cur. adv. vult. The following judgment was delivered by:A. Loizou, J.: By the present recourse the applicant seeks 20 the annulment of the decision of the respondent Commission by which 14 officers were promoted to the post of Clerk 2nd Grade in the General Clerical Staff in preference to and instead of herself. Under the relevant scheme of service this post is a promotion 25 one from the immediately lower post of Clerical Assistant. Eligible were officers who had a minimumof six years service in the post of Clerical Assistant, of which two in an unestablished capacity and had passed the Exams in General Orders or Financial Instructions and Store Regulations. 30 The minute of the respondent Commission of the meeting of the 13th May, 1974 at which the subjudice decision was taken, reads as follows: " The Director of the Departmentof Personnel stated that he considered Renos Miltiadou, Jenny Xinari, Androulla 35 Demetriadou, Niki Ch. Demetriou, Eftychia Nicolaou, Melani Ph.Topharou,IoannaSkordi, DespinaMammidou, Maroulla Stavraki, Thalia Vasiliou Tofa, Praxitelis Tylliros, 434 Pavlos Christophi, Christodoulos Iosif and Andreas Petrou as the best candidates and recommended them for promotion. 5 10 15 20 25 30 With regard to Mrs. Maroulla Karoulla, who was one of the most senior candidates, the Director of the Department of Personnel stated that the officer in question had served in various Departments during the last few years; although her Annual Confidential Reports assessed her as 'very good', yet the Heads of various Departments, under whom Mrs. Karoulla had served during the last few years, informed him that her work had not been very satisfactory and had to request for her transfer. After taking into consideration all the facts appertaining to each one of the officers serving in the post of Clerical Assistant, and after giving proper weight to their merits, qualifications, seniority, service and experience,as wellas to their suitability for promotion tothe abovepost,as shown in theirPersonal Filesand intheirAnnual Confidential Reports, and, having regard to the recommendations made by the Director of the Department of Personnel, the Commission came to the conclusion that the following candidates were on the whole the best. The Commission accordingly decided that the candidates be promoted to the permanent post of Clerk, 2nd Grade w.e.f. 1.6.

2. Renos Miltiadou,
3. Jenny Xinari,
4. Androulla Demetriadou,
5. Niki Ch. Demetriou,
6. Eftychia Nicolaou,
7. Melani Ph. Topharou,
8. Ioanna Skordi,
9. Despina Mammidou,
10. Maroulla Stavraki,
11. Thalia Vasiliou Tofa,
12. Praxitelis Tylliros,
13. Pavlos Christophi,
14. Christodoulos Iosif,
15. Andreas Petrou". The grounds of law relied upon on behalf of the applicant are, 35 40 (a) that having regard to the totality of circumstances and especially the superiority, seniority, experience, merit and qualifications of the applicant vis-a-vis the interested parties, the said decision was taken in excess and/or abuse of power, and (b) that the subjudice decision is not duly reasoned, particularly so, as no explanation can be found as to why the applicant was not promoted, in view of her merits, 435 1976 Dec. 31 NIKI lOANNOU V. REPUBLIC (PUBUC SERVICE COMMISSION) 1976 Dec. 31 NIKI IOANNOU v. REPUBLIC (PUBLIC SERVICE qualifications and abilities as appearing in her confidential reportsand thematerial inthefile in general. The applicant wasfirstappointed in the Government Service in 1957asan Assistant School Clerk and served in thiscapacity until the 14th August, 1963 when shewasappointed to the post 5 of clerical assistant unestablished and as from 1st April, 1965 she became established to the samepost. COMMISSION) At some stage it wasclaimed that the applicant wassenior to alltheinterested partiesbecauseshewasallegedtohaveacquired an established status asAssistant School Clerk in 1957and not 10 in 1965asreferred tointhebundleofdocumentsattached tothe Opposition (encl. 5, of exhibit 1). This contention was withdrawn and seniority was claimed by the applicant as against eleven of the fourteen interested parties, namely, interested parties 1,3,4, 6, 7,9, 10, 11,12,13and
16. Seniority of inter- 15 ested parties No.2, Jenny Xinary, No. 5, Eftychia Nicolaou, No. 8, Despina Mammidou, is not contested. Seniority in this casehas to be determined in the light ofthe provisions of section 46 of the Public Service Law, 1967 (Law No. 33/67),thematerialdatebeing,inthefirstplace,theeffective 20 date of appointment or promotion to the particular office or grade held, namely, in the case of the applicant, the 1st April, 1965 when she became established to the same post. With regard, however, to the case of simultaneous appointment or promotion to that post, seniority will have to be determined 25 under sub-section

(2)of section 46 according to the officer's previous seniority. Inviewoftheaforesaid and onaperusal ofthematerial inthe personalfilesas set outalsointhe comparative table (encl. 5of exh. 1), interested party No. 1Renos Miltiadous is also senior 30 to the applicant by two years and three months. Applicant, however, is by ten months senior to interested party No. 3 Androulla Demetriou, by 19months to interested party No. 6 Melani Tofarou and by at least four years senior to interested parties No. 12, Pavlos Christophi, No. 13 Christodoulos Iosif 35 and No. 14, Andreas Petrou. On the other hand, the applicant and interested parties No. 4 Niki Demetriou, No.7 Ioanna Skordi,No.9MaroullaStavraki, No. 10 Thalia Tofa and No. 11 Praxitelis Tylliros, were simultaneously appointed, namely, the 1st April, 1965, to the 40 436 post of Clerical Assistant (established) and so, under section 46

(2), seniority has to be determined according to their previous seniority, which, in the circumstances makes the applicant only senior by about a year to interested party No; 11 Praxitelis 5 Tylliros, but she isjunior to the remaining four. -1976 • °2_ NlKJ . IOANNOU v. REPUBLIC The position of seniority being so and having been repeatedly held that "seniority is not a decisive factor that governs promotions but one that should be duly taken ito consideration and should only prevail if all other things were equal", (Georghiades 10 andanotherv. TheRepublic

(1975)3C.L.R. 143,at pp. 151-152, following Lardis v. The Republic

(1967)3 C.L.R. p. 64 at p. 71 and also Partellidesv. the Republic

(1969)3 C.L.R. p. 480 at p. 484), its significance, therefore, as hereinabove set out, calls further for consideration of whether all other things are equal 15 and in that respect, the qualifications and merit as well as the recommendations of the Head of the Department have to be examined. The applicant, admittedly, possesses. somehow higher qualifications than most of the interested parties, as it appears 20 from encl. 5 of exh. 1, but all the interested parties possess all the qualifications required for the post in question, and as stated by Hadjianastassiou, J. in the case of Bagdadesv. Central Bank of Cyprus

(1973)3C.L.R. 417at p.427,"that reason alone (higher qualifications) should not weigh so greatly in the mind 25 of the Committee but they should decide in selecting the best candidate on the totality of all circumstances before them". With regard to merit, one has to refer extensively to the confidential reports of the candidates "and especially at the most recent ones, in order to evaluate the performance of the 30 candidates during their careers as a whole". (Hji Gregoriouv. The Republic

(1975)3 C.L.R. 477 at p. 483). This, however, I take it as referring to the use of confidential reports and not as departing from the principle that in determining the merits of civil servants, whether for the 35 purpose of secondment on merit or promotion, the whole career of a candidate has to be examined and all the factors referring to the quality, ability and merits of a candidate, as a civil servant and not those of a certain period or of a certain category have to be taken into considera40 tion. (See Georghiades and Another v. The Republic

(1975)3C.L.R. 143at p. 151and Conclusions from the CaseLaw of the Greek Council of State (1929-1959) p. 355). No doubt, the 437 (PUBLIC SERVICE COMMISSION) 1976 Dec. 31 most recent confidential reports depict the up-to-date situation of thecandidates. NIKI IOANNOU Having considered theposition in thelight of the confidential reports, I have come to the conclusion that the merit of interested parties No. 1, Renos Miltiadou, No. 2 Jenny Xinari, 5 No. 4 Niki Chr. Demetriou, No. 5 Eftychia Nicolaou, No. 7 Ioanna Skordi, No. 8 Despina Mammidou, No. 9 Maroulla Stavraki and No. 10Thalia Vasiliou Tofa, isbetter than that of the applicant and they are, as already indicated, senior to her. Furthermore, interested parties No. 12 Pavlos Christophi, 10 No. 13 Christodoulos Iosif and No. 14 Andreas Petrou, have, on the whole, better reports than the applicant. But although these interested parties arejunior to the applicant, their promotion should beconsidered in thelight,also, ofthe recommendation of the Head of the Department, which, in their case, is 15 supported bythecontentsoftheannual confidential reportsand though no reasons aregiven byhim,their caseisdistinguishable from that of Partellides v. TheRepublic

(1969)3 C.L.R. 480, wheretherehad not beenrecorded intheCommission'sminutes, any specific views of the Head of Department concerned which 20 could be treated as justifying the course of overlooking the seniority of the applicant in that case. (Vide Antoniou v.The Republic

(1975)3C.L.R. 510at pp.515-516). v. REPUBLIC (PUBLIC SERVICE COMMISSION) It remains, therefore, to consider the position in respect of interested parties No. 3Androulla Demetriadou, No. 6 Melani 25 Ph.Tofarou and No. 11Praxitelis Tylliroswhoarejunior to the applicant, thefirsttwo having been appointed to the permanent post of Clerical Assistant,General Clerical Staff on 1.2.1968and 1.11.1966, respectively, as against the appointment of the" applicant on 1.4.1965and the third one who was appointed to 30 the same post on 1.4.1965, the same date as the applicant, but he was first appointed in the Government Service as an unestablished Clerical Assistant on 10.8.1964, which makes him alsojunior totheapplicant byvirtueofsection 46

(2)oftheLaw, and for that purpose, a more detailed presentation of their 35 confidential reports, is necessary. In all, three special confidential reports have been submitted in respect of the applicant, covering, as stated therein, the periods May, 1966—May, 1967, April, 1967 to January, 1968 and December, 1967 to December,

1. In all three reports 40 the applicant is rated as excellent and very good. In thefirst one,thereportingofficer remarks,"Thisofficer hasbeenworking 438 in the Department carrying out work of diversity and responsibility. She has done this without complaining and in a very effective manner", and he recommends that she should be promoted. The countersigning officer states, "I have had no occasion to observe closely the work of this officer and although she may be a competent and intelligent officer, I think that the grading overleaf is too generous". In the second one, the same officer states: "This officer has been doing work of a much higher grade and very diversified ". And concludes, 10 "This officer must be promoted to Clerk 2nd Grade, because her contribution to the running of the office is very valuable and helpful". The countersigning officer says: "This officer is efficient and industrious but while a high marking may-be justified, I am not convinced that the submission of a special 15 confidential report is warranted". In the last report the reporting officer observes: "This officer for the qualifications and experience she has is under-used and her effectiveness and knowledge can be better utilised in higher posts". And the countersigning officer observes: "I think that the grading 20 overleaf is rather too generous". 25 30 35 In the report for the year 1969 the applicant is described as "very good" in four ratable items, "very thorough" in one item, "excellent" with regard to competence in present work, "satisfactory" inanother and hergeneralintelligence isdescribed as "very high", and he observes that she is qualified to handle and carry out duties bigger than the post she is holding. She is rather difficult in co-operating with her colleagues, but this is due rather to the feeling of doing work lower to her capabilities. The countersigning officer agrees with the assessment. In the report for the year 1970she isdescribed as "very good" in six ratable items, her competence is described as "very high" "very reliable" in another item, "satisfactory" in another and her ability to co-operate with colleagues is "good". The reporting officer observes that she is a very competent officer undertaking successfully duties beyond her post, as Clerical Assistant 3rd Grade and suggested to be promoted to a higher grade. The countersigning officer agreed with that assessment. No report appears to have been filed for the year 1971,and in the report for 1972, no assessment is made, because she had 40 just been transferred to the District Officer's office and the reporting officer observes that during the short time she had been 439 Dec. 31 NIKI IOANNOU v. REPUBLIC (PUBLIC SERVICE COMMISSION) 1976 Dec. 31 NIKI IOANNOU in that office she had done good work, she is anxious to be promoted either in the Clerical Staff or in anotherpost, but he had not known her long enough so as to be able to express a considered opinion about her ability. V. REPUBLIC (PUBLIC SERVICE COMMISSION) Interested party No.3, Androulla Demetriadou,is described 5 in the report for the period between 1.7.1966 to 30.6.1967, as "outstanding" onall ratableitemsandthecountersigning officer agrees with it. For the remaining of 1967, under a different Head of Department, sheis described as "very good indeed" on all ratable items and "excellent" in ability to co-operate with 10 colleagues. AH the remaining confidential reports emanate from thesameofficer andsheisratedas"very good indeed" and as "excellent" in reliability and thoroughness. In the 1968— 1969 reportsheis described as "quitereliable" or"very reliable" and in the remaining reports up to 1972 she is described as 15 "very good" on all ratable items. For theyear 1973 a special confidential reportis made,on the 15th February, 1974 by the same reporting officer and the reasons for submitting same are the following: "Due to her satisfactory, all roundperformance,due to thefact thatshe has 20 been in the Government Service for 13 years—come next March—and also duetothefact thatshewas promisedby you— PleaseseeyourletterRef. Ρ 10090dated 10.7.73,thatherpromo­ tion would be considered when vacancies occur". The general assessment of the officer is given as very reliable, accurate, 25 adaptable, satisfactory, very good, etc. and in addition to the above assessment it is observed thatshe is a very self-respecting lady, reliable, neat, well behaved, very devoted and steady, hard working official at all times and recommended for promotion. Interested party No. 6 MelaniTofarou is reported as "good" in the 1965-1967 report, "very good" and "good" in the 19671968 report with the countersigning officer describing her as "hard working" and "accurate", "very good" on almost all ratable items. Inthe 1969reportthereis theobservation by the 35 reportingofficer thatsheishardworking andaccurate,perform­ ing her duties in a very satisfactory way, "very good" in the reports of 1970, 1971 and 1972, with the observations in 1971 that she is fast, reliable and very good employee and the reporting officer is satisfied with this employee, and that she is 40 quite good employee as observations and for 1973 she is 440 30 described as "very good" on all ratable items and there is the observation that she is quite good employee. Interested partyNo. 11 PraxitelisTylliros isdescribed for the period-1.6.1967 to 31.12.67 asan efficient, hardworking and ca5 pable officer who had considerably improved during the period under reviewandkeeninlearning and asverygood andexcellent onall ratable items.For the year 1968 heisdescribedas"very good" with two itemsregarding initiative and devotion to duty as "good" and of average general intelligence. And the same 10 report is repeated for 1969, 1970and
2. For theyear 1972 he is rated as "very good" in two ratable items, and "good" in another four, and as"satisfactory" in the remaining four items. The same reporting officer in the report for the year 1973rates him as "excellent" in six ratable items and "very good" in the 15 remaining four. It is obvious from the aforesaid exposition of the contents of the respective confidential reports that, to say the least, the applicant has got equal if not better confidential reports than those of the three interested parties. Of course, these reports 20 emanate from different reporting officers and they could only be regarded as constituting part of the overall picture of the merits ofeachcandidatewhich the Commission had toweighas a whole (see Georghiou v. The Republic

(1975)3 C.L.R. 156 at p. 159and Evangelou v. The Republic

(1965)3C.L.R. p.292 25 at p.297). In addition, there is the recommendation of the Head of the Department in favour of the interested parties. Had it been a case where mere abuse of power was relied upon in the sense that the respondent Commission had failed in their duty to 30 select the most suitable candidate for promotion in which case the applicant would have to establish striking superiority over the others, I might not have interfered with the sub judice decision in respect of these three officers but unlike the case oftheremaining officers wheretherecommendation oftheHead 35 of the Department is consistent with the administrative reports towhichtheyhadreferred andtotheotherfactswhichtheytook intoaccount,in thecaseofthesethreeofficersthisisnotso.Even iftheirreportswereequal,thesituation wouldnothavechanged. There does not appear to have been recorded in the Commi40 ssion's minutes, any specific views of the Head of the Department concerned which could be treated asjustifying the course of overlooking the seniority of the applicant and the very good 441 1976 Dec. 31 NIKI IOANNOU v. REPUBLIC O'UBLIC SERVICE COMMISSION) 1976 Dec. 31 NIKI IOANNOU v. REPUBLIC (PUBLIC SERVICE COMMISSION) reports on her in this case, nor the recommendation of the Head of Department (the Director of Personnel) is supported, on the face of it, by the contents of the relevant annual confidential reports, a situation that makes the reasoning of the subjudice decision inadequate. As stated in the Partellides case (supra) p. 484, "such a general statement in the minutes of the Respondent, as aforesaid, cannot have the effect of rendering the promotion of one which can be treated as having been properly decided upon in the exercise of the particular powers of the Respondent". 10 In the result the recourse succeeds in so far as the promotion of the aforementioned three interested parties is concerned and is declared null and void and of no effect whatsoever and it is dismissed in sofar as itrelates to thepromotion of the remaining interested parties. 15 In the circumstances, there will be no order as to costs. Application succeeds in part. No order as to costs. 442