clr/1977/1977_3_1.pdf

(2)of the Public Service Law, 1967 because it did not duly take into consideration the qualifications of the applicant, and in particular the special training which he had in Germany on Organization and Operation of Postal Services. Counsel cited the case of Tourpekki v. Republic

(1973)3 C.L.R. 592 at pp. 602, 603 and argued that the said qualification was of particular importanceto thepost of Senior Postal Officer and specific reference should have been made to it in the decision of theCommission. (

1. b)That the respondent Commission wrongly took into consideration the statement of the Head of Department that one of the interested parties had been attending a Postal Instructor Training course for a period of 21 weeks inLondon though the coursehad notbeencompleted by then. (
2. c)That the respondent Commission failed in their duty to select the best candidate contrary to the principle 2 5 10 15 20 25 enunciated in the case of Theodosstouv. Republic, 2R.S.C.C. 44 atp.47. 1977 Jan. 31 Counsel argued in this connection that though the confidential reports revealed that applicant and one of the interested parties were of equal merit the Commission did not have a complete picture with regard to the other party because his file with his confidential reports were at Che Supreme Court as anexhibitin anotherrecourse. ANDREAS D. GEORGHAKIS v. REPUBLIC (PUBLIC SERVICE COMMISSION) In resolving this issue the Court heard evidence to the effect that the Commission had before it the personal files of all the candidates. Held,

(1)that the reference to the examination of the material in thepersonal files and confidential reports by theCommission leaves no room for arguing successfully that applicant's said qualification wasnot duly taken into consideration; that the possession of this qualification by the applicant does not give him striking superiority over the interested parties; and that, accordingly, contention (a) above must fail (Tourpekki v. Republic,supra, distinguished).

(2)That the statement of the Head of Department, regarding the course wihichwas attended by thesaid interested party, was an accurate statement of fact which he had a duty to disclose to the Commission in fairness to that candidate; and that this Court has found no legal ground to decide that no reference can be made to courses attended by candidates unless and until they are completed. 35 3(

1. a)That on the evidence coupled with the fact that express reference is made in the minutes of the Commission that ' it considered the merits, etc. of the candidates, as reflected in their personal files and in their annual confidential reports, which raises the presumption of regularity, this Court has no difficulty in coming to the conclusion that the file of the said interested party was before the Commission at the material time. 40 3(
2. b)That a perusal of the confidential reports shows that applicant and interested parties were of equal merit; that whatever it may be said for the earlier appointment,of applicant to the post of Mail Officer 26 years ago it cannot place the applicant at an advantageous position with regard to seniority 30 3 1977 Jan. 31 ANDREAS D. GEORGHAKIS v. REPUBLIC (PUBLIC SERVICE COMMISSION) as against interested party Antoniou; and that, accordingly, contention (c)must fail.

(4)That considering the case as a whole and that it is an instance of exercise of discretionary power by the administra­ tion and that in law this Court is not entitled to substitute its c own discretion for that of the administration, this Court has come to the conclusion that the sub judice decision was rea­ sonably open to the respondent Commission; that the appli­ cant upon whom the burden lay to show that in the circum­ stances he had striking superiority over the interested parties I Q or either of them, has failed to discharge same; that if any­ thing, they are of equal merit—interested party Partellides oi course being senior; that even if the applicant could argue that he was merely superior to either of them, that would not be enough for this Court to conclude that the respondent Com^ mission has acted in abuse or excess of power, a ground upon which the sub judice decision could be annulled; and, that, accordingly therecourse must be dismissed. Application dismissed. Cases referred to: ,-„ Tourpekki v. Republic

(1973)3 C.L.R. 592 at pp. 602, 603; Theodossiou and The Republic, 2 R.S.C.C. 44 at p.

1. Recourse. Recourse against the decision of the respondent Public Service Commission to promote the interested parties to 25 the post of Senior Postal Officer in preference and instead of the applicant. ΛTypographos, for theapplicant. GLMichaelides, for therespondent. Cur. adv. vult. 30 The following judgment was delivered by:A. LOIZOU,J.: The applicant by the present recourse seeks the annulment of the decision of the respondent Commission by which interested parties Costas Partellides and Georghios Antoniou werepromotedto thepermanent 35 post of Senior Postal Officer with effect from 15.9.
2. According to the scheme of service, this post is a pro- 4 motion post from the immediately lower post of Postal Officer, 1st Grade, and candidates must have a general good education not below the standard of six-year secondary education and must have passed the examinations in 5 General Orders, Financial Instructions and Store Regulations before promotion. The respondent Commission at its meeting of the 30th July 1975 considered the filling of three vacancies in this post and on their invitation the Director-General of the 10 Ministry of Communications and Works who was also acting as Director of the Department of Posts, was present. He is recorded in the relevant minute (end. 5 of exh. 1) to have stated that he had consulted the superintendents, as well as the ex-Director of the Department, 15 and came to the conclusion that Messrs. Costas Partellides,MikisNissiotis, Andreas Georghakis and George Antoniouwerethebest.Headded that of coursetwo officers, Messrs. Costas Partellides and Mikis Nissiotis werebetter than Messrs. Andreas Georghakis and George Antoniou 20 whowereofequalmerit. It was observed by the respondent Commission that with the exception of Nissiotis the other three candidates did not possess aleaving certificate of a six-years' secondary school. Under a note, however, appended to the 25 scheme of service, public officers appointed before the 1st December, 1961 who did not possess a leaving certificate of a five-year secondary school or other equivalent qualification, or who though not possessing such certificate or qualification had general education of a standard 30 found to be equivalent to that of a five-year secondary school, would be considered as suitable for appointment or promotion if they had the remaining qualifications. In view of this, the Commission inquired into the general education of the said three candidates and came to the 35 conclusion having regard to their personal files and their long and satisfactory government service, that they did possess thisequivalent qualification andconsequentlythey wereeligible. The respondent Commission considered also, as stated 40 in their minute, the merits, qualifications, seniority, service and experience of all the officers serving in the post of Postal Officer, 1st Grade—from which post the candi5 1977 Jan. 31 ANDREAS D. GEORGHAKIS v. REPUBLIC (PUBLIC SERVICE COMMISSION) 1977 Jan. 31 ANDREAS D. GEORGHAKIS v. REPUBLIC (PUBLIC SERVICE COMMISSION) dates had to be selected—as reflected in their personal files and in their annual confidential reports and theyconcluded the minutes of themeeting at which thesubjudice decision wastaken, asfollows:"In considering Messrs. Andreas Georghakis and 5 George Antoniou, the Commission observed that although the standard of the general education of Mr. Andreas Georghakis was regarded as equivalent to that of a Five-years'Secondary School and therefore, he waseligiblefor promotion, yet theofficer in ques- 10 tion attended the English School, Nicosia,whichwas a Six-Years' Secondary School, for only four years (1937-1941), whereas Mr. George Antoniou, who had the same Seniority in the post of Postal Officer, 1st Grade as that of Mr. Georghakis, attended the 15 Pancyprian Gymnasium,Nicosia,for sixyears

(19451951). The Director-General, Ministry of Communications andWorks, added that Mr. George Antoniou had been attending a Postal Instructor Training Coursefor aperiod of 21 weeks at theBritish Postal 20 BusinessTrainingCentreinLondon. After considering all the above and after taking into consideration all the facts appertaining to each one of the officers serving in the post of Postal Officer, 1st Grade, and after giving proper weight to 25 the merits, qualifications, seniority, service and experience of these candidates, as shown in their Personal Files and in their Annual Confidential Reports, and, having regard to the views and recommendations made by the Director-General, Ministry of 30 Communications and Works (who was also Acting as Director of the Department of Posts), the Commission decided that the following officers were on the whole thebest and that they be promoted to the permanent post of Senior Postal Officer w.e.f. 35 15.9.1975: 1. Costas Partellides 2. Mikis Nissiotis 3. George Antoniou". The first ground of law argued on behalf of the appli- 40 cant is that the Commission acted contrary to section 44 6

(2)of the Public Service Law, 1967 (Law 33/67) inasmuch as it did not duly take into consideration, as it had a duty to do, the qualifications of the applicant, and in particular, the special training which he had in Germany 5 on Organization and Operation of Postal Services. It was urged that this qualification was of particular importance to thepost of Senior Postal Officer and specific reference should bemadetoitin their decision asfrom therelevant record, it appears that their attention, when enumerating 10 the educational background of each candidate, was centered only at their respective secondary education. Insupport of this ground I was referred to the case of Vasso Tourpekki v. The Republic

(1973)3 C.L.R. 592 at pp. 602 and 603,whereit was held that the Commission had 15 not conducted the sufficiently necessary inquiry into a most material factor such as an additional qualification and, therefore, it exercised its discretion in a defective manner. I may say here and now that what was said in Tourpekki's case related to a qualification which was a 20 material fact as thepossession or not of that qualification possibly constituted an additional advantage under the scheme,which is not the case. The explicit reference to it in the minutes of the respondent Commission and thereference to theexamination of the material in thepersonal 25 files and confidential reports leaves no room for arguing successfully that this qualification of the applicant was not duly taken into consideration. The possession of this qualification by the applicant does not give him striking superiority overtheinterested parties. 30 Together with this ground, it was claimed that the respondent Commission wrongly took into consideration the statement of the Director-General that interested party Antoniou had been attending a Postal Instructor Training course for a period of 21 weeks at the English 35 Postal Business Training Centre in London, though the coursehadnotbeencompletedbythen. In my view, that was an accurate statement of fact which the Director-General had a duty to disclose to the Commission infairness tothat candidate andI havefound 40 no legal ground to decide that no reference can be made to courses attended by candidates unless and until they are completed. 7 1977 Jan. 31 ANDREAS D. GEORGHAKIS v. REPUBUC (PUBLIC SERVICE COMMISSION) 1977 Jan. 31 ANDREAS D. GEORGHAKIS v. REPUBUC (PUBLIC SERVICE COMMISSION) The second ground is that the respondentCommission failed in their duty to select the best candidate,contrary to theprinciple enunciatedin thecase of Theodossiou and The Republic, 2 R.S.C.C.p. 44 at p. 47. Relevant to this issue arethecontentsof the confidential reportsfor which 5 counsel for the applicant has stated that those for the last years preceding the promotion, reveal that the applicant and interested party Antoniou were of equal merit,where­ as for interestedparty Partellides, theCommissiondidnot have a complete picture, inasmuch as they had before 10 them only the one for the year 1974 (exhibit 3Ά'). The other file containing the other confidential reports was an exhibit (exh. 6) in Recourse No. 345/74 pending at the timebefore anotherJudge of thisCourt. With regard to this last issue, evidence was given by 15 Mr. Nicos Theocharides, Registrar in charge of the Re­ gistry for the Revisional Jurisdiction of the Supreme Court who stated that the said file was given to the res­ pondent Commission, with the leave of the trial Judge, on the 9th July, 1975 and returned some time later. This 20 could be anything between two to ten days or when the purpose for which the respondent Commission had been served. There was, however, no record of the date of its return. Evidence was also given by Mr. D. Protestos, a member of the respondent Commission, to the effect that 25 it was unheard of for them to deliberate on promotions and decideuponthemwithouthaving before themtheper­ sonal files and the confidential reports of all the candi­ dates, and the file for interested party Partellides must have been before thematthematerial time. 30 On this evidence, coupled with the fact that express reference is made in the minutes of the Commission that it considered themerits,etc.of thecandidates,as reflected in their personal files and in their annual confidential re­ ports which raises the presumption of regularity, I have 35 no difficulty in coming to the conclusion that the file in question was before the Commission at thematerialtime. But before considering thequestion of merit,as appear­ ing from the confidential reports on the candidates, it is opportune now to look at their respective seniority a mat- 40 ter also necessary under section 44

(2)of theLaw, where­ by the claims of officers to promotionmust be considered on thebasisof merit,qualifications andseniority. 8 Interested party Partellides was appointed to the post of Postal Officer 1st Grade on the 5.6.1970, whereas the applicant on the 1.1.1971, on which date, also interested party Antoniou was promoted. If we resort to section 46

(2)of the Public ServiceLaw for ascertaining their seniority because of their simultaneous promotion to that of Postal Officer, 1st Grade, we see that they were also seconded to the samepost on the samedate, namely, on the 15.6.1970 and promoted to thepost of Postal Officer 2nd Grade on the 1.6.1961. It is only if wego back 26 years 10 that wefind that the interested party Antoniou wasmade a Mail Officer permanent on the 1.6.1954 as against 1.9.1950 for the applicant. Whatever it may be said for this earlier appointment of the applicant 26 years ago,it 15 cannot place·the applicant at an advantageous position with regard to seniority as against this interested party. A perusal of the confidential reports of the applicant and the interested parties shows that they are of more or less the same merit. This is also reflected in the recom20 mendationoftheHeadof theDepartment. The complaint that the sub judice decision is not duly and specially reasoned, particularly so in view of thequalification of the applicant, hereinabove mentioned, cannot stand, as the decision is duly and cogently reasoned as 25 disclosed by their minute of the 30th July, (exh. 1 end. V) and as supplemented from the material in the file. Considering the case as a whole and that it is an instance of exercise of discretionary power by the administration and that in law this Court is not entitled to sub30 stitute its own discretion for that of the administration, I have come to the conclusion that the sub judice decision was reasonably open to the respondent Commission. The applicant upon whom the burden lay to show that in the circumstances he had striking superiority over the inte35 rested parties or either of them, has failed to discharge same. If anything, they are of equal merit—interested party Partellides of course being senior; but even if the applicant could arguethathewasmerelysuperior toeither of them, that would not be enough for this Court to con40 elude that the respondent Commission has acted in abuse or excess of power, a ground upon which the subjudice decision couldbe annulled. 9 1977 Jan. 31 ANDREAS D. GEORGHAKIS v. REPUBUC (PUBLIC SERVICE COMMISSION) 1977 Jan. 31 For all the abovereasons, thepresent recoursefails and isherebydismissed withnoorder astocosts. ANDREAS D. GEORGHAKIS v. REPUBLIC (PUBLIC SERVICE COMMISSION) Application dismissed. No orderasto costs. 10