clr/1977/1977_3_153.pdf

(3)of the PublicServiceLaw,1967— In forwarding applications for promotionHeadof Department notprecluded togivethereon hisviewon the candidates—And the making of written recommendations before the meeting does not exclude the expressionof views by the Head of Department or his representative at the meetingat which thefillingof thevacancyisconsidered. PublicOfficers—Promotions—Qualifications—Additional qualifications—Effect. 153 ELENI ELIADOU DUNCAN v. REPUBLIC (PUBLIC SERVICE COMMISSION) 1977 June 27 ELENI ELIADOU DUNCAN v. REPUBLIC (PUBLIC SERVICE COMMISSION) PublicOfficers—Promotions—Seniority—Not the decisive factor— Whendoesit prevail. Words and phrases—"Recommendations" in section 44

(3)of the PublicService Law, 1967 (Law 33/67). PublicOfficers—Promotions—Interview of candidates—Due regard to be paid to the evaluation of candidates made throughthe interview especiallywhen relevant scheme of service makes provision for possessionby the candidatesof organizing and administrative ability and ability to superviseand guidesub­ ordinate<staff—Personality of candidates. 10 Administrativeacts and decisions—Reasoning. The applicant in this recourse, who is a School Clerk 2nd Grade, challenges the validity of the promotion of the two in­ terested parties to the post of School Clerk 1st Grade. In making .the promotions ίο this post the Commission* consi­ dered, inter alia, the merits, qualifications and experience of the candidates as well as their performance during the inter­ view and observed 'that the interested parties gave very satis­ factory replies to questions put to them and generally they proved tobe thebest candidates. In forwarding .the applications of the candidates, the Head of Departmentmade no comment on that of the applicant but on those of .the interested parties he wrote "transmitted and recommended warmly". The applicant possessed higher or additional qualifications than those required by the relevant scheme of service but the Commission found that both interested parties satisfied the re­ quirements of thesaid scheme. The confidential reports of the applicant and the two inte­ rested parties were moreor less thesame though onecould not fail noticingthatthose of interested party Vassiliou were some­ how better than those of the applicant. Applicant and one of the interested parties were of equal seniority but applicant had three years and four months seniority over interested party Vassiliou. Counsel for theapplicantcontended: (a) That the Public Service Commission failed in its pa* Sec the relevant minutes at pp. 158-159 post. 154 15 20 ramount duty to appoint and/or select the best candidatefor thepost. (b) That the sub judice decision was not duly reasoned. 5 10 15 20 25 30 35 40 (c) That though the Head of Department was entided to make oral recommendations at the meeting at which the respondent Commission was considering the filling of the posts in question, yet he was not entitled to make written recommendations on the applications of the candidates,particularly ashehad chosen to send another officer at that meeting, so delegating his powers. Held,

(1)(aftercomparing therespective careers andmerits of the applicantand the interestedparties vide pp. 160-163 post)that seniority forms part of theoverall picture of the candidates, but it isnot a decisivefactor except whenallother factors are more or less equal; that irrespective of seniority, in this case not all other .things were equal in respect of the candidates when the sub judice decision was taken so that the seniority of applicant should prevail because of -the fact that the Head of Department made no comment on applicant's application in forwarding it .to the Commission whereas he recommended warmly those of the interested parties and because of the fact .that the Commission gave due regard to the performance of the candidates at the interview (and found that 'both interested parties have given very satisfactory rephes to questions put to them and generally they proved tobe thebest candidates) a course which was proper in the circumstances because their personality was an important factor particularly so as the schemes of service provided for possession by the candidates of organizing and administrative ability and ability to supervise subordinate staff for which the personality of the leader is most significant (see Panayiotou& Another v. Republic

(1968)3C.L.R. 639 atp.642).

(2)That the possession of qualifications other than those which might'be deemed to be an advantage in a candidate's favour under the relevant scheme of service cannot properly tip the scales in his favour (see Vonditsianos & Othersv. Republic

(1969)3C.L.R. 83 atp. 91).\

(3)That there is nothing in .the Law to prevent the Head of a Department, through whom applications for promotion or appointment to a post are forwarded to the Public Service Commission, from giving .thereon his views on the applicant; 155 1977 June 27 ELENI ELIADOU DUNCAN v. REPUBLIC (PUBLIC SERVICE COMMISSION) 1977 June 27 ELENI ELIADOU DUNCAN v. REPUBLIC (PUBLIC SERVICE COMMISSION) that under section 44

(3)of the Public Service Law, the Public Service Commission in making a promotion must have due regard to the recommendations made in that respect by the Head of the Department in which the vacancy exists; that the law does not prescribe either the form or the time at which such recommendations will be made; that .the word "recommendations" in this context has a wide enough meaning to include both written recommendations made before the relevant meeting of the respondent Commission takes place, as well as oral recommendations made during such meeting; that, furthermore, the making of a written recommendation before the meeting does not excludethe expression of views by the Head of a Department or his representative at the meeting at which the filling of a vacancy is considered; .that the fact that a representative of the Head of a Department attends the relevant meeting does not render improper the existence of a written recommendation made by.the Head of the Department earlier; and that, accordingly, the contention of counsel must fail.

(4)That perusal of the relevant minutes and the material in .the file as a whole, shows that the sub judice decision was duly reasoned and contained allcogent facts upon which itwas reached after a proper comparison of all candidates.

(5)That bearing in mind that the sub judice decision was the result of the exercise of discretionary power by the administration and that in law this Court is not entitled to substitute its own discretion for that of the appropriate organ, it has come to the conclusion that the sub judice decision was reasonably open to .the respondent Commission and no ground exists entitling or requiring it to interfere with the result of •theexercise of such discretion; .that being a selection for promotion on merit, qualifications and seniority, this Court as it has already been stated, cannot interfere to set aside such a decision, unless it is established that the person not selected did have striking superiority over .the person selected and the onus lies always on .the apphcant which in the instant case she has failed to discharge;(seeEvangelou 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 266); and that, accordingly, •therecourse must fail. Application dismissed. Cases referred to: Vonditsianos and Others v. Republic

(1969)3 C.L.R. 83 at p. 91; 156 Georghiades and Another v. Republic

(1975)3 C.L.R. 143 at p. 152; Lardis v. Republic

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

(1969)3C.L.R. 480 at p. 484; Panayiotou and Another v. Republic

(1968)3 C.L.R. 639 at p. 642; Evangelou v. Republic

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

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

1. 10 Recourse. Recourse against the decision of the respondent Commission to promote the interested parties to the post of School Clerk, 1st Grade in preference and instead of the applicant. 15 M. Christofides, for the applicant. N. Charalambous, Counsel of the Republic, for the respondent. Cur. adv. vult. The following judgment was delivered by:- 20 A. LOIZOU, J.: The applicant by the present recourse seeks the annulment of the decision of the respondent Commission by which Michael Photiou and Vassilios Chr. Vassiliou, (hereinafter to be called the interested parties), were promoted to the permanent post of School Clerk, 1st 25 Grade. According to the relevant scheme of service which was in force at the time of the filling of the said vacancies, the said post was a first entry and promotion post. The filling of these vacancies was advertised in the official Gazette 30 of 2.4.1976 under Not. 581 and in response thereto, nine applications were submitted, but only six of the candidates, among whom the applicant and the interested parties, were invited for interview in the presence of the Director-General of theMinistry of Education. At the meeting of the respondent Commission of the 157 1977 June 27 ELENI ELIADOU DUNCAN v. REPUBLIC (PUBLIC SERVICE COMMISSION) 1977 June 27 ELENI ELIADOU DUNCAN v. REPUBLIC (PUBLIC SERVICE COMMISSION) 17th June, 1976, at which thefilling of the saidvacancies was considered, Mr. H. Ierides,Senior Administrative Officer represented the Director-General of the Ministry of Education. Theminutes of the Commission, sofar asmaterialtotheissuesraisedinthisrecourse,read: "The Commission as well as the Representative of the Ministry of Education put several questions to all the candidates on matters of general knowledge and on matters connected with the duties of thepost asshownintherelevantschemeofservice. The Commission considered the merits, qualifications and experience of the candidates interviewed as well as their performance during the interview (personality, alertness of mind, general intelligence and the correctness of answers to questions put to them, etc.). 10 15 The Personal Files and the Annual Confidential Reports of all the candidates were also taken into consideration. 20 The Commission observed also that, during the interview,Messrs.MichaelPhotiou andVasilios Chr. Vasiliou gave very satisfactory replies to questions put to them and generally they proved to bethe best 25 candidates for appointment or promotion to the above post. The Representative of the Ministry of Education stated that both the officers referred to above were serving in thepost of School Clerk, 2nd Grade, their 30 services have been very satisfactory and considered them suitablefor thepost ofSchoolClerk, 1stGrade. According to the relevant scheme of service, candidates for appointment or promotion to the postof School Clerk, 1st Grade, must possess a Very good 35 knowledge of Greek and a good knowledge of one of the prevailing European languages*.TheCommission observed that Mr. Michael Photiou had graduated the Commercial Lyceum, Famagusta, and that 158 5 10 15 20 25 30 hehadpassed theEnglishLower Examination of the Cyprus Certificate of Education in
2. The Commissionobserved that Mr.Vasilios Chr. Vasiliouhad graduated the Paphos Gymnasium in
3. Inspite of the above and as all the candidates had stated on their application that they were familiar with the Greek and English languages, a good number of the questions put to the candidates, during theinterview, were in Greek aswell asinEnglish. From thereplies to questions put to Messrs.Michael Photiou and Vasilios Chr. Vasiliou, and having regard to their long and satisfactory servicein the Government aswellas to their educational qualifications, the Commission was satisfied that the officers in question did possess a Verygoodknowledge of Greek' and a 'goodknowledgeof English',whichisoneof theprevailingEuropean languages. After considering all the above and after taking into consideration all the facts appertaining to each one of the candidates and after giving proper weight to the merits, qualifications, abilities and experience of thesecandidates, as well as to their suitability for appointment to the abovepost as shown at the interview, 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 bepromoted to the permanent post of School Clerk, 1stGradew.e.f. 15.10.
4. Vasilios Chr. Vasiliou Michael Photiou'*. The grounds of law relied upon on behalf of theapplicant, are set out in the appUcation and are in effect the following: 35 40 1 (a) The respondent Commission failed in its paramount duty to appoint and/or select the bestcandidatefor thepost. (b) The omission to promote the applicant, though strikingly superior to those selected for promotion, amounts to abuse and/or wrong exerciseof discretion. 159 * 1977 June 27 ELENI ELIADOU DUNCAN v. REPUBLIC (PUBLIC SERVICE COMMISSION) 1977 * June 27 ELENI ELIADOU DUNCAN v. REPUBLIC (PUBLIC SERVICE COMMISSION) (c) There has been a misconception of fact, as the respondent Commission accepted facts and situations contrary to the material in the file. (d) The aforesaid constitute also a violation of 5 thePublicServiceLawof 1967(Law33/67), and in particular, section 44, subsections

(2)and

(3)and/or a violation of the general principlesof administrativelaw.

(2)The sub judice decision is not duly reasoned 10 and/or reasoned at all, nor does it contain special reasoning by setting out the real facts and reasons for which the sub judice decision was reached, and

(3)The respondent Commission did not compare all the candidates simultaneously and/or each one of 15 them with theremaining. In the course of the address on behalf of the applicant, it wasfurther contended that theDirector-General, though the Head of the Department and entitled to make oralrecommendations at the meeting at which the respondent 20 Commission wasconsidering thefilling of thevacanciesto thepost in question, yet,hewasnot entitled to makewritten recommendations aswellbefore that meeting, particularly as hehad chosento sendMr. Ierides ashisrepresentative at the meeting, so delegating his powers. Alterna- 25 tive to this, it was argued, that even if he was entitled to make such recommendation, samewasnot duly reasoned. The first ground of law relied upon on behalf of the applicant, calls for a comparison of the respective careers and merits of the applicant and the interested parties. 30 The applicant is a graduate of the Pancyprian Gymnasium, Nicosia and of the Senior Commercial Class of that school, shehas a certificate in book-keeping (Intermediate of L.C.C.) and passed three subjects of the Cyprus Certificate of Education, including the English Higher. She 35 started work in 1952 as a School Clerk under the School Committee ofNicosia and sheeventuallybecame aSchool Clerk, 2nd Grade,onthe 1stApril,

1. Interested partyMichalakisPhotiou isagraduateofthe Commercial Lyceum, Famagusta. He passed the C.C.E. 40 160 English Lower, he has a certificate in book-keeping (Ele­ mentary of L.C.C.),and started as a School Clerk of the Commercial Lyceum of Famagusta, a private school.He becameaSchoolClerk 2nd Gradeonthe4thApril,
2. 5 Interested party Vassiliou is a graduate of the Paphos Gymnasium. He passed the examinations in GeneralOr­ ders and Financial Instructions, as well as the Store Re­ gulations. Hestarted his career in 1952 as a civilian clerk, Grade Β with the British Army in the Suez Zone and in 10 July of the same year he joined the Cyprus PoliceForce untilAugust, 1955, when hie was discharged for behaviour connected with the liberation struggle. In February, 1954 he was employed at Limni Mines. In December, 1955 he was employed as aSchool Clerk by theSchoolCommittee 15 of Paphos and became a School Clerk 2nd Grade on the 1st August,
3. 20 25 30 35 40 The confidential reports of the applicant and the two interested parties are more or less the same, though one may not fail noticing that those of interested party Vassiliou are somehow better than those of the applicant that .they are more elaborate in the commentsfor the gradings given, particularly so the last two reports. Their qualifi­ cations have been found to satisfy the schemes of service. The applicant has, admittedly, passed the English Higher of the Cyprus Certificate of Education,which, interested party Vassiliou, does not appear to have passed, but the knowledge of bothGreekandEnglish which is a necessary qualification under the scheme of service, was examined by the respondent Commission and "a good number of the questions put to the candidates during the interview were in Greek as well as in English". The respondent Commission further stated thatfrom the replies given and having regard to their long and satisfactory service in the Government, as well as their educational qualifications, it was satisfied that the interested parties did possess a very good knowledge of Greek and a good knowledge of English. In fact, for interested party Vassiliou, it may be stated that the nature of his employment prior to his be­ coming aschoolclerk,was conducivetoagood knowledge of English. It was pointed out on behalf of the applicant, that she also hadknowledge of French,but as heldin Vonditsianos 161 1977 June 27 ELENI ELIADOU DUNCAN v. REPUBLIC {PUBLIC SERVICE COMMISSION) 1977 June 27 ELENI ELIADOU DUNCAN v. REPUBLIC (PUBLIC SERVICE COMMISSION) and othersv. The Republic

(1969)3 C.L.R. 83 at p.91, " . . . . the possession of qualifications, other than those which might be deemed to be an advantage in his favour under therelevant schemeof service, could not,properly, have tipped thescales inhis favour". With regard to their qualifications, my attention was drawn to thefact thatinterested party Photiou,a graduate of a Commercial School, had not been taught Ancient Greek and his marks in ModernGreek were 6^, whereas the apphcant a graduate of a Classical Gymnasium, was taught both Ancient and Modern Greek and her marks were 7 and 8 respectively. It was also stressed on behalf of theapplicant,thattheaveragemark inher schoolleav­ ing certificate was 8.61, thatof interested party Photiou8 and of interestedpartyVassiliou 15Y2 outof

1. With regard to their seniority, it may be observed, that the applicant andthetwo interestedparties becameClerks Β under thethenGreekCommunal Chamber,on 1.9.1961 and School Clerks 3rd Gradeon the 1st May,
2. The applicant and interested party Photiou were promoted to thepost of SchoolClerk 2ndGradeonthe 1st April, 1965, whereas interested party Vassiliou on the 1st August 1968, which gives to the applicant three years and four months seniority over him, in view of the provisions of section 46 of thePublicService Law. As repeatedly held, seniority forms part of the overall picture of the candidates, but it is not a decisive factor, except when all other factors are more or less equal. (See Georghiades and another v. The Republic,

(1975)3 C.L.R. 143 at p. 152, following Lardis v. TheRepublic

(1967)3 C.L.R., 64 at p. 71 and also Partellides v. The Republic

(1969)3 C.L.R. 480 at p. 484). The signifi­ cance, therefore, of seniority, as set out in the Case Law of this Court,further calls for consideration of whether all other things were equal. In this case, in order to complete the overall pictureof the candidates that was before the Commission when taking the sub judicedecision, reference must be madeto the fact, that in forwarding the applications of thecandi­ dates, the Director-General, as Head of the Department, made no comment on that of the applicant, whereas, for the two interested parties, he thought fit to include his views. For interested party Photiou he said, "transmitted 162 25 30 35 40 and recommended warmly. The services and conduct of the applicant were very satisfactory", and for interested party Vassiliou, theDirector-General wrote: 'Transmitted and recommended warmly. The applicant is very able, hard workingandconscientious officer". Furthermore, the respondent Commission gave dueregard to theperformance of thecandidates at theinterview and both interested parties werefound to havegiven very satisfactory repliestoquestions put tothem and generally, "theyproved tobe thebest candidates for appointment or promotion to the post in question". This was proper, in the circumstances, because their personality was an important factor to be weighed by the respondent Commission, particularly so,in view of thequalifications required under the schemes of service, for possession by thecandidates of organizing and administrative ability and ability to supervise and guide subordinate staff, for which the personality of the leader is most significant. If any authority is needed for this proposition, a similar approach is to be found in the caseof Panayiotou andanother v. The Republic

(1968)3 C.L.R. 639 at p. 642, where it was stated by Triantafyllides, J. as he then was, "So,rightly, in my view, the Commission paid due regard to the evaluation of thecandidates made through theinterviews and was, to a certain extent, guided accordingly in reaching its decision". Further, the representative of the Ministry of Education, present at the meeting in question, stated that the services of these two interested parties have been very satisfactory and considered them suitablefor thepost ofSchoolClerk 1stGrade. It is obvious, therefore, from the above, that irrespectiveof seniority, not all other thingswereequal in respect of the candidates when the sub judicedecision was taken so that the seniority of the applicant should prevail. Aperusal of therelevant minute and thematerial inthe file asawhole,showsthat thesubjudicedecisionwasduly reasoned and contained all cogentfacts uponwhichitwas reached after a proper comparison of all candidates. Bearing in mind that the sub judice decision.was the result of the exercise of discretionary power by the administration and that in lawthis Court isnot entitled tosubstitute itsown discretion for that of theappropriateorgan, I have cometothe conclusion that thesubjudicedecision 163 1977 June 27 ELENI ELIADOU DUNCAN v. REPUBLIC (PUBLIC SERVICE COMMISSION) 1977 June 27 ELENI ELIADOU DUNCAN v. REPUBLIC (PUBLIC SERVICE COMMISSION) was reasonably open to the respondent Commission and no ground exists entitling or requiring me to interfere with the result of the exercise of such discretion. Being a selection for promotion on merit, qualifications and seniority, this Court as it has already been stated, cannot interfere to set aside such a decision, unless it is established that the person not selected did have striking superiority over the person selected and the onus lies always on the applicant which in the instant case she has failed to discharge. (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 p. 266). It remains, however, to deal with the additional ground of law relied upon by the applicant in this recourse. In my view, there is nothing in the law to prevent the Head of a Department through whom applications for promotion or appointment to a post are forwarded to the Public Service Commission from giving thereon his views on the applicant. Under section 44

(3)of the Public Service Law, the Public Service Commission in making a promotion must have due regard to the recommendations made in that respect by the Head of the Department in which the vacancy exists. The law does not prescribe either the form or the time at which such recommendations will be made. The word "recommendations" in this context has a wide enough meaning to include both written recommendations made before the relevant meeting of the respondent Commission takes place, as well as oral recommendations made during such meeting. Furthermore, the making of a written recommendation before the meeting does not exclude the expression of views by the Head of a Department or his representative at the meeting at which the filling of a vacancy is considered. Nor does the fact that a representative of the Head of a Department attends the relevant meeting renders improper the existence of a written recommendation made by the Head of the Department earlier. For all the above reasons the present recourse is dismissed, but in the circumstances I make no order as to costs. Application dismissed. No order as to costs. 164