1977 Sept. 17 OMEROS NTSSIOTIS v. REPUBLIC (PUBLIC SERVICE COMMISSION) [A. LOIZOU, J.] IN T H E MATTER O F ARTICLE 146 OF THE CONSTITUTION OMEROS NISSIOTIS, . Applicant, and THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC SERVICE COMMISSION, Respondent. (Case No. 248/76). Public Officers—Promotions—Post of Administrative Officer, 1st Grade—Interested party recommended for promotion by Head of Department—Such recommendations made the overall picture of the interested party more favourable than that of the applicant—And they could not be ignored by the Commission without special reasoning being given—No striking superiority established by applicant—Sub judice decision reasonably open to the Commission. Public Officers—Confidential reports emanating from different reporting officers—Should not be treated as constituting recommendations for the filling of the particular vacancy, but must be regarded only as constituting part of the overall picture of the merits of each candidate which the Commission had to weigh as a whole. Public Officers—Promotions—Seniority—One of the factors which has to be taken into consideration—But not the decisive one —It only prevails if all other things are equal. Public Officers—Promotions—Head of Department—Recommendations—Are the most material factor. Public Officers—Promotions—Head of Department—Knowledge of candidates by—Director of Department of Personnel— Head of the Interchangeable staff—Whether he knows candidates for promotion to post of Administrative Officers 1st Grade. Public Officers—Promotions—Public Service Commission not referring to applicant by name—But referring to all candidates 388 25 I 5 0 L5 >0 ?5 serving· in post to which applicant was serving—Nothing to suggest that he was not considered for promotion. 1977 Sept. 17 . Public Officers—Promotions—Qualifications constituting an advantage under the scheme of service—Cogent reasons had to be given for preferring a candidate not possessing such qualifications. OMEROS NISSIOTIS v. REPUBLIC (PUBLIC SERVICE COMMISSION) The applicant, who is an Administrative Officer 2nd Grade, challenged the validity of the promotion of the interested party (to the post of Administrative Officer 1st G r a d e . I n m a k ing ihe promotion complained of the Commission referred specifically to the three interested parties and ito those possessing university qualifications; and did not refer to the applicant by his name but it stated in its minutes* that it "considered the merits, qualifications, seniority, service and experience of all ithe officers serving in the lower post of Administrative Officer, 2nd G r a d e " . It, also, took into consideration the views and recommendations of the Head of Department—the Director of the Department of Personnel—who stated before the Commission that the interested party (K. Stratis) and two other candidates were the best and recommended them for promotion. The applicant a n d the interested party possessed all the qualifications required under the relevant scheme of service and applicant was senior to the interested party by five and a half months. Counsel for the applicant contended: (a) That in view of the applicant's qualifications, merits and seniority the respondent Commission failed in its paramount duty to select the best candidate. (b) That the sub fudice decision was not duly reasoned. 30 35 (c) That the Director of the Department of Personnel did not know the applicant and the interested party. (d) That the applicant was not considered for promotion as the respondent Commission restricted its consideration to'ithe three persons recommended by the Head of the Department of Personnel and those candidates who had a university degree. Held, (after making a comparison of the respective merits, qualifications, seniority and experience of the applicant and *See pp. 392-395 post. 389 SepL 17 OMEROS NISSIOTIS v. REPUBLIC (PUBLIC SERVICE COMMISSION) the interestedparty, and perusing their confidential reports) that the confidential reports on applicant and the interested party emanate from different -reporting officers who inevitably must have used different standards in their evaluation; that these reports should not 'be treated as constituting recommendations for the filling of the particular vacancy, but must be regarded only as constituting part of the overall picture of the merits of each candidate which the Commission had to weigh as a whole {seeEvangelouv. Republic
(1965)3 C.L.R. 292); and that in considering the overall picture of a candidate, the recommendations of the Head of the Department made at the meeting of the respondent Commission when considering such promotions, are the most material factor and the fact that the Head of Department considered the interested party as one of the best and recommended him for promotion cannot be ignored.
(2)That though the applicant is senior to the interested party by fiveand a half months, seniority isone of the factors which has to 'be taken into consideration; that it is not a decisive factor that governs promotions; 'that it only prevails if all other things are equal; and that in thiscase the recommendations of the Department of Personnel have made the overall picture of the interested party more favourable .than that of the applicant and his recommendations could not be ignored without special reasoning being given, which, apparently, the Commission could not find on the material before it.
(3)On the question whether the Director of theDepartment of Personnel knew theapplicant and theinterested party: That theDirector of theDepartment of Personnel is the Head of the interchangeable staff in the Civil Service and from the reasons appearing to have been given by him in the minutes of the Commission he must be taken to have informed himself about the merits of the people he was recommending to •the respondent Commission for promotion, particularly with regard to officers holding such senior posts in the hierarchy of the general administrative staff in respect of which he is considered as theHead of Department.
(4)On the question whether the applicantwas considered for promotion: That the respondent Commission explicitly stated in its minutes that it considered rthe merits, qualifications, seniority, service and experience of all the officers serving in the lower post of Administrative Officer 2nd Grade 390 10 15 20 25 5 10 15 20 and there is nothing to suggest that applicant was not considered for promotion; that what transpires from the relevant minute, is that the Ccmimission considered by name the position with regard to the officers mentioned therein, "both 'because of the recommendations made and the reasons given for that purpose by the Head of the Department, as well as because of the fact that some of them were in possession of a University Degree or Diploma which constitutes an advantage and cogent reasons had to be given for preferring the interested party who was not the holder of qualifications constituting an advantage, as compared with him (see Tourpekiv..The Republic
(1973)3C.L.R. 592).
(5)That the decision of the respondent Commission was duly reasoned in a cogent, clear and unambiguous way and at great length at that.
(6)That there are not sufficient reasons for intervening with the exercise of the relevant discretion by the respondent Commission, inasmuch as no striking superiority has been established by the applicant and the sub fudice decision was reasonably open.toit. Application dismissed. Cases referred to: Vonditsianosv. Republic
(1969)3 C.L.R. 83 at p. 91; Evangelou v.Republic
(1965)3C.L.R. 292; 25 • Tourpekiv. Republic
(1973)3C.L.R. 592. 'Recourse. 30 Recourse against the decision of the respondent Public Service Commission to promote the interested party to the post of Administrative Officer 1st Grade in preference and instead of the applicant. K. Michaelides, for the applicant. A. M. Angelides, Counsel of the Republic, for the respondent. Cur. adv. vult. 35 The following judgment was delivered by:A. LOIZOU, J.: By the present recourse applicant challenges the validity of the promotion of Kyriacos Stratis- 391 197.7. Sept 17. OMEROS NISSIOTIS V, : REPUBLIC (PUBLIC. SERVICE COMMISSION).! 1977 Sept. 17 OMEROS NISSIOTIS v. REPUBLIC (PUBLIC SERVICE COMMISSION) (hereinafter referred to as theinterested party) to thepost of Administrative Officer, 1st Grade, General AdministrativeStaff asfrom 1.7.1976. The said decision was taken at the meeting of therespondent Commission of the 20th March, 1976, and its minutes,insofar asrelevant,read asfollows: "The post of Administrative Officer, 1st Grade, is a Promotion Post from the immediately lower post of Administrative Officer, 2nd Grade. Under therelevant scheme of service, the following requirements are, interalia, stipulated: 10 (
- i)a minimum of five-years' administrative experience, two of which should be in the post of Administrative Officer, 2nd Grade; (
- ii)an excellent knowledge of Greek and a very good knowledge of English; (iii) the officers must have passed the exams, in Cyprus Statute Laws, or Certain Specified Laws, General Orders, Financial Instructions and StoresRegulations; and 15 20 (
- iv)possession of aUniversity Diploma or Degree willbeconsidered asanadvantage. The Commission considered the merits, qualifications, seniority, service and experience of all the officers serving in the lowerpost of Administrative Of- 25 ficer, 2nd Grade, as reflected in their Personal Files andin their AnnualConfidential Reports. TheDirector of the Department of Personnel stated that, having regard to the merits of all the candidates, he considered Messrs. Loucas Chrysochos, Costas Matsoukaris and Kyriacos Stratis as thebest, they were verygood officers and recommended them for promotion. The Director of the Department of Personnel added that Messrs. L. Chrysochos and K. Stratis possess both District Administrative experience as well as administrative experience in a Ministry. With regard to Mr. L. Isaias, who was senior to 392 30 35 5 10 15 20 25 30 35 40 the three officers referred to above, the Director of the Department of Personnel stated that, in viewof his health condition, the officer in question is performing light duties and cannot be transferred elsewherein order to undertake very responsible duties. The Commission observed that Messrs. L. Chrysochos and C. Matsoukaris are moresenior and have longer service and experience in the Administration orin theGovernment Servicethan the other officers, who possess a University Diploma or Degree. Mr. K. Stratis has the same seniority in his present post of Administrative Officer, 2nd Grade, with Mr. O. Georghiou as well as with the other officers holding aUniversityDiploma orDegree. The Commission observed that, in his Annual Confidential Reports, Mr. Chrysochos has been assessed as 'excellent' or mostly as 'excellent* during the years 1968, 1970, 1971, 1972, 1974 and 1975. In the Reports for the remaining years, the above officer has been assessed as 'Very good' and 'excellent' and, furthermore, Special Confidential Reports havebeen submitted in respect of this officer for the years 1970 and 1971.In some Reports, Mr. Chrysochoswasrecommendedfor promotion. With regard to Mr. Matsoukaris, the Commission observed that, in his Annual Confidential Reports for the years 1969, 1972, 1973 and 1975, he has been assessed as 'excellent'. In the Reports for the remaining years, the above officer has been assessed as 'very good' or 'very good' and 'excellent' and, furthermore, Special Confidential Reports have been submitted in respect of thisofficer for theyears 1973 and 1975. In some Reports, Mr. Matsoukaris was recommended for promotion. As regards Mr. Stratis, the Commission observed that, in his Annual Confidential Report for the year 1975,the officer in question hasbeen assessed mostly as 'excellent*, he has been described as 'an excellent officer, hardworking and devoted to his duties, efficient and well-mannered' and has been strongly recommended for promotion. In the remaining Re393 1977 Sept 17 OMEROS NISSIOTIS v. REPUBLIC (PUBLIC SERVICE COMMISSION) 1977 Sept. 17 ports, the officer in question was generally assessed as 'very good'. OMEROS NISSIOTIS v. REPUBLIC (PUBLIC SERVICE COMMISSION) The Commission gave due consideration to the University Diploma or Degreeheld by certain candidates—i.e. Messrs. O. Georghiou and G. Anastasiades.Thepossessionof suchaDiplomaorDegreewill be considered as an advantage, under the relevant schemeof service. The Commission believes that, in order that a holder of a University Diploma or Degree may be ableto tipthebalanceinfavour of himwhenmaking a promotion, thefactors of the said officer referring to his quality, ability, seniority, service and experience must be equal to those of other candidates. In this particular case, Messrs. Chrysochos, Matsoukaris and Stratis were considered to be superior to Messrs.Georghiou and Anastassiades, having regard to the factors referred to above as well as to therecommendations made by the Director of the Department of Personnel and, therefore, no weight was given to the qualifications of the officers referred to above. According to the relevant scheme of service, candidates for promotion to the post of Administrative Officer, 1st Grade, must possess an 'excellent knowledge of Greek and a very good knowledge of English'. Having regard to the long and satisfactory service in the Government of Messrs. L. Chrysochos, C. Matsoukaris and K. Stratis, as well as to their educational qualifications, the Commission was satisfied that theofficers inquestion didpossessan 'excellent knowledge of Greek and a very good knowledgeof English'. 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, seniority, service and experienceof thesecandidates,aswellastotheviews and recommendations made by the Director of the Department of Personnel, the Commission came to the conclusion that the following officers were on thewhole the best. The Commission accordinglyde~ 394 10 15 cided that theofficers inquestion bepromoted to the permanent post of Administrative Officer, 1st Grade w.e.f. 1.7.76: Loucas Chrysochos Costas Matsoukaris Kyriacos Stratis". Thegrounds upon which thesubjudicedecisionischallenged are two: (A) that in view of the applicant's qualifications, merits, and seniority, the respondent Commis10 sion failed in its paramount duty to select the best candidates, and (
- b)the respondent's decision is not duly reasoned. A comparison, therefore, of the respective merits, qualifications, seniority and experience of the applicant and 15 the interested party, as well as a perusal of the confidential reports on each one of them, willbe very useful. The applicant first worked as a clerk-accountant of the Pancyprian Gymnasium and became an Administrative Assistant 3rd Grade in 1962.Hewaspromoted to anAd20 ministrativeOfficer 2ndGradeonthe 1stDecember, 1967 on secondment and made permanent on the 15th April, 1968. The interested party wasfirst appointed as an Assistant District Inspector in 1962 and became an Administrative 25 Officer 2nd Gradeon secondment on the 1stMarch, 1968 andpermanent asfrom 1stOctober, 1968. They are both graduates of a Greek Gymnasium and they havepassed theexaminations that satisfy therequirements of the relevant scheme of service for the post in 30 question. The applicant has passed the book-keeping Intermediate examinations of the London Chamber of Commerce, English Lower and the Statute Laws Examinations and attended also a course in Political Science at the School 35 of Careers in 1968, but none of these qualifications constitute, under the relevant scheme, an additional advantage, nor could theyhave tipped the scalein favour of the applicant. (See Vonditsianosv. The Republic
(1969)3 C.L.R., 83atp.91). 395 1977 Sept. 17 OMEROS NISSIOTIS v. REPUBLIC (PUBLIC SERVICE COMMISSION) 1977 Sept. 17 OMEROS NISSIOTIS v. REPUBLIC (PUBLIC SERVICE COMMISSION) The recent confidential reports on the applicant, with the exception of the last one, present him as an excellent officer, devoted tohiswork,reliable,performing hisduties in a most satisfactory manner and showing great interest in his work. In the last confidential report which wasprepared by the new Acting Director of theMinistry of Agriculture and Natural Resources, he is rated as good on eight ratable items, very good in matters of courtesy in dealingwiththepublic and of averagegeneralintelligence. Theobservations of thereporting officer arethefollowing: "He has carried out his duties satisfactorily. At times, however, I felt that his devotion to duty could have been better. He has shown a tendency to get things done as quickly as possible without looking at details, which has affected adversely his work". It has been complained, and the applicant gave evidence to that effect, that the last reporting officer, the new Director-General of the Ministry of Agriculture and Natural Resources, had only been recently appointed to thatpost anddidnotknowhimwell. It should be, however, mentioned that hewasbefore that, the Director of theDepartment of Agriculture since 1968 and during that time it was part of the duties of the applicant to work on agricultural subjects and have professional contactswithhim. The confidential reports on the interested party ema- 25 nating from different reporting officers, are very good. Whilst serving in the District Office of Nicosia, he was reported upon as very good on all ratable items and that he was doing a very exact job for the enforcement of the Water (Specific Measures) Law in Western Messaoria for 30 which he was responsible. He was then transferred to the Planning Bureau and he was again reported as very good and good and as from the first year of his transfer there the Chief Planning Officer at the timeMr. Aristidou who later became the Director-General, Planning Bureau 35 and continued reporting on the interested party, observed that "this officer has proved to beconscientious, hard-working and competent during his relatively short time hehas been with us", and the following year heobserved, "a very amicable, polite and conscientious officer, 40 works hard, efficiently and reliably. Despite his relatively short stay with us this officer has successfully accommodated himself and adjusted to the requirementsof theBu396 10 15 20 reau". For the next year he is rated again as very good on all ratable items and good on two and the comments on him are that "he is very conscientious, hard-working and competent but he needed to improve further his ana5 lytical and critical approach". In the last confidential report he is rated as excellent on seven ratable items and very good on three and there appears the observation by the Director-General that he is an excellent officer, hardworking and devoted to his duties, efficient and well man10 nered and that he is very strongly recommended for promotion on first opportunity. Needless to stress that the confidential reports on the applicant and the interested party emanate from different reporting officers and inevitably they must have used dif15 ferent standards in their evaluation. These reports, as it has been stated time and again, should not be treated as constituting recommendations for the filling of the particular vacancy, but must be regarded only as constituting part of the overall picture of the merits of each candidate 20 which the Commission had to weigh as a whole. (See Evangelou v. The Republic,
(1965)3 C.L.R. 292). In considering the overall picture of a candidate, the recommendations of- the Head of the Department made at the meeting of the respondent Commission when considering 25 such promotions, are the most material factor and we cannot ignore the fact that the interested party was considered by him as one of the best and recommended him for promotion. Admittedly the applicant is senior to the interested 30 party,by five and a half months, and seniority is one of thefactors which has to be taken consideration, not being, however, a decisive one that governs promotions but one that should only prevail if all other things were equal. In the instant case, obviously the recommendations of 35 the Director of the Department of Personnel have made the overall picture of the interested party more favourable than that of the applicant, and the recommendations of a Head'of a Department could not be ignored without special reasoning being given, which, apparently, the respon40 dent Commission could not find on the material before them. 397 1977 Sept. 17 OMEROS NISSIOTIS V. REPUBLIC (PUBLIC SERVICE COMMISSION) 1977 Sept 17 OMEROS NISSIOTIS v. REPUBLIC (PUBLIC SERVICE COMMISSION) The argument that the Director of the Department of Personnel did not know the applicant and the interested party could not stand, as he is the Head of theinterchangeable staff in the Civil Service and from the reasons appearing to havebeen given by himin the minute of the 5 respondent Commission, he must be taken to have informed himself about the merits of the people he was recommending to the respondent Commission for promotion, particularly with regard to officers holding such senior posts in the hierarchy of the general administrative 10 staff in respect of which he is considered asthe Headof Department. The further argument of learned counsel for the applicant that his client was not considered for promotion and that the respondent Commission restricted its considera- 15 tion to the threepersons recommended bytheHead ofthe Department of Personnel and those candidates who had a University Degree, cannot stand. The respondent Commission explicitlystates that it considered the merits,qualifications, seniority, service and experienceof alltheoffi- 20 cers serving in the lower post of Administrative Officer 2nd Grade, as reflected in their personal files and in their annual confidential reports and thereisnothingtosuggest that this has not been done.What transpires from therelevantminute,isthatthe Commission consideredbyname 25 theposition withregard to the officers mentioned therein, both because of the recommendations made and the reasons given for that purpose by the Head of the Department, as well as because of the fact that some of them were in possession of a University Degree or Diploma 30 which constitutes an advantage and cogent reasons had to be given for preferring the interested party who was not theholder of qualifications constituting an advantage, as compared with him. This was in line with what was stated in the case of Tourpeki v. The Republic
(1973)3 35 C.L.R.
- No doubt, the decision of the respondent Commission is duly reasoned in a cogent, clear and unambiguouswayandatgreatlengthat that. Having considered the case on its totality, I have come to the conclusion that this recourse must fail, as I have not been persuaded that there are sufficient reasons for interveningwith the exercise of the relevant discretion by
- the respondent Commission, inasmuch as no striking superiority has been established by the applicant and the subjudicedecisionwasreasonably opentoit. In the result, the recourse is dismissed, but in the cir5 cumstancesI makenoorder astocosts. Application dismissed. No orderas tocosts. 399 1977 Sept. 17 OMEROS · NISSIOTIS v. REPUBLIC (PUBUC SERVICE COMMISSION)