clr/1979/1979_3_379.pdf

(1979)Recommendations—Have to be given due weight, especially if the post concerned involves duties requiring specialized knowledge— " First entry and promotion" post—Interested party, though an oursider to the service in the strict technical sense, not unknown to the Head of Department whose recommendations could be safely relied on by the Commission. 5 The applicant in this recourse complains against the appointment of the interested party to the "first entry and promotion" post of Statistics Officer, in the Department of Statistics and Research. At the material time the applicant was holding the 10 post of Senior Statistics Assistant, having been appointed to it on July 15, 1969,and the interested party, who was holding the post of Master of Mathematics in Secondary Education, had been seconded to the Department concerned as from September 1, 1971,after he had attended a post-graduate course in relation 15 to, mainly, Vital Health Statistics, on a scholarship granted to him by the World Health Organization. He had attended this course, which included additional classes in Medical Statistics, at the London School of Hygiene & Tropical Medicine of the University of London, from September 1970 to May 197!, and 25 he had been, also, attached to the Office of Population Censuses and Surveys, in London, for an extended training programme which lasted from January 1971 till June

1. In forwarding the applications of the interested party and the applicant to the respondent Commission, the Director of the Department of Statistics and Research stated in writing the following :- 25 " Mr. Pericleous has been awarded a nine-month fellowship by the World Health Organization for a post-graduate specialization in Vital, Health and General Demographic 30 Statistics. He has already, through visits, familiarized himself with the statistical information in all Government Hospitals and Rural Health Centres. He seems keen and meticulous in his work and iscapable of constructive suggestions. In fact he is preparing a long report suggesting ways 35 and means of improving our Demographic Statistics". "Mr. Andreou although of average intelligence and academic background, both at Secondary School level and University level makes strenuous efforts to succeed in his 380 3 C.L.R. Andreon τ. Republic l 5 10 15 professional sphere. He has proved himself of immense value to the Ministry of Education working on Educational Statistics, providing essential statistical information for major administrative decisions particularly in the recent decision by Government to extend free education till the age of
2. He is polite to his superiors and friendly with .,his colleagues and expects to be appreciated in his efforts :' . '"';' and endeavours". The applicant possessed a Degree of Bachelor of Arts in Social Studies (General,Pass in Economics,Governmentand Statistics) of the University, of Exeter, and had, also, as a UNESCO fellowship holder, in 1968, for a six months' period, studied Educational Statistics in the United Kingdom, Ireland, Holland, France and Italy. The interested party had a degree in Mathematics of the University of Athens and had acquired, also, the aforesaid post-graduate qualifications. Counsel for the applicant mainly contended: 20 25 30 35 (a) That the appointment of the interested party was in etfeet a "first entry appointment",and not apromotion, and that such part'/ did not possess one of the qualifi­ cations required .n this respect under the relevant scheme of service, namely a post-graduate qualification in Statistics, in at dition to his Degree in Mathematics, or, alternatively, two years' experience in Statistics, in addition to his said Degree. (b) That the applicant had priority over the interested party for promotion to the post concerned, because the latter was an outsider to the service, and was, therefore, given a first entry appointment to such post. (c) That in preferring the interested party undue weight was given to his specialization in Vital, Health and Demographic Statistics and that this amounted, in effect, to the application of the relevant scheme of service in an amended form,- because no such speciali­ zation .was actually required under the said scheme; and that what was done was contrary to law, since only the Council of Ministers is empowered, under section 3S1 Andreou v. Republic

(1979)29of the PublicService Law, 1967to make, or amend, schemes of service. (d) That in the way in which the Head of the Department concerned presented his recommendations before the respondent Commission it was in effect he, and not 5 the Commission, who selected the interested party for appointment instead of the applicant. Held, dismissing the recourse,

(1)that itisuptotheappointing authority to interpret and apply the relevant scheme of service in the circumstances of each particular case, and this Court will 10 not interfere with an appointment made by such authority if it is not satisfied that it was not reasonably open to the authority in question to interpret and apply the scheme of service in the wayin which it hasdone;that though theapplicant did not have two years' experience in statistics he possessed a post graduate 15 qualification in statistics which could be reasonably treated by the respondent Commission as satisfying the relevant alternative requirement of the scheme of service; and that, accordingly, it was reasonably open to therespondent Commission to interpret and apply the relevant scheme of service as it has done. 20

(2)That though, as a rule, priority for promotion should, if possible, be given to those already in the service, the preference for those already in the service can never override the more fundamental principle that the most suitable candidate has to beselected for appointment or promotion to a vacant post inthe 25 public service; that a person in the service may, for the above reason, be by-passed in order to appoint an outsider to the service, but if this is done then adequate reasons must be given for adoptingsuchacourse;that thereasonswhichledtherespondent Commission to prefer the interested party were stated 30 adequately in the relevant minutes ofthe Commission; that they werereasons pertaining to hisspecialized academic qualifications and theywerereasonsof such a natureas to render it reasonably open to the Commission to select the interested party instead of the applicant. 35

(3)That a scheme of service prescribes only the basic requirements for appointment or promotion to a particular post; that, therefore, it is open to an appointing authority to take into account any other qualification of a candidate which is of such 382 3 C.L.R. 5 Andreou τ. Republic -. ;• a natureas to renderhim themost suitable candidatefor appoint- '-r *"•· Γ ment or promotion; and that there cannot be excluded from the notion of "the most suitable" the essential consideration of how best will be served the interests of the specific branch of the public service in which a vacant post is to be filled. (See, also, ιΛ Georghiades and Another v. The Republic

(1966)3 C.L.R. 827 at v'!'P- 845). ; $ | $ 4 20

(4)That the recommendations of a Head of Department have to be given due weight by an appointing authority, especially if the post concerned involves duties requiring specialized know­ ledge (see, inter alia, Theodossiou, infra, and Gavriel v. 77ie Republic,

(1971)3 C.L.R. 185, 199); that in the present instance it could not be said that the interested party was an unknown to the Head of Department candidate, entirely from outside the public service or from another Department, because both the interested party and the applicant had already been working for some time in the Departmentconcerned under him; that, there­ fore, his recommendations could be safely relied on by the respondent Commission in view of his personal knowledge of the merits of both of them (p. 389 post). 25 ,

(5)That this Court has not been satisfied that the Commission in reaching the sub judice decision has exceeded the proper limits of its relevant discretio'iary powers; arid that, accordingly, the recourse must be dismii^ed. Application dismissed, 10 15 Cases referred to: Andreou v. Republic (\913) 3 C.L.R. 101; Papapetrou \,.Republic, 2 R.S.C.C. 61 at p. 69; Josephides v. Republic, 2 R.S.C.C. 72 at p. 77; 30 Petsas v. Republic, 3 R.S.C.C. 60 at p. 63; Neophytou v. Republic, 1964 C.L.R. 280 at p. 299; Georghiadesand Others v. Republic

(1967)3 C.L.R. 653 at pp. 666 and 669: Tryfon v. Republic

(1968)3 C.L.R. 28 at p. 40; 35 Kyriakou v. Republic

(1975)3 C.L.R. 37, at pp. 44, 45; Thcodossiouv. Republic. 2 R.S.C.C. 44 at p. 48; Georghiades and Another v. Republic

(1970)3 C.L.R. 257 at pp. 262, 263: 3S3 Andreou v. Republic

(1979)Pattichis andAnother v. Republic

(1968)3C.L.R. 374at p.381; Hjisavva and Another v. Republic

(1967)3C.L.R. 155at p. 179; Petrouv. Republic

(1967)3C.L.R. 40 at p.48; Hadjiconstantinou and Othersv. Republic

(1973)3 C.L.R. 65 at p. 71; Georghiades and Another v. Republic

(1966)3 C.L.R. 827 at p. 845; Gavriel v. Republic

(1971)3C.L.R. 185at p. 199; Decision of the Greek Council of State in case 634/1950. 5 Recourse. 10 Recourse against the decision of respondent No. 1to appoint the interested party to the post of Statistics Officer in the Department of Statistics and Research in preference and instead of the applicant. K. Talarides, for the applicant. 15 N. Charalambous, Counsel of the Republic,for the respondents. Cur. adv. vult. TRIANTAFYLLIDES P. gave the following judgment. The applicant has challenged by this recourse the appointment of 20 L. Pericleous (to be referred to hereinafter as the "interested party") to the "first entry and promotion" post of Statistics Officer, in the Department of Statistics and Research, and, also, the failure of the respondent Public Service Commission tofill another, existing at the material time, vacancy in the post in 25 question. In relation to the said failure an Interim Decision has already been given in this case (see Andreou v. The Republic,

(1973)3 C.L.R. 101), in which the text of the relevant minutes of the respondent Commission, dated January 12, 1972, was 30 reproduced in full, and, therefore, it does not have to be quoted once again in this judgment. The applicant was holding, on the above date, the post of Senior Statistics Assistant, having been appointed to it on July 15, 1969, and the interested party, who was holding the post of 35 Master of Mathematics in Secondary Education, had been seconded to the Department concerned as from September 1, 1971, after he had attended a post-graduate course in relation to, 384 3 C.L.R. Andreou τ. Republic TriantafjHides P. mainly, Vital and Health Statistics, on a scholarship granted to him by the World Health Organization. As it appears from documents attached to the application of the interested party for appointment to the post of Statistics 5 Officer, he had attended the said course, which included additional classes in Medical Statistics, at the London School of Hygiene & Tropical Medicine of the University of London, from September 1970 to May 1971, and he had been, also, attached to the Office of Population Censuses and Surveys, in 10 London,for an extended training programme which lasted from • January 1971 till June

1. In forwarding the application of the interested party to the respondent Commission, the Director of the Department of Statistics and Research, Mr. Ch. Menelaou, stated in writing 15 ιhe following:- 20 25 " Mr. Pericleous lias been awarded a nine-month fellow­ ship by the World Health Organization for a post-graduate specialization in Vital, Health and General Demographic Statistics. He has already, through -visits, familiarized himself with the statistical information in all Government Hospitals and Rural Health Centres. He seems keen and meticulous in his work and is capable of constructive suggestions. In fact he is preparing a long report sug­ gesting ways and means of improving our Demographic Statistics." In forwarding the application of the applicant, Mr. Menelaou made the following written comments:- 30 35 " Mr. Andreou although .of average intelligence and acade­ mic background, both at Secondary School level and University level makes strenuous efforts to succeed in his professional sphere. He has proved himself of immense value to the Ministry of Education working on Educational Statistics, providing essential statistical information for major admin strative decisions particularly in the recent decision by Government to extend free education till the age of
2. He is polite to his superiors and friendly with his colleagues and expects to be appreciated in his efforts and endeavours". 385 Triantafyllides P. Andreou v. Republic

(1979)The academic qualifications of the two candidates concerned were as follows :The applicant possessed a Degree of Bachelor of Arts in Social Studies (General, Pass in Economics, Government and Statistics) of the University of Exeter, and had, also, as a 5 UNESCO fellowship holder, in 1968, for a six months' period, studied Educational Statistics in the United Kingdom, Ireland, Holland, France and Italy. The interested party had a Degree in Mathematics of the University of Athens and had acquired, also, the post-graduate 10 qualifications which have been already described in this judgment. The first matter with which I have to deal is the submission of counsel for the applicant that the appointment of the interested party was in effect a "first entry appointment", and not a promo- 15 tion, and that such party did not possess one of the qualifications required in this respect under the relevant scheme of service, namely a post-graduate qualification in Statistics, in addition to his Degree in Mathematics, or, alternatively, two years' experience in Statistics, in addition to his said Degree. It is 20 quite clear from the material before me that the interested party did not have two years' experience in Statistics, but he possessed the aforementioned post-graduate qualification in Statistics, which, inmy view, could bereasonably treated by the respondent Commission as satisfying the relevant alternative requirement of 25 the scheme of service; and in thisconnection Icannot agree with counsel for the applicant that such post-graduate qualification ought necessarily to have been ofa university level or a qualification which was obtained after participation in an examination for a relevant Diploma or Degree. 30 It iswell established that it is up to the appointing authority— in this case the respondent Commission—to interpret and apply the relevant scheme of service in the circumstances of each particular case, and this Court will not interfere with an appointment made by such authority if it is not satisfied that it was not 35 reasonably open to the authority in question to interpret and apply the scheme of service in the way in which it has done (see Papapetrou v. The Republic, 2 R.S.C.C. 61, 69, Josephides v. The Republic, 2 R.S.C.C. 72, 77, Petsas v. The Republic, 3 R.S.C.C. 60, 63,and more recently Neophytou v. The Republic, 40 386 3 C.L.R. 5 Andreou ν. Republic Triantafyllides P. 1964 C.L.R. 280, 299, Georghiadesand others v. The Republic,

(1967)3C.L.R. 653,668, Tryfon v. TheRepublic,

(1968)3C.L.R. 28, 40 and Kyriakou and others v. The Republic,

(1975)3C.L.R. 37, 44, 45); and in the present case, as has been already indicated, 1 am of the view that it was reasonably open to the respondent Commission to interpret and apply the relevant scheme of service as it has done. Another complaint of counsel for applicant has been that his client had priority over the interested party for promotionto the 10 post concerned,because the latter was an outsider to the service, and was, therefore, given a first entry appointment to such post. That, as a rule, priority for promotion should, if possible, be given to those already in the service is a proposition which was to be found in the General Orders (II/I.2), and useful reference, 15 in this respect, may, also, be made to the Conclusions from the Case-Law of the Council of State'in Greece, 1929-1959, p. 345, as well as to the decisions of the Council of State in Greece in cases 383

(36)and 164

(56); but, the pieference for those already : in the service can never ovenide the more fundamental principle 20 that the most suitable candidate has to be selected for appoint­ ment or promotion to a vacant post in the public service (see, inter alia, Theodossiou v. The Republic, 2 R.S.C.C. 44, 48, Georghiadesand another v. The Republic,

(1970)3 C.L.R. 257, 262, 263, Pattich'ts and another v. The Republic,

(1968)3 C.L.R. 25 374, 381, Hjisavva and another v. The Republic,

(1967)3 C.L.R. 155, 179 and Petrou v. The Republic,

(1967)3 C.L.R. 40, 48); and that a person in the service may, for the above reason, be by-passed in order to appoint an outsider to the service is shown by the cases of Georghiades and others v. The Republic,

(1967)30 3 C.L.R. 653, 666 and Hadjicons/nntinou and others v. The Republic,

(1973)3C.L.R.65,71; but if this is done then adequate reasons must be given for adopting such a course. 35 40 The reasons which led the respondent Commission to prefer the interested party were stated adequately in the relevant minutes of the Commission; they were reasons pertaining to his specialized academicqualifications and 1 do think that they were reasons of such a nature as to render it reasonably open to the Commission to select the interested parly instead of the applicant; and in this respect it must be borne in mind that the interested party was an outsider to the service only in a strict 387 Triantafyllides P. Andreou v. Republic

(1979)technical sense of the term, because, even though he was not substantively appointed to a post in the Department concerned, he had already been seconded, since September 1971, to such Department, after he had obtained a post-graduate qualification which was very relevant to his work there. 5 Counsel for the applicant has submitted that in preferring the interested party undue weight was given to his specialization in Vital, Health and Demographic Statistics and submitted that this amounted, in effect, to the application of the relevant scheme of service in an amended form, because no such specialization was 10 actually required under the said scheme; he, further, contended that what was done was contrary to law, since only the Council of Ministers is empowered, under section 29 of Public Service Law, 1967 (Law 33/67), to make, or amend, schemes of service. In my opinion a scheme of service prescribes only the basic 15 requirements for appointment or promotion to a particular post. It is open, therefore, to an appointing authority to take into account any other qualification of a candidate which is of such a nature as to render him the most suitable candidate for appointment or promotion; and there cannot be excluded from the 20 notion of "the most suitable" the essential consideration of how best will be served the interests of the specific branch of the public service in which a vacant post is to be filled. Aswaspointed out in Georghiadesandanotherv. TheRepublic,

(1966)3 C.L.R. 827, 845, personal prospects of promotion 25 cannot be allowed to override the interests of the service when the most suitable candidate for the post concerned is being chosen. It has been, further, contended by counsel for the applicant that in the way in which the Head of the Department concerned, 30 Mr. Menelaou, presented his recommendations before the respondent Commission it was in effect he, and not the Commission, who selected the interested party for appointment instead of the applicant. It has, however, been often stated that the recommendations of a Head of Department have to begiven due 35 weight by an appointing authority, especially if the post concerned involves duties requiring specialized knowledge (see, inter alia, Theodossiou, supra, and Gavrielv. The Republic,

(1971)3 C.L.R. 185, 199); and in the present instance it could not be 388 3 C.L.R. Andreou v. Republic Triantafyllides P. said that the interested party was an unknown to Mr. Menelaou candidate, entirely from outside the public service or from another Department, because both the interested party and the applicant had already been working for some t.me in the Depart5 ment concerned under Mr. Menelaou; so, his recommendations could be safely relied on by the respondent Commission in view of his personal knowledge of the merits of both of them. . In any event, a perusal of the relevant minutes of the Commission shows that all three candidates who were before it at the 10 time, namely the applicant, the interested party and a certain Thcophanous, were duly considered on the basis of all relevant material, and that the strong recommendation made in favour of the interested parly by Mr. Menelaou—which he supported by giving full reasons for it—was only one of the factors, even 15 though possibly an important factor, which led to the selection of the interested party; and it"was, certainly, up to the Commission to give such weight as it deemed fit to any one of the various factors which were relevant to its choice of the most suitable candidate (sec, iater alia, in this respect, the decision of 20 the Council of State in Greece in case 634/1950). 1have dealt with themain issueswhich were raised by counsel for the applicant and which, in my view, merited particular consideration in this judgment. 1 have, of course, paid, also, due regard to all other additional arguments which were 25 advanced by him, in relation to other secondary issues, in an effort to establish that the respondent Commission in selecting the interested party has acted in excess or abuse of powers;but, having carefully examined every relevant consideration, I feel that 1have not been satisfied that the Commission in reaching 30 the sub judice decision has exceeded the proper limits of its relevant discretionary powers (and see, inter alia, in this connection, the Conclusions from the Case-Law of the Council of State in Greece, 1929-1959, p. 268). For all the foregoing reasons this recourse, against the 35 appointment of the interested party; fails and it is dismissed accordingly, but, in the light of all pertinent factors, without any order as to costs against the applicant. Application dismissed. No order as to costs. 389