clr/1980/1980_3_551.pdf

(3)of the Public Service Law, 1967 (Law 33/67). Public Officers—Promotions—Schemes of service—"University diploma or degree" in law—Whether it should be one that entitles its holder to practise law in Cyprus. 15 Public Officers—Recourse against promotion—Findings of trial Judge and comparison of the merits of candidates—Whether binding on the Public Service Commission when considering the merits of the same candidatesfor promotion to another post many years later. 20 Administrative Law—Public officers—Recourse against promotion— Findings of trial Judge and comparison of merits of candidates— Whether binding on the Public Service Commission when considering the merits of the same candidatesfor promotion to another post many years later. 551 Constantino*] v. Republic

(1980)The applicant in this recourse, a Customsand Excise Officer, 1st Grade, challenged the decision of the respondent Public Service Commission to promote Costas Hji Yiannis and Takis Vovides("the interested parties") to the post of Assistant Collector of Customs. The Head of Department, who was present 5 at the meeting of the Commission, recommended the interested parties for promotion but did not recommend applicant nor did he comment on him in any way. The applicant was senior to interested party Hji Yiannis by three years and ten months and senior by six years and two months to interested party 10 Vovides. The confidential reports on the interested parties werefar betterthanthoseon the applicant;andthey werebetter qualified than him. Moreover interested party Hji Yiannis had a diploma in Law which has been treated as constituting an advantage as provided by the relevant scheme of service. 15 Counsel for the applicant mainly contended: (

1. a)That there has been a violation of the principle of equality because the Head of Department did not comment expressly on all candidates but only on those mentioned in the relevant minutes* of the Com- 20 mission. (
2. b)That the Head of Department dictated his views to the respondent Commission and therefore he fettered their discretion. (
3. c)That the Diploma in Law for Executive Leadership 25 from La Salle Extension University of the interested party Hji Yiannis ought not to have been treated by the respondent Commission as constituting an advantage under the scheme of service, because it does not entitle its holder to practise law under the 30 provisions of the Advocates Law, Cap. 2, as amended. (
4. d)That the comparison of the candidates made by the trial Judge in the case of Vonditsianos & Othersv. The Republic

(1969)3 CL.R. p. 83, at p. 91,was not favourable to interested party Vovides as compared 35 with the present applicant who was also the successful Quoted at pp. 555-56 post. 552 3 C.L.R. \ \ ^ 5 10 15 20 25 30 35 Constantinoa τ. Repablic applicant in that recourse; and that in view of this position the respondent Commission ought not to have found in the present instance interested party Vovides as possessing better merit and as being more suitable for promotion than the applicant. Held, (I) that there cannot be any question of unequal treat­ ment if a Head of a Department expressly comments on some and does notcommentonothers;that theinference to be drawn, especially when there is a big number of candidates, as in the present case, is that for those not commented upon there was nothing to be said in favour and it was not his intention to recommend them for promotion or in other instances there is something to be said to explain why and in view of certain circumstances, such as marked seniority, they are not being recommended for promotion or that their seniority or other advantage should be ignored; and that, accordingly, contention (a) must fail.

(2)That the Head of Department did, as he was expected, and authorised under section 44

(3)of the Public Service Law, 1967 (Law 33/67) make his recommendations and gave reasons for same which were, in fact, consistent with the material in the file in all respects; and that, accordingly, contention (b) must fail.

(3)That from the scheme of service it cannot be inferred that a Diploma or a Degree in Law mentioned therein should be ' one that entitles its holder to practise law in Cyprus; and that, accordingly, contention (c) must fail.

(4)Thatthefindingsof fact andtheconclusions drawn thereon in the Vonditsianos case were based on the material that was before therespondent Commission when thatsubjudicedecision was taken in December 1967 and considered by the learned trial Judge in that recourse in 1969, whereas in the present case there is fresh material going as far back as 1968, including confidential reports over that period and the recommendations of the Head of the Departmentwhich clearly give a new context to the case; that if the argument of counsel was accepted, it would have amounted to making those findings as following the officials concerned for the rest of their career; and that, accordingly, contention (d) must, also, fail. 553 Constantinoii v. Republic

(5)That the seniority of the applicant was obviously outweighed by the other elements pertaining to the candidates; that having regard to the material before the respondent Commission as a whole, including all relevant factors that under section 44

(3)of the Public Service Law, 1967 (Law 33/67) had 5 to be taken into consideration, the sub judice decision was reasonably open to the Commission, there has been no wrong exercise of its discretion or abuse or excess of power, nor any misconception offact, norhastherebeentakenintoconsideration any matter that ought not to have been so taken; and that, 10 accordingly, the recourse must fail. Application dismissed. Cases referred to: Vonditsianos & Othersv. Republic

(1969)3 C.L.R. 83 at p.91. Recourse. 15 Recourse against the decision of the respondent to promote the interested parties to the post of Assistant Collector of Customs in preference and instead of the applicant. A. Haviaras, for the applicant. (?. Constantinou (Miss), for the respondent. 20 Interested party C. Hadjiyiannis, present. Cur. adv. vult. A. Loizou J. read the following judgment. The applicant by the present recourse challenges the validity of the decision of the respondent Commission published in the Official Gazette 25 of the Republic on 12.10.1979 (under Notification No. 1854), to promote Costas Hji Yannis and Takis Vovides (hereinafter referred to as "the interested parties" ) to the permanent post of Assistant Collector of Customs with effect from 15.5.1979 instead of the applicant. 30 According to the relevant schemes of service (enclosure 2), this post in the Department of Customs and Excise is a promotion post from the immediately lower oneofCustomsand Excise Officer, 1st Grade. The qualifications required for promotion are; A good geneial education not below the standard of a 35 six-year secondary school. Wide practical experience of the department's work. The ability to encourage, manage and control staff and to deal tactfully but firmly with suboidinates 554 3 C.L.R. 5 Constantino!) v. Republic A. Loizou J. and members of the public as necessary. Ability to write clear and balanced reports. A very good knowledge of Greek and English or of Turkish and English. A University diploma or degree or other equivalent qualification in commeice, economics, law (including Barristei-at-Law), or accountancy will be an advantage. The respondent Commission considered the filling of the vacancies in the said post at its meeting of the 1st May, 1979, and its minutes, in so far as relevant, read as follows: 10 "The Commission considered the merits, qualifications, seniority, service and experience of all the officers serving in the post of Customs and Excise Officer, 1st Grade, as reflected in their Personal Files and in their Annual Confidential Reports. 15 The Director of the Department of Customs and Excise stated that, having regard to the merits and abilities of allthecandidates,heconsidered Messrs. AndreasKousoulides, Stavros Vragas, Antonakis Ayiomamitis, George Kouloumas, Takis Vovides and Costas Hji Yiannis as the best,infact theywerebetter thantheremainingcandidates, their serviceshad been most satisfactory and recommended them for promotion. 20 25 30 35 With regard to Mr. C. Hji Yiannis, one of the officers referred to above, the Director of the Department stated that the officer in question was a very efficient and hardworking officer, he was the Chief Valuation Officer of the Department and that he considered him to be one of the best officers of his grade. Furthermore, Mr. Hji Yiannis had obtained a Diploma in Law for Executive Leadership from La Salle Extension University, which under the relevant scheme of service is considered as an advantage. The Director of the Department added that Messrs. A. Damianou, M.Tossounis,A.Efstathiou and M.Koulermos whowerefairly senior within their grade, possessed insufficient abilities, they could not unddtake the duties of the higher post and did not recommend them for promotion. According to the relevant scheme of service, candidates for promotion tothepost ofAssistant Collector ofCustoms 555 A. Loizon J. Constantinou v. Republic

(1980)mustpossess'averygoodknowledgeofGreekand English'. The Commission observedthat Messrs. Andreas Kousoulides, Stavros Vragas, Antonakis Ayiomamitis, George Kouloumas, Takis Vovides and Costas Hji Yiannis had graduated from a Six-year Secondary School in which 5 both the Greek and English languages were taught. Furthermore, the above officers had passed the English Ordinary and English Distinction Examinations and/or the English Lower and English Higher Examinations of the Cyprus Certificate of Education. Messrs. A. Kousou- 10 lides, A. Ayiomamitis, T. Vovides and C. Hji Yiannis had also passed the Greek Higher Exams of the C.C.E. In view of the above, and having regard to their long and satisfactory service in the Government, the Commission was satisfied that the officers in question did possess 'a 15 very good knowledge of Greek and English*. After considering all the above and after taking into consideration all the facts appertaining to each one of thecandidates,and after givingproperweighttothemerits, qualifications, seniority, service and experience of these 20 candidates, as reflected in their Personal Files and in their Annual Confidential Reports, and having regard to the views expressed as wellasto the recommendation madeby the Director of the Department, the Commission came to theconclusion that thefollowing officers wereonthewhole 25 the best. The Commission accordingly decided that the officers in question be promoted to the permanent post of Assistant Collector of Customs w.e.f. 15.5.79: Andreas Kousoulides, Stavros Vragas, Antonakis Ayiomamitis, George Kouloumas, Takis Vovides, Costas Hji Yiannis'*. 30 Before examining the grounds of law on which this recourse has been argued, it isuseful torefer to thecareers oftheparties as appearing in the relevant files. The applicant entered the Public Service as a Temporary Customs and Excise Officer on the 17th October, 1949, and 35 climbed up the ladder to become Customs and Excise Officer, 1st Grade, on the 1st August, 1970, after passing the relevant examinations. HegraduatedtheGreek Gymnasium ofLimassol and hepassed theCyprusCertificate of Education Examinations in English and Greek Higher and Mathematics *A*. He also 40 556 3 CL.R. Constantinon τ. Republic A. Loizou J. passed the examinations on Financial Instructions and Store Regulations. Interested party Costas Hji Yiannis entered thePublic Service aspostmaninthe Department of Posts onthe 1st October, 1956, 5 and soon afterwards joined the Department of Customs and Excise and became eventually on the 1.6.1974 Customs and Excise Officer, 1st Grade. He graduated the English School, Morphou, and he has passed the following examinations: 10 15 20 25 (i) Elementary Book-keeping, L.C.C. (ϋ) C.C.E.: English Lower English Higher Greek Higher Mathematics *A\ Geography (iii) Department Examination for promotion to the post of Customs and Excise Officer, 1st Grade (iv) Financial Instructions and Stores Regulations (v) General Orders (vi) G.C.E.: English Language (O.L.) Modern Greek (O.L.) British Constitution (A.L.) Economics (A.L.) British Economic History (A.L.) (vii) Intermediate Examination in Law, University of London. During 1974 he received advanced training in Customs and Administration intheFederal Republic of Germanyand in 1977 30 he obtained a Diplomain Law for Executive Leadership, of the La Salle Extension University, U.S.A. Interestedparty Takis Vovides became a Temporary Customs and Excise Officer onthe 1st April, 1954, and eventually became a Customs Officer, 1st Grade, on the 1st August, 1970. He 35 graduated the Commercial Lyceum of Larnaca and he has passed also the following examinations: (i) C.C.E.: English Lower 557 A. Loizou J. Constantinou v. Republic

(1980)English Higher Greek Higher Mathematics Ά* Mathematics *B' History Geography 5 (

1. ii)L.C.C.: Book-keeping Elementary Book-keeping Intermediate Accounting Higher 10 (iii) General Orders (
2. iv)Financial Instructions and Stores Regulations (
3. v)Departmental Examinations for promotion to the post of Customs and Excise Officer, 1st Grade. (
4. vi)Certificate in the Preliminary Examinations of the 15 German Language. As far as their seniority is concerned,the applicant is senior to interested party Hji Yiannis by three years and 10 months in view of the effective date of their promotion to the post of Customs and Excise Officer, 1st Grade. He is also senior by 20 six years and two months to interested party Vovides by virtue of section 46

(2)of the Public Service Law 1967, as these two officers were simultaneously promoted to the post of Customs and Excise Officer, 1st Grade, and their seniority had to be determined according to their previous one, which was their 25 promotion tothepost of CustomsandExcise Officer, 2ndGrade. In order to complete the picture of the material factors that have to be taken into consideration under section 44

(1)of the Public Service Law and which as seen have been taken into consideration by the respondent Commission, I shall refer to theAnnual Confidential Reports of theparties, mainly those prepared on them during the last three years preceding the sub judicedecision, though it may later prove necessary to refer as well to previous reports in view of the arguments advanced by learned counsel for the applicant. The applicant for the year 1976 is rated as "excellent" on all ten ratable items and the Reporting Officer's observations therein are that he is "very hardworking and efficient officer 558 30 35 3 C.L.R. Constantlnou v. Republic A. Loizou J. with wide experience in the control of reliefs and temporary importations". The Countersigning Officer expresses the view that heis "a tactful, hardworking and efficient officer whojust falls short of 'excellent'". The same rating and comments by 5 the Reporting Officer are found in the Confidential Report for the year 1977, but the Countersigning Officer expresses the view that he is slightly over-rated. For the year 1978 he is rated as "excellent" on eight ratable items and as "very good" ontwo. The Reporting Officer describeshim asa hardworking 10 and efficient officer and the Countersigning Officer makes no comment. The first two Confidential Reports referred to are bythesameReportingOfficer, whereasthelastoneisbyanother Officer. Interested party Costas Hji Yiannis israted for theyear 1976 15 as "excellent" on all ratable items and the Reporting Officer observes that he is "highly experienced and excellent as Chief Valuation Officer of the Department". The Countersigning Officer expresses the view that he is "one of the most brilliant officers inhisgrade. Tactful and efficient, he possesses marked 20 abilitiesto organiseandcontrol staff Heshould gofar". For the year 1977 he is once more rated as "excellent" with the same observation as for the previous year by the Reporting Officer. The Countersigning Officer expresses the view that he is "A model of efficiency, courtesy and leadership. Among the 25 top half-a-dozen officers in the whole Department". For 1978heisalsoreported uponinthe sameway asbefore and the CountersigningOfficer expresses the view that he is "themost accomplished officer in his grade. He leads his section in an exemplary manner. Qualified to assume responsibility 30 at top management levels". The Reporting Officer for all threeyearsisthesameasthe Reporting Officer for theapplicant for the first two years. Interested party Takis Vovides is reported for the year 1976 as "excellent" on all ratable items and the Countersigning 35 Officer expresses the view that he is "A tactful, hardworking, devoted and efficient officer". He is also rated as "excellent" for theyear 1977withnofurther viewsexpressedbytheCountersigning Officer and the same for 1978with the Countersigning Officer expressing the views that he is "One of the brightest 40 officers in his grade. Tactful, widely experienced and hardworking, he can assume and discharge any duties". The 559 A. Loiroo J. ConstantinoD v. Republic (19S0) Reporting Officer is a different one than the Reporting Officers on the other two officers. The Countersigning Officer is the same in respect of all the parties and he is the Director of the Department of Customs andExcisewhoattended themeetingoftherespondent Commission of the 1stMay, 1979,andwhoserecommendationsmadein respect of the subject promotions inhiscapacity as Head of the Departmentinwhichthevacanciesexisted,appearintheminutes oftherespondent Commission earlier setoutinthisjudgment. 5 There is no doubt in my mind that the Confidential Reports 10 ontheinterestedpartiesarefarbetterthanthoseontheapplicant. Moreover, the two interested parties possess superior qualifications to him and interested party Hji Yiannis has a Diploma in Law which has been treated as constituting an advantage as provided by the relevant scheme of service. I have felt that I 15 should deal rather extensively with this aspect of the case in ordertoseehowtheperfoimance ofthecandidateswasevaluated during their careers as a whole, a fact relevant to the merit of each candidate. Moreover, this was thought essential as in viewofthequestionofsenioritythatexistsamongthecandidates, 20 it had to be examined whether all other elements were more orlessequalsothattheseniorityof the applicant ought to have prevailed. In addition to theabove,themerit ofthecandidates had also to be viewed as against the duties and responsibilities and the qualifications required under the relevant scheme of 25 service, coupled with the benefit of the views of the Head of the Department. The grounds of law relied upon on behalf of the applicant are the following:

(1)That thesubjudicedecision wastaken in abuse ofpower and I understand this to contain the contention that 30 the respondent Commission failed in its paramount duty to select the most suitable candidate for promotion.

(2)That the respondent Commission acted under a misconception of fact inasmuch as they did not take into consideration the applicant.

(3)That therespondent Commission didnot takeintoconsideration the seniority, experience and qualifications of theapplicant which aresuperior to theinterested parties.

(4)That the respondent Commission wrongly took into 560 35 3 C.L.R. Constantinou τ. Republic A. Loizoa J. consideration and/or was influenced by qualifications which are not required and/orhave no relation whatso­ ever with the scheme of service. Looking at the material before the respondent Commission 5 as a whole, to which I have referred earlier in this judgment, including all relevant factors that under section 44

(3)of the Public Service Law had to be taken into consideration, I have come to theconclusion that thesubjudicedecision was reason­ ably open to it and there has been no wrong exercise of its 10 discretion or abuse or excess of power, nor any misconception of fact, nor has therebeen taken into consideration any matter that ought not to have been so taken. The seniority of the applicant was obviously outweighed by the other elements pertaining to the candidates. 15 The argument advanced on behalf of the applicant thatthere has been a violation of the principle of equality because of the fact thattheHeadof the Departmentdidnotcomment expressly on all candidates but only on those mentioned in theminutes, cannot stand. There cannot be, in my view, any question of 20 unequal treatment if a Head of a Departmentexpressly com­ mentsonsomeanddoesnotcomment onothers. Theinference tobedrawn,especially whenthereis abig numberofcandidates, as in the present case, is that for those not commentedupon therewasnothingtobesaidinfavour anditwas nothisintention 25 to recommend them for promotion or in other instances there issomethingtobesaidtoexplain why aridinview of certaincir­ cumstances, such as marked seniority, they are not being re­ commendedfor promotion orthattheir seniority or other adva­ ntage should be ignored. 30 Theotherargument thattheHeadof the Department dictated hisviewstotherespondentCommission and therefore it fettered theirdiscretion,is notwarrantedby thematerialinthe file. The Headof theDepartmentdid,ashewas expected, andauthorized under section 44

(3)of the PublicService Law, make his recom35 mendations and gave reasons for same which were, in fact, consistent with the material in thefilein all respects. The next argument advanced by counsel for the applicant was that the Diploma in Law for Executive Leadership from La Salle Extension University of theinterestedparty Hji Yiannis 561 A. Loizou J. Constantinou v. Republic

(1980)ought not to have been treated by the respondent Commission asconstituting anadvantageundertheschemeofservice,because itdoesnot entitleitsholder to practise lawunder the provisions of the Advocates Law, Cap. 2, as amended. This cannot stand, inasmuch as from the scheme of service it cannotbeinferred thata Diplomaora DegreeinLawmentioned therein should be one that entitles its holder to practise law in Cyprus.* 5 Finally, counsel for the applicant pointed out to me the findings made in the case of Vonditsianos & Othersv. The 10 Republic

(1969)3 C.L.R., p.83,atp. 91,wherebythecomparison made by the learned trial Judge in that casewas not favourable to onterested party Vovides as compared with the present applicant who was also the successful applicant in that recourse and that in view of this position the respondent Commission 15 ought not to have found in thepresent instance interested party Vovides as possessing better merit and as being more suitable for promotion than the applicant. The short answer to this argument is that thefindingsof fact and the conclusions drawn thereon in the Vonditsianos case were based on the material 20 thatwasbefore therespondent Commission whenthat subjudice decision was taken in December 1967 and considered by the learned trial Judge in that recourse in 1969,whereas wehavein the present case fresh material going as far back as 1968,includingconfidential reports over that period and therecommenda- 25 tions of the Head of the Department which clearly give a new context to the case. If the argument of counsel was accepted, it would have amounted to making thosefindingsas following the officials concerned for the rest of their career which, to my mind, were in no way intended to be. 30 For all the above reasons this recourse is dismissed but in the circumstances I make no order as to costs. Application dismissed. No order as tocosts. 562