← Κύπρος

clr/1982/1982_3_1123.pdf

3 C.L.R. 1982 December 28 [MALACHTOS, J.] ΓΝTHE MATTER OFARTICLE 146 OF THECONSTITUTION ARGYROS MICHAEL, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC SERVICE COMMISSION AND ANOTHER, Respondents. i \ \ (CaseNo. 113/78). 1 Public Officers—Appointments and promotions—JudicialcontrolPrinciples applicable—Reasonably opento the respondent Com­ mission, on the material before it to appoint the interested party instead of the applicant. 5 10 15 20 The applicant was a candidate for the post of Registrar in theHoteland CateringInstitute. TherespondentPublic Service Commission after considering the merits, qualifications and experience of thecandidatesinterviewed aswellas their perform­ anceduring theinterview decided to appointtheinterested party to the above post and hence this recourse. Held, thatthePublic Service Commission in effecting appoint­ ments or promotions has a discretion and when it has exercised its discretion in reaching a decision, after paying due regard to all relevant considerations, and when taking into account all relevant factors, this Court will not interfere with such a discretion unless it can be shown to thesatisfaction of theCourt that such exercise has been made in disregard of any provision of the Constitution or of any law or has been made in excess or abuse of powers vested in the Public Service Commission; (see Saruhanv. The Republic, 2 R.S.C.C. 133 at page 136); that in this case, taking into account the material before the respondent Commission, it was reasonably open to it to take the sub judice decision complained of; that the reasons which 1123 Michael τ. Republic

(1982)led the respondent Commission to prefer the interested party are adequately stated in its minutes; that they were reasons pertaining to the academic qualifications of the interested party and her performance at the interview; that the applicant failed to satisfy this Court that he was the best candidate or that 5 the Public Service Commission in reaching the decision com­ plained of has exercised its discretion without paying due regard to all relevant considerations and that it took into account irrelevant factors or that it acted in abuse of the powers vested in it: 10 Application dismissed. Cases referred to: Theodossiou v. Republic, 2 R.S.C.C. 44 at p. 47; Saruhanv. The Republic, 2 R.S.C.C. 133 at p. 136. Recourse. 15 Recourse against the decision of the respondent to appoint the interested party lo the post of Registrar in ths Hotel and Catering Institute in preference and instead of the applicant, M. Christofides, for the applicant. CI. Antoniades, Senior Counsel of the Republic, for the 20 respondent. Cur. adv. vult. MALACHTOS J. read the following judgment. The applicant in this recourse claims - (
  1. a)A declaration of the court that the act and/or decision of the 25 respondents, which was published in the Official Gazette of the Republic on 30/12/77and by which the interested party Christina Rodosthenous was appointed lo the post of Registrar in the Hotel and Catering Instituteinstead of the applicant, is null and void and of no legal effect whatsoever; and 30 (
  2. b)A declaration of the court that the refusal and/or omission of the respondents to appoint the applicant on the 30/12/77 when the official appointment to the post of Registrar in the Hotel and Catering Institute was published in the Official Gazette of the Republic, is null and void and of no legal effect 35 1124 3 C.L.R. Michael v. Republic Malachtos J. whatsoever and everything which was omitted should be per­ formed. The following are the relevant tacts of this application. 5 10 The Director-General of the Ministry of Labour and Social Insurance by his letter dated 17.6.77 informed the Chairman of the Public Service Commission that the Council of Ministers approved, inter alia, the filling of one vacancy in the post of Registrar in the Hotel and Catering Institute and requested him to take the necessary steps for its filling. According to the relevant scheme of service the post of Re­ gistrar in the Hotel and Catering Institute is a first entry and promotion post and the duties and responsibilities, as well as the required qualifications, are the following: Duties and Responsibilities: 15 1· Responsible to Ihe Director for: (
  3. a)the performance of the administrative and/οι clerical work in connection with the subjects of peisonnel and the needs of the Institute; 20 25 (
  4. b)the keeping, with the cooperation of the teaching and other personnel, of the necessary elements and the carrying out of the involved administrative and/or clerical woik relating to the admiss;on, attendance, d'scipline, promotion and graduation of the students as well as the keeping of full contemporary registers; (
  5. c)the implementation of the decisions and arrangements with regard to the development and extension of the activities of the Institute; (
  6. d)the keeping of close contact with the Students Union and the handling of welfare problems of the students. 30 2. To perform any other duties that may be assigned to him. Required Qualifications: 35 (
  7. a)A University degree ot diploma in an appropriate subject, e.g. Public Administration, Business Admi­ nistration, Law (including Barrister-at-Law), Economics etc. 1125 Malachtos J. Michael v. Republic
(1982)(
  1. b)Very good knowledge of English and Greek and/or Turkish. (
  2. c)Integrity of character, initiative, sound judgment, organising and administrative ability. (
  3. d)Experience relevant to the duties of the post and/or 5 knowledge of proceedings in government service will be considered as an additional qualification. The Public Service Commission at its meeting of 16.7.77 decided that the vacancy in question be advertised allowingtwo weeksfor thesubmission ofapplications. Therelevant adverti- 10 sements were published in the Official Gazette of the Republic of 22.7.77 under Notification No. 1384 and in response to it eleven applications, including that of the applicant and the interested party, were submitted. It should be noted here that theapplicant wasatthetimeintheGovernment Servicewhereas 15 the interested parly was an outsider to the Public Service. At its meeting of 13.9.77 the Commission decided that eight candidaies, including the applicant and the interested party, beinvitedfor interviewon26.9.77andthatthe Director-General of the Ministry of Labour and Social Insurance, as wellas the 20 Director ofthe Hotel and CateringInstitute shouldberequested to be present. At its meeting of 26.9.77 and in the presence of the representatives of the Ministry, the Commission interviewed seven candidates, including the applicant and the interested party. 25 The relevant minutes of this meeting lead as follows: "The Commission as well as the Representatives of the Ministry of Labour and Social Insurance put several questions to allthe candidates onmatters of general knowledge and on matters connected with the duties of the post 30 as shown in the relevant scheme of service. The Comnvssion 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 35 answers to questions put to them, etc.). 1126 3 C.L.R. Michael τ. Republic Malachtos J. The Personal Files and theAnnual Confidential Reports of the candidates already intheservice were also takeninto consideration. 5 10 15 20 25 30 35 The Commission observed that, during the interview, Miss Christina Rodosthenous gavevery satisfactory replies to questions put to her and generally she proved to be the best candidate for appointment to the above post. According to the relevant schema of service, candidates for appointment to the post of Registrar must possess *a good knowledge of English and Greek*. In older that the Commission might determine the candidates' knowledge of these two languages, in accordance with the relevant scheme of service, a good number of the questions put to the candidates, during the interview were in Greek as well as in English. From the replies to questions put to Miss Christina Rodosthenous, the Commission was satisfied that the officei in question did possess 'a very good knowledge of English and Greek'. 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 these candidates, as well as to their suitability for appointment to the above post as shown at theinterview, theCommissioncametothe conclusion that Miss Christina Rodosthenous was on the whole thebest. The Commission accordingly decided that Miss Christina Rodosthenous be appointed to thetempo­ rary (Dev.) post of Registrar, in the Hotel and Catering Institute, w.e.f. 15.11.77." As it appears from his personal file, exhibit 9, and thecom­ parative table, exhibit 7, the applicant was first appointed on 1.9.61as a Registrar 4th grade totheMinistry of Educationand on 1.7.74 was promoted to Registrar 3rd grade. His qualifi­ cations are:(
  4. i)Pancyprian Gymnasium 1955-1961 (
  5. ii)General Orders 1969 (iii) Financial Instructions 1970; and (
  6. iv)Diploma in Law University of Salonika 14.11.75. 1127 MaJachtos J. Michael v. Republic
(1982)The qua'ifications of the interested party are the following: (
  1. i)Gymnasium for Girls, ' Limassol 1963-1969 (
  2. ii)Alliance Francaise exams (iii) Modern Greek G.C.E. "O" level (
  3. iv)Bachelor of Arts, Public Administration, American University of Beirut. (
  4. v)Teaching Diploma. 5 The grounds of lawon whichthepresent application isbased, as argued by counsel for applicant, may be summarised as follows: (
  5. a)the respondent Commission failed in its primary duty to select the applicant who was the best candidate; and (
  6. b)the reasons given by the respondent committee for reaching the decision complained of are insufficient and/or vague. Counsel for applicant submitted that although as regards 15 qualifications under (a)and(b)oftheschemeofservice,boththe applicant and the interested party possessed them in a more or less equal degree this, however, cannot be said for the qualifications under (
  7. c)and (d). As regards (
  8. c)in the case of the applicant we have a person whose integrity and character, 20 initiative, sound judgment as well as the organising and admistrative abilities have been tested and proved according to his confidential reports, asvery good. This isnot the same in the case of the interested partyfor whom noelements are available being an outsider to the public service. 25 As regards (
  9. d)in the caseof the applicant, who was already serving in a similar post we have an experienced person in relevant duties of the post in question which is also considered as an additional qualification. This again cannot besaid inthe case of the interested party. Therefore, the applicant was 30 manifestly superior to the interested party. Counsel for applicant further submitted that there is nothing intheminutesoi therespondent Commissiontoindicalethat the experience of the applicant in similar duties which was considered according to the scheme of service an additional quali- 35 1128 10 3 C.L.R. Michael v. Republic Malachtos J. fication, was taken into account. Had the Commission spotted it out they ought to give a specific reasoning as to why they preferred the interested party instead of the applicant. Finally, he submitted that this is a case of insufficient or vague reasoning 5 and rince the court is deprived of having control over the decision complained of, this decision should be declared null and void. It is well settled that the paramount duty of the Public Service Commission in effecting appointments or promotions is to SO select the candidate most suitable in all the circumstances of each particular case for the post in question. In doing so, thn Public Service Commission should decide who is the most suitable among the qualified candidates on the totality of the circumstances pertaining to each one of them. (Theodossiou 15 v. The Republic, 2 R.S.C.C. 44 at page 47). It is also well established that the Public Service Commission in effecting appointments or promotions has a discretion and when it has exercised its discretion in reaching a decision, after paying due regard to all relevant considerations, and when 20 taking into account all relevant factors, this court will not interfere with such a discretion unless it can be shown to trie satisfaction of the court that such exercise has been made in disregard of any provision of the Constitution or of any law or has been made in excess or abuse of powers vested in the Public 25 Service Commission. {Saruhan v. The Republic, 2 R.S.C.C. 133 at page 136). In the present case taking into account the material before the respondent Commission I came to the conclusion that it was reasonably open to it to take the subjudice decision complained 30 of. The reasons which led the respondent Commission to prefer the interested party are adequately stated in its minutes quoted hereinbefore: They were reasons pertaining to the academic qualifications of the inteiested party and her performance at the interview and, as I have already said, it was 35 reasonably open to the Public Service Commission to select her for appointment instead of the applicant. The applicant failed lo satisfy me that he was the best candidate or that the Public Service Commission in reaching the decision complained of has exercised its discretion without paying due regard to all 1129 Malachtos J. Michael v. Republic
(1982)relevant considerations and that it took into account irrelevant factors or that it acted in abuse of the powers vested in it. As legards the allegaaon that theleasons givenbyth Public Service Commission in ieaching its decision are insufficient or vague it cannot stand. As I have already said these reasons 5 adequately appeal in its minutes. For the reasons stated above, this recourse fails and is dismissed accordingly. On the question of costs I make no order. Recourse dismissed. Noorder as 10 tocosts. 1130

🔗 Στην επίσημη πηγή

AI explanation based on the official legal text. Indicative, not a substitute for legal advice.