1982 April 10 [A. Loizou, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION AGAMEMNON POLYDOROU AND ANOTHER, Applicants, v. THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC SERVICE COMMISSION, Respondent- (Case Nos. 169/80 and 199/80). Public Officers—Promotions—Merit—Qualifications—SeniorityInterested parties havingbetter confidentialreports thai applicants and recommended for promotion by Head of Department— Applicants senior to one of the interested parties—Seniority prevails when all other factors are equal but in the present case 5 they werenot in the light of the contents of the confidential reports and the recommendations of the Head of Department in favour of the interested parties—Respondent Commission exercised properly its discretion and in accordance with the principles of administrative Law—Sub judice decision reasonably open to it. \Q The applicants and the interested parties were candidates for promotion to the vacant post of Health Inspector 1st Grade, a promotion post. All the candidates possessed the qualifications required by the relevant schemes of service, applicant Polydorou was by threeyears senior to interested party Anthousis 15 and applicant Michaelides by five years senior. Both the interested parties had better confidential reports than the applicants and were recommended for promotion by the Head of Department, who stated before the Public Service Commission that they were superior to the remaining candidates and suitable 20 for promotion. The Public Service Commission after examining and comparing the merit, qualifications and seniority of the 198 3 C.L.R. 5 10 15 20 25 30 Polydorou and Another v. Republic candidates on the basis of their personal files and confidential reports and after taking into consideration the recommendations of the Head of Department decided that the two interested parties were superior on the whole to the remaining candidates and decided to promote them to the above post. Hence these recourses challenging the decision of the Commission on the ground that it wrongly exercised its discretion because it did not take into consideration the superior merits, qualifications and seniority of the two applicants as compared with the interested parties. Held, that on the totality of the circumstances as appearing from the relevant minutes, the personal files and the confidential reports ofthe applicants and theinterested parties,the respondent Commission has exercised properly its discretion and in accordance with the general principles of Administrative Law; that it carried out a proper inquiry and paid due regard to all relevant considerations including the recommendations made in that respect by the Head of the Department in which the vacancies existed and which recommendations were duly warranted by the contents of the confidential reports and without taking into account any irrelevant factors; that though applicant Polydorou is senior to interested party Anthousis and applicant Michaelides is also senior to Anthousis but of equal seniority with interested party Demetriades, as repeatedly stated seniority only prevails when all other factors are equal and in the present case in the light of the contents of the confidential reports all factors arenot equal for theseniority of theapplicants to prevail; the subject decision which is a duly reasoned one in the circumstances, was reasonably open to the respondent Commission and there is no room for interference by this Court with the exercise by the respondent Commission of its discretion proper and in accordance with the Law as it was; accordingly the recourses should be dismissed. Applications dismissed. 35 Recourses. Recourses against the decision of the respondent to promote the interested parties to the post of Health Inspector 1st Grade in preference and instead of the applicants. * 199 Polydorou and Another v. Republic
(1982)A. Pandelides, for applicant in Case No. 169/
- Ar. Loizou, for applicant in Case No. 199/
- G. Constantinou (Miss), Counsel of the Republic, for the respondent. Cur. adv. vult. A. Loizou J. read he following judgment. These two recourses have, by direction of the Court made with the consent ofthe parties,been heardtogether asthetwo applicants challenge thereby the promotion of Sophoklis Anthousi and Melanthios P. Demetriades to the post of Health Inspector first grade 10 instead of themselves. The post of Health Inspector first grade, is a promotion post and the respondent Commission at its meeting of the 25th September 1979 decided that in view of the Regulations governing the establishment of Departmental Boards in accordance 15 with section 36 of the Public Service Law, (regulation 3) a list of candidates for promotion be prepared by the Secretary of the respondent Commission and be sent by him to the Chairman of the appropriate Departmental Board together with the confidential reports and the schemes of service. In furtherance 20 of the said decision the Secretary of the respondent Commission wrote (Appendix 3) on the 30th October 1979, to the Director of the Department of Medical Services, as chairman of the Departmental Board, and attached thereto all necessary documents, asking him thereby to act accordingly regarding the 25 filling of the two vancancies of Health Inspector first grade, in his department. The report of this Committee was sent to the respondent Commission containing the names of eight candidates in alphabetical order, which the board found as superior tothe remaining 30 ten. The respondent Commission at its meeting of the 9th February, 1980, after examining and comparing the merit, qualifications and seniority of the candidates on the basis of their personal files and confidential reports and after taking into consideration the conclusions of the Departmental Board and the recommendations made in that respect by the Director 200 ^ 5 3 C.L.R. Polydorou and Another v. Republic A. Loizou J. of the Department of Medical Services, and the Principal Health Inspector, who were present at its meeting, decided that the two interested parties were superior on the whole to theremaining candidates,and found them suitable for the filling 5 of the posts and decided to promote them to the post of Health Inspector first grade as from the 1st March,
- As against this decision these two recourses have beenfiled. Thegroundsuponwhichtheychallengesamearethattherespondent Commission wrongly exercised its discretion inasmuch 10 as it did not take into consideration the superior merits, qualifications and seniority of the two applicants as compared with the respective interested parties, and that in any event they failed to take into consideration material facts that ought to havebeentakenandinparticularthecontentsofthe confidential 15 reports and in the case of applicant in recourse No. 199/80 the contents of the confidential report on him for the year
- Also that the sub judice decision is not duly reasoned and or no cogent reasons have been given for ignoring the seniority of the applicants. In fact, the general complaint 20 that the respondent Commission failed in its paramount duty to select the most suitable candidate for the post. Relevanttotheissuesraisedintheserecoursesarethecontents of the personal files and the confidential reports as depicting the overall picture of the candidates and in particular of the 25 applicants and the interested parties. 'Applicant in recourse No. 169/80 Agamemnon Polydorou isagraduate oftheHighSchoolPedhoulas, and heistheholder ofacertificate oftheRoyal SanitaryInstitute and ofa certificate in the Hygiene of Food Retailing and Catering, which 30 he obtained after a year's scholarship, granted by the World Health Organization in 1975-
- He entered the Government service on the 1st March 1965 as a Health Inspector third grade, (unestablished), his appointment wasmade permanent on the 1stJanuary 1969and hewas 35 promoted to the post of Health Inspector second grade on the 1st August
- Applicant in recourse No. 199/80, Modestos K. Michaelides, is a graduate of the Commercial School Polemi, he passed the 201 A. Loizou J. Polydorou and Another v. Republic
(1982)Cyprus Certificate Examinations in EnglishLower, Mathematics "A" and he is the holder of a certificate of the Royal Sanitary Institute. He also obtained a certificate in the Hygiene of Food Retailing and Catering and a diploma for Inspectors of Meat and Other Foods from the Royal Society of Health, 5 after a ten months scholarship, granted by the World Health Organization to him in the years 1977-
- He entered the Government service on the 1st April 1963 as a Health Inspector, third grade, permanent and was promoted to the post of Health Inspector second grade on the 1st June 10
- Interested party Sophoklis Anthousis, whose promotion is challenged by both recourses, is a graduate of the Lanition Gymnasium and the holder of a diploma for Public Health Inspectors, Cyprus, of the Royal Society of Health. He has 15 passed the Pitmans Examinations Institute for English Language for Overseas Candidates, Intermediate I, and also Advanced I, and he is the holder of a diploma inLaw of theAristotelion University of Salonica, obtained in November
- He is a registered advocate and has passed the examinations on the General 20 Orders on the 29th December
- He first entered the Government service on the 1st July 1968 as a Health Inspector third grade, (unestabushed), became permanent on the 1st March 1969, and he was promoted to the post of Health Inspector second grade on the 1st December
- 25 Interested party Melanthios Demetriades, whose promotion is challenged only by recourse No. 199/80, is a graduate of the Paphos College,isthe holder of a diploma for Health Inspectors, Cyprus, of the Royal Society of Health
(1958), he passed the English Lower Examinations and is the holder of a diploma 30 for Inspectors of Meat and Other Foods aswell as of a certificate in the Hygiene of Food Retailing and Catering of the Royal Society of Health, and a certificate in Food Technology and Inspection which he obtained after a year's scholarship, granted by the World Health Organization in 1972-
- 35 He first entered the Government service on the 1st April 1963 as Health Inspector third grade (permanent) and he was promoted to the post of Health Inspector, second grade, on the 1st June
- 202 3 C.L.R. 5 10 15 20 25 Polydorou and Another v. Republic A. Loizou J. I do not intend to reproduce here verbatim the contents of the confidential reports on the applicants aid the interested parties. It may be pointed out, however, that applicant Polydorou israted inthe report for 1975asexcellent on eight rateable items and on the remaining two as outstanding. The reporting officer also made the observation that he was a good and hardworking officer and deserved promotion. The countersigning officer, the Director of the Department of Medical Services expressed the view that such report by the District Medical Officer was overestimated and that he was an average officer. For the year 1976 he is rated as "excellent" on seven rateable items and as "outstanding" on three. The same observation is also made, but this time the reporting officer is different. For the year 1977 he is rated as "excellent" on eight rateable items and as "outstanding" on two. The observation of the reporting officer, being that he is a hardworking officer and no reference is made that he deserves promotion. For the year 1978 the same observation is made by the same reporting officer and he is rated as "excellent" on eight rateable items "outstanding" on oneand "very good" on another. The confidential report for the year 1979, though prepared by the 3rd January 1980 appears to have reached the respondent Commission on the 12thJune
- He is rated as "excellent" on the whole but he has been given "excellent" on eight rateable items and "very good" on four. Applicant Michaelidesis rated for the year 1975as "very satisfactory" on nine rateable items and satisfactory on one. For the year 1976 he israted "very good" on seven items and "excellent" on three. For the year 1977 he is rated as "excellent" 30 on four items and "very good" on six. For the year 1979 he is given a special confidential report. He is rated as "excellent" on eight rateable items and as "very reliable" on one, "highly satisfactory" on nine rateable items and "very good" on three other items and in view of the said assessment the 35 reporting officer recommended him for promotion to a higher post. For the year 1979 he is rated as "excellent" on the whole with nine rateable items as "excellent" and three rateable items as "very good". Thisconfidential report reached the respondent Commission on the 26th March
- 40 Interested party Anthousis, for the year 1975 is rated as "excellent" on five rateable items and as "outstanding" on 203 A. Loizoa J. Polydorou and Another v. Republic
(1982)the other five. The reporting officer makes the observations that heis a hardworking and promising officer and the countersigning officer expresses the view that "he is really an outstanding and promising officer. Heisa reliable oneand always willing to take responsibilities". For the year 1976he is given 5 a special confidential report rated as "excellent" and "outstanding". Heis described as an experienced and hardworking Health Inspector and that he possesses a very good knowledge in all aspects of public health and of excellent administrative and organizing ability. He is recommended for accelerated 10 promotion and the countersigning officer, the Acting Director of the Department of Medical Services agrees fully with the said assessments and states that "he is an officer of outstanding ability performing his duties withthe utmost zeal and efficiency. He possesses a pleasant personality and enjoys the confidence 15 of his superiors". For the year 1977 he is once more given a special confidential report and rated as "excellent" and "outstanding" described as rendering invaluable assistance to the countersigning officer, that he has shown ability and that he is an obedient, hardworking, honest officer, and he is recom- 20 mended for accelerated promotion. The countersigning officer, the Director of the Department of Medical Services once more describes him as a brilliant officer completely devoted to his duties and that he is attached to Medical Headquarters where due to his legal training special duties are alloted to him. For 25 the year 1978 a special confidential report is also givento him, rated as "outstanding" on all rateable items and in addition to that assessment heisdescribed once more as an "outstanding" officer who renders invaluable assistance to the office of the Chief Health Inspector. He is recommended for accelerated 30 promotion to the post of Health Inspector first grade. The countersigning officer expresses the views that he is an officer of outstanding ability,highlyeducated,whoseextreme efficiency, zeal and integrity warrant the submission of a special report, and strongly recommends him for accelerated promotion. The 35 report for 1979rates him once more as "excellent" but reached the respondent Commission on the 12th June
- Melanthios Demetriades israted as "very good" in the confidential report for theyear 1975,as "excellent" on four rateable itsms, "very good" on five and "intelligent" on one rateable 40 itemfor the year
- Fortheyear 1977heisrated as"excel204 3 C.L.R. Polydorou and Another τ. Republic A. Loizoa J. lent" on nine rateable items and as "intelligent" on the tenth. For the year 1978 he is given a special confidential report. He is described as an example of hardworking officer. Heis rated as "outstanding" on all items and heis described as specialized 5 in food hygiene and that his work is carried out highly satis factory from the time the reporting officer knew him. In the confidential report for the year 1979 he is rated as excellent onall rateableitemsbut again thisreport reachedtherespondent Commission on the 2nd April
- 10 Whilst on this point of the confidential reports I may briefly deal with the complaint of applicant Michaelides that his confi dentialreport for theyear 1979was nottaken iDtoconsideration by the respondent Commission. As already pointed out in examining the confidential reports none of the confidential 15 reports for the year 1979 reached the respondent Commission before the sub judice decision was taken. Therefore this point does not carry the case of this applicant any further. In concluding my examination of the material that was before the Departmental Board and the respondent Commission as 20 regards the applicants and the interested parties in these recourses, reference must be made also to the qualifications required under the schemes of service for the post of Health Inspector. They are these: 25 "Royal sanitary Institute Certificate or a Certificate from a recognised School of Hygiene or other equivalent Insti tution. A good knowledge of English. A minimum of five years' service as a Health Inspector, 2nd and/or 3rd Grade. Organising and administrative ability". The minutes of the meeting of the respondent Commission 30 of the 9th February 1980 on which the sub judice decision was reached, in so far as relevant to this case read as follows: 35 "At to-day's meeting the Director of the Department of Medical Services Mr. Andreas Markides and Mr. N. Karamichalis, Principal Health Inspector, were present, called by the Chairman to express his view and recom mendations, the Director of the Departmentrecommended the following persons as superior to the remaining candi dates and as suitable for promotion to the vacant post. 205 A. Loizou J. Polydorou and Another v. Republic
(1982). 1. Sophoklis Anthousis, 2. Melanthis Demetriades. His views on each one of the aforesaid candidates are as follows: (
- a)Anthousis Sophoklis: He has been tried for work in the District and he 5 proved to be an excellent and progressive officer. He obtained a diploma in Law. He was posted at the Headquarters and proved his abilities both on health and on administrative matters. The assistance which he offered at the Headquarters was 10 substantial and he can be described as the best Health Officer. In his confidential reports he is described as excellent. He is of good character. (
- b)Demetriades Melanthios: He has obtained after a postgraduate course a 15 diploma of Inspector in Meat and Other Foods, On the basis of the confidential reports and compared with the remaining candidates he is superior." Reference then is made in the minutes to the candidate Periklis Panayiotides with whom we are not concerned and 20 then the concluding paragraph of the said minute sums up the reasoning of their decision to the contents of which reference has been made earlier in this judgment. On the totality of the circumstances as appearing from the relevant minutes which have been quoted in this judgment, 25 the personal files and the confidential reports of the applicants and the interested parties, I have come to the conclusion that the respondent Commission has exercised properly its discretion and in accordance with the general principles of Administrative Law. It carried out a proper inquiry and paid due regard 30 to all relevant considerations including the recommendations made in that respect by the Head of the Department in which the vacancies existed and which recommendations were duly warranted by the contents ofthe confidential reports and without taking into account any irrelevant factors. 35 Admittedly it is true that applicant Polydoiou is senior to interested party Anthousis, whose promotion he challenges 206 3 C.L.R. Polydorou and Another v. Republic A. Loizou J. by his recourse and applicant Michaelides is also senior to Anthousis but of equal seniority with that of interested party Demetriades, but as repeatedly stated seniority only prevails when all other factors are equal and in the present case in the 5 light of the contents of the confidential reports all factors are not equal for the seniority of the applicants to prevail. It is clear from the above that the subject decision which is a duly reasoned one in the circumstances, was reasonably open to the respondent Commission and there is no room for inter10 ference by this Court with the exercise by the respondent Commission of its discretion, proper and in accordance with the Law as it was. These recourses must fail and are hereby dismissed but in the circumstances I make no order as to costs. 15 Applications dismissed. No order as to costs. 207