clr/1982/1982_3_914.pdf

(1982)1982 September, 4 [A. Loizou, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION SAVVAS L. PETRIDES AND ANOTHER, Applicants, v. THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC SERVICE COMMISSION, Respondent. (CasesNos.301/79, 321/79). Public Officers—Appointments and promotions—Qualifications of candidates—Possession of qualifications deemed asadditional under relevant scheme of service—Dulyinquiredinto by the Commission—Touipekki v. Republic

(1973)3 C.L.R. 593distinguished. 5 Public Officers—Appointments andpromotiom—Head ofDepartment —Description by him ofa candidate as suitablefor a particular post cannot by itself be equatedto a recommendation of that officer for appointmentor promotion to a post in preference to others. 10 The applicants in these recomses challenged the decision of the respondent Commission to appoint to the temporaiy post of Assistant Cultural Officei in the Ministiy of Education the inteiested paity in piefeience and instead of themselves. Counsel for the applicants mainly contended. (a) That the respondent Commission failed to cany out the due inquiry regarding the additional qualifications b> them as opposed to the inttrtsted party (see Tourpekki\. Republic

(1973)3 C.L.R. 593at pp. 602603). (

1. b)That undue importance was given to the recommen914 15 20 3 C.L.R. Petrides and Another v. Republic tations*of therepresentative of the Ministry concerned under whom the interested paity was serving before her appointment. 5 10 15 20 25 30 35 (
2. c)That the respondent Commission failed in its paramount duty to select the most suitable candidate for the post. Held, that it is cleai from the material before this Court that thelespondent Commission interpreted and applied the relevant Scheme of Service in a proper manner and evaluated correctly the qualifications of the applicants and the interested party along with those of all otlur candidates, having duly inquired into the matter; that though it is correct that the respondent Commission does not mala any particular refeience to what undtr the relevant scheme is considered to be an additional qualification, that applies:to all the candidates as none has-been ctedited with it and it does not appear and no mention is made anywhere that the possession of such additional qualification hasinanywayweighed withthem when prefening theinteiestcd paity as against the othei candidates; that, in any «.vent, when the lespondent Commission speaks of having consideitd the qualification of all candidates, must betaken to havt considued them as against the totality of the requirements of the Scheme of Service in relation to each of them and his qualifications; that once, therefore, this additional qualification was part of those tequiied undei the Scheme of Servke, and the respondent Commission stated that it has inquired into them, it cannot be validly aigued that the matter was not duly inquiied into and considered by the respondent Commission; that there is, on thecontiaiy, nothing tosuggest that they omitted toexamine same; that, therefore, the case of Tourpekki (supra) ii distinguishable as in that case the-applicant-appeared to possess a qualification which might be considued under the relevant scheme, an additional advantage, which was not possessed by the interested party chosen in her st< ad and no reasons were given for so ignoring such an advantage.

(2)That there was nothing in the opinion expressed by the The Representative of the Ministry of Education stated before the Commission that the interested party had been working under him for some time, her services had been very satisfactory and that he considered her very suitable for the post of Assistant Cultural Officer. 915 Petrides and Another ?.Republic

(1982)representative of the Ministry of Education to suggest clearly a comparison with the other candidates; that the description of a candidate as suitable for a particular post cannot by itself be equated to a recommendation of thai officei for appointment or promotion to a poat in preference to others 01 that the 5 suitability of one implies the unsuitability of other candidates; accordingly contention (b) should fail.

(3)That on the totality of the material befote this Court the subject decision wasleasonably open totherespondent Commission which has exeicised itsrelevant discretionaiy poweis within 10 the proper limits foi the puipose, and in arriving at the subject decision theie has been neithti a misconception of law nor of fact nor any abuse or excess of power; that, moreovei, it was leached after a due and pioper inquiry and it is duly reasoned; accoidingly contention (c) should, also, fail. 15 Applications dismissed. Cases referred to: Tourpekki v. Republic

(1973)3 C.L.R. 593 at pp. 602-603; Christou v. Republic, 4 R.S.C.C. 1; Zafiridesv. Republic

(1980)3 C.L.R. 140 at p. 147; 20 Decision of the Greek Council of State No. 460/65; Lyonas v. Republic

(1975)3 C.L.R. 536; Theodossiou v. Republic, 2 R.S.C.C. 44; Evangelouv. Republic

(1965)3 C.L.R. 292; Bagdades v. CentralBank of Cyprus

(1973)3 C.L.R.

1. 25 Recourses. Recourses against the decision of the respondent to appoint the interested party, to the post of Assistant Cultural Officer in the Ministry of Education, in preference and instead of the applicants. 30 A. S. Angelides, for the applicant in Recourse 301/
2. Applicant in Recourse 321/79 appeared in person. G. Constantinou (Miss), Counsel of the Republic, for the respondent. E. Odysseos, for the interested party. 35 Cur. adv. vult. A. Loizou J. read the following judgment. By these two recourses which have been heard together the applicants chal916 3 C.L.R. Petrides and Another v. Republic A. Loizou J. lenge the appointment to the temporary post of Assistant Cultural Officer in the Ministry of Education, of Eleni Nikita (hereinafter to be referred to as the "interested party"), as being null and void and of no effect whatsoever. 5 This post, according to the relevant scheme of service, is a first entry post and the qualifications required include a degree or title of a University or Polytechnic or a Higher School of Art; good knowledge of at least one of the prevailing European languages; and postgraduate training abroad and/or 10 study visits abroad, as an additional qualification.The vacancy in question was advertised and 24 applications were made in response thereto.. The respondent Commission, then a. its meetings of the 16th December 1978, and 20th January, 1979, decided that nine 15 candidates, including the applicants and the interested party be invited for interview on the 22nd January
3. The Cultural Officer ofthe Ministry of Education waspresent at this meeting as the Director-General of the Ministry was absent abroad. In theminutes ofthismeetingoftherespondent Commission, 20 (enclosure 7ofthebundle of documents attached to theopposition), it is inter alia stated: 25 30 "The Commission as well as the Representative of the Ministry of Education put several questions to all the candidates onmatters ofgeneral knowledge and on matters connected with the duties of the post as shown in the relevant scheme of service. The Commission considered the merits, qualifications and_experience of the candidates interviewed as welLas their performance during the interview (personality, alertness of mind, general intelligence and the correctness of answers to questions put to them etc.). The Personal Filesand theAnnual Confidential Reports of the candidates already in the service were also taken into consideration. 35 The Commission considered also the merits, qualifications, service and experience of Mrs. Elli Constantinou, who was servingin the temporary (Dev.) post of Assistant 917 A. Loizou J. Petrides and Another v. Republic

(1982)Cultural Officer, as reflected in her Personal File and in her Annual Confidential Reports. The Representative of the Ministry of Education stated that the services of Mrs. Elli Constantinou, who was serving in the temporary (Dev.) post of Assistant Cultural Officer, had been very satisfactory and that he considered her very suitable for appointment to the corresponding permanent (Ord.) post. 5 After considering all the above and after taking into consideration all the facts appertaining to each one of the 10 candidates and after giving proper weight to the merits, qualifications, service and experience of these candidates, as well as to their suitability for appointment to the above post, the Commission came to the conclusion that Mrs. Elli Constantinou, who was serving in the temporary 15 (Dev.) post of Assistant Cultural Officer, was on the whole the best. The Commission accordingly decided that Mrs. Elli Constantinou be appointed, on probation, to the permanent (Ord.) post of Assistant Cultural Officer w.e.f. 1.4.79. 20 The Commission observed that Mrs. Elli Constantinou was serving in the temporary (Dev.) post of Assistant Cultural Officer as from 1.3.78. In view of the above, and having regard tp the Council of Ministers' Decision No. 13.032 of 31.1.74 and also to the provisions of Section 25 38

(1)of Law No. 33/67, the Commission decided that the probationary period in respect of the above officer be reduced and that the officer in question be required to serve on probation until 28.2.

1. The Commission then considered the filling of the con- 30 sequential vacancy in the temporary (Dev.)post of Assistant Cultural Officer, which was created as a result of the appointment of Mrs. Elli Constantinou to the corresponding permanent (Ord.) post. From the candidates interviewed, the Commission observed that Mrs. Eleni S. Nikita gave very satisfactory replies to questions put to her and generally she proved to be the best candidate for appointment to the above post. 918 35 3C.L.R. 5 10 15 20 25 PetridesandAnother v.Republic A.Loiioo J. The Representative of the Ministry of Education stated that Mrs. Eleni S. Nikita had been working under him for some time, her services had been very satisfactory and thai heconsidered her very suitablefor the post of Assistant Cultural Officer. According to the relevant scheme of service, candidates for appointment to the post of Assistant Cultural Officer must possess 'a good knowledge of one of the prevailing European languages'. The Commission observed that Mrs. Eleni S. Nikita had studied French and was serving as a Secondary School Teacher for the French language as from
2. In view of the above, the Commission was satisfied that the candidate in question did possess 'a good knowledge of French—i.e. one of the prevailing European languages'. After consideringtheabove and after takinginto consideration all the facts appertaining to each one of the candidates interviewed and after giving proper weight to the merits, qualifications, abilities and experience of these candidates, as well as to their suitability for appointment to theabovepost as shown at theinterview, the Commission came to the conclusion that Mrs. Eleni S. Nikita was on the whole the best. The Commission accordingly decided that Mrs. Eleni S. Nikita be appointed to the temporary (Dev.) post of Assistant Cultural Officer w.e.f. 1.4.1979." These recourses are based on the following grounds of law:
3. The sub judice decision was taken without proper or due inquiry as regards the qualifications of the candidates. 30 35
4. Inappointingtheinterested party, therespondent Commission acted contrary to the general principle of Administrative Law, that the best candidate should be selected and/or acted arbitrarily in misconception of fact as they failed to consider the qualifications and experience of the applicants.
5. The respondent Commission failed to give sufficient and/or due reasoning for the sub judice decision which is vague and was taken under a misconception of fact. 919 A. Loizou J. Petrides and Another v. Republic

(1973)3 C.L.R. 593 wheie at pp. 602-603 I had this to say: "An inquiry had to be conducted regarding the issue whether or not the applicant possessed the qualifications 921 A. Loizou J. Petrides and Another v. Republic

(1982)which undf. the scheme of service would be an advantage to a candidate over the other candidates. The general reference to the qualifications of all the candidates serving in the post, does not, in my view, sufficiently disclose whether such material fact, as the possession or not, of a 5 qualification possibly constituting an additional advantage was duly inquired into, and in particular in view of the fact that the details of this course were not in the relevant file before the Commission, but in the possession of the Ministry. Consequently, I find that the Commission has 10 not conducted the sufficiently necessary inquiry into such a most material factor and, therefore, it exercised its discretion in a defective manner; so the subjudice decision of the respondents having been arrived at contrary to the accepted principles of Administrative Law and in abuse 15 orexcessofpowers,isnullandvoidofnoeffect whatsoever. Moreover, the outcome of such inquiry should have appeared in the reasoning of the sub judice decision and in case it was found by the Commission that the diploma possessed by the applicant wasconstituting and advantage, 20 then convincing reasons should have been given for ignoring it." In answer to the said argument counsel for the respondent Commission has urged that no special reasoning was required as the applicants were not considered by the respondent Com- 25 mission to possess any additional qualifications which were disregarded by it. As already mentioned applicant Petrides, holdsa Diploma in Byzantine Musicfrom the School ofEcclessiastical Byzantine Music of Th. Kallinicos. He also holds the title of Associate of the Library Association. The former 30 has been considered by the Commission as not relevant to the requirements of the scheme of service, while the latter as not equivalent to a degree. Hehasalsoparticipatedina UNESCO course for Teachers of Librarianship, and finally he holds an M.A. degree of the University of Loughborough in Library 35 Studies, but in view of thefact that he does not hold the basic degreeassuch,hisM.A.couldnotbeconsideredbytheCommission as an additional qualification. Applicant Stephanou holds a Diploma of the School of Philosophy of the University of loannina (a three-year course) 40 922 3C.L.R. PetridesandAnotherv. Republic A.LoizouJ- as a basic degree and he also has followed a Brief Business Course (Certificate of the American University of Beirut) from 1952-54 and attended a course in Library work at the U.S.A. from April to July 1966. He,therefore, does not pos5 sess anyadditional qualification in the sense of a post-graduate degree but has had "Study visits abroad". The interested party Eleni Nikita holds a degree of Social Studies ofthe University of Geneva, has very good knowledge of the French and English languages and she has had study 10 visits, abroad. She has also participated in extensive and various cultural activities and she has been the authoress of books and articles. Her qualifications and activities have been considered by the respondent Commission as themost suitable, bearing in mind the requirements and duties of the post of 15 Assistant Cultural Officer. It is clear from the material before me that the respondent Commission interpreted and applied the relevant Scheme of Service in a proper manner and evaluated correctly the qualifications of the applicants and the interested party along with 20 those of all other candidates, having duly inquired into the matter. This appears from the minutes in which its due and cogent reasoning can be found and which in any event is duly supplemented by thematerial in the relevant files. It is stated therein that it considered the qualifications and experience of 25 the candidates interviewed, as well as their performance during the interview, which included their personality, alertness of mind, general intelligence and the correctness of answers to questions put to them etc. •Jt is correct.that the respondent Commission does not make 30 any particular reference to what under the relevant scheme is considered to bean additional qualification, but that applies to all the candidates as none has been credited with it and it does not appear and no mention ismade anywhere that the position of such additional qualif'cation has in any way weighed with 35 them when preferring the interested party as against the other candidates. They emphasize that they consider the personal files of, and the annual confidential reports on the candidates already in the service. They also stated in their minutts that theinterested partygaveverysatisfactory repliestothequestions 923 A. Loizou J. Petrides and Another v. Republic

(1982)put to herand that shegenerallyproved tobethebestcandidate for appointment to the above post having taken into account the comments of therepresentative ofthe Ministry of Education Mr.Serghis,whosaidthatherserviceshad beenvery satisfactory for the post and they alsoobservedthat shehadstudied French 5 and had served as a secondary school-teacher for the French language, a fact which satisfied them that she possessed a good knowledge of French - (i.e.) one of the prevailing European languages -. These are inessence the factors that have affected their choice. ( In any event when the respondent Commission speaks of halving considered the qualifications of all candidates, must be taken to have considered them as against the totality of the requiremenlsoftheSchemeofServiceinrelationtoeachofthem and his qualifications. Once therefore, this additional qualifi- \5 cation was part of those required under the Scheme of Service, and the respondent Commission stated that it had inquired into them, it cannot be validly argued that the matter was not duly inquired into and considered by the respondent Commission. There is, on the contrary nothing to suggest that they 20 omitted to examine same. The case therefore of Tourpekki(supra) is distinguishable as in that casethe applrcant appeared to possess a qualification which might be considered under the relevant scheme, an additional advantage, which wasno.:possessed bythe interested 25 party chosen in her stead^and no reasons were given for so ignoring such an advantage^ No doubt in the present case,the Commission carried outadueinquiryand gavesufficient reasons on the subject. It has also been argued that undue importance was given to 30 therecommendations of Mr.Serghis,under whomtheinterested party was serving on secondment before her appointment. In support of this proposition I have been referred to the case of Christou v. The Republic, 4R.S.C.C.p. 1,whereit wasobserved that the recommendations of the Head of the Department on 35 members of his staff applying for appointment to vacant posts in the Public Service could not have considerable effect on the selection and appointment by the Public Service Commission ofthemost suitable candidates for suchpost,ifthere wereother 924 10 3 C.L.R. Petrides and Another τ. Republic A. Loizou J. candidates also who were not known to such Head of Depart­ mentandconsequently hewas notinaposition to state anything aboutthesuitability of thegreat numberof theothercandidates, whom he did not know at all. 5 Mr. Serghis was present there in the place of theDirectorGeneral of the Ministry of Education, who was on that day absent abroad and therefore unable to attend and his presence in addition was justified under section 18 of the Public Service Law 1967,whichprovides interalia that "The Commission may 10 require_-_„ any public officer to attend and assist the Commission concerning any matter which the Commission is required to consider in the exercise of its functions " In fact, as stated in the relevant minutes he assisted the re­ spondent Commission at theinterviews by putting also himself, 15 together with the Commission, several questions to all the candidates on matters of general knowledge and on matters connected with the duties of the post, as shown in the relevant Scheme of Service. He then supplied the information already referred to and gave his opinion to her suitability for the post 20 in which, to use what was said in the case of Zafiridesv.The Republic

(1980)3 C.L.R. 140 at p. 147: 25 30 " there is nothing in that opinion to suggest clearly a comparison with, or if that amounted to a preference as against, the other candidates. In other words it is not clear if that is a recommendation of the said two officers implying that the other candidates, and at that the appli­ cantinparticular was notsuitable or was not recommended for the post. The description of a candidate as suitable for a particular post cannorby itself beequated toarecommendation of that officer for appointment or promotion to a post in preference to others or that the suitability of one implies the unsuitability of other candidates." Needles to say that theviewsexpressed by Mr. Serghis at the meetingof therespondent Commission were duly born out from 35 the comments he made on the application of the interested party when forwarding same to the respondent Commission. Connected with this ground is the contention that the second­ ment of the interested party to the post of Assistant Cultural Officer, being a temporary measure and of no permanent effect, 925 A. Loizou J. Petrides and Another v. Republic

(1982)couldnot constitutean advantageinherfavour andwaswrongly taken into consideration. (See Papahadjis, System of Administrative Law applicable in Greece

(1976)p.,347; Conclusions of the CaseLaw of the Greek Council of State, 1929 - 1959 at p. 341; Kyriakopouhs, Law of Civil Servants

(1957)p. 346; 5 Decision 460/65 of the Greek Council of State; V. Tourpeki v. Republic (supra) and Georghios Lyonas v. Republic,

(1975)3 C.L.R. 536). Noone would disagree with these legal principles regarding secondments but nevertheless I find nowhere in the minutes of the respondent Commission to support such \Q allegation that hersecondment wasinanywayconsidered in her favour or unduly taken into account. It was further contended that the subject decision should be annulled as it was taken under a misconception of fact in that the personal files of Petrides contrary to what is stated in the 15 minutes of the meeting ofthe 22nd January 1979,(appendix 7), was not in fact before the respondent Commission. In support of the aforesaid proposition Mr. Nikos Theocharides, Registrai of the Supreme Court, in charge of the Revisional Jurisdiction of the Court Registry, gave evidence and 20 produced the file of recourse No. 225/78 in which among the exhibitsthere werethe personalfile and the confidential reports on applicant Petrides, and stated that if these exhibits ever left the Court he would have known about it as he keeps a record of all exhibitswhicharereturned temporarily orfor good tothe 25 Public Service Commission. What, however, emerges from a perusal of this file is that the personal file and confidential reports on the said applicant were first produced as exhibits therein on the 23rd June, 1979, that is long after the meeting of the respondent Commission, at which the subject decision 30 was taken and therefore no question could arise on the respondent Commission requesting the Court through this Registrar to return thesefiles to themfor theirmeetingofthe22ndJanuary, 1979,sines the files were not at that time in the custody of the Couit. I see,therefore, noreason to question the accuracy 35 of the statement of the respondent Commission in its minutes to the effect that the personal files and confidential reports of all the candidates were before it. Also, applicant Stephanou has alleged in hiswritten address 926 1 3 C.LJt. Petrides and Another v. Republic A. Loizou J. that the respondent Commission did not have before it the complete facts concerning his qualifications and work, as he had the suspicion that there might be two personal files on him, the onekept at the Ministry and the other with the Commission. 5 He has,however, adduced no evidence in support of this general and vague allegation based on suspicion and I am not prepared to give it any weight once the relevant files which have been made exhibits in this Court were before the respondent commission with all their contents. After all, in the confidential 10 reports of every year there exist the appropriate headings under which each officer may give any additional qualifications, certificates, diplomas etc.that he obtained during the preceding 12months, and ifhefailed to do sohehas onlyhimself to blame. Furthermore, he could have himself given all the particulars by 15 including them in his application for the post in Form General 6G, which he was required to, and he did submit in order to be treated as a candidate for the post. Finally, the applicants have contended that the respondent Commission failed in its paramount duty to select the most 20 suitable candidate for the post and relied in that respect on the authority of Theodossiou v. The Republic, 2 R.S.C.C. p. 44; Evangelou v. The Republic,

(1965)3 C.L.R. 292; and Bagdades v. The Central Bank of Cyprus

(1973)3 C.L.R. 417. On the totality of the material before me, I find that this 25 contention cannot succeed either. The subject decision was reasonably open to the respondent Commission which has exercised its relevant discretionary powers within the proper limits for the purpose, and in arriving at the subject decision there has been neither a misconception of law nor of fact nor 30 any abuse or excess of power, moreover, it was reached after a due and proper inquiry and it is duly reasoned. For all the above reasons, these recourses are dismissed, but in the circumstances, I make no order as to costs. 35 ' Recourses dismissed.No order as to costs. 927