clr/1983/1983_3_124.pdf

(1983)1983 February 28 [STYLIANIDES, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION NICOS SMYRNIOS, Applicant. THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC SERVICE COMMISSION, Respondent. {Case No. 447/80). Public Officers—Appointments and promotions—First entry and promotion post-—Qualifications—Holder ofpost in the immediately lowergrade lacking qualificationsfor promotion but possessing qualifications for first entry—Whether he could be "promoted" to the immediately higher post—Section 30(l)(

1. b)of the Public 5 Service Law, 1967 and section 28 (definition of "appointment" and "promotion"). Public Officers—Appointments and promotions—Judicial review—• Principles applicable—Principleson whichrespondent Commission should act in making a selectionfrom amongst candidatesalready 10 in the service, or on contract, and outsiders. Public officers—Appointments and promotions—Seniority—Not the decisivefactor which governs promotions and it only prevails if all otherfactors are equal—Interestedparties superiortoapplicant in merit and qualifications—His seniority alone could not tip the 15 scales in his favour—Interview of candidates—Weight. The applicant, an Accounting Officer 3rd Grade, was a candidate for promotion to the vacant post of Accounting Officer, 2nd Grade, a first entry and promotion post. The Public Service Commission by its decision dated 6th June, 1980, decided to fill the vacancies by promoting the five interested parties who were holding the post of Accounting Officer, 2nd 124 20 3 C.L.R. Smyrnios v. Republic Grade and by appointing another interested party who was an outsider to the service. Hence this recourse by the applicant. Counsel for the applicant mainly contended: 5 10 15 20 (
2. a)that one of the interested parties, ("Kontopoulos*') was not possessed of the qualifications prescribed in the scheme of service, and, therefore, he was not eligible. (
3. b)That the Commission disregarded and/or failed to give due consideration to applicant's striking seniority^., as the other five interested parties had approximately equal merits with him. Interested party Kontopoullos who has been in the service for many years, as a permanent Accounting Officer, 3rd Grade, lacked the qualifications for promotion but possessed the qualifications for first entry. The confidential reports on the interested parlies were better than those of the applicant and their qualifications were higher than those of the applicant. In the report of the Departmental Board the applicant was hardly recommended for promotion whereas the interested .parties •were strongly recommended. Furthermore, the applicant was disfavoured by the opinion and recommen-' dations of the Head of Department who was present at the • interview. 25 Held, (after dealing with the principles governing judicial review of appointments and promotions in the public service and the principles on which the respondent Commission should act in making aselectionfrom amongst candidatesalready in theservice, or on contract, and outsiders (vide pp. 129-130 post): 30 Held,

(1)that though interested party Kontopoulos lacked the qualifications for promotion he had the required qualificacionsfor first entry; and that, therefore, theie isno fault in t h e ' description of "promotion" in the sub judice decision with regard to this interested party (see section 30(l)(b) of the Public, Service"Law, 1967 (Law 33/67) and section 28 (definition of " "appointment" and "promotion"). 35

(2)That seniority is not the decisive factor which governs promotions but onethat should be duly taken into consideration 125 Sraymios τ. Republic

(1983)and it should only prevail if all other things were more or less equal; that since it is clear that the interested parties were superior to theapplicantin meritand qualifications his seniority . alone could not tip the scales in his favour; accordingly the recourse should fail. Held, further, that though the impression created by a can­ didate at the interview is not the most safe way of assessing a candidate because, inter alia, of the necessarily rather short duration of each interview and of the undeniable possibilities of an adroit candidate making the Commission think more highly of him than he deserves or of a timid or nervous candidate not being able to show his real merit it does not appear from the minutes that the Commission gave undue weight to the imptession created by this candidate at the meeting. 5 10 Application dismissed. 15 Cases referred to: PattichisandAnother v.Republic

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

(1982)3 C.L.R. 497; Andreou v. Republic

(1979)3 CL.R. 379; Theodossiou v. Republic, 2 R.S.C.C. 44 at p. 48; 20 Georghiades andAnother v. Republic

(1970)3 C.L.R. 257 at pp. 262, 263; HjiSavva andAnother v.Republic

(1967)3CL.R. 155at p. 179; Petrou v. Republic

(1967)3 CL.R. 40 at p. 48; GeorghiadesandOthersv. Republic

(1967)3C.L.R. 653at p. 666; 25 HadfiConstantinou and Others v. Republic

(1973)3 C.L.R. 65 at p. 71; Haviaras v. Republic

(1981)3 CL.R. 492; Partellides v. Republic

(1969)3 CL.R. 480; Triantafyllides and Others v. Republic

(1970)3 CL.R. 235. 30 Recourse. Recourse against the decision of the respondent to appoint and/or promote the interested parties to the post of Accounting Officer 2nd Grade in preference and instead of the applicant. C. Loizou, for the applicant. 35 G. Constantinou (Miss), Counsel of the Republic, for the respondent. Cur. adv. vult. 126 3 CL.R. Smyrnios v. Republic STYLIANIDES J. read the following judgment. The applicant isanAccountingOfficer, 3rd grade. Thereweresixvacanciesof Accounting Officer, 2nd grade, to be filled. They were first entry and promotion posts. The Departmental Board in its 5 report short-listed 24candidates for appointment or promotion, including the applicant. The Public Service Commission at its meeting of 6.6.80 filled the vacancies but did not prefer the applicant, who, being aggrieved, filed this recourse whereby he seeks annulment of the said decision of the Public Service 10 Commission published in the Official Gazette No. 1631 dated 26.9.80 under Nots. No. 1694 and 1695. The applicant complains that - 15 (

1. a)One of the interested parties, namely Andreas Kontopoulos, was not possessed of the qualifications prescribed intheschemeofservice,and, therefore, hewas not eligible; (
2. b)The Public.Service Commission misdirected itself as to the seniority of the applicant; and, 20 (
3. c)The Commission disregarded and/or failed to givedue consideration to his striking seniority, as the other five interested parties had approximately equal merits with him. The salient facts of the case are in brief as follows: The Acting Director-General of the Ministry of Finance by 25 letter 6000/69/J/C/IU dated 4.7.79 requested the Public Service Commission to take the necessary steps to fill, inter alia, one post of Accounting Officer, 2nd grade, and other posts which would become vacant by promotion of Accounting Officers, 2nd grade, to Accounting Officers, 1st grade; Thus, in effect 30 the Commission was requested to fill six posts of Accounting Officer, 2nd grade. This is a first entry and promotion post. Pursuant to s.31(l), the posts were advertised in the Official Gazette of the Republic of 2.11.79. After the submission of applications, the prescribed procedural steps were taken. The 35 Departmental Board established for the purpose sent its report to the Commission recommending 24candidates,i.e.4for each vacancy, as suitable for appointment/promotion. Twenty127 ? Stylianides J . Smyrnios v. Republic

(1983)three of the candidates -one did not turn up - were interviewed by the Commission in the presence of the Deputy AccountantGeneral at the meetings of 4th, 5th and 6th June, 1980. The Deputy Accountant-General after the completion of the inter­ views expressed his impression and opinion about each one of 5 the candidates interviewed. The Commission then reached its sub judice decision. The relevant part of the minutes of the meeting reads as follows:'"Απελθόντος τοϋ Βοηθού Γενικοΰ Λογιστοϋ, ή 'Επιτροπή έχώρησεν els την έξέτασιν πάντων τών ενώπιον αύτης στοι- JQ χείων, συμπεριλαμβανομένων τών αίτήσεων τών υποψηφίων μετά τών σχετικών δικαιολογητικών, τών πορισμάτων της Τμηματικής Επιτροπής καΐ της αποδόσεως κατά τάς συνεντεύξεις μετά της 'Επιτροπής Δημοσίας Υπηρεσίας ενός έκαστου τών προσελθόντων ενώπιον αύτης υποψηφίων. ^ Έν προκειμένω ή 'Επιτροπή απέδωσε τήν προσήκουσα βαρύτητα είς τάς εκφρασθείσας υπό τοϋ Βοηθοϋ Γενικοΰ Λογιστοϋ απόψεις. Ή Επιτροπή· έμελετησεν ωσαύτως τους Προσωπικούς Φακέλλους και τάς 'Εμπιστευτικός 'Εκθέσεις περί τών inrc- 20 ψηφίων Δημοσίων Υπαλλήλων, λαβοΰσα δεόντως Οπ* όψιν τήν έν γένει έπίδοσιν αυτών κατά τήν διάρκειαν της υπηρεσίας των, καθώς επίσης καΐ τήν αρχαιότητα των. Ή 'Επιτροπή,άφοϋπροέβη είς άξιολόγησιν καΐ σύγκρισιν τών υποψηφίων βάσει της αξίας, τών προσόντων καΐ της 25 πείρας αυτών (συμπεριλαμβανομένης προκειμένου περί τών υποψηφίων Δημοσίων Υπαλλήλων καΐ της αρχαιότητος των), κατέληξεν είς τό συμπέρασμα ότι οΐ κ.κ. Γεώργιος Τρύφωνος ΘΕΟΦΙΛΟΥ, Ανδρέας Γ. ΚΕΝΤΑΣ, 'Ανδρέας •ΚΟΝΤΟΠΟΥΛΟΣ, Πέτρος ΜΑΡΑΘΕΥΤΗΣ καΐ Δημήτριος 3 0 Κ. ΠΑΤΣΙΑΣ καί ή δνίς Χριστίνα 'Αντωνίου ΘΩΜΑ υπερτε­ ρούν έν τ φ συνόλω τών υπολοίπων υποψηφίων και εΐναι κατάλληλοι διά τάς υπό πλήρωσαν θέσεις καΐ επέλεξε τους πρώτους μέν πέντε διά προαγωγήν, τήν τελευταίαν δέ διά διορισμόν εϊς τήν μόνιμον θέσιν Λογιστικού Λειτουργού, ^$ 2ας Τάξεως, είς τό Γενικόν Λογιστήριον". ("The Deputy Accountant-General having withdrawn, the Commission proceeded with the examination of all the particulars before it, including the applications of the 128 3 C.L.R. 5 10 15 20 Smyrafos v. Republic StylianMes J. candidates with the relevant certificates, the conclusions of the departmental Committee and the performance in the interviews with the Public Service Commission of each of those candidates who came before it. In this respect the Commission gavethe proper weight to the viewsexpressed by the Deputy Accountant-General. The Commission studied also the personal files and the confidential reports ofthe candidates in the PublicService, having taken duly into consideration their overall performance during their service as well as their seniority. The Commission after having gone into evaluation and comparison of the candidates on the basis of merit, qualifications and their experience (including, in the case of candidates who are Public Officers, and their seniority) came to the conclusion that Messrs. Georghios Tryfonos Theophilou, Andreas G. Kentas, Andreas Contopoulos, Petros Maratheftis and Demetrios K. Patsias and Miss Christina Antoniou Thoma are superior to all other candidates and are suitable for the posts to be filled and has selected the first five for promotion, and the last one for appointment in the permanent post of Accounting Officer, 2nd Grade, in the Treasury"). Theprinciplesgoverningthejudicial review of appointments, including promotions, in the public service are illustrated by 25 numerousdecisionsofthisCourt. Itistheduty oftheappointing authority to appoint/promote the most suitable candidate. The first duty of this Court in reviewing promotions is to see whether the appointing authority exercised its discretionary powerinconformity withstatutory provisions and therulesand 30 requirements of administrative law generally, including good faith. So long as the authority acted within those limits, the Court cannot interfere; itcannot substitute itsownopinion as tothemeritsofthecandidatesfor that oftheappointingauthority -(PattichisandAnotherv.TheRepublic,

(1968)3C.L.R.374). 35 The Public Service Commission in effecting appointments or promotions should select the most suitable candidate for the particular post, having regard to the totality of circumstances pertaining to each one of the qualified candiates, including 129 SiyliflnfatM J. Smynito ?. RcpsMIc

(1983)lengthofservicewhich,thoughalwaysafactor tobeconsidered, is not the exclusive vital criterion for promotion. The Public Service isa most important factor for the efficient functioning of the State. The interests of the citizens in a modern State,whose activatesare expanding, arebest served by 5 qualified, experienced and efficient civil servants. The object ofour lawincreatingthecategoryoffirst entryand promotion postsisto attract candidatesfrom outsidetheserviceandat the same time give the opportunity for promotion to suitable persons already in the service. The existence of the institution of 10 promotionposts,restricted tomembersoftheservice, safeguards adequately the interests of those in the service. On the other hand, there are posts entailing duties that require in the public interest opening up the ranks of the service to attract the best possible from a wider section of the public - (TheRepublic and 15 Another v. Aristotelous,

(1982)3 C.L.R. 497). Preference for those already in the servicecan never override the fundamental principle that the most suitable candidate has to be selected for appointment or promotion to a vacant post inthepublicservice. Apersonintheservicemay,fortheabove 20 reason, be bypassed in order to appoint an outsider to the service-(Andreou v. The Republic,

(1979)3C.L.R. 379; Theodossiouv. The Republic, 2 R.S.C.C. 44, 48; Georghiades and Another v. The Republic,

(1970)3 CL.R. 257, 262, 263; PattichisandAnotherv. TheRepublic,

(1968)3C.L.R. 374,381; 25 HjisavvaandAnotherv. TheRepublic,

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

(1967)3 CL.R. 40, 48;Georghiades and Othersv. The Republic,

(1967)3 C.L.R. 653,666; HadjiconstantinouandOthersv.TheRepublic,

(1973)3C.L.R. 65, 71). This principle applies to "first entry and promotion" posts 30 with regard,to those already in the service, and to "first entry*' postswithregard to thoseoncontract. Had itbeenotherwise, tfesse wouMbe no fair competition for the outsiders with those ia tfce tsrvice or on contract The paramount consideration is the cebction of tits mostsuitable candidates in the interests of 35 fine citizensand theState, and not the interest of the restricted classofpersonsalreadyinthepublicservice,betheyactually in the service or on contract. As stated above, the interests of those in the service are safeguarded by the promotion posts. 130 3 C.L.R. Smyrakw τ. Republic Styttanides J.

1. Qualifications of interested party Kontopoulos: This is a first entry and promotion post. The prescribed qualifications are set out in the Gazette of 2.11.79, Not. No.
2. 5 The qualifications of Kontopoulos appear in his personal file. He did not pass Financial Instructions and Store Regu­ lations and, therefore, he lacked the qualifications for pro­ motion. A comparison between the qualifications for first entry and the qualifications possessed by this interested party 10 leaves no doubt that he had the required qualifications for first entry. Hewas intheservicefor many yearsas apermanent Accounting Officer, 3rd grade. Relevant on the matter are the definitions of "appointment" and "promotion" as set out in s.28 of the Public Service Law 15 No. 33/
3. It reads as follows:"
4. Διά τους σκοπούς τον παρόντος Μέρους, έκτο* έάν έκ τοϋ κειμένου προκύπτη διάφορος έννοια— 20 25 30 35 'διορισμός' σημαίνει τήν άπονομήν θέσεως εϊς πρόσωπον μήτελούν ένTfj δημοσίαυπηρεσίαή τήν άπονομήν είς ύπάλληλον Θέσεως άλλης ή τής ύπ* αύτοϋ μονίμως κατεχόμενης, μή αποτελούσαν προαγωγήν, 6 5έ όρος 'διορίζειν* ερμηνεύ­ εται αναλόγως. 'προαγωγή* σημαίνει άλλαγήν είς τήν μόνιμον κατάστασιν υπαλλήλου ήτις συνεπάγεται αΟξησιν είς τήν άμοιβήν τοϋ υπαλλήλου ή συνεπάγεται τήν ένταξιν αυτού ε($ άνώτερον βαΟμόν δημοσίας υπηρεσίας ή έπ! μισθοδοτικής κλίμακας έχούση$ ύψηλοτερον άνώτατον δριον, είτε ή αμοιβή του υπαλλήλου αυξάνεται αμέσως διά τής τοιαύτης αλλαγής είτε μή, ό όρος 'προάγειν* ερμηνεύεται αναλόγως*'. ("28· Forthepurposes of this Law, unless thecontext other­ wise requires · 'appointment* means the conferment of an office upon a person not in thepublic service or the conferment upon an officer of an office other than that which he substantively holds, not being a promotion; and the expression t o appoint' shall be * construed accordingly; 'promotion' means any change in an officer's substantive 131 StyIiaHides J. Smyrnios τ. Republic

(1983)status which carries with it an increase in the officer's remuneration or which carries with it the emplacement of the officer in a higher grade of the public service, or on a salary scale with a higher maximum, whether the officer's remuneration at the time is increased by such a change or 5 not; and the expression *to promote' shall be construed accordingly"). Having regard to the provisions of s.28, cited above, and s.30(l)(b), I see no fault in the description of "promotion" in the sub judice decision with regard to this interested party. 10 2. Misconception as to the seniority of theapplicant: Seniority is a relevant and material consideration thatcannot butinfluence adecision takenby theCommissioninpromotions. A misconception of fact as to the seniority of a candidateexists whenever the influence thereof is material and such a miscon- 15 ception offact leads toacontraventionof thelaw andconstitutes a ground of annulment - (Haviarasv. The Republic,

(1981)3 C.L.R. 492). It was argued by learned counsel for the applicant that exhi­ bit No. 17 - a table showing particulars of the Government 20 Service and Qualifications of the applicant and the interested parties - wrongly reckons the seniority of the applicant in the post of Accounting Officer,3rd grade,as from 1.1.70.Theappli­ cant entered the permanent service of the Greek Communal Chamber on 1.10.

1. According to Law 12/65, whereby the 25 officers serving with the Communal Chamber were emplaced in the public service and a decision of the Public Service Commis­ sion dated 20.1.67, the seniority of the applicant reckons as from 1.10.61 - (Personal file of applicant, Red 3 and 4). Had the respondent Commission laboured under the mis- 30 conception that applicant's seniority reckoned as from 1.1.70, thiswould havebeena materialmisconceptionoffact and would constitute a ground for annulmentof the sub judice decision. Miss Constantinoufor the respondents stated that theCom­ mission had before it thepersonalfiles of the applicant andnot 35 thistable,thatwas onlyprepared by thesecretariat of theCom­ mission after the filing of this recourse in order to facilitate «HssiCel for the respondents to defend therecourse, t h e state132 3 C.L.R. Smymios v. Republic Styliantdes J. ment of Miss Constantinou is well borne out from the table itself. It refers only to the applicant and the interested parties and not to all the candidates. It contains under the name of each one of the interested parties, including first entrant Chri5 stina Thoma: "(iii) Accounting Officer, 2nd Gr. (P) - 15.8.80 - To-date". Definitely this entry could not have been made before the subjudice decision which was taken on 6.6.
2. In the decision itself it is stated that the Commission took into consideration the seniority ofthecandidates after studyingtheir 10 personal files. This ground fails.
3. Seniorityas a Factor for Promotion: The claim of officers to promotion is considered on the basis of merit, qualifications and seniority-(section 44

(2)of Law 15 33/67). Seniority is not the decisive factor which governs promotionsbutonethat shouldbedulytakeninto consideration and it should onlyprevail ifall other thingswere more or less equa\-Partellides v. TheRepublic,

(1969)3 C.L.R. 480, a Full Bench case followed invariably in all later decisions of this 20 Court). The seniority of the applicant and the interested parties already in the service, as emerging from their personal files, reckons as from:25 Applicant A. Kontopoulos D. Patchias „_ Petros Maratheftis Andreas Kentas Georghios Theophilou 1.10.61 15.11.61

1. 8.63
2. 8.76
3. 8.76
4. 4.77 1 need not concern myself with Miss Thoma, a first entrant, whohadsucha strikingsuperiority overallthecandidates,being excellentintheGymnasium,inheruniversity studiesand atthe interview, that forced evenadvocate for theapplicant to statein hisfinal addressthat hewithdraws thecaseagainsther appoint35 ment. Merit - The picture of the applicant, as reflected in his confidential reports, is really a gloomy one. In his confidential report of 31.1.77for theyear 1976the.reporting officer assessed 30 133 StyliankJes J. Smynuos τ. Republic

(1983)him mostly as "Fairly Good" and the countersigning officer wrote that the applicant was exhibiting lack of interest in his work and heshould makeareally good effort before hecouldbe considered for promotion. In the following year he was assessed "Good" with the remark that in the performance of 5 his duties he lacked speed and methodicalness. In the report of 25.1.79 for the year 1978 the reporting officer assessed the applicant as "Very Good" and observed thatduring theperiod under review the applicant showed an all-round improvement in theperformance of his duties. But theviewsof the counter- 10 signing officer, were - and significance should be attributed to this - that the assessment of the reporting officer was rather generous. The general observations of the reporting officer in thelast reportfor theyear 1979 were simply "axiopiito katallilos". Interested party Kentas for 1978 was generally assessed "Very Good*'and in the last report "Excellent". Therecom­ mendations of the reporting officer, with which the counter­ signing officer agreed, were that he was mature and able to undertake higher duties of accounting officer. 20 Interested party Patchias was assessed as "Excellent" in the reports for 1978 and 1979. In the report of 1978 we read: "He is very efficient, conscientious and hard working", and in the one for 1979: "He is capable to undertake the duties of the post of Accounting Officer, 2nd grade". 25 15 Interested party Theophilou was assessed between "Very Good" and "Excellent" with intelligence "above average". He is described as a promising officer. Interested parties Maratheftis and Kontopoulos - Their confidential reports are better than those of the applicant. 30 Qualifications - The qualifications of the interested parties Kontopoulos,Maratheftis and Kentas are higher than those of toe applicant, and Theophilou,besidesother qualifications, he is a graduate of the Highest School of Economicsand Business Science. In the report of the Departmental Board the applicant is hardly recommended for promotion whereas the interested 134 35 3 C.L.R. Smynrios τ. Republic StyUanldes J. parties were strongly recommended. Furthermore,the appli­ cant is disfavoured by the opinion and recommendationof the Deputy Accountant-Generalwho was present at the interview. The impression created by a candidateat the interview is not 5 themost safe way of assessinga candidatebecause, interalia, of thenecessarily rathershortdurationof eachinterview andofthe undeniable possibilities of an adroit candiatemaking theCom­ mission thinkmorehighly of him than hedeserves or of atimid or nervous candidate not being able to show his real merit 10 (Triantafyllides and Others v. The Republic(PublicService Commission),

(1970)3 C.L.R.235). Itdoesnotappearfrom the minutes thatthe Commission gave undueweight to theimpres­ sion created by this candidate at the meeting. I have gone carefully in every aspect of thecase. It is clear 15 that theinterested parties are superior to the apphcantinmerit and qualifications. His seniority alonecould not tip the scales in his favour. Inviewof theabove thisrecoursefails anditis hereby dismis­ sed with no order as to costs. 20 Recourse dismissed with noorder as to costs. 135