clr/1983/1983_3_221.pdf

(1983)that he did not possess the qualifications required under the relevant schemes of service. Held, that it is a well settled principle of Administrative Law that if a candidate does not possess the qualifications required by the schemes of service for the particular post for which he is 5 a candidate, he does not have a legitimate interest to challenge by a recourse the appointment of somebody else in that particular post; that once the applicant has failed to satisfy this Court that lie possessed the necessary qualifications for promotion to the post ofSenior Warder under the scheme of service 10 he was not eligible to beconsidered as a candidate for promotion and, therefore, he has no legitimate interest to pursue this recourse.

(2)That the right to promotion is not protected by Article 192 of the Constitution and that applicant has no vested right 15 for promotion. Application dismissed. Cases referred to: Constantinidou v. Republic (i974) 3 C.L.R. 416 at p. 418; Panaykles r. Republic

(1973)3 C.L.R. 378 at pp. 382, 383; 20 Sofoclcoils (No.2) v. Republic

(1972)3 C.L.R. 637; Arsalis v. Republic

(1976)3 C.L.R. 255; Paraskevopoulou v. Republic

(1980)3 C.L.R. 647 at pp. 657, 659; Karayianni and Others v. The Educational Service Committee (!979) 3 C.L.R. 371; 25 Proestou v. Republic

(1981)3 C.L.R. 314; Christodoulou v. CYTA

(1973)3 C.L.R. 965 at pp. 700, 701; Economides v. Republic

(1972)3 C.L.R. 506 at p. 520; Pjperis v. Republic

(1967)3 C.L.R. 295 at p.

1. Recourse. Recourse against the decision of the respondent to promote the interested parties to the post of Senior Warder in the Department of Prisons in preference and instead of the applicant. M. Christofides, for the applicant. CI. Antoniades, Senior Counsel of the Republic, for the 35 respondent. Cur. adv. vult. 222 30 3 C.L.R. Leonliou v. Republic SAVVIDES J. read the following judgment. This recourse isconnected with Recourse No. 328/80inthat they both attack the sameact by which thefiveinterested parties were promoted tothepostofSeniorWarderofPrisons,insteadoftheapplicant. 5 The facts of the case are as follows: The applicant is a prison warder appointed as temporary in 1952and aspermanent in 1956,apost whichheholdstill today. In 1979 the Director-General of the Ministry of Justice asked the Public Service Commission by letter (Appendix 1) to take 10 the necessary steps for thefillingoffivevacancies in the post of Senior Warder in the Department of Prisons. A Departmental Committee wasset upwhichfinallysubmitted itsrecommendations to the Public Service Commission on L8.3.1980 (seeAppendix8attachedtotheopposition). The Departmental 15 Committee submitted a list of 20 prison warders who were selected by it as the best candidates for promotion. It also submitted another list containing the names of 79 other prison warders who satisfied the schemes of service regarding the post of senior warder, with its comments for each one of ihem (see 20 pages2-6 of the minutes of the Departmental Committee dated 15.3.1980). The name of the applicant did not appear in any of the two lists. The respondent Commission met on 7.7.1980 and after having considered, according to the minutes of the meeting, the personalfiles,the confidential reports, as well as 25 thefindingsof the Departmental Committeeand theviewsand recommendations of the Senior Superintendent of Prisons who was present, decided to promote thefiveinterested parties to the post of Senior Warder. The promotions were published in the Gazette of 22.8.
2. 30 The applicant, having not been promoted filed the present recoursetocontestthevalidityofthesubjudicedecision,praying for a decision of the Court declaring as null and void of any effect the decision and/or act of the respondent which was published in the official Gazette of the Republic No. 1624 of 35 22.8.1980 under No. 1510, whereby for the promotion to the post of Senior Warder (Prisons), applicant was excluded and the five interested parties (set out therein) were promoted. The grounds of law relied upon in support of this recourse. as set out in the application, are as follows: 223 Sawldes J. Leontiou v. Republic

(1)There is a defective or bad exercise of the discretionary power of the administration and/or excess of the limits of the discretionary powers and/or misconception of facts, iii that the respondent did not choose the applicant for promotion, who is better than the interested parties.

(2)The decision is not duly reasoned.

(3)There isacontravention ofArticle 192 of the Constitution which safeguards the conditions of service of public officers who were appointed prior to the Constitution.

(4)For the same legal reasons, any decision and/or recom- 10 mendation of any person or selection committee whereby the persons selected for promotion were so selected and/or recommended for promotion and on which the respondent relied in taking the sub judice decision, is null and void. Theapplicationwasopposedontheground that thesubjudice 15 decision was lawfully taken in the exercise of the discretionary powers of therespondent and on the basisof all material facts and circumstances of the case. Counselfor theapplicantinhiswrittenaddresshas contended that the applicant waswrongfully not considered asa candidate 20 for promotion. The respondent, counsel submitted, in finding that applicant did not satisfy the requirements of the schemes of service,acted wrongfully and under amisconception of facts. He contended that the applicant had a right to be considered for promotion and such right was safeguarded by Article 192 25 of the Constitution, as hehad been appointed prior to the time that the Constitution of Cyprus came into force. He argued, inthisrespect, that theschemesofserviceapplicable at thetime when applicant was appointed, were the same, both in respect ofthepostofwarderandSeniorWarderandundersuchschemes, 30 he was entitled to be considered for promotion to the post of SeniorWarder; the schemes of service had been altered to his disadvantage, in that a secondary school graduation certificate has been introduced as a requirement of the schemes of service for both posts. He contended that sincewiththequalifications 35 hepossessed at the time of his appointment he waseligible for promotion andthat thoughtheschemesofservicehavechanged, he is still holding the post of a warder with the qualifications 224 5 3 CL.R. Leontiou v. Republic Sawkles J. required at the time and any change in the schemes could not affect his right to be'considered as eligible for promotion. Counsel for the respondent, on the other hand, submitted that the respondent rightly did not consider the applicant as 5 a candidate for promotion, in the circumstances of the case, and by doing so, it did not act contrary to Article 192of the Constitution. He further submitted that Article 192 of the Constitution does not safeguard the prospects of advancement ofpublicofficers. Headdedthatinanycase,undertheschemes 10 of service, a secondary school graduation certificate was not required for the post of SeniorWarder; but the qualifications required are expressly mentioned in the schemes of servicewere that "candidates should have passed an examinatipn in Prisons Legislation and Regulations and in matters relating to their 15 duties". Theapplicant neverpassed theaforesaid examinations and, therefore, he was not eligible for promotion as not satisfying theprescribed qualifications under the schemesof service. Though the question as to whether the applicant has a legitimate interest to pursue this recourse has not been specifically 20 raised,inviewoftheallegation that theapplicant did not satisfy the prerequisites of the schemes of service, this question has to be considered by me, because before proceeding to consider the merits of this application, I have to satisfy myself that the applicant has a legitimate interest. Such matter is one which 25 may be examined bythe Court exprorio motu (Constantinidou v. TheRepublic

(1974)3 C.L.R. pp. 416,418). It is a well settled principle of Administrative Law that if a candidate does not possess the qualifications required by the schemesofservicefor theparticularpostforwhichheisacandi30 date, he does not have a legitimate interest to challenge by a recourse the appointment of somebody else in that particular post (see, in this respect, Panayidesv. The Republic

(1973)3 C.L.R. pp. 378, 382, 383, Sofocleous (No. 2)v. The Republic

(1972)3C.L.R. p.637,Constantinidouandothersv.TheRepublic 35 (supra), Arsalis v. TheRepublic

(1976)3 C.L.R. p. 255, Paraskevopoulou v. TheRepublic

(1980)3 C.L.R. p. 647 (where at pp.657,659areviewoftheauthoritiesonthematter ismade). The question, therefore, which poses for consideration is whether the applicant possessed the qualifications required by 225 SavvWes J. Leontiou v. Republic

(1983)theschemeofservicetothepostofSeniorWarder. Therelevant scheme of service is attached to the opposition as Appendix 3 *B' and reads as follows: "Qualificationsrequired; Knowledge of Turkish in the case of a Greek officer or Greek in the case of a Turkish 5 officer would be an advantage. Candidates should have passed an examination in Prisons Legislation and Regulations and in matters relating to their duties. Experience and ability in handling prisoners and staff; an upright and firm character, good leadership, and strong physique". 10 It is clear from the contents of the above scheme what are the necessary qualifications for making a candidate eligible for promotion to thepost of Senior Warder. No secondary school graduation certificate is mentioned as essential, as alleged by counsel for the applicant and, therefore, his argument in this 15 respect was wrongly made. Counsel for the applicant did not make any argument with regard to the matters expressly referred to in the schemes of service, and in particular, the requirement of examinations in Prisons Legislation and Regulations. It has not been alleged 20 that the applicant did possess such qualification. Furthermore, going through the personal file of the applicant which is an exhibit in the case, I find that there is nothing in such file indicating that the applicant did possess such qualification. Oncetheapplicanthasfailed to satisfy thisCourtthatheposses- 25 sed^the necessary qualifications for promotion to the post of senior warder under the scheme of service which, in fact, he did not possess,he wasnot eligible to beconsidered asa candidate for promotion and inthe light of the principles mentioned and the authorities stated above,the applicant has no legitimate 30 interest to pursue this recourse. From the various appendices to the opposition and in particular appendix 8, it is apparent that the Departmental Committee had before it for consideration the list (Appendix 3)of allprison warders, 104in number, including the applicant 35 whosepersonalfileswere sent to it by therespondent Commission for consideration and recommendation of 20 candidates as the most suitable for promotion. Out of such list, the Departmental Committeeelectedtwenty,whom itrecommended, 226 3 C.L.R. 5 10 15 20 25 30 35 40 Lconliuu t. Republic Sa^ides J. and its comments in respect of each one of them, appear in the minutes of their meeting which were submitted to therespondent. The Committee further submitted to the respondent a list of 79 other warders who, though not recommended, were satisfying theschemes of service. The comments of the Committee in respect of these warders are also recorded opposite their respective names. Comparing such list to the contents of the list which was before the Departmental Committee (Annex 3) it is clear that 17 out of 79 persons who were not recommended but their names were included in the list submitted to the respondent as satisfying the requirements for promotion under the schemes of service did not in fact possess all such require­ ments and in particular they had not passed the examinations required by the schemes of service. They are the candidates under Nos 3, 45, 46 and 66 upto 79 in the list of those not recommended for promotion in Appendix 8. However, none of theseunqualified officers has either been promoted or included in-'the list of the 20 officers recommended by the Departmental Committee for promotion. Though the matter has not been raised in the recourse, on the material before me, I find that assuming that there has been an irregularity in the preparation of the list of candidates qualified for promotion, this does not entitle the applicant who is unqualified to be placed on the said list, because there is no right to equal treatment on an illegal basis. Karayianni and others v. The Educational Service Com­ mittee

(1979)3 C.L.R. 371, Proestou v. The Republic

(1981)3 C.L.R. 314, Conclusions from the Case Law of the Greek Council of State (1929-1959) p. 182). Legitimate interest would have existed if any other person not possessing the qualifications was promoted. Christodoulouv. CYTA

(1973)3 C.L.R. 695 at pp. 700, 701. Legal ground 1, therefore, fails, because, as already found, the respondent rightly decided that theapplicant did not qualify for promotion and, by not considering him as a candidate, it has not in any way abused its discretionary powers, nor did it act under any misconception either of fact or law. As to the second ground that the sub judice decision is not duly reasoned, I find such contentionuntenable. The reasoning of the decision appears clearly in the minutes of the meeting of the respondent of 7.7.1980 (Appendix ΊΟ*) and leaves no 227 Savvides J. Leontiou v. Republic

(1983)room for doubt. In any case, once 1 have found that the applicant has no legitimate interest to pursue this recourse, I find it unnecessary to examine further this ground. As to the last ground raised by counsel for applicant in that the respondent in not considering the applicant as a candidate 5 for promotion acted in violation of the rights of the applicant which are safeguarded by Article 192 of the Constitution, I findthat counsel for applicant must have been acting under a misunderstanding because he argued his case all along on the wrongful assumption that the schemes of service have been 10 altered to applicant's disadvantage by the introduction of a secondary school graduation certificate as a requirement for promotion, which was not necessary before. As already mentioned,no such requirement hasbeenintroduced intheschemes of service and, therefore, the whole of the argument was based 15 on a misconception that such certificate was required. He has not argued anything about the condition in the schemesof service requiring the specific examinations mentioned therein and has not mentioned whether such condition was required ornot under theoriginal schemeof service. Thefact asalleged 20 by counsel for applicant that when those warders who do not possess a secondary school graduation certificate are compared for promotion purposes to those who possess such certificate, they are found in a disadvantageous position and an injustice iscreated,hasnothingtodointhepresent case,since,asalready 25 mentioned, the requirement for such certificate has not been introduced in the schemes of service. Article 192 of the Constitution, reads as follows: **1. Save where other provision is made in this Constitution any person who, immediately before the date of the 30 coming into operation of this Constitution, holds office in the public service shall, after that date, be entitled to the same terms andconditionsofserviceaswereapplicable tohimbeforethatdateandthosetermsandconditionsshall not be altered to his disadvantage during his continuance 35 inthepublicserviceof theRepublicon orafter thatdate". Para.7ofthesameArticle,definesthecaseswheretheArticle applies. It reads as follows: **7 . (a) — 228 _ 3 C.L.R. Leontiou v. Republic Sav>ides J. (b) 'Terms and conditions of service' means, subject to the necessary adaptations under the provisions of this Constitution, remuneration, leave, removal from service, retirement pensions, gratuities or other like benefits". 5 10 The right to promotion is not mentioned as one of the rights protected by Article 192 of the Constitution. It has been decided in the case of Economides v. The Republic

(1972)3 C.L.R. 506 at p. 520 that: "It may be said here that in myjudgment there is no such vested right as a right to promotion or that the required qualification for a particular promotion post wil! not be changed before any promotion is effected. There is an expectation for it and nothing more". And in the case of Piperisv. The Republic

(1967)3 C.L.R. 295 15 at p. 299, it reads: 20 25 "Nor do I find any merit in the submission of the applicant that Law48/65,infixinga newand lower salary for the post above his own, to which he was expecting to be, and was eventually, promoted, contravenes Article 192 of the Constitution. Under such Article there were not safeguarded the prospects of advancement of public officers, but only the terms and conditions of service of the posts held by them substantively on the 16th August, 1960 (Shener and The Republic, 3 R.S.C.C, p. 138). In the light of the above, I find that applicant has no vested right for promotion and, therefore, his last ground of law also fails. In the result, this recourse is dismissed but in the circumstances of the case I make no order for costs. 30 Recoursedismissedwithnoorder as to costs. 229