3 C.L.R. 1983 March 18 [SAVVIDES, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION ANDREAS A. IOANNOU, Applicant, v. THE PUBLIC SERVICE COMMISSION, Respondent. (Case No. 328/80). 5 10 15 20 Public Officers—Promotions—Merit ·— Qualifications—Seniority—// only prevails if all other factors are equal—Which were not in viewof thebetter qualifications and merit of the interested parties and the recommendations of the Head of Department—Applicant had to establish striking superiority over interested parties but he failed to do so. Public Officers—Promotions—Head of Department·—Recommendations—Public Service Commission not bound to act on such recommendations—But cogentreasonsshouldbegivenfor ignoring them. Public Officers—Promotions—Interdiction of officer pending investigation into commission of disciplinary offence—No offence disclosed and no disciplinary proceedings instituted—Mere interdiction cannot be taken into consideration against the officer when question of his promotion is considered—Nor can his convictionfor a criminal offence, in the absence of disciplinary proceedings and disciplinary punishment, be taken intoconsideration —Section 44(lXi/) of the Public Service Law, 1967 (Law 33/67). The applicant, a prison warder, was a candidate for promotion to the post of Senior Warder. The Public Service Commission after taking into consideration "all the material before it that is, the personal files and the confidential reports of the candidates, as well as the conclusions of the Departmental Committee and 449 Ιοηκα v. RcfoMic (Ut3) the views and recommendations of the Senior Superintendent of Prisons", considered that the interestedpartieswere superior, taking into consideration all the established criteria (merit, qualifications, seniority), compared with the remaining candi dates and found them suitable and decided to promote them 5 to the post of Senior Warder in the Department of Prisons as from 1.8.1980; and hence this recourse by the applicant. The respondent Commission as it appears from the minutes, gave reasonswhy in respect of certain candidates it agreed with the recommendations of the Departmental Committee and the. 10 Senior Superintendent ofPrisonsand thatin respect of interested party No. 1 the Commission elected him notwithstanding the fact that he was not recommended by the Head of the Depart ment, because, as stated in the minutes, "he had the best per formance of all candidates, as it emanates from the confidential 15 reportsabout him,hehassecondaryeducationand thecomments about him of the Departmental Committee are excellent". Reasons were also given why the respondent did not adopt the recommendation of the Head of the Department concerning some other candidates. 20 A perusal of the Personal files and confidential reports of interested parties 1, 2 and Sshowed that they were better than the applicant both in respect of merit and qualifications and theywere recommended by the Headof Department. Interested parties 2 and 5 were senior to applicant and the latter was by 25 9 months senior to interested party 1. Interested party 4 was better in merit than applicant and applicant was slightly senior to interested party 3. Both were more or less equally qualified but this interested party was better in merit than applicant and was recommended by thehead of Department for promotion 30 whilst applicant was not so recommended. Counsel for the applicant mainly contended: (a) That the respondent committee did not follow the recommendations of the Headof Department regarding interested party 4. (b) That the respondent acted contrary to the principle that in selecting candidates for promotion it has a duty to select the most suitable person. (c) Thatinterestedparty No. 5couldnothavebeenselected 450 35 3 C.L.R. Ioannou v. Republic for promotion in preference of the applicant because he had been interdicted for certain offences and was punished by reprimand and also was punished disciplinarily by the Head of Department. (d) That interested party No. 3 has been convicted of a Criminal offence, that of gambling, and should not have been selected inpreference to the applicant whose criminal record is clean. / 10 15 20 25 30 35 Regarding contention (c) above interested party 5 was interdieted pending an investigation in respect of certain disciplinary offences allegedly committed by him but upon the completion of the investigation it was found that there was no material to frame any disciplinary offence. Held,
(1)that the respondent was not bound to act on the recommendation of the Head of the Department and follow such recommendation without exercising its own discretion; that aconclusion tothecontrary wouldhaveamounted todeprivation of the respondent/of the independent exercise of its own discretion and substitution of same by the discretion of the Head of the'Department whose recommendations would have been binding on the respondent; that from a perusal of the contents of the minutes of themeetingfat which thedecision was taken cogent reasons are given for ignoring the recommendation of the Head of the Department and in the light of such reasons, this Court cannot interfere with the discretion of the respondent Commission which, in the circumstances was properly exercised; that, furthermore, applicant has not proved striking superiority overinterested party No.4 and, therefore, the recourse against such party fails.
(2)Thatthoughapphcantwasseniorbyninemonthscompared to interested party No. 1 such seniority cannot be treated as a matter whichcan override the better merits and qualifications of interested party No. 1 because seniority is a decisive factor whenall other factors areequal;that what has to beestablished is striking superiority and in this case the applicant failed to prove any striking superiority over interested parties 1, 2, 3 and 5;accordingly his recourseagainst theseinterested parties must also fail.
(3)That once the result of the investigation against interested 451 Ioannou v. Republic
(1983)party 5 was that no disciplinary offence was committed by the interested party, his mere interdiction pending the investigation cannot be treated as amounting to disciplinary punishment or be taken into consideration against him when the question of his promotion is considered; accordingly contention (c) must fail. 5
(4)That there was nothing in the personal file of interested party 3 substantiating the allegation of his conviction of a criminal offence; that only cases where punishment has been imposed on a public officer during the preceding two years 10 for any disciplinary offence of a serious nature can be taken intoconsideration (seesection44(l)(
- d)ofLaw33/67);that such offences can only be taken into consideration if disciplinary proceedingshavebeentakeninrespectofthemandadisciplinary punishment imposed upon the person concerned; that therefore 15 even if there was a criminal conviction for gambling appearing in the records before the respondent, same should not have been taken into account by it, in effecting the promotions; accordingly contention (
- d)must also fail. Application dismissed. 20 Cases referred to: Georghiou v. Republic
(1983)3 C.L.R. 17; Ioannides andAnotherv.Republic
(1979)3C.L.R. 628at p.638 Constantinou v. Republic
(1980)3 C.L.R. 551 at pp. 558, 561 Michaeloudis v. Republic
(1982)3 C.L.R. 963 at pp. 974, 975; 25 Tapacoudis v. Republic
(1981)3 C.L.R. 9 at p. 13; Gavriel v. Republic
(1971)3 C.L.R. 185 at pp.200-203; Antoniouv. Republic
(1975)3 C.L.R. 510 at p. 516; Skarparis v. Republic
(1978)3 C.L.R.
- 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. Ph. Sphikas with D. Ioulianou (Mrs.), for the applicant. CI. Antoniades, Senior Counsel of the Republic, for the 35 respondent. Cur.adv. vult. SAWIDES J. read the following judgment. The applicant in thiscase isaPrisonWarderappointed astemporary in1964,and 452 30 3 C.L.R, Ioannou v. Republic Savvides J. on permanent basis in
- From 1968 to 1978 he was performing dutiesat thecensorshipoffice ofPrisons and since1978 he serves in the Prisons' Reliefs. On 1.6.1979 the Director-General of the Ministry of Justice 5 wrote a letter to the Public Service Commission asking for the filling of the vacant posts in the Department of Prisons, including, inter alia, five posts of Senior Warders. On 6.7.1979 the Public Service Commission decided to entrust the duty of the preparation of the list of candidates for promotion to its 10 secretary and authorised him to send it together with the files and confidential reports of all candidates and the schemes of service to the Chairman of the Departmental Committee. On 1.8.1979 the Secretary of the Public Service Commission sent the list prepared by him to the Chairman of the Depart15 mentalCommitteetogether withthefiles and schemesofservice. The list contained the names,particulars of service and qualifications of 106officers holding the post of warder which is the immediately lower post to that of Senior Warder in respect of whichthevacanciesexisted. Paragraph 2ofthiscoveringletter 20 reads as follows: 25 "In accordance with regulation 3 of the Regulations concerning the constitution, competency and the procedure of the Departmental Committee, as provided by section 36 of the Public Service Law, No. 33/67, I send you the following and I expect you to act in accordance with the relevant provisions." In the said list, the words "Not passed" referring to the Departmental examinationsareunderlined wherevertheyappear opposite thenames ofthecandidates concerned, assuchexami30 nations were deemed necessary under the schemes of service. On 14.11.1979,theChairman oftheDepartmental Committee sent totheChairman ofthePublicServiceCommission, a listof 15 candidates recommended for promotion together with the comments of the Committee for each one of them. On 24.
- 35 1979, the Public Service Commission wrote a letter to the Departmental Committee drawing their attention to the fact that the list prepared by them was not in accordance with the provisionsoftheLawandtheRegulations,inthatitdidnotcontain 453 Sawides J. loannou v. Republic
(1983)thenamesand viewsabout allthecandidates,but onlyfor those recommended, and asking for (
- a)a supplementary list of the remaining candidates (those not recommended), in accordance with regulation 6, and, 5 (
- b)a clarification as to whether the 15candidatesrecommended were the only suitable candidates for promotion. It was also pointed out in the same letter that regulation 6 providesthat "not lessthan2andnotmorethan four shouldbe 10 recommended for each vacant post, provided there are persons suitable for such recommendation." On 10.12.1979a newsupplementarylistwassenttothePublic ServiceCommission, containingthenamesoffivemorewarders asrecommendedfor thesaidpost,anditscommentsaboutthem 15 and also the comments in respect of 79 other warders, not recommended for promotion whose names were included in the same list. On 12.3.1980,thissecondlistwasagainreturned bythePublic Service Commission to the Departmental Committee, because, 20 asremarked by the respondent,itwasmadecontrary totheLaw and the Regulations, in that certain officers were commented upon as "of doubtful political beliefs" or "unstable political beliefs" or "a supporter of the coup d* etat" or "as having undergone psychiatric treatment." (See, for example, the 25 remarks in respect of officers 1,5, 11,15,19,20,25,34,44,47 and 48 on the second list, Appendix 6 to the Opposition). The observations of the Public Service Commission appear in Appendix 7 attached to the Opposition. As a result, the Departmental Committee met again on 30 15.3.1980 and prepared the new final list in accordance with the observations of the respondent Commission, (Appendix8 to the Opposition). This was the list which the respondent had before it and took into consideration in making the promotions. The respondent Commissionmeton 16.5.1980and, according to theminutes of their meeting(Appendix 9to the Opposition) 454 35 3 C.LR. Ιοηαοα τ. BcpdHk Sarrtfcs J. they read thereportof the DepartmentalCommitteeanddecided to consider the matter at a future meeting and ask die Senior Superintendent of Prisons,who is theHead of the Department concerned, to be present. 5 10 15 20 25 30 The respondent finally met on 7.7.1980 to consider the said promotions. Theminutes of such meeting appear in Appendix 10 to the Opposition. At such meeting the Senior Superinten dent of Prisons attended, who expressed his views and recom mendations about the 20 candidates selected and recommended by the DepartmentalCommittee,givinghis reasons for eachone of them which were recorded in detail in theminutes. Healso answered various questions put to him by members of the respondent Commission concerning certain candidates. After he made his recommendations, he left the meeting, and the respondent proceeded to consider who out of 20 candidates recommended,werethemost suitable candidates forpromotion. to the post of Senior Warder. The respondent before taking its decision, as it is stated in thelast paragraph at page 2 of the minutes, took into consideration "all the material before it, that is, the Personal Files and the Confidential Reports of the above candidates, as well as the conclusions of theDepartmen tal Committee and the views and recommendations of the Senior Superintendent of Prisons, considered that thefollowing candidates are superior, taking intoconsideration all the established criteria (merit,qualifications, seniority), compared with the remaining candidates and found them suitable and decided to promotethem to thepost of Senior Warder in the Department of Prisons as from 1.8.1980. 1. Kasieris Loizos. 2. Papadopoulos Antonios. 3. Pontikides Andreas. 4. Telemachou Andreas. 5. Hj. Panayiotou Mikis". The respondent Commission as it appears from theminutes, 35 gavereasons why in respect of certaincandidates it agreed with the recommendations of the Departmental Committee and the Senior Superintendentof Prisons and that in respect of Kasieris Loizos the Commission elected him notwithstanding the fact that he was not recommended by the Head of theDepartment, 455- ,>^J Μ Savvides J. Ioannou v. Republic
(1983)because, as stated in theminutes,"he had the best performance of all candidates, as it emanates from the confidential reports abouthim,hehassecondaryeducation andthecommentsabout him of the Departmental Committee are excellent". Reasons are also given why the respondent did not adopt the recom- 5 mendation of the Head of the Department concerning some other candidates. The applicant filed thepresent recourse against the said promotions,prayingfor adeclaration oftheCourtthat thedecision of the respondent Commission to promote the five interested 10 partiestothepostof SeniorWarderinpreference andinsteadof the applicant, is void and of no legal effect whatsoever. The application is based on the following grounds of law: "The Respondent acted contrary to the principles established by the judgments of the Supreme Court that the 15 Respondent in selecting candidates for promotion to a higher post has a duty to select the most suitable persons. In violation of the said principles and acting under circumstances amounting to abuse of power, the Respondent Commission promoted the interested parties to the post of 20 the Senior Warder without taking into account
(1)the seniority of the applicant;
(2)the recommendations of the Departmental Committee of Prisons;
(3)the professional abilities of the applicant, his ability for 25 leadership and the superiority of his character;
(4)the fact that certain of the persons promoted in particular, Nos 1, 2 and 4, do not possess the necessary qualifications and experience for the promotion to the post of Senior Warder." The persons referred tointhe last ground oflaw asNos 1,2 and 4, are interested parties Andreas Telemachou, Antonios Papadopoullos and Loizos Kasieris, mentioned in the sub judice decision under Nos 4, 2 and 1, respectively. Counsel for applicant contended in his address concerning 35 interested party No. 4, Loizos Kasieris, that the fact that the 456 30 3 C.L.R. Ioannou v. Republic Sawides J. applicant was included in the first list of 15 persons recommended bythe Departmental Committee for promotion, whereasinterestedpartyNo.4wasnot soincluded,showsthat hewas considered by such Committee to be better than interested 5 party No.
- Another argument advanced byhimwasthat the respondent Commission seemstohave beenbiased bypromoting interested party No. 4 who was not recommended by the Head of the Department and failed to promote the applicant without giving reasons for such failure. 10 I find myself unable to accept either of these contentions. NeitherJhe first list, nor the second list were proper lists prepared by the Departmental Committee as mentioned earlier, andhavingregard totheircontents,theywerepreparedcontrary totheLaw,theRegulationsandtheprinciplesgoverningpromo15 tions. It was for these reasons that both were rejected by the respondent Commission which asked for a new list to be prepared in accordance with the Law and the Regulations applicable, it was only the third list (Appendix No. 8)which was prepared by the Departmental Committee in accordance 20 withthelawwhichwastheonlyvalidonebefore the respondent Commission for consideration and therespondent Commission acted properly by taking only suchfinallist into consideration. Therefore, I cannot take into account in the present case the contents of any other invalid or irregular list which wasrightly 25 not considered or acted upon by the respondent Commission, as material on which I can test the validity of the exercise by the respondent Commission of its discretion. « As to the second contention, cogent reasons appear in the sub judice decision, which are recorded in the minutes of the 30 meeting at which such decision was taken, as to why the respondent Commission did not follow the recommendations of the Head ofthe Department concerningthisinterested party. The respondent was not bound to act on the recommendation oftheHeadoftheDepartment andfollowsuchrecommendation 35 without exercising its own discretion. A conclusion to the contrarywouldhaveamountedtodeprivation of the respondent oftheindependentexerciseofitsowndiscretionand substitution of samebythediscretion ofthe Head oftheDepartment whose recommendationswouldhavebeenbinding on the respondent. 40 From a perusal of the contents of the minutes of the meeting 457 Sawkta J. IMBW» v. RepeMlc (19S3) at which the decision was taken, I am satisfied that cogent reasons are given for ignoring the recommendation of the Head of the Department and I find that in the fight of such reasons, I cannot interfere with the discretion of the respondent Commission which, in the circumstances, was properly exercised. 5 Furthermore, byaperusal ofthefilesandconfidential reports of the applicant and interested party No. 4, it is evident that interested party No. 4 is better in merit and slightly senior to the applicant. Inanycase,applicant hasnotproved striking 10 superiority over interested party No. 4 and, therefore, this recourse against such party fails. I come now to compare applicant to interested parties 1,2 and 5, Andreas Telemachou, Antonakis Papadopoulos and Mikis Hj. Panayiotou. Leaving aside the recommendations of the Head of the Department whichappearintherecordoftheminutesinrespect of these interested parties and which were accepted and taken intoconsideration bytherespondentwhentaking thesubjudice decision,aperusaloftheirpersonalfilesandconfidential reports, 20 as well as of thefileof the applicant, showsthat allthree interested parties are better than the applicant both in respect of qualifications and merit. Furthermore, the observations and recommendations of the Departmental Committee for these three interested parties are by far superior to those concerning 25 the applicant. On the question of seniority, interested party No. 2 isby 20 months senior to the applicant and interested party No. 5by four months senior. Therefore, in respect of these interested parties the applicant has not shown any superiority at all over 30 them,but, on thecontrary, both these interested parties appear to be superior in all respects, that is, merit, qualifications and seniority. Applicant is senior by nine months compared to interested party No. 1but such seniority cannot be treated as a matter whichcan overridethe bettermeritsand qualifications 35 of interested party No.
- As it has been held time and again by thisCourt,seniority is a decisive factor when all other factors are equal, (see 458 15 \ C.L.R. Ioannou v. Republic Sarvides J. Georghiouv. The Republic of Cyprus throughthe Educational Service Committee Case 437/80, not yet reported)*. Seniority of one candidate by itself cannot outweigh the better qualifications of others see inter alia, Ioannidesand Another 5 v. Republic
(1979)3 C.L.R. 628 at p. 638, Constantinou v. TheRepublic
(1980)3 C.L.R. 551at p. 558,561,Michaeloudis v. The Republic
(1982)3 C.L.R. 963, 974, 975. Georghiou v. The Republic (supra) and the cases referred to therein). It is also well settled that mere superiority of one candidate over 10 others is not enough to make this Court intervene. What has to be established, is striking superiority and in this case the ! applicant failed to prove any striking superiority, (see, Georghiouv. The Republic (supra) ). It has been alleged by counsel for applicant that interested 15 party No. 5wasinterdicted for certain offences and waspunished by reprimand and also that he was punished disciplinarily by the Senior Superintendent of Prisons. Nothing of this sort appears in the files of the interested party.. Though counsel for applicant was aware of the absence of any material to sub20 stantiate such allegations and that such allegations were denied by counsel for the respondent, he failed to call any evidence to prove them. Therefore, I find that any allegations about disciplinary punishments imposed on interested party No. 5 by the Senior Superintendent of Prisons and/or any alleged 25 reprimand, is unfounded and unacceptable. I wish further to add that only punishments during the preceding two years for any disciplinary offences of a serious nature can be taken into consideration by the Public Service Commission under section 44
(1)of the Public Service Law, 1967 (Law 33/67) when 30 considering a promotion. Section 44
(1)reads as follows: "No officer shall be promoted to another office, unless— (a) a vacancy exists in that office: Provided that in the case of offices with a combined establishment, promotion from the lower to the higher office or grade of that office may bemade irrespectively of whether there is a vacancy in the higher office or gradeornot, and inaccordance withanygeneraldirections given by the Council of Ministers in this respect; 35 * Now reported in
(1983)3 C.L.R. 17. 459 Savvides J. Ioannou v. Republic
(1983)(
- b)hepossesses the qualifications laid down in theschemes of service for that office; (
- c)he has not been reported upon in the last two annual confidential reports as unsuitable for promotion: (
- d)he has not been punished during the preceding two years for any disciplinary offence of a serious nature. 5
(2)The claims of officers to promotion shall be considered on the basis of merit, qualifications and seniority". In respect of disciplinary offences of a nature which is not serious, under section 44
(1)(d) of the above provision, the 10 position is explained in Tapacoudis v. The Republic
(1981)3 C.L.R. 9, where, at page 13, it is stated: "As it appears from the letter of the Director-General of the 20th September 1977(blue 183, in exhibit 3), violations of this interested party and three others were considered as of secondary importance and made in good faith and no criminal or disciplinary prosecution was considered necessary except the punishment of oral reprimand under section 81
(4)of the Public Service Law. That could not affect the position of this interested party under section 44(l)(d) of the said Law as it was a disciplinary offence clearly not of a serious nature as it appears from what is stated above and the punishment imposed". (see, also, Gavrielv. Republic
(1971)3C.L.R. 185at pp.200-203 where it was held that if the appropriate Authority after an 25 inquiry into the matter, decides that the offence is not of a serious nature, it is not for the Commission to consider its seriousness). I comenow to the allegation of counsel for applicant concerning the interdiction of interested party No. 5 for certain disci- 30 plinary offences. Such interdiction appears in Reds 31 and 32 in the file of this interested party. Red 31 is a confidential letter addressed to the Chairman of the Public Service Commission informing him that the Ministry of Justice had appointed an investigating officer to carry out an investigation in respect 35 of certain disciplinary offences against a number of prison warders,oneof whom wasinterested party No. 5and requesting that in the public interest such warders be interdicted pending 460 15 20 3 C.L.R. Ioannou v. Republic Savvides J. the completion of the investigation. Red 32isan extract from the minutes of the Public Service Commission containing a decision to interdict the said warders under the provisions of section84
(1)ofthePublicServiceLaw,Law33/67,asfrom 15.2. 5 1979 for the purpose of facilitating the investigation against them. Such interdiction lasted from 15.2.1979 till 22.3.1979, when the Director-General of the Ministry of Justice informed the Chairman of the Public Service Commission that thedisciplinary investigation was completed and that no material was 10 found to frame any disciplinary offence against interested party No. 5, requesting him at the same time to terminate the interdiction. Such interdiction wasin fact terminated by adecision of the Public Service Commission whichwastaken on the same day. Once the result of the investigation was that nodiscipli15 nary offence was committed by the interested party, hismere interdiction pending the investigation cannot be treated as amounting todisciplinary punishment or be taken into consideration against him when the question of his promotion is considered. 20 For all the above reasons, the recourse against interested parties 1, 2 and 5, fails. I, lastly, come to compare applicant with interested party No. 3,Andreas Pontikides. With regard toqualifications from what appears in Appendix 11,applicant attended a secondary 25 school for a period of seven years, but there is nothing in his filethat he graduated a secondary education school. No secondary school graduation certificate appears in his personal file. In sofar as interested party No. 3is concerned, there is also 30 a similar statement that he attended a secondary education school for three years and, in fact, up to the third form. In anycase,a secondary school graduation certificate orsecondary school education is not required under the schemes of service. Asto other qualifications, bothpartiespassed theDepartmental 35 examinationswhichwerenecessaryundertheschemesofservice. From the personal record form containing the confidential reports the interested party is mentioned as having passed examinations in First Aid, whereas nothing of this sort ismentioned about applicant. It has been contended on behalf of 461 Sawides J. Ioannou v. Republic
(1983)the applicant that applicant passed an examination in First Aid as well. He submitted that such certificate did not appear in the file because of an omission of the officer responsible to filesame and in his written address in reply he mentioned that he was going to call evidence to substantiate this allegation, 5 a fact whichhefailed todo. Therefore, asaresultofthefailure of the applicant to prove his allegation, once the burden of proof rested on him and bearing in mind the presumption of regularity (see, Antoniouv. TheRepublic
(1975)3 C.L.R. 510, at p. 516; Skarparisv. The Republic
(1978)3 C.L.R. 106), I 10 find such contention as groundless. Therefore, onthematerialbefore mewhichisthe samewhich wasput before therespondent, thequalifications of bothparties are more or less equal and no striking superiority of the applicant has been shown over interested party No. 3 in this 15 respect. Coming now to the merits of the parties, the general assessment in their files for the last two years is the same, though interested party in older reports appears slightly better, but such older reports cannot be taken into consideration in eva- 20 luating the merits of theparties. There is, however, difference in the remarks appearing in their reports which, in the case of the applicant, are "trustworthy and obedient. Co-operative and loyal", whereas, in the caseof interested party No. 3they are, "trustworthy and loyal. Co-operative, willing. He has 25 power to impose discipline over prisoners". In the report of the Departmental Committee, applicant was commented as follows: "For a long timehewasperforming clericalduties with reduced efficiency. Lately, he has been transferred to the departments. He seemsto bemuch better, developing and 30 firm. Webelieve that he willbecomeevenbetter". Interested party No. 3 was commented as being of "strong personality, firm, capable of imposing discipline and order and hard working". Interested party No. 3, furthermore, was one of the five officers recommended by the head of the Department 35 for promotion, whilst applicant was not so recommended. All the above, put interested party in a more advantageous position than the applicant regarding merits. See,Antoniou v. TheRepublic
(1975)3 C.L.R. 510atp. 515,whereitwasstated that: 462 3 C.L.R- 5 10 15 20 Ioamoav. Republic Sarrfdts J. "We should say that we have felt some anxiety because of the fact that the most senior candidate was not selected for appointmenteven though he was described as an *average officer'; onedoes not have to be 'exceptional' in order to enjoy the benefit of the advantage of seniority. But, on the other hand, it appears that the Commission has exercised its relevant discretionary powers within theproper for the purpose limits, because it was reasonably open to it to find, on the basis of the reasons for which the Head of Department recommended the interested parties as being more suitable, that the candidates before it were not otherwise more or less equal, and therefore, this was not a case where seniority ought to have been treated as a decisive factor". Applicant is senior by 9 months compared to interested party No. 3. The seniority of the applicant over such interested party cannot prevail in the present case all other matters not being equal and the applicant has not proved striking superiority over interested party No. 3. It was, therefore, reasonably open to the respondent, on the material before it, to select the interested party No.3as more suitable than theapplicant, (see, Evangelou v. The Republic
(1965)3 C.L.R. 292 at pp. 298, 299). An allegation has been made by counsel for applicant that interested party No. 3 has been convicted of a criminal offence, 25 that of gambling, and should not, therefore, have been selected in preference to the applicant whose criminal record is clean. Nothing of this sort appears in thefile of interested party No.3 and no evidence has been produced to substantiate this allegation. Therefore, I find such allegation unfounded. As 30 ι have already mentioned earlier in this judgment, in any event, only cases where punishment has been imposed on a public officer during thepreceding two years for any disciplinary offence of a serious naturecan be taken intoconsideration under section 44(lXd) of Law 33/67. No mentionis made in the said section 35 about criminal offences. Such offences can only be taken into consideration if disciplinary proceedings have been taken in respect of them and a disciplinary punishment imposed upon the person concerned. Therefore, even if there was a criminal conviction for gambling appearing in the records before the 463 Savvides J. Ioannou v. Republic
(1983)respondent, same should not have been taken into account by it, in effecting the promotions. The recourse, therefore, against interested! party No. 3, also fails. In the result, this recourse is dismissed, but in the circumstances of the case I make no order for costs. 5 Recoursedismissed. No order as tocosts. 464