*v. 3 CUR. 1983June7 [HADJIANASTASSIOU, J.] IN THE MATTER OF ARTICLE 146OF THE CONSTITUTION THEOCHARIS (CHARIS) IOANNOU. Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF INTERIOR AND DEFENCE, Respondent. (Case No. 227/79). 5 Legitimate interest—Article 146.2 of the Constitution—Reset· ration of rights by person affected by administrative act—Legitimate interest preserved—Recourse against promotion— Applicant granted permission to retire following promotions, /eserving at thesametimehis rightstopursue hfclegal rights— He has not lost h:s legitimate interest. Administrative Law—Delay—Long delay amounts to abuse and excess of powers. 10 15 20 Police Force—Promotions—Post of Assistant Chief of Police— Seniority, qualifications and merit of applicant ignored—Sub judice promotions annulled. The applicant in this recourse challenged the validity of the decisionoftheMinisterofIrterior,whichwastaken onthe24th March, 1979, to promote the two interested parties to the post of Assistant Chief of Police. Following these promotions the applicant by a letter dated 5th June, 1979 applied to the Chief of Police for permission to retire at the age of 55 and his application was accepted. At the same time, however, applicant reserved his rights and made it clear that he intended to pursue his legal rights: The promotions of the interested parties were carried out in accordance with s.13 of the Police Law, Cap.285. Applicant was recommended for promotion by the Chief of Police. 729 Ioaimou v. Republic (19β3) Held, on thequestion whether applicant haslost his legitimate interesttofile arecourse, by reason of his retirement: Thatsince applicant has reserved all his rights at thetimeheapplied for permission to retire he has not lost his legitimate interestunder Article 146.2 of the Constitution {Christofides v. Cyprus Te- 5 lecommunications Authority
(1979)3 C.L.R.99 at pp. 115, 116 followed). Held, on the merits of the recourse'.
(1)That the long delay in dealing with the case of the ap plicant amounts to an excess and abuse of power. 10
(2)That the respondents after keeping silent for a long time indeed finally they went on to appoint the two interested parties in violation of every principle of the law and the administrative law ignoring the seniority, the qualifications and the merits of the applicant; accordingly the recourse 15 should succeed. Sub judice decision annulled. Cases referred to: loannou and Another v. Republic
(1979)3 CL.R.423 at p. 446; Christofides v. Cyprus Telecommunications Authority
(1979)3 C.L.R.99 at pp. 115, 116; 20 Nissis v. Republic
(1967)3 C.L.R.671 at p. 675; Katsiaouni y. Republic
(1981)3 CL.R. 390 at p. 397; LoizianaHotels Ltd. v. MunicipalityFamagusta
(1971)3C.L.R. 466 at p. 473; 25 Pavlides v. Republic
(1978)3 CL.R.331 at p. 348; Bagdadesv. Central Bank of Cyprus
(1973)3 CX.R. 417; Demotthetums v. Republic
(1973)3 CL.R. 354; Hadjigeorghiou v. Republic
(1974)3 CL.R. 436; Kyriacou v. Republic
(1974)3 C U R . 358; Menelaou v. Republic
(1969)3 CL.R. 36 at p. 41; Theocharma v. Republic
(1969)3 CL.R. 318 at p.322; Georgkkm v. Republic
(1975)3 C U R . 153 at pp. 159-
- 730 30 3CL.R. Ioamnu v. Republic Recourse. Recourseagainstthedecisionoftherespondeattopromotethe interestedparties to thepostof Assistant Chief of Police inpreference and instead of the applicant. 5 G. Arestis,for the applicant. M. Kyprianou, for respondents. K. Chrysostomides, for interested party No.
- Cur. adv. vult. HADJIANASTASSIOU J. read the following judgment. In this 10 recourse the applicant Theocharis Ioannou, a police officer, seeksadeclarationthatthedecisionand/oractoftherespondent to promote the two interested parties Odysseas Lambrou and Kypros Mourouzides, instead of the applicant is null and void and of no effect whatsoever. 15 The Facts: Theapplicant hasjoined the policeforce on the 1st February, 1944 and was promoted to the rank of Sergeant as from 1st April,
- On the 1stJanuary, 1957,hewaspromoted to the post of Sub-inspector and again on the 14th November, 1959 20 to thepost of Acting Police Inspector A. Indeed, againon the 16th August, 1960, he became Police Inspector B. On the 1st March, 1967,hewaspromoted further to thepost of Police Inspector Aand on the 1stJanuary, 1977,to the rank of Senior Police Inspector. As from August 1963 and until the end of 25 1963aswellasfrom May 1970till September, 1978, he became anadministrator oftheschoolfor policeofficers, apostwhichis considered as a very responsible post for the police force. Duringhiswholecareerhehad servedinresponsiblepostswhich pre-supposed high qualifications and loyalty to the force. In 30 addition, theapplicant in 1968hadreceivedfurther education at the Police College in England and also had represented the Cyprus Police Force at two seminars given by the Interpol in England. Inspiteofthemerits, qualifications, seniority andrecommen35 dationsbyhissuperiors,on29thMarch, 1979,thetwointerested parties Odysseas Lambrou and Kypros Mourouzides were 731 HadiianasUssiouJ. loamwu v. Republic
(1983)selected and promoted by the Minister of the Interior to the post of Assistant Chief of Police, the first one as from the 15th March, 1979,and the second as from the 4th April, 1979. (See exhibit A). Groundsof Law: 5 The present application was based on the following legal points:
(1)The respondents have acted contrary to the law and in excess and/or in abuse of their power without taking intoconsideration the superior qualifications and theexperience of the applicant.
(2)The respondents have failed to exercise 10 their duty in selecting the best candidate.
(3)The respondents haveignored and/orhavenottakeninto consideration theseniority and/or the experience of the applicant without putting forward sufficient reasons.
(4)The respondents have exercised their discretionary powers in a defective manner andhave acted 15 contrary tothelawand/or inabuseofpowers.
(5)Thedecision oftherespondentsisnotdulyreasonedandtheirreasoningofthe saiddecision iswrong and contrary to thelaw,and/or defective. Grounds of Law for respondents: On the contrary, counsel for the respondents opposed the 20 application of theapplicant, and thepresent opposition isbased on the following grounds of law:
(1)That the applicant does not possesspresent legal interest inorder to allow him to attack the decision of the respondents.
(2)The act attacked and or decision of the respondent iscorrect and was taken legally and 25 in accordance with the lawand of the relevant provisions of the Constitution as well as the principles of administrative law.
(3)The act and/or the decision attacked is duly reasoned and after examination of all the relevant facts, and after exercising their discretionary powers correctly. 30 The following facts are relied upon in the opposition. On the 1stJanuary, 1977,the applicant was recommended for promotion to the post of Senior Police Inspector and the DirectorGeneral of the Ministry of the Interior notified him of this bya letter No. FP(P)30 dated 4th January,
- The apphcant by 35 a letterdated4thJanuary, 1977,repliedthathehadaccepted the offer. Inspiteofthatoffer andacceptancethe Director-General 732 3 CL.R. loannou v. Republic Hadjlanastassiou J. of the Ministry of the Interior on the 8th February, 1977, in formed the applicant that the Minister had revoked his pro motion pending the investigations against him of certain in formation whichhadbeenreceived intheMinistry of the Interior. 5 Inthe light of that letter the applicant applied and was granted leave of absence for a period of 361 days and in effect he was absent on leave from the service as from 11thJanuary, 1977 till the 6th February,
- In the meantime, the applicant had filed a recourse under No. 111/77 against the Minister of the 10 Interior with regard to the revocation of his promotion. On the 9th June, 1979, the Supreme Court issued its decision in the said recourse (111/77) and annulled the decision of the appropriate authority of February, 1977, and I shall revert later on regarding that recourse. 15 There is nodoubt thatfrom thefacts appearing inthepresent recourse thefirst interested party Odysseas Lambroujoined the police force on 18th December, 1947 and was promoted to a Sergeant on the 1st January,
- On 1st June, 1958, he be came Sub-inspector and Police Inspector Β on 16th September, 20 I
- Hewas further promoted toPolice Inspector on 1st July, 1968, and to Acting Senior Police Inspector on 15th September,
- On 1st January, 1977,.he was promoted to Senior Police Inspectorandon6thJuly, 1978toActing DeputyChiefofPolice. Finally, he was promoted to Deputy Chief of Police on 15th 25 March,
- Thesecond interestedparty Kypros Mourouzides was enlisted inthepolice force on4th February,
- Hewas promoted to Sergeant on 1st June, 1958 and to Sub-Inspector on 1st April, 1971 and to Police Inspector Β on 1st September,
- On 30 26thFebruary, 1974,hewas promotedtoActing PoliceInspector and on 1st October, 1975, to Acting Senior Police Inspector. On the 1st January, 1977, he was promoted to Senior Police Inspector and on the 1st April, 1979, to Deputy Chief of Police. The promotions of the interested parties were carried out in 35 accordancewith s. 13of thePolice ForceCap.
- Inaddition on24thMarch,1977,thefirst interestedpartyOdysseas Lambrou was promoted to the post of Deputy Chief of Police and on 24th March, 1979, the appropriate organ promoted him to the 733 HadjtanastasslouJ . Ioaonoa r. RepabHe .
(1983)post of Deputy Chief of Police. The said interested party by a letter dated 27th March, 1979, accepted the said promotion. On 24th March, 1979, the Minister of the Interior promoted to the post of Deputy Chief of Police in the police force the second interested party, i.e. Kypros Mourouzides as from 1st April, 1979,and bya letterdated 27th March, 1979,heaccepted his promotion. 5 Finally, in the light of the aforesaid promotions of Odysseas Lambrou and Kypros Mourouzides, the applicant, by a letter dated 5th June, 1979,asked the Chief of Police to allow him to 10 leave the service at the age of 55,and the Chief of Police by a letter dated 20th July, 1979, informed him that his application for retirement was accepted. On 15th January, 1980, counsel for the respondents in the presence of Mr. G. Arestis, counsel for the applicant, made 15 thisstatement: "I havediscussed thecasewith Mr. Mourouzides but unfortunately he is ill today and having explained the whole matter to him he is requesting an adjournment of this case as he intends to engage a lawyer of his own choice. In these circumstances and I lay stress on the fact that he is ill, 20 Iapplythatthisadjournment shouldbegranted. Ihavediscussed this matter with my learned colleague Mr. Arestis, a.id he also agrees to the adjournment in the particular circumstance which appear because of the illness of Mr. Mourouzides." Then Mr. Arestis not raising an objection for the adjournment the 25 case was adjourned to enable Mr. Mourouzides to engage the servicesofhisown counsel. On 29thJanuary, 1980,counselon behalf of Mr. Mourouzides informed theCourt that heneeded a period offifteen days to file the opposition and asthere wasno objection byMr. Arestisthecasewasfixed for further directions 30 on the 12th February,
- On that date once again the case had to beadjourned and Mr. Arestis,counsel for the applicant, made this statement: "I understand that no opposition has been filed in this case. As it is an urgent case and wemade it clear to all concerned I apply for a date for hearing and the 35 Registrar of this Court to see that the opposition will be filed in time." With that in mind the Court made it clear that the casewould befixed for hearing onthe 10thApril,
- In the meantime the Registrar had received instructions to inform counsel appearing for Mr. Mourouzides. Indeed, on the 10th 40 734 3CL.R. Ioannou v. Republic HadjianastassiouJ. April, 1980, Mr. Chrysostomides, counsel for the interested party No. 2made this statement: "Your Honour, I adopt the opposition filed on behalf of the Republic for the interested party Mr. Mourouzides." Then Mr. Arestis, counsel for the 5 applicant,madethisstatement: "I havediscussedthecasewith my learned colleagues and I understand that it is the wish of counsel for the Republicto seethe appropriate authority witha view to finding an amicable solution to the problem which is before Your Honour, becausein effect the Government willnot 10 incur any further expenses or any other obligations connected with the case of my client. His only wish in bringing the present recourse is to seethat he will begetting apost personal to him without interfering with the rest of the promotions, and which will lapse on his retirement on the 1st May. Further15 more, I have been assured bymyclient that hehas nodesire to causetheGovernment anyfurther expensesor anycostsconnected with his own position. I repeat, his only interest was that justice would have beendonetohim with regard to theposition whichhefound himselfearlier. Iamassured byMr. Kyprianou 20 that hewilldohisbest, becausehealsobelievesthat inacaseof this nature there is room for negotiations without the Government incurring expenses and to find a friendly solution to this problem." Then Mr. KyprianoU made this statement: "I think it is a proper case to be placed before the Minister of 25 Interior toconsider thewholematter inviewofthe statementof my learned friend, and I shalltry mybest to seethe Minister as soon aspossible". Mr. Chrysostomides did not raise any objection to thecourse suggested and the Court madethis statement: "In view of the fact that counsel have taken this course, I have 30 no difficulty in granting the adjournment. I would also add that I fully support this move, and in fact that was the reason why I had intervened to inform counsel appearing on behalf of the Republic that it was the proper and just solution so that none of the three parties appearing before this Court would be 35 influenced inanyway,either asregardsthepromotion or financiallyasinthecaseoftheapphcant. Iammakingthisstatement fully aware ofitsimpact because thepurpose of utilizingArticle 146oftheConstitution-beingapubliclaw-istoseethatjustice isdonetoeverybody." Thecasewasfixed forfurther directions 40 on the 17thApril,
- On that date asnothing had materialized the hearing of the casewasfixed on the 29th April,
- 735 Hadjianastassioa J. Ioannou v. Republic
(1983)Finally this case was argued very ably indeed by all counsel appearing before the Court and was concluded on the 28th June, 1980. For reasons which I think 1 need not disclose I have purposely delayed the issuing of this judgment in order to enable the Minister of the Interior to do justice to this un- 5 fortunate officer. But in any event there is no mystery about it once at that time Mr. Ioannou was on long leave and Mr. Mourouzides had not at that time recovered completely from has illness. With that in mind I would add that the applicant in accordance with the facts and circumstances of the present 10 case as well as his whole career shows that he was one of the best officers inthepoliceforce andthathedeserved tobe treated in a better way by the Minister in question. The recom mendation of the Chief of Police in my view shows clearly that at that time he was considered one of the best candidates 15 and I think he was entitled tofillthe post and to be promoted to the post of Deputy Chief of Police. Pausing here for a moment, I think I ought to make it quite clear once again that his whole career was jeopardized by a note which had fallen into the hands of the Minister in question and he had been 20 victimized ever since. Indeedthe applicant was forced tocome before this Court earlier in order tofindjustice and in the case of Ioannouand Anotherv. The Republic
(1979)3 CL.R. 423 at p. 446 according to the English version the applicant in 1977 was offered promotion to the post of Chief Superintendent 25 in the police force. On the 4th January, 1977 the DirectorGeneral of the Ministry of Interior sent a letter to the first applicant which reads as follows: "1 have been directed to inform you that the Minister of Interior decided to offer you promotion to the post of 30 Chief Superintendent in the Police Force as from 1st January,
- Your salary will be £2,674 per annum on the salary scale £2,518 χ 98—£2,714 from 1st June,
- Furthermore cost of living allowance is payable according to the rate approved by the Government from 35 time to time.
- Your new incremental date will be the 1st of June.
- Please let me know as soon as possible whether you accept this offer". 736 3CUR. Ioannou v. Republic Hanjlanastassioa J. The applicant having accepted the post in question thanked the Minister. On 8th February, 1977, the Director-General informed him that the Minister of the Interior has suspended his promotion until the examination of certain information 5 against him. The appellant feeling rightly aggrieved had sent a letter to the Minister expressing his disappointment and finally he said: "I would like to say that for dignity reasons and professional prestige - reasons sacred to me I shall be on leave (from that accumulated to my credit) until my honesty and my 10 professional dignity, as well as my rights are restored." Thereisnodoubt that thepresentapplicant had beenavictim in'thatcase,and indealingwiththefacts oftheverysamecase, 1 had this to say at pp. 452, 453: 15 20 25 30 35 "I am, therefore, of the opinion that, when the Minister of Interior decided to offer promotion to both applicants, and before acceptance of the promotion by the two applicants for the completion of the administrative act, only then the agreement between the administration and the applicants couldhavebeenrevoked. If any other authority isneeded the case of Panayides v. The Republic
(1972)3CL.R. 467 inmyopinion supports theabovestand at p.483,thateven the omission to publish in the official Gazette is not an obstacle to the promotion once the legal effect of the promotion beginsasfrom thedateofitsoffer and itsacceptance, and therefore it cannot be freely revoked _. See also Tsavelas andanother v. The Republic
(1975)3CL.R. 490. Furthermore it was stated that the fact that disciplinary proceedings against a public officer are pending without any substantive criteria asregardsthe basis of the imputed accusations against him, they cannot also be taken into account for promotion purposes. It was further emphasized that once the accusations against the applicants insinuatedthattherewasabreachofdutyemanatingfrom the aforementioned actsor omissions,and onceno disciplinary proceedings against him have been instituted, the Chief of Policewho decided on thepromotion could not havetaken into account that fact because it was irrelevant under the circumstances." 737 HadjlanastassiouJ. Ioannou v. Republic
(1983)Indeedcounselfor theRepublic Mr.Kyprianou fully aware of the facts of this case tried his very best and put forward that there were basic reasons which called for in favour of thepro motion of theinterestedparties andnotof theapplicant because (
- a)of the necessity of filling immediately the vacant post in the 5 interest of the service and the virtuous administration of the police force in the higher hierarchy: (
- b)the suspension of promotion of the applicant to a post of Inspector Β for an indefinite period of time,aswell as thefate of the RecourseNo. 111/77; (
- c)the long absence of the applicant from service; 10 and (d)thefact thatduring theperiodtheapplicantwas holding the rank of Inspector A* andnot thatof Higher Inspectorwhich is the immediate rank of the post of Assistant of the Chief of Police. Counsel further argued that the applicant by the letter dated 5th June, 1979, requested the appropriate authority to 15 permit him to leave the force at the age of 55,and theChief of Police by a letter dated 20th July, 1979, informed the applicant that his applicationfor retirementwas accepted. Inspite of the fact that the applicant had asked to leave the service and per mission was given to him,nevertheless, from the contentsof his 20 letter dated 5th June, 1979, made it clear, in my view, that he had reserved all his rights which hecalled as being earnedrights, and at the same time made it further clear that he intended to pursue his rights which he was legally entitled to. There was no doubt at all that the applicant was feeling very distressed 25 with the treatment attended to him but at the same time, and irrespective of the facts that he asked to retire from the police force, he made it clear to all concerned that he was reserving all these rights due to him,andat thesame timehebrought the present recourse in order to find justice in Court. 30 Having listened to thelong and able arguments of all counsel appearing before me, 1 think I ought to deal with the most important question, as to whether oncetheapplicanthad asked to leave the service and permission was granted to him,he had lost his legitimate interest in bringing the present recourse. 35 I have indeed given my best consideration to this important legal point and my answer is that in the particular circum stances of this applicant and particularly of the treatment afforded to him by the respondents, my answer without hesitation is in the affirmative. That I am right I find further 40 support in the case of Marios Christophides v. Cyprus Telecom738 3C.L.R. Ioannou v. Republic Hadjianastassioa J. munications Authority
(1979)3 CL.R. 99 where Mr. Justice A. Loizou had this to say on the issue of the legitimate interest at pp. 115, 116: 5 10 15 20 25 30 35 "In support of his first proposition, counsel for the respondent Authority referred to the case of Christofis v. TheRepublic
(1979)3 CL.R., p. 97, where it was held following the Greek caselaw on the matter, that the legitimate interest required must exist both at the time of the making of an act and at the time when its validity is challenged and that as stated in Case No. 1823/56 of the Greek Council of State, the legitimate interest must arise out of a legal relationship of an applicant which is already in existence when the act concerned is challenged The presence of existing legitimate interest is essential to the exercise of a right of recourse under Article 146. The word 'existing' to be found in para. 2 of Article 146, denotes according to the caselaw of this Court that it must exist at the time of thefilingand the hearing of a recourse, and these requirements are satisfied also in cases where at the material time it is clear that the existing interest of an apphcant, though not yet actually adversely and directiy affected, is unavoidably bound to be so affected eventually. (See Kyriacos Papasavvas v. The Republic,
(1967)3 CL.R., p. 111. See also the Conclusions from the Caselaw of the Greek Council of State 1929-1959, p. 260 and Tsatsos Application for Annulment 3rd Edition para. 16, pp. 48-49 where it is stated that there continues to exist the detriment suffered by the act or omission when the person affected lost subsequently the quality for which the act or omission related to him without, on account of this, the removal of the injury suffered). In support of this proposition reference is made to a number of decisions of the Greek Council of State. In the case in hand, however, one need not go into the matter beyond the fact that the pecuniary interest of the apphcant was and continued to be affected at the time of thehearingofthisrecourse,sincebythesubjudicedecision he was adjudged to pay by way offinehalf of hisemoluments for the period between the 19th June, 1976 to the 739 Hadjianastasstoa J. Ioansoa v. Republic
(1983)31st December 1976, and that this fine was collected by the respondent authority. Moreover in thecircumstances of thiscase the legitimate interest of the applicant has not been lost because of any acceptance of the subjudice decision. He resigned with reservation of hisrightsand made it clear that he intended to pursue his reinstatement to the post, he was, as he claimed, legally entitled to. 5 I cannot for a moment think that the applicant by his act of resignation consented to or accepted the subjudice 10 decision. Ifindtherefore thattheapplicanthad anexisting legitimate interest and therefore he satisfied the basic requirements of Article 146.2 of the Constitution and the present recourse can proceed. The case of Piperis v. The Republic
(1967)3 CL.R. p. 295, suggests that there 15 exists in our law the principle that the reservation ofrights by a person affected byan administrative decision preserve his legitimate interest in the matter and render ineffective anything that might otherwise have been considered as an acceptance of the administrative act complained of". 20 In the light of these weighty pronouncements I have reached the conclusion that the applicant had an existing legitimate interest and certainly was entitled to complain and bring the present Recourse No. 227/79 as of right. The next complaint of counsel for the applicant was that the 25 respondents have acted contrary to the lawand in abuse and/or in excess of their power without taking into consideration the superior qualifications and the experience of the applicant and indeed have failed to exercise their duty in choosing the best candidate. Having considered the argument of counsel and 30 particularly because the applicant was strongly recommended by the Chief of Policeat the time 1havereached the conclusion that the apphcant rightly complained. In the case of Christodoulos Nissisv. TheRepublic
(1967)3CL.R. 671 Triantafyllides J., as he then was,had this to say at p. 675: 35 "It has been argued by counsel for the Applicant that the issue of abuse of powers has been, all along, before the trial Court, and that the new ground raised on appeal is part, really, of such issue. We take the view that abuse 740 3C.L.R. 5 10 15 20 25 30 35 40 Ioannou v. Republic HadjianastassiouJ» or excess of powers is a generic reason enabling a Court exercising revisional jurisdiction, under Article 146, to annul an administrative act or decision, but the existence of abuse of powers, or of excessof powers, of a particular nature has to be established to the satisfaction of the trial Court; and the onus always rests, in each case, on the Applicant". InthecaseofNiki Christodoulidou-Katsiaoimiv. The Republic
(1981)3 CL.R. 390 I had this to say at p. 397: "For the reasons I have given, and in the special circumstances of this case, I have reached the conclusion, relying on ground 2 only, that the respondents acted in abuse ofpowersbecausetheydidnot givetotheapplicantreasonablenoticefor settlingherpersonalandfamilyobligations**. Still on the abuse of powers in Loiziana Hotels Ltd., v. The Municipality ofFamagusta
(1971)3CL.R. 466 Mr. Justice A. Loizou had this to say at p. 474: "The unreasonable delay by the respondent in detenuining the application of the apphcant and their subsequent application of the law as it was on the 15th March, 1971, amounts, to my mind, to a misdirection as to the law applicable and in fact to an excess and abuse of power. The law applicable is the law as it was before the 29th January, 1971,underwhichitiscommonground thepermit could be issued as a matter of course". In George Paviides and Othersv. The RepublicofCyprus
(1978)3 C.L.R. 331 I had this to say at p. 348: "As 1have shownearlier, inEngland,theposition is different, andinmyview,oncetheActhasexpired, anditceased to have any effect, it could not have been prolonged or extended by Law 22/77 by a mere amendment, but only by a re-enactment of the whole Act. In these circumstances, and as the two Cyprus cases quoted earlier are distinguishable, 1 find myself in agreement with counsel for theapplicants that asthelawwasdead, havingexpired, the assessments were wrongly made by the Commissioner, and the decision to impose special contribution on the applicants wasmade inexcessor in abuse ofpowersvested in such organ and is hereby declared null and void and of no effect whatsoever, once there was no valid law in force". 741 HadjianastassJou J. Ioannou v. Republic
(1983)For these reasons and because this case of the applicant was unique and because nobody has dealt with his case until that time I would uphold the argument, as I repeat, there was a long delay in dealing with the case of the applicant and the recourse succeeds on grounds 1 and 2. See also Bagdades v. 5 TheCentralBankof Cyprus
(1973)3CL.R. 417; Demosthenous v. TheRepublic
(1973)3CL.R. 354which showsthat theparamount duty in selecting candidates whether for appointment or promotion is to select the most suitable from among the qualified candidates; Hadjigeorghiou v. The Republic
(1974)10 3 CL.R. 436; and Kyriacou v. ThePublic Service Commission
(1974)3 C.L.R. 358) Turning now to the third groundof lawviz.,that the respondentsdid nottakeinto consideration theseniorityoftheapphcant and/or his experience without putting forward sufficient reasons 15 I would observe with respect to everyone that in this case the respondents after keeping silent for a long time indeedfinally they went to appoint the two interested parties in violation of everyprinciple of thelawand theadministrative lawignoring the seniority, the qualifications and the merits of the applicant. 20 Regretfully, I find myself in this difficulty and I have no alternative but to repeat that this case is the worst case which has come before the Courts and the applicant had not as yet received any explanation or indeed a written document making it quite clear whether or not the applicant was in any way in 25 breach of duty. The next question is whether the respondent had erred in not attaching importance to the seniority and/or qualifications and merits of the applicant. In Aristos Menelaouv. Republic,
(1969)3 CL.R. 36, Mr. 30 Justice L. Loizou had this to say on the issue of seniority at p. 41:"Learned counsel for the Applicant, after citing to me section 44
(2)of Law 33/67, submitted that in view of the fact that of the three criteria set out therein, on the basis 35 of which promotions are determined, the Apphcant was superior with regard totwo i.e.seniority and qualifications, the decision should have been in his favour even if the Interested Party had slightly more merit. In my view, 742 3 CL.R. 5 10 Ioannou v. Republic Hadjianastassfou J. incases of promotion merit should carry the most weight; but, be that as it may, in this particular case, Applicant's qualifications and seniority were not, in my opinion such as to outweigh the Interested Party's superior merit or toreasonablylead one to the conclusion that the decision of the Public Service Commission was wrong. In my view, having regard to all the circumstances of this case, it was perfectly open to the Commission, in the ' light of the material before them, to come to the decision to which they did and for this reason this Court would not be justified in annulling their decision". In Theocharous v. TheRepublic,
(1969)3 CL.R. 318, I had this to say at p. 322:- 15 20 25 30 35 "I would like, to repeat once again, that the object of paragraph 1 of Article 125, includes not only the safeguarding of the efficiency and proper functioning of the Public Service, but also the protection of the legitimate interest of the public officers. It has to be remembered, therefore, that the paramount duty of the Commission in effecting appointments or promotions, is to select the most suitable candidate for the particular post, having regard to the totality of circumstances pertaining to each one of the qualified candidates, including length of service, which though always a factor to be considered, is not always the exclusive vital criterion for such appointment or promotion; quite rightly so, because the functions of • a public office should be performed in the general interest of the public by the public officer best suited to perform such duties, particularly because of his merits, as reflected by the confidential reports and the recommendations of the head of the department or of a senior officer. In the light of all the material before me, and after going through the last two annual confidential reports oftheparties,andinviewofthefact thatthePublicService Commission, in effecting the promotion of the Interested Parties, has relied mainly on the merits of the parties, as required by s.44 of the Public Service Law, and this being a matter of the exercise of their discretion, I have reached the conchision that from the totahty of all the circumstances before them, it was reasonably proper and 743 Hadjianastassiou J. Ioannou v. Republic
(1983)open to them to reach the conclusion to promote the Interested Partiesinpreference and insteadoftheApplicant, even though the applicant was more senior to Aristidou. I would, therefore, reach the conclusion that the Applicant has.failed to show to this Court that the Public 5 Service Commission has exercised their discretion in dis- . regard of the law or in excess or abuse of power. For these reasons, 1 havedecided not to interfere with thedecision of the Public Service Commission because, 1repeat, it was reasonably open to them from the totality of the 10 circumstances of thiscasetopromote the Interested Parties, relying mainly on the merit of each Applicant, which in my view, should always carry more weight than seniority and qualifications". In Odysseas Georghiou v. TheRepublic,
(1975)3 CL.R. 153, 15 Mr. Justice A. Loizou had this to say at p. 159-160:"In determining the merits of civil servants, the whole career ofa candidatehasto beexaminedandallthe factors referring to his quality, ability and merits, as civil servant and not those for a certain period or of a certain category, 20 have to be taken into consideration (see fosif Georghiades and Anotherv. The Republic (reported in this part at p. 143, ante) ). In that respect, the seniority of the interested party and length of service with the experience that goes with it, 25 were factors to be taken into consideration, and on the totality of the material before the respondent Commission, it was, in my view, reasonably open to it to arrive at the sub judice decision. It cannot besaid that itactedinabuseorexcessofpower 30 or in any way outside the extreme limits of its discretion". For all these reasons I have reached the conclusion that this recourse succeeds and, therefore, the promotions of the two interested parties are hereby cancelled. In theparticular circumstances ofthiscase 1 am notprepared 35 to make an order for costs. Recourse succeeds. Nojorder as to costs. Subjudice decision annulled. No orderas to costs. 744