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clr/1984/1984_3_1498.pdf

(1984)1984 December 24 [A. Loizou, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION ANDREAS KAZAMIAS AND OTHERS, Applicants, v. THE PUBLIC SERVICE COMMISSION, Respondent. (Cases Nos. 136/84, 137/84, 212/84). Public Officers—Promotions—Head of Department—Recommendations—Whether he must havepersonal knowledge of the performance of the candidates—Recommendation cannot be confined, as regards time limits, to the year of the last confidentialreports, but to theperiod up to the moment they are made—Section 44
(3)5 of the Public Service Law, 1967(Law 33/67)—Schemes of Service demanding qualifications of, inter alia, organizing and administrative ability—Such qualifications being matters in respect of which officers are reported upon in their confidential reports not necessary for respondent Commission to have carried out 10 a due inquiry as to whetherthe candidatessatisfied above requirement of scheme of service. Public Officers—Promotions—Departmental Boards establishedunder section 36 of the Public Service Law, 1967 (Law 33/67)—Under no duty to recommendfour candidatesfor each post—Proviso to 15 regulation 6 of the Regulatory Orders governing establishment of Departmental Boards. The applicants were candidates for promotion to the post of Senior Surveyor (Surveys) in the Department of Lands and Surveys. The Head of Department, who participated at the 20 relevant meeting ofthe Commission, which took place on 22.12. 1983, stated before the Commission that though applicants 1498 3 C.L.R. 5 10 Kazamias and Others v. Republic Kazamias and HjiGeorghiou, were ahead of the interested parties in seniority the former were inferior in merit. He, also, made an evaluation of the performance of the candidates during 1983 and according to such evaluation the interested parties had better performance than the applicants; and went on to recommend the interested parties for promotion. The respondent Public Service Commission, after taking into consideration the recommendation of the Departmental Board and that of the Head of Department alongwith the contents of the personal files and the confidential reports on the candidates, decidedtopromotetheinterestedpartiesandhencethisrecourse. Counsel for the applicants mainly contended: (
  1. a)That the respondent Commission did not carry out a due inquiry as to whether the candidates satisfied the relevant scheme of service and in particular with regard to the qualification of organizing and administrativeability,responsibility,initiativeandjudgment. 15 (
  2. b)That the Director of the Department of Lands and Surveys was never the reporting or countersigning officer of the applicants nor could he himself evaluate their performance during the year 1983as he was not their immediatesuperior officer and hehad nopersonal knowledge of their performance at work which by its very nature takes them away from the office. 20 25 (
  3. c)That it was improper for the Head of Department to make an evaluation of the candidates for 1983 and for the respondent Commission to take same into consideration as there had been' submitted by then the confidential reports for the applicants in respect of the year 1983. 30 (
  4. d)That in not recommending for promotion applicant Sammoutis the Departmental Board acted in violation of regulation 6* of the Regulatory Orders governing the establishment, competence and the method of operation of Departmental Boards, inasmuch as the Departmental Board recommended only four candi- 35 T · ' Regulatory Order 6 provides, inter alia, in its proviso that "no less than two and no more than four must be recommended for every vacant post so long as, there exist suitable persons for such recommendation". 1499 Kg^mifls and Others v. Republic
(1984)dates, whereas it could recommend up to eight, as longasthereweresuitablepersonsfor such recommendation. Held,
(1)that the qualifications of organizing and administrative ability, responsibility, initiative and judgment which 5 are demanded by the schemes of service are matters in respect of which officers are reported upon intheir confidential reports and it iswrongto saythat the respondent Commission did not have the necessary material before it in order to arrive at the conclusion that the candidates, both the applicants and the 10 interested parties, possessed these qualifications; accordingly contention (a) must fail.
(2)That the extent of the knowledge of the Head of the Department about his subordinates is a matter which depends onthefacts ofeachcaseand unlessthereisanythingestablishing 15 tothecontrary, a HeadoftheDepartment,whochairsa Departmental Board and is invited by the respondent Commission to make recommendations as regards the candidates and their suitability for promotion, must be presumed to have made the necessary inquiry and to have informed himself about them; 20 that in the present casethis Head of Department was also the Chairman of the Departmental Board which made a thorough analysis of the merits, qualifications and career including the seniority of the candidates; accordingly contention (b) must fail.
(3)That the respondent Commission has to be informed ofthe meritsof candidates asthey stand onthedayit examines the matter, that is,the day it hearstherecommendations ofthe Head of the Department and not stop, as in this case would have been,almost a yearback; andthat, furthermore, from the 30 wording of section 44
(3)of the Public Service Law, 1967(Law 33/67) it is clear that the recommendation cannot be confined as regardstimelimitsto theyearof the lastconfidential report submitted,buttotheperioduptothemomentsuchrecommendation is made; accordingly contention (c) must fail. 35
(4)That the provisoto regulation 6 does not cast a duty on a Departmental Boardto recommend four candidates for each post and it cannot bo said that in the circumstances of this case there has been any violation of this regulation or of any 1500 25 3 CL.R. ifgg^mip* and Others v. Republic principle, of law on account of the recommendation made by the said Board whichgaveitsviews in its report onthe matter; accordingly contention (d) must fail. Application dismissed 5 Cases referred to: Christou and Others v. Republic, 4 R.S.CC. 1 at pp. 5,
  1. Recourses. Recouses against the decision of the respondent to promote the interested parties to the post of Senior Surveyor (Surveys) 10 in the Department of Lands and Surveys iu preference and instead of the applicants. N. Papaefstathiou for T. Papadopoullos, for applicants in Case Nos. 136/84 and 137/
  2. Ch. Ierides, for applicant in Case No. 212/
  3. 15 A. Vladimirou, for the respondent. E. Demosthenous, for interested party S. Petrou. N. Stylianidou(Miss) for E. Efstathiou,for interested party /. Lakerides. Cur. adv. vult. 20 A. Loizou J. read the following judgment. By the present recourses, the applicants seek a declaration of the Court that the decision of the respondent Commission published in the Official Gazette of the Republic of the 17th February, 1984, by which Simos Petrou and Iacovos Ch. Lakerides (hereinafter 25 to be referred to as the interested parties), were promoted as from the 1st January, 1984, to the post of Senior Surveyor (Surveys) in the Department of Lands and Surveys, is null and void and of no effect whatsoever. The said post is a promotion post and the respondent Com30 mission, having in mind Order 3 of the Regulatory Orders that govern the establishment, competence and the method of operation of Departmental Boards made under the provisions of section 36 of the Public Service Law, 1967, caused a list of the candidates for promotion together with their personal files 35 and confidential reports and the relevant scheme of service 1501 Λ. Loizou J. Kazamias and Others v. Republic
(1984)to be sent to the Chairman of the Departmental Board which wasset uptoexamineandadviseitonthepromotioninquestion. The Chairmanof thesaid Board by letters dated 19.8.1983and 2.9.1983submitted its report (Appendix 4) in which therewere recommended,in alphabetical order,four candidates for select- 5 ion for promotion out of a list of twenty seven candidates that wereholding theimmediately lower post and who wereentitled to be considered as candidates. Among th.e four candidates so recommended were applicant Andreas Kazamias (Recourse No. 136/84), and applicant Georghios HadjiGeorghiou (Re- 10 course No. 137/84), but not applicant Charalambos Sammoutis (Recourse No. 212/84). The other two candidates recom­ mended by the Departmental Board were the interested parties Simos Petrou and Iacovos Lakerides. In the report of the DepartmentalBoardtherehadbeenmadeagradingof themerits 15 of thecandidates on thebasisof the annual confidential report on them. The respondent Commission, at its meeting of the 22nd· December, 1983, decided to promote the two interested parties as being the most suitable for the post. 20 The relevant minute of this meeting of the respondentCom­ mission, in so far as relevant, reads as follows: "Reference to item 4of the minutes of the meeting of the Commission dated 18.6.1982 and item 9 of the minutes of the meeting of the Commission dated 29.11.
  1. At 25 the meeting present was the Director of the Department of LandsandSurveysMr.Roys Nicolaides. Hementioned the following: Andreas Kazamias and Georghios Hadjigeorghiou are ahead of Simos Petrou and Iacovos Lakerides in seniority 30 as regards the previous post, but thefirsttwo are inferior in merit in comparison to the other two. Taking into consideration establishment criteria intheirtotality,Petrou and Lakerides are recommended as more suitable for promotion,who duringthis year have a better performance 35 than last year. The performance of the candidates during 1983 is:
  2. Kazamias — a little better than'last year. 1502 3 C.L.R. Kazamias and Others v. Republic
  3. Hadjigeorghiou
  4. Petrou
  5. Lakerides 5 10 15 Λ. Loizou J. — a little better than last year. — Excellent. — Excellent. At this point the Director withdrew from the meeting. Thereafter, the Commission engaged in the evaluation and comparison of the candidates. The Commission examined the material elements from thefileregarding thefillingof the post, as well as theper­ sonalfilesand the confidential reports on the candidates, and took into consideration the recommendations of the Departmental Board and the recommendations of the Director of the Department of Lands and Surveys. The Commission after taking into consideration all the elements before it, came to the conclusion that Iacovos Lakerides and Simos Petrou who were recommended by the Director, are in essence superior to the other candi­ dates on the basis of the establishment criteria (merit, qualifications, seniority) and decided to promote them to the post". 20 It is the case for applicants Kazamias and Hadjigeorghiou that the respondent Commission acted under a misconception of fact in accepting the evaluation of the Departmental Board as regards the candidates as graded in the Appendix attached to its report and placed before the respondent Commission. 25 inasmuch as the grading of the various candidates and inparti­ cular that of the two applicants vis-a-vis the interested parties was not accurate. Furthermore, same was accepted without the respondent Commission itself carrying out any inquiry at all or a due inquiry on the subject. 30 Thesecondgrounduponwhichthesetwoapplicantschallenge the sub judice decision is that the respondent Commission did notcarry outadueinquiry astowhetherthecandidatessatisfied the relevant scheme of service and in particular with regard to the qualification of organizing and administrative ability, 35 responsibihty, initiative and judgment. In fact, there does not appear which factors the respondent Commission had in mind that they were possessed by the interested parties. This latter ground may be briefly disposed of by pointing out thatthese qualifications demandedby theschemes ofservice 1503 Λ. Loizoa J. Kazamias and Others v. Republic
(1934)are matters in respect of which officers are reported upon in their confidential reports and it is wrong to say that the res­ pondent Commission didnothavethenecessary material before it in order to arrive at theconclusion that the candidates,both the applicants and the interested parties, possessed these qualifications. 5 It was further argued on behalf of these two applicants that theDirectorof the Department of Lands and*Surveyswas never their reporting or countersigning officer nor could he himself evaluate their performance during the year 1983 as he was not 10 their immediate superior officer and hehad no personal know­ ledge of their performance at work which by its very nature takes themawayfrom theoffice. Insupport of thisproposition reference has been made to the case of Christou & Othersv. TheRepublic, 4R.S.C.C,p. 1,atpp. 5and6,whereitwasstated 15 that inthatcase it could not bereally said thatthe recommend­ ation of the Head of the Departmentcould have had anycon­ siderable effect because the Head of Department could only recommend and did recommend the applicants whom he knew withoutbeinginapositiontostateanything aboutthesuitability 20 of the great number of the other candidates whom he did not know at all. Whatever the strength of that proposition, it cannot be automatically applied to each case, inasmuch as the extent of the knowledge of the Head of the Department about his subordinates is a matter which depends on thefacts of each 25 case and unless there is anything establishing to the contrary, a Head of the Department,who chairs a Departmental Board and is invited by the respondent Commission to make recom­ mendations as regards the candidates and their suitability for promotion, must be presumed to have made the necessary 30 inquiry and to have informed himself about them. Inthe present case this Head of Department was also theChairman of the Departmental Board which made a thorough analysis of the merits, qualifications and career, including the seniority of thecandidates. Thisground,therefore,cannotalso succeed. 35 Before I deal with thefirstground earlier referred to in this judgment, it is useful to refer to certain aspects of the parties' career and the contents of the confidential reports on them. Applicant Kazamias entered the service on the 1st July, 1954, as a temporary Surveyor 2nd Grade and he became per- 40 manent on the 1st January,
  1. 1504 3 C.L.R. Kazamias and Others r. Republic A. Loizou J. On the 1st August, 1973he was seconded to the Temporary Development Post of Surveyor First Grade and he was made permanent on the 15th November,
  2. Applicant HadjiGeorghiou joined the service on the 16th 5 August, 1955, as a permanent Surveyor, 2nd GTade, and he wasseconded to the Temporary Development Post asSurveyor 1st Grade on the 1st August, 1973, and became permanent in that post on the 15th November,
  3. ApplicantSamoutiswasfirstappointedasSurveyor2ndGrade 10 on the 1st December, 1966 (unestabUshed) and became permanent in that post on the 1st February,
  4. On the 1st August, 1973, he was seconded to the post of Surveyor 1st Grade and became permanent to the Development Post on the 1stJune,
  5. Hewaspromoted then to thepermanent ordi15 nary post of Surveyor 1st Grade on the 15th May,
  6. Interested party Simos Petrou entered the service on the 1st November, 1963, as temporary Surveyor 2nd Grade. He became permanent on the 1stFebruary, 1969, secondedtothe Temporary Development post on the 1st August, 1973, and 20 became permanent on the 15th November,
  7. The Departmental Board whose report together with the appended documents and a letter of its Chairman as Appendix 4, graded applicant Kazamias as "little better than good", applicant HadjiGeorghiou "little better than good", applicant 25 Samoutis "very good", interested parties Simos Petrou "very good" and Lakerides as "very good". Thisisthegradingastotheir meritsonthebasisoftheconfidential reports on them. I do not intend and it will serve no purpose to reproduceheretheyearlygradingofthecandidates, 30 but I shall giveonly their average. As far as the confidential report of the year 1982 is concerned, applicant Kazamias is rated as "very good", and for the years 1981, 1980 and 1979 as "good". Applicant HadjiGeorghiou for the year 1982 is rated as 35 "verygood", and for the years 1981,1980and 1979as "good". . Applicant Samoutis for the years 1982 and 1981 is rated as "very good", for the year 1980 "good" and for the year 1979 as "very good". 1505 I A. Leizou J. Kazamias and Others v. Republic
(1984)Interested party Simos Petrou is rated for the years 1982 and 1981 as "very good", and for the years 1980 and 1979 as "good". Interested party Lakerides is rated for the years 1982, 1981 as "very good", for the year 1980 as "good", and for the year 1979 as "very good". 5 In addition to the above, the Head of the Department informed the respondent Commission about the performance of all the parties during
  1. That wasdone, as alreadyseen from the relevant minute, at the meeting of the respondent Commission of the 22nd December of that year and he rated 10 applicant Kazamias as "little better than the previous year", applicant HadjiGeorghiou "a little better than the previous year",andinterestedpartiesPetrouandLakeridesas"excellent". With regard to this part of the recommendations of the Head of the Department, an argumenthasbeenadvanced that it wai» 15 improper for the Director to make such evaluation and for the respondent Commission to take same into consideration as there had not been submitted by then the confidential reports for the applicants in respect of the year
  2. InthefirstplacetheDirectoroftheDepartment did notrefer 20 to the possible contents of confidential reports that had not beenprepared and werenot placed before therespondent Commission but he only spoke in recommendingthe two interested parties ashaving during 1983shown a better performance than thepreviousyearandthenhewentontogradetheperformance 25 during that year of the two applicants Kazamias and HadjiGeorghiou and the two interested parties. Tomymindthisisacorrectapproachbecausetherespondent Commission has to be informed of the merits of candidates as they stand on the day it examines the matter, that is, the 30 dayithearstherecommendationsoftheHeadoftheDepartment and not stop, as in this case would have been, almost a year back. In fact, under section 44
(3)of the Public Service Law 1967, the Commission in making a promotion must have due regard not only to the annual confidential reportsonthecandi- 35 dates but also to the recommendations made in that respect by the Head of the Department. From the wording of this section it is clear that therecommendation cannot be confined asregards time limits to the year of the last confidential report 1506 3 C.L.R. Kazamias and Others v. Republic A. Loizou J. submitted, but tothe period uptothe moment such recommendation is made. On the first ground earlier referred to as to misconception offact on account ofthe wrongaggregation made bythe Depart5 mental Board of the merit of the candidates as emanating from their confidential reports, having gone through same and made a short reference earlier hereinabove, t have come to the conclusion that there does not exist any misconception of fact in this case. 10 Counsel for the applicant Samoutis who was not one of those included among the four candidates recommended by the Departmental Board, as argued that there has been a violation of regulation 6of therelevant Regulatory Orders inasmuch as the Departmental Board recommended only four candidates. 15 whereas it could recommend up to eight, as long as there were suitable persons for such recommendation. Regulatory Order 6 provides, inter alia, in its proviso that "no less than two and no more than four must be recommended for every vacant post solongasthereexistsuitablepersonsfor such recommendation". 20 This proviso does not cast a duty on a Departmental Board to recommend four candidates for each post and there cannot be said that in the circumstances of this case there has been any violation of this order or of any principle of lawon account of the recommendation made by the said Board which gave 25 its views in its report on the matter. On the totality of the circumstances, I have come to the conclusion that the respondent Commission has exercised its discretion properly and on the basis of the material before it, it duly inquired intoeveryaspect of thecaseand gaveits reasoning 30 on the subject, its decision being reasonably open to it. For all the above reasons, these recourses are dismissed but in the circumstances there will be no order as to costs. Recoursesdismissed. Noorder as to costs. 1507

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