clr/1984/1984_3_341.pdf

(1971)3 C.L.R. 89: • Thejudgment is reported in

(1982)3 C.L.R. 914. 341 Petrides v. Republic

(1984)Paraskevopoulbu v. Republic

(1971)3 C.L.R. 426; Pierides v. C.B.C.

(1982)3 C.L.R. 149; Lambrakis v. Republic

(1973)3 C.L.R. 29; Linou-Flassou-Petra Co. Ltd. v. Republic

(1976)3 C.L.R. 25; Georghiades v. Republic

(1982)3 C.L.R. 659 at p. 682; 5 Pikis v. Republic

(1965)3 C.L.R. 131 at p. 149; Coussoumides v. Republic

(1966)3 C.L.R. 1. Appeal. Appeal against the judgment of a Judge of the Supreme Court of Cyprus (A. Loizou, J.) given on the 4th September, 10 1982 (Revisional Jurisdiction Cases Nos. 301/79 and 321/79)* whereby appellant's recourse against the appointment of the interested parties to the post of Assistant Cultural Officer in the Ministry of Education in preference and instead of the applicant was dismissed. 15 A. S. Angelides, for the appellant. G. Constantinou, Counsel of the Republic, for the respondent. E. Odysseos, for the interested party. Cur.adv.vult. 20 TRIANTAFYLLIDES P.: The judgment of this Court will be delivered by Mr. Justice Loris. LORIS J: This is an appeal from a first instance judgment (reported in

(1982)3 C.L.R. 914) of a Judge of this Court, by means of which two recourses, (Cases Nos. 301/79 and 321/79 - 25 heard together),impugning the decision of the respondent Commission to appoint the interested party, namely Eleni Nikita, to the temporary post of Assistant Cultural Officer in the Ministry of Education, in preference and instead of the applicants were dismissed; the present appeal was filed by applicant in Case 30 No. 301/79 only. Before proceeding with the salient facts ofthe caseunder consideration, as they emergefrom thejudgment of the trial Judge, it must be stressed that by means ofthe present appeal only that part of thejudgment isbeingimpugned whichrefers to CaseNo. 35 • Reported in

(1982)3 C.L.R.

1. 342 3 C.L.R. Petrides τ. Republic Loris J . 301/79 as no appeal was filed by applicant in Case No.321/79 togetherwithwhichtheformer casewas heard; weshall, there­ fore, confine ourselvesin dipicting from theaforesaid judgment the salient facts relevant to the present appeal. 5 10 15 20 The relevant part of the judgment under appeal reads as follows:"This post, according totherelevant scheme of service, isa first entry post and the qualifications required include a degree or title of a University or Polytechnic or a Higher School of Art; good knowledge of at least oneof thepre­ vailing European Languages; and post-graduate training abroad'and/or study visits abroad, as an additional qualifi­ cation. The vacancy in question was advertised and 24 applications were made in response thereto. The respondent Commission, then at its meetings of the 16th December 1978, and 20th January, 1979, decided that nine candidates, including theapplicants and theinterested party be invited for interview on the 22nd January,
2. The Cultural Officer of the Ministry of Education was present at this meeting as the Director-General.ofthe Ministry was absent abroad". In the minutesof thismeeting,of therespondentCommission, (enclosure 7of thebundleof documentsattachedtotheopposi­ tion), it is inter alia stated: 25 "The Commission aswell as the Representative of theMi­ nistry of Education put several questions to-all the candi­ dates on matters of General knowledge and on matters connectedwiththeduties ofthepost asshown in.therelevant scheme of service. 30- TheCommission considered themerits;qualifications and experience of the candidates interviewed' as well as their performance during,the:interview (personality, alertness of mind,.general intelligence and.thecorrectness-of answersto questions put to them' etc.). 35' The Personal·Files and theAnnual· Confidential'Reports of thecandidates>already,in'the servicewere also taken'into consideration." 343" Loris J. Petrides v. Republic

(1984)"From the candidates interviewed, the Commission observedthat Mrs. Eleni S. Nikita gavevery satisfactory replies to questions put to her and generally sheproved to bethe best candidate for appointment to the above post. The Representative of the Ministry of Education stated that Mrs. Eleni S. Nikita had beenworking under him for sometime, her serviceshad been very satisfactory and that he considered heT very suitable for the post of Assistant Cultural Officer. 5 According to the relevant scheme of service, candidates 10 for appointment to the post of Assistant Cultural Officer must possess 'a good knowledge of one of the prevailing European languages'. The Commission observed that Mrs.Eleni S. Nikitahad studied Frenchandwasservingas a Secondary School Teacher for the French language as 15 from 1971. In view of the above, the Commission was satisfied that the candidate in question did possess'a good knowledge of French - i.e. one of the prevailing European languages.' After considering the above and after taking into con- 20 sideration all thefacts appertaining toeach one ofthecandidates interviewed and after giving proper weight to the merits, qualifications, abilities and experience of thesecandidates,aswellasto theirsuitabilityfor appointment tothe abovepostasshownattheinterview,theCommission came 25 tothe conclusionthatMrs.EleniS.Nikitawasonthewhole the best. The Commission accordingly decided that Mrs. Eleni S. Nikita be appointed to the temporary (Dev.) post of Assistant Cultural Officer w.e.f. 1.4.1979". The main grounds on whichthe recoursewascontested were: 30 (a) the relevant Scheme of Service and the evaluation of the qualifications of the applicant and the interested party (b) theallegedfailureoftheP.S.C.tocarryoutdueinquiry as wellas their allegedfailure tosupply specialreason- 35 ing as provided in the case of Tourpekki v. The Republic

(1973)3 C.L.R. 593. (

1. c)the alleged "undue importance attached to the re-» 344 3 C.L.R. Petrides v. Republic Loris J . commendations of Mr. Serghis", under whom the interested party was serving on secondment before her appointment 5 10 (
2. d)the alleged "misconception of fact" inthatthepersonal files of the appellant-applicant were not in fact before theRespondent Commissioncontrarytowhatisstatedin theminutes ofthe meeting ofthe P.S.C.held on 22.1.79 (appendix 7) (
3. e)the alleged failure of the respondent Commission to select the most suitable candidate. As regards ground (
4. a)the learned trial judge after dealing in his judgment with the career and qualifications of the appellant-applicant and the interested party concluded on this subject as follows: 15 20 "It isclear from the material before methat the respondent Commission interpreted and applied the relevant Scheme of Service in a proper manner and evaluaded correctly the qualifications of the applicant(
5. s)and the interested party along with those of all other candidates having duly inquired into the matter ". In connection with "Schemes of Service" it was laid down as early as 1961 by the then Supreme Constitutional Court in the case of Papapetrou v. The Republic, 2 R.S.C.C. 61 at p. 69 that 25 30 " in deciding whether or not the Public Service Commission in a given case has conformed with the relevant scheme of service the Court will not give to such scheme a different interpretation other than that given to it by the Public Service Commission provided that such interpretation was reasonably open to it on the basis of the wording of the scheme in question". The above principle was reiterated in a number of cases subsequently, such as Petsas v. The Republic, 3 R.S.C.C. 60 and more recently in the Republic v. Aivaliotis

(1971)3 C.L.R. 35 89, Paraskevopoullou v. The Republic

(1971)3 C.L.R. 426, Pierides v. C.B.C.

(1972)3 C.L.R. 149, Lambrakis v. Republic

(1973)3 C.L.R. 29. Dealing with ground (b) above the learned trial Judge after 345 Loris J. Petrides r. Republic

(1984)dealing with the matter extensively concludes as hereinbelow stated: "In any event when the respondent Commission speaks of having considered the qualifications of all candidates, must be taken to have considered them as against 5 the totality of the requirements of the Scheme of Service in relation to each of them and liis qualifications. Once therefore, this additional qualification was part of those required under the Scheme of Service, and the respondent Commission stated that ithadinquired intothem,itcannot 10 be validly argued that the matter was not duly inquired intoandconsidered bytherespondent Commission. There is, on the contrary nothing to suggest that they omitted to examine same. Thecasetherefore of Tourpekki(supra) isdistinguishable 15 as in that case the applicant appeared to possessa qualificationwhichmightbeconsideredundertherelevantscheme, an additional advantage, which was not possessed by the interested party chosen in her stead and no reasons were given for so ignoring such an advantage. No doubt 20 in the present case, the Commission carried out a due inquire and gave sufficient reasons on the subject". With reference to the presence and recommendations of Mr. Serghis (ground (

1. c)) the trial Court had this to say inter alia: "Mr. SeTghiswaspresentthereintheplaceoftheDirector- 25 General of the Ministry of Education, who was on that day absent abroad and therefore unable to attend and his presence in addition wasjustified under section 18 of the Public Service Law, 1967, which provides inter alia that 'The Commission may require any public officer to 30 attend and—assist the Commission concerning any matter which the Commission is required to consider in the exercise of its function—.' fn fact as stated in the relevant minutes he assisted the respondent Commission at the interviews by putting also himself, together with the 35 Commission, several questions to all the candidates on matters of general knowledge and on matters connected withthedutiesofthepost, asshownintherelevant Scheme of Service. He then supplied the information already referred to and gave his opinion to her suitability for the 40 post ". 346' 3 C.L.R. Petrides v. Republic Loris J. Regarding ground (
2. d)above the learned trial Judge after examining the evidence before him found 5 " no reason to question the accuracy of the statement of the respondent Commission'in its minutes to the effect that the personal files and confidential reports of all the candidates were before it". Dismissing ground (
3. e)the Court concluded 10 " The subject decision was reasonably open to the respondent Commission which has exercised its relevant discretionary powers within the proper limits for the purpose, and in arriving at the subject decision there has been neither a misconception of law nor of fact, nor any abuse or excess of power, moreover, it was reached after a due and proper inquiry and it is duly reasoned". 15 Thus the learned trial Judge dismissed the recourse of the applicant who filed the present appeal challenging the first instancejudgment onthesamefivegroundsraised in hisrecourse raising at the same time an additional one (ground 6 in the present appeal) notably a complaint to the effect that the trial 20 Couit failed to pronounce on the repercussions of the judicial annulment of the appointment of Elli Constantinou and the consequential revocation of her permanent appointment the appointment which allegedly resulted in the vacancy which was filled in by the appointment of the interested party. 25 We intend to deal first with ground 6 of the present appeal on which learned counsel for appellant devoted considerable time of his address and commenced same with this ground. In examining this ground we have noted that this issue was raised and argued before the trial Judge (vide on this point 30 Linou-Flasou-Petra Co. Ltd. v. Republic

(1976)3 C.L.R. 25) although we must say that it was raised at somewhat late stage i.e. in the written reply of learned counsel for appellants and it was not fully argued therein. Thefacts on which counsel for appellant based his submission 35 were limited by him to the following: On 22.1.1979 the P.S.C. promoted Elli Constantinou to the permanent post of Assistant Cultural Officer in the Ministry of 347 Loris J. Petrides v. Republic

(1984)Education from the relevant temporary post she was holding at the time; as a result the Commission proceeded to appoint the interested party in the recourse under the present appeal to the temporary post of Assistant Cultural Officer in the vacancy which occurred as a result of the aforesaid promotion of Elli 5 Constantinou. On 16.12.1980 the appointment of Elli Constantinou in the temporary post of Assistant Cultural Officer w.e.f. 1.3.1978, was annulled by the Court (vide Recourse No. 225/78-R.A. No. 243; judgment on appeal delivered on 11.4.1984—still unreported).* It is the submission of learned counsel for the appellant in the present appeal that as the temporary appointment of Elli Constantinou w.e.f. 1.3.1978 was annulled by the Court on 16.12.1980 and as her appointment in the post of permanent Assistant Cultural Officer wasrevoked, there wasno such temporary post vacant on 22.1.1979 when the interested party in this case was appointed and therefore the appointment of the interested party namely Eleni Nitita should be annulled "par voie de consequence". First of all there is no prayer in the recourse under appeal for the annulment of the appointment of the interested party based on this ground. This issue was raised "en passant" at a late stage as already referred to above and perhaps thisis one of the reasons why the learned trial Judge omitted to refer to this issue in his judgment. But the most important matter to beconsidered on thisissue is the incomplete factual substratum on which the submission of counsel is based. A careful perusal of the record reveals that Elli Constantinou after the annulment by the Court of 30 hertemporaryappointmentandtherevocationofherpermanent onerevertedtoherpreviousstatusofSchoolmistress intheEducational Service. (Vide affidavit of 5.6.1982 at page 61 of the record) and not to the temporary post of Assistant Cultural Officer which was vacant at all material times. 35 From the above it is clear that the submission of counsel for appellant on this issue is untenable; therefore ground of appeal No. 6 fails. • Reported in

(1984)3 C.L.R. 378. 348 10 20 25 3 C.L.R. Petrides v. Republic Loris J. Reverting now to the remaining grounds of appeal it is useful toremind thescopeandcompassofthejurisdiction under Article 146 as summarised by my brother judge Pikis in delivering the judgment of the Full Bench in the case of Georghiades v. The 5 Republic

(1982)3 C.L.R. 659 at p. 668: 10 15 20 25 30 35 "The review and the inquiry it entails is limited to the validity of the act impeached. Such validity is tested by reference to the powers vested by law in the administration, the manner of their exercise and the factual substratum, particularly its correctness. The revisional jurisdiction of the Supreme Court is primarily of a corrective character. It is aimed to ensure, in the interest of legality and public good, that the administration functions within the sphere of its authority and alwayssubject to the principles of good administration. The Court will not assume administrative responsibilities, a course impermissible under a system of separation of State powers, constitutionally entrenched m Cyprus. It is appropriate to recall in this respect, the observations of TriantafyHides, J., as he then was in Costas M. Pikis v. The Republic

(1965)3 C.L.R. 131, rt 149, earmarking the powers of the executive and the judiciary: 'After all it must not be lost sight of that it is for the Government to govern and for the Court only to control '. The power of the Supreme Court is limited, as indicated, to the scrutiny of the legality of the action, and to ascertain whether the administration has exceeded the outer limits of its powers. Provided they confine their action within the ambit of their power, an organ of public administration remains the arbiter of the decision necessary to give effect to the law; and so long as they make a correct assessment of the factual background and act in accordance with the notions of sound administration, their decision will not be faulted. In the end, the Courts must sustain their decision if it was reasonably open to them". And it is well settled that the initial burden of establishing that the decision complained of is vulnerable to be set aside is upon the party propounding its invalidity {Coussoumides v. The Republic

(1966)3 C.L.R. 1). 349 Loris J. Petrides τ. Republic

(1984)In the present case the learned trial Judge held that it was reasonably open to the respondent Commission to reach the decision they actually did andnothingthathas been said before usjustifies a departure from theview taken by the trial Judge. In ourjudgment thedecision taken by theP.S.C. was reason- 5 ably open to them as the trial Judge held at first instance; therefore thepresent appealfails andit is accordingly dismissed. Having given the matter our best consideration we have decided not to make any order as to costs. Appealdismissed withno order 10 as to costs. 350