(1984)1984 April II [L. Loizou, MALACHTOS, DEMETRIADES AND SAVVIDES, JJ.] THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC SERVICE COMMISSION, Appellant, v. SAWAS PETRIDES, Respondent. (Revisional Jurisdiction Appeal No. 243). Public Officers—Appointments and promotions—Interview of candidates—Weight to be given to performance at interview. Public Officers—Appointments and promotions—Schemes ofservice— Qualification constituting an additional qualificationthereunder— Possessed by both the applicant and the interested parties—No 5 specific reference was required to be made by the Commission to this additional qualification of tlie applicant—And no cogent and specific reasonsought tohaveappearedinits decisionas to whyhe was not selected. The respondent in thisappeal, by means of a recourse,challen- 10 ged the decision of the appellant Commission by virtue of which the two interested parties were appointed to the temporary post of Assistant Cultural Officer. The trial Judge annulled the said appointments having held: (
- a)That the Commission has given undue weight to the 15 performance of the candidates during the interview; and (
- b)it failed to carry out an inquiry as to whether the applicant possessed apost-graduate qualification because the only documents before it were those of the applicant 20 only. Regarding (
- b)above though only the personal files and the confidential reports of theapplicant werebefore the Commission, there were, also, before it the applications for appointment of all 378 3 C.L.R. 5 Republic v. Petrides the candidates,including those of theapplicant and theinterested parties inwhich thereappeared thequalifications andthe relevant certificates of the candidates, their profession or occupation from the completion of their education, their Government Service and other relevant requirements. Upon appeal by the Commission: 10 15 20 25 3Ό 35 Held,
(1)that there is nothing in the minutes of the Public Service Commission of the 17th December, 1977, when the de cision to appoint the two interested parties was taken, indicating thatundueweight was placed ontheimpression of the candidates created by such interview, but, on thecontrary, thePublic Service Commissionplaced theproperweightwhich thefacts andcircum stances of the case deserved. Held, further that,nodoubt,theCommission inconsidering the merits, qualifications and experience and, generally, the suitabi lity of a candidate to a given post, should also take into account the impression created by such candidateat the relevant interview but this Court does not agree with the,proposition that such interview should be held only as a way of forming an opinion about the possession by the candidates of the required qualifi cations.
(2)Thatin dealing with theissue of theadditional qualification of the applicant the trial Judge took it for granted that the in terested parties did not possess this additional qualification; that on the assumption thatthe interested parties did not possess the additional qualification, the trial Judge relied on the case of Tourpeki v. Republic
(1973)3 C.L.R. 592 in support of his view that no proper inquiry was carried out and no due reasoning was given by the Public Service Commission as to why they did not select the applicant instead of the interested parties; that in the case in hand, both the applicant and the interested parties pos sessed the additional qualifications and so no specific reference was required to be made by thePublic Service Commission in its decision to the additional qualification of the applicant and no cogent and specific reasons had to appear in its decision as to why the applicant was not selected (case of Tourpeki, supra, distin guished). Accordingly the appeal must be allowed. Appeal allowed. 379 Republicr. Petrides
(1984)Cases referred to; Myrtiotis v. Republic
(1975)3 C.L.R. 58 at p. 68; Triantafyllides and Others v. Republic
(1970)3 C.L.R. 235; Petrides andAnother v.Republic
(1982)3C.L.R. 914 at p. 924. Appeal. 5 Appeal against the judgment of a Judge of the Supreme Court of Cyprus (Hadjianastassiou, J.) given on the 16th December, 1980 (Revisional Jurisdiction Case No. 225/78)* whereby appellant's decision to promote the interested parties to the post of Assistant Cultural Officer in the Ministry of Edu- 10 cation in preference and instead of the respondent was annulled. R. Gawielides, Senior Counsel of the Republic, for the appellant. A.S. Angelides, for the respondent. G. Arestis, for interested party E. Constantinou. 15 Ch. ferides, for interested party St. HadjiStyllis. Cur. adv. vult. L. Loizou: The Judgment of the Court will be delivered by Mr. Justice Malachtos. MALACHTOS, J.: This is an appeal against the first instance 20 judgment of a Judge of this Court by which the decision of the Public Service Commission of the 17th December, 1977, which waspublished in the Official Gazette of the Republic of the 14th April, 1978,byvirtueofwhichthetwointerested parties, namely, ElU Constantinou and Stelios Hadjistyllis were appointed to 25 the temporary post of Assistant Cultural Officer, was annulled. According to the relevant scheme ofservice the post of Assistant Cultural Officer is a first entry post and the qualifications required are the following: (a) degree or title of a University or Polytechnic or a 30 higher schoolofArtsor any other recognised equivalent higher school; (b) acquaintance on the literal and cultural movement in Cyprus and other countries; * Reported in
(1981)3 C.L.R. 57. 380 3 C.L.R. Republic v. Petrides Malachtos J. (
- c)good knowledge of at least one of the most prevailing European languages; (
- d)a creative ability as an author or artist; 5 (
- e)a post-graduate education abroad and/or visits for studies in institutions abroad of similar activities, is considered as an additional qualification. In response to the relevant publication in the Official Gazette oftheRepublic,sixteenapplications weresubmitted tothe Public ServiceCommission, includingthoseofthe applicant-respondent 10 in this appeal, and the interested parties. At its meeting of the 4th October, 1977, the Commission decided that twelvecandidates should beinvited for an interview on the 28th November, 1977 and that the Director-General of the Ministry of Education and the Cultural Officer should 15 bepresent. Onthat dayandinthepresenceonly ofthe Cultural Officer, as the Director-General did not attend, the Commission interviewed the nine candidates who were present. The Members of the Commission, as well as the Cultural Officer of the Ministry of Education, namely, Mr. Serghis, put several 20 questions to these nine candidates on matters of general knowledge and on matters connected with the duties of the post and decided that another candidate, namely, Andreas Georghiou Thomas, who was abroad for post-graduate studies, be invited for an interview on the 17th December, 1977. 25 At the meeting of the Commission of the 17th December, 1977, and again in the presence only of the Cultural Officer, the Commission interviewed Mr. Andreas Georghiou Thomas and decided the filling of the two posts in question. The relevant minutes of the Commission read as follows: 30 35 "The Commission interviewed Mr. Andreas Georghiou Thoma, who was unable to present himself for interview at the previous meetings of 28.11.1977 as he was in London for post-graduate studies. The Commission as well as the Representative of the Ministry of Education put several questions to the above candidate on matters of general knowledge and on matters connected with the duties of the post as shown in the relevant scheme of service. 381 Malachtos J. Republic v. Petrides
(1984)The Commission considered the merits, qualifications and experience of the above candidate together with those of the candidates who were interviewed at the meeting of 28.11.1977,as wellastheir performance during the interview (personality, alertness of mind, general intelligence and the correctness of answers to questions put to them, etc.) 5 The Personal Files and theAnnual Confidential Reports of the candidates already in the service were also taken into consideration. The Commission observed that, during the interview, 10 Eleni S. Nikita, Elli Constantinou and Stelios Ach. Hadjistyllis, gave satisfactory replies to questions put to them. The Representative of the Ministry of Education stated that Eleni S. Nikita, Elli Constantinou and Stelios Ach. Hadjistyllis were very good during the interview but that 15 he would prefer Eleni S. Nikita and Elli Constantinou, having regard to their work which he knows as they had been working under him for some time. Discussion then followed and the Commission unanimously agreed that Mrs. Elli Constantinou was the best 20 candidate for the post of Assistant Cultural Officer. The Chairman as wellas twoof theMembers of the Commission (namely Messrs. C. Lapas and Y. Louca) held also the view that Mr. Stelios Ach. Hadjistyllis should be preferred to Mrs. Eleni S. Nikita, having regard to their performance 25 at the interview. According to the relevant scheme of service, candidates 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 30 both Mrs. Elli Constantinou and Mr. Stelios Ach. Hadjistyllis had studied in England for a number of years. In view of the above, the Commission was satisfied that the candidates in question did possess 'a good knowledge of English—i.e. one of the prevailing European languages'. 35 After considering all the above and after taking into consideration all the facts appertaining to each one of the 382 3 CX.R. 5 10 15 Republic v. Petrides Malachtos J. candidates and after giving proper weight to the merits, qualifications, abilities and experience of these candidates, as well as to their suitability for appointment to the above post as shown at the interview, the Commission came to the conclusion that the following candidates were on the whole the best. The Commission accordingly decided that the candidates in question be appointed to the temporary (Dev.) post of Assistant Cultural Officer w.e.f. 1.3.1978; Elli Constantinou Stelios Ach. Hadjistyllis The decision regarding Mrs. Elli Constantinou was taken unanimsously, whereas in the case of Mr. Stelios Ach. Hadjistyllis the decision was taken by majority of 3 votes to 2 (Messrs. D. Protestos and S.C. Catsellis dissenting). Messrs. Protestos and Catsellis preferred Mrs. Eleni S. Nikita to Mr. Hadjistyllis". Although the applicant and the other candidates with whom we are concerned were at the time in the Government Service under the Ministry of Education, only the personal file and the 20 confidential reports of the applicant were before the Public Service Commission as he was the only candidate serving under the Public Service Law of 1967 (Law 33/67), whereas the other candidates, including the interested parties, were serving under the Public Education Service Law of 1969 (Law 10/69). 25 According to a comparative table showing particulars of the Government Service and the qualifications of the applicant and the interested parties, the applicant was appointed as a Clerical Assistant, General Clerical Staff (Unestablished) on 13.8.1956 and was made permanent on 1.3.1958. On 1.2.1966 he was 30 promoted to Clerk 2nd Grade and on 1.12.1967 he became a Secretary/Library Supervisor in the Ministry of Education. His qualifications are the following: (i) Diploma in Byzantine music 1961-1962; 35 (ii) Participation in a UNESCO Course for Teachers of Librarianship from 1.8.1970 to 30.11.1970; and (iii) MA of Library Studies 1976. Interested party ElliConstantinou wasappointed as a Second383 Malachtos J. Republic v. Petrides
(1984)ary Education School Mistress on 7.1.1965 and as from September 1973 she was serving on secondment in the Ministry of Education as anAssistant Cultural Officer. Her qualifications are the following: (
- i)Degree of the University of Athens (Philosophy) 1959 to 1964 and was registered as Post Graduate student at the Birkbeck College of the London University for two years. Interested party Stelios Hadjistyllis, was first appointed as a Secondary Education School Master (Temporary) on 16.10. 1967 and was made permanent in that post on 1.9.1968. At the time he applied for the said post he was serving on second ment in the Ministry of Education as an Assistant Cultural Officer. His qualifications are the following: 5 10 (
- i)Degree of the University of Athens (Philosophy) 1961- 15 1966; (
- ii)Master of Arts (MA) with distinction, of the University of Sheffield 1971-1973; and (
- hi)Studying for Ph.D. course. The trial Judge in his judgment, after summarising the arguments of counsel for the parties, in annulling the decision of the Public Service Commission had this to say at page 35 of the record: 20 " I have considered very carefully the submission of both counsel and I have decided for the reasons Τ shall give 25 later on, to deal only with the two important issues raised during the argument, viz. (
- a)whether the Commission erred in being unduly influenced from the interview; and (
- b)once, as it was said earlier, the applicant had an additional post-graduate qualification which was an advantage and 30 no reference at all was made by the Commission regarding that qualification. In 1975, dealing with the very same point, regarding the impression created by such interview and the weight to be attached thereto, 1 had this to say in Panayiotisloannou 35 Myrtiotis v. The Republic (Educational Service Commission),
(1975)3 C.L.R. 58, at p. 68:384 \ 3 C.L.R. 5 10 15 20 25 30 35 40 Republic v. Petrides Malachtos J . 'However, there is a further point which is worrying me in this case, because in one of the minutes of the Committee, during the interview of the many candidates who appeared before them they stated that they have also taken into account the impression created by such candidates. Regretfully, no specific reference was made with regard to the interested parties and the applicant, and although I do not underestimate their difficulties, nevertheless, once the Committee in promoting the two interested parties in preference and insteadoftheapplicant, took that also into consideration, one would have expected a note to have been made of their impressions regarding the three candidates. Of course, I do not want to be taken that 1 do not approve of such a practice, because certainly theCommittee,in considering themerits, qualifications and experience of a candidate may also take into account the impression created by such candidate at the relevant interview. However, I would like to point out that such interview should be held only as a way of forming an opinion about the possession by the candidates of the required qualifications, and undue weight should not, therefore, be placed on the impression created by such interview1 ". In Andreas Triantafyllidesand Others v. The Republic(Public Service Commission)
(1970)3 C.L.R. 235, Triantafyllides J., as he then was, had this to say on this point:"It should be observed that it was' not right to treat the performance at the interviews as something apart from the merits, qualifications and experience of the candidates; it was only a way of forming an opinion about the possession by the candidates of the said basic criteria; and not the most safe way because, inter alia, of the necessarily rathershortdurationofeachinterviewandofthe undeniable possibilities of an adroit candidate making the Commission think more highly of him than he deserves or of a timid ornervouscandidate not beingable to showhisreal merit.. See also the case of Andreas Savva v. The Republic of Cyprus, through The Public Service Commission, not yet reported dated 22nd November, 1980,in which Ihave cited and reviewed a number of cases". 385 / Malachtos J. Republic v. Petrides
(1984)Thetrial Judgethen, onthefirstissueasto whethertheCommission erred in being unduly influenced from the interview, concluded as follows: "In the light of thesejudicial pronouncements and because theCommissionhasgivenundueweightontheperformance of the candidates during the interview, I find myself in agreement withthesubmission ofcounselfor theapplicant, that theCommission haserredinlawingivingundueweigh to the performance, and acted contrary to the well settled principles of administrative law". 5 10 No doubt, the Commission in considering the merits, qualifications and experience and, generally, the suitability of a candidate to a given post, should also takeinto account theimpression created by such candidate at the relevant interview. Wedo not, however, agreewith the proposition that suchinter- 15 viewshould beheld only asa wayofforming an opinion about the possession by the candidates of the required qualifications. In the case in hand, wemust say straight away that there is nothing in the minutes ofthe Public Service Commission of the 17th December, 1977, when the decision to appoint the two 20 interested parties was taken, indicating that undue weight was placedontheimpressionofthecandidatescreatedbysuchinterview, but, on the contrary, weare of the view that the Public Service Commission placed the proper weight which the facts and circumstances of the case deserved. 25 On the second issue as to whether the Commission had to make specific reference regarding the additional qualifications of the applicant, the trial Judge had this to say at page 37 of the record: "Turning now to the second question as to whether the 30 Commissionhasfailed tocarryoutaninquiryastowhether the applicant possessed a post-graduate qualification, unfortunately nothing appears in the minutes of the Commission, and no one made any reference at all to it during their deliberations. Indeed, I would go further and state 35 that although reference was made by the Commission in the minutes to the personal files and the annual reports of the candidates already in the service, nevertheless, counsel for the respondent, quite rightly in my view, 386 3 C.L.R. 5 10 15 20 25 30 35 Republic v. Petrides Malachtos J. conceded that the only documents before the Commission were those of the applicant only, which showsin my view that no proper inquiry hasbeen carried out bythe Commission. If authority is needed I think the case of Vasso Tourpeki v. The Republic (Public Service Commission)
(1973)3 C.L.R. 592 provides the answer. Mr. Justice A. Loizou dealing with this point, said at pp. 602, 603:'The general reference to the qualifications of all the candidates serving in the post, does not, in my view, sufficiently disclose whether such material fact, as the possession or not, of a qualification possibly constituting an additional advantage was duly inquired into, and in particular inviewof thefact that the details of this course were not in the relevant file before the Commission, but in the possession of the Ministry. Consequently, 1 find that the Commission has not conducted the sufficiently necessary inquiry into such a most material factor and, therefore, it exercised its discretion in a defective manner so the sub-judice decision of the respondents having been arrived at contrary to the accepted principles of Administrative Law and in abuse or excess of powers, is null and void and of no effect whatsoever. Moreover, the outcome of such inquiry should have appeared in the reasoning of the sub judice decision and in case it was found by the Commission that the diploma possessed by the applicant was constituting an advantage, then convincing reasons should have been given for ignoring it, inasmuch as the interested party was holding the lower post on secondment, as against the applicant who had been holding same substantively, such preferment, as already stated, constituting an exceptional course. I, therefore, annul the decision for lack of due reasoning which makes the sub judice decision contrary to law and in excess and abuse of power' ". Before proceeding to consider the second issue, we must say that the statement by the trial Judge that "the only documents before the Commission were those of the applicant only", is 387 Malachtos J. Republic v. Petrides
(1984)not accurate. What counsel for the Republic conceded was that as regards the personal files and the confidential reports only those of the applicant were before the Public Service Commission. But before the said Commission were also the applications of all the candidates, including those of the applicant 5 and the interested parties. In these applications, among other things, the qualifications and the relevant certificates of the candidates, their profession or occupation from completion of their education, their Government service and other relevant requirements, appear. Photocopies of the applications of the 10 interested parties were produced before us at the hearing of this appeal. It is clear from the contents of these applications and the documents attached thereto, that both interested parties possess the additional qualification provided by the scheme of service and that at the time they were educationalists serving 15 on secondment as Assistant Cultural Officers in the Ministry of Education. In fact, as regards interested party Elli Constantinou the following is stated in a Certificate from Birkbeck College of the London University: "1writeto certify that Mrs. ElliConstantinou wasregistered 20 for two years from October, 1968 till September, 1970, as a post-graduate student of this College for the degree of M. Phil, in the University of London. During these two year's she pursued her studies diligently, regularly and I very much regret that she had to interrupt them for family rea- 25 sons. I would recommend her without hesitation for any post calling for scholarship, judgment, common sense and hard work." Asregardsinterested party Hadjistyllis, besides beinga student for his Ph. D.degree, a copyof a Certificate from the University 30 of Sheffield, attached to his application, reads as follows: "It is hereby certified that Stylianos Achilleos Hadjistyllis having fulfilled the requirements prescribed by Ordnances and after due examination, was admitted to the degree of M.A. with distinction, ofthis University on 29th November, 35 1973." Although the said applications were not produced before the trial Judge, all the information required to the effect that the interested parties possess the additional qualification appears in 388 3 C.L.R. Republic v. Petrides Malachtos J. the comparative table, which was before the trial Judge, and which is usually prepared on the basis of the documentary and other evidencebefore thePublic ServiceCommission to facilitate the proceedings at the trial. 5 That the interested partiespossessed the additional qualifications was all along the argument of Counsel for the Republic before the trial Judge. In fact, the trial Judge in his judgment, with reference to the qualifications of the interested parties, records verbatim what is stated in the comparative table on the 10 issue of qualifications. Itisclearfrom thejudgment of thetrial Judge that, in dealing with the second issue, i.e. the additional qualification of the applicant, took it for granted that the interested parties did not possess this additional qualification, inspite of the fact that as it 15 is stated earlier on in this judgment, in dealing with the qualifications of the applicant and theinterested parties he cited verbatim the contents of the comparative table. On the assumption that the interested parties did not possess the additional qualification, the trial Judge relied on the Tourpeki case, supra, in 20 support of his view that no proper inquiry was carried out and no duereasoning was given bythe Public ServiceCommission as to why they did not select the applicant instead of the interested parties. In the case in hand, however, both the applicant and the in25 terested parties possessed the additional quaUfications and so no specific reference was required to be made by the Public Service Commission in its decision to the additional qualification of the applicant. The case of Tourpeki, supra, is, therefore, distinguishable. 30 35 A. Loizou J. in a similar case, where again the respondent in thisappealwasinvolved, namely,SavvasL. PetridesandAnother, v. The Republic through the Public Service Commission
(1982)3 C.L.R. 914 at page 924 had this to say: "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 the totality of therequirements of the schemeof serviceinrelation to each of them and his qualifications. Once therefore, this addi389 Malacbtos J. Republic v. Petrides
(1984)tional qualification was part of those required under the scheme of service, and the respondent Commission stated that it had inquired into them, it cannot be validly argued that the matter was not duly inquired into and considered by the respondent Commission. There is, on the contrary nothing to suggest that they omitted to examine same. 5 The case therefore of Tourpeki (supra) is distinguishable asin that case the applicant appeared to possess a qualification which might be considered under the relevant scheme, an additional advantage, which was not possessed by the 10 interested party chosen in her stead and no reasons were given for so ignoring such an advantage. No doubt in the present case, the Commission carried out a due inquiry and gave sufficient reasons on the subject." The trial Judge, after dealing with the two issues as herein- 15 before set out, proceeded further and decided that he would annul the decision of the Public Service Commission for lack of due reasoning also. At page 38of his judgment the following is stated: "But I would go further and state that in the present case, 20 and inviewof thefact that theCommissionhadbeforeit the personal file of the applicant, I think, it was bound to give due reasoning why the applicant was not preferred. If further authority is needed on this point I think the case of Kyriacos G. Bagdades v. The CentralBank of Cyprus
(1973)25 3 C.L.R. 417, makes it very clear that reasons are needed. In delivering thisjudgment I had thisto say at pp. 428,429: ' I think I ought to reiterate what I said inPapazachariou v. The Republic,
(1972)3 C.L.R. 486, that duereasoningmustbemore strictly observedinthe case 30 of adecision having been taken by a collective organ, and particularly when such decision is unfavourable to the subject. The whole object, of course,of such rule is to enable the person concerned aswell as theCourt, on review, to ascertain in eachparticular casewhether the 35 decision is well-founded in fact and in accordance with the law. HadjiSawa v. The Republic
(1972)3 C.L.R. 174"' 390 3 C.L.R. Republic v. Petrides Malachtos J. It is clear that the trial Judge based his decision on this issue againontheassumptionthattheinterestedpartiesdidnot possess the additional qualification and, consequently, according to the established principles of administrative law, since the applicant 5 had better qualifications cogent and specific reasons should appearinitsdecision asto whytheapplicant wasnotselected for appointment which, as we have already said, is not the case. 10 15 20 25 30 Before concluding our judgment, we shall deal briefly with two points raised in this appeal by counsel for the respondent which were also argued before the trial Judge, namely, the absence of the Director-General of the Ministry of Education from the relevant meeting of the Public Service Commission and the fact that the personal files and confidential reports of the interested parties were not before the Commission. On the above points counsel for the respondent submitted that the absence of the Director, as well as the absence of the files of the interested parties, resulted in the lack of due enquiry and due reasoning bythe PublicServiceCommission. Hefurther argued that the Cultural Officer of the Ministry as it appears from the minutes of the meetingof the 17th December, 1977,did not only helptheCommission attheinterview ofthecandidatesby putting questions to them but proceeded further and recommended only two candidates, namely, Eleni Nikita and Elli Constantinou who wereworkingunderhim. This,headded, placedthe respondent in this appeal in a disadvantageous position. Had the DirectorGeneral been present, certainly he would recommend his client for appointment to the post in question who had excellent confidential reports. He also argued that all the material required for reaching ajust and proper decision wasnot before the Commission due to the absence of the files of the interested parties. In dealing with the allegation of counsel that the Cultural Officer recommended for appointmentthetwo interestedparties, we must say that this is not borne out from the minutes of the Commission, but, on the contrary, it is clear from the said mi35 nutes that after the Commission selected the two interested parties and Eleni Nikita as the most suitable candidates, the Cultural Officer expressed the viewthat he preferred Eleni Nikita instead of Stelios HadjiStyllis. This view was not followed by the Public Service Commission and so it cannot be said that the 40 opinion of the Cultural Officer, in any way influenced its deci391 Malachtos J. Republic •. Petrides
(1984)sion. Wearealsooftheviewthat theabsenceofthefilesofthe interested parties before thePublic ServiceCommission did not affect theroot ofthematterasbesidesthepostinquestionbeing a first entry post, all the required material for a proper inquiry wasbefore the Commission and wasincluded in, or attached to 5 the applications of the candidates. In thepresentcaseit isclearfrom thematerial before usthat the Public Service Commission evaluated correctly the qualifications and generally, the suitability of the candidates having dulyenquiredintothematter. Thisisobviousfrom itsdecision 10 wherefull reasonsaregivenastowhytheyselectedtheinterested parties. For the reasons stated above we allow the appeal. On the question of costs we make no order. Appeal allowed. No order asto costs. 15 392