← Κύπρος

clr/1984/1984_3_554.pdf

(1984)1984 April Π [STVLIANIDES, J.] IN THEMATTER OFARTICLE 146 OFTHE CONSTITUTION ANTONIS SKAPOULLIS, Applicant, v, THE REPUBLIC OF CYPRUS, AND/OR THE PUBLIC SERVICE COMMISSION, Respondents. (Case No. 88/83). ANDREAS KYPRIANOU, Applicant, v. THE REPUBLIC O F CYPRUS, AND/OR THE PUBLIC SERVICE COMMISSION, Respondents. (Case No. 99/83). Public Officers—Promotions—Annual confidentialreports—Six month­ ly reports on officers serving on probation—They may, in the absence of annual confidential reports, be used to evaluate the performance of the candidatesduring their short period of service —And existence of annual confidential reports is not a prere5 quisite for promotion if a candidatepossesses the qualifications laid down in the scheme of service andfulfils all other require­ ments—Section 44(l)(
  1. c)of the Public Service Law, 1967 (Law 33/67). Public Service Law, 1967(Law33/67)—Constructionof section44(l)(
  2. c)of the Law. Public Officers—Promotions—Schemes of service providing for "four 554 10 3 CX.R. Skapoullis and Another v.Republic years experience out of whichat least three in thepublic service" —Notion of "experience"—"Experience in the public service"" should be distinguished from "service"—Whether service on contract satisfies above requirement. 5 Administrative Law—Misconception of fact—Administrative Judge in doubt regarding the existence or not of factual misconception —Entitled to annul the relevant administrative action in order to enable the Administration to ascertain the correctfacts in a manner leaving no room for doubt. 10 Public Officers^Promotions—Public Service'Commission—Labouring under a misconceptionas to the qualifications of one of the interested parties—His promotion annulled. 15 These recourses were directed against the decision of the respondent Commission to promote the interested parties tc the post of Data Processing Officer. Counsel for the applicants mainly contended: 20 (
  3. a)That the sub judice decision was contrary to section 44(l)(c)* and
(3)** of the Public Service Law, 1967 (Law 33/67) in that two of the interested parties had no confidential reports for the last two years. (
  1. b)That the interested parties did not have the qualifications of "at least 4 years experience out of which at least three in the public service'*, envisaged by the schemes of service. 25 30 (
  2. c)That the Commission acted under a misconception of fact because it compared the annual confidential reports of permanent officers with the 6-monthIy reports of officers on probation and because it wrote in its decision that interested party Aristidou was the holder of a University Degree whereas in fact he was the holder of a Diploma of Programmer of the Ministry of Education of Greece and a Diploma of the School of Statistics (Highest Industrial School) of Pireaus. Section 44(lXc) provides that no officer shall be promoted to another office unless he has not been reported upon in the last two annual confidential reports as unsuitable for promotion. Section 44
(3)provides that in making a promotion the Commission shall have due regard to the annual confidential reports on the candidates. 555 Skapoullis and Another \. Republic
(1984)Contention (a) was based on the fact that in respect of two of the interested parties, who were serving on probation, there were only 6-monthly reports in accordance with section 43
(2)of Law 33/67but no annual confidential reports; and contention <b)was based on the fact that the interested parties were sening 5 in the Data Processing Department on contract. Hi'ld, (I) that the true construction of s.44(l)(
  1. c)of Law 33/67 is that an officer, whowas reported asunsuitable for promotion in any of the last two annual confidential reports, isnot eligible for promotion; that the existence of two annual confidential 10 reports is not a prerequisite for promotion if the applicant possesses the qualifications laid down in the scheme of service for that office and fulfils all other requirements; that had it been otherwise then all officers on probation would beexcluded from promotion; that this isnot the object of the legislator and 15 if there is any ambiguity—and there isnone—this is determined infavour ofthesubject—the civilservant:accordingly contention (
  2. a)must fail.
(2)That "experience"' contains the notion of knowledge acquired through acting in a certain capacity; that "experience 20 in the public service" should be distinguished from "service" and that it may be acquired by discharging duties; that it isnot necessary to actually hold a post in a substantive capacity; that had the intention been as submitted by counsel, it would have been clearly expressed by the use of the word "service" 25 in place of "experience"; that all five candidates possessed the required qualifications at the material time, i.e. within oneweek of the receipt by the Public Service Commission of the request for filling these promotion vacancies, i.e. on 8.9.1982; and that the Departmental Board, and ultimately the Commission, 30 rightly considered the interested, parties and the applicant Kyprianou as candidates satisfying the requirements under the scheme of service and the Law; accordingly contention (b) must fail.
(3)That the confidential reports should be legarded as con- 35 stituting part of the overall picture of the merits of each candidatewhichtheCommissionhastoweighasawhole;that though the confidential reports of the officers on probation are not prepared stricto sensu for the same purpose as annual con556 3 C.L.R. Skapoullis and Another v. Republic fidential reports of the permanent officers, yet they are a picture of the merits of an officer; that they may, in the absence of annual confidential reports, be used to evaluate the performance of the candidates during their short period of service; and that there is nothing wrong in taking them into consideration in the evaluation of a candidate for promotion. 10 15 20
(4)That a misconception as to facts may consist of either the taking into account of non-existing facts or the non-taking into account of existing facts; that the content of the relevant part of thedecision ofthe Commission betrays that itwas labouring under a misconception as to the qualifications of interested party Aristidou; that, therefore, the factual position on which the decision with regard to Aristidou was based, was definitely incorrect in a material respect—his qualifications—notwithstanding the fact that the personalfileswere before the Commission; that when an administrative Judge is in doubt regarding the existence or not of factual misconception, he is entitled to annul the relevant administrative action in order to enable the Administration to ascertain the correct facts in a manner leaving no room for doubt; accordingly the decision to promote interested party Aristidou must he annulled and the recourse will partly succeed. Promotion of interested party Aristidou annulhd. Oiherwisc recourse dismissal. Cases referred to: Republic v. Aristotelous and others
(1982)3 C.L.R. 497; 30 35 Papapetrou v. Republic. 2 R.S.C.C. 61 at p. 70; loannides v. Republic
(1972)3 C.L.R. 318 at pp. 324-325. Mikellidou v.. Republic
(1981)3 C.L.R. 461; Christides v. Republic
(1966)3 C.L.R. 732; lordanou v. Republic
(1967)3 C.L.R. 245; Evangelou v. Republic
(1965)3 C.L.R. 292; loannou v. Republic
(1977)3 C.L.R. 61; Theodossiouv. Republic, 2 R.S.C.C. 44 at p. 47, Pattichis and Another v. Republic
(1968)3 C.L.R. 374; Soteriadou and Others v. Republic
(1983)3 C.L.R. 921; 557 SkapouIUs and Another v. Republic
(1984)Georghiades and.Another v. Republic
(1970)3 C.L.R. 257at p.269; Georghiou v. Republic
(1976)3 C.L.R. 74at pp.82, 83; Photiades& Co.v. Republic,1964C.L.R. 102; National Bankof Greece S.A.v. Republic
(1970)3 C.L.R. 430. 5 Recourses. Recourses against the decision of the respondent to promote the interested parties to thepost of Data Processing Officer, 1st Grade in preference and instead of the applicants. A. S. Angelides, for the applicants. 10 R. Gavrielides, Senior Counsel of the Republic, for the respondents. Cur. adv. vult. STYLIANIDES J. read the following judgment. The Public Service Commission filled three vacancies of Data Processing 15 Officer, 1st Grade. They are promotion posts. There were 5 candidates. The two applicants having not been selected for promotion filed these recourses whereby they seek the following relief:- "
(1)A declaration of the Court that the decision and/or act 20 of the respondent to promote Aristos Aristides, Costas Kalopsidiotis and Katerina Perikleous to the post of Data Processing Officer, 1stGrade, is null and void and of no effect whatsoever;
(2)A declaration that the refusal and/or omission of the 25 respondent to promote theapplicants tothepost of Data Processing Officer, 1stGrade, isnull and void and ofno effect, and what was omitted must be done". Counsel fortheapplicants relied onthefollowing arguments:
  1. Two of the promotees, interested parties, who were 30 appointed on probation to the immediate lower grade (2nd Grade) on 15.10.80, were noteligible for promotion as they did not have two annual confidential reports, in violation of s.44 of the Civil Service Law, No. 33/67; 558 3 C.L.R. Skapoullis and Another v. Republic StyUanides J.
  2. Thedecision oftheCommissionisfaulty asit lackeddue inquiry into all the relevant factors; and,
  3. The respondent Commission failed in its paramount duty toselectthemost suitablecandidate for promotion. 5 GROUND No. 1: "Promotion"isdefined in s.28of the PublicServiceLawand wasjudiciallyconsidered,interaha,in TheRepublicofCyprus v. Charilaos Aristotelous and Others,
(1982)3 C.L.R.
  1. "Promotion posts" in a Government scheme of service does 10 not connote anyrestriction ofeUgibilityto holders of particular posts in the public service but merely implies the exclusion of peisons holding no public posts in theimmediate lower grade. Applicantin RecourseNo.99/83andinterested partiesKalopsidiotis and Aristidou were appointed as Data Processing 15 Officers, 2nd Grade, on probation on 15.10.80, and they were confirmed on 15.10.
  2. (See Official Gazette dated 31.12.82, Notification No. 2934). During the two years of their probationconfidential reportsweresubmittedevery6monthsincompliance with s.45
(2)of the Law. The final report of the pro20 bationary period contained a definite recommendation for their confirmation. Theforms ofthe ordinary confidential reports for thepermanentcivilservants,whoarenot onprobation, aredifferent from those submitted for officers on probation. The confidential 25 teports on all officers, except those on probation, are annual. The Commission in making a promotion shall have due regard to the annual confidential reports on the candidates - (section 44
(3)). No officer shall be promoted to another office unless hehasnot been reported upon in the last twoannual confiden30 tial reports as unsuitable for promotion - (section 44(l)(c)). It was vigorously argued bycounsel for the applicants that it isaprerequisitefor thepromotionofanyofficer tohaveatleast two annual confidential reports, and as two of the promotees, 559 Styliaaides J. Skapoullis and Another v. Republic
(1984)interested parties, lacked this qualification, the sub judice deci­ sion is contrary to Law. It is correct that the six-monthly reports for the officers on probation aim at the ascertainment of the suitability of thepro­ bationer for confirmalion whereas the object of the annual con- 5 fidential reports onall otherofficers is thesuitability of the officer for promotion and in general for the advancement in his career and the achievement of the objective of the public service. The true construction of s.44(l)(
  1. c)is that an officer, who was reported as unsuitable for promotion in any of the last two 10 annual confidential reports, is not eligible for promotion. The existence of two annual confidential reports is not a prerequisite for promotion if the applicant possesses the qualifications laid down in the scheme of service for.that office and fulfils all other requirements. The true meaning of s.44(l)(
  2. c)is that an officer 15 is precluded from promotion if he was reported as unsuitable. Had it been otherwise, then all officers on probation would be excluded from promotion. This is not the object of the legisla­ tor and if there is any ambiguity -and I see none -this is deter­ mined in favour of the subject - the civil servant. 20 The schemeof service provides thattherequired qualifications are at least 4 years' experience out of which at least three in the public service. The applicant in Recourse No. 88/83 was ap­ pointed in the public service on 1.12.78; the applicant in Re­ course No. 99/83 was appointed on probation on 15.10.80; 25 interested party Perikleous was appointed on 1.12.78 and inte­ rested parties Aristidou and Kalopsidiotis were appointed on probation on 15.10.80. The Departmental Board in its repoit dated 6.12.82,at page 2, noted the following:"Σχετικάμετηνπείρατωνυποψηφίωνστήμηχανογράφηση η οποία ναπεριλαμβάνειΑνάλυση Συστημάτων καί/η Προγραμ­ ματισμό όπως απαιτείται απότό σχετικό ΣχέδιοΥπηρεσίας η Τμηματική Επιτροπήεπιθυμεί ν' αναφέρειπώς οι υποψή­ φιοι πέραν της πείραςτους στη Δημόσια Υπηρεσία έχουν 35 και την πιο κάτω επιπρόσθετηπείρα: Αριστείδου Άριστος Εργάσθηκε στο Τμήμα Μηχανογραφικών Υπηρεσιών 560 30 3 C.L.R. Skapoullis and Another v. Republic Stylianides J. σαν Προγραμματιστής με σύμβαση για την περίοδο 2.1.1979-14.10.1980. Εργάσθηκε επίσης για δύο πε­ ρίπου χρόνια σαν Προγραμματιστής στο Υπουργείο Παιδείας της Ελλάδας. Καλοψιδιώτης Κώστας 10 Εργάσθηκε στο Τμήμα Μηχανογραφικών Υπηρεσιών σαν Προγραμματιστής με σύμβαση για την περίοδο 2.1.1979-14.10.1980. Εργάσθηκε επίσης για δύο χρόνια σαν Προγραμματιστής/Αναλυτής στο Μεσογειακό Κέντρο Ερευνών. Κυπριανού 'Ανδρέας 15 20 25 Εργάσθηκε στο Τμήμα Μηχανογραφικών Υπηρεσιών σαν Προγραμματιστής με σύμβαση για την περίοδο 2.1.1979-14.10.1980. Εργάσθηκε επίσης για τρεις μήνες σαν Προγραμματιστής στο Μεσογειακό Κέντρο Ερευνών και για τρία σχεδόν χρόνια στο Κέντρο Επιστημονικών Ερευνών του Υπουργείου Παιδείας της Τσέχικης Δημοκρατίας". ("In relation to the experience of the candidates in Data processing includes analysis of programmes and/or programmization as required by the relative scheme of service the Departmental Committee wishes to state that the candidates in addition to the experience in the public service have the following additional experience. Aristidou Aristos 30 Worked in the Data Processing Services Department as a Programmer on contract for the period 2.1.79 14.10.80. He worked also for about two years as a Programmer in the Ministry of Education in Greece. Kalopsidiotis Costas 3 5 Worked in the Data Processing Service Department on contract for the period 2.1.79 - 14.10.80. He worked also for two years as a Programmer/Analyst at the Mediterranean Research Centre. 561 Styliaotdes J. SkapouUis and Another v. Republic
(1984)Kyprianou Andreas Worked in the Data Processing Services Department as a Programmer on contract for the period 2.1.79 14.10.
  1. He worked also for three months as a Programmer at the Mediterranean Centre and for almost threeyears at theCentreof Science Research of the Ministry of Education of the Czechoslovak Republic")· 5 The scheme provides for at least three years' experience in the public service. "Experience" contains the notion of knowledge 10 acquired through acting in a certain capacity. (TheodhorosG. Papapetrouv. TheRepublic,2 R.S.C.C. 61,at 70). "Experience in the public service" should be distinguished from "service". Experience may be acquired by discharging duties. It is not necessary to actually hold a post in asubstantive capacity. Had 15 the intention been as submitted by counsel, it would have been clearly expressed by the use of the word "service" in place of "experience". All five candidates possessed the required qualifications at the material time,i.e. within one week of thereceipt bythe Public Service Commission of the request for filling these 20 promotion vacancies, i.e. on 8.9.
  2. In view of the foregoing the Departmental Board, and ultimately the Commission, rightly considered the interested parties and the applicant Kyprianou as candidates satisfying the requirements under the scheme of service and the Law. 25 GROUND No. 2: Failure to make a due inquiry causing lack of knowledge of material facts amounts to misconception of fact. (loannidesv. The Republic,
(1972)3C.L.R. 318, at pp. 324-325; Mikellidou v. The Republic,
(1981)3 C.L.R. 461). A misconception as to 30 facts mayconsist ofeither thetakinginto account of non-existing facts or the non-taking into account of existing facts. (The Judicial Control of DiscretionaryPowers by Economou, 1965, p. 243; Chrislides v. The Republic,
(1966)3 C.L.R. 732; lordanou v. The Republic,
(1967)3 C.L.R. 245). 35 The argument on this grourd was based on> (
  1. a)Comparison of annual confidential reports of permanent officers with 6-monthIy reports; 562 3 CX.R. 5 10 Skapoullis and-Another v. Republic Styliaoides j ; (
  2. b)The Commission wrote in· its decision that interested' party Aristidou.was-theholder- of a University Degree "Πανεπιστημιακού Πτυχίον"'whereas'in"fact he is the holder of'a' Diploma·of Programmer, of. the-Ministry of Education of"Greece1and";a1Diploma of the School of Statistics (Highest Industrial'SchooI)of Pireaus;and' (c)> The Commission' erroneously considered"' that' Peri-· kleousi was graded' "excellent"' irv her"6-monthly con­ fidential reports in 1980-8Ρ whereas she' was only "Very Good", and-the"recommendations^of the'Head5 of the Department'were,inconsistent:with" the'record'. The'claihr of officers" to promotion!is'considered;on"the'basis^ of merit., qualification- and!,seniority -- (section'.44
(2)' of liaw33/67): 15; The-confidential'· reports*should",be' regarded*· us constituting! partof'thc overalTpicture^of the'merits'of each*candidatc"which· the Commission has to-weigh1as a-whole'-^Evmigclbu v. The Republic, (-1965>*3*fTIli.Ri 292'; Ibantwir.v: The-Republic, (-1977) S^'Ii.Rl 61): TKough'tKe'confidential:reports'-of'tlie:officcrs"on20' probatio^are'notipreparedistricto'sensu'for thesame purpose-as'* annual*confidential reports ofi'the*permanent1officers;, yet·'they are:a picture.offthe:merits»ofi'an.officer:- They may,. ihilhc^ar3: sence of annual',confidential' reports;. Be"used· to^evaluate'lHe performance:of"tHe;candidates during tKeir'sKort'period of scrvi-25 ce: There:is"nothing wrongMn.taking.tHemuhto consideration' in the-evaluation, of·'a. candidates for promotion" Interested3,party Aristidou, as- it emerges' from" His·personal" : file;is.the'liolder:of'a-certificateiissued bythe*Ministry/of:Educa-tioniof "Greece; .certifyingitHatiKe^graduated'atprivate'vocational· 5 1 30 school'of;"secondary; education that*^equivalent' to ·tHe-public r vocati6narschools -ofi'the;same.'grade: Hens^aiso^tlie.'holdcrrof' a'Diplomaiof'the'Scfiool'OffStatistics^wh'iclr'functibns^underrthc supervision'! ofi'the' Highest! Industrial' School1of/ Pireaus:. Γηthe suB-'judice^ecisibn*' wcreadV 'ΌΓ;ΠφΐκΧέους;και:'Αριστείδουϊ 35 κατέχουν- πανεπιστημιακά, πτυχία ένω ο Σκαπούλλης' κατέχει» τό· Higher' National" Diploma":. (English"· translation:. *Ρΐ.*-· 563 ; Stylianides J. Skapoullis and Another τ. Republic
(1984)rikleous and Aristidou are the holders of university degrees whereas Skapoullis possesses a Higher Natio­ nal Diploma"). Perikleous is the holder of a B.Sc. Degree in Computing and Statistics. The personal file of Aristidou was before the Commission. Nevertheless, the context of the relevant part of the decision above-quoted betrays that the Commission was labouring under a misconception as to his qualifications. Itdoes notsimplymisdeScribe his certificates but it compares his academic qualifications with those of Ska­ poullis, upgrading thereby Aristidou and undergrading Skapoullis qualification-wise. 5 10 In the minutes of thesubjudice decision Perikleous is recorded as "Excellent" for 1980-81 whereas in fact she was rated with 9 "Very Good" and one"Good" for 1980, and9"Very Good" and 3 "Good" for 1981. Even with thiscorrectionof theassessment, 15 her confidential reports continue to be the best. The Commis­ sion had before it the file of the confidential reports. Towards the end of the hearing of these cases counsel for the respondents produced anextract from theminutes of themeeting of the Commission of 12.11.83 whereby it is explained how this 20 error of record was committed. Had 1 entertainedany doubt as to the correctness of thisexplanation, I wouldhave had no alter­ native but to annul this promotion. The Commission takes into consideration the recommenda­ tions of the Head of the Department. If it is found that such 25 recommendations are inconsistent with the overall picture pre­ sented by the confidential reports of the applicants and the in­ terested parties, the subjudice decision has to be annulled as the Commission acted under a misconception of fact. I went through the personal files and confidential reports of 30 the parties, with the exception of the personal file of Perikleous, which was not produced, and I could find no inconsistency between the recommendations of the Head of the Department before the Commission and the record as appearing in the said files. GROUND No. 3: I need not repeat that the paramountduty of the Commission is to promote the most suitable candidate for the interest of the 564 35 3 C.L.R. Skapoullis and Another >. Republic Stylianides J service and the public. In doing so the Commission should decide whoisthe most suitable amongst the qualified candidates on the totality of the circumstances pertaining to each one ol them - (Tlieodossiou v. The Republic, 2 R.S.C.C. 44, at p.47), 5 So long as the Authority exercises its discretionary power ir conformity with the statutory provisions and the rules and requirements of administrative law generally, including good faith the Court cannot interfere. It cannot substitute its own opinior astothe meritsofthecandidatesfor that ofthepromoting autho10 rity - (Pattichis and Another v. The Republic,
(1968)3 C.L.R 374; Soteriadou and Others v. The Republic,
(1983)3 C.L.R 921). When the Public Service Commission selects a candidate or the basis of comparison with others, it is not necessary to show 15 in order tojustify hisselection, that he wasstrikingly superior tc the others. The administrative Court cannot intervene in ordei to set aside the decision regarding such selection unless it is satisfied, by an applicant in a recourse before it, that he was ar eligiblecandidate who wasstrikingly superior to the one whowas 20 selected, because only in such a case the organ which has madi the selection foi the purpose of an appointment or promotion is deemed to have exceeded the outer limits of its discretion and. therefore, to have acted in excess or abuse of its powers. Th« onus of establishing his striking superiority lies always on the 25 applicant in a recourse. (Evangelou v. 77/? Republic,
(1965)3 C.L.R. 292, at 299-300; Georghiades and Another v. The Republic,
(1970)3C.L.R. 257, at 269; Georghiou v. TheRepublic.
(1976)3 C.L.R. 74, at 82, 83). In view of what I have endeavoured to explain in this judg30 ment. Ifind that the factual position on which the aforesaid decision with regard to Aristidou was based, was definitely incorrect in ceitain material respect - his qualifications - notwithstanding the fact that the personal files were before the Commission. When an administrative Judge is in doubt regarding the 35 existence or not of factual misconception, he isentitled to annul the relevant administrative action in order to enable the Administration to ascertain the correct facts in a manner leaving no room for doubt -(Constontinosloannides v. TheRepublic(supra); 565 Stylianides J. Skapoullis and Another >. Republic
(1984)Stassinopoulos -. The Law of Administrative Acts,
(1951)305; Photos Photiades;& Co. v. The Republic, 1964.C.L.R. 102; Christides v. The Republic (supra); National Bank of Greece S.A. v. The Republic,
(1970)3 CL.R. 430). For the aforesaid reasons I decided to annul the decision to 5 promote,interested,party Aristidou.only. The recourse, therefore, partly-succeeds. Order is made accordingly but in all the· circumstances of the case·I:make no.order as to costs. Subjudice decisionpartly annulled. No orderas to costs. 566 10

🔗 Στην επίσημη πηγή

AI explanation based on the official legal text. Indicative, not a substitute for legal advice.