clr/1984/1984_3_567.pdf

(1984)superior qualifications which is not ths present case: that in view of the fact that both interested parties are superior in merit from the applicant, and in view of the superior qualifications of one of the interested parties over the applicant, even if the qualifications of the other interested party are more or less 5 equal to those of the applicant, the seniority of 5 months over both interested parties caimut tip the scales in favour of the applicant; and that, therefore, it was reasonably open to the respondent Commission to reach the sub judice decision: accordingly the recourse must fail. 10 Application dismissed. Cases referred to: Partellides v. Republic

(1969)3 C.L.R. 480; Menelaou v. Republic

(1969)3 C.L.R. 36 at p. 41; Theocharous v. Republic

(1969)3C.L.R. 318 at p. 323; !5 Georghiades andOthers v. Λ.public (i967)3C.L.R.653at p.666: HadjiSavva v. Republic

(1972)3 C.L.R. 174 at p. 225; Petridesv. Republic

(1983)3 C.L.R. 216; Demosthenous v. Republic

(1973)3 C.L.R.

1. Recourse. Recourse against the decision of the respondent to appoint and/or promote the interested parties to the post of Senior Instructor, Cyprus Productivity Centre in preference and in­ stead of the applicant. E. Lemonaris, for the applicant. 20 25 A. Papasavvas, Senior Counsel of the Republic, for the respondent. Chr. Triantafyllides, for interested party M. Themistokleous. Cur. adv. vult. 30 LORIS J. read the following judgment. The applicant in the present case applies for the following relief: "A declaration that Respondents' decision (dated 20.
2. 1982) to appoint and/or promote Messrs Michalakis Themi568 3 C.L.R. Constantinidcs v. Republic Loris J. stoclcous and Loucis Demosthcnous, to the post of Senior Instructor, Cyprus Productivity Centre, in preference and instead of the applicant is null and void and of no effect whatsoever". 5 The applicant holds his present post ofInstructor (permanent) at the Cyprus Productivity Centre with effect from 15.11.1978 having been appointed in the temporary post of Instructor on 1.5.1970,the latter date being also the date of his first appointment in the public service. 10 The Director-General of the Ministry of Labour and Social Insurance bya letter dated 7.4.1982 moved the respondent Public Service Commission, (The Minister of Finance consenting) with a view to filling inter alios four posts of Senior Instructors in the Cyprus Productivity Centre (vide Appendix I attached 15 to the opposition). In view of the fact that the post in question is a promotion post in a"not specialised office" the P.S.C.by its decision of
3. 5.1982 (vide Appendix 2 attached to the opposition) referred the matter to a Departmental Board set up pursuant to the pro2<~t visions of s.36 of the Public Service Law 1967, as amended (Law No. 33 of 1967) and the relevant regulations. After compliance with the relevant procedure the Departmental Board which was convened on 8.9.1982 decided and recommended, for promotion 8 (including the applicant) out 25 of the 10 candidates in alphabetical order (vide Appendices 3 and 4 attached to the opposition). The P.S.C. at its meeting of 15.10.1982 having before it the lecomnundations ofthe Departmental Board and other relevant materia], decided to examine the filling of the said 4 vacant 30 posts at a future meeting to be attended by the Diiector of the Productivity Centre(videAppendix 5 attached tothe opposition). The respondent P.S.C. on 20.10.1982 after hearing the iecommendations of the Director of the Productivity Centre proceeded in his absence to evaluade and compare the candidates; after 35 examining their confidential reports and their personal files and taking into consideration the report of the Departmental Board and the recommendations of the Director of the Productivity Centre, the P.S.C. reached itsdecision, which appears in Appen569 Loris J. Constantinides v. Republic

(1984)dix6attached to theopposition, byvirtueof whichthe following 4 candidates were promoted to the post of Senior Instructor as from 1.11.1982:

4. ARISTOU Thomas DEMOSTHENOUS Loucas THEM1STOCLEOUS Michalakis POYIADJIS Efthymios It is significant to note at this stage that the applicant in the present recourse impugnes the decision which refers to the appointment of Loucas Demosthenous and Michalakis Themi- 10 stocleous only. Their aforesaid appointment isbeingattached onthe following 4 grounds of law as set out verbatim in the application: " 1 . The Respondents failed in their paramount duty to select the best candidate thus acting contrary to law and in 15 abuse of powers. (Michael Theodossiou v. The Republic, 2 R.S.C.C. 44).
5. The Respondents disregarded Applicant's substantially greater seniority without cogent reasons thus acting contrary to law and in abuse of powers. (Costas Partel- 20 lides v. The Republic

(1969)3 C.L.R. 480). 3. The Respondents disregarded Applicant's superior merit, seniority and qualifications and have thus acted contrary to law and in abuse of poweis (s.44

(2)of Law 33/67).

1. Respondents decision is not duly reasoned and/or the 25 reasoning behind same iswrong in law and/or defective". The respondent Public ServiceCommissionfiledan opposition to the present recourse on 29.1.1983 where it is stated that "the decision impugned was reached at correctly and lawfully according to the provisions of the relevant law, with correct exercise 30 of the powers vested to the Committee by Law, and after the taking into consideration of all relevant facts and circumstances of the case". Interested party Loucas Demosthenous did not appear at all in the present proceedings inspite of the fact that present 35 application was duly served on him. 570 5 3 G.L.R. Constanttaides.v..Republic Loris J. Interested parly Michalakis, Themistocleous appeared.origin? ally in person and later,through his learned counsel·submitted a written address pursuant,to relevant directions of. this Court.. 5 Hl Learned counsel' for applicant submitted, a written, address, as well",as address in reply to the. written. address of the res­ pondent- and the interested party,, as aforesaid. Sevcral'appcndices, six in-number,- attached'to the.oppositionwere filed'by. the-respondent Commission which'include-apart from· the letters and decisions-mentioned above; the scheme·of service of the post of Senior-Instructor—Cypius. Productivity Centre, and'Jist of theservices and qualifications of theappHcanf and the. interested: panics. Finally, the respondents.filed.·
2. pcrsonal'files (Lof theapplicant; and 2;of;thc.respective interested-parties,and;3; files»containing. i5" the;Confidentialireports of;thc:appI:cant-and'the;two.-interested; parties. On,5.6.1984;at. the clarification·stage-no- other- evidence:was. adduced;or. any, other document,produced,by, any side.. 1'intend·to-examine.-together. thc.'firsf.tliree'.groundSiOn which, 20; the sub judice decision in being-impugned;and:in^the-first-place. 1.shall:deal1 very,briefly-with the legal'aspect' pertaining-these grounds:Section.44;of the-PtUblic;Service-Law,, 1967'(LawrNo..33-of; • 19.67)ι provides. as, follows:• 25·' "44.:(I),No.,officcr shalf.be.promotedito.another;office, unless— (a.y a-, vacancy, exists- in* that, office:; Provided; (b)^ he;possesses:the.qualiiicationsjaid;downrin,the.schemes; off service; for/ thatt office;.; 30" (c); he:has.-notibeen„reported;upon;ih;theJast two.annualj confidentiali reports, as: unsuitable; for- promotion: (d).

(2); The.claims-of- officers: to^promotion:shall!be-considered1. on- the- basis of merit; qualifications and seniority. 571! Loris J. Constantinides v. Republic

(3)In making a promotion, the Commission shall have dueregard totheannual confidential rcpoitson thecandidates and to the recommendations made in this respect by the Head of Department in which the vacancy exists.

(7)". Section 45 of Law 33/67provides for the prepaiation and submission of confidential reports whilst s. 46 thcieof deals with seniority of officers; it may as well be added heie that s.46 was amended by s. 5(a) of Law 10/83 but it must always be borne in mind that the sub judice decision was reached prior to the aforesaid amendment. 5 It was held asearly as 1961bythe then Supreme Constitutional Court of Cyprus in the case of Theodossiou v. The Republic, 2 R.S.C.C. 44 at p. 47 that "The paramount duly of the Public Service Commission in effecting appointments or promotions is to select the candidate most suitable, in all the circumstances 15 of each particular case, for the post in question. In doing so, the Public Service Commission should decide who is the most suitable among the qualified candidates on the totality of the circumstances pertaining to each one of them and should not adopt any ready-made rigid rule of thumb divorced 20 from the circumstances and necessities of each particular case". It was further decided in this case that the recommendation of a Head of Department is a most vital consideration which should weigh with the Public Service Commission in coming to a decision in a particular case and "such recommendation 25 should not be lightly disregarded". If, nevertheless the Public Service Commission comes to the conclusion not to follow the aforesaid recommendation "the reasons for taking such an exceptional course would be clearly recorded in the relevant minutes of the Public Service Commission". 30 It is well settled that seniority is not the decisive factor which regulates promotions; it should beduly taken into consideration and according to the Full-Bench case of Partellides v. The 572 !0 3 C.L.R. Coitslantinides v. Republic Loris J. Republic

(1969)3 C.L.R. 480 seniority ought to prevail "all other things being more or less equal'. If therefore merit and qualifications are superior, seniority alone could not tip the • scales in favour of a candidate for promotion. 5 10 Thepropositionthat in casesof promotion"merit should carry the most weight" even vis-a-vis superior qualifications is not devoid of authority (vide Menelaou v. The Republic

(1969)3 C.L.R. 36 at p. 41, Theocharousv. The Republic

(1969)3 C.L.R. 318 at p. 323). Turning now to the facts of this case: The sub judice decision appears in Appedix 6 attached to the opposition; being quite long I shall refrain from embodying it verbatim in the present judgment, confining myself in referring to passages from it where necessary. 15 As already stated earlier on in the presentjudgment, the task of the respondent P.S.C. was to select the four most suitable candidates for thepost of Senior Instructor, Cyprus Productivity Centre; the vacant posts were four and they were promotion posts. The Departmental Board which was set up pursuant 20 to s. 36of Law 33/67 and the relevant regulations, was convened on 8.9.1982 and having before it the required material including the relevant scheme of service (which appears in Appendix "D" attached to the opposition recommended eight out of the ten candidates; the applicant as well as the interested parties 25 were amongst those recommended. The respondent P.S.C. on 20.10.1982 after hearing the recommendations of the Director ofthe Productivity Centre proceeded to evaluade and compare the candidates; they examined the confidential reports and the personal files of all candidates 30 (the personal files and confidential reports of the applicant and the two interested parties in this case are exhibits before me) and taking into consideration the above, together with all other necessary material including the report of the Departmental Board and the recommendations of the Director reached 35 the sub judice decision. Although the applicant complains, (ground 2)that the respondent commission disregarded without cogent reasons his alleged greater seniority vis-a-vis the interested parties, it is true that 573 I-ciris .1. Constantim'dcs v. Republic

(1984)he also complains (ground 3) that his alleged superior merit and qualifications were disregarded as well. In particulai with regard to "qualifications" the applicant maintains in his written address in reply—and this he repeated at the clarification stage —that the Director of the Productivity Centre was wrong in 5 asserting- before the P.S.C. that the interested party Themistocleous- had superior qualifications than the applicant; this wrong statement of. the. Director—the applicant alleges—led the P.SIC., who accepted such statement as correct, to a misconception of fact which is a ground for annulment of the sub 10 judice decision. The qualifications-of applicant/and the interested parties appear in thc-lists attached to Appendix 3(attached to the opposition); those of applicant appear at page3of the list,those of interested party Themistocleous at page4'of the list and those of interested 5 party Dumoslhenour.. iit page 5 of the list under serial No.

1. Rurthcrmorc· the qualifications, embodied in the respective. certificates c.t.c, of ail"concerned appear in the personal files of'the-applicant and" the interested parties which were before the P.S.C. at the time the.sub judicedecision was taken and they -'* are:exhibits, before-me in the. present case. Having cxamincd.the qualifications of the applicant and those of.the interested parties in the present case I-hold the.view that· the'Director ofthe.Productivity Centre quite rightly stated before. the-P.S.C. that the qualifications-of interested party.Themisto- 25 cleous weresuperior to those of the applicant; his said statement is,quite consonant with the lists attached to appendix 3 and the material-contained in.the personal'files of the applicant and the interested parlies. As regards merit careful examination of the confidential. 30 reports indicates that the interested parties were superior to· the applicant throughout their seivice; in particular foi-the-last two years interested party Themistocleous was giaded with "7 excellent" and "5 very good",.for the year 1980 whilst for. the year 1981 he-was given "12 excellent"; interested partyDemo- 35 sthenoushas."5excellent"and"7very;good"for bothyears(1980 -1981):. As. regards interested party Demosthenous-it must also be.noted.that.the.Director of Productivity Centre evaluaded his merit for 1982 higher than that of Arghyrou (another candi574- 3 C.I.'?. Constantinides v. Republic Loris J . date, not a party to the present proceedings; vide appendix 6, page 3 under serial No. 5) who had "6 excellent" and "six very good" for 1980 and "7 excellent" and "5 very good" foi
2. 5 The applicant is graded for 1980 with'Ί excellent" and "11 very good." and for 198! with "5 r.xcr'k-.t" and "7 very good". Bearing in mind the above it is quite clear that as regards merit, interested party Thcmisioc'ucus has a striking superiority over the applicant whilst interested party Demosthenous can 10 be considered as having superiority over the applicant. '5 20 Now as regards seniority the applieant and both interested parties in the preccnt case were promoted to the permanent post of Instructor on the same day i.e. on 15.11.1978; it is a fact though that the applicant was appointed in the temporary post of Instructor on 1.5.1970 whilst both interested parties were so appointed on 1.10.1970 i.e. the applicant has a seniority of 5mouths over each one of the interested parties in the present ca^e. In connection with seniority I feel duty bound to mention at this stage that it is crystal clear from the sub judice decision itself that the respondent P.S.C. was at all material times well conversant with applicant's 5 months seniority over both inte­ rested parties; in fact the Director of the Productivity Centre himself has referred to such seniority (vide appendix 6). 25 In view of the fact ihat both interested parties are superior in merit from the applicant, and in view of the superioi qualifi­ cations of interested party Themistocleous over the applicant, even if the qualifications of interested parly Demosthenous are more or less equal to those of the applicant, the seniority of 5 30 months over both interested parties cannot tip the scales in favour of the applicant. In this respect it must always be borne in mind thatinpromo­ tions"merit should cairy themost weight" even vis-a-vis super­ ior qualifications which is not the present case anyway. 35 Inthe light of the above 1hold the view that it was reasonably open to the respondent P.S.C. to reach the sub judice decision; grounds 1,2 and 3are doomedtofailure and they are accordingly dismissed. 575 Loris J. Constantinidcs v. Republic

(1984)Turing now to the last complaint of the applicant namely lack of due reasoning and/or defective reasoning (ground 4). It is well settled that administrative decisions have to be duly reasoned; what is due reasoning is a question of degree dependant upon the natuic of the decision concerned (Athos Georghiades& others v. The Republic

(1967)3 C.L.R. 653 at p. 666). 5 Reasoning behind an administrative decision may be found eitherinthedecisionitself orinthe official recoids related thereto (Georghios HadjiSavva v. The Republic

(1972)3 C.L.R. 174 10 at p. 225, Petrides v. The Republic

(1983)3 C.L.R. 216). In thepresent casethe applicant has raised byvirtue of ground 4, lack of due reasoning and/or defective reasoning. He did not proceed though in his written address to elaborate on this issue at all. 1think that it was quite proper for this Court to 15 treat the ground in question as abandoned. Nevertheless 1 shall proceed to examine this ground as well once raised inspite of the failure of learned counsel appearing for the applicant to pursue it any further. Having considered the subjudice decision set out in exh. 20 6, I am satisfied that it is sufficiently and duly reasoned; it contains all the elements necessary for the ascertainment of the legality of the decision concerned (Demosthenous v. The Republic

(1973)3 C.L.R. 354); and if the insinuation on behalf of the applicant is that the Commission adopted the view given 25 by the Head of Department as to the qualifications of the applicant and the interested parlies without themselves inquiring into the matter, it is abundantly clear that they did so inquire and it was perfectly legitimate for them to adopt his assessment, as they did, in view of the material contained inthe personal files 30 of all concerned which were before the P.S.C. and which were examined and considered by them, as exprcssely stated in the sub judice decision, which was in the circumstances of (his case reasonably open to them; therefore ground 4 fails as well. In the result, for all the above reasons, the present recourse 35 fails and it is accordingly dismissed; and il is wilh great reluctance that I have decided to make no order as to costs. Recourse dismissed. as to costs. 576 No order