clr/1984/1984_3_577.pdf

(1969)3 C.L.R. 232; Papapetrou v. Republic, 2 R.S.C.C. 61; Panayides v. Republic

(1972)3 C.L.R. 457; Kitromelides v. Republic

(1975)3 C.L.R. 531. 577 Republic ». Pcriclcous and Others

(1984)Appeal. Appeal against thejudgment of a Judge of the Supreme Court of Cyprus (Pikis, J. ) given on the 28th February, 1984 (Revisional Jurisdiction Case No. 375/82)* whereby the decision of the Public Service Commission to promote the interested parties in preference and instead of the applicants was annulled. 5 L. Loucaides, Deputy Attorney-General of the Republic with A. Papasavvas,Senior Counsel of the Republic, for the appellant. E. Lemonaris, for the respondents. \<) Cur. adv. vult. TRIANTAFYFLIDUS P.: The judgment of the Court will be delivered by Mi. Justice A. Loizou. A. Loizou J.: The only legal issue for determination is with regard to the material dates at which a candidate for pro- 15 motion must possess the required, under the relevant Scheme of Service, qualifications. The facts of the case arc not in dispute. By letter dated the 6th March 1981, addressed to the Chairman of the appellant Commission, the Director-General of the Ministry of Finance, 20 acting in this case in the capacity of the appropriate Authority concerned under section 17 of the Public Service Law, 1967 (Law No. 33 of 1967), moved the appellant Commission to proceed to fill the vacancies existing in the post of Data Processing Officer, 1st Grade, which is a promotion post in the 25 Ministry of Finance. Unlike the instances of First Entry and First Entry and Promotion Posts which have under section 31

(1)oftheLawto beadvertised intheofficial Gazette ofthe Republic, no such need arises understandably for Promotion Posts, because they have, as provided by section 31

(2)of the law, to be ?0 filled by the promotion of officers serving in the immediately lower grade or office of a particular section or sub-seclion of the public service. As it was very rightly put by the learned trial Judge in hisjudgment "thereafter responsibility rested with • Reported in

(1984)3C.L.R.

1. 578 3 C.L.R. Republic v. Pcriclctus and Others A. Loizou J. the Commission to set in motion the machinery for thefilling of the post"'. These posts in question are not consideied as specialised ones, hencethey comewithin theambit of section 36 of the Law which ς provides for the establishment of LVpartmcntal Boards, the composition, functions ar.d procedure tf 'which will be deter­ mined by the Council of Ministers, which has for the purpose prescribed .Regulatory Orders by its Decision No. 17.768 dated 1st March, 1979, ?.ud which we/e circulated by the Director Η' of the Departmenttf Pcrsonrei to ail Government Departments and'Independent Offices, by Circular N<-.490 of the 20th March 1979, and which Regulatory Orders came into force on the 1st Jure
2. No action was taken thereafter by the appellant Commission until the 19th Feburary 1982, when a letter was addressed to The Director of the Department of Data Processing to set up a Departmental Beard, as provided by regulation 3 of the afore­ said Regulatory Orders. The Secretaiy tf the appellant Com­ mission forwarded also, five copies of the list of candidates for 20 promotion to the said pest; eight files of confidential reports on the candidates; nine personal files; and five copies of the Scheme cf Service tor the said post. This letter from the appel­ lant Commission, together with the attached documents had, by virtue of the said Regulatory Orders to be sent within two 25 weeks from the date that the filling of this promotion post was asked to be done by the appellant Commission. It appears, however, that because of the general reorganization of the Public Service, which included reorganization of this department and theseposts, thedelay inaskingthesetting up of the Departmental 30 Board was inevitable and in any event, as rightly found by the learned trial Judge, the requirement to submit a list of candidate within two weeks is a directive in (he interest of speedy admi­ nistration and not mandatory, in which case its nonobservance would vitiate the whole process of promotions. 15 35 The Departmental Board considered the candidates and it came to the conclusion that al! candidates possessed the quali­ fications required by the Scheme of Service for the post and pre­ pared. a list cf the eleven candidates in alphabetical ordei and gave its views in respect of each one of them. 579 A. Loizou J. Repiil)!i; >. Pcridcuns and Others

(1984)The appellant Commission then at its meeting of the 7th May, 1982, proceeded to consider the filling of the posts. It postponed, however, further examination as there arose the question as to the meaning of the required qualification "four year, at least, experience in data processing, which must include 5 analysis of systems and ur programming of electric computers of which three at least in the Public Service". A legal opinion was sought by the appellant Commission which was given to it to theeffect, that experience in the Public Service has a different meaning than "Pub'ic Service" or '"service",which terms unlike '<» experience arc defined bysection 2 of the Law as excluding "service by persons whose remuneration is calculated on a daily basis" as, indeed, experience is unrealated to the nature of the service and the remuneration. Two cases were referred to in the opinion given by the legal Assistant, attached tothe appellant I 5 Commission, as relevant in this respect, namely that of Aristotelous v. The Republic

(1969)3 C.L.R. 232 and Theodoras Papapetrou v. The Republic, 2 R.S.C.C.

1. where at p. 70 it was said that "the term 'experience* inevitably contains the notion of knowledge acquired through acting in a certain capa- 2"> cityand cannot bereasonably interpreted as amounting to knowledge acquired througli observation and study". The appellant Commission then at its meeting of the 5th August 1982, proceeded with the filling of the post and chose nine of the eleven candidates. But before, taking any further 25 step,the appellant Commission at its meeting of the 17th August 1982re-examined the matter and ascertained that the four applicants did not possess the required qualification of the relevant Scheme of Service, namely of four years experience at all material times, in particular at the time of the preparation of the list 30 of candidates by the secretary of the Public Service Commission for forwarding to the appropriate Departmental Board, time which in accordance with the opinion of the Deputy AttorneyGeneral of the Republic under No. 31(C)/61/4 and dated 27th November 1980, should not exceed two weeks from the sub- 35 mission of the proposal of the appropriate Authority, for the filling of the post. The proposal of the appropriate Authority was submitted on the 6th March 1981and the present applicants did not possess on the 21st March 1981, "experience of four years in data processing, which included analysis of systems 40 and of programming on electronic computers of which atleast three in the Public Service". The appellant Commission then 580 3 C.L.R. Republic t. Perkleous and Olhers A. Loizou J. in view of the above "decided to revoke its excision dated 5th August 1982 for the promotions to the post of Data Processing Officer 1st Grade". It then appointed anothei officer to one of the posts as possessing the required qualifications and being 5 suitable for it and left the remaining post vacant. A perusal of the records and a study of the whole process followed by the appellant Commission is indicative of .the thorough way in which it acted in this case. In fact the opinion of the Deputy Attorney-General referred to in the minutes of 10 the appellant Commission, is, in so far as relevant, as follows: i5 20 "In my view the qualifications required for promotion to promotion posts on the basis of Section 44(l)(b) of the Public Service Law must be possessed by the candidate (a) at the time of the act of promotion by the Public Service Commission, and (b) at the time of the preparation of the list of candidates by the Departmental Board and the time of the consideration of the relevant merits of the candidates by the same board and (c) at the time of the preparation ofthe list of candidates for promotion by the Public Service Commission for forwarding to the Chairman of the appropriate Departmental Board which is limited to two weeks from the date when the filling of the promotion post was asked to be d^nc by the Public Service Commission". it is not in dispute that the candidates did not possess the 25 required experience at the time of the preparation of the list of candidates by the secretary of the appellant Commission though they possessed it on the 19th February,
2. There was a consensus among counsel, which the learned trial Judge indorsed, asfar as the requirement of possessingtheneces30 sary qualifications for promotion by a candidate on the date on which the promotion is made. This was founded! as the learned trial Judge pointed out, on a proper appreciation of the provisions of the Public Service Law, and on authorities both of the Greek Council· of State,—and refcience inter alia was 35 made to its decisions No. 1697/50, 1001/65—and to our Case Law namely to those of Panayides v. The Republic

(1972)3 C.L.R. p. 457 and Kitromelidesv. The Republic

(1975)3 C.L.R. p. 531 which latter case was to be considered, as indirectly lending support to the aforesaid proposition. 581 Λ. Loizou J. Republic ι. Pcricleous and Others (19S4) This, however, was notthe end of the matter as it was argued on behalf of the appellant Commission that candidates should possess the necessary qualifications at an earlier also date,name­ ly the date of settling the list of candidates for promotion which it was only natural, as such list should include all those eligible 5 for promotion at the time of iis compilation. The learned trial Judge rejected this.submission on thegroui.d that regulation 3 docs not establish a timclimit for determining eligibility for candidates for promotions and that if the list is submitted at a later date, as in the present case, the Commis- I** sion was duty bound to include therein every candidate that had at the time the necessary qualification as it was done when they first reached the decision which was subsequently revoked. which he held, was wrong and added that "if one were to probe the implications of their decision, by delaying activation of the 1 5 process for promotion, many candidates having the qualifications for promotion at the time of filling the post could be excluded for no good reason. The decision of the Commission, if accepted as based on sound principles of administrative law, it could lead to endless abuse". 20 Before, however, proceeding any further it should be pointed out that in the Panaykles case (supra), the issue was whether the applicant in that case who had acquiied the required quali­ fications after thesubject promotionswere made by the Commis­ sion, could be considered as a candidatebecause of the Commis- 25 sion examining, on account of the reorganization of the service, as from which date such promotions should take effect. The question of a candidate not possessing qualifications at some critical time prior to the making of the promotion by the Com­ mission and acquiring them in the meantime and possessing 30 same on the date the promotions were made could not and did not arise. In Kitromelidescase (supra),the question arose as to the mean­ ing of the Scheme of Service then in force and the Commission diferred making an appointment pending clarification by the 35 Council of Ministers. The scheme was accordingly amended, thus removing the difficulty. The applicants in that case did not qualify under the scheme as amended though they qualified under the old scheme. So the decision of the Commission to 582 3 C.L.R. Republic v. Pericleous and Others A. t-oizoii J. exclude them as candidates because of the requirements of the amended scheme was declared as null and void. 5 10 15 20 It has been argued before us by the Deputy Attorney-General, who led the case for the appellant Commission that support for his opinion, earlier referred to and which he reiteiatcd in this Court, may be found in the Law itself and in particular in section 17, by virtue of which the motion or propos'.il to take action for the filling of vacancies in any public office has to b^ made in writing to that effect by the appropriate Authority concerned, read in conjunction with its sections 30 and 31. as amended by Laws Nos. 31 of 1980, 10 of 1983 and 20 of 1984. He urged that by analogy to the case of First Entiy and First Entry and Promotion Posts, in respect of which the vacancy has to bo advertised in the official Gazette and. a cand.idate must possess the required qualifications at the time at least of submitting his application which has to be within, the specified time in such notice, normally three weeks from publication, so in the case of a vacancy in a promotion post the qualifications must be possessed within the period of 14 days prescribed in regulation 3 of the Regulatory Orders, during which time the list of candidates has to be submitted to the Departmental Board. Before we proceed any further, we consider it useful to set out herein section 35 of the Law which deals with the selection 25 for vacancies in specialized offices and which reads as follows:"

(1)Before any appointment or promotion to a specialized office, the Commission shall ask for the advice of the appropriate Advisory Board. 30 35

(2)All applications received by the Commission for any vacancy advertised or, in the case of promotion to a Promotion office, a list of the candidates eligible for promotion thereto prepared by the Commission shall be forwarded by the Secretary of the Commission to the chairman of the appropriate Advisory Board within a fortnight of the closingdatefor the submission of applications or of the date on which the Commission received a request for the filling of the Promotion office, as the case may be. 583 Λ. Loizou J. Republic ι. Pericleous and Others

(3)The Advisory Board shall examine all the applications received for any vacancy advertised or the list of candi­ dates eligible for promotion thereto, as the case may be, and prepare a Hut of those candidates who possess all the qualifications prescribed in the relevant scheme of service. 5

(4)The Advisory Board shall then take steps to determine the relative merits of the candidates. In determining the merits of the candidates the Advisory Board may require the candidates to undergo a written or oral 10 examination or both.

(5)The advisory Board shall then forward a report to the Commission containing the names of the candidates recommended for selection for appointment or pro­ motion, in their alphabetical order: 15 Provided that, if suitable candidates are available' not less than four candidates shall be recommended in respect of each vacant office.

(6)The Commission shall select the persons to be appointed or promoted, from amongst the candidates recommended 20 by the Advisory Board.: Provided that the Commission may interview the candidates recommended by the Advisory Board before making the selection". Unlike the position in other countries and particularly in 25 Greece where express statutory provision has been made as regards the material dates at which a candidate must possess the required qualifications, no such provision exists in our law. It is therefore by reference to the totality of the relevant provisions of the Public Service Law that a decision has to be 30 reached on the subject. It transpires from an examination of section 35 read in con­ junction with sections 30 and 31 as amended, that in cases of fillingof vacancies of First Entry and First Entry andPromotion posts an application has to be submitted by a candidate,—(sub- 35· ject to the exception made by the proviso to section 31

(1)which was added by section 2 of Law No. 10 of 1983 with which we are not cc::cerned on this occasion);in response to an adveitisc584 3 C.L.R. Republic v. Pericleous and Others A. Loizou J. mcnt for a vancancy which has tobe made byvirtue of the provisions of section 31

(1)and in which the date by which applications must be submitted has to be specified. Consequently in view of the said imperative provisions no one can be consider5 ed as a candidate if in such cases he has not submitted an application within the prescribed time. Furthermore in the case of appointments or promotions to a specialized post all applications received, or in the case of promotions to a Promotion Post, a list of the candidates eligible 10 for promotion thereto prepared by the Commission, has to be forwarded by its Secretary to the Chairman of the appropriate Advisory Board within a fortnight of the closing date for the submission of applications or the date on whichthe Commission received a request for the filling of the promotion post, as the 15 case may be, as provided by subsection 2 of section 35 hereinabove set out. It is obvious that the 14days period allowed, to the Commission to forward the application or prepare the list of eligible candidates from the closing date specified in the advertisement 20 or the date on which the request for the filling of the promotion office was received by it isa period that wasintended to facilitate the work of the Commission rather than affect in substance the administrative process. Given therefore that the examination of the eligibility of the 25 candidates commences in the case of specialized posts when the applications are submitted or in the case of promotions to such posts only when the list of eligible candidates is prepared for tiansmission to the Advisory Board and that the 14 days period during which this has to be done is only intended, as 30 already said, to facilitate the work of the Commission, one is led to the conclusion that a candidate must possess the required qualifications the latest on the last date that he is allowed to submit his application in respect of posts to which section 31

(1)of the Law refers and in the case of officers in the service who 35 areentitled topromotion toapost towhich section 31 subsection 2 of the Law refers on the date on which the request for the filling of the promotion post w?s received. It is as a matter, however, of equal treatment and for the sake of uniformity that the eligibility for all candidates in cases of First Entry and 40 First Entry and Promotion Posts must exist on the last date 585 Λ. Loizou J. Republic \. Pencleous and Olliers

(1984)specified in the advertisement for the submission of applications which naturally in time comes after the d?.tc the request of the appropriate Authority for thefillingof a post is received by the Commission. As rcgaids, however, nonspccialised offices, no such elaborate 5 provisions are to be found in the Law itself. Section 36 thereof which provides for the establishment of departmental boards for thepurposeof advisingtheCommission inrespect of appoint­ ments or promotionsto any office which is not a specialised one, empowers instead the Council of Ministers to make Regulatory 10 Orders which have been made in this case as we have seen and which are modelled, as circumstances permit, on the pro­ cedure prescribed by section 35 of the Law, and there is nothing against this procedure which achieves to the extent possible thedesired uniformity is theprocess of appointments and promo- 15 tions to various offices. With theaforesaid in mindwc have considered theissuesraiccd before us very carefully as they arc of great impoitancc because of their general application and their consequence to public officers or prospective candidates for public offices and we have 20 come to the conclusion that the first material date at which a candidate must possess the required qualifications in the case of a First Entry and First Entry and Promotion Post, is the last date of the period prescribed intheadvertisement for the vacancy by which applications have to be submitted and in respect of 25 Promotion Posts only where noapplications arcmade, inevitably it is the date on which the request for the tilling of a vacancy under section 17 of the Law is received by the Commission. These dates arc the dates on which the substance the admini­ strative process for appointments and promotions by the 30 Commission is set in motion. They are as such impersonal in character and unrelated to the expeditious or delayed, action of the appiopriatc administrative organ concerned with such appointments and promotions and which are fundamental safeguards for gocd and proper administration. Needless lo 35 say that the candidates must continue to possess the required qualifications also on theday thedecision to appointorpromote him is nude. And we agree on this point with the learned trial Judge. Furthermore the possibility of candidates being required to go through a written or oral examination or both,as provided 586 40 3 C;L:P, Republics. Periclenus -and Other* A. Loizou J. by subsection 4 of section-31 or subsection 4 -of section-35, strengthens-the view that once-this-precedes-the making-of the decision for appointment -or-promotion by the 'Commission a candidate'must possess the'required'qualifications whcnunc'ei5 going "such examination, which takes place naturally earlier that the -date the decision -to-appoint or 'promote, is 'made. 'Likewise where interviews are held. Any-other approach would inevitably lead to'odd siliia»iors by candidates becoming eligible up to'the-last moment between 10 the various stages of the administrati\c 'process and the 'final making of the decisiorrto appoint or.promotekby-the respondent 'Commission. Wc therefore regret tha't 'we cannot Uphold the judgriieht o' the learned trial Judge which we'set aside. We allow thea'ppea 15 and we confirm'hereby "the subijudicc decision as'the Tour lespondcnts'in thisappeal did not possessthe required qualifications under the relevant scheme of service on the date the request for the filling of these promotion posts wasrcccivcd by theCommission. 20 Appeal allowed. 587