(1984)1984 June 7 [A. Loizou, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION AGAPIOS KOKKINOS AND ANOTHER, Applicants, THE REPUBLIC OF CYPRUS, THROUGH THE PUBLiC SERVICE COMMISSION, Respondent. {Cases Nos. 29/81, 46/81). Public officers—Promotions—Seniority—// only prevails if all other things are equal which werenot in this case in viewof the better confidential reports of the interested parties—Applicants failed to discharge their burden of establishing striking superiority as against the interested parties—Sub judice decision reasonably 5 open to the respondent. These recourses were directed against the decision of the respondent Public Service Commission to promote the 35 interested parties to the post of Clerk 2nd grade in preference and instead of the applicants. The applicants were senior by about 10 one year to one of the interested parties (Lottidou) and ranked equally in seniority as far as the remaining interested parties were concerned. Interested party Lottidou, however, had better confidential reports than the applicants. Held,
(1)that it was reasonably open to the respondent Com- 15 mission to arrive, on the material before it, to the sub judice decision and the applicants on whom the burden lay to establish striking superiority as against the interested parties, or any of them, in order to succeed in the present recourse, have failed to discharge same; that there has been neither misconception 20· of law or fact, nor any abuse or excess of power and the sub judice decision was reachod after a proper inquiry and is duly reasoned. 588 3 C.L.R. 5 Kokkinos and Another v. Republic
(2)That seniority prevails when all other things are more or lessequal;that inviewof the better confidential reports ofinterested party Lottidou the short seniority of the applicants could not prevail as against this interested party as not all other factors were equal; accordingly the recourses should fail. Applications dismissed. Cases referred to: Theodossiou v. Republic. 2 R.S.C.C. 44 at p. 48; Partellides v. Repitblic
(1969)3 C.L.R.
- 10 Recourses. Recourses against the decision of the respondent to appoint the interested parties to the post of Clerk 2nd Grade in preference and instead of the applicants. L. Papaphilippou, for the applicant in Case No. 29/
- 15 K. Koushios, for the applicant in case No. 46/
- CI. Antoniades, Senior Counsel of the Republic, for the respondent. Cur. adv. vult. A. Loizou J. read the following judgment. These two re20 courses have been heard together as they present common questions of law and fact inasmuch as the two applicants challenge the validity of the decision of the respondent Commission of the 20th October, 1980, by which it promoted to the post of Clerk 2nd Grade thirty-five Clerical Assistants as from the 1st 25 November
- In fact the two applicants have joined as interested parties, in all twenty-one of those promoted, and who are the same in the two recourses with the exception that interested party Charalambos Chistodoulides is included in Recourse No. 29/81, only and Andreas Papadouris isincluded in Recourse 30 No. 46/
- The post of Clerk 2nd Grade is a promotion post from that of Clerical Assistant and the respondent Commission was asked to fill thirty-five vacancies that existed and were to be created by the promotion of holders of the post ofClerk 2nd Grade to 589 Λ. Loizou J. -Kokkinos and Another \. Republic
(1984)higher posts. A Departmental Board, under the chairmanship of the Director of-the Department of Personnel,-was set up under the provisions of section 36 of the:Law. The said Board examined .a list of candidates :and -prepared three lists. The •first list contained the names of 198 candidates who possessed 5 .the required, under the relevant scheme, qualifications for pro motion-to the said post. The second, a list.of 231 candidates who did not possess the required qualifications, either because they did not succeed in the.required .examinations-(in.all fortyone of them).or did not complete the necessary six year service 10 at the post of Clciical Assistant and in addition some of them had not succeeded in the said exams. The third list contained in alphabetical order the names of seventy-four candidates with a comment in respect of-each one of them, which the ^Departmental :Board recommended for promotion. In this 15 list.-applicant,in .Recourse No.29/81 was not included, whereas applicant .in Recourse 46/81 was included. The respondent .Commission at its meeting of the 20th October, 1980, examined all relevant facts before it, namely the personalfiles and theconfidential reports of the candidates, as 20 well as.thereport of theDepartmentalBoardanddecidedthat in addition to those recommendedby the Board to include among the candidates on which the views of the Director of the Depart ment of Personnel wereto be heard,anotherthirteencandidates. The Director of the Departmentof Personnel attended the meet- 25 ing of the respondent Commission and upon being informed of its decision to add another .thirteen.candidates, the mealing was adjourned ί ο that he would be given some time to re-examine the facts relating to the said officers in comparison to those recommended by -theDepartmental Board. The meet- 30 ing was later resumed and the Director of the Department of Personnel recommended the thirty-five candidates who were ultimately promoted by the respondent Commission. The relevant ;part of its minutes reads as follows: "The Commission having examined, all the facts before it, 35 namely the 'personal fibs of the candidates and the confi dential reports onthemand having taken intoconsideration the conclusions of the Departmental Board and the rccommedations of the Director of the Department of Personnel, concluded that the thirty-five candidates recommended 40 by him are superior on the basisxf the totality of th2 esta590 3 C.L.R. Kokkinos and Another \. Republic A. Loizou .). bushed criteria (merit, qualifications and seniority) to the rest of the candidates, found them suitable and decided to promote them to the Permanent (Ordinary Budget) Post of Clerk 2nd Grade as from the 1st November 1980". 5 At the trial before me, the personal tiles and confidential reports of the two applicants and all the interested parties weie produced asexhibits. I had alsothe advantage of ha\ing before me a table in each recourse showing particulars of the Government service and qualifications of each applicant and the intcr10 csted parties joined by him in the respective recourse. The grounds upon which the legality and validity of the sub judice decision is challenged are the usual grounds of wrong exercise of discretion, of misconception of fact and a claim that they have ignored the superiority of the applicants, and 15 that the recommendation of the Head of the Department is not documented and reasoned nor is there anything recorded to show on what criteria the Head of the Department decided to recommend the fifteen candidates promoted, by the respondent Commission. Only asregards interested party Elisuvtt Lottidou 20 arc the two applicants senior, in that their first appointment as Clerical Assistants took place on the 1st May 1970,a post which they held until the date the sub judice decision was taken. whereas Lottidou was first appointed as a Clerical Assistant, unestablished, on the 1st May, 1970, but became permanent 25 on the 1stApril 1971. With regard to the rest of the candidates their date of first appointment and the date of appointment to the post they held on the date the sub judice decision was taken, was the same. Having perused all relevant files and documents that have 30 been placed before me 1have come to the conclusion that the subjudice decision suffers from no legal defect. It was reasonably open to the respondent Commission to arrive, on the material before it, to the said decision, and the applicants on whom the burden lay to establish striking superiority as against the 35 interested parties, or any of them, in order to succeed in the present recourse, have failed to discharge same. There has been neither misconception of law or fact, nor any abuse or excess of power and the subjudice decision was reached after a proper inquiry and is duly reasoned. 591 Λ. Loizou J. Kokkinos and Another v. Republic
(1984)As regards the seniority of the two applicants as against that of Elisavet Lottidou,it can only be stated what was said in the case of Michael Theodosiou v. The Republic,2 R.S.C.C. p. 44 at p. 48 "that length of service is always one of thcfactois to be considered but it is not proper to treat such factor exclu- 5 sively as the vital criterion always entitling to promotion the one candidate among many qualified ones, who possess such long service". Furthermoreit has to be born in mind that in the case Partellides v. The Republic
(1969)*'3 C.L.R. 480, it was held "that seniority ought to prevail when all other things 10 were more or less equal". A perusal of the personal files and the confidential reports of the said interested party, shows that for the years 1977, 1978, 1979, she was graded as "Excellent" with two blue con fidential reports, whereas the two applicants wcie graded for 15 the same years as "Very Good". The short seniority therefore of the two applicants could not pievail—if at all was such as to be taken into consideration—as against this interested party , as not all other factors were equal. Before concluding, Iwould like to point out that the recom- 20 mendations of the Head of the Departmentwere duly warranted by the material in the relevant files which constitute also the reasoning for his said recommendation. Finally it may be pointed out that the significance of having these two recourses decided upon is minimized by the fact that 25 the two posts have since the enactment of the Public Officers (Conversion of Salaries and Arrangements on other Matters) Law, 1981, Law No. 22 of 1981, and circular No. 611 issued theieunder, become combined posts. For all the above reasons these two recourses arc dismissed with no order as to costs. 30 Recourses dismissed with order as to costs. no 592