(1984)1984 June Τ [PIKIS, J.] IN.THE.MATTER OF ARTICLE 146 OF THE CONSTITUTION, ELENI S. XINARI AND OTHERS, Applicants, v. THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC SERVICE COMMISSION, Respondents. (Consolidated Cases Nos. 12/83, 19/83 and 20/83). Public Officers—Schemes of. service—Construction and application —Principles applicable—A scheme of service has to be read as a. whole—Construction placed upon- the schemes of service for the post of Assessor (Income Tax) by the respondent Com mission not one reasonably open to it. 5 The sole issue, in this recourse,turned on the interpretation of the schemes of service ard its application with regard to the eligibility of the interested parties for appointment. The principal qualifications under the relevant scheme of. service, were "five-years' experience on taxation of income, of 10 which three years' experience must have been gained at the post of Assistant Assessor First Grade (income Tax) or Assistant AT ssessor"; and the secondary qualifications were "five-years* experience in matters of taxation, audit or accounting, of which three years experience must-have been gained at the post of 15 Assistant Assessor First Grade (Income Tax) or Assistant Assessor,". Before joining the Department of~Income Tax, on-15.3.1979 interested party Tseriotis was an examiner of accounts at the Department of^the Auditor-General; and his duties included audit of deductions-made for income tax purposes from the 598. 20 3 C.L.R. 5 10 15 20 25 30 35 \inari and Others \. liepublic emoluments of tempor?ty government employees and labourers emplo>td by Government. Interested party Koullis was a Clerical Assistant at the Ministry of Education before joining the Income Tax Department: and in the course of his duties l.e d.-alt with m?tu-rs of taxation of the income of primary and v-condary rchool teachers. Interested party Loizou was an examiner of accounts l.oforc joining the Department of Income Tax and was concerned with the audit of the accounts of the inland Revenue Department. The Public Service Commission took the view that the above interested parties satisfied the principal qualifications envisaged by the schemes of service. /·/(/(/, that though t!c construction and application of the schemes of servict is in the first place a matter within the discretion of the Public Sc-i.ic^ Commission such discietion is not absolute and-, like every discretionary power, it must be reasonably excrt;iscd in the light of the facts before the Commission: that the only reasonable construction of the scheme read as a whole is that the principal qualifications envisaged at least two-years' experience outside the Department of Inland Revenue, gained by applying one's self, wholly or primarily, to income tax matters in contrast to experience incidentally gained in income tax matters; that the experience gained by interested parties iscriotis and Loizou beforejoining the Department of Inland Revenue, was mainly in the field of auditing of accounts and concern with income tax matter's was incidental to their main duties; that in the case of Loizou, it is doubtful whether he had the necessary five-)ear experience envisaged by both the principal and secondary qualifications; that, therefore,- the construction placed upon the schemes of service by the Public Service Commission was not one reasonably open to them; and that, consequently, they abused their discretion by holding that interested parties did possess the principal qualifications; accordingly their decision with regard to the appointment- of the three interested parties to the promotion post of Assessor (income Tax) is hereby annulled; Sub jtuiice decision annulled. Cases referred' to: Lana der Parthogh v. C.B.C.
(1984)3 C.L.R.- 635; Georghiades v. Republic
(1967)' 3 C.L.R. 653; 599 Xinari and Others \. Republic
(1984)Kyriacou v. Republic
(1975)3 C.L.R. 35; Makrides v. RepubPc
(1983)3 C.L.R.
- Recourses. Recourses against the decision of the respondent to promote the interested parties to the post of Assessor (Income Tax) 5 in preference and instead of the applicants. Th. Ioannides, for applicant in case No. 12/
- P. Pavhu, for applicants in Case Nos. 19/83 and 20/
- N. Charalambous, Senior Counsel of the Republic, for the respondent. Cur. adv. vult. 10 PIKIS J. read the following judgment. The fate of these recourses turns solely on the interpretation of the scheme of service and its application with regard to the eligibility of the interested parties for appointment. The scheme of service 15 postulated two sets of qualifications for appointment that, I may, for convenience's sake,term, the principal and secondary qualifications. Possession of the secondary qualifications made a candidate eligible only in the event of absence of candidates possessing the principal qualifications. 20 It is common ground that the interested parties, namely, Christakis Tseriotis, Andreas Koullis and possibly Costas Loizou, satisfied the secondary qualifications. What is at issue, is, whether they possessed the principal qualifications. If they did not, they wereineligible to be appointed. For there 25 existed a sufficient number of candidates possessing the principal qualifications recommended bythedepartmental committee as suitable for appointment. On the other hand, it is an undisputed fact that applicants possessed the principal qualifications. At the trial, it was made clear this is the sole issue 30 that calls for resolution intheseproceedings. Other contentious issues emerging from the pleadings of the parties were abandoned. Applicants confined their challenge to th; eligibility of the interested parties for appointment. A score of decided cases lays down the principles governing 35 the construction and application of the schemes of service*. * See, inter alia, Georghiades v. The Republic
(1967)3 C.L.R. 653; Kyriacou v. TheRepublic
(1975)3C.L.R.35;Makridesv. Republic
(1983)3C.L.R.622. 600 3 C.L.R. Xinari and Others t. Republic Pilds J. Itis, inthefirstplace,amatter for the Public Service Commission who must, as a necessary incident of the exercise of their discretionary power, construe and apply a scheme to the circumstances of the particular case. Recently, I had occasion to 5 reviewthe nature of their discretion at some length and, indicate the reasons justifying the acknowledgment of such discretion to an appointing body (see,LanaderParthogh v. C.B.C.,decided on 19.5.1984, unreported as yet)*. Wide though the discretion is, it is not absolute and, like every discretionary power, it must 10 be reasonably exercised in the light of the facts before the Commission. The prominent factor, in this respect, is the woiding of the scheme of serviceto which 1 shall presently turn attention. Principal Qualifications: Five-year experience on taxation of income, of which three 15 years experience must have been gained at the post of Assistant Assessor First Grade(income Tax) or Assistant Assessor, constituted the gravamen of the principal qualifications. Asit isexpressly provided therein, eligibility of those possesing the secondary qualifications is exclusively dependent on 20 the absence of candidates possessing the principal qualifications. Secondary Qualifications: Five-year experience in matters of taxation, audit or accounting, of which three years experience must have been gained at the post of Assistant Assessor First Grade (Income Tax) or 25 Assistant Assessor. It is common ground that each one of the three interested parties had the three-year experience at the Department of Income Tax, gained by serving at the post nominated by the principal and secondaiy qualifications. What must be decided, 30 is whethei the experience they gained elsewhere, was of the kind envisaged by the principal qualifications. Qualifications of interested parties: Before joining the Department of Income Tax, on 15.3.1979, Christakis Tseriotis was an examiner of accounts at the Depart35 ment of the Auditor-General. A certificate of the Deputy • Now reported in
(1984)3 C.L.R.
- 601 Pikis J. Xinari and Others v. Republic (!984> Auditor-General voiifics that he held the position of Examiner of Accounts Third Grade, in the Audit Department. It is certi fied therein that his duties included audit (ελεγχον) of dedu ctions made for income tax purposes from the emoluments of temporary government employees and labourers employed by government (sec. red 67 in his personal file). 5 Before joining the IncomeTax Department, Andreas Koullis was a Clerical Assistant at the Ministry of Education,appointed on a temporaly basis in 1973, made permanent in
- A ceitificate issued on behalf of the Director-Generalof the Mini- 10 stry of Education certifies that in the course of his duties he also dealt with matters of taxation of the income of primary and secondary school teachers and. in consequence, it could be said that he gained experience in matters of taxation. 1 regaul it rather presumptuous on the part of the officer who issued 15 this certificate to ofiei a definitive opinion on the nature of the experience gained at the Ministry of Education in relation to a matter in which he could not be regarded as competent to express an opinion. (Sec, rud 74 in his personal file). Lastly, Costas Loizou was, like Tseriotis, an examiner of 2·.» accounts before joining the Department of Income Tax. A certificate of the Auditor-General, dated 16.3.1982, ccitificd that between the periods of 9.12.1976 and 14.3.1979 Costas Loizou was concerned with the audit of the accounts cf the Inland Revenue Department. His work included the auditing 25 of individual assessments, the collection of taxes, as well ;'.s departmental accounts. It is evident that experience gained by the interested parties in the domain of income tax. was incidental to their other duties. In the case of Mr. Tseriotis and Mr. Loizou, it was incidental 3'.» to their audit duties, whereas in the case of Mr. Koullis, to his clerical duties. The departmental committee, chaired by the Director of Inland Revenue, set up to advise the Public Service Commission, expressed serious icservations about the quali fications of the three interested parties, doubting whether they 35 satisfied theprincipal qualifications. Inthecase of Mr. Tseriotis and Mr. Koullis, they inclined to the view that they satisfied only the secondary qualifications, whereas in the case of interested party Loizou they doubted1 whether he hr.d the ncccr.sary five-yeai experience, under any circumstances. 40 602 3C.I:.R. Xinari and Others.\. Republic Pikis J. The Public Service.Commission took a contrary view of-the qualifications, of the three interested, parties and, found, they satisfied the principal qualifications envisaged; by the scheme. Scheme,of Service^—Construction: 5 A scheme of"service; like.·every, document,the-piovisions off which have.to-be.construed; must:bc ; rcad.as.a.whole. Therefore; we.camvalidly presume.that the;two-yearcxperience,'gained, outside the:Department.of;Income Tax, referred.to-in-the.prinTcipal qualifications;.on.the.one*hand.and,.the:-secondary quali-10 fications,„ on the-other, was-experience: of a different, kind. Otherwise,, provision·, for- the· secondary, qualifications: wouldbe.-superfluous.. Thcreasonable.constiuction-ofithe.scheme read. as.a-,whole;,is the.following: The.-principal qualifications e n visaged- at- least.,two-year experience, outside.*the. Department: 15 of." Inland, Reyenue,\ gained by. applying;one!s selff wholly, or primarily,.tojncome.'tax matters.in-contrast;to experience,inrcidcn.tally. gained in-,income;tax,,matters.- Quite, rightly, the; departmental·committee-diew- attention· to the^inadequacy, ofthe.qualifications of. the.interested-parties-under--the:first:part: 20 of"the- scheme.- The>experience: gained-,by. interested.parties. Tseriotis-and_Loizou.before.joining-the:Department-of Inland, Revenue;.was=mainly in-thctfield;Of,auditing;of.accounts.- Con-cernwithincomc-taximattcrs-was.incidcntal to.thcir.main-.duties. In\the;case.of Loizoui.it is doubtfur.whether.-he.had.the.necessaiy 25- five-year experience envisaged-.by both-the;principal.and;second·;ary qualifications,.. as^the·. departmental- committee,- observed:. In.the:casc'of.-Koullis,J,have-this^to observe:- His>duties-.wereciencal. It-is hatd-to envisage-circumstances:under-which-,a-. clerical·,assistant;may be; said;to; gain experience,;in.income30- tax.matterSsby.concerning.himselfjincidentally with the_taxation of-the.income. of.teachers. In.my judgment, the construction. placed upon the schemes of.servicc.by.the.Public.Service Cornrni-ssion was.not one.reasonably open-.tovthem; consequently,.they abused, their discretion.by. hodlingithat.interested..parties,did 35 possess..the.principal.qualifications... Hence,Jheir;decision withregard.to. thc.appointment;of:theuthreeJnterested_parties.to..the.promotion.post of.Assessor (Income Tax) is.hereby,annulled. The :recourse-against-the lemaining-interested."parties-is·,d i s missed. Let; there be no-order-as. to-costs. 40 Sub;judicesdecision-partlyannulled. No order- as to costs. 603;