1984 May 19 [PIKIS, J.] IN THE MATTER O FARTICLE 146O F THE CONSTITUTION LANA DER PARTHOGH, Applicant, v.
- THECYPRUS BROADCASTING CORPORATION,
- THE ADMINISTRATIVE BOARD OF THE CYPRUS BROADCASTING CORPORATION, Respondents. (Case No. 417/83). 5 10 Public Officers-—Promotions-—Schemesof service—Interpretation and application—Judicial control—Principles applicable—Post of Senior Programme Officer in the Cyprus Broadcasting Corpo ration—Scheme of service making no reference to requirement of knowledge of Greek—Nojustification for reading into the scheme of service something not includedtherein—Interpretation adopted by respondents not reasonably open to them—Even if a require ment as to knowledge of Greek were to be read in the scheme of service respondentsfailed to carry out an inquiry into the knowledgeof theapplicantonthesubject—Subjudice decision annulled. Collective agreement—Of no consequence in public law. 15 20 The applicant, a Programme Officer Ά ' was a candidate for promotion to the post of Senior Programme Officer. The res pondents treated her as ineligible for promotion on account of lack of the requisite knowledge of Greek postulated inthe scheme of service and hence this recourse. The qualifications required under the relevant scheme of service were long and successful service in the position of Programme Officer Ά ' , coupled with administrative and organizational abilities. The scheme of service for the post of Programme Officer—which was renamed or regradedas Programme Officer Ά'—required as an indispens able prerequisite for appointment "a thorough command of Greek". 635 Der Parthogh v. C.B.C. <1984) Held, that the interpretation of a scheme of service is a matter amenable to the discretion of the administrative authority concerned; that the interpretation accorded to a scheme of service by the appointing authority will be sustained so long as it is one reasonably open to them by reference to the wording of the 5 scheme; that since the scheme of service for the post of Programme Officer required, as an indespensable prerequisite for appointment, "a thorough command of Greek" no need arose to read into the scheme under consideration a requirement relevant to knowledge of Greek for, all those eligible for promo- 10 tion were deemed to possess such knowledge; that, consequently, it can be validly inferred that omission to make reference, in the scheme of service, to knowledge of Greek, was done advisedly; that there was no justification whatever for reading, in the circumstances of this case, into the scheme of service I5 something not included therein; and that, therefore, the interpretation of the scheme of service, adopted by the respondents in this case, was not one reasonably open to them; accordingly the sub judice decision must be annulled. Held, further, (I) that even if there were to be read into the 20 scheme of service a requirement as to knowledge of Greek. the respondents singularly failed to carry out an inquiry into the knowledge of the applicant on the subject; and that, accordingly, the subjudice decision must beannulled for this reason too.
(2)That the scheme of service cannot be read and interpreted 25 subject to the collective agreement entered into between the respondents as employers and the Union of Employees of the C.B.C. because a collective agreement is of no consequence in public law, unless its content is made part of the regulations or practice of an administrative authority and in this case neither 30 of the two happened. Sub judice decision annulled. Cases referred to: Kontemeniotis v. C.B.C.
(1982)3 C.L.R. 1027 at p. 1032: Droushiotis \. C.B.C.
(1984)3 C.L.R. 546; Kapsou v. Republic
(1983)3 C.L.R. 1336; Georghiades and Others v. Republic
(1967)3 C.L.R. 653; Mytides and Another v. Republic
(1983)3 C.L.R. 1096. 636 35 3 C.L.R. Der Parthogh v. C.B.C. Recourse. Recourse against the decision of the respondents to promote the interested parties to the post of Senior Programme Officer in preference and instead of the applicant. 5 Ph. Vialiantis for L.Papaphilippou, for theapplicant. P. Polyviou,for the respondents. E. Efstathiouwith ΛΓ, Stylianidou (Miss), for interested party R. Kouroupi. Cur. adv. vult. 10 15 20 25 30 35 PIKIS J. read the following judgment. Lana der Parthogh and the four interested parties, namely Mikis Nikitas, Andreas Fantides, Anthos Rodinis and Rita Kouroupi,held theposition of Programme Officer at the Cyprus Broadcasting Corporation. Following an agreement with the Union of Employees of the C.B.C. in 1982, the establishment of respondents was restruct ured in a mannerentailing changes in theposition of employees and,geneially,theluerarchy of theCorporation. TheProgram mesection was likewiserestructured by thecreationof anumber of new posts not strictly corresponding to those abolished. The post of Programme Officer was abolished. The holders of thepost, including applicant and interested parties, were emplaced in the position of ProgrammeOfficer "A". And, in that capacity, they became eligible for promotion to the post of Senior Programme Officer. When the post came to be filled, applicant, the interested parties and a number of fellow Pro gramme Officers "A", became candidates for promotion, by submitting applications to that end in the prescribed form. Thematterwas dealt with on6.9.1983 atameeting of theBoard of the respondents. They chose the interested parties who were,'inconsequence,appointedtothepostof SeniorProgramme Officer. The applicant was turned down as a candidate, for lack of the qualifications prescribed by the scheme of service. She was treated as ineligiblefor promotion,on accountof lack of the requisite knowledge of Greek postulated in the scheme of service setting forth the qualifications for promotion (see, the scheme of service approved on 5.4.1983). In so deciding, they adoptedtheviewsof anadvisorycommittee,setuptoscreen the qualifications of candidates and make recommendations of their suitability for appointment(see,Appendix 2to theOpposi- 637 Pikis J. Der Parthogh v. C.B.C. <I984) tion). Inconsequence,noconsideration wasgiventothecandidature of the applicant for promotion. Bythisrecourse,applicant mounted achallengetothelegality of the decision of the respondents, founded, in her contention. on abuse or excess of the powers of the respondents and fact- 5 ually resting on a misconception of the facts relevant to her qualifications. The issues listed below call for resolution; defined, with the concurrence of the parties, at the outset of the hearing of the case: (
- a)The requirement, if any, provided for inthe schemeof 10 service, of knowledge of Greek as a necessary qualification for promotion. If required, the level of such knowledge. (
- b)The adequacy of the inquiry into the knowledge of applicant -of the Greek language. 15 Asecondaspectoftherecourse,somewhatimprecisely defined, wasnotpursued atthetrial. 'Itpurportedtoquestiontheimplementation of the scheme-of reorganisation, so far as relevant to the repositioning of applicant following the restructure of theservice. Thispart ofthe recourseis,following itsabandon- 20 mcnt, dismissed. Interpretation ofaschemeof service—The Principle—Its [application to the circumstances of thiscase: Unlikestatutesanddocuments, interpretation and construction ofwhichisa matter oflaw,theinterpretation ofaschemeof 25 service is governed by different considerations. It is a matter amenable to the discretion of the administrative authority concerned to apply it in the context of the fact-finding process designed to elicit the qualifications of candidates with a view to determining their eligibility and then suitability for appoint- 30 ment or promotion, as the casemay be. And, it is reviewable as such. The acknowledgment of discretion to the administration inthis area is,it seemsto me,justified bythefact that they are in a unique position to appreciate its implications within the establishment of the service and apply it in a manner best 35 conducive to promotion of the interests of the service. But the discretion is not absolute. It must, like every discretionary power, be reasonably exercised. They cannot place 638 3 C.LR. 5 10 15 20 Der Parthogh v. C.B.C. Plkfe J. an arbitrary interpretation on a scheme, nor put a construction upon it that violates or transgressesitsprovisions. The principle consistently emerging from a strong body of caselaw on the subject, isthat the interpretation accorded to a scheme of service by the appointing authority, will be sustained so long as it is one reasonably open to them by reference to the wording of the scheme. Such interpretation need not necessarily be the most obvious, or the onefavoured by the Court. This being the principle, I shall proceed to examine whether it was leasonably open to the respondents to construe the scheme as requiring, by necessary implication, adequate knowledge of the Greek language. I say "by necessary implication" for no such qualification is specifically required by the scheme. The only qualifications required are, long and successful service in the position of Programme Officer "A", coupled with administrative and organisational abilities. As the post of Programme Officer "A" had been newly created, evidently this requirement related to their service in the position of Programme Officer. Counsel for the respondents submitted it was reasonably open to the respondents to read into the scheme a requirement as to possessionbycandidates of a sound knowledge of Greek (Very Good), for the following reasons: First, the post of Senior Programme Officer belonged to a section, entry to which necessitated, at a lower level, very good 25 knowledge of Greek. Although this interpretation is not one, as counsel acknowledged, immediately suggesting itself, it is not an interpretation that transcends the bounds of reason. I cannot agree. It is, in my view, a self-defeating argument; for, if knowledge of Greek was required as a prerequisite for 30 appointment to a lower rung in the ladder of the hierarchy, it was but natural to dispense with such requirement in filling posts, higher in the hierarchical ladder. It could be validly assumed that candidates eligible for promotion had the requisite knowledge of Greek, an assumption thoroughly justified in the 35 case of Programme Officers who could be deemed to have "a thorough command of Greek". The scheme of service for the post of Programme Officer* required, as an indispensable prerequisite for appointment, "a thorough command of Gieek" (see, exhibit 5). Thus, no need arose to read into the scheme (Renamed or regraded as Programme Officer "A" after restructure). 639 Pikis J. Der Parthogh v. C.B.C.
(1984)under consideration a requirement relevant to knowledge of Greek for, all those eligible for promotion were deemed to possess such knowledge. Consequently, we can validly infer that omission to make reference, in the scheme of service, to knowledge of Greek, was done advisedly. There was no just- 5 ification whatever for reading, inthe circumstances of thiscase, into the scheme of service something not included therein. Second, it wassubmitted that the schemeof serviceshould be read and interpreted subject to the collective agreement entered into between the respondents, as employers and, the Union 10 ofEmployees ofthe C.B.C.(see,exhibit 2). Theargument runs that inasmuch asa distinction wasmadein thecollectiveagreement between Radio Programmes, on theone hand and, Radio Programmes in foreign languages, on the other, it was natural to presume that this division was suggestive of an intention 15 to require adequate knowledge of Greek on the part of officers preparing Greek programmes. To begin with, the division suggested is not firmly reflected in the collective agreement. More important still, is that the collective agreement is not at all concerned with the definition of the qualifications necessary 20 for appointment to any of the posts enumerated therein. Preparation and approval of the schemes of servicewasexclusively the responsibility of the respondents. The scheme in question was approved after the execution of the collective agreement, inexercise of the powers ofthe Corporation at public law, uni- 25 laterally determining the qualifications necessary for promotion. The submission in this connection, rests on the assumption that a collectiveagreement can giverise tothecreation of rights at public law. To that, a negative conclusive answer wasgiven by the Full Bench of the Supreme Court, in Kontemeniotis v. 30 C.B.C.
(1982)3 C.L.R. 1027,1032. Thesignificanceofacollective agreement lay in the field of industrial relations. It is of no consequence in public law, unless its content is made part of the Regulations or practice of an administrative authority (see, also, judgment in Droussiotis v. C.B.C,given on March 35 30, 1984, not yet reported).* In this case, neither of the two happened. All that the evidence before me suggests, is that respondents became parties to the collective agreement (see, exhibit 2). In myjudgment, the interpretation of the scheme of service, 40 • Now reported in
(1984)3 C.L.R. 546. 640 Ί 3 C.L.R. Der Parthogh v. C.B.C, Pikis J. adopted by the respondents in this case, was not one reasonably open to them. However, this is not the only reason for which the decision must be annulled. Even if we were to read into the scheme a requirement as to knowledge of Greek, the res5 pondentssingularly failed to carry out an inquiry intothe know ledge of the applicant on the subject. Application of the scheme of service: Triantafyllides, P., pointed out in Kapsou v. Republic
(1983)3 C.L.R. 1336, that an appointing authority is under duty to 10 carry out a specific inquiry intothe qualifications of a candidate. This duty is not discharged by a mere purview of the matter. A substantive inquiry must be conducted to test the knowledge of a candidate in a particular language, where in doubt, usually taking theform of awritten or othercomprehensive examination 15 sufficient to elicit such knowledge. In another case, notably that of Athos G. GeorghiadcsAnd Others v. Republic
(1967)3 C.L.R. 653, the learned Judge drew attention to the fact that determination of the knowledge of candidate of a language, raises a substantive question that must be resolved as such. 20 Another equally instructive decision ontheduties of anauthor ity concerned to apply a scheme of service, is that of Stylianides, J., in Mytides And Another v. Republic
(1983)3 C.L.R. 1096. Their first duty is to ascertain the qualifications of a candidate in a particular subject. In the instant case, respondents totally 25 failed tocarry outthis duty. Hadthey done so,theywould have, no doubt, noticed the fact that applicant was born in Cyprus and lived most of her life in this country. Another palpable fact was that she was credited by the Board of the respondents as having "a thoroughcommandof Greek"in virtue of herappoint30 ment as Programme Officer "A". Thirdly, she had translated a number of books from Greekto English for the Cyprus Broad casting Corporation. To these qualifications they turned a blind eye. The next stage in the process, as Stylianides, J. indicated 35 in the above case, is to hold a comprehensive inquiry to deter mine whether the qualifications of the candidate satisfy the scheme of service. In essence, the appointing authority is required to apply the scheme to the particular circumstances of a candidate. 641 ! Pikis J. Der Parthogh >. C.B.C
(1984)In the case under consideration, the respondents, as well as the Advisory Committee set up to advise them, failed to carry out any inquiry into the proficiency of the knowledge ofapplicant inGreek. They restedtheirdecision onapplicant's ownlatingofher knowledgeinGieek,misquotingherstatement 5 at that, as well. She wasexcluded as candidate on the ground that, by her own rating, her knowledge of Greek was merely "Good". This is an inaccurate statement. In the application form, she was required to give an assessment of her knowledge in three respects: Ability to read, write and speak. Her 10 answers were 'Excellent', 'Good' and 'Very Good', respectively. Consequently, they misconceived her own assessment of her knowledge of the language. As TriantafyHides, P. stressed in Kapsouv. Republic,knowledge of a particular language isa composite matter, referable to one'sability to write as well 15 as use the language. Mr. Polyviou candidly acknowledged, the respondents had a very difficult task to overcome in establishing the adequacy of the inquiry. A body of caselaw raises virtually insurmountableobstaclesin the wayofsupporting thedecisioninthisarea. 20 While counsel for the respondents put forward, in support of his case, every argument that could be legitimately raised on behalf of his clients, he did not omit, to his credit, to bring to the notice of the Court a number of decided cases that lend support to the case of his opponent. 25 On any view of the facts, the respondents totally failed in their duty to carry out an inquiry into the proficiency of the knowledge of the applicant in Greek. And this constitutes an additional reason for annulling the decision. In the light of the above, there is only one alternative open 30 to the Court and that is to set aside the sub judice decision. 1 so order. It iswitha degree of reluctance Ishall refrain from adjudging the respondents to pay thecosts of the proceedings. Let there be no order as to costs. 35 Subjudice decision annulled. No order as tocosts. 642