clr/1984/1984_3_643.pdf

(1984)Coostantinides v. Republic Therefore whtre these qualifications are required in existing schemes of service or Regulations, they could bealso satisfied by persons possessing the Diploma of the H.T.I. (Higher Technical Institute)". Before deciding that thequalifications ofthe interested parties were equivalent to a B.Sc. in Engineering therespondent Commission obtained the advice of, inter alia, the Department of Education and Science in England and the British Council which was to the effect that their qualifications were equivalent to the B.Sc. in Engineering. 5 10 On the question: (a) Whether the respondent Commission rightly found that the applicant did not satisfy the requirements of the Scheme of service. (b) Whether the qualifications of the interested parties 15 were inferior to applicant's qualifications and not equivalent to a B.Sc. in Engineering. Held,

(1)that once there was an official decision regarding the standard of the H.N.D. that decision had to be followed bytherespondent;that itisclearfrom thedecisionoftheCouncil 20 of Ministers that the H.N.D. is officially recognised as being equivalent to the diploma of the H.T.I, which is not of a B.Sc. level,butinferiortoitandnootherevidencewasadducedproving or indicating that the H.N.D. is equivalent in standard to a B.Sc.; that the power of interpreting the schemes of service is 25 within the absolute discretion of the appointing organ and this Court will not interfere if itwas reasonably open to such organ to decide asit did; that at thetimeofeffecting the appointments or promotions in question the respondent found that the applicant did not satisfy the requirements of the scheme of service 30 regarding qualifications and could not have found otherwise, inviewofthecontentsofthedecision oftheCouncil ofMinisters mentioned above.

(2)That itwasreasonablyopentotherespondent Commission to decide as it did regarding the qualifications of the interested 35 parties; and that, therefore, the contention of counsel that the qualifications of the interested parties are below the B.Sc. level and inferior to those of the applicant must be dismissed. Application dismissed. 644 3 C.L.R. 5 Constuntinides v. Republic Cases referred to: Papapetrou v. Republic, 2 R.S.C.C. 61 at pp. 69-70; Michael (No. 2) v. Republic

(1975)3 C.L.R. 432 at p. 436; Andreou v. Republic

(1979)3 C.L.R. 379 at pp. 386-387; Paraskevopotdhu v. Republic

(1971)3 C.L.R. 426 at p. 432; Lambrakis v. Republic

(1975)3 C.L.R. 136 at p. 141; Stylianott v. Republic

(1980)3 C.L.R. 11 at pp. 17-

1. Recourse. Recourse against the decision of the respondent to promote 10 theinterested partiesto thepost ofTechnologist in the Technical Education in preference and instead of the applicant. L. N. Clerides, for the applicant. G. Constantinou (Miss), Counsel of the Republic, for the respondent. 15 Cur. adv. vult. SAVVIDES J. read the following judgment. The applicant challenges by this recourse the promotion to the post of Technologist in theTechnical Education offiveother persons, the interested parties in this recourse, in preference and instead of him. 20 The interested parties whose promotion is challenged are: 25
2. loannis Nicolaou,
3. Andreas Christoforou,
4. Andreas Anastassiou,
5. Christakis Christofi,
6. Andreas HadjiKypris. Applicant was first appointed in the Technical Education in 1973on a contractual basis and since 1.7.1977he holds the permanent post of Instructor of Schools of Technical Education. On 5.1.1981, the Educational Service Committee (hereinafter 30 to be referred to as ESC) met to consider the filling of 7 vacant posts ofTechnologist, after thefillingof samehad been approved by the Minister of Finance. The ESC in considering the candidates eligible for promotion to the above post found that: 35 " the following persons who hold the post of Instructor and who possess a Degree or title or diploma of a Polytechnic or a University or a higher school of equal 645 Savvides J. Constantinides v. Republic

(1984)standing or an equivalent qualification are prevailing in seniority and decides to emplace them to the post ofTech­ nologist (Scale B.12) as from 1.1.1981: (

1. a)Charalambos Christodoulides. (
2. b)Ioannis Nicolaou, (
3. c)Andreas Christoforou, (
4. d)Panayiotis Neocleous (
5. e)Andreas HadjiKypris (
6. f)Andreas Anastassiou (
7. g)Christakis Christofi". Theapplicantaddressed,on 15.1.1981,alettertotheChaiiman of the E.S.C. complaining against such decision and his nonemplacement or promotion to scale B.I2. In that letter applicant pointed out that hewas evaluated in 1973 and placed on the list of candidates for appointment to scale B.12. He 15 further mentioned that he had information that 3 out of the7 persons appointed as above, had either entered the service after himor werenot includedinthelist of thoseeligibleforemplace­ ment at scale B.I2 and requested a reconsideration of his case. The E.S.C.met again on 23.1.1981 and after consideration of 20 his complaint, concluded as follows: " the applicant could not have been emplaced to the post of Technologist because his qualification (H.N.D.) is not a degree/diploma of a University or of a higher school or institution of a standard equal to B.Sc. 25 (Eng.) or an equivalent qualification". The applicant was informed accordingly by letter dated 24.1.1981. On 10.2.1981, the applicant addressed another letter tothe Chairmanof the E.S.C.(attachedto theopposition as Appendix Ή') objecting to such decision. The following 30 are stated in his letter: "1. I do not accept the decision of the Educational Service Committee that my qualifications are not proper for emplacement to the post of Technologist. 2. Your letter does not afford any explanation to me as 35 to why, although originally I was evaluated for emplace646 5 10 3 C.L.R. Constantinides v. Republic Savvides J. ment at scale B.12(Technologist), now, all of a sudden, my qualifications are not consideied as satisfactory. 5 10 3. There is also noexplanation as to how3 out of those 7 emplaced to thepost of Technologist whofor many years were not considered as possessing the proper qualifications for emplacement to such post, now all of a sudden they have been considered aspossessingthe proper qualifications. 4. Ireservemy rights to seek legal advice in pursuanceof my legitimate claim." In answer to the above letter of the applicant the E.S.C. wrote, on 18.2.1981, thefollowing letter (which is attachedto the opposition as Appendix Ό ' ) : - 15 "I refer to your letter dated 10.2.1981 and inform you as follows: 20 (
8. a)TheSchemes of Service in force require for thepost of Technologist, a Diploma of a Polytechnic or a degree or title of a University or other higher school of equal standing orof an institution of B.Sc. (Eng.) standard. 25 The Educational Service Committeeexamined your qualifications both during thefillingof the 7 posts of Technologistas wellasafter yourletterdated 15.1.1981, andfound thattheyarenotequivalent tothoserequired by the schemes of service. 30 (
9. b)Your colleagues whohave been emplaced to the post of Technologist possessadiploma ortitle ofa Univer­ sity or higher school or their qualifications have been evaluated by the Educational Service Committee as equivalent to them". The applicant,as a result,filedthepresent recourse on 20.3. 1981, challenging thevalidity of such decision. Thegrounds of law on which herelied,as subsequently amended on 29.3. 1982 by leave ofthe Court and with theconsent of counselfor 35 the respondent, are the following: 1. Therespondent,in violation of theschemes of service and/or as a result of a misinterpretation of same came 647 Savvides J. Constantinides v. Republic

(1984)to the conclusion that applicant's H.N.D. diploma in Mechanical Engineeringisnot suchastoentitletheapplicant to be emplaced at the scale of a Technologist in that such diploma is not a Diploma of a Polytechnic or title or degree of a University or other school of 5 equal standing or of an institution of B.Sc.(Eng.) standard.

1. The respondent has exclusive jurisdiction, inter alia, to promote members of the Educational Service.
2. Such power should be exercised by the selection of the 10 best candidates.
3. Having regard to the seniority, grading, merit, qualifications, as well as all matters which should have been taken intoconsideration bythe respondent, the applicant was undoubtedly superior to all other candidates and 15 should have been promoted to the post of Technologist. In arguing applicant's case, counsel for applicant contended by his written address that in another case, similar to that of the applicant, which is pending before the Court, the H.N.D. was recognised as equivalent to B.Sc, and also that in other 20 cases, the E.S.C. had decided that the H.N.D. diploma, taken prior to 1970, was equivalent to B.Sc, in Engineering. The fact that applicant was considered in 1973, when he was first appointed, as eligible for emplacement in the future at scale B.12,counselmaintained,isanindication that hisqualifications 25 were regarded as sufficient for such emplacement. He further contended that the qualifications of the interested parties are below the level of B.Sc. in Engineering, that the qualifications of the applicant are higher than those of any of the interested parties, none of whom possesses any qualifications in Mecha- 30 nical Engineering and that the applicant is senior to at least one oftheinterested parties,namely Mr. Andreas Christoforou. Counsel also submitted that the sub judice decision is not duly reasoned and that the respondent acted in excess or abuse of its powers in that the creation of new posts and the power 35 ofmaking or amending schemes of service vestsin the Council of Ministers and not in public officers. Lastly, counsel argued that the sub judice decision was taken in violation of Article 28of the Constitution, because in previous cases the respondent 648 3 C.L.R. Constantinides v. Republic Savvides J. decided that the H.N.D. isequivalent to a B.Sc. in Engineering and now it revoked its previous decisions by deciding that applicant's H.N.D. does not amount to a B.Sc, which is discriminatory against the applicant. 5 Counsel for therespondentsubmitted that the qualifications of the interested parties amount to qualifications of a degree ordiploma ofa University or havebeenevaluated asequivalent to those bythe E.S.C. With regard to the H.N.D. of applicant there isa decision of the Council of Ministers to the effect that 10 it is considered as equivalent to the Diploma of Technician Engineer which is granted by the Higher Technical Institute of Cyprus, which does not amount to a University degree or title. Besides, counsel continued, the interpretation and application of the schemes of service is within the discretionary power of 15 the E.S.C. With reference to the case mentioned by counsel for the applicant, in which the H.N.D. wasrecognisedasequivalent to B.Sc, counsel contended that the letter sent in that case was written by mistake and soon after another letter was sent to the person concerned revoking the previous letter, as 20 a result of which a recourse wasfiled,against the revocation. As far as the reasoning is concerned counsel maintained that thesubjudicedecisioninreasonedand thatmoreover,itsreasoning may be supplemented by the material in the file. She also argued that the 7 posts were in existence in the budget 25 law and the schemes of service on which the E.S.C. based its decision had been approved bythe Council of Ministers on7.
5. Lastly, counsel for the respondent argued that there hasnotbeenestablished anyviolation ofArticle28oftheConstitution and refuted the allegation that in any previous case the 30 respondent acted in a different manner creating inequality of treatment against the applicant. Even if it might have done so, a fact which isdenied, its action would have been contrary to law and applicant cannot base a claim for equal treatment in a case emanating from an unlawful act. 35 I shall deal first with legal ground

(1)which is composed of grounds (

1. a)and (
2. b)in the written address of counsel for applicant. In making a promotion or appointment the E.S.C. isboundtoapply the SchemesofService,and only personsqualified under such schemes may be considered as candidates for 40 such appointment or promotion. The schemes of service for 649 Savvides J. Constantinldes v. Republic

(1984)the post of Technologist, which is afirstentry post (Appendix 4 Ρ to the opposition) provide in this respect, the following: "Required qualifications: 1. Diploma of the Metsovion National Polytechnic or a higher Greek school of an equal standing in Mechanical 5 or Electrical Engineering or Architecture, or Civil En­ gineering or Chemical Engineering depending on the requirementsof the service. or (

1. a)Leaving certificate of a Greek or other equivalent 10 school of secondary education of Cyprus or overseas. and '(
2. b)Title/degree of a university or higher school or in­ stitution of an equal standing, of the level of B.Sc. in Engineering or an equivalent qualification in the 15 above sections depending on the requirements of the service. Note: In order to face problems concerning decisions about equivalence or not of qualifications or educational institutions and evaluation of the level of qualifications 20 or educational institutions for the purposes of thepresent scheme of service such procedure is established, as the Ministry of Educationmight have regulated by directions issued from time to time". It is obvious from paragraph 1(
3. b)of the scheme of service 25 cited above that an academic qualification of the level of a B.Sc. in Engineering is indispensable in order that a candidate be eligible for appointmentto the post of Technologist. The E.S.C, at its meeting of 5.1.1981, abiding by the schemes of service,decided to offer appointmenttocertainInstructorswho 30 possessed the qualifications required by theSchemes of Service, taking into account their seniority in the service. It is the allegation of counsel for applicant that applicant's H.N.D.isequivalent toaB.Sc,inEngineering. Thiscontention of counsel canbe answered by thecontentsof a decision of the 35 Council of Ministers which is containedin anannouncementby 650 3 C.L.R. Constantinides>*..Republic Savrides.J, the Minister- of Labour· and Social· Insurance- (Appendix *IA* to- the opposition)-which:, reads, as, follows: 5> "The Ministry of Labour and'Social:Insurance under,which the Higher Technical Institute is classified (Η.Τ.Γ.) announces that after a relevant!decision of.the Council,of Ministers (Decision No. 17.125 dated 27.8:1978) the following* are defined,withiregard to the dipbma of Technician.Engineer, granted; by, the, HiT-I'. (a). 10 15 (b)i The qualifications obtained' in> England known as, Higher National!Diploma (H.N.D.) and1 Higher NaT tional Certificate-(H.N.C.):wilI'be-considered as equi­ valent to the-Diploma of the Higher Technical1Insti­ tute. Therefore where these qualifications are requiret in- existing schemes of service or- Regulations, the: could be also· satisfied by persons· possessing tht. Diploma»of* (HiT.I. (Higher Technical'Institute)):. Although no evidence was adduced about the establish^ procedure,mentioned in^he.Schemes of Service and the direct­ ions regulating it, once there is an official· decision regarding the, 20 standard'of the H.N.D. that decision had to be followed1 by tht E.S.C Itis clear from theabove announcementthatthe H:NiD i is,officially recognised as, being equivalent to the diploma oh the H.T.L which is not of a B.Sc level; but inferior, to it. No, other evidence was adduced proving or indicating that the 25 H.N.D. is.equivalent in standard to a B.Sc. I feel that I should also mention that studying the personal' file, of the applicant (exhibit Ι),Γcame across a note from the Chairman of the E.S.C, dated 21.1.1981', (to be found at blue 47); which reads as follows: 30 35 "The applicant was in fact on the list of Technologists eligible for promotion' and he is in fact senior to certain others who- have been lately emplaced at this post. The applicant possesses the Higher National Diploma and the decision of the Committee was to emplace at the post of Technologist only those possessing a degree or title, of a University or an equivalent qualification. 65 l· Sawides J. Constantinides v. Republic

(1984)The allegation that certain of the Technologists were not on the relevant list is also correct, but there has been regarding them, a decision of the Committee (after an opinion from the evaluation Committee) that their qualifications were equivalent to a degree/title of a University". 5 I am not goingto examine now whether applicant wascorrectly placed on such list in the first place since I^consider it immaterial for the outcome of the present recourse. It is the duty of appointing organs when effecting appointments or promotions, to consider the quahcations of candidates and find 10 whether they satisfy the required qualifications for the particular post to which the appointment or promotion is effected. The respondent found at the time of effecting the appointments or promotions in question that the applicant did not satisfy the requirements ofthe schemeofserviceregarding qualifications 15 and could not have found otherwise, in view of the contents of the decision of the Council of Ministers mentioned above. Moreover, the power of interpreting the schemes of service is within the absolute discretion of the appointing organ and this Court will not interfere if it was reasonably open to such 20 organ to decide as it did (see Papapetrou v. Republic,2 R.S.C.C 61, 69-70, Michael (No. 2) v. Republic

(1975)3 C.L.R. 432, 436 and Andreou v. Republic

(1979)3 C.L.R. 379, 386-387). With regard to the allegation of counsel for applicant that in another case, similar to that of his client, the respondent wrote 25 a letter recognising his H.N.D. as equivalent to a B.Sc, I find that, as counsel for the respondent has put it, that letter was written by mistake and waslater withdrawn, hence recourse No. 7/80, which turns against such withdrawal. I, therefore, find, on the basis of the above, that this ground 30 of law (which contains grounds (a) and (b) as set out by counsel in his written address) should be dismissed. I come now to examine legal ground

(3)of the original application which contains grounds (c), (

1. d)and (
2. e)of counsel's address. This ground is based on the comparison of applicant and the interested parties. It is the applicant's allegation that the qualifications of the interested parties are inferior to his and are not equivalent to a B.Sc, in Engineering. 652 35 3 C.L.R. Constantinides v. Republic Sawides J. As I have already said, the power to interprete the schemes of service and decide whether a particular candidate possesses the qualifications required by a particular scheme of service, is vested in theappointing organ, which in this case, is the E.S.C, 5 and this Court will not interfere if it was reasonably open to such organ to decide, on the material before it, that a parti­ cular candidate possessed or not such a qualification. (See Paraskevopoullou v. Republic

(1971)3 C.L.R. 426, 432; Lambrakis v. Republic

(1973)3 C.L.R. 29, 33; Michael (No. 10 1) v. Republic

(1975)3C.L.R. 136,atp. 141;Stylianou v.Republic

(1980)3 C.L.R. 11, at pp. 17-18). In this particular case, the qualifications of the interested parties were different than those of the applicant. The E.S.C, bearing also in mind,in this respect, the views of the Evaluation 15 Committee, considered these qualifications as equivalent t B. Sc There is a specific decision of the respondent, date. 29.3.1979 (Appendix T ) with regard to the qualifications c interested parties Christakis Christofi and Andreas Christoforoi that their qualifications are equivament to a B.Sc Th 20 qualifications of interested party Chr. Christofi, as set out i the comparative table attached to the opposition, are the follow ing: "(

1. a)Leaving certificate of the Lanition Gymnasium. 25 (
2. b)Diploma in Telecommunication Engineering and Ele ctronics of the Norwood Polytechnic. (
3. c)Graduate of the Institute of Electronics and Radii Engineers. (
4. d)Post-graduate Diploma in Electronics, of the Univer sity of Wales". 30 35 This interested party as it seems from his personal file whicr is exhibit 5 before the Court, had applied to the E.S.C for ί recognition of his qualifications as equivalent to B.Sc, for tin purpose of emplacement on B.12 (see blues 46-60) attaching a letter from the British Council in which it was certified tha the Diplomain TelecommunicationEngineering and Electronic: from Norwood Technical College is regarded as being of tht standard of B.Sc, of a British University, and that the post­ graduate Diploma from the University of Wales is above firs degree standard (blue 51). 653 Sawides.J.'. Coastantinides τ. Republic

(1984)' It'appears alsothat a'letter was written,on behalf of the-Eva­ luation Committee addressed to the Department of Education and Science intEngland, seeking ihformation-about'the standard. ofithe Diploma-of the interested party. As a result,, the above department sent'a letter1to-the·Evaluation Committee attaching. a list:of colleges and universities and other institutions granting degrees and equivalent qualifications (blues 53-58). It' also sent a letter, to the interested party, which* reads as follows (blue 59):- 5 "Dear. Mr. Christofi, 10 Iiv reply to your letter of 4 January,. I can confirm that the College Diploma- in Telecommunication^ Engineering and Electronics from Norwood Technical College is regarded as.being of the standard of a first degree (B. Sc:)j of a1 Britisrr Univeisity. The diploma gives entire exemption from* the Gradiiateship'examination of the In­ stitution1of Electronics and Radio Engineers, the.academic requirement for graduate membership being a pass degree· in-Engineering or an'allied discipline obtained in theUnited Kingdom: 15 20 The Post-graduate Diploma in Electronics-from the Uni­ versity/ of Wales Institute of Science and. Technology, is above first degree standard', since a B;Sc is a condition of entry. Γ hope- this help solve your problem"! Thereafter,, the E.S.C having all the-material· before; it'and. the views of the Evaluation Committee,accepted this interested. 1 party's qualifications as equivalent to a B.Sc. in Engineering; anddecided toplace-himonthelistof thosequalified for appoint­ ment to B.12. 25 ; 30 Interested party Andreas Christoforou possesses the following qualifications: (

1. a)Leaving certificate of the Lanition Gymnasium. (
2. b)Diploma in Electronics and Communication Engineer­ ing of the Northern Polytechnic (c)- Graduate of the Institute of Electronics and Radio Engineers. 654 ^5 3 C.L.R. Constantinides v. Republic Sawides J. A similar procedure to.that taken by interested party Christofi was also taken by this interested .party, attaching a letter from the Institutionof Electronics and RadioEngineers to the effect that thecourse leading to.the award of the Diploma of the Poly5 technicof North Londonhas been recognised as being of•degree standard and those who follow it now are awarded the degree of .B.Sc. in Engineering (personal file exhibit .3). The E.S.C had also decided,in the case of this interested party, on 29.3. 1979 that he possessed the qualification required by the.scheme 10 of service for the post of Technologist. Regarding interested party loannis Nicolaou there is no in­ dividual decision in 'his personal file (exhibit .2) recognising :his qualifications, 'but since he possesses the Diploma of .the Nor­ thern Polytechnic, which was recognised :by the E:S.C in-the 15 case of interested iparty Christoforou as equivalent to a 'B.Sc :it was reasonably open to the respondent E:S.C. to act in the same way in his case. He also possesses the City and Guilds Certificate. An individual decesion of the E:S.C regarding ,the qualifica20 .tions of interested party Andreas Anastassiou is .also to ibe found in'his file'(exhibit 4) dated 27.11.1979 which was taken on the basis;ofa-letter'from the British Council regarding the level of his qualifications, which are the same as those of inter­ ested party Christofi (stated above, except for thepost-graduate 25 diploma of the University of Wales possessed by Christofi), and in respect of whom a decision-had already been-taken'by the E.S.C. on 29.3.1979. 'Lastly, regarding interested party Andreas HadjiKypiis, who possesses<(a)a leaving certificate of the Lanition<Gymna30 .sium, (
3. b)Hochschukingenieur of Dresden University and-(
4. c)Diplomingenieur of the same University, he had submitted, together with his application for appointment, a certificate from Dresden University to the effect that the "Diplom-Ingeriieur" is equivalent to the title of Master of Science awarded 35 iby British 'Universities (file exhibit 6). With all the above in mind,Ί find that it was reasonably open •to.the respondent E.S.C to decide as it did regarding thequalifications of the interested parties, and I therefore dismiss the '655 Sawides J. Coostantioides v. Republic

(1984)contention of counsel that the qualifications of the interested parties are below the B.Sc. level and inferior to those of the applicant. Counsel's submission that the subjudicedecisionisnot duly reasoned is utterly untenable since such reasoning isvery clearly 5 stated in the letters of the E.S.C sent to the applicant, dated 10.2.1981 and 18.2.1981, reference to which has already been made. I also find as completely groundlessand untenable the ground concerning excess and abuse of powers as I have already found 10 that it was reasonably open tothe respondent to decide asit did. Lastly, concerning the ground of unequal treatment of the applicant, no evidence wasadduced on hisbehalf to substantiate hisallegations that the H.N.D.has,inother cases,been regarded as equivalent to a B.Sc, and I therefore dismiss it, having also 15 in mind the decision of the Council of Ministers dated 27.8. 1978, reference to which has already been made earlier in this judgment. In the result, this recourse fails and is therefore dismissed, with no order for costs. Recoursedismissed withno order as to costs. 656 20