3 C.L.R. 1984 June 20 [A. Loizou, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION XENOPHON MICHAEL AND ANOTHER, Applicants, v. THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC SERVICE COMMISSION, Respondent. (Cases Nos. 408/82 and 425/82). Public Service Law, 1967 (Law 33/67)—Service on daily wages— Not public service within the meaning of "public service" and "service" in the definition section 2 of the Law. 5 Public officers—Schemes of service—Expressions used therein to be used with the same meaning as in the Public Service Law, 1967 unless otherwise clearly indicated—"Service" in the relevant scheme of service construed as not including service on daily wages—Section 2 of the Law definition of "public service" and "service". 10 Public Officers—Promotions—Head of Department—Recommendations—Disregarded because of the better confidential reports and the seniority of the interested party. 15 20 These recourses were directed against the validity of the promotion of the interested parties to the post of Technician 1st Grade in the department ofAntiquities in preference and instead of the applicants. The relevant scheme of service required, inter alia, "at least ten years total service in the Department of Antiquities". Though applicant in recourse 408/82 was recommended for promotion by his Head of Department the respondent disregarded such recommendation on the ground that the interested party had better confidential reports than 769 Michael and Another τ. Republic
(1984)thisapplicantand was ahead,also,tohimin seniority on account of the previously held by them posts. On the questions: (
- a)Whethei the service of applicant in recourse 425/82 on daily wages could be considered as "service'* within the meaning of the relevant schemes of service; and 5 (
- b)Whether the respondent Commission has given cogent reasoning for disregarding the recommendations of the Head of Department in favour of the applicant in recourse 408/82. 10 Held,
(1)that service by persons whose remuneration is calculated on a daily basis is not considered as a public service within the meaning of "public service" and "service" in section 2 of thePublic Service Law, 1967 (Law 33/67); that the making of schemes of service by the Council of Ministers is a matter 15 governed by section 29 of the Public Service Law; and, that, consequently expression? used therein have to be taken as being used with the same meaning as in the Law itself unless other wise clearly indicated; accordingly applicant in recourse 425/82 did not satisfy the requirements of the schemes of service and 20 his recourse should fail onthe ground that he had no legitimate interest
(2)That the respondent Commission gav< a cltar and cogent reasoning as to why the recommendationof the Headof Depart ment was disregarded which consisted of the better confidential 25 reports and the seniority of the interested party; accordingly recourse 408/82 must, also, fail. Application dismissed. Cases rtferred «o: Aivaliotisv. Republic
(1970)3 C.L.R. 149; 30 Theodcssiou v. Republic,2 R.S.C.C. 44; HadjiConstantinou v. Republic
(1973)3 C.L.R.
- Recourses. Recourses against the decision of respondents to promote the interested parties to the post of Technician 1st Grade in 35 770 3 C.L.R. 5 Michael and Another >. Republic the Department of Antiquities in preference and instead of the applicants. A. Ladas, for applicant in Case No. 408/
- C. Emilianides, for applicant in Case Mo. 425/
- A. Papasavvas, for the respondent. A. Xenophontos, for interested party loannis Cleanthous. G. Teoulidcs, for inlercsicd party loannis HadjiSavvas. Cur. adv. vult. A. Loizou J. read the following judgment. By these two H) recourses which have been tried together as they challenge the legality of the same administrative decision, the two applicants were seeking the annulment of the promotion of the interested parties Christofis Polykarpou, loannis HadjiSavvas and Marinos Vaios to the post of Technician IstjGrade in the I? department of Antiquities instead of themselves. It should, however, bepointed out here that as far as recourse No. 408/82 is concerned same was withdrawn against interested parties Cleanthcus, Polykarpou and Vaios and it was dismissed accordingly and proceeded for hearing only as against interested 20 party HadjiSavvas. As regards Recourse No. 425/82 which proceeded against all interested parties, an objection was raised that the applicant in this recourse had no legitimate interest inasmuch as he did not satisfy the Scheme of Service which required in the second note 25 to the qualifications within which all candidates became elibiglc, "at least ten years total service in the department of Antiquities". It will simplify matters if I deal with this legal point first, but it is essential for that purpose to refer briefly to the relevant facts of the case. 30 The post of Technician 1stGrade isa promotion post from the lower post of Technician 2nd Grade. For the purpose of the fillingof this promotion post a Departmental Board was set up under the Chairmanship of the Director of Antiquities. Applicant Demetriou was not included among those recommended 35 by the said Board as he was found not to satisfy the Scheme of Service for the post. That is,he did not have at least ten years service in the Department of Antiquities. In fact aftei the firstreport of the Board, dated 22nd April 1982,a second report 771 A. Loizou J. Michael and Another v. Republic
(1984)dated 6th May, 1982, was forwarded to the respondent Commission in substitution of the first one but the applicant was once more not included in this report for the same reason. Applicant Demetriou after some service in the Antiquities department on daily wages, did his national service and on the 5 25th August 1966he was rc-cmployed by the Antiquities department on daily wages. He wasappointed asMuseum Attendant on the 16th October 1972 and became a Museum Assistant, permanent, on the 1st Feburary
- The title of the last post he held was changed to Archaeological Assistant on 1stJanuary 10
- The request for the filling of the post of the vacancies in question under section 17 of the Public Service Law was received by the respondent Commission on or about the 3rd March,
- It is an admitted fact that if the service of the applicant on daily wages, cannot in law be considered as 15 included in the notion of service referred to in the relevant Scheme of Service, he was not eligible for promotion under the Scheme, as he had not by then completed ten years of service in the department of Antiquities. InthePublic Service Law, 1967,"service"and "publicservice" 20 are defined in section 2 thereof as meaning: " 'public service" means any service under the Republic other than the judicial service of the Republic or service in the Armed or Security Forces of the Republic or service in the office of Attorney-General of the Republic or Auditor 25 -General or Accountant-GeneraI or their Deputies or service in any office in respect of which other provision is made by law or service by persons whose remuneration is claculated on a daily basis; 'service' means public service". By virtue of this definition service by persons whose remuneration is calculated on a daily basis is not considered as a public service within the meaning of the said Law. Furthermore "office" is defined as meaning a public office and the combined effect of sections 22 and 32 is that 35 offices, are classified into permanent and temporary and they may be filled either on a permanent basis or onatemporary basis on contract for a limited period or on a month to month basis, as far as permanent offices are concerned and as far as temporary offices arc concerned they may be filled cither 40 by the secondment of a permanent officer or by the appointment 772 30 3 C.L.R. Michael and Another v. Republic A. Loizou J. of a person on contract for a limited period or on a month to month basis. Moreover sections 40 and 41 of the Law regulate the appointments on contiact and on a month to month basis. The Law as such leaves no room to consider employment on 5 daily basisas serviceand to mymind ihe terms usedin a Scheme of Service must be given the meaning which is given to them by the Public Service Law, unless from the context in which they are used in the Scheme of Service a different meaning has to be asciibed to them. 10 Needless to say that the making of Schemes of Service by the Council of Ministers in which are presciibed the general duties and responsibilities of offices and the qualifications required for the holding thereof, is a matter now governed by section 29 of the Public Service Law (See Aivaliotis v. TheRepublic 15
(1970)3 C.L.R. 149). Consequently expressions used therein have to be taken as being used with the same meaning as in the Law itself unless otherwise clearly indicated. For all the above reasons recourse No. 425/82 by applicant Andreas Demetriou should fail on the ground that he has no 20 legitimate interest. As regaids the applicant in recourse No. 408/82 the main ground upon which learned counsel on his behalf argued was that though he had been recommended by the Head of the Department, the respondent Commission disregarded same 25 without giving cogent reasoning for doing so, contrary to the well established principles of Administrative Law as expounded in the case of Theodosiou v. The Republic, 2 R.S.C.C. p.44 and followed in a number of cases inter alia HadjiConstantinouv. The Republic
(1973)3 C.L.R. 65. The relevant minute of the 30 respondent Commission of the 17th May, 1982 reads as follows: 35 "The Commission having examined the material elements from the personal files and the Confidential Reports of the candidates and having taken into consideration the conclusions of the Departmental Board and the views and recommendations of the Direclor of the department of Antiquities, adopted the recommendation of the Director, except in the case of Xenophon Michael in the place of it selected Mr. loannis HadjiSavva who has excellent 773 A. Loizou J. Michael and Another v. Republic
(1984)confidential reports during the recent years as compared to Mr. Michael who was graded as 'very good". Mr. HadjiSavva is ahead also to Mr. Michael in seniority on account of the previously held by them posts. The Commission noted also that Mr. Michael was graded during 1978 by the Director himself as 'very good* in three items and 'good' in seven, whereas Mr. HadjiSavvas was rated by the Director as 'excellent' in the ten rateable items. 5 in conclusion the Commission on the basis of the clement before it decided that the following arc superior to the rest 10 of the candidates on the basis of the totality of the established criteria (merit, qualification, seniority), found them suitable and decided to promote them to the (Permanent Ordinary Budget) post of Technician 1st Grade as from the 1st June,
- !5
- HadjiSavva loannis". The aforesaid minute speaks for itself and gives the answer t o the argument advanced on behalf of this applicant. There is clear and cogent reasoning as to why the recommendation of the Head of the Department was disregarded. 20 In fact the Head of the Department, never recommended the applicant as being superior to the others, but in a way, he did recommend him for promotion because he was in charge of one of the technical blanches of the Depaitment of Antiquities, namely the Photographic Studio and his work was very 25 satisfactory having specialised as a photographer and was working in that capacity for the department and also for which purpose he had been sent to England on a six months course in order to specialize in colour-photography (see Appendix 8). These matters, however, are more relevant to matters relating t o the structure of the service and not to the promotion of candidates in posts which do not make such qualifications an advantage. 30 On the totality of the material before the lespondent Commission the sub judicc decision was reasonably open to it and co- 35 gently reasoned, both as regards the selection of the applicant 774 3 C.L.ii. Michael and Another v. Republic Λ. Loizou .
- as being the most suitable for the post and also as regards their disregard and the recommendation of the Head of the Depart ment. 5 Foi all the above reasons this recourse should also fail. In the result both recourses aie dismissed but in the circumstances there will be no order as to costs. Recoursesdismissed with no order as to costs. 775