clr/1984/1984_3_839.pdf

(1984)parable to those of this applicant, if not better, especially those of interested party Nicolaidou. Applicant Kalaitzis had better qualifications than interested party Kaplani and marginally better than interested party Nicolaidou but both the lattei were senior to him and they had a slight edge over him regarding 5 merit. Both the interested parties were recommended for promotion by the Head of Department but applicants were not so recommended. Held, that merit isthefirst and foremost consideration for the manning of the public service; that seniority is the least con- 10 sequential factor in the selection process and it becomes prominent only if the candidates balance equally on the first two factors, merit and qualifications; that additional qualifications to those envisaged by the schemes of service, unless singled out by theschemeof serviceasa specific advantage arenot in them- 15 selvesdecisiveora distinctconsideration towhich theappointing body should haveregard but merelyoneother factor that should beponderedinthecontextoftheoverallevaluationofthesuitability of a candidate for promotion; that the recommendations of the Headof Department offer good reason for thechoice of a 20 candidate with less academic qualifications than other candidates; that it was for the'Public Service Commission to balance the suitability of candidates for promotion and make a choice best designed to serve the interests of the public service; that in the light of the material before them, it was,at the least, 25 reasonably open to them to choose the interested parties; and that, accordingly, the recourses must fail. Applications dismissed. Cases referred to: Christoudiasv. Republic

(1984)3 C.L.R. 657; 30 Georghiou.v. Republic

(1974)3 C.L.R. 74; Kleanthousv. Republic

(1978)3 CX.R. 320; Larkos v. Republic

(1982)3 C.L.R. 513; Tokkas v. Republic (1,983) 3 C.L.R. 361; Skarparisv. Republic

(1978)3 C.L.R. 106 at p. 116;Recourses. . . . Recourses against the decision of the respondents to promote 840 35 3 C.L R. Kalaitzis and Another v. Republic the interested partiesto the port of Senior Radiographer (Radiodiagnostic) in preference and instead of the applicants. A. S. Angelides, for applicant in Recourse No. 453/

1. A. Magos,, foi applicant in lecourse No. 473/
2. 5 A. Vladimirou, for respondents. N. Zomenis,for interestedparty Maria Nicolaidou. Cur. adv. vult. PIKIS J. read the following judgment. Like many cases of review of administrative action, the present recourses revolve 10 round the exercise of the discretionary powers of the Public Service Commission. We are required to decide whether the P.S.C. exceeded its powers by adopting a course not open to it or abused its powers by invoking them for a purpose extraneous to the law or the proper needs of the Administration. The facts 15 of the case are fairly simple and may be recited without much effort. Two posts of Senior Radiographer (Radiodiagnostic) were opened for promotion inthe Medical and Pubhc Health Department. The process was duly initiated for the filling of the 20 vacancies. The scheme of service postulated the following two qualificationsfor appointment: (a)Fiveyearsserviceas Radiographer (or Assistant Radiographer, a position apparently abolished), and (b) Very good knowledge of Greek and English.
3. A Departmental Committee of Senior Medical Officers under the Chairmanship of the Director of Medical Services was set up under section 36of Law 33/67to sift thelist of candidates for promotion, determine their-eligibility and lastly evaluate their suitability for appointment. Of the 37 candidates, 31 were 30' found to be eligible, that is, they possessed the qualifications envisaged bythe schemes of service. Thereafter, the Committee examined the suitability of the candidates for appointment on a comparison of their relative worth, deriving from their service record. Eight of them were recommended as best suited for 35 promotion. The hst of recommended candidates included the. two interested parties,.namely,.Maria Nicolaidou and Ioannai Kaplani,andone.of theapplicantsintheseproceedings,Achilleas:; Kalaitzis., Specific,reference ismade^to thereasons forthenon-inclusionof 'Eleni Constantinou, the,other applicant in.these; 841 Pikis J. Kalaitzis and Another v. Republic

(1984)proceedings,in the hst of recommendees. Notwithstanding the length of her service, she was lowly rated in hei confidential reports in comparison to the candidates recommended. Onbeingfurnished with therecommendations of the Departmental Committee, the P.S.C. examined thefining of the posts 5 at two stages. First, it appraised the recommendations of the Departmental Committeeinordertodecidefor itself whoshould be included in the final list of candidates (see minutes of 9th July, 1983). This was the proper procedure to follow for the P.S.C.remained theultimatearbiters ofwhoshould beincluded 10 in the final list^of'candidates. The recommendations of the Departmental Committee in this respect, weighty though they are, are not beinding on the Commission (see, Christoudias v. Republic- delivered on 12.5.84 - to be reported).* After due consideration of the report of the Departmental 15 Committee and the material shedding light on the capabilities of the candidates, they decided to add two more candidates to thehstofcandidatessubmitted bytheDepartmental Committee. At the adjourned meeting of 23rd August, 1983, they heard initially the views of the Departmental Head, Mr. Markides, 20 the Diiector of Medical Services,and then proceeded to make the selectionofthecandidatestobeappointed. Theychosethe interested parties,a choicecoincidingwiththe recommendations of Mr. Markides. In recommending the interested parties, the Director did not 25 confine himself to a mere indication of his prefeience but gave the reasons that led him to recommend the two interested parties. His reasons may be summed up this way: Maria Nicolaidou was an altogether outstanding candidate and was recommended as his first choice. loanna Kaplani was an 30 officer with a long and successful career in the Department of Radiography, with very valuable experience in her field. His evaluation of their worth is consonant with their service tecord and confidential reports. The P.S.C. selected, as stated in their decision, the interested 35 parties after due consideration of the material before them bearing on the candidates and application of the criteria set by • Now reported in

(1984)3 C.L.R. 657. 842 3 C.L.R. Kalaitzis and Another v. Republic Pikis J. law for the evaluation of their suitability, that is, merit, qualifications and seniority. Thesoleissuebefore usiswhetherthisdecisionwasreasonably open tothem. Havingstudied every aspect ofthe caseand the 5 addresses of counsel, my answer is in the affirmative. My reasons are given below:Eleni Constantinou Comparison oftheconfidential reportsof Eleni Constantinou withthoseoftheinterestedpartiesrevealsthat thereportsofthe 10 latter were by far better; the superiority of the interested parties in this respect was manifest. The assessment of the Departmental Committee made in this area was well founded. Giventheirconfidential reportsitwouldbeinconceivableforthe Director to recommend Eleni Constantinou in preference to 15 either of the interested parties. It ishardly necessarytopursuethecomparison further for we haveitinthelawthatmeritisthefirstandforemostconsideration for themanning ofthepubhcservice. Andnumerousdecisions of the Courts confirm this position, so unequivocally that it is 20 unnecessary to refer to any individual decision affirming this principle as a fundamental rule of administrative law. The academic qualifications of the interested parties were, on any viewat least comparable to those of Eleni Constantinou, if not better, especially those of Maria Nicolaidou. 25 Only in terms of seniority did Eleni Constantinou excel over one of the inteiested parties, Maria Nicolaidou, while she was junior to loanna Kaplani. Seniority is the least consequential factor in the selection process; it becomes prominent only if thecandidatesbalanceequallyonthefiist twofactors,meritand 30 qualifications. Hence, I conclude, asindicated, that it wasnot only reasonably open to the P.S.C. to choose the interested parties in preference to Eleni Constantinou but inevitable on evaluation of the data defining their suitability for promotion. Achilleas Kalaitzis 35 Thecaseof Kalaitzismeritscloser study for on anysuiveyof his service record he was an excellent Radiographer with impressive academic qualifications. How did he compare with the interested parties, to begin with in terms of merit as 843 Pikis J. Kalaitzis and Another v. Republic

(1984)evidenced by their confidential reports. On a review of the totality of their servicerecordin this area, theinterested parties had a slight edge over Kalaitzis. So fai as the records before meieveal,reproducedintheaddressofcounselfor theRepublic, loanna Kaplani had anoverallratingof "excellent" continuous- 5" ly since

1. Maria Nicolaidou had a like rating since
2. Both had an annual excellent rating since they occupied the position of Radiographer, thesteppingstonetotheirpromotion. Kalaitzis had an annual overall rating of "excellent" since 1977 but a lating of "very good" for the years 1975and
3. It is 10 both relevant and necessary to have legard to the career of an officer as a whole in order to evaluate his worth (Odysseas Georghiou v. The Republic

(1974)3C.L.R. p.74). Thisexercise isuptorevealamultitude oftraitsinthepersonality,abilityand performance of an officer and as it is ordinarily the case, the 15 bigger the sample the more likely it is to disclose an objective viewof a matter. That isnot to suggestthat one should underestimate the importance of reports for recent years and their value as an indicatoi of present trends in the performance of an officer. Heie we may note that Kalaitzis for the year 1982 20 wasrated as "excellent" on 10items,whereasMaria Nicolaidou on 9, and loanna Kaplani on 8. On the other hand, for the year 1981Kalaitzishad an"excellent"ratingon7items,whereas each one of the interested parties had an "excellent" rating on 10 items. 25 In terms of academic qualifications one may infer from the comparisonofthelistofhisqualificationswiththoseofinterested parties, that he had better qualifications than loanna Kaplani and marginally better than Maria Nicolaidou. Additional academic qualifications to those envisaged by the schemes of 30 service,unless singled out bythe scheme of serviceasa specific advantage, are not in themselves decisive oi a distinct consideration to which the appointing body should have regard but merely one other factor that should bepondered in the context of the overall evaluation of the suitabiUty of a candidate for 35 promotion (see, inter alia, Kleanthous v. The Republic

(1978)3 C.L.R. 320; Larkos v. TheRepublic

(1982)3 C.L.R. 513; Tokkas v. The Republic

(1983)3 C.L.R. 361). In termsof length of servicetheinterested parties weresenior to the applicant; the seniority of loanna Kaplani was over- 40 whelming, 844 3 C.L.R. Kalaitzis and Another v. Republic Pikis J. The recommendations of a departmental head carry considerable weight because he is in a unique position to evaluate inthecorrectperspectivethecompetingmeritsofthecandidates, on the one hand, and appreciate the needs of the post to be 5 filled, in terms of ability, knowledge and experience of the beholder, on the other. In Skarparis v. The Republic

(1978)3 C.L.R., 106, 116, Triantafyllides, P., pointed out that the recommendations ofaMinistry offered good reasonfor thechoice of a candidate with less academic qualifications than other 10 candidates. Ultimately, it was for the P.S.C. to balance the suitability of candidates for promotion and make a choice best designed to serve the interests of the public service. In the light of the material before them, it was, at the least, reasonably open to 15 them to choose the interested parties. To my comprehension, this choice was an obvious one. For the reasons indicated in this judgment, the recouises fail·. They axe dismissed. Let there be no order as to costs. Recourses dismissed.No order,as to costs. 845