(1984)1984 April 7 [TRUNTAFYLUDES, P.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION ACHILLEAS LOIZIDES, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC SERVICE COMMISSION, Respondent. (Cases Nos. 240/83,357/83). Public Officers-—Promotions—Additional documents in file of interested party which had effect of making him appear a public. official of great merit—But copiesof documentsfrom files of the appropriate Department, whichcontainedhighpraise of the work done by applicant at variousstages of his careernotfound in his 5 personal file—Respondent Public Service Commission prevented from taking duly into account all material considerations—And thus its relevant discretionarypowers wereexercised ina defective manner—Sub judice decision annulled. Administrative Law—Discretionary powers—Defective exercise of— Throughfailure to take duly into account all material considerations. The applicant and the interested party were candidates for promotion to the post of the Director of the Department of Lands and Surveys. The Public Service Commission promoted the interested party and hence these recourses. 10 15 Though in the file of the confidential reports regarding the interested party there were to be found additional documents regarding an offer that had been made to him to appoint him to another very high post and which had the effect of making him 20 appear to be a public official of great merit, there werenot to be found in the personal file of the applicant, which was placed before the respondent Public Service Commission, copies of documents from files of the Department of Lands and Surveys 960 3 C.L.R. 5 10 15 20 25 Lofzides v. Republic which contained high praise of the work done by him at various stages of his career and which could influence favourably the view of the Commission as regards his suitability for promotion to the post of the Director of the said Department, for which there was preferred by the Commission the interested party even though he was junior to the applicant. Held, that the Commission, in reaching its sub judice in the •present proceedings decision, was prevented from taking, and thus failed to take, duly into account all material considerations and, consequently, its relevant discretionary powers were exercised in a defective manner; accordingly the sub judice decision must be annulled. He[d, further, that the defective exercise of the powers of the Commission assumes even more decisive significance in view of thefact that, asit appears from all the material before-the Court, the margin by which the interested party was found to be more suitable for promotion than the applicant was, quite small. Sub judice decision'annulled. Cases referred to: Michael v. Republic
(1982)3 C.L.R. 1123 at p.* 1129; Ioannou v. Republic
(1983)3 C.L.R. 75 at p. 79;" Smyrnios v. Republic
(1983)3 C.L.R. 1202 at"p. 1210;' Constantinou v. Republic
(1983)3 C.L.R. 136 at>p; 142; foanncu v. Public Service Commission
(1983)3 C.L.R. 449'at pp. 458, 459; Kyprianides v. Republic
(1965)3 C.L.R. 519 at pp. 527, 528; Paphitis v. Republic
(1967)3 C.L.R. 300 at pp. 305,,306; Andreou v. Republic
(1973)3 C.L.R. 101 at p. 108. 30 35 Recourses. Recourses against the decision of the respondent r to promote* the interested party to the post of Director of the Department" of Lands and Surveys in preference and instead of the apphcant. A. Dikigoropoulos, for the applicant. N. Charalambous, Senior Counsel of the Republic;for. the respondent. A. Triantafyllides with G. Triantafyllides, for the interested party. Cur. adv. vult. 961- LoizJdes v. Republic
(1984)TRIANTAFYLLIDES P.read thefollowing judgment. Bymeans of these two recoursestheapplicantchallenges,ineffect, thedecisionoftherespondentPublicServiceCommissiontopromote, instead of him, Rois Nicolaides (to bereferred tohereinafter as the"interested party")tothepostoftheDirector oftheDepart- 5 ment of Lands and Surveys, as from the 1st July
- Counselfor theapplicantfiled, initially,onthe7thJune1983, recourse 240/83 against the said decision of the respondent Commission, which had been taken on the 30th May 1983and whichwaspublicized inthedailypresson oraboutthe5thJune 10
- Then,after suchdecision waspublishedintheOfficial Gazette of the Republic on the 8th July 1983,counsel for the applicant filed, on the 8th September 1983,recourse 357/83,challenging once again the promotion of the interested party. 15 It wasdirected bythe Court, withthe consent of counsel for alltheparties,that bothrecoursesweretobeheardtogetherand that thepleadingswhichwerefiled incase240/83wouldbeconsidered as filed, also, in respect of case 357/
- A preliminary issue which has been raised in these proceed- 20 ingswaswhetherthefirst recourse,240/83,ispremature,because itwasfiledbeforethepublicationintheGazetteofthepromotion of the interested party. I do not consider that this issue is of decisive significance in thisinstance, becauseonlyifcase357/83hadnot beenalsofiled 25 thedismissal,possibly,ofcase240/83asbeingprematurewould haveentailed theend ofthejudicial processagainst thepromotion of the interested party. Since, however, such promotion hasbeenchallenged toobycase357/83and as,withtheconsent of all parties, both cases - 240/83 and 357/83 - were heard 30 together, it is really immaterial whether or not case 240/83 is premature. I must, in anyevent, point out that it wasnot only prudent, butalsoadvisable,inmyview,tochallengethepromotion ofthe interested party bymeans of case 357/83,because, on the basis 35 ofthe provisions of subsections
(5)and
(6)of section 44of the Public Service Law, 1967 (Law 33/67), the process of making suchpromotion wasformalized byitspublication inthe Official 962 3 C.L.R. Loizides v. Republic Triantafyllides P. Gazette of the Republic; and, indeed, in my opinion, there can be no doubt, when Article 146.3 of the Constitution and section 44
(6)of Law33/67areread together,that theperiod of seventy-five days which is prescribed in Article 146.3 did not 5 begintorunagainsttheapplicant untiltheaforesaid publication in the Gazette. On the other hand, I think that it may be usefully observed that the provisions of Article 146.3 of the Constitution should not be construed asexcluding thefiling of a recourse against a 10 promotion before its pubhcation in the Gazette, because such a coursemay becomenecessary in a situation such as the present one where the applicant filed together with case 240/83 an application for aprovisional order seekinga stay ofthedecision of the respondent Commission to promote the interested party 15 (eventhough,eventually,suchapplicationhasnotbeenpursued). The promotion post in question was to be vacated on the 1st July, 1983, but as the Director-General of the Ministry of Interior, under which comes the Department of Lands and Surveys,hadrequested itsfilling bytherespondent Commission 20 byaletter dated the30thApril 1983,andastheoutgoingholder ofthepostwastobeonleavepriortohisretirementasfrom the 10th May 1983, theCommission, at its meeting on the 12th May 1983,decided,inviewoftheprovisionsofsection21ofthe Interpretation Law, Cap. 1,to setin motion the process for the 25 filling of the post. Asa result,it proceeded to interview, onthe 30th May1983, in the presence of the Director-General of the Ministry of Interior, threecandidates who were eligible for promotion and wereholdingtheimmediatelylower post of Senior Land Officer, 30 namelytheapplicant,theinterestedpartyandAndreasMavreas. Themostseniorofthethreeinthepostof Senior Land Officer was Mavreas who had been promoted to such post on the 1st June 1968, then there followed the applicant and the interested party who had been promoted to the said post on the 35 15th December 1969 and the 15th June 1972, respectively. The respondent Commission.found the interested party to besuperior totheother twocandidatesand decided to promote him to the post of Director of the Department of Lands and Surveys as from the 1st July, 1983. 963 Triantafyllides P. Loizides v. Republic
(1984)On the basis of the contents of the relevant minutes of the respondent Commission, which are dated 30th May 1983, and of thematerial which isreferred to therein and which was placed before this Court during the hearing of these cases, I have reached the conclusion that this is, essentially, an instance in which, even though by a quite small margin, the Commission found the interested party to be on the whole superior to the applicant, notwithstanding the seniority of the latter over the former. 5 Consequently, in a case such as the present one, I could not 10 interfere with the subjudice decision of the Commission since I have not been satisfied that such decision was not reasonably open toit (see,in thisrespect,inter alia, Michael v.TheRepublic,
(1982)3 C.L.R. 1123, 1129, Ioannou v. The Republic,
(1983)3 C.L.R. 75, 79, and Smyrnios v. The Republic,
(1983)3 C.L.R. 15 1202, 1210); and as it was not found by the Commission that the applicant and theinterested party weremore or lessequal in every other respect it could not be held that the seniority of the applicant over the interested party ought to have decisively prevailedinhisfavour (see,inthisrespect,interalia,theSmyrnios 20 case, supra, at p. 1208, Constantinou v. The Republic,
(1983)3 C.L.R. 136, 142 and Ioannou v. The Public Service Commission,
(1983)3 C.L.R. 449, 458, 459). ^ Whathasturned intheendthescalesinfavour ofthe applicant and has led me to the conclusion that the promotion of the 25 interested party should beannulled isthefact that, though in the file of the confidential reports regarding the interested party there were to be found additional documents regarding an offer that had been made to him to appoint him to another very high post and which, naturally, had the effect of making him appear 30 to be a public official of great merit, there were not to be found in the personal file of the applicant, which wasplaced before the respondent Public Service Commission, copies of documents from files of the Department of Lands and Surveys which contained high praise of the work done by him at various stages of 35 his career and which could, obviously, influence favourably the view of the Commission as regards his suitability for promotion to the post of the Director of the said Department, for which there was preferred bythe Commission theinterested party even though he was junior to the applicant. 40 964 3 C.L.R. Loizides v. Republic Triantafyllides P. As a result I felt clearly constrained to conclude that the Commission, in reaching its subjudiceinthepresent proceedings decision, was prevented from taking, and thus failed to take, duly into account all material considerations and, consequently, 5 its relevant discretionary powers were exercised in a defective manner (see, inter aha, in this respect, Kyprianides v. The Republic,
(1965)3 C.L.R. 519, 527, 528, Paphitis v. The Republic,
(1967)3 C.L.R. 300, 305, 306 and Andreou v. The Republic,
(1973)3 C.L.R. 101, 108). 10 The aforesaid defective exercise of the powers of the Commission assumes even more decisive significance in view of the fact that, as it appears from all the material before me, the margin by which the interested party was found to be more suitable for promotion than the applicant was, as already 15 stated, quite small. In the light of the foregoing it follows that the decision of the respondent Commission to promote the interested party has to be annulled. I shall not, however, make any order as to the costs of these 20 proceedings. Subjudice decisionannulled. No orderas to costs. 965