0886) 1985 February 21 [STYLIANIDES, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION MICHAEL EUA, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC SERVICE COMMISSION, Respondents. (Case No. 172/83) PublicOfficers—Promotions—Qualifications—Possession ofacademic qualifications additionalto those requiredby tfie scheme of service—And which are not specified in the scheme of serviceasan advantage—Effect. Public Officers—Promotions—Headof Department—And Departmental Boards—Theirfunctions are completelydifferent. Public Officers—Promotions—Selectionof candidates for promotion by the PublicServiceCommission—Principles applicable—And principles governing judicial control of such selection—Applicant failed to establish that he had strik- 10 ing superiority over the interestedparties. The applicant, a Senior Agricultural Superintendent, was a candidate for promotion to the post of Chief Agricultural Superintendent. The Public Service Commission promoted the interested parties to the above post; and hence this 15 recourse. Counsel for the applicant contended: (a) That the recommendations of the Head of Department were not duly reasoned and were contrary to the report and/or recommendations of the Depart- 20 38 5 3 CUR. Elia v. Republic mental Board which was chaired by the same person —the Head of the Department. (b) That the applicant was superior in qualifications to the interested parties. 5 10 15 '20 25 ' 30 35 40 Held, that the function of the Departmental Board is completely different from the function of the Head of Department when making his recommendations in the context of his statutory duty under section 44
(3)of the Public Service Law, 1967, because the duty of the Board is to select not less than two and not more than four for each vacancy and the function of the Head of Department at the meeting of the Commission is to recommend which of the candidates already submitted to the Commission by the Departmental Board should be appointed or promoted; that, moreover, the recommendations of the Head Department were consonant to and supported by the confidential reports and the other material in the file; and that though no extensive reasoning was given by 'the Head of Department, he gave sufficient reasoning which is supported by the material in the file of the Administration and his recommendations were not inconsistent with the recommendations of the Departmental Board; accordingly contention (a) must fail.
(2)That the applicant failed to satisfy the Court that • he has striking superiority over the other interested party even in qualifications; that possession of academic qualifications additional' to those required by the scheme of service which are not specified in the . scheme of service as an advantage, should not weigh greatly, in the mind of the Commission who should decide in selecting the best candidate on the totality of the circumstances before them.
(3)(After stating the principles governing selection ' of candidates by the Public Service Commission and the principles governing judicial control of such selection—vide pp. 44-45 post, that on the totality of the material before this Court the applicant failed to establish that there existed striking superiority 39 Elia v. Republic
(1985)over the interested parties or any of them as to lead to the conclusion tfiat the sub judice decision was taken in excess or abuse of power; that the Commission took into consideration all relevant matters and did not take into account any matter 5 which it ought not to; that the decision taken was reasonably open to the Commission; and that, accordingly, the recourse must be dismissed. Comments to the effect that no useful purpose isserved by the recording of the religion of any member of the 10 publice service in his official papers or in the documents which are placed before the Commission by the Administration for appointment or promotion purposes. Applicationdismissed. Cases referred to: 15 Menelaou v. Republic
(1969)3 C.L.R. 36; Theodossiou v. Republic, 2 R.S.C.C. 44; Evangelou v. Republic
(1965)3 C.L.R. 292; Republic v. Haris
(1985)3 C.L.R. 106; Thalassinos v. Republic
(1973)3 C.L.R. 386; 20 Soteriadou and Others v. Republic
(1983)3 C.L.R. 921 at p. 930; Hjiloannou v. Republic
(1983)3 C.L.R. 1041; Georghiou v. Republic
(1976)3 C.L.R. 74 at p.
- Recourse. 25 Recourse against the decision of the respondent to promote the interested parties to the post of Chief Agricultural Superintendent in preference and instead of the applicant. N. Stylianidou (Miss) for E. Efstathiou, for the applicant. N. Charalambous, Senior Counsel for the respondent. of the 30 Republic, Cur. adv. vult. 40 3 C.L.R. 5 Elia v. Republic STYLIANIDES J. read the following judgment. The applicant, a Senior Agricultural Superintendent, seeks the annulment of the decision of the respondent Public Service Commission dated 11.12.82 and published in the Official Gazette of the Republic No. 1838 of 11.2.83 whereby the two interested parties were promoted to the post of Chief Agricultural Superintendent in preference to the applicant. The Director-General of the Ministry of Agriculture and Natural Resources by letter dated 8.2.82 requested the 10 filling of one vacant post of Chief Agricultural Superintendent. A Departmental Board was established pursuant to s.36 of the Public Service Law, No. 33/67, and the Regulations made thereunder. As in the meantime another post became vacant, by letter dated 30.4.82 a further 15 request was made for the filling of this second vecant post. Thereafter the Departmental Board met on 16.6.82 under the chairmanship of the Director of Agriculture, Head of the Department, and recommended as suitable for promotion all five candidates in alphabetical order 20 and transmitted their recommendations to the Commission on 21.6.
- On 15.11.82 the respondent Commission heard the recommendations of the Head of the Department and issued the sub judice decision whereby the two interested parties were promoted. 25 Counsel for the applicant challenged the validity of the subjudice decision on the ground that the seniority of the interested parties was fictitious; that the recommendations of the Director were not duly reasoned, and were contrary to the report and/or recommendations of the 30 Departmental Board which was chaired by the same personthe Head of the Department; and that the applicant was superior in qualifications to the interested parties. Article 125.1 of the Constitution and thereafter Law No. 33/67 entrusted the Public Service Commission with the 35 sole competency to decide on all matters concerning, inter alia, the promotion of public officers. The object of the constitutional provision and of Law No. 33/67 is to safeguard the efficiency and proper functioning of the public 41 Stylianidas J. Ella v. Republic (198B) service of the Republic for the interest of the public whom they are designed to serve and also to protect the legiti mate interests of the individual holders of public offices. The respondeat Commission has the duty to select the most suitable candidate. In doing so they should base 5 their decision on merit, qualifications and seniority. Merit should carry the most weight because the functions of a public office are better performed by a public officer better in merit than seniority or qualifications—{TAenelaou v. The Republic,
(1969)3 C.L.R. 36). The confidential 10 reports and the recommendations of the Head of the Department are vital considerations—(Theodossiou ν The Republic, 2 R.S.C.C 44; Evangehu v. Thr Kep^tiii:.
(1965)3 C.L.R. 292; Section 44 of the Public Service Law, No. 33/67). 15 A Head of the Department is in a position to appreciate the demands of the post to be filled and the suitability of the candidate to discharge the duties of the post. The Public Service Commission has to pay heed to such recommendations and if they decide to disregard them, 20 they have to give reasons for so doing—(The Republic of Cyprus through the Public Service Commission v. GeorghiOs Haris, Revisional Appeal No. 334, still unreported, * and the cases cited therein). The function of the Departmental Board is completely 25 different from the function of the Head of the Depart ment when making his recommendations in the context of his statutory duty under s.44
(3)of the Public Service Law. The Departmental Board is established under s.36 of the Law in respect of appointments or promotions. The 30 duty of that Board is to select not less than two and not more than four for each vacancy, if there are suitable persons for such recommendation. The function of the Head of the Department at the meeting of the Commission is to recommend which of the candidates already sub- 35 mitted to the Commission by the Departmental Board should be appointed or promoted. The Departmental Board takes a preparatory decision and advises the Commission when there are many candidates. If and when the candidates for each vacancy are less than four, again the evaluation and 4o * Reported in
(1985)3 C.L.R. 106. 42 3 C.L.R. 5 Etia v. Republic Styltanides J. the report of the Departmental Board are different in some way in nature to the recommendation envisaged by s.44 by the Head of the Department—(Gregoris Thalassl· nos v. The Republic,
(1973)3 C.L.R. 386; Sotcriadou and Others v. The Republic,
(1983)3 CL.R. 921, at p.930). The Departmental Board simply recommended allfive candidates as suitable for promotion. The recommenda tions of the Head of the Department run as follows1:— 10 13 20 25 «Συστήνονται για προαγωγή οι Γιαννάκης Νικολάου και Κώστας Κωνσταντίνου, οι οποίοι είναι εξαίρετοι υπάλληλοι και υπερέχουν έναντι των άλλων υποψη φίων. Ο Νικολάου υπηρετεί στον Κλάδο Χρήοεως Υδα τος στο Επαρχιακό Γεωργικό Γραφείο Λάρνακας και ο Κωνσταντίνου είναι ο υπεύθυνος στην Επαυλη Αθαλάσσας. Ο Αγαμέμνων Σαββίδης υπηρετεί στον τομέα Μη χανολογικού Τμήματος Χρήσεως Γης στο Τμήμα Γε ωργίας. ο Μιχαήλ Ηλία εργάζεται στο Επαρχιακό Γε ωργικό Γραφείο Πάφου και έχει ειδικότητα στην αμπε: λουργίσ και ο Χρίστος Ιωαννίδης υπηρετεί στο Επαρ χιακό Γεωργικά Γραφείο Λεμεσού. 'Ολοι οι υποψήφιοι έχουν δίπλωμα ή πιστοποιητι κά αναγνωρισμένου Κολλεγίου στη Γεωπονία ή σε θέ μα σχετικό με τις δραστηριότητες του Τμήματος Γε ωργίας, που θεωρείται από το Σχέδιο Υπηρεσίας ως επιπρόσθετο προσόν·. ("Yiannakis Nicolaou and Costas Constantinou, who are excellent officers and are superior to all other candidates, are recommended for promotion. Nicolaou is serving in Water Use Section of the District Agricultural Office, Larnaca and Constanti nou is in charge of Athalassa Farm. 35 Agamemnon Sawides is serving in the Farm Machinery Land Use Section of the Department of Agri culture, Elias Michael is working at Paphos District Agricultural Office and specialises in viticulture and 43 Stylianides J. Elia v. Republic
(1985)Christos Ioannides is serving at the Limassol District Agricultural Office. All the candidates have,a diploma or certificate of a recognised College in Agriculture or in a subject relative to the activities of the Department of Agriculture, which is considered by the scheme of service as an additional qualification"). 5 The recommendutions of the Director are consonant to and supported by the confidential reports and the other material in the file. It is significant that the two pro- 10 motees were rated "Excellent" whereas the applicant was rated "Very Good". Interested party Nicolaou was rated with 10.2.
- and 8.4.0; Constantinou with 11.1.0 and 12.0.0; and the applicant with 0.10.
- Though no extensive reasoning was given by the Director, 15 he gave sufficient reasoning which is supported by the material in the files of the Administration. The recommendations of the Director are not inconsistent with the recommendations of the Departmental Board; I have already made the distinction between the object and separate 20 functions of the Departmental Board on the one hand and the recommendations of the Head of the Department on the other. The recommendations of the Director is certainly an intermediate act in the process of the promotion and it is subject to judicial scrutiny. 25 QUALIFICATIONS: Both the applicant and the interested parties have the required qualifications under the scheme of service and the additional qualification. Counsel for the applicant in his written address ad- 30 mitted that the qualifications of Nicolaou are equal to those of the applicant. He cited, the list of qualifications in his written address but since the allegation of superiority of the applicant to this interested party was not pursued, it is not necessary to say that interested party Nicolaou 35 compares more favourably to the applicant in qualifications. The applicant failed to satisfy the Court that he has 44 3 C.L.R. 5 Ella v. Republic Stylianidos J. striking superiority over the other interested party even in qalifications. Possession of academic qualifications additional to those required by the scheme of service, which are not specified in the scheme of service as an advantage, should not weigh greatly in the mind of the Commission who should decide in selecting the best candidate on the totality of the circumstances before them—(Hji-Ioannou v. The Repuklc.
(1983)3 C.L.R. 1041). It is a settled principle of administrative Law that when an organ, such as the Public Service Commission, selects a candidate on the basis of comparison with others, it is not necessary to show, in order to justify his selection, that he was strikingly superior to the others. On the other hand, an administrative Court cannot intervene in order 15 to set aside the decision regarding such selection unless it is satisfied, by an applicant in a recourse before it, that he was an eligible candidate who was strikingly superior to the one who was selected, because only in such a case the organ which has made the selection for the purpose 20 of appointment or promotion is deemed to have exceeded the outer limits of its discretion and, therefore, to have acted in excess or abuse of its powers; also in such a situation the complained of decision of the organ concerned is to be regarded as either lacking due reasoning 25 or as based on unlawful or erroneous or otherwise invalid reasoning—(Odysseas Georghiou v. The Republic,
(1976)3 C.L.R. 74, at p.83). 10 On the totality of the material before' this Court the applicant failed to establish that there existed striking su30 periority over the interested parties or any of them as to lead to the conclusion that the sub judice decision was taken in excess or abuse of power. The Commission took into consideration all relevant matters and did not take into account any matter which it ought not to. The decision 35 taken was reasonably open to the Commission. Therefore. I find no merit in this recourse. 40 In the appendix "List of Officers" in which the service and qualifications of the litigants are tabularized, under the name of the applicant, in brackets, it is recorded "Maronite". I presume that this relates to the religion or ethnic •45 Stytianldes J. Elia v. Republic
(1986)group of the applicant. I wonder what is the object that this record serves. The required qualifications of a member of the public service is that he is a citizen of the Republic and no more. The freedom of conscience and religion are enshrined and safegarded by Article 18 of our Constitu5 tion. Religion or conviction refer to theistic, non-theistic and atheistic convictions and freedom of religion and conscience includes freedom of belief, freedom of practice, freedom of manifestation, teaching and observance, and includes also freedom not to disclose one's religion or 10 philosophical convictions. No discrimination on the basis of religion or philosophical conviction is permissible. The Maronites have elected under the relevant constitutional provisions and the Law and they are part of the "Greek community", as 15 this term is defined in the Constitution. I see no useful purpose of the religion of any member of the public service being recorded in his official papers or in the documents which are placed before the Commission by the Administration for appointment or promotion purposes. 20 Certainly, no discrimination because of religion was exhibited in this case nor complained of by the applicant. I took this opportunity to make this comment not only lest in the future any complaint is raised but also so that all papers of the civil servants be in accord with the consti- 25 tutiona! provisions relating to the liberties and rights of the citizens of the Republic. In the result this recourse is hereby dismissed but all the circumstances no order as to costs is made. in Recourse dismissed with no order as to costs. 46 30