(198S) 1982 April 3 [TRIANTAFYLLIDES, P.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION. VIAS LIVADAS, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC SERVICE COMMISSION, Respondent. (Case No. 232/77). Public Officers—Secondment—Confidential reports—Preparation —By whom—Even if therewasan irregularity in thepreparation of these confidentialreportsnot of a material nature vitiatingthe promotions of the interestedparties—Section 45 of the Public Service Law, 1967 (Law 33/67) and section 5 3 of the State Officers (Temporary RegulatingProvisions) Law, 1975 (Law 54/75). Public Officers—Promotions—Interview of candidates—Undue and disproportionate importance should not beaccorded to impressions formed at the interview—Applicant and 10 one of the interested parties more or less equal asregards qualifications and merit—Cogent reasons ought to have been given by the Commissionfor disregardingthe seniority of the applicant, by a slight majority, merely on the basis of impressions formed at the interviews of the can- 15 didates—Promotion of this interested party annulled as made in a defective manner resulting in excess of powers on the part of the Commission—Applicantfailed to satisfy Court that he was strikingsuperior to the other of the interested parties or, at least, equal to him in every other 20 respect so that the seniority of the applicant would be treated as a factor that should have tipped the scales in his favour. 3 C.L.R. Livadas v. Republic The applicant and the interested parties were candidates fcr promotion to the post of Senior Productivity Officer at the Productivity Centre. The Public Service Commission promoted the interested parties and hence this recourse. 5 10 15 20 25 30 35 Counsel for the applicant mainly contended: (
- a)That it was unlawful for Mr. Constantinou to make the confidential reports for the year 1976 in respect of the two interested parties because both of them were at the time seconded to "Merimna" and Mr. Constantinou was as from April 1976 the acting Director of the Productivity Centre. (
- b)That the respondent Commission acted under a misconception because what are stated in its relevant minutes regarding the comparison of the candidates do not correspond to the contents of the relevant confidential reports. (
- c)That since applicant was much senior to interested party loannou and that, as such interested party was not otherwise superior to the applicant, the impression formed when the said interested party and the applicant were interviewed should not have been treated as a -decisive factor leading to the selection of this interested party instead of the applicant. Regarding contention (
- c)above the decision to promote interested party loannou was taken by a majority of three to two as the Chairman of the Commission and two of its Members were of the view "...that Mr. Theodoras loannou gave very satisfactory replies to questions put to him and generally he proved to be much better than Mr. Vias Livadas". Held,
(1)that Mr. Constantinou was not excluded from making the confidential reports in relation to the two interested parties for 1976 (see section 45 of the Public Service Law, 1967 (Law 33/67) and, in relation, particularly, to seconded officers, section 3 of the State Officers (Temporary Regulating Provisions) Law, 1975 (Law 54/75)). Held, further, that even if it had been found that the 507 Livadas v. Republic (198S) making of such reports by Mr. Constantinou was an irregularity it would have been held that it was not of a material nature vitiating the promotions of the interested parties.
(2)That having compared the relevant minutes, as a whole, of the respondent Commission with the contents of the confidential reports relating to the candidates it does not appear to this Court that the Commission has laboured under any material misconception in evaluating the candidates. 5 10
(3)That there should not be accorded undue and disproportionate importance to impressions formed at the interviews of the candidates; that as in every material respect the applicant and interested party loannou were more or less equal as regards qualifications and merit and 15 the applicant was much senior to the said interested party the respondent Commission ought to have given cogent reasons for disregarding the seniority of the applicant, by a slight majority, merely on the basis of impressions formed at the interviews of the candidates, especially as 20 the seniority and longer service of the applicant in the post of Productivity Officer were expressly referred to by the Head of the Department' concerned in making his recommendations to the Commission; and that, therefore, the promotion of interested party loannou should be an- 25 nulled as having been made in a defective manner resulting in excess of the powers on the part of the respondent Commission.
(4)That regarding the promotion of interested party Constantinides the applicant, on whom the burden lay, 30 failed to satisfy this Court that he was strikingly superior to such interested party, or, at least, equal to him in every other respect so that the seniority of the applicant could be treated as a factor that should have tipped the scales in bis favour; and that it was, therefore, reasonably open 35 to the Commission to decide to promote the said interested party instead of the applicant and, so, this recourse against his promotion has to be dismissed. Proomotion of interested party loannou annulled. Promotion of 40 interested party Constantinides upheld. 508 3 C.L.R. Livadas v. Republic Cases referred to: . , Christou v. Republic
(1980)3 C.L.R. 437 at p.448; Triantafyllides v. Republic
(1970)3 C.L.R. 235 at p.245; Savva v. Republic
(1980)3 C.L.R. 675 at pp. 691-695. 5 Recourse. Recourse against the decision of the respondent to promote the interested parties to the post of Senior Productivity Officer at the Productivity Centre in preference and instead of the applicant. 10 E. Efstathiou, for the applicant. CI. Antoniades, Senior Counsel of the Republic, for the respondent. P. Papageorghiou, for the interested parties. Cur. adv. vult. 15 TRIANTAFYLLIDES P. read the following judgment. By means of this recourse the applicant challenges the decision of the respondent Public Service Commission to promote, instead of him, C. Constantinides and Th. loannou (the "interested parties" in these proceedings) to the post of 20 Senior Productivity Officer at the Productivity Centre. At its meeting on the 8th March 1977, and in the presence of the acting Director of the Productivity Centre Mr. H. Constantinou, the Commission, after it had interviewed the applicant and interested party loannou, but not, also, 25 interested party Constantinides who was unable to be present as he was abroad on a scholarship, decided to promote the two interested parties to the post, of Senior Productivity Officer. From the material which was placed before the Court it 30 appears that the applicant and the interested parties were employed up to the Turkish invasion in July 1974 at the Productivity Centre and then they were seconded to "Merimna" (that is the Special Service for the Care and Rehabilitation of Displaced Persons). 509 Triant£fyEIides P. '.iwadas v. Rspubuc
(1985)From September 1974 till March 1976 the Director of the Productivity Centre was Mr. G. Iacovou -.vho was. also, in charge of "Meririri?." Then ML*. Iacovou went on an assign ier:r abroad aad. as from April 19 7 6 Mr. H. Constanf-nou became acting Director of the Productivity Cen tre and Mr. A. KalHmachos was placed in charge of "Meriirma". It has been contended by counsel for the applicant that it w&, unlawful for Mr. Constanunou to make the- confi dential reports for the vear Ϊ976 in respect of the two in terested parties because both of them were at the tiirr se conded to "Merimna" and' Mr. Constantir?ou was .ic rVom April 1976 the acting Director of the Productivity Centre. The legislative provisions applicable to confidential re port:; lor public officers are section 45 of the Public Ser vice Law, 1967 (Law 33/67) and, in relation, particularly, to seconded officers, section 3 of the State Officers (Tem porary Regulating Provisions) Law, 1975 (Law 54/73), In the light of th.3 said legislative provisions I do not think that Mr. Constantinou was excluded from making the confidential reports in relation to the two interesed par ties for 1976, Even. if. however, I had found that the making of such reports by Mr. Constantinou. was an irre gularity Γ would have held that it was not of material na ture vitiating the promotions of the interested parties. Use ful reference, in this respect, may be made to the case of Christou v. The Republic.
(1980)3 C.L.R. 437, 448. It has been, also, contended by counsel for the applicant that the respondent Commission acted under a misconcep tion because what are stared in its relevant minutes regard ing the comparison of the candidates do not correspond to the contents of the relevant confidential reports. As it appears from the said minutes of the Commission there were taken into account the merits, qualifications, se niority. service, abilities and experience- of the applicant and of the two interested parties, as well as the performance of the applicant and of interested party loannou when they were interviewed; interested party Constantinides was not interviewed.as he was abroad at the time. There were, also, 510 3 C.J..R. 5 10 15 20 25 30 35 Livadas v. Republic Triantafyllides P. considered the personal files and annual confidential re ports of the candidates and detailed reference was made in the minutes of the Commission to the careers of the candi dates and to the contents of the confidential reports about them, as well as to the recommendations of Mr. Constanti nou, as the Head of the Department concerned. Having compared the relevant minutes, as a whole, of the respondent Commission with the contents of the confi dential reports relating to the candidates it does not appear to me that the Commission has laboured under a^y material misconception in evaluating the candidates. It has been further submitted by counsel for the applicant that he was much senior to interested p?ny To^r.un: and that, as such interested party was nor othf^.'.is? ;::;p?ricj ίο the applicant, the impression formed when the s?iv Vntsrested party and the applicant were ir.iervie,vett thc^lu not have been treated as a decisive factor leading to the selection of this interested party instead of the applicant. As it appears from the minuter of the Ccrfcinission tiw decision to promote interested party ioannou was taken by a majority of three to two as the Cnairman of tne Commis sion and two of its Members were of the view "... thpt Mr. Theodoros loannou guve very satisfactory replies to ques tions put to him and generally he proved to be much bet ter than Mr. Vias Livadas". On the other hp.nd the remaining Members of the Commission "preferred Mr. Vias Li vadas to Mr. Th. loannou. having regard to his seniority and longer service in the pest of Productivity Officer." It has been, on more than one occasion, pointed out by our Supreme Court that there should not be accorded undue and disproportionate importance to impressions formed at the interviews of the candidates (see, inter alia, in this respect, Triantafyllides v. The Republic.
(1970)3 C.L.K. 235, 245 and Savva v. The Republic, (1980") 3 C.L.R. 675, 691-695). As in every material respect the applicant and interested party loannou were more or less equal as regards qualifi cations and merit and the applicant was much senior to the said interested party the respondent Commission ought to have given cogent reasons for disregarding the seniority 511 Triantafyllides P. Livadas v. Republic
(1985)of the applicant, by a slight majority, merely on the basis of impressions formed at the interviews of the candidates, especially as the seniority and longer service of the applicant in the post, of Productivity Officer were expressly referred to by the Head of the Department concerned in making his recommendations to the Commission. 5 I, therefore, have decided, in the circumstances, that the promotion of interested party loannou should be annulled as having been made in a defective manner resulting in excess of the powers on the part of the respondent 10 Commission. Regarding the promotion of interested party Constantinides I am of the view that the applicant, on whom the burden lay, failed to satisfy me that he was strikingly superior to such interested party, or, at least, equal to him in 15 every other respect so that the seniority of the applicant could be treated as a factor that should have tipped the scales in his favour. It was, therefore, reasonably open to the Commission to decide to promote the said interested party instead of the applicant and, so, this recourse against 20 his promotion has to be dismissed. In the result this recourse succeeds in so far as interested party loannou is concerned and fails in so far as interested party Constantinides is concerned; and .there will be no order as to its costs. Recourse succeeds in part. No order as to costs. 512 25