3 C.LR. 1985 April 10 [PIKIS, J·] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION CHRISTOS CHRISTOUDIAS, Applicant. v. THE REPUBLIC O F CYPRUS, THROUGH THE PUBLIC SERVICE COMMISSION, Respondents. (Case No. 5 10 15 20 159/84). Public Officers—Schemes of service—Construction—Principles applicable—"Success at a specific written examination that will (shall) be held by the Ministry of External Affairs"— In the scheme of service for the post of attache—Construction placed to the said scheme as encompassing success at an examination held on a date prior to the advertisement of the post not open to the Commission. By virtue of clause (
- e)of the schemes of service of the post of attache at the Ministry of Foreign Affairs, a first entry post, there was required "success at a specific written examination that will (shall) be held by the Ministry of External Affairs". The respondents construed the aforementioned clause as encompassing success at a written examination for the post of attach£ irrespective of the time at which it was held or the advertisement of any vacant posts for filling them. Thus they decided the scheme was satisfied by success at an examination held on a date prior to the advertisement of the post in question. Consequently, the interested party was found to possess the qualification specified in clause (
- e)notwithstanding the fact that he did not sit at the written examination held for the filling of the three vacancies of Attach^ advertised on 31st December, 1982. 513
(1985)Christoudias v. Republic Upon a recourse by the applicant against the appoint ment of the interested party to the above post. Held, that the construction of a scheme of service must be one reasonably open to the Commission and none is open, that is irreconcilable with the wording of the scheme, in this case the clear provisions of clause (e); that like any legislative instrument the provisions of a scheme of service must be interpreted with due regard to the let ter and spirit of its provisions; that the spirit of the Law must be discerned from the wording of the instrument read within the framework of the scheme as a whole; that the construction placed on clause (e) was not open to the respondents at all; that the inescapable inference is that the interested party lacked the qualifications necessary for appointment and on that account his candidature ought to have been ignored; and that by appointing him the res pondents abused as well as exceeded their powers and their decision must necessarily be set aside. 5 10 15 Sub judice decision annulled. Cases referred to: 20 Der Parthogh v. C.B.C.
(1984)3 C.L.R. 635; Xinari and others v. Republic ( 1 9 8 ^ Ζ C.L.R. 598: Michael and Another v. Republic (Decision of Bench delivered on 26.3.85,1. the Full Reooiiree. 25 Recourse against the decision of the respondents to pro mote the interested party to the post of Attache in the Mini stry of Foreign Affairs in preference and instead of the applicant. C. Loizou. for the applicant. 30 A. Papasavvas, Senior Counsel of the Republic, the respondents. Cur. adv. for vult. PIKIS J. read the following judgment. At the end the 1 challenge to the decision was confined( ) to the selection of one of the interested parties namely, S. Loizides, and <i> The recourse against C. Papademas was abandoned and dismissed. 514 35 3 C.L.R 5 1G \S 20 25 30 35 40 Onsiot'dias v - Republic: PMs J. then fcr only one reason, ineligibility for lack of one of the qualifications required bv the scheme οι service. Ex cepting his qualifications there is no n n m for questioning the appoinment of trtt interested nr~tv on any otlier ground. The limitation nf the issues to matters truiv in dis pute is in every case a commendable course enabling the Court to concentrate on the i^ne dividing the parties, in this ^ace fhe interpretation and application of the scheme of service At issue »s the interpretation, of ; particular ulauir o*' 'lit scheme of ser.'ice and its effect. notaHv clause (e). neces sary in order to determine the validity of the construction placed on it by the P.S.C. Clause (
- e)sets forth the fifth in numerical' order of the qualifications necessary for appointment to the post of Attache at the Ministry of Foreign Af fairs. a first entry post. It reads as follows- "Success at z. specific written examination that wit! (shall) be held by the Ministry of External Affairs" 0). Relying on a series: of advices gi"en by the Deputy Artorncv-General. Mr. Loucaides, explaining, inter alia difference- between a quali fying and a competitive examination, the respondents con strued the aforementioned clause as enror^pi*·:*"ng «UT?*·* at a written examination for the pon of Attache irrec!~· . n t; v ^ of the time at which it wa? held oi the advertisement of any vacant" posts for filling them. Thu? they decided the scheme was satisfied by success at an examination held on a date prior to the advertisement ofc the posi in question. Consequently, the interested party was found to possess the qualification specified in clause (
- c)^(withstanding the fact he did not sit at the written examination held for the filling of the three vacancies oi Attache advertised on 31st De cember, 1982. This was plainly wrong for it involved a construction of the scheme wholly unwarranted by its wording; nor were the opinions rendered by Mr. t.oucaides, so far as I am able to judge, intended to furnish an interpretation of the scheme under consideration. The opi nion given on 23rd June, the one more closely connected with the present case, purported to interprete the following provision of a cheme of service: "Success at a specific written examination being held by the Ministry of Foreign <n Επιτυχία σε ειδικό γραπτό διαγωνιαμό που θα διεξαχθεί από τα Υ πουργείο ΕΕωτερικών. 515 Pikis J. Christoudias v. Republic (19S5) 2 Affairs" (j). The expression "being held" ( ) might con ceivably, though not necessarily, be construed as encom passing success at an examination recurrently conducted by the Ministry. Whereas the word "will" (shall)
(3)in what ever context it may be encountered invariably refers to an 5 event of the future, in this case an examination to be held on a date subsequent to the advertisement of the post. In the context of clause (e) the word "will' stipulated the time at which the specific examination referred to therein would take place, a combination that also suggests that the makers 10 of the scheme intended a specific qualifying examination for the filling of the post in qtoestion. In the context of the particular scheme it was not an unnatural provision con sidering it was a first entry post. The latitude of choice of construction of a scheme ack- 15 nowledged to the Public Service Commission wide, such as it is, has its limitations. The construction must be one reasonably open to the Commission and none is open, that is irreconcilable with the wording of the scheme, in this case the clear provisions of clause (e). They may fa- 20 vour a construction other than the most obvious or na tural one, but the construction placed upon the scheme must be one compatible with its provisions. Any construc tion that defies the wording of the scheme must necessarily be ruled out as arbitrary and as such impermissible. Like 25 any legislative instrument the provisions of a scheme of service must be interpreted with due regard to the letter and spirit of its provisions.
(4)The spirit of the Law must be discerned from the wording of the instrument read within the framework of the scheme as a whole. 30 As explained above, the construction placed on clause (e) was not open to the respondents at all. The inescapable inference is that the interested party lacked the qualifica tions necessary for appointment and on that account his candidature ought to have been ignored. No discretion (0 Επιτυχία σε ειδικό γραπτό διαγωνιομο διεΕαχθησομενο από το Υ πουργείο Εξωτερικών. β> ΔιεΕαχθησόμενο (3> θ α .
(4)Der Parthogh ν C B C
(1984)3 C L R 635. Xinari and Others ν The Republic
(1984)3 C L R 598 Michael and Another ν The Republic, a decision of the Full Bench delivered on 263 1985 516 35 3 C.L.R. Christoudias v. Republic Pikis J- vested in the respondents to relax the qualifications for appointment. According to the wording of the scheme they were a neccessary prerequisite for eligibility to seek appointment. The fact that clause (e) was numerically the last of the five qualifications stipulated for appointment, did not diminish its importance or neutralize its indispensability. Everyone of the five qualifications was equally necessary for appointment. Consequently, as the interested party lacked one of the necessary qualifications he was ineligible for appointment. By appointing him the respondents abused as well as exceeded their powers and their decision must necessarily be set aside. It is with a sense of regret I arrived at the decision to annul the appointment of the interested party, a competent officer as his record reveals. However, this is an inescapable result and the only one compatible with the supremacy of the Law enjoining each and everyone to heed its commands and give effect to them and so I do by annulling the decision. In the result the recourse succeeds, the decision appointing interested party Loizides to the post of Attache is annulled. No order as to costs. Sub judice decision annulled. No order as to costs. 517