clr/1986/1986_3_2413.pdf

(1)There is no merit in the allegation that the Commission failed to carry out a due inquiry as to the possession of the qualification of 20 "very good knowledge of the English language". The very fact that the Commission asked to be supplied with' particulars shows the depth of the inquiry carried out. The Director supplied the Commission with elements which "were missing·" from the personal files. He particularly re- 25 ferred to· lost school leaving certificates in respect of 23 candidates. There was no need for him to refer to the school· leaving certificates of the candidates as such certificates were already in the files before the Commission. All the necessary material was before the Commission. 30

(2)The complaint that the Commission attached undue weight to the University Diplomas of some of the candidates, which' were not envisaged as an advantage in· the scheme of service, is unmerited-, because perusal of the minutes of the Commission shows that no undue weight 35 was given to such' diplomas, but' on the contrary reference to- them was made in the context of the overall picture of the- candidates.

(3). The"fact that the Director was brief, as regards the 2414 3 C.L.R. 5 10 15 Christoforou v. Republic candidates he did not recommend for promotion does not offend the case Law of this Court. The reasoning oi a non-recommendation may be found in the material in the file and in particular ihe confidential reports of an applicant. In this case it was not necessary for the Commission to seek explanations and clarifications from the Director.

(4)Some changes were brought about by the Director in the confidential reports of 1983 without prior consultation with the reporting officer. (Paragraph 9 of the Regulaiory Order for Preparation and Submission of Confidential Reports). This fact, however, was revealed by the Director before the Departmental Board and as a result both the Board and the Commission ignored such changes. It follows that anything that might be wrong was clearly put right. Recourse dismissed. No order as to costs. Cases referred to; Mikellidou v. The Republic

(1981)3 C.L.R. 467; 20 Kapsou v. The Republic

(1983)3 C.L.R. 1336; Makrides v. The Republic

(1983)3 C.L.R. 622; Larkos v. The Republic

(1982)3 C.L.R. 512; Papadopoulos v. The Republic

(1985)3 C.L.R. 405; Hadji loannou v. The Republic

(1983)3 C.L.R. 1046; 25 Partellides v. The Republic

(1969)3 C.L.R. 480; Theodossiou v. The Republic, 2 R.S.C.C. 44; Republic v. Harts

(1985)3 C.L.R. 106. Recourse. 30 Recourse against the decision of the respondent to promote the interested parties to the post, of Assistant Collector of Customs in preference and instead of the applicant·. 2415 Christoforou v. Republic

(1986)A. S. Angelides, for the applicant. A. Papasavvas, Senior Counsel of the Republic, fur the respondent. Cur. adv vitlt. A. Loizou J. read the following judgment. By this re- 5 course the applicant challenges the validity of the promotion of

1. Iacovos Mattheou,
2. Avraam Thrasivoulides,
3. Andreas Demetriou,
4. Zacharias Spyridonos,
5. Stavros Paliikaropoullos,
6. Charalambos Poyadji,
7. Costas Loi?ou. (hereinafter to be referred to as the interested par- 10 ties), to the permanent post of Assistant Collector of Customs, which is a promotion post. In accordance with the Regulatory Orders which govern the establishment, competence and method of action of Departmental Boards in accordance with Section 36 of the 15 Pubic Service Laws, 1967 - 1983, a Board was set up under the Chairmanship of the Director of the Department of Customs and Excise as a step in the process of filling fourteen vacant permanent (Ord:nary Budget) posts of Assistant Collector. The report of the Board was sub- 20 mitted to the respondent Commission on the 20th June, 1985 (Appendix 4). The Board recommended for selection for promotion in alphabetical order all the thirty-two candidates who possessed the required qualifications, among whom were the applicant and the interested parties. 25 As a very good knowledge of English is one of the required qualifications under the Scheme of Service and as there was no sufficient material for some of the candidates. the respondent Commission asked the Director of the Department of Customs to submit to it all elements relating 30 to the knowledge of the English language by the thirty-two recommended candidates so that it would be in a position to decide whether they satisfy the said qualification. The Director by his letter dated 8th July 1985, (Appendix 7) submitted the elements wh;ch as he states therein "'are 35 nrssing from their personal files at the office of the Commission". The respondent Commission took into considera2416 3 C.L.R. Christoforou v. Republic A. Loizou J. tion this document "which contains various elements for the cand;dates relating to the knowledge of English", (Appendix 8, page 9). The respondent Commission at its meeting of the 9th 5 July 1985, heard the views and recommendations of the Director. After he withdrew from the meeting of the respondent Commission, having examined all material elements from the personal files and the confidential reports on the. candidates and having taken into consideration the con10 elusions of the Departmental Board and the recommendations of the Head of the Department, came to the conclusion that the following officers among whom were included the interested parties were superior to the other candidates on the basis of the totality of the established criteria (merit, 15 qualifications, seniority), and selected them as the most suitable for promotion to the post of Assistant Collector as from 15th July,
8. Those selected were the following: Demetriou Andreas P.

(3)Efthymiou Nicolas 20 Thrasyvoulides Avraam

(2)Loizou Costas A.

(7)Mattheou Iacovos

(1)Pallikaropoullos Stavros

(5)Poyadjis Charalambos

(6)25 Savva Kyriakos Shakallis Christakis G. Spyridonos Zacharias

(4)Stavrou Kyriakos Tosounis Michael 30 Charalambous Andreas Hadji Georghiou Antonios. (The numbers opposite the names of certain of the can2417 A. Loizou J. Christoforou v. Republic

(1986)didates indicate the interested parties and the order in which they have been referred to in the prayer for relief of this recourse). In the minutes of the respondent Commission Appendix

1. there appears a detailed record of the recommendations 5 made by the Head of the Department. He was positive as regards those recommended for promotion to the first twelve posts but as regards the 13th and 14th post he re­ commended together by referring as, "borderline" cases «συοτήνονται οριακά» six of the candidates namely. P:eri- 10 des. Andreou, Spyridonos. Afxentiou. Loizou and Michael. At the same time he did no* recommend for promotion the remaining fourteen candidates among whom the ap­ plicant. The respondent Commission dealt at length w : th the 15 thirteen cand : dates selected by it and referred specifically to the contents of their confidential reports, their qualifica­ tions and the recommendations of the head of the Depart­ ment. I* did so for thirteen of the cand : dates by choosing among them interested party Costas Loizou who is senior 20 to the applicant by almost nineteen months from their pro­ motion to the last post and in respect of whom the res­ pondent Commission said that he has high confidential re­ ports during the recent years indicatively mentioning that he was rated as "very good" in 1982 and "excellent" in 25 1983 and
2. He has a Univers;ty diploma and he is twenty-first in line of seniority. The Commission went fur­ : ther ond said that it considered that this cand date who was recommended by the Director together with others for selection for two of the vacant posts, was entitled in view 30 of his high confidential reports and University diploma for promot ; on. As regards the 14th post after comparing those recommended as being "borderline" cases the respondent Commission chose interested party Spyridonos and stated that what tapped the scales m his favour vis a vis the other 35 similarly recommended and in particular Andreou with whom he had the same seniority, except that he was slightly senior, having earl'er entered the service was that in the confidential reports of the last two years he has slight su­ periority as against Andreou. I must admit that this record 40 of the respondent Commission was both meticulous and de2418 3 C.L.R. Christoforou v. Republic A. Loizou J. tailed and it constitutes the reasoning of the sub judice decision supplemented in any event by the rest of the material in the relevant files that it had before it. The first ground of Law argued on behalf of the appli5 cant is that the respondent Commission acted under a material misconception or probable misconception of fact. This is based on the fact that the inquiry of the respondent Commission as regards the knowledge of the English language by the candidates, the Director does not refer in 10 his letter,. Appendix 7, to the question of very good knowledge of English for interested parties Demetriou, and Pallikaropoullos, and as regards interested party Poyadjis, he merely mentions that he is a graduate of the Lanition Gymnasium, for Boys in Limassol. IS The Director in his letter as already indicated sets out those elements which were "missmg from1 the personal files" of the various candidates and he gave particulars in*respect of twenty-three of them1 as it seems that, particularly so for several candidates their school leaving certificates. 20 had been lost. The rest of the certificates were already in the personal files of the applicants and obviously there was no need for hiin to refer to them. The reference to the schoolLleaving certificate of the Limassol Gymnasium of Charalambos Poyadj?s, was made because this officer, 25 having graduated in 1957 did not have such a school leaving certificate, obviously because* o£ the. situation with the schools during- the EGKA struggle. The· very fact that the respondent. Commissions requested1 the; Director to· supply them: with: any particulars relating toi the knowledge of 30: English language- by the· candidates, shows; the depth at which the respondent Commission* inquired, into the matter. Th : s. however, should', in. no way be taken: as meaning that there did. not,, already,, exist in> the relevant files, before the Commission, the necessary, material, fronn which it could' 35' ascertain whether the candidates possessed on not this qualification. This is. clearly established, from, a- perusal of the relevant- files as tabulated' in Appendix, A. It appears therefrom that; interested! party Andreas Demetriou· passed' nu2419 A. Loizou J. Christoforou v. Republic

(1986)merous examinations in English including the Cyprus Ceitificate of Education, English Lower and English Higher. Interested party Pallikaropoullos in addition to having passed numerous examinations in English he likewise passed the Cyprus Certificate of Education, English Lower and 5 Engl:sh Higher exams. Moreover he attended the Group Traiivng Course of Industrial Free Zones Development and Management, a course organised under the joined auspices of the United Nations Industrial Development Organization (UNIDO) and the Governments of Ireland and 10 the Shannon Free Airport Development Company Limited, certainly a course held in English. As regards interested party Poyadjis, in addition to his success in the English Lower of the Cyprus Cert:ficate of Education he attended the 33rd Mid-Management Senrnar. 15 conducted by the U. S. Customs Services at Washington D C and participated in the Programme of introduction to the United States of America offered at Merridean House by the Washington International Centre. (See blues 79, 80. 81 in exhibit 7). No doubt the respondent Comnvssion dis- 20 charged the duty cast on it to inquire whether the candidates possess the required qualifications and havmg had before it the relevant material it cannot be charged to have failed in its duties. The reference therefore to the Case Law of this Court inter alia to Mikellidou v. The Republic

(1981)25 3 C.L.R. 467; Kapsou v. The Republic

(1983)3 C.L.R. 1336; Makrides v. The Republic

(1983)3 C.L.R. 622, that turn on the duty of an administrative organ to carry out a due inquiry as regards the possession by a cand:date of the required qualification carries the case of the applicant no 30 further. This ground is without any merit and it fails. The second ground of Law relied upon is based on the fact that the D'rector, the departmental Board and the rev pondent Commission in the last analysis, made special reference to the University degrees, especially in Law 35 which certain of the candidates possess and in particular the three interested parties, Poyadjis, Lo;zou and Pallikaropoullos. This reference appears in Appendix 8, paragraphs 7, 8 and 11 and in Appendix 4, pp. 3, 4, and 5. It was argued that the Scheme of Service, Appendix 3 (c) does 40 2420 3 C.L.R. Christoforou v. Republic A. Loizou J. not require a university diploma or degree as a qualification and that from the minutes just referred to it appears that the university diploma in Law, possessed by the aforesaid three interested parties was taken unduly into consi5 deration as a decisive, separate, additional qualification. In that respect 1 was referred to the judgments of this Court that have dealt with the question of additional qualifications and their relevance to the questions of appo'ntment and promotion. These cases arc Larkos v. The Republic 10

(1982)3 C.L.R. 512; Papadopoulhs v. The Republic

(1985)3 C.L.R. 405 and the judgment of the Full Bench in HadjiloamwH v. The Republic

(1983)3 C.L.R. 1046. In the latter case at p. 1046, it was said: 15 20 25 "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 Comm i s s i who should decide in selecting the best candidate on the totality of the circumstances before them. Additional qualifications to those provided by the scheme of service do not ind;cate by themselves a striking superiority. (See EUi Chr. Korai and Another v. The Cyprus Broadcasting Corporation,

(1973)3 C.L.R. 546; Andreas D. Georghakis v. The Republic. 1977) 3 C.L.R. 1; Evangelos HadfiGeorghiou v. The Republic,

(1977)3 C.L.R. 35; Cleanthis Cleanthous v. The Republic.

(1978)3 C.L.R. 320)." A perusal of the relevant minutes of the respondent Commission shows that no undue weight was given to this 30 qualification. On the contrary reference to it was made in the context of the overall picture of the candidates who had in their favour the recommendation of the Head of the Department. the first two, Poyadjis and Lo'zou nineteen months semority over the applicant and whilst for Pallika35 ropoullos the respondent Commission said in its minutes. Appendix 8, page 11, that "he had high confidential reports'. the last years. Ind:catively it is mentioned that he was 'Very Good' in 1982 and in 1983 (7-5-0) and 'Excellent* for 1984 (9-3-0)'. He has umversity diploma and 40 he was recommended by the Director. The Commission did not omit to note that he is behind in seniority, it consi2421 A. Loizou J. Christoforou v. Republic (1988» dered, however, that this element is not sufficient to upset the general picture in accordance with which this candidate is entitled to promotion". This ground should also fail. The next ground argued on behalf of the applicant is that the Director did not give reasons for his nonrecommending 5 the applicant at the meeting of the respondent Commission of the 9th July 1985. At the said meeting the Director recommended and duly reasoned his recommendations but he was brief as regards the candidates he did not recommend for promotion among whom was the applicant. 10 This, however, in no way offends the established Case Law of this Court to which I have been referred, namely Partellides v. The Republic

(1969)3 C.L.R. 480; Theodossiou v. The Republic, 2 R.S.C.C. 44 and the judgment of the Full Bench in the Republic v. Harts

(1985)3 C.L.R. 106, 15 at p. 112. No doubt the reasoning for a nonrecommendation may be found in the material in the file and in particular the confidential reports of an applicant. It was not therefore necessary as argued for the respondent Commission follow- 20 ing the case of Theodossiou v. The Republic, 2 R.S.C.C. p. 44 at p. 46 to seek clarifications and explanations from the Director, nor can it be said that the respondent Commission selected those recommended and for no valid reason. There was nothing therefore arbitrary or contrary to 25 the overall performance of the applicant which led to a misconception of fact and therefore to an omission to compare the applicant with the rest of the candidates. Th : s ground therefore also fails. The last ground stems from the fact that in the minutes 30 of the departmental Board of the 4th June 1985 (Appendix 4). the Director is recorded to have mentioned in the confidential reports of 1983 that he brought about certain changes in some instances without prior exchange of views with the reporting officers as provided by paragraph 9 of 35 the Regulatory Orders for the preparation and submission of confidential reports. In fact the Director stated that this step was due to an oversight and accepted the assessment of those officers as it had been made by the reporting of2422 3 C.L.R. 5 10 15 20 25 30 Christoforou v. Republic A. Loizou J. ficers and that his changes should be ignored. The respondent Board then in view of this statement of the Director proceeded to examine the confidential reports as they had been prepared by the reporting officers. The officers affected thereby were interested parties Mattheou, ThrasyvouKdes, Demetriou and Spyridonos. This was a material that was before the respondent Commission when the sub judice decision was reached and duly taken into consideration as stated in its minutes, (Appendix 8). The respondent Commission went on to say that at the examination of the confidential reports of the candidates it noted that the countersigning officer changed the confidential reports for the year 1983 of the aforementioned candidates. The Commission observed further that these changes were made by the countersigning officer without previous consultation with the reporting officer contrary t6 the Regulatory Orders. For that reason "it decided to take into consideration only the assessment of the reporting officer". Anything that might be wrong was clearly put right both by the Director, the departmental Board and the respondent Commission. This ground also fails. On the totality of the circumstances therefore before me I have come to the conclusion that the sub judice decision was reasonably open to the respondent Commission and there is neither misconception of fact nor of Law, nor an excess or abuse of power. The applicant upon whom the burden lied failed to establish that there existed striking superiority 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. For all the above reasons the recourse is dismissed with no order as to costs. Recourse dismissed. No order as to cosrs. 242?