clr/1987/1987_3_1113.pdf

(1987)3 C.L.R.1092, thesubjudicepromotions have tobeannulled. Pubic officers—Promotions —Qualifications—Scheme ofservicerequiring five years «service» inparticularpost — Inthe circumstancesit wasreasonably open totheCommission tointerprettheterm"service* asincluding*service onsecondment» tosuch post. 1 0 PublicOfficers—Promotions—Seniority—Governed bysection46ofthePublic Service Law,asamended bysection5ofLaw 10/83—Manner ofholdinga post does not matter,but whatmattersistheexactdateofappointment toa post —Itisonly whensuchdateisthesame thattheprovisionsofsubsection

(2)ofsection46 come intoplay. 15 By means ot this recourse the applicant challenges the promotion of the two interested parties Rayiasand Nicolaou to the post of Commerce and IndustryAssistant, 1stGrade. The applicant was appointed to the post of Industrial Assistant, being his firstentrypost,on 16.7.79,whereasthetwointerested parties,beingalready 20 permanent officers, were seconded to the temporary post of Commercial Assistant2ndGrade, towhichtheywerepromoted on 15.3.82. 25 The scheme of service forthe post inquestion provided asa requirement for promotion «at least five years' service in the post of Commerce and Industry Assistant, 2nd Grade/Commercial Assistant, 2nd Grade/Industrial Assistant». 1113 Papamlchaelv. Republic

(1987)The respondent Commission, having accepted the recommendationsof the Head of the Department stated thatespecially with regard to Rayiasthe Commission noted that dunng the last two years Papamichael had better Confidential Reportsthan Royias who, however, had supenor report inthe previous year On the basis, however, of the three established cntena as a 5 whole and placing the proper weight to the seniority of Rayias being 15 whole years, itpreferred the latter» Intheconfidential reportforNicolaoufor 1982 thereisonechange effected by thecountersigning officer inredchanging hisoverall assessment fromvery good toexcellent 10 Intheconfidential reportsforRayiasfortheyears 1981 and 1982 thereare 7 and 6 corrections respectively, made by the countersigning officer and changing in hisfavour the overall picture Itiscommongroundthattheaforesaid changeswere effected withoutpnor discussion of the matter, as provided by Circular 491/79, between the countersigning andthe reporting officer 15 The applicantsupported his case by raising thefollowing grounds of law

(1)Theinterested parties didnotpossess therequired qualification of «five years service in thepost of CommercialAssistant, 2nd Grade»

(2)The aforesaid confidential reports are invalid as the prescnbed by Circular491/79 procedurewas notfollowed, and 20

(3)Theapplicantissupenor totheinterestedpartiesinment, qualifications and semonty Held, annulling the sub judice decision

(1)The outcome of the issue relabng tothematterof thequalifications dependsonwhether theservice of 2 5 the interested parties dunng the period of their secondment to the post of Commercial Assistant, 2nd Grade, can be regarded as «service* within the meaning of the term in the scheme of service Theterm«service»appeanng tnschemes of service insimilar circumstanceswas considered inRepublic ν Psaras

(1985)3 C LR 1939 where itwas held thatitincluded secondment 3 0 toa temporarypost tncircumstancessuchas those of thepresentcase» Inthe light of Psarascaseand beanng in mindthatinthiscase thepostsof Industrial Assistant 2nd Grade (towhich the applicantwas appointed, being hisfirst entrypost)andthepostsofCommercialAssistant 2ndGrade(towhich the interested parties, being permanent officers, were seconded} were temporary posts, itwas reasonably open to the respondentto interpretthe scheme intheway itdid

(2)Theaforesaid confidential reportswere preparedincontraventionofthe 1114 35 3CX.H. Papamlchael v. Republic regulationsandhavechanged theoverallpictureofthe candidates.Itfollows that forthereasonsexplained inRepublicv. Argyrides

(1987)3C.L.R.1092, thesubjudicepromotionshavetobe annulled on thisground. 5 10 15

(3)Seniority is governed by section 46* of Law 33/67, as amended by section 5 of Law 10/83. The manner of holding a post isimmaterial for the purposes of seniority. It is the exact date of appointment to the post that countsanditisonlywhensuchdateisthesame,thatsub-section 2ofsection 46 comes into play for calculating seniority on the basis of the officers' appointmentstotheirpreviousposts. As in this case the appointment of applicant to the post of Industrial Assistant2ndGradewasnotmadeonthesamedateasthesecondmentofthe interestedpartiestothepostofCommercialAssistant,section 46

(2)couldnot come intoplay and Rayiasisseniortotheapplicant byonly3 1/2 months.It follows that the Commission asfar asRayias isconcerned laboured under a misconception of fact. Subjudice decisionannulled. Costsinfavourofapplicant. Casesreferredto: Partellides v.Republic

(1969)3 C.L.R. 291; 20 Republic v.Koufertas

(1985)3C.L.R. 1950; TheRepublic v.Psaras

(1985)3C.L.R.1939; Stylianou v.Republic

(1986)3 C.L.R.579; Christofidesv.Republic

(1985)3C.L.R.1127; TTiem/sfoc/eous v.Republic

(1985)3C.L.R.2652; 25 LofiUsandAnother v.Republic

(1986)3C.L.R.1318; Arghyridesv.Republic

(1986)3C.L.R.1488; Karpasitisv.Republic

(1986)3C.L.R. 1617 Republicv.Argyrides

(1987)3 C.L.R.

1. Recourse. 30 Recourse againstthedecision oftherespondenttopromote the interested partiestothe postof Commerceand IndustryAssistant, 1stGrade inpreference and insteadofthe applicant. A S . Angelides, for the applicant. •Quotedatp.
2. 1115 Papatnichaelv. Republic

(1987)A. Papasawas, Senior Counsel of the Republic, for the respondent. Cur. adv. vuit. SAWIDES J. read the following judgment. The applicant challenges the decision oftherespondent published intheofficial 5 Gazette of the Republic dated 26.7.85, whereby the interested parties, namely,A. Rayiasand P.Nicolaou were promoted tothe post of Commerce and Industry Assistant, 1st Grade as from 1.7.

1. The applicant was holding,prior tothesubjudice decision, the 10 post of Industrial Assistant and the interested parties that of Commercial Assistant 2nd Grade, both of which are the immediately lower posts to the post of Commerce and Industry Assistant 1stGrade, which isapromotion post. The Ministry of Commerce and Industry requested, by letter 15 dated5.12.1984, thefilling,amongstothers,oftwovacantpostsof Commerce and Industry Assistant 1st Grade, for which the approval of the Ministry of Finance was obtained. Alist of all the officers holdingthepost ofCommerceand IndustryAssistant2nd Grade, together with their confidential files and the scheme of 20 service for the post, were sent by the respondent to the Departmental Committee which was set up for thepurpose. The DepartmentalCommitteebyitsreportdated17.5.1985,foundthat the only candidates satisfying the requirements of the scheme of serviceand morespecifically theprovisionforfiveyearsservicein 25 the immediately lower post, were the applicant and the two interested parties, who were, as a result, recommended for the promotion in question. The respondent considered the report of the Departmental Committee on 29.5.1985 and postponed final consideration of 30 the matter at a later meeting, which was to be attended, also, by the Director-General of the Ministryof Commerce and Industry. At the final meeting of the respondent, which took place on 20.6.1985,theDirector-General oftheMinistrymentionedthatall three candidates had a very good knowledge of English, that 35 interested party Nicolaou was an excellent officer and he recommended the two interested parties. The respondent adoptedtherecommendationsoftheHeadoftheDepartment and proceeded as follows: 1116 3 C.L.R. Papamlchaelv.Republic S a w i d e s J. «Especially with regard toRayiastheCommittee noted that duringthelasttwoyearsPapamichaelhadbetter Confidential Reportsthan Rayiaswho,however,hadsuperiorreportinthe previousyear Onthebasis,however, ofthethree established 5 criteria as a whole and placing the proper weight to the seniority of Rayias being 15 whole years, it preferred the latter». And the respondent finally decided to promote the two interested parties, as from 1.7.
2. The promotions were 10 published inthe official Gazette ofthe Republicdated 26.7.1985, asaresult of which the applicant filed thepresent recourse. 15 Counsel for applicant raised, by his written address, the following grounds oflaw:
3. The interested parties do not possess the qualifications required bythescheme ofservice.
4. The confidential reports of the interested parties are invalid as the prescribed procedure for their preparation was not followed. 20 3.Theapplicantissuperiortotheinterestedpartiesinmerit, qualifications and seniority. Inexpoundingonthelegalgroundscounselargued,withregard tothefirstground,thattheinterested partieswerepromotedtothe post of Commercial Assistant2nd Grade on 15.3.1982 and were thus not qualified for promotion since they did not satisfy the 25 requirement of thescheme of service for five yearsservice in the post of Commerce and Industry Assistant 2nd Grade. Counsel submitted, makingreference tothecasesofPartellidesv. Republic

(1969)3 C.L.R. 291, 296 and Republic v. Koufettas

(1985)3 C.L.R. 1950, 1961,that the fact that the interested parties were 30 seconded to the post in question since 1979 cannot change their substantive statusand such secondment cannot be considered as servicetothat post, withinthe meaning ofthe scheme ofservice. Asaresult, counsel concluded, theywerewronglyconsidered for promotion. 35 Withregardtothesecond ground,counselforapplicant argued thatthepreparation ofconfidential reportsisregulated bycircular No. 491 approved by the Council of Ministers. Counsel contended that in the case of interested party Rayias, his confidential reports for the year 1981 were changed on 7 items, 1117 SavvftdesJ. Papamlchael v. Republic

(1987)thus rendering his general assessment from «good» to «very good» without being stated who effected the said changes and without following the procedure prescribed by Reg. 9 of the said circular.Also the reportof the same party for 1982 was changed insix items,thusrenderinghisgeneral assessment from «good»to 5 «verygood» incontraventionof theabove circular inthatitisnot stated whether the countersigning officer discussed the matter with thereporting officer before effecting the changes. Similarly one change was effected in the report of interested party Nicolaoufor 1982, thusrendering himfrom «very good» to 10 «excellent» andtwo changes inhisreportfor 1983, which didnot affect, nevertheless, hisgeneral assessment. In respect of thethirdgroundcounsel argued thattheapplicant is at least equal inmerittointerested party Nicolaouand superior to Rayias, possesses betterqualifications thanbothof themandis 15 also seniorto them, having regard tothefact thathe was holding the post of Industry Assistant 2nd Grade since 1979, whilst the interested parties were serving on an equivalent post on secondment and were promotedtoitonly in 1982. The scheme of service for the post of Commerceand Industry 20 Assistant 1st Grade, reads,inthisrespect, as follows: «

(1)Πενταετής τουλάχιστο υττηρεσία στη θέση Βοηθού Εμπορίου και Βιομηχανίας, 2ης Τάξης/ Εμπορικού Βοηθού, 2ης Τάξης/Βιομηχανικού Βοηθού.» «

(1)Atleastfive years service inthepostof Commerceand 25 Industry Assistant, 2nd Grade/Commercial Assistant, 2nd Grade/Industrial Assistant.»). The question of the interpretation of the term «service» appearing inschemesof service insimilarcircumstances,hasbeen considered by the Full Bench of this Court in the case of The 30 Republicv. flsaras

(1985)3C.L.R. 1939.Theschemeof service in that case required «at least three years service» in the post of LabourOfficer 2nd Gradeas a qualification for promotiontothe post of Insurance Officer 1st Grade.The Courtafter taking into consideration theprovisions of section 32

(2)of thePublicService 35 Law, (LawNo.33/67) asamendedby Law 10/83 totheeffect that permanent officers can neitherbe appointed nor promoted to a temporary post, butonly secondedtoit,andalso thefact thatthe available postswere temporary,concludedasfollows, atp. 1945:•We are of the view that it was reasonably open to the 40 appellant Commission to construe the phrase 'service inthe post of Insurance Officer 2nd Grade and/or Labour Officer 1118 3 C.L.R Papamlchael v. Republic SawidesJ. 2nd Grade' as including service in such post not only in a permanent capacity but also on secondment to a temporary post incircumstances such asthose ofthe present case.» The case of Republic v. Psaraswas followed in Stylianou v. 5 Republic

(1986)3C.L.R. 579,587. Inthe lightofthe viewsexpressed inPsarascase and bearingin mind that in the present case also, as it seems from the comparative tables attached to the opposition, the posts of Industrial Assistant 2nd Grade, (to which the applicant was 10 appointed, beinghisfirstentrypost)andCommercialAssistant(to which the interested parties were seconded, being permanent officers), availablein 1979,weretemporary posts,Ifindthatitwas reasonably open to the respondent Commission to consider the interested parties as possessing the qualification of five years 15 service inthe previous post. Before proceeding to consider the second ground, Iwould like toclarify theposition astothe disputed confidential reportsof the interested parties. Taking interested party Nicolaou first, it is obvious that the 20 corrections effected in his report for 1983 were made by the reporting and not the countersigning officer and the provision of the Circular in question have, therefore, no application (see Stylianou v. Republic supra). In hisreport for 1982 there isonly one change effected by the countersigning officer in red, which 25 changed hisoverall assessment from verygood to excellent. InthereportsofinterestedpartyRayiasfor 1981and 1982there are a number of corrections 7 and 6 respectively, changing his overallpicture.Itisobviousthatthecorrectionsweremadebythe countersigning officer whostated that he believed thatthe officer 30 hasnotbeen reported objectively. Itistheposition of counselforapplicantthatthe countersigning officer in the case of both interested parties did not discuss the matterwiththereportingofficer before makingthe corrections,in contravention oftheprovisionsofparagraph 9ofCh".No.491the 35 contentsofwhichhadbeen approvedbytheCouncil ofMinisters. Counsel for the respondent did not dispute this allegation but contended that the irregularity is not material. Both counsel supportedtheirviewsbymakingreference tocasesdecidedbythis Court. 40 Thequestion hasbeen considered bythiscourtinseveral cases where different viewswere expressed. Inthecase or Chnstofides v.Republic

(1985)3 C.L.R. 1127,it 1119 S a w i d e s J. Papamlchael v. Republic

(1987)was held that the failure of the countersigning officer to give reasonsfor disagreeingwiththeassessmentofthereporting officer wasmaterial inviewof thefactthatthesaidreportwastaken into consideration by the respondent in effecting the promotions in question. , 5 In Themistocleous v.Republic

(1985)3C.L.R.2652.A.Loizou, J. held that the failure of the countersigning officer to discuss his difference of opinion withthe ReportingOfficer wasnot material in the circumstances of the case.The same Judge held in Lofitis and Another v. Republic

(1986)3 C.L.R. 1318, that the 10 irregularity, beingthefailure ofthe countersigningofficer tomake hiscorrections inred ink, wasnot material astovitiate the report. DemetriadesJ. heldinthecase ofArgyndes v.Republic

(1986)3 C.L.R. 1488 that the failure of the countersigning officer to discuss the matter with the reporting officer before making any 15 corrections wasa material one. Thelastcasewascited withapprovalbyPikisJ. inhisjudgment in Karpasitisv. Republic

(1986)3 C.L.R. 1617 statingat p. 1625 that «a prior consultation is an essential safeguard for the avoidance of errorsand misconceptionsabouttheworth ofpublic 20 officers». (Although appeals had been filed against allthe above cases, with the exception of Karpasitis case, these appeals were subsequently withdrawn except the one inArgyridescase). The Full Bench in dealing with the appeal in Argyrides case whichwasfiled bytheRepublicagainstthefirstinstancejudgment 25 annulling the promotion of the interested parties on this ground, concluded that non-compliance with regulation 9 of the regulations concerning preparation of confidential reports amounts to an illegality whichvitiates any decision based on it.It further held that any violation of such regulation amounts to a 30 violation of Article 28 of the Constitution in that it defeats the expectation of every public officer to be equally treated concerning the preparation of confidential reports and that the procedure expressly set out in the regulations is to be strictly complied with inallcases. 35 Bearing in mind the dicta in the above case Ifind that in the circumstancesofthepresentcasetheconfidential reportswerenot prepared inaccordance with theregulationsand the assessments of the countersigning officer which have affected the general 1120 3 C.L.R. Papamlchaelv. Republic S a w i d e s J. picture of the assessment of the candidates were effected in an unwarranted way contrary to the regulations. Therefore, for the reasons stated intheappeal inRepublic v.Argyrides(R. A. 678,in which judgment was delivered on the 11th June, 1987, not yet 5 reported*), which Ifully endorse,thesub judice decision hasto be annulled. Notwithstanding my conclusion thatthesub judice decision has tobe annulled ontheabove ground, Iwillproceed toconsider the remaining ground. 10 Itis obvious thatone of thereasons why interested party Rayias was preferred to the applicant was the seniority of this interested party which, as stated by the respondent in its minutes, was as much as 15 years. Having considered the dates of appointments andpromotionsof thepartiesasthey appear inthetables attached 15 to the opposition, I find that the respondent acted under a misconception of fact as to the seniority of this interested party. Seniority isgoverned by Section 46 of Law 33/67as amended by. section 5 of Law 10/83, which reads as follows: 20 25 30 35 40 «

(1)Ηαρχαιότης μεταξύτων υπαλλήλων κατεχόντων την αυτήν μόνιμον ή προσωρινήν θέσιν ή τάξιν της αυτής θέσεως, είτε μονίμως είτε προσωρινώς είτε από μηνός εις μήνα είτε επί αποσπάσει, είτε επίσυμβάσει, κρίνεται βάσει της ημερομηνίας της ισχύος τ ο υ διορι­ σμού, τηςπροαγωγής ήαποσπάσεωςτων εις τηνσυγκεκριμένην θέσιν ή τάξιν, αναλόγως της περιπτώ­ σεως, ανεξαρτήτως τ ο υτρόπου κατοχής αυτής.

(2)Εν περιπτώσει ταυτοχρόνου διορισμού, προαγωγής ή αποσπάσεως εις την συγκεκριμένην θέσιν ή τάξιν τηςαυτής θέσεως, η αρχαιότης κρίνεται συμφώνως προς την προηγουμένην αρχαιότητα των υπαλλήλων.» («

(1)Senioritybetween officers holdingthesamepermanent or temporary post or grade of the same post, either permanently or temporarily or from month to month or on secondment, or on contract, shall be determined onthebasis of the effective date of their appointment, promotion or secondment to the particular post or grade, as the case may be, notwithstanding the mannerof holding same.

(2)Inthe case of simultaneous appointment,promotionor secondment to the particular post orgradeof thesamepost, 'Reported in

(1987)3 C.LR 1092. 1121 SawidesJ. Papamlchaelv.Republic

(1987)seniority shall be determined according to the officers' previousseniority».) The applicant was appointed to the post of Industrial Assistant on 16.7.1979, while interested partiesNicolaou and Rayiaswere seconded to the post of Commercial Assistant 2nd Grade on 5 1.6.1979 and 1.3.1979 respectively. The two posts are equivalent asregardssalary scales. Inaccordance with section 46

(1)as amended (vide above) the manner of holding a post is immaterial for the purposes of seniority. It is the exact date of appointment to such post that 10 countsforpurposesofseniorityanditisonlywhensuchdateisthe same in the cases of more than one party that sub-section

(2)comes into play for the purpose of calculating seniority on the basis of their appointment to theirpreviouspost and so on. The datesof theappointments andsecondments ofthepartiesarenot 15 the same in the present case; therefore section 46

(2)does not apply. According to the dates of their appointments and secondmentsRayiasisseniortotheapplicantby31/2monthsand Nicolaou by 1 1/2 months.Therespondent wastherefore acting undera misconceptionoffactregardingtheseniorityofinterested 20 partyRayiasandtherecoursemust,therefore, beannulledonthis groundaswell,withregardtointerestedpartyRayias. In the result recourse succeeds and the sub judice decision is hereby annulled with costsinfavour ofthe applicant. Sub judice decision 25 annulled withcosts. 1122