clr/1987/1987_3_1217.pdf

(2)of the Public Service Law 33/67) — Principlesapplicable — Theyshouldbeweighedtogether andthe appointing organmayattributesuchsignificancetothemasmaybedeemedproper inthe correctexerciseofitsdiscretion — Thisprinciple isnot inconsistent withdicta that*Meritshould carrythemostweight», solong asthisisnot misunderstood asimplying thatmerit isinvariably in aninflexible manner thedecisivefactor — Cogent reasonsshould begiven why in aparticular casemerit wasnot treatedascarrying themost weight. PublicOfficers—Promotions—Merit—Evaluation of,onthebasisof confidential reports— Whatmattersistheoverallpicture (grade)presented byareport — Wholecareerof candidatesshould betakeninto account, butit isnot wrong torely more onrecent thanonolder confidential reports. Theseare appealsfrom aJudgment of aJudgeofthisCourt, whereby the promotionoftheinterestedpartyintherelevantrecoursetothepostofLands Officer, 1stGrade,wasannulled. ItappearsthatthetrialJudgeapproachedtheissueofthevalidityofthesub judicedecisionfrom thepremisesthat boththe Headof theDepartment and the Commission were bound to rely on the three statutory cntena · ment. qualificationsandseniority-intheordertheyaresetoutintherelevantsection ofthelaw(Section44

(2)ofLaw33/67).TheassumptionofthetrialJudgewas that by statutory edict merit had to be treated invariably as the decisive criterion. 1217 Republicv. R O U M O S

(1987)The trial Judge also, found that there were other grounds justifying annulment of thesub-judice decision, namely failure by theCommission to attach to the confidential reports regarding the interested party the weight objectively duetothem,justification oftheselectionoftheinterested partyby reference to the fact that when the applicant and the interested party were candidatesin 1982 for alowerpost,thelatterwas preferred totheformer,and failure by the Commission toevaluate the recommendationsof the Headof Department in their proper perspective and consequently, failure tonotice the error inherenttosuch recommendations 5 Held, allowing the appeal

(1)The three statutory cntena namely ment, 1 0 qualifications andsemonty, aretobe weighed togetherandsuch significance is to be attributed to them as may be deemed proper in the course of the exercise correctly of the discretionary powers of the appointing organ {Ceorghiou ν The Republic

(1976)3 CLR 74, lendes ν The Republic

(1980)3 C L R 165 Chnstouv 77ieRepub/jc

(1980)3 CLR 437 andthe 1 5 Repubhcv Zachanades

(1986)30 LR 852followed) Noneofthe aforesaid cntena is accorded by statutory provision greater importance thantheother two To hold otherwise would amount to amending section 44

(2), not by legislation, but by judicial pronouncement[Republicν Zachanades, supra) Theaforesaid approachisnotinconsistentwiththedictuminMenelaou ν The 2 0 Republic

(1969)3 C LR 36, followed in the Republic ν Hans

(1985)3 C L R 106, that «ment should cany the most weight», provided it is not misunderstood as implying that ment should be treated invanably in an inflexible manneras thedecisive factor Indeed, theremay existsituations, m thespecial circumstances of which a cntenonotherthanmentmaybefound 2 5 tobe moreimportantthantheothercntena,however, cogent reasons should be given why menthas notbeen treated as carrying themost weight

(2)TheappellantCommissiondidinfactattnbutetotheconfidential reports of therespondent (applicantintherecourse)thesignificance objectively due to them As regards the evaluation of the ments of the candidates, as 3 0 emanatingfrom theconfidential reports,itmustbe stressed thatwhatmatters is the general picture presented by the overall grade in the report andthat, though thewhole career of thecandidatesshould be taken intoaccount,itis notwrong, if recentreports aremore relied uponthanolder ones

(3)The purpose of thepassagereferring tothepromotionsof 1982 was to explain why therespondent(applicantintherecourse)after 1982 heldapost lower thanthatof the interested party intherecourse Itwas notrelied upon tojustify thesub judice selection

(4)There was nothingreally wrong intheway theHeadof theDepartment made hts recommendations and, moreover, as the Commission reached its own conclusion,andonly afterhaving reachedsuchconclusion,itdecidedto accept the recommendations, the recommendations did not affect in a 1218 35 40 3 C.L.R. Republicv. R o u s s o s decisive mannerthe final outcomeand,therefore, even assuming thatsuch recommendationswere wrongly made,the irregularity is notamaterialone. Appealallowed. No orderas tocosts. Ο Casesreferredto: Menelaou v. TheRepublic

(1969)3 C.L.R.36; Theocharous v. TheRepublic

(1969)3C.L.R.318; Mintzides v. TheRepublic

(1973)3 C.L.R,521; Vourkosv. TheRepublic,

(1983)3 C.L.R. 1442, 10 Constantinouv. TheRepublic

(1984)3 C.L.R.498: Constantinides v. TheRepublic

(1984)3 C.L.R.567; Psaras v. ThePublicService Commission

(1985)3 C.L.R. 229: Yenakritou v. TheRepublic

(1985)3 C.L.R.2731: Georghiouv. TheRepublic

(1976)3 C.L.R.74; 15 ieridesv. TheRepublic

(1980)3 C.L.R. 165; Christou v. TheRepublic

(1980)3 C.L.R. 437; Soteriadesv. TheRepublic

(1983)3 C.L.R.921: 77ieRepublic v.Maris

(1985)3 C.L.R. 106; 77ieRepublic v.Zachariades

(1986)3 C.L.R. 852; 20 Republic v.Safirides

(1985)3 C.L.R.

1. Appeals. Appeals againstthejudgmentofaJudgeoftheSupremeCourt. of Cyprus (Pikis,J.)given onthe28th February, 1986 (Revisional Jurisdiction Case No. 538/84)* whereby the promotion of A. Koufettas tothepost of LandsOfficer 1st Gradewas annulled. 25 R.Gavrielides, Senior Counsel of the Republic, for appellantin R.A.
2. C. Loizou, for appellantin R.A.
3. A.S. Angelides, for respondentinboth appeals. Cur. adv. vult. 'Reportedin

(1986)3CLR. 723. 1219 Republicv.Roussos

(1987)TRIANTAFYLLIDES P. read the following judgment of the Court. These appeals have been made against the first instance judgment ofaJudge oftheSupreme CourtincaseNo.538/84,by means of which there wasannulled the promotion ofAKoufettas tothe post of Lands Officer, 1stGrade (Survey). 5 Appeal 581 was filed by the respondents in case 538/84 and appeal 582was filed bythesaid Koufettas whohasbeen allalong an interested party inthepresent proceedings. Case 538/84 was filed as a recourse, under Article 146 of the Constitution, by the respondent inthese appeals. 10 The first instance judgment of the learned trial Judge, against which the appeals havebeen made, isreported asRousos v. The Republic,

(1986)3C.L.R. 723,andinittherearesetoutthesalient facts of this case, which need not, therefore, be repeated in the presentjudgment. From the judgment of the trial Judge it appears that he approached thevalidityofthesubjudicedecision ofthe appellant Public Service Commission as if the Commission, as well as the Head of the Department concerned when he made his recommendations to the Commission, ought to have acted by 20 relying on the statutory criteria which are laid down in section 44

(2)ofthePublicServiceLaw, 1967(Law33/67)-namelymerit, qualifications and seniority-inthe order inwhich such criteria are set out inthe said section 44

(2);and thetrialJudge consequently proceeded on the basis that merit was the foremost criterion for 25 the evaluation of thesuitabilityofthe candidatesforpromotion to thepost in question. That merit is the most weighty factor has been established by case-law over a period of many years (see, inter alia, Menelaou v. The Republic,

(1969)3 C.L.R. 36, 41, Theocharous v. The 30 Republic,

(1969)3 C.L.R. 318, 323,Mintzides v. The Republic,

(1973)3 C.L.R. 521, 526, Vourkos v. The Republic,

(1983)3 C.L.R. 1442, 1449, ConstantJnou v. The Republic,

(1984)3 C.L.R. 498,502, Constantinides v.TheRepublic,

(1984)3 C.L.R. 567, 573, Psaras v. The Public Service Commission,

(1985)3 35 C.L.R. 229,241 and Yenakritouv. TheRepublic,

(1985)3 C.L.R. 2731,2741). All the case-law referred to hereinabove consists, indeed, of judgmentsatthefirst instance levelofthejurisdiction ofthisCourt 1220 15 3C.L.R. Republicv.Roussos Triantafyllidea P. under Article 146, but thisdoes not detract from their usefulness and importance. Itisto be noted, however, that in Georghiou v. The Republic.

(1976)3 C.L.R. 74, the following were stated in the judgmentof 5 the FullBench of thisCourt (atp.82): 10 15 «Furthermore, we do accept as quite correct the proposition that it is open to the Commission, in trying to select the most suitable candidate, to weigh together all relevant considerations and to attribute more significance to one factor than to another, in the course of doing so, provided, however, that it exercises properly its relevant discretion (see the decision of the Greek Council of Statein case 635/1950); and this Court will not interfere with a decision of the Commission when it appears that it was reasonably open to it to select a particular officer, insteadof another, for promotion (see, inter alia, Evangelou v. The Republic,

(1965)3 C.L.R. 292,299).* The approach adopted in the above-quoted passage from the judgment in the Georghiou case,supra, was followed by the Full 20 Bench in,interalia, leridesv. TheRepublic,

(1980)3C.L.R. 165, 180and Christouv. TheRepublic,

(1980)3C.L.R. 437,445.and was also used at the first instance level (see. for example. Soteriadou v. TheRepublic,

(1983)3 C.L.R. 921,932, 933). Morerecentlyin TheRepublic v. Haris,

(1985)3C.L.R. 106,the 25 following were stated in the judgment of the Full Bench of this Court (atp. 110): 30 «The claim of officers to promotion should be considered onthebasisofmerit,qualifications andseniority.Meritshould carrythe most weight because thefunctions ofapublic office arebetterperformed in the general interests ofthe publicby a publicofficer betterinmeritthanseniorityorqualifications• {Menelaouv. TheRepublic,

(1969)3 C.L.R. 36,atp.41).. Subsequently, in TheRepublic v.Zachariades,

(1986)3 C.L.R. 852, thefollowing werestatedinthe.judgmentoftheFullBench 35 (atp.856): «Also,weareoftheviewthatthethreecriteriawhichareset outinsection44

(3)ofthePublicServiceLaw,1967(Law33/ 1221 TriantafyllldeaP. Republicv.Roussos

(1987)67), namely merit, qualifications and seniority, have to be weighed together, bearing in mind, too, the performance of the candidates when interviewed, which isa process helping in the evaluation of the candidates, mainly from the pointof viewof meritand, also,toacertain extent, ofqualifications as 5 well. An appointing authority, such as the appellant Commission, when weighing together the said three criteria, inordertofindthemostsuitablecandidate,mayattributesuch significance to them asit may deem proper, provided that it 10 exercises correctly, in the course of doing so, its relevant discretionarypowers(seethe Georghioucase,supra,82);and it is not provided by section 44

(3)that any one of the three criteria has, in any event, greater importance than the other two.» The Georghiou case referred to in the above passage is Georghiou v. The Republic,

(1976)3 C.L.R.74, supra. We have no doubt that itwas not intended bythejudgment in theHariscase,supra,tooverrulethejudgmentsinthe Georghiou, lerides and Christou cases, supra. Nor was it intended by the 20 judgment intheZachariadescase,supra,tooverrulethejudgment inthe Hariscase, supra. IntheZachariadescase,theessenceofthejudgment,insofaras it is relevant to the present case, was that the criteria set out in section 44

(2)- (and there isa misprint in the report of that case 25 referring tosection 44

(3)instead of section 44

(2)) -of Law 33/67 aretobeweighedtogetherandsuchsignificance istobeattributed to them as may be deemed proper in the course of the exercise correctly of the relevant discretionary powers of the appointing authority, andthatnone ofthese criteria isaccorded bystatutory 30 provision, namely section 44

(2), greater importance than the othertwo.Becausetoholdotherwisewouldamountto amending section 44

(2), not by legislation, but byjudicial pronouncement, whichwouldnotbe permissible. On the other hand, there isnothing inthe Zachariadescaseto 35 prevent giving effect to the dictum in the Menelaou case, supra, whichwasadoptedbytheHariscase,that«meritshouldcarrythe mostweight»,solongthisisnotmisunderstoodtomeanmatmerit should invariably be treated, in an inflexible way, as being exclusively the decisive criterion, because, in view of the 40 1222 15 3C.L.R. 5 10 15 20 Republicv. Roussos TrituitafytlklesP. judgments in the Georghiou, lerides and Christou cases, supra, there may exist situations in the special circumstances of which, and provided that there are not overstepped the limits of the proper exercise of the relevant discretionary powers, a criterion other than merit may be found to be more important than the others. But it is, indeed, obvious thatcogent reasons should be given in order to justify why merit has not been treated in a particular case, inview of the existence of special circumstances, as carrying themost weight. On the present occasion itappears to us thatthe first instance judgment which is under appeal before us - (and which was delivered on28 February 1986, apparentlybefore thefinal textof the judgment intheZachariadescase, which was delivered on 13 January 1986 had become available to the learned trial Judge, because hedoesnotrefer to itatall)- was based ontheassumption thatpractically by statutory edictmerithadtobe treated invariably as the decisive criterion and, in our view, this was an incorrect application of therelevantlegislation, renderingitnecessary for us to allowthepresent appeal. We passonnexttodealwiththeotherreasonsforwhich thetrial Judge found thatthesubjudice decision should be annulled: It was found by. him that the appellant Public Service Commission failed to attach to the confidential reports regarding the interested partytheweightobjectively duetothem.We donot 25 think thatthis finding is borne out by the relevant minutes of the Commission, dated 12 July 1984, which show that, after the Commission had rejected the contention of the interested party that some confidential reports regarding himwere unjust, itwent on to record that it had decided to approach such reports with 30 special care («ιδιαίτερη προσοχή»), bearing in mind a clear statement of the Head of the Department concerned that the interested party had been showing considerable improvement and thatin 1984 hewas excellent. Inourviewthe Commission has attributedtothe confidentialreportsregarding the interestedparty 1223 TriantaftrOldeaP. Republicv.Roussos

(1987)the weight objectively due to them and itappears to have been verycareful indoingso. Wethinkthatitisadvisable,becauseofcertainside-issuesraised inthiscase,todeal further withthe matterofthe evaluation ofthe meritsofcandidatesonthebasisofconfidential reports,astheyare 5 prepared according totheforms currently isuse: Firstly, we should stress that what really matters isthe general picturepresentedbytheoverallgradeinthereport,onthebasisof theaggregateeffect oftheevaluationsofapublicofficer regarding particular rateable items,and not.the arithmetical formula ofhow 10 many times as regards such itemsa candidate had been rated as «excellent»or«verygood»,or «good»etc. In other words, if there are being compared the confidential reports regarding two public officers for the same year and the overallgradeforthatyearforboth ofthemis«excellent»wedonot 15 think much weight should be attached to whether this overall grade of «excellent» in respect of one of them has been reached through hishaving more «excellent»than «verygoods» in relation toparticularrateableitemsascomparedtotheotherpublic officer who has, also, an overall grade of «excellent» but with less 20 «excellent» and more «very good» ratings as regards particular items. Because it must not be lostsight of that itisdangerous to embark on these numerical comparisons independently of the nature of the items in respect of which an officer is rated as «excellent»or«verygood»sincesuchitemsdodiffer insignificance 25 depending on the qualitiestowhich they relate. Secondly, itistruethatthewholecareerofanofficer should be taken intoaccount, sothata complete pictureabout himmay be formed, but itcannot be saidthat there isbeing entailed a wrong exercise ofthe relevantdiscretionary powersifthe recent reports 30 are relied upon more than the older ones, because it cannot be denied that the recent reports present a picture which is more relevantonthe dateonwhichtheselectionofthecandidatetobe promoted or appointed ismade. The learned trial Judge has found that the preference for the 35 selection of the interested party was justified by the appellant Public Service Commission by reference tothe fact that in 1982, when the respondent and the interested party were again candidates for promotion to another lower post, that of Lands Officer, 2nd grade, the interested party was preferred to the 40 1224 3C U R . Republicv.R o u s s o s TriaotafytUdes P. respondent; and theJudge held thatthiswas an irrelevant matter to which no regard should be paid in view, in particular, of the judgment in 77ieRepublic v.Safirides,

(1985)3 C.L.R. 163. λ In our view the relevant passage in the minutes of the 5 Commission, dated 12July 1984, was mainly intendedto explain how itcametobe thatafter 1982 therespondent continuedto be in a lower post than the interested party; and this passage in the minutesinquestion of theCommission was notreally relied on, in any way, decisively by the Commission in favour of the selection 10 of the interested party instead of the respondent. We are bound, therefore, totreatthispassage as being at most only an irregularity which was notof a material natureand which cannotbe regarded asvitiating therelevant administrative process leading uptothesubjudice promotionof theinterestedparty (see, 15 interalia,inthisrespect, Christouv. TheRepublic,

(1980)3C.L.R. 437,448). ThetrialJudge hasfound,also,thattheappellantPublic Service Commission hasfailedtoweigh therecommendationof theatthe time Head of Department of Lands and Surveys, Mr. Rois 20 Nicolaides,initsproperperspective andthathadthe Commission done so it would have noticed the error inherent in the recommendation of Mr. Nicolaides, who recommended the interested party even though the respondent was superior in merit. 25 Mr. Nicolaides appeared before the Commission as Acting Director of the Departmenton 12 July 1984 and stated thatthe interested party was slightlyinferior inmerittotherespondentbut superior tohim inseniority by one year. He went on to say that in 1984 and till the time when he 30 appeared before the Commission the interested party was excellent, butnotuptothelevelof therespondent,andthatthere continuedtoexistthedifference which existed intheprevious year between the respondent and the interested party. He stated that theirqualifications were thesame andthattaking intoaccountthe 35 three relevant criteria he decided to recommend the interested party. Mr. Nicolaidespointedoutthattheconfidential report regarding the respondent for 1983 covered the period up to the month of 1225 Trisntaifrlllde*P. Republicv.Roussos

(1987)September; and he added that he had seen the confidential reports regarding theinterested party,when theywere forwarded to the Departmental Committee, and had evaluated the performance of this officer in 1983 and in 1984 till July 1984, when heappearedbeforetheCommission,and hefound thatthe 5 interested party had improved considerably and that such improvement was continuing. We find nothing reallywrong in the way inwhich the Head of Department made his recommendation to the appellant Public Service Commission andwe are of the opinion that he presented 10 the overall picture and justified his preference for the interested party in a manner that was reasonably open to him in the circumstances. From the remainder of the minutes of the Commission, of 12 July 1984, itisabundantly clearthat the Commission proceeded 15 tomake itsown comparison and evaluation ofthetwo candidates concerned, namely the respondent and the interested party, and only after having reached its own conclusion in this respect, and for the .masons recorded in support of such conclusion in its minutes, itdecided toacceptthe recommendation ofthe Head of 20 the Department in support of the promotion of the interested party. Consequently,weareoftheviewthatthesaidrecommendation did not affect in a decisive manner the sub judice decision of the Commission and, therefore, even assuming that the 25 recommendation of the Head of Department waswrongly made, in that he did not recommend the respondent who was slightly superiortotheinterestedpartyinmerit,wewouldnotbe prepared to find that the way in which such recommendation was made amounts to a material irregularity vitiating the administrative 30 processwhichculminated inthepromotion oftheinterested party. For all the foregoing reasons we have decided to set aside the annulment of thepromotion of the interested party asordered by thetrialJudge; and sinceweareoftheopinion, on thebasisofall relevant considerations, that such promotion was reasonably 35 open to the Commission in the proper exercise of its relevant discretionary powers; and as we cannot substitute our own selection of the mostsuitable candidate intheplaceofthatof the Commission (see the Zachariades case, supra),we have to allow these appeals, dismiss the recourse of the respondent - as 40 1226 3C.L.R. Republicv.Roussos Triantafyllldes P. applicant -and confirm the promotion tothepost concernedof theinterestedparty. Inallthecircumstancesofthiscasewehavedecidedtomakeno orderastocostsoftheseappeals. Appealsallowed. Noorderastocosts. 1227