clr/1987/1987_3_1237.pdf

(1987)undermvigilation —Decision reasonablyopen tothe Commission The applicants impugn thevalidityoftheselection oftheinterested parties forthepostofPnncipalAdministrativeOfficer, firstentryandpromotionpost Themaingroundsputforwardbytheapplicantstnsupportoftheircaseare {a)The Departmental Boardfailedtospecify whichofthecandidatesitwas 5 recommending were recommended as satisfying the qualifications for promotion and which assatisfying the qualifications for appointment (b)Nocontemporaneous record existsoftheindividual impressions ofthe members of the Commission of the performance of the candidates at the interviews,towhich, inany event, undue importance wasattached 10 (c)TheletterwnttenbytheChairmanoftheDepartmentalBoard,whereby he informed the Commission that the Board in making its relevant recommendations ,took intoconsideration alltheconfidential reportsforthe candidates and not only those of the last two years, did not represent the viewsof allthe members ofthe Board 1** (d)The annulment of the promotion of one of theinterested partiestothe post of Senior and Public Administration and Personnel Officer renders the subjudice decision void for having been reached under a misconception as tothe true position held bysuch interested party (e) The relationship between the Head of Department and one of the interested parties 20 Moreover, applicant in recourse 622/85 argued that the Commission wrongly failed to regard a correspondence course followed by him in Personnel Management as within the meaning of an addibonal advantage specified by the relevant scheme of service Inthisrespect itmust be noted 2 5 that the Commission justified its attitude on the ground that the relevant certificate isoffered by correspondence and the examinations are not taken under mvigilation Held, dismissing the recourses {1) Since those recommended by the Departmental Board are so recommended for possessing the qualifications 3 0 as required by the scheme of service, there isno requirement on itspart to specify particularly who are considered as qualified for promotion and who forappointment Inanyevent,alltheparticulars ofsuch candidatesareatall times before the respondent Commission on which the final decision rests The Commission willfinallydecidewhichofsuchcandidateswillreceivean 3 5 appointment andwhich a promotion

(2)Itisnotnecessary torecordindetailtheviewsof individualmembersin the minutes of the respondent Commission Moreover unlikethe facts inthe caseoiMaratheftisv TheRepubic 0986) 3C L R 1407,thetimethatlapsed 1238 3 C.L.R. 5 1" Androntkou&Othersv. Republic between the interviews held by the Commission and thesubjudice decision 15 notthatlong as tohave distorted the evaluation of theperformance of the candidates at such interviews so as to create strong probability of the Commission labounng under a matenalmisconception due to inaccuracies Furthermore though withoutdoubtundueimportanceshould notbe givento the interviews, there is nothing wrong in law to attach the necessary importance to them as such interviews reveal a candidate's personality and abilities which ininstancesasthepresentoneareimportantqualities, inorder to ascertain whether such candidates would be suitable for the post m question

(3)The Chairman of the Board was in a position togive the explanations contained inhisaforesaid lettertothe Commission 15 20

(4)Theannulmentinquestion tookeffect after thesubjudice decision was reached and, therefore, it canno* affect its validity as far as the present procedmgs areconcerned

(5)Therelationshipwas notclose enough sothatitwas notnecessary tobe brought tothe knowledge of the respondent Commission Nothingexiststo raise theprobability of bias Moreoverthe interested party was one of the 22 candidates, recommended without comment by the Departmental Board Finally the Head of Departmentrecommended equally both the applicant, who raised theissue, andtheinterested party

(6)In the circumstances it was reasonably open to the Commission to decide as it did as regards the correspondence course of applicant in case 622/85 25 Recoursedismissed No orderas to costs Casesreferredto Markidesv TheRepublic

(1983)3 C L R 750, Hadjiantoniouν TheRepublic(\983) 3 C LR 1145, 30 Maratheftisν TheRepublic[1986)3 C LR 1407, Markidesv TheRepublic(\98S)3 CLR 1699, Frangou ν TheRepublic

(1970)3 CLR 312 Recourses. * Recourses against the decision of the respondent to promote 35 theinterestedpartiestothepostofPrincipalAdministrative Officer in preference and instead of the applicant A.S Angelides, for applicants in Cases Nos 579/85; and 1239 Andronikou&Othersv.Republic

(1987)622/

1. M.Christofides, for applicant inCase No.693/
2. A. Vassiliades, fpr the respondent. Cur.adv. vult. A. LOIZOU J. read the following judgment. By the present 5 recourses which were heard together the applicants seek a declaration of the Court that the decision of the respondent, published on the 24th May, 1985, in the official Gazette of the Republic,topromote theinterestedpartiestothepostofPrincipal Administrative Officer, is null and void and of no legal effect 10 whatsoever. SixpostsofPrincipalAdministrativeOfficer which isafirst entry and promotion post, wereadvertised onthe24th August 1982,in the official GazetteoftheRepublic.Inresponsefifty-six candidates applied. In accordance with section 36 of the PublicService Law 1967, Law No. 33 of 1967, a Departmental Board was set up which considered theapplications submitted and called for an interview fifty-one candidates who had the qualifications required by the scheme ofservice.Itinterviewed thefourty-three candidateswho 20 attended on the7,12,13and27December 1984,considered the matter on the 5th January 1985, and on the 11thJanuary 1985, recommended to the respondent Commission for appointment/ promotion twenty-three candidates including the applicants. The respondent Commission, however, in dealing with the 25 recommendations ofthe Departmental Board wasofthe opinion thatthesaid Board considered onlythe confidential reportsofthe applicants of the lasttwo years, ittherefore sent such report back to the Board advising itto consider allthe confidential reportsof the applicants, and also that undue importance ought not to be 30 given tothe interviews. On the 14th February 1985,theDepartmental Board replied to the respondent Commission that in reaching their conclusion all confidential reportsofthecandidateshad actuallybeentakeninto consideration and not only those of the last two years as it had 35 inadvertently been stated intheirreport.Moreover itwas clarified therein thatinordertodeterminethemeritofthecandidates,their performance at the interviews was not considered as a separate 1240 3C.L.R. Androntkou&Others v.Republic A.Lolzou J. factorbutitwastaken intoaccounttogetherwiththeir confidential reportsand allothermaterial factors which were before it. In view of this, the respondent Commission on the 21st February 1985, decided to call for an interview the twenty-three 5 candidates recommended bythe departmental Board as well as one other candidate whom it considered as eligible. Such interviews were conducted on the 14, 15, 18 and 19th March,
3. TherespondentCommissionmetagain onthe 13thMay,1985, 10 as on the 9th April 1985 and the 7th May 1985, when it was schedule to meet, one of its members was ill and the meetings were postponed. Atthe aforesaid meeting the Director of Public Administration and Personnel was present and expressed his views and opinion on the performance of the candidates during 15 the interviews. The respondent Commission then proceeded to consider the candidates generally and their performance during the interviews «in the light of the views of the Director of Personnel», it also examined all the material factors from the personal files and the confidential reports of the candidates who 20 were all public officers, their qualifications, merit, seniority and decidedtopromoteasthemostsuitableforthepostthe interested parties, with effect from the 15th May, 1985, who were the following:1) Antoniou Michael, 2) Aristotelous Panayiotis, 3) Patzinakos 25 Achilleas, 4) Papadopoulos Andreas, 5) Sawa Andreas, 6) Charalambides Georghios. The applicantsasa resultfiledthe present recourses. The basic arguments put forward on their behalf are the following: 30 Theirfirst isthatthe Departmental Boardfailed toexamine and to specify in its recommendations which of the candidates did have thequalifications forpromotion, thus,itwasarguedthat five out of the six candidates did not have the qualifications for promotion, except interested party Sawa, as they did not satisfy 35 therequirementofthescheme ofserviceoffifteen yearsofservice in the post of the General Administrative Staff etc. Nor did they satisfy the requirement for first entry, of ten years administative experience ina responsible position. IdonotconsiderthattheDepartmentalBoardactedwronglyby 1241 A.LoixouJ. Andronlkou&Othersv.Republic

(1987)notspecifying whichofthecandidateswerequalified forfirstentry and which for promotion The duty and purpose of the Departmental Boardistofacilitate therespondent Commissionin the exercise of itsfunction ItadvisestheCommission when there are many candidates, as to who are eligible for the post in 5 question. Since those recommended are so recommended for possessingthequalifications, asrequiredbytheschemeofservice, thereis,Iconsidernorequirementonitsparttospecify particularly who are considered as qualified for promotion and who for appointment In any event, all the particulars of such candidates 10 are at all times before the respondent Commission on which the final decision rests which will finally decide which of such candidates will receive an appointment and which a promotion. Moreover, asitisthe lawthatnoofficer istobepromotedto more than one post at a time, itfollows that only those candidateswho 15 are serving in the immediately lower post would be eligible for promotion, whereas the remainder would be considered as candidates for afirstentry post Furthermore, from a perusal of the personal files of the interested parties it appears that all interested parties had the 20 qualifications required by the scheme of service, interested party Sawa had over fifteen years service in the post of the General Administrative Staff and the resthad the ten years expenence in the responsible position in the public service Asin any case the interpretation oftheschemeofserviceisgenerallyatthediscretion 25 oftheappointing authonty,theCourtcannotinterfere unlesssuch interpretation givenwasnotinthecircumstancesreasonably open to it, and in this instance I find that it was so This argument therefore fails Onthisissueof qualifications itwasfurther argued byapplicant 30 in case No 622/85,that the respondent wrongly considered that a Correspondence Course followed by him in Personnel Management, withtheMetropolitan College,Oxford couldnotbe regardedasfallingwithinthemeaningoftheadditional advantage required by the scheme of servtce and alsothat thisdecision was 35 contrary to information obtained from the Bntish Council by the Ministryof Labour and Social Insurance Itisprovided inthescheme ofservice that «Postgraduate or special training of at least one academic year in Public Administration or other suitable held will be 40 1242 3 CX.R. Andronlkou&Other·v.Republic A.Lolzou J. considered an advantage.» Inthe relevant letter ofthe British Council itwasstated that the Metropolitan College is an accredited Correspondence College and that the course inquestion could be considered as specialist 5 traininginthe field ofPersonnel Management or a related fieldof training. This letter was written in reply to specific and particular questions put to it and not in the light of the requirement of the Scheme of Service and therefore no more can be implied to it 10 than whatisinfactstatedthereinwhichinanycaseisnot disputed by the respondent Commission, which what itin fact decided, is that the Course in question could not be regarded as coming withintheambitofthescheme ofservice«becausesuchis offered bycorrespondence and the examinations atitsend are not taken 15 under invigilation.» Asitactually transpires the said College byitsletter of the 12th January 1978,informed the applicant as follows: 20 25 «Iseethatyouwishtoreceiveyourcertificate, but1regretto inform you that we are unable to despatch thisto you since you have failed to reach a high enough standard in the test you have completed. Imust point out that itisnecessary for you toreach an average of60% inordertobeeligiblefor the certificate. Iwould recommend thatyou return allthe model answers to the college for tests 1 to 4, 6 and 10 and resubmit these tests. Then, if you gain a high enough standard when yo attempt the teststhe second time,we willbe abletoreward a certificate.» Iconsider therefore thatinthecircumstances itwas reasonably 30 open to the respondent Commission to decide as it did and this ground alsofails. Asregards merit Ifind thatallinterested parties are allmore or less the same, all having mostly excellent reports. They all have recommendationsforpromotion aswellasapplicantsAndronikou 35 and Papadopoulos, by both the Departmental Board and the Head of Department, applicant Artemiou wasnot recommended by either. AsregardsseniortyapplicantAndronikou isjuniorto interested 1243 A.LoizouJ. Andronikou &Others v.Republic

(1987)party No. 1, Sawa, but senior to all others. However, in viewof what has been said above his seniority cannot prevail, all other things not being equal. Applicant Papadopoulos, isjunior to interested parties Sawa and Aristotelous, but senior to the rest, that isequal tointerested 5 party 2 as regards the post of Senior Administrative Officers but senior as regards the previous posts and to interested parties No. 3 byseven months, No4,byone yearandseven monthsand No. 5 by two months, such seniority of his, however, is not so substantial as to prevail or render him strikinglysuperior tothose 10 selected. Finally applicant Artemiou is junior to all interested parties, except No. 4 over whom he is senior by eleven months, but as already stated above thisapplicant had not been recommended. It was further alleged by the applicants that the sub judice 15 decisionshouldbeannulledbecausenocontemporaneous record exists of the individual impressions of the members of the respondent Commission of the performance of the candidates at theinterviews-towhichinterviewsinanyeventundue importance wasattached. 20 In the first place, independently of whether notes were taken down by the individual members of the respondent Commission or not at the time of the interviews itisnot necessary torecord in detail the views of individual members in the minutes of the respondent Commission. {See: Markides v. Republic

(1983)3 25 C.L.R. 750 at p. 761 cited with approval in Hadjiantoni and Others v. The Republic

(1983)3 C.L.R. 1145 at 1153-54). Moreover unlike the facts in the case of Maratheftis v. The Republic

(1986)3 C.L.R. 1407,the time that lapsed between the interviews held bythe Commission and the subjudice decision is 30 not that long as to have distorted the evaluation of the performance of the candidates at such interviews so as to create strong probability of the Commission labouring under a material misconception due to inaccuracies. Furthermore though without doubt undue importance should not be given to the interviews, 35 there isnothing wrong in lawtoattach the necessary importance to them as such interviews reveal a candidate's personality and abilities which in instances as the present one are important qualities, in order toascertain whether such candidates would be suitable forthe post inquestion. 40 1244 3C.L.R. Andronikou &Othersv.Republic A.Loizou J. It was also contended on behalf of the applicant in case No. 693/85, that the letter of the departmental Board of the 14th February 1985,clarifying totherespondent Commissionthattheir conclusions were reached after taking into consideration all the 5 confidential reports of the candidates and without giving undue weight to the interviews, did not represent the views of all the members of the Board but only those of itsChairman, havingin fact been signed onlyby him. Iconsiderthatthe Chairman, beingso, wasinaposition togive 10 himself the explanations sought by the Commission to the effect that allthe confidential reportswere taken intoconsideration and that noundue weightwasgiventotheinterviewsand inany event allapplicantswererecommended exceptapplicantArtemiou who wasconsidered asinferior tothose recommended. 15 As regards the statement of the Chairman in para 3 of his aforesaid letter to the effect that «All the members of the Departmental Boardagreewiththecontentsofthisletter»,wetake itto mean those members available atthetime and allwere,with the exception of Mr.Papasolomondos who was absent abroad.I 20 find therefore noirregularityinthismatterandthisgroundmustbe dismissed. Asregardstheargumentthattheannulmentofthepromotionof interested party Antoniou to the post of Senior Public Administration and Personnel Officer by the Court on 27th 25 September, 1986, (See Markides v. Republic

(1986)3 C.L.R. 1699), renders the sub judice decision wrong for having been reached underamisconception astothepositionofthisinterested party,Iwoulddismissalso,asanysuchannulmenttookeffect after thesubjudicedecision wasreached and couldtherefore not have 30 affected thevalidityofthesubjudice decision asfarasthe present proceedings are concerned. Finally itwasargued on behalf of applicant incase No. 622/85 thattheparticipation intheDepartmental BoardofMr. Koufteros, the Director of Personnel, was wrong as he was related to 35 interested party No.2 Antoniou. In the first place Iconsider that the degree*of relationship was not close enough to be brought to the knowledge of the Commission. Secondly as regards the possibility of bias, none clearlywasallegedandinanyeventnothingexiststosuggestsuch 1245 A.LoizouJ. Andronikou&Othersv.Republic

(1987)propability in order to raise doubts; furthermore as regards the Departmental Board, its recommendations were made without particularfavourablecommentasregardstheinterestedpartywho wasso recommended among twenty-three others. Finally Mr. Koufteros in his capacity as Head of Department 5 recommended the applicant and the interested party in the following terms: «Papadopoulos Demetrios: Very good as regards personality and explanations. Appeared a little absolute. His replieswereverygood. 10 Antoniou Michael: Very very good as regards personality and repliesand clearnessand correctnessofhisreplies.» Iconsider that in the particular circumstances it isnot of such importance as to affect the validity of the sub judice decision particularly in view of the fact that applicant Papadopoulos was 15 equally recommended. Moreover, the recommendations of the Departmental Board arenotbindingontheCommission asinthe proper exercise of the discretion theCommission had toreach its own conclusions. Consequently I would not consider this as a material irregularity, ifatall. 20 Forthereasonsstated,above,Ifindthatthesubjudice decision wascorrectandproperinthecircumstancesandwasreached after a proper exerciseof theCommission ofitsdiscretion,wide asitis in respect of hierarchically high posts (see Frangou v. The Republic

(1970)3 C.L.R.312,andinaccordancewiththelawthe 25 applicants have failed to establish any striking superiority over the interested parties and their recourses must therefore fail and are hereby dismissed, but in the circumstances there will be no orderastocosts. Recourses dismissed. 30 No orderasto costs, 1246