(1987)1987October 14 [MAUCHTOS,J] INTHE MATTER OF ARTICLE 146 OF THE CONSTITUTION YIANNISS1ATIS, Applicant, v. THE REPUBLIC OFCYPRUS, THROUGH THE PUBLIC SERVICE COMMISSION. Respondent. (Case No. 313/80). Public Officers — Promotions — Qualifications— Additional qualifications envisaged asanadvantageinthescheme ofservice—Need fordueinquiry whethercandidatespossesssuchqualifications—Absence ofsuchInquiry— Groundof annulment. Public Officers — Promotions — Qualifications— Additional qualifications envisaged as an advantage in the scheme of service — Need of special reasoning why they were disregarded—No need of specificreference to them, when bothapplicantandinterestedpartypossessed them, By means of this recourse the applicant impugns the validity of the promotion of the interested partiestothepost ofSenior Pharmacist. 5 10 According to the relevant schemes of service,«Auniversity degree ortitle inPharmacywillbebe considered asanadvantage». The mam submission of counsel for applicantisthat although a university degree ortitle inpharmacy isconsidered asan advantage by theschemeof service, yet, there is nothing in the relevant minutes of the Public Service 1 5 Commissiontoshowastowhytheinterestedparties,whodidnotpossessthis qualification werepreferred instead ofthe applicant. It must be noted that interested parties 1, 2 and 3 did not possess the additional qualification, which was envisaged as an advantage by the aforesaid schemeofservice,whilstboththeapplicantandinterested party4 2 0 possessed such qualification. 1264 3 C.L.R. Slatis v. Republic Moreover, itmustbe notedthattheHeadof theDepartment mmaking his recommendations to the respondent Commission, simply stated that the applicanthas «sufficient education» 5 10 Held, annulling in part the sub judice decision
(1)It is clear from the relevant minutes that the Public Service Commission failed to carry out a dueinquiry asregards theadditionalqualification possessedby theapplicant, whichwas regarded by thescheme ofserviceas anadvantage, asopposedto the interested parties, who did nothave such qualification
(2)Moreover, theCommission failed togivethatspecial reasoning, which isrequired incases of thiskind,why itdisregarded applicant's such additional qualification anditsimply rubberstampedtherecommendationsof theHead of theDepartment 15 In the case of interested party No 4, however, who possessed the additionalqualification, nospecific reference was required tobemade bythe respondentCommission totheadditionalqualification oftheapplicant This pointwas settled by the Full Bench of thisCourtinthecase of TheRepublic ν Sawas Petndes
(1984)3 C LR 375 atpage 389 20 Subjudice promotions of interestedpartes 1, 2 and 3 annulled Recoursedismissedas againstinterestedparty4 No orderas tocosts Casesreferredto Partelhdesν TheRepublic
(1969)3 C LR 480, 25 Tourpekiv TheRepublic
(1973)3 C LR 592, Republicν Petndes
(1984)3 C LR 375 Recourse. Recourse against thedecision of therespondenttopromotethe interested parties to the post of Senior Pharmacist in preference 30 andinstead of theapplicant. St. Nathanael, for the applicant. A. Vassiliades, for therespondent. Cur adv.vult. MALACHTOSJ. readthefollowing judgment Theapplicantin 35 thisrecourse claims, as stated therein,thefollowing remedies: A. Adeclaration of the courtthattheact and/ordecision of the respondents, which was published in the Official Gazette of the Republic dated 1.8.80,by which the interested paties, namely, 1. 1265 MalachtosJ . Slatisv. Republic
(1987)Andreas I Antoniades, 2 Emilios Κ Sawides, 3 Dina Sawidou and 4 Efpraxia Petronda,were promoted to the post of Senior Pharmacistinpreference and/orinstead oftheapplicant,isillegal, null andvoid andof nolegal effect whatsoever, and Β Adeclaration of the courtthatthe actand/ordecision of the 5 respondents, which was published in the Official Gazette of the Republic under the above mentioned elements, by which the interested parties were promotedtothepost of SeniorPharmacist intheDepartmentofMedicalServices, was takeninexcessand/or abuse of power due to the illegal constitution of the respondent 10 authonty The post of Senior Pharmacist is a promotion post from the immediately lower post of Pharmacist 1stGrade According to the relevant schemes of service, the required qualifications are «At least a three-year service in the post of Pharmacist 1st Grade Administrative andorganizing abilities aswellas ability in the control of personnel A university degree or title in Pharmacywillbe considered as an advantage » The relevant facts of the case are the following Theapplicant isagraduate oftheAmencan University of Beirut from which hewas awarded hisΒ Sc degree in 1973 andthetitle ofM.Sc in 1975 having specialised inHospitalPharmacy Dunng hiscourse for theΜ Sc.hespecialised inadministrationof hospital staff and, atthesame time,hewas given a post of Assistant tothe Professor for teaching the under graduates His Μ Sc Thesis was granted a first pnze award and was published in the Amencan Journal of Pharmaceutical Society On 15 7.1975 the applicant was appointed to the post of Pharmacist 1stGrade By letter dated 20.7 79 the Director-Generalof the Ministry of Healthrequested theChairmanof thePublicService Commission to take all necessary steps and proceed with the tilling of four vacant posts of Senior Pharmacist in the Medical Department informing him at the same time,thatthe Minister of Financehad 35 given hisconsenttothefilling of thesaid posts. Inviewof the fact that the post of Senior Pharmacistis a promotionpost thePublic 1266 15 3 C.L.R. Siatis v.Republic Malachtos J. Service Commission at its meeting of 25.9.79, acting in compliance with section 36 of the Pub'ic Service Law of 1967, Law33/67, gave the relevant instructionsto itssecretary who,by letter dated 9.11.79, dispatched to the Director of Medical 5 Services, as Chairman of the Departmental Board, five copiesof the list of candidates for promotion to the post of Senior Pharmacist, as well as five copies of the relevant schemes of service. The Departmental Board at its meeting of 12.12.79 decided and recommended for promotion in alphabetical order 10 tencandidates, includingtheapplicant, andbyletterdated 3.1.80 informed the Chairman of the Public Service Commission accordingly. As the report of the Departmental Board did not contain any reasons as to the suitability in general of the candidates,itwasconsidered incompleteandtheChairmanofthe 15 PublicService Commission byhisletterdated 12.1.80, requested the Chairman of the Departmental Board to consider the matter and comply with this requirement. As a result, a meeting of the Departmental Board was reconvened on 4.3.80 where it was decided that aspecial form tohelpintheratingofeach candidate 20 should be used indicatingalsothe overallmeritofeach candidate whichshould bedispatched tothe PublicServiceCommission.In the light of the assessment and the rating of each candidate and after taking into consideration the experience, the merit, the seniorityand thesuitabilityofthecandidatesforthepostof Senior 25 Pharmacist, it was decided that ten candidates, including the applicant andtheinterested parties,outofthefifty-two eligible for promotion, should be recommended inalphabetical order asthe bestcandidates.Itmustbenotedherethattheapplicantwasrated by the Departmental Board with 91 marksout of 100, interested 30 party No. 1, Andreas Antoniades 84, interested party No. 2. EmiliosK.Sawides 90,interested partyNo.3 DinaSawidou83, and interested party No.4 Efpraxia Petronda 85. The relevant particulars of each candidate were transmitted to the PublicService Commission on 10.3.80. 35 The meeting of the Public Service Commission for consideration ofthepromotiontoSeniorPharmacist,wasfixed for 1267 MalachtosJ. S l a t ! ·v.Republic
(1987)12.6.80. In the meantime, due to the retirement on 1.4.80 of a SeniorPharmacist,theMinisterofFinancegavehisconsentforthe filling ofthisvacantpost aswelland sotheDirector-General ofthe Ministry of Health, by letter dated 10.6.80, requested also the filling of thispost. / At its meeting of 12.6.80 the Public Service Commission, according to its relevant minutes, after comparing the merits, qualifications and seniority of all the candidates on the basis of their personal files and their confidential reports, and after taking into account the report of the Departmental Board, and the 10 recommendations of the Director of Medical Services, who was present at the meeting, found that the four interested parties, as well as a certain Vassilios Koupepides, with whom we are not concerned as his promotion is not attacked by the present recourse,were,onthewhole,superiortotheothercandidatesand 15 suitable forthesaid post anddecided topromote them tothepost of Senior Pharmacist as from 1.7.80. Against the promotion of the four interested parties the applicant filed thepresent recourse. The grounds of law on which the recourse is based, as they 20 appear inthe body of the application, are the following: (a)The present application isbased on the provisions ofArticle 124.6,146oftheConstitutionandtheprovisionsofsections4and 44 ofthe PublicService Lawof 1967 (Law33/67); (
- b)the said administrative act of the respondents was taken 25 under a misconception of factsas regards the qualifications ofthe candidates,and oftheapplicantinparticular,andthe respondents did not consider and/or did not take into account and/or misinterpreted them inexcessand/or abuse of power; (c)the respondents did not take into consideration sufficiently 30 and/or at all the fact that the applicant possessed better qualifications and/or he was strikingly superior as regards the other candidates and/or he was the best candidate in every respect; (d)the decision of the respondents isnot dulyreasoned and/or 35 lackssufficient reasoning; (e)the respondents did not take fully into account and/or atall the confidential reportsoftheapplicantwhichwereexcellent and 1268 5 3C.L.R. Slatis v.Republic MalachtosJ. they ignored other indispensable and substantial elements, including the submissions and recommendations of the Departmental Board which included, among others, the Director of the Department of Medical Servicesand the Chief Pharmacist; 5 (
- f)the respondents did not take intoconsideration the fact that theapplicantfulfils therequirementsoftheschemesofserviceand he isin possession of a university degree, which isan additional qualification, and (g)the act and/or decision of the respondents isnull and void 10 andwastakeninabuseandinexcessofpowerasthePublicService Commission wasillegallyconstituted contrarytothe Constitution and Law 33/1967, at the time of their appointment and/or the period immediately before and/or theperiodoftimeprovided by the Constitution for civil service or other prohibited post and, 15 therefore, it was not properly constituted and/or was not competent forthetakingof decisions. As regards this last ground of law it appears that it has been abandoned as no substantial argument wasadvanced by counsel forapplicant inthe course ofthehearing ofthe case. 20 Counsel for applicant, as regards the question of merit, in addressing the Court conceded that both the applicant and the interestedpartiesweremoreorlessthesameastheyare reported for the last twoyears prior tothe actcomplained of, as excellent. He also conceded that the interested parties are all senior to the 25 applicant. On the question of qualifications, however, he submitted that withtheexception ofinterestedpartyNo.4Efpraxia Petronda, he is much better qualified to all other interested parties as he possesses a university degree in pharmacy and these interested 30 parties did not possess such degree. He further alleged that although Efpraxia Petronda hasauniversitydegreethe applicant isbetterqualified asoverandabovehisB.Sc.universitydegree he has alsothetitleof M.Sc. According alwaysto the submission of counsel forapplicant, itseemsthattherespondentCommissionin 35 effecting the promotions complained of, did not give due weight oratalltothefactors of meritand qualifications ofthe candidates but only to the factor of seniority, thus acting contrary to the principles laid down in the case of Partellidesv. The Republic
(1969)3 C.L.R. 480 at page 484 where itisstated that seniority 1269 Malachtos J. Siatisv. Republic
(1987)prevails only where the other two factors are more or less equal. This, however, isnot the case here. Furthermore, counsel for applicant submitted that the respondent in taking the subjudice decision, rubber stamped the recommendations ofthe DirectorofMedicalServices,whichwere substantially different than the views of the Departmental Board inspite of the fact that he wasits Chairman. 5 But the main submission of counsel for applicant is that although a university degree or title inpharmacy isconsidered as an advantage bythescheme ofservice,yet,thereisnothing inthe 10 relevant minutes of the PublicService Commission toshow asto why the interested parties, who did not possessthis qualification were preferred instead of the applicant. He relied on the caseof Vasso Tourpeki v. The Republic
(1973)3 C.L.R. 592, at p. 602 . where the following isstated: «An inquiry had to be conducted regarding the issue whether or not the applicant possessed the qualifications which under thescheme ofservice would be an advantage to a candidate over the othercandidates.The general reference to the qualifications of allthe candidates serving in the post, 20 does not, in my view, sufficiently disclose whether such material fact, as the possession or not, of a qualification possibly constituting an additional advantage was duly inquired into, and in particular in view of the fact that the details of this course were not in the relevant file before the 25 Commission, but in the possession of the Ministry. Consequently, Ifind that theCommission hasnot conducted the sufficiently necessary inquiry into such a most material factor and, therefore, itexercised itsdiscretion ina defective manner; sothesubjudicedecision of the respondentshaving 30 been arrived at contrary to the accepted principles of Administrative Law and inabuse or excess of powers, isnull and void and of no effect whatsoever. Moreover, the outcome of such inquiry should have appeared in the reasoning of the sub judice decision and in 35 case it was found by the Commission that the diploma possessed by the applicant was constituting an advantage, then convincing reasonsshouldhavebeen given for ignoring it.» 1270 15 3C.L.R. Slatisv. Republic MalachtosJ. TherelevantminutesoftherespondentCommission of 12.6.80 when the decision complained of wastaken, read as follows: 5 «At the meeting, present was the Director of Medical Services, who selected six candidates whom he rated as follows: First: Mr. Andreas Antoniades because he precedes allof the others inseniority. He has good confidential reports and he isgood employee. 10 15 Second: Mr. Emilios Sawides, who has got sufficient seniority and exceptional confidential reports. He is employed as an assistant in the Stores for the distribution of drugsand he isan exceptionally good employee. Third: Mr. Vassilios Koupepides, who has excellent confidential reports.Hehasa universitydegree and isa good employee withrelativelygreat seniority. Fourth: Mrs.Efpraxia Petronda. She isresponsible for the making of syrum and some other drugs. She is devoted to dutyand isan excellent employee. 20 Fifth: Mrs. Dina Sawidou, who although she is not a scientist, yet she is a devoted employee and has good confidential reports. Sixth:Mr.IoannisShiatis,whoseseniorityissmallasagainst the others,buthe hassufficient education. 25 30 35 AfterthewithdrawaloftheDirectorofMedicalServices,the Commission proceeded tothe evaluation and comparisonof the candidates. The Commission, after examination of all the elements before it, and after taking into consideration the merits, the qualifications, theseniorityandexperience of the candidates, on ihebasisof the personal filesand theiryearly confidential reports, the conclusionsofthe Departmental Boardaswellas the views and recommendations of the Director of Medical Services, decided that the following employees, on the whole, are superior to the rest ofthe candidates, found them suitableforthefillingofthepostanddecidedtopromotethem tothepermanent postofSeniorPharmacistasfrom 1.8.80:1. Antoniades Andreas, 2. Sawides Emilios, 3. Petronda Efpraxia, 4. KoupepidesVassilios,and 5.Sawidou Dina.» 1271 MalachtosJ. Siatisv.Republic
(1987)It is clear from the above minutes that the Public Service Commission failed to carry out the due inquiry as regards the additional qualifications possessed by the applicant, which were regarded bythescheme ofserviceasanadvantage,asopposed to the interested parties who did not have such qualifications and disregarded them altogether. 5 Furthermore, it failed to give that special reasoning which is required in cases of this kind and it rubber stamped the recommendations of the Director of Medical Services who, although recommended the applicant as suitable for promotion, 10 yet,in reality, underestimated him byplacinghimsixth on thelist and by stating that he has sufficient education instead of stating clearlythat asregards qualifications he wasthe best candidate. Consequently, the promotion of interested parties 1,2 and 3, whodid notpossessa universitydegree ortitie hastobedeclared 15 null and void asthe respondent Commission failed tocarry out a proper inquiry and also for the failure of the said Commission to give special reasons as to why these interested parties were preferred for promotion instead ofthe applicant. Inthe case of interested party No.4, however, who possessed 20 the additional qualification, nospecific reference was required to be made by the respondent Commission to the additional qualifications of the applicant. This point was settled by the Full Bench ofthisCourt inthecaseof TheRepublic v. Sawas Petndes
(1984)3 C.L.R. 375 where atpage389thefollowing isstated: 25 «It is clear from the judgment of the trial Judge that, in dealing with thesecond issue,i.e.the additional qualification of the applicant, took itfor granted thatthe interested parties didnotpossessthisadditional qualification, inspireofthe fact that as it isstated earlier on in thisjudgment, in dealing with 30 thequalifications oftheapplicantandtheinterested partieshe cited verbatim the contents of the comparative table.On the assumption tnat the interested parties did not possess the additional qualification, thetrialJudge relied onthe Tourpeki case,supra, insupport ofhisviewthatnoproper inquirywas 35 carried out and no due reasoning was given by the Public Service Commission as to why they did not select the applicant instead ofthe interested parties. 1272 3 C.L.R. 5 Siatis v.Republic Malachlos J. In the case in hand, however, both the applicant and the interested parties possessed the additional qualifications and sonospecificreferencewasriquiredtobemadebythePublic Service Commission in its decision to the additional qualifications ofthe applicant.» Inthe result, thisrecourse succeeds asfar asinsterested parties 1. Andreas I. Antoniades, 2. Emilios K. Sawides and 3. Dina Sawidou. As against interested party No. 4, Efpraxia Petronda, this 10 recourse ishereby dismissed. On the question of costs, I make no Order. Sub judice decision annulled inpart. No orderasto costs. 1273