clr/1987/1987_3_1281.pdf

(1)asamended bysection5(a)ofLaw 10/83. The applicant challenges by means of this recourse the validity of the promotion ofthe interestedparty tothepostofSenior Pharmacist. 10 15 20 The interested party wasappointed for thefirsttime asa Pharmacist 2nd Gradeon 1.2.69andwaspromotedtoPharmacist 1stGradeon 15.4.72.The applicant was appointed for the first time in the service to the post of Pharmacist1stGradeon 1.3.73.Itfollowsthattheinterestedpartyisseniorto theapplicant byabout 10 1/2 months. Theapplicantisslightlybetterinmeritthantheinterestedparty.Sheis,also, better qualified and had been recommended for promotion by the Head of the Department. The respondent Commission «onthebasisofallmaterialbeforeit»didnot adopt the recommendation for the promotion of the applicant and instead selectedtheinterestedparty,«whoprecedesbothofthem»(theapplicantand another candidate) «in seniority».The Commission defined the seniority of theinterestedpartyvisavistheapplicant asbeing«morethanayear». Held, annulling thesubjudice decision:

(1)According to theprovisions of s, 46

(1)Law 33/67 asamendedby s.5(a)of Law 10/83 the seniority of the 1281 Kokltinouv. Republic

(1987)interested partyovertheapplicantisonly 101/2monthsexactly·notasingle daymore.

(2)The respondent Commission acted under a misconception of fact, which has to be treated as a material one, in view of the importance of seniority inthe selection process,and assuch apt to invalidatethe decision. Moreover, inthis case the misconception was the substantial reason for not following the recommendations ofthe Head ofthe Department. Subjudice decision annulled with £30.-costsinfavourof applicant. 5 Casesreferredto: *" Theodossiou v. TheRepublic,2R.S.C.C.44; Christodoulidesv.TheRepublic

(1986)3C.L.R.

1. Recourse. Recourse againstthedecision ofthe respondent topromotethe 15 interested party to the post of Senior Pharmacist in the Pharmaceutical Services in preference and instead of the applicant. A. Pandelides, for the applicant. A. Papasawas, Senior Counsel of the Republic, for the 20 respondent. Qur.adv. vult. LORISJ. read thefollowing judgment.Theapplicant bymeans of the present recourse impugns the decision of the respondent P.S.C. dated 10.2.86, whereby the interested party namely 25 Charalambos Vassiliou was promoted to the post of Senior Pharmacist in the Pharmaceutical Services as from 15.2.86, in preference to,and instead ofthe applicant. Before proceeding to examine the sub-judice decision I consider it pertinent at this stage to refer to the undisputed facts 30 concerning the merit, qualifications and seniority of the applicant and the interested party. The interested party who was appointed for first time as a Pharmacit 2nd Grade (P) on 1.2.69, was promoted to the permanent postof Pharmacist 1stGrade on 15.4.
2. Theapplicant wasappointedforfirsttimeinthepermanent post of Pharmacist 1stGrade on 1.3.
3. According to the Scheme of Service for the post of Senior Pharmacist(whichisapromotionpost),Universitydiploma and/or 1282 35 3 C.L.R. Kokkinouv.Republic L o r t ·J . postgraduate studies in Pharmacy «will be considered as an additional advantage». The interested party possesses a Diploma in Pharmacy of Athens University.Λ 5 The applicantpossesses

(1)ADiplomaof Athens University

(2)the degree of Master of Science in Pharmaceutical Analysis and Quality Controlof Chelsea College of the University ofLondon. The merit of the applicant as it transpires from the relevant confidential reports for the last 10 years is better than that of the 10 interested parti:; in particular for the last 3 years

(1983),

(1984),

(1985)the applicant is rated «excellent» (12-0-0) for each one of the aforesaid years whilst the interested party was rated «very good» (8-4-0) for 1983 and«excellent» (12-0-0) for theyears 1984 and

1. 15 Furthermoretheapplicantwas recommendedforpromotion by the Headof the Departmentwhilst theinterested party was notso recommended (vide Appendix 13 attachedtotheopposition). Thustheoverall pictureindicatesthattheapplicantifnotslightly better merited than the interested party she was at least more or 20 lers equal to him; as regards qualifications she was undoubtedly better qualified; and the interested party had only 10 1/2 months seniority over the applicant, the interested party having been promoted to the permanent post of Pharmacist 1st Grade on 15.4.72 andtheapplicanthaving beenappointedtothesame post 25 on 1.3.
2. (Inthis connectionvide s. 46{1) of the Public Service Law No.33/67 as amended by s. 5(a)of Law 10/83.) Furthermoretheapplicantwas recommendedforpromotion by the Head of the Departmentwhilst the interested party was not recommended. 30 Inspite of the overall picture set out above, the respondent P.S.C. proceeded topromotethe interested party actingcontrary to the recommendationsof theHead of the Department. Under s. 44

(3)of the Public Service Law (Law No. 33/67) «In makinga promotion,theCommission shall have dueregard tothe 35 annual confidential reports on the candidates and to the recommendations made in this respect by the Head of Departmentinwhich thevacancy exists.» 1283 LorisJ. · Kokklnou v. Republic

(1987)As early as 1961 itwas held in Theodossiou ν TheRepublic, 2 R.S.C.C. 44 at p. 48 that if the P.S.C. is of the opinion that for certain reasons the recommendation of the Head of the Department cannotbe adopted then «the reasons for taking such an exceptional course would be clearly recorded in the relevant 5 minutesof the PublicService Commission.Failuretodoso would not only renderthe work of this Courtmoredifficult in examining the validity of the relevant decision of the Public Service Commission but it might deprive such Commission of a factor militating against the inference thatithas acted inexcessor abuse 10 if power.» As already stated the respondent P.S.C. did not adopt the commendation of the Head of the Departmentin favour of the iplicant; the reasons given by the respondent for following such course arestatedintherelevant minutesof theP.S.C.of 10.2.86 15 idepages 11and 12 of appendix 13attachedtotheopposition). They say at p. 11 of Appendix 13: «The Commission on the isis of all the material before it, has not adopted the commendations of the Head of the Departmentfor promotion ' Aspros (another candidate not connected with the present 20 course) or Kokkinou (theapplicantin thepresent recourse) and stead selected Vassiliou, (theinterested party in this case), who •ecedesboth of them in seniority...» At p. 12 of Appendix 13, the respondent P.S.C. proceeds to sfine such seniority of the interested party over the applicant 25 aly, this time stating clearly that the interested party is senior to ic applicant «for more than a year». With respect to the :spondent P.S.C. the aforesaid statement is wrong. As already ated earlier on in the pressnt judgment the interested party was romoted to the permanent post of Pharmacist 1st Grade on 5.4.1972 and the applicant was appointed tothe same post on 30 .3.1973; thusaccording totheprovisions ofs. 46

(1)of thePublic ervice Law (Law No. 33/67) as amendedby s.5(a)of Law 10/83 ieseniority of theinterestedpartyover theapplicantisonly 101/ months exactly -nota single day more. Insteadthe respondent .S.C. speaks clearly of seniority «ενός καιπλέον έτους» of the 35 iterested party over the applicant in the present post (that of harmacist 1stGrade.) 1284 3 C.L.R. Kokkinouv. Republic LortsJ. Such a statement in the minutes of the respondent ΡS C indicates clearly thatthe ΡS C at thematenaltimeacted undera misconception cVfact, which has to be treated as a matenal one, inviewof theimportanceof senionty intheselection process, and 5 as such apt toinvalidate the decision (vide Chnstodouhdes ν The Republic

(1986)3 C L R 283 atρ 288) And we should not loose sight of the fact that in the case under consideration thematenal misconception in question was the substantial reason for the non adoption by the ΡS C of the relevant recommendation of the 10 Head of the Departmentwho has recommended theapplicant for promotion and did not so recommend the interested party In the result the present recourse succeeds and the sub-judice decision is hereby annulled Respondent topay £30 - against the costs of the applicant 25 Subjudice decision annulled with£30 -costs infavour ofapplicant 1285