(1987)1987September 25 [MALACHTOS.J] INTHEMATTEROFARTICLE 146OFTHECONSTITUTION MILITSAKASTELLANI, Applicant, v. T H E CYPRUS PORTS A U T H O R I T Y , Respondent. (Case No. 83/83) Public Corporations — Cyprus Ports Authonty — The Cyprus Ports Authority Regulations 317/82, Reg. 1 — In virtue of Reg 1and in the absenceof regulationsmade bytheAuthority tothecontrary, theprovisions ofthePublic ServiceLaw 33/67 are deemed toapply totheemployees of the Authonty. Public Corporations — Cyprus Ports Authonty — Appointments — Selection Committee, recommendations of — Board not bound to adopt or follow them. Public Officers—Promotions —Departmental Boards — ThePublic Service Law 33/67 — Section 36 and the Regulations made thereunder — Do not take awaythecompetence of thePublicService Commission. 5 10 By means of this recourse the applicant impugns the validity of the appointments oftheinterestedpartiesto thepost of PortOfficer, 3rdGrade. It must be noted that some of the interested parties were not among the candidates recommended for appointment by the Selection Committee. Furthermore,theapplicantobtainedhighermarksinthew/rittenexaminations 1 5 thanmostoftheinterestedparties. Held, dismissing the recourse:
(1)The Selection Committe isan informal body for the purpose of advisingtheBoard,which isnot bound toadopt its recommendations. Moreover, in virtue of Regulation
(1)of the Cyprus Ports Authority Regulations317/82,thetermsandconditionsofserviceofpublicserviceare applicable to officers of the Authonty, unless the latter publishes any regulations to the contrary. As no such regulations were published, the provis'ons of the Public Service Law ^M/67 are applicable. As it emanates 1300 20 3 C.L.R. Kastellanlv. PortsAuthority from the case law, section 36 thereof, referring toDepartmental Boards, and the relevant regulations do not take away the competence of the Public Service Commission 5
(2)The factor of applicant's higher marks in the written examinations was taken intoaccount together with other relevant factors The selection of the interested parties was entirely opentothe Authonty Recourse dismissed No orderas tocosts Cases referred to 10 Mytides ν The Republic
(1983)3 C LR 1096. Komodromou ν TheRepublic
(1985)3 C LR 2250 Recourse. Recourse against the decision of the respondent toappointthe interested partytothepostof PortOfficer, 3rd Gradein preference 15 and instead of theapplicant. N.Pehdes, for theapplicant. N.Papaefstathiou for T. Papadopoulos, for therespondent. Cur. adv. vult. MALACHTOS J. read the following judgment. By the present 20 recourse the applicant claims a declaration of the Courtthatthe decision of the respondent Authority to appoint the interested parties tothe post of PortOfficer, 3rd Grade, isnull and void and of nolegal effect whatsoever. The relevant facts of the case are as follows: 25 On 13.4.82 there were advertised twelve posts of Port Officer, 3rd Grade, in the Cyprus Ports Authority. In response, 354 applications,including thatof theapplicant,were submitted. An Advisory Selection Committee set up for the purpose, decided that the applicants be required to sit for written 30 examinations in English and General Knowledge, tobe followed by oral interviews of those selected after the said examinations. The interested partiesandtheapplicantwere amongthefifty-one candidatesselected after the written examination. 1301 MalachtosJ. Kastellanl v.PortsAuthority
(1987)Out of the forty-nine candidates who appeared at the interviews,which took place on 5.7.82 and 8.7.82, the Selection Committee selected twenty candidates whose names were submitted tothe Board of Management ofthe Authority. On 7.10.82 the Board considered the matter and decided
(1)5 that the Selection Committee should recommend another four candidates, i.e. atotal of twenty-four and
(2)that aCommitteeof the Board consisting of the Chairman and Messrs. leropoulos, Papaioannou and Tatianos to interview at least twenty-four candidates or any other number which this Committee would 10 consider necessary and to submit a final recommendation to the Board as regards the persons to whom appointment was to be offered. Accordingly, on 15.10.82, another four persons were recommended to the Committee of the Board by the Selection 15 Committee. On 1.11.82 and 2.11.82, the Committee of the Board interviewed forty-nine candidates. Finally on 16.12.82 having before it their relevant applications, their written examination papers and all relevant material concerning the candidates, it 20 considered each candidate individually and decided to offer appointment to the twelve interested parties, namely:
- Th. Papadopoulos, 2.A.Christofi,
- P.Louca, 4.
- Kantounas, 5.N. Dorotheou,
- E.Maliotis,7.M.Parparinos,8.M.Spatharis,9.E. Sawa, 10.P.Avgoustis, 11.C.Georgi and 12.S. Anastassiadou. 25 Asaresult the applicant filed the present recourse. It was argued on behalf of the applicant that the respondent acted in excess and/or in abuse of power in that it appointeo •others than those recommended by the Selection Committee without giving any proper reasons for doing so. Furthermore, it 30 was argued that the respondent failed in its primary duty to appoint the best candidates having appointed others than the applicant who had obtained higher marks in the written examinations than most of theinterested parties. Indeed, it is a fact that the interested parties appointed were 35 selected as follows: Six from the original twenty recommended, two from the four recommended later and four from those not recommended. InthefirstplacetheSelectionCommitteeisnotabodysetupby any Law with specific powers but it is an informal body for the 40 1302 3 C.L.R. Kastellaniv. PortsAuthority Malachtos J. ρυφθ5β of advising the Board in the exercise of its duties.There isnoobligation onthepartoftheBoardonwhichthefinal decision rests tofollow andadopt therecommendationsof theCommittee as such actionwould fetter itsdiscretion. 5 Moreover, in Regulation
(1)of the Cyprus Ports Authority Regulations, Not.317/82, published by virtue of section 19
(2)of the Cyprus PortsAuthority Law 1973 (Law No. 38 of 1973), itis provided that the terms and conditions of service applicable to publicservants also applytotheemployees of theAuthority unless 10 the Authority publishes any regulations to the contrary. Since no such regulations have been published theprovisions of thePublic Service Law 1967 (Law No.33 of 1967) are deemed to apply. Section36 thereof provides for theestablishment ofDepartmental Boards whose powers are limited to those envisaged therein. 15 Under such section 36 regulations were made by the Council of Ministers, defining the functions and procedure of such Boards. Regulation 7 interalia, provides: 20 25 «Provided further that if the Public Service Commission does not consider the candidates recommended by the Departmental Board as suitable for appointment or promotion, it may invite for an interview any candidate not recommended,whomitconsiderssuitable, orre-advertise the vacant post, if it is a First Entry and Promotion one, for the purpose of finding a suitable candidate.» It is clear, therefore, that such section and regulations do not, and indeed they cannot,take away the competenceof the Public Service Commission (See Mytides v. The Republic
(1983)3 C.L.R. 1096 atp. 1110-1111and Komodromou v. The Republic
(1985)3 C.L.R.2250 atp. 2259-61). 30 The othersubmission of counsel for applicant is that although she obtainedhighermarksatthewrittenexaminations,yetshe was not selected for appointmentto the post in question. This factor, however, as itappears from thefile,was taken intoaccountby the respondent Authority together with all the other relevant factors 35 and intheexercise of itsdiscretion itselected for appointmentthe interested parties as itwas entirely open toittodo. For the reasons stated above, I consider that the sub judice decision was reached in accordance with the law and is duly 1303 MalachtosJ. Ka.stellanl v.PortsAuthority
(1987)reasoned and, therefore, the recourse fails and is hereby dismissed. There willbe no Orderastocosts. Recoursedismissed. No order astocosts. 1304 5