(1987)1987October10 [PiKIS,J ] INTHE MATTER OF ARTICLE 146 OF THE CONSTITUTION ALECOS PAPAIOANNOU, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC SERVICE COMMISSION, Respondents. (Case No. 250/86). PublicOfficers—Promotions- Hen."/ofDepartment—Whetherentitledtomake recommendations, if he had chaired the Departmental Committee — Question answered in the"affirmative— Tite Public Service Law 33/67, sections36 and44
(3). PublicOfficers—Promotions —Strikingsuperionty —Meaningof. 5 PublicOfficers—Promotions—Seniority—~ Weight. The applicant impugns thevalidityof thepromotion of the interested partiesto thepostof Administrative Officer, Grade«A». The applicant issenior tothe interested parties, who, however, are superiorin merit and qualifications and, moreover, were recommended by the Head of the Department. 10 One ofapplicant'scomplaintsisthattheHeadoftheDepartmentwasnotentitled to impart his views to the respondent Commission, because he had chaired the Departmental Committee, which made the initial evaluation of the work of the candidates. Held,dismissingtherecourse:Neithersection36ofthePublicServiceLaw{33/ 67)regulatingtheestablishment andcomposition ofdepartmental committeesnor section 44sub-section 3ofthesamelawempoweringthehead ofadepartment to make recommendations for thoseto be selected orthe regulations governing the functioning of departmental committees make the two capacities mutually exclusive. 1444 15 20 3 C.L.R. Papaloannou v. Republic 1 {2) The applicant failed toestablish acase of sinking supenonty Forsupenont to qualify as stnking it must emerge on a consideration of all factors reflecting thi suitability of the candidates for appointment.The factor senionty is notof itself. factor establishing stnking superionty inthiscontext 5
(3)Thesubjudice selection was reasonably open totheCommission Recourse dismissed Casesreferredto Sotenadou and Othersv.Republic
(1983)3 CL.R.921; Elia v.Republic
(1985)3 C.L.R 38, 10 HadjiSawav Republic
(1982)3 C.L R 76, Hadjiloannouv.Republic
(1983)3 C LR 1041, KramvisandOthersν PS.C.
(1986)3 C.L R 1243, Spanos v. Republic
(1985)3C.L.R 1826; Makndes v. Republic
(1983)3 C L.R 622. 15 Recourse. Recourse against thedecision of the respondenttopromotethe interestedpartiestothepost of Administrative Officer 1st Gradein preference and instead of theapplicant. Chr. Kitromelides,for theapplicant. 20 A. Vassihades, for the respondent. Interestedparty C. Makndes, present. Cur. adv.vult. PIKISJ. read the following judgment. Theapplicant andmany other Administrative Officers 2nd Grade were candidates for the 25 promotion post of Administrative Officer 1st Grade in the Department of Personnel. He was one of 16 (sixteen) candidates recommendedbythedepartmentalcommittee,setuptomakethe initial screening of the candidates, as qualified and suitable for appointment. Before addressing themselves to the task of 30 evaluating the rival merits of the candidates the Public Service Commission heard the views of Mr. Kofteros, the head of the department, on the suitability of the various candidates and his recommendationsas tothose best suited tobe selected. 1445 PikisJ. Papaloannouv.Republic
(1987)Perusal of the minutes of the proceedings persuades that respondents made debited reference to the data bearing on the candidatestabulating intheprocess theirratinginthe confidential reports;no doubt in recognition of the significance of that source ofinformation ontheirsuitabilityforappointmentanddevotionto 5 duty.Attheend oftheprocesstheyappointed, onaconsideration of the factual material before them and the statutory* criteria for promotion (merit, qualifications, seniority), the four interested parties. Applicant challenges the decision on two grounds the one 10 substantive and the other formal. First it is contended that respondents exercised their discretion in a defective manner in that whereas he had on an overall assessment of the material before them a better claim to be promoted than the interested parties the latter were chosen in preference to him. Thus the 15 decision is bad for misconception of facts and abuse of the discretionary powers vested in the respondents. The second ground is founded on failure on the part of the respondents to appreciate that itwas incompetent for Mr. Kofteros to impart his views as Head of the Department on account of the fact that he 20 chaired the departmental committee that made the initial evaluation of the work of the candidates. We may conveniently dispose ofthisground before examiningallegationsofexcessand abuse of power on the part of the appointing body. Neither Section 36 of the Public Service Law (33/67) regulating the 25 establishment and composition of departmental committees nor Section 44sub-section 3ofthesamelawempoweringthatheadof a department to make recommendations for those to be selected or the regulations governing the functioning of departmental committees** make the two capacitiesmutually exclusive.There 30 isnoreason inprinciplethatitshould besoeitherconsideringthat theaim inboth casesistoapprise thePublicService Commission of the suitability of the candidates for promotion. Thisreality has been judicially acknowledged*** and nothing said in this case persuadesme toadopt acontrary position. 35 Inargumentbefore mecounselfeltconstrainedtoacknowledge the case for hisclient falls short of establishing a case of striking • Section 44
(2)-Law 33/
- · · Regulations governing the establishmentand composition of departmentalcommittees came Intoforceon the 1stJune,
- — Soteriadou and Others v. Republic
(1983)3 C.L.R. 921, (reversedon appeal but on a differentpom:}.E!iav.Republic
(1985)3 C.L.R.38. 1440 3C.L.R. Papaloannou v.R e p u l s e Pild*J. superiority over those appointed in preference to him.* For superioritytoqualify asstrikingitmustemerge ona consideration of all factors reflecting the suitability of the candidates for appointment notably merit, qualifications and seniority.** The 5 one factor in respect of which the applicant enjoyed definite superiority overthe interested partieswas hisseniority butthatis not of itself a factor establishing superiority in mis context as observed inLoucaides v.P.S.C.
(1986)3 C.L.R. 182. Reflection on the confidential reportson the parties onthe otherhand, does 10 revealtheperformance oftheinterestedpartiesatworkwasbetter withacorresponding impactonthedefinition ofthe«merits»ofthe parties. From the view point of academic qualifications the interested partiesfaired betterand onthataccounttoothey could beconsidered assuperiortotheapplicant.Nolessimportantlythe 15 interested parties had the recommendation of the head of the department, a factor distinct in itself in shaping legitimate expectationsofthecandidatesto promotion.*** Inmakingtheirselectiontherespondentsdonotappeartohave overlooked any material aspect of the case, factual or legal. 20 Applicant's seniority over other candidates was specifically noticedintheminutesoftheCommissionandnotwithstandingthe absence of a recommendation by the head of the department for the applicant he was nonetheless for the reasons stated in the minutes considered for the filling of the fourth post. Ultimately 25 they did not choose the applicant. Itwasreasonably open to the respondents to act that way in the exercise of their discretion. Nothing said before me justifies interference with that decision. Consequently the recourse isdismissed andIorder accordingly. Recourse dismissed. *Hadjisawa v. Republic
(1982)3 C.L.R. 76. Hadjiloannouv. Republic
(1983)3 C.L.R. 1041.KmmvisandOthersv.P.S.C.
(1986)3 C.L.R. 1243. "Spanosv. Republic
(1985)3C.L.R. 1826. ·**See interaliaMakndes v.Republic
(1983)3C.L.R.622. 1447