clr/1987/1987_3_1697.pdf

(1985)3C.L.R.694distinguished. The respondent Commission refused to accept a recommendation forthe promotion of the applicant, an Accounting Officer, 3rd Grade to the combined post of Accounting Officer 2nd Grade,because theapplicant was still serving in the post of Accounting Oficer, 3rd Grade on probation and, consequently, her promotion was not allowed in view of the provisionsof Circular 608dated 27 1.82 oftheCouncil of Ministers Hence thisrecourse. 15 Held, dismissing the recourse:

(1)The relevant provision of the law is section 44(l)(a) of Law33/67. Circular608wasissued under the proviso to the aforesaid section.

(2)TheCircularprovides,interalia,thatnorecommendation forpromotion shall be made during the probationary period of an officer, or extention of same.Such directionsarenot ultravirestheLaw. Recoursedismissed. No orderastocosts. 20 Casesreferredto- Sawa v. TheRepublic

(1985)3 C.L.R.694. 1697 Kauounotouv.Republic

(1987)Recourse. Recourse against the refusal of the respondent to promote the applicant to the post ofAccounting Officer 2nd Grade. A. S. Angelides, for the applicant. R. Gavrielides, Senior Counsel of the Republic, for the respondent. 5 Cur. adv. vult MALACHTOS J. read the following judgment. By the present recourse the applicant claimsa declaration of the Court that the decision of the respondent Commission not to promote the 10 applicant tothe post ofAccountingOfficer, 2nd Grade, isnulland void and of no legal effect whatsoever. The facts, so farasrelevant, are briefly as follows: TheAccountant-General byletterdated 13.2.81 recommended to the Public Service Commission the promotion of twelve 15 Accounting Officers, 3rd Grade, including the applicant, to the combined post of Accounting Officer, 2nd Grade, and confirmed therein that thesaid officers: (

1. a)performed the duties of Accounting Officer, 3rd Grade, satisfactorily; (
2. b)completed the 5-year service required by the scheme of service for the post of Accounting Officer, 2nd Grade, prior to 31.12.81, and (c)satisfied allotherrequirementsoftheschemeofserviceofthe post of Accounting Officer, 2nd Grade, that is, were on 1.10.81 25 serving in the post of Accounting Officer, 3rd Grade, and also passed the required examinations. Moreover, itwas stated in the saidletterthatGeorgiaKatsounotou,theapplicant,istheholderof a degree in Business Administration. The respondent Commission met on 13.3.82 and decided on 30 the material before it that all officers recommended, except the applicant, were eligiblefor promotion, and sopromoted them as from 15.3.82 to the combined permanent post of Accounting Officer, 2nd Grade. Therespondent Commissionfurther decided thatasregardsthe 35 applicant, taking into consideration the general directions issued bytheCouncil ofMinisterson21.1.82 shecouldnotbe promoted 1698 20 3 C.L.R. Katsounotou v. Republic Malachtos J. as she was still serving on probation in the post of Accounting Officer, 3rd Grade The Accountant-General was informed accordingly As a result of the aforesaid decision of the respondent 5 Commission, the applicant filed the present recourse The main argument of counsel for applicant is that the respondentCommission erred innotpromotingtheapplicantasin the relevant scheme of service there is no provision that the candidates on probation are noteligible for promotion 10 It was further contended that section 44 of the Public Service Law, Law 33 of 1967, which contains the provisions relevant to promotions, does not provide that officers serving on probation are not entitled to promotion and the case of Sawa ν The Republic

(1985)3 C L R 694, was cited in support of this 15 proposition Finally, it was submitted that if the decision of the respondent Commission was based on Circular No 608 dated 27 1 82 of the Department of Public Administration and Personnel containing general directions of the Council of Ministers as to the way of 20 effecting promotions of public officers in combined posts, then such decision must be annulled as such circular is ultra vires the law The relevant provision of the Law is section 44{l)(a)which is as follows 25 «44-

(1)No officer shall be promoted to another office, unless(a)a vacancy existsinthatoffice Provided thatin the case of offices with a combined establishment, promotionfrom the lower tothe higher office or grade of thatoffice may be made irrespectively of whether thereisavacancy inthehigher office or grade ornot,andinaccordancewith any general directions given by the Council of Ministers inthis respect » 30 In accordance with this proviso the Council of Ministers issued on the 21 1 82 general directions providing, inter alia, that35 1 2 Norecommendation for promotionshall be made dunng the probationary penod of an officer, or extention of same, as well as dunng the first two years of service of an officer appointed by the 1699 Malachtoe J. Kateounotou v. Republic

(1987)Public Service Commission on a temporary basis on contract or on a month to month basisor on secondment inan organic post. Ido notconsider that such directive iscontrarytotheprovisoof section 44(l}(a) referred to above, as there is nothing in the aforesaid proviso limitingthe scope of the directions the Council of Ministers may issue thereunder. Such directions are not, inmy view, ultraviresthe Law. 5 ThecaseofSawa v. TheRepublic (supra),whereitwasdecided thatpublicofficers servingonprobation areeligiblefor promotion to another office provided that a vacancy exists, is clearly 10 distinguishable from the case in hand as the considerations pertaining to the promotions of officers to another vacant post is not the same as in the case of promotions of officers serving in a combined establishment, where all officers eligible under the scheme of service are recommended for promotion, irrespective 15 of whether there isavacancy inanother office ornotand inwhich case no question ofselection of thebestcandidate arises. Forthe reasons stated above, Icame totheconclusion that the respondent Commission correctly decided as it did and that the subjudicedecisionwasreachedinaccordance withtheprovisions 20 of the law. The recourse, therefore, fails and ishereby dismissed, with no Order asto costs. Recourse dismissed. No orderasto costs. 1700