clr/1987/1987_3_1725.pdf

(2)— No PublicOfficermay be promoted for more thanone gradeata time. 5 10 PublicOfficers—Secondment — ThePublicService Law33/67,section33

(2)— Does not change status of an officer, but it is a factor to be taken into considerationm assessingoverallpicture of the ments of the candidates for promotion — Republic ν tfsaras{1985)3C LR 1939 explained Public Officers— Promotions — Judicial control — Principlesapplicable — Applicantsenior to interestparty by 8years, but latterstrikinglysupenor m ment to the former — Selection of interestedparty reasonablyopen to the appointingorgan By means of this recourse the applicant impugns the validity of the promotion of interested parties tothepost of Welfare Officers, 1stGrade 15 20 Thecontentionsof theapplicantwere (a)Thatinterested parties 1-4 were noteligiblefor promotion Indeed,theseinterestedpartiesnever heldthepost ofWelfare Officer, 2ndGradeι e theimmediately lower posttothesub judice post,buttheyheld atthematenaltime,thepostofWelfareOfficer, 3rdGrade, though they were serving on secondment to the temporary post of Welfare Officer 1st Grade and (b) That the applicant was stnkingly supenor to interested party5 Theapplicantwas seniortotheinterested party by8 years, butthe interested party was superior to theapplicantas regards ment Held,annulling thepromotionsof interested parties 1-4 NoPublic Officer maybepromotedformorethanonegrade atatime(Section31

(2)ofLaw33/ 67) Secondmentundersection 33

(2)of thesame law does notchange the 1725 Papadopoulou v. Republic

(1987)status of the public officer, itis of an undeterminable and temporary nature and it is neither a promotionnor an appointment, even if itiseffected after a selection, but it is one of the factors that can be taken intoconsideration in assessing the overall picture of the ments of the candidates The ratio of Republic ν Psaras

(1985)3 CL R 1939 is confined to the interpretation of the scheme of service under examination in that case and in the particular circumstances of that case 5 Itfollows that itwas notreasonably open for the respondent Commission tointerpret thescheme of service theway they did Held, further, dismissing the recourse as regards interested party 5

(1)An administrative Courtcannotinterfere inordertosetaside apromotion, unless the applicant establishes that he had stnking supenonty over the interested party

(2)Inthe present case, insofar as senionty isconcernedthereisa marked difference between the applicant and the interested party in favour of the applicant. But, there is also a sinking supenonty of ment of the interested party over the applicant 1" 15

(3)In the circumstances it was reasonably open for the Commission to reach thesub judice decision 20 Promotionsof interestedparties1-4 annulled Recourse asagainstinterestedparty5 dismissed No orderas to costs Casesreferred to Republic ν Anstotelous

(1982)3 C LR 479, 2 5 Arkabbs ν TheRepublic

(1967)3 C LR 429, Republic ν Koufettas{1985)3 C LR 1950, Republic v.Psaras

(1985)3 CLR 1939, Koufettas ν TheRepublic

(1980)3 C LR 226, Republic ν Rousos

(1987)3 C L R 1217 Recourse. 30 Recourseagainst thedecision oftherespondenttopromotethe interested parties to the post of Welfare Officer 1st Grade in preference andinsteadof theapplicant. A Panayiotou, fortheapplicant. A Vassiliades, for therespondent 35 Cur.adv. vult. 1726 3 C.L.R. Papadopoulou v. Republic KOURRISJ rendthe followingjudgment By this recourse the applicant challenge* the decision of the Public Sea'ice Commission m piomote the interested parties -ei out hereinbelou. to the post ot Welfare Officer 1st Grade as fiom 5 1 1 1985 in preti .ence and/οι instead of the applicant The said intetested parties are the following

(1)Mary Tekki

(2)Zoe Adamidou

(3)Chryso Neophytou

(4)Vera Paraskevopoullou. and

(5)George Ρ Nicolaides Thispostis a promotion post 10 At the time of the subjudice decision,the applicant and I Ρ No 5 were holding the post of Welfare Officer. 2nd Grade and the interestedpolities No* 1to4 were holding the substantive post of Welfare Ofliier 3id Gtade but were seconded to the tempoian, post ofWelfare Officer. 1stGrade as from 1 12 1982 15 Pursuant to a request made by the Director-General of the Ministry of Labour and Social Insuiance for the filling of eight vacancies in the post of Welfaie Officer. 1st Grade the Respondent Commission referredthe matter to the Departmental Committee which was set up forthat purpose in accoidance with 20 the provisions ofs 36 of the Public Service Law 1967(33/07) Bv its report which was submittedto the respondent Commission by a letterdated22nd February. 1984.the Departmental Committee recommended 36 candidates for promotion to the post in question in alphabetical order includingthe interested parties· and 25 the applicant The respondent Commission at itsmeetingof 14 12 1984.after heanng the recommendations of the Head of the Depaitment proceeded in his absence to evaluate and compare the candidates, after examining their confidential reports and their 30 personal files and takinginto consideration the recommendations of the Head of the Department, the Commission reached its decision which appears in appendix 11 by virtue of which it promoted to the said post, among others the five interested parties The promotions were published in the Official Gazette of 35 the Republic of the 8th Match 1985 as a result of which the applicant filed the present recourse Counsel fortheapplicantarguedthat theinterestedparties Nos 1 to 4 do not possess the qualifications requiredby the scheme ol service The relevant scheme of service so fai as material for th· 40 determination of this recourse, reads a;» follows - 1727 Kounis J . «Απαιτούμενα Papadopoulouv.Republic

(1987)Προσόντα:

(1)Τριετής τουλάχιστον υπηρεσία Λειτουργού Ευημερίας 2ας Τάξεως. εις την θέσιν

(2)Επιτυχία ειςενδοτμηματικάς εξετάσεις.

(3)Ακεραιότης χαρακτήρος, διοικητική και οργανωτική ικανότης, ισχυρά προσωπικότης, ωριμότης και συναισθηματική οταθερότης. 5

(4)Ικανότης δημιουργίας εποικοδομητικών σχέσεων με ανθρώπους. Γνήσιον ενδιαφέρον δι' ανθρώπους οι οποίοι αντιμετωπίζουν προβλήματα. Ικανότης να κερδιζη την 10 εμπιστοσύνην άλλων και να χειρίζεται τ ο κοινόν με υπομονήν και συμπάθειαν.

(5)Ειδική εκπαίδευσις ή μετεκπαίδευσις εις την Κοινωνικήν Εργασίαν/Ευημερίαν θα θεωρήται πλεονέκτημα. 15 Σημ.: Διά την πλήρωσιν των κενών θέσεων κατά τ α πρώτα τ ρ ί α έτη μετά την έγκρισιν τ ο υ παρόντος Σχεδίου Υπηρεσίας εάν δεν υπάρχουν υποψήφιοι με τριετή υπηρεσίαν εις την θέσιν Λειτουργού Ευημερίας, 2ας Τάξεως, δύναται να προαχθούν και υπάλληλοι με 7ετή 20 συνολικήν υπηρεσίαν ειςτας θέσεις Λειτουργού Ευημερίας, 2ας Τάξεως/Λειτουργού Ευημερίας, 3ης Τάξεως/Βοηθού Λειτουργού Ευημερίας. (Ενεκρίθη υπό τ ο υ Υπ. Συμβουλίου - Απόφασις υπ' αρ. 22.517 και ημερ. 9.12.1982).» 25 In English the Note to the required qualifications reads as follows:«Forthe fillingof thevacantpostsduringthe firstthreeyears after the approval of the presentschemeof service,ifthere are no candidates with 3 years service in the post of Welfare 30 Officer, 2nd Grade, theremay be promoted,and officers with a total service of seven years in the posts of Welfare Officer, 2nd Grade/Welfare Officer, 3rd Grade/Assistant Welfare Officer.» The applicant was appointed in the Welfare Office on 35 13.9.1965, as an AssistantWelfare Officer on a dailybasisand on 1.8.1969 she was appointed to the temporary post of Assistant 1728 3 C.L.R. Papadopoulou v.Republic Kounris J. Welfare Officer and asfrom 1.7.70tothe permanent post, and as from 15.3.1982 she waspromoted tothe post of Welfare Officer, 2nd Grade. From 1.1.1981thenomenclature ofthepostswaschanged and 5 the applicant was emplaced to the post of Welfare Officer, 3rd Grade. Interested Party MaryTekki wasfirst appointed intothe service in 1969 in the post of Assistant Welfare Officer, and as from 1.1.1981 she was emplaced in the post of Welfare Officer, 3rd 10 Grade. Interested partyZoe Adamidou was first appointed in the post ofAssistant Welfare Officer in 1971and wasemplaced inthe post of Welfare Officer, 3rd Grade on 1.1.1981, Interested party Chryso Neophytou wasappointed in 1971 inthe postofAssistant Welfare Officer and she was emplaced as from 1.1.1981 in the 15 post of Welfare Officer, 3rd Grade. Interested party Vera Paraskevopoullou wasappointed in the post of Assistant Welfare Officer in 1972 and on 1.1.1981 was emplaced in the post of Welfare Officer, 3rd Grade. Counsel for the applicant argued that to possess the required 20 qualifications of the scheme of service, one should have three years' service in the post of Welfare Officer, 2nd Grade, and that theapplicanthadathree-yearserviceinthepostof2ndGradeand shewaseligibleforpromotion,whereastheinterestedpartiesNos. 1 to 4 did not have three years service in the post of 2nd Grade 25 and, therefore, they were not eligible for promotion. Further, he went on to say that itwas not reasonably open for the Public Service Commission to interpret the Note to the Scheme of service in the way they did, i.e. that if there are no candidates in the post of Welfare Officer, 2nd Grade, with three 30 years service during the first three years after the approval of the scheme of service, then one iseligible for promotion ifone hasa total service of 7 years in the post of Welfare Officer, 2nd Grade and 3rd Grade or a total service of 7years in the post of Welfare Officer, 3rd Grade/Assistant Welfare Officer. He contended that 35 one to be eligible for promotion must hold the post of Welfare Officer, 2ndGrade,andifonedidnothavethreeyearsserviceinthat post, then hewould be eligible ifhe had a totalservice of 7years; and he submitted that the interested parties did not satisfy the requirement of the scheme of service in the post of Welfare 40 Officer, 1st Grade, because their prior service was in the ppst of Welfare Officer, 3rd Grade and their secondment as from 1729 Kourrls J. Papadopoulou v. Republic

(1987)1 12 1982 to the post of Welfare Officer 1st Gradeand they were promoted to the post of Second Grade In the case of Republic ν Anstotelous,

(1982)3 C LR 479 decided by the Full Bench of the Supreme Court,itwas held that the principle of administrative taw that no public officer may be 5 promoted for more thanone grade ata time,as expounded inthe case of Arkatitis ν The Republic,

(1967)3 C L R 429, was applicable andbecause itfound expression ins 31

(2)ofthePublic Service Law 1967. and intheabsence of express provision tothe contrary, itshould be given full effect, and thatas thepromotionof 10 the interested party involved jumping more than two steps on the ladder at a time, her promotion had to be declared void as being contrary tos 31

(2)of Law 33/67 In the case of The Republic ν Koufettas,

(1985)3 C LR 1950 decided by the FullBench, itwas held thatthesecondment under 15 s 33

(2)of Law 33/67 does not change the status of the public officer, it is of an undeterminable and temporary nature and it is neithera promotionnoran appointment, even if itiseffected after a selection, but it is one of the factors that can be taken into consideration massessing the overall picture of the merits of the 20 candidates Itwas further held that the ratio of the decision inthe case of Republic ν Psaras,

(1985)3 C LR 1939, does not purport toattachanydifferent significance tosecondmentthanthe one indicated in this Judgment Its ratio is confined to the interpretation of the scheme of service under examination in that 25 case and in the particular circumstances of that case The case of Koufettas ν The Republic,

(1980)3 C LR 226 cited by counsel for the respondent,does not inany way help the case for therespondentCommission because thefacts of that case are different from the facts of the case in hand In that case the 30 interested party was servingintheimmediately lower grade before his promotion, unlike the facts of this case where the interested parties were serving two grades lower thanthe promotion post Inview of theabove pnnciples, I am of theview thatthe course adopted by the respondent Commission in this case was not 35 possible in law, that is, it was not possible to promote the interested parties Nos 1 to 4 to the post of Welfare Officer, 1st Grade, because it involved jumping more than one step on the ladder and Ihave decided toannul the promotions of interested parties 1-4 because they did not possess the required 40 mo 3 C.L.R. Papadopoulou v.Republic Kourria J. qualifications for thepost inquestion. Inviewofthe above,itwas reasonably open for the respondent Commission to interpret the scheme ofservice the waythey did. In view of this decision, I do:not propose to examine the 5 contention of the applicant that she wasstrikingly superior tothe interested parties Nos 1-4 because the matter will be examined afresh bythe PublicService Commission. I now propose to examine the second point raised in this recourse to the effect that the decision of the respondent 10 Commission to appoint interested party No. 5, George P. Nicolaides in preference and instead of the applicant is null and void. Counsel for the applicant argued that the applicant is strikingly superior tothe interested party and that the respondent commission should have appointed her tothe post in question. 15 The applicant, as Ihave stated hereinabove, was appointed in the Welfare Office on 13.9.1965, as an Assistant Welfare Officer on a daily basis and on 1.8.1969 she was appointed to the temporary post of Asst.Welfare Officer, and as from 1.7.1970 to the permanent post, and on 15.3.1982 she was promoted to 20 Welfare Officer, 2nd Grade. Itappearsfrom herfileoftheconfidential reports(exhibit2)that each of the years 1979, 1980, 1981, 1982 and 1984 she was graded «VeryGood». The interested party No. 5 was appointed as a Court Bailiff on 25 1.4.1961 and on 1.4.1975 he changed department and was appointed to the post of Temporary Asst. Welfare Officer on secondment;andasfrom 15.1.1978tothepermanentpost;andas from 153.1982 he was promoted to the post of Welfare Officer, 2nd Grade. 30 As it appears from the file of the confidential reports of the Interested Party Nicolaides (exhibit 12), in the year 1979 he was graded «Very Good» and in each of the years 1980, 1981, 1982 and 1984he wasgraded«Excellent». Itisobviousfrom theabovefactsthattheapplicantwassuperior 35 to the interested party by 8 years; and thisin accordance with s. 46

(2)ofLaw33/67.Theinterested partyissuperior inmerittothe applicant, and thequestionariseswhether itwasreasonably open for the respondent Commission to select the interested party as 1731 KourriaJ. Papadopoulou v.Republic

(1987)the most suitable person for the promotion. It is a settled principle of Administrative Law that when an administrative organ such as the Public Service Commission selectsacandidate on the basisofcomparison withothers,itisnot necessary to show, in order to justify his selection that he was strikingly superior to the other. On the other hand, an 5 administrative Court cannot interfere in order to set aside the decision unless the applicant establishes that he had striking superiority overthe interested party. The criteria which the PublicService Commission have to take into consideration when reaching a decision have been 10 expounded in the case of Republic v. Rousos,

(1987)3 C.L.R. 1217 atpp. 1222-1223:«Ontheotherhand,thereisnothingintheZachariadescase to prevent giving effect to the dictum in the Menelaou case, supra,whichwasadopted bytheHariscase, that'meritshould 15 carrythe most weight', solongasthisisnot misunderstood to mean that merit should invariably be treated, in an infexible way, as being exclusively the decisive criterion, because in viewoftheJudgmentsintheGeorghiou, leridesand Christou cases, supra, there may exist situations in the special 20 circumstances of which, and provided that there are not overstepped the limits of the proper exercise of the relevant discretionary powers, a criterion other than merit may be found to be more important than the other. But itis, indeed, obviousthatcogent reasonsshouldbegiveninordertojustify 25 why merit hasnotbeen treated ina particular case,inviewof the existence of special circumstances, as carrying the most weight.» Inthe present case, insofarasseniority isconcerned, there isa marked difference between theapplicant and the interested party 30 infavour oftheapplicant. But,there isalsoastrikingsuperiorityof merit of the interested party over the applicant. In the light of the above, I am of the opinion that it was reasonably open for the Commission to reach the sub judice decision and topromote tothepost ofWelfare Officer, 1stGrade, 35 the interested partyinstead ofthe applicant. 1732 3 C.L.R. Papadopoulou v.Republic Kourris J. In thecircumstances therecourse against interested parties 1, 2, 3 and4 succeeds andthe recourse against interested party 5 George Ρ Nicolaides fails andishereby dismissed In thecircumstances, I donot propose tomake anyorderasto »sts 5 costs Recourse against interested parties 1,2,3 and4 succeeds Recourse againstinterested party5 dismissed Noorder asto costs 1733