(1987)1987December30 [KOURRIS,J.) INTHE MATTEROFARTICLE 146OFTHECONSTITUTION MILTIADESMILTIADOUS, Applicant, y. THEREPUBLICOFCYPRUS,THROUGH THEPUBLICSERVICECOMMISSION, Respondent. {CaseNo. 153/87). PublicOfficers—Promotions—Qualifications—Decision 12655 oftheCouncil of Ministers—'Treated service*, i.e.recognitionofapost-graduatediploma ortitleorpostgraduateeducationbyapublicofficerasserviceorexperience —As thecaseinvolvestheconstructionofalegaldocument, theissueisnot whether theinterpretationgiven toitbytheappointingorganwasreasonably open toitornot,butwhethersuchinterpretationiscorrectornot—In thetrue constructionofthedecision 'treatedservice»canbeusedbyanOfficeratany stageofhiscareerprovided he usesitonly once. By means of this recourse the applicant impugns the validity of the promotion of the interested parties to the post of Assistant Collector of Customs aswellasthevalidityofthe decisionmatthe applicantwasnot an eligiblecandidate. 5 10 The only issue thatarisesfor determination iswhether the applicant was qualified under the scheme of serviceand Decision 12655of the Councilof Ministersforpromotion tothesubjudicepost. The outcome depends on whether the period which the applicant spent abroad to acquire his post-graduate diploma, which is known as •treated service*(«plasmatikiipiresia»),shouldbetreatedasservicetothepostheldby the officer duringthetimespentfor the relevantstudies,i.e., inthe present case asCustomsOfficer, 2ndGrade,or ifnotused assuch,whetheritcould 2 0 betreatedasservicetoartyotherhigherpostsubsequentlyheldbythe officer, i.e.inthe present case,asCustomsOfficer, 1stGrade. Counsel forapplicantarguedinfavour ofthelatterview,whereascounsel fortherespondentCommissionhastaken thetormerview. 1774 15 3 C.L.R. 5 MUttadotu v. Republic Held, annulling the sub judice decision
(1)The present case is nota case where thePublic Service Commission had tofit certain facts intothescheme of service so that the test is whether the interpretation adopted by it was reasonably open toit ItisalegalconstructionofadocumentandifthePublic Service Commission erred ininterpretingit,theCourtcanintervene andgive thecorrectinterpretation {2)Thetrueconstructiont»beplacedonthesaidcircularisthatthetreated service»canbe used by apublic officer atanystageof hiscareer provided he uses this«treated service»onceonly 10 Subjudice decisionannulled No orderas tocosts Casesreferredto Papapetrouν TheRepublic, 2 &S>CC 61. Frangouhdesν ThePublicSen** Commission
(1985)3 CLR 1680, 15 Der Parthough ν TheRepublic
(1985)3 CL R635, Aivahotisv TheRepublic{197\) 3CI R 71 Recourse. Recourse against thedecision of therespondenttopromotethe interestedparties tothepostof Assistant Collectorof Customsand 20 against the decision whereby theapplicant was notconsidered as eligible for promotiontothe above post G Trtantafylhdes,for the applicant L Koursoumba (Mrs),for the respondent Cur adv wit 25 KOURRIS J read the following judgment By the present recourse the plaintiff claims the following (a)Thedecision and/oractof thePublicSewi—Commissionto promote theinterested parties tothepost of Assistant Collectorof Customs as from 1.1 1987 which was published in the Official 30 Gazetteof the Republic on 20 2 1987, isnull and void, and (b)The decision of the Public Service Commission which was communicated to the applicant on 19 1 1987 by which he was notified that he was not eligible for promotion to the post of Assistant CollectorofCustoms,because atthemateria!timehedid 35 not satisfy the relevant provisions of the scheme of servicp 1775 KourrtsJ. Mlltiadous v.Republic
(1987)requiring3yearsserviceinthepostofCustomsandExcise Officer. 1stGrade, isnulland void. The interested partiesare the following:
- Georghiou S. Papadakis, Andreas Ch. Loizides, Costakis Christoforou, loannisN. Papaioannou, Artemis Theofylou, Prodromos Michael. At the time of the sub judice decision, the applicant and the 10 interested parties were holding the post of Customs and Excise Officer, 1st Grade. Pursuant to a request made by the Director-General of the Ministerof Financetotherespondent Commission forthefillingof sixvacancies inthe post of Assistant Collector of Customs, which 15 is a promotion post, the respondent Commission referred the matter to the departmental committee which was set up for the purpose in accordance with the provisions of s. 36 of the Public Service Law, 1967 (Law33/67). Byits report, which was submitted to the respondent by letter 20 dated 4.7.1986, the departmental committee recommended 18 candidates for promotion to the post in question including the interested partiesand the applicant. At the meeting of 5th August, 1986, the respondent Commissionconsideredthereportofthedepartmentalcommittee 25 and having found that four of the candidates, including the applicant, recommended by it, possessed the qualifications for three years service in thepost of Customs and ExciseOfficer, 1st Grade, provided that the years they spent for post-graduate educationabroadduringtheirservicewouldbeconsideredasyears 30 forservice inthe post of CustomsandExcise Officer, 1stGrade, decidedthatthe matterrequired further consideration The Chairman of therespondent Commission by letters dated 25.10.1986,29.10.1986 and8.12.1986,askedforalegal opinion from the Office of the Attorney-General regarding the 35 interpretation of the decision of the Council of Ministers No. 12655onthesubjectof«recognitionofapostgraduatediplomaor 1776 5 3 C.L.R. Miltiadous v.Republic Kourris J . titleoreducation orpost-graduate'education byapublicofficer as service or experience», which he received on 9.12.
- (Appendix 10tothe Opposition.) The final meeting of therespondent Commission took place on 15.12.
- whereby they continued the examination of the report of the departmental committee in the light of the legal opinion from the office of the Attorney-General. During this meeting, the respondent Commission also examined the claimof the applicant contained in his letters dated 3.5.
- 28.6.1986 10 and 12.12.1986 that the period spent abroad in order to acquire his post graduate diploma should be considered asservice in the post of Customs and Excise Officer. 1stGrade, but they rejected hisclaim also inthe light of the said legal opinion that this period should be considered asservice inthe post of Customsand Excise 15 Officer 2nd Grade only. 5 Inviewoftheabove,theRespondent Commission decided that the applicant aswellasanother threecandidates were noteligible forpromotion astheydidnotpossesstherequired qualificationsof thescheme ofservice. (Appendix 11tothe Opposition.) 20 Learned counsel for the applicant, has confined himself to the issueof the eligibility of the applicant for promotion tothe postof Assistant Collector of Customs under the relevant scheme of service and the circular of the Council of Ministers, so the only issuethat fallsfordetermination istheinterpretation ofthescheme 25 of service in conjunction with the circular of the Council of Ministers. If the applicant is eligible, the sub judice decision must be annulled for misconception of material facts, i.e.thefacts relevant to the eligibility of the applicant, for promotion and the wrong 30 interpretation of the relevant provisions of the circular of the Council of Ministers. The issue which is in dispute is whether the period which the applicant spent abroad to acquire his post-graduate diploma, which isknown as«treated service» («plasmatiki ipiresia»), should 35 be treated asservicetothepostheldbytheofficer duringthetime spent for the relevant studies, i.e., inthe present case as Customs Officer, 2nd Grade, or if not used as such, whether it could be treated as service to any other higher post subsequently held by theofficer, i.e.inthepresentcase,asCustomsOfficer, 1stGrade. 1777 Kourris J. MUtiadousv.Republic
(1987)·' Learned counsel for the applicant argued in favour of the latter view, whereas counsel for the respondent Commission has taken the former view. It is pertinent at this stage to set out, so far as relevant for the purposes of thiscase, the Decisionof the Council of Ministers,No. 12655:- 5 «Αναγνώρισις μεταπτυχιακού διπλώματος ήτίτλου και εκπαιδεύσεως ή μετεκπαιδεύσεως δημοσίου υπαλλήλου ως υπηρεσίας ή πείρας Διά σκοπούς Σχεδίων Υπηρεσίας θέσεων δια τας 10 οποίας απαιτείται ωρισμένη υπηρεσία ή πείραΜετατττυχιακόν δίπλωμα ή τίτλος αποκτηθείς κατόπιν μελέτης εις τ ο εξωτερικόν είτε υπό δημοσίου υπαλλήλου κ α τ ά την διάρκειαν της υπηρεσίας τ ο υ είτε υπό προσώπου τινός προ τ ο υ διορισμού εις την 15 δημοσίαν υπηρεσίαν, και (α) μη συνιστών απαραίτητον προσόν διά την θέσιν, δέον να λογίζεται, βάσει τ ο υ κανονικώς απαιτουμένου χρόνου διά την απόκτησιν α υ τ ο ύ , ως υπηρεσία ή πείρα μέχρι δύο ετών, κατ' ανώτατον όριον, και 20 (β) συνιστών απαραίτητον προσόν διά την θέσιν μη λογίζεται ως υπηρεσία ή πείρα πλην της περιπτώσεως κατοχής τ ί τ λ ο υ Διδάκτορος (Ph.D.) διά την οποίαν θα λογίζεται ως ε ν ε τ ό ςυπηρεσίας ή πείρας: Νοείται ότι τ ο ι ο ύ τ ο δίπλωμα ή τίτλος δέον όπως μη 25 λογίζεται ως υπηρεσία ή πείρα εάν δεν είναι συναφής προς τ α καθήκοντα της θέσεως.Η ως άνω υπηρεσία ή πείρα θα αναγνωρίζεται άπαξ μόνον κα\ θ α ευρίσκεται εις πίστιν τ ο υ υπαλλήλου κ α τ ά την διάρκειαν της υπηρεσίας του.» 30 In English it may be translated as follows: «Forthe purposes of Schemes of Service of a postin which i'rtain service or experience is requiredA post graduate diploma or title acquired after studies broad either by a public officer during his service or by any 35 •yfson prior to his appointment to the public service, and 1778 3 C.L.R. MIIHadou*v. Republic Kourrls J. (
- a)not constituting a necessary qualification for the post, shall be reckoned, on the basisof the time normally required for its acquisition, as service or experience up to two years, maximum; and 5 (
- b)constituting a necessary qualification for the post shall notbereckoned asserviceorexperienceexceptinthecaseof possession of the title of Doctor of Philosophy (Ph.D.) which shallbe reckoned as one year's service or experience: Provided thatsuch diploma ortitleshall not be reckoned as service or experience if it is not related to the duties of the post. The aforesaid service or experience shall be recognised once only and shall be to the credit of the officer during his service;» Counsel forthe applicantargued thatthepostgraduate diploma should be credited to a public officer and made use of once only 15 at any time he wishes, and stressed that this is clear that one is permitted tomakeuseof thisdiploma even ifithasbeen obtained before entering thepublicservice.Hesaidthatbydefinition when you acquire a post-graduate diploma before entering the public service, which is expressly permitted"tjy the circular, you cannot 20 useitforyourfirstappointment inthepublicservicebecause when you are first appointed no scheme of service requires previous experience or service, simply because you have not been in the service before. Therefore, he went on to say that when you acquire a diploma before entering the civil service, you will 25 necessarily use itin accordance with the provisions of the circular for a promotion to a post at which you did not acquire this postgraduate degree or diploma. He suggested that from the wording of the circular, no restriction is attached to the use of the postgraduate diploma 10 30 He went on to say that in the present case we are concerned with legal interpretation and the Court may intervene and interpret the phrase and. if the interpretation given by the Public Service Commission to such a phrase or word is not the correct one, then the Court can intervene because in law there can only 35 beonecorrect interpretation;and itisabsurdtosaythatthePublic ServiceCommission cangiveanylegalinterpretation and then the Court cannot intervene because such interpretation iswithin the discretion of the Public Service Commission. 1779 KourrisJ. MUtiadous v. Republic
(1987)Learned counsel for therespondentargued thatthe trueissue is whether the interpretation adopted by the respondent was reasonably open toitandthatitisupon theapplicantto discharge the onus, which is cast upon him, and showing that the Public Service Commission has applied the scheme of service in a 5 mannerthatwas notreasonably opentoit.She went ontosay that the interpretation adopted by the Public Service Commission need not necessarily be the most obvious one or indeed the one favoured by the Court,and the test is whether it transgresses the limit set by the wording of the law. Insupport she cited the cases 10 of Papapetrou v. The Republic, 2 RS.C C. 61 at ρ 69; Frangouilides and Another v. The Public Service Commission.
(1985)3 C.L.R. 1680 at pp. 1684-1ή85; Der Parthough v. The Republic,
(1985)3 C.L.R. 635 and Aivahotis ν The Republic
(1971)3 C.L.R. 71. 1·' She submitted thattheobject and the meaning of theDecision of the Council of Ministersas clearly emerges from its wording as a whole, is to treat as penod of service or experience, time spent by a person abroad, either before entering the public service or while in the service, in orderto further educate himself in matters 20 which are connectedwith orrelated tothedutiesof acertainpost; in other words, persons who for that reason either entered the service late or interrupted their actual service should not find themselves at a disadvantage, for the purposes of a scheme of service whereby certain period of service is required, when 25 compared to other officers who had spent that time actually serving. But,she went ontosay thatitisfar from intending and/or meaning toplace persons «credited with service» atan advantage over persons who actually served. She invited the Court to accept as a correct interpretation of the Decision of the Council 30 of Ministersthat«treated service» («plasmatiki ipiresia»), should be treated as service to the post held by the officer during the time spentfor the relevantstudies. Ihave considered carefully the submissions of learned counsel and! am inclinedtoacceptthe argumentof learnedcounselfor the 35 applicant. The said Decision of the.Council of Ministers qualifies theschemeof servicein questionand Stisincorporatedwithit.The present case is not a case where the Public Service Commission had to fit certain factsintothe scheme of serviceso thatthe test is whetherthe interpretation adopted by it was reasonably open to 40 it.Itisalegalconstructionof adocumentand ifthe PublicService 1780 3 C.L.R. Miltiadou·v.Republic. KoorrtoJ. Commission erred in interpreting it, the Court can intervene and givethe corcect interpretation. In my view, the prerequisites for the recognition of a postgraduate diploma by virtue of the circular of the Council of 5 Ministers,are the following: (a) post-graduate diploma or title acquired after education abroad; (b) this diploma or title should not constitute a necessary qualification for the post; 10 (c)thediplomaortitleshouldrelatetothedutiesofthepost;and (d) the diploma or title should have been acquired after education abroad either by a public servant during hisservice or bya person before hisappointment inthe publicservice. Itisobvious from the above thatthere isno restriction asto the 15 service to be credited to the public officer except that he can use this«treated service» («plasmatiki ipiresia»)once only. Inconclusion, I think that the trueconstruction to be placed on thesaidcircularisthatthe«treatedservice»can beusedbyapublic officer at any stage of his career provided he uses this «treated 20 service» once only. In view of the above, Ithink that the applicant was an eligible candidateand consequentlythesubjudicedecisionisannulled for misconception of material facts, i.e. the facts relevant to the eligibility of theapplicant for promotion, and misinterpretation of 25 the relevant provisions ofthe circular of the Council of Ministers. Inthe exercise of mydiscretion, Ido not make any order as to costs. 30 Sub judice decision annulled. No order asto costs.