(1987)1986FebruaryI rrRIANTAFYLUDES.P] INTHEMATTEROFARTICLE 146OFTHE CONSTITUTION MICHAELZINIERIS, Applicant, v. THE REPUBLICOFCYPRUS,THROUGH THEPUBLICSERVICECOMMISSION, Respondent. (CaseNo. 373/82). PublicOfficers—Promotions —Confidentialreports—Circular 491/79, Reg. 9— Observations bycountersigningofficerrecordingoralreservationsexpressed by the reporting officer —In the circumstances there was no necessity to follow theprocedure ofReg
- PublicOfficers—Promotions—Seniority —Itcanprevailonly,ifotherfactorsare more orlessequal. 5 Public Officers—Promotions —Striking supenority — An applicant,inorderto succeed, should establishsuch superionty. Public Officers — Promotions — Confidential reports — They are part of the overallpicture ofthemeritsofthecandidates,whichthe Commission should weighasa whole. 10 By means of this recourse the applicant challenges the promotion of the interestedpartiestothepostofSupervisorofAccounts The4interested parrieswererecommended forpromotion bytheHeadof the (Department, who regarding the applicant, stated that unfortunately he • did not show the required zeal in his work and, therefore, he could not be recommended for promotion. The applicant wasseniortointerested party Kramvisbythree months and tothe otherthree interested partiesbyapproximately twenty-eight months. Itmustbenoted thatintheconfidential reportfortheapplicantfor 1980the 2 0 Head of the Department stated that there had been expressed about the applicant orally by the reporting officer certain reservations about his zeal andinterestinhiswork.Applicantcomplainedthatthisobservationwasmade 1876 15 Ztnleris v. Republic 3C.L.R. in contraventionof Reg. 9of Circular 491/
- concerningthe preparation of confidential reports. 5 10 Held dismissing the recourse
(1)The observations of the Head of the Departmentin the reportof 1980areonly arecordof what were descnbedas certainreservationsentertained by thereportingofficeroftheapplicant Such observations do not indicateadisagreempnt with the reportingofficerofsuch an extent, as to render necessary the application of the procedure of Reg. 9 of Circular 491/79.
(2)Seniority should beweighed togetherwith mentsand qualificationsand canonly prevail in case all other relevant factorsare more or less equal
(3)For an applicant to succeed in a recourse for annulment he must establish that he was strikingly superior to the interestedparties Recourse dismissed. No order as to costs 15 CasesreferredtoKalosv. The Republic
(1985)3 CLR 135. loannidesv The Republic
(1979)3 C.L R 628: Maknsv The Republic
(1985)3 C L R
- Spanosv The Republic {1985) 3 C L.R
- 20 Kypnanouv The Electncity Authonty ofCyprus
(1985)3 C L.R 1157. Anstocleous ν The Republic
(1074)3 C L R
- loannouv The Republic i1976)3 C L R.
- Nissiotisν The Republic
(1977)3 C L R 388 Recourse. 25 Recourse againstthedecisionoftherespondenttopromotethe interested parties to the post of Supervisor of Accounts in preference and instead of theapplicant. A. Eftychiou, for theapplicant. 30 A. Papasawas, Senior Counsel of the Republic, for the respondent. Cur. adv. vult. 1877 Zinleris v. Republic
(1987)TRIANTAFYLLIDESΡ read thefollowing judgment Byrrkwnof the present recourse theapplicant ischallenging thedecision of therespondent PublicService Commission topromote instead of him,tothe post of Supervisor of Accounts the interested partiesin the present proceedings, Μ Palazis Ν Pissounos Ch Kramvis 5 and Ph Stavn The applicant and the interested parties were serving at the matenal time, in the post of Accounting Officer 1st Grade inthe Treasury Department As the post concerned is a promotion post a Departmental 10 Committee was set up and it submitted a report to the Public Service Commission, on 16 February
- by means of which it recommended for promotion fifteen candidates, including the interested parties and the applicant The meeting of the respondent Commission at which the sub 15 judice decision was reached was held on 6 May 1982, in the presence of the then-Accountant-General, Mr St Nathanael As it appears from the minutes of the Commission Mr Nathanael recommended for promotion, from among the fifteen candidates, the four interested parties and anotherofficer who is 20 notaparty tothepresent proceedings Regarding theapplicant he stated that unfortunately he did not show the required zeal in his work and, therefore, he could not be recommended for promotion After the Accountant-General had left the meeting the 25 Commission proceeded with its own evaluation and comparison of thecandidates Itrecorded initsminutesthathaving considered all relevant material from the personal files and the confidential reports files of the candidates and having taken into account the report of the Departmental Committee and the views and 30 recommendations of the Accountant-General, it came to the conclusion that the interested parties were supenor to the remaining candidates on thebasis of the established criteria,that is ment, qualifications and seniority, and were suitable for promotion and itdecided topromotethem tothe post concerned 35 as from 15 February
- Ithasbeen contendedby counsel for theapplicantthat because of the unfavourable views about the applicant which were expressed before the Commission by the Accountant-General, 1878 3 C.L.R. Zlnlcria v. Republic TriantafyUlde· P. which, as counsel submitted constituted the main reason for not promoting him the Commission had acted under a misconception in evaluating the abilities and suitability of the applicant for promotion tothe post of Supervisor of Accounts 5 Itwas submitted inthis respect thatthesaid recommendations were contrary tothe contentsof theconfidential reports in respect of the applicant for the last three years and, also, that the observations of theAccountant-General intheconfidential report for the applicant for the year 1980, to the effect that 10 notwithstanding the overall «very good» rating there had been expressed about the applicant orally by the reporting officer certain reservations about his zeal and interest in his work, had been made in a manner contravening the provisions of the relevant administrative Circular, dated 26 March 1979, regarding 15 the mode of the preparation and submission of confidential reports by reporting officers and countersigning officers As it appears from its relevant minutes the Commission in evaluating the candidates before it took into consideration the viewsand recommendations of the Accountant-General,as Head 20 of Department, but such views were only one of the relevant factors and were weighed together with the contents of the confidential reports and, also, generally the ments the qualifications and senionty of the candidates The views which were expressed by the Accountant-General 25 about theapplicant before theCommission weresupported by his already referred to observations about the applicant in the confidential report for the year 1980 Such observations do convey a personal assessment of the zeal and interest of the applicant inhis work but itisonly a record of what were described 30 as certain reservations entertained by the reporting officer of the applicant 35 40 I do not think that the said observations indicate that the Accountant-General had disagreed to such an extent with the assessment made by the reporting officer that he ought to have followed theprocedure envisagedby regulation 9 of the aforesaid Circular, that is to make his own assessment inred ink, to initial it and togive reasons for such assessment The Commission had before it all relevant matenal regarding the abilities and the suitability of the applicant for promotion and it cannot really Ν ^atd that it acted, in any way, under a 1879 Triantafylild» P. Ztnleris v. Republic
(1987)misconception as tothecorrectsituation Thepersonal fileandthe confidential reports file of the applicant showing his whole career were before the Commission and it is to be presumed that every matenal factor was adequately assessed As the applicant has not established to the satisfaction of the Court that the Accountant-Generalwas inany way biased against himtheconfidential reportfor 1980 about theapplicantwas inmy view, nghtly taken intoconsideration 5 Regarding the contention of counsel for the applicant that the Accountant-General was not in a position toassess the abilities of 10 theapplicantas he was nothisimmediatesuperior 1 mustpointout that from a perusal of the confidential reports file of the applicant there istobe derived thattheAccountant-Generalhad acted inthe past as reporting officer in respect of the applicant and for many years as countersigning officer and Ihave no doubt that he must 15 have been sufficiently well acquainted with the abilities of the applicant I am,therefore, of theopinionthattheCommission quite nghtly acted both on the basis of the recommendations of the Accountant-General and onthebasisof theconfidential reports in 20 evaluating the ments of the applicant and did not labour in any way under a misconception as tothe correctsituation Counsel for the applicant had further submitted that as the applicant and the interested parties were more or less equal in mentandqualifications thesenionty of theapplicantought tohave 25 tilted the scales in his favour As it appears from a comparative table appended to the Opposition theapplicantwas appointed tothepost of Accounting Officer, 1st Grade, on 1August 1976, interested party Kramvis on 1 November, 1976, interested parties Palazis, Stavn and 30 Pissounos on 15 December 1978 Thus,the applicant was senior to interested party Kramvis by three monthsand was, also, senior totheotherthreeinterestedpartiesby approximately twenty-eight months Itis well settled that in effecting promotionssenionty should be 35 weighed together with ments and qualifications and can only prevail incase allotherrelevant factors aremoreorlessequal (see, in this respect, loannides ν The Republic,
(1979)3 C LR 628, 637, 638, Kahs ν The Republic,
(1985)3 C L R 135, 150 and Makns ν The Republic,
(1985)3 C LR 1103,1110). 40 1880 3 C.L.R. Zinleris v. Republic Triantafyllide» P. Also,foranapplicanttosucceed inarecourse forannulment he must establish that he was strikingly superior to the interested parties (see. inter alia. Spanos v. The Republic.
(1985)3 C.L.R.
- Kyprianou v. The Electricity Authority of Cyprus, 5
(1985)3 C.L.R. 1157, 1169. and Makris.supra, 1110);and such striking superiority cannot be established by reference to one of the three criteria onlybut must be the result of the assessment of the overall picture (see Kyprianou, supra, 1167, 1168). I have considered the confidential reports for the interested 10 partiesandfortheapplicant,bearinginmindtheviewtakenbythis Court inAristocieous v. The Republic,
(1974)3 C.L.R. 321,326, loannou v. The Republic.
(1976)3 C.L.R. 431,441 and Nissiotis v. The Republic,
(1977)3 C.L.R. 388, 397, to the effect that confidential reports do not constitute recommendations for the 15 filling of a particular vacancy but part of the overall picture of the merits of the officers concerned, which the Commission had to weigh as a whole, and I have reached the conclusion that the interested parties,at least for the three more recent years, appear on the face ofthe confidential reportstobesuperior inmerittothe 20 applicant. Regarding the aspect of the qualifications the applicant and the interested parties were all qualified under the relevant scheme of service but it is useful to bear in mind that interested parties Kramvisand Palazispossessed universityqualifications relevantin 25 a way tothe duties of the post concerned. Having considered all the material before me Ifind that Ihave notbeen persuaded bytheapplicant,onwhomtheburdenlaythat he was strikingly superior to any one of the interested parties on the basisof the totality of the relevant criteria. 30 The taskofselecting the mostsuitable candidate foraparticular post isa matter for the Public Service Commission and this Court cannot substitute itsown decision in the place of the decision of the Commission. In the result the present recourse fails and has tobe dismissed; 35 but with noorder as toitscosts. Recoursedismissed. No order astocosts. 1881