(1987)1987 November 7 [DEMETRIADES.J] INTHEMATTEROFARTICLE146OFTHECONSTITUTION MARIOSGAVALAS, Applicant, v. THEREPUBLICOFCYPRUS,THROUGH THEPUBLICSERVICECOMMISSION, Respondent. (CaseNo.251/83). Public Officers — Promotion — Thepnnciples that should govern andbind the organsentrusted with thetaskof promotion. Public Officers—Promotions —Judicial control —Principles applicable. By meansof this recourse the applicant challengesthepromotion ofthe interestedpartiestothepostofLandOfficer, 2ndGradeintheDepartmentof 5 Lands andSurvey. The ten interested parties were recommended by the Head of the Department, whilst the applicant wasnot.Theapplicant hadbetter gradings thansomeoftheinterestedparriesbutthedifferencewasnotsuchastorender himstrikinglysuperiortothem.Thequalificationsofallconcernedweremore 1 0 or lessthesame.The interestedpartieswereseniortothe applicant. Held, dismissing the recourse:(l) Ina nutshell theprinciples emanating from(hecaselawinrespectofpromotionsinthepublicandotherservicesof theRepublic are: A.Thebestcandidatemustbeselectedafterconsidering 15 (t)themerit,qualificationsandseniorityofcandidates, (li)theirgradingintheconfidentialreports,and (Ui)therecommendations oftheHeadofthe Department. B. Seniority prevailsifallfactorsaremoreoflessequal. C. Recommendations oftheHeadoftheDepartment cannot bedisregarded 2 0 without the respondentgivingspecialreasons. 2020 3 C.L.R. Gavalas v. Republic 2 Inthiscasetheapplicant failed toprovethathewasstnkmglysupenorto the interested parties Recoursedismissed Costsagainstapplicant 5 Recourse. Recourse againstthedecision oftherespondenttopromote the interested parties to the post of Land Officer, 2nd Grade in preference and instead of the applicant. E.Efstathiou,for the applicant. 10 Ch.Kyriaktdes,Counsel ofthe Republic, forthe respondent. Cur.adv. vult DEMETRIADESJ. read thefollowingjudgment. Bythe present recourse the applicant challenges thedecision of the respondent. published in the Official Gazette of the Republic, dated the 8th 15 April, 1983,whereby the interested parties were promoted tothe post of Land Officer, 2nd Grade, inthe Department of Landsand Surveys, instead of and inpreference to him. The interested parties are:
(1)Panayiotis Papaefthymiou,
(2)Christodoulos Christodoulides,
(3)Charalambos Sawides,
(4)20 Charilaos Epaminondas,
(5)Petros Vassihou,
(6)Andrew, Christodoulou,
(7)Georghios Hadjittofi and
(8)Andrew Joannides.The applicant does notattack thepromotion ofMr. A Pallikarosand Mr.Kikis Onoufriou. Imust mention here that although the name of interested pa>ty 25 No.2appearsintheapplicationtobeChristodoulou, itisobvious, both from the minutes of the meeting of the respondent and the Official Gazette of the Republic where the subjudice promotions are published, that thisparty'sname is Christodoulides Atthematerialtimeofthesubjudicedecision,theapplicantand 30 the interested parties were holding the post of Assistant Land Officer in the Department of Landsand Surveys. Persuant to a request made by the Director-General of the MinistryofInteriortotherespondentforthefillingoftenvacancies tnthepostofLandOfficer, 2ndGrade (whichisapromotionpost), 35 the respondent referred the matter to the Departmental Committee whichwasset upforthe purpose inaccordance with theprovisions ofsection36 ofthePublicService Law, 1967 (33/ 67). 2021 Demetriadea J. Gavalas v.Republic
(1987)Byitsreport, whichwassubmitted totherespondent bya letter dated the 16th October, 1982, the Departmental Committee recommended 39 candidates for promotion to the post in question. Amongst them was the applicant and the interested parties. At its meeting of the 11th November, 1982, the respondent considered thereport ofthe Departmental Committee and having found thatone ofthecandidatesrecommended byitdidnotinfact possess one of the qualifications required by the scheme of service, postponed further consideration of the matter to a 10 subsequent date. The final meeting of the respondent took place on the 26th November, 1982. The Head of the Department, who was invited to express his views, recommended, in order of merit, 10 of the candidates,amongstwhomtheinterestedparties.Healsogavean outline ofthe nature ofthedutiespenormed byeach one of them 15 and expressed hisviewson theirefficiency. Theapplicantwasnot included in his recommendations. The respondent then proceeded to select for promotion, as from the 15th December, 1982, the ten candidates recommended by the Head of the Department, making analytical reference to their assessment as 20 each appeared inthe respective confidential reports. The promotions were published in the isssue of the Official Gazette of the Republic ofthe 8th April, 1983,asaresultofwhich theapplicantfiledthe present recourse. Counselfortheapplicantarguedthattheapplicantissuperiorto 25 the interested parties both inmerit and qualifications and that the seniorityoftheinte estedpartiesoughtnottobearsomuchweight in the minds of the respondeat. He further contended that the respondent took into consideration only the two last confidential reports of the candidates and that the recommendations of the 30 Head of the Department were not in conformity with the picture presented bythe confidential reports and ought notto have been followed bythe respondent. (a) The question to be decided is whether the sub judice decision (a)was properly taken by the respondent and (b)itwas 35 reasonably open tothem to take it. The Supreme Court of thiscountry, in itsnumerous decisions relating to promotions in the public and other services of the 2022 5 3 C.L.R. Gavalae v. Republic DemetrUde*J. Republic,hassetdown theprinciplesthatshouldgovernand bind the organs entrusted with the task of promoting officials. In a nutshell these principlesareA.The best candidates must be selected after considering5 (i)the merit, qualifications and seniority of candidates, (ii)theirgradinginthe confidential reports, and (iii)therecommendationsoftheHeadofthe Department. B.Seniority prevails ifallfactors are more or lessequal. 10 C. Recommendations of the Head of the Department cannot be disregarded without the respondent giving special reasons. The Supreme Court has further held that for an applicant to succeed in a recourse against the decision of such an organ must prove, the burden lyingonhim,thatheisstrikinglysuperiortothe 15 officer promoted. Inowcometotheissueregardingthemeritsoftheapplicantand theinterested parties. Ontheissueofmerit,thepositionassetoutbythedecided cases is that the merits of a candidate for promotion are reflected 20 through hisconfidential reports. Before me there is a statement prepared by the respondei which shows in detail the grading of the applicant and of ei :h interested party and from which itappears that the applicant, i:s well as all interested parties, except Mr. Hadjittofi and Mr. 25 Epaminondas, wereassessedforeach oftheyears 1980and 1981 as«Excellent»whilstthe main interested partieswere assessed for the year 1980 as «Very Good» and for the year 1981 as «Excellent». Although there isasmalldifference intheindividualgradingsof 30 the parties, this difference is not such as to render the applicant strikinglysuperiortoanyoftheinterested parties,bearing,also,in mindthefactthattheinterestedpartieswererecommendedbythe Head of the Department. As to the qualifications of the applicant and the interested 35 parties,theseappearinAppendixA totheopposition,andhaving considered them carefully, I find that allpartieswere more orless equal inthisrespect. 2023 DemetrtadesJ. GavaJa·v.Republic
(1987)Regarding now the factor of seniority, it is obvious from AppendixA'thatallinterestedpartiesareseniortotheapplicant. Although interested parties 1,2,3,4,5and6werepromoted to the post of Assistant Land Officer on the same date as the applicant, they were senior totheapplicant inthepreviouspost 5 they held. In any event, the fact that the interested parties are seniortotheapplicanthasnotbeen contested. Havingregardtotheabove,Ifindthatitwasreasonablyopento the respondent to promote the interested parties instead of the applicant. Regardingthe contention of counsel forthe applicantthatthe respondent took intoconsideration onlythelasttwo confidential reportsofthecandidates,Ifindnomeritinit.Thefilescontaining alltheconfidential reportsofthecandidateswere,asstatedatp.4 of the sqb judice decision, before the respondent and were 15 consideredbyit.Thefactthatmoreweightwasattachedtothelast rt*/preportsisperfectlylegitimate. Ifurtherfinduntenable the argument oftheapplicant thatthe recommendationsoftheHeadoftheDepartmentwerecontraryto the contents of the confidential files of the parties. Such an 20 argumentcannotbesubstantiatedfrom thematerialbefore me. Inthelightofthe aboveIfindthatthesubjudicedecisionwas reasonablyopentotherespondenttoreachandthattheapplicant hasfailed toshowcausewhyitshouldbedisturbed. Inthe result, thisrecourse fails and itishereby dismissed with 25 costs. Recoursedismissed withcosts. 2024 ™