(1987)1987 November 28 [KOURRIS J ] INTHEMATTER OFARTICLE 146 OFTHE CONSTITUTION THRASYVOULOS L1AS1DES, Applicant, ν THE REPUBLICOF CYPRUS, THROUGH THE PUBLICSERVICE COMMISSION, Respondent (Case No 557/86) PublicOfficers—Appointments — 77iePublicServiceLew33/67 section33(
- d)— 'Good character» — Disciplinaryoffence committed dunng coup d' etat,for whichapplicant was punished withthe disciplinarysentence of requirement toresign, and convictionsin 1984 for assaultoccasioningactualbodilyharm, public insult and disturbance, correctly taken into account m assessing applicant'scharacter The applicant was appointed on a casual basis on 28 7 1980 to the post Technician 2nd Gradein the Water Development Department The Public Service Commission refused to appoint the applicant to the post of Technician, 2nd Grade, in the Water Development Department m 5 10 accordance with theprovisions of the Casual PublicOfficers (Appointmentto Public Offices) Law, 1985 (160/85) Inthelight of thefollowing facts namely thattheapplicant dunngthecoup d' etatcommitteddisciplinary offences for which therespondentCommission 15 on 29 6 1979 imposed on the applicant the disciplinary sentence of compulsory retirementfrom 1 7 1979, andthaton 145 84 he was convicted by the DistrictCourtof Nicosia for assault causing actual bodily harm, public insult and disturbance, the respondent reached the conclusion that the applicant tsnotof good characterand,consequently, refused toappointhim 2 0 inviewof s 33(
- d)of the Public Service Law 33/67 Hence this recourse Counsel for the applicant contended that the issue of «good character» should be examined as at the date of the decision of the Commission or at 2054 3 C.L.R. 5 10 15 Λ LJasIde· v. Republic least as atthelimeof therequest for thefillingofthepost,andthisby applying by analogy the ratio decidendi of the case Republic ν Katenna Pencleous
(1984)3 C LR 577 that there has not been a due inquiry, because the applicantwas notcalled upontoappearbefore theCommission, thatareport whith was prepared in 1983 by Andreas Evrypidou. the Senior Technical Superintendent in the Water Development Department with regard to the applicant and the other employees serving on a casual basis was not forwarded for theconsideration of the respondent Commission, and thatthe t respondent Commission acted contrarytotheLaw. andparticularly contrary to s 35
(1)of Law 33/67 inthatitfailed toask for theadvice of theAdvisory Board Held dismissing the recourse
(1)The Public Service Commission in assessing the character of the applicant nghtly took into consideration the disciplinary sentence of compulsory retirement which took place 12 years pnortothedateof the subjudice decision and theconviction for thecnmina! offence which took placealmost3 years priortothedecision, because these two offences reflect on thecharacterof theapplicant
(2)ThePublicService Commissioncouldnothavetakenintoconsideration the character of the accused for the last 3 years pnor to the decision and ignored hischaracterfor theyears before that
(3)The applicant was given every opportunity to supply the respondert Commission with all matenalregarding hischaracter
(4)Thereport for 1983 was prepared on theinstructionsof theDirector jf Water Development Departmentforhis own use andfor one year only 2i>
(5)This case concerns appointments under the Casual Public Offit rs (Appointment to Public Offices) Law 1985, (160/85). where there is r o provision for advisory boards Recoursedismissed No orderas to costs 30 Casesreferredto Republic ν Pencleous,3 C LR 577, Stavndes ν Republic
(1985)3 C LR 95 Recourse. 3S Recourse against the refusal of the respondent to appoint applicant to the post of Technician, 2nd Grade, in the Water Development Department in accordance with the provisions of 2055 SC.L.R. U a s i d e s v.Republic
(1987)the Casual Public Olticers (Appointment toPublic Offices); ./.> 1985,(LawNo.160/85). N.Papaefstathiou, fortheapplicant. A. Papasawas, Senior Counsel of the Republic, for the respondent. 5 Cur. adv. vu!t. KOURRIS J. read the following judgment. Applicant by this recourse challenges thevalidity oftheact and/or decision ofthe Public Service Commission dated 11.7.1986 whereby the Commission refused to appoint the applicant to the post of 10 Technician,2ndGrade,intheWaterDevelopmentDepartmentin accordance with the provisions of the Casual Public Officers (AppointmenttoPublicOffices) Law, 1985(160/85). Theapplicantwasappointedonacasualbasison28.7.1980to thepost oftheWaterDevelopment Department. 15 InaccordancewiththeprovisionsoftheCasualPublic Officers (AppointmenttoPublicOffices) Law, 1985(160/85)theDirector ofPrib'licAcWrfrtisfration and Personnel Serviceforwarded tothe respondentCommission alistofappointeeswhichwasprepared byhiminaccordance Withs.3oftheLawincludingthenameof 20 the applicantfortheappointmenttothepostofTechnician, 2nd Grade,WaterDevelopment Department. The office of the Public Service Commission bya letterdated 21.11.1985forwarded totheDirectoroftheWaterDevelopment Department Forms (Gen. 6) to be completed by the interested 25 CasualEmployees. The 'Director of the Water Development Department by his letter datecl 3.1.86forwarded to the office of the PublicService Commission the said forms duly completed by the interested Employees. TTie Public Service Commission during its meeting on 19.5.1985,whenconsideringthenameoftheapplicantobserved thatduringthecoupd'etathehascommitteddisciplinary offences forwhichtherespondent Commissionon29.6.1979imposedon the applicant the disciplinarysentence of compulsoryrerfrernerit 35 from 1.7.1979,{Appendix4).Theyalsoobserved thatduringHis service as a casual employee in the Water Development 2056 30 3C.L.fl. Ltosidesv.Republic KovrrtoJ. Department he was convicted by the DistrictCourtof Nicosiaon 14 5 314 for £40fine andhewas alsoboundoverfor£100.- forone year 'ortheoffences of assault causing actualbodily harm,public insultanddisturbance (Appendix 5).Finallythey observed thatthe 5 applicant who completed Form Gen. 6 failed to mention the hereinabove. TherespondentCommissionasked for advice from theOffice of theAttorney-General andon9.5.1986received a legalopinionto the effect that the criminal offences for which the applicant was 10 convicted, do not involve dishonesty or moral turpitude andthat the term «dismissal» in s. 33(0 do not cover also compusiory retirement. Itwas also mentioned that no person is appointed to the Public Service unless he is of good character and this is a factual aspect which falls within the exclusive jurisdiction of the 1Ϊ» PublicService Commission which hastoexercise itsdiscretionon thematter(Appendix 6). In view of the above, the respondent Commission decided to aske the applicant to submit in writing whatever explanations he wished regarding his character and they also decided to ask the 20 Directorof the Water Development Departmentfor explanations as to the mode of the appointment of the applicant as a casual employee; for this purpose the Office of the Public Service Commission by letterdated26.5.86asked theapplicanttosubmit in writing whatever explanations he wished because under the ;«5 provisions of s. 33(d)of thePublicService Law 1967 noperson is appointed to the Public Service if he is not of good character (Appendix 8). The Law Office of Messrs.Tasos PapadopoullosandCo.acting on behalf of the applicant addressed a letter dated5.7.1986 and ( 30 submitted therepresentationsof theapplicantwhich aremainlyof a legal nature (Appendix 11). The Directorof theWater DevelopmentDepartmentinreplyto a letteraddressed tohim by thePublicService Commission dated 26.5.1986 (Appendix 9) referred to the process of the 35 appointment of the applicant as a casual technician and mentioned that he was not aware of his previous service as a warden and of hiscompulsory retirerneht(Appendix 10). The Public Service Commission during its meeting on 11.7.1986considered theletterof counsel of theapplicantaswell 2057 KtmnrtsJ. Uasldesv.Republic
(1987)as theletterof the Directorof theWater DevelopmentDepartment and having taken into account the nature of the disciplinary offence for which the applicant was sentenced to compulsory retirementfrom the PublicService as from 1.7.1979aswellasthe nature of the criminal offences for which he was convicted on 5 14.5.1981, were of theviewthattheapplicantwas notaperson of good character within the ambit of the provisions of s. 33 of the Public Service Law, 1967 and decided that he could not be appointed tothesaid post (Appendix 12). The Office of the Public Service Commission informed in ιο writing counsel of the applicant and the Director of the Water Development Department of theirdecision (Appendix 14). Applicant, feeling aggrieved,filedthe present recourse and he alleged that the sub judice decision was taken under a misconception of facts and law, that there has been no due 15 inquiry, and that the respondent commission exercised its discretion ina defective manner. Counsel for the applicant inhis written address alleged thatthe qualifications for appointmentwhich are required under s. 33 of the Public Service Law 1967 (Law 33/67), and intheinstant case the «good character» of the applicant,mustexistatthedateof the decision of theCommission oratleastatthetimeof therequest for thefilling of the post, and this by applying by analogy the ratio decidendi of the case Republic v. KaterinaPencleous,
(1984)3 C.L.R. 577. Pausing here for a moment,with respect to counsel for theapplicant,theratiodecidendiofthe«Pencleous»case isthat the first material date at which a candidate must possess the required qualifications inthecase of afirstentryandfirstentry and promotion post, is the last date of the period prescribed in the advertisement for the vacancy by which applications have to b " submitted; and in respect of promotion posts only, where no applications are made, inevitably it is the date on which the request for thefillingof avacancy unders. 17of thePublic Service Law, 1967, isreceived by the Commission. Be that as it may, he contended that the respondent 35 Commission considered as the material date whether the applicantis of «good character*neitherthedateof therequest for filling the post, nor the dateof therelevant decision. Hewent on to say that the respondent Commission wrongly took into consideration the disciplinary sentence of compulsory retirement <*0 2058 3 C.L.R. r , Liasides v. Republic KourHs J. which ΐοοκ μ.-.ΰ 12 years prior to the date of the sub judice decision and the conviction of the criminal offence which took place almost 3 years prior to the decision, and he submitted that the respondent Commission acted undera misconception of fact when they relied on thesaid two convictions in deciding whether applicant is of «good character» or not. in as muchas there was a legal opinion from the-Office of theAttorney-General thatthesaid offences did not involve dishonesty or moral turpitude,and cited the case otStavrides v. Republic.
(1985)3 C.L.R. 95. 10 The facts of the case of Stravrides differ from the facts of the present case and also the point inissuein the Stavrides case was different from the point in issue in the case in hand, and consequently, does not help us. I am of the view that the Public Service Commission in assessing the character of the accused 15 rightly took into consideration the disciplinary sentence of compulsory retirementwhich tookplace 12years priortothedate of the sub judice decision and the conviction of the criminal offence which took place almost 3 years prior to the decision, because these two offences reflect on the character of the 20 applicant. Aperson who isappointedas apublic officer should be of such acharacteras tobe trusted by theState and tobe.loyal to the State. Beanng inmind thenatureof thedisciplinary offence of the applicant. I think that the applicant lacked the characterso as to be trusted by the State.The Public Service Commission could 25 nothave taken intoconsideration thecharacterof theaccused for the last 3 years prior tothe decision and ignored his character for theyears before that. In the circumstances, it was reasonably open for the Public Service Commission to reach the decision that the applicant 31 lacked the qualification under s. 33(d) of the Public Service Law, 1967 (Law 33/67). With regard to the allegation that the decision lacked due inquiry,counsel allegedthattherespondentCommission failed to ask theapplicant toattend before themand make inquiries asto 35 his character, although his advocates in their letter to the respondent Commission, appendix 13, stated that applicant was available fortherespondentCommission togiveany explanations they might require. He also contended that the respondent Commission failed to examine on the date of the decision, 40 whether there were facts which could differentiate the position 2059 KoojrfeJ. LUside·v.Republic
(1987)existing as at 14.5.1984 when applicant was convicted by the DistrictCourtofNicosia,i.e.theyfailedtomakeinquiriesastothe characterofapplicantfrom 14.5.1984tillthedateoftheirdecision whichwason 11.7.
- CounselfortheapplicantcalledAndreasEvrypidou,whoisthe 5 Senior Technical Superintendent in the Water Development Departmentwhotestified thatin1983hepreparedreportsfor30 employees, including applicant; who were serving on a casual basisinthedepartment.HedidsoonthedirectionsoftheDirector oftheDepartment.Healsotestifiedthathewasoftheopinionthat 10 theapplicantwasofexcellentcharacterandwhenaskedwhathis opipjon would havebeen hadheknown thatthe applicant had twoconvictions,hisreplywasthathisopinion wouldhave been the same because he would have confined his opinion to the behaviouroftheapplicantattheoffice. 15 The applicant cannot complain tjiat the respondent Commission failed tomakeaninquiryas\Qhischaracterbecause ^ie was given evpry opportunity to supply the respondent Commission with all material regarding his character. This is apparent from the letter which is Appendix
- The applicant 20 instead of supplying the respondent Commission with material regardinghischaracter,chosetoinstructcounselwhoaddressed a letter to the respondend Commission and submitted the representationsoftheapplicantwhicharemainlyofalegalnature (see appendix 11). The applicant is to blame for his failure to 25 supplythe respondent Commission withanymaterialhewished with regard to his character. The evidence which the applicant adducedduringthehearingoughttohavebeenplacedbeforethe Authoritywhichtookthedecision.But,beaenginmindthenature oftheevidence adduced,Idonotthinkthatwouldaddanything 30 for the benefit of the applicant because it isthe opinion of his superiorintheWaterDevelopmentDepartment andconfinedhis opinionastothebehaviouroftheapplicantintheoffice.Whenhe wasaskedwhathisopinionwouldhavebeenifhehadknownof the offences of the applicant, hisreply was that he would have 35 been ofthesameopinionbecause hewould nothavetakeninto considerationtheoffencesoftheapplicantandthathewouldhave confined his opinion as to the character of the applicant with regardtohisbehaviourinthe office. 201)0 $C.L.R. UasMeev.RepvbBc feomtaJ. There has been much dispute about a report which was prepared in 1983 by Andreas Evrypidou, the Senior Technical Superintendent in the Water Development Department with regard to the applicant and the other employees serving on a 5 casual basisand which wasnotforwarded fortheconsiderationof the respondent Commission. It has been established beyond doubt that thisreport was prepared on the instructions of Lytras, the Director of the Water Development Department for his own use and for one year only. According to the evidence of Gavriel 10 DemosthenouswhoistheSeniorClericalOfficer andinchargeof the Registry of the Department, he kept the report in the office because there was no law or circular entitling him to forward it either to the Personnel Department orplace itinthepersonal file of the applicant. !5 In view of the above, Iam of the opinion that the respondent Commission carriedoutathorough inquiryintothe circumstances of thiscase before taking the subjudice decision. Lastly,counsel fortheapplicantcontended thatthe respondent Commission acting contrary to the law,and particularly contrary 20 to s 35
(1)of the law, failed to ask for the advice of the Advisory Board. It should be noted that the appointments to the post of Technician, Second Grade, in the Water Development Department was,in accordance withtheprovisionsofthe Casual Public Officers (Appointment to Public Offices) Law 1985, (160/ 25 85), where there is no provision for advisory boards. Consequently, alsothispoint falls. Inviewof theabove, I am bfthe opinion that itwasreasonably open for the Public Service Commission to reach the decision which they did, and the recourse fails and is dismissed with no 3° order forcosts. Recourse dismissed. No orderastocosts. Utfti