clr/1987/1987_3_2071.pdf

(4)taken into consideration — Ground of annulment (Alvanis v. CYTA

(1985)3 C L.R. 2695 adopted). Public Corporations — Cyprus Telecommunications Authonty — Promotions — The Cyprus Telecommunications Authonty (Personnel) (General) Regulation. 1982 — Unqualified personnel — Whether promotion of such personnel should be made without companson with other qualified candidates — Question determined in the negative — Regs. 36

(7)(c). 54

(3)and 10

(9). Public Corporations — Cyprus Telecommunications Authonty — Promotions — The Cyprus Telecommunications Authonty (Personnel) (General) Regulations 1982 — Regs. W

(7)(a) and 10

(9)— Senionty — Not a factor thatcan be taken into consideration. Public Corporations — Cyprus Telecommunications Authority — Promotions — The Cyprus Telecommunications Authonty (Personnel) (General) Regulations 1982,Reg.24A.3 — Personnel Committee composition of. 20 Public Corporations — Cyprus Telecommunications Authonty — Section Head — Relevant regulations (The Cyprus Telecommunications Authonty (Personnel) (General) Regulations, 1982) do not provide (or any specialization within thepost. In view of the forthcoming promotions to the post of Section Head (Engineer I) (Technical Staff) the Personnel Committee met on the 30th 2071 TylHrides v. CY.T.A.

(1987)November 1985 to consider the matter The Committee selected three persons namely interestedparties4 5 and6 forthefillingofthree vacancies, under Regulation 54

(2)The recommendation about the said interested parties was made on the basis of Regulation 56

(7)(

1. c)The same Committee met again on the 7th December 1985 when it selected the first three 5 interested parties whom it recommended for the remaining three posts The General Manager of the respondent Authonty, by two separate decisions dated 29 1 1986 Nos 8/86 and 20/86 confirmedthe promotion of the interested parties to the post in question The applicants complained inter alia that 10
2. a)The confidential reports which were taken into consideration were not properly made in accordance with the provisions of Regulation 23

(4)in that theAdministrative Board oftherespondent didnottakeany decisionastothe form of the reportsand the officersresponsible for making them b) The promotion of interested parties 4 5 and 6 was made in 15 contravention of Regulation 54

(2)and that the promotion of the non qualified interested parties (Nos 4 5 and 6) without companson with the other qualifiedcandidates contravenes thepnnciples ofequality safeguarded by Article 28 of the Constitution c)Threeof the members ofwhich thepersonnel committeewas composed were holding lower posts to those held by the candidates contrary to Regulation 24 A 3 d)The respondents wrongly and contrary to Regulation 4

(3)(B)considered the vacancies as being vacancies in different branches and specializations The applicant was thus depnved of the opportunity of being specially compared with the interested parties Held, annulling the sub judice promotions

(1)All reports,concerningthe candidates, except the reportsof 1983, were made in contravention of Reg 23

(4)as declared in Alvanis ν CYTA

(1985)3 C L R 2695 Moreover the reports for 1985 were not beforethe Personnel Committee, when itdecided to recommendinterestedparties4 5and6 Lastlynothingismentionedtnthe minutes of the Committee as towhich reportswere taken into consideration or asto how the reportsbefore 1985were evaluatedby itandhow much they weighed in the minds of its members The reportsprevious to 1985 ought to have been disregarded It follows that the sub judice decisions must be annulled on this ground

(2)It does not emanate from theRegulations that promotions amongst the qualified and non qualified personnel should be made separately with no companson between them The fact that non-qualified personnel is also exceptionally eligible for promotion (Reg 56

(7)(c) and the factthat separate 2072 20 25 30 35 40 3C.L.R. 5 10 15 20 Tylllrideav.CY.T.A. lists are kept for them (Reg. 54

(3)) does not mean that they should not be compared for purposes of promotion with the other qualified candidates. Comparison betweenthemshouldbemadebearinginmindtheprovisionsof Regulation 10

(9)but the factor of qualifications should not be taken into consideration and thebestcandidate should be selected. Paragraph 7(a) of Regulation 10 provides that the personnel committee when considering promotions compiles lists of the candidates eligible for promotion according to grade. The criteria specified by para

(9)(a) are performance and efficiency in the service and actual suitability. In this case special weight wasattached tothe seniority of the candidates, which isnota factor enumerated in para. 7. No comparison between candidates appears. Thesubjudicedecisionsshould be annulled on thisground aswell.

(3)Sincetheofficers considered forpromotion inthepresentinstancewere already holding the post of Sub-Section Head, the Committee should have been composed ofmembersholdingpostsofSection Headandupwards.Itis notstatedanywhere that itwasimpossible tofind andappoint asmembersof Committee officers holdingsuch higherposts.Itfollowsthatinthiscase Reg. 24.A.3hasbeen contravened.Thisisanother ground of annulment. {4}There isnoprovisionintheRegulationsforanyspecialization withinthe post of Section Head (Technical Staff). Relevant inthisrespect isRegulation 4

(3)(B).This Regulation should be read together with Regulation 8(l)(B)(a). whichsetsdownthequalificationstobepossessedbyofficersholdingthepost of Section Head (Technical Staff) where nospecialization ismentioned. Subjudice decisionsannulled. Costsagainstrespondents. 25 Casesreferred to: Alvanisv.CYTA

(1985)3C.L.R.2695; Hadjitosifv. CYTA

(1986)3C.L.R. 1353; Tyllirides v.CYTA

(1987)3C.L.R.920. 30 Recourse. Recourseagainstthedecisionoftherespondenttoappointthe interested parties to the post of Section Head, Engineer I (TechnicalStaff) inpreference andinsteadoftheapplicant. A. S.Angelides, fortheapplicant. 35 A.Hadjiloannou, forthe respondent. Cur. adv. vult. 2073 TyUiride*v.CY.TJ\.

(1987)SAWIDES J. read the following judgment. The applicant challenges, by this recourse, thevalidity of thedecision ofthe respondenttopromotetheinterested partiestothepostofSection Head, Engineer I (Technical Staff) (Τομεάρχης)instead ofandin preference tohim. 5 The interested parties are:

(1)Michael Michaelides,

(2)Michael Andreou,

(3)Haris Kyrmitsis,

(4)Nicolaos Economides,

(5)Andreas Kyriakides and

(6)Nicos Soutsos. In fact the sub judice promotionswereeffected bytwo separate decisions both signed bythe General Manager ofthe respondent on 29.1.

1. Interested parties 1, 2 and3 were promoted by 15 decision No. 20/86 whilst interested parties Nos 4, 5 and6by decision No. 8/
2. The applicant holds thepost ofSub-Section Head (EngineerII) {Technical Staff), (Υττοτομεάρχης),apost which was alsoheldby the interested parties at thematerial time before thesubjudice 20 decision. In view of the forthcoming promotions tothepost of Section Head (Engineer I) (TechnicalStaff), thePersonnelCommitteemet on the 30th November, 1985, to consider the matter. The Committee selected threepersons, namely, interested parties4,5 25 and 6 for the filling of three vacancies, under Regulation 54

(2). The recommendation about the said interested parties wasmade on thebasis of Regulation 56

(7)(c). The same Committtee met again onthe 7th December, 1985, when itselected thefirst three interested parties, whom itrecommendedforthe remaining three 30 posts. The General Manager of the respondent Authority, by two separate decisions dated 29.1.1986, Nos 8/86 and 20/86 confirmed thepromotion of the interested parties tothe postin question, Ν The applicant filed the present recourse against the above decisions. Originally there wasanother applicant challenging the same decisions by thesame recourse,who,however, withdrew his 2074 10 3 C.L.R. Tyllirides v.CV.T.A. S a w i d e sJ . recourse before theaddresses of counsel were filed, inview of the fact thathe had been promoted in themeantime Thearguments of counsel for theapplicantmaybe summarised as follows 5

(1)The confidential reports, which form part of the files of the candidates and were taken into consideration by the respondent, were not properly made in accordance with the provisions of Regulation 23

(4)in that, the Administrative Board of the respondent did nottake any decision as tothe form of the reports 10 andtheofficers responsible for makingthem Inthecase ofAlvanis ν CYTA

(1985)3 C LR 2695, promotionswere annulled onthe same ground

(2)(a) The promotion of interested parties 4,5 and 6 was made in contravention of Regulation 54

(2)which provides that 15 "exceptional» promotions, on the basis of that Regulation, to the subjudice post,canonlybe madeintheproportionof 10percent, which, inthepresent case,wouldjustify thepromotionof only one person Further,that no inquiry was made as to whether the said interested parties possessed the «matenal qualifications which 20 would guarantee successful discharge of the duties of supenor employees» (b) That the promotion of the non-qualified interested partes (Nos 4, 5 and 6), without companson with the other qualified candidates, contravenes the pnnciple of equality safeguarded by 25 Article 28 of the Constitution Also, that the promotion of the qualified interested parties (Nos 1, 2 and 3) was made in contravention of the provisions of Regulation 10

(7),

(9)and

(3)Three of the members of which the personnel committee 30 was composed, were holding lower posts to those held by the candidates, contrary toRegulation 24 A 3 and,also, five outof its six members had no personal or direct knowledge of the duties, responsibilities and performance of the candidates at work

(4)The respondents wrongly and contrary to Regulation 4

(3)B 35 considered the vacancies as being vacancies indifferent branches and specializations The applicant was thus depnved of the opportunity of being specially compared with the interested parties -075 Sawtdes J. Tyillride· v.CY.T.A.

(1987)Starting with the first ground Regulation 23

(4)of the Cyprus Telecommunications Authority (Personnel) (General) Regulations, 1982, provides that progress reports should be prepared every year in respect of each employee as well as promotion reports about those employees entitled to be 5 considered for promotion. It is provided further, by the same Regulation,thattheAdministrative Boardshoulddecideaboutthe said reports as well as about the organs appropriate for their preparation. No decision was taken until 1985. by the Administrative Board, regarding either the form and contents of 10 the reports or astowho istheproper personto make theminany specific instance. Nevertheless, reports were made, until then, presumably on the basisof instructions given by superior officers of theAuthority. Asaresult,PikisJ. in hisjudgment in the caseof Alvanis v. CYTA. (supra) annulled the promotions challenged on 15 the ground that the promotions were based on the said reports which were prepared outside the context of any decision of the Board, contrary to Regulation 23

(4). An appeal was filed by the Authority against the above decision, which was,however, later with-frawn. The sameview wasalso taken byStylianides J.inthe 20 caseof Hadjilosifv. CYTA

(1986)3 C.L.R. 1353,1358. It is stated in the minutes of the meeting of the Personnel Committee, which isapreparatory step to the finaldecision, that the personal filesofallthecandidatesforpromotion totheabove post were put before itandconsideredby it.The progressreports 25 of the candidates are part of the material in the said files. All reports,except thelastone,for 1985,weremadein contravention of the Regulations {Regulation 23

(4)), as declared in the case of Alvanis v. CYTA (supra) which I adopt in this respect. The last report in the files of each one of the interested parties and the 30 applicant,wasmadeafter thejudgment intheAlvanis case,upon instructions given to the officers responsible for makingsame, on the 12th November, 1985, pursuant to a decision taken by the Board of the Authority to this effect, in accordance with the provisions of Regulation 23

(4).Oneofthesereportswasstamped 35 on the27th November, four onthe2ndDecemberandtwoonthe 3rd December 1985. The meetings of the Personnel Committee 2076 3 C.L.R. T V Ulride«v.CY.T.A. SawtdesJ. on which the sub judice promotions were considered and the recommendations were made,tookplaceonthe30th November. and the7thDecember, 1985.Thisshowsthatthelastreportsofthe parties which were the ones made in accordance with the 5 Regulations, were notbefore the Personnel Committee at itsfirst meeting when it decided to recommend the last three interested parties. Moreover, nothing is mentioned in the minutes of the Committee astowhichreportsweretaken intoconsideration oras to how the reports before 1985 were evaluated by it and how 10 much they weighed in the minds of its members. The only argument advanced by counsel for the respondent on this point was that the Alvanis case is under appeal. Asmentioned earlier. however, the appeal was later withdrawn. Iwish also to make reference to the decision of PikisJ. inthe case of Tillirides v. The 15 Cyprus Telecommunications Authority delivered on the 5th May, 1987,(stillunreported)*inwhichheheldthatthereports previous to 1985 ought to have been disregarded, with which I agree. I therefore find that the sub judice decisions must be annulled on this ground. 20 Regarding ground 2(b), Regulation 56

(7)(c) provides that personnel in the service of the Authority before 1955 and not possessing the minimum qualifications required by Regulation 8 and theschemesofserviceinforcebefore 13.5.1972 iseligible for promotion, provided the Authority is satisfied that he is in a 25 position toperform adequately the duties of the new post. Regulation 54

(3)provides that separate listsshould be keptof the qualified and non-qualified higherand highest personnel. Regulation 10makesprovisionfortheproceduretobe followed in effecting promotions and the material tobe considered for the 30 purposes. It does not emanate from the Regulations that promotions amongst the qualified and non-qualified personnel should be made separately with no comparison between them. The paramount consideration of an appointing organ should be the 35 selection of the best candidates. The fact that nonqualified personnel isalsoexceptionally eligiblefor promotion and the fact thatseparate listsarekeptforthemdoesnotmeanthattheyshould not be compared for purposes of promotion with the other * Reportedm(l<Xi7);tCL.R 'rJti 2077 Sawides J. TyUlridesv. CY.T.A.

(1987)qualified candidates. Comparison between themshould be made bearing inmindtheprovisions of Regulation 10

(9)butthefactorof qualifications should notbe taken intoconsideration and the best candidate should be selected. Paragraph

(7)(a) of Regulation 10 provides that the personnel committee when considering promotions compiles lists of the candidates eligible for promotionaccording to grade. 5 Paragraph

(9)specifies the criteria that should be taken into consideration ineffecting promotions.These areperformance and efficiency intheserviceandactualsuitability- Itisevident from the 10 contents of the sub judice decisions that special weight was attached to the seniority of the candidates which is not a factor enumerated in paragraph 7 of Regulation 10. No comparison between candidatesappearsandnootherreasoning isgiveninthe minutes of the respondent showing how and why the interested 15 parties were found to be the best candidates for promotion. I, therefore find that the sub judice decisions should be annulled on thisground as well. The next ground I am going to consider is ground 3, thatis,the one referring to the composition of the Personnel Committee. I 20 have already referred to thearguments of counsel for applicantin this respect. Counsel for the respondent, adopting his address in Case No. 234/86, which was directed against the same promotionsbutwas laterwithdrawn, stated thatRegulation 24.A.3 was applied and continued as follows:«Είναι φανερόνότι το Συμβούλιονσυνεττληρώθη υ π ό τίνος π ο υ δενείχεβαθμόν ανωτέρου, δεν ήτοδε ανάγκη να αναφερθείεις τοπρακτικόν.» (It is obvious that the Committee was supplemented by someone who did not hold a higher post and it was not 30 necessary to mention this in theminutes). Ifind itimpossible toapprehend the meaning of thisremark of counsel, but inany event I willj)roceed to determine the issueon the material before me disregarding this remark. In accordance with the provisions of Regulation 10

(5)(

1. b)the 35 selection for the sub judice promotions is made by the Personnel Committee. Regulation 24.A.1 provides that the Personnel Committee is constituted as follows: 2078 3 C.L.R. TyUlrides v.CY.T.A. S a w t d e · J. «α) Εκ τριών υπάλληλωντ ο υΑ ν ω τ ά τ ο υ η Ανωτέρου Προσωπικού οριζομένων μετά των αναπληρωτώντων υπό του Γενικού Διευθυντού, εξ ων εις ορίζεται ως Πρόεδρος. 5 10 6) Εκ τριών υπαλλήλων μετά των αναπληρωτώντων υποδεικνυομένων υπο της Ενιαίας Οργανώσεωςτ ο υ Προσωπικού της Αρχής και διοριζομένων υπό τ ο υ Γενικού Διευθυντού.» *((
2. a)By three officers of the Higher Personnel appointed with their deputies by the General Manager, one of whom is appointed asChairman (
3. b)By three officers with their deputies indicated by the General Union of the Personnel of the Authonty and appointed by theGeneral Manager» 15 Regulation 24 A3 further provides «3. Κρινόμενουυπαλλήλου φέροντος βαθμόν ίσον η ανώτερον προς τ α υπό στοιχεία 1. «α» και «6» μέλη, μέλη ορίζονται κατά τ ο δυνατόν, έχοντα βαθμόν ανώτερον.» 20 (When an officer is considered (for promotion) holding a post equal or higher to those held by the members under*a' and 'b', holders of higher posts as far as possible are appointed as members) It is obvious from the minutes of the meetings of the Personel 25 Committee dated 30 11 85 and 7.12 85, in which the sub judice promotions were considered thatthis Committeewas improperly constituted, in contravention to Regulation 24 A 3 Since the officers considered for promotion in the present instance were already holding the post of Sub-Section Head, the Committee 30 should have been composed of members holding posts of Section Head and upwards As it is stated in the said minutes, two of the members of which the Committee was composed were holding the post of Sub-Section Head, and one of them the post of Inspector which is a lower post to the one held by the officers 35 whose promotion was under consideration It is not stated anywhere thatitwas impossible tofind andappointasmembersof the Committee other officers holding higher posts. This clearly contravenes Regulation 24 A 3 As a result, I find that the sub judice decisions must be annulled on thisground as well. 2079 SawidesJ. TyUlride· v.CY.T.A.

(1987)Regardingground 4,thereisnoprovisionintheRegulationsfor any specializations within the post of Section Head (Technical Staff). Relevant inthisrespectisRegulation4

(3)B.ThisRegulation should be read together with Regulation 8(l)B(a)t. which sets down the qualifications to be possessed by officers holding the 5 post of Section Head (Technical Staff), where no specialization is mentioned. No other material was produced, such as schemes of service, defining any specializations or indicating whether promotions to the sub judice posts should be made according to specialization. 10 On thematerial before meIfindthattherespondent misconceived the Regulations in this respect. Allcandidates holding the postof Sub-Section Head shouldbeequallyeligibleforpromotion. Inthe circumstances the correct course would have been for the respondent to select first the best candidates for promotion 15 applying Regulation 10

(9)and then to post them in the various services after taking into consideration their qualifications, capabilities and experience. Inthelightof myfindingsasabove,Ifind itunnecessary todeal with the other issues raised. 20 Inthe resultthisrecourse succeeds and thesubjudice decisions are hereby annulled with costsagainst the respondent. Sub judice decision annulled Costsagainst respondent. 2080 25