(1987)1987January4 [TRIANTAFYLLiDES Ρ] INTHE MATTEROFARTICLE 146OF THE CONSTITUTION CHARALAMBOSANTONIADES, Applicant, ν THE REPUBLIC OFCYPRUS,THROUGH THE PUBLICSERVICE COMMISSION, Respondent (CaseNo 291/83) Public Officers — Promotions — Departmental Boards — Composition of— The Circular containing the arrangements relating to the functioning of such Board — Filling of a vacancy in a department, not in a Ministry — Composition regulated bypara 1(b),not para 1(a) of the Circular Public Officers — Promotions — Irregulanties — Considenng in breachofpara 7 of the Circular containing arrangement for the functioning of the Departmental Boards ofadditional candidatesto thoserecommended by the Board—As no-one of such candidateswasamong theinterestedparties, the irregulanty isnot material— Confidential reports of one of interestedpartie* not beforeDepartmental Board—Irregulabry ofaminor nature, cured bytne fact thatthe Commission had before itsuch reports Public Officers — Promotions — Departmental Boards — Confidential reports for a particular year not yet prepared — Whether Board can take into consideration the performance of candidates dunng such year — in the circumstancesquestion answeredm theaffirmative 5 \Q *•& By means of this recourse the applicant impugns the validity of the promotionsofthe interestedparties tothe postofSenior Warder The interested parties were among those recommended by the Departments] Board, whilst the applicant was not In addition to those recommended as aforesaid, the Commission decided to consider five additional candidates. Neither the applicant nor the interested parties were amongthose five persons 2154 20 3 C.L.R. Antonlade· v. Republic Held, dismissing the recourse
(1)The recommendations of the Departmental Committee and the sub judice decision of the respondent Commission are partsof a composite administrative process 5 2)Thedecision toconsider forpromotionthefivecandidates,whohadnot been recommendedby theDepartmentalBoard,was contrary to paragraph
(7)of the Circular containing theadministrative arrangements governing the functioning of DepartmentalCommittees,but the irregulanty isnotmatenal. because the three interested parties were not among those additional five candidates 10 3) The fact that the Departmental Board did not have before it the confidential reports file in respect of interested party loannou is a minor irregulanty which was completely cured by the fact that, later on, the respondentCommission hadbefore ittheconfidential reportsfiled inrespect of loannou.too 15 4)As thepresentcase involvedthefillingof avacancy inaDepartment(the Central Pnsons) and not in a Ministry, thecomposition of theDepartmental Board is regulated by para 1(b). and not. as suggested by counsel for applicants, by para 1(a)of the aforesaid circular 20 5) Notwithstanding the absence of confidential reports for 1982, the Departmental Board, which consisted of officers supenor to those considered,couldnotignoretheperformance of thecandidatesfortheyear 6) The complaint that the Departmental Board diu not act in an advisa ' capacity,but ina bindingmanner,is unfounded 25 7) Though the applicant was senior to the interested parties, it was reasonably open to the Departmental Committee to prefer the interest d parties,because of theirbetter confidential reports Recoursedismissed No orderastocosts Casesreferredto 30 Mtchaeloudesν TheRepublic
(1979)3 C LR 56, loannouv TheElectncityAuthontyofCyprus
(1981)3CLR 280; Agrobsv TheElectncityAuthonty ofCyprus
(1981)3 CLR 503 Recourse. Recourseagainstthedecisionoftherespondenttopromotethe interested parties to the post of Senior Warder of Prisons in preference andinsteadof theapplicant. A.S.Angelides, fortheapplicant. 2155 Antonlades v. Republic
(1987)R. Gavrielides, Senior Counsel of the Republic, for the respondent. Cur. adv.vult. TRIANTAFYLLIDESP. readthefollowingjudgment. By means of thepresent recourse theapplicantischallenging thedecision of 5 therespondentPublicService Commission topromote,insteadof him, interested parties A. loannou, Α., Makkoufis and A. Panayiotou tothe post of Senior Warder of Prisons. The post of Senior Warder isa promotion post. A Departmental Committee,"under the chairmanship of the 10 Director of Prisons, met on 6 December 1982 and, having considered ninety-six Prison Warders in relation to the filling of three vacant posts of Senior Warder, it decided to recommend twelvePrisonWarders for promotion,amongstwhom wereallthe interested parties, but notthe applicant. 15 On23 December 1982 theDirectorofPrisons,inhiscapacity as Chairman of the DepartmentalCommittee, informed the Public Service Commission that eight out of the remaining eighty-four had not been recommended because they did not possess the required qualifications and that the remaining seventy-six 20 candidates, though they were qualified for promotion, were not recommended because they were inferior to those recommended. The respondent Commission at its meeting on 19 April 1983 decided to consider, together with those recommended,another 25 five candidates,amongst whom was nottheapplicant. The sub judice decision to promotethethree interested parties was reached by the Commission on 29 May 1983. Counsel for the applicant has mainly complained against the part of the administrative process which was conducted by the 30 Departmental Committee,because the respondent Commission failed to consider the applicant as a candidate eligible to be promoted due to the fact that he was not recommended by the Departmental Committee.Counsel for the applicant has argued, in mis respect, that the whole process constituted a composite 35 administrative action and,therefore, if any part thereof, which is a prerequisite of the final act, is invalid it renders all acts which 2156 3C.L.R. s Antonlade»v.Republic TriaatafyUide·P. follow, including the sub judice decision, null and void, aiiu reference was made, interaha,toMichaeloudes ν TheRepublic,
(1979)3CLR 56, 71,72, loannou ν TheElectncityAuthonty of Cyprus,
(1981)3 C LR 280, 299 and Agrotts ν TheElectncity Authonty of Cyprus,{1981)3 CLR 503,513 I do agree that the recommendations of the Departmental Committee and the sub judice decision of the respondent Commission are parts of acomposite administrative process The first issue raised by counsel for the applicant was that the 10 decision of the Commission to consider as candidates for promotion another five Pnson Warders, in addition to those recommended by the DepartmentalCommittee,was contrary to paragraph
(7)of the Circular containing the administrative arrangements governing the functioning of Departmental 15 Committees It is true that the second proviso to the said paragraph
(7)empowers thePublicService Commissiontocallfor interview any candidate not recommended by a Departmental Committee whom it considers as suitable, or to advertise afresh a vacancy 2() only in case those recommended by a DepartmentalCommittee are not considered as suitable for appointment or promotion by theCommission Thiswas notthesituation inthepresent instance and, therefore, the decision of the Commission to consider five additional candidates was an irregulanty, but I cannottreat itas a 25 matenal one leading to the annulmentof the sub judice decision oecause the three interested parties were not among those additional five candidates It has been further contended by counsel for the applicantthat the DepartmentalCommitteehas failed tocarry outadue inquiry 30 because atitsmeeting on6 December 1982 itdid nothave before it the confidential reports file in respect of interested party loannou, which atthattimewas at theAttorney-General's Office 35 In my view this is a minor irregulanty which was completely cured by the fact that, later on, the respondent Commission had before ittheconfidential reports file inrespect of loannou,too Ithas been, also, submitted on behalf of the applicant thatthe composition of the Departmental Committee was not in accordancewith paragraph (l)(a)of therelevant Circularinthatits Chairmanwas nottheDirector-Generalofthe MinistryofJustice 2157 TrUatafyOMe·P. Antooladeav.Republic
(1987)The said paragraph (l)(a) isnot, in my view, applicable in the present case because it relates to the filling of a vacancy in a MinistryandnottothefillingofthevacancyinaDepartment, such as the Central Prisons, which comes underthe Mimstryof Justice andtothiscaseitisparagraph(l)(b)oftheaforesaid Circularwhich 5 isapplicable. Counsel for the applicant has complained, also, that the Departmental Committee in submitting a list of those recommended by it for promotion by the Public Service Commission wasnotactinginamerelyadvisorycapacity,butina 10 binding manner, contrary to the relevant legislative provisions and, particularly, contrary tosection 5 of the Public Service Law, 1967 (Law33/67). In my opinion this complaint isunfounded. Itisperfectly clear from all the materia' before me that the respondent Commission 15 . decided topromotethethreeinterestedpartiesbyexercisinginan entirely unfettered manner its relevant discretionary powers and thisisamply shown, too,bythe fact thatinthisparticularcase the Commission decided toconsider fivemorecandidatesinaddition tothose recommended bytheDepartmental Committee. 20 Counselfortheapplicanthascontendedthattheseniorityofthe applicant over those recommended for promotion was wrongly disregarded bythe Departmental Committee. Also,that theperformance ofthe candidates in 1982 could not have been taken intoaccountbytheDepartmental Committee a» 25 the confidential reports in respect of that year had not yet beer> prepared. Seniority isonlyoneofthefactors tobetaken intoaccount and inasmuch astheconfidential reportsfortheinterestedpartieswere better than those for the applicant itwas reasonably open to tht» 30 Departmental Committee to prefer theinterested parties. Moreover,theperformance ofthecandidatesin1982couldnot be ignored by their superiors who were members of the Departmental Committee. Ihave dealtwithalltheissueswhichwereraisedbycounselfor 35 the applicant and which appeared to have merited specific mention in this judgment. There were, also, raised some other minor issues to which 1need not refer irrparticular as Ihave not found them tobe of ever,prima facie significance. 2158 3 C.L.R. Antonlades v.Republic Triantafyfllde· P. Inthe light of allthe foregoing the present recourse fails andit isdismissed accordingly;but withnoorderas toitscosts. . Recourse dismissed. No orderastocosts. 2159