clr/1987/1987_3_288.pdf

(1987)1987March 20 [MALACHTOS J) INTHEMATTER OFARTICLE 146OF THECONSTITUTION GEORGHIOSKARAVIAAND OTHERS, Applicants, υ THEREPUBLIC OF CYPRUS,THROUGH THEPUBLICSERVICECOMMISSION , Respondent (CasesNo 242/80,251/80,252/80, 266/80and274/80) Public Officers — Promotions — Officers serving onprobation — Entitled to be considered for promotion Public Officers— Promotions — Confidential reports — Absence of— Doesnot preclude officer from being considered for promotion Public Officers — Promotions — Scheme ofservice — Interpretation of— The province of the appointing organ—Judicial control —Pnnciples applicable — Scheme of service forpost ofRegistrar in Department ofMedical Services requiring *expenence in one's specialization» — Expenence means practice in the field of specialization not necessanlyasaspecialist 5 Public Officers— Promotions — Qualifications —Matenal dateonwhich acandtdate mustpossessthe required qualifications — Itisthelastday fixed for rfie submission of applications for promotion 10 The applicants in these recourses seek theannulment ofthe decisionto promotetheinterestedpartiesinsteadoftheapplicantstothepostof Registrar in the Department ofMedicalServices, which isafirstentryand promotion 1 5 post The applicants complained that the respondent Commission disregarded their striking superiority over the interested parties, and that it wrongly exercised its discretion, especially as regards interested party Zambartas, who, astheapplicants alleged, didnotqualify ashelackedthe requiredbytheschemeofservicepracticeandexpenence andwho couldnot 2 0 be properly compared with the other candidates, as he did not have confidentialreportsand was on probation * Recourse 266/80 was withdrawn anddismissed on 24 1083 288 3C.L.R. Karavia & Others v. Republic The relevant partof the schemeof service requires «atleast twoyears expe­ nence after the acquisition of the degree ortitlefor spectalizaton oratleast six years expenence mhis specialization including the time spent for acquinng suchdegree or title of specialization» 5 10 Held,dismissingthe recourse

(1)Thereisnomentintheargumentthatan officer on probation cannotbe promoted (Leonidou ν TheRepublic

(1986)3 C LR 1647 adopted) The absence of a confidential report isnota factor precluding an officer from being considered for promotion {Frangos ν The Republic

(1970)3 C LR 312 at325 and Leonidou ν TheRepublic supra adopted) Inany event interested party Zambartas,being on probation,had no annualconfidential reports,butinstead he had six-monthly confidential reports inaccordancewiths 45

(2)of the PublicService Law 33/67 15 20 25

(2)The requirement of expenence is practice in one's speciality but not necessanly as aspecialist {Mettas ν TheRepublic

(1985)3 C LR 250 atpp 257 258 adopted) Theinterpretationof ascheme of service iswithin thedis­ cretion of the appointing organ and this Court will not interfere with such interpretation, if itwas reasonably open toit Therelevant dateonwhich the interestedparty Zambartasoughttosatisfy the requirementsof the schemeof service isthe 16 6 79,thelast dayspecified for the submission ofapplications {The/?epuWicv Pencleous

(1984)3 C LR 577atpp 585-586followed) In thisinstancetherewas evidence before theCommission toconcludethatthe said interestedpartysatisfied thesecond alternative of the scheme of service, thatis6years expenence, includingthe period of his training

(3)Inthelightof allmatenalplacedbefore theCourt,thisCourtreachedthe conclusion thatthe applicants failed to establish sinking supenonty over the interested party Recoursedismissed No orderas to costs Casesreferredto 30 Leonidou ν Ine Republic {1986)3 CLR 1647, Frangosν TheRepublic

(1970)3 C L R 312, The Republic ν Pencleous

(1984)3 CLR 577, Mettas ν TheRepublic

(1985)3 CLR 250, 35 Papapetrouν TheRepublic,2 RS C C 61, Constanhnidesv TheRepublic

(1984)3 C L R 643, Frangoullidesv ThePublicService Commission

(1985)3 C L R 1680 289 Karavta & Other* v. Republic

(1987)Recourses. Recourses against the decision of the respondent to promote theinterestedpartiestothepostofRegistrarintheDepartmentof MedicalServicesinpreference andinsteadoftheapplicants. E. Efstathiou, fortheapplicantinCaseNo.242/

1. R.Michaelides, forapplicantsinCasesNos.251/80and252/ 5
2. Chr. Demetriou(Mrs),forapplicantincase274/
3. G.Erotocritou (Mrs.), SeniorCounseloftheRepublic, forthe respondent. C.Adamides, forinterestedpartvNo.
4. M. KieopasforA. Triantafyllides, forinterestedpartyNo.
5. Cur. adv. vult. MALACHTOSJ. readthe followingjudgment. Bythepresent recourses, which were heard together as they attack the same administrative decision, the applicants seek a declaration of the CourtthatthedecisionoftherespondentCommissiontopromote 15 tothepostofRegistrarintheDepartmentofMedicalServicesthe interested parties insteadof the applicants, asfrom the 1stMay, 1980, published inthe official Gazette ofthe RepublicNo. 1610 dated 13.6.80,isnullandvoidandofnolegaleffect whatsoever. Thefactsofthecase,sofarasrelevantareasfollows: 20 The Director-General ofthe Ministry of Health byletterdated 18.4.79requestedthePublicServiceCommissionforthefillingof eight posts of Registrar inthe Department of Medical Services. ThepostofRegistrarbeingaFirstEntryandPromotionpostfrom the immediately lower post of Medical Officer, 1st Grade, was 25 accordinglyadvertisedand34applicationsweresubmitted,which wereplaced before theDirectorofMedicalServicesasChairman oftheDepartmentalBoard,togetherwiththerelevantschemesof serviceandtheConfidential Reportsofthecandidates,whowere allatthetimeintheGovernmentService. 30 The Departmental Boardrecommended on21.9.79,eighteen candidates—inalphabeticalorder—includingtheapplicantsand theinterestedparties. 290 3C.L.R. Karavta & Others v. Republic MalachtoaJ. Byletterdated 12.11.79addressed tothe respondent Commission, the Director-General of the Ministry ofHealth requested the fillingofonemorepostofRegistrar,whichhad become vacanton 6.8.
6. 5 Asitappears from the relevant minutes, the respondent Commission interviewed on 19,20,21 and 31March, 1980,thirty-one candidates inall,includingthose who were recommended by the Departmental Board. At its meeting of 21.4.80 the respondent Commission having 10 heard the views of the Director of Medical Services, considered the Personal Filesand the Confidential reports of the candidates. theirperformance atthe interview,includingtheirpersonality and intelligence, the recommendations of the Departmental Board, the qualifications required bytheScheme ofServiceandthe can15 didates'merit,qualifications, seniority and experience, concluded thatthe interested parties, namely,
7. D. Theoclitou,
8. A. Cleanthous,
9. A. Achilleoudi,
10. M. Angastiniotis,5.Y.Yiannaka,6.P.Nicolaidou, 7.C.Vamavas,
11. Gl. Ionides and
12. C. Zambartas, were on the whole the best 20 candidates and decided to promote them to the post of Registrar asfrom 1.5.
13. Asa result, the applicants, namely, G. Karavias (Case242/80), St. Michaelides (Case 251/80), M. Ioannides (Case 252/80), A. Christodoulides (Case266/80) and P.Pilides(Case274/80), filed 25 the present recourses. On 24th October, 1983recourse No. 266/80 wasdismissed as withdrawn inviewofawrittenapplication tothiseffect dated 17th September, 1983,signedbyboth counsel concerned. The basic grounds of law upon which these recourses were 30 based,arethattherespondentCommissionactedinexcessand/or abuse of powers, under a misconception of fact and exercised its discretion wrongly inthat itfailed toselectand promote the most suitable candidates. The main argument of the applicants is that the respondent 35 Commissiondisregardedtheirstrikingsuperiorityasregardsmerit, qualifications and seniority and promoted the interested parties 291 MalachtosJ. Karavla & Others v. Republic

(1987)instead of the applicants, they exercised their discretion wrongly acting thus in excess and/or in abuse of power especially as regards interested party Zambartas who, as they contended, did notqualify undertheschemeofservice,eitherforpromotion orfor first entry as he lacked the necessary practice and experience. 5 Furthermore, itwas contended thatnoproper comparison could be made of thisinterested party with the other candidates having no confidential reportsandbeing on probation. Inthe firstplace there isno meritinan argumentthatan officer onprobation cannotbepromoted; nowhere inthelawisprovided 10 that officers serving on probation are not entitled to promotion. (See Leonidas Leonidou v. The Republic, Case No. 556/84, judgment given on 25.9.86, notyet reported).* Furthermore, as correctly stated, interested party Zambartas being on probation at the relevant period, had no annual 15 confidential reports but instead· six-monthly confidential reports were submitted for him, as is provided by section 45

(2)of the Public Service Law 1967 (Law No.33 of 1967),for every officer who is serving on probation. However, the absence of a confidential report is not a factor precluding a candidate/officer 20 from being considered for promotion. See Andreas Frangos v. The Republic,

(1970)3 C.L.R. 312 at 325; Leonidou v. The Republic (supra). Proceeding nowtoacomparison betweenthecandidates, from aperusaloftheirconfidential reports,whicharebefore me,ittran- 25 spiresthatallpartieshavebeenratedasexcellentexceptapplicant KaraviaswhoappearseitherasVeryGood orGoodand interested party Nicolaidou, who appears asVeryGood in 1979but hasan excellent report for

1. As regards the recommendations of the Head of the Depart- 30 ment, which appear in the minutes of the meeting of the respondent Commission of 21.4.80, when the sub judice decision was reached, all interested parties have been described as excellent and have been recommended. ApplicantsPilidesandloannideshavealsobeenrecommended 35 but interested party Nicolaidou, specialist in Anaesthetics, was considered asbettertoPilides.ApplicantsKaraviasand Michaelidesdonotappeartohave been recommended. 'Spotted in0966)3CLR.
2. 292 3 C.L.R. Karavla & Others v. Republic MalachtosJ. It isalso recorded therein that interested parties Angastiniohs, Yiannaka, Zambartas, Theochtou and loanmdes and applicant Karavias, made an excellent impression, whereas interested parties Achilleoudi, Vamavas, loanmdes, Cleanthous, Nicolaidou 5 and Pilidesmade averygood impression Aiiregards qualifications, asprovided, interalia, inthe relevant scheme ofservice,the following isrequired 10 «For promotion Degree or Title of specialization obtained abroad and recognised bythe Medical Board of Cyprus,byvirtue of the MedicalRegistration Law At least two years expenence after the acquisition of the degree ortitleof specialization or, 15 At leart 6 years expenence in his specialization including the time spent for acquinng such degree or title of specialization» Allpartiessatisfy therequirements oftheschemeofserviceand anydifference asregardsthedateofacquinngtheirspecialization, isofnoconsequenceasitdoesnotcreateprecedenceofoneparty 20 overthe other, asithasbeen alleged on behalf of the applicants As regards interested party Zambartas, he obtained his basic degree inMedicine in 1972 and hisMRCP(UK)on 29
3. He registeredinCypruson 17 10 77andhisMRCPwasrecognisedas a specialisation bythe Medical Board ofCyprus on 18 1077 25 The argument of the applicants that he lacked the numberof years expenence specified in the scheme of service and that, therefore, he did not satisfy its requirements, must fail because from a perusal of the documents and evidence before me, it transpiresthathewasso qualified. 30 The relevant date on which he ought to satisfy such requirements, isthe 16thJune, 1979,the lastdayspecified inthe advertisement for the submission of applications. (See The Republicv. Pericleous

(1984)3C.L.R.577atpp.585 -6) The postinquestion, being alsoapromotion post, thisintere35 stedpartywasrequiredundertheschemeofservice,underoneof 293 MalachtosJ. Karavla & Others v. Republic

(1987)thealternatives,tohavesixyearsexperienceinhisspecialization, includingthetimespentforobtainingsuchspecialization.Asheld inMettasv. TheRepublic

(1985)3C.L.R.250atpp.257-8,the requirement ofexperience ispracticeinthefield ofhisspeciality but not necessarily asaspecialist.Andinthisinstancethere was 5 evidencebeforetherespondentCommissiontoconcludethatthe interestedpartydidhavethenecessaryexperienceasisrequired, ifone addsup.the periodofhistraining,whichisfrom February, 1973toJune,1979. Inanycasethepowerofinterpretingtheschemesofservice,is 10 withinthediscretionoftheappointingorganandthecourtcannot interfere, ifitwasreasonablyopentoit,asisthepresentinstance, todecideasitdid.(SeePapapetrou v.TheRepublic, 2R.S.C.C. 61, Constantinidesv.TheflepubJ/cU984)3C.L.R.643at652and Frangoullides v. ThePublicService Commission

(1985)3 C.L.R. 15 1680,where extensivereference totheCaseLawismadeatpp. 1684- 5). Finally, as regards seniority, interested parties Theoclitou, Cleanthous,Achilleoudj,AngastiniotisandYiannakaareseniorto allapplicants,havingbeenappointedpriortothemtothepostof 20 MedicalOfficer, 1stGrade. InterestedpartyNicolaidou,isjunioronlytoapplicantMichaelidesby.aboutfivemonths,who,inanycase,hadnotbeenrecommendedbytheHeadoftheDepartment. ThesameappliesalsoasregardsinterestedpartyVamava,who 25 isalsojunior toMichaelidesbyabout seven months.Asregards applicantPilides,heranksequal. InterestedpartylonidesisjuniortoapplicantsMichaelidesby2 1/2 years,Ioannidesbyabout21months,Pilidesby221/2 months and ranks equal to Karavias, but as already stated above 30 Michaelideshad not been recommended and special reasoning hasbeen giveninrespectofIoannidesandPilides. Finally,asregardsinterestedpartyZambartas,itisstatedtherein thatfromthoseselected, Zambartashasashorterservicebuton thebasisoftheexcellentgeneralpicturewhichispresentedbyhis 35 exceptionalqualifications, excellentreportsfromthehospitalshe 294 3 C.L.R. Karavla & Others v. Republic MalachtosJ. worked and the impression he made at the interview, he was considered thathewassuperiortothose candidatesnot selected. Intheresult,Ifindthatitwasreasonablyopentothe respondent Commissiontopromotetheinterestedpartiesinsteadoftheappli5 cants who failed to establish the striking superiority which is required inorder tojustify anyinterference bythe Court with the sub-judice decision under consideration. Therefore, these recourses fail and arehereby dismissed. On the question ofcostsI makeno Order. Recoursesdismissed. No orderastocosts. 295