3 C.L.R. 1987 March20 [SAWIDES J ] IN THE MATTER OFARTICLE 146 OFTHE CONSTITUTION NEOPHYTOS SAWA KIRNIS, Applicant, υ THEPEPUBLICOFCYPRUS,THROUGH THE PUBLICSERVICE COMMISSION, Respondent (CaseNo 402/85) PublicOfficers— Promobons—HeadofDepartment—Recommendations of — Cannot bedisregarded withoutproper reasons—Bias—Allegabonof — Ithas to be establishedto thesatisfaction of the Court 5 PublicOfficers— Confidential reports — When anofficerentitledtoan overall rabng of *very good* — The explanatory notes contained in the confidentialreports —An officerisentitledtosuch rabng, ifhehas been rated as *very good»inatleast eight items Public Officers— Promobons — Senionty — Should only prevail,ifallother factors areequal 10 Pubbc Officers— Promobons — Sinkingsupenonty —Anapplicant, in order to succeed, should establish such supenonty over theinterested parties The applicant in this recourse challenges the decision topromote the interestedpartiestothepostofAgriculturalSuperintendent 1stGradeinstead ofand in preference tohim 15 20 25 The applicant wassenior to theinterested partiesby about twoyears, but the latterwere better inmeritand had been recommended forpromotionby the Headofthe Department Applicant'squalifications were nothigherthan thoseofthe interestedparties 77ieapplicantcomplained, interalia, mat. (a)The Headofthe Department wasbiasedagainsthiminthathehad rejectedapplicant's requestsasregards applicant'stransfer duringtheyears1981-1984 Theonly evidenceadduced inthisrespectwerethreelettersaddressed bytheapplicanttotheHeadofthe Department explaining applicant's reasonswhy heshouldnotbetransferred, and (b)Thatintheconfidential reportfortheyear 1981,wheretheapplicant wasratedas<exceUent>inoneiteni,as>verygocKl»tnsixitemsarKla«<gcod>, infiveitems, hewas rated overall as«good», whereas, onaccount ofsuch 299 Klrals v. Republic
(1987)evaluation in respect of the particular items, he should have been rated as «verygood» Held, dismissing the recourse:
(1)Bias has to be established to the satisfaction oftheCourt. Havingperused thecontentsoftheaforesaid letters adduced bythe applicanttheCourtfound nothingtending toshowanybias on the partofthe Head oftheDepartment oranybody else. 5
(2)Theexplanatory notescontained intheconfidential reportsspecify that inorder foran officer tobeentitledtobe assessed as«verygood»,heshould have been assessed as«verygood»,inatleasteightitems.Inanyevent, even if the applicant had been assessed as «very good», the situation would not 10 have changed.
(3)TheCommission cannotdisregardtherecommendationsoftheHeadof the Department without proper reasons. Senionty should only prevail, ifall other factorsareequal,whichisnotthecasehere.Asithasbeenstressedtime and again foranapplicanttosucceed ina caseofthisnature,hehastoprove 15 striking superiority over the interested party. In this case the applicant has failed toestablish such supenonty. Recoursedismissed. Costs againstapplicant. Casesreferredto: 20 Christouv. TheRepublic
(1980)3 C.L.R.437; Charalambidesv.TheRepublic
(1985)3C.L.R.992. Recourse. Recourseagainstthedecision oftherespondenttopromote the interested parties to the post of Agricultural Superintendent, 1st 25 Grade, inpreference and instead ofthe applicant. St. Charalambous, forthe applicant. A Papasawas, Senior Counsel of the Republic, for tne respondent. Cur.adv. vult. 30 SAWIDES J. read the following judgment. The applicant challengesthedecision oftherespondentpublishedinthe official Gazetteof theRepublic dated 11.1.1985,whereby the interested 300 3C.L.S. Kiral·v. Republic SawldesJ. parties, namely Constantinos Constantinides and Andreas Magnitis, were promoted to the post of Agricultural Superintendents! Grade as from 1.12.84 instead of and in preference tothe applicant. 5 All parties concerned were holding, prior to the sub judice decision, thepostofAgriculturalSuperintendent 2nd Grade. Byletter of the Director- General of the Ministry of Agriculture dated the3rd May, 1§84,the respondent wasrequested tofilltwo vacanciesinthe post ofAgriculturalSuperintendent 1stGrade.In 10 view of the fact that the said post is a promotion post, the respondent sent a list of the names and the files of all officers serving in the post of Agricultural Superintendent 2nd Grade to the Departmental Committee which wassetup forthe purpose. By its report dated the 3rd October, 1984, the Departmental 15 Committee found thatonlythreecandidates,thatisthe interested. partiesand the applicant, satisfied the requirement of the scheme of service for three years' service in the post of Agricultural Superintendent 2nd Grade, and as a result recommended them for promotion. 20 After considering the report of the Departmental Committee, the respondent proceeded, atitsmeeting of22.11.1984, to make theselection forthe filling ofthepostsinquestion.Atthat meeting _the Head of the Department, who was present, stated the following: 25 «Constantinos Constantinides and Andreas Magnitis are recommended, because they are excellent officers. No one of the candidates possesses the additional qualification provided bythe Scheme ofService for the post». The respondent then, after considering 'the material in the 30 relevant files, selected, on the basis of the material before it, the interested partiesforpromotion tothe post in question. The respondent filed the present recourse challenging the aforesaid decision ofthe respondent. Counsel for the applicant raised, by his written address, the 301 SawldesJ. Kind·v.Repabttc
(1987)•following grounds: (a) The non-recommendation of the applicant by the Head of the Department was the result of bias by the latter against the applicant. (b)Thereportingofficer whomadetheconfidential reportofthe applicant for 1983wasbiased against him. 5 (c)The respondent wrongly relied on the recommendationsof the Head of the Department which were unfounded and unjustified. (d)The seniorityof theapplicant should have prevailed. 10 Insupport of hislegalgroundscounsel forthe applicant argued thatthe Head of the Department wasbiasedagainstthe applicant because the latter did not accept requests of the former for his transfer during the years 1981 - 1984 and the Director of the Department of Agriculture although when acting as chairman of 15 the Departmental Committee recommended the applicant, he failedtodosobeforetherespondent.Counselalsoarguedthatthe recommendations of the Director before the respondent were invalid and insufficient as he did not make any mention of the applicant or any comparison between him and the interested 20 parties,and the respondent should not have relied on them. With regard to the confidential reports, counsel argued that in respect of 1981 the applicant should have been rated as «very good»and not«good»asstatedinhisreport,inviewofthefactthat he was evaluated as«excellent» in one item, «verygood» in6and 25 «good»in5items.Healsoarguedthattheofficer whoreported on him in 1983wasbiased againsthim on account oftheir difference in political beliefs and as a result his report was not impartial. Counsel lastly contended that the applicant was by about two yearssenior tothe interested partiesand hisseniorityshouldhave 30 prevailed inviewofthe factthatthepartiesconcerned were more or lessequal inallother respects. Ithasbeen statedina numberofcasesbythiscourtthatbiashas to be established to the satisfaction of the Court. (Christou v. Republic
(1980)3 C.L.R. 437, 449; Owabmbldes v. Repubtic 35
(1985)3C.L.R.992,1006). 302 3 C.L.R. Kirnlav. Republic Sawtdes J. The only evidence adduced by the applicant in support of his allegation of bias on the part of the Director, were three letters, dated 11.5.81,27.5.83 and 2.5.84, addressed bytheapplicant to the Director, in which he was explaining the reasons why he did 5 not wish to be transferred. Ifind myself unable toagree with the submission of counsel inthisrespect, ashavinggone through the contentsofsuch lettersIfind thatthere isnothingtendingto show any bias either on the part of the Director or anybody else. No otherevidence wasadduced toestablish biaseitheronthepartof 10 the Director or the reporting officer for 1983.This contention of counsel should therefore fail. With regard to the allegation of the applicant that he should havebeen rated as«verygood»in 1981 instead of«good»,Ineed only refer to the explanatory notes contained in the confidential 1 15 reportsastothemodeofassessmentofratings,inaccordancewith which the applicant should have been assessed as«verygood»in atleast8itemsinordertobeentitledtobeassessedas«verygood» whichisnotthe case. Inany event, even iftheapplicantwasrated as «very good» in that year, this would not have changed the 20 situation, in view of the fact that the interested parties were rated as«excellent». It has been stressed, time and again by this court that for an applicant to succeed in a case like this, he has to prove striking supenority over the interested parties. It must also be borne in 25 mindthatthePublicService Commission mustpay due regard to the recommendations of the Head of the Department which cannot be disregarded without proper reasons and seniority shouldonlyprevailifallotherfactorsareequal.Withtheseinmind I shallnowproceed toconsider the subjudice decision. 30 The applicant and the interested parties were the only candidates found to satisfy the requirements of the scheme of service and were all recommended by the Departmental Committee in alphabetical order, without any special recommendation for any one of them. The Head of the 35 Department, who was also the presiding officer of the Departmental Committee,_ at-the meeting of the respondent 303 S a w i d e s J. Kinii*v. Republic
(1987)Committee dated 22 1184. recommended the two interested parties stating that they were both excellent officers The respondent, takingintoconsideration theabove recommendation as well as the other material before it. decided to adopt the recommendations of the Head of the Department The respondent also found that the interested parties had generally better confidential reports than the applicant and proceeded to statethat intheirthreelastreportsthe interested partieswere rated as«excellent»whilsttheapplicantas«good»intwoyearsand«very good» inone year only 5 10 It"isobviousfrom theabovethattherespondentdidnottakeinto account only the last three confidential reports, as contended by the counsel, butthewholecareer ofthepartiesfrom which itdoes not emanate in any event, that the applicant isin any way better than the interested parties On the contrary, the reports of the 15 interested partiesarebetterthan thoseoftheapplicant This factor coupled with the recommendation of the Head of the Department, which was in their favour, renders them better in merit than the applicant The contention of counsel for applicant than the recommendations of the Head of the Department were 20 insufficient isunfounded His recommendations, to which Ihave referred earlier, are clearasto whom he recommended and why and there isnothing more tosay Coming now to the factor of qualifications, the applicant possesses nothing more than a school leaving certificate. 25 Interested party Constantinides possesses a certificate of one year's attendance in the Agncultural School of Salonica and a threemonths'course on Extension MethodsandFertilizeruse,in Israel. Interested party Magnitis possesses certain certificates on Statistics.ItisprovidedbytheSchemeofServicethat «possession 30 ofaDiplomaorcertificateofanapprovedcollegeinAgricultureo/ in a subject relevant to the activities of the Department of Agriculurewillbeconsideredanadvantage» Therespondentatits meeting of 22.11.84 stated that although it could not decide whether the qualifications of the parties amounted to an 3 5 advantage under the scheme of service,, it found that the qualifications of the applicantwere not inany event higherthan those of the interested parties,a thingwhichisalsoobvious from the reference to their qualifications made above. In the circumstances, theseniorityoftheapplicantcannotprevailsince 40 304 3 C.L.R. Klmi. v. Republic Sawitles J. the interested partiesareclearlybetteratleast inmerit. On the basis of all the material before me, I find that it was reasonably open to the respondent to reach the sub judice decision inthelightofthe materialbefore it,whichwasindeed the 5 only proper one in the circumstances and I find no reason to interfere withit. Intheresultthisrecourse failsand isherebydismissedwithcosts againstthe applicant. Recourse dismissed withcosts. 10 305