clr/1987/1987_3_321.pdf

(1)5 10 15 Revocabon ofanadministrative act—Promotions ofPublic Officers—Revoked on account of failure by the Head ofDepartment to takeinto accountarelevant fact in making his recommendations — New decision — No obligation to issue an identical decision astheone revoked Public Officers— Promotions — Confidential reports — Reporting officer— Not imperative to have direct knowledge on every particular concerning his subordinates, buthemaygatherinformation from anyotherproper source— Particularly when subordinates are not working within same premises but spreadout in different areas due tonature of their work Public Officers—Promotions—Senionty—Senionty and 11/2 months — Too short to bearany weight rangingbetweentwoweeks Public Officers— Promotions — Senionty—It doesnot prevail, if otherthingsare not equal 20 These recoursesare directedagainst the promotionsofthe interestedpar ties to the permanent post of Forest Officer in the Department of Forests insteadofthe applicants On 17 12 82therespondentCommission,having consideredthematteron thebasisofthematerial beforeit,decidedtopromote36ofthecandidatesto 321 Payatsoa v. Republic

(1987)thesaidpost,butasitwassubsequently informed bytheHeadoftheDepartment thatthelatter, inmakinghisrecommendations,whichwereamongthe factorstakenintoconsideration inreachingthesaiddecision,didnottakeinto accountthefactthatuntil31 12SOcertainofthecandidateswereholdingthe post of Forest Ranger,whichearned heavier dutiesthan thepost ofForester (renamed asfrom 1181toForestRanger)heldbyothercandidates,andthat ifsuch afact hadbeentaken intoaccount,therecommendationswouldhave been different, theCommissionrevokeditssaiddecision,consideredthematterand reached thesubjudicedecision 5 Thegroundsoflawuponwhichtheserecoursesarebasedarethefollowing, 1 0 namelythatthe Commission failed toselect thebestcandidate andthatinterestedpartyAlexandresKypnanides,whowasnotrecommended,waswrongly promoted inview of his conviction for common assault by a Court, his promotion being contrary to s44{l)(d) of the Public Service Law,33/67 It mustalsobenotedthatsomeoftheapplicantsarguedthattherewasanmcon- 1 5 sistency between the decision of the 17 1282 and the subjudice decision, andthattheapplicantsinCase215/83complainedthatthemannerofprepanng theirconfidential reportswascontrarytoLawandtoCircular491inthat theywerenotassessedbytheappropnatereporting officer Held,dismissingtherecourses

(1)Thereisnoobligationon thepartofthe administration toissueanidenticaldecisiontotheonealready revoked 20

(2)Common assault is not an offence involving dishonesty or moral turpitude or amounting to neglect of duty and, therefore, interested party Kypnanides wasnot liable to disciplinary proceedings unders73

(1)ofLaw 33/67 Asinaccordance withs44(l)(d)ofLaw33/67 apublicofficer isprec- 2 5 hided forpromotion, ifhehasbeenpunished for anydisciplinary offence of a senous nature dunng the two years prior to the intended promotion, the conviction for commonassauhwasnghtrynottaken intoaccount

(3)Theconfidential reportsforapplicantsinCase215/83werepreparedby anofficer, who,beingtheDivisionalForestOfficer andinchargeofthesection 3 0 inwhichtheapplicantswereemployed,wasentitledtopreparetheirreports Itisnot imperative for areportingofficer tohavedirect knowledge on every particular inrespect ofhissubordinates, buthe maygather information from anyotherpropersource,particularlyincaseswheresuchsubordinatesarenot working within the samepremises,butarespread outindifferent areas,due 3 5 tothenatureoftheirwork

(4)Thoughtheconfidential reportstakenintoconsideration concernedthe perioduptoandincluding 1981,therewasnothingwrongfortheHeadofthe 322 3C.L.R. Payatsos v. Republic Department to take into account, in formulating his recommendations, the ^ performance of thecandidates in 1982

(5)Thesenionty of applicant Payatsos (Case 178/83)cannotprevail, asall other thingswere notequal inmew of better mentof theinterested parties 5 10

(6)The interested parties in Case 205/83 were much senior to applicant Pavlides though the latterwas betterinment butwas notrecommended for promotion Inthelightofsuch facts itwas reasonably opentotheCommission toselect the interested parties

(7)Applicant Gregonou (Case206/83)was senior totheinterested parties by onemonth Such senionty istooshort tobear weight and inany event as the interested parties were better inment,could notprevail, other thingsnot being equal 15

(8)Applicant Kypnanou (Case 212/83)was by far senior totheinterested parties,who,however, werebetterinment,whereas,asregards qualifications some of theinterested parties hadbetterqualifications andsome othersequal qualifications with applicant's qualifications Itfollows thatapplicant's senio ntycannotprevail, otherthings notbeing equal 20

(9)The senionty of applicant Solomonides (Cases 213//83)as regards all interested parties except one,who was hissenior, ranging from two weeksto 1 1/2 months,istooshorttobearanyweightandinany event, inviewofbet ter ment of the interested parties, could not prevail, other things not being equal 25

(10)Thesenionty of applicants Kallmosand Charalambides(Case215/83) oversome of theinterested parties (twoweeks)istooshorttobearanyweight and inany event could notprevail as.mviewof bettermentof the interested parties,other thingswere not equal

(11)Itshould be emphasized thatall interested parties except Kypnanides were recommended for promotion by the Headof the Departmentandthat inthecase of Kypnanides special reasons weregiven for promotinghim 30 Recoursesdismissed No orderastocosts Casesreferredto Stavndes ν The Republic

(1985)3 C L R 95. Chrysochos ν TheRepublic

(1985)3C LR 78 323 Payatsos v. Republic

(1987)Recourses: Recourses against the decision of the respondent to promote the interested parties to the post of Forest Officer in the Department of Forestsinpreference and instead ofthe applicants. G. Triantafyllides, for applicant inCase No.178/

1. E.Lemonaris, forapplicants inCasesNos.205/83 and 206/
2. 5 K.Michaelides, forapplicants inCase Nos.212/83 and213/
3. M. Christofides,for applicant inCase No.215/
4. N. Charalambous, Senior Counsel oftheRepublicfor therespondents. Cur.adv. vult. 10 MALACHTOS J. read the following judgment. Bythe present recourses, which were heard together as they attack the same administrative decision, the applicants seek a declaration of the Courtthatthe decision oftherespondent Commission, published 15 inthe Official Gazette ofthe RepublicNo 1847dated 11.3.83,to promote the interested parties to the permanent post of Forest Officer in the Department of Forests, instead of the applicants,is nulland void and of no legaleffect whatsoever. 20 Therelevantfacts of thecasearethe following: On 26.3.82 the Director-General of the Ministry of Agriculture andNaturalResources requested the approval of the Ministryof Finance for the filling of 39 vacant posts of Forest Officer in the Department of Forests. The post of Forest Officer being a 35 promotion post, the respondent Commission inaccordance with section 36 of the Public Service Law 1967 (Law 33 of 1967) decided thatlistsofthecandidatesforpromotionbeprepared and sent to the Departmental Board together with their confidential reportsand the relevantscheme ofservice. 30 Atitsmeeting of 6.11.82 the respondent Commission decided thatasaresult ofthe proposed promotions tohigherposts,«only one of four posts of Forest Officer could be filled by a supernumerary promotion. Therefore, the postsof Forest Officer which cannow be filled are36, thatis,27 vacantpermanent (25 324 3 C.L.R. Payatsos v. Republic Malachtos J. of the Ord. Budget and two of the Dev. Budget), 8 which may possiblybevacatedafterpromotionsandoneSupernumeraryto aPermanentpost(ordinarybudget)ontemporarybasis». On4.11.82thereweresenttotheDepartmental Boardonthe 5 basisofsection36ofLaw33of1967,listsof146candidates,their confidential reportsandcopiesoftherelevantschemeofservice. TheDepartmental Board meton23.11.82andfound that137 candidatessatisfiedtherequirementsoftheschemeofservice,and onthebasisofmerit,qualificationsandseniorityrecommended72 10 assuperiortotheremaining
5. The respondent Commission met on 4.12.82 and taking into accounttherecommendationsoftheDepartmentalBoardandthe othermaterialbefore it,decidedthatanother8candidatesbealso consideredinviewoftheirseniorityandtheirconfidentialreports. 15 At its meeting of 17.12.82 the respondent Commission consideredtheirmerit,qualifications andseniorityandtakingalso into consideration the recommendations of the Head of the DepartmentofForests,whowaspresent atthemeeting,decided to promote 36 candidates, i.e. 29 to the permanent post Ord. 20 Budget, 6 to the permanent post Dev. Budget and 1 supernumerarypostonsecondment,Ord.Budget. Subsequently,theHeadofDepartmentinformedtheChairman oftheRespondentCommissionthatwhenhemadehisaforesaid recommendations on 17.12.82, hedidnottakeintoaccountthe 25 factthatcertainofthecandidates,until31.12.80wereholdingthe postofForestRangerwhichcarriedhigherdutiesthanthepostof Forester held by certain other candidates and who had been renamed toForestRangerson 1.1.81,andthathadhetakenthis into consideration, his recommendations would have been 30 different. In the light of this development on 18.1.83 the respondent Commissionrevokeditsaforesaid decision. TheCommissionmetagainon24.1.83whereupontheHeadof Department stated that «Taking into consideration also that 35 officersNos.1-51 onthelistofcandidateswereevaluateduntiland 325 'MalachtoaJ. Payatsosv. Republic «987* including 1980 in respect of higher duties than the rest of the candidates the candidates recommended the previous time are recommended again except Christodoulos Kyprianou, ChristakisKyrris,ChristodoulosPavlidesandEvcledesStylianou, who previously held the post of Forest Ranger and instead of 5 whom he recommended Michael Michaelides, Michael Papacharalambous, PanayiotisXanthosandSawasDaniel». The respondent Commission having taken into consideration allthematerialbeforeit,onthebasisoftheestablishedcriteriai.e. merit, qualifications and seniority, decided to promote as most 1Q suitable to the post of Forest Officer 29 candidates to the permanent (Ord. Budget) post of Forest Officer, 6 candidatesto thepermanent(Dev.Budget)postasfrom 1.1.83andtosecond1 officer tothesupernumerary post(Ord.Budget)ofForest Officer asfrom31.12.
6. 15 Thepresentrecoursesaredirectedagainstthepromotionof30 outofthosecandidateswhowerepromoted,namely:
7. Georgios Christodoulou,
8. Constantinos Chimonas,
9. Adamos Ignatiou,
10. Sofronis Philippou,
11. Michael Papacharalambous,
12. Andreas Neophytou,
13. Andreas 20 Chrysanthou,
14. Charalambos Charalambides,
15. Ioannis Constantinides, 10.ChristosEconomides,11.MichaelKoupparis,
16. Zacharias Ioannou,
17. Christos Lambrou,
18. Michael Michaelides,
19. Andreas Michaelides,
20. Takis Paris,
21. ChristodoulosStylianides,18.ChristosTheodoulou,19.Panayiotis 25 Xanthos,
22. Alexandres Kypnanides,
23. Sawas Salatas,
24. Andreas Christofi,
25. Ploutis Chrysanthou,
26. Andreas Constantinou,
27. Ioannis Koudjis,
28. Costas Ioannou,
29. AndreasNicolaou,28.FrixosIoannou,29.GeorghiosMayirouand 30.CharalambosConstantinou. 30 InCaseNo.178/83,applicantKyriakosPayiatsosasagainstthe promotionsofinterestedpartiesNo 1-
30. InCaseNo.205/83,applicantChristakisPavlidesasagainstthe promotionsofinterestedpartiesNos.5,6,15,19-21,24-
31. InCaseNo.206/83,applicantPloutisGeorghiouasagainstthe 35 promotionsofinterestedpartiesNos. 5,6,19-21,24-
32. 326 3 C.L.R. Payatsos v. Republic Malachtos J. InCaseNo.313/83,applicantPolydevkisKyprianou,asagainst thepromotionsofinterestedpartiesNos.1-12 and14-
33. In Case No. 213/83, applicant Evagoras Solomonides as againstthepromotionsofinterestedpartiesNos. 5-8,11,12,145 16,19-22,and24-
34. In Case No.215/83, applicants Charalambos Kallinos and IoannisCharalambidesasagainstinterestedpartiesNos.5-8,11, 12,14-16and19-
35. Thegroundsoflawuponwhichtheserecoursesarebased,may 10 besummarisedasfollows: Thattherespondentsfailedtoselectthebestcandidatesonthe basis of merit, qualifications and seniority and the recommendations of the Head of the Department andthatthey exercised their discretion wrongly and acted in excess and/or 15 abuseofpowerandcontrarytoLaw. Itwasarguedonbehalf oftheapplicantsinCasesNos.205/83 and 206/83, that there was inconsistency between the two decisionsoftherespondentCommissionof17.12.82and24.1.83 astheyaredifferent toeachother. 20 Furthermore, it was argued that interested party No.20 Alexandras Kypnanides, who was not recommended, was. wrongly promoted in view of his conviction by the Court, of commonassault,hispromotionbeingcontrarytosection44{l)(d) ofthePublicServiceLaw,1967(Law33/67). 25 InthefirstplaceIfindthattherewasnoinconsistencybetween two decisions because there isno obligation on the part of the administration to issue an identical decision to one already revoked. In the present case the revocation was considered necessaryinordertoremedyasituationwhichwascreatedbythe 30 oversightoftheHeadoftheDepartment. As regards interested party No.20, Kypnanides, as correctly stated by counsel for the respondent, the criminal offence of common assault for which he had been convicted does not constituteanoffence ofdishonestyorinvolvesmoralturpitudeor 35 amountsto neglect of hisdutiesasa publicofficer, andhewas, 327 Malachtos J. Payatsos v. Republic (1987]ί therefore, not liable to disciplinary proceedings under section 73

(1)of Law 33/67. Consequently, such criminal conviction was rightly nottaken intoaccountas undersection 44(l)(d) of Law 33/ 67 apublic officer isnotpromoted ifhehasbeen punished for any disciplinary offence of a serious nature during the two years prior 5 to the intended promotion, which is not the case here: (See Stavndes v. The Republic

(1985)3 C.L.R. 95 at pp.104-5). On behalf of the applicants in Case No.215/83, it was argued that the manner of preparing their confidential reports was contrary to Law and to Circular No. 491 dated 23.3.79 of the 10 Ministry of Finance,inthattheapplicantswerenotassessedby the appropriate reporting officer but by somebody else, a certain Andreas Charalambous, who, inany case, was prejudiced against them. From what is before me, there is nothing irregular about the 15 mode of preparing the confidential reports. The said Charalambous being theDivisional ForestOfficer andincharge of the section in which the applicants were employed, correctly prepared theirreports;itisnotimperative for a reporting officer to have direct knowledge on every particular aspect of his 20 subordinates as to their performance but he may obtain information from any otherproper source andparticularly in cases asthepresent onewheresuch subordinates donotwork withinthe same premises but are spread out in different areas due to the nature of theirwork.— See Chrysochos v. TheRepublic

(1985)3 25 C.L.R. 78 at p.

1. Furthermore, from theevidence given Ifind thatany allegations of bad faith or prejudice on behalf of this officer are totally unfounded. Itwas further argued thatthough the confidential reports of the 30 candidates taken into consideration were upto and including 1981, the Head of Department wrongly, appears to have taken also intocosideration theirperformance in 1982 when making his recommendations. Ifind nothingwrong inthisastheperformance of thecandidates 35 in 1982 can validly be taken into account, as it is a part of the overall picture presented by a candidate that a Head of 328 3 C.L.R. Payatsos v.Republic (tfalachtos J. Department must consider when makinghis recommendations. Finally, itwasargued by allapplicants thatthey aresuperior to theinterested partiesandshouldhave,therefore, been promoted instead of them. 5 Proceedingtoacomparison between theparties,fromaperusal of their personal files and confidential reports, which are before me,the situation appears as follows: InCaseNo.178/83, applicant Payiatsoshasbeen rated asvery good for the years 1979, 1980 and 1981,whereas the interested 10 parties havebeen rated asexcellent and/or very good. Hepossesses the basic qualifications as all the candidates, whereas interested parties 2,6,8,10,13,16,20, and 22 possess better qualifications. He isseniortomost ofthe interested parties, except interested parties Nos. 1and 13.However, such seniority 15 ofhiscannotprevailinviewofthe fact thatallotherthingsare not equal, asallthe interested partieshave a better merit. InCase No.205/83 applicant Pavlides isslightlybetterin merit totheinterestedparties,havingbeenratedasexcellentinallyears, whereasallinterestedpartiesareeitherexcellentandverygood or 20 very good. As regards qualifications, he has the same as most of the interestedparties,exceptinterestedpartiesNos.6,20and27, who are better. Asregardsseniority,however, hebecame Foresteron 1.10.66, 25 which title was changed to Forest Ranger on 1.1.
2. The interested parties had become Foresters long before 1966 and were promoted to Forest Rangersthe lateston 16.6,79.They are all, therefore, much senior to thisapplicant. Furthermore, all the interestedpartieswererecommended forpromotion,whereasthis 30 applicantwas not. I,therefore,findthatitwasreasonablyopen to therespondent Commission toselectthem forpromotion instead ofthe applicant. InCaseNo.206/83applicantGregoriou wasratedasgood and very good, whereas the interested parties were rated as either 35 excellent and/or very good. So, the interested parties have a 329 Malachtos J . Payatsos v. Republic

(1987)better merit than this applicant. As regards qualifications, the applicant possesses the basic,qualifications whereas interested partiesare eitherthe sameorbetter(interested partiesNos.6,20, 27). As regards seniority, he was promoted to Forest Ranger on 15.5.79 which makes him senior to all interested parties by one month,theyhavingbeenpromoted tosuchposton 15.6.79.Such seniority of one month, however, istooshort tobear any weight, on the one hand, and on the other hand, the interested parties being better in merit, cannot prevail. 5 10 In Case No.212/83, applicant Kyprianou, has been rated as either very good or good, therefore, all interested parties being excellent and/or verygood, are better. Interested parties Nos. 2, 6, 8, 10, 16, 27, 30, have better qualifications, whereas heismore or lessthesame astherest. He 15 became Assistant Forest Officer on 15.3.82, the same day as all interested parties, and to the previous post of Forest Ranger on 1.8.66, which makes him senior to all. Such seniority, however, cannot prevail, allother thingsnot beingequal. Applicant Solomonides in Case No.213/83 was rated in the 20 relevantyearsasgood, good andverygood,theinterested parties arethusbetter in merit. Hehasthesamequalifications withtheinterested partiesexcept Nos.8,16,20, 22, 27,whohave better qualifications than him. HewaspromotedtoForestRangeron 1.6.79andsoheissenior 25 to interested parties Nos. 5, 6, 19, 20, 21 and 24-29by 1 1/2 months and to Nos. 7, 11, 12, 14, 15, 16, 22 by two weeks. InterestedpartyNo.8isseniortohim.Suchseniorityofhis,inview of itbeing far too short cannot be taken intoaccount, asall other relevant factors arenot equal. 30 InCaseNo.215/83applicantsKallinoa^.idCharalambideshave bothbeenratedasverygood,good and goodfortheyears 19791981, respectively. So, allinterested parties arebetter as regards merit. 330 3 C.L.R. Payatsos v. Republic Malachtos J. They possess the same qualifications except interested parties Nos!6,8,16,20,22, 27,whohave better qualifications. They became Forest Rangers on 1.6.79, which makes them junior to interested parties Nos.8and 23,equal to Nos.7,11, 12, 5 14,15,16,22 andseniortotherestbytwoweeks,whichseniority, asalreadystated above, cannotprevailasalltheinterested parties arebetterin merit. Finally, it should be emphasised that all interested parties, except No.20, namely Kyprianides, were also recommended by 10 the Head of Department, whereas none of the applicants were recommended. As regards interested party No.20, special reasoning was given for preferring him, which appears in the minutes of the respondent Commission of the 24.1.83 and is as follows: 15 20 «....in the case of Kyprianides, whom the Commission preferred to Daniel, whowas recommended bythe Director, the Commission took into consideration that Kyprianides (a) had previously been selected for promotion to the post of Forest Ranger as from 15.6.79 as more suitable to Daniel (Daniel wasseconded tothesame post onthesame date),(b) isseniorto Daniel,and (c)hasbetter confidential reports.» In the circumstances, Iwould conclude that it was reasonably open to the respondent Commission to prefer the interested parties, instead of the applicants, who also failed to establish any 25 striking superiority over them. I, therefore, find that the promotions were correctly made and thatthesubjudicedecision isdulyreasoned and inaccordance with the Law. For the reasons stated above, these recourses fail and are hereby dismissed. 30 Therewillbeno orderastocosts. Recourses dismissed. No orderasto costs. 331