(1987)1987Apnl27 [DEMETRIADES.J ] INTHEMATTEROFARTICLE146OFTHECONSTITUTION ANDREASTAPAKISANDANOTHER. Applicants, v. T H E REPUBLIC OF CYPRUS, T H R O U G H T H E PUBLIC SERVICE C O M M I S S I O N , Respondents (Cases Nos 442/82 and 468/82). Public Officers— Promotions —Senionty — Prevails,if theother factorsare more or lessequal D ubhc Officers— Promotions —Head ofDepartment —Recommendations of— ftisnot necessaryfor theHead of theDepartment toexpresshisviews about each one of the candidatesfor promotion. ^ublic Officers—Promotions —Confidential reports—Applicant ratedas*good», *good* and -very good· forthe lastthreeyears,whereastheinterested party was rated as*very good» in all three years — Whether rating of interested party «clearly better» than that of the applicant — In the light of the fact that the reporting officer for the applicant was not the same as that for the 10 interested party, the question wasanswered in the negative The applicants in both cases challenge the promotion of the interested partytothepost of Auditor intheAudit Office insteadofand inpreference to them. The applicant in Case No. 442/82 was one of the two candidates 1 5 recommended for promotion by the Head of the Department. However, notwithstanding such recommendations, the fact that the saidapplicant was senior to theinterested party by 7yearsandthe factthat hepossessedbetter qualifications than thoseof theinterestedparty, therespondent Commission decided toprefer the interestedparty onaccount ofthelatter's«clearlybetter 2 0 confidential reports» As a matter of fact the said applicant was assessed, during the last three years, as «good», «good» and «very good», whilst the interestedpartywasassessedas«very good»inallthreeyears.Thereports of theparties were prepared bydifferent reporting officers. 450 5 3 5 10 15 20 25 C.L.R. Tapaltls a n d Another v. Republic Asfarasapplicant inCase No 486/82 isconcerned itmust be noted that the interestedpartywasseniortotheapplicant Neithertheapplicantnorthe interested party was recommended for promotion by the Head of the Department Counsel for the applicant contended, inter alia, that the respondents failed to obtain the recommendations of the Head of the Department regardingthe applicant and the interested party, which led toa bad exerciseoftheirdiscretion Held, annullingthesubjudice decision, but dismissingRecourse 486/82 (A) Taking into consideration the fact that the reports of the parties were prepared by different reporting officers, it cannot be said that those of the interested party were «clearlybetter»than those ofthe applicant inCase No 442/82 Having in mind the said applicant's qualifications as well as the recommendations ofthe Head oftheDepartment, thisCourt isoftheopinion thathissubstantial senionty(7years)shouldnothavebeendisregarded This is a case where the other factors are more or less equal and, therefore senionty, especiallysinceitissubstantial, ought tohave prevailed (B)
(1)The contention ofcounsel forapplicant inCaseNo 486/82 thatthe respondents did not obtain the recommendations of the Head of the Department withregardtothisparticularapplicantand theinterested partyis untenable as the Head of the Department did in fact express his recommendation for the promotions in question and there was no need to expresshisviewsabouteach one ofthe candidates
(2)Theapplicant inCaseNo 486/82 and the interested party are more or lessequal inmentandqualifications, buttheinterested party isslightlysenior to the applicant It follows that the selection of the interested party in preference tothe applicantwasreasonably open tothe respondents Recourse 442/82 succeeds Recourse 486/82 dismissed No orderastocosts 30 Recourses. Recourses against the decision of the respondents to promote the interested party to the post of Auditor in the Audit Office in preference and insteadof the applicants L. Papaphilippou, forapplicant inCase No.442/
- 35 E.Lemonaris, forapplicant inCase No.486/
- N. Charalambous, Senior Counsel of the Republic, for the respondents. 451 Tapakis a n d Another v. Republic A Panayiotou, for theinterested party. Cur. adv.vult. DEMETRIADES J. read the following judgment. These two recourses, which are directed against thesame administrative act, have been heard together as presenting commonquestions of law 5 and fact. The applicants in both cases challenge the decision of the respondents topromoteMichaelPolycarpou, theinterested party, to" the post of Auditor in the Audit Office instead of and in preference tothem. The facts of the casesare,inbrief,thefollowing:The applicants and the interested party were, at the material time, holding the post of Examiner of Accounts 1st Grade, the immediately lower post tothepost of Auditor, which is a promotion post. After a request for the filling of certain posts was made to the 15 respondents by the Auditor-General, the respondents decided to fill, amongst others, two vacancies in the post of Auditor and the matterwas referred totheDepartmentalCommitteewhich was set up for thepurpose. TheDepartmentalCommittee,by theirreport which was submitted to the respondents by letter dated the 31st 20 May, 1982, recommended seven candidates, amongst whom the applicants and the interested party. At their meeting of the 4th June, 1982 the respondents considered the report of the Departmental Committee and postponed further consideration of themattertoa future meeting 25 when the Head of the Department would, also, be invited to attend. The final meeting tookplace onthe 14th June, 1984, when the Head of the Department made his recommendations. His views andrecommendationsarerecorded intheminutesofthatmeeting 3Q and they are (see Appendix 3 tothe Opposition):«Κατόπιν πολύ προσεκτικής μελέτης των Εμπιστευτικών Εκθέσεων και της εν γένει αποδόσεως των υ π ο ψ η φ ί ω νέχει καταλήξει εις τ ο συμπέρασμα να συστήση διάπροαγωγήντους κ.κ. Ανδρέα Λ. Ταπάκην 35 και Χριστάκην Χατζηράφτην. Ο ύ τ ο ι προηγούνται των ' λοιπών υ π ο ψ η φ ί ω ν εις α ρ χ α ι ό τ η τ α , έχουνπολύ καλάς 452 10 3 C.L.R. Tapakls and Another v, Republic Εμπιστευτικός Εκθέσεις και δεν υστερούν των άλλων υποψηφίων ώστε να μη δικαιολογήται η π ρ ο α γ ω γ ή των. 5 Από πλευράςπροσόντων υπερέχει ο κ.Ταπάκης, ο οποίος είναι ο μόνος υποψήφιος με πανεπιστημιακόν δίπλωμα, ?νώ οιάλλοι έχουν το Accounting Higher.» 10 («After avery careful study oftheConfidential Reportsand the general performance ofthecandidateshehascometothe conclusion to recommend Messrs. Andreas L. Tapakisand Christakis Hadjiraftis for promotion.Thesecandidatesleadin seniority totherest,theyhaveverygood Confidential Reports and are not inferior to the other candidates so that their promotion would notbejustified. 15 As regards qualifications Mr. Tapakis, who is the only candidate possessing a university diploma, issuperior tothe other candidates who possess theAccounting Higher»). The respondents then considered the matter andfound that Hadjiraftis, theothercandidaterecommendedbytheHeadofthe Department, wasonthe whole the best candidate forpromotion 20 toone of the vacant posts. TheCommission then proceededto select the other candidate for the second vacancy. In doingso, they decided tocompare the applicant, whowasrecommended. by the Head of the Department, with Messrs. Kaoulides and Polycarpou (theinterestedparty)whowerethenexttwocandidates 25 intheline of seniority. The Commission took intoconsideration the fact that the applicant possessed a university diploma,but found, nevertheless, that the interested party had «clearly better confidential reports». Therespondents, after making extensive analytical reference tothe ratings ofthe parties intheir last three 30 confidential reports andnoting that the reports of the interested party were superior in respect of the previous years also, especially in 1977,found that Hadjiraftis andPolycarpou were «superior to the remaining candidates on the basis of the established criteria (merit, qualifications, seniority), as a whole» 35 anddecidedtopromotethem tothepost ofAuditorasfrom the 1st July,
- The promotions were published inthe Official Gazettepi the Republic,datedthe24thSeptember, 1982, asaresultofwhichthe 453 Demetrlades J. Tapakls and Another v. Republic
(1987)present recourseswere filed. Themaingroundwhichiscommontoboth recoursesisthatthe respondents failed in their paramount duty to select the best candidate. I willconsider each case separately. Counsel for the applicant in Case No. 442/82, submitted that 5 the respondents ought tohave followed therecommendationsof the Head of the Department which were in favour of the applicant and that their finding that the reports of the interested party are «clearlysuperior»tothoseoftheapplicant, isnot correct, the correct position being that they are only slightly better. He, 10 also, argued thattheCommission oughtnottohaveplaced much weight on the reports inviewof the fact thatthey were prepared by different reporting officers. The applicant's superiority, with regard to qualifications and seniority, counsel contended, should haveprevailed,aswellastherecommendations oftheHeadofthe 15 Department which weredisregarded withoutproper reasons. The paramount duty of the respondents is to select the best candidate for promotion. In doing so,however, due regard must be given totherecommendations oftheHead ofthe Department concerned, the confidential reports of the candidates, as well as 20 their merits, qualifications and seniority. The merits of the candidates are usually reflected through their confidential reports and the recommendations of the Head of the Department. Ithas been established byourcase-law thatseniorityprevailsifallother factors are more or less equal and the recommendations of the 25 Head of the Department should not be disregarded without special reasons. The applicant in the present case was recommended by the Head of the Department, who stated that he is superior to the other candidates inrespect ofseniority and isnot inferior tothem 30 in other respects. The recommendations of the Head of the Department, who is in a position to know his subordinate staff, represent the picture of the candidates as a whole and not with regard toany single particularaspectonitsown.Tomymind, the meaning of the words of the Head of the Department isthat he 35 consideredallthecandidatesasmoreorlessequalinotheraspects and, as aresult, he recommended themost senior. The respondents decided to compare the applicant with two other candidates and found thatthereportsoftheinterested party 454 3 C.L.R. Tapakis and Another v. Republic Demetrtade· J. 5 were «clearlybetter»than those oftheapplicant and decided, for thisreason, to disregard the recommendation of the Head of the Department and promote the interested party.Theapplicant was assessed, duringthe lastthreeyears as«good»,«good»and «very good»,whilstthe interested party wasassessed as «verygood»in all three years. The applicant, also, possessed a university diploma. Taking intoconsideration thefactthat the reports ofthe parties wereprepared bydifferent reportingofficers, Iwould notsaythat 10 those of interested party were «clearly better» than those of the applicant. Having, also, in mind the recommendations of the Head oftheDepartment, whodidnotfind him inferior totherest, and the qualifications of the applicant, Iam of the view that his substantialseniority(sevenyears)overtheinterestedparty,should 15 nothavebeen disregarded. Itisacasewheretheotherfactors are more or less equal and senionty, especially since itissubstantial, ought tohave prevailed. In the result, ltind that the recourse of this applicant succeeds and the promotion of the interested party should, therefore, be annulled. I now propose to deal with the merits of the applicant in RecourseNo.486/82.Counselforthisapplicantargued thatonce therespondents decided todepart from the recommendationsof the Head ofthe Department, theyshould nothave restncted their 25 selection to the three most senior candidates, but they ought to have compared the merits of all candidates and include the applicant in their comparison. Itiscounsel's submission that the applicant is equal in seniority with the interested party, more experienced inauditingworkandbetterinmeritand qualifications. 30 which rendered him strikingly supenor to the interested party. Counsel lastlycontended thattherespondentsfailed toobtain the recommendations of the Head of the Department regarding the applicant and the interested party which led to a bad exerciseof theirdiscretion. 35 Iwishtopoint outherethattheinterested partyisinfactslightly senior to the applicant and the respondents were not, therefore, labouringunderamisconception offact,asmaintainedbycounsel fortheapplicant.Bylookingatthecomparativetableappended to the Opposition, one may see that both parties were promoted to 40 the post of Examiner of Accounts 1st Grade on the 1st August. 1977, and tothe post of ExaminerofAccounts2nd Grade on the 455 Demetriades J. Tapakla and Another v. Republic 1stJuly, 1968.So far their seniority isequal. The applicant was, however, promoted to the post of Examiner of Accounts 3rd Grade on the 1stJanuary, 1967, whilst the interested party held thesame postas from the 1stJanuary, 1965. I must, also, say that Ifindthe contention of counsel that the 5 respondents did not obtain therecommendations of the Headof the Department with regard to this particular applicant and the interested party, asuntenable,astheHead ofthe Department did in fact express his recommendations for the promotions in question and there wasno need to express hisviewsabout each 10 one ofthe candidates. As to the selection of the interested party in preference to the applicant, from the materialbefore me I find thatboth candidates were more or less equal in merit and qualifications and the interested party wasslightlyseniortothe applicant. 15 Inthe lightoftheabove,Ifindthatitwasreasonablyopentothe respondents to select the interested party and there isno reason for interfering with the sub judice decision. The decision of the respondents to promote the most senior candidate is perfectly legitimate once such candidate is not inferior to the others 20 regardingmeritsand qualifications.Theapplicantinthisrecourse has failed toestablish strikingsuperiority overthe interested party and hisrecourse must,therefore, fail. Intheresult,RecourseNo.442/82succeedsandthe promotion of the interested party is set aside vis a vis applicant Tapakis. 25 RecourseNo.486/82 failsand ishereby dismissed. Inthe circumstances, Ifind that thereshould be no order asto costs. Recourse No. 442/82 succeeds. Recourse No. 486/82 30 dismissed. No orderastocosts. 456