(1987)1987 May 15 [L0R1S.J] INTHEMATTEROFARTICLE146OFTHECONSTITUTION ANDREASSEKKIDES, Applicant, V. THEREPUBLICOFCYPRUS,THROUGH THEPUBLICSERVICECOMMISSION, Respondent. (CaseNo862/85). Public Officers — Promotions —Ment — Reflected mthe confidential reports — Recommendations byHeadofDepartment—An additional ment Public Officers — Promotions — Qualifications — Academic qualifications — Additional to those required by the scheme of service, but not envisaged thereinasanadvantage—Do not bythemselvesindicatestrikingsupenonty EJ Public Officers — Promotions — Senionty — The Public Service Law 33/67. section 46(7} PublicOfficers—Promotions—Judicialcontrol—Principlesapplicable Reasoningofanadministrative act—May besupplemented bythematenalmthe file oftheadministration By means of thisrecourse the applicant impugnsthedecisionto promote the interestedparty to thepostof Senior FisheriesAssistantonthe following grounds, namely that the applicant wasstrikingly supenor to the interested partyandthatthesubjudicedecisionwasnotduly reasoned Theinterestedpartyhadbetterconfidentialreports thantheapplicantand, 1 5 moreover, he was. also, recommended for promotion by the Head of the Department The applicant possessesan 1 additionalacademic qualification, which, however, isnot envisagedasanadvantage intherelevantschemeof service The Applicant and the interested party were first appointed to the samepost intheserviceandsubsequently promoted onthesamedates The 2 0 applicant was bom on 112 1946, whilst the interested party was bom on 3945 Held,dismissingtherecourse
(1)Thementsofthecandidatesarereflected 744 10 3 C.L.R. Sekkides v. Republic in the confidential reports, whilst the recommendations ofthe Head of the Department isanadditional ment,which cannotbe lightly disregardedby the admimstratioryfn'aragjorg/sv CBC
(1985)3CLR 379atp 388adopted) 5
(2)Possession of academic qualifications additional tothose required by thescheme of service, but not specified therein asan advantage, do not indicate by themselves astnking supenonty 10
(3)Inthelight ofthefactsofthiscase, thesenionty of thepartiesisregulated by their age (Section 46
(7)of Law 33/67) and therefore the interestedparty issenior tothe applicant Inany eventsenionty can have decisive effect only where meritsand qualifications are evenly balanced 15
(4)An administrative Court cannot interfere in ordertosetaside a decision ofpromotion, unless itissatisfiedthat theapplicant was aneligible candidate, who was stnkingly supenor to the one selected In the light of the above the conclusion isthat theapplicant in thiscasefailedtomake outacaseof stnking supenonty 20
(5)The subjudice decisionclearly conveys thereasoning of theselection of theinterestedparty Furthermore, thematenal inthefilesmay supplement the reasoning In this casethe filescontained the requiredmatenal tosupport the sub judice decision Recoursedismissed _ No order asto costs Casesreferred to Hadjloannouv The Republic
(1983)3C L R 1041, Karagiorgisv CBC ( 1 9 8 5 ) 3 C L R 379, Nissiotisv The Republic {1977) 3C L R388, „ Korai and Another ν CBC
(1973)3 CL R 546, Georghakisv The Republic
(1977)3CL R 1, HjiCeorghiou ν The Republic
(1977)3CL R 35, Cleanthousv The Republic
(1978)3CL R 320, 77ieooOssiou ν The Republic, 2RS SC44, 3Q Papadopoulos ν PSC
(1985)3CL R 405, PasteUides ν Republic
(1969)3CL R 36, Menelaouv The Republic
(1969)3 C L R36, Theocharous ν The Republic
(1969)3 CL R318 Recourse. 35 Recourseagainstthe decisionofthe respondenttopromote the 745 Sekkldes v. Republic
(1987)interested party to the post of Senior Fisheries Assistant in the Department of Fisheries in preference and instead of the applicant. M.Christofides,for theapplicant. D. Papadopoulou (Mrs.), for the respondent. 5 Cur. adv. vult. LORIS J. read the following judgment. The applicant impugns, by means of the present recourse, the decision of the respondent P.S.C. published in the Official Gazette of the Republic on 20.9.1985 (CG.No.2077), whereby the interested 10 party namely Sawas Michael Kanios, was promoted to the permanent (Dev) post of Senior Fisheries Assistant in the Department of Fisheries (Ministry of Agriculture and Natural Resources) in preference toand instead of the applicant. Thegrounds of law relieduponby theapplicant,assetoutinthe 15 recourse under4 heads, may be thus summarised:
- The respondents ignored, abusing thereby their powers in law, applicant's striking superiority in all respects over the interested party.
- The sub-judice decision is notduly reasoned. 20
- The confidential reports were prepared in contravention of the law having been compiled allegedly by persons either having no authority or being biased against the applicant.
- Inview of the allegations in para. 3 above, any report of a Departmental Boardoranyothersubmission ordecision based on 25 the reports aforesaid and eventually the decision of the respondentis null and devoid of any legal effect. Whilst here it must be noted that complaints under 3 and 4 above were neither explained nor pursued any further. In paragraph 1(γ)of thewrittenaddress of theapplicantthefollowing 30 are stated verbatim inthisconnection. «(γ) with reference to legal points under 3 and 4, the applicant reserves his right toadduce evidence.» Inspite of the above statementin his written address, when this recourse was fixed for«clarification andevidence» learned counsel 35 appearing for him stated that the applicant did not intend to adduce any evidence and confined himself in clarifying matters connected with legal points under 1 and 2 of the recourse. 746 3 C.L.R. Sekklde· v. Republic Lori· J. In the circumstances complaints under 3 and 4 are considered asabandoned and they are accordingly dismissed. Before proceeding to examine the remaining two complaints under 1 and2aboveIfeel thatIshould repeat herewhathasbeen 5 repeatedly emphasized and recently reiterated by the Full Bench of this Court in Hadjhannou v. The Republic
(1983)3 C.L.R. 1041atp. 1045: 10 15 «An administrative Court cannot intervene in order to set aside thedecision ....unlessitissatisfied, byanapplicant ina recourse before it,that he wasan eligible candidate who was strikinglysuperior totheone whowasselected, because only insuch acase the organ which hasmade theselection for the purpose of an appointment or promotion isdeemed to have exceeded the outer limits of its discretion and, therefore, to have acted inexcessor abuse of powers » Let usexamine then, whether the applicant has discharged the heavy burden of establishing «striking superiority» over the interested party. Merit: 20 25 I had the opportunity recentlytosum uptheposition inrespect of«themeritsof acandidate»inthecaseof Karagiorghisv.C.B.C,
(1985)3 C.L.R. 379atp. 388as follows: «The merits of a candidate are reflected in the confidential reports whilst the recommendations by the Head of Department is an additional merit which cannot be lightly disregarded by an administrative body dealing with promotions.» In the instant case it is apparent from the confidential reports that the interested party isbetterrated than the applicant. Thusis 30 the confidential reports of the last3 years (1982,1983,1984) the interested party has 6 excellent and 6 very good (6-6-0) for each one of the 3 years aforesaid whilst for the same period the applicantisratedwith5-7-0
(1982)4-8-0
(1983)and5-7-0
(1984). Furthermore the interested party has the most favourable 35 comments in his confidential reports for the aforesaid periods, whilstapplicant has none. To the above picture of the merit as it transpires from the 747 LorisJ. Seklddes v. Republic
(1987)confidential reports we must add the express recommendationof the Head of Departmentinfavour of the interested party And «obviously the recommendations of the Director of the Department have made the overall picture of the interested party more iavourable than thatof the applicant» {Nissiotis ν The Republic
(1977)3 C LR 388 at ρ 397) 5 Qualifications Inthisconnectionthereisnosuggestion thattheinterestedparty lacked the qualifications envisaged by the scheme of service, set out in appendix «Γ» attached to the written address of the 10 respondent,noristhereanysuggestion thatthescheme of service stipulated additional academic qualifications as an advantage In fact no mention of additional qualifications whatever is made in thescheme of service aforesaid Upon careful examination of the qualifications of the applicant 15 andtheinterested party,astheyappearintherelevant appendices attached to the opposition and the wntten address of the respondent,itmay be nghtly remarked thattheapplicant hasinter alia a«diploma inFishenes»obtainedfrom theGnmsbyCollege of Technology in England after having successfully completed one 20 year's full time course of study in the Department of Maritime Studies and Fishenes (South Humberside -England) which may be considered as an additional Academic qualification, none the less such an additional qualification is not envisaged in the said scheme of service as an advantage 25 Inthe case of Hjiloannou ν TheRepublic (Supra)itwas held by the Full Bench of this Court (pp 1046-1047) that«Possession of academic qualifications additional to those required by the scheme of service, which arenotspecified inthescheme of service as an advantage, should not weigh greatly in the mind of the 30 Commission who should decide inselecting thebest candidateon the totality of the circumstances before them Additional academic qualifications to those provided by the scheme of service do not indicate by themselves a stnking supenonty (See Elh Chr Koraiand another ν The C BC
(1973)3 5 3 C L R 546, Andreas D Georghahs ν The Republic
(1977)3 C LR 1, HjiGeorghiou ν The Republic
(1977)3 C LR 35, Cleanthous ν The Republic
(1978)3 C LR 320) 748 3 C.L.R. S«*kkides v. R e p u b l i c Loris J . Itisapparent from theperusalofthesub-judice decision thatthe respondent P.S.C directed its mind to the above principles in reaching at same Seniority 5 Accordingtotheprovisionsofs 46
(2)ofthePublicServiceLaw 1967 (Law 33/67) «in the case of simultaneous appointment or promotion (or secondment - vide s 5 of Law 10/83) to the particular office or grade of the same office, seniority shall be determined according tothe officer's previous seniority» 10 Further according tothe interpretation section (sub-section 7 of s. 46 of Law 33/67 «previous seniority» means «seniority of the officers concerned inthegradeoroffice heldhythem immediately before they entered their present grade or office, and if such seniority isthesame,previousseniority shallbedetermined bythe 15 same process back to the first appointments of the officers in the publicservice.Incaseseniorityinthefirstappointment isthesame the previous seniority shall be determined by the age of the officers·» Applicantaswellastheinterestedpartywerefirstappointed and 20 subsequently promoted on the same dates (a) 1stappointmentof both as Fisheries Assistant 2nd Grade (T) on 1.11.68. (b) Promotion of both to FisheriesAssist. 2nd Grade (P)on 16.79 (c) Promotion ofbothtoFisheriesAssistant 1stGrade(P)on 15.3.82. Therefore according to the provisions of s. 46
(7)of Law 33/67 25 their seniority is regulated by their age; applicant was born on 1.12.1946 whilst the interested party was bom on 3 9 45: therefore theinterested partyhasaseniority of 15monthsoverthe applicant Concluding in connection with complaint under 1 above, it 30 mustbe stated that theinterested partypresentsabetterpicture as regards merit than the applicant. The difference in merit, however slight in favour of the interestedparty,isbeingenhanced bytherecommendations inhis favour by the Head of the Department, recommendations which 35 should be given due regard bythe P.S.C.asenvisaged bys.44
(3)of Law 33/67 and which constitute a most vital consideration which cannot be disregarded (Theodossiou v. The Republic, 2 R.S.C.C.44). 74<> Loris J. Sekkldes v. Republic
(1987)As regards qualifications the «diploma in Fisheries» possessed by the applicant may be considered as an additional Academic qualification; nevertheless such an additional qualification is not envisaged by the scheme of service under consideration as an advantage,and cannotbyitself,constitutestrikingsuperiorityover theinterested party (videHjiloannou v.Republic -supra -and also the majority decision of the Full Bench in Andrestinos Papadopoulos v.P.S.C.
(1985)3 C.L.R.405). 5 In connection with seniority the interested party has for the reasons explained above 15months seniority over the applicant; 10 needless to add that the seniority can have a decisive effect only where the merits and qualifications of the parties are evenly balanced (Partellidesv. TheRepublic
(1969)3 C.L.R. 480),whilst inthe present case the interested partyisbetter merited, as above stated and in cases of promotion merit should carry the most 15 weight (Menelaou v. The Republic
(1969)3 C.L.R. 36 atp. 44 Theocharous v. The Republic
(1969)3 C.L.R. 318atp.322). Inthe light of the foregoing, Iam satisfied that the respondent P.S.C. carried out due inquiry, taking into considerarion all relevant criteria and properly applying the law in reaching at the 20 sub-judice decision which wasreasonably open toit. For the reasons already stated in the present judgment the applicant failed to prove striking superiority over the interested party; therefore complaint under 1above isdoomed to failure. Turningnowtocomplaintunder2above;thecomplaintthatthe 25 sub-judice decision was not duly reasoned: Suffice itto say that having examined the sub-judice decision I am satisfied that it clearly conveys the reasoning why the interested party was preferred for the promotion in question instead of the applicant; furthermore the material contained in the files may legitimately 30 supplement the reasoning behind a decision; and as a matter of fact the files before me which were also before the respondent P.S.C. contained more than the required material which can support the sub-judice decision allowing at the same time an unhindered judicial scrutiny. 35 In the result the present recourse fails and is accordingly dismissed; in the circumstances there willbe no orderastocosts. Recourse dismissed. No orderasto costs. 750