(1987)1987 May 14 [A LOIZOU, J ] IN THE MATTEROF ARTICLE146OF THE CONSTITUTION PETROSANTONIOU, Applicant, ν THE REPUBLICOF CYPRUS,THROUGH THE PUBLICSERVICECOMMISSION, Respondent (CaseNo 666/85). PublicOfficers—Promotions—Menf— Indealingwiththemeritofanofficerwhat would be considered is the general picturepresented by him and nothis individualgradings By means of this recourse the applicant challenges the validity of the decision to promote the interested parties tothe postofSenior Collectorof Customs 5 Theapplicantcomplains,interalia,of biased confidential reportsinthathis gradings were purposely lowered by the Headof theDepartmentinorderto support theletter's recommendationthat interested party Constantinou was better than the applicant and that the respondent Commission wrongly considered the qualification of interested party Lardis (LCC Higher)as «useful for theperformance of theduties of the post» 10 Held, dismissingthe recourse
(1)Interested party Constantinou appears almost throughout his career as excellent, afact thatmakes hima strikingly better officer than the applicant. Even if applicant's gradings for1984 had 1 5 remained thesame as those for 1983, it would still not have madeany difference. Indealing with themeritof an officer whatisconsidered isnothis individual gradings, butthegeneral andoverall picturepresented byhim
(2)Thestatementas tothequalification of interestedpartyLardisdoesnot amount toa misconception offact or law Itdid notin any way affect the 2 0 outcomeofthe decision Recoursedismissed No orderastocosts 776 3 C.L.R. Antoniou v. Republic Casesrefened toPiendesv TheRepublic
(1985)3C L R 1275 Recourse. Recourseagainstthedecision oftherespondent topromote the 5 interested partiestothepostofSeniorCollectorofCustomsinthe Department of Customs and Excise in preference and instead of the applicant. A. Haviaras, forthe applicant. P.Hadjidemetriou, for the respondent. 10 Cur.adv. vult. A. LOIZOU J. read the following judgment. By the present recourse the applicant claims a declaration of the Court that the decision oftherespondent Commission dated 29thJune 1985,to promote to the post of Senior Collector of Customs in the 15 Department of Customs and Excise the interested parties Loizos Constantinou and AndreasLardis,isnulland void and of nolegal effect whatsoever. Asthe post ofSenior Collector of Customs isapromotion post therespondent Commission senttotheDepartmental Boardalist 20 of the candidates for promotion, their personal files and confidential reportsandacopyoftherelevantschemeofservice. The relevant report of the Departmental Board wassent to the respondent Commission on the 27th June, 1985, whereby eight candidates includingthe applicant were recommended. 25 The respondent Commission at its meeting of the 29th June, 1985,heardtheviewsandrecommendationsoftheDirectorofthe Department of Customs and examined all the material factors from the personal file and confidential reports of the candidates, alsoconsideredtheconclusionsoftheDepartmentalBoardandthe 30 recommendations of theHead ofDepartment and concluded that GeorgeAngelides,AndreasLardisandLoizosConstantinou, were superior to the other candidates on the basis of the established criteria (merit, qualifications, seniority) and decided tooffer them promotion with effect from 15.7.85. 35 On the 1st July, 1985, the applicant retired from the Public Service. 777 A.LoizouJ. Aatonlouv.Republic
(1987)It was argued on behalf of the applicant that the sub judice decision was reached in excess and/or in abuse of power and under a misconception of fact and law, the respondent Commission failedtoselectthebestcandidateandfinallythatthe confidentialreportsofthecandidateswerebiasedtotheeffectthat 5 the gradings of the reports of the applicant were purposely lowered by the Head of Department in order to support his recommendations thatinterested party Constantinou wasbetter than the applicant. Furthermore, it was argued that the recommendations of the Head ofthe Department asregardsthe 10 interested party Lardis did not correspond with his confidential reports. Itwasfurtherallegedthattheapplicantwasgenerallybetterthan theinterestedparties,hehadmoreexperienceandwasalsosenior toConstantinoubynineyears. 15 Finally it was argued that the respondent Commission acted underamisconceptionoffactandlawasregardsthequalifications of Lardis in that his qualification of L.C.C. Higher waswrongly considered as a qualification «useful for the performance of the dutiestothepost.» 20 Ifindsuchallegationsuntenable.Inthefirstplaceevenifitcould besaidthattheapplicanthadmoreexperiencethantheinterested parties, from the material before me it does not transpire that eitherofthemlackedthenecessaryexperienceforthepost. Asregardsthematteroftheconfidential reports,itappearsthat 25 theapplicantwasgradedfortheyear1984as«VeryGood»(1-110),for 1983as«VeryGood»(5-7-0),for 1982as«VeryGood»(111-0)andfor 1981 as«VeryGood»(0-8-4). AsregardsLardis,1findfrom thematerialbefore methatthere are no discrepancies between his confidential reports and the 30 recommendationsoftheHeadofDepartment. Asregards interested party Constantinou, he appears almost throughouthiscareerasexcellent,whichmakeshimundoubtedly a strikingly better officer than theapplicant;therefore Iconsider thateveniftheindividualmarkingsoftheapplicantfor 1984had 35 remained thesameasfor 1983,itwouldstillnothavemadeany difference. Whatisconsideredwhendealingwiththemeritofthe officer isnot his individual gradingsbut the general and overall picture presented byhim.Tolaystresstoonlyindividualaspects 778 3C.L.R. Antonlouv.Republic A.LoliouJ. ofthose making up meritwould bewrongand inconsistentwith thegeneralprinciplesofadministrativelaw. Finallyasregardsthestatement oftheHeadofDepartmentas regardsthequalificationsofLardis,Ifindnomisconceptioneither S offactorlaw;itisnomorenolessastatementwhichIconsidermat it was neither a decisive factor nor in any way as affecting the outcomeofthefinalselectionofthecandidates. ForalltheabovereasonsIconsiderthattherecoursemustfail. Ihaveproceededasaboveontheassumptionthattileapplicant had the necessary legitimate interesttochallenge thesubjudice decision. It was in fact contended on behalf of the respondent Commissionthattheapplicantbyacceptingthepension benefits giventohimuponhisretirementonthe1stJuly,1985,calculated on the basis of the salary of the post he held of Collector of 15 Customs, deprives him of any legitimate interest to proceed againstthesub-judice promotions.ThecaseofDorosPieridesv. Republic
(1985)3C.L.R,1275at1284wascitedinsupport. 10 Astheissueofthelossoflegitimateinterestthroughexpressor implied acceptance of an administrative decision normally 20 dependsontheseveralfactualaspectsofeachcase,includingthe conduct of the applicant, whether he had knowledge of the decisionheisdeemedtohaveaccepted,whethersuchacceptance wasfree, voluntary and unreserved etc.,and asthe matterwas never fully argued, and, moreover as details of the factual 25 background arenotbefore me,Ihaveproceededtoconsiderthe case on itsmeritson theassumption thathedid notwaivesuch right andthathedidpossesssuchlegitimateinterest. For the reasonsstated above thisrecourse fails and ishereby dismissedwithnoorderastocosts. 30 Recoursedismissed. Noorderastocosts. 779