3 CL.R. 1987May30 [STYUAN1DES.J.] INTHE MATTEROF ARTICLE 146 OF THE CONSTITUTION ANDREAS K. SAWA, Applicant, ν THE REPUBLIC OF CYPRUS, THROUGH THE PUBUCSERVICE COMMISSION, Respondents. (Case No. 259/86). 5 PublicOfficers—Promotions—HeadofDepartment—Recommendationsof— Shouldnotbedisregarded withoutgivingreasons fordisregarding them — Recommendationsinconsistentwiththeoverallpicturefromtheconfidential reports —Should bedisregardedorbegiven limited weight, dependingon theextentofinconsistency. Public Officers — Promotions —Presumption ofregulanty —In the absence of indication tothecontrary, ithastobepresumedthatallcandidateswereduly considered. 10 PublicOfficers—Promotions—Senionty—It prevails, ifinallotherrespectsthe candidatesaremoreorlessequal. PublicOfficers—Promotions—Judicialcontrol—Principlesapplicable. By meansofthisrecoursetheapplicantchallengesthedecision, whereby the six interested parties were promoted to the post of Technical SuperintendentintheWaterDevelopmentDepartment. 15 <?0 The HeadoftheDepartmentrecommendedsixcandidatesforpromotion to the aforesaidpost.Four of those recommendedwere finally promoted, whereas the remaining two were not promoted, as in their place the Commission decidedto promotetwo other candidates,who were the best ratedintheirconfidentialreportsforthelastprecedingyears. Theapplicant hadnotbeen amongthoserecommendedasaforesaid. Held, dismissing the recourse:
(1)The PublicService Commissionhas to payheedtotherecommendationsoftheHeadoftheDepartmentandifthey decidetodisregardthem,theyhavetogivereasonsfordoingso. Whenthe 809 S a w a v. Republic
(1987)recommendations are inconsistent with the overall picture of the candidates they should be disregarded or be given limited weight, depending on the extent of inconsistency Inthiscase and inthelight of theconfidential reports the respondent Commission nghtly preferred thetwo interested parties, who had not been recommended, to the two candidates, whp, despite the recommendationsintheirfavour, theCommission decided nottopromote
(2)The minutes of theCommission do notbear outapplicant'scontention that the Commission did not make the necessary companson of all the candidates From such minutes it is obvious that all the candidates were considered and it was not in any event, necessary to mention specifically each candidate, because inthe absence of any indication to the contrary,it has tobe presumed thatallof themwere duly considered 5 |Q
(3)The interested parties though junior to the applicant were strikingly better inment Itiswellsettled thatsenionty prevails, ifinallotherrespectsthe candidates concerned are more orlessequal 1<J
(4)ThecomplaintthattheCommission actedunderamisconceptionof fact because the Head of the Departmentmisrepresented applicant's duties has not been substantiated Thereis nodifference between applicant's duties, as they were descnbed in a statement of the Head of the Department,and the duties of the applicant, as they were descnbed in the applicant's own 2 0 handwnting on the first page of theforms of theconfidential reports
(5)An administrative Court cannot intervene in order to set aside the decision regarding apromotion, unless itissatisfied thattheapplicantwas an eligiblecandidate,who was stnkmgly supenor totheone,who was selected In this case the applicant failed to satisfy the Court that he was stnkingly supenor tothe interested parties 05 Recoursedismissed No orderas to costs Cases referred to Urdis ν TheRepublic
(1967)3 C LR 64, 30 HjiConstantinou ν TheRepublic(\973) 3 C L R 65, Petndesv PublicService Commission
(1975)3 C L R 284, Myhdes and Another ν TheRepublic {1983)3C LR 10%, TheRepublic ν Koufettas
(1985)3 C LR 1950, Georghiou ν TheRepublic
(1976)3 C LR 74, lomnouv TheRepublic
(1977)3 C L R 61, Saw/a v. TheRepublic
(1980)3 C L.R 675, 810 35 3 C.L.R. S a w a v. Republic Michanikos v. TheRepublic
(1976)3C.L.R. 237; Piperiand Othersv. TheRepublic
(1984)3C.L.R. 1306; Partellidesv. TheRepublic
(1969)3C.L.R. 480; Smymiosv. TheRepublic
(1983)3C.L.R. 5 122; HjiSawa v. TheRepublic
(1982)3C.L.R. 76; Hjiloannouv, TheRepublic
(1983)3 C.L.R. 1041. Recourse. Recourse against the decision of the respondents to promote the interested parties to the post of Technical Superintendent in 10 theWater Development Department inpreference and insteadof the applicant. A. S.Angelides, forthe applicant. A. Papasawas, Senior Counsel of the Republic, for the respondents. 15 Cur. adv. vult. STYLIANIDESJ.readthefollowingjudgment. Bymeansofthis recourse the applicant challenges the promotion of the 6 interested parties to the post of Technical Superintendent in the Water Development Department. 20 The grounds advanced by counsel for the applicant for the annulment of thesub-judice decision are:(a)The respondent Commission failed to carry out a due inquiry; 25 (b)Itfailed to make acomparison of allthe candidates and particularly of the applicant with the interested parties and with the two candidates recommended by the Head of the Department but not promoted; (c)Itlaboured under a misconception of fact; (d)The recommendations ofthe Directorwerefaulty; and, 30 (e) Generally, it failed in its paramount duty to select the bestsuitablecandidate forthefilling of the vacant post. 811 Styllanldes <f. S a w a v. Republic
(1987)The post of Technical Superintendent isa promotion post. . A Departmental Board was set up under the relevant Regulations. After considering the candidates, it found that only 13 possessed the required qualifications under the scheme of service. 5 The respondent Commission, after receiving the report of the Departmental Board, had aspecial meeting atwhich the Headof the Department made his recommendations. The Head of the Department stated that allthe eligible candidates were excellent officers but as the candidates were more than the vacancies, he 10 hadtomakerecommendations. Herecommended Frangopoulos, Hji-Ioannou, Pitsillides, Liassis, Kastanas and Eliades. He proceeded further and expressed his opinion and recommendations concerning theother7candidates. Hesaidthat AndreasSawa (thepresentapplicant) isan excellentofficer, most 15 capable,whoworksforthetendersoftheDepartmentand matters pertaining to compulsory acquisitions as well as subjects concerning private water rights for the works constructed by the Department. Lanitis is an excellent, most capable and willing officer. He 20 described theworkthisofficer wasdoing.Lanitiswasdealingwith water resources, the co-ordination of the various hydrological worksof the DistrictOffices and the control of privatedrills. PantelisAlexandrou isalsoan excellent and extremely devoted officer. He worked inthe hydrological service and hismain duties 25 were hydrological studies and the computers of the Department. The Commission having regardtothe recommendations ofthe HeadoftheDepartment, thecontentsofthepersonalfilesand the filesof the confidential reports of the candidates, after evaluation and comparison of the candidates, reached the sub-judice 30 decision whereby it promoted the 6 interested parties, four of which were recommended by the Head of the Department, the Director of the Water Development Department, and two who, though not recommended bythe Director, were the best rated in theirconfidential reports for the lastpreceding years. 35 TheCommission inmakingapromotionshallhave dueregard to the annual confidential reports on the candidates and to the recommendations made in this respect by the Head of the Department in which the vacancy exists - (Section 44
(3)of the PublicService LawNo.33/67). 812 n 3 C.L.R. S a w a v. Republic Sryllanides J. The Head of a Department is in a position to appreciate the demands of the post to be filled and the suitability of the candidates todischargethedutiesofthepost. Itiswell established that the Public Service Commission has to pay heed to such 5 recommendations and iftheydecidetodisregard them, they have to give reasons for doing so - (See, inter alia, Lardis v. The Republic,
(1967)3 C.L.R. 64; HjiConstantinou v. The Republic,
(1973)3C.L.R.65;Petridesv. PublicService Commission,
(1975)3 C.L.R. 284; Mytides and Another v. The Republic,
(1983)3 10 C.L.R. 1096; TheRepublic v.Koufettas,
(3985)3 C.L.R. 1950). Itiswellestablished further that when the recommendations of the Head ofaDepartment are inconsisten' withthe overall picture presented bythe confidential reports, theyshould be disregarded or be given limited weight, depending on the extent of the Z5 inconsistency - (See,interalia,Georghiou v.TheRepublic,
(1976)3 C.L.R. 74, 84; loannou v. The Republic,
(1977)3 C.L.R. 61; Andreas Sawa v. The Republic,
(1980)3 C.L.R. 675, 684; The Republic v.Koufettas(supra)). The respondent Commission, having gone meticulously 20 through the confidential reportsof each one ofthe 13candidates, disregarded therecommendations ofthe Head ofthe Department with respect to Pitsillides and Liassis and selected Lanitis and Alexandrou. Alexandrou has the best confidential reports of all the 25 candidates allthrough the years. Forthe lastfour years,i.e.1981, 1982, 1983 and 1984, he had 12 «Excellent» and for 1979 and 1980 9.3.0 and 11.1.0. Lanitis was rated slightly inferior to Alexandrou but better than any other candidate. He was rated «Excellent» for the 6 years taken into consideration by the 30 Commission. The Commission made extensive comparison between the two recommended by the Director and not selected and Lanitis and Alexandrou whowerepreferred. TheCommissioninprefering the two — Lanitis and Alexandrou — acted properly and within the 35 principles pronounced by thisCourt and their such preference is not faulty. The contention thatthey failed tocarryoutadue inquiryhasno merit. The Commission took pains not only to go through the personal files and confidential reports of the candidates but also 40 they recorded in their decision the marks of all 13candidates for 813 Stytlanldes J. S a w a v. Republic
(1987)the last 6years and further they looked into the seniority of them havingregardtothefact that 11ofthe candidateswere promoted to the immediately lower post of Senior Technician on the same date, namely, 15.11.81. It istrue that the applicant is senior to Alexandrou and Lanitis;itisalsocorrectthatPitsillidesandLiassis, who were not preferred, are senior to the applicant and to the aforesaid twointerested parties. 5 I examined with care the complaint of the applicant that the respondent Commission did notmakethe necessary comparison of all the candidates and in particular of the applicant with the 10 interested parties and the two who were recommended and not preferred. The minutes of the Commission do not bear out the submission of counsel for the applicant. It is obvious from the contents of such minutesthatallthe candidates were considered anditwasnot,inanyevent,necessarytomentionspecifically each 15 candidate intheminutes,becauseintheabsence ofanyindication thatanycandidate hasbeen excludedfrom consideration,ithasto be presumed that all of them were duly considered -(See, inter alia,Michanikos v.TheRepublic,
(1976)3 C.L.R.237,244;Piperi and Othersv. The Republic,
(1984)3 C.L.R. 1306,1312). 20 It was submitted that the seniority of the applicant was disregarded or was not duly taken into consideration. The seniority of allthe candidates, including the applicant, was taken into consideration in reaching the sub-judice decision. This is bome outfromtheminutesoftheCommission;even ifitwerenot, 25 in view of the presumption of regularity, which isapplicable in relation toadministrative actions,thissubmission hasno merit. The interested parties junior to the applicant were strikingly better in merit, as depicted in the confidential reports. The Commission gave cogent reasons for their selection. It is well 30 settled that seniority prevailsifinallotherrespectsthe candidates concerned are more or less equal - (Partellides v. The Republic,
(1969)3 C.L.R. 480;Smymios v. The Republic,
(1983)3 C.L.R. 122). It was submitted that the Commission laboured under a 35 misconceptionoffactinthesensethattheHeadoftheDepartment misrepresented thedutiesperformed bytheapplicantandthe fact thathestatedthattheperformance ofthecandidatesduring1985, for which there were no confidential"reports, was more or less equal tothe previousyears. 40 814 3 C.L.R. S a w a v. Republic Styllanldes J. Thedutiesperformed byanofficer arewrittenbyhiminhisown handwriting on the first page of the forms of the confidential reportswhich were before the Commission. The duties which he wasperforming, accordingtothe form ofthe confidential reports, 5 for the last6yearswere: He wasinchargeofthetenders' branch, waterrightsand landacquisitions.Isee nodifference between the statement of the Director and the duties performed by the applicant.TheDirectordidnot underestimate theapplicant inthe eyes of the Commission in any respect and to any degree 10 whatsoever. The Commission had before them besides the statement of the Director the confidential reports and, as it is obvious from the contents of the sub-judice decision, they went meticulously through them. This ground was not substantiated and fails. 15 Itwasfinally submitted that the Commission failed initsdutyto select the best suitable candidate forthe post. The public service is a most important factor for the efficient functioning of the State.The interests of the citizensina modem State,whoseactivitiesareexpanding, arebestservedby qualified, 20 experienced and efficient civil servants. The object of the Public ServiceLawandtheprinciplesofadministrativeLawpertainingto promotionsisthefurtherance ofsuchinterestaswellasthecareof therightfulclaimsofthecivilservantsforelevation intheir career. The paramount duty of the Commission is to select the best 2S suitable candidate. The burden that the Commission failed in its such duty lies squarely on the shoulders of the applicant. The Commission made a selection for the purpose of promotion.An administrative Court cannot intervene in order to set aside the decision regarding such selection unless it is satisfied, by an 30 applicant ina recourse before it,thathewasaneligible candidate whowasstrikinglysuperior totheone whowasselected, because only insuch case the organ which hasmade the selection for the purpose of an appointment or promotion is deemed to have exceeded the outer limitsof itsdiscretion and, therefore, to have 35 acted inexcessorabuse ofitspowers;also,insuch asituation the complained of decision of the organ concerned istobe regarded as either lacking due reasoning or as based on unlawful or erroneous or otherwise invalid reasoning -(Odysseas Georghiou v. TheRepublic,
(1976)3 C.L.R. 74,83). 40 «Striking superiority» was aptly analysed in Hji-Sawa v. the 815 Stylianldes J. S a w a v. Republic
(1987)Republic,
(1982)3 C.L.R 76, and Hji-loannou v. The Republic,
(1983)3 C.L.R. 1041. The applicant failed to satisfy the Court that he was strikingly superior tothe interested parties. Inviewoftheaforesaid thesub-judice decision isnotfaulty.The 5 Commission acted accordingtothe Lawandwithinthelimitsofits discretion.The sub-judice decision wasreasonably open toitand thisrecourse fails. The challenged decision for promotion of the 6 interested parties is,therefore, confirmed inwhole underArticle 1464(a).The Recourse ishereby dismissed. 10 Itmay be said that the applicant during the pendency of these proceedigs was promoted tothe same post but, ashe had aright in Law, he pursued thisrecourse tothe end. Withsome hesitation I make no order as tocosts. Recourse dismissed. 15 No orderasto costs. 816