(1988)1988May27 [SAWIDES,J.] INTHEMATTEROFARTICLE146OFTHECONSTITUTION PERISS.PAPATHOMAS, Applicant, v. THEREPUBLICOFCYPRUS,THROUGH THEPUBLICSERVICECOMMISSION, Respondent. (CaseNo.46187), Public Officers—AppointmentslPromotions —First entry and promotion post—Qualifications—Theapplicantwasqualifiedfor thepost,becausehe hadtherequiredacademicqualification,andtheinterestedparty,becausehe hadtherequiredunderanotetotheschemeexperience—Applicantcannot beconsideredashavinganadditionalqualification—Therefore,therewas noneedforspecialreasoningwhyhewasnotselected. PublicOfficers—Appointments/Promotions—Qualifications—Knowledgeofa subject—Itmaybeestablishednotonlybytheproductionofacertificate, but,also,byanyothermaterial. Public Officers—Appointments/Promotions—Confidential reports—Transfer ofanofficerduringSeptember, 1983fromtheDistrictCourtofPaphosto theSupremeCourt—Confidentialreportfor 1983madebyChiefRegistrar withoutconsultation withthepreviousreportingofficer—ChiefRegistrar waspreviouslythecountersigningofficerandknewsuchofficer'sperformance—Contentionthatthereportisinvalid—Heldunfounded. PublicOfficers—AppointmentslPromotions—Department'srecommendation precedinginterview—BurdenofsatisfyingCourtthattheCommissionwas, thus,influencedorprejudicedagainstapplicant—Liesonapplicant'sshoulders. 1086 3 C.L.R. Papathornas v. Republic Public Officers—AppointmentslPromotions—Weighing of therelevantfac tors—Commissionmayattributemoresignificancetotheonethantoanoth er,provideditexercisescorrectlyitsdiscretion. 5 10 Thisrecourse, wherebytheapplicantimpugnedthepromotionof theinterestedparty tothepostof ChiefRegistrar,was dismissedby the Court. Theprinciplesexpoundedby theCourt,indismissingtherecourse,aresuf ficiently indicatedinthehereinaboveheadnote. Recoursedismissed. .Noorderasto costs. Casesreferredto: Georghiou v.TheRepublic
(1976)3C.L.R.74. ι Recourse. .,. Recourseagainstthedecision of therespondenttopromotethe interested party tothepost of Chief Registrar in theJudicialDepartmentinpreference andinstead of theapplicant. Applicant appearedin person. P. derides, for therespondent. Cur. adv. vult. 20 25 SAVVIDES J. read thejudgment. The applicant prays for a declaration of theCourtthatthedecision of therespondent,published in theofficial Gazetteof the Republic dated 14th Novem ber, 1986, whereby Mr.Michael Sawa, theinterested party, was promoted tothepost of Chief Registrar,instead of and in prefer encetohim,should be declared null andvoid. Thefacts of thecasearebriefly as follows: Due to theretirement of the then holder of the post of Chief Registrar in the Judicial Departmentwhich is a First Entry and Promotionpost, thevacancy was publishedintheofficial Gazette 1087 SavvidesJ. Papatnomasv. Republic
(1988)oftheRepublicdated 14thAugust,
- Fiveapplicationswere submitted inresponse,amongstwhichthoseoftheapplicantand the interested party.Therespondent, at its meeting of the25th September, 1986,considered theapplications anddecidedtointerview thecandidates in thepresenceof arepresentativeof the 5 Supreme Court.The Supreme Court,byletterdated 10thOctober, 1986,informed therespondentthatitdidnotconsideritnecessary torepresent itself at theinterviews since all candidates wereknowntoitfromtheirworkintheJudicialDepartmentand recommendedtheinterestedpartyasthemostsuitable. JQ At its meeting of 16th October, 1986 the respondent interviewedfourofthecandidates(thefifthonewithdrewhisapplication)andafter assessingtheirperformanceproceededtotheirgeneralevaluation andcomparison.(Seeminutes,appendix 4tothe opposition).Therespondent, after takinginto consideration the confidential reportsofthecandidates,theirperformance attheinterview,theirqualifications, seniorityandtherecommendations oftheSupremeCourt,found theinterestedpartyasthemostsuitableandpromotedhimtothepostofChiefRegistrarintheJudicialDepartment,asfrom 1stNovember
- 15 Thepromotion oftheinterestedpartywhichwaspublishedin theofficial GazetteoftheRepublicdated 14thNovember,1986, ischallengedbythepresentrecourse. Thefirstpointraisedbytheapplicantisthathepossesses,additional qualification which shouldhavebeenconsidered bythe 2<; respondent as amounting to an advantage and special reasons shouldhavebeengivenfordisregardingthem. The schemeof serviceprovideswithregard to qualifications underparagraph
(1)(a)that:(a)UniversityDiplomaortitleoran equivalentqualification andatleasttenyearsperformance ofdu- OQ tiesofalegalnature,atleastsevenofwhichinpracticeasanadvocateisrequiredand(b)auniversityDiplomaetc.andtenyears experienceinCourtRegistrywork. 1088 3 C.L.R. ^ 10 15 2n 2<r ~ft Papathomas v.Republic Savvides J. The same scheme also provides, under note
(1)that Senior Registrars and Registrars A' notpossessing the above qualificationscould betaken intoconsideration for thefilling of thepost, provided they have 15 years of experience in Court Registry work and they hold,on thedateof theapproval of the schemeof service,atleastthepostof Assistant Registrar. Theapplicantpossesses aDiplomainLawforExecutive Leadership of the La Salle Extension University, U.S.A. and holds thepost of Registrar A' since 15th October, 1983.The interested party is agraduate of theEnglish School,Nicosia and was holding,at thematerial timethepost of Senior Registrar towhich he was promoted on 15th July, 1984.Hisexperience in Court Registry work starts almost since his appointment in the Public Service. It isobvious from the above that both parties satisfied the requirementsof theschemeof serviceastoacademic qualifications, I cannot accept the applicant's view that his legal qualification amounts to an additional qualification in accordance with the scheme of service, once such matter does not appear in the scheme itself and as aresult Ifind that the need for special reasoningdoesnot arise inthepresentcase. The applicant also contended that theinterested party did not possessoneof thequalifications required by the schemeof service, namely, knowledge of the Financial Regulations and the Government accounting system (paragraph 4 of the scheme of service). The respondent stated in its minutes that it has found that all candidates possess the qualifications of the scheme of service. Paragraph 4doesnotrequireanycertificate orthepassing of any examinations either in Financial Regulations or the accounting system but simply requires knowledge of it. Such knowledge may beestablished not only by theproduction of a certificate to this effect, but also by any othermaterial. Itisobvious from the contentsof thefileswhichwerebefore therespondent (particular1089 Sawides J. Papathomasv. Republic
(1988)ly exhibit 1)thattheinterestedpartywas inchargeof the accounts in theDistrictCourtof Nicosia,atleastbetween theyears 1961 and 1963 anditwas reasonably opentotherespondenttofindin thecircumstances thattheinterestedpartypossessedthis qualifi cation.This ground is, therefore,dismissed. 5 Thenextcomplaintof theapplicantis thatalthough theappli cantwas transferred from theDistrictCourtof PaphostotheSu preme Courtin Nicosia in September, 1983,his confidential re portfor thatyear was preparedandsignedby theChief Registrar who,incontraventionof thecontentsofparagraph5of the regu- IQ lations concerning confidential reports did notseektheviewsof his former reporting officer, or,at least he does not state such matterinthereport. Ifind thiscontention of applicantuntenable.Oneof thefunc tions of the Chief Registrar is to supervise the staff of all the 15 courts throughouttheRepublic andas such hewas inaposition to know theperformance of theapplicant. Moreover, theChief Registrar was all along thecountersigning officer of theapplicant andas suchitis presumed thathe knew hisperformance atwork. Thiscontention is,therefore, alsodismissed. 20 Another complaint of the applicant that therespondentfirst misled the Supreme Court by finding that all candidates pos sessedtherequiredqualifications andthen tookintoconsideration therecommendationsof theSupremeCourt,andwas influenced by themintaking the subjudice decision, since thesaidrecom- 2 ς mendationspreceded the interviews. As Ifound earlier itwas reasonably open tothe respondentto findthattheinterestedparty possessedthequalifications required by the scheme of service.As totherecommendationby theSu preme Courtof theinterested party itis clearly stated by the re- ™ sponded inits minutes of 16th October, 1986, that suchrecom mendation was in no way to be considered as binding on it. Having perused theminutesof themeetings of therespondentI find thatthereis nothingtoshowthattherespondentwas inany 1090 3 C.L.R. 5 Papathomas v. Republic Savvides J. wayinfluenced orprejudiced againt theapplicant bythefact that therecommendations oftheSupreme Court (theDepartment concerned)preceded theinterviews,andtheburdenisupon theapplicant to prove such allegation. I will, therefore, dismiss this ground also. I now come toconsider themeritsof thecase. It has beenestablished byaseriesofcasesthatanapplicant, inordertosucceed inarecourseagainst anappointment orpromotion must establish striking superiority overtheinterestedparty andmere superiority JO isnot enough. Inconsidering appointments orpromotions theappointingorganmustweigh allfactors pertaining tothecandidates together andchose thebestcandidate.Indoing sotherespondent may attribute more significance toone factor than another, as it maydeem properhavingregard tothecircumstances of thecase, , - provided, always, that it exercises its discretionary powers correctly (See Georghiou v.TheRepublic
(1976)3C.L.R.74, atp. 82). 20 25 Thetwopartiesweremoreorlessequal inmerit asthepicture isreflected throughtheirconfidential reports.Inaddition theperformance of theinterested party duringthe interviews was better asfound by therespondent.Theinterested party was also senior totheapplicant.Havingregard tothecircumstances,thefact that theapplicant possessed more academicqualifications than theinterested partycannotestablish byitself striking superiority on his part.I,therefore, find that thesubjudicedecision was reasonably open totherespondent. Intheresult thisrecoursefails andishereby dismissed, In thecircumstances Imake noorder for costs. Recourse dismissed. No orderasto costs. 1091