(1988)1988June30 [A.LOIZOU,P.] EMTHEMATTER OFARTICLE 146OFTHE CONSTITUTION NELSON K.NEOCLEOUS, Applicant, v. THEREPUBLIC OFCYPRUS,THROUGH THEPUBLIC SERVICE COMMISSION, Respondent. (CaseNo. 655/86). Public Officers—Promotions—Head of Department—Recommendations— Enhance merit—Cannotbe lightlydisregarded. Public Officers—Promotions—Qualifications—Additional tothoserequiredby the scheme of service—Need not be taken into consideration—Donot establish bythemselves strikingsuperiority. g The facts of this case appear sufficiently from the judgment of the Court. Recoursedismissed. No orderastocosts. Casesreferredto: 10 Theodossiou v. The Republic, 2 R.S.C.C.44; Stefanou v. TheRepublic
(1986)3C.L.R.779; Larkos v. TheRepublic
(1982)3C.L.R.513; Tokkas v.The Republic
(1983)3C.L.R.361; 1318 'Neocleousv.Republic 3C.L.R. "Spanosv. TheRepublic
(1985)3CL.R.1826? Recourse. ' • 5 .. • · , .: - · ' . •Recourseagainst thedecisionoftherespondent topromotethe interested party to thepost of Assistant Chief Labour Officer in theDepartment ofLabour inpreference andinstead of theapplicant. C.Loizou withE.Neocleous, for theapplicant. . G.Frangou (Mrs.)for therespondent. • 10 '* · Cur. adv. vult. A. LOIZOU P.read the following judgment. By the present recoursetheapplicant seekstheannulmentof thepromotion ofinterested party, Kyriacos G. Kapetanios to the permanent post (Ord. Budget) of Assistant Chief Labour Officer in the Department ofLabour, which ispromotionpost from thatof SeniorLabour Officer. 1 r , Originally therewas challenged alsothe promotion of Philippos Papadopoulos but after the commencement of the proceedings the-respondent Commission revoked thepromotion of that interestedparty andtherecoursewaswithdrawn asagainsthim. 2Q 30 The respondent Commission at its meeting of the 30th May 1986considered thesepromotions.Ithad already before itthereport(Exhibit4)oftheDepartmentalBoard.Accordingtotherelevantminutes (Appendix 5)theHeadoftheDepartmentofLabour Mr. AchiUeasKallimachos wasinvited toattendandafter hewas askedtotakeintoconsideration inaddition tothecandidatesrecommended'by theDepartmental Board alsoKleanthis Karageorghiades,Georghios Synnos,Marina Prastitou and AndreasKontos, he mentioned the following: "Three are recommended. Takingintoconsideration themerit,qualifications andtheseniority, KyriacosKapetanios is thefirst. Second, isPhilippos Papad1319 A. Loizou P. Neocleous v. Republic
(1988)opoulosandtheotheroneisTimotheosDemetriou,whoaccordingtotheobservationsinthereportoftheDepartmentalBoardhe hasmuch moreyearsof servicethan theothers andwho,onaccount of his serving in Nicosia, had toface moreproblems.In particular,asregardsthelastonehesuggeststhathebetakeninto 5 considerationforthereasonthathehasgreatseriority". TherespondentCommissionthenstartedevaluatingandcomparingthecandidates.Ittookintoconsideration the confidential reports of thecandidatesin theirtotality, andit indicativelyreferred tothose,since 1979whenthenewtypeofconfidential re- JQ ports wasintroduced, that is,thereportsof thelastsevenyears. It alsoconsidered thequalifications of thecandidatesand asregardssenioritytherespondentCommissionnotedthatallthecandidateshadbeenpromotedtotheirpresentpostonthesameday, namely the 1st March, 1983.First, however,onthebasisof his ,~ previous seniority wasDemetriou,followed inorderofseniority by Karageorghiades, Synnos, Michaelides, Kapetanios,Prastitou, Christodoulou, Moleskis, Kontos, Papadopoulos, NeocleousandNicolaou. Theminutesthengoontosaythatonthematerialbeforeit,it adopted therecommendations oftheHeadof theDepartmentas regards Kapetanios and Papadopoulos having noted that these twoofficers had thehighestconfidential reportsfrom amongall the candidates (Kapetanios wascontinuously "Excellent" since 1979andPapadopouloswasalso"Excellent"since 1979withthe onlyexception for 1983whenhewasratedas"VeryGood").As regards Demetriou whom the Head of the Department recommended alongwith theothertwo,theCommissionfound thatinspite of his seniority he wasobviously lower in merit than the othertwoandhecouldnotprevailbeinglowerinmerit.Themin- 30 uteconcludesbysayingthattheCommissiontakingintoconsideration allthematerialbeforeit,consideredonthebasisoftheestablishedcriteriaintheirtotality(merit,qualifications, seniority) thatthefollowingweresuperiortotheothercandidatesanddecidedtopromotethesetwoasthemostsuitableforthepost. 35 1320 20 3 C.L.R. 5 Neocleous v. Republic The main ground of Law relied,upon by theapplicant is that therespondentCommission failed toselect thebest candidateand violated in.this way theprinciples layed down inTheodossiou v. The Republic, 2 R.S.C.044 and followed in a series of case's ever since. *<· 10 15 2Q 5 30 35 A. Loizou P. · , . .-,·!. ..i ν - ; .. * -' The superiority of Interested party Kapetanios was obvious from thematerialinthepersonalfilesandtheconfidential reports. His superiority was further strengthened from therecommenda tion of theHeadof theDepartmentwhich was consistent with the material in the file. On this point it may be mentioned here that meritis enhanced,as said inthecase of Stephanou v. The Repub lic
(1986)3 C.L.R. 779. Merit is definitely enhanced by the strong recommendationsinfavour of acandidateby theHeadof theDepartmentand which nodoubt should be given due regard by the Public Service Commission as envisaged by s. 44
(3)of the Public Service Laws 1967 to 1986. Moreover such recom mendationscould notbe ignored by therespondent Commission when consistent with thematerial in thefileswithout special rea soning being given. As regards qualifications both theapplicantandthe interested party had therequired ones andany additionalqualifications not required by theSchemeof Service neednotbe taken intoconsid eration by therespondentCommission nordothey by themselves establish striking superiority. (Larkos v. Republic
(1982)3 C.L.R. 513, Tokkas v. Republic
(1983)3 C.L.R. 361, Spanos v. Republic
(1985)3 C.L.R. 1826). It is on the strength of this well established principle that any additional qualifications pos sessed by the applicant could not have had substantial signifi cance,when therespondent Commission was taking thesub -judice decision. On thetotality of thecircumstances Ifind thatitwas reasona bly open to the respondent Commission to select the interested party for the post in question and to consider him as the most suitable for thepost, such selection having been made properly, after dueconsideration of all therelevant materialthatwas before .1321 A.Loizou P. Neocleousv.Republic
(1988)itandafterexercisingproperlyitsdiscretion.Theapplicanthasin myviewfailed toestablishnotonlyanystrikingsuperiorityover the interested party in order tojustify any interference by this Courtwiththesub-judicedecision,butanysuperiorityatall. Forthereasons stated abovethisrecoursefails andishereby dismissed, but in the circumstancestherewill benoorderasto 5 costs. Recoursedismissed. Noorderastocosts. 10 1322