clr/1988/1988_3_137.pdf

(1984)3C.L.R. 577approved. Public Officers—Promotions—Confidential reports—Report suggesting promotionassoonaspossible—Doesnotamountinthecircumstancestoa recommendationastowhoofthecandidatesshouldbepromoted. Public Officers—Promotions—Interviews, performance at—In the circumstancesrespondentdidnotattachundueweighttosuchperformance. This isan appeal from thejudgment, whereby appellant' srecourse, challengingthevalidityofthepromotionoftheinterestedpartytothepost ofRegistrar(Ear,Nose,Throat)intheMedicalandPublicHealthServices, wasdismissed. The appellant submitted that under the relevant scheme of service, publishedon8.4.83,theinterestedpartywasnotqualified forpromotion. Theinterestedpartycontestedappellant'sowneligibilitythereunder. The interested party was senior to the appellant and, moreover his 137 Mettas v. Republic

(1988)performanceattheinterview wasratedbetterthanthatof theappellant In theconfidential reportfor 1982 thereporting officer recommended appellant'spromotiontothepostof Registrarassoonaspossible,whereas, asregards theinterested party,hestatedthathewas carrying hisdutieswith excellentzeal. 5 Held, dismissing the appeal·

(1)On the authority of Republic ν Pencleous

(1984)3 C.LR 577 thequalifications acquired after thedate appointedasthelastday for submittingapplications for thepostin question couldnothavebeentaken intoconsiderauon.

(2)ThisCourtdoes notinterfere withtheappiicauonandinterprelauon of a scheme of service by the Public Service Commission, if it was reasonably open totheCommission Inthiscase, theCourtcannot agree thatthe"7years'experience" should have beenacquiredafter the obtaining of thespecializauoninthefieldof otolaryngology. 10

(3)The confidential reports for 1982 could not be treated as a 15 recommendation, as regards who of the two candidates should be promoted.

(4)TheCommission did notgiveundueweighttotheperformance of thecandidatesattheinterviews

(5)Theappellantfailed toprove thathewas strikinglysuperior tothe interestedparty. 20 Appealdismissed Noorderastocosts Casesreferredto 25 Republic ν Pencleous

(1984)3C.LR. 577; Republic ν Aivalwtis

(1971)3CL.R.89; Frangoultdesν ThePublicServiceCommission

(1985)3C.L.R. 1680; Republic v.Xinari

(1985)3C.L.R. 1922; Triantafyllides v.TheRepublic

(1970)3C.L.R.235; 138 3 0 3 C.L.R. Mettas v. Republic Petrides v. TheRepublic

(1981)3C.L.R.57; Evangelouv. TheRepublic

(1965)3C.L.R.292; Georghiouv. TheRepublic

(1976)3C.L.R. 1074; Hadjiloannou v. TheRepublic

(1983)3 C.L.R.

1. Appeal. Appeal against thejudgment of aJudgeof the Supreme Court of Cyprus (Pikis, J.) given on the 12th January, 1985 (Revisional Jurisdiction Case No.494/83)* whereby appellant's recourse against thepromotion of theinterested party tothe post of Registrar in the Otorinolaringological Section in the Medical andPublicHealth Services wasdismissed. K.Talarides,for theappellant. A. Vladimerou,for the respondent. A.S. Angelides, for interested party Chr. Komodikis. 15 20 Cur. adv. vult TRIANTAFYLLIDES P.read thefollowing judgment of the Court. By means of the present appeal the appellant attacks the first instance judgment of a Judge of this Court by virtue of which there wasdismissed his recourse (494/83), under Article 146of the Constitution, against the promotion of the interested party tothe postof Registrar (Ear, Nose,Throat) inthe Medical and PublicHealth Services, witheffect from 15August
2. Thesaidpromotion waseffected byadecisionoftherespond- *Reportedin

(1985)3CL.R.250. 139 Triantafyltides P. Mettas v. Republic

(1988)ent Public Service Commission, which wasreached on 2 August 1983. The salient facts of this case are adequately set out in the judgment of the learned trialJudge (see Mettas v.The Republic

(1985)3 C.L.R. 250) and will not be repeated in the present judgment except in so far as it is necessary to do so for the purposes of determining thisappeal. 5 The post inquestion is afirstentryand promotion post. At thematerial time both theappellantand theinterested party were Medical Officers Class 1 (asfrom I May 1974and 1 January 10 1974,respectively) and they wereserving in the ENT Section of the Nicosia General Hospital (since 1972 and 1973, respectively). Counsel for the appellant hasargued that the interested party was notqualified for promotion tothepost inquestion; and,also, 15 counsel for theinterested party hasargued that theappellant was not qualified for such promotion and that, therefore, he did not possess a legitimate interest, inthesenseof Article 146

(2)of the Constitution,entitling him tofile hisaforementioned recourseand topursue thepresent appeal. 20 The relevant scheme of service waspublished in the Official Gazette of theRepublic on 8April 1983,when thevacancy inthe post concerned was advertised and applications were invited in respectof itupto30April

1. 25 It has been contended by counsel for the appellant that the Diploma in Laryngology and Otology, which was granted tothe appellant on 31 July 1980 by the Royal College of Surgeons of England, did not satisfy the requirement of the said scheme of servicefor adiplomaortitleofspecialization in Otolaryngology. It has been contended, on theother hand, by counsel for the interesred party that the appellant did not possess seven years 140 30 3 C.L.R. Metsas v. Republic Triantafyllides P. experience inthespecialized field of Otolaryngology as required by therelevant schemeof service. 5 10 15 20 25 30 Itis tobe notedthattheinterested party obtained aDiplomaof specialization in Otolaryngology (Ωτορινολαρυγγολογία) in Greeceon 20 July 1983 and the appellant had obtained such a Diploma earlier,on20 July
2. In view of the principles expounded in the Republic v. Pencleous,

(1984)3 C.L.R. 577, the Greek qualification of the interested party cannotbe taken intoaccount,for thepurposes of the present case, since it was obtained after the date (30 April 1983) when hecould apply for promotiontothepostinquestion. Itis commonground thatboth theDepartmentalCommittee in the Departmentof Medical and Public Health Services, which reported to the respondent Public Service Commission on the candidates for the post in question, and the Public Service Commission,subsequently, found thatboth theappellant andthe interested partywereduly qualified, undertherelevant schemeof service, for promotion tothepostconcerned. Itis well settled thatthisCourt,as an Administrative Court,in the exercise of its jurisdiction under Article 146 of the Constitution, will not interfere judicially with the interpretation and application of a scheme of service by the Public Service Commission if it was reasonably open to theCommission in the particular circumstances (see, inter alia, in this respect, The Republic v. Aivaliotis,

(1971)3 C.L.R. 89,Frangoulides v. The Public Service Commission,

(1985)3 C.L.R. 1680 and The Republic v. Xinariy

(1985)3 C.L.R. 1922). We cannot agree with the contention of counsel for the interested party that the total experience of seven years in the specialized field of Otolaryngology ,which is required underthe relevant schemeof service, oughttohave been acquiredafter the appellanthadobtained hisrelevant specialization inGreeceon 20 July 1982. Since,therefore, theappellant hadexperience in such 141 Tria.itafyLides P. Mettas v.Republic

(1988)a field dating back continuously to 1972 , and such experience includedatleast threeyearsservice inthepostsofMedical Officer Class II, (as from 1April, 1972) and Medical Officer Class I,it was clearly open to the Public Service Commission to find that theappellant wasduly qualified, inthisrespect, underparagraph 5 3 B

(2)of therelevant scheme of service for promotion tothepost concerned; and, consequently, he was entitled to apply for such promotion and, having not been selected for this purpose by the respondent Public Service Commission, he was entitled, under Article 146.2 of the Constitution, to file his recourse against the ,Q promotion of theinterested party and topursue,also,the present appeal. We are, also, of the view that it was reasonably open, in the circumstances, to the respondent Commission to find that the interested party was qualified for promotion, because even though hedid not possess a fellowship in Otolaryngology of the RoyalCollegeof SurgeonsofEngland hepossessed theDiploma in Laryngology and Otology of the said College, which could properly be treated as an alternative qualification under thefirst partofparagraph 3.A

(2)of therelevant schemeofservice. ,^ Counsel for the appellant has, also, contended that the appellant ought tohave beenpreferred totheinterested party for promotion inasmuch as in the confidential report regarding the appellant for 1982 the then Senior Specialist (ENT), Dr. I. Kourris,had reported that theappellant wasreplacing him when ^5 absent and wascarrying out surgical operations incases referred from the District Hospitals and had recommended him for promotion to the post of Registrar as soon as possible, whereas in hisreport for 1982regarding the interested party Dr. Kourris 30 had notmadeany such recommendation. Itisafact, however, that inthesaidreportfor 1982regarding the interested party Dr. Kourris had stated that he was carrying out his duties with excellent zeal. Moreover, what Dr. Kourris hadwritten inthereportsfor 1982regarding theappellantandthe 35 interested party cannot be treated as amounting to a 142 3 C.L.R. 5 10 15 20 25 30 35 Mettas v. Republic Triantafyllides P. recommendation which was made by Dr. Kourris, as regards who out of the two of them was to be promoted to the post of Registrar, after he had compared the merits of these two subordinates of his; and it is to be noted that Dr. Kourris in previousconfidential reports hadstated,about both the appellant and theinterested party, that they were carrying out their duties without anyproblem when hewas absent. The Director of Medical and Public Health Services, Dr. A. Markides, who was present, as Head of the Department concerned, when the appellant and the interested party were interviewed as candidates by the respondent Public Service Commission rated the performance of the appellant when interviewed as "very good" and of the interested party as'Very very good" and,after hehad left themeetingof theCommission on 2 August 1983, the Commission proceeded to evaluate the performance of thecandidates wheninterviewed by itand found that the appellant was "nearly very good" and theinterested party "very good". The Commission then, at its same meeting on 2 August 1983,proceeded torecord initsminitesthattheinterested party was senior totheappellant, wasfound bothby theHead of the Department concerned and by the Commission to be better than the appellant when interviewed and that, having taken into account the qualifications as well of both of those two candidates, the Commission found that the interested party was on the whole superior to the appellant on the totality of the prescribedcriteria andproceeded topromote theinterested party. Counsel for the appellant has argued that theCommission has attributedundue weight totheperformance of thetwocandidates in question when interviewed and he referred, in this respect, to Triantafyllides v. The Republic,

(1970)3 C.L.R. 235, 246 and Petrides v.The Republic

(1981)3 C.L.R. 57,66,67. We cannot agree that the respondent Public Service Commission hasattributed undueweight totheevaluation of the performance of the candidates in question when they were interviewed by it and we think that it took into account such 143 Triaitafyludes P. Mettas v.Republic

(1988)evaluation properly as part of the overall assessment of the candidates; and that in reaching its decision about its own evaluation of the performance of the candidates when interviewed itwasopen totheCommission totake intoaccount theevaluation made,in thisrespect,bytheHeadofDepartment, 5 asanelementassistingitsownevaluation. Inthelightofallthematerialbefore uswedonotthinkthatthe appellant has succeeded in these proceedings to discharge the onus,thatwascastonhim,ofsatisfying usthathewasstrikingly ,« superior to the interested party and, therefore, in the proper exercise of its relevant discretionary powers the Commission oughttohavepreferred himtotheinterestedpartyforpromotion (see, inter alia, in this respect, Evangelou v. The Republic,

(1965)3 C.L.R. 292, Georghiou v. The Republic,

(1976)3 1 5 C.L.R. 1074andHjiloannou v.TheRepublic,

(1983)3C.L.R. 1041); and, in ouropinion, it wasreasonably open ,in all the circumstances of this case, to the respondent Public Service Commission toselectforpromotion theinterestedpartyinsteadof theappellantonthebasisofthereasoning setoutinitsrelevant 20 minutes and to be derived, also, from relevant administrative records. In the light of all the foregoing weareof theview that this appealcannotsucceedandhastobedismissed;butwith noorder astoitscosts. Appealdismissed. Noorderastocosts. 144 25