clr/1988/1988_3_1729.pdf

(1988)Casesreferredto: Petsasv.TheRepublic, 3 R.S.C.C.60; Soteriou v.TheRepublic

(1980)3 C.L.R. 237; Republic v.Arakian

(1972)3C.L.R.294; SantosandOthersv.The Republic

(1969)3C.L.R.28; 5 Miltiadous v. TheRepublic

(1969)3C.L.R.

1. Recourse. Recourse against thedecision oftherespondent topromotethe interested parties tothepost of Land Officer, 2nd Grade, inpreference andinstead of theapplicants. 10 K. Talarides, for the applicant. L. Koursoumba (Mrs.), for the respondents. P. Papageorghiou, for interested parties Nos. 3, 4, 6, 7, 9, 10, 11, 12, 13 and
2. C. Varda, for interested party No.
3. 15 Cur. adv. vult. A. LOIZOU P. read the following judgment. This recourse was to beheard together with recourses96/86, 159/86,and 198/ 86, but the objection raised by therespondent Commission that the applicant did nothavea legitimateinterestashedidnotpos- 20 sess the required under therelevant scheme of service qualifications,hasbeen thoughtpropertobetaken separately andasapreliminary point to the hearing of the recourse itself, whilst the otherrecourses wereadjourned sinedieawaiting theresultof Revisional Appeal728 inwhich thequestionof thevalidityofconfi- 25 1730 3 CX.R. Aristides v. Republic A.Loizou P. dential reports'made without'strict compliance to Circular No., 491 of the 26th1March 1979, was to be determined by the Full Bench. ,l " '" /" 5 10 15 20 25 30 The applicant inthisrecoursechallenges thevalidity of thedecision of the respondent Commission to promote the interested parties to the post of Land Officer Second Grade, in preference' andinstead ofhimself. Amongst thequalifications required bytherelevant Schemeof Serviceis "atleastfiveyearsservicetothepostof Assistant Land Officer". Also the Schemeof Service further provided that "possession of aUniversity degreeor titleor equivalent qualification in an appropriate subject e.g. Law (including Barrister-at-Law) Land administration etc., or Member of the Royal Institute of CharteredSurveyors (General PracticeDivision), constitutes an advantage".UnderNote

(2)totheSchemeof Service "for thefilling of the vacant posts during the first five years after the approval of the present Scheme of Service":—it was approved on the 16thJuly 1981—"there may, also,bepromoted officers who do not possess five years service to the post of Assistant Land Officer, but they possess atleast five years service tothe postof AssistantLand Officer and Land Clerk FirstGrade". The applicant was promoted to the post of Land,Clerk First Grade on the 1stMarch, 1978and went abroad for studies on the 27th June, 1979.From the 2nd July 1979 tothe 21st September 1979,hewasattending acourseofEnglish atSouth Devon Technical College atTorquay. Asfromthe 1stOctober 1979hestarted attending the North East London Polytechnic for the purpose of obtaining aUniversity degree.Hereturned toCyprus on the.10th July 1982. By means of a letter dated 26th August 1985, applicant informed hisHead of Department that according to hisown estimate he did complete the "five years service required by the Scheme of Service on the 20th June 1985", and so he could be considered as acandidate for the above post. In hisabove letter, 1731 A. Loizou P. Aristides v. Republic

(1988)theapplicantreferred toCircularNo.614,oftheDirectorofPublic Administration and Personnel, dated the 3rd March, 1982, which deals with the question of recognition as "service", for purposes of the Schemes of Service, of the period of Studies also. By thiscircular there wascommunicated adecision of the 5 Council of Ministers dated 12thFebruary 1982,and in sofar as relevantitreads: "(c)Educationorpost-graduateeducationabroadrelatingto thedutiesof thepost andnotleadingtotheacquisitionof (i)University diploma or titleorotherequivalent qualification,or (ii)Post-graduate diplomaor title, should beconsidered as serviceorexperience uptooneyearatthemaximum,provided that such education or post-graduate education is not deemed asan education undertherelevant scheme of service. 10 15 (d)Education abroad leadingtotheacquisition of auniversitydiploma ortitleorof anotherequivalentqualification byan officer not possessing such a diploma or title or equivalent qualification should not bedeemed asserviceorexperience." Therespondent Commission atitsmeetingofthe21stOctober 1985, dealt with the question of thepossession by the applicant of the "five years service" required by the relevant Scheme of Service and itsrelevant minutereads: 20 "AristosAristidou byhis letterdated the26th August 1985, requested to be credited with service held for the period of 25 eighty-four days which was standingtohiscredit asleaveand for the period of three months scholarship as well as for the three months period of learning the English language. The Commission after takingintoconsideration alltherelevant material before it,decided that thedecision of theCouncilofMin- 30 isters embodied in Circular No.614 dated 3rd March, 1982, of the Director of Public Administration and Personnel, isnot 1732 3 C.L.R. · · . : . Aristides v.Republic ' . ' < - . ' . • . • · ' . A.Loizou P. • ' " applicableinthecaseof AristosAristidou and therefore hehas notcompleted"therequired five years'service,1soastorank as acandidatefor thepost." ' . · - · ' ' 5 10 15 20 25 30 Notwithstanding theabovedecision whereby theapplicant was found not to possess the qualifications required'by the relevant - Schemesof Service, it appears that theapplicant was eventually considered for promotion for intherelevant minuteof therespondent Commission dated the 11th December, 1985, we read the following: "TheCommission hasalsonotfailed totakeintoconsideration thatAristos Aristidou whowasnot selected,possesses the qualifications which constitutes advantage and has 'excellent' in all respects confidential reports during the last years. TheCommission, however, having noted thatheranks 36thin seniority, decided that the*above officers who were selected possessed on the basis-of'the totality of the criteria better claims topromotion." Theabovesituation ledtoanapplication onbehalfofthe'applicant calling upon therespondent Commission toclarify whether' applicant wasconsidered asacandidate.Thereafter learned coun-' selfor therespondentfiledastatementtotheeffect thattheappli-" cant wasfound by thePublic Service'Commission a'snot having completed five yearsservice asrequired bytheSchemeof Service and sohecould not betaken intoconsideration as acandidate;but" that due to an inadvertence which was due to the fact that his name had not been deleted from this list of evaluation of candi- ' dates which were before the Commission he too'was taken into consideration along with theotherqualified candidates. Learned counsel for the applicant in his written address attacked both the decision relating to the non-possession of the qualification of "five years'service" by the respondent and the decision relating to the promotion of the interested parties arid madethefollowing contentions: 1733 • ·*'· A. Loizou P. Aristides v. Republic

(1988)"(a)That thedecision oftheCouncilof Ministers embodied in Circular 614of 3rd March, 1982,is ultraviresthe enabling legislation. (b)Thateven ifthe CouncilofMinisterspossessed legislative authorisation toissue thesaiddecision suchadecision isa 5 regulatory decision andhastobepublishedintheOfficial Gazette and beplaced before theHouseof Representatives. (

1. c)That even if the said decision was validly issued the Public ServiceCommission misinterpreted thesaid decision. (
2. d)That if the meaning of paragraph (
3. d)is to deprive the 10 applicant of hisperiod of servicewhilst on studyleavethen the decision of the Council of Ministers makes a discrimination vis-a-vis the case of post-graduate studies.There is,alsodiscrimination between those falling within paragraph (
4. d)and those falling within paragraph (c)". 15 Dealing with contention (a)above,Imust saythat authorization for theissue of the saiddecision of the Council of Ministers is to be found in section 29 of the Public Service Law, 1967 (Law No. 33/67), which gives power tothe Council of Ministers to make the Schemes of Service for the various posts. The said 20 decision isnothing butageneralsupplementaryprovision relating to all Schemes of Service and assuch isauthorized bytheprovisionsof sections29 and 13,therefore itisnot ultra vires.Contention (
5. a)must therefore fail. Myconclusion regarding contention (a)seals thefate ofcontention (b).The saiddecision beingagen- 25 eral decision concerning Schemesof Service is not a regulatory decision and need not bepublished in theofficial Gazette. Contention (b)must, therefore, fail. Contention (
6. c)brings into thepicture theprinciple governing judicial controlof theinterpretationof SchemesofService.Under 30 these principlestheCourt will notinterfere withthe interpretation given by theCommission toaschemeof service,if suchinterpretation was a reasonable one. (See Petsas v. The Republic, 3 1734 3 C.L.R. Aristides v. Republic A. LoizouP. R.S.C.C. 60; Soteriou v. TheRepublic

(1980)3 C.L.R. 237). • ••'·.·« · > . ' • ' 10 Having regard tothecontention of therelevant Schemeof Ser­ vice and thefactual situation before trie'Public Service Commis­ sion,theinterpretationwhich itdidgivetotheSchemeof Service was reasonably open toit! Contention(c)must therefore fail too. Regarding thecontention aboutdiscrimination, Imust say that the principleof discrimination'orunequal·treatment is applicable to situations which are of the same natureor entail equal or similar treatment of all those who are to be found in the same situation. (SeeRepublic v.Arakian

(1972)3 C.L.R. 294.) 15 Theobtaining of apost-graduate degreeis asituation which is notof the same natureas theobtainingof agraduate degree.The differentiation is areasonable one,and therefore thereis nodiscrimination,as equality existsonly amongequals. Contention (d) musttherefore fail. 5 . >"> " .' '·' . „ » " " For all theabove reasons thedecision of the respondent Com­ mission\that applicant-did notipossess the "five years service"'' 1 was reasonably and'lawfully open"to it. Inview'of this conclu­ sion applicanthas no.legitimate interestunderArticle 146.2 tofile 20 a recourse which must, for this reason,,be and,is hereby(dis-, ,-missed. (See Santos'and Othersv. TheRepublic

(1969)3 C L . R ! 28 andMiltiadous v.-The-Republic

(1969)3 C.L.R. 210.) Inane circumstances.'however, there'willbe no order as'to costs/ ' ' "';' ' ' '" ' '' '. '•"• 'v- * •• "v 25 Λ ' ,,·• , Ι Y >.\ . .·• . . . . y ·. ·. - , ι· . ι. _• " * ·' r • • > - .'• n • J. •'. x\* Recoursedismissed. -.'. -Noorder as to costs. \ 1735