clr/1988/1988_3_211.pdf

(1988)Theapplicant was senior tothe interested party by about two years, but the latter was Supcnor both in merit, as reflected from the confidential reports,and qualifications Held, dismissing the recourse

(1)The Commission interpreted the scheme ol service ina manner,which was reasonably open to it 5

(2)Seniority prevails, if all othercriteria are moreor less equal.

(3)Superior meritandqualifications constitutepowerful reasons for not adopting therecommendationsof the Headof theDepartment Inthis case such recommendations were not,in the light of theu·wording* consonant with theconfidential reports or the material in the personal files as far as 10 qualifications areconcerned Thesuperior merit and qualifications of the interested party arc clearly recorded in theminutes of theCommission and form reasons for deviating from therecommendations of the Headof the Department Recourse dismissed No order as to costs Casesreferredto Frangouhdesand Another ν ThePublicServiceCommission

(1985)3 CL R. 1680; Papapetrou ν The Republic, 2 R SC C 61, 20 Republic ν Χιηαη &Others

(1985)3 C L.R. 1922, Partelhdes ν TheRepublic

(1969)3 CL R 480, Theodosiou v. The Republic, 2 R.S C C 44 Constanunou ν TheRepublic

(1984)3 C.L R. 498, Michael & Another ν Republic

(1984)3 C L R 769, loannou ν Republic

(1983)3 C.L.R 449, Hjiloannouv Republic

(1983)3 C L R 1041. * Quoted at p.215 post. 212 25 15 3 C.L.R. Christoforou v. Republic Recourse. Recourse against thedecision of the respondent topromote th· interested party tothepost of Senior Animal Husbandry Superin tendent in preference and instead of theapplicant. 5 A.S. Angelides, for the applicant. A. Vladimiron, for therespondent. Cur. adv. vuh LORIS J. read the following judgment. The present recours is directed against the decision of the respondent P.S.C. , pub lished in the official Gazette of the Republic dated 31.1.86 whereby the interested party namely Vasso Tourpeki, was pro moted tothepermanentpost of Senior Animal Husbandry Super intendent,in preference toand instead of theapplicant. Themain complaints of theapplicant are the following: c « c (A) Failure of therespondent P.S.C.togive sufficient reason ing for notadopting the recommendationsof theHeadof the De­ partment infavour of theapplicant. (B)Erroneous interpretation of therelevant Scheme of Servict by therespondent P.S.C. leading to amisconception, asallegedly the Diploma of the Agronomic Mediterranean Institute

(19621963)possessed by theinterested party did notconstitute anaddi tional advantage envisaged by paragraph

(4)of the Scheme ol Service. Before proceeding with the examination of thecomplaints ο the applicant Iconsider it pertinent at this stage to examine: the merit,qualifications and seniority of the applicant and theinterest­ edparty: Meritas ittranspires from therelevant confidential reports:Ap213 Loris J. Christoforou v. Republic

(1988)plicant was rated "very good" for thelast threeyears 1982 (2-100), 1983 (4-8-0) 1984 (5-7-0),whilst theinterested party was rat­ ed for the same years "excellent" 1982 (9-3-0), 1983 (9-3-0), 1984(9-3-0). Qualifications: It is apparent from the relevant personal files 5 and thelistmarked "Appendix A" attachedtotheopposition, that theinterested party is betterqualified thantheapplicant. Further­ more the respondent P.S.C.acting within its province held that theDiplomaof theAgronomic MediterraneanInstitute possessed by theinterested party, having been acquired after 2 years studies JQ abroad (1962-1963) (vide inthisconnectionreds46 and47 inher personal file), was an additional advantage envisaged by para­ graph

(4)of theSchemeof Service which reads as follows: " Δίπλωμα ή πιστοποιητικόν ανεγνωρισμένου Κολλεγίου εις Γεωπονίανήεις θέμασχετικόν μετάςδραστήριο- 1 5 τητας τουτμήματος Γεωργίαςθαθεωρήται ωςπρόσθετον προσόν". (EnglishTranslation): "

(4)Diploma or certificate of a recognised College in Agriculture or in a subject relevant to the activities of the 20 Department of Agriculture will be considered as an additional qualification." "It has been a well established principle of Administrative Law, constantly reiterated by this Courtina series of cases recently reviewed in Frangoulides and 25 Another v. P.S.C.

(1985)3 C.L.R. 1680 at p. 1684, that in deciding whether or notthePublic Service Commission, in agiven case, has conformed with therelevant Schemeof Service, theCourtwill notgive to such Schemeof Service a different interpretationother than that given to it by the 3Q Public Service Commission, provided that such interpretation was reasonably open toit on the basis of the wording of the schemeinquestion (seePapapetrouand the 214 3 C.L.R. Christoforou v. Republic Loris J. Republic, 2 R.S.C.C 61 at p. 69)".(Vide Republic v.Xinari ά others

(1985)3 C.L.R. 1922 at p. 1928). 5 10 25 20 25 ο/-» In the case under consideration bearing in mind the above principle and having examined para

(4)of the Schemeof Service, therelevant Diplomaof the Interested party, and thedecision of the respondent,Ihold theview thattherelevant interpretationof the respondentP.S.C.was reasonably open toit. In this connection Ifeel that it should be added here, that,if thestatementof the Headof the Department,namely Mr.Phokas, before the P.S.C.(totheeffect that "Tourpeki has theadditional qualification, but herqualification does notappear tobe relevant to theduties she is performing " ) ,was meant toprovide hisown interpretation tothesaid paragraph of the Schemeof Service,then it must be stated, with respect, that therelevant paragraph of the Schemedoes notprovide for aqualification "relevant totheduties of the post " but for a "diploma or certificate in Agriculture or in a subject relevant to the activities of the Department of Agriculture " In view of theabove it is obvious thattheinterested party was only better qualified than the applicant, but she in fact possesses an additional qualification envisaged by paragraph

(4)of the Schemeof Service. n o t Inthecircumstances seniority could play norole, inspite of the fact that theapplicant has a seniority of about two years over the interested party (having been promoted to the post of Animal Husbandry Supt. 1st grade on 1.7.76 whilst the interested party was promoted to the said post on 1.6. 78), as seniority will prevail if all othercriteria are moreor lessequal (vide Partellides v. The Republic

(1969)3 C.L.R. 480), which is not thepresent case. Reverting now to the question of merit. It is true that the recommendation of the Head of the Department is a weighty consideration which enhancesmerit and "such arecommendation 215 LorisJ. Christoforou v.Republic

(1988)cannot be lightly disregarded" {Theodossiou v. The Republic, 2 R.S.C.C. 44 at p. 48). Butatthe sametime inthecaseitwasacknowledged thatifthe P.S.C. "comes to the conclusion not to follow" such recommendations then "thereasons for taking such anexceptional 5 course would be clearly recorded in the relevant minutes of the Public Service Commission." In thecase of Constantinou v.The Republic

(1984)3 C.L.R. 498 it was held, inter alia, that the superior merit and qualifications of the interested party constituted very powerful reasons for deviating from the recommendations of the Head of theDepartment. (In thisconnection vide alsoMichael &Another v.Republic

(1984)3 C.L.R. 769 -loannou v.Republic

(1983)3 C.L.R. 449 at pages 457 -458). 10 In the instant case, the recommendation of the Head of the 15 Department, namely Mr. Phokas, was thus made before the respondent P.S.C: Christoforou Andreas (the applicant) is recommended, who with regard tomerit does not lack behind the other two, Tourpeki Vasso (the interested party) and Neofytou Loulla, and who is excellent, in particular now that he is 20 performing the duties of the Officer in charge for the whole of Limassol District. Asfar asqualifications areconcerned, thecandidates aremore or less equal. Tourpeki has the additional qualification, but her qualification does not appear to be relevant to the duties she is 25 performing. Itisclearfrom the wordingoftheaboverecommendation, that the recommendation of the Head of the Department was not consonant either with the confidential reports or the material in thepersonal files asfar asqualifications areconcerned. Asstated 3Q earlieron in the presentjudgment the interested party was much better rated in merit than the applicant and she possesses the additional qualification envisaged by the Scheme of Service 216 3 C.L.R. Christoforou v. Republic Loris J. whilst theapplicant does notpossess anadditional qualification. 5 The aforesaid reasons fordeviating from the recommendations of theHead of theDepartment areclearly recorded intheminutes of the respondent P.S.C. of 2.12.85 - the sub judice decision which thuscannot be faulted. 10 In the circumstances the applicant failed toestablish striking superiority overtheinterested party, anelement without whichan Administrative Court cannot intervene in order to set aside the decision regarding such selection. (HjUoannou v. Republic

(1983)3 C.L.R. 1041 at p. 1045). In the result the present recourse fails and is accordingly dismissed; let there be noorder as tocosts. Recoursedismissed. Noorderastocosts. 217