3 C.L.R. 1988 March4 [A.L01Z0U J.] INTHE MATTER OFARTICLE 146OFTHECONSTITUTION GERGHIOS K.HADJIMICHAEL, Applicant, v. THEREPUBLIC OF CYPRUS,THROUGH THEPUBLICSERVICECOMMISSION, Respondent. (CaseNo. 671/84). 5 Public Officers—Appointments—Applicant not among those recommended by the Departmental Committee—Complaint of applicant dismissed by respondents, who adopted the conclusion of the Committee—It does not appear that they felt obliged to do so—Kramvis v. P.S.C.
(1986)3 CL.R. 1243adopted—Recoursedismissed. Public Officers—Appointments—Judicialcontrol—Principles applicable. Constitutional Law—Equality—Constitution, Art. 28—Appointments of public officers—Exclusion of applicantfrom list of those recommended by theDepartmental Committee—Does not amountto unequaltreatment. χo The factsof thiscaseappearsufficiently inthejudgmentof the Court Recoursedismissed. No orderas tocosts. 433 Hadjimichael v. Republic
(1988)Casesreferredto: Kramvis v.PublicServiceCommission
(1986)3C.L.R.1243. Recourse. Recourseagainst thedecision of therespondent topromote the interested parties tothepostof Executive Engineer, 2ndGrade in 5 the Department of Public Works in preference and instead of the applicant. A. Petoufas, for the applicant. A. Papasavvas, Senior Counsel of the Republic, for the respondent. A. S.Angelides, for the interested parties. Cur. adv. vult. A.LOIZOU J.read thefollowingjudgment Bythepresentrecoursetheapplicant seeksadeclaration of theCourtthatthedecision of therespondent Commission topromote tothepermanent 15 postofExecutiveEngineer, 2ndGradeintheDepartment ofPublic Works, the interested parties,P.Papasozomenos, St. Cleanthous, R.Klokkaris, and St. Kallis,is null andvoid andof nolegaleffect whatsoever. Five posts of Executive Engineer 2nd Grade which is a first 20 entry post,were advertised in theofficial GazetteoftheRepublic andinresponse 124candidates applied. In accordance with section 36ofthePublicServicelaw, 1967 (Law No. 33 of 1967) a departmental Board was set up which 434 10 3 C.L.R. Hadjimichae) v. Republic A. Loizou J. considered theapplications submitted andinvited allthecandidatesforaninterview.Outoftheeighty-ninecandidateswhoattend itselectedtwenty candidateswhomitrecommended tothe respondent Commission for appointment tothepostinquestion. 5 Eight candidates were considered as not fulfilling therequirementsoftheSchemeofServiceandtheremainingsixty-onecandidates, including the applicant, who did qualify under the SchemeofServicewereconsideredasinferior tothetwentycandidates whowererecommended takinginto consideration their 10 qualifications, performance at the interview, merit, experience andseniority(whereapplicable). The respondent Commission decided to call for interview thoserecommendedexceptthreecandidateswhohadalreadbeen offered appointments as a result of thefillingof other vacant 15 postsofExecutiveEngineer2ndGradeintheDepartmentofPublicWorks. Meanwhilesevencandidatesincludingtheapplicant,wroteto therespondent Commission complaining abouttheirnothaving beencalledforaninterviewbeforeit.Theircomplaintswerecon20 sideredbytherespondentsCommissionwhichdecidedthatsince inthecircumstances theDepartmentalBoardreasonablyconsideredthoserecommended assuperior,therewasnoreason tointerfere. Sixteencandidateswerefinally interviewed asfourcandidates 25 hadalreadyreceivedotherappointments.Atitsmeeting'of the9th June, 1984, the respondent Commission heard the views and opinionoftheChairmanofthedepartmentalBoardandthenproceeded toevaluate theperformance of thecandidatesduringthe interviewsbeforeit,itconsideredtheviewsoftheirsuperiorsun30 derwhomthey wereservingascasualofficers astotheirperformanceintheirwork,italsoconsideredtheconclusionsofthedepartmental Board andtheviews ofitsChairman anddecided to appoint the interested parties to the permanent (Perm. Budget/ Dev.Budget)post ofExecutive Engineer,2ndgradein theDe35 partmentofPublicWorksasfrom 2ndOctober 1984.Hencethe presentrecourse. 435 A. Loizou J. Hadjimichael v. Republic
(1988)Itwascontendedonbehalfoftheapplicantthatthesubjudice decision wasreached inexcessand/orabuseofpowerinthatthe applicant issuperiorinqualifications, meritandsenioritytothe interested parties,aswellastothetwenty candidates whowere 5 recommended. Ifindsuchargument withoutmerit.Inthefirst place,solong as a decision of an appointing organ is reasonably open, the Courtwillnot substituteitsowndiscretion asregards theselection ofthemost suitablecandidate andin thepresentinstance I 10 would consider that in the circumstances it was soreasonably open to therespondent Commission todecide asit did. Inany eventtheapplicanthasfailedtoestablishanystrikingsuperiority overtheinterestedpartieswhichisalsonecessaryinordertojustify anyinterference bythisCourtwiththesubjudicedecision. 15 ThesecondargumentonbehalfoftheapplicantisthattherespondentCommission and/ortheDepartmentalBoardbynotselectingtheapplicant actedinadiscriminatory waytowardshim, subjecting himthustounequaltreatmentvisavistheinterested parties.Iconsider that such argumentiswithout substance; the 20 selectionbythedepartmentalBoardofothercandidatesinsteadof theapplicantdoesnotamounttounequaltreatmentordiscrimination butwasdonein thecourseof theproperexerciseoftheduties assigned toit under the Law.Furthermore theselection of anyonecandidateinsteadofanotherdoesnotamounttounequal 25 treatmentordiscrimination asregardsthosenotselectedbutisa part of thenormal process of selecting the best candidate fora particularpost. Itwasfurther arguedthattherespondentCommissionactedunderamisconception offactin thatitwasmisleadbythedepart- 30 mentalBoardastowhothemostsuitablecandidateswerebynot recommendingtheapplicant whowasthusnotconsidered. Itdoesnottranspirefrom therecordoftheproceedingsofthe 436 3 C.L.R. Hadjimichael v. Republic A. Loizou J. respondent Commission that thereis any misconception as suggested.The applications ofallcandidateswerebefore therespon5 dent Commission. Moreover, it is clear, since it examined the complaints of the applicant and six others about their not having beenrecommended bythedepartmental Board,that they were so considered butitwasconcluded thatin thecircumstancesthedepartmental Board hadreasonably considered those recommended 10 assuperior andeven though itisstated bytherespondent Commissionthatit "adoptedtheconclusions"of thedepartmental Board, fromaperusalof theminutesof theproceedingsitcannot beconcludedthattheyfeltobligedtodosoorthattheyfetteredtheirdiscretion.Relevant tothisiswhat wasstated inthecaseof Kramvisv. 15 Public Service Commission
(1986)3C.L.R 1243at 1249. i 20 "Examination of therecord of theproceedings before therespondents suggests the following: The P.S.C. adopted the conclusionsoftheDepartmental Committee andconfined their inquiry to the suitability of the candidates shortlisted by the Departmental Committee. They did so, as may be surmised from their minutes, as a matter of discretion, not out of any obligation toconfine theirinquirytothosecandidatesonly." Finally.it wascontended that thesubjudice decision lacksany orduereasoning inthattheDepartmental Board initsconclusions 25 andrecommendations failed togive any reasoning as tohow it reached suchconclusions. Iconsiderthatthesubjudicedecision aswellastheconclusions andrecommendationsoftheDepartmentalBoardareadequateand dulyreasoned and that suchreasoning isbornefromthe decision 30 itself as well as from the material of the file. This ground must also fail. For thereasons stated abovethisrecoursefails andis hereby dismissed, but in the circumstances there will be no order as to costs. Recourse dismissed. Noorder asto costs. 437