(1988)1988April 23 [A.LOEOU,P.J INTHE MATTER OFARTICLE 146OFTHE CONSTITUTION IOANNIS ZYNGAS ANDOTHERS, Applicants, THE REPUBLIC OFCYPRUS, THROUGH THEPUBLIC SERVICE COMMISSION, Respondent. (CasesNos. 274/86,349186,350/86). Public Officers—Promotions—Seniority—Substantial seniority of 12and 11 1/2years—interestedparties hadbyfar betterconfidentialreports—Special reasoning whyapplicant'ssuchsenioritywasdisregarded. Public Officers—Promotions—Annulment of by this Court, on ground that one ofthecandidates (applicant intheprevious case)waswronglyexclud- 5 edfrom consideration—Argument thatastheannulment wasbased "on a matter ofprocedure" theannulledpromotionsshouldhavebeen,intheabsence ofnewfacts, repeated—Suchargumentis withoutmerit. Thefacts of thiscaseappear inthejudgment of theCourt. Recourse dismissed. 10 No orderastocosts. Recourse. Recourseagainstthedecisionoftherespondenttopromotethe interestedpartiestothepostofSeniorAgriculturalOfficer inpreferenceandinsteadoftheapplicant. Chr.Triantcfyllides,forapplicantinCaseNo.274/
- 838 3C.L.R. Zyngas& Others v.Republic A. Haviaras,forapplicantsinCasesNos.349/86and350/
- A. Vladimerou, fortherespondent. ASAngelides, for interested party Iordanou. G. Triantafyllides,forinterestedparty Melifronides. 5 Cur. adv. vult. A.LOIZOU P.read thefollowingjudgment.Bythepresent recoursetheapplicantsseekadeclarationoftheCourtthatthedecision of therespondent Commission topromote the interested parties,IordanouandMelifronides tothepermanentpostofSen10 ior Agricultural Officer (Permanent Budget) retrospectively, as from 1stMay,1982,isnullandvoidandofnolegaleffect whatsoever. Thefactual backgroundtothisrecourseisasfollows: Asaresultof thedecision of thisCourtinrecourse No. 323/ 15 82,filed byIordanou(interestedparty 1 inthepresentrecourses), thepromotion ofZyngas(applicantinrecourseNo.274/86)and P.Michaelides (applicant 2inrecourse No.249/86),tothepost of Senior Agricultural Officer wasannulled, as therespondent Commission wrongly considered that the aforesaid I. Iordanou 20 did not satisfy therequirements oftheschemeof service.Atthe timewhentherequestforthefillingofthepostofSeniorAgricultural Officer wasmade(27th January 1982),.therewasonlyone vacant post of Senior Agricultural Officer. A second vacancy' cameintoexistenceonthe 1stMay, 19.82,asaresultof thepro25 motionofaSeniorAgricultural Officer tothepostofHeadofAgriculture. By such adate the applicant satisfied all therequirementsoftheschemeofserviceandwas,therefore,entitledtobe considered for promotion.Asbothpostswerefilled atthesame timebythepromotionofinterested partiesZyngasandMichae30 lidesandasitwasnotmentioned inthesubjudice decision that oneofthemwaspromotedtothevacantason27thJanuary 1982 839 A. Loizou P. Zyngas & Others v. Republic
(1988)post and the other to the other post, both subjudice promotions were annulled. Therespondent Commissionre-examined thematteronthe4th February 1986.The list of those eligible, including now Iordanous was placed before it.TheHead of theDepartment of Agri- 5 culture, Mr. Louca gave hisrecommendations inrespect of both posts,disregarding theinterviewsthathadpreviouslytaken place before therespondent Commission and takinginto Consideration the confidential reports up toand including 1981,aswell as the qualifications and seniority of thecandidates.He also advised as 10 to which candidates possessed at therelevant time the additional qualifications as required by the schemeof service. The respondent Commission, having heard theviews andrecommendations ofMr.Louca,examined thematerial factors from thefile for thefilling of thepost aswell asthepersonalfilesand 15 theconfidential reports of thecandidates,and having considered theconclusionsoftheDepartmental Board andtheviewsandrecommendations of Mr. Louca and also having disregarded theinterviews which had previously taken place, selected for promotion Melifronides, to the first post and Iordanou to the second 20 post:Hence thepresent recourse. It was argued on behalf of applicant Zyngas in recourse No. 274/86, that since there were nonew facts before the respondent Commission than there were when its first decision wasreached and since the Court annulled such decision only on a matter of 25 procedure and noton themeritsof thecase,therespondent Commission was notjustified in reaching a different decision. Furthermore it was argued that thehead of theDepartment wrongly and withoutreason changed hisrecommendations. Such arguments are without merit. Primarily it is not correct 30 that there were no new facts before the respondent Commission for the simple reason that thelist of the candidates had been altered bythe addition in itof interested party Iordanou asaneligible candidate. Secondly, the original decision of the respondent Commission wasalsoreached bytakingintoconsideration thein- 35 840 3 C.L.R. Zyngas & Others v. Republic Λ. Loizou P. terviews of thecandidates before it whereas this time such inter views were disregarded. Nordo I find any discrepancies in the recommendations of theHead of the Department,as alleged, as the original recommendations were made in the1light of therele5 vant interviews andalso without considering Iordanou. As regards interested party Iordanouit was further contended thathehadnotbeenrecommendedby theDepartmentalBoard the first time, and thattherespondent Commission wrongly consid ered thathepossessed the additional qualification as specified in 10 thescheme of service. These arguments must also fail. Itis correct that theDepart mental Board had not recommended Iordanou but as it has al ready been held by the Court it failed to do so having wrongly considered thathedid notpossesstherequired qualifications. 15 As far as theevaluation of his additional qualification is con cerned, such is within thediscretion of therespondent Commis sion and as long as it is considered by the Court that in the cir cumstances it was reasonably open for the respondent Commission todecide as itdid,theCourtcannotinterfere. Inthe 20 present instance Iconsider thatit was reasonably open tothere spondent Commission to consider that this applicant's training abroad amounted to"post graduate training of at least oneacade mic year" Coming now to a comparison of theparties all possess more 25 orlessthesame qualifications. Both interested parties have by far better reports to the applicant in this recourse. The applicant is, however, substantially senior to interested party Iordanou by about twelve years andtoMelifronides by abouteleven and a half years, but special reasoning does appear in the sub judice deci30 sion for disregarding such seniority of his. In the circumstances I find therefore thatas this applicant has failed toestablish any striking superiority over theinterested par ties, the conclusions of the respondent Committee were on the material before itfully justified, thisrecourse must therefore fail. 841 A.Loizou P. Syngas & Others v.Republic
(1988)As far as the applicants in Case No. 349/86 are concerned, theirqualifications aremoreorlessthesametotheinterestedparties.Bothinterestedpartieshaveslightlybetterreportsthanapplicant Michaelides andbyfar betterreportsthan applicantKyriakou,whohasalsonotbeenrecommended. 5 Applicant MichaelidesisseniortoIordanou bytwoyearsand toMelifronides byoneyear,butallotherthingsnotbeingequal, hisseniorityisnotsubstantialsoastotipthescalesinhisfavour. ApplicantKyriakouontheotherhandisseniortoIordanouby $evenyearsand toMelifronides by six yearsandinviewof his 10 nothavingbeenrecommended andofcourseallotherthingsnot beingequal,hissenioritycannotprevail. Asfarasthecomplaintofapplicant Kyriakou thathisconfidentialreportsfortheyears 1972,1973and 1974werewrongly preparedbyacertainA.Soteriadouwhoatthetimeheldthesame 15 post as the applicant, it was held by the Court in recourse No. 553/85(but now subject toappeal No.R.A.756),thatitwasnot to beconsidered asa materialirregularity and inany caseand mostimportantasregardsthepresentpromotions,thereportsfor the years in question, being more than seven yearsprior tothe 20 subjudice decision,eveniftheyweretobeconsideredasirregular, aretoodistantintimetobeconsidered ashavingmaterially affected thesubjudicedecision. Astheapplicantsinthisrecoursehavefailed toestablishany strikingsuperiorityovertheinterestedparties,theirrecoursemust 25 alsobedismissed. Finally it wasargued on behalf of applicant inrecourseNo. 350/86,asfar as interested party Iordanou isconcerned thathis duties didnotinvolve "wideadministrativeexperience"and"organisingability".Thiscannotbededucedfrom thefileofthisin- 30 terestedparty,butinanycaseitisanestablishedprincipleofAdministrative Law thatisnofault of anofficer norcanit beheld against himifhewasnotassignedsuchdutiesbyhissuperiors. 842 3C.L.R. Zyngas& Others v.Republic A.LoizouP. Itwasalsocontended that, andnoreasons were given inrespectofcertainalterationseffected inIordanousconfidential reports for the year 1979,suchreports areirregular.There isno requirementforsuchreasonstobegivenexceptonlyintheevent 5 of therebeingadisagreementtothateffect betweenthecountersigningandthereportingofficers, butinanycaseinthisinstance thecountersigningandreportingofficer areoneandthesameperson. Beforeconcludingitmustalsobepointedoutthattheapplicant 10 in this recourse has no recommendation for promotion by his HeadofDepartment.Hisrecoursetherefore alsofails. Forthereasonsstatedabove,Ifindthatthesubjudicedecision wasproperlyreached andinaccordancewiththelaw.Intheresulttherecoursesmustfail andareherebydismissed,withnoor15 derastocosts. Recoursesdismissed. Noorderastocosts. 843