clr/1989/1989_3A_11.pdf

(4)— Their provisions are not of mandatory, but of directory nature. ConstitutionalLaw— Equality— Constitution..Art. 28 — Public Officers — Appointments — Firstentry post — Specialised post — Advisory Board— Interviews— Questionstocandidates—Principle of equality does not entail that they be identical— The PublicSen-ice Law,1967 (Law 33/67). The Recourse related to the appointments to thepost of Counsel for the Republic, which is a First entry specialised post. In its decision the 11 Clcrides & Another λ. Republic

(1989)advison Board set up under section 34(

1. b)of the aforesaid Law recommended on!ν three candidates despite the fact that the \acancies were 3anditcouldhave recommendedfour candidatesfor each vacancy The decision was signed by all its members In a letter signed by the Attorney-General it was clarified that there were no suitable candidates other thanthe 3recommended 5 The Recourse of three appellants was dismissed by a Judge of the Supreme Court Hence the present appeal The Court reached the conclusion thattheletter of theAttorney-General didnotaddanvthing to 10 thedecision of the Board,which was theonly documentrequiredb> Law to be signed The Court s reasoning, in dismissing the Recourse, appears in the above Headnotes 15 Appeal dismissedwith no Order as to costs Appeal. 20 Appeal against thejudgment ofaJudgeoftheSupremeCourt of Cyprus (Sawides, J.) given on the 28th November. 1985 (Revisional Jurisdiction Case No 297/81) whereby appellant's recourse against the promotion of the interested panies to the 25 post of Counsel of theRepublicwasdismissed N. Panayioiou, for Appellant inR.A. 545 A S. Angehdes, for Appellant inR.A 547. 30 Λ7 Charalambous. Senior Counsel of the Republic, for the Respondents Cur. adv.vult 35 TRIANTAFYLLIDES, P. TheJudgement of the Courtwill be delivered by Mr.Justice Styliamdes. STYLIANIDES. J.: By means of these appeals is attacked 40 the first instant judgment of aJudge of this Court, whereby the recourses of the appellants, under Article 146 of the 12 3 C.L.R. Clerides &Another v. Republic Stylianides, J. Constitution, against the appointment of the interested parties tothepost ofCounsel oftheRepublic,with effect from 1stJuly. 1981.were dismissed. 5 ThepostofCounsel oftheRepublicisaspecializedfirst entry and promotion office. It was duly advertised. In response 14 applications were submitted. The applications received by the Public Service Commission, (the "Commission"), were forwarded to theAttorney-General inhiscapacity as Chairman 10 of the Advison' Board, under section 35 of the Public Service Law. 1967.(No.33/67).(the"Law''). The Attorney-General, acting under section 34(
2. b)of the Law. nominated two Senior Counsels of the Republic as 15 members of the Board. The Advisory Board, on 8th May, 1981. interviewed and carried out oral examination of thecandidates. 20 On 9th May, 1981. the Advisory Board decided to recommend only three of the candidates for the two vacant posts. This decision isdulysignedbythe Chairman andthe two members oftheAdvisory Board. 25 Thethree candidates selectedbytheAdvison' Board werein alphabetical order the two interested panies and Charalambos Kyriakides. The Attorney-General, by letter dated 9th May, 1981. 30 forwarded to the Commission a repon containing in alphabetical order the names of the candidates recommended for selection for appointment. Inthesaiddocument itiswritten that recommendation for others wasnot justified. 35 The Attorney-General, in a letter dated 26th May, 1981, in which hereferred to thecandidates for appointment to the post of LegalAssistant, clarified inthelast paragraph that only three wererecommended for theoffice of Counsel oftheRepublic,as the other candidates were not found suitable for 40 recommendation. On 30th May, 1981,the Commission decided to interview Stylianides. J. Clerides & Another v. Republic

(1989)the three candidates recommended. On 19th June. 19S1,theinterviews were held in the presence of Mr. Soterakis Georghiades. Senior Counsel of the Republic. representing theAttorney-General. Thesubjudice decision was taken on thesame date. 5 The appellants rely on the following grounds for annulment of the sub judice decision:10 The procedure set out in paragraph

(3)of section 35 of the Law was not followed, in that the Advison' Board did not prepare a list of the candidates who possessed all the qualifications prescribed in therelevant Schemes of Senice, before determining the relevant merits of thecandidates. 15 Candidates, who did not satisfy the Scheme of Senice. were invited at the inteniews andthe oral examination. The oral examination was unfair, as different questions were 20 put to thecandidates. The Board did not recommend four candidates in respect of each vacant office. 25 The repon of the Advison' Board to the Commission was not signed by all its members. The clarification of the Attorney-General in his letter dated 26th May, 1981,was impermissible. The Commission did not carry out an inquiry if the procedure followed by the Advisory Board was in accordancewith the Law andactedunderamisconception of fact. The Advisory Board misinterpreted the Scheme of Senice and,in panicular, the required qualification -"ικανόνεπαγ­ γελματικόκαιυψηλό ηθικό επίπεδο" - inthatit decidedthat it comprises actual practice in Coun, which' one of the 40 appellants, in fact, didnotpossess. 14 30 35 3 C.L.R. Clerides & \nother \. Republic SUiiamdes, J. All the piovisions of section 35 are substantive and am deviation from them vitiates the composite administrative act of appointmentto thepost 5 The Coun consideied carefullv the grounds ior annulment put forward b\ the counsel for the appellants and found that none of them has any mem The Advison Board recommends not less than four 10 candidates ior each office, if suitable candidates are available The Commission is bound to select for appointment onlv amongst thecandidates ιecommendedb> theAdvison Board 15 20 The will of the Board was expressed in the minutes of its decision, which was put down in writing andsigned bv all the membeis The letter of 26th Ma>. 1981. does not add anything to the communication of 9th Mav. 1981.andit does not affect in any way the sub judice decision It is clear, both in the decision of 9th Ma), 1981. and in the letter, that the recommendation of others was not justified, which plamh indicates that onh the three were found tobe suitable forrecommendation. 25 The provisions of section 35

(3)and

(4)of the Law are director)' and not mandatory, and. e\en if there was any departure liom the procedure, envisaged therein, it was not substantial. 30 35 40 The object of theintentewsheldby the Advisory Board was to ascenain the possession by the candidates of the necessarv qualifications andtheirexperience in the profession, in view of the requirements of the Scheme of Service These interviews were neithercontran to Law. norinexcess or abuse of powers The Advisory Board substantial!) complied with the provisions of the Law which are not aprocrustean bed The questions put at the interviews were very legitimate,in order to ascenain thepossession of thequalifications set outin the Scheme of Service and the suitability of the candidates for recommendation Thepnncipleof equality was notinfringed, as 15 Stylianides, J. Clerides &Another u Republic

(1989)it isnot necessary in anyexamination toput identical questions to the candidates.This allegation of counsel isa misconception of the principle of equality. The letter - repon of 9th May. 1981.conveys the decision 5 and the recommendation of the Advisory Board. It wassigned by itsChairman, andthe fact that itwasnot signedbythe other members oftheBoard, doesnottaint the decision. Itisonlythe decision of the Board that required to by signed by all its members, and to this there wascompliance. 10 The Advisory Boards set upunder section 34ofthe Law for specialized offices are different from the Depanmental Boards set upunder section 36for other posts. 15 The Depanmental Boards simply make recommendations which are not binding on the Commission, whereas in the case of the specialized offices the Commission isrestricted to select the persons to be appointed or promoted only amongst the candidates recommended bytheAdvisory Boards. 20 With regard to the merits of the candidates, the Administrative Coun has no power to substitute its own decision for that ofthe Advisory Board or ofthe Commission. 25 Having regard to the material before us. including the position oftheinterested panies,whoareLegalAssistants.First Grade, the position of the appellants, the qualifications and experience of the appellants, asthey emerge from the material in the files, we may even saythat the Commission selected the 30 most suitable candidates. For all the aforesaid reasons,the appeals fail and are hereby dismissed. 35 No order asto costs. Appeals dismissedwithno order as tocosts. 16