(1989)1939JulyS [KOURRIS.J.] INTHE MATTER OF ARTICLE 146OFTHE CONSTITUTION GEORGHIA VARNAVA AND OTHERS. Applicants, v. THE REPUBLIC OF CYPRUS,THROUGH THE PUBLIC SERVICE COMMISSION, Respondents. (CaseNo.750/S6) Publicofficers— Promotions — Departmental Committee — In virtueof Regulationsit canrecommend not lessthantwoandnot more thanfour candidatesfor eachvacantpost. Presumption of regularity— Public officers— Promotions — Candidate's 5 name included in the list of candidatesforwarded by the respondent Commission to the departmental Committee — Files of all the candidates before the respondent Commission, when it took the sub judice decision—Notwithstandingthatapplicanthadnot beeninthelist of those recommended by the Departmental Committee, and as it \Q nowhere appears that the respondent Commission felt bound to adopt the recommendations of such Committee, the presumption is that the Commission took into consideration that candidate as well when effecting thesubjudice promotions. 15 Public officers — Promotions — Departmental Committee — Its role is advisory — Conclusions of Departmental Committee as regards qualificationsof candidatesnot binding on therespondent Commission. Public officers — Promotions — Confidentialreports — Circular 491 of 2 0 Council of Ministers — Changes effected in a manner contrary to the Circularby countersigningofficer, butnot affectingoverallrating— An 746 \ \ \ 3 C.L.R. Varnava &Others v. Republic immaterial irregularity 5 Publicofficer — Promotions — Confidentialreports — Circular 491 of Council of Ministers— Changes by countersigning officerm a manner contrary to the Circular and affecting overall rating of candidate— Whether irregularityleads to annulment — Principlesapplicable — Sekkides v. TheRepublic
(1988)3CLR 2136applied— To answer the question allmaterial before the Commission shouldbe borne in mind 10 Publicoflicers— Promotions — Confidentialreports — Circular 491 of CouncilofMinisters,para 3,providesloracasewherethereportingand thecountersigning officercanbe one andthesameperson — Properly appliedm thepresentcase 15 Public officers — Promotions — Qualifications— Additionalacademic qualifications, but not considered as an advantage by the Scheme of Sen'ice —Shouldnot weighgreatlym themind oftheCommission 20 25 30 35 40 Wordsandphrases— "Public Service" in section 2 of thePublicService Law, 1967(33/67)— Persons whose remuneration is calculated on a dailybasis—Donot come underthedefinitionof "PublicService" Public officers — Seniority — Service on a contractual basis — Remuneration calculated on dailybasts— Permanent appointment to publicservice — In calculatingseniority of those appointed, theperiod they served on such a contractual basis cannot be taken into consideration Bymeansofthisrecoursethethreeapplicantschallengedthedecision of the respondent Commission to promote the interested parties to the postofSeniorDataProcessingOfficers Theinterestedpartieshadbetter confidential reports than the applicants Varnava andPenkleous In the caseofPenkleoustherehadbeenanirregularityinthepreparation ofone of her confidential reports, because, contrary to regulations, the countersigning officer changedheroverall rating for theyear 1985 But even before the alteration, the interested parties hadbetter confidential reports Applicant Hadjigeorgiou had additional qualifications which, however,werenotconsideredbytheSchemeofServiceasan advantage The interested parties had the recommendation of the acting Head of 747 Varnava &Others v. Republic
(1989)Department. In the light of the principles in Sekidcs v. The Republic (19SS) 3 C.L.R. 2136 the Court decided that in the present case the irregularity affecting the report for 19S5of Penkleous could not lead to annulment. 5 The matters raised in this recourse sufficiently appear in the hereinabove Headnotes. The Court, having reached the conclusion, that in the circumstances 10 the sub judice decision was reasonably open to the respondent Commission, dismissed the recourse. Recourse dismissed. No order as to costs. 15 Casesreferredto: Mytidcs v.Republic
(1983)3C.LR.
- 20 Sckkides v.Republic (19SS)3 C.LR. 2136, Olhonos andAnother v.Republic(19S9) 3C.L.R. 475, Papadopoullos v.PublicService Commission (19S5) 3 C.L.R.
- 25 Recourse. Recourseagainstthedecisionoftherespondentstopromote the interested parties to the post of Senior Data Processing 30 Officer inpreference andinsteadoftheapplicants. A. S. Angelides, for theApplicants. A. Papasavvas, Senior Counsel of the Republic, for the 35 Respondents. A. Xenofontos.for theInterestedparties. Cur. adv. vult. 40 KOURRIS,J.readthefollowingjudgment.Bythisrecourse, 748 3 C.L.R. Varnava &Others v. Republic Kourris. J. applicants challenge the decision of the Public Service Commission dated 7.10.1986 and published in the Official Gazette on 17.11.19S6,to promote the interested parties tothe post of Senior Data Processing Officers in the Department ot 5 Data Processing Servicesasfrom 15.10.1986.inpreference and instead of the applicants. Before the sub judice decision, the applicants and interested parties were holding the post of Data Processing Officers, 1st 10 Grade, in the Department of Data Processing Services. The Interested parties are Antonios A. Antoniou and Kostas L. Agrotis. Pursuant to a request made by the Director-General of the 15 Ministry of Finance to the Public Service Commission for the filling of twovacant postsinthepost of Senior Data Processing Officers, the respondent Commission referred the matter to the Departmental Committee which was set up for that purpose in accordancewiththeprovisionsofs.36ofthePublicServiceLaw 20 1967(Law 33/67)to investigate andadviseonthe quaiitications and suitability of candidates for promotion to the above post in the Department of Data Processing Services. The Departmental Committee by its report, which was 25 submitted to the respondent Commission by letter dated 22.8.1986, recommended four candidates out of 10 including applicants 1 and3andthetwointerested parties. Applicant No. 2was not recommended. 30 The respondent Commission at its meeting of 7.10.1986 asked the acting Head of the Department to express his recommendations.Theacting Headofthe Department madehis recommendations and left. After the departure of the acting Head of the Department, the respondent Commission, having 35 assessed the material before them, including the confidential reports ofthecandidates,theirpersonal files,their seniority,the report of the departmental committee, and in the light of the views expressed by the acting Head of Department, they decided to promote the two interested parties to the post of 40 Senior Data Processing Officer asfrom 15.10.
- The applicants, feeling aggrieved,filed the present recourse. 749 Kourris, J. Varnava &Others v. Republic
(1989)I propose to deal withthe points raisedby learnedcounsel fortheapplicantswhichrefertoapplicant2only. Hecontended that theDepartmental Committee contravened the regulations whenitrecommendedfourcandidatesforthetwovacantposts. He said that the Departmental Committee ought to have 5 recommendedatleastfourcandidatesforeachvacantpost. Ido not agreewiththiscontention. AccordingtotheRegulations,a Departmental Committee, is entitled to recommend not less thantwocandidatesandnotmorethanfourcandidatesforeach vacant post.Therefore, thiscontention fails. 10 Another contention of counsel is that the Public Service Commission never took into consideration applicant 2when assessingthe candidates for the post in question. Hesaidthat the respondent Commission failed to carry out an inquiry for 15 the appointment of the most suitable candidate in the postin question andthat itfeltboundtofollowtherecommendationof the Departmental Committee, i.e. that the respondent Commission felt bound that they ought to have selected the mostsuitablecandidatesfromthefourcandidatesrecommended 20 bytheDepartmental Committee. AgainIdonotagreewiththissubmission.ThePublicService Commission when it sent alist of candidates for consideration by the Departmental Committee,the nameof applicant No.2 25 was included in the list. Furthermore, when the respondent Commission convened for the filling of thepost in question it hadbefore itthefiles ofallthecandidates andthepresumption isthat theytook into consideration applicant 2when effecting the promotions in question. This presumption had in no way 30 been rebutted by applicant No. 2. Furthermore, nowhere it appearsthattherespondentCommissionfeltboundtoadoptthe recommendations of the departmental committee with regard to therecommendations ofthecandidatestotheeffect thatthe respondent Commission thought that they ought to have 35 selected for the promotions among the four candidates recommendedbytheDepartmental Committee. ItiswellsettledthataDepartmental Boardisnotabodythat takes decisionsbutitsroleisadvisory. In the case of Mytides v. TheRepublic
(1983)3C.L.R. 750 40 3 C.L.R. Varnava &Others v. Republic Kourris..!. 1096.the Court stated asfollows at pp. 1110- 1111:- 5 10 15 20 "The Departmental Board is not a body that takes decisions neither is it vested with power other than the one envisaged in s.36 of the Law that provides for its establishment. The Regulations governing the functions of the Departmental Boardscannot take away the competence oftherespondent Commission asprovided by Law andthey have to be interpreted insuch away as to be intra vires and not ultra vires the empowering law. The competence of the Commission in cases of promotion is regulated by s.44 of the Law whereby under paragraph (b)of subsection
(1)thereof, one of the matters to be examined by the Commission is whether a candidate for promotion to another office possesses the qualifications laid down in the scheme of service for that office. Therefore, the conclusion of the Departmental Board regarding the qualifications of the interested party is not binding on the Commission. The Commission hasa statutory obligation to inquire and decide for itself this veryserious matter which is a sine qua non to any further steps in the process of the exercise of its discretion -{Michael and Another v. P.S.C. (supra))." 25 In the present case, I am satisfied that the respondent Commission in effecting the promotions in question when selecting the candidates most suitable for the post in question. has taken into consideration also applicant No.2 and nowhere 30 itappears that it felt boundtoselect thecandidates from thelist of four candidates recommended by the Departmental Committee. Intheresult,thecontention that thedecision ofthe respondent Commission lacks due inquiry, and that it acted under a misconception of fact and lawcannot stand. 35 Ishall now deal withthe submission that theapplicants were strikingly superior to the interested parties. In doingso, Ihave to deal inescapably with the contention of learned counsel for the applicants that there are irregularities which are of 40 substantial nature with regard to the preparation of the confidential reports and affected the validity of the relevant administrative process. Counsel for the applicants contended 751 Kourris, J. Varnava &Others v. Republic
(1989)that there has been a contravention of the case law and the relevant circular inthe preparation ofthe confidential reports. Before proceeding any further. I shall examine the alleged contraventions in the preparation of the confidential reports 5 startingwith applicant No. 1 GeorghiaVarnava. I shallexamine the confidential reports for the years 19S0-19S5 as the respondent Commission in reaching the sub judice decision relied on the confidential reports of the vears 1980-19S
- 10 For the years 19S0 and 1981 all applicants and interested parties were rated as "very good" and there have been no changes in their confidential reports by the counter signing officer. It appears from exhibit 1 which is the file of the confidential reports of Georghia Varnava. that there have been 15 no alterations with her confidential reports for the years I9S2 and 19S
- Shewas rated as"verygood"for thesetwoyears. In 1984 she was rated by the reporting officer as "excellent" and the counter signing officer reduced her ratings so that the general rating was reduced from "excellent" to "very good". 20 The changes madeby thecounter-signing officer are sufficiently reasoned and there is no irregularity. With regard to the year 19S5,she was rated "excellent"andthere havebeen nochanges bvthecounter si^nirm officer. 25 With regard to applicant No. 2 Katerina Pericleous, it appears from herfilecontaining theconfidential reports (exhibit 3)that in the years 1982and 1983she wasrated as"very good" for each year by the reporting officer and the counter signing officer made certain changes in her confidential reports and no 30 reasoning appears in thesereports for thechanges. The overall rating of thisapplicant remained unchanged despite thechanges made by the counter-signing officer, i.e. her overall rating for these twoyears remainedas"verygood". In myview,sincethe overall ratinghasnot been reducedtothedetriment ofapplicant 35 No. 2, this contravention of the rules can be considered as immaterial. With regard to the year 1984, she was rated as "excellent" by the reporting officer and her report has been changed by the counter-signing officer and her rating was reduced to "very good", but this change is reasoned. For the 40 year 1985 she was rated as "excellent"by the reporting officer and her rating has been reduced to "very good" due to changes 752 3 C.L.R. Varnava &Others v. Republic Kourris. .
- made by the counter-signing officer without any reasoning. The confidential reports of applicant No.
- Georghios Hadjigeorghiou. as they appear from his file of confidential 5 reports (exhibit 5)are asfollows:In the year 1982hewasrated as"very good"and there have been nochangesbythecountersigningofficer. Intheyear 19S3 hewasrated as"excellent"andthecounter-signing officer made 10 changes in the confidential report and his overall rating was reduced to "very good". No reasoning appears in the confidential report for thesaidchanges. In the years 1984 and 19S5 he was rated as "excellent" and 15 no changes havebeen made by the counter-signing officer. 20 Interested party K. Agrotis was rated as follows:- "very good" for 19S2 and "excellent" for the years 1983, 1984 and
- No changes have been made by the counter-signing officer. 25 Interested partyA.Antoniou hasbeen rated"verygood" for the year 1982 and "excellent" for the years
- 1984 and 19S
- No changes have been made by the counter-signing officer. It appears from the above that in the case of Pericleous applicant No.2,her confidential report for 1985was prepared contrary to the circular and her overall rating from "excellent" 30 was reduced to "very good" by the counter-signing officer without any reasoning. Also, in the case of Hadjigeorghiou. applicant No. 3, his confidential report for 19S3 was reduced from "excellent" to "very good" by the counter-signing officer without reasoning. 35 The legal consequences of irregularities in the confidential reports were expounded in the case of Andreas Sekkides v. The Republic
(1988)3 C.L.R. 2136 where at p.2151 it was stated as follows:40 "In thelight oftheaboveauthorities itmustbe concluded that the 1979 Circular lays down rules of procedure which 753 Kourris. J. Varnava &Others v. Republic
(1989)must generally be followed when preparing confidential reports. Failure to observe such rulesinevitably rendersany report thus compiled irregular, but at the same time we feel that to hold that such irregularity should at ail times be consideredasleadingtotheannulment ofanydecision taken, 5 irrespective of whether itdid materially affect such decision. would begoing too far. No doubt such irregularity amounts toan illegality inthe broadsense oftheterm,that isofbeing aviolation of a procedural legal provision andthis ishowwe understandArgyrides case(supra). Butbeingaviolation of 10 procedure it has to be shown that it materially affected the decision reached." Andat p.2153it was stated that "an administrative Court must alwaysexamine wetherthefailure tocomply withanyformality 15 is of such importance as to have affected the outcome of the decision"and atthesame pageitwasstatedthat"thetestinsuch cases is for the administrative Court to consider whether the omission or wrong compliance was of such importance that could affect thecontents of the administrative act or decision." 20 With regard to the confidential repons of the interested parties, counsel for the applicants contended that they are irregular in that the reporting officer and the counter-signing officer wasthesame person. Hesaidthatthisisallowedincases 25 where the department is independent. In the present case,he said the department forms part of the Ministry of Defence and, therefore, the counter-signing officer should have been the Director-General of the Ministry. This contention is contrary tocaselawandinparticulartothedecisionof Stavros Othonos 30 and Another v.The Republic (\9S9)3C.L.R 475. I find that the present case isa proper case to fall under the exception in paragraph 3 of the circular in that there was no irregularity in the preparation ofthe confidential repons bythe 35 same officer, both as reporting andcounter signing officer. Another point taken by counsel for the applicants were the qualifications of applicant No.l and applicant No.3. He said that theypossessed additional qualifications tothoserequiredby 40 the scheme of service, and thisshouldweigh in the mind of the Commission. In the present case all candidates possessed the 754 3 C.L.R. Varnava &Others v.Republic Kourris, J. qualifications required by the scheme of service, and any possession of additional qualifications did not constitute an advantage. In the case of PapadopouIIos v. The Public Service Commission
(1985)3C.L.R. 405, decided by the Full 5 Bench, it was held that possession of academic qualifications additionaltothose requiredbytheschemeof service,which are not specified in the scheme of service as an advantage, should not weigh greatly in the mind of the Commission, who should decide in selecting the best candidate on the totality of the 10 circumstances before them. 15 20 25 30 Counsel for the applicants also contended that the respondent Commission acted under a misconception of fact when they took into consideration that the interested parties were seniorto applicants GeorghiaVamava, (applicant 1).and Georghios Hadjigeorghiou (applicant No.3). He said that applicant 1 was employed by virtue of a contract as from 7.1.1977,withtheTreasury Department andapplicant No.3was employedbyvirtueofacontract asfrom 7.3.1977again withthe Treasury Depanment. He said that according to section 5 of Law 10/73, amending s.46 of the Public Service Law, 1967 (33/67) they should have been considered as having seniority over the interested parties. These two applicants were employed on a daily basis. (See exhs. 11 and 12). This submission cannot stand in view of the provisions of s.2 of the said law, which provides that persons whose remuneration is calculated on a daily basis do not come under the definition of "public service". Consequently, they do not form part of the public service and their employment on a contractual basis whose remuneration is calculated on a daily basis cannot be taken into consideration in assessing seniority. In my view, rightly the Public Service Commission concluded that interested party Antoniou was the most senior 35 followed in seniority by the other interested party Agrotis and then by applicant 3 Hjigeorghiou, and then by applicant No.l GeorghiaVamava, andfinally followed byKaterinaPericleous, applicant No. 2, who was appointed in the previous post on 1.1.83. Agrotis, HadjiGeorghiou and Varnava were appointed 40 to the previous post on 15.8.1982 and Antoniou on 15.9.1978. Agrotis, HjiGeorghiou and Varnava were holding the post of Programmer asfrom 1.12.1978. HadjiGeorghiou and Varnava 755 Kourris. J. Varnava &Others v.Republic
(1989)entered the civil service on 1.12.197S whilst Agrotis on 1.5.
- He had entered the Service as Clerical Assistant and on 15.7.1974 was promoted to Accounting Officer. 3rd grade. In view of the fact that HadjiGeorghiou and Vamava entered the civil service on the same day. i.e. on 1.12.
- then 5 previous seniority shallbedeterminedbytheage ofthe officers. (See s. 46
(7)of Law 33/67). As HadjiGeorghiou was born on 19.5.1950and Vamava on 25.7.1951.HadjiGeorghiou issenior to Vamava. 10 In view of the above finding, with regard to the confidential repons andthecaselaw referred to.thequestion whichfalls for determination istoexamine whethersuch irregularity isofsuch importance as to have affected the outcome of the decision of the Commission. To answer thisquestion it shouldbeborne in 15 mind all the material which wasbefore the Commission. To sum up. the interested parties had better confidential reports than theapplicants Vamava andPericleous. In thecase of Pericleous, where there has been an irregularity in the 20 preparation of her repons. due to the alteration of her confidential report by the counter signing officer whereby her rating for the year 19S5 from "excellent" was reduced to "very good", even before the alteration, the interested parties had better confidential reports. Applicant HadjiGeorghiou had 25 additional qualifications which were not considered by the scheme of service as an advantage. The interested parties had the recommendations of the actingheadof department. Iam ofthe viewthat on thetotality ofthecircumstances,the 30 sub judice decision was reasonably open to the respondent Commission in view of the contents of theconfidential reports, the recommendations of the acting head of department and the seniority of the candidates; It is a duly reasoned decision and such alterations in the confidential reports have not materially 35 affected thesubjudice decision. For all these reasons, the recourse is dismissed, but with no order for costs. 40 Recourse dismissed. No orderas tocosts. 756