(1989)19S9July 12 [KOURRIS,J.] INTHE MATTER OF ARTICLE 146OFTHE CONSTITUTION KYPROSGREGORIADES, Applicant. v. THE REPUBLIC OFCYPRUS,THROUGH THEPUBLIC SERVICE COMMISSION. Respondents (Case No 1046/85) Public officers — Promotions — Interviews — No duty on Commission to hold an interview, especially incase where theselection isamong officers ot long standing m the service. Public officers — Promotions —Striking superiorly—Seniority—Prevails when all othei factors are more or less equal — The ratings in (he confidential reports were more orless equal, buttheinterested party had additional qualifications, considered as an advantage by the Scheme of Service — Seniority, therefore, does not by itself amount in this case to sinking superiority 5 [Q Public otficers — Promotions — Qualifications — Additional qualifications regarded asanadvantage by Scheme otSen'ice —Special reasons should be given why they Here disregarded. 15 Recourse for annulment — Practice — Direction that unless written address filed within aparticular time limit the recourse >/M// stand dismissed — further directions without objection olrespondent relating to conduct of case, notwithstanding that the written address hadbeen filed out ol time — Waiver—Respondent cannot atalater stage submit that therecourse 2 0 should be treated as dismissed By means of this recourse the applicant challenges the decision to promote the interested parties to thepost ot postal superintendent 772 3 C.L.R. Gregoriades v. Republic The factual and legal issues raised can be deducted from the hereinabove Hcadnotes. The Court, in dismissing the recourse,had this tosay: 5 10 "The onus of establishing striking superiority lies always on the applicant in a recourse. The duty of the Public Service Commission isto promote themost suitable candidate. Andtheduty of the Court in reviewing promotions isto see whether the authority exercised its discretionary power inconformity with the statutory provisions and the rules and requirements of administrative lawgenerally, including good faith. So long as the Authority acted within those limits the Court cannot interfere; it cannot substitute itsown opinion asto the merits of the candidates for that of the promoting authority." 15 Recourse dismissed. No order as to costs. Casesreferredto: 20 Nicolaou andAnother v.Republic
(1981)3C.L.R 73, NicolaouandAnother v.Republic
(1985)3C.LR 93J, MarathcvtouandOthersv.Republic
(1982)3 C.LR. 1088, 25 Christoudias v.Republic
(1984)3C.LR. 657, Kalosv.Republic
(1985)3 C.LR. 135, 30 Protopapasv.Republic
(1981)3 C.LR. 456, StylianouandOthersv.Republic
(1984)3 C.LR. 776, PaitichisandAnother v.Republic
(1968)3C.LR. 374, 35 Georghiouv.Republic
(1976)3C.LR. 74. Recourse. 40 Recourse against the decision of the respondent to promote theinterested parties to thepost of Postal Superintendent inthe Department of Postal Services in preference andinstead of the 773 Gregoriades v.Republic
(1989)applicant. E.Lemonaris,for theApplicant. A. Papasawas,Senior Councel of the Republic, for the 5 Respondents. E. Liatsou (Mrs) for Chr. Triantafyllides, for the Interested parties. 10 Cur. adv. vuit. KOURRIS,J.readthefollowingjudgment.Bythisrecourse, applicant challenges the decision of the Public Service Commission dated 9/9/1985 and published in the Official 15 Gazetteon 18/10/1985,topromotetheinterestedpartiestothe post of Postal Superintendent, in the Department of Postal Services as from 15/9/1975 in preference and instead of the applicant. 20 This case has a long history but before dealing with the substance of the recourse 1 propose to examine a preliminary issueraisedbycounsel for therespondents. Hecontendedthat this recourse cannot proceed as it has been abandoned by the applicantandwasdismissedaccordingly.Hereliedontherecord 25 of the Court dated 20th January, 1988, where the Court in extending the time for the applicant to file hiswritten address withinfourweeksfrom thatdate,itstatedthat,ifcounselforthe applicant failed to do so,he will seem to have abandoned the recourse and that it should stand dismissed. Counsel for the 30 applicant, indeed,failed to dosowithin thetime prescribedby the Court,but on 11/5/1988counsel for theapplicant statedto the Court that he filed his written address and the Court gave further directions as to the filing of the written addresses by counsel of the respondents and counsel for the interested 35 parties. Learnedcounselfortherespondentswaspresentonthatday and he did not object to the filing of the written address of counselfortheapplicant out oftimeanditseemstomethathe 40 waivedhisrighttoinsistonthedismissaloftherecourse. 774 3 C.L.R. 5 10 15 20 Gregoriades v. Republic Kourris, J. The vacancies inthe post of Postal Superintendent occurred asfar back as 1975andthe PublicService Commission decided to promote to such posts Nicos Christofides, Emilios .Georghalides.and Gregoris Kazantzis.as from 15th September, 1975. Allinterestedpartiesandapplicantswereholdingthepost of Senior Postal Officers. The decision of the Public Service Commission to promote the aforesaid persons to the posts of Postal Superintendent waschallengedbefore theSupreme Court by the applicant and by his colleague Andreas Nicolaou, in Recourse No. 151/75. The Supreme Court by its Judgement annulled the promotions of the aforesaid persons to thepost of Postal Superintendent (vide Nicolaou and Another v. The Republic
(1981)3 C.L.R. 73). The Court held that there has been no compliance with Section 44
(3)of the Public Service Law 1967 (Law 33/67) in that the acting director of the Department of Posts based his information received from the retired ex director of the Department of Posts. Intheresult the Court found that the confidential reports of the applicants and the interested parties were"more or lessequal"(vide Nicolaou andAnother v.TheRepublic (supra) at page82). The Public Service Commission convened on the 2nd May, 1981,to consider the matter afresh and decidedto promote the same persons,i.e.NicosChristofides, Emilios Georghalides and 25 Gregoris Kazantzis to the post of Postal Superintendent retrospectively from the 15th September, 1975. The applicant and his colleague Andreas Nicolaou challenged again the new decision of the Public Service Commission before the Supreme Court inRecourse No.206/81. 30 The Supreme Courtinajudgment deliveredon the6thApril, 1985,bythethen president oftheCourt annulledthedecisionof the Public Service Commission to promote the aforesaid persons to the post of Postal Superintendent (vide Nicolaou 35 andAnother v.Republic
(1985)3C.L.R.931). TheCourtheld that the respondent Commission adopted a course which was not open to itinexercisingproperly itsfunctions asacollective organ in that the performance at the original interview was conveyed to the Commission by one of its members. The 40 composition wasdifferent from theonewhichtook theannulled decision. 775 Kourris, J. Gregoriades v.Republic
(1989)ThePublicServiceCommission convenedforthethirdtime on the 9th September, 1985, in order to consider the matter afresh andtheydecidedtopromotetothevacantpostsofPostal Superintendent Nicos Christofides, Andreas Nicolaou and Gregoris Kazantzis. The applicant feeling aggrieved filed the 5 present recourse by which he challenges the validity of the promotion to the post in question of Nicos Christofides and Gregoris Kazantzis -theinterested partiesinthisrecourse. Thegroundsoflawonwhichthepresentrecourseisbasedare 10 the following: (a)TherespondentCommissiondidnotkeepminutesoftheir meeting held on 9/9/
- In the alternative, the respondent Commission did not compile such minutes 15 promptly. (b)The respondent Commission failed in their paramount dutytopromote thebestcandidate. 20 (c)The respondent Commission were influenced by the conclusions of their predecessor and by the views expressed before the PublicService Commission by the then actingdirectoroftheDepartment ofPosts.And, 25 (d)The respondent Commission failed to hold a proper enquiry in order to ascertain material facts in that they failedtoinvitethecandidatesfor aninterview. Thefirstgroundoftheapplicanthasnosubstanceatall. The 30 respondent Commission at their meeting of 9/9/1985 kept minutes ofthis meeting. Thisisapparent from Appendix 8to the written addressofcounselfortherespondents. Hiswritten addresswasfiledon9/12/1988andheattachedtoitAppendix8 which is the record of the minutes kept by the respondent 35 Commission of its meeting on 9/9/
- Further, there is no evidence before me that such minutes were not compiled promptlyandalsothisallegationisuntenable. Withregardtoground(c)againthecontention ofcounselfor 40 the applicant that therespondent Commission were influenced by the conclusions of their predecessor and*by the view 776 3 C.L.R. Gregoriades v. Republic Kourris, J. expressedbeforetherespondent Commissionbythethenacting director of the Department of Posts is untenable. The respondentCommission askedforalegalopinionbeforetaking thesubjudicedecision.AndinAppendix8itisexpresslystated 5 thattheydidnottakeintoconsiderationtheviewsexpressedby the then acting director and they did not also take into consideration his recommendations and his impressions from theinterview. 10 The contention under ground (d) above, is that the respondent, Commission failed to hold a proper enquiry in ordertoascertain materialfacts,inthat,theyfailedtoinvitethe candidates for an interview in order to elicit the candidates' merits. Ashort passage from thejudgement ofMarathevtou 15 andOthers v. TheRepublic(19S2)3C.LR. 1088atpage 1093 answersthiscontention: 20 25 "A similar discretion is acknowledged in administrative lawtotheappointing body,thePublicServiceCommission itself,to choose themeans appropriate for ascertaining the qualitiesofthecandidatescompetingfor appointment.They arethearbitersofthemeansbestsuitedtotesttheworthof the contestants.Not onlythePublicService Commission is free to opt fortheoneortheothermethodof examination, theyarealsoatlibertytomaketheirchoicewithoutrequiring the parties to undergo either a written or an oral examination.Thistheymaydowhenthematerialonrecord is sufficient to enable them to discharge their task effectively." 30 It is obvious that there was no duty on the respondent Commission toholdaninterview especiallyinthepresentcase where the selection had to be made among officers of long standingintheGovernment Service (see Christoudias v. The 35 Republic
(1984)3C.L.R. 657). Thelastremainingissueisthecontentionthattherespondent Commission failed in their paramount duty to select the best candidate. Theallegationofcounselfortheapplicantisthatthe 40 applicant was strikingly superior to the interested parties. He alleged that the Court in Recourse No. 151/75 (vide Nicolaou andAnother v. TheRepublic
(1981)3C.L.R.73atpage82) 777 Kourris, J. Gregoriades v. Republic
(1989)foundthattheconfidential reportsofthecandidates"weremore or less equal" which is binding upon the respondent Commission. He also said that applicant had seniority over interested party Kazantzis and -they failed to -give cogent reasons for disregarding seniority. He said that the applicant 5 establishedstrikingsuperioritybecausetheconfidential reports ofall thecandidates weremore or lessequalandthatseniority wasthedecisivefactorandthattheapplicantoughttohavebeen promoted insteadoftheinterestedparties. 10 I think learned counsel proceeded on awrong footing with regard to this contention. The case law isthat when all other factors are equal then seniority prevails. Therefore, it is pertinent to examine all the factors which are taken into consideration ineffecting apromotion,i.e.merit,qualifications 15 and seniority. It appears that the confidential reports of the candidates are more or less equal. The interested parties had additional qualifications which were considered bythescheme of service as an advantage.Applicant didnot have additional qualifications envisaged by the scheme of service as an 20 advantage. It is settled law that where an additional qualification is required under the scheme ofservice, special reasons must be given incaseswhereapersonnot possessingsuchqualification 25 wasselectedinpreference toanotherpossessingone,astowhy such qualification was disregarded (see Kalos v. Republic
(1985)3 C.LR. 135,Protopapas v. TheRepublic
(1981)3 C.L.R.456, Stylianou and Others v.TheRepublic
(1984)3 C.L.R.776). Interested partyChristofides hasseniorityoftwoyearsover applicant butapplicanthasthreeyearsseniorityoverinterested partyNo.2Kazantzis. Andthequestionwhicharisesiswhether itwasreasonablyopentothePublicServiceCommissiononthe 35 material before them,topromotetheinterested partiesinstead of theapplicant. The onus of establishing striking superiority lies alwayson the applicant in a recourse. The duty of the Public Service 40 Commissionistopromotethemostsuitablecandidate. Andthe dutyoftheCourtinreviewingpromotionsistoseewhetherthe 778 30 3 C.L.R. Gregoriades v. Republic Kourris, J. authority exercised its discretionary power in conformity with the statutory provisions and the rules and requirements of administrative law generally, including good faith. So long as the authority acted within those limits the Court cannot 5 interfere; itcannotsubstituteitsown opinion asto themeritsof thecandidatesforthat ofthepromotingauthority(see Pattichis andAnother v.Republic
(1968)3C.L.R. 374). It is accepted as a correct proposition that it is open to the 10 Commission, in trying to select the most suitable candidate to weightogether allrelevant considerations andtoattribute more significance to one factor than toanother inthecourse of doing so, provided, however, that it exercises properly its relevant discretion (see Georghiou v.Republic
(1976)3 C.L.R. 74 at 15 page82). * Bearing in mind the totality of circumstances that were before the respondent Commission, I have come to the conclusion that the sub judice decision wasreasonably open to 20 it. Theexerciseofitsdiscretion inthecircumstanceswasneither contrary to lawnor arrived under any misconception of fact or any abuseor excess of power. Applicant Gregoriadeshasfailed to establish any striking superiority over the two interested parties and his two years seniority over interested party No.2 25 could not have been a decisive factor once not all relevant circumstances were equal. In the circumstances the recourse is dismissed but with no order for costs. 30 Recourse dismissed. No orderas tocosts. 779