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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 11
1988 March 30
[TRIANTAFYLLIDES, P., MALACHTOS, DEMETRIADES,
LORIS, STYLIANIDES, JJ.]
PETROS CLERIDES AND ANOTHER,
Appellants.
v.
THE REPUBLIC OF CYPRUS, THROUGH THE
PUBLIC SERVICE COMMISSION,
Respondents.
(Revisional Jurisdiction Appeals Nos. 545, 547)
Public Officers - Appointments - First entry post - Specialised post - Advisory Board Recommendations - Public Service Commission not entitled to choose candidates not included in list compiled by the Advisory Board- The Public Service Law,1967 (Law 33/67).
Public Officers - Appointments - First entry post - Specialised post - Advisory Board Whether entitled to recommend less than 4 candidates for each vacant post - Question determined in the affirmative - The Public Service Law, 1967 (Law 33/67).
Public Officers - Appointments - First entry post - Specialised post - Advisory Board The Public Service Law, 1967 (Law 33/67), section 35(3)(4) - Their provisions are not of mandatory, but of directory nature.
Constitutional Law - Equality - Constitution, Art. 28 - Public Officers - Appointments - First entry post - Specialised post - Advisory Board - Interviews - Questions to candidates - Principle of equality does not entail that they be identical - The Public Service Law, 1967 (Law 33/67).
The Recourse related to the appointments to the post of Counsel for the Republic, which is a First entry specialised post. In its decision theadvisory Board, set up under Section 34(b) of the aforesaid Law, recommended only three candidates, despite the fact that the vacancies were 3 and it could have recommended four candidates for 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 than the 3 recommended.
The Recourse of three appellants was dismissed by a Judge of the Supreme Court Hence the present appeal. The Court reached the conclusion that the letter of the Attorney-Genera) did not add anything to the decision of the Board, which was the only document required by Law to be signed.
The Court's reasoning, in dismissing the Recourse, appears in the above Headnotes.
Appeal dismissed with no Order as to
costs.
Appeal.
Appeal against the judgment of a Judge of the Supreme Court of Cyprus (Savvides, J.) given on the 28th November, 1985 (Revisional Jurisdiction Case No. 297/81) whereby appellant's recourse against the promotion of the interested parties to the post of Counsel of the Republic was dismissed.
N .Panayiotou, for Appellant in R.A. 545.
A. S. Angelides, for Appellant in R.A. 547.
N Charaiambous, Senior Counsel of the Republic, for the Respondents.
Cur.adv. vult.
TRIANTAFYLLIDES, P.: The Judgement of the Court will be delivered by Mr. Justice Stylianides.
STYLLANIDES, J.: By means of these appeals is attacked the first instant judgment of a Judge of this Court, whereby the recourses of the appellants, under Article 146 of theConstitution, against the appointment of the interested parties to the post of Counsel of the Republic, with effect from 1st July, 1981, were dismissed.
The post of Counsel of the Republic is a specialized first 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 the Attorney-General in his capacity as Chairman of the Advisory Board, under section 35 of the Public Service Law, 1967, (No. 33/67), (the "Law").
The Attorney-General, acting under section 34(b) of the Law, nominated two Senior Counsels of the Republic as members of the Board.
The Advisory Board, on 8th May, 1981, interviewed and carried out oral examination of the candidates.
On 9th May, 1981, the Advisory Board decided to recommend only three of the candidates for the two vacant posts. This decision is duly signed by the Chairman and the two members of the Advisory Board.
The three candidates selected by the Advisory Board were in alphabetical order the two interested parties and CharalambosKyriakides.
The Attorney-General, by letter dated 9th May, 1981, forwarded to the Commission a report containing in alphabetical order the names of the candidates recommended for selection for appointment. In the said document it is written that recommendation for others was not justified.
The Attorney-General, in a letter dated 26th May. 1981, in which he referred to the candidates for appointment to the post of Legal Assistant, clarified in the last paragraph that only three were recommended for the office of Counsel of the Republic, as the other candidates were not found suitable for recommendation.
On 30th May, 1981, the Commission decided to interviewthe three candidates recommended.
On 19th June, 1981, the interviews were held in the presence of Mr. SoterakisGeorghiades, Senior Counsel of the Republic, representing the Attorney-General. The sub judice decision was taken on the same date.
The appellants rely on the following grounds for annulment of the sub judice decision:-
The procedure set out in paragraph (3) of section 35 of the Law was not followed, in that the Advisory Board did not prepare a list of the candidates who possessed all the qualifications prescribed in the relevant Schemes of Service, before determining the relevant merits of the candidates.
Candidates, who did not satisfy the Scheme of Service, were invited at the interviews and the oral examination.
The oral examination was unfair, as different questions were put to the candidates.
The Board did not recommend four candidates in respect of each vacant office.
The report of the Advisory 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 accordance with the Law and acted under a misconception of fact.
The Advisory Board misinterpreted the Scheme of Service and, in particular, the required qualification - (ικανόν επαγγελματικό και υψηλό ηθικό επίπεδο) - in that it decided that it comprises actual practice in Court, which one of the appellants, in fact, did not possess.All the provisions of section 35 are substantive and any deviation from them vitiates the composite administrative act of appointment to the post.
The Court considered carefully the grounds for annulment put forward by the counsel for the appellants and found that none of them has any merit.
The Advisory Board recommends not less than four candidates for each office, if suitable candidates are available.
The Commission is bound to select for appointment only amongst the candidates recommended by the Advisory Board.
The will of the Board was expressed in the minutes of its decision which was put down in writing and signed by all the members.
The letter of 26th May, 1981, does not add anything to the communication of 9th May. 1981, and it does not affect in any way the sub judice decision. It is clear, both in the decision of 9th May. 1981, and in the letter, that the recommendation of others was not justified, which plainly indicates that only the three were found to be suitable for recommendation.
The provisions of section 35(3) and (4) of the Law are directory and not mandatory, and, even if there was any departure from the procedure, envisaged therein, it was not substantial.
The object of the interviews held by the Advisory Board was to ascertain the possession by the candidates of the necessary qualifications and their experience in the profession, in view of the requirements of the Scheme of Service. These interviews were neither contrary to Law, nor in excess or abuse of powers. The Advisory Board substantially complied with the provisions of the Law, which are not a procrustean bed.
The questions put at the interviews were very legitimate, in order to ascertain the possession of the qualifications set out in the Scheme of Service and the suitability of the candidates for recommendation. The principle of equality was not infringed, as it is not necessary in any examination to put identical questions to the candidates. This allegation of counsel is a misconception of the principle of equality.
The letter - report of 9th May, 1981, conveys the decision and the recommendation of the Advisory Board. It was signed by its Chairman, and the fact that it was not signed by the other members of the Board, does not taint the decision. It is only the decision of the Board that required to bysigned by all its members, and to this there was compliance.
The Advisory Boards set up under section 34 of the Law for specialized offices are different from the Departmental Boards set up under section 36 for other posts.
The Departmental Boards simply make recommendations which are not binding on the Commission, whereas in the case of the specialized offices the Commission is restricted to select the persons to be appointed or promoted only amongst the candidates recommended by the Advisory Boards.
With regard to the merits of the candidates, the Administrative Court has no power to substitute its own decision for that of the Advisory Board or of the Commission.
Having regard to the material before us, including the position of the interested parties, who are Legal Assistants, First Grade, the position of the appellants, the qualifications and experience of the appellants, as they emerge from the material in the files, we may even say that the Commission selected the most suitable candidates.
For all the aforesaid reasons, the appeals fail and are hereby dismissed.
No order as to costs.
Appeals dismissed with no order
as to costs.