|
ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
|
|
|
(1989) 3A CLR 540
1989 May 12
[SAVVIDES, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
STELIOS GAVRIELIDES,
Applicant,
V.
THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC
SERVICE COMMISSION,
Respondent.
(Case No. 217/86)
Public officers - Promotions - Merit - Qualifications - Seniority - Applicant senior to interested parties by five and fifteen months respectively, qualifications more or less equal, but interested parties had better confidential reports and were recommended by the Head of the Department - Seniority not such as to override the superiority in merit of the interested parties.
Public officers - Promotions - Head of Department - Recommendation of- Presumption of regularity - In the absence of evidence to the contrary it should be inferred that the recommendations were properly made - Head of Department may consult the superiors of the candidates, when he has no direct knowledge of their work.
Bias - Lack of impartiality must be established with sufficient certainty.
Public officers - Promotions - Confidential reports - Alterations effected in blue ink not by countersigning officer, but by the reporting officer himself, who initialled the changes - Not an irregularity.
The issues and principles applied by the Court, in dismissing thisrecourse, sufficiently appear in the hereinabove Headnotes.
Recourse dismissed. No order as to
costs.
Recourse.
Recourse against the promotion of the interested parties to the post of Ward Supervisor in the Medical and Public Health Services in preference and instead of the applicant.
N. Papaefctathiou, for the Applicant.
P. Hadjidernetriou, Counsel of the Republic B, for the Respondent.
Cur.adv. vult.
SAVVIDES, J. read the following judgment. The applicant challenges by the present recourse, the promotion of LoizosYiangou and AvgiPieridou, the interested parties to the post of Ward Supervisor in the Medical and Public Health Services.
Though originally this case was dealt together with Case No. 54/86 in view of the different legal grounds that are raised in the two cases, I have decided to examine each case separately.
The facts are briefly as follows:
In the process of filling twelve vacancies in the post of Ward Supervisor, the Departmental Committee which considered the matter, submitted on the 8th November, 1985, its report to the respondent, by which it recommended 39 candidates amongst whom the interested parties, but not the applicant. At its meeting of the 28th November, 1985, the respondent considered the report of the Departmental Committee and decided to consider for promotion in addition to the 39 candidates recommended, a number of other candidates who had better confidential reports than one of the recommended candidates.
The applicant was not amongst those candidates.
On the 13th December, 1985, the respondent heard the viewsof the Director of Medical Services and Public Health Services and on the next day after taking into consideration all relevant matters, decided to promote the interested parties.
The above decision was published in the official Gazette of the Republic dated the 28th February, 1986, as a result of which the applicant filed the present recourse.
The legal issues raised by the address of counsel for the applicant are that:
(a) Neither the Departmental Committee, nor the respondent conducted any inquiry such as the holding of interviews in order to ascertain whether the interested parties possessed administrative and organizing abilities, responsibility and initiative as required by paragraph (2) of the schemes of service for the post.
(b) The Departmental Committee wrongly did not recommend and the respondent wrongly did not consider the applicant for promotion.
(c) The respondent failed to select the best candidate in view of the fact that the applicant was at least equal to the interested parties regarding qualifications and seniority to them.
(d) The recommendations of the head of the Department were made without a due inquiry into the matter.
(e) Lack of impartiality on the part of the reporting officer in the preparation of applicant's confidential reports.
(f) The confidential reports of the applicant and the interested parties were prepared in contravention of the provisions of circular No. 491/79.
The holding of an interview is within the discretion of the respondent, which has the right to regulate its own proceedings. The respondent as well as the Departmental Committee had before them the personal files, the confidential reports, the scheme of service and the comparative tables from which they found that both the applicant and the interested parties, as wellas a number of other candidates, possessed the qualifications required by the scheme of service, and was reasonably open to them not to hold the interviews. This answers the first ground.
The paramount duty of an appointing organ is to select the best candidates for appointment or promotion. The respondent in the process of selecting the best candidate has to take into consideration the confidential reports, the qualifications and the seniority of the candidates, as well as the recommendations of the Head of the Department. A comparison of the confidential reports of the applicant and the interested parties shows that three of the interested parties were excellent in all years since 1970 whilst the applicant was very good all through. With regard to qualifications all of them were found to possess the qualifications required by the scheme of service in any event the qualifications of the applicant and the interested parties, as they appear in the comparative tables, are more or less the same since they all have attended certain post-graduate training courses. With regard to seniority, the applicant is senior to interested party Pieridou by five months and by fifteen months to interested party Yiangou. His seniority is very small to override the better confidential reports of the interested parties. In view of this it is of academic importance whether, as it is the complaint of the applicant, any other candidates equal to him in merit and qualifications were recommended by the Departmental Committee, since none of them was selected for promotion. In any event the respondent having considered the report of the Departmental Committee, decided, at its meeting of the 28th November, 1985, in the light of the material before it, to take also into consideration an additional number of other candidates who had better confidential reports than one of those recommended by the Departmental Committee. All of these candidates however, have been rated as excellent in at least their last three confidential reports whilst the applicant was never rated as excellent.
As to the recommendations of the Head of the Department, besides being the proper organ to give such recommendations he may, if the case so requires when he has no direct knowledge of the work of the candidates, consult their superiors before submitting his recommendations. It may be inferred, having regard to the principle of regularity and in the absence of anyevidence to the contrary, that the proper course was followed in the present case, and the recommendations of the Head of the Department were properly made.
With regard to ground (e) it is the applicant's case that his confidential reports are tainted with bias. In respect to this complaint of his, he has sent a letter the 7th December, 1985, to the respondent stating the following:
"Επειδή πληροφορούμαι ότι το Report από την υπηρεσία μου δεν είναι αντικειμενικόν θα ήθελα να σας παρακαλέσω όπως διερευνήσετε διά την επανεξέτασιν του προσωπικού θέματος μου".
"(Since I am informed that the report from my service is not impartial I would like to ask you to see to the reconsideration of my personal matter").
The respondent replied to the applicant by letter dated the 21st December, 1985, stating that since no material was placed before the respondent Commission. it could not proceed with the examination of the matter.
It has been stated in a number of cases that lack of impartiality on the part of a public officer must be established with sufficient certainty. No material was placed either before the Commission or the Court which could lead even to an inference that the reports of the applicant were tainted with bias. This ground must, therefore, fail.
What remains to be considered is the allegation of counsel for applicant that the confidential reports of the parties were prepared in contravention of the provisions of circular No. 491/79 in that alterations were effected in the reports by the countersigning officers, in blue ink and without previous consultation with the reporting officer as it is provided by the said circular.
Upon examination of the relevant files it becomes apparent that there are no alterations in the reports of the interested parties. As to the reports of the applicant an alteration appears in his report of 1985 (which in any event was not before therespondent) in item 12 by which the aspect of his character was corrected from "excellent" to "very good". This alteration is made in blue ink and bears the initials of the reporting and not the countersigning officer. Similarly, in his report of 1984 his general rating was originally entered as "excellent" and was corrected to "very good". This correction is again initialled by the reporting officer, who corrected her obvious mistake in entering the general assessment of the applicant. This ground is, therefore, dismissed as unfounded.
In the light of the above I find that it was reasonably open to the respondent to reach the sub judice decision.
As a result this recourse fails and is, therefore, dismissed. In the circumstances I make no order for costs.
Recourse dismissed. No order as
to costs.