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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1985) 3 CLR 513
1985 April 10
[PIKIS, J.]
IN THE MATTER OF ARTICLE 146
OF THE CONSTITUTION
CHRISTOS CHRISTOUDIAS,
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH
THE PUBLIC SERVICE COMMISSION,
Respondents.
(Case No. 159/84).
Public Officers-Schemes of service-Construction-Principles applicable-"Success at a specific written examination that will (shall) be held by the Ministry of External Affairs"-In the scheme of service for the post of attach -Construction placed to the said scheme as encompassing. Success at an examination held on a date prior to the advertisement of the post not open to the Commission.
By virtue of clause (e) of the schemes of service of the post of attach at the Ministry of Foreign Affairs, a first entry post, there was required "success at a specific written examination that will (shall) be held by the Ministry of External Affairs". The respondents construed the aforementioned clause as encompassing success at a written examination for the post of attaché irrespective of the time at which it was held or the advertisement of any vacant posts for filling them. Thus they decided the scheme was satisfied by success at an examination held on a date prior to the advertisement of the post in question. Consequently, the interested party was found to possess the qualification specified in clause (e) notwithstanding the fact that he did not sit at the written examination held for the filling of three vacancies of Attaché advertised on 31st December, 1982.
Upon a recourse by the applicant against the appointment of the interested party to the above post.
Held, that the construction of a scheme of service must be one reasonably open to the Commission and none is open, that is irreconcilable with the wording of the scheme, in this case the clear provisions of clause (e); that like any legislative instrument the provisions of a scheme of service must be interpreted with due regard to the letter and spirit of its provisions; that the spirit of the Law must be discerned from the wording of the instrument within the framework of the: scheme as a whole; that the construction placed on clause (e) was not open to the respondents at all that the inescapable inference is that the interested party lacked the qualifications necessary for appointment and on that account his candidature ought to have been ignored; and that by appointing him the respondents abused as well as exceeded their powers and their decision must necessarily be set aside.
Sub judice decision annulled.
Cases referred to"
Der Parthogh v. C.B.C. (1984) 3 C.L.R. 635;
Xinari and others v. Republic (1984) 3 C.L.R. 598;
Michael add Another v. republic (Decision of the Full bench delivered on 26.3.85).
Recourse.
Recourse against the decision of the respondents to promote the interested party to the post of Attach in the Ministry of Foreign Affairs in preference and instead Of The applicant.
C. Loizou, for the applicant.
A. Papasavvas, Senior Counsel of the Republic, for the respondents.
Cur. adv. vult.
PIKIS J. read the following judgment. At the end the challenge to the decision was confined to the selection of one of the interested parties namely, S. Loizides, and then for only one reason, ineligibility for lack of one of the qualifications required by the scheme of service. Excepting his qualifications there is no room for questioning the appointment of the interested party on any other ground. The limitation, of the issues to matters -truly" in dispute is in every case a commendable course enabling the Court to concentrate on the issue dividing the parties, iii this case the interpretation and application of the scheme of service.
At issue is the interpretation of a particular clause of the scheme of service and its effect. Notably clause (e) necessary in order to determine the validity of the construction placed on it by the P.S.C. Clause (e) sets forth fifth in-numerical order of the qualifications necessary for appointment to the post of Attaché at the Ministry of Foreign Affairs, a first entry post. It reads as follows: "Success at 2 specific written examination that will (Shall) be held by the Ministry of External Affairs" Relying on a series of advice given by the Deputy Attorney-General, Mr. Loucaides, explaining inter alia, differences between a qualifying and a competitive examination, the respondents construed the aforementioned clause as encompassing success at a written examination for the post of Attaché irrespective of the time at which it was held or the advertisement of any vacant posts for filing them. Thus they decided the scheme was satisfied by success at an examination held on a date prior to the advertisement of the post in question. Consequently, the interested party was found to possess the qualification specified in clause (e) notwithstanding the fact he did not sit at the written examination held for the filling of the three vacancies of Attaché advertised on 31st December, 1982. This was plainly wrong for it involved a construction of the scheme wholly unwarranted by its wording; nor were the opinions rendered by Mr. Loucaides, so far as I am able to judge, intended to furnish an interpretation of the scheme under consideration. The opinion given on 23rd June, the one more closely connected with the present case, purported to interprete the following provision of a scheme of service: "Success at a specific written examination being held by the Ministry of Foreign Affairs". The expression "being held" might conceivably, though not necessarily, be construed as encompassing success at an examination recurrently conducted by the Ministry. Whereas the word "will" (shall) in whatever context it may be encountered invariably, refers to an event of the future, in this case an examination to be held on a date subsequent to the advertisement of the post the context of clause. (e) the word "will stipulated the time at which the, specific examination referred to -therein would take, place; a combination that also suggests that the makers of the scheme intended a Specific "qualifying examination for the filling of the post in question. In the context of the particular scheme it was not an unnatural provision considering it was a first entry post.
The latitude of choice of construction of a scheme acknowledged to, the Public Service Commission wide, such as it is, has its limitations. The construction must be one reasonably open to the Commission and none is open, that is irreconcilable with the wording of the, scheme, in this case the clear provisions of clause (e). They may favour a construction other than the most obvious or natural one, but the construction placed upon the scheme must be one compatible with its provisions. Any construction that defies the wording of the scheme must necessarily be ruled out, as arbitrary and as such impermissible. Like, any legislative instrument the provisions of a scheme of service must be interpreted with due regard to the, letter and spirit of its provisions. The spirit of the Law must be discerned from the wording of the instrument read within the framework of the, scheme as a whole.
As explained above, the construction, placed on clause (e) was not open to the respondents at all. The inescapable inference is that the interested party lacked the qualifications necessary for appointment and on that account his candidature ought to have been ignored. No discretion vested in the respondents to relax the qualifications for appointment. According to the wording of the scheme they were a neccessary prerequisite for eligibility to seek appointment. The fact that clause (e) was numerically the last of the five qualifications stipulated for appointment, did not diminish its importance or neutralize its indispensability. Everyone of the five qualifications was equally necessary for appointment. Consequently, as the interested party lacked one of the necessary qualifications he was ineligible for appointment. By appointing him the respondents abused as well as exceeded their powers and their decision must necessarily be set aside.
It is with a sense of regret I arrived at the, decision to annul the appointment of the interested party, a competent officer as his record reveals. However, this is an inescapable result and the only one compatible with the supremacy of the Law enjoining each and everyone to heed its commands and give effect to them and so I do by annulling the decision.
In the result the recourse succeeds, the decision appointing interested party Loizides to the post of Attaché is annulled. No order as to costs.
Sub judice decision
annulled. No order as
to costs.