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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1985) 3 CLR 1041
1985 May 30
[L. LOIZOU, J.]
IN THE MATTER OF ARTICLE 146
OF THE CONSTITUTION
YIANNIS KEPEYIANNIS,
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH
THE PUBLIC SERVICE COMMISSION,
Respondent.
(Case No. 55/81).
Public Officers-Promotions-Qualifications-Material date at which a candidate for promotion must possess the qualifications required under the relevant schemes of service-Is the date on which the request for the filling of a vacancy. under section 17 of the Public Service Law, 1967 (Law 33/67) is received by the Commission-Applicant not possessing the required qualifications at the material time-He has no existing legitimate interest affected by the sub judice decision-And he could not make this recourse.
The applicant challenged the validity of the decision of the respondent Public Commission to promote the interested party, Costas Anaxagorou to the post of Senior Storekeeper in preference and instead of him.
It was common ground that the applicant had not passed by the 13th March, 1980, when the departmental board considered the matter, the examinations in General orders, a qualification required by the schemes of service, and that he did so later i.e. on the 26th June, 1980, before the sub judice decision was taken.
Held, that the material time at which a candidate for promotion must possess the qualifications requited under the relevant schemes of service is the date on which the request for the filling of a vacancy, under section 17 of the Public Service Law, 1967 (Law 33/67) is received by the Commission; that, therefore, the Public Service Commission has correctly decided that the applicant could not be considered for promotion. as not possessing the qualifications required under the scheme of service at the material time and that, in view of this, he had no existing legitimate interest which was affected by the decision challenged and could not, therefore, make this recourse.
Application dismissed.
Cases referred to:
Republic v. Pericleous and Others (1984) 3 C.L.R. 577.
Recourse.
Recourse against the decision of the respondent to promote the interested party to the post of Senior Storekeeper in preference and instead of the applicant.
D. Michaelidou (Mrs.), for G. Cacoyiannis, for the applicant.
Cl. Antoniades, Senior Counsel of the Republic, for the respondent.
Cur. adv. vult.
L. LOIZOU, J.: The applicant, by this recourse, challenges the validity of the decision of the respondent Public Service Commission to promote the interested party, Costas Anaxagorou to the post of Senior Storekeeper in preference and instead of him.
The sole issue that falls for determination in the present case is the date at which a candidate for promotion must possess the qualifications required under the relevant scheme of service.
The undisputed facts of the case are briefly as follows:
The applicants as well as the interested party were, at the relevant time holding the post of Storekeeper, 1st Grade, in the Government Stores Department.
After the necessary approval was given by the Minister of Finance on 25th September, 1979, for the filling of a vacant post of Senior Storekeeper (Annex 1 attached to the Opposition) the Public Service Commission decided, at its meeting of the 8th October, 1979 (Annex 2 attached to the Opposition) to refer the matter of the filling of such post to a departmental board established under s. 36 of the Public Service Law, 1967, forwarding for the purpose, to its Chairman, a list of the candidates for promotion, seven in number, the relevant schemes of service and the confidential files of the candidates.
The departmental board found that only three out of the seven candidates possessed the required qualifications under the relevant scheme of service and recommended for promotion two of them i.e. the interested party and the applicant.
The Public Service Commission at its meeting of the 14th May, 1980, found that the non-recommendation by the board of the third eligible candidate, Mr. G. Antoniou, was not justified in the light of the findings of the board and the material before them and postponed the consideration of the promotions for another date on which all three eligible candidates would be considered (exhibit 5).
The Public Service Commission finally met on the 11th October, 1980, and the Head of Department, who was pre sent, expressed the following views with regard to the applicant: (exhibit 3)
"Mr. J. Kepeyiannis is a very good officer and deserves to be promoted. He has only three years until his retirement, is a displaced person and inspite of his age he has tried and succeeded in passing the L.C.C. examinations. Up to the time of the consideration of the promotions by the departmental board he had not passed the examinations in General Orders, but in the meantime he has passed them and it would be regret-able not to be promoted given that today he satisfies all the qualifications and is superior both in merit and seniority to the other two candidates."
The Head of the Department then went on to express his views about the two other candidates rating the interested party better than Mr. G. Antoniou.
After the Head of Department withdrew from the meeting the Commission considered the-matter and decided that the applicant could not be considered for the filling of the vacant post because at the time of the consideration of the matter by the departmental board (March-April, 1980) he did not possess all the qualifications required under the relevant scheme of service as he had not passed the examinations in General Orders, and they proceeded to promote the interested party.
As a result the present recourse was filed.
It is common ground that the applicant had not passed by the 13th March, 1980, when the departmental board considered the matter, the examinations in General Orders and that he did so later i.e. on the 26th June, 1980, be-fore the sub judice decision was taken.
Perhaps it should be pointed out that in the list of candidates for promotion to the post of Senior Storekeeper which was forwarded by the Commission to the, departmental board for consideration (attached to, the Opposition as "A" of exhibit 3) "General Orders" appear in the column of qualifications opposite the name of the applicant. This obviously was an oversight on the part of the Commission which may have misled the departmental board in arriving at its conclusions. But, however that may be, since this has no bearing on the case as it is not in dispute that the applicant had not in fact passed the said examinations by the-time the matter-was considered by the departmental board it merits no further consideration except,, perhaps, to say that the departmental board might have never considered-the applicant as an eligible candidate had it not been for this mistake since they could not have-known that he would pass the examinations in the meantime.
Reverting to the point in, issue, counsel for applicant argued, in the course of the hearing of the recourse, that the material date on which a candidate should possess the qualifications required under the scheme of service should be the date on which the promotions are made and that s.33 (c) of the Public Service Law should be construed accordingly.
Counsel for the respondents, on the other hand, maintained that in the light of the regulatory orders governing the establishment, functions and procedure of the departmental boards approved by the Council of Ministers under s. 36 of the Law, the material time must be taken to be either the time when the departmental board was considering the candidates to be promoted to the post in question, or when the list of eligible candidates was prepared by the Public Service Commission for the purpose of forwarding it to the departmental board.
This same point was determined by the Full Bench of this Court in the case of The Republic v. Pericleous and Others (1984) 3 C.L.R. 577, which was an appeal against the judgment of a Judge of this Court in which he held that the material time is the time of the promotion in question. The Full Bench, after reviewing the authorities and considering the relevant provisions of the Public Service Law and the regulatory orders made under s.36 thereof, decided that the material time should be the date on which the request for the filling of the particular vacant post is received by the Commission. This, in the present case, was the 25th September, 1979.
At pp. 586-587 of the judgment in the above case, which was delivered by Justice A. Loizou, one reads:
"With the aforesaid in mind we have considered the issues raised before us very carefully as they are of great importance because of their general application and their consequence to public officers or prospective candidates for public offices and we have come to the conclusion that the first material date at which a candidate must possess they required qualifications in the case of a First Entry and First Entry and Promotion Post, is the last date of the period prescribed in the advertisement for the vacancy by which applications have to be submitted and in respect of Promotion Posts only where no applications are made, inevitably it is the date on which the request for the filling of a vacancy under section 17 of the Law is received by the Commission. These dates are the dates on which in substance the administrative process for appointments and promotions by the Commission is set in motion. They are as such impersonal in character and unrelated to the expeditious or delayed action of the appropriate administrative organ concerned with such appointments and promotions and which are fundamental safeguards for good and proper administration. Needless to say that the candidates must continue to possess the required qualifications also on the day the decision to appoint or promote him is made. And we agree on this point, with the learned trial Judge.
Furthermore the possibility of candidates being required, to go through a written or oral examination or both, as provided by subsection 4 of section 31 or subsection 4 of section 35, strengthens the, view that once this precedes the making of the decision for" appointment or promotion by the Commission a candidate must possess the required qualifications when undergoing such examination, which takes place naturally earlier than the date the decision to appoint & promote, is made Likewise where interviews are held.
Any other approach would inevitebly lead to odd situations by, candidates becoming eligible up to the last moment between the various stages of, the administrative process and the final making of the decision to appoint or promote by the respondent Commission."
In the light of the above I must hold that, in the present case, the Public Service Commission has correctly decided that the applicant could not be considered for promotion as not possessing the qualifications required under the scheme of service at the material time. And, in view of this, he had no existing legitimate interest which was affected by the decision challenged and could not, therefore, make this recourse.
In the result this recourse fails and it is hereby dismissed. There will be no order as to costs.
Recourse dismissed.
No order as to costs.