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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1986) 3 CLR 451
1985 June 1
[TRIANTAFYLLIDES, P.]
IN THE MATTER OF ARTICLE 146OF THE CONSTITUTION
ZACHARIAS PAPANICODEMOU,
V.
THE REPUBLIC OF CYPRUS, THROUGH
THE PUBLIC SERVICE COMMISSION,
Respondent,
(Case No. 487/82).
Public Officers—Promotions—Public Service Commission—Change of its composition—Change effected after its first meeting when it decided to advertise the post in question— Nothing was done at such meeting affecting the choice of candidates—In the circumstances the change of its composition does not vitiate the sub judice promotions.
Public Officers—Promotions—Principles governing the interference by this Court with the exercise of the discretion of the Commission.
Public Officers—Promotions—It is not improper for a candidate's immediate superior to mention in his letter for-warding the candidate's application for appointment to the post that the latter possesses the required under the schemes of service qualifications.
By means of the present recourse the applicant challenges the promotion of the interested party to the post of Assistant Registrar, a first entry and promotion post.
On the 8.11.81 the P.S. C decided that the above post should be advertised in the Official Gazette. At some time, thereafter, the composition of the P.S.C. changed. After the said change, the P.S.C. met on 14.6.82 when it considered the report of the Departmental Committee and on 1.7.82, when it interviewed the candidates and reached the sub judice decision.
The Chief Registrar attended the meeting of the P.S.C. of the 1.7.82 and assessed the performance of the candidates at the interviews, describing the applicant as excellent in his answers and as having a very good personality and the interested party as very good in his answers and as having an excellent personality. He further stated that all candidates possess the required under the scheme of service ability to control staff, but to a different degree. He further stated that the applicant "controls staff" and the interested party "does not control staff".
In the confidential reports for 1981 and 1980 the Chief Registrar did not evaluate the ability of the interested party to control staff, as the duties of the interested party did not entail the supervision or control of staff, but in his letter dated 2.1.82 forwarding the application of the interested party for appointment to the post in question he pointed out that the interested party possessed the required qualifications, including the ability to control staff. It should be noted that a similar letter dated 29.12.81 by the Registrar of the District Court ofLarnaca concerning the applicant had been sent to the P.S.C. through the Chief Registrar.
Held, dismissing the recourse (1) Nothing was done during the meeting of the Commission on the 18.11.81 which could affect the choice of the candidates lo be appointed. It follows that the different composition of the Commission after the said meeting does not vitiate the administrative process.
(2) It is clear that the Commission knew that the interested party did not actually in the course of his duties,control or supervise staff, but, on the other hand, it hadalso before it the statement by the Chief Registrar, thatthe interested party had the ability to control staff. Therefore, the Commission was not labouring under any misconception of fact and, moreover, it was reasonably opento it to reach the conclusion that the interested partypossessed the required under the scheme of service qualification of ability to control staff.
(3)As the Chief Registrar was the immediate superiorof the interested party it was not improper on his part torecommend the interested party for appointment in thesame way as the immediate superior of the applicant inLarnaca recommended him when forwarding his application.
(4)The applicant and the interested party were of moreor less equal in merit. Applicant's seniority was not suchas to tilt the scale in his favour. The interested party was better qualified than the applicant. It follows that applicant failed to establish a case of striking superiority.
(5)In proceedings such as the present recourse thisCourt does not interfere with the exercise of the discretionof the Commission, if the decision was reasonably opento it.
Recourse dismissed.
No order as to costs.
Cases referred to:
Vivardiv.The Vine Products Council (1969) 3 C.L.R. 486;
Enotiadouv.The Republic (1971) 3 C.L.R. 409:
Piperiv.The Republic (1980) 3 C.L.R. 377;
Neophytouv.The Republic, 1964 C.L.R. 280;
Michael (No. 1) v.The Republic (1975) 3 C.L.R. 136,
and on appeal (1975) 3 C.L.R. 432;
Andreouv.The Republic (1979) 3 C.L.R. 379;
Pitsillidouv. Republic (1978) 3 C.L.R. 349;
Georghakis v.-The Republic (1977) 3 C.L.R. 1;
Georghiouv.The Republic (1976) 3 C.L.R. 74;
Michaelidesv.The Republic (1976) 3 C.L.R. 115;
Tsangaris v Republic (1975) 3 C.L.R. 518.
Recourse.
Recourse against the decision of the respondent to promote the interested party to the post of Assistant Registrar in preference and instead of the applicant.
E. Lemonariswith Chr. HjiYiangou, for the applicant.
G. Erotokritou (Mrs.), Senior Counsel of the Republic,for the respondent.
Cur.adv. vult.
TRIANTAFYLLIDES P. read the following judgment. By means of the present recourse the applicant seeks a declaration of the Court that the decision of the respondent Public Service Commission to promote the interested party SavvasRaspopoulos to the post of Assistant Registrar, in preference to and instead of him, is null and void and of no effect whatsoever.
It should be pointed out at this stage that in the motion for relief the name of the interested party is referred to as "SavvasRaftopoulos" but this is obviously a clerical error because from the minutes of the Commission, as well as from all the relevant documents which were placed before the Court, and from the addresses of counsel, too, it is quite clear that the interested party in the present proceedings is SavvasRaspopoulos.
The post of Assistant Registrar is, in accordance with the relevant scheme of service, a first entry and promotion post. After the advertisement of a vacancy in such post in the Official Gazette a Departmental Committee was set up which, on the 19th March 1982, recommended to the respondent Commission four of the candidates, including the applicant and the interested party. The Commission interviewed the said four candidates and another candidate on the 1st July 1982 in the presence of the Chief Registrar of the Supreme Court, Andreas Olymbios, who in assessing the performance of the candidates at the interviews described the applicant as excellent in his answers and as having a very good personality and the interested party as very good in his answers and as having an excellent personality.
As regards the ability of the candidates to control staff he stated the following:-
«Όλοι διαθέτουν την υπό του οικείου Σχεδίου Υπηρεσίας απαιτουμένην ικανότητα ελέγχου προσωπικού, άλλα εις διαφορετικόν βαθμόν. Οι κ.κ. Ιωάννου και Παπανικοδήμου ελέγχουν προσωπικόν. Οι κ.κ. Ζηντίλης και Ηλιάδης δεν ελέγχουν ούτε ήλεγξαν ποτέ προσωπικόν αλλά διαθέτουν την ικανότητα. Ο κ. Ρασπόπουλος δεν ελέγχει προσωπικόν.»»
("All possess the required under the relevant Scheme of Service ability to control staff, but to a different degree. Messrsloannou and Papanicodemou control staff. MessrsZintilis and Eliades do not control and have never controlled staff, but possess the ability. Mr. Raspopoulos does not control staff.")
The Commission then proceeded to make its own assessment of the performance of the candidates at the interviews and after a general evaluation of the candidates and a comparison between them it reached the conclusion, having taken into account all relevant considerations, that the interested party was superior to the other candidates and decided to promote him to the post of Assistant Registrar.
The first issue raised by counsel for the applicant is that there supervened an alteration of the composition ofthe respondent Commission after its meeting on the 18thNovember 1981 which vitiates the whole process whichled up to its sub judice decision.
From the relevant minutes of the meetings of the Commission which were held on the 18th November 1981. The 14th June 1982 and the 1st July 1982 it appears that the composition of the Commission on the 18th November 1981 was different from that on the 14th June 1982 and the 1st July 1982.
On the 18th November 1981 the Commission decided that as the post of Assistant Registrar was a first entry and promotion post it should be advertised in the Official Gazette.
At its meeting on the 14th June 1982 the Commission considered the report of the Departmental Committee and decided to interview the four candidates, including the applicant and the interested party, who were recommended by the Committee, and, also, another candidate.
On the 1st July 1982 the interviews of the candidates took place in the presence of the Chief Registrar and the sub judice decision was reached.
In the light of the principles governing the composition of collective organs and of the approach adopted in this respect in cases such as Vivardiv. The Vine Products Council, (1969) 3 C.L.R. 486, 490, Enotiadouv.The Republic, (1971) 3 C.L.R. 409, 413, 414 and Piperiv.The Republic, (1980) 3 C.L.R. 377, 384, 385, I have reached the conclusion that in the present instance the different composition of the respondent Commission after its first meeting cannot be treated as vitiating the administrative process leading up to the decision to appoint the interested party because during the meeting of the Commission on the 18th November 1981, when the composition of the Commission was different, nothing was done which could affect the choice of the candidate to be appointed.
It has been further argued by counsel for the applicant that the interested party did not possess the required by the scheme of service qualification of "ability to control staff".
I have already referred to what the Chief Registrar stated in this respect at the meeting of the Commission on the 1st July 1982.
In the confidential reports for the interested party in respect of the years 1981 and 1980 the Chief Registrar did not make any evaluation of the ability of the interested party to control staff because, as he stated, the duties of the interested party did not entail the control or supervision of staff. It has to be noted, however, that in a letter addressed by the Chief Registrar to the respondent Commission on the 2nd January 1982, in forwarding the application of the interested party for appointment to the post concerned, the Chief Registrar pointed out that the interested party possessed the required under the relevant scheme of service qualifications including the ability to control staff.
It is clear in the light of the foregoing that the respondent Commission must have been well aware that the interested party in the course of the exercise of his duties at the material time did not actually supervise or control staff, but, on the other hand, it had also before it a statement of the Chief Registrar, who was the immediate superior of the interested party, that the interested party had the ability to control staff.
I am, therefore, of the view that the Commission was not labouring in this respect under a misconception and, moreover, that it was reasonably open to it, on the material before it, to come to the conclusion that the interested party did possess the required under the relevant scheme of service qualification of ability to control staff; and it is well settled that this Court will not interfere in a case where it was reasonably open to the Commission to find that a candidate was qualified for appointment or promotion (see, inter alia, in this connection, Neophytouv. The Republic, 1964 C.L.R. 280, 299, Michael (No. 1) v.The Republic, (1975) 3 C.L.R. 136, 141, and on appeal (1975) 3 C.L.R. 432, and Andreouv.The Republic, (1979) 3 C.L.R. 379, 386, 387).
Counsel for the applicant has, also, complained that the Chief Registrar should not have expressed an opinion in advance, by his letter of 2nd January 1982, about one of the candidates, by recommending for appointment the interested party.
As has already been stated such letter was sent by the Chief Registrar to the respondent Commission when forwarding the application of the interested party for appointment to the post concerned.
On the 28th December 1981 a similar letter had been sent to the Commission, through the Chief Registrar, by the Registrar of the District Court of Larnaca when forwarding the application of the applicant and another two candidates who were serving under him.
As the Chief Registrar was the immediate superior of the interested party I do not find that it was improper on his part to recommend the interested party for appointment, in the same way as the immediate superior of the applicant in Larnaca recommended him when forwarding his application.
Counsel for the applicant has argued, too, that he ought to be appointed instead of the interested party as being strikingly superior to the interested party, as well as senior to him.
I have perused the contents of the confidential reports in respect of the applicant and the interested party for the years 1981 and 1980 and in my view the applicant andthe interested party appear to be candidates of more or less equal merit.
As regards seniority I have duly considered the relevant stages in the careers of the applicant and of the interested party and I have reached the conclusion that the seniority of the applicant over the interested party was not such that, in the circumstances of this case, it could have tilted, on its own, the scales in favour of the applicant.
From a comparative table which was produced before me it appears that the applicant has graduated from the Larnaca Gymnasium and has passed the Government examinations in General Orders, Financial Instructions and Store Regulations.
The interested party has graduated from the Kykko Gymnasium and he possesses a Diploma in Law of the University of Salonica, he has passed the Cyprus Bar examinations and has been registered as a pupil advocate. He has also passed the Government examinations in General Orders.
From the relevant scheme of service it appears that a University Diploma or Law Degree enabling its holder to be registered as a pupil advocate and success in the Cyprus Bar examinations is one of the alternative qualifications required under such scheme.
It seems therefore that the interested party was better qualified than the applicant because he possesses higher qualifications which are specifically referred to in the relevant scheme of service.
In view of the foregoing I am of the view that the applicant has failed to discharge the burden of establishing that he was strikingly superior to the interested party so as to justify the intervention of the Court in his favour.
I would like to add that in proceedings such as the present recourse this Court will not interfere with the exercise of the discretion of the respondent Commission in making appointments or promotions if the decision of the Commission was reasonably open to it in the circumstances of the present case (see, inter alia, in this respect, Pitsillidouv. The Republic, (1978) 3 C.L.R. 349, 354, Georghakisv.The Republic, (1977) 3 C.L.R. 1, 9, Georghiouv.The Republic, (1976) 3 C.L.R. 74, 82, Michaelidesv.The Republic, (1976) 3 C.L.R. 115, 123, Tsangaris v.The Republic, (1975) 3 C.L.R. 518, 530, Michael (No. 1) v.The Republic, (1975) 3 C.L.R. 136, 142, and on appeal (1975) 3 C.L.R. 432); and, in the present instance, on the basisof the material that was placed before the Commission and is now before me, it was, in my view, reasonably open to it to arrive at its sub judice decision. This Court cannot substitute its own discretion for that of the Commission.
Consequently, the present recourse fails and is dismissed accordingly; but with no order as to its costs.
Recourse dismissed.
No order as to costs.