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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1986) 3 CLR 525
1986 April 3
[SAVVIDES, J]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
MICHAEL PANAYTOTIDES,
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH
THE PUBLIC SERVICE COMMISSION,
Respondent.
(Case No. 482/84).
Public Officers—Promotions—Interviews, performance at—Not a criterion separate from merit, qualifications and seniority —Undue weight.
On 2.8.83 the respondent Commission promoted the interested party (Mr. Ketonis) to the post of Registrar Orthopedic Section in the Medical Services. The applicant challenged the said promotion by means of Recourse 519/83. In the course of the relevant proceedings counsel for the respondent Commission pointed out to it that it had relied on a wrong finding of fact, namely that Mr. Ketonis was the most senior of all candidates for the post. As a result the Commission revoked the promotion of Mr. Ketonis and on 10.8.84 met to consider the filling of the vacant post.
Both the applicant and the interested party (Mr. Ketonis) acquired their specialisation in orthopaedics in Greece. The applicant is senior to the interested party by 6 1/2 months and the confidential reports for the last 4 years showed a slight superiority in favour of the applicant. The following statement is included in the relevant minutes of the respondent Commission: ".... the slight superiority of Panayiotides in particular items as well as his small seniority, are overcomed by the better impression formed at the interview about Ketonis, not only by the Commission but also by the Head of the Department...".
The Commission promoted the interested party retrospectively as from 15.8.83 and as a result the applicant filed the present recourse.
Held, annulling the sub judice decision: (1) It has been held time and again by this Court that interviews do not constitute a criterion by itself separate from the merits, qualifications and experience of the candidates but is merely a means of forming an opinion and evaluating their merits, notwithstanding the fact that it is not the safest.
(2) A mere perusal of the minutes of the meeting at which the sub judice decision was taken, makes it abundantly clear that the respondent in reaching its decision gave ,undue weight to the performance of the candidates at the interview.
Sub judice decision annulled.
£100 costs in favour of applicant.
Cases referred to:
Triantafyllides and Others v. The Republic (1970) 3 C.L.R. 235;
Savva v. The Republic (1980) 3 C.L.R. 675;
Papadopoulos v. The Republic (1983) 3 C.L.R. 675;
Lambis and Others v. The Republic (1986) 130.
Recourse.
Recourse against the decision of the respondent to promote the interested party to the post of Registrar (Orthopaedic Section) in the Medical Services retrospectively as from 15.8.1983 in preference and instead of the applicant.
G. Triantafyllides, for the applicant.
N. Charalambous, Senior Counsel of the Republic, for the respondent.
Cur. adv. vult.
SAVVIDES J. read the following judgment. The applicant in this recourse is challenging the decision of the respondent Commission dated, 10.8.1984, to promote Nicolaos Ketonis the interested party, to the post of Registrar (Orthopaedic Section) in the Medical Services retrospectively as from 15.8.1983, instead of the applicant.
The post of Registrar in the Medical Department is a first entry and promotion post and on 2.8.1983 the Public Service Commission after having published the vacancy to such post in the official Gazette of the Republic and having interviewed the candidates who applied in response, amongst whom the applicant and the interested party, decided to promote Nicolaos Ketonis, the interested party, to such post. Applicant challenged such decision by Recourse No. 519/83 (Panayiotides v. The Republic of Cyprus, through the Public Service Commission). In the course of the proceedings in such recourse counsel appearing for the respondent pointed out to it by letter dated the 27th April, 1984, that the promotion of Nicolaos Ketonis to the post of Registrar had been taken whilst the Public Service Commission was operating under a misconception of fact, in that it relied on a wrong finding of fact that he was the most senior of all the candidates for the post, who were in the Public Service. This fact was obviously wrong, as it emanated from the personal files of the candidates from which it appeared that the applicant was senior to the interested party by six months and 15 days. As a result, counsel advised by his said letter the respondent to revoke its previous decision of the 2nd August, 1983 concerning the promotion of Ketonis.
At its meeting of the 8th of May, 1984, the respondent considered the letter of its counsel and having gone through the relevant files, ascertained that in fact at the material time it acted under a misconception of fact concerning the seniority of the interested, party, whereas applicant was in fact senior to him. As a result, the respondent revoked its decision of 2.8.1983 for the promotion of Nicolaos Ketonis and decided to inform him that he was restored to his previous post, that is to the post of Medical Officer, 1st Grade, which he was previously holding and postponed the reconsideration of the filling of the post to a later date.
The respondent informed the interested party of its decision by letter dated the 10th May, 1984 and by another letter of the same date, requested its counsel to bring the fact of the revocation of its decision of 2.8.1983 to the notice of the Court dealing with Recourse No. 519/83.
Counsel appearing for the applicant then informed the respondent of his intention to withdraw Ketonis as an interested party from the recourse and requested it to proceed to the filling of the post on the basis of the material exiting on the 2nd August, 1983.
The respondent Commission met on 10.8.1984 to consider the question of the filling of the vacant post of Registrar (Orthopaedics) in the Medical Services which resulted after the revocation of its previous decision of 2.8.1983.
As it appears from the minutes of the said meeting, the respondent after making reference to the circumstances which led to the reconsideration of the case proceeded as follows:
"The Commission reconsidered very carefully all material concerning all candidates at the material time.
The Commission took into consideration the confidential reports of the candidates who are public officers and noted that their grades for the last four years were as follows:
Nicolaos Ketonis:
1979 G. (0-3-9)
1980 V.G. (1-8-3)
1981 E. (8-4-0)
1982 E. (8-4-0)
........
Michael Panayiotides:
1979 G. (0-4-8)
1980 V.G (4-8-0)
1981 E. (10-2-0)
1982 E. (10-2-0).
........"
The Commission also took into consideration the performance of the candidates at the interviews before it, which is as follows:
Ketonis was considered as considerably very good by the Head of the Department and very good by the Commission.
........
Panayiotides was considered as nearly very good both by the Head of the Department and the Commission.
The Commission noted that from the point of view of seniority in the Public Service Panayiotides, who was appointed to the post of Medical Officer, 1st Grade as from 1.1. 1974 comes first, Ketonis follows with a difference of 6| months having been appointed on 15.7.1974 and Spyrou who was appointed as from 1.10.1975 is third. The Commission further took into consideration the qualifications of the candidates as well as their experience in general.
The Commission noted that Ketonis. Panayiotides and Schizas acquired their specialisation in orthopaedics in Greece. .......
The Commission on the basis of the totality of the material before it selected Ketonis as the best. The Com-mission has not omitted, of course, to note that in the Confidential Reports of the last four years there is a slight superiority in favour of Panayiotides though, on the general grading in all these years, Panayiotides was graded the same as Ketonis, that is, they were both Good in 1979, Very Good in 1980 and Excellent in 1981 and 1982. On the other hand, the slight superiority of Panayiotides in particular items as well as his small seniority, are overcomed by the better impression formed at the interview about Ketonis, not only by the Commission but also by the Head of the Department. As mentioned earlier, Ketonis was assessed at the interview as considerably very good by the Head of the Department and very good by the Commission, whereas Panayiotides was assessed as nearly very good, both by the Head of the Department and by the Commission.
In conclusion the Commission, taking into consideration all the material facts before it, found that Ketonis Nicolaos is superior to all other candidates and decided to promote him as the most suitable to the permanent post of Registrar (Orthopaedics) in the Medical and Public Health Services, retrospectively as- from 15.8.83.
As a result, applicant filed the present recourse challenging the above decision.
The grounds of law set out in the recourse are as follows:
(1) The respondent Commission acted in abuse and/or in excess of power.
(2) The sub judice decision is contrary to law, the Constitution and generally the principles of administrative law.
(3) The respondent did not give due weight to the superiority of the applicant concerning qualifications, merit and seniority.
(4) The decision of the respondent is not duly reasoned.
In expounding on the legal grounds in support of his recourse, counsel for applicant by his written address submitted that the respondent erred in law in appraising the applicant and the interested party in terms of merit, qualifications and seniority and more particularly that it over-emphasised the importance of the interview before it.
It has been held, time and again by this Court that interviews do not constitute a criterion by itself separate from the merit, qualifications and experience of the candidates but is merely a means of forming an opinion and evaluating their merits, notwithstanding the fact that it is not the safest one (see Triantafyllides and others v. The Republic (1970) 3 C.L.R. 235 at p. 245; Savva v. The Republic (1980) 3 C.L.R. 675; Papadopoulos v. The Republic (1983) 3 C.L.R. 1423 at p. 1428 where it was held that although the impressions gained at the interview as to the personality of a candidate are relevant to the choice of a candidate for promotion, especially if the post carries serious administrative responsibilities, they cannot be decisive).
In the recent decision of Ioulios Lambis and others v. The Republic of Cyprus, Cases Nos. 122, 123 and 240/84, in which judgment was delivered on the 25th February, 1986, after reviewing the relevant case law on the matter. I annulled the promotion of the interested party in that case to the post of District Officer, on the ground that the interviews played an outweighing part in the assessment of the candidates.
A mere perusal of the minutes of the meeting at which the sub judice decision was taken, makes it abundantly clear that the respondent in reaching its decision gave undue weight to the performance of the candidates at the interview. As it emanates from the said minutes, though the Commission found that in the confidential reports of the last four years there was a superiority in favour of the applicant, and also that applicant was senior to the interested party came to the conclusion that these findings were "overcome by the better impression formed at the interview about Ketonis, not only by the Commission but also by the Head of the Department".
In the light of the above authorities the fact that, in the present case, the respondent has given undue weight to the performance of the candidates at the interviews and that the interviews played an outweighing part over the criteria contemplated by the law concerning the selection of the most suitable candidate, is sufficient to render the sub judice decision a nullity.
In the result, the sub judice decision is annulled with £100.- in favour of the applicant.
Sub judice decision annulled.
Respondent to pay £100.- costs.