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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1988) 3 CLR 654
1988 March 29
[TRIANTAFYLLIDES, P., MALACHTOS, DEMETRIADES, SAVVIDES,
KOURRIS, JJ.]
LEONIDAS LEONIDOU AND ANOTHER,
Appellants - Applicants.
v.
THE REPUBLIC OF CYPRUS, THROUGH
THE PUBLIC SERVICE COMMISSION,
Respondent.
(Revisional Jurisdiction Appeals Nos. 669,670).
Public Officers-Promotions-Officer serving on probation on a permanent post-Eligible for promotion -The Public Service Law, 1967 (Law 33/67), section 44.
Public Officers-Promotions-Head of Department-Recommendations of-Cannot be disregarded without giving cogent reasons.
Public Officers-Promotions-Striking superiority-Six and a half years seniority over interested party, who, however, was recommended for promotion by the Head of the Department-Promotion of interested party open to the Commission.
Public Officers-Promotions-Qualifications-Scheme of service-Three years service in a post-In the circumstances such service need not have been continuous.
The recourse of appellant Leonidou against all interested parties, except interested party Neophytou, was dismissed on the ground that all concerned were more or less equal in merit, qualifications and seniority.
Appellant Trapelides had only challenged the promotion of Neophytou. The appellants were senior to Neophytou, but the latter, was recommended for promotion by the head of the Department.
The appellants argued that they were strikingly superior to Neophytou and that Neophytou was not qualified for promotion because (a) he had no three years "Continuous" service in his previous post and (b) he was serving in a temporary capacity.
Held, dismissing the appeals, Savvides and Kourris, JJ. dissenting as regards the dismissal vis-a-vis interested party Neophytou of the appeal of appellant Leonidou:
(1) The findings and conclusions of the trial Court concerning all interested parties except interested party Neophytou, are correct.
(2) Neither the Public Service Law (Law 33/67), nor the relevant to the post scheme of service require a continuous service for three years; nor was interested party Neophytou serving in a temporary capacity but was the holder on probation of a permanent post in the public service and, thus, he was eligible for promotion under section 44 of Law 33/67.
(3) In the light of the recommendation of the Head of the Department, it was open to the Commission to promote interested party Neophytou. It is a well established principle of administrative law that the recommendations of the Head of the Department cannot be disregarded without giving cogent reasoning for doing so.
Appeals dismissed.
No order as to costs.
Cases referred to:
Theodossiou v. The Republic, 2 R.S.C.C. 44;
Christou and Others v. The Republic, 4 R.S.C.C. 1;
Constantinou v. The Republic (1980) 3 C.LR. 551;
Frangos v. The Republic (1970) 3 C.L.R. 312;
Republic v. Haris (1985) 3 C.L.R. 106.
Appeals.
Appeals against the judgment of a Judge of the Supreme Courtof Cyprus (A. Loizou, J.) given on the 25th September, 1986 (Revisional Jurisdiction Cases Nos. 556/84 and 557/84), whereby appellants' recourses against the decision of the Public Service Commission to promote the interested parties to the post of Co-operative Officer, 1st Grade in the Department of Cooperative Development were dismissed.
G. Triantafyllides, for the appellant.
A. Vladimirou, for the respondent.
Cur. adv. vult.
TRIANTANTAFYLLIDES P.: The judgment of the majority, that is myself, Malachtos and Demetriades JJ., will be delivered by Demetriades J.
DEMETRIADES J.: Both appellants complain against the judgment of a Judge of this Court, by which their recourses against the decision of the respondent Commission not to promote them to the post of Co-Operative Officer 1st Grade, in the Department of Co-Operative Development as from the 1st August, 1984, were dismissed (see Leonidou v. The Republic, (1986) 3 C.L.R. 1647 and Trapelides v. The Republic, (1986) 3 C.L.R. 1861).
The appellant in Revisional Appeal No. 669 Mr. Leonidou complains against the promotion of all interested parties whilst the appellant in Revisional Appeal No. 670 Mr. Trapelides complains only against the promotion of interested party Kyriacos Neophytou.
As regards the complaint of Mr. Leonidou against the promotion of the interested parties, the trial Judge found that he had failed to establish that he was strikingly superior to them, a requisite necessary for the Court to interfere in the sub judice decision; that as regards qualifications, merit and seniority, Mr. Leonidou was more or less the same to all interested parties, except Mr. Neophytou over whom he was senior by approximately six and a half years; that he was not recommended for promotion by the Head of his Department and that his seniority over Mr. Neophytou could not prevail, all other things not being equal.
Having heard the arguments of counsel and having gone through the record in the file of this recourse, we have come to the conclusion that the findings and conclusions of the trial Court, concerning all interested parties except interested party Neophytou, are correct and that, therefore, the appeal of Mr. Leonidou must be dismissed as against those interested parties.
We now come to the complaint of both appellants against the promotion of interested party Neophytou.
The argument put forward by counsel for the two appellants that the respondent Commission was wrong in promoting Mr. Neophytou, was based on the following two points-
(a) the interested party did not satisfy the requirements of the scheme of service in that he did not have three continuous years of service, and
(b) he was serving in a temporary capacity and, therefore, the appellants, who were permanent public officers, ought to have been preferred.
Our answer to the arguments put forward in support of these issues, is that as neither the Public Service Law (Law 33/67), nor the relevant to the post scheme of service require a continuous service for three years, nor was interested party Neophytou serving in a temporary capacity but was the holder on probation of a permanent post in the public service and, thus, he was eligible for promotion under section 44 of Law 33/67, it was, in the light of the recommendation of the Registrar of Co-Operative Societies, who is the departmental Head of the Office in which Neophytou was employed, open to the respondent Commission to promote Neophytou. It is a well establishedprinciple of administrative law that the recommendations of the Head of the Department cannot be disregarded without giving cogent reasoning for doing so (see Theodossiou v. The Republic, 2 R.S.C.C. 44).
Before concluding, we must mention that Neophytou had for anumber of years served in the post that he was holding at the time of his promotion and that although he had resigned from the service and was later re-employed, one cannot say that he had lost his experience in carrying out the duties required by the post to which he was promoted.
In the result, we have come to the conclusion that both appeals must be dismissed but, in the circumstances, we make no order as to costs.
SAVVIDES J.: These two appeals are directed against the judgments of one of the Judges of this Court sitting in the first instance in the exercise of the original jurisdiction of this Court by which he dismissed the recourses of the appellants under Nos 556/84 and 557/84 challenging the decision of the respondent Public Service Commission to promote the interested parties to the post of Co-operative Officer, 1st Grade, in the Department of Co-operative Development as from 1st August, 1984, in preference to and instead of the applicants.
These two appeals were heard together as presenting common questions of law and fact and as the decision by which the promotion of all interested parties was effected is one and the same.
By their recourses both appellants were challenging the promotion of the eleven interested parties to the post of Co-operative Officer, 1st Grade. In the course of the proceedings however before the trial Court the second appellant withdrew his recourse against ten of them and restricted his prayer only against one of them namely Kyriacos Neophytou.
I need not embark on the facts which led to the promotion of the interested parties as they are sufficiently stated in the first instance judgment of the learned trial Judge in Case No. 556/84 (see: Leonidou v. The Republic (1986) 3 C.L.R. 1647).
The learned trial Judge, having dealt in his elaborate judgments with all arguments advanced by counsel for applicants in both recoursescame to the conclusion, in Leonidou v. The Republic (supra) at pp. 1659, 1660 that "it was reasonably open to the respondent Commission to promote the interested parties instead of the applicant who has failed to establish any striking superiority necessary for justifying any interference with the sub judice decision which was in the circumstances taken properly and in accordance with the law." In Case No. 557/84 (Trapelides v. The Republic (1986) 3 C.L.R. 1861, his conclusion at p. 1867, was that "the applicant has failed to establish any striking superiority which is necessary in order that the Court may interfere with the sub judice decision which was in the circumstances reasonably open to the respondent Commission was duly reasoned and was taken in accordance with the law that includes the general principles of Administrative Law." As a result the learned trial Judge dismissed both recourses.
I have no reason to disagree with the findings of the learned trial Judge concerning the fate of case No. 557/84 that on the material before him the applicant in that case - appellant in Revisional Appeal No. 670 - failed to establish any striking superiority over interested party Kyriacos Neophytou in order that the Court may interfere with the sub judice decision which was reasonably open to the respondent Commission was duly reasoned and was taken in accordance with the law. I, therefore, agree with my learned brothers of this Bench that there is no merit in the second Appeal (R.A. 670) and that it should be dismissed.
I come next to consider Revisional Appeal No. 669 I have no reason in this appeal either to disagree with the other members of this Bench that the appeal should be dismissed to the extent it concerns ten of the interested parties but I disagree with the majority of them that the recourse of the appellant, applicant in Case No. 556/84, should have been dismissed in so far as it concerns the promotion of interested party Kyriacos Neophytou. Concerning the promotion of this interested party, I agree with my brother Judge A. Kourris, whose judgment I had the opportunity to peruse, that the sub judice decision of the respondent Public Service Commission should be annulled for the reasons elaborately mentioned in his judgment.
The learned trial Judge, on the material before him, in dealing with the merit of appellant Leonidas Leonidou, applicant in case No. 556/84 found as follows at p. 1656:
"From the Overall picture presented by the parties, I believe that the applicant is not betterbut ranks equal to the interested parties."
Concerning qualifications the learned trial Judge found that both the appellant and the interested pasty were more or less equal.
On the question of seniority the appellant was senior by at least 6 1/2 years in comparison with interested party Kyriacos Neophytou. The learned trial Judge in affirming the sub judice decision of the respondent Public Service Commission explained the reasons why the seniority of the appellant should not have tipped the scales in his favour, as follows (see pp. 1657-1658):
"As regards qualification, merit, seniority, he is more or less the same to all interested parties except Neophytou over whom he is senior by about six and half years, but contrary to all interested parties he has not been recommended for promotion and his seniority over Neophytou cannot thus prevail, all other things not being equal. In any case in accordance to well established principles of administrative law the recommendations of the Head of Department cannot be lightly disregarded without giving cogent reasoning for doing so. (See Theodossiouv. Republic, 2 R.S.C.C. 44)."
I agree with the learned trial Judge that the recommendations of the Head Of the Department cannot be lightly disregarded as stated in Theodossiou v. The Republic (supra). There are however circumstances in which such recommendations cannot have considerable effect on the selection and appointment of the most suitable candidates, such as those mentioned in Christou and others v. The Republic 4. R.S.C.C. 1 in which the following were statedatpp.5,6:
"Coming now to the question of the validity of the appointments of the interested parties the Court should observe first that in this Case it cannot really be said that the recommendations of the Head of Department could have had any considerable effect, because the Head of Department could only recommend and did recommend the Applicants, whom he knew, without being in a position to state anything about the suitability of the great number of the other candidates, whom he did not know at all."
The facts of the present case fall within the decision of Christou and Others (supra). In the relevant minutes of the meeting of the respondent Commission at which the sub judice decision was taken we read the following concerning the recommendations of the Head of the Department.
"Στη συνεδρίαση ήταν παρών και ο Διοικητής Συνεργατικής Ανάπτυξης κ. Ερωτόκριτος Χλωρακιώτης.
Αυτός ανάφερε τα εξής:
Βάσει των όσων έχει υπόψη του και των κριτηρίων του νόμου, συστήνει χωρίς ενδοιασμό τους πιο κάτω δέκα υπαλλήλους:
......................................
10. Νεοφύτου Κυριάκο, ο οποίος είναι παρά πολύ καλός υπάλληλος και υπηρετεί στη Λευκωσία.
.....................................
Όσον αφορά το Λεωνίδα Λεωνίδου, ο οποίος υπηρετεί στη Λευκωσία, δεν έχει προσωπική γνώση της απόδοσής του, γιατί αυτός απουσίαζε για τέσσερα χρόνια στο εξωτερικό και επέστρεψε κατά τα τέλη του 1983. Δεν έχει δοκιμαστεί και δεν υπάρχουν αποδεικτικά στοιχεία."
and in English:
"Present at the meeting was the Commissioner of Co-operative Development Mr. Erotokritos Chlorakiotis.
He mentioned the following:
On the basis Of what he has in his mind and the criteria provided by law, he recommends without hesitation the following ten candidates.
..............
10. Neophytou Kyriacos who is a very good employee and serves in Nicosia.
..............
As far as Leonidas Leonidou is concerned, who serves in Nicosia, he has no personal knowledge of his performance, because he had been absent abroad for four years and returned about the end of 1983. He has not been tried and no evidential material exists."
It is clear from the above that the case is not one in which the Head of the Department expressly commented on some of the candidates and made no comments about others, all of whom he knew, from which it could be inferred that for those not commented upon "there was nothing to be said in their favour and it was not his intention to recommend them for promotion" (as stated in Constantinou v.The Republic (1980) 3 C.L.R. 551).
In the circumstances of the present case the recommendation of the Head of the Department could not have such considerable effect on the selection of the most suitable candidates (Theodossiou v. The Republic (supra)) as to override the striking seniority of the appellant over interested party. Kyriacos Neophytou and tip the scales in his favour once in merit and qualifications they weremore or less equal.
In the result R.A. 669 succeeds in so far as the promotion of interested party Kyriacos Neophytou is concerned and the sub judice decision declared null and void. The appeal is dismissed in so far as it relates to the remaining interested parties. I make no order for costs. Revisional Appeal No. 670 is dismissed with no order for costs.
KOURRIS, J.: Revisional Appeal No. 669: This is an appeal against the judgment of one of the Judges of the Supreme Court sitting in the first instance, whereby he dismissed the recourse of the appellant against the decision of the Public Service Commission to promote the interested parties in preference and instead of the appellant.
I hold the view that the appellant can succeed only in respect of the promotion of interested party Kyriakos Neophytou and that there is no merit in his appeal against the other interested parties, for the reasons which I will set out hereinbelow.
At the time of the decision of the Public Service Commission the appellant and the ten interested parties were holding the post of Co-operative Officer, 2nd Grade and by the sub judice decision the interested parties were promoted to the post of Cooperative Officer, 1st Grade as from 1.8.84.
Learned counsel for the appellant in arguing the appeal before us relied on the following points: (1) The confidential report of the appellant for the year 1983 should not have been taken into account because it covered 2 months; (2) the Head of Department countersigned the confidential report of the appellant when he did not know the appellant and consequently it was illegal; (3) the interested party did not satisfy the prerequisites of the scheme of service in that he did not have three continuous years of service; and (4) the interested party was serving in a temporary capacity and, therefore, the appellant, who was a permanent public officer, should have been preferred.
I have considered these points and I am in agreement with the result reached by the trial Court.
With regard to the first point, it was submitted that the confidential report of the appellant for the year 1983 is contrary to s.45(1) of the Public Service Law 1967 (Law No. 33 of 1967) as the appellant has been assessed only as from 1st November, 1983 to the 31st December, 1983, that is, two months, and that, therefore, such confidential report was erroneously taken into consideration.
Section 45(1) of the law provides that confidential reports are prepared on all officers annually and that they "shall be submitted not later than the 31st day of January each year", and nothing is provided either in the law or the General Orders preserved by virtue of s.86(1) of the aforesaid law that the words "annual", "annually," have any other meaning than their ordinary meaning, that is, "for the year", "yearly". There is no provision that the annual report to be valid must cover no less than 12 months. Therefore, the confidential report was rightly taken into account.
The second point raised is that the Head of Department countersigned the confidential report of the appellant when he did not know him and consequently was illegal, and as such vitiated the decision. I do not think there is merit in this argument because the Head of Department may have received information from his inferior officers before countersigning the confidential report.
Regarding the third point where it was claimed that the interested party did not satisfy the requirement of the scheme of service of "at least three years' service in the post of Co-operative Officer, 2nd. Grade", because he had only 5 months service prior to the sub judice decision and that his prior service between 1st February, 1969 to 10th September, 1972 was wrongly taken into consideration, I find that this argument must fail also because there is no provision in the relevant scheme of service that the years of service should be continuous. The scheme of service merely states that the service should be at least three years.
The fourth point raised is that the appellant should have been preferred for the promotion as he was serving on a permanent basis whereas the interested party was an unestablished officer because he was holding a permanent post in a temporary capacity.
It should be noted that the interested party is not an unestablished officer serving in a temporary capacity but was in point of fact before the Sub judice promotion the holder of a permanent post in the public service albeit on probation and as such he was qualified for promotion under s.44 of the law.
Counsel for the appellant finally argued before us that the Public Service Commission exercised its discretion in a defective manner in promoting the interested parties instead of the appellant and that the trial Judge erred in holding that it was reasonably open to the respondent Commission to reach the sub judice decision.
With regard to the interested parties, with the exception of interested party Kyriakos Neophytou, I am of the view that the decision of the respondent Commission was taken properly and in accordance with the law and that it was reasonably open to it to promote the interested parties instead of the appellant who failed to establish any striking superiority necessary to justify any interference with the sub judice decision. I shall, therefore, confine my judgment to the promotion of interested party Kyriakos Neophytou to whom I shall refer in this Judgment as the interested party.
Appellant entered the public service on 15.9.1977 when he was appointed as Assistant Co-operative Officer and this title changed to Co-operative Officer, 2nd Grade on 1.1.1981. Appellant, from 29.12.1979 to 31.10.1983 was on educational leave studying economics in the University of Bonn but he did not obtain any degree, having followed only six semesters out of the twelve semesters.
The interested party on 15.11.1961 was Auditor of Co-operative Societies in the Audit and Supervision Fund. On 1.2.1969 he was appointed in the public service, in the Department of Co-operative Development as Assistant Co-operative Officer, where he served until 10.10.1972 when he resigned. From 1st January, 1980, until January 1984 he again worked as Auditor of Co-operative Societies and on 14.2.1984 he was again appointed as a public officer in the Department of Co-operative Development to the post of Co-operative Officer, 2nd Grade.
As regards merit, as it appears from the confidential reports, appellant is rated as "very good" for both years 1977 and 1983. On the other hand, there are no reports for interested party Neophytou because he was serving on probation and the confidential reports in the form of six-monthly reports which are required to be submitted on every officer on probation as Neophytou was, was not prepared because he had only 5 months' service from his appointment in 1984.
In the case of Frangos v. The Republic, (1970) 3 C.L.R. 312, it was held that the absence of a confidential report was considered to be not a factor precluding an officer from being considered for promotion.
The Head of Department recommended for promotion the interested party and he did not make any comments with regard to the appellant because he did not know him personally and he did not know his performance.
The learned trial Judge concluded that it was reasonably open to the respondent Commission to promote the interested party instead of the applicant who has failed to establish the requisite striking superiority necessary in order to justify any interference by the Court in the sub judice decision because he was of the view that as regards qualifications and merits, the applicant and interested party were more or less equal, but the interested party has been recommended by the Head of Department for promotion whereas appellant has not been recommended for promotion and thus his seniority of 6 1/2 years over the interested party could not prevail.
In accordance with the well-established principles of administrative law, the recommendations of the Head of Department cannot be lightly disregarded without giving reasoning for doing so. (See Theodossiou v. The Republic, 2 R.S.C.C. 44; Republic v. Hans, (1985) 3 C.L.R. 106). It should be noted that in the present case the Head of Department recommended for promotion the interested party but he expressed no opinion regarding appellant because he had no personal knowledge of his performance as the appellant was absent for four years abroad on educational leave and returned towards the end of 1983. Therefore, it is not a case where the Head of Department expressly comments on some officers and does not comment on others where the inference to be drawn is that for those not commented upon there was nothing to be said in their favour and it was not his intention to recommend them for promotion. (See Constantinou v. The Republic, (1980) 3 C.L.R. 551.)
I think that the facts of the present case fall within the decision of Christou and Others v. The Republic, 4 R.S.C.C. 1, where it was held that the recommendations of a Head of Department on members of his staff applying for appointment to vacant posts in the public service could not have considerable effect on the selection and appointment by the Public Service Commission of the most suitable candidates for such posts if there were other candidates, also, who were not known to such Head of Department.
The sum up: Appellant and interested party have more or less the same qualifications, the interested party has no confidential reports, but the applicant is senior to the interested party by six and a half years and the question that falls for decision is whether the recommendations of the Head of Department in favour of the interested party, in the circumstances of the case in hand where according to the case law could not have any considerable effect can override the striking seniority of the appellant as promotions should be considered on the basis of merit, qualifications and seniority, pursuant to the provisions of s.44 of the Public Service Law, 1967.
I am of the view that if the Head of Department recommended for promotion the interested party and kept silent about the appellant in the sense of the decision of Constantinou v. The Republic (supra), i.e that an inference could be drawn that he did not recommend the appellant because he had nothing to say in his favour, then it would have been reasonably open to the respondent Commission to promote the interested party instead of the appellant. But, in the present case the Head of Department did not say anything about the appellant not because he had nothing to say in his favour, but because he did not know him and consequently, his recommendations in favour of the interested party cannot bear considerable effect on the selection and appointment by the respondent Commission of the most suitable candidate and cannot prevail over the striking seniority of the appellant by 61/2 years over the interested party.
In the light of the above, I hold the view that it was not reasonably open to the respondent Commission to promote the interested party instead of the appellant who had established striking seniority necessary for justifying interference with the sub judice decision.
In the result, this appeal succeeds in so far as the promotion of interested party Kyriakos Neophytou is concerned, which is declared to be null and void and of no effect whatsoever and it is dismissed in so far as it relates to the remaining interested parties with no order for costs.
Revisional Appeal No.670:
This is an appeal against the Judgment of one of the Judges of the Supreme Court sitting in the first instance, whereby he dismissed the recourse of the appellant against the decision of the Public Service Commission to promote the interested parties in preference and instead of the appellant.
The recourse was originally filed against all 11 officers promoted to the post of Co-operative Officer, 1st Grade, as a resultof the sub judice decision, but it was subsequently withdrawn as against all except interested party Kyriakos Neophytou, and consequently this appeal is against the promotion of the interested party Kyriakos Neophytou.
Learned counsel for the appellant in arguing the appeal before us raised the following points: (1) that the interested party who was serving on a temporary basis, was wrongly preferred to the appellant who was serving on a permanent basis; (2) that the interested party did not satisfy the requirement of the scheme of service of "at least 3 years' service in the post of Co-operative Officer, 2nd grade", because his prior service from 1st February, 1969 to 10th September, 1972, was wrongly taken into account.
With regard to the first point, it should be noted that Neophytou was neither an unestablished officer nor was he serving in a temporary capacity. He was, in point of fact before the sub judice decision the holder of a permanent post (Ordinary Budget) in the public service, albeit on probation, and there is no provision in the Public Service Law, 1967 (Law No. 33/67) precluding such an officer from being eligible for promotion under s.4 thereof. This point, therefore, must fail.
With regard to the second point raised, it was claimed that the interested part did not satisfy the requirement of the scheme of service of "at least 3 years' service in the post of Co-operative Officer, 2nd Grade, because he had only 5 months' service prior to the sub judice decision and that his prior service between 1st February, 1969 - 10th September, 1972 was wrongly taken into consideration. I find that this argument must fail also because there is no provision in relevant scheme of service that the years of service should be "continuous". The scheme of service merely states that the service should be at least 3 years.
Counsel for the appellant finally argued before us that the Public Service Commission exercised its discretion in a wrong manner in promoting the interested party instead of the appellant and that the trial Judge erred in holding that it was reasonably open tothe respondent Commision to reach the sub judice decision.
As regards merit, the appellant is rated as "very good" for both years 1982 and 1983. On the other hand, there are no reports for interested party due to the fact that he was appointed as a Cooperative Officer, 2nd Grade on 15.2.84, and consequently the six-monthly confidential report was not ready as he has served 5 months only from the date of his appointment to the said post. But, this is not a factor precluding an officer from being considered for promotion (Frangos v. The Republic), (1970) 3 C.L.R. 312).
The appellant is senior to the interested party by six and a half years, but as regards qualifications they have more or less the same.
The Head of Department recommended both appellant and interested party for promotion to the post in question, but his recommendations with regard to the interested party are stronger.
In view of the material before the Public Service Commission, which was also before the learned trial Judge, rightly the trial Judge held that the appellant has failed to establish any striking superiority which is necessary in order to justify any interference by the Court with the sub judice decision which was in the circumstances reasonably open to the respondent Commission in holding that the stronger recommendation for promotion to the post in question in favour of the interested party could prevail over the seniority of the appellant.
In these circumstances, the appeal, therefore, must fail and is hereby dismissed with no order for costs.
Appeals dismissed by majority.
No order as to costs