REPUBLIC ν. MILTIADOUS (1989) 3A CLR 132

(1989) 3A CLR 132

1989 January 27

[A. LOIZOU. P., DEMETRIADES, SAVVIDES PIKIS, JJ.]

THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC

SERVICE COMMISSION,

Appellants,

MILTIADES MILTIADOUS,

Respondent.

(Revisional Jurisdiction Appeal No. 778)

Public officers - Promotions - Qualifications - "Treated service" - Decision 12.655 of Council of Ministers in respect of "recognition of a post- graduate diploma or title on education or post-graduate education by a public officer as service or experience" - A benefit that can only be used once - The choice of when that should be, belongs to the officer concerned.

The respondent in this appeal was a candidate for promotion to the post of Assistant Collector of Customs. He was, however, excluded, because he had not completed the required period of service in the post of Customs and Excise Officer, first grade.

The respondent in this appeal invoked the decision 12.655 of the Council of Ministers, the text of which appears at page 135 of the decision, and filed a recourse to this Court. In fact, whilst he was serving in the lower post of Customs and Excise Officer 2nd grade, he acquired, following studies abroad, a post-graduate diploma, satisfying the requirements of the said decision.

The respondents in the recourse (appellants in the appeal) argued that the benefit under the decision could only relate and be treated as amounting to service in the post that the applicant held at the time of his studies abroad.[133]

The Judge, who heard the recourse, did not accept this interpretation. On the contrary, in annulling the sub judice decision, he held that it is for the officer concerned to choose when he will use the benefit, which can only be used once only during an officer's career.

As a result the present appeal was filed. The only issue that arose for determination was what was the proper interpretation of the aforesaid decision of the Council of Ministers.

The Full Bench of the Supreme Court dismissed the appeal (Loizou, P. dissenting) holding that the interpretation adopted by the judgment appealed from was correct.

Appeal dismissed. No order as to costs.

Cases referred to:

Papapetrou v. Republic 2 R.S.C.C. 61,

Frangoullides and Another v. Public Service Commission (1985) 3 C.L.R. 1680,

Der Parthogh v. Republic (1984) 3 C.L.R. 635,

Republic v. Aivaliotis (1971) 3 C.L.R. 89,

Petsas v. Republic 3 R.S.C.C. 60,

Soteriou v. Republic (1980) 3 C.L.R. 237,

Aivaliotisv Republic (1970) 3 C.L.R. 149,

Kolokotronis v. Republic (1980) 3 C.L.R. 418.

Appeal.

Appeal against the judgment of a Judge of the Supreme Court of Cyprus (Kourris, J.) given on the 30th V December, 1987 (Revisional Jurisdiction Case No. 153/87) reported in (1987) 3 C.L.R. 1774, whereby the promotion of interested party to the post of Assistant Collector of Customs was annulled.

L. Koursoumba (Mrs), Counsel of the Republic B, for the Appelants.

G. Triantafyllides, for the Respondent.

A. LOIZOU P.: The majority judgment of the Court will be delivered, with the concurrence of Justices Savvides&Pikis, by Justice Demetriades.

DEMETRIADES, J.: This is an appeal from the judgment of a Judge of this Court, by which the decision of the appellants not to promote the respondent to the post of Assistant collector of Customs was annulled.

The facts that led to the proceedings in the first instance Court and to the present appeal are the following:

In January, 1986, as there were six vacancies in the post of Assistant Collector of Customs, which is a promotion post, the Director General of the Ministry of Finance requested the appellants, the body entrusted with the promotion of civil servants, to fill the vacant posts by the promotion of eligible officers.

As a result of the request of the Director General, the appellants asked the Departmental Committee, set up for that purpose under the provisions of section 36 of the Public Service Law 1967 (Law 33/67), to submit to it its recommendations respecting the candidates in the Department of Customs and Excise eligible for promotion. The Departmental Committee recommended 18 candidates, including the respondent and the interested parties.

The respondent, although at the material time was holding the post of Customs and Excise Officer 1st Grade, he had not served in that post for three years which was the qualification required by the scheme of service for promotion to the post of Assistant Collector of Customs. Nevertheless, the respondent, whilst servicing in the post of Customs and Excise Officer 2nd Grade, had spent time abroad to acquire a post-graduate diploma in subjects which were connected with or related to his duties in the service. In view of a decision of the Council ofMinisters (Decision No. 12655), on the subject of "recognition of a postgraduate diploma or title on education or post-graduate education by a public officer as service or experience", the appellants sought advice from the office of the Attorney-General of the Republic whether the period of absence of the respondent ought to be treated as one served in the post held at the time he was abroad for his studies, or whether it could be treated as service in the higher post subsequently held by him.

As a result of the legal opinion given by the office of the Attorney-General, the appellants decided that the respondent was not eligible for promotion because the period spent by him for obtaining his post-graduate diploma ought to be considered as service in the post he was then holding, i.e. that of Customs and Excise Officer 2nd Grade and not in the post he was holding at the time the sub judice decision was taken.

At this stage, it is pertinent to set out the relevant to this case part of Decision No. 12655 of the Council of Ministers, the heading of which I have earlier mentioned:

"Διά σκοπούς Σχεδίων Υπηρεσίας θέσεων διά τας οποίας απαιτείται ωρισμένη υπηρεσία ή πείρα -

Μεταπτυχιακόν δίπλωμα ή τίτλος αποκτηθείς κατόπιν μελέτης εις το εξωτερικόν είτε υπό δημοσίου υπαλλήλου κατά την διάρκειαν της υπηρεσίας του είτε υπό προσώπου τινός προ του διορισμού εις την δημοσίαν υπηρεσίαν, και

(α) μη συνιστών απαραίτητον προσόν διά την θέσιν, δέον να λογίζεται, βάσει του κανονικώς απαιτουμένου χρόνου διά την απόκτησιν αυτού, ως υπηρεσία ή πείρα μέχρι δύο ετών, κατ' ανώτατον όριον, και

(β) συνιστών απαραίτητον προσόν διά την θέσιν μη λογίζεται ως υπηρεσία ή πείρα πλην της περιπτώσεως κατοχής τίτλου Διδάκτορος (PH.D.) διά την οποίαν θα λογίζεται ως εν έτος υπηρεσίας ή πείρας:

Νοείται ότι τοιούτο δίπλωμα ή τίτλος δέον όπως μη λογίζεται ως υπηρεσία ή πείρα εάν δεν είναι συναφής προς τα καθήκοντα της θέσεως.

Η ως άνω υπηρεσία ή πείρα θα αναγνωρίζεται άπαξ μόνον και θα ευρίσκεται εις πίστιν του υπαλλήλου κατά την διάρκειαν της υπηρεσίας του."

("For the purposes of Schemes of Service of a post in which certain service or experience is required-

A post graduate diploma or title acquired after studies abroad either by a public officer during his service or by any person prior to his appointment to the public service, and

(a)not constituting a necessary qualification for the post, shall be reckoned, on the basis of the time normally required for its acquisition, as service or experience up to two years, maximum; and

(b)constituting a necessary qualification for the post shall not be reckoned as service or experience except in the case of possession of the title of Doctor of Philosophy (PH.D.) which shall be reckoned as one year's service or experience:

Provided that such diploma or title shall not be reckoned as service or experience if it is not related to the duties of the post.

The aforesaid service or experience shall be recognized once only and shall be to the credit of the officer during his service.")

The issue as defined by the trial Judge is whether the period which the appellant spent abroad to acquire his post-graduate diploma, referred to as "treated service" (πλασματική υπηρεσία), ought to have been treated as service in the post held by an officer during the time he spent for his studies, i.e. in the present case, as Customs Officer, 2nd Grade, or if not used at that stage, whether it could be treated as service in any other higher post subsequently held by the officer, i.e. in the present case, as Customs Officer, 1st Grade.

Counsel for the respondent in this appeal - the applicant in the recourse - submitted to the trial Court that an officer whohad spent time abroad in order to acquire a post-graduate diploma related or connected with his duties (which time is known as "treated service" and in the Greek language πλασματική υπηρεσία) can make use of the benefit afforded by the said decision of the Council of Ministers at any time during his service in the Public Service.

Counsel for the respondent in the recourse - appellants in this.appeal - in arguing her case before the trial Court, invited it to hold that the decision of the Council of Ministers ought to be interpreted as providing that the "treated service" ought to be treated as service in the post the officer held during the time he spent for his studies.

The trial Judge, having heard the arguments of counsel, reached the conclusion that for a post-graduate diploma or title to be recognized by virtue of the said Decision of the Council of Ministers, four requirements had to exist, that is the diploma or title-

(a) was acquired after education abroad,

(b) should not constitute a necessary qualification for the post,

(d) should have been acquired after education abroad by a public officer during his service or by a person before his appointment in the public service.

The trial Judge held that as a matter of construction of the relevant provisions of the schemes of service, the only limitation to the use of "treated service" is that it can only be used once in the career of the officer and when that should be is left to the choice of the officer concerned. Finally, the learned trial Judge annulled the sub judice decision for misconception of material facts, i.e. the facts relevant to the eligibility of the applicant for promotion, and misinterpretation of the relevant provisions of the circular of the Council of Ministers.

In arguing the appeal before us, counsel for the appellantCommission relied on the following grounds of appeal:

"1. The trial Judge erroneously held that the true construction to be placed on the Decision of the Council of Ministers No. 12.655 is that the 'treated service' ('πλασματική υπηρεσία') can be used by a public officer at any stage of his career provided that he uses this 'treated service' only once.

2. The trial Judge erroneously held that though the Decision of the Council of Ministers No. 12.655 qualifies the scheme of service for the post in question and is incorporated with it, it was not open to the Public Service Commission in reading together the said Decision with the scheme of service in question to adopt any interpretation that was reasonably open to it.

Alternatively, even if this is a case where the court can intervene and give a legal construction to the said Decision, the trial Judge erroneously held that the only correct interpretation of the Decision of the Council of Ministers No. 12.655 is that the 'treated service' can be used by a public officer at any stage of his career. Further, the trial Judge failed to consider arguments to the effect that such construction would be inconsistent with the provisions of the Public Service Law, (Law 33/1967 as amended)."

Counsel further argued forcefully that the relevant scheme of Service and the said Decision of the Council of Ministers should be applied and interpreted as a single document and the test to be applied by the Court in the judicial control of the relevant decision of the Public Service Commission, is the test which has been enunciated by a series of decisions of the Supreme Court, namely that the Court will not interfere with the interpretation given to a particular scheme of service by the Public Service Commission, if the interpretation was a reasonable one on the basis of its wording.

Having considered all the arguments of counsel for the appellant in support of the appeal, we have not been persuaded that the trial Judge erred in the interpretation which he has givento the said Decision of the Council of Ministers. On the contrary, such interpretation is fully consonant with the wording of the said decision and any other interpretation would be arbitrary and inconsistent with the plain wording of the decision.

We are in agreement with the trial Judge that the decision of the Council of Ministers modified the schemes of service in a way that left no discretion to the commission as to when "treated service" could be used at the request of the beneficiary. It could be used only once at any time of his government service.

In the light of the above, we find that the respondent could avail himself of the benefit afforded by the said Decision of the Council of Ministers whilst holding the post of Customs and Excise Officer 1st Grade, although he had not served in that post for three years.

In the result, the appeal is dismissed and the sub judice decision stands annulled and of no effect.

There will be no order as to costs.

A. LOIZOU, P.: I regret I cannot agree with the judgment just delivered. The respondent in this appeal was at all material times a Customs and Excise Officer, 1st Grade, in the Department of Customs and Excise. In January 1986, the Director-General of the Ministry of Finance, initiated the process for the filling of six vacancies in the post of Assistant Collector of Customs, which is a promotion post. Eventually, the appellant Public Service Commission hereinafter to be referred to as the Commission, decided that the respondent was not eligible for promotion to the post of Assistant Collector of Customs because at the material time he did not satisfy the relevant provisions of the Scheme of Service, requiring three years service in the post of Customs and Excise Officer, 1st Grade, and proceeded to promote the Interested Parties to the above post in preference and instead of the respondent.

The respondent challenged the above decision of the Commission by means of a recourse. The learned trial Judge annulled the sub judice decision and as against that annullingdecision the Commission took the present appeal.

The relevant facts were very lucidly stated in the judgment of the learned trial Judge. I quote from pp. 4 - 8 of the judgment:

"The issue which is in dispute is whether the period which the appellant spent abroad to acquire his post-graduate diploma, which is known as 'treated service' ('plasmatikiipiresia'), should be treated as service to the post held by the officer during the time spent for the relevant studies, i.e., in the present case as Customs Officer, 2nd Grade, or if not used as such, whether it could be treated as service to any other higher post subsequently held by the officer, i.e. in the present case, as Customs Officer, 1st Grade.

Learned counsel for the applicant argued in favour of the latter view, whereas counsel for the respondent commission has taken the former view.

It is pertinent at this stage to set out, so far as relevant for the purposes of this case, the Decision of the Council of Ministers, No. 12655:-

Άναγνώρισις μεταπτυχιακού διπλώματος ή τίτλου και εκπαιδεύσεως ή μετεκπαιδεύσεως δημοσίου υπαλλήλου ως υπηρεσίας ή πείρας.

Διά σκοπούς Σχεδίων Υπηρεσίας θέσεων διά τας οποίας απαιτείται ωρισμένη υπηρεσία ή πείρα -

(α) μη συνιστών απαραίτητον προσόν διά την θέσιν, δέον να λογίζεται, βάσει του κανονικώς απαιτουμένου χρόνου διά την απόκτησιν αυτού, ως υπηρεσία ή πείρα μέχρι δύο ετών, κατά ανώτατον όριον, και

(β) συνιστών απαραίτητον προσόν διά την θέσιν μη λογίζεται ως υπηρεσία ή πείρα πλην της περιπτώσεως κα- τοχής τίτλου Διδάκτορος (PH.D.) διά την οποίαν θα λογίζεται ως εν έτος υπηρεσίας ή πείρας:

Νοείται ότι τοιούτο δίπλωμα ή τίτλος δέον όπως μη λογίζεται ως υπηρεσία ή πείρα εάν δεν είναι συναφής προς τα καθήκοντα της θέσεως. Η ως άνω υπηρεσία ή πείρα θα αναγνωρίζεται άπαξ μόνον και θα ευρίσκεται εις πίστιν του υπαλλήλου κατά την διάρκειαν της υπηρεσίας του'.

In English it may be translated as follows:

'For the purposes of Schemes of Service of a post in which certain service or experience is required-

A post-graduate diploma or title acquired after studies abroad either by a public officer during his service or by any person prior to his appointment to the public service, and

(a)not constituting a necessary qualification for the post, shall be reckoned, on the basis of the time normally required for its acquisition, as service or experience up to two years, maximum; and

(b)constituting a necessary qualification for the post shall not be reckoned as service or experience except in the case of possession of the title of Doctor of Philosophy (Ph.D.) which shall be reckoned as one year's service or experience;

Counsel for the applicant argued that the post-graduate diploma should be credited to a public officer and made use of once only at any time he wishes, and stressed that this is clear and one is permitted to make use of this diploma even if it has been obtained before entering the public service. He said that by definition, when you acquire a post-graduate diploma before entering the public service, which is expressly permitted by the circular, you cannot use it for your first appointment in the public service, because when you are first appointed no scheme of service requires previous experience or service, simply because you have not been in the service before. Therefore, he went on to say that when you acquire a diploma before entering the civil service, you willnecessarily use it in accordance with the provisions of the circular for a promotion to a post at which you did not acquire this post-graduate degree or diploma. He suggested that from the wording of the circular, no restriction is attached to the use of the post-graduate diploma.

He went on to say that in the present case we are concerned with legal interpretation and the Court may intervene and interpret the phrase and, if the interpretation given by the Public Service Commission to such a phrase or work is not the correct one, then the Court can intervene because in law there can only be one correct interpretation; and it is absurd to say that the Public Service Commission can give any legal interpretation and then the Court cannot intervene because such interpretation is within the discretion of the Public Service Commission.

Learned counsel for the respondent argued that the true issue is whether the interpretation adopted by the respondent was reasonably open to it and that it is upon the applicant to discharge the onus, which is cast upon him and showing that the Public Service Commission has applied the Scheme of Service in a manner that was not reasonably open to it. She went on to say that the interpretation adopted by the Public Service Commission need not necessarily be the most obvious one or indeed the one favoured by the Court, and the test is whether it transgresses the limit set by the wording of the law. In support she cited the cases of Papapetrou v. The Republic, 2 R.S.C.C. 61 at p. 69; Frangoullides and Another v. The Public Service Commission (1985) 3 C.L.R. 1680 at pp. 1684 - 1685; Der Parthogh v. The Republic (1984) 3 C.L.R. 635 and The Republic v.Aivaliotis (1971) 3 C.L.R. 89.

She submitted that the object and the meaning of the Decision of the Council of Ministers as clearly emerges from its wording as a whole, is to treat as period of service or experience, time spent by a person abroad, either before entering the public service or while in the service, in order to further educate himself in matters which are connected with or related to the duties of a certain post; in other words, persons who for that reason either entered the service late orinterrupted their actual service should not find themselves at a disadvantage, for the purpose of a scheme of service whereby certain period of service is required, when compared to other officers who had spent that time actually serving. But, she went on to say that it is far from intending and/or meaning to place persons 'credited with service' at an advantage over persons who actually served. She invited the Court to accept as a correct interpretation of the Decision of the Council of Ministers that 'treated service' ('plasmatikiipiresia'), should be treated as service to the post held by the officer during the time spent for the relevant studies."

The learned trial Judge held that the said Decision of the Council of Ministers qualifies the Scheme of Service and it is incorporated in it. He drew, however, a distinction between the interpretation of a Scheme of Service by the Public Service Commission and the interpretation of the above Decision of the Council of Ministers, and proceeded to hold that in the present case the test is "whether the interpretation adopted by the Commission was reasonably open to it", whereas in the latter case "it is a legal construction of a document and if the Public Service Commission erred in interpreting it, the Court can intervene and give the correct interpretation".

According to the learned trial Judge the prerequisites for the recognition of a post-graduate diploma by virtue of the above Decision of the Council of Ministers are the following:

"(a) post-graduate diploma or title acquired after education abroad;

(b) this diploma or title should not constitute a necessary qualification for the post;

(d) the diploma or title should have been acquired after education abroad either by a public servant during his service or by a person before his appointment in the public service."

In concluding, the learned trial Judge held that there "was no restriction as to the service to be credited to the public officer except that he can use this 'treated service' ('plasmatikiipiresia') once only". He further held that "the true construction to be placed on the said Circular is that the 'treated service' canbe used by a public officer at any stage of his career, provided he uses this "treated service once only". In the end the learned trial Judge annulled the sub judice decision "for misconception of material facts, i.e. the facts relevant to the eligibility of the applicant for promotion, and misinterpretation of the relevant provisions of the Circular of the Council of Ministers."

In arguing the appeal before us, learned counsel for the commission relied on the following grounds of appeal:

"1. The trial judge erroneously held that the true construction to be placed on the Decision of the Council of Ministers No. 12.655 is that the treated service' ('plasmatikiipiresia'), can be used by a public office at any stage of his career provided that he uses this 'treated service' only once.

2. The trial Judge erroneously held that, though the Decision of the Council of Ministers No: 12.655 qualities the scheme of service for the post in question and is incorporated with it, it was not open to the Public Service Commission in reading together the said Decision with the scheme of service in question to adopt any interpretation that was reasonably open to it.

3.Alternatively, even if this is a case where the court can intervene and give a legal construction to the said Decision, the trial Judge erroneously held that the only correct interpretation of the Decision of the Council of Ministers No. 12.655 is that the 'treated service' can be used by a public officer at any stage of his career. Further, the trial judge failed to consider arguments to the effect that such construction would be inconsistent with the provisions of the Public Service Law, (Law 33/1967 as amended)."

Learned counsel further argued forcefully that the relevantScheme of Service and the said Decision of the Council of Ministers should be applied and interpreted as a single document and the test to be applied by the Court in the judicial control of the relevant decision of the Commission, is the test which has been enunciated by a series of judgments of the Supreme Court, namely that the Court "will not interfere with the interpretation given to a particular Scheme of Service by the Public Service Commission, if the interpretation was a reasonable one on the basis of its wording." See inter alia Papapetrou v. The Republic, 2 R.S.C.C. 61; Petsas v. The Republic, 3 R.S.C.C. 60; Soteriou v. The Republic(1980) 3 C.L.R. 237; Aivaliotis v. The Republic (1970) 3 C.L.R. 149; The Republic v. Aivaliotis (1971) 3 C.L.R. 89; and Kolokotronis v. The Republic (1980) 3 C.L.R. 418.

The sole issue that arises for consideration is whether the judicial control of the interpretation by the Commission of the Scheme of Service and the aforesaid Decision of the Council of Ministers should be governed by different principles.

In our view the said Decision is nothing but an addition to the Schemes of Service. Indeed instead of taking the form it did take, it could be framed in such a way as to say that the clause in question should be added at the end of each Scheme of Service or that the said clause or clauses be inserted at the end of every Scheme of Service.

The approach then of this Court to the interpretation of the Scheme of Service by the Commission cannot be the one suggested in the judgment appealed against, but the one governing judicial control of the interpretation of the Schemes of service by an appointing organ.

It does not make in my view any difference because the two texts, i.e. the Scheme of Service and the said Decision were embodied in separate documents. I am of the view that the answer to this proposition is in the negative. This is so because both texts deal with one and the same matter, namely Schemes of service and at that the question of the qualifications of "service" or "experience".

As a matter of fact the learned trial Judge correctly found thatthe said Decision is incorporated into the Scheme of Service. Since it is so incorporated it forms part and parcel and an integral part of the Scheme of Service. When, therefore, the Commission was endeavouring to interpret the Scheme of Service in conjunction with the said Decision, it could legitimately incorporate or add the said Decision to the Scheme of service and proceed to interpret the whole text that resulted from such addition.

Indeed the interpretation adopted by the Commission was reasonably open to it on the basis of the wording of such Scheme of Service as supplemented by the Decision in question, once the latter's interpretation was a reasonable one.

For all the above reasons I would allow the appeal and consequently confirm the sub judice decision.

COURT: In the result the appeal is dismissed by majority with no order as to costs:

Appeal dismissed. No order as to

costs.

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