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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 278
1989 February 28
[STYLIANIDES. J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
CONSTANTINOS P. IOANNIDES AND OTHERS,
Applicant.
v.
THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC
SERVICE COMMISSION.
Respondents.
(Cases No. 501/86, 510/86,513/86, 514/86, 515/86)
Public Officers - Promotions - Departmental Board - The Public Service Law 1967 (Law 33/67), section 36(1) - Qualifications, of candidates the ultimate responsibility in respect thereof - Rests with the respondent Commission.
Bias - Promotion of Public Officers - The lack of impartiality by Public Officer A against Public Officer B must be established, with sufficient certainly, either by facts emerging from relevant administrative records or by safe inferences to be drawn from the existence of such facts.
Public Officers - Promotions - Qualifications - 'Excellent knowledge of the regulations and the procedures of the operation of registry and performance of clerical work" - Excellent knowledge can be acquired by study, practice, experience - In the circumstances of this case a decision could be reached as regards possession of this qualification by examining the annual confidential reports and the personal files of the candidates - Rejection by Commission of suggestion by Departmental Board to hold oral examinations regarding the said qualification, did not, in the circumstances of this case, vitiate the decision.
Public Officers - Promotions - Head of Department - Recommendations of - Inconsistency with the contents of confidential reports -Recommendations should be disregarded or be given limited weight depending on the extent of inconsistency.
Public Officers - Promotions - The three criteria, merit, qualifications and seniority - Commission has to weigh all relevant considerations and may attribute more significance to one factor than to another in the course of doing so, provided that it exercises property its relevant discretion - Court does not interfere, if the decision was reasonably open to the Commission - Court does nor substitute its own, discretion as regards the choice of the most suitable candidate in the place of the discretion of the Commission.
The issues raised in these recourses, which they were held together, and the principles of law, which the Court applied in determining them sufficiently appear in the hereinabove Headnotes.
The Court found that the complaint of one of the applicant's complaints about bias/mala fides, was not substantiated. The Court as far as another applicant was concerned, found that the Commission rightly disregarded the recommendation of the Head of the Department, because of the better over the years confidential reports for those promoted, a factor which the Commission invoked as special reasoning why it disregarded the recommendation of the Head of the Department.
Recourses dismissed. No order as to costs.
Cases referred to:
Christou v. Republic (1980) 3 C.L.R. 437,
Soteriadou and Others v. Republic (1983) 3 C.L.R. 921,
Georghiou and Others v. Republic (1988) 3 C.L.R. 678,
Republic v. Pericleous and Others (1984) 3 C.L.R. 577,
Mytides and Another v. Republic (1983) 3 C.L.R. 1096,
Kazamias and Others v. Republic (1984) 3 C.L.R. 1498,
Lardis v. Republic (Public Service Commission) (1967) 3 C.L.R. 64,
Republic v. Haris (1985)3 CL.R. 106,
Georghiou v. Republic (Public Service Commission) (1976) 3 C.L.R. 74,
Republic v. Koufettas (1985) 3 C.L.R. 1950,
Republic v. Zachariades (1986) 3 C.L.R. 852,
Republic v. Roussos (1987) 3 C.L.R. 1217,
Hadjiloannou v. Republic (1983) 3 C.L.R. 1041,
Recourses.
Recourses against the decision of the Respondents to promote the interested parties to the post of Clerical Officer in preference and instead of the applicants.
A. S. Angelides, for Applicants in Case No. 501/86.
A. Dracos, for Applicant in Case No. 510/86.
A. Markides, for Applicants in Cases Nos. 513/86, 514/86 and 515/86.
P. Hadjidemetriou, Counsel of the Republic B. for the Respondents.
Cur.adv. vult.
STYLIANIDES, J. read the following judgment. The Respondents, the Public Service Commission, by decision taken on 24th April, 1986, promoted with effect from 1st May, 1986, Soterios G. Yiangou, Constantinoslacovides, Panayiotis Kofteros, Stavros Messios, Andreas Michaelides and Demos Petropoulos, (the interested parties), to the post of Clerical Officer. This promotion was published in the Official Gazette No. 1515 dated 6th June, 1986.
The applicants being aggrieved filed these recourses.
Applicants in Cases Nos. 510/86, 5 13/86, 5 14/86 and 515/86seek the annulment of the promotion of all the six interested parties. Applicant in Case No. 501/86 challenges only the validity of the promotion of interested parties Yiangou and Iacovides.
In the course of the hearing, three of the applicants in Case No 514/86, namely, Mary Lambrianidou. Antonia Hadjilazarou and IoannisEfstathiou and applicant No. 2 in Case No. 515/86, Maria Evripidou, withdrew their recourses which were dismissed as withdrawn.
These cases were taken together as the challenge the same administrative act and they present common points of law and fact.
The post of Clerical Officer is a promotion post. After the necessary prerequisites a Departmental Board was set up, as provided in section 36 and the relevant Regulations made thereunder. The Board had before them, besides the scheme of service, 149 files of Clerks 1st Grade, the immediate lower post to that of Clerical Officer. The Departmental Board, having considered the matter, decided that sixty of the candidates lacked the qualification of two yearsservice in the post of Clerk 1st Grade. They made two lists, one containing the names of those who possessed the qualifications and one of those who lacked them. Out of the eighty-nine eligible candidates they recommended, as they were duly bound, twenty-four officers, i.e. four for each post.
In their report it is stated that they considered the merit, qualifications and seniority of each eligible candidate. They noted in paragraph 3 that most of the candidates recommended for selection for promotion had the same seniority in the post they were holding and their previous post. In some cases there was a marked difference of rating between the last two years compared with the previous years. Lastly - as the candidates were posted at various services and performing different duties, having regard that one of the prescribed qualifications was "excellent knowledge of the regulations and procedures of functioning of the registry arid performance of clerical work". ("αρίστη γνώση των κανονισμών και διαδικασιών λειτουργίας αρχείου και διεκπεραιώσεως της γραφειακής εργασίας"), which was not easy to ascertain from the evaluation of the candidates - the Departmental Board suggested to the Public Service Commission to consider whether under the circumstances the candidates should be invited to oral examination.
The Commission on 31st March, 1986, considered the report of the Departmental Board and decided not to hold interviews - oral examination.
On 24th April, 1986, the Head of the Department, the Director of Public Administration and Personnel, attended the meeting of the respondent Commission and made the following recommendations as recorded in the minutes:-
"Έχει επικοινωνήσει με τους οικείου; προϊσταμένους και έχει πάρει τις απόψεις τους όσον αφορά τους υποψηφίους. Λαμβάνοντας αυτές υπόψη και έχοντα; επίσης υπόψη τα τρία κριτήρια, την αξία τα προσόντα και την αρχαιότητα, κατάληξε στα εξής συμπεράσματα:
Για τις έξι θέσεις μπορούν να συστηθούν οι ακόλουθοι:
Αλωνεύτου Αυγή
Κοφτερός Παναγιώτης
Μέσσιος Σταύρος
Μιχαηλίδης Ανδρέας
Μιχαήλ Μιχαήλ
Πετρόπουλος Δήμος
Στρατής Ιωάννης
Γιάγκου Σωτήριος
Ιακωβίδης Κωνσταντίνος.
Οι εννέα αυτοί υποψήφιοι υπερέχουν των άλλων 15 υποψηφίων. Μεταξύ των εννέα αυτών επικρατέστεροι είναι οι:
Αλωνεύτου Αυγή
Κοφτερός Παναγιώτης
Μέσσιος Σταύρος
Πετρόπουλος Δήμος
Γιάγκου Σωτήριος.
Για την τελευταία θέση επαφίεται στην Επιτροπή να αποφασίσει.
Όλοι οι υποψήφιοι κατέχουν καλή γνώση τη; Αγγλικής, δεδομένου ότι όλοι υπηρέτησαν στην προ της αναδιοργάνωσης θέση Γραφέα. 2ης Τάξης, που ήταν θέση Προαγωγής, στην οποία το Σχέδιο Υπηρεσίας απαιτούσε καλή γνώση της Αγγλικής.'
He proceeded further and stated where each one of the twenty-four candidates recommended by the Departmental Board was posted.
Thereafter the respondent Commission examined all the material from the file of the filling of the post, the personal files and the confidential reports of the candidates and took into consideration the conclusions of the Departmental Board and the recommendations of the Head of the Department. They considered the files of the confidential reports of the candidates and bearing in mind that the evaluation was made by different reporting and countersigning Officers approached same with caution. They recorded in their minutes the marks of the twenty- four candidates recommended by the Departmental Board for six years - 1980-1985, both inclusive. They recorded, further, the seniority of the twenty-four recommended candidates. Ultimately, they reached the sub judice decision. I consider pertinent to quote verbatim the last part of the minutes of the meeting of 24th April, 1986:-
"Η Επιτροπή, αφού αξιολόγησε και σύγκρινε όλους τους υποψηφίους, υιοθέτησε, με βάση το σύνολο των καθιερωμένων κριτηρίων, τις συστάσεις του Διευθυντή, για τους Σωτήριο Γιάγκου, Παναγιώτη Κοφτερό, Σταύρο Μέσσιο και Δήμο Πετρόπουλο προς πλήρωση τεσσάρων από τις θέσεις.
Όσον αφορά την Αυγή Αλωνεύτου. η Επιτροπή δεν ηδυνήθη με βάση τα ενώπιόν της στοιχεία να υιοθετήσει τη σύσταση του Διευθυντή για προαγωγή αυτής, αφού παρατήρησε ότι οι Εμπιστευτικές Εκθέσεις της στο συνολό τους υστερούν έναντι των άλλων υποψηφίων που ο Διευθυντής έκρινε κατ' αρχήν ότι μπορούν να συστηθούν.
Για την πλήρωση των άλλων δύο θέσεων η Επιτροπή, με βάση το σύνολο των καθιερωμένων κριτηρίων, επέλεξε τους Μιχαηλίδη Ανδρέα και Ιακωβίδη Κωνσταντίνο, των οποίων οι Εμπιστευτικές Εκθέσεις είναι ανώτερες στο συνολό τους από τις Εμπιστευτικές Εκθέσεις της Αλωνεύτου και των άλλων υποψηφίων που ο Διευθυντής έκρινε κατ' αρχήν ότι μπορούν να συστηθούν.
Συμπερασματικά η Επιτροπή, λαμβάνοντας υπόψη όλα τα ενώπιόν της ουσιώδη στοιχεία, έκρινε με βάση τα καθιερωμένα κριτήρια στο συνολό τους (αξίας· προσόντα, αρχαιότητα) ότι οι παρακάτω υπερέχουν των άλλων υποψηφίων και αποφάσισε να τους προαγάγει σαν τους πιο κατάλληλους στη μόνιμη (Τακτ. Προϋπ.) θέση Γραμματειακού Λειτουργού, Γενικό Γραμματειακό Προσωπικό από 1.5.86:"
Applicants - Ioannides in Case No. 501/86,Mouyiari in Case No. 510/86, Pavli and Tylliros in Case No. 513/86, Michaelidou in Case No. 514/86 and Nicolaou and Hadjidemetriou in Case No.515/86 were not recommended by the Departmental Board. All interested parties and applicants Michael in Case No. 513/86 and Aloneftou in Case No. 515/86 were recommended by the Head of the Department.
The applicants challenge the validity of the sub judice promotions on the following grounds:-
The Departmental Board did not recommend the best suitable candidates having regard to all criteria. It did not carry out a proper inquiry. No inquiry was carried out with regard to the qualification of excellent knowledge of the regulations and procedure of functioning of the registry and performance of clerical work. The non-recommendation of applicant Mouyiari in Case No. 510/86 was a disguised persecution.
The Public Service Commission limited the range of selection amongst the twentyfour candidates recommended by the Departmental Board and thus excluded from the due comparison all the others. They did not carry out any inquiry with regard to the qualifications of the candidates and failedto hold the examination suggested by the Departmental Board. The recommendations of the Head of the Department were inconsistent with the contents of the files of the candidates. They disregarded the recommendations of the Head of the Department for AvgiAloneftou without cogent reasons. They failed to select the best suitable candidate for promotion.
Counsel for the Respondents, on the other hand, submitted that the Departmental Board had before them both the personal files and the files of the confidential reports of all the candidates; the took into consideration all relevant factors; the decision for the recommendation, according to the relevant Regulations, of the twenty four candidates, i.e., four for each post, was reasonably open to them; no one of those not recommended was strikingly superior or even simply superior to those recommended.
With regard to applicant in Case No. 510/86 - Mouyiari- he submitted that she did not substantiate the allegation of disguised persecution or bias and no facts emerge from the relevant administrative records of either bias or persecution.
In relation to the Public Service Commission he contended that they did not err in not holding interviews - oral examination. In the process of selection they made a due inquiry about the possession of the qualifications of the candidates, according to the presumption of regularity, as they had before them all the confidential reports from which it emerges that they had the knowledge required, having regard to the duties performed by them. The Commission considered all the candidates, though finally the selection was amongst the candidates recommended b the Board and ultimately by the Head of the Department. The departure from the recommendation of the Head of the Department with regard to applicant Aloneftou was duly reasoned. And, finally, he submitted that the sub judice decision was reasonably open to the Commission and no applicant was strikingly superior to any of the interested parties, having regard to all factors on which the claims of public servants for promotion are considered.
I consider pertinent to deal first with the assertion thatapplicant Mouyiari (Case No. 510/86) was the victim of disguised persecution. An act of the administration has to be annulled if it is tainted with bias. Mala fides, irrelevant motives, collateral and indirect objects, and. so forth, are examples of matters which, if proved to exist, might establish the ultra vires character of the act in question. Bad faith should not be use to blur the distinction between an ultra vires act done bona fide and an act on the face of it regular but which will be held to be null and void if mala fides is discovered: and brought before the Court.
In Case No. 1041/1969 of the Greek Council of State the Board did not include the applicant in the list of those eligible for promotion. He challenged this decision on the ground that the Chairman of the Board had enmity against him due to service disputes of the applicant with another rear-admiral under whom the applicant served and that this animosity was the cause of an adverse transfer of the applicant in 1963 and the imposition of a disciplinary sentence by the same rear-admiral on the applicant in 1964. The Court stated:-
"Πλην όμως ο λόγος ούτος τυγχάνει απορριπτέος, διότι ο αιτών δεν επικαλείται συγκεκριμένα πραγματικά περιστατικά προς θεμελίωσιν της εχθρικής, ως ισχυρίζεται, έναντι αυτού διαθέσεως του ρηθέντος υποναυάρχου, ουδ' αποδεικνύει ότι αι ως άνω μνημονευόμεναι δυσμενείς δι' αυτόν υπηρεσιακαί ενέργειαι του αυτού υποναυάρχου δεν εγένοντο επί τη βάσει αντικειμενικών, υπηρεσιακών κριτηρίων, αλλ' ωφείλοντο εις έχθραν αυτού έναντι του αιτούντος."
("But this reason is dismissed because the applicant does not invoke concrete real events for establishing the hostile, as he contend, against him, intentions, of the said admiral, nor does it prove that the above referred adverse to him official acts of the said admiral were not made on the basis of objective, official criteria, but were due to his enmity against the applicant.")
The burden of proof is cast on the applicant. In Kyriakopoulos "Greek Administrative Law", Part G. 4th Edition, p. 140, it is stated that for the assertion of the applicant to be established, it must be supported by concrete elementswhich are produced by the applicant, if not contained in the files of the case. Abuse of power cannot be deduced from Simple probabilities. In Christou v. Republic (1980) 3 C.L.R. 437, at P. 449 it was said:-
"The lackofimpartialityby public officer A against public officer B must be established, with sufficient certainty, either by facts emerging from relevant administrative records or by safe inferences to be drawn from the existence of such facts;"
(See, also Soteriadou and Others v. Repubiic(1983) 3 C.L.R. 921.)
In the present case the allegation was not substantiated by any evidence and there is nothing in the files in support of it. The applicant failed to discharge the burden cast on her arid this ground fails.
The Departmental Boards are established under section 36 of the Public Service Law, .1967 (Law No. 33/67). They are a necessary intermediate organ to assist the Commission in the performance of its duties. Their decisions are not binding and the duty and responsibility continues to rest entirely on the Public Service Commission to carry out .the due inquiry and take all necessary steps in order to reach a decision after exercising the discretionary power conferred on it by the Law.
The Departmental Board had before it all the relevant files of all the candidates. As a first step they excluded from consideration those who clearly did not possess the prescribed qualifications and could not be eligible for promotion to the post in question. They made two lists. All the applicants and the interested parties were included in the list of eligible candidates. Then they proceeded, after taking into consideration merit, qualifications and seniority, to recommend for promotion twenty four candidates. One may say that the scales in favour of those recommended, as the record goes under Appendix III, were tipped by the better confidential reports of those candidates. In the body of their report we read:-
"2. Στη συνέχεια η Τμηματική Επιτροπή επελήφθηκε της κρίσεως των υποψηφίων που αναφέρονται στο Παράρτημα Ι και αφού εξέτασε την αξία, τα προσόντα και την αρχαιότητα κάθε υποψηφίου, αποφάσισε ομόφωνα να συστήσει για προαγωγή τους Γραφείς 1ης Τάξης που αναφέρονται με αλφαβητική σειρά στο συνημμένο Παράρτημα III...."
Having given the matter anxious consideration I have reached the conclusion that the Board carried out a due inquiry and that their decision was reasonably open to them.
The seniority of those applicants who were not recommended over the candidates recommended was not of significant weight. (See Andreas Z, Georghiou and Others v.The Republic of Cyprus, through the Public Service Commission (1988) 3 C.L.R. 678).
A public officer must possess the required qualifications under the scheme of service on the date on which the request for the filling of the vacancy under section 17 of the Public Service Law, 1967. (Law No. 33/67) is received by the Commission. (See Republic v. Pericleous and Others (1984) 3 C.L.R. 577).
The Commission has a statutory duty to construe the scheme of service, then ascertain the qualifications of each candidate as a factual situation and finally to apply the scheme of service in this factual situation and decide whether the candidate is under the scheme of service eligible for promotion. These duties cannot either be usurped by or left to the Departmental Board; the competence and responsibility rests on the Commission. (Mytides and Another v. Republic (1983) 3 C.L.R. 1096.).
The qualification for which the applicants submitted that the possession was not inquired into is: "άριστη γνώσις των κανονισμών και διαδικασιών λειτουργίας αρχείου και διεκπεραιώσεως της γραφειακής εργασίας".. It does not require any examinations, only "excellent knowledge". Knowledge is acquired in more than one ways - by study, practice, experience. The duties of the previous posts, held by the candidates, are, set out in the schemes of service. The duties actually performed by them in their career are recorded in their annual confidential reports. The Commission had beforeit the confidential reports and the personal files of the candidates. There is no statutory provision for interviews though the have received express recognition in the case-law of this Court and this course is open to the Commission. They stated in their minutes that they did not consider it necessary to hold interviews as suggested by the Departmental Board. Under the presumption of regularity, they took into consideration the contents of the files as well as the contents of the report of Departmental Board. A perusal of the files of the candidates and the duties of their previous post could reasonably lead the Commission to the conclusion that the candidates possessed this qualification and therefore a further inquiry in the form of either oral examination or interview was not necessary. In Kazamias and Others v. Republic (1984) 3 C.L.R. 1498.at pp. 1503-1504 it was said:-
"The second ground upon which these two applicants challenge the sub judice decision is that the respondent Commission did not carry out a due inquiry as to whether the candidates satisfied the relevant scheme of service and in particular with regard to the qualification of organizing and administrative ability, responsibility, initiative and judgment. In fact, there does not appear which factors the respondent Commission had in mind that they were possessed by the interested parties.
This latter ground may be briefly disposed of by pointing out that these qualifications demanded by the schemes of service are matters in respect of which officers are reported upon in their confidential reports and it is wrong to say that the respondent Commission did not have the necessary material before it in order to arrive at the conclusion that the candidates, both the applicants and the interested parties possessed these qualifications."
The contention that the Commission did not consider all the candidates is not founded. They had before them all the files, they had a list of all the eligible candidates. There is nothing indicating that they did not examine the claims of those not recommended by the Departmental Board. The fact that in another step in the process they concentrated on those recommended by the Board, does not carry any further thecontention of the applicants. It was perfectly open to the Commission to act as they did and nothing before this Court establishes or indicates that they acted contrary to the statute or to the principles of Administrative Law.
Both by statutory command and the case-law of this Court the Commission shall have due regard to the recommendations by the Head of the Department. It is well established that the Public Service Commission has to pay heed to such recommendations and if they decide to disregard them they have to give reasons for doing so. (Andreas Lardis v. Republic (Public Service Commission) (1967) 3 C.L.R. 64, Mytides sand Another v. Republic (1983) 3 C.L.R. 1096, Republic v. Haris (1985) 3 C.L.R. 106.)
When the recommendations of the Head of the Department are inconsistent with the overall picture presented by the confidential reports they should be disregarded or be given limited weight depending on the extent of inconsistency. (Andreas Lardis v. Republic (supra).OdysseasGeorghiou v. Republic (Public Service Commission) (1976) 3 C.L.R. 74, 84, Republic v. Koufettas (1985) 3 C.L.R. 1950.)
The Commission did not adopt the recommendations of the Head of the Department with regard to applicant AvgiAloneftou. Their reasons are expressly set out as follows:-
"... η Επιτροπή δεν ηδυνήθη με βάση τα ενώπιον της στοιχεία να υιοθετήσει τη σύσταση του Διευθυντή για προαγωγή αυτής, αφού παρατήρησε ότι οι Εμπιστευτικές Εκθέσεις της στο σύνολο τους υστερούν έναντι των άλλων υποψηφίων που ο Διευθυντής έκρινε κατ' αρχήν ότι μπορούν να συστηθούν."
The Commission took pains to record in their minutes the evaluation of the twenty four candidates recommended by the Board, as set out in the confidential reports for six consecutive years. A mere glance at this table leaves no doubt that Aloneftou was inferior to the promotees and the recommendation of the Head of the Department in this respect was inconsistent with the overall picture of Aloneftou presented by the confidential reports. It is noteworthy that all those promoted were amongstthe nine recommended by the Head of the Department.
In all other respects the recommendations of the Director were not inconsistent, with the contents of the administrative files, bearing in: mind always that the reporting officers for the numerous candidates were different.
With regard to seniority I have already referred earlier on. The seniority of some of the applicants was distant; it was taken into consideration, independently of the weight that it was attributed to it by the promoting authority.
The Commission in trying to select the most suitable candidate has to weigh together all relevant considerations and may attribute more significance to one factor than to another in the course of doing so, provided however that it exercises properly its relevant discretion. (OdysseasGeorghiou v. Republic (Public Service Commission) (1976) 3 C.L.R. 74, Republic v. Zachariades (1986) 3 C.L.R. 852 και Republic c Roussos (1987) 3 C.L.R. 1217.)
Two basic principles in accordance with which cases of this nature may be determined were laid: down in Republic v. Zachariades (supra) as: follows at p. 855:-
"First, that an administrative court does not annul a decision of an appointing authority, such as the appellant Commission, which, in accordance with the law applicable to, and the facts of, a particular case, was reasonably open to such authority (see, inter alia,Georghiou v. The Republic (1976) 3 C.L.R. 74, 82 and more recently Petrides v.The Republic (1984) 3 C.L.R. 341, 350,Constantinou v.The Republic (1984) 3 C.L.R. 498, 502, Efthymiou v.The Republic (1984) 3 C.L.R. 1171, 1174 and Papadopoullos v.The Public Service Commission (1985) 3 C.L.R. 405, 413).
Secondly, that an administrative court does not, in a case of this nature, substitute its own discretion as regards the choice of the most suitable candidate for promotion or appointment in the place of the discretion of the competent organ (see, in this respect, Christouv. The Republic, 4R.S.C.C. 1, 6, Georghiadesv.The Republic (1970) 3 C.L.R. 257, 268 and Piperi v.The Republic (1984) 3 C.L.R. 1306, 1311)."
Having regard to the rival submissions of counsel and in the light of the material before this Court. I am of the opinion that the sub judice decision was reasonably open to the respondent Commission for promotion of the interested parties to the post of Clerical Officer.
Further, none of the applicants has established striking superiority over any of the interested parties in the sense of the notion of "striking superiority" given by this Court in Hadjiloannou v. Republic(1983) 3 C.L.R. 1041. Indeed they have not established simple superiority.
For the foregoing reasons, these recourses fail. They are hereby dismissed the sub judice decision is confirmed under Article 146.4(a) of the Constitution.
Let there be no order as to costs.
Recourses dismissed. No order as to costs.