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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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Κυπριακή νομολογία στην οποία κάνει αναφορά η απόφαση αυτή:
MYTIDES AND ANOTHER ν. REPUBLIC (1983) 3 CLR 1096
PAPADOPOULLOS ν. REPUBLIC (1985) 3 CLR 405
Μεταγενέστερη νομολογία η οποία κάνει αναφορά στην απόφαση αυτή:
Δεν έχει εντοπιστεί απόφαση η οποία να κάνει αναφορά στην απόφαση αυτή
(1989) 3A CLR 746
1989 July 8
[KOURRIS, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
GEORGHIA VARNAVA AND OTHERS,
Applicants,
v.
THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC
SERVICE COMMISSION,
Respondents.
(Case No. 750/86)
Public officers - Promotions - Departmental Committee - In virtue of Regulations it can recommend not less than two and not more than tour candidates for each vacant post.
Presumption of regularity - Public officers - Promotions - Candidate's name included in the list of candidates forwarded by the respondent Commission to the departmental Committee - Files of all the candidates before the respondent Commission, when it took the sub judice decision - Notwithstanding that applicant had not been in the list of those recommended by the Departmental Committee, and as it nowhere appears that the respondent Commission felt bound to adopt the recommendations of such Committee, the presumption is that the Commission took into consideration that candidate as well when effecting the sub judice promotions.
Public officers - Promotions - Departmental Committee - Its role is advisory - Conclusions of Departmental Committee as regards qualifications of candidates not binding on the respondent Commission.
Public officers - Promotions - Confidential reports - Circular 491 of Council of Ministers - Changes effected in a manner contrary to the Circular by countersigning officer, but not affecting overall rating - An immaterial irregularity.
Public officer - Promotions - Confidential reports - Circular 491 of Council of Ministers - Changes by countersigning officer in a manner contrary to the Circular and affecting overall rating Of candidate - Whether irregularity leads to annulment - Principles applicable - Sekkides v. The Republic (1988) 3 C.L.R. 2136 applied - To answer the question all material before the Commission should be borne in mind.
Public officers - Promotions - Confidential reports - Circular 491 of Council of Ministers, para. 3, provides for a case where the reporting and the countersigning officer can be one and the same person - Properly applied in the present case.
Public officers - Promotions - Qualifications - Additional academic qualifications, but not considered as an advantage by the Scheme of Service - Should not weigh greatly in the mind of the Commission.
Words and phrases - "Public Service" in section 2 of the Public Service Law, 1967 (33/67) - Persons whose remuneration is calculated on a daily basis - Do not come under the definition of "Public Service"
Public officers - Seniority - Service on a contractual basis - Remuneration calculated on daily basis - Permanent appointment to public service - In calculating seniority of those appointed, the period they served on such a contractual basis cannot be taken into consideration.
By means of this recourse the three applicants challenged the decision of the respondent Commission to promote the interested parties to the post of Senior Data Processing Officers. The interested parties had better confidential reports than the applicants Varnava and Perikleous. In the case of Perikleous there had been an irregularity in the preparation of one of her confidential reports, because, contrary to regulations, the countersigning officer changed her overall rating for the year 1985. But even before the alteration, the interested parties had better confidential reports.
Applicant Hadjigeorgiou had additional qualifications which, however, were not considered by the Scheme of Service as an advantage. The interested parties had the recommendation of the acting Head of Department.
In the light of the principles in Sekides v. The Republic (1988) 3 C.L.R. 2136 the Court decided that in the present case the irregularity affecting the report for 1985 of Perikleous could not lead to annulment.
The matters raised in this recourse sufficiently appear in the hereinabove Headnotes.
The Court, having reached the conclusion, that in the circumstances the sub judice decision was reasonably open to the respondent Commission, dismissed the recourse.
Recourse dismissed. No order as to
costs.
Cases referred to:
Mytides v. Republic (1983) 3 C.L.R. 1096,
Sekkides v. Republic (1988) 3 C.L.R. 2136,
Othonos and Another v. Republic (1989) 3 C.L. R. 475,
Papadopoullos v. Public Service Commission (1985) 3 C.L.R. 405.
Recourse.
Recourse against the decision of the respondents to promote the interested parties to the post of Senior Data Processing Officer in preference and instead of the applicants.
A. S. Angelides, for the Applicants.
A. Papasavvas, Senior Counsel of the Republic, for the Respondents.
A. Xenofontos, for the Interested parties.
Cur. adv. vult.
KOURRIS, J. read the following judgment. By this recourse, applicants challenge the decision of the Public Service Commission dated 7.10.1986 and published in the Official Gazette on 17.11.1986, to promote the interested parties to the post of Senior Data Processing Officers in the Department of Data Processing Services as from 15.10.1986, in preference and instead of the applicants.
Before the sub judice decision, the applicants and interested parties were holding the post of Data Processing Officers, 1st Grade, in the Department of Data Processing Services. The Interested parties are Antonios A. Antoniou and Kostas L. Agrotis.
Pursuant to a request made by the Director-General of the Ministry of Finance to the Public Service Commission for the filling of two vacant posts in the post of Senior Data Processing Officers, the respondent Commission referred the matter to the Departmental Committee which was set up for that purpose in accordance with the provisions of s.36 of the Public Service Law 1967 (Law 33/67) to investigate and advise on the qualifications and suitability of candidates for promotion to the above post in the Department of Data Processing Services.
The Departmental Committee by its report, which was submitted to the respondent Commission by letter dated 22.8.1986, recommended four candidates out of 10 including applicants 1 and 3 and the two interested parties. Applicant No. 2 was not recommended.
The respondent Commission at its meeting of 7.10.1986 asked the acting Head of the Department to express his recommendations. The acting Head of the Department made his recommendations and left. After the departure of the acting Head of the Department, the respondent Commission, having assessed the material before them, including the confidential reports of the candidates, their personal files, their seniority, the report of the departmental committee, and in the light of the views expressed by the acting Head of Department, they decided to promote the two interested parties to the post of Senior Data Processing Officer as from 15.10.1986.
The applicants, feeling aggrieved, filed the present recourse.
I propose to deal with the points raised by learned counsel for the applicants which refer to applicant 2 only. He contended that the Departmental Committee contravened the regulations when it recommended four candidates for the two vacant posts He said that the Departmental Committee ought to have recommended at least four candidates for each vacant post. I do not agree with this contention According to the Regulations, a Departmental Committee, is entitled to recommend not less than two candidates and not more than four candidates for each vacant post. Therefore, this contention fails.
Another contention of counsel is that the Public Service Commission never took into consideration applicant 2 when assessing the candidates for the post in question. He said that the respondent Commission failed to carry out an inquiry for the appointment of the most suitable candidate in the post in question and that it felt bound to follow the recommendation of the Departmental Committee, i.e. that the respondent Commission felt bound that they ought to have selected the most suitable candidates from the four candidates recommended by the Departmental Committee.
Again I do not agree with this submission. The Public Service Commission when it sent a list of candidates for consideration by the Departmental Committee, the name of applicant No. 2 was included in the list. Furthermore, when the respondent Commission convened for the filling of the post in question it had before it the files of all the candidates and the presumption is that they took into consideration applicant 2 when effecting the promotions in question. This presumption had in no way been rebutted by applicant No. 2. Furthermore, nowhere it appears that the respondent Commission felt bound to adopt the recommendations of the departmental committee with regard to the recommendations of the candidates to the effect that the respondent Commission thought that they ought to have selected for the promotions among the four candidates recommended by the Departmental Committee.
It is well settled that a Departmental Board is not a body that takes decisions but its role is advisory.
In the case of Mytides v. The Republic (1983) 3 C.L.R. 1096, the Court stated as follows at pp. 1110-1111:-
"The Departmental Board is not a body that takes decisions neither is it vested with power other than the one envisaged in s.36 of the Law that provides for its establishment. The Regulations governing the functions of the Departmental Boards cannot take away the competence of the respondent Commission as provided by Law and they have to be interpreted in such a way as to be intra vires and not ultra vires the empowering law.
The competence of the Commission in cases of promotion is regulated by s.44 of the Law whereby under paragraph (b) of subsection (1) thereof, one of the matters to be examined by the Commission is whether a candidate for promotion to another office possesses the qualifications laid down in the scheme of service for that office. Therefore, the conclusion of the Departmental Board regarding the qualifications of the interested party is not binding on the Commission. The Commission has a statutory obligation to inquire and decide for itself this very serious matter which is a sine qua non to any further steps in the process of the exercise of its discretion - (Michael and Another v. P.S.C. (supra))."
In the present case, I am satisfied that the respondent Commission in effecting the promotions in question when selecting the candidates most suitable for the post in question, has taken into consideration also applicant No. 2 and nowhere it appears that it felt bound to select the candidates from the list of four candidates recommended by the Departmental Committee. In the result, the contention that the decision of the respondent Commission lacks due inquiry, and that it acted under a misconception of fact and law cannot stand.
I shall now deal with the submission that the applicants were strikingly superior to the interested parties. In doing so, I have to deal inescapably with the contention of learned counsel for the applicants that there are irregularities which are of substantial nature with regard to the preparation of the confidential reports and affected the validity of the relevant administrative process. Counsel for the applicants contended that there has been a contravention of the case law and the relevant circular in the preparation of the confidential reports.
Before proceeding any further, I shall examine the alleged contraventions in the preparation of the confidential reports starting with applicant No. 1 Georghia Varnava. I shall examine the confidential reports for the years 1980-1985 as the respondent Commission in reaching the sub judice decision relied on the confidential reports of the years 1980-1985.
For the years 1980 and 1981 all applicants and interested parties were rated as "very good" and there have been no changes in their confidential reports by the counter signing officer. It appears from exhibit 1 which is the file of the confidential reports of Georghia Varnava, that there have been no alterations with her confidential reports for the years 1982 and 1983. She was rated as "very good" for these two years. In 1984 she was rated by the reporting officer as "excellent" and the counter signing officer reduced her ratings so that the general rating was reduced from "excellent" to "very good". The changes made by the counter-signing officer are sufficiently reasoned and there is no irregularity. With regard to the year 1985, she was rated "excellent" and there have been no changes by the counter signing officer.
With regard to applicant No. 2 Katerina Pericleous, it appears from her file containing the confidential reports (exhibit 3) that in the years 1982 and 1983 she was rated as "very good" for each year by the reporting officer and the counter signing officer made certain changes in her confidential reports and no reasoning appears in these reports for the changes The overall rating of this applicant remained unchanged despite the changes made by the counter-signing officer, i.e. her overall rating for these two years remained as "very good". In my view, since the overall rating has not been reduced to the detriment of applicant No. 2, this contravention of the rules can be considered as immaterial. With regard to the year 1984, she was rated as "excellent" by the reporting officer and her report has been changed by the counter-signing officer and her rating was reduced to "very good", but this change is reasoned. For the year 1985 she was rated as "excellent" by the reporting officer and her rating has been reduced to "very good" due to changes made by the counter-signing officer without any reasoning.
The confidential reports of applicant No. 3, Georghios Hadjigeorghiou, as they appear from his file of confidential reports (exhibit 5) are as follows:-
In the year 1982 he was rated as "very good" and there have been no changes by the counter signing officer. In the year 1983 he was rated as "excellent" and the counter-signing officer made changes in the confidential report and his overall rating was reduced to "very good". No reasoning appears in the confidential report for the said changes.
In the years 1984 and 1985 he was rated as "excellent" and no changes have been made by the counter-signing officer.
Interested party K. Agrotis was rated as follows:- "very good" for 1982 and "excellent" for the years 1983, 1984 and 1985. No changes have been made by the counter-signing officer.
Interested party A. Antoniou has been rated "very good" for the year 1982 and "excellent" for the years 1983, 1984 and 1985. No changes have been made by the counter-signing officer.
It appears from the above that in the case of Pericleous applicant No. 2, her confidential report for 1985 was prepared contrary to the circular and her overall rating from "excellent" was reduced to "very good" by the counter-signing officer without any reasoning. Also, in the case of Hadjigeorghiou, applicant No. 3, his confidential report for 1983 was reduced from "excellent" to "very good" by the counter-signing officer without reasoning.
The legal consequences of irregularities in the confidential reports were expounded in the case of Andreas Sekkides v. The Republic (1988) 3 C.L.R. 2136 where at p.2151 it was stated as follows:-
"In the light of the above authorities it must be concluded that the 1979 Circular lays down rules of procedure which must generally be followed when preparing confidential reports. Failure to observe such rules inevitably renders an report thus compiled irregular, but at the same time we feel that to hold that such irregularity should at all times be considered as leading to the annulment of any decision taken, irrespective of whether it did materially affect such decision, would be going too far. No doubt such irregularity amounts to an illegality in the broad sense of the term, that is of being a violation of a procedural legal provision and this is how we understand Argyrides case (supra). But being a violation of procedure it has to be shown that it materially affected the decision reached."
And at p. 2153 it was stated that "an administrative Court must always examine wether the failure to comply with any formality is of such importance as to have affected the outcome of the decision" and at the same page it was stated that "the test in such cases is for the administrative Court to consider whether the omission or wrong compliance was of such importance that could affect the contents of the administrative act or decision."
With regard to the confidential reports of the interested parties, counsel for the applicants contended that they are irregular in that the reporting officer and the counter-signing officer was the same person. He said that this is allowed in cases where the department is independent. In the present case, he said the department forms part of the Ministry of Defence and, therefore, the counter-signing officer should have been the Director-General of the Ministry. This contention is contrary to case law and in particular to the decision of Stavros Othonos and Another v. The Republic (1989) 3 C.L.R 475.
I find that the present case is a proper case to fall under the exception in paragraph 3 of the circular in that there was no irregularity in the preparation of the confidential reports by the same officer, both as reporting and counter signing officer.
Another point taken by counsel for the applicants were the qualifications of applicant No.1 and applicant No.3. He said that they possessed additional qualifications to those required by the scheme of service, and this should weigh in the mind of the Commission. In the present case all candidates possessed the qualifications required by the scheme of service, and any possession of additional qualifications did not constitute an advantage. In the case of Papadopoullos v. The Public Service Commission (1985) 3 C.L.R. 405, decided by the Full Bench, it was held that possession of academic qualifications additional to those required by the scheme of service, which are not specified in the scheme of service as an advantage, should not weigh greatly in the mind of the Commission, who should decide in selecting the best candidate on the totality of the circumstances before them.
Counsel for the applicants also contended that the respondent Commission acted under a misconception of fact when they took into consideration that the interested parties were senior to applicants Georghia Varnava, (applicant 1), and Georghios Hadjigeorghiou (applicant No.3). He said that applicant 1 was employed by virtue of a contract as from 7.1.1977, with the Treasury Department and applicant No.3 was employed by virtue of a contract as from 7.3.1977 again with the Treasury Department. He said that according to section 5 of Law 10/73, amending s.46 of the Public Service Law, 1967 (33/67) they should have been considered as having seniority over the interested parties. These two applicants were employed on a daily basis (See exhs. 11 and 12). This submission cannot stand in view of the provisions of s.2 of the said law, which provides that persons whose remuneration is calculated on a daily basis do not come under the definition of "public service". Consequently, they do not form part of the public service and their employment on a contractual basis whose remuneration is calculated on a daily basis cannot be taken into consideration in assessing seniority.
In my view, rightly the Public Service Commission concluded that interested party Antoniou was the most senior followed in seniority by the other interested party Agrotis and then by applicant 3 Hjigeorghiou, and then by applicant No.1 Georghia Varnava, and finally followed by Katerina Pericleous, applicant No. 2, who was appointed in the previous post on 1.1.83. Agrotis, HadjiGeorghiou and Varnava were appointed to the previous post on 15.8.1982 and Antoniou on 15.9.1978. Agrotis, HjiGeorghiou and Varnava were holding the post of Programmer as from 1.12.1978. HadjiGeorghiou and Varnava entered the civil service on 1.12.1978 whilst Agrotis on 1.5.1973. He had entered the Service as Clerical Assistant and on 15.7.1974 was promoted to Accounting Officer, 3rd grade. In view of the fact that HadjiGeorghiou and Varnava entered the civil service on the same day, i.e. on 1.12.1978, then previous seniority shall be determined by the age of the officers. (See s. 46(7) of Law 33/67). As HadjiGeorghiou was born on 19.5.1950 and Varnava on 25.7.1951, HadjiGeorghiou is senior to Varnava.
In view of the above finding, with regard to the confidential reports and the case law referred to, the question which falls for determination is to examine whether such irregularity is of such importance as to have affected the outcome of the decision of the Commission. To answer this question it should be borne in mind all the material which was before the Commission.
To sum up, the interested parties had better confidential reports than the applicants Varnava and Pericleous. In the case of Pericleous, where there has been an irregularity in the preparation of her reports, due to the alteration of her confidential report by the counter signing officer whereby her rating for the year 1985 from "excellent" was reduced to "very good", even before the alteration, the interested parties had better confidential reports. Applicant HadjiGeorghiou had additional qualifications which were not considered by the scheme of service as an advantage. The interested parties had the recommendations of the acting head of department.
I am of the view that on the totality of the circumstances, the sub judice decision was reasonably open to the respondent Commission in view of the contents of the confidential reports, the recommendations of the acting head of department and the seniority of the candidates; It is a duly reasoned decision and such alterations in the confidential reports have not materially affected the sub judice decision.
For all these reasons, the recourse is dismissed, but with no order for costs.
Recourse dismissed. No order as
to costs.