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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 772
1989 July 12
[KOURRIS, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
KYPROS GREGORIADES,
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC SERVICE
COMMISSION,
Respondents.
(Case No. 1046/85)
Public officers - Promotions - Inerviews - No duty on Commission to hold an interview, especially in case where the selection is among officers of long standing in the service.
Public officers - Promotions - Striking superiorty - Seniority- Prevails when all other factors are more or less equal - The ratings in the confidential reports were more or less equal, but the interested party had additional qualifications, considered as an advantage by the Scheme of Service - Seniority, therefore, does not by itself amount in this case to striking superiority.
Public officers - Promotions - Qualifications - Additional qualifications regarded as an advantage by Scheme of Service - Special reasons should be given why they were disregarded.
Recourse for annulment - Practice - Direction that unless written address filed within a particular time limit the recourse shall stand dismissed - Further her directions without objection of respondent relating to conduct of case, notwithstanding that the written address had been filed out of time - Waiver- Respondent cannot at a later stage submit that the recourse should be treated as dismissed.
By means of this recourse the applicant challenges the decision to promote the interested parties to the post of postal superintendent.
The factual and legal issues raised can be deducted from the hereinabove Headnotes. The Court, in dismissing the recourse, had this to say:
"The onus of establishing striking superiority lies always on the applicant in a recourse. The duty of the Public Service Commission is to promote the most suitable candidate. And the duty of the Court in reviewing promotions is to see whether the authority exercised its discretionary power in conformity with the statutory provisions and the rules and requirements of administrative law generally, including good faith. So long as the Authority acted within those limits the Court cannot interfere; it cannot substitute its own opinion as to the merits of the candidates for that of the promoting authority."
Recourse dismissed. No order as to
costs.
Cases referred to:
Nicolaou and Another v. Republic (1981) 3 C.L.R. 73,
Nicolaou and Another v. Republic (1985) 3 C.L.R. 931,
Marathevtou and Others v. Republic (1982) 3 C.L.R. 1088,
Christoudias v. Republic (1984) 3 C.L.R. 657,
Kalos v. Republic (1985) 3 C.L.R. 135,
Protopapas v. Republic (1981) 3 C.L.R. 456,
Stylianou and Others v. Republic (1984) 3 C.L.R. 776,
Pattichis and Another v. Republic (1968) 3 C.L.R. 374,
Georghiou v. Republic (1976) 3 C.L.R. 74.
Recourse.
Recourse against the decision of the respondent to promote the interested parties to the post of Postal Superintendent in the Department of Postal Services in preference.and instead of the applicant.
E. Lemonaris, for the Applicant.
A. Papasavvas, Senior Councel of the Republic, for the Respondents.
E. Liatsou (Mrs) for Chr. Triantaftllides, for the Interested parties
Cur. adv. vult.
KOURRIS, J. read the following judgment. By this recourse, applicant challenges the decision of the Public Service Commission dated 9/9/1985 and published in the Official Gazette on 18/10/1985, to promote the interested parties to the post of Postal Superintendent, in the Department of Postal Services as from 15/9/1975 in preference and instead of the applicant.
This case has a long history but before dealing with the substance of the recourse I propose to examine a preliminary issue raised by counsel for the respondents. He contended that this recourse cannot proceed as it has been abandoned by the applicant and was dismissed accordingly: He relied on the record of the Court dated 20th January, 1988, where the Court in extending the time for the applicant to file his written address within four weeks from that date, it stated that, if counsel for the applicant, failed to do so, he will seem to have abandoned the recourse and that it should stand dismissed. Counsel for the applicant, indeed, failed to do so within the time prescribed by the Court, but on 11/5/1988 counsel for the applicant stated to the Court that he filed his written address and the Court gave further directions as to the filing of the written addresses by counsel of the respondents and counsel for the interested parties.
Learned counsel for the respondents was present on that day and he did not object to the filing of the written address of counsel for the applicant out of time and it seems to me that he waived his right to insist on the dismissal of the recourse.
The vacancies in the post of Postal Superintendent occurred as far back as 1975 and the Public Service Commission decided to promote to such posts Nicos Christofides, Emilios Georghalidesand Gregoris Kazantzis as from 15th September, 1975. All interested parties and applicants were holding the post of Senior Postal Officers. The decision of the Public Service Commission to promote the aforesaid persons to the posts of Postal Superintendent was challenged before the Supreme Court by the applicant and by his colleague Andreas Nicolaou, in Recourse No. 151/75. The Supreme Court by its Judgement annulled the promotions of the aforesaid persons to the post of Postal Superintendent (vide Nicolaou and Another v. The Republic (1981) 3 C.L.R. 73). The Court held that there has been no compliance with Section 44(3) of the Public Service Law 1967 (Law 33/67) in that the acting director of the Department of Posts based his information received from the retired ex director of the Department of Posts. In the result the Court found that the confidential reports of the applicants and the interested parties were "more or less equal" (vide Nicolaou and Another v The Republic (supra) at page 82).
The Public Service Commission convened on the 2nd May, 1981, to consider the matter afresh and decided to promote the same persons, i.e. Nicos Christofides, Emilios Georghalides and Gregoris Kazantzis to the post of Postal Superintendent retrospectively from the 15th September, 1975. The applicant and his colleague Andreas Nicolaou challenged again the new decision of the Public Service Commission before the Supreme Court in Recourse No. 206/81.
The Supreme Court in a judgment delivered on the 6th April, 1985, by the then president of the Court annulled the decision of the Public Service Commission to promote the aforesaid persons to the post of Postal Superintendent (vide Nicolaou and Another v. Republic(1985) 3 C.L.R. 931). The Court held that the respondent Commission adopted a course which was not open to it in exercising properly its functions as a collective organ in that the performance at the original interview was conveyed to the Commission by one of its members. The composition was different from the one which took the annulled decision.
The Public Service Commission convened for the third time on the 9th September, 1985, in order to consider the matter afresh and they decided to promote to the vacant posts of Postal Superintendent Nicos Christofides, Andreas Nicolaou and Gregons Kazantzis. The applicant feeling aggrieved filed the present recourse by which he challenges the validity of the promotion to the post in question of Nicos Christofides and Gregoris Kazantzis - the interested parties in this recourse.
The grounds of law on which the present recourse is based are the following:
(a) The respondent Commission did not keep minutes of their meeting held on 9/9/1985. In the alternative, the respondent Commission did not compile such minutes promptly.
(b) The respondent Commission failed in their paramount duty to promote the best candidate.
(c) The respondent Commission were influenced by the conclusions of their predecessor and by the views expressed before the Public Service Commission by the then acting director of the Department of Posts. And,
(d) The respondent Commission failed to hold a proper enquiry in order to ascertain material facts in that they failed to invite the candidates for an interview.
The first ground of the applicant has no substance at all. The respondent Commission at their meeting of 9/9/1985 kept minutes of this meeting. This is apparent from Appendix 8 to the written address of counsel for the respondents. His written address was filed on 9/12/1988 and he attached to it Appendix 8 which is the record of the minutes kept by the respondent Commission of its meeting on 9/9/1985. Further, there is no evidence before me that such minutes were not compiled promptly and also this allegation is untenable.
With regard to ground (c) again the contention of counsel for the applicant that the respondent Commission were influenced by the conclusions of their predecessor and by the view expressed before the respondent Commission by the then acting director of the Department of Posts is untenable. The respondent Commission asked for a legal opinion before taking the sub judice decision. And in Appendix 8 it is expressly stated that they did not take into consideration the views expressed by the then acting director and they did not also take into consideration his recommendations and his impressions from the interview.
The contention under ground (d) above, is that the respondent, Commission failed to hold a proper enquiry in order to ascertain material facts, in that, they failed to invite the candidates for an interview in order to elicit the candidates merits. A short passage from the judgement of Marathevtou and Others v. The Republic (1982) 3 C.L.R. 1088 at page 1093 answers this contention:
"A similar discretion is acknowledged in administrative law to the appointing body, the Public Service Commission itself, to choose the means appropriate for ascertaining the qualities of the candidates competing for appointment. They are the arbiters of the means best suited to test the worth of the contestants. Not only the Public Service Commission is free to opt for the one or the other method of examination, they are also at liberty to make their choice without requiring the parties to undergo either a written or an oral examination. This they may do when the material on record is sufficient to enable them to discharge their task effectively."
It is obvious that there was no duty on the respondent Commission to hold an interview especially in the present case where the selection had to be made among officers of long standing in the Government Service (see Christoudias v. The Republic (1984) 3 C.L.R. 657).
The last remaining issue is the contention that the respondent Commission failed in their paramount duty to select the best candidate. The allegation of counsel for the applicant is that the applicant was strikingly superior to the interested parties. He alleged that the Court in Recourse No. 151/75 (vide Nicolaou and Another v. The Republic (1981) 3 C.L.R. 73 at page 82) found that the confidential reports of the candidates "were more or less equal" which is binding upon the respondent Commission. He also said that applicant had seniority over interested party Kazantzis and they failed to give cogent reasons for disregarding seniority. He said that the applicant established striking superiority because the confidential reports of all the candidates were more or less equal and that seniority was the decisive factor and that the applicant ought to have been promoted instead of the interested parties.
I think learned counsel proceeded on a wrong footing with regard to this contention. The case law is that when all other factors are equal then seniority prevails. Therefore, it is pertinent to examine all the factors which are taken into consideration in effecting a promotion, i.e. merit, qualifications and seniority. It appears that the confidential reports of the candidates are more or less equal. The interested parties had additional qualifications which were considered by the scheme of service as an advantage. Applicant did not have additional qualifications envisaged by the scheme of service as an advantage.
it is settled law that where an additional qualification is required under the scheme of service, special reasons must be given in cases where a person not possessing such qualification was selected in preference to another possessing one, as to why such qualification was disregarded (see Kalos v. Republic (1985) 3 C.L.R. 135, Protopapas v. The Republic (1981) 3 C.L.R. 456, Stylianou and Others v. The Republic (1984) 3 C.L.R. 776).
Interested party Christofides has seniority of two years over applicant but applicant has three years seniority over interested party No.2 Kazantzis. And the question which arises is whether it was reasonably open to the Public Service Commission on the material before them, to promote the interested parties instead of the applicant.
The onus of establishing striking superiority lies always on the applicant in a recourse. The duty of the Public Service Commission is to promote the most suitable candidate. And the duty of the Court in reviewing promotions is to see whether the authority exercised its discretionary power in conformity with the statutory provisions and the rules and requirements of administrative law generally, including good faith. So long as the authority acted within those limits the Court cannot interfere; it cannot substitute its own opinion as to the merits of the candidates for that of the promoting authority (see Pattichis and Another v. Republic (1968) 3 C.L.R. 374).
It is accepted as a correct proposition that it is open to the Commission, in trying to select the most suitable candidate to weigh together all relevant considerations and to attribute more significance to one factor than to another in the course of doing so, provided, however, that it exercises properly its relevant discretion (see Georghiou v. Republic (1976) 3 C.L.R. 74 at page 82).
Bearing in mind the totality of circumstances that were before the respondent Commission, I have come to the conclusion that the sub judice decision was reasonably open to it. The exercise of its discretion in the circumstances was neither contrary to law nor arrived under any misconception of fact or any abuse or excess of power. Applicant Gregoriades has failed to establish any striking superiority over the two interested parties and his two years seniority over interested party No.2 could not have been a decisive factor once not all relevant circumstances were equal.
In the circumstances the recourse is dismissed but with no order for costs.
Recourse dismissed. No order as
to costs.