Supreme Court annuls Public Service Commission appointment due to material misconception regarding a candidate's qualifications.

[*1262] 1966 December 24

(TRIANTAFYLLIDES, J.)

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution

Kyriacos Kyriacou,

Applicant,

and

The Republic of Cyprus, through

the Public Service Commission,

Respondent.

(Case No. 220/65).

Public Officers - Appointments - Appointment to the post of Tugboat Engineer, Department of Ports - Annulled as relative decision contrary, to law and in excess and abuse of powers as having been taken under a most material misconception.

Public Service Commission - Discretion - Appointment to the post of Tugboat Engineer Department of Ports - Relevant discretion of the Commission exercised under a most material misconception - Annulled.

Public Service Commission - Pilling the post of Tugboat Engineer, Department of Ports - An instance of Commission's disregard of the recommendations of a Head of Department - Particularly, with regard to a post requiring knowledge of a technical nature.

A. Triantafyllides, for the Applicant.

M. Spanos, Counsel of the Republic, for the Respondent.

L. Clerides, for the Interested Party.

JUDGMENT

The following Judgment was delivered by:-

TRIANTAFYLLIDES, J.: By this recourse the Applicant challenges the validity of a decision of the Respondent Public Service Commission dated 9th September, 1965 and appointing the Interested Party Andreas Antoniou to the post of Tugboat Engineer in the Department of Ports (see exhibit 2). [*1263]

The salient facts in this Case are as follows

On the 15th June, 1965, the Commission decided (see its minutes, exhibit 8) to advertise a vacancy in the post in question.

The relevant scheme of service is exhibit 1; the qualifications laid down therein are:- "Several years' experience in marine engineering works and also experience as engineer in charge of a watch at sea. A certificate in marine engineering would be an advantage".

The vacancy was advertised in the official Gazette on the 1st July, 1965. Three candidates applied, including the Applicant and the Interested Party.

The application of the Applicant for appointment is exhibit 9 in these proceedings. It appears therefrom that he has no academic qualifications in marine engineering.

Since 1957 Applicant has held the post of Tug Fireman, in the public service, and has been serving on board the tug "Desdemona". The Applicant was the only candidate for the post of Tugboat Engineer who was, at the material time, in the public service. The other two candidates i.e. the Interested Party and a certain Chr. Papastylianou were outsiders to the public service.

The then Ag. Director of the Department of Ports, and Applicant's Head of Department, Mr. A. Kantounas, forwarded the application of the Applicant to the Commission on the 12th July, 1965. In a covering letter of the same date, recommending Applicant for appointment (see exhibit 3), he stated that the Applicant had, since 1957, been acting also as Tugboat Engineer, though he was only substantively appointed as Tug Fireman; he explained that the Applicant had been acting as

Tugboat Engineer, while the person holding such post, a [*1264] certain Mr. A. Molozian, was absent on leave, or through illness, and that, also, he had

been alternating, with the said Mr. Molozian, in doing duty as the Engineer of the tug, because it was humanly impossible for Mr. Molozian to be on duty all the time from 6 a.m. to midnight every day; this arrangement appears to have been anticipated when the Applicant was appointed in 1957 (see the letter of the Comptroller of Customs and Excise dated 25th January, 1957, exhibit 7).

The application of the Interested Party is exhibit 10 in these proceedings; in the space intended for the statement of his qualifications the Interested Party wrote that he was the holder of a British Ministry of Transport Certificate for service on s/s "Empire Roach", as Chief Engineer from 1951 to 1961 (see exhibit 5) and that he was, also, the holder of a Panamanian certificate of First Engineer No. 42449 (see exhibit 6).

The "Empire Roach" is a small ship (716 tons gross) belonging to the British Ministry of Transport.

At the time of his application the Interested Party was working as the Chief Engineer on a tug, the "Ventura". As it appears from the evidence given in these proceedings he served as the Chief Engineer of this tug on its trip from the United Kingdom to Cyprus.

On the 23rd July, 1965, the Commission met to consider the candidates before it and decided to call all three of them to an interview on the 9th September, 1965, (see the minutes, exhibit 11). [*1265]

On the 9th September, 1965, the candidates were interviewed by the Commission in the presence of Mr. Kantounas and it was decided to appoint the Interested Party.

It is common ground that at the meeting of the 9th September, 1965, Mr. Kantounas insisted on his. recommendation in favour of the Applicant.

On the 15th September, 1965, Mr. Kantounas addressed a letter (see exhibit 4) to the Director-General of the Ministry of Communications and Works - (under which comes the Department of Ports) - suggesting that the Commission be asked to reconsider the matter, because in his opinion its decision to prefer the Interested Party, instead of the Applicant, was erroneous, for the reasons set out in such letter. It seems that, as a result, the Ministry did raise the matter, but the Commission did not alter its, already taken, decision in favour of the Interested Party.

During the proceedings in this Case a number of issues relating to the validity of the said decision of the Commission have been raised. It is not necessary to determine all of them, because on the material before the Court I have reached the conclusion that the sub judice decision of the Commission, appointing the Interested Party to the post of Tugboat Engineer, has to be annulled, in any case, in view of the fact that, as submitted by Applicant's side, it has been based on a material misconception. I am of this view for the following reasons:-

As it has been mentioned already in this Judgment, the relevant scheme of service (exhibit 1) provides that a [*1266] "certificate in marine engineering would be an advantage". In my opinion the only proper interpretation of the word "certificate", in the context of the whole scheme of service, is "a certificate of academic qualification"; such "certificate" is provided for as an additional qualification to "several years' experience in marine engineering works and experience as engineer in charge of a watch at sea" and, therefore, it cannot be a mere certificate of experience.

It appears from the evidence of Mr. Demetrios Protestos, a member of the Commission, that the Commission has regarded the aforementioned Panamanian certificate of First Engineer, exhibit 6, as being a "certificate in marine engineering", in the sense of the scheme of service, and, therefore, as "an additional advantage" - in the words of Mr. Protestos.

In my opinion such a view was erroneous because there can be no doubt that exhibit 6 is not a certificate of academic qualification. The Interested Party himself has told the Court that it has been issued by a consul of Panama on the basis of "certificates of discharge", i.e. certificates of previous work, which constitute exhibit 5. Also Mr. Kantounas, whom I regard as a person in a position - by virtue of his office - to express an opinion in the matter, has told the Court that exhibit 6 is not a certificate of competency, but an identity card; and this seems to me to be quite obvious, too, on a mere inspection of the document concerned. It is clear, therefore, that the Commission has been labouring on this point under a misconception regarding the true nature of exhibit 6. [*1267]

Mr. Protestos has gone on to say in his evidence that even if exhibit 6 did not exist he would still regard the Interested Party as definitely superior to the Applicant. But this is only his own personal view, of course. Once it has been established that the Commission has erroneously regarded exhibit 6 as an advantage in the sense of the scheme of service, this Court cannot speculate as to whether or not a majority of the members of the Commission would have taken the same view as Mr. Protestos, in case exhibit 6 did not exist at all, and so, if they would have taken such a view, treat the misconception regarding the true nature of exhibit

6 as immaterial.

Such misconception is of paramount consequence in this Case, because we are concerned here with an instance on which the Commission has disregarded the recommendations of a Head of Department, and, particularly, with regard to a

post requiring knowledge of a technical nature (see Marcoullides and The Republic, 3 R.S.C.C. p. 30 at p. 34); and although it is correct that it is

only Applicant who was, at the material time, employed in the relevant Department, under Mr. Kantounas, it is clear, both from the evidence of Mr.

Kantounas and from his letter of the 15th September, 1965, (exhibit 4), that he had also knowledge of the merits of the

Interested Party. In a Case, such as the present, where the erroneous view, that the Interested Party possessed an additional academic qualification, may well have tipped the scales in his favour, contrary to the recommendations of the responsible Head of Department, I cannot but hold that the relevant discretion of the Commission has been exercised under a most material misconception, [*1268] with the inevitable result that the sub judice decision is contrary to law (see Conclusions from the Jurisprudence of the Greek Council of State 1929-1959 p. 269) and in excess and abuse of powers. It is, therefore, declared to be null and void and of no effect whatsoever. The Commission has to reconsider the matter afresh in the light of the correct situation.

Regarding costs I have decided to award Applicant, against Respondent, £15.- towards costs.

Sub judice decision

annulled.

Order for costs as aforesaid.