Court dismisses applicant's challenge to promotion, ruling discretion allows considering merit over seniority.

[*735] 1969 May 26

(HADJIANASTASSIOU, J.)

REVISIONAL JURISDICTION

Costas Partellides,

Applicant,

and

The Republic of Cyprus, through

The Public Service Commission

Respondent.

(Case No.331/68).

Administrative Law - Public Officers - Public Service Commission - Promotions to the post of postal officer first Grade - Reasonably open to the Respondent Public Service Commission in view of Interested Parties’ superiority in merit and the recommendations of the Head of Department.

Chr. Artemides, for the Applicant.

S. Georghiades, Senior Counsel of the Republic, for the Respondent.

JUDGMENT

The following Judgment was delivered by:

HADJIANASTASSIOU, J.: In this recourse, under Article

146 of the Constitution, the applicant seeks to challenge the validity of the

decision of the Public Service Commission to promote the interested parties, Mr. Nicos Christofides and Kypros Gregoriades to the post of postal officer, first grade. [*736]

The applicant has joined the Public Service on October 11, 1941, and has been holding the post of postal officer second grade since August 1,1954. After the re-organization of the Service the applicant was given the title of Sub-Postmaster The applicant has served in many places all over Cyprus and since August 1, 1967, he was seconded to the post of postal officer, first grade.

The interested parties have joined the Service much later, viz., Mr. Christofides on September 1, 1954 as a mail officer third grade, and Mr. Gregoriades on June 20, 1949. The first officer was promoted to the post of postal officer second grade on January 1, 1956, and the second was promoted to the same post on July, 1, 1956.

On June 6, 1968, the Council of Ministers authorized the Public Service Commission to fill a number of vacancies and consequential vacancies, see exhibit

2. As a result of promotions to higher grades, four consequential vacancies in the post of postal officer, first grade, were created. Under the scheme of service, this post is a promotion post. It reads: -

“Duties & Responsibilities.

(a) To be in charge of a district Post Office and responsible for the stocks of stamps and postal orders, preparation of daily cash accounts, conducting correspondence with the Headquarters, and inspection of postal agencies;

or

(b) to be in charge of a section of the General [*737] Post Office;

and

(c) to perform any duties which may he assigned to him.

Qualifications:

Leaving certificate' of a six-year secondary school; thorough knowledge of post office rules and regulations; a very good knowledge of Greek and English or Turkish and English; ability to control staff and to deal tactfully with the public, Knowledge of French and/or any other European language would be an advantage. He must have passed the examination in Financial- Instructions.

Note: Officers who may be promoted before the 31.7.65 will be required to pass the exam, in Financial Instructions within 2 years of promotion.”

On July 3, 1968, the Commission at its meeting considered the merits, qualifications, experience and seniority of many postal officers, second grade, including the applicant and the interested, parties', as reflected in their annual confidential reports, and bearing, in mind the recommendations of hr. HadjiIoannou, the director of the Post Office, on each individual officer, they reached the conclusion that the interested parties were more suited to be promoted; see exhibit 1.

Pausing there for a moment, it would be observed from the comparative table, showing the service and qualifications of the parties, exhibit 4, that though the applicant's first [*738] appointment to the Public Service precedes that of the interested parties by several years, the applicant and the first interested party, Mr. Christofides, were both appointed, to thepost of postal officer, second grade, on the same date, that is to say, on January 1, 1956, and that the second interested party, Mr. Gregoriades, - was appointed to the same post six months later, on July 1, 1956. Furthermore, it is clear that Mr. Christofides passed his examination in. French, one of the languages required by the scheme of service.

On September 23, 1968, the applicant, feeling aggrieved because he was not promoted, applied to the court for the following relief:

"Declaration that the decision of the Respondents to promote Messrs. Kicos Christofides c/o Limassol Post Office and Kypros Gregoriades c/o Parcel Post Office Eicosia to the pest of postal officer, first grade in preference and instead of applicant is null and void and of no effect whatsoever".

On January 4, 1968, the opposition was filed and is, in effect, that the decision of the respondent to promote the interested parties was taken after careful consideration of all the facts and circumstances of the case, and upon a careful and proper-exercise of the discretionary powers vested in the respondent.

Counsel, on behalf of the applicant, has contended that the Public Service Commission-has failed to exercise properly their discretionary power, because they have disregarded the superior experience and the striking seniority of the [*739] applicant; and that the applicant has Been seconded to the post of postal officer, first grade, since August 1, 1967.

Counsel for the respondent, on the contrary, has argued that the Public/Commission, in the exercise of their discretionary power, can consider the seniority as one of the factors to be taken into consideration, but in view of the annual confidential reports and the recommendations of the head of the-Department, the Public Service Commission quite properly promoted the interested parties. Furthermore, he contended that in view of the facts and circumstances before them, it was reasonably open to them to reach such

decision.

I consider it appropriate time to repeat what has been stated by this Court in a number of cases, that the secondment to a post does not create a vested right to the holder concerned. No doubt, the Public Service Commission, quite rightly must take into consideration the secondment for purposes of considering the experience of a public officer; but, in their search to select the best candidate for the post, the Public Service Commission should carefully consider the merits and the qualifications of each candidate and should not give undue weight to the fact that one of the candidates was acting on secondment to that particular post.

It has to be remembered, therefore, that the paramount duty of the Public Service Commission, in effecting appointments or promotions, is to select the most suitable candidate for the particular post having regard to the totality of circumstances pertaining to each one of the qualified candidates, including length of service which, though always a factor to be considered, is not always the exclusive vital criterion for such an appointment or promotion. [*740]

In the light of all the material before me, and-after goingcarefully through the annual confidential reports, and in view of the. recommendation by the head of the department, especially where ability to control staff is required, I have reached the. conclusion that from the totality of all the circumstances before the public Service Commission, it was reasonably proper and open to them to reach the conclusion to promote the interested parties in preference and instead of the applicant; see Michael Theodossiou v. The Republic (P.S.C.) Vol. 2 RSCC. 44. In my mew, quite rightly so, even counsel for the applicant has also conceded, after perusing the annual confidential reports, that the interested parties’ reports were better than those of the applicant; and that they had also been recommended for promotion by the head of the department.

For the reasons I have endeavoured to explain, I have reached the

conclusion that the applicant has failed to satisfy the court that the

decision, in question, of the Public Service Commission, was. taken in excess or in abuse, of their powers, and I would, therefore, dismiss the application.

Application dismissed.