Constitutional recourse against Public Service Commission promotion refusal dismissed due to executive vacancy freeze. Applicant's hardship not sufficient for judicial redress.

[*202] 1964 November 24

(ΖΕΚIA,Ρ , VASSILIADES, TRIANTAEYLLIDES, MUNIR,

JOSEPHIDES, J J).

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution

George S. Contopoullos of Nicosia,

Applicants

and

The Republic of Cyprus through

the Public Service Commission (an independent body) ,

Respondent.

(Case No. 299/62).

Public Officers - Vacancies in the post of Land Officer, Department of Lands and Surveys - Filling of by promotion -

Decision of the Public Service Commission not to promote Applicant - Recourse against.

Public Service Commission - Request of the Executive not to proceed with filling of vacancies - Duties of under Article

125 of the Constitution.

L.N. derides, for the Applicant.

K.C. Talarides, Counsel of the Republic for the Respondent.

JUDGMENT,

ΖEΚΙΑ,Ρ..: The Judgment will be delivered by Mr. Justice Triantafyllides.

TRIANTAFYLIIDES.J; In this Case the Applicant is complaining, by a recourse under Article 146 of the Constitution, against the decision of the Public Service Commission made on the 14th September, 1962, and communicated to him by letter dated 19th September, 1962, to the [*203] effect that his application for promotion to the post of Land Officer, from the post of Land Clerk, 1st Grade, was turned down.

It must be stated at once that the Court found some difficulty with the relevant decision of the Public Service Commission, as framed in its minutes of the 14th September, 1962. It appeared to be worded in a rather general and summary manner. In view, however, of the fact that this

decision was taken on the basis of an application to the Commission made by Applicant, dated 28th August, 1962, the Court is of the opinion, in the particular circumstances of this Case, that the said application and the

decision in question of the Commission may be read together so as to ascertain the exact reasons relied upon by the Commission in reaching its decision.

By his letter of the 28th August, 1962, the Applicant had brought to the notice of the Commission that he had been serving in the Department of Lands and Surveys since 1950, that he was the most senior Land Clerk, 1st Grade, and in his opinion entitled to be promoted to the post of Land Officer, he stated that vacancies in the said post had occurred since February, 1959, if not earlier, and that he had since then been waiting to be promoted thereto; that as he was due to retire on the 1st December, 1962, he was seeking to be promoted before retirement in order to avoid the severe financial loss involved in not having been promoted in due time to the higher post of Land Officer and also in order to be given moral satisfaction to which he thought he was entitled after a service of 42 years.

As a matter of fact there have existed vacancies in the post of Land Officer for some time, since before [*204] February 1962, and Applicant's Head of Department had made representations for the filling of such vacancies. As a result, on the 8th February, 1962, the Public Service Commission considered the question and called for interview a number of Land Clerks, 1st Grade, one of whom was the Applicant. Before, however, the Commission had effected any promotions a letter was written by the Ministry of Interior to the Commission, on the 9th May, 1962, requesting them not to proceed with the filling of vacancies in certain posts, including the post of Land Officer, in view of the impending re-organization of the Lands and Surveys Department; the said Department comes under the Ministry of the Interior. As a result of the Applicant, who, taking into account his seniority and other factors, could probably have been promoted to the post in question, was not promoted and he eventually retired being still a Land Clerk, 1st Grade.

It. has been argued before the Court by Counsel for Applicant that the Ministry of Interior was not entitled to interfere with the public duty of the Public Service Commission, under Article

125 of the Constitution, to make, inter alia, promotions to posts in the public service and that, therefore, the decision of the Commission taken 011 the 14th September, 1962, was invalid because it must be obviously taken to have been based on the request contained in the letter of the Ministry of Interior, dated 9th May, 1962.

In the opinion of the Court the duties of the Public Service Commission under Article 125 are limited to matters concerning the officers and not the offices involved (vide Papapetrou and The Republic, 2 R.S.C.C, p. 6l at p.66). It is not for the Public Service [*205] Commission, therefore, to decide when a vacancy is to be filled by way of promotion as this matter lies within the competence of the Executive Branch of the Government. It is only when such a vacancy is to he filled that the Commission has exclusive competency to decide on who is to he promoted or appointed to the post in question.

In the present Case, therefore, the Commission quite properly took into account the request of the Ministry of Interior not to fill the vacancies in the post of Land Officer pending the re-organization of the Department concerned.

It is quite true that through what has happened the Applicant, a public servant with long and devoted service, has suffered grave hardship, hut which, unfortunately, in the circumstances, is not by itself a ground for judicial redress.

Counsel for Applicant has also relied on the case of another employee of the Lands and Surveys Department who had earlier been promoted to the post of Land Clerk, 1st Grade (from the 2nd Grade) just before his retirement, having applied to the Public Service Commission for the purpose. But that case is different in that such promotion took place before the letter of the 9th May, 1962, was addressed by the Ministry of Interior to the Public Service Commission. It follows, therefore, that the principle of equality has not been infringed because the case of the Applicant and of the other officer in question are not on the same basis. But this is a matter which may be relevant to any ex gratia action that the Executive might see fit to take vis a vis Applicant.

In conclusion the Court would like to observe that it is most necessary that matters pertaining to the [*206] discharge of the functions of the Public Service Commission in relation to questions of appointments, promotions, disciplinary proceedings and the like should be regulated by specific provisions, so as to enable public officers to know exactly what is their position with regard to their prospects in the service and the manner in which such prospects are to be taken care of by the appropriate authorities.

For the above reasons this recourse fails and is dismissed accordingly.

The Court, however, feels that this is a proper ease, (in view of the hardship suffered by Applicant and in view of the fact that he was actually interviewed for promotion and then such promotion did not materialise due to wider interests of the administration), for the payment by Respondent to Applicant of a sum towards his costs, viz. £25· The Court feels that this is a case which the Applicant had every reason to bring before the Court in an effort to vindicate what he considered to be his legitimate interests arising out of a service in Government of 42 years. Awarding costs in favour of an unsuccessful Applicant is a course which is not to be adopted except for very grave reasons and on very rare occasions but this seems to be indeed one of such cases. After all, had the appointments to the post of Land Officer been made by the Commission reasonably soon after the interviews in February, 1962, the letter of the Ministry of Interior of the 9th May, 1962, would not have sealed the fate of Applicant by preventing promotions. Moreover, this is a Case where the public interest in general appeared to have required to have the issues raised considered by this Court.

Recourse cannot succeed and

is dismissed accordingly.

Order for costs as aforesaid.