Seniority alone cannot annul a promotion decision; applicant failed to prove wrongful exercise of discretion.

[*877] 1967 July 12

(STAVRINIDES, J.)

REVISIONAL JURISDICTION

Costas D. Partellides,

Applicant,

and

The Republic of Cyprus, through

The Public Service Commission,

Respondent.

(Case No. 91/66).

Public Officers - Filling of vacancies in the public service - Application by a Postal Officer, 2nd Grade, for annulment of secondments to the temporary post of Postal Officer,

1st Grade, Department of Posts - Seniority of Applicant, only ground of recourse - Annual confidential reports on parties - Applicant's failure to make out a case for annulment of Respondent's relevant decision within the accepted rules of administrative review.

A. Pouyouros, for the Applicant.

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

JUDGMENT

The following Judgment was delivered by:-

STAVRINIDES, J.: The applicant, a Postal Officer, 2nd Grade, seeks to annul a decision of the Public Service Commission dated March 30, 1966, whereby two vacancies in the temporary post of Postal Officer, 1st Grade, were filled by the secondment thereto of two other Postal Officers, 2nd Grade, viz. Mr. Theodotos Arghyrides and Mr. Andreas Nicolaou (hereafter referred to jointly as "the interested parties” and severally as "the third party" and "the fourth party" respectively). Both the applicant [*878] and the interested parties were first appointed as Mail Officers - the applicant on October 11, 1941, the third party on or about August 12, 1947, and the fourth party on or about June 1, 1946. They became Postal Officers, 2nd Grade, on January 1, 1956, July 1, 1956, and July 1, 1958, respectively. Thus the applicant has been considerably longer in the public service than either of the interested parties and further, at the material time, viz. that of the subject decision, was senior to both of them - by six months as regards Mr. Arghyrides and by two and a half years as regards Mr. Nicolaou.

The Commission interviewed eight Postal Officers, 2nd Grade, including the applicant and both interested parties; and the subject decision reads as follows:

"The Commission after considering the qualifications, experience, service and merits of the candidates interviewed and having regard to the recommendations made orally before the Commission by Mr. Hadjioannou, decided unanimously that on the totality of the above factors, Messrs. Th. Arghyrides and A. Nicolaou were the most suitable for promotion and accordingly decided that they be seconded to the temporary post of Postal Officer, 1st Grade, with effect from 1.4.66".

One ground of annulment is put forward in the application, which is signed by the applicant himself, viz. his seniority, and nothing else. At the hearing he had the advantage of the services of Mr. Pouyouros, whose argument was to the effect that his client had been [*879] passed over "as lacking in administrative ability in the sense of handling staff and the public" Presumably this explanation of the decision is based on the annual confidential reports on the applicant (exhibit 3) for yearly periods prior to May, 1959. There is no trace of such view of him in any of the later reports. Further, evidence was given by the applicant and Mr. Hadjioannou, the latter having been called by counsel for the respondent; and neither witnesses evidence contains anything to support that explanation. On the other hand the annual confidential reports on both interested parties (exhibits 4 & 5) for all periods prior to the subject decision taken as a whole and every one of the reports for periods after April,1960, are distinctly more favourable to them than those on applicant are to him. Moreover, it appears from the evidence of Mr. Hadjioannou that at the meeting of the Commission referred to in the subject decision he supported the view that the interested parties were more suitable for promotion than the applicant.

It has been held over and over again that seniority does not of itself give a right to promotion but is only a factor to be taken into account in determining rival claims for promotion; that the Commission has the paramount duty of selecting the most suitable candidate; that in discharging that duty the Commission has a discretion with which the Court cannot interfere unless it has been exercised under a misconception of fact or law or in disregard of principle, for otherwise it would, in effect, be substituting its own discretion for that of the Commission, which is outside the province of the Court; and that the onus of proving such wrongful exercise is on the applicant. [*880]

While it is perfectly clear that the applicant is a deserving officer, noted for zeal and integrity, and, considering everything, including his seniority, he might well have "been promoted in preference to one of the interested parties, I fail to see, that he has made out a case for annulment within the accepted rules of administrative review. Accordingly I am constrained to uphold the decision.

In the circumstances the application is dismissed without costs.

Application dismissed

without costs.