Cyprus Supreme Court annuls promotions bypassing lower-grade officers, ruling schemes violated Public Service Law 1967.

[*214] 1970 February 17

(VASSILIADES, P., TRIANTAFYILIDES, JOSEPHIDES,

STAVRINIDES, LOIZOU, JJ.)

REVISIONAL APPELLATE JURISDICTION

Vahak Geodelekian,

Appellant,

v.

The Republic of Cyprus, through

the Public Service Commission,

Respondent.

(Revisional Jurisdiction Appeal No.63).

Public Officers - Promotions - Promotion Post - Posts of Collector of Customs and Excise and of Inspector in the Customs Department - Schemes of service - Do not render eligible for direct promotion to such posts persons not serving in the immediately lower grade - Public Service Law 1967 (Law 33/67), section 30(1) (c).

Public Officers - Promotions - Promotion Post - Promotions of officers not serving in the immediately lower grade and non-promotion of officer so serving - When such officer can be bypassed and not promoted -Sections 30(1)(c) and 44(5) of the Public Service Law 1967 (Law 33/67) contravened.

Public Officers - Promotions - Promotion Post - Vacancies - Officer serving in the lower post entitled to be promoted - Unless he is unsuitable for promotion - No finding to this effect - Such finding excluded due to section 44(1)(c) of the Public Service Law 1967 (Law 33/67) and the nature of the confidential reports on appellant - Respondent could not treat appellant as being unsuitable on the basis of a last-minute remark made orally by his Head of Department - Situation such that appellant virtually entitled to be promoted - Sub judice promotions annulled.

A. Triantafyllides, for the Appellant.

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

C. Myrianthis,for the Interested Party Anastassios Philippou.

JUDGMENT

VASSILIADES, P.: The judgment of the Court will be delivered by Mr. Justice Triantafyllides.

TRIANTAFYLLIDES, J. : The salient facts of this [*215] case appear in the elaborate and carefully prepared decision of the learned Judge of this Court who dealt with this case, in the first instance (see Geodelekian and The Republic, 1969, 10 J.S.C. 1220); so they need not be repeated in this judgment.

We have decided that this appeal should be allowed and that the promotions of all the Interested Parties should be annulled, for two reasons:-

Firstly, with due respect for the opinion of the trial Judge,

we cannot agree with his interpretation of the relevant schemes of service; we take the view, which is shared by learned counsel for both the appellant and for the respondent, that such schemes do hot render eligible for direct promotion to the promotion

post of Collector of Customs and Excise (or to the equivalent promotion post of Inspector in the Same Department) persons not serving in the immediately lower grade of Assistant Collector of Customs and Excise, but serving in the still lower grade of Customs and Excise Officer, 1st grade. Indeed, if the schemes had that effect they would centravene section 30(1)(c)of the Public Service Law, 1967 (Law 33/67), which is referred to later on in this judgment.

We are, also, of the opinion that when the Interested Parties were promoted by the respondent to Collectors or Inspectors they were not duly holding the post of Assistant Collector; though their promotions to Assistant. Collectors had been decided upon by the respondent, they had not yet been

"effected", in the sense that they had not yet been [*216] perfected or completed, in accordance with the provisions of

section 44(5) of Law 33/67 which read:-

"(5) A promotion shall be effected by a written offer made by the Commission to the officer to be promoted and accepted by him in writing. The offer shall specify, inter alia, the date of promotion, the salary payable and the incremental date, if any".

It follows that the Interested Parties were not eligible for promotion to the post of Collector or to the post of Inspector; and it may be pointed out, in this connection, that the trial Judge has expressly stated that he would not himself have upheld the promotions of the Interested Parties had he not found that they were rendered eligible for promotion, from the post of Customs and Excise Officer, 1st grade, to the posts of Collector or Inspector, by virtue of the relevant schemes of service.

Secondly, we take the view that section 30(l)(c) of Law 33/67, which reads:-

30(1) - For the purposes of appointment or promotion ................................... (c) "Promotion offices which shall be filled by the promotion of officers serving in the immediately lower grade or office of the particular section or sub-section of the public service, as the case may be"

was contravened by the promotions effected in the circumstances of the present case: [*217]

As fairly agreed by counsel for the respondent, once there is a person serving in the immediately lower grade than the post in which there exists a vacancy, such a person can only be bypassed, and not be promoted, if he is unsuitable for promotion or less suitable than any other person serving in his own grade; and it is not open to the respondent to decide to promote to this grade (immediately before its decision as to the filling of the promotion post concerned - as it was, indeed, done in the present case) persons serving in a lower post, and then to proceed to compare them, as to suitability, with a person already serving in such grade, with a view to deciding who shall fill the vacancy in the higher post. If that were to be allowed then the whole object of section 30(1)(c) would be defeated.

The present appellant was serving, in the grade of Assistant Collector, immediately below the grade of Collectors or Inspectors in which the vacancies existed. There were not sufficient persons serving in the grade of Assistant Collector so to enable the filling of all the existing vacancies through their promotions; thus, there was no question of the Applicant not being selected for promotion unless he was found to be unsuitable for the purpose.

It is abundantly clear, too, that there was need for the existing vacancies to be filled (see the letter, to that effect, addressed to the respondent On the 30th November, 1967, by the Ministry under which comes the Department of Customs and Excise). [*218]

In the circumstances - and the respondent not having decided for proper, and duly recorded, reasons to leave any of the vacancies unfilled for the time being - the appellant was, indeed, entitled to be promoted in order to fill one of the said vacancies, unless, as stated, he was unsuitable for promotion. But there was no finding, on the basis of any cogent reason, by the respondent to that effect; and, actually, no such finding was. reasonably open to the respondent in the circumstances of the case before us. Because such a finding was excluded both in law and in fact; in law, due to the provisions of section 44(1)(c) which read: -

44(1) - No officer shall be promoted to another office, unless- ......... (c) "he has not been reported upon in the last two annual confidential reports as unsuitable for promotion;"

and in fact, due to the nature of the confidential reports on the appellant as they are to be found in the relevant file.

Moreover, in the light of these considerations it was certainly not open to the respondent to treat the appellant as being unsuitable, on the basis of a last-minute remark made orally before the respondent by his Head of Department, Mr. Philippides, and understood to be to this effect by only three out of the five members of the respondent. [*249]

As already stated the situation in the present instance was such that the appellant was virtually entitled to be promoted to one of the vacant posts of Collector or Inspector. It is not for us to decide who out of the Interested Parties ought to have been left out so as to make room for the promotion of the appellant, so we have had to annul all the promotions in question. It is up to the respondent to decide this matter after making the promotion of the appellant, which, be it noted, must relate back to the time to which the sub judice decision of the respondent was taken.

In the result the appeal, and recourse, of the appellant succeed, and the promotions of the Interested Parties are declared to be, null and void and of no effect whatsoever.

As to costs, in the circumstances, we decided to make no order.

Appeal allowed;

no order as to costs.