Supreme Court dismisses appeal against Public Service Commission's promotion decision, upholding discretionary power under Article 125. Appeal dismissed.

[*608] 1970 June

(VASSILIADES, P., TRIANTAFYLLIDES, JOSEPHIDES,

STAVRINIDES, HADJIANASTASSIOU, JJ. )

APPELLATE JURISDICTION

Pantelakis Z. Kyprianides,

Appellants,

and

The Republic of Cyprus, through

the Public Service Commission,

Respondent.

(Revisional Jurisdiction Appeal No.50).

Administrative Law - Public Officers

- Decision regarding effective date of applicant’s promotion - Recourse - Appeal against dismissal - Respondent Public Service Commission having given regard to all relevant material before it, has neither failed to exercise rightly its discretionary power under Article 125 of the Constitution nor did it act In excess or abuse of its discretionary power.

Constitutional Law - Article 192.1 of the Constitution - Provisions thereof do not apply to a public officer holding post in an acting capacity.

Colonial Regulations - Construction of Colonial Regulations 33, 34, 35 and 36.

Costs - Order for costs set aside because of the long time taken by Respondent to decide on applicant's promotion.

G. Cacoyiannis, for the Appellant.

A. Frangos, Senior Counsel of the Republic, for the Respondent.

JUDGMENT

VASSILIADES, P.: Mr. Justice Hadjianastassiou will deliver the first judgment.

HADJIANASTASSIOU, J. : This is an appeal by [*609] the appellant against the decision of a single Judge of this Court,

dated November 28, 1968, declaring that having regard to the circumstances of the case, it cannot be said that it was not reasonably open to the Public Service Commission to reach the decision complained of. The appellant appealed to this Court upon various grounds.

The facts in this case are not in dispute and are as follows:-

The applicant, who was a Lands Clerk, was serving in Limassol, when his superior, Mr. Savvides, went on leave on December 4, 1958, prior to his retirement on February 26, 1959. The applicant was instructed to perform the duties of Director of the Lands Office in Limassol as from that date, i.e. December 4, 1958.

On December 18, 1958, his ccting appointment was published in the official Gazette w.e.f. December 1958, as a Lands Officer, Class II. He continued serving in that capacity until May, 1963, when he was promoted to the post of Lands Officer in the Department of Lands and Surveys w.e.f. January 1, 1963. The applicant accepted the appointment, but he reserved his right to challenge the date of his promotion only. On August 31, 1963, the applicant filed recourse No. 132/63 and by the judgment of the trial Court, the decision of the Public Service Commission as to the date of the applicant’s promotion was annulled, because the Commission acted under a preconceived policy In not making a retrospective promotion of the applicant. [*610]

On July 5, 1966, the Public Service Commission, following the judgment of the Court, dealt with the question of the promotion of the applicant, and an extract from the minutes of the meeting reads as follows:-

"Two vacancies in the post of Lands Officer occurred on 26.2.59 and 1.10.59 respectively. If the vacancy in the post of Lands Officer, Limassol, were to be filled at that time, there were two other Land Clerks, 1st Grade, viz. Messrs. G. S. Kontopoulos and P. Poetis (who. retired as from 1. 12.62 and 1.10.60 respectively) who would have had stronger claims for promotion to that vacancy than Mr. Kyprianides, being fully qualified, more senior and with better reports and service records than Mr. Kyprianides. During the interviews of 23. 2.62 for the filling of the post of Land Officer, Mr. Kontopoulos was found to have stronger claims for promotion to that post than Mr. Kyprianides. The existing vacancies were not then filled, however, because of the impending reorganization of the Department of Lands and Surveys and at the request of the Ministry of Interior."

"Having regard to the foregoing the Commission came to the conclusion that there was no reason why Mr. Kyprianides’ promotion to the post of Lands Officer should be made effective from any time prior to February, 1962, when the vacancies [*611] would have been filled on or shortly after 23.2.62 when the interviews were held, had it not been for the impending reorganization of the Department, the Commission decided unanimously that on promotion to the post of Lands Officer w.e.f. 1.1.63, Mr. Kyprianides he granted one increment above the initial of the salary scale of the post, subject to the agreement of the Minister of Finance."

In October 1966 the applicant, feeling aggrieved once again because of the decision of the Public Service Commission, filed recourse No. 251/66, claiming the following relief:- A declaration that the decision of the respondent communicated to the applicant by its letter to him dated 1st August, 1966 and received by the applicant on 9th August, 1966, to the effect that the effective date of the applicant's promotion to the post of Lands Officer, in the Department of Lands and Surveys, shall remain the 1st January, 1963, in spite of the judgment of the Supreme Court in recourse No. 132/63, but that in the light of such judgment the applicant was granted one increment above the initial of his salary scale, is null and void and of no effect wahtsoever and as being contrary to the provisions of the Constitution or contrary to the decision of the Supreme Court in the said recourse No. 132/63 and/or as having been made in excess and/or in abuse of powers.

According to the opposition filed by

the respondent on December 24, 1966, the vacant posts in the Department of [*612] Lands and Surveys were to be filled early

in 1962 and on the 23rd February, 1962, interviews were actually held for the filling of vacancies including the vacant post of Lands Officer in Limassol. At the aforesaid interviews, Mr. G. S. Kontopoullos was found to be better qualified and more suited than the applicant for the filling of the vacant post of Land Officer. The vacant posts were not filled in 1962 owing to the impending re-organization in the Department. The earliest date as from which an appointment to the post of Land Officer in Limassol could be made was the 1st January, 1962.

On November 22, 1968, the trial Court, after dismissing the application of the applicant, had this, inter alia, to say (1968, 11 p. 1248 at p. 1254): -

"With regard to the two particular grounds as a result of which the original decision was annulled, i.e. the question of increments and that of the retrospective promotion, it is quite clear both from the minutes of the meeting at which the decision complained of was taken (exhibit 1) and the letter by means of which the decision was communicated to the applicant (exhibit 8) that the Commission paid due regard to both these matters before taking their new decision."

"It has been stated time and again and it is hardly necessary to repeat it that this Court [*613] will not interfere with a decision of the Commission by substituting its own discretion for that of the Commission, and so long as a

decision of the Commission was reasonably open to it, on the material before it, the Court will confirm that decision, even if in exercising its own discretion on the merits it could have reached a different conclusion."

Counsel on behalf of the appellant has mainly contended that the respondent had failed to consider the particular merits of applicant's claim to a retrospective promotion.

With great respect to counsel's argument, I find myself unable to agree with him, because it appears that this matter was considered by the Public Service Commission and reasons were given in the minutes dated July 5, 1966, (exhibit 1). Furthermore, it is clear from the letter (exhibit 8) addressed by the Commission to the applicant, that he was granted one increment above the initial salary of the scale of the post of Lands Officer, as from the date of his promotion, thus minimising in effect the decision not to promote the applicant retrospectively as from January 1962, which, as counsel for the respondent alleged, was the earliest date a promotion could be made. I would, therefore, dismiss this contention of counsel.

As regards the contention of counsel that the Public

Service Commission exercised its discretion wrongly, [*614] because they failed to take into account all relevant factors

before them and to direct their mind to the correct or proper criteria, I would state that I find myself in agreement with the trial Judge that the Commission, having given regard to all the relevant material before it in the case in hand, has neither failed to exercise rightly its discretionary power under Article

125 of the Constitution in promoting the applicant as from January 1, 1963, nor did it act in excess or abuse of its discretionary power. I would, therefore, dismiss also this contention of counsel.

The next complaint of counsel is that the learned trial Judge has failed to consider in his judgment his submission that the decision of the respondent was contrary to paragraph 1 of Article 192 of the Constitution, and the Colonial Regulations 33 and 34.

I have had occasion to consider paragraph 1 of Article 192, and I have reached the view that these provisions do not cover the case of the applicant, because he was holding the post of Land Officer prior to the coming into force of the Constitution, in an acting capacity only. In fairness, however, to counsel, he has also conceded in argument that he had never put forward the suggestion that the applicant had a vested right to promotion because he was acting in that capacity.

As regards the effect of Colonial Regulations 33 and 34, in construing them, we should read them in conjunction with Colonial Regulations 35 and 36. When they are [*615] so read, it becomes abundantly clear that Colonial Regulations 33 and 34 regulate the question of the payment to a public officer, who is acting in a vacant office, of the "salary" if available, of such vacant office, and that the said regulations do not confer a right on a public officer to retrospective promotion in the circumstances of this case.

Finally, counsel has contended that the decision of the Public Service Commission was discriminating and, as such, was contrary to Article 28 of the Constitution.

I am in agreement with counsel that the Commission possibly did not deal with the appointments and promotions of each department at the same time; but, nevertheless, in view of the pending re-organization of the Lands and Surveys Department, the delay, in my view, was not of such a nature as to create discrimination against the applicant. In any event, it is clear that the Commission, in effecting the promotion of the applicant and being fully conversant with all the facts of the case, granted an increment to the applicant retrospectively.

For the reasons I have endeavoured to explain, I am of the view, that the decision of the respondent is not contrary to any of the provisions of the Constitution or of any law, nor is it made in excess or in abuse of powers. I would, therefore, affirm the judgment of the learned trial Judge and dismiss the appeal.

With regard to the question of costs, I am inclined to agree with counsel for the appellant that the trial Court [*616] has erred in awarding costs in favour of the respondent, because of the long time the Commission took to decide the promotion of the appellant. I would, therefore, set aside the order of the trial Court for costs and make no order

as to costs in this appeal. C/F George S. Contopoullos and the Republic of Cyprus through the Public Service Commission, 1964 C.L.R. 347 at pp. 352 and 353.

VASSILIADES, P.: I agree that the recourse fails; and that it was rightly dismissed by the learned trial Judge for the reasons stated in his judgment. I would dismiss the appeal.

I also agree that in the circumstances of this case, there should be no order for costs against the appli cant in the recourse throughout; and I would vary the trial' Judge’s order accordingly.

TRIANTAFYLLIDES, J.: I agree, too, with the outcome of this appeal; as well as with the order for costs already proposed.

I must say, however, that I did not feel entirely happy with the weight given by the Public Service Commission to the situation regarding promotions in February, 1962, which actually never materialized; but, having given the matter my anxious consideration, I did not reach the conclusion that such situation was an extraneous factor or that so very disproportionate weight was given to it as to make me take the view that on this ground the sub judice decision of the Commission should have been annulled. [*617]

JOSEPHIDES, J.: I agree and have nothing to add.

STAVRINIDES, J.: Whether the appellant's promotion should have been made retrospectively, and if so as from what date, and whether he should have been granted any increment were matters within the discretion of the Public Service Commission, and no reason has been shown why the exercise of that discretion should be interfered with. On this ground I agree that the appeal should be dismissed. I also agree that no order should be made regarding the costs of the appeal.

VASSILIADES, P.: In the result this appeal is dismissed, subject to the trial Judge's order as to costs being set aside; and we make no order as to costs in this appeal.

Appeal dismissed.

No order as to costs of

the appeal. Trial Judge's

order as to costs set aside.