Supreme Court annuls promotion due to Public Service Commission's failure to evaluate disciplinary offence nature properly.

[*1428] 1971 November. 2nd

(TRIANTAFYLLIDES, P., STAVRINIDES, L. LOIZOU,

HADJIANASTASSIOU, MALACHTOS, JJ.)

APPELLATE JURISDICTION

Georghios Gavriel,

Appellant,

and

The Republic of Cyprus, through

1. The Public Service Commission,

2. The Director of the Department of Lands & Surveys,

Respondents.

(Revisional Jurisdiction Appeal No.83).

Public Service Law 1967 (33/67) Public Service Commission

Considering Public Officers for promotion and applying section 44(1)(d) of the Law It should evaluate itself the nature of a disciplinary

offence when, in applying the said section, it decides on the eligibility for promotion of a public officer In the instant case Respondent Commission was unduly influenced by the nature of the punishments imposed and has not discharged properly its duty of evaluating itself the nature of the disciplinary offences in respect of which the interested party had been punished Moreover the Commission was not in a position to duly discharge its said duty because it had not before it the relevant salient facts Sub judice promotion annulled on this ground.

Administrative Law Public Officers Promotions – Public Service Law 1967 (33/67) Failure of Respondent Commission to act duly in accordance with section 44( 1) (d) of the Law Administrative process by means of which the promotion of the interested party was made vitiated because of such failure.

Public Officers Suitability for promotion Section 44(1)(c) of the Public Service Law 1967 (33/67)-Appellant not "unsuitable for promotion" within the meaning of the said section.

L. Papaphilippou with K. HjiMarcou, for the Appellant.

L. Loucaides, Senior Counsel of the Republic,for the Respondents.

L. Clerides for Interested Party G. HjiPanayiotou.

JUDGMENT

The judgment of the Court was delivered by:

TRIANTAFYLLIDES, P.: The appellant appeals from a first [*1429] instance decision* of a judge of this Court by virtue of which there was dismissed his recourse (No. 373/70) against the promotion by the respondent Public Service Commission of George HjiPanayiotou the interested party to the post of Senior Surveyor in the Department of Lands & Surveys.

The main ground of appeal is that in treating the interested party as eligible for promotion the respondent contravened section 44 (1)

(d) of the Public Service Law, 1967 (33/67) whereby it is provided that no public officer shall be promoted unless "he has not been punished during the preceding two years for any disciplinary offence of a serious nature".

It is not in dispute and it emerges clearly both from the personal file of the interested party and from the confidential reports file regarding such party which were before the respondent Commission at the material time that during the two years previous to his sub judice promotion the interested party was on two occassions punished disciplinarily under sections 80(a) and 81 af Law 33/67; i.e. summarily by the appropriate hierarchically superior authority and not by the respondent Commission under section 82 of the said Law: On the 7th May, 1969, and on the 27th January, 1970, he was severely reprimanded for gross negligence and indifference in the execution of his duties.

We are in agreement with the view of counsel for the appellant and for the respondent (with which counsel for the interested party did not, really, disagree) that [*1430] it is for the respondent Commission to evaluate itself the nature of a disciplinary offence when, in applying section 44( 1) (d), it decides on the eligibility for promotion of a public officer.

In our view rightly the Public Service Commission was entrusted by law with such task because it is thus rendered feasible to guard against not only the possibility of insufficient punishment having been meted out for a serious offence but, also, against the possibility of too severe punishment having been meted out for a non-serious offence,

As it appears from the relevant minutes of the respondent Commission of the 27th October, 1970 the Commission treated on that date the interested party as being eligible for promotion because it took the view, after having "considered the two punishments" imposed on the interested party "during the last two years", that "the punishments in question were not of a serious nature and, therefore, he could be considered for promotion in accordance with section 44(1)(d) of Law 33/67". It is, thus, quite clear that the Commission was unduly influenced by the nature of the punishments imposed and it did not discharge properly its duty of evaluating itself the nature of the disciplinary offences in respect of which the interested party had been punished. Moreover, the Commission was not in a position, at all, to duly discharge its said duty because all that it had before it in this connection were copies of two letters, dated the 7th May, 1969 and [*1431] the 27th January, 1970, respectively, in each of which there were stated only the disciplinary charge against the interested party, the fact that he had been found guilty in respect thereof, after an inquiry had been carried out by a departmental committee, and that he had been punished by being severely reprimanded; the Commission did not have before it the salient facts in relation to each of the two occasions in question and, therefore, it knew nothing of the circumstances in which the interested party had, on each such occasion, been found guilty of having been grossly negligent and indifferent in the execution of his duties.

It is not necessary for the purpose of deciding the present case to lay down to what extent the respondent Commission should inquire into the facts constituting a disciplinary offence (which has been dealt with summarily by another organ) before deciding whether it is of "a serious nature", in the sense of section 44(1) (d) of Law 33/67; but we have no difficulty in holding that in this case the Commission should at least have asked to be furnished with the reports of the departmental committees which are referred to, respectively, in the afore-mentioned two letters.

Consequently the administrative process by means of which the promotion of the interested party was made is vitiated because of the failure of the respondent Commission to act duly in accordance with the provisions of section 44(1)(d) and, therefore, such promotion has to be declared null and void and of no effect whatsoever. [*1432]

In view of this we do not have to pronounce on the other ground of appeal to the effect that there has been a contravention of section 44(1)(c) of Law 33/67 because the interested party was treated as eligible for promotion though in respect, at least, of one out of the two immediately preceding years he was described in confidential reports as unsuitable for promotion. In relation to the provisions of section 44(1)(c) we have, however, to deal with an issue which has been raised by counsel for the interested party, viz. that from confidential reports regarding the appellant it appears that he was not eligible for promotion, in the light of section 44(1) (c), and, that, therefore, he had no legitimate interest entitling him to make a recourse: This issue cannot be decided in favour of the interested party as we are not prepared to say that there is anything in the confidential reports in question which amounts to reporting that the appellant was "unsuitable for promotion" within the meaning of section 44(1)(c).

In the light of the foregoing this appeal is allowed, As there has been made no order as to costs by the trial judge and in view of the fact that the legal issue on which the case has been determined is a novel one we do not propose to make any order as to the costs of this appeal.

Appeal allowed.

No order as to costs.

* Published in

(1911) 6 J.S.C. 846.