Court dismissed promotion appeal where senior applicant lost due to superior confidential reports and departmental recommendations.

[*571] 1973 May 31

(L. LOIZOU J.)

REVTSIONAL JURISDICTION

In the matter of Article 146 of the Constitution

George Synnos,

Applicant,

and

The Republic of Cyprus, through

The Public Service Commission,

Respondent.

(Case No. 81/71).

Public Officers - Promotions - Post of Labour Officer 2nd Grade - Interested Party recommended as suitable for promotion by his Head of Department and his confidential reports on the whole superior to those of those Applicant - Applicant not recommended by his Head of Department Recommendations of the Head of Department cannot be lightly disregarded but have to be taken into very serious consideration - Seniority although one of the factors to be considered is not by: any means the exclusive nor indeed the most vital criterion – Respondents have not acted in abuse or in excess of their powers or in any way improperly or unlawfully and there is nothing to warrant interference by the Court with their decision.

E. Odysseos, for the Applicant.

S. Nicolaides, Counsel of the Republic, for the Respondent.

JUDGMENT

The following judgment was delivered by: -

L. LOIZOU. J.: The Applicant, a Labour Officer [*572] 2nd Grade, by this recourse challenges the validity of the decision of the Public Service Commission to promote the Interested Party to the post of Labour Officer, 1st Grade and seeks a declaration that such promotion in preference and instead of himself is null and void and of no effect whatsoever.

The ground of law upon which the Application is based is that the decision complained of was taken in abuse anchor in excess of powers and/or contrary to the principles of administrative law in that the Applicant was, having regard to his qualifications, merits and seniority, superior to the Interested Party and that the Respondents failed to properly and adequately evaluate such qualities and, therefore, disregarded his superiority.

The decision complained of was taken on the 24th November, 1970, and at the request of the Commission the Director-General of the Ministry of Labour and Social Insurance was present at the meeting and informed the Commission on the merits of the candidates. The minutes of the meeting have been produced in evidence and are exhibit 2 in these proceedings. It appears from such minutes that out of the candidates for promotion - the establishment of Labour Officers, 2nd Grade, consisted of 37 officers - only three were recommended as suitable for promotion and of those three the Interested Party was given first priority. In fact he was described to the Commission as the most brilliant and the most intelligent Labour Officer, 2nd Grade. It may be added here that the Applicant was not included among the [*573] three candidates recommended for promotion although he was senior to all three and also that of the three recommended the Interested Party was the most junior.

The qualifications and the confidential reports of all the candidates were also before the Commission and those of the Applicant and the Interested Party have been produced in evidence and are exhibits 1 and 4 and 5 respectively. It appears from the confidential reports that up to about four years prior to the relevant time the Interested Party's confidential reports were good, then for two years they somewhat deteriorated and then again, after the Head of his Department had a word with him, his performance improved and his last two confidential reports are very good. Looking at the confidential reports of the Applicant it would appear that his qualities for several years prior to 1970 were rated as "satisfactory” and his intelligence as "average”. But all along he is described as lacking ability to co-operate with his colleagues. His last report for the year 1970 is better than his previous reports in so far as the assessment of his abilities is concerned but his inability to co-operate with his colleagues is still stressed.

I think it is abundantly clear that the Interested Party's confidential reports are on the whole superior to those of the Applicant. Regarding the qualifications of the parties it appears from exhibit

1 that they both have graduated secondary schools and the Applicant has the C.C.E. in some subjects and the G.C.E. "0" level in three of those subjects. [574] The Interested Party on the other hand has had a short course on "apprenticeship schemes" in the U.K.

Reverting now to the recommendations of the Director-General of the Ministry I think it is now well settled that such recommendations cannot he lightly disregarded hut have to be taken into very serious consideration (see e.g. Theodossiou and The Republic, 2 R.S.C.C., p. 44) and it should be pointed out that there is no suggestion that the recommendations in the present case were prompted from any oblique motives or other improper considerations.

The decision, the subject of this recourse, is a matter within the competence and discretion of the Respondent Commission and in exercising their discretion they must have regard to all relevant matters such as the merits, qualifications, seniority, experience and recommendations, if any, of each candidate and must consider all these matters as a whole. It has been stressed time and again that seniority although naturally one of the factors to be considered is not by any means the exclusive nor indeed the most vital criterion.

On the material before me I am satisfied that the Respondent; have not acted in abuse or in excess of their powers or in any way improperly or unlawfully and in my view there is nothing to warrant interference by this Court with their

decision.

In the result this recourse must fail. In all the circumstances I have decided to make no order as to costs.

Recourse dismissed.

No order as to costs.