Court dismisses appeal against promotion decision where discretionary powers were exercised without adequate reason.

[*1141] 1973 September 22

(TRIANTAFYLLIDES, P.)

REVISIONAL, JURISDICTION

In the matter of Article 146 of the Constitution

Nicos Constantinides,

Applicant,

and

The Republic of Cyprus, through

The Public Service Commission,

Respondent.

(Case No. 235/70).

Public Officers - Promotions - Post of Veterinary Inspector 2nd grade - Applicant and interested party of equal seniority in the immediately lower grade tout applicant with less practical training in the Veterinary Department, as required by scheme of service - Applicant better educated but interested party superior in merit - No adequate reason established to the satisfaction of the Court enabling it to interfere with the exercise of the relevant discretionary powers of the respondent Commission.

Public Officers - Promotions - Veterinary Inspector 2nd grade - Difference in duration of the secondary school education of applicant and interested party - Cannot have a decisive effect in relation to the decision as to who out of them was to be selected in view of the qualifications required by the scheme of service.

Public Officers - Promotions - Head of Department - Recommendations - Special recommendation attached to the annual confidential report - Pact that appropriate form was not used cannot in the particular circumstances of this case be regarded as an irregularity of a material nature justifying the annulment of the sub judice decision.

Public Officers - Promotions - Veterinary Inspector 2nd grade - Interview of candidates - Not necessary unless there is a provision requiring the Commission to do so - Respondent Commission had otherwise before it all necessary material enabling it to select the best candidate. [*1142]

Public Officers - Promotions - Head of Department – Oral recommendation before Public Service Commission - Adequate recording of - Parteilides v. Republic. (1970) 3 J.S.C. 246 distinguished.

Public Officers - Promotions - Veterinary Inspector 2nd grade - Performing by applicant of the duties of the post prior to the sub judice promotion - Whether a factor that can lead to the annulment of such promotion.

Interview of candidates - Public officers - Promotions - See, also, under "Public Officers".

Head of Department - Oral recommendations before Public Service Commission - Adequate recording of - See, also, under "Public Officers".

L. Papaphilippou, for the Applicant.

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

JUDGMENT

The following judgment was delivered by:-

TRIANTAFYLLIDES. P. : By this recourse [*1143] the applicant challenges the validity of a decision of the respondent Public Service Commission, which was taken at its meeting on the 3rd July, 1970 (see exhibit 4), and by virtue of which Pantelis Photiades (to be referred to hereafter as the interested party) was seconded to the temporary post of Veterinary Inspector, 2nd grade, with effect from the 1st August, 1970.

The post of Veterinary Inspector, 2nd grade, is a promotion post, as it appears from the relevant scheme of service (see exhibit 3).

The qualifications required for promotion to such post are:

"Practical training in the Veterinary Department coupled with some years’ experience. The possession of a certificate of the Royal Society of Health or Cyprus Pharmaceutical Chemistry Certificate or Certificate of Special Training in a branch of Veterinary Science, plus a good knowledge of English is desirable".

It is common ground that both the applicant and the interested party had equal seniority in the immediately lower post of Permanent Veterinary Assistant, having been appointed thereto on the 1st July, 1966. An examination, however, of a comparative table showing the length of public service and the qualifications of the applicant and the interested party (see exhibit 1) reveals that the interested party was already in the Department concerned on the 1st January, 1957, in the capacity of a Veterinary Foreman, [*1144] whereas the applicant joined the Department much later, on the 1st November, 1961; therefore, it is useful to hear in mind, in view especially of the qualifications required under the scheme of service for the post of Veterinary Inspector, 2nd Grade, that the applicant had, at the material time, less practical training in the Veterinary Department than the interested party. It is, also, common ground that neither of the two public officers involved in these proceedings possessed any of the academic qualifications described as "desirable" in the relevant scheme of service.

As regards general education the applicant was better educated than the interested party, because the applicant graduated from the Paphos Gymnasium, after receiving there the usual six years' secondary education, whereas the interested party had only three years' secondary education, two of which were at the Pancyprian Gymnasium in Nicosia and the other one at a secondary education school in Famagusta.

As it appears from the relevant minutes of the respondent Commission (exhibit 4) "the Commission, after considering the merits, qualifications, experience and seniority of all the officers holding the post of Veterinary Assistant, as reflected in their Annual Confidential Reports, and bearing in mind the views expressed by Mr. Polydorou on each one of them, decided by majority of 3 votes to 1 (Mr. Y. Louca dissenting)" that the interested party be seconded to the post concerned.

Mr. Polydorou, the Director of the Department of [*1145] Veterinary Services, was present at the meeting in question of the Commission.

It is, also, recorded in the minutes of the Commission that "Mr. Louca preferred" the applicant to the interested party "because the former was better qualified than the latter"; then, it is stated in the minutes that Mr. Polydorou, agreed with the secondment of the interested party to the post of Veterinary Inspector, 2nd Grade, and added that the interested party was better than the applicant and, that although the interested party had less educational qualifications than the applicant yet the interested party was considered to be an excellent officer.

Prior to the hearing of the case, and so before the aforementioned minutes of the respondent Commission were produced at such hearing, it had been directed - because of an allegation in paragraph 4 of the Opposition to the effect that the Commission had taken into account the views expressed by Mr. Polydorou - that counsel for respondent should file a statement, signed by the Chairman of the Commission or any member thereof, setting out in a summary form the said views of Mr. Polydorou regarding the applicant and the interested party. A statement was filed, signed by Mr. Y. Louca, who had acted as Chairman of the Commission at its meeting of the 3rd July, 1970; it was stated therein that it could not be recollected what took -lace at that meeting and reference was made to the views of Mr. Polydorou recorded in the minutes of the Commission in relation to the comparison between the applicant and the interested party. [*1146]

It is quite clear that had a copy of the minutes of the Commission been appended to the Opposition no direction would have had to he made for the filing of a statement setting out the views expressed by Mr. Polydorou regarding the applicant and the interested party, because such views could be found in the contents of the minutes.

As stated in its minutes, the respondent Commission examined

the merits of the applicant and of the interested party on the basis of the annual confidential reports made in relation to then (to be referred to

hereafter as the "reports")

. The most recent reports were, at the material time, those in respect of the years 1967-969; they show that the interested party was, during

those years, better on the

whole than the applicant. In this connection there should be noted, inter alia, that the last available reports (for 1969) which are both countersigned by

the Head of the Department,

Mr. Polydorou, indicate, on comparison, the superiority of the interested party and that, though the immediately previous reports (for 1968)

tend to show that both the applicant and the interested party were of equal merit there was attached to the report concerning the interested party a special recommendation praising in very striking terms the interested party and stressing that "judging him from his knowledge, ability and work" it could easily be said "that he performs duties higher than he is obliged to by his rank". It is to be noted, moreover, that the interested party was recommended for promotion in the report in respect of 1967, whereas no such recommendation was made in relation [*1147] to the applicant by any of the reports concerning him.

Before dealing with another aspect of this case I would like to say that I find no merit in the contention of counsel for the applicant the t the respondent Commission erred in taking into account the aforesaid special recommendation which was attached to the report about the interested party in relation to 1968; counsel submitted that though this recommendation is headed "Special Confidential Report" it was not written in the appropriate form for such kind of report; in my view such recommendation was, in fact, intended to record observations which could not he recorded in the appropriate part of the report - to which it was attached - due to lack of space: Even if it were to be treated as a special confidential report the fact that the appropriate form was not used cannot, in the particular circumstances of this case, he regarded as an irregularity of a material nature justifying the annulment of the sub judice decision on this ground.

Counsel for the applicant has submitted, also, that as the interested party had not graduated from a secondary school he should not have been treated as having any educational qualification in this respect, I cannot share this view, I am of the opinion that three years' secondary education is education of quite some value though, of course, of less value than the full six years’ secondary education. So, it could not, and should not, have been completely ignored; further, in view of the qualifications required by the relevant scheme of service, which are, primarily, "practical training [*1148] in the Veterinary Department coupled with some years experience"; it cannot be held that the difference in duration of the secondary school education of the applicant and the interested party should have had a decisive effect in relation to the decision as to who out of them was to be selected by the Commission; obviously the said difference in secondary school educational qualifications was duly borne in mind both by the Commission and the Head of the Department concerned - as it appears from the minutes of the Commission - and it has been weighed together with all other factors.

Nor do I find any substance in the submission of counsel for the applicant that, in the circumstances of this case, it was necessary for the Commission to interview the applicant and the interested party:

Unless there is a provision requiring the Commission to adopt a certain course it is up to the Commission to regulate, on each occasion, its proceedings in a manner compatible with the due exercise of its discretionary powers.

In the present instance there did not exist any provision requiring the Commission to interview the two candidates in question; and, in my opinion, it cannot be held that the fact that it did not interview the said two candidates was a course which was inconsistent, in the circumstances, with the due exercise by it of its discretionary powers; as it had the opportunity to hear the views of the Head of the Department concerned and, also, it had before it the relevant annual confidential reports, it was sufficiently in a position to exercise duly its relevant powers and decide accordingly. [*1149]

The reason which prevented the Commission from reaching a unanimous decision in favour of the interested party was the dissenting view of one of its members? to the effect that the applicant should be preferred because he was better qualified than the interested party; in my view it was not essential to interview the applicant and the interested party in order to deal with this point of disagreement, because the Commission had otherwise before it all necessary material enabling it to choose the, on the whole, better candidate; this was not an instance in which the Commission had to choose the person to be appointed from amongst applicants who were not already in the service, who were unknown to the Head of the Department, and in respect of whom there did not, therefore, exist annual reports (see, in this connection, Petsas and The Republic, 3 R.S.C.C. 60, and Christofi and The Republic, (1967) 3 C.L.R. 615).

It has, also, been submitted that there exists lack of due reasoning for the sub judice decision as there do not appear in the minutes of the Commission the views of the Head of the Department, Mr. Polydorou, regarding each candidate and, in particular, regarding the two public officers involved in these proceedings. I cannot accept this submission as a correct one: The reasons for the sub judice decision were stated fully in the said minutes of the Commission, and the views of hr. Polydorou were only one of the factors taken into account; though, indeed, all his views were not recorded, there can be, in my opinion, no doubt that his comments, made when agreeing with the selection [*1150] of the interested party instead of the applicant (as recorded at the end of the minutes of the Commission), indicate with sufficient certainty what views he expressed, at an earlier stage of the same meeting of the Commission, regarding the said two candidates.

It is correct, as counsel for the

applicant has pointed out, that in Partellides and The Republic, (1970) 3 J.S.C. it was stated (at p. 250) - in relation to ”a general statement” in the minutes of

the Public Service Commission that it made two promotions bearing in mind, inter alia, the oral recommendations of the Head of the Department concerned - that "in the opinion of the Court, without these recommendations being adequately recorded in the said minutes, so as to enable this Court to examine how and why it was reasonably open to the respondent to act upon them, notwithstanding the greater seniority of the appellant and the equally good confidential reports, such a general statement in the minutes of the respondent, as aforesaid, cannot have the effect of rendering the promotion of the interested party Gregoriades one which can be treated as having been properly decided upon in the exercise of the particular powers of the respondent".

It is obvious from the above passage from the judgment in the Partellides case that such case is distinguish able from the present one: First, in the present case the minutes of the Commission contain, in addition to a "general statement" that the views of the Head of Department were borne in mind, a specific statement indicating his views [*1151] about, the applicant and the interested party; secondly, Partellides case the applicant - later the appellant in the relevant proceedings - had greater seniority than the interested party, and the respective annual confidential reports about, them were equally good, whereas in the present case the applicant and the interested party had equal seniority and the confidential reports show, as all ready stated, that the interested party was on the whole better than the applicant.

It is, also, very useful to note that in the Partellides case the Court interfered with only one of the two sub judice promotions; it did not annul the other interested party’s promotion because that party had equal seniority with the applicant and it was clear, from a comparison of their qualifications and confidential reports, that the Commission was entitled to make his promotion.

Nor can it be held - as submitted by counsel for the applicant - that, in the state in which the minutes of the Commission are, this Court is not able in the present case to examine the propriety of the decision challenged by the applicant: I am of the opinion that, for the reasons given in distinguishing the present case from the Partellides case, there is sufficient material before me enabling me to reach the conclusion, after due examination, that the Commission acted in a manner which was reasonably open to it, when it selected the interested party instead of the applicant.

Another submission of counsel for the applicant – [*1152] who has used all his ingenuity in arguing this case - was that the respondent Commission was not informed that as from September, 1968, the applicant had been assigned duties of Veterinary Inspector, which be was still performing at the material time. As it appears from a relevant letter dated 24th September, 1968 (see exhibit 5) such duties were, indeed, assigned to the applicant by the District Veterinary Officer in Paphos, as the applicant was at the time the senior employee of the Veterinary Department in the Paphos District; they were not, therefore, assigned to him after he had been selected as the best out of all other officers holding at the time the same substantive post as he, but only on the ground of his seniority in the particular District where he was working.

It is not correct that this assignment of duties was a fact about which the respondent was not informed; on the contrary, it was clearly stated by the applicant himself when describing his duties in the process of filling in the part of the annual confidential reports for 1968 and 1969 which had to be completed by him; and these reports were before the respondent.

The performing by the applicant of duties of the post of Veterinary Inspector, 2nd Grade - to which he was not, eventually, seconded - is not a factor which can be treated as being of so decisive weight as to lead me to annul, on this ground, the sub judice decision of the Commission; particularly, as the assignment of such duties to him had not been made due to superior merit but only [*1153] because of seniority in a District; it cannot be held that it was not reasonably open to the Commission not to select the applicant for secondment, to the post of Veterinary Inspectors, 2nd Grade, after he was compared with all the other officers in his Departments, who could be so seconded, and when , another such officer (the interested party) was .found to be more suitable.

Lastly, it has been alleged by counsel, for the applicant that the applicant is much more experienced than the interested party in all aspects of veterinary work: but as. this allegation has not been substantiated during the proceedings it. cannot influence their outcome.

For all the foregoing reasons this recourse has to be dismissed; this is a case in which there has not been established to my satisfaction any adequate reason for interfering with the exercise of the relevant discretionary powers of the respondent Commission; I cannot substitute my own discretion for that of the Commission (see, inter alia, Uludag and The Republic. 3 R.S.C.C. 131, Christou and The Republic, 4 F.S.C.C, 1, Lardis and The Republic

(1967) 3 C.L.B. 64, at p. 75, Kyprianides and The Republic,

(1968) 11 J.S.C. 1248, at p,

1255, Christou and The Republic, (1969) 2 J.S.C. 155, at p, 166, Pierides and The Republic, (1971) 7 J.S.C. 940, at p. 962),

Though this recourse has failed I do not think that it was a case which was not a proper one for. being placed before the Court for determination and, thus, I shall not make any order as to costs against the applicant.

Application dismissed.

No order as to costs.