Supreme Constitutional Court voids Public Service Commission appointment for abuse of power and ignoring department head recommendation.

[*44] 1961 October 27

(forsthoff, p., triantafyllides and munir, jj.)

(October 6, 27, 1961)

Michael Theodossiou,

And

The Republic of Cyprus, Through the Public Service Commission, an Independent Organ of the Republic.

(Case No. 9/61)

Promotion — Supreme Constitutional Court cannot by its own decision promote an applicant.

Public Service Commission — Appointments and promotions — Paramount duty, the selection of the most suitable candidate — Totality of circumstances pertaining to qualified candidates — Equal qualifications — Length of service not always the decisive criterion — Recommendation of Head of Department a most vital consideration not to be disregarded — Reasons for ignoring Head of Department’s recommendations to be clearly recorded — Abuse of power.

The Applicant together with 3 other Mental Nurses, including a certain Michael Lazarou, were interviewed by the Public Service Commission with a view to filling the vacant post of Mental Nursing Superintendent. The Applicant had a better education and higher academic qualifications than M. Lazarou who, however, had the longer service in the Mental Hospital. The Head of the Department recommended for promotion the Applicant.

The Public Service Commission on the 27th January, 1961, appointed Michael Lazarou to the said post ; the Applicant filed the present application on the 24th February, 1961.

Held : (a) In the circumstances of this case, the Court could not by its own decision promote the Applicant to the said post (Theodhoros G. Papapetrou and The Republic (Public Service Commission)). 2 R.S.C.C. letter D p. 62, applied) ;

(b) the Public Service Commission in effecting appointments or promotions should select the most suitable candidate for the particular post, having regard to the totality of circumstances pertaining to each one of the qualified candidates, including length of service which, though always a factor to be considered, was not always the exclusive vital criterion for such appointment or promotion ;

(c) the recommendation of a Head of Department, or other senior responsible officer, especially where specialised knowledge and ability were required, was a most vital consideration not lightly to be disregarded. If the recommendation could not be acted upon then the Head of Department, or other officer concerned should be invited by the Public Service Commission to explain his views before it ; and, if, nevertheless, the Public Service Commission still felt it could not act on such recommendation, [*45] the reasons for not so acting should be clearly recorded in the minutes of the Commission, for the protection of the legitimate interests of the candidates concerned, Arts. 151 and 146 ;

(d) in this case the Public Service Commission acted in abuse of power.

Decision of the P.S.C. declared null and void.

Cases referred to:-

Theodhoros G. Papapetrou and The Republic (Public Service Commission), 2 R.S.C.C.

G.C. Tornaritis for the Applicant.

P.N. Paschalis, Counsel of the Republic, for the Respondent.

Cur. adv. vult.

October, 27. The Judgment of the Court was read by:

FORSTHOFF, P. : The Court declares—

The decision of the Public Service Commission of the 27th January, 1961, for the filling of the post of Mental Nursing Superintendent and any executive or administrative act which has taken place in consequence thereof are null and void and of no effect whatsoever.

The Public Service Commission at its meetings of the 23rd September, 1960, and 13th January, 1961, decided to allocate the vacant post of Mental Nursing Superintendent (male) to the Greek Community and to consider for promotion to such post the Mental Nurses at the Nicosia Mental Hospital.

The Public Service Commission called for interview on the 27th January, 1961, four Mental Nurses including the Applicant. On the same day it decided to appoint a Mr. Michael Lazarou to the said post who was one of the aforesaid Mental Nurses.

As from the 1st January, 1958, the Applicant, by interdepartmental direction, had been delegated and was performing most, though not all, of the duties of the post in question and was the only candidate who was strongly recommended for promotion to the said post by Dr. A. Mikellides, the Mental Specialist in charge of the Mental Hospital.

The Applicant had been sent in 1957 to the United Kingdom at Government expense on a post-graduate course [*46] in Nursing Organization and Administration and collateral subjects.

Both the Applicant and Mr. Lazarou possess the basic qualifications envisaged by the scheme of service for the post concerned i.e. they are both state-registered Mental Nurses and have experience in Mental Hospital administration. They both qualified as state-registered Mental Nurses on the same date and have both served as Mental Nurses at the Mental Hospital, Nicosia, for the same period of time. The Applicant has a better education and higher academic qualifications than Mr. Lazarou but the latter has longer service at the Mental Hospital having worked there as a Mental orderly prior to going to the United Kingdom together with Applicant in 1947 for a three-year course in order to qualify as a state-registered Mental Nurse.

This Application was filed on the 24th February, 1961.

By his motion for relief the Applicant claims (a) that the promotion of Mr. Lazarou to the post in question be annulled and (b) for a declaration that the Applicant is entitled to such promotion.

The Case came up for mention on the 22nd March. 1961, and the Opposition was filed on the 29th March, 1961. The main contention of substance in the Opposition is that the promotion of Mr. Lazarou was made on a proper exercise of the discretion of the Public Service Commission.

The hearing of the Case took place on the 6th October, 1961, and the Judgment has been reserved until to-day.

Mr. Lazarou, having been duly notified by the Court, appeared in these proceedings through counsel and took part therein for the protection of his interests.

Counsel for Respondent has submitted that claim (b) above is not a proper claim in as much as this Court cannot by its own decision promote the Applicant even if the promotion of Mr. Lazarou would be annulled by his Court. The Court, in the circumstances of this Case and in accordance with its Decision on Preliminary Legal Issues in Case No. 26/61*[1], is of the opinion that the aforementioned submission is a valid one.

Coming now to the issue of substance in this Case, it is not disputed that both the Applicant and Mr. Lazarou are both qualified, under the scheme of service, for the post in question.

There are two elements, however, which have led the Court to the conclusion that in this matter the Public Service Commission has taken the decision in question following a wrong principle and thereby defeating the object of its duty, i.e. the selection of the most suitable candidate, as well as the legitimate interests of Applicant in this matter. The two elements in question are —

(a) the fact that the Public Service Commission adopted as the only decisive criterion Mr. Lazarou’s longer career as a public officer in view of his service before 1947 as a Mental orderly at the Mental Hospital ; and

(b) the manner, not unconnected with (a) above, in which the recommendation of Dr. Mikellides, the Specialist in charge of the Mental Hospital, was disregarded.

In the opinion of the Court the paramount duty of the Public Service Commission in effecting appointments or ^ promotions is to select the candidate most suitable, in all the circumstances of each particular case, for the post in question.

In doing so, the Public Service Commission should f decide who is the most suitable among the qualified candidates f on the totality of the circumstances pertaining to each one j of them and should not adopt any ready-made rigid rule of thumb divorced from the circumstances and necessities of each particular case.

In the matter in question the

decision of the Public Service Commission was taken on a majority vote. One of the members of such majority, Mr. Ch. Michaelides, said in evidence that both the Applicant and Mr. Lazarou were considered to be equal in every respect regarding the required qualifications but that it was decided to promote Mr. Lazarou because of his overall longer service in Government due to his previous service, before 1947, as a Mental orderly at the Mental Hospital. He further stated that had it been the other way round and had it been Applicant who had the longest overall service then Applicant would have been promoted instead. He stated that it is the established practice followed by the Public Service Commission in cases of promotion to select the candidate with the longer service, provided he has the required qualifications, and that in making the promotion in question it was considered that the Public Service Commission was bound to adhere to such practice.

In all fairness to the Public Service Commission and to Mr. Michaelides himself, the Court has not based its decision on the mere forms of expression used by Mr. Michaelides in his evidence, but, nevertheless, the substance of such evidence [*48] established that in this matter the Public Service Commission proceeded to resolve the difficult issue of choosing the most suitable candidate for promotion to a post requiring specialized knowledge and ability not by weighing fully till the very end all the qualifications of each candidate until it reached the decision that one of them was on the whole the most suitable, but by adhering to the wrong principle that longer service was in any case the determining factor. It is true that length of service is always one of the factors to be considered but it is not proper to treat such factor exclusively as the vital criterion always entitling to promotion the one candidate, among many qualified ones, who possesses such longer service.

Furthermore, it appears that the above course followed by the Public Service Commission prevented it from giving due weight to the recommendation of Dr. Mikellides, the Specialist in charge of the Mental Hospital, because it felt that once both Appliant and Mr. Lazarou were both qualified under the scheme of service then it had to promote the one with the longest service.

In the opinion of the Court the recommendation of a Head of Department or other senior responsible officer, and especially so in cases where specialized knowledge and ability are required for the performance of certain duties, is a most vital consideration which should weigh with the Public Service Commission in coming to a decision in a particular case and such recommendation should not be lightly disregarded. If the Public Service Commission is of the opinion that for certain reasons such recommendation cannot be adopted then as a rule such Head of Department or other officer concerned should be invited by the Public Service Commission to explain his views in order that the Public Service Commission may have full benefit thereof, a course which has not been followed in this case.

If, nevertheless, the Public Service Commission comes to the conclusion not to follow the aforesaid recommendation it is to be expected for the effective protection of the legitimate interests, under Article 151 in conjunction with Article 146 of the Constitution, of the candidates concerned, that the reasons for taking such an exceptional course would be clearly recorded in the relevant minutes of the Public Service Commission. Failure to do so would not only render the work of this Court more difficult in examining the validity of the relevant decision of the Public Service Commission but it might deprive such Commission of a factor militating against the inference that it has acted in excess or abuse of power.

For the above reasons this Court is of the opinion that the decision in question of the Public Service Commission [*49] was taken in abuse of the powers of the Public Service Commission under the Constitution and, therefore, it must be declared null and void and of no effect whatsoever.

It is up to the Public Service Commission now, in the light of the Judgment of this Court, to consider the whole matter, not excluding any of the qualified candidates for promotion to the post of Mental Nursing Superintendent, and to decide which of them is the most suitable and best qualified for promotion to such post.

[1] *Theodhoros G. Papapetrou and The Republic (Public Service Commission), 2 R.S.C.C., letter D p. 62. [*47]