Court dismissed appeal, ruling 'practical experience' includes duties closely connected to budget preparation.

[*72] 1961 October 27

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

(October 5, 27, 1961)

Ninos

P. Josephides,

And

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

(Case No. 27/61)

Government Budget — Meaning of — Practical experience, meaning of.

Schemes of service — To be reasonably interpreted.

The Applicant, an Administrative Assistant, 2nd Grade, applied for appointment to the post of Budgeting Officer for which applications were invited on the 25th January, 1961. The Public Service Commission after interviewing the Applicant, as well as 2 other candidates, decided to appoint C. Nicolaides to the vacant post, and informed the Applicant that it had not been found possible to select him for appointment to the post in question.

The Applicant filed his recourse to this Court on the 13th April, 1961.

Held : (a) the expression “Governmental Budgets” appearing in the relevant scheme of service, when read in the context in which it was used as a whole, meant the Annual & Supplementary Budgets of the Republic or of the former Colony of Cyprus, or of Central Government Budgets generally and not Departmental Budgets ;

(b) “practical experience” in this particular case did not mean experience gained only in the course of the actual preparation of “Governmental Budgets” in the Ministry of Finance, but covered experience gained in performing duties closely connected therewith.

The Application was dismissed.

Cases referred to :- [*73]

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 Public Service Commission.

Cur. adv. vult.

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

FORSTHOFF, P. : The Court declares—

This Application cannot succeed and is dismissed accordingly.

The Applicant, who is the substantive holder of the post of Administrative Assistant, 2nd Grade, has been in the public service since 1928.

On the 1st June, 1955, the Applicant was appointed as an Assistant Secretary in the then Financial Secretary’s Office of the Government of the former Colony of Cyprus and on the 2nd August, 1959, he was appointed as Assistant Secretary in the Ministry of Finance. On the 8th December, 1959, the Applicant was appointed as Acting Administrative Officer in the Ministry of Finance and he served in that capacity until the 21st February, 1961.

During the aforesaid period between the 1st June, 1955, and the 21st February, 1961, the Applicant has been associated with the preparation of the Budget.

The new post of Budgeting Officer was created by Law 13 of 1960.

The scheme of service in respect of the new post of Budgeting Officer (Exhibit 5) was approved by the Council of Ministers by its Decision No. 504 of the 9th February, 1961, (Exhibit 6).

Applications for the new post of Budgeting Officer were invited by Notification No. 61 published in the official Gazette No. 36 of the 28th January, 1961 (Exhibit 1).

The qualifications required by the above-mentioned scheme of service, as approved by the Council of Ministers and as published in the Gazette, are as follows:-

“Qualifications Required:

A good general education. Practical experience, [*74] of at least 5 years, in the preparation of Governmental Budgets ; general financial experience ; ability to control staff and good administrative ability. A university degree would be an advantage”.

The Applicant and a Mr. C.N. Nicolaides, whose appointment by the Public Service Commission as Budgeting Officer is the subject-matter of this recourse were among five of the candidates who applied for the post in question and whom the Public Service Commission decided, at its meeting of the 10th February, 1961, to call for interview.

At its meeting of the 15th February, 1961, the Public Service Commission interviewed three of the said candidates, including Mr. Nicolaides. The Applicant could not attend this meeting due to ill-health. The Applicant was subsequently interviewed by the Public Service Commission on the 21st February, 1961, and at the meeting held on that day the Public Service Commission decided to appoint Mr. Nicolaides to the post of Budgeting Officer.

The Applicant was informed by letter from the Chairman of the Public Service Commission dated the 6th March, 1961, that it had not been found possible to select the Applicant for appointment to the post in question.

This application was filed on the 13th April, 1961, and contains the following motions for relief, namely, for a declaration –

“(a) that the omission of the Public Service Commission to appoint him to the vacant post of Budget Officer in the Ministry of Finance ought not to have been made and that whatever it has been omitted should have been performed on the ground that such omission is contrary to the law and/or is made in excess and/or abuse of powers vested in the Public Service Commission ;

(b) that the decision of the Public Service Commission to appoint to the aforesaid vacant post Mr. C. N. Nicolaides in preference and instead of the Applicant is null and void and of no effect whatsoever on the ground that it is contrary to the law and/or is made in excess and/or abuse of powers vested in the Public Service Commission”.

By his statement of facts in support of his Application the Applicant alleges that Mr. Nicolaides did not have the required five years’ experience in the preparation of Government Budgets and, therefore, the Public Service Commission in appointing him had acted in disregard of the relevant scheme of service. [*75]

The Opposition was filed on the 15th May, 1961, and it alleges that Mr. Nicolaides was appointed after a decision of the Public Service Commission reached on the proper exercise of its discretion on the merits of the case of each applicant and that, in the circumstances, the Court should not interfere with the decision of the Public Service Commission.

Mr. Nicolaides was informed by the Court, by letter dated the 25th April, 1961, of the institution of these proceedings and that he was entitled to apply for an opportunity to take part in such proceedings in the protection of his interests if he wished to do so. Mr. Nicolaides replied to this letter on the 26th April, 1961, stating that he did not wish to make such an application.

The Case came up for mention on the 3rd May, 1961, and the hearing for Directions took place on the 5th June, 1961, when the Case was fixed for hearing on the 5th October, 1961.

At the aforesaid hearing for Directions the Court, inter alia, directed by consent under rule 9 of the Supreme Constitutional Court Rules, 1961, that paragraph (a) of the Applicant’s motion for relief should be struck out in the light of the

Decision of this Court on Preliminary Legal Issues given in Case No. 26/61* on the 29th May, 1961.

The Case was duly heard on the 5th October, 1961, and Judgment was reserved until to-day.

The main issue in this Case concerns the interpretation and application of the following phrase which appears in the relevant portion of the scheme of service (Exhibit 5) :-

“Practical experience, of at least 5 years, in the preparation of Governmental Budgets”.

As indicated by this Court in its Judgment in Case No. 26/61 [1]the Public Service Commission has to interpret reasonably expressions used in a scheme of service.

Counsel for Applicant submitted that the expression “Governmental Budgets” meant the budget of the country as a whole and did not include Departmental budgets and that, therefore, in the circumstances of this Case the Public Service Commission did not interpret such expression properly. On the other hand, counsel for Respondent submitted that the expression “Governmental Budgets” also included Departmental budgets and in support of this submission counsel for Respondent made a distinction between the [*76] phrase “Budgets of the Republic” or “Budgets of the Government”, on the one hand, and the phrase “Governmental Budgets”, on the other.

The Court is of the opinion that in interpreting the expression “Governmental Budgets” regard must be had to the context in which such expression is used and to the wording of the relevant scheme of service as a whole. The duties and responsibilities of the post in question specified in the first paragraph of the scheme of service in question makes it quite clear that the officer to be appointed would be responsible “for the preparation of the Annual and Supplementary Budgets of the Republic of Cyprus and for all matters connected with it”. In the Court’s view, therefore, the “practical experience of at least 5 years in the preparation of Governmental Budgets” referred to in the scheme of service must be “practical experience” in “the preparation of the Annual and Supplementary Budgets of the Republic of Cyprus”.

As on the date of the publication of the relevant scheme of service in the Gazette on the 28th January, 1961, the Republic had been in existence for less than a year, it is quite clear, in the Court’s view, that the period of 5 years in question referred to in the scheme of service must be interpreted as including practical experience in the preparation of Government Budgets not only of the Republic but also of the former Colony of Cyprus or, indeed, in the preparation of Central Government Budgets generally.

The Court is of the opinion that “the practical experience” in question is not confined to experience gained in the course of the actual preparation of “Governmental Budgets” in the Ministry of Finance but covers experience gained in performing duties closely connected therewith.

The next question for consideration in this Case is whether, on the facts it had before it, the Public Service Commission could have reasonably come to the conclusion that Mr. Nicolaides had the required “practical experience, of at least 5 years, in the preparation of Governmental Budgets”, as required by the relevant scheme of service.

It is in evidence that Mr. Nicolaides served in the Treasury Headquarters between the years 1941 and 1956, before he was posted to the Accounts Branch of the Medical Department.

During part of the aforesaid period, i.e. between the years 1945 and 1949, Mr. Nicolaides worked in that section of Treasury Headquarters which took part in the preparation of the Budget or Estimates of the former Colony of Cyprus.

The Minister of Finance, who gave evidence personally [*77] in this Case, stated that in his opinion it is possible for a person who has worked in the Treasury Headquarters to acquire the necessary practical experience in the preparation of the Budget.

Furthermore, it is also in evidence that during the years between 1956 and the date of the appointment to his present post as Budgeting Officer on the 21st February, 1961, i.e. during his posting to the Medical Department as Supervisor of Accounts, Mr. Nicolaides was the officer responsible for carrying out, inter alia, the preparation of the budget or estimates of the Medical Department in respect of each of the five years in question i.e. the years 1957-1961, both inclusive.

The Court is satisfied that an officer who is responsible for the preparation of the budget of a Department has, by the very nature of such duties, frequent dealings and collaborates closely with the officers in the Ministry of Finance responsible for the actual preparation and compilation of the Budget as a whole and in such capacity such officer acquires practical experience, not only in the preparation of the budget of a Department, but also in the preparation of “Governmental Budgets” in general.

The Court is of the opinion that there was sufficient material before the Public Service Commission for it reasonably to come to the conclusion that the experience which Mr. Nicolaides had acquired, and which is referred to above, was such as to amount to “practical experience, of at least 5 years, in the preparation of Governmental Budgets” and also that Mr. Nicolaides, as well as fulfilling that particular basic requirement of the relevant scheme of service, also possessed general financial experience and the other qualifications required by the scheme of service.

*Theodhoros

G. Papapetrou and The Republic (Public Service Commission), 2 R.S.C.C., letter D p. 62 and letter H p. 62 respectively.