Supreme Constitutional Court dismisses appeal but orders reconsideration of appointment based on corrected facts.

[*133] 1961 December 11

(FORSTHOFF, P., TRIANTAFYLLIDES and MUNIR, JJ.)

(October 10, November 27, December 11, 1961)

SALIH SHUKRI SARUHAN,

AND

THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC SERVICE COMMISSION, AN INDEPENDENT ORGAN OF THE REPUBLIC.

(Case No. 36/61)

Public Service Commission — Appointments — Discretion — Supreme Constitutional Court will not interfere, if reasonably and properly exercised — Decision based on facts later proved incorrect in a material respect — — Reconsideration of decision in the light of new facts — Duty of Commission to reconsider its decision.

The Applicant who is the holder of a diploma in dentistry obtained in 1951, applied for appointment to one of two posts of Dental Officers, Class II, which were advertised on the 10th March, 1961. Thirteen other candidates also applied for those posts and the Public Service Commission, after interviewing the candidates on the 19th April, 1961, decided to appoint two other candidates to the posts in question.

The Applicant filed his recourse to this Court on the 27th April, 1961, claiming that the decision to appoint the other two candidates in preference to him was made in excess or abuse of power and/or that it was contrary to the principles of justice.

Held: (a) the Supreme Constitutional Court would not interfere with the discretion of the Public Service Commission if it was reasonably and properly exercised, unless it could be shown to the Court that such discretion had been exercised in disregard of the Constitution, or of any law, or in excess or abuse of power ;

(b) the fact that a candidate for a post had longer practical experience than a candidate selected for appointment did not necessarily mean that [*134] the latter did not have adequate practical experience himself, and this factor alone could not lead the Court to the conclusion that the Public Service Commission had acted in excess or abuse of power ;

*Editorial note : On the 3rd March, 1962, counsel for the Republic informed the Court that in the circumstances of this case it was not intended to collect the amounts assessed, whereupon this case was, by leave of the Court, withdrawn on the 5th March, 1962.

(c) where the Public Service Commission came to a decision on the basis of facts which subsequently were proved to be incorrect in a material respect the Public Service Commission had a duty to reconsider such decision in the light of the new facts with a view to rectifying or confirming it.

Decision to appoint Mr. B. confirmed.

Decision to appoint Mr. D. not confirmed.

A. M. Berberoglu, for the Applicant.

E. Munir, Counsel of the Republic, for the Public Service Commission.

Cur. adv. vult.

December, 11. 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 holder of a Diploma in Dentistry granted by the University of Istanbul in 1951, has been in private practice in Nicosia as a dentist since that year.

By Notification No. 182 published in the official Gazette, No. 48, of the 10th March, 1961, the Public Service Commission invited applications for filling two posts of Dental Officer, Class II (which had been allocated by the Public Service Commission to the Turkish Community) by Turkish Cypriots who were citizens of the Republic and who had a dental qualification registrable in Cyprus.

In response to the said Notification sixteen applications were received by the Public Service Commission. Fourteen candidates, including the Applicant, were interviewed by the Public Service Commission on the 19th April, 1961, and on the same day the Public Service Commission decided to appoint Mr. Husrev Veysi Dagseven and Mr. Ismail Beyzade to the two vacant posts in question.

Mr. Dagseven obtained a Diploma in Dentistry from the University of Istanbul in 1958 and Mr. Beyzade obtained a similar Diploma in 1955.

The Application in this Case was filed on the 27th April, 1961, and the motion for relief (as it stands after the amendment directed by the Court at the hearing for Directions on [*135] the 5th June, 1961) prays for a declaration that the decision of the Public Service Commission to appoint Mr. Dagseven and Mr. Beyzade to the vacant posts in question “in preference and instead of Applicant is null and void and of no effect whatsoever on the ground that it is contrary to the principles of justice and/or is made in excess or abuse of the powers vested in the Public Service Commission”.

The Opposition was filed on the 9th May, 1961, and it contends that Mr. Dagseven and Mr. Beyzade were appointed after a decision of the Public Service Commission reached on the proper exercise of its discretion on the merits of each candidate and that, in the circumstances, the Court should not interfere with the decision of the Public Service Commission.

Mr. Dagseven and Mr. Beyzade were informed by the Court by letter dated the 12th May, 1961, of the institution of these proceedings and that they were entitled to apply for an opportunity to take part in such proceedings in the protection of their interests if they wished to do so, to which no reply was received.

The Case came up for Directions on the 5th June, 1961, and the Case was duly heard on the 10th October, 1961, and the 27th November, 1961, and Judgement was reserved until today.

The case for Applicant is, in effect, that the Public Service Commission, in deciding to appoint Mr. Dagseven and Mr. Beyzade, did not exercise its discretion properly in that it did not give due weight to the fact that Mr. Dagseven had been qualified as a dentist for only a period of three years and Mr. Beyzade for a period of six years, whereas other applicants for the post, including the Applicant in this Case, had been qualified for a longer period and had, therefore, acquired longer practical experience as a dentist. The Applicant also contended that in the case of Mr. Beyzade the Public Service Commission had given undue weight to the fact that Mr. Beyzade came from Paphos and, therefore, considered it advisable to appoint him for service at Paphos. It was submitted that the Public Service Commission had thus wrongly assumed that the Applicant and others would not be prepared to serve in Paphos or in any other part of the Republic.

In attacking, in particular, the

decision to appoint Mr. Dagseven counsel for Applicant submitted that the application submitted by Mr. Dagseven to the Public Service Commission (see Exhibit 1) wrongly states in paragraph 8 thereof that he, Mr. Dagseven, was studying dentistry in the School of Dentistry of the Faculty of Medicine of the University of Istanbul from the year 1953 to the year 1958, thus implying that it took him only from 1953 to 1958 in order to obtain the [*136] necessary qualification in dentistry.

Counsel for Respondent submitted that the Public Service Commission decided to appoint Mr. Dagseven and Mr. Beyzade on the proper exercise of its discretion and that, having regard to all the circumstances, the Court should not interfere with such exercise of discretion by the Public Service Commission.

†The Court is of the opinion that when the Public Service Commission has exercised its discretion in reaching a

decision, after paying due regard to all relevant considerations and without taking into account irrelevant factors, this Court will not interfere with the exercise of such a discretion unless it can be shown to the satisfaction of the Court that such exercise has been made in disregard of any provision of the Constitution or of any law or has been made in excess or in abuse of the powers vested in the Public Service Commission.

The mere fact that the Applicant had longer practical experience than Mr. Beyzade and Mr. Dagseven does not necessarily mean that the two persons appointed did not have adequate practical experience themselves, and, therefore, such factor is not by itself, sufficient to lead the Court to the conclusion that the Public Service Commission acted in excess or in abuse of its powers.

With regard to Mr. Beyzade, it may be that one of the factors which the Public Service Commission considered was the fact that Mr. Beyzade came from Paphos, and that it was intended that he should be posted to Paphos, but it is quite clear that such factor was not the only consideration nor was it the decisive factor in deciding to appoint Mr. Beyzade and in the circumstances the Public Service Commission has not, in the opinion of the Court, acted in excess or in abuse of its powers.

Coming now to the question of the period of the University studies of Mr. Dagseven, the Applicant was able to prove, to the satisfaction of the Court, both by a written statement furnished by the Director of the School of Dentistry of the Faculty of Medicine of the University of Istanbul (Exhibit 6) and by the oral testimony of Mr. H. M. Gurkan, that the duration of Mr. Dagseven’s studies in dentistry in the University of Istanbul was in fact from the commencement of the winter semester of 1951 till the 17th February, 1958.

Mr. Dagseven, who was called as a witness by the Respondent, has stated that in giving particulars of the period of his studies in dentistry in the University of Istanbul he gave the year 1953 as the commencing year and not the year 1951, because the year 1953 was the year in which he was reregistered as a substantive student of the School of Dentistry [*137] of the Faculty of Medicine of the University of Istanbul upon the completion of the first part of his studies in the University during which he passed the preliminary examinations in physics, chemistry and natural sciences and in which students from other Schools of the Faculty of Medicine also participated.

It is of interest to note that in the written statement of the Director of the Dental School in question (Exhibit 6) it is stated that the normal period of studies at the Dental School for the purpose of obtaining a diploma in dentistry, including the passing of the preliminary examinations in physics, chemistry and natural licences, is four years (i.e. eight semesters).

No matter how the relevant statement in the application form of Mr. Dagseven came to be made and whatever may be the reasons therefor, the fact remains that the information in question led the Public Service Commission to believe in a state of facts which were not correct, namely, that the duration of Mr. Dagseven’s academic studies at the University of Istanbul had only lasted from 1953 to 1958 whereas in fact it had lasted from the commencement of the winter semester of 1951 till the 17th February, 1958.

Of the two members of the Public Service Commission who were called to give evidence on behalf of the Respondent, Mr. Sabri Konur and Mr. Charalambos Michaelides, Mr. Konur stated that had he known that it had taken Mr. Dagseven from 1951 to 1958 in which to obtain the necessary diploma in dentistry, instead of from 1953 to 1958, then that fact might have influenced him in deciding whether or not Mr. Dagseven should be appointed to the post in question.

Mr. Michaelides, on the other hand, categorically stated that had he known that Mr. Dagseven had taken from 1951 to 1958 in which to obtain the diploma in denistry in question then he would definitely not have considered Mr. Dagseven as suitable for appointment to the post to which he was appointed.

It cannot be said that the Public Service Commission has acted in excess or in abuse of its powers in deciding to appoint Mr. Dagseven on the facts which the Public Service Commission had before it at the material time. Having regard, however, to the correct facts regarding the duration of the studies of Mr. Dagseven and to the evidence given in this connection by the aforesaid two members of the Public Service Commission, the Court is of the opinion that the question of filling the vacant post to which Mr. Dagseven was appointed must be reconsidered by the Public Service Commission in the light of the correct facts because it is a settled principle of Administrative Law that an executive or administrative [*138] authority, which has come to a decision on the basis of facts which have subsequently been shown to be incorrect in a material respect, has a duty to reconsider such

decision, in the light of the new facts, with a view to rectifying or confirming it.

The Court is of the opinion that such reconsideration should take place within a reasonable time and that all original applicants for the posts in question are entitled to be informed of the result of such reconsideration because it is open to any one of them to have a recourse to this Court, under Article 146 of the Constitution, against any decision taken on such reconsideration.

As a rule, when the Court dismisses an application, a confirmation of the decision, act or omission in question in the sense of sub-paragraph (a) of paragraph 4 of Article 146, is to be implied in a proper case.

In this Case, however, in dismissing this Application, as stated in the formal Order at the commencement of this Judgment, the Court expressly declares that it -

(a) confirms the

decision to appoint Mr. Beyzade to one of the two vacant posts in question ; and

(b) does not confirm the

decision to appoint Mr. Dagseven to the other of the two vacant posts in question.