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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1988) 3 CLR 211
1988 February 3
[LORIS, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION ANDREAS CHRISTOFOROU,
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC SERVICE COMMISSION,
Respondent.
(Case No. 122/86).
Public Officers-Promotions-Head of Department-Recommendations of-Adequate reasons should be given for deviating therefrom-A candidate's superiority of merit and qualifications is a powerful reason for such deviation.
Public Officers-Promotions-Qualifications-Scheme of service- Interpretation and application of-Judicial control-Principles applicable.
Public Officers-Promotions--Seniority-It prevails, if all other criteria are more or less equal.
The applicant impugns by means of this recourse the promotion of the interested party to the post of Senior Animal Husbandry Superintendent on two grounds, i.e. failure of the respondent Commission to give sufficient reasoning for not adopting the recommendations of the Head of the Department and erroneous interpretation of the Scheme of Service.
The Commission considered the diploma of the interested party (Diploma of the Agronomic Mediterranean Institute) as an additional advantage under para.4 of the Scheme of Service.
The applicant was senior to the interested party by about two years, but the latter was Superior both in merit, as reflected from the confidential reports, and qualifications.
Held, dismissing the recourse: (1) The Commission interpreted the scheme of service in a manner, which was reasonably open to it.
(2) Seniority prevails, if all other criteria are more or less equal.
(3) Superior merit and qualifications constitute powerful reasons for not adopting the recommendations of the Head of the Department. In this case such recommendations were not, in the light of their wording consonant with the confidential reports or the material in the personal files as far as qualifications are concerned.
The superior merit and qualifications of the interested party are clearly recorded in the minutes of the Commission and form reasons for deviating from the recommendations of the Head of the Department.
Recourse dismissed.
No order as to costs.
Cases referred to:
Frangoulides and Another v. The Public Service Commission (1985) 3 C.L.R. 1680;
Papapetrouv. The Republic, 2R.S.C.C. 61;
Republic v. Xinari& Others (1985) 3 C.L.R. 1922;
Partellidesv. The Republic (1969) 3 C.L.R. 480;
Theodosiou v. The Republic, 2 R.S.C.C. 44
Constantinou v. The Republic (1984) 3.C.L.R. 498;
Michael & Another v. Republic (1984) 3 C.L.R. 769;
Ioannou v. Republic (1983) 3 C.L.R. 449;
Hjiloannou v. Republic (1983) 3 C.L.R. 1041.
Recourse.
Recourse against the decision of the respondent to promote the interested party to the post of Senior Animal Husbandry Superintendent in preference and instead of the applicant.
A.S. Angelides, for the applicant.
A. Vladimirou, for the respondent.
Cur.adv. vult
LORIS J. read the following judgment. The present recoursis directed against the decision of the respondent P.S.C., published in the official Gazette of the Republic dated 31.1.86 whereby the interested party namely VassoTourpeki, was promoted to the permanent post of Senior Animal Husbandry Superintendent, in preference to and instead of the applicant.
The main complaints of the applicant are the following:
(A) Failure of the respondent P.S.C. to give sufficient reasoning for not adopting the recommendations of the Head of the Department in favour of the applicant.
(B) Erroneous interpretation of the relevant Scheme of Service by the respondent P.S.C. leading to a misconception, as allegedly the Diploma of the Agronomic Mediterranean Institute (1962-1963) possessed by the interested party did not constitute an additional advantage envisaged by paragraph (4) of the Scheme of Service.
Before proceeding with the examination of the complaints of the applicant I consider it pertinent at this stage to examine: the merit, qualifications and seniority of the applicant and the interest ed party:
Merit as it transpires from the relevant confidential reports: Applicant was rated "very good" for the last three years 1982 (2-10-0), 1983 (4-8-0) 1984 (5-7-0), whilst the interested party was rated for the same years "excellent" 1982 (9-3-0), 1983 (9-3-0), 1984 (9-3-0).
Qualifications: It is apparent from the relevant personal files and the list marked "Appendix A" attached to the opposition, that the interested party is better qualified than the applicant. Furthermore the respondent P.S.C. acting within its province held that the Diploma of the Agronomic Mediterranean Institute possessed by the interested party, having been acquired after 2 years studies abroad (1962-1963) (vide in this connection reds 46 and 47 in her personal file), was an additional advantage envisaged by paragraph (4) of the Scheme of Service which reads as follows:
"Δίπλωμα ή πιστοποιητικόν ανεγνωρισμένου Κολλεγίου εις Γεωπονίαν ή εις θέμα σχετικόν με τάς δραστηριότητας του τμήματος Γεωργίας θα θεωρήται ως πρόσθετον προσόν".
(English Translation):
"(4) Diploma or certificate of a recognised College in Agriculture or in a subject relevant to the activities of the Department of Agriculture will be considered as an additional qualification."
"It has been a well established principle of Administrative Law, constantly reiterated by this Court in a series of cases recently reviewed in Frangoulides and Another v. P.S.C. (1985) 3 C.L.R. 1680 at p. 1684, that in deciding whether or not the Public Service Commission, in a given case, has conformed with the relevant Scheme of Service, the Court will not give to such Scheme of Service a different interpretation other than that given to it by the Public Service Commission, provided that such interpretation was reasonably open to it on the basis of the wording of the scheme in question (see Papapetrou and theRepublic, 2 R.S.C.C. 61 at p. 69)".(Vide Republic v. Xinari& others (1985) 3 C.L.R. 1922 at p. 1928).
In the case .under consideration bearing in mind the above principle and having examined para (4) of the Scheme of Service, the relevant Diploma of the Interested party, and the decision of the respondent, I hold the view that the relevant interpretation of the respondent P.S.C. was reasonably open to it.
In this connection I feel that it should be added here, that, if the statement of the Head of the Department, namely Mr. Phokas, before the P.S.C. (to the effect that "Tourpeki has the additional qualification, but her qualification does not appear to be relevant to the duties she is performing"), was meant to provide his own interpretation to the said paragraph of the Scheme of Service, then it must be stated, with respect, that the relevant paragraph of the Scheme does not provide for a qualification "relevant to the duties of the post " but for a "diploma or certificate......in. Agriculture or in a subject relevant to the activities of the Department of Agriculture..."
In view of the above it is obvious that the interested party was not only better qualified than the applicant, but she in fact possesses an additional qualification envisaged by paragraph (4) of the Scheme of Service.
In the circumstances seniority could play no role, inspite of the fact that the applicant has a seniority of about two years over the interested party (having been promoted to the post of Animal Husbandry Supt. 1st grade on 1.7.76 whilst the interested party was promoted to the said post on 1.6.78), as seniority will prevail if all other criteria are more or less equal (vide Partellides v. The Republic (1969) 3 C.L.R. 480), which is not the present case.
Reverting now to the question of merit. It is true that the recommendation of the Head of the Department is a weighty consideration which enhances merit and "such a recommendationcannot be lightly disregarded" (Theodossiou v. The Republic, 2 R.S.C.C. 44 at p. 48).
But at the same time in the case it was acknowledged that if the .P.S.C. "comes to the conclusion not to follow" such recommendations then "the reasons for taking such an exceptional course would be clearly recorded in the relevant minutes of the Public Service Commission."
In the case of Constantinou v. The Republic (1984) 3 C.L.R. 498 it was held, inter alia, that the superior merit and qualifications of the interested party constituted very powerful reasons for deviating from the recommendations of the Head of the Department. (In this connection vide also Michael & Another v. Republic (1984) 3 C.L.R. 769 - Ioannou v. Republic (1983) 3 C.L.R. 449 at pages 457-458).
In the instant case, the recommendation of the Head of the Department, namely Mr. Phokas, was thus made before the respondent P.S.C: Christoforou Andreas (the applicant) is recommended, who with regard to merit does not lack behind the other two, TourpekiVasso (the interested party) and NeofytouLoulla, and who is excellent, in particular now that he is performing the duties of the Officer in charge for the whole of Limassol District.
As far as qualifications are concerned, the candidates are more or less equal. Tourpeki has the additional qualification, but her qualification does not appear to be relevant to the duties she is performing.
It is clear from the wording of the above recommendation, that the recommendation of the Head of the Department was not consonant either with the confidential reports or the material in the personal files as far as qualifications are concerned. As stated earlier on in the present judgment the interested party was much better rated in merit than the applicant and she possesses the additional qualification envisaged by the Scheme of Servicewhilst the applicant does not possess an additional qualification.
The aforesaid reasons for deviating from the recommendations of the Head of the Department are clearly recorded in the minutes of the respondent P.S.C. of 2.12.85 - the sub judice decision-which thus cannot be faulted.
In the circumstances the applicant failed to establish striking superiority over the interested party, an element without which an Administrative Court cannot intervene in order to set aside the decision regarding such selection. (Hjiloannou v. Republic (1983) 3 C.L.R. 1041 at p. 1045).
In the result the present recourse fails and is accordingly dismissed; let there be no order as to costs.
Recourse dismissed.
No order as to costs.