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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1988) 3 CLR 987
1988 May 18
[KOURRIS, j.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
GEORGHIOS KAMENOS AND OTHERS,
Applicants,
v.
THE REPUBLIC OF CYRPUS, THROUGH
THE PUBLIC SERVICE COMMISION,
Respondent.
(Case No. 616/86).
Annulment of an administrative act or decision-Reconsideration of matter-Promotion of public officers-The reconsideration should be made on the basis of the legal and factual situation existing at the time of the making of the annulled promotions, except as regards the matter of qualifications, in respect of which the crucial date is the date, when the Public Service Commission received the request for the filling of the post.
Public Officers-Promotions-Qualifications-Due inquiry-Not restricted to specific acts or manner-Commission not bound to conduct examinations or hold interviews or to conduct the inquiry in the same manner in respect of all the candidates-Commission may consider documents made after the crucial date, but referring to the factual situation existing at such time.
Public Officers-Promotions-Qualifications-Scheme of service Interpretation and application of-Judicial control-Principles applicable.
Public Officers-Promotions-Judicial control-Principles applicable.
Misconception of fact-Promotions of public officers-Statement by police that interested party had no previous convictions, Whereas he had been convicted of gambling-As more than 5 years elapsed between conviction and such reply, the reply was correct-The Rehabilitation of Convicted Persons Law. 1981 (Law 70/81), section 5.
Previous Convictions-The Rehabilitation of Convicted Persons Law,1981 (Law 70/81)-Deletion of previous convictions after the lapse of a period of time.
The promotion of the interested party to the post of Inspector in the Department of prison was annulled for lack of due inquiry as to his qualifications and in particular as to the required standard of his education.
As a result the matter of promotion was reconsidered by the Public Service Commission.In the course of reconsideration the Commission applied to the Director-General of the Ministry of Education in order to assist them in their inquiry as to such qualification.
Finally, the Commission once again promoted the interested party to the post in question. Hence this recourse. The issues expounded by the Court in dismissing it sufficiently appear in the hereinabove headnote.
Recourse dismissed.
No order as to costs.
Cases referred to:
Alexandrou and Others v. The Republic (1986) 3 C.L.R. 1059;
Republic v. Safirides (1985) 3 C.L.R. 167;
Republic v. Pericleous (1984) 3 C.L.R. 557;
Mytides v. The Republic (1983) 3 C.L.R. 1096;
Maratheftou and Others v. The Republic (1982) 3 C.L.R. 1088;
Ktorides v The Republic (1983) 3 C.L.R. 171;
Mikellides v. The Republic (1981) 3 C.L.R. 461;
Republic v. Rousos (1987) 3 C.L.R. 1217.
Recourse.
Recourse against the decision of the respondent to promote theinterested parties to the post of Inspector in the Department ofPrisons in preference and instead of the applicants.
A. S. Angelides, for the applicants.
L. Koursoumba (Mrs.), for the respondent.
N. Cleridou, for interested party A. Papadopoulos.
No appearance for interested party A. Pontikides.
Cur.adv. vult.
KOURRIS J. read the following judgment. By this recourse the three applicants challenge the decision of the Public Service Commission to promote the interested parties, namely Andreas Pontikides and AntonisPapadopoullos, to the post of Inspector in the Department of Prisons as from 15.9.83 in preference and/or instead of the applicants.
The post in question is a promotion post and before the sub judice decision both the applicants and the interested parties were holding the post of Senior Warden
The facts of this case shortly are these:
The interested parties were promoted to the post of Inspector in the Department of Prisons by a decision of the Public Service Commission dated 27.8.83. The present applicants; together with other applicants, challenged the decision of the respondent Commission to promote the interested parties to the post of Inspector in the Department of Prisons instead of them.
Mr. Justice Savvides, who tried the recourse, in annulling the decision of the Public Service Commission (See NicosAlexandrou and Others v. The Republic (1986) 3 C.L.R. 1059) said the following at pp. 1070 and 1071: -
"My conclusion from all the material before me, is that firstthe Departmental Committee failed to make a list of those candidatespossessing the qualifications stated in the scheme ofservice, as is required by Regulation 4 of the Regulations concerningthe functions of Departmental Committees (Appendix22) and secondly, the P.S.C. relied on the report of the DepartmentalCommittee and the statement of the Head of the Departmentregarding the standard of education of certain candidatesand refrained from conducting any further inquiry. Thefact that the P.S.C. called another candidate, Mr. Christou, foran interview, does not mean, by itself, that the P.S.C. conducteda due inquiry into the matter of qualifications since as itseems from the minutes, such candidate was called because he·had very good confidential reports. The fact also that Pontikidespossesses a certificate of attendance of certain tutoriallessons for a period of three years does not exonerate theP.S.C. from its duty to inquire into the matter and evaluate thiscertificate. The failure of the P.S.C. to evaluate thequalificationsof the candidates results in the absence of a due· inquiryinto the matter which is a ground for annulment. (seeAristotelousv. Republic and Constantinidou v. Republic (supra)). Therecourse therefore, succeeds on this ground".
It appears that the ground on which the learned judge annulleddecision of the respondent authority was their failure to evaluate the qualifications of the candidates resulting in the absence of a due inquiry into the matter.
In the light of the said Judgment, the Public Service Commissionmade inquiries as to the qualifications of the interested partyPontikides and at a meeting that they held on 22.6.86, decided topromote again the interested parties to the said post retrospectively as from 15.9.83. Hence, the present recourse.
Counsel for the applicants based his address mainly on the following grounds: (1) The·respondent authority acted under misconception of law and fact; (2) the respondent authority failed to conduct a sufficient inquiry into the possession by the candidates of the required qualifications and they failed to evaluate properly the qualifications of the interested party; (3) the respondent authority failed to select the most suitable candidate.
First Issue:
This issue concerns the "material time" in relation to the legal and factual situation of a case of reconsideration, and the "material time" at which a candidate must possess the required qualifications. This arises from a letter addressed by counsel of the Republic to the respondent authority as a result of the annulment of their decision by the Supreme Court advising them how to approach their new decision in reconsidering the matter. This letter, dated 7th July, 1986, is appendix 2 to the opposition, and the material part which is under attack by the applicant reads as follows:
"4. θα πρέπει να επανεξετάσετε την απόφαση σας με βάση το νομικό και πραγματικό καθεστώς που ίσχυε στις 27.8.1983. Ειδικότερα, θα πρέπει να προβείτε σε επαρκή έρευνα για να διαπιστώσετε αν ο κ. Ποντικίδης είχε στις 27.8.1983 το προσόν της 'καλής γενικής μόρφωσης επιπέδου όχι κατώτερου ενός απολυτηρίου πεντατάξιας σχολής μέσης εκπαίδευσης'."
It is settled now that on a new consideration of the matter by the Public Service Commission, after annulment of the previous decision for promotion, as in the case before us, the "material time" is. (a) as regards the legal and factual situation to be taken into consideration, the time of the making of the first decision in the matter, (i.e. the one annulled). (See R. v. Safirides (1985) 3 C.L.R. 167 at p. 170); (b) as regards the date at which a candidate must possess the required qualifications, the date on which the request for the filling of the vacancy is received by the Public Service Commission. (R. v. Perikleous (1984) 3 C.L.R. 557 at pp. 580 - 588).
Counsel for the applicants submitted that the opinion of counsel of the Republic to the respondent authority in the letter of 7th July, 1988, is wrong because he advised them to conduct a sufficient inquiry to ascertain whether Pontikides had on 27.8.83 the qualification" of good general knowledge not below the standard of a certificate of a five year secondary school". Counsel said, that in accordance with the principles .of administrative law the material time for possessing qualifications is the date on which the request for the filling of the vacancy is received by the Public Service Commission and not the date of its decision.
Counsel for the respondents tried to explain that this part of his letter should have been read together with the preceding lines in which counsel advised the respondent authority to reconsider their decision on the basis of the factual and legal situation existing on 27.8.83. The argument of counsel for the respondent was· very attractive but it cannot stand. Counsel for the respondent authority argued, in the alternative, that as the Chairman of the respondent authority issued a circular dated 11.6.84 (Appendix 11) stating that in the light of the Pericleous case (supra), the date at which a candidate must possess the required qualifications is the date on which· the request for the filling of the vacancy is received by the Public Service Commission, then no misconception operated in the minds of the Chairman and Members of the Public Service Commission. Indeed, it appears from the contents of the said circular that the Chairman of the respondent Authority knew the "material time" at which·a candidate must posses the required qualifications and it appears to me that in reconsidering the case in hand, they took into consideration the contents of the circular. Further, from .a perusal of the files·of the interested parties and the applicants, it appears that their qualifications on 22.8.86, when the P.S.C. promoted the interested parties, after reconsideration of the case, were the same on 27.8.83, when they reached their first decision which was annulled by the Court.
Second Issue:
The second issue raised by learned counsel for the applicant relates to the evaluation of the qualifications of interested party Pontikides and to the inquiry carried out in relation to that issue.
The first decision of the Public Service Commission on27.8.83 had been annulled on the ground that "Failure of thePublic Service Commission to evaluate the qualifications of thecandidates results in the absence of a due inquiry into the matterwhich is a ground for annulment". (See Alexandrou and Others v.The Republic (supra)). It should be noted that the failure of thePublic Service Commission to evaluate the qualifications of thecandidates, concerned only interested party Pontikides. The respondentauthority in the course of reconsideration of the matterought to carry out a due inquiry in order to enable themselves toevaluate the qualifications of the candidates, and without by anymeans surrendering their own discretionary power, applied to theDirector - General of the Ministry of Education to assist them toform their opinion in relation to the qualifications of Pontikides.
Counsel for the applicant argued that the respondent authorityfailed to carry out a sufficient inquiry in relation to that issue andalso failed to evaluate correctly the qualifications of interested partyPontikides. He said that the respondent authority should havecarried out a written examination in order to ascertain whetherPontikides possessed the required qualifications envisaged by thescheme of service instead of applying to the Director - General ofthe Ministry of Education. He further contended that there is nolaw or regulation authorising the Director-General to evaluate the certificates of K.T.E.E., the school at which Pontikides had attendedtutorial lessons.
Learned counsel for the respondent authority argued that thePublic Service Commission could conduct their inquiry as aforesaidand they had no specific duty to call all candidates for an interview or to conduct an examination for that matter, and the fact thatthe inquiry as to the evaluation of the qualifications of other candidateswas conducted in a different manner is irrelevant, and she referredthe Court to Stassinopoullos, Law of Administrative Acts,1951 at pp. 331 - 333, particularly at p. 333 where it is stated: -
Ή περίπτωσις της αυτοδεσμεύσεως της διακριτικής εξουσίας, ήτοι η οικειοθελής υπαγωγή αυτής εις τύπους και δεσμεύσεις, μη επιβαλλομένας, αλλ' ουδ' απαγορευομένας υπό του νόμου, δεν αποκλείεται, ως συνιστώσα εκλογήν μέσων προς μόρφωσιν κρίσεως. Συνέπεια όμως της αυτοδεσμεύσεως ταύτης είναι ότι δεν δύναται εφεξής ν' αγνοηθή αύτη αυθαιρέτως υπό του προκαλέσαντος αυτήν οργάνου, διότι τούτο θ' απετέλει απόδειξιν ασυνεπούς και αυθαιρέτου, ήτοι πλημμελούς ασκήσεως της διακριτικής εξουσίας.'
I agree with learned counsel for the respondent authority that the exercise of the duty of the Public Service Commission to ascertain the qualifications of each candidate as a factual situation is nowhere restricted to specific acts or manner. (See Mitides v. The Republic, (1983) 3 C.L.R.1096, and Maratheftou and Others v. Republic, (1982) 3 C.L.R. 1088 at p. 1093.)
In Ktorides v. The Republic (1983) 3 C.L.R. 171 at p 173, it is stated:
"It is well-settled that this Court, as an administrative Courtcontrolling the exercised of thediscretion of the Public ServiceCommission, when it decides whether or not a candidate possessesthe qualificationsrequired under a scheme of service, examinesonly whether the Commission, on the material before it, couldreasonably have come to a particular conclusion."
In the case of Mikellidesv. The Republic (1981) 3 C.L.R. 461at p. 469, it is stated as follows: -
"There is ample authority that the interpretation of a scheme ofservice and its application will not be interfered with by theCourt, so long as such interpretation and application was reasonablyopen to the competent administrative organ. The application,however, by such organ of a scheme of service to the circumstances of each particular case, has to be made after sufficient inquiryregarding all material consideration."
I have reached the conclusion that the Public Service Commission, without surrendering their ultimate competence and responsibility to decide themselves whether the candidate was qualified under the relevant scheme of service for promotion, whether in fact he had "a good education not below the standard of a leaving certificate of a five-year secondary school" inquired into the matter in a manner that was quite legitimately open to them before evaluating themselves the certificate of Pontikides as a factual situation and thereafter deciding whether this candidate was under the relevat scheme of service eligible for promotion.
The inquiry was certainly carried out subsequent to 1983 but the matters that were taken into consideration were those that factually and legally existed on .27.8.83; and that on that day the Public Service Commission could legitimately have considered documents made subsequent to 1981 to decide whether on the material date in 1981 Pontikides had the required qualifications.
lt view of the above, I think, that it is evident in the light of the relevant material placed before the respondent Commission, that it could reasonably have reached the conclusion that the interested party possessed the required qualifications evisaged by the scheme of service.
Third Issue
The third issue which calls for determination is whether the 'Public Service' Commission promoted the most suitable persons to the post of Inspector in the Department of Prisons.
It is a settled principle of administrative law that when an administrative organ such as the Public Service Commission selects a candidate on the basis of comparison with others, it is not necessary to show, in order to justify his selection, that he was strikingly superior to the others. On the other hand, the administrative Court cannot interfere nor set aside the decision unless the applicant establishes that he had striking superiority over the interested party.
The criteria which the Public Service Commission have to take into consideration when reaching a decision have been expounded in the case of Republic v. Rousos (1987) 3 C.L.R. 1217.
In the present case the respondent authority made a comparisonof the confidential reports of the interested parties and the applicantsand although it appeared that for the years 1980 - 1981 and 1982 all were rated as "very good", nevertheless, the interestedparties had a progressively better rating in individual itemswhereas the applicants (except Yiannouris) had a progressivelylower rating inindividual items during the same years. Yiannouris was rated in the confidential reports as "good". Thus, it appearsthat interested parties and applicants Kamenos and Tilemachouwith regard to merit, are more or less equal though the interestedparties had a progressively higher rating in individual items duringthe last 3 years prior to the decision of the P.S.C .Also, allthe applicantsand the interested parties had possessed the qualificationsenvisaged by the scheme of service but, only the interestedparties were recommended by the Head of the Department forpromotion and the fact that applicant Kamenos is senior by 2years to the interested parties, his seniority cannot override thestrong recommendations of the Head of the Department in favourof the interested parties. It should be noted that the interested partieswere senior to applicant Telemachou whereas applicant Yiannouriswas senior to the interested parties.
Counsel for the applicants argued that no mention is made ofapplicant Yiannourisduring the meeting of the Public ServiceCommission when they took the sub judice decision. It appearsthat Yiannouris was not recommended by the Departmental Committeefor promotion but the Public Service Commission whenthey took the sub judice decision they had all the files of the candidatesfor promotion before them and in reconsidering the matterthey reconsidered all candidates. The fact that no mention is madeof applicant Yiannouris does not follow that the respondent did not consider him in taking the sub judice decision.
In the present instance, it was reasonably open to the respondent Commission on the totality of the material before it and in the exercise of its relevant discretionary powers, with which I find no sufficient cause to interfere, to select as being the most suitable persons for promotion the interested parties instead of the applicants. It follows that the applicants have failed to establish any striking superioriry which is necessary in order to justify any interference by the Court with the sub judice decision which was in the circumstances reasonably open to the respondent Commission.
Counsel for the applicant on the date fixed for clarifications, raised the point that the Court annulled the previous decision of the respondent authority because it found that the departmental committee failed to make a list of those candidates possessing qualifications stated in the scheme of service and consequently reconsideration of the matter should go back to the departmental committee for reconsideration.
I am not inclined to agree with counsel for the applicant that the learned Judge who tried the first recourse (see Alexandrou and Others v. The Republic (supra)), annulled the decision for failure of the departmental committee to make a list of the candidates possessing the qualifications stated in the scheme of service. At p. 1070 of his Judgment, he mentions the said failure of the departmental committee but he did not state that that was ·a ground for annulment. The material part of the judgment which annulled the decision appears at p. 1071 where it is stated: "The failure of the Public Service Commission to evaluate the qualifications of the candidates results in the absence of a due inqury into the matter, which is a ground for annulment. (See Aristotelous v.The Republic and Constantinidouv.The Republic (supra).The·recourse,therefore, succeeds on this ground."
It is thus clear that the ground for annulling the decision was the failure of the respondent authority to evaluate the qualifications of the candidates which resulted in the absence of a due inquiry into the matter.
Counsel for the applicant also raised the point that the Public Service Commission failed to carry out any inquiry into the criminal convictions of interested party Pontikides. Counsel alleged that Pontikides was convicted on 26.6.75 for gambling and that this was not taken into consideration by the Public Service Commission in view of the advice of counsel for the Republic that this conviction was irrelevant for the purposes of promotion of a public servant. Indeed, s.44(1)(d) of the Public Service Law 1967, provides that "No officer shall be promoted to another office if he has been punished during the preceding 2 years for any disciplinary offence of a serious nature". In the present case, no disciplinary proceedings were brought against the interested party Pontikides. Further, the respondent authority inquired with regard to any previous convictions by the interested party Pontikides from the Chief of Police who replied on 7.5.85 (Appendix 8) that Pontikideshad no previous convictions.
This is a correct statement because by virtue of the Rehabilitation of Convicted Persons Law 1981 (Law 70/81), the previous convictions of persons for certain offences are deleted after the lapse of a certain period. In the circumstances of the present case, under s.5 of the said law, a conviction is deleted after the lapse of 5 years. Consequently, at the time the Public Service Commission took their first decision in 1983, interested party Pontikides had no previous convictions because his conviction for gambling was deleted after the lapse of 5 years from the date of the conviction which was in 1975.
For all these reasons, the recourse fails and is dismissed, but with no order for costs.
Recourse dismissed.
No order as to costs.