|
ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
|
|
|
(1989) 3A CLR 682
1989 June 16
[SAVVIDES,J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
ANDREAS MARANGOS AND ANOTHER,
Applicants,
v.
THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC
SERVICE COMMISSION,
Respondent.
(Cases Nos. 709/86, 710/86)
Public officers - Promotions-Merit, qualifications, seniority-Duty to weigh all factors together and select the best candidate-Commission may attribute such significance to the aforesaid criteria as may deem proper.
Public officers-Promotions-Striking superiority-Applicants rated excellent in all years since 1979 to 1985; whilst interested parties rated very good for the years 1979, 1980, 1981 and 1982 and excellent in 1983, 1984 and 1985-Qualifications more or less the same-Interested parties senior as regards the previous post by 9 1/2 years in respect of applicant Eleftheriou and 11 years and 4 1/2 months in respect of applicant Marangos-Interested parties recommended for promotion by Head of Department-Applicants did not establish striking superiority.
The facts affecting the promotion in question appear in the second of the hereinabove Headnotes. In the light of such facts, the Court decided that the applicants failed to establish striking superiority. As a result the Court dismissed the recourse.
Recourse dismissed No order as to
costs.[*683]
Case referred to:
Republic v. Roussos (1987) 3 C.L.R. 1217.
Recourse.
Recourse against the decision of the respondent to promote the interested parties to the post of Technical Superintendent in reference and instead of the applicants.
E. Efstathiou with G. Stylianides, for the Applicants.
G. Erotocritou (Mrs), Senior Counsel of the Republic, for the Respondent.
Cur.adv. vult.
SAVVIDES, J. read the following judgment. The applicants by these two recourses which were heard together as presenting common questions of law and fact, challenge the decision of the respondent, published in the official Gazette of the Republic dated 12th September, 1986, by which the interested parties, namely, 1) DolorosPitsillidesand 2) LiasisSavva, were promoted to the post of Technical Superintendent instead of and in preference to them.
The applicants are holding the post of Senior Technician, which was also held by the interested parties at the material time. All parties were promoted to the above post on the same date, that is, the 15th November, 1981.
Following a request by the appropriate authority for the filling of these vacancies in the post of Technical Superintendent (which is a promotion post) the Departmental Committee, to which the matter was referred, submitted its report to the respondent Public Service Commission (to be referred to as the PSC), by letter dated 9th May, 1986. By such report six candidates were recommended for promotion, amongst whom the applicants and the interested parties.
The PSC, at its meeting dated 16th May, 1986, having considered the report of the Departmental Committee, decidedto take into consideration, in filling the vacancies in question, four other candidates who were highly rated in their confidential reports and adjourned the matter to its next meeting. The Head of the Department, who attended the meeting of the PSC on the 30th May, 1986, recommended the interested parties and expressed his views about the applicants and the other candidates. The PSC then, after considering all the relevant material before it, with special reference to the confidential reports and the seniority of the parties, proceeded to select three candidates amongst whom the interested parties for promotion to the post in question. The promotions were published in the official Gazette of the Republic dated the 12th September, 1986, as a result of which the present recourses were filed.
Counsel for applicants argued, by his written address that the respondent placed undue weight to the recent confidential reports of the interested parties whilst it failed to place the proper weight to those of the applicants who were strikingly better than the interested parties regarding merits. He also argued that the recommendations of the Head of the Department were not properly made in so far as he did not recommend the applicants and that his description of the work of interested party Liasis was misleading and led the PSC to act under a misconception of fact.
The PSC in effecting promotions has to take into consideration the merits, qualifications and seniority of the candidates as well as their confidential reports and the recommendations of the Head of the Department (section 44(2) and (3) of the Public Service Law, 1967 (Law No. 33/67). The manifest duty of the PSC is to weigh all factors together and select the best candidates for promotion and it may attribute such significance to them as may be deemed proper (see Republic v. Roussos(1987) 3 C.L.R. 1217). The merits of the candidates are reflected in their confidential reports, which, in the present case, were taken into consideration by the PSC. As it emanates there from both applicants were rated as "excellent" in all years since 1979, whilst the interested parties were rated as "very good" in 1979, 1980, 1981 and 1982 and as "excellent" in 1983, 1984 and 1985. The PSC also took into consideration the qualifications of the candidates which, as it appears from appendix 3 to the opposition, are more or less the sameregarding all candidates. In respect of the matter of seniority the PSC noted that both applicants and the interested parties were promoted to the post of Senior Technician on the same date and therefore it had to resort to their previous posts, on the basis of which it was found that the interested parties were senior to the applicants. In fact their seniority amounts to 9 1/2 years in the case of applicant Eleftheriou and to 11 years and 4 1/2 months in the case of applicant Marangos.
The Head of the Department recommended the interested parties for promotion. As it emanates from its minutes dated 30th May, 1986, the PSC took note of the fact that the applicants in their reports were rated as "excellent" in more years than the interested parties. Nevertheless weighing all factors together and after taking into consideration the fact that the interested parties had also excellent reports in the last three years the PSC decided in view also of their seniority, to adopt the recommendations of the Head of the Department and promote the interested parties. Although the applicants had better reports than the interested parties, the last were found, on the basis of all criteria taken into consideration and weighed together, to be the most suitable for promotion.
On the material before me I have come to the conclusion that the applicants failed to establish striking superiority over the interested parties and the sub judice decision was reasonably open to the respondent.
What remains to be considered is the argument of counsel for applicants that the recommendations of the Head of the Department regarding interested party Liasis were misleading. Counsel argued that what was said about this candidate that he is the assistant Head of the Construction Department was not true as this position was held by another person, who is a civil engineer, 1st grade. I think there has been a misinterpretation on the part of counsel of the words of the Head of the Department. What was in fact said by him is that: "Συστήνεται ο Σάββας Λιασής ο οποίος εργάζεται στην υπηρεσία κατασκευών του τμήματος. Είναι ο βοηθός του προϊσταμένου της υπηρεσίας αυτής..." (SavvasLiasis is recommended who works in the construction service of the department. He is the assistant of the Head of this service (The underlining is mine). This factappears also on the first page of his confidential reports for the last three years where the following are stated in the paragraph describing the main duties of the candidate during the year:
"Βοηθός του Μηχανολόγου Μηχανικού, Προϊσταμένου της Ηλεκτρομηχανολογικής Υπηρεσίας του Τμήματος Αναπτύξεως Υδάτων....".
(Assistant to the Mechanical Engineer, Head of the Electromechanical Service of the Water Development Department).
It is obvious from the above that counsel for the respondent misconceived the words "assistant to the Engineer" (a technician) as meaning "the Assistant Engineer" who must be a qualified engineer. It does not emanate from the material before me that there was either any misdirection on the part of the Head of the Department or any misconception on the part of the PSC in this respect. As a result this argument of counsel cannot stand and it is therefore dismissed.
In the result this recourse fails and it is hereby dismissed with no order for costs.
Recourse dismissed. No order as
to costs.