(1972) 3 CLR 135
1972 March 16
[*135]
[L. LOIZOU, J.]
IN THE MATTER OF ARTICLE 146 OF THE
CONSTITUTION
CONSTANTINOS N. PANAYIDES,
Applicant,
and
THE REPUBLIC OF CYPRUS, THROUGH
THE PUBLIC SERVICE COMMISSION,
Respondents.
(Case No. 92/69).
Public Service and Public Officers-Promotions-Legitimate interest-Article 146.2 of the Constitution-A Public officer not possessing the required qualifications under the relevant scheme of service for a particular post-Has no existing legitimate interest adversely and directly affected in the sense of Article 146.2 of the Constitution-Consequently, he cannot make a recourse challenging promotions (or appointments) to such post.
Recourse under Article 146.2 of the Constitution-”Existing legitimate interest adversely and directly affected”-Article 146.2 of the Constitution-Lack of qualifications for a particular post-It follows that the applicant cannot challenge by a recourse promotions or appointme1is to such post-Cf. supra.
“Legitimate interest”-”Existing legitimate interest adversely and directly affected....”-Article 146.2 of the Constitution-See supra.
In the present case the Court dismissed the recourse directed against promotion (or appointment) to a particular post on the ground that the applicant, not possessing the qualifications required for that post by the relevant scheme of service, has no “existing legitimate interest adversely and directly affected” by such promotion in the sense of paragraph 2 of Article 146 of the Constitution.[*136]
The facts sufficiently appear in the judgment of the Court dismissing without costs the recourse.
Cases referred to:
Frangou v. The Greek Communal Chamber (1966) 3 C.L.R. 201;
Miltiadou v. The Republic (1969) 3 C.L.R. 210.
Recourse.
Recourse against the decision of the respondent Public Service Commission to appoint to the post of Air-Traffic Control Officer, Civil Aviation Department, the interested party, loannis Kitromiides, in preference and instead of the applicant.
L. Clerides, for the applicant.
L. Loucaides, Senior Counsel of the Republic, for the respondent.
Cur. adv. vult.
The following judgment was delivered by :-
L. LOIZOU, J.: The applicant seeks the following. Relief:
1. A declaration that the decision of the respondents to appoint the interested party to the post of Air Traffic Control Officer, Civil Aviation Department, in preference and instead of the applicant is null and void and of no effect, and
2. that the omission to appoint the applicant to the said post ought not to have been made and what has been omitted should be performed.
It may be stated at the outset that applicant’s prayer is not quite accurate in that in actual fact the post to which the interested party was promoted and for which the applicant also had applied is that of Approach and [*137] Aerodrome Control Officer and it is the Commission’s decision to appoint the interested party to this post instead of the applicant that is challenged by this recourse.
The applicant is employed in the Civil Aviation Department as an acting Air-Traffic Control Officer. He joined the service as an Air-Traffic Control Assistant in 1964 and has been acting as an Air-Traffic Control Officer since July, 1968. The applicant, as well as the interested party, had undergone examinations in the Civil Aviation Department and were both found suitable for this post.
In 1967 the applicant was among six candidates, including the interested party, who followed a three months course at the school of Air-Traffic Control in Bournemouth in the United Kingdom on a scholarship offered by the British Government followed by one month’s training at the Birmingham airport.
The post of Approach and Aerodrome Control Officer was published in the Gazette on the 31st January, 1969, under Not. No. 158. The only two persons who applied for the post were the applicant and the interested party; and there were in fact two vacancies.
The qualifications required for the post under the relative scheme of service are the following:
“Recent experience as a certificated air traffic control Officer holding appropriate United Kingdom Ministry of Aviation ratings or their equivalent. A sound professional knowledge of Air Traffic Control Procedures and knowledge of Meteorology, Communications and Navigational facilities and an appreciation of the limitations of Wireless Telegraphy, Radio Telephony and Radar Equipment. Good character and a high standard of physical fitness. Previous flying experience as aircrew.”
Applicant’s application was forwarded to the Public Service Commission under cover of a letter signed by the Director of Civil Aviation which is exhibit 1 in these proceedings. Paragraph 3 of this letter reads as follows: [*138]
«Κατόπιν επιτοπίου πρακτικής εξασκήσεως ο κ. Παναγίδης υπέστη, επιτυχώς τας εξετάσεις προς απόκτησιν του αναλόγου πτυχίου Ισχύος Προσεγγίσεως Αεροσκαφών και Κυκλοφορίας Αεροδρομίου, δεν κατέστη δυνατή όμως η έκδοσις του τοιούτου πτυχίου καθ’ ότι ούτος απερρίφθη δι’ ιατρικούς λόγους ως ακατάλληλος διά την θέσιν του Ελεγκτού Προσεγγίσεως και Αεροδρομίου. Εν όψει των ανωτέρω ο κ. Παναγίδης δεν κατέχει τα διά την ρηθείσαν θέσιν απαιτούμενα προσόντα.»
(“After a course of practical training which Mr. Panayides has undergone locally he has passed the examinations required for acquiring the appropriate certificate in Approach and Air Traffic Control but the issue of such certificate has not been rendered possible because he was on medical grounds found unsuitable for the post of Approach and Aerodrome Control officer. In view of the above Mr. Panayides does not possess the qualifications required for the said post”).
The reason for the, statement in the above passage of exhibit 1 was the letter exhibit 6 addressed by Dr. Kalbian to the Director of Civil Aviation to the effect that the applicant had been examined by the eye specialist and had been turned down due, to his not having the required visual acuity.
The eye specialist who examined the applicant was called as a witness by the respondents. His findings; according to his evidence were the following :
The applicant had normal fields of vision and without glasses his visual acuity was 6/60 in each eye. The colour sense and the fundi were normal. With regard to the visual acuity the witness explained that the applicant was able to see at a distance of six metres what a person with normal eyesight should see at a distance of sixty metres. The witness added that with glasses on the visual acuity of the applicant was normal.
Under the Standard and Recommended Practices of the International Civil Aviation Organization where the [*139] general medical requirements for Air Traffic Controller Rating, are set out and on the basis of which the medical examination of the candidates was carried out the required visual acuity is 20/30, (6/9, 0.7) in each eye separately with or without correcting glasses. But if this visual acuity is obtained only by use of correcting glasses the vision without glasses in either or both eyes must not be less than 20/60, (6/18, 0.3). (See regulation 6.3.1(b) of the relative regulations exhibit 6). As applicant’s visual acuity was only 6/60 instead of the minimum of 6/18 he was found to be medically unfit.
The Public Service Commission at its meeting of the 1st March, 1969, decided to invite only the interested party who, as stated earlier on, was the only other candidate for the post, for an interview. In the light of exhibit 1 it is clear that the reason why applicant was not invited for an interview with a view to being appointed to the post was because he was not the holder of the required certificate under the scheme of service and was not, therefore, considered qualified for the post.
It was submitted by learned counsel for the applicant that the decision of the respondents was wrongly taken on the following grounds:
Firstly, because the question of the eligibility or otherwise of candidates was a matter for the Commission and they relied on the view of the Director of Civil Aviation.
Secondly, because at the time when the applicant was selected for a scholarship he underwent a medical examination including an eyesight test and had been found fit.
Thirdly, that because. the Commission had before it a letter from Dr. Kalbian (exhibit 5) in which it was stated that the applicant did not have the required visual acuity and that, therefore, he was medically unfit for appoinment they failed to inquire what the actual visual acuity of the applicant was and what was the required acuity and under what regulations was such a requirement necessary and to compare such information with the [*140] requirements of the scheme of service.
Lastly, learned counsel submitted, the phrase “high standard of physical fitness” in the scheme of service did not import the standard of visual acuity which may be required by internationally accepted standards because there is no reference to visual acuity in the scheme of service.
With all respect to counsel I find myself unable to agree with his submission on any of these grounds.
It is, in my view, quite clear from the letter of the Director exhibit 1 that the reason why he did not consider the applicant as possessing the necessary qualifications was the fact that the applicant did not possess the certificate which is one of the qualifications required under the scheme of service. That he did not possess this certificate is an undisputed fact; and it would appear that he never challenged the omission or refusal to issue him with the said certificate. This being the case it cannot, in my view, be said that the respondents did not decide the issue of eligibility themselves but adopted the Director’s view on this issue instead. It seems to me that by his letter exhibit 1 the Director did no more than inform the Commission of the fact that the applicant did not possess the .certificate required under the scheme of service and of the reason why such certificate was not issued to him.
I do not think that the Commission had to or could go beyond the fact that the applicant did not possess the, required certificate, because even if the reason for this fact was an issue before them I do not see that they could do more than accept the medical opinion as to the condition of his vision, the correctness of which incidentally has not, at any stage, been challenged. Nor do. I think that because the applicant had been found medically fit on a previous occasion for some other purpose has any bearing on the issue in the present case where the medical requirements are prescribed by internationally accepted regulations.
Regarding the submission on the part of the applicant [*141] that the expression “high standard of physical fitness” does not import the standard of visual acuity which may be required by internationally accepted standards because there is no reference to visual acuity in the scheme of service I think that here again the question is only of academic interest for the purposes of the present case. This matter would only be relevant if there was no requirement in the scheme of service for a certificate; but in any case, it would, in my view, be strange if it were to be held that “high standard of physical fitness” does not include visual acuity in the same way that it must include unimpaired nervous system, good hearing etc. especially having regard to the nature of the duties and responsibilities of the post.
But, be that as it may, this recourse must fail on the ground that, to say the least, it was open to the Commission to consider the applicant as not possessing the qualifications required under the scheme of service in view of the fact that, as stated earlier on, he did not possess the required certificate. Independently of the above it seems to me that, in these circumstances, it cannot be said that applicant had any existing legitimate interest of his adversely and directly affected in the sense of Article 146.2 of the Constitution. (See, inter alia, Frangou v. The Greek Communal Chamber (1966) 3 C.L.R. p. 201 and Miltiadou v. The Republic (1969) 3 C.L.R. 210).
At some stage of his address learned counsel for the applicant put forward the submission that the interested party did not possess a certificate from the United Kingdom Ministry of Aviation, but one issued in Cyprus and that, therefore, he was not qualified under the scheme of service. Although learned counsel said he would be calling evidence on this point he did not pursue the matter any further and there is nothing before me to show that the certificate issued to the interested party was not equivalent to the United Kingdom certificate in accordance with the scheme of service.
In the result this recourse fails and it is hereby dismissed.[*142]
In all the circumstances of the case I do not propose to make any order for costs.
Recourse dismissed.
No order as to costs.
cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο