(1972) 3 CLR 537
1972 October 23
[*537]
[A. LOIZOU, J.]
IN THE MATTER OF ARTICLE 146 OF THE
CONSTITUTION
SOFOCLIS SOFOCLEOUS (No. 2),
Applicant,
and
THE REPUBLIC OF CYPRUS, THROUGH
THE PUBLIC SERVICE COMMISSION,
Respondent.
(Case No. 261/71).
Public Service and Public Officers-Promotions-Applicant not possessing all qualifications required under the relevant schemes of service for the immediately higher post-It follows that applicant cannot be heard complaining against promotions to that higher post by means of a recourse under Article 146 of the Constitution-Section 44(1) (b) of the Public Service Law, 1967 (Law No. 33 of 1967)-Christodoulou and Another v. Kouali and Others (1971) 3 C.L.R. 207, distinguished.
Promotions-Clerk 1st Grade-Holding such post by operation of law-Section 16(1) of The Competences of the Greek Communal Chamber (Transfer of Exercise) and the Ministry of Education Law, 1965 (Law No. 12 of 1965)-And without possessing all qualifications required under the relevant schemes of service viz. General Orders and Financial Instructions-Such qualifications being a requirement in the schemes of service of the immediately higher post of Principal Clerk-Should have been possessed by candidate for promotion to such post.
The facts sufficiently appear in the judgment of the learned Judge, dismissing this recourse on the ground that the applicant did not possess the qualifications required by the relevant scheme of service for the post of Principal Clerk, independently of whether an officer was holding, as the applicant, the immediately lower post of Clerk 1st] Grade, [*538
Cases referred to
Economides v. The Republic (reported in this Part at p. 506 ante).
Christodoulou and Another v. Kouali and Others (1971) 3 C.L.R. 207.
Recourse.
Recourse against the decision of the respondent Public Service Commission to promote the interested parties to the post of Principal Clerk, General Clerical Staff, in preference and instead of the applicant.
E. Lemonaris, for the applicant.
Cl. Anroniades, Counsel of the Republic, for the respondent.
Cur.. adv. vult.
The following judgment was delivered by :-
A. LOIZOU, J. The applicant in this case was first employed by the Greek Communal Chamber on a temporary basis as a Clerk 1st Grade on the 1st March, 1962. He was made permanent a year later (exhibit 2). The terms of service under which he was engaged appear in the schedule attached to exhibit 2. After the dissolution of the Greek Communal Chamber, its functions were taken over by the Government, by virtue of The Competence of the Greek Communal Chamber (Transfer of Exercise) and Ministry of Education Law 1965 (Law 12/1965). The applicant was placed as Clerk 1st Grade, General Clerical Staff, as from the 1st February, 1966 by virtue of section 16(1) of the aforesaid Law. This was effected by letter of the Public Service Commission dated the 3rd February, 1966 (exhibit 1). In accordance with paragraph 2 thereof, this service of the applicant would be under the same terms as those applicable to him before the enactment of Law 12/65; this in accordance with the provisions of section 16(2) of the said Law.
On the 22nd April, 1971, the Director of the Department of Personnel, wrote to the Public Service Commission, a letter (exhibit 3, blue 9), informing the Commission that the Minister of Finance approved the filling of a number of posts including five posts of Principal [*539] Clerk; increased later to six, by letter dated the 17th May, 1971.
The schemes of service for the post of Principal Clerk appear in exhibit 3 (blue 10). This is a promotion post from the immediately lower post of Clerk 1st Grade which again is a promotion post from the lower post of Clerk 2nd Grade (see exhibit 5). The qualifications required under the said schemes of service are, inter alia that the candidates should have passed the examinations in General Orders and Financial Instructions.
The Public Service Commission considered the filling of the said post at its meeting of the 18th May, 1971. The applicant was not considered as an eligible candidate, because he had not passed-and this is not disputed by him-the Government examinations in General Orders and Financial Instructions.
The applicant in fact, as far back as the 25th May, 1970, had asked the Chairman of the Public Service Commission by letter (exhibit 3, blue 21) to be informed whether he possessed the required qualifications for promotion to the post of Principal Clerk and he was informed by letter of the 7th July, 1970 (exhibit 3 blue 22) that he did not possess the qualifications since he had not passed the said examinations.
It was the contention of the applicant that when he was posted in the Government Service, as per exhibit 1, no condition for such examinations was imposed. I may say here, that civil servants have no vested rights in promotions and the required qualifications for promotion posts may be changed by the appropriate organ of the State from time to time, without that affecting in any way any vested right of a civil servant, in the absence of any constitutional safeguard. (See Georghios Economides v. The Republic (reported in this Part at p. 506 ante).
The obligation which appears to have been undertaken by paragraph 2 of exhibit 1, hereinabove referred to and section 16(2) of the Law, refers, to my mind, to the terms of service in relation to the post vis-a-vis the terms and conditions of the corresponding post he was holding with the Communal Chamber and does not [*540] create any obligation that new terms and conditions would not be included in future schemes of service for promotion post.
It has been maintained by the applicant that once he has been appointed to the post of Clerk 1st Grade without having passed the examinations required for that post under the schemes of service (exhibit 4) in General Orders and Financial Instructions, he would be eligible for promotion to the post of Principal Clerk without such qualifications. I have been referred, in this respect, to the case of Christodoulou and Another v. Kouali and Others (1971) 3 C.L.R. 207, as an authority for this proposition.
There were a number of grounds relied upon in the present recourse, but as finally argued, the case was solely confined to the issue, as Mr. Lemonaris very rightly put it, that the case should either stand or fall on the bearing this Christodouiou case may have on the present case.
To my mind, Christodoulou case (supra) should be distinguished from the present one. In the former case the promotions of the appellants were effected by the Commander of Police with the approval of the Minister of Interior, in accordance with the provisions of section 2(2) of the Police Amendment Law, 1966. The appellants, when sergeants, had not passed the qualifying examinations required by the Police (Promotion) Regulations, 1958, regulation 6(2)(b) for promotion to the rank of Inspector. They had in fact been promoted to the rank of Sub-Inspector, which, in accordance with the definition of the Police Law, Cap. 285 is included with the Chief Inspector in the definition of the word “Inspector”.
The judgment of the Court was that the true construction of Regulation 6(2)(b) was that the qualifying examinations for promotion to the rank of Inspector were only required in the case of an officer who was a sergeant and not one who was .a Sub-Inspector.
The case, therefore, of Christodoulou, turned on the interpretation of the Police Regulations and the promotions effected thereunder and cognizance was taken of [*541] the power given to the Commander of Police under Regulation 6(3)(b) to dispense with the possession of the qualifying examinations for marked ability in one’s work; it was also decided on the ground that the Promotion Board could not inquire into the validity of the promotion of the appellants to the rank of Sub-Inspector so long after their promotion.
In the present case it is specifically required by the scheme of service, independently of whether an officer was holding the immediately lower post, that in order to be eligible he should have passed the examinations in General Orders and Financial Instructions. One might have found himself, as applicant did, in the post of Clerk 1st Grade, without having passed those examinations. It was, therefore, thought essential by the Council of Ministers in exercising its executive power, to require that for a promotion to the post of Principal Clerk, these qualifications should have been possessed by the candidates, and there is no legal provision preventing this course to be followed.
It appears that the reason for including this provision, was the fact that there were officers holding, for some reason or other, the post of Clerk 1st Grade, who had not passed those examinations. The applicant was one of those who found himself in the position of Clerk 1st Grade, by operation of Law. On account of this, he cannot be presumed to have passed the examinations which are required to make him a candidate eligible for that post. This is more so, because under section 44(1)(b) of the Public Service Law 33/67, no officer shall be promoted to another office, unless, he possessed the qualifications laid down in the schemes of service for that office.
In the circumstances, the application is dismissed and I make no order as to costs.
Application dismissed.
No order as to costs.
cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο