(1975) 3 CLR 13
1975 January 18
[*13]
[A. LOIZOU, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
MICHAEL ZINIERIS (NO. 1),
Applicant,
and
THE REPUBLIC OF CYPRUS, THROUGH
THE PUBLIC SERVICE COMMISSION,
Respondent.
(Case No. 576/73).
Public Officers-Promotions-Qualifications-Whether a certain candidate possesses the relevant qualifications a matter of discretion by the Public Service Commission-Court can only examine whether the Commission could reasonably have come to a particular conclusion on the material before it-Scheme of service requiring “knowledge of English” up to a certain standard-Educational background of interested party and his passing of examinations held in English-More than ample material upon which the respondent Commission could consider him as satisfying said requirement.
Public Officers-Promotions-Post of Accounting Officer 1st Grade-Merit-Interested Party rated as better than applicant in the confidential reports-And recommended for promotion by Head of Department-Whilst applicant was not-Seniority-Applicant by 2 1/2 years senior-Seniority not the decisive factor-Should be duly taken into consideration and it should only prevail if other things are equal-But in this case were not equal-Additional qualifications by applicant-Not constituting an advantage under the schemes of service calling for cogent reasons for disregarding them-On the material before the Commission and in the light of the recommendations by Head of Department open to it to select the interested party as the best candidate.
Natural Justice-Public Officers-Promotions-Head of Department-Making adverse comments about a candidate before Public Service Commission when meeting to make selections for promotion-Comments need not be communicated to candidate in order to give him opportunity to answer-Karamichalis v. Republic (1972) [*14] 3 C.L.R. 37 distinguished-Section 44 (3) of the Public Service Law 1967 (Law 33 of 1967).
The applicant complains against the decision of the respondent Public Service Commission to promote the interested Party to the post of Accounting Officer 1st Grade in the Treasury Department.
When the Commission met to consider the filling of the said post the Head of Department is recorded to have stated the following with regard to the applicant: “Although he is the most senior officer of his grade, yet he is slow in his work; recently he has been attached to the Higher Technical Institute but there had been complaints about his work and also a request that he might be transferred elsewhere; he does not show interest in his work; he lacks in his performance of work”. The Head of Department also added “that there are other officers who are better than him”.
On the other hand the Head of Department recommended for promotion the interested party after stating that “he is very good in his work; he is considered as the, best officer of his grade”.
Applicant has passed certain examinations in addition to those required by the relevant scheme of service. As among the qualifications required under the said scheme of service was “knowledge of English of the standard of the English Higher of the Cyprus Certificate Examination” and as the interested party does not appear to have passed this examination the applicant argued that he (the interested party) did not possess the necessary qualifications under the scheme of service.
Counsel for applicant further submitted that the respondent Commission failed to perform their paramount duty of selecting the best candidate inasmuch as the applicant had superior qualifications than the interested party. Counsel, also, complained that no cogent reasons have been given for disregarding the applicant’s seniority which was of a length of two and a half years.
A perusal of the confidential reports for the last 3 years preceding the promotion showed that the interested party has been rated as better than the applicant.
Another submission of counsel was that the reference, at the meeting of the respondent by the Head of Department, to the [*15] oral complaints made about the work of the applicant and the request that he might be transferred elsewhere, were of such a nature as to render the sub judice decision null and void; counsel claimed, in this respect, that the said statement was not correct and that the rules of natural justice have been violated because the applicant should have been informed about it and given the opportunity to answer these adverse comments.
Relevant to this ground was a letter addressed by the Director of the Higher Technical Institute to the Head of Department on the occasion of the transfer of the applicant from the Institute where it was stated, inter alia, that the applicant served the Institute in a satisfactory manner.
Held, (1) The determination whether a certain candidate in fact possessed the relevant qualifications is a matter of discretion for the respondent Commission, and this Court can only examine whether the Commission on the material before it could reasonably have come to a particular conclusion and in the circumstances there was more than ample material upon which the Commission could consider the interested party as satisfying the requirement concerning knowledge of English in the scheme of service. (See Petsas and The Republic, 3 R.S.C.C. 60 at p. 63).
(2) On the material before the Commission and in the light of the recommendations made by the Head of Department, it was open to it to select the interested party as the best candidate.
(3) The additional examinations passed by the applicant did not constitute under the relevant scheme of service an additional advantage calling for cogent reasons for disregarding them.
(4) Seniority is not the decisive factor which governs promotions but one that should be duly taken into consideration and it should only prevail if other things were equal. (See Partellides v. The Republic (1969) 3 C.L.R. 480). Obviously the Commission did not find them to be so in the present case and I find myself unable to interfere with the exercise of their discretion in the matter.
(5) There was nothing incorrect or untrue in the statement made by the Head of Department to the Commission regarding oral complaints about the applicant. The Head of Department had weighed what was said to him by the Director of the Insti- [*16] tute orally and examined it in relation to all other factors pertaining to the applicant and he decided that it was an incident worth mentioning and he preferred it as against the contents of the subsequent letter.
(6) There was no violation of the rules of natural justice. Unlike the case of confidential reports which, under s. 45 (4) of the Public Service Law, 1967, have to be communicated to the officer when criticised for negligence, failure or improper behaviour, section 44 (3) of the Law does not provide for communication to a candidate of the recommendations of the Head of the Department, if adverse, made to the Commission in relation to a selection for promotion.
(7) In the absence of any express statutory provision, it has to be examined whether the omission to inform the applicant of the adverse comments renders the procedure insufficient to achieve justice, and it requires additional steps to remedy the situation. In my view, this procedure does not offend against the sense of justice in a way that would compel this Court, empowered as it is by the provisions of the Constitution, to imply and read into it an obligation to inform candidates of an adverse opinion expressed about them by the Head of the Department (See Republic v. Georghiades (1972) 3 C.L.R. 594, at pp. 670-671, 680-681; Karamichalis v. The Republic (1972) 3 C.L.R. 37 distinguished).
Application dismissed.
Cases referred to:
Petsas and The Republic, 3 R.S.C.C. 60 at p. 63;
Partellides v. The Republic (1969) 3 C.L.R. 480;
Kyriacopoulou v. The Republic (1973) 3 C.L.R. 1;
Republic v. Georghiades (1972) 3 C.L.R. 594, at pp. 670-671, 680-681;
Karamichalis v. Republic (1972) 3 C.L.R. 37.
Recourse.
Recourse against the decision of the respondent Public Service Commission to promote the interested party to the, permanent [*17] post of Accounting Officer 1st Grade, in the Treasury Department, in preference and instead of the applicant.
A. Eftychiou, for the applicant.
S. Nicolaides, Counsel of the Republic, for the respondent.
The following judgment* was delivered by:-
A. LOIZOU, J.: By the present recourse the applicant, an Accounting Officer, 2nd Grade, attacks the validity of the decision of the respondent Commission of the 10th July, 1973, published in the official Gazette of the 28th September, 1973, by which Christakis Bellapaishiotis (hereinafter referred to as “the Interested Party”), was promoted to the permanent post of Accounting Officer 1st Grade in the Treasury Department with effect from 1.8.1973, a promotion post from the immediately lower one of Accounting Officer 2nd Grade.
The filling of two vacancies in the post of Accounting Officer 1st Grade was considered and decided upon by the respondent Commission at its meeting of the 10th July, 1973, and the relevant minutes read as follows:-
“The Accountant-General, having in mind the Annual Confidential Reports as well as the quality of the work of all the officers serving in the post of Accounting Officer, 2nd Grade, stated as follows:-
(a) M. Zinieris: Although he is the most senior officer of his grade, yet he is slow in his work; recently he has been attached to the Higher Technical Institute but there had been complaints about his work and also a request that he might be transferred elsewhere; he does not show interest in his work; he lacks in his performance of work. The Accountant-General added that there are other officers who are better than him.
(b) K. Phinikarides and M. Arsalides: Although they are good in their work, yet there are other officers who are better than them.
(c) Chr. Bellapaisiotis: He is very good in his work; he is considered as the best officer of his grade [*18] and recommended him for promotion to the permanent post.
(d) Pl. Christofides: He is very good in his work; he has passed the Professional Exams of the Association of International Accountants; he is considered as the next best candidate and recommended him for secondment to the permanent post.
(e) The remaining officers are not so good as Messrs. Chr. Bellapaisiotis and Pl. Christofides.
After considering the above and after taking into consideration all the facts appertaining to each one of the officers serving in the post of Accounting Officer, 2nd Grade, and after giving proper weight to the merits, qualifications, seniority, service and experience of these candidates, as shown in their Personal Files and in their Annual Confidential Reports, the Commission decided to follow the recommendations of the Head of Department. The Commission accordingly decided that the following officers were on the whole the best and that they be promoted/ seconded to the permanent post of Accounting Officer, 1st Grade, w.e.f. 1.8.73, as shown opposite their names:
Chr. Bellapaisiotis - to be promoted
Pl. Christofides - to be seconded”.
Both the applicant and the interested party have passed the Higher Accounting Examination of the London Chamber of Commerce, as well as the Government Examinations on Financial Instructions and General Orders. The applicant, however, has passed, in addition, a number of examinations of the Cyprus Certificate of Education, including English Higher and Section I of the Examinations of the Association of Certified Accountants, which has been argued is a relevant subject to the work of an Accounting Officer and material to the comparison of the merits of the applicant and the interested party.
Among the qualifications required under the relevant scheme of service (exhibit 1, encl. 2) is “knowledge of English of the standard of the English Higher of the Cyprus Certificate Examination”. The interested party does not appear to have passed this Examination, a fact which has given rise to a ground [*19] of law relied upon by the applicant, to the effect that the interested party did not possess the necessary qualifications under the scheme of service, namely, the knowledge of English of the standard of the English Higher of the Cyprus Certificate of Education. I find it convenient to dispose of this issue now.
The educational background of the interested party includes four years studies at the English School and the Nicosia College, as well as his passing the other Examinations already referred to which are all held in English, and, in my view, the respondent Commission could reasonably have come to the conclusion that he had knowledge of English of the required standard.
The determination whether a certain candidate in fact possesses the relevant qualifications is a matter of discretion for the respondent Commission, and, as stated in the case of Petsas v. The Republic, 3 R.S.C.C. 60 at p. 63, “this Court can only examine whether the Commission on the material before it could reasonably have come to a particular conclusion”, and in the circumstances there was more than ample material upon which the respondent Commission could consider the interested party as satisfying this requirement.
The next ground argued on behalf of the applicant is that the respondent Commission failed to perform their paramount duty of selecting the best candidate for the post, inasmuch as the applicant had superior qualifications and seniority than the interested party. Ancillary to this, is the complaint that no cogent reasons have been given for disregarding the applicant’s seniority which admittedly is of a length of two and a half years.
Relevant to this issue are the confidential reports on each candidate, a perusal of which shows that the interested party has been rated as better than the applicant. For the year 1970 there is no particular observation made by the reporting officer in respect of the applicant who is rated as very good and good, whereas for the interested party it is recorded that-”this officer is very keen in his work and during the year under review he has improved the standard of his work tremendously, he has a pleasant personality and carries out his duties very efficiently”.
For the year 1971 there is no special observation for the applicant, whereas for the interested party it is stated-”this officer has shown outstanding zeal in his work. He is very [*20] efficient and reliable and has improved his English since last year. He is very hard working and ambitious and his Director has recommended him for a special confidential report. The standard of his work at the Depertment of Veterinary Services is much above average and I strongly recommend him for promotion to the post of Accounting Officer 1st Grade”.
For the year 1972 the applicant has the following observation-“he is potentially quite a capable officer. He is very well conversant with the Government Accounting system and is very good in expressing his thoughts in writing, both in Greek and in English. He is obedient, good-mannered and has got a sense of proportion”. For the interested party the observation is-“he is a very hard working and reliable officer. He has performed his duties in a very satisfactory manner and in my opinion he should be promoted at the first available opportunity having regard to the high quality of the work done at the Department. His devotion to duty is outstanding”. It should be pointed out also that in the 1972 report the interested party was rated as excellent in six out of 10 ratable items, whereas the applicant was rated as very good and good. Though these reports come from different reporting officers, the countersigning officer in all is the Accountant-General himself, who agrees with these assessments.
In my view, on the material before the respondent Commission and in the light of the recommendations made by the Head of the Department, it was open to it to select the interested party as the best candidate; there is nothing to show that the respondent Commission failed in the exercise of its discretion on the matter; and I find no reason to interfere with the exercise of such discretion.
The additional examinations passed by the applicant did not constitute under the relevant scheme of service an additional advantage calling for cogent reasons for disregarding them. In any event, together with his seniority they were before the Public Service Commission and they were indeed factors taken into consideration by it when coming to the sub judice decision. On the totality of the circumstances the interested party was found to be the most suitable for the purpose and it decided to follow the recommendations of the Head of the Department which are duly supported, by the material in the confidential reports, where the reasoning required, in the circumstances, is to be found. [*21]
Seniority, as it has been said, is not the decisive factor which governs promotions, but one that should be duly taken into consideration and it should only prevail if other things were equal. (Vide Partellides v. The Republic (1969) 3 C.L.R. 480). Obviously the Commission did not find them to be so in the present case and I find myself unable to interfere with the exercise of their discretion in the matter.
What remains to consider is whether the reference at the meeting of the respondent Commission by the Accountant-General to the oral complaints made about the work of the applicant and the request that he might be transferred elsewhere, are of such a nature as to render the decision null and void.
It has been claimed that this statement was not correct and that in any event the Rules of Natural Justice have been violated inasmuch as the applicant should have been informed about it and given the opportunity to answer these adverse comments.
Relevant to this last ground is the letter of the 28th June, 1973, (blue 20 in exhibit 4-the personal file of the applicant kept at the Treasury) which was addressed by the Director of the Higher Technical Institute to the Accountant-General on the occasion of the transfer of the applicant for accounting duties at the motor-car Registry Office, as from the 20th June, 1973, where it is stated that as far as the performance of his accounting duties Mr. Zinieris served the Institute in a satisfactory manner. Regarding other connected duties arising from the particular nature of the work of the Higher Technical Institute, the non-continuous posting of Mr. Zinieris to the Institute and later his unfortunate absence on account of illness, probably prevented him to be fully acquainted with them.
Since the correctness of the statement of the Accountant-General was disputed, he was called and gave evidence on oath. He stated that he based his recommendation on his personal knowledge of the candidates, as well as on the contents of the confidential reports and on the basis of other facts and circumstances and other information which came to his knowledge from time to time regarding each one’s performance at work. He reiterated that he had received oral complaints from Mr. Christodoulides, the Director of the Higher Technical Institute about the efficiency of the applicant and a request that he be transferred, which was done by the time the letter of the 28th June, 1973 was received. He was surprised with the contents [*22] of this letter which he referred to Mr. Theofilou, his assistant, handling personnel matters, with instructions to protest to Mr. Christodoulides to the effect that the contradiction contained in the letter was unfair to them.
When the Accountant-General attended the meeting of the respondent Commission, lie had in mind both the oral views of the Director of the Higher Technical Institute, as well as the said letter. Of the two, he preferred the Oral complaints which he conveyed to the respondent Commission and he stated that he gave his opinion to the respondent Commission as to what he honestly believed represented a true picture of each candidate.
In the first place, there was nothing incorrect, or untrue in this statement. The Accountant-General had weighed what was said to him by the Director of the Higher Technical Institute orally and examined it in relation to all other factors pertaining to the applicant and he decided that it was an incident worth mentioning and preferred as against the contents of the subsequent letter.
Regarding the violation of the Rules of Natural Justice, it, may be observed that unlike the case of confidential reports which under section 45 (4) of the Public Service Law, 1967, the effect of which was considered in Kyriacopoulou v. The Republic (1973) 3 C.L.R. 1, have to be communicated to the officer when criticized for negligence, failures or improper behaviour in the performance of his duties, section 44 (3) of the Law, does not provide for communication to a candidate of the recommendations of the Head of the Department, if adverse, made to the Commission in relation to a selection for promotion.
In the absence of any express statutory provision, it has to be examined whether this omission renders the procedure insufficient to achieve justice, and it requires additional steps to remedy the situation. In my view, this procedure does not offend against the sense of justice in a way that would compel this Court, empowered as it is by the provisions of the Constitution, to imply and read into it an obligation to inform candidates of an adverse opinion expressed about them by the Head of the Department. (See The Republic v. Georghiades (1972) 3 C.L.R. 594, at pp. 670-671, 680-681).
The case of Karamichalis v. The Republic (1972) 3 C.L.R. 37 relied upon by the applicant, is distinguishable, as, in that [*23] case, the applicant was found unfit for promotion because of a statement made by the Head of his Department to the respondent Commission to the effect that the applicant had misconducted himself whilst in England on a course of training and neither the Head of the Department nor the Commission knew what the applicant in that case was supposed to have done and they were not, therefore, in a position to judge for themselves whether his behaviour amounted to misconduct or such misconduct, as to render applicant unfit for promotion and the decision was annulled on a misconception regarding the applicant s merits. On the other hand, in the present case, the information received by the Head of the Department referred to the work of the applicant and appears to have been duly weighed by him bearing in mind this officer’s overall performance in the Department and then acted upon. In the final analysis, what we have, are the views of the Head of the Department and the reference to a recent complaint received about the officer’s efficiency and there is nothing of any disciplinary or quasi disciplinary nature, nor has it led to any misconception of fact.
For all the above reasons the recourse fails and is hereby dismissed, but in the circumstances I make no order as to costs.
Application dismissed.
No order as to costs.
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