clr/1982/1982_3_1165.pdf

(1982)3 C.L.R. 435 adopted. This recoutse was directed against the decision of the respondent Educational ScviceCommittee to promote to the post of General Inspector oi Elementary Education (a promotion post) the interested parties in preference and instead of the applicant. It was not in dispute that applicant was senior to both interested parties. Held, that when all other factor!- are equal clear and cogent reasons should be given by the appointing organ for disregarding the factor of senioiity; that looking at the relevant minutes ot the respondent Commission theie are no reasons at all why applicant's senioiity was disregaided; that, therefore, all other things being more oi less equal, applicant's seniority ought _to prevail; that applicant has, therefore, dischaiged the onus Editor'snote: The sub judice decision in this recourse was, also, the subjectmatter of the recourse in the case of Karageorghis v. Republic

(1982)3 C.L.R. 435 the reasoning of which has been adopted in this Case. 1165 Tornaris v. Republic

(1982)of satisfying this Court that he wasan eligible candidate who was strikingly superior tothe ones selected and the respondent has thus, exceeded the outer limits of its discretion, and,has acted inabuse ofitspowris; that, moreovei,ithasnotexercised its discretion in a valid manner thtough failure to take in its 5 exercise into account all mateiial considerations, namely the consideration of seniority; accordingly the subjudice decision must be annulled (reasoning in Karageorghis v. Republic

(1982)3 C.L.R. 435 adopted and applied). Subjudice decision annulled. 10 Cases leferred to: loannideiv. Republic

(1979)3 C.L.R. 328at p.338; Michael v. Republic

(1971)3 C.L.R. 405; Karageorghis v. Republic

(1982)3 C.L.R.

1. Recourse. Recourse against the decision of the respondents whereby the interested parties were promoted to the post of General Inspector of Elementaiy Schools in preference and instead of the applicant. E. Efstathiou, for the applicant. G. Constantinou (Miss), Counsel of the Republic, for the respondent. A.S. Angelides, for interested party G.Papaleontiou. Ch. Panayides, for interested party A. Papadopoulos. Cur. adv. vult. 20 HADJIANASTASSIOU J. read the following judgment. In the present proceedings Iordanis K. Tornaris, the applicant, seeks a declaration of the Court that the decision of the respondents which hasbeen published intheOfficial Gazette ofthe Republic on 7th November, 1980,under No.2009 by which the respond- 30 ents promoted to the post of General Inspector of Elementaiy Education the interested parties George Papaleontiou and Antonios Papadopoulos in preference and instead of the applicant is null and void and of no effect whatsoever. THE FACTS 35 The applicant was appointed as a teacher in the Elementary Education since 1947and he waspromoted at first to the post 1166 3 C.L.R. Tornaris v. Republic Hadjianastassiou J. ofHeadmaster B'in 1957andin 1959tothepostof Headmaster A'. In 1960he wasfurther promoted to the post of Inspector of Elementary Education, a post which he holds until today being the most senior Inspector in Cyprus. In addition the 5 applicant was given a scholarship in the Saltley College of the University of Birmingham and had obtained a diploma in Pedagogy. In 1969-70 he attended the University of Oxford and obtained a diploma in educational administration. In 1978 he obtained from the Sta.e University of New York the Master 10 of Science in educational administration with an additional honorary disiinction because of his excellent proficiency. The applicant has served education in a number of other posts and in August, 1980, when the post of General Inspector of Elementary Education has been published he appeared together 15 with a number of other candidates before the Commission and in addition to his qualifications and his diplomas he was the most senior from all the other candidates. In February, 1981, the interested party G. Papaleontiou opposed the application of the applicant, but for reasons which 20 are not necessary to be given his application was not tried at the same time with the case of Andreas Karageorghis v. The Republic and it isnow known that the Court inthecase quoted, which was delivered on5th May, 1982,*annulled the appointment of interested party G. Papaleontiou and no appeal was 25 made. Turning now to ihe opposition counsel for the respondent argued that the decision attacked wascorrect and legal andwas made within the discretionary powers of the Committee under Law 10/
2. Inaddition counsel inher opposition, havingg:ven 30 a number of reasons, finally added that the CommHtee in piomoting A. Papadopoulos relied on his inert, qualifications, experience and the annual confidential reports, as well as, on the opinion of the Head of the Department Mr. N. Papaxenophontos and reached the conclusion that theaforesaid interested 35 party was the most suitable for promotion. In addition Mi. Arestis, counsel for the interested party A. Papadopoulos inhis written addressargued that theCommittee has taken into consideration the whole career of the interested party during his service. Indeed, he added, one going * Reported in

(1982)3 C.L.R. 435. 1167 Hadjianastasslou J. Tornaris v. Republic

(1982)through and comparing the one with the other, it is clear that the interested party had mors administrative ability and admi­ nistrative qualifications than the applicant. As regards the allegation of the applicant that he had more qualifications as compared to the interested party, counsel further added that 5 it is entiiely incorrect because the interested party is a holder of P.H.D. of the University of Minessota since 1974, wh;lst the applicant has an M.A. in Educational Adm;lustration which he received recently. Finally, counsel concluded -hat the stand of the applicant thathehad moie than irne years seniority 10 over the interested party and that the applicant ought to have been preferred in reality, he added, the applicant is more senior to the interested party by six years and ten months only, because the applicant had become Inspector of General Lessons of Elementary Educationon 1st September, 1962, and theinterested 15 party was promoted in the same post on 1st February, 1969. Iηsuppoit of his argument hesaid that in the light of theauthor­ ities the seniority should not play a big role and relied on the case of Andreas Ioannides v. The Republic of Cyprus

(1979)3 C.L.R. 328 at p. 338 and Andreas Michael v. 77/e Republic 20 of Cyprus

(1971)3 C.L.R.

1. Mr. Efstathiou counsel on behalf of the applicant in support of his written address argued that the applicant is most superior in merit to the interested party G. Papaleontiou who did not have a confidential report by which he should be lated from 25 the year
2. Indeed, he argued that the interested party cannot claim that he is superior to the applicant because there was notyardstick of comparison in thepresent case. Inaddition counsel added that as regards the second interested party one would observe that from the comparison of the confidential 30 reports of A. Papadopoullos with those of the applicant it becomes clear that the applicant is more superior in merit Furthermore, counsel said that if one goes through the confi­ dential reports the applicant ; s rated as being excellent regarding his administrative ability and his administiative qualifications 35 in the aspect of human relations; and in his personality, as well as, his ability for work, and on the contrary, the interested party has been rated as very good. Finally, counsel argued that the seniority of the applicant should weigh more for his promotion, because Mr. Papaxenophontos clearly said: "As 40 far as seniority is concerned, I wish to point out the importance 1168 3 C.L.R. Tornaris v. Republic Hadjianastassiou J. of this criterion in this particular case seeing that we have before us candidate; who have passed various stages of selection, and they have spent themselves in the service of education. Af. far ai qualifications are concerned, I wish to stress that the 5 first priority is not so much the academic qualifications of the candidates but the special qualifications that should be compa­ tible with this particular post and the relevant duties. What is needed is educational qualifications, knowledge of modern pedagogic concepts and methods, as also by the schemes of 10 service". I have considered very carefully the arguments of all counsel and because as I have said earlier 1 have issued my judgment in Andreas Karageorghis ν TheRepublicthroughthe Committee of Educational Service in which I have dealt at length with the 15 very same submission I have reacted the conclusion to adopt and apply ID the present case the principles and the findings which appear in thatjudgment. Indeed,dealing with the effect of seniority I can do no better than to turn once again to my judgment in which I had this to say at pp 455-458: 20 25 30 35 "It has been authoritatively settled by the case law of this Court that seniority is one of the factors *o be taken into account in effecting a promotionand it may be the decisive one if all other things are equal. (See inter alia Lardis v. The Republic,

(1967)3 C.L.R. 64 at p. 77; Vonditsianos v. The Republic,

(1969)3 C.L.R. 83; Thalassinos v. The Republic,

(1973)3 C.L.R. 386). In Partellides v. The Republic,

(1969)3 C.L.R. 480 (C.A.), where applicant's seniority over interested party was just under two years, in annulling the sub judice promotion, the Court of Appeal is reported to have said: *In the circumstances we are of the opinion that it was not reasonably open to the Respondent Commission to promote Interested Party Gregoriades instead of the Appellant. All other things being more or less equal the Appellant's seniority ought to prevail. It follows that the relevant discretionary powers of the Respondent were exercised in an erroneous manner'. In Vonditsianoscast· (supra) (affirmed on appeal) see p. 445 of the same report, Triantafyllides, J. (as he then was) said: 1169 Iladjianastassiou J. Tornaris v. Republic

(1982)'On the whole of the material before the Court, and in the absence of any due reasons to the contrary—which I would expect to find duly recorded in ihe relevant minutes of the Respondent—I fail to see how it was open 1o the Respondent, in the proper exercise of its discretionary powers, to prefer Interested Party Vovides to Applicant Constantinou, in spite of the greater seniority and experience of the latter over the former, and there being no difference in merit in favour of the Interested Party'. 5 In Bagdades v. The CentralBank,

(1973)3 C.L.R. 417, where 10 applicant's 6 years seniority over the interested party was disregarded without cogent reasons, I said at pp. 426 and 428: 'It has been said judicially in a number of cases that the paramount duty of a collective organ in effecting appointments and promotions >s to be the selecf'on of the most 15 suHable candidate for the particular post having regard to the totality of circumstances pertaining to each one of the qualified candidates, according to the needs of the scheme of service; (Georghiadcs v. The Republic

(1967)3 C.L.R. 653), including length of service which though 20 always a factor to be considered, is not always the exclusive vital criterion for such appointment or promotion. In their search to select the best candidate for a post a collective organ should carefully cons:der the merits and qualifications of each candidate, and length of service is one of 25 the factors to be taken into account. At the same time it has been stressed that though it is not alwaysthe exclusive vital criterion, cogent reasons for disregarding substantially greater seniority of a candiate should be given by that body.... 30 In the light of all the material before me, and in the ciicumstances of this case, and in view of the fact that the applicant has served efficiently and most satisfactorily the bank for a number of years, I find myself unable to follow or understand the reason why the interested party 35 was preferred. However, in the absence of any cogent reasons given in the minutes regarding what were actually the results of the interviews (whether a record was kept and the system of marking was adopted) as well as what were the other relevant factors which the Committee 40 1170 3 C.L.R. 5 Tornaris v. Republic Hadjianastassiou J. said they look into consideration, and the reason why they disregaided the greater seniority of the applicant, I have reached the view that the respondents had exercised their discretionary powers in a defective manner because it was not reasonably open to them to reach such a conclu­ sion'. In Zafirides v. TheRepublic,

(1980)3 C.L.R. 140, where appli­ cant's 13 years seniority over the interested party was disre­ garded, A. Lo'zou, J. in annulling the sub judice promotion 10 said at pp. 147-148: 15 20 25 30 35 40 'In the present case the applicant has, as compared with the interested party aboul 13 years of seniority and 1:5 years of longer service. Inspite of this substantial senioiity and greater experience the respondent Commission preferred the interested party. It is true that in its minu.cit is stated that during the interview the interested party proved to be, together with Antigoru Petn'dou the be:;: candidates for appointment or promotion to the post \\\ question. Also the representatives of the Department arc recorded to have stated that the services of the saiV. two officers had been very satisfactory and that they consi­ dered them very suitable for the post, but there is nothing in that opinion to suggest clearly a comparison with. or if that amounted to a preference as against, the othei candidates. Inother words it is not clear if that is a recom­ mendation of the said two officers implying that the o'her candidates, and at that the applicant in panicular was no: suitable or was not recommended for the post. The des­ cription of a candidate as suitable for a particular Γκν. cannot by itself be equated to a recommendation of iha» officer for appointment or promotionto a post in preference to others or that the suitability oi'onf implies the unsuitabilily of other candidates. In my view the seniority of the applicant is so substantial that in the circumstances of this case more cogent ieason> were called for in disregarding same, as in that way an administrative Court would have been enabled to ascertain whether the administrative discretion ot the appropriate organ was properly exercised and so becom-j capable of judicial control in thesense of Article 146 of theConstitution". 1171 Hadjianastassiou J. Tornaris v. Republic (1982 In Antoniou v. The Republic,

(1975)3 C.L.R. 510 (C.A.), the following were stated at p. 515: 'We should say that we have felt some anxiety because of the fact that the most senior candidate was not selected for appointment even though he was not described as an 'average officer'; one does not have to be 'exceptional' in ordei to enjoy the benefit of the advantage of seniority'. 5 From the above case law there emerges clearly the principle that when all other factors are equal clear and cogent reasons should be given by ihe appointing organ foi disregarding the 10 factor of seniority. Looking at the relevant minutes of the respondent commission, I find no leasons at all why applicant's seniority was disregarded. I am, therefore, bound to hold that, all other things being more or less equal, applicant's seniority ought to prevail. 15 Applicant has, therefore, discharged the onus of satisfying me that he was an eligible candidate who was strikingly superior to the one selected and the respondent has thus, exceeded the outer limits of the discretion, and, therefore, has acted in abuse of its powers. Moreover, 1 am bound to hold that the les- 20 pondent Commission has not exercised its discretion in a valid manner through failure to take in its exercise into account all material considerations, namely the consideration of seniority". For the reasons I have given this recourse succeeds, but in these circumstances I am not making an order for costs. 25 Subjudice decisionannulled. No order as to costs. 1172