clr/1982/1982_3_963.pdf

(1982)of the Educational Officers Regulations 1972-1974, on the basis of which the said piomotions were made, were ultra vires the Public Educational Service Law of 1969, section 35

(2)and, therefore, thedecision oftherespondent Committee to promote the interested parties wasdeclared null and void. On 22.2.1979 5 the Educational ServiceCommittee metagaintofillthe \aeancits created by the annulment by the Court of the previous piomotionsand at such meetingit decided topromote thesamepersons as on the pievious occasion with retiospective effect as from 15.9.1973, but this time, it based its decision not on the Regu- 10 lations which were declared as ultra vires, but on the lawitself and in particular on section

1. In making the piomotions the respondent Committee took into consideration the confidential lepoits, merits, qualifications and seniority of the candidates and the recommendations of the Inspector of Secondary 15 Education, as it appears in the minutes of the meeting. Regarding merits interested parties 1 and 3had slightly higher gradings than the applicant, wheieas interested party 2 had the same gradings as the applicant. Regarding qualifications interestdparties 1 and 2had higher qualifications than applicant 20 who did not have higher qualifications than interested party
2. And l'egaiding seniotity applicant compared with interested party 1 was senior by four >ears and with interested party 2 wassenior bytwoyears buthehad thesameseniority with interested party
3. 25 Counsel for the applicant mainly contended: (a) That the respondent Committee misinterpreted and wrongly applied the Regulations which had been declared ultra vires. (b) That the sub judice decision was taken in violation 30 to section 35

(2)of Law 10/69, which piovides that the claims of educational officers to promotion shall be considered on the basis of merit, qualifications and seniority. Counsel submitted in this connection that the 35 applicant should have been selected for piomotion instead of the interested parties because in the case of the fiist two interested parties he was senior to 964 3 C.L.R. Michaetoudis τ.Republic them and in the case of the third interested party he was better than him. (

1. c)That the applicant was ignored though, undoubtedly, he had better qualifications than the interested parties. 5 (
2. d)That the sub judice decision was not duly reasoned. Counselsubmitted in this lespect that as the seniority of the applicant was disregarded cogent reasons should have been given justifying such decision. 10 15 20 25 30 35 Heidi

(1)that it is clear from the minutes of the meeting at which the sub judice decision was taken that the respondent Committee in taking the sub judice decision bore in mind the decision in the previous recourse and relied on section 35 of the Public Educational Service Law of 1969 (Law 10/69) and not on the Regulations; that doing so, the Committee did not act contrary to the decision of the Court that rtliance could notbeplaced onregulations 26,28and29andit neithermisinter­ preted nor applied at all the said Regulations; accordingly contention (a) should fail.

(2)That the seniority of applicant over interested parties No.1 andNo.2cannotbyitselfoutweigh thebetter qualifications of such parties and in the case of interested parties Nos. 1and 3, their better merits, but on the contrary, such seniority is outweighed by the other elements pertaining to the candidates; that having regard to the totality of thecircumstances thatwere before the respondent Committee, the sub judice decision was reasonably open to it and that apphcant has failed to establish any striking superiority over the interested parties; accordingly contention (b) should fail.

(3)That a scheme of senice prescribes only the basic requirements for appointment or promotion to a particular post; that it is open, therefore, to an appointing authority to take into account any other qualification of a candidate which is of such nature as to render him the most suitable candidate for appointment or promotion; that there cannot be excluded from thenotion of "the most suitable" theessential consideration of how best will be served the interests of the specific branch of thepublic serviceinwhich avacantpost is tobefilled;accord­ ingly contention (c) should fail. 965 Mlchaeloudis τ.Republic

(4)Thatthematterstakenintoconsideration by therespondent Committee appear sufficiently in the minutes of the meeting at which the sub judice decision was taken, and, furthermore, the personal files of the apphcant and the interested parties were before the respondent Committeeand also were produced 5 at the hearing and it is apparent from the contents of same that the respondent Committee found that the seniority of the apphcant where it came into play was outweighed by the other elements pertaining to the candidates and in the light of thejudicial pronouncementsin this respect, it was not necessary 10 for therespondentCommitteetogivecogent reasonsfor reaching its decision; accordingly contention (d) should fail. Application dismissed. Cases referred to: Michaeloudes v. The Republic

(1979)3 C.L.R. 56; loannidesand Another v. The Republic

(1979)3 C.L.R. 628 at p. 638; Constantinou v. The Republic

(1980)3 C.L.R. 551 at pp. 558561; Andreouv. The Republic

(1979)3 C.L.R.

1. 15 20 Recourse. Recourse against the decision of the respondent whereby the interested parties were promoted to the post of Assistant Head­ master in preference and instead of the applicant. A. Markides, for the applicant. 25 A. S. Angelides, for the respondent. Cur. ad\. vult. SAVVIDES J. read the following judgment. The applicant in this recourse challenges the decision of the Educational Service Committee whereby Christodoulos KJeopa, Andreas Malekkos and Andreas Manoli were promoted to the post of Assistant Headmaster instead of the applicant. The applicant was firstly appointed on probation in 1959 as a schoolmaster, Grade A in thesecondary educationfor a period of two years. His appointment became permanent after the expiration of the probationary period. In the year 1969 he was upgraded to Grade Β12 and ever since he possesses all necessary qualifications for the promotion to the post of Assistant Head966 30 35 3 C.L.R. 5 10 15 20 25 30 35 "40 Mlchaeloudls v. Republic Sarrldes J. master. On 30.8.1973, after the existence of certain vacancies in the post of Assistant Headmaster, the Educational Service Committee proceeded in accordance with regulations 26, 28 and 29 to prepare the lists of those eligible for promotion. The prospective candidates were classified in two categories, A. and B. Such lists came up for consideration before the Educational Service Committee at its meeting of the 31st August, 1973 at which it was decided to promote to the post of Assistant Head­ master as from 1st September, 1973, amongst others, the three interested parties in the present recourse. Applicant was not included in either A. or B. list of the promotees. The applicant filed a recourse against those promotions under No. 530/73 which was tried by a member of this Court and judgment was delivered on 27.1.
2. (See Michaeloudis and another v. The Republic

(1979)3 C.L.R. 56). The Court by its decision an nulled the promotions on the ground that regulations 26, 28 and 29 of the Educational Officers Regulations 1972 - 1974 on the basis of which the said promotions were made, were ultra vires the Public Educational Service Law of 1969, section 35

(2)and, therefore, the decision of the respondent Committee to promote the interested parties was declared null and void. On 22.2.1979 the Educational Service Committee met again to fill the vacancies created by the annulment by the Court of the previous promotions and at such meeting it decided to promote the same persons as on the previous occasion with retrospective effect as from 15.9.1973, but this time, it based its decision not on the Regulations which were declared as ultra vires, but on the law itself and in particular on section 35. In making the promotions the respondent Committee took into consideration the confidential reports, merits, qualifications and seniority of the candidates and the recommendations of the Inspector of Secondary Education,as it appears in the minutes of the meeting of the 22nd February, 1979, copy of which is attached to the Opposition, as Annex Ά ' . The applicant, as a result filed the present recourse, whereby he seeks the following remedies:

(1)Declaration of the Court that the refusal and/or omission of the respondent Authority to promote the applicant in the post of Assistant Headmaster retrospectively as from 15.9.1973, or at all, is void and of no legal effect. 967 Sawides J. Micbaeloudls v. Republic

(2)A declaration that the act and/or decision of the respondent Authority published in the official Gazette of the Republic dated 30.3.1979 at page 235 whereby the respondent Committee promoted retrospectively as from 15.9.1975Christodoulos KJeopa,Andreas MalekkosandAndreasManolis and/or 5 either of them in the post of Assistant Headmaster instead of the applicant, is null and void and of no legal effect. The legal grounds on which this recourse is based as set out therein, are as follows: "All and each one of the said administrative acts and/or 10 decisions and/or omissions are null and void and of no legal effect for the following reasons:

(1)They are illegal, and/or were taken in excess and/or abuse of power particularly in that — (a) whereas in accordance with section 35

(2)of Law 10/69 15 'the claims of educational officers for promotion are decided in accordance with their merits, qualifications and seniority' and whereas in the caseof the applicant all the requirements under section 35

(1)were satisfied, the Respondent Committee ignored and/or failed to 20 take into consideration the merits, and/or qualifications and/or seniority of the apphcant. (

1. b)The Regulations by virtue whereof the Respondent Committee acted in order to reach the sub judice decision are null and void as being ultra vires. 25 (
2. c)The- Respondent Committee did not take properly oratallintoconsideration that thepreviouspromotion of the same interested parties which was published in theofficial Gazette ofthe Republicofthe28thSeptember, 1973 (page 820) was annulled by the Supreme 30 Court in a recoursewhichwasfiled bythe applicantin Case No. 530/73and/or that the Respondent Committee completely misinterpreted and/or failed to take into consideration the legal result of thesaid annulling decision and/or acted in contravention thereto and/or 35 of the general principles ofAdministrative Law and/or 968 3 C.L.R. 5 Michseloudis τ. Republic Sanides J. Article 146 of the Constitution and that theRespon­ dent Committee did notact on thebasis of thelegal and factual position asitexisted on the 28th September, 1973 inthelight of the annulling decision and/or that it took into consideration facts which it was not en­ titled to take. (
3. d)The Respondent Committee misinterpreted and/or wrongly applied the Regulations which it applied.

(2)The sub judice acts and/or decisions were taken in abuse 10 of powers and/or contrary to thegeneral principles of Admini­ strative Law and, in particular, in that — (

1. a)they are not reasoned and/or not properly or suffi­ ciently reasoned. 15 (
2. b)Facts were taken into consideration which they should not have been taken. (
3. c)Facts which should have been taken into consideration were not taken into consideration. (
4. d)There was a misconception of facts. (
5. e)Proper investigation was not made. 20 ( 0 The apphcant was ignored though, undoubtedly, he had better qualifications than the interested parties." The application was opposed andthe legal ground adduced in support ofthe opposition wasthat the subjudice decision was lawful andthe result of a dueinquiry in the case. 25 I shall deal first with legal ground

(1)and paragraphs (a),(b), (

1. c)and(
2. d)thereto. Itis thecontention of the applicant under paragraphs (
3. b)and (
4. d)that the respondent Authority misin­ terpreted and wrongly applied theregulations which had been declared ultra vires. In the case of Sofoclis Michaeloudes v. 30 The EducationalService Committee (supra) thesaid Regulations were found to be ultra vires section 35of Law 10/69andas a result the decision based on such Regulations was annulled. In thepresent case, however, it is clear from the minutes of the meeting at which thesubjudice decision was taken (Annex *A' 35 to the Opposition), that the respondent Committee in taking ihe sub judice decision boreinmind the decision in Michaeloudes 969 &mides J. Micbaeloudee v. Republic

(1982)case (supra) and relied on section 35of the Public Educational Service Law of 1969 (Law 10/69) and not on the Regulations. Bydoingso,the Committee did not actcontrary tothedecision of the Court that reliancecould not be placed on Regulations 26,28and 29and itneither misinterpreted nor applied at allthe 5 said regulations. In the result, ground 1(

1. b)and 1(
2. d)have no legal foundation whatsoever. As regards ground 1(
3. c)the Court in Michaeloudes case did not consider the merits of the applicants, but disposed of the recourse on the ground of invalidity of a decision which was 10 based on regulations which were found by the Couit as ultra vires. Therefore, ground 1(
4. c)also fails. By ground 1(
5. a)it is alleged that the subjudice decision was taken in violation of section 35

(2)of Law 10/69. Counsel for applicant contended that the applicant, compared with the 15 interested parties, was the best candidate for promotion under section 35

(2)of Law 10/69, which provides that the merits, qualifications and seniority are the criteria to be taken into consideration in making a promotion. The respondent Committee intakingthe subjudice decision, 20 as it appears from the minutes attached to the Opposition, dealt first with the decision of the Supreme Court in Recourses No. 530/73 (the previous recourse of the applicant) and No. 539/73(of one Evdokia Evangelidou) which weretried together and proceeded as follows: 25 "The Committee having studied the material in the personal files and the confidential reports of the aforesaid • schoolmasters as well asthe two applicants,as they appear on the date on which the decision was annulled was taken (31.8.73), and having taken into consideration what is 30 specified by section 35of Law 10/69,that ismerit, qualifications and seniority, as well as the confidential reports of the candidates and the recommendations of the Inspector of Secondary Education, has come to the conclusion that the aforesaid schoolmasters (Christodoulos Kleopas, 35 Andreas Malekkos, Andreas Manoli, A. Panayi, A. Georghiou, A. Papanastassiou and E. Handriotis) satisfied those criteria better than the apphcant". The respondent Committee having reached the above con970 3 C.L.R. Mlchaeloudls τ. Republic Savrldet J. — -elusion promotedthesaid pcrsonsinpreference totheapplicant, retrospectively as from 15.9.1973 when the vacancies existed. Section 35 of the Public Educational Service Law (Law 10/69) on which the subjudice decision was based, read in 1973,which 5 was the material timewhen thefilling of the vacancies came up for consideration in the first instance, as follows: "35.—

(1)No educational officer shall be promoted to another office, unless— (

1. a)a vacancy exists in that office; 10 (
2. b)hepossessesthequalifications laid down intheschemes of service for that office; (
3. c)he has not been reported upon in the last two annual confidential reports as unsuitable for promotion; 15 (
4. d)he has not been punished during the preceding two years for any disciplinary offence of a serious nature;

(2)The claims of educational officers to promotion shall be considered on the basis of merit, qualifications and seniority. 20

(3)Inmaking a promotion the Committee shall have due regard to the confidential reports of the candidates and to therecommendations made in this respect by the respective inspector.

(6)_ ". Sincethegist of theargument of counsel for applicant isthat the applicant should have been selected for promotion instead 25 of the interested parties because in the case of the first two interested parties he is senior to them and in the case of the third interested party he is better than him, I shall proceed to consider the various factors concerning the applicant and the interested parties and find out whether the.contention of the 30 apphcant that he was the btst candidate for promotion, is founded. Both apphcant and interested parties have the qualifications required by the schemes of servicefor promotion to the post of Assistant Headmaster - Secondary Education (attached to the 35 written address of counsel for respondents) and they possessed 971 Sawides J. Michaeloudis v. Republic

(1982)them both at the time the sub judice decision was taken (22.2.79) and at the time when it takes effect (retrospectively) which is the 15.9.

1. The requirements of the schemes of service are:
2. At least three years' service on the salary scale B.
3. 5
4. At least successful service on the basis of the last two confidential reports.
5. A good knowledge of one of the prevailing European languages.
6. Post graduate education abroad or an additional educa- \Q tional degree, preferably in Paedagogics or subjects concerned with the administration of schools, is considered as an additional qualification. The applicant Sofoclis Michaeloudis: Appointed in
7. Grading {merits): 1968—1969—201/2 1969—1970—20 1/2 1970—1971—21 1/2 15 Qualifications: Philologist—He has also a certificate of the Ministry of Education for interdepartmental education obtained in 1972,,totheeffect that hehad successfully attended and passed 20 the examinations in a course for post-graduate education, organised by the Ministry of Education in co-operation with the Fulbright Institute, which lasted for one academic year, on the subject of Instruction and Vocational Guidance. Service: (In 1973) 14 years. 25 Interested party No. 1: Christodoulos Kleopa: Appointed in
8. Grading (merits): 1968—1969—221/2 1972—1973—21 1/2 Qualifications: Philologist—Post graduate education in the 30 American University of Beirut. Service: (In 1973) 10 years. Interested party No. 2: Andreas Malekkos: ,Appointed in
9. Grading (merits): 1968—1969—201/2 1972—1973—21 1/2 Qualifications: Philologist—Post graduate education in the 35 972 3 C.L.R. Michaeloudis τ. Republic Sawides J. Institute of Education of the University of London. Service: (In 1973) 12 years. Interestedparty No. 3: Andreas Manoli. Appointed in
10. Grading (merits): 5 1968—1969—21 1969—1970—21 1/2 1970-1971—22 1971—1972—22 Qualifications. Philologist. No post graduate education. In 1972 (confidential report) there is a recommendation for his promotion by the Inspector. Service: (In 1973) 14 years. Comparing the applicant with the three interested parties 10 the following are to be observed: Merits: Interested parties No. 1and No. 3 have slightly higher gradings than the apphcant, whereas interested party No. 2 has the same gradings as the applicant. Therefore, on merits, interested parties 1 and 3 have better merits. Regarding in15 terested party No. 2 in the confidential report (1972—1973) of the Head of secondary education concerning him (exhibit *D' attached to the written address of counsel for applicant), there is a note that in view of his specialised duties in the Mi­ nistry of Education as compared to these of the Assistant Head20 masfer, this interested party cannot be recommended for pro­ motion. This statement, however, or opinion of the Head of Secondary Education cannot be considered as having the meaning of "unsuitable" for promotion as required by section 35(l)(c) of the Law. The grading of this party in the same 25 report for the same period is given intheannual report as 21 1/
11. 30 35 The contention of counsel for apphcant that when the first promotions in 1973 which were annulled, were made, interested party No. 3was put on list 'B' which means that he was not one of the best candidates, is not material in the present case. The grading of candidates in those lists was made under the pro­ visions of regulations 26, 28 and 29 and such Regulations were declared null and void as ultra vires the law and any of the provisions contained therein are ineffective and inapplicable in the present case. Even if we consider this as an indication that interested party No. 3 was not considered at that time to be one of the best candidates and was included in list *B' in­ stead of list Ά \ applicant in any case was not placed at all on either of those lists. 973 Sawides J. Michaeloudis r. Republic

(1983)Qualifications: Interested parties No. 1and No. 2 have higher qualifications than the applicant. They both have post graduate education abroad, interested party No. 1 in theAmerican University of Beirut and interested party No.2in the Institute of Education ofthe UniversityofLondon,whereastheapplicant 5 has only a certificate of post graduate course in Cyprus which under para. 4 of the schemes of service cannot beconsidered as additional qualification, as only post graduate education abroad could be considered as an additional qualification. Therefore, once the apphcant does not possess a higher quah- 10 fication asrecognised undertheschemesofservice,hecannotbe treated ashavinghigherqualifications thaninterested party No. 3 who did not have a post-graduate course. Counsel for applicant contended that thefact that at the time that interested party No. 2 wasgranted leavefor post-graduate \5 studies it was pointed out to him that this will not give him a right to promotion. It is true that such a right does not exist. But the fact remains that he possessed an additional qualification within the provisions of the schemes of service and this could not be disregarded by the E.S.C. when making the pro- 20 motions. Seniority: Apphcant compared with interested party No. 1 is senior by four years and to interested party No. 2 is senior by two years. He has the same seniority with interested party No. 3. The seniority, however, of applicant over interested parties No. 1and No. 2cannot by itself outweigh the better qualifications of such parties and in thecase of interested partiesNos. 1 and 3,their better merits, but on the contrary, such seniority is outweighed by the other elements pertaining to the candidates. 30 In the case of Ioannides andanother v. TheRepublic

(1979)3 C.L.R. 628 the seniority of the apphcant over the interested parties by 14months was found as not outweighing the better qualifications of those interested parties. The Court had this to sayin itsjudgment (at p. 638,per A. Loizou, J.): 35 "Bearing in mind the totality of circumstances that were before the respondent Commission, I have come to the conclusion thatthe subjudicedecision wasreasonably open 974 25 3 C.L.R. 5 Michaeloudis v. Republic Sawides J. to it. The exercise of its discretion in the circumstances wasneither contrary to law,nor arrived under anymisconception of fact and/or in abuse or excessof power. Applicant Ioannides has failed to establish any striking superiority over the twointerested partiesand hisfourteen months seniority could not have been a decisive factor once not all relevant circumstances were equal." See, also, the decision in the case of Constantinou v. TheRepublic

(1980)3 C.L.R. 551 pp. 558—561, where it was decided 10 that a seniority of three years and 10months of the apphcant over one of the interested parties and six years over the other was, obviously outweighed by the other elements pertaining to the candidates. Applicant and interested party No. 3 are both equal with 15 regard to seniority and qualifications (as already pointed out noneofthesetwocandidates possessedanyspecial qualifications as set out in term 4 of the schemes of service), but interested party No. 3 is slightly better with regard to merits. With the above in mind, and having regard to the totality of 20 circumstances that were before the respondent Committee, I have come to the conclusion that the sub judice decision was reasonably open to it and that applicant has failed to establish any striking superiority over the interested parties. Before concluding on the matter of comparison, 1 should 25 like also to refer to the case of Andreou v. The Republic

(1979)3 C.L.R. 379 as to the discretion of the appointing organ in which Trantafyllides, P. had this to say at p. 388: 30 35 "In my opinion a scheme of service prescribes only the basic requirements for appointment or promotion to a particular post. It is open, therefore, to an appointing authority to take into account any other qualification of a candidate whichisofsuchnature astorenderhimthemost suitable candidate for appointment or promotion; and there cannot be excluded from the notion of 'the most suitable' the essential consideration of how best will be served the interests of the specific branch of the public service in which a vacant post is to be filled." 975 Sanides J. Michaeloudis v. Republic

(1982)This disposes, also, of ground 2(f). Coming to ground 2(a) advanced by counsel for apphcant concerning due reasoning,ithasbeenargued byhimthat asthe seniority of apphcant was disregarded in this case, cogent reasons should have been given in the decision concerned 5 justifying such decision. I find myself unable to agree with such contention. The matters taken into consideration appear sufficiently in the minutes of the meeting at which the sub judice decision was taken, and, furthermore, the personal files of the applicant and the interested parties were before the 10 respondent Committee and also were produced at this hearing anditisapparentfrom thecontentsofsame that the respondent Committee found that the seniority of the applicant where it cameinto play wasoutweighed bythe other elementspertaining to thecandidates and inthelight ofthejudicialpronouncements 15 inthisrespect, it wasnot necessaryfor the respondent Committee to give cogent reasons for reaching its decision. With regard to the contentions in the remaining grounds 2(b), (c)(d)and (e),Ifind that such contentions cannot succeed. As I have already found on the totality of the material before 20 the respondent Committee, and before me, the sub judice decision was reasonably open to the respondent Committee which has exercised properly its discretionary powers. The respondent Committee in arriving at its decision has acted neither under a misconception of law, nor offact, nor in abuse 25 or excess of power and it had taken into consideration all matters relevant to the candidates and the issue before it after a due and proper inquiry into the matter. For all the above reasons, this recourse fails and is hereby dismissed, but in the circumstances of the case, I make no 30 order as to costs. Recourse dismissed. No order as to costs. 976