clr/1983/1983_3_1211.pdf

(1982)3 C.L.R. 435) on the main ground* that applicant was an eligible candidate who was strikingly superior to the one selected. On the 11th May, 1982the respondents decided** to promote * Thegrounds of annulment are found at pp. 1214-1216post. · · The decision is quoted at pp. 1216-1218 post. 1211 Kengeorghis v. Republic

(1983)again the interested party to the said post, retrospectively, as from the 1st November, 1980; and hence this recourse. Held, that the respondents, in reaching their decision did not have before them any facts other than those which were before them when they reached their decision on the 22nd October, 5 1980, nor any other facts which the annulling Judge had not before him when he came to the conclusion that the decision challenged by Recourses Nos. 371/80 and 483/80 had to be annulled; and that, therefore, the respondents reached their new decision to promote the interested party to the said post 10 on insufficient reasoning and on grounds of re-assessment of the interested party which were inexistent; accordingly the sub judice decision must be annulled. Held,further, that the issue of the eligibility of the interested party as a candidate to the said post was in fact decided in his ]5 favour in the previous recourse and since no appeal was filed by the applicant, the present applicant, against the judgment delivered in that recourse on thisissue, such issue is,with regard to the present parties, a res judicata. Subjudice decision annulled. 20 Cases referred to: Karageorghis v. Republic

(1982)3 C.L.R. 435 at pp. 437-439; Pieris v. Republic

(1983)3 C.L.R.

1. Recourse. Recourse against the decision of the respondents to promote 25 the interested party to the post of General Inspector of Elementary Education in preference and instead of the applicant. A. Triantafyllides, for the applicant. R. Vrahimi (Mrs.), for the respondents. A. S. Angelides, for the interested party. 30 Cur. adv. vutt. DEMETRIADES J. read the following judgment. The applicant, an Inspector of Elementary Education since 1966, is, by means of the present recourse, challenging the decision of the Educational Service Committee, which was taken on the 35 11th May, 1982, to promote Mr. George Papalcontiou (here- 1212 3 C.L.R. Karageorghis v. Republic Demetrladcs J. inafter referred to as the "interested party") instead of him to thepostofGeneral Inspector Elementary Education, retrospectively, as from the 1st November,
2. Theapplicant based his application on the following grounds 5 of law: 10 15 "I. The decision complained of has beentaken inexcess or abuse of powers in that the respondents disregarded thestriking superiority of applicant vis-a-vis the interested party as well as the very superior seniority, experience, qualifications andmerit ofapplicant vis-a-vis the interested party.
3. Interested party Papaleontiou is not qualified under the Scheme of Service (Exhinit 1) because he does not possess the requirement of service of at least two years in the post of Inspector of Elementary Education.
4. The decision complained of has been made in spite of the fact that the interested party has no confidential reports in his file for the last several years.
5. The decision complained of is not duly reasoned. 20 25
6. Thedecision complained of isin direct contravention ofthejudgment oftheSupremeCourt inAppl.Nos, 371/80 and 483/80, wherein the Court decided that the applicant was 'strikingly superior' to the interested party, as well aswithseveralother partsoftheabovejudgment, reference to which will be made at the trial". The respondents opposed the application and based their opposition onthegroundthatthesubjudicedecision wasright, lawful and within the limits of the discretionary power given to them by the Educational Service Law, 1969 (Law 10/69). 30 Thefactsofthecaseareinbriefthefollowing: Theapplicant, after serving as an elementary school teacher, was, on the 15th September, 1966, appointed to the post of an Inspector of Elementary Education, in which post he has been serving since then. The interested party was appointed to the same post 35 on the 1st February, 1977,but ashewasgranted a scholarship for higher studies in the United States, he served in that post only till the I8th August,
7. Having completed hisstudies, 1213 Denielriades J . Karageurfjhis v. Republic

(1983)he resumed his duties as an Inspector of Elementary Education on or about the end of May,

1. On the 22nd October,
2. the respondents, after a request by the Director-General of the Ministry of Education and after they proceeded to interview a number of candidates, amongst whom were the applicant and 5 the interested party, decided to promote the latter to the post of Genera! Inspector of Elementary Education as from the 1st November,
3. As a result of that decision of the respondents, the applicant filed Recourses Nos. 371/80 and 483/80, by means of which he applied to the Court for the annulment ]o of the promotion of the interested party to that post. Mr. Justice HadjiAnastassiou who tried the said recourses, in annulling the decision of the respondents (see Karagcorghisv. The Republic,

(1982)3 C.L.R. 435) appears to have held (see pp. 437 to 439) as follows: 15 ll (i) Seniority is one of the factors to be taken into account in effecting a promotion and it may be the decisive one if all other things are equal; that when all other factors are equal clear and cogent reasons should be given by the appointing organ for disregarding the factor of seniority: 20 that an administrative Court will intervene in order to set aside a promotion when satisfied by an applicant in a recourse before it, that he was an eligible candidate who was strikingly superior tothe one who wasselected, because only in such a case the organ which has made the selection 25 for the purpose of an appointment or promotion is deemed to have exceeded the outer limits of its discretion and, therefore, to have acted in excess or abuse of its powers; that looking at the relevant minutes of the respondent Commission, there are no reasons at all why applicant's 30 seniority was disregarded; that, therefore, this Court is bound to hold that, all other things being more or less equal, applicant's seniority ought to prevail; that applicant has, therefore, discharged the onus of satisfying this Court that he was an eligible candidate who was strikingly super- 35 ior to the oneselected and the respondent has thus, exceeded the outer limits of its discretion, and, therefore has acted in abuse of its powers; that, moreover, this Court is bound to hold that the respondent Commission has not exercised its discretion in a valid manner through failure to take 40 in its exercise into account all material considerations, 1214 L.K. Karageorghis v. Republic Demclriades J. namely the consideration of seniority; accoidingly the sub judice promotion of interested party Papaleontiou must be annulled.

(2)Under s.35

(3)of Law 10/69 in making a promotion the Commission shall have due regard to the confidential reports on the candidates and to the recommendations made in this respect by the Head of Department; that this provision is taken to mean recommendations of the Head of Department relating to the candidates; that as it appears in the relevant minutes of the Commission, no definite recommendation was made in favour of any of the candidates by the Head of Department; and though he stated that his recommendations and views on each of the candidates appear in their files, no such, at least recent, views and recommendations appear in any of thefiles of the candidates; that, thus, the decision of the Commission was taken in a manner contrary to law, namely, the aforesaid s. 35

(3)and also without sufficient knowledge of or inquiry into all relevant factors, a situation that renders the sub judice decision contrary to law in the sense of Article 146.1 of the Constitution (see Try/on v. Republic,

(1968)3 C.L.R. 28, and Christides v. Republic

(1966)3 C.L.R. 732 where it was held that absence of knowledge of or inquiry into relevant factors leads to annulment of an administrative decision and that in exercising its discretionary powers, the administration must take into account all relevant factors); accordingly the sub judice decision must be annulled for this reason too.

(3)It is a settled principle of administrative law that a decision must be duly reasoned and that the lack of due reasoning renders a decision contrary to law and also in abuse and excess of powers; that the requirement of due reasoning must be more strictly observed in the case of a decision of a collective organ unfavourable to the subject (see -Eleftheriou v. The Central Bank,

(1980)3 C.L.R. p. 85); that the sub judice decision was not duly reasoned and was, therefore, contrary to the principles of administrative Law and thus contrary to law in the sense of Article 146.1 of the Constitution; accordingly it must be annulled for this reason as well. 1215 Dcinetriades J. Kangeorghis r. Republic

(4)The sub judice decision is invalid for the following reason too: Among other matters taken into consider­ ation in preferring interested party Papaleontiou was 'the personal evaluation formed by themembers of theCommis­ sion about each one of the candidates from their personal 5 interviews'; that intheabsence of any record intherelevant minutes as to the result of theinterview and in the absence of any indication as to whether a system of marking was adopted so as to enable this Court to examine how and why it was reasonably open to the respondent to act upon 10 the results of the personal interview, notwithstanding the substantially greater seniority of the applicant, such a general statement in the minutes of the respondent, as aforesaid, cannothave theeffect of renderingthe promotion of interested party Papaleontiou one which can be treated 15 as having been properly decided upon in the exercise of the particular powers of the respondent.

(5)The sub judice decision must also be annulled for lack of due enquiry into a most material aspect of the case; that confidential reports are by law (s.35

(3)of Law 10/69), 20 a factor which is taken into consideration in considering promotions;that inspite of theabsence of recent confident­ ial reports on interested party Papaleontiou,therespondent Commission failed to initiate or conduct an inquiry into the existence or not of confidential reports; that a failure 25 to make a due inquiry results dueto contravention of wellsettled principles of administrative law in the invalidity of the relevant administrative action because the notion of law under Article 146.1 of the Constitution has to be construed as including the well settled principles of admi- 30 nistrative Law". On the 11th May, 1982,that is to say six daysafter the abovementionedjudgment was delivered, the respondents, at a meet­ ing thatthey held,decided topromoteagain theinterested party to thesaid post retrospectively as from the 1st November, 1980. 35 The reasons given by them in reaching their said decision, the subjudice one, appear in theminutes kept at their meeting and are the following: " Ή "Επιτροπήαφού έλαβε υπόψη όλα τά πιό πάνω καΐμέ βάσητην αξία,ταπροσόντα καΐτην αρχαιότητα, τΙ$σνστά- 40 1216 3 C.L.R. 5 10 15 20 25 30 35 Korageorgtris v. Republic Demetriades J. σεις του Διευθυντή Δημοτικής 'Εκπαιδεύσεως (όπως εΤχαν εκφραστεί στις 22.10.1980 καΐ διευκρινιστεί στή σημερινή συνεδρίαση), τΙς υπηρεσιακές εκθέσεις τή γνώμη της για τόν καθένα άπό τους υποψηφίους καΐ άφοϋ £δωσε τή δέουσα βαρύτητα στό κάθε νόμιμο κριτήριο καΐ ασκώντας τή δια­ κριτική της εξουσία, κρίνει τόν κ. Γ. Παπαλεοντίου ώς καταλ­ ληλότερο γιά προαγωγή στή θέση τοϋ Γενικού 'Επιθεωρητή. Ή 'Επιτροπή θεωρεί ότι ή υπεροχή των άλλων υποψηφίων όσον άφορα τήν αρχαιότητα δέν μπορεί νά αντισταθμίσει τήν υπεροχή τοϋ κ. Παπαλεοντίου στίς διοικητικές καί οργα­ νωτικές Ικανότητες, στίς προσωπικές σχέσεις, καί στή συνο­ λική του προσφορά κατά τή μακρόχρονη εκπαιδευτική υπηρεσία του καί Ιδιαίτερα στή Θέση Διευθυντή. Κι' αυτό γιατί οί άλλοι υποψήφιοι υστερούν (έναντι του κ. Παπαλεοντίου) σε βασικούς τομείς πού ή 'Επιτροπή θεωρεί απα­ ραίτητα προσόντα γιά τήν επιτυχή εκτέλεσητων καθηκόντων της Θέσεως όπως προκύπτει άλλωστε καϊ άπό τα προανα­ φερθέντα αποσπάσματα τών υπηρεσιακών εκθέσεων καί είδικώτερα: Ό κ. Κωνσταντινίδης δέν διακρίνεται στην ηγετική ικανότητα και οτήν επάρκεια στή παρούσα εργασία (competence to present work). Ό κ. Τορνάρης δέν διακρί­ νεται στην πρωτοβουλία και στην επάρκεια (competence) στην παρούσα εργασία. Ό κ. Παντελίδης δέν διακρίνεται στή διοικητική/εποπτική καϊ τήν ηγετική Ικανότητα. Ό κ. Καραγιώργης δέν Θεωρείται συνεργάσιμος καί δέν διακρί­ νεται στίς ανθρώπινες σχέσεις καί στην ηγετική Ικανότητα. Σ* αυτούς ακριβώς τους τομείς, ό κ. Παπαλεοντίου κατα­ φανώς υπερέχει. Ή 'Επιτροπή 'Εκπαιδευτικής 'Υπηρεσίας αποφασίζει όμόφωνα νά προσφέρει στον κ. Γ. Παπαλεοντίου προαγωγή στή θέση Γενικού 'Επιθεωρητή Στοιχειώδους Εκπαιδεύσεως, αναδρομικά άπό τήν 1.11.1980". ("The Committee having considered all the above and on the basis of the merits, qualifications and seniority, the recommendations of the Director of Primary Education (as they have been expressed on 22.10.1980 and clarified during to-day's meeting), the confidential reports, its opinion for every one of the candidates and after attributing due weight to every lawful criterion and exercising its 1217 Demelriades J. Karageorghis v. Republic

(1983)discretionary power, considers Mr. G. Papaleontiou as more suitable for promotion to the post of General Inspector. The Committee is of the view that the super­ iority of the other candidates as regards seniority cannot counter-balance the superiority of Mr. Papaleontiou in 5 administrative and organizing abilities, personal relations, and his whole contribution during his long existing educa­ tional service and particularly in the post of Director. And this because the other candidates are inferior (to Mr. Papaleontiou)in basic fields which the Committeeconsiders 10 as required qualifications for the successful execution of the duties of the post as it, also, appears from the abovereferred extracts of theconfidential reports and particularly: Mr. Constantinides is not distinguished in leading ability and in competence in present work. Mr. Tornaris is not 15 distinguished in initiative and in competence in present work. Mr. Pantelides is not distinguished in admi­ nistrative/supervising and leading ability. Mr. Karageorghis is not considered co-operative and is not distin­ guished in human relations and leading ability. Especially 20 in those fields Mr. Papaleontiou is manifestly superior. The Educational Service Committee unanimously decides to offer to Mr. G. Papaleontiou promotion to the post of General Inspector Elementary Education, retrospectively as from 1.11.1980)"'. 25 Counsel for the applicant based hib submissions mainly on three issues, namely that— (

1. a)the interested party was not eligible for promotion under the relevant schemes of service; (
2. b)the sub judice decision was reached in abuse of the powers of the respondents; and 30 (
3. c)the matter is res judicata. The post of General Inspector, Elementary Education, is a promotion post and the relevant scheme of service, which is exhibit 1, reads as follows: "ΓΕΝΙΚΟΣ ΕΠΙΘΕΩΡΗΤΗ! ΣΤΟΙΧΕΙΩΔΟΥΣ ΕΚΠΑΙΔΕΥΣΕΩΣ (Θέσις Προαγωγής) 'Εγκεκριμένη Μισθολογική Κλϊμαξ:-ΛΚ1354X43-1483X501583X52-1635 1218 35 3 C.L.R. Karageorghis v. Republic Dentetriades J. Καθήκοντα καϊ Εύθΰναι: 5 (α) Γενική έπιθεώρησις, βάσει προγράμματος ή συμφώνως οδηγιών, των σχολείων στοιχειώδους εκπαιδεύσεως, νηπιαγωγείων καϊ επιμορφωτικών κέντρων καί τοϋ διδακτικού προσωπικού αυτών, ώς καί τής τηρήσεως των κειμένων διατάξεων τών άφορωσών είς το έν αύτοϊς έπιτελούμενον εκπαιδευτικού έργον καί τήν σχολικήν έν γένει δραστηριότητα. 10 (β) Συντονισμός και συστημστοποίησις τής εργασίας τών 'Επιθεωρητών Στοιχειώδους 'Εκπαιδεύσεως καϊ όργάνωσις και συμμετοχή είς μείζονας επιθεωρήσεις. 15 (γ) 'Ενεργός συμμετοχή είς τήν όργάνωσιν και διεξαγωγήν συνεδρίων, σεμιναρίων και επιμορφωτικών μαθημάτων δια τους Έπιθεωρητάς καϊ τό διδακτικάν προσωπικόν στοιχειώδους εκπαιδεύσεως, νηπιαγωγείων καί επι­ μορφωτικών κέντρων. (δ) ΟΙαδήποτε άλλα καθήκοντα ήθελον άνατεθή εις αυτόν. Προσόντα: 20 Πτυχίον Διδασκαλείου ή Παιδαγωγικής 'Ακαδημίας καί Πανεπιστημιακόιί δίπλωμα ή τίτλος εϊς τον έκτιαιδευτικόν. τομέα. Ευδόκιμος υπηρεσία τουλάχιστον δύο έτώυ είς τήν θέσιν 'Επιθεωρητού Γενικών Μαθημάτων Στοιχειώδους 'Εκπαιδεύ­ σεως. 25 Ένημερότης έπί τών έν γένει εκπαιδευτικών προβλημάτων καί τάσεων τής στοιχειώδους εκπαιδεύσεως έν Κύπρω καϊ είς άλλας χώρας. Καλή γνώσις μιας τουλάχιστον Ευρωπαϊκών γλωσσών. 30 τών επικρατέστερων Μεταπτυχιακή έκπαίδευσις είς τό έξωτερικόν ενός τουλάχιστον ακαδημαϊκού έτους είς θέμα σχετικόν προς τά καθή­ κοντα τής θέσεως θεωρείται ώς πρόσθετον προσόν. ('Ενεκρίθη ϋπό τοΰ 'Υπουργικού Συμβουλίου—Άπόφασις ύ π ' άρ. 5354 καί ήμερομηνίαν 3.2.66)" 35 ("GENERAL INSPECTOR ELEMENTARY CATION (Promotion Post). Approved Salary C£1354X43—1483X50—1583X52—1635. 1219 EDUScales- Demctriadcs J . Karageorghis v. Republic 0983) Duties and Responsibilities: (
4. a)General inspection, on the basis of curriculum or in accordancewith instructions,oftheschoolsofelementary education, kindergartens and cultural centres and their teaching staff, as well as the obseivance of 5 the existing provisions concerning the educational work carried out by them and the school activity in general. (
5. b)Coordination and systematization of the work of the Inspectors Elementary Education and organization 10 and participation in major inspections. (
6. c)Active participation in the organization and conduct of conferences, seminars and courses in further educationfor theInspectorsandtheteachingstaff ofelementary education, kindergartens and cultural centres. 15 (
7. d)Any other duties that may be assigned to him. Qualifications: Diploma of Teachers College or Paedagogical Academy and University Diploma or degree in the educational field. Satisfactory service, of at least two years in the post 20 of Inspector General Subjects Elementary Education. Awareness of the educational problems and tendencies in general of the elementary education in Cyprus and in other countries. Good knowledgeofatleast oneoftheprincipal European 25 languages. Post-graduate training abroad for at least one academic year in a subject related to theduties of the post isdeemed as additional qualification. (Approved by the Council of Ministers—Decision No. 30 5354 and dated 3.2.1966).)" As regards the first issue raised bycounsel for the applicant, namely that the qualification required by the second paragraph of theSchemeofService,i.e."evdokomos ipiresia" ("satisfactory 1220 3 C.L.R. Karageorghis v. Republic Demetrtades J. service"), was not possessed by the interested party and that this issue, although extensively argued, was not decided by the judgment delivered in the Karageorghiscase (supra), it has to be observed that Mr. Justice HadjiAnastassiou in his 5 judgmentmadeextensivereferencetotheargumentsput forward in this respect by counsel appearing on behalf of all parties andthat althoughit isnot soexpressly stated, onecan, without hesitation, reach the conclusion that the learned Judge was of the view that the interested party was eligible to be considered 10 bythe respondents as a candidate for the post, in that he possessedthequalification of"evdokimosipiresia" ("satisfactory service"), or else he would not have proceeded to decide the issues on which he ruled. Havingreached the conclusion that the issueof the eligibility 15 of the interested party as a candidate to the said post was in fact decided in his'favour in Recourses Nos.371/80and483/80, and in the light of the unanimousjudgment of the Full Bench ofthisCourtdeliveredbyMr.JusticePikisinthecaseofMarinas Pierisv. TheRepublic,

(1983)3C.L.R. 1054andsincenoappeal 20 was filed by the applicant, the present applicant, against the judgment delivered inthose Recourses on this issue,1findthat this issue is, with regard to the present parties, a res judicata. What now remains for decision is whether there was open to the respondents, after the judgment in those recourses was 25 delivered, to promote again the interested party to the post in question. Goingthrough theminutesof themeeting ofthe respondents during which they reached the subjudice decision, one cannot lose sight of the fact that— 30 (

1. a)thematerial whichthey had before them wasthe same, i.e. the personalfilesand confidential reports of the applicant and the interested party, when they, on the 22nd October, 1980, decidedtopromotetothepostofGeneral Inspector ofElementary Education the interested party. 35 (
2. b)The report made by Mr. Anastassiades dated the 26th June, 1980, which is countersigned by Mr. Papaxenophontos and to which the respondents particularly referred to in their decision of the 11th May, 1982, which Mr. Papaxenophontos 1221 Demetriades J. Karageorghis v. Republic

(1983)described as having the force of a confidential report, was in fact in thepersonal file of the interested party when ςη the 22nd October, 1980,they decided to promote himtothepost, the subject of this recourse. This document was, also, before the learned Judge whotried Recourses Nos.371/80and 483/80, • 5 inthatitwasinthefileoftheinterestedparty which,itis admit­ ted, it was one of the exhibits produced during the trial of those recourses. Considering all the above, 1 find that the respondents, in reaching their decision didnothave before them any facts other 10 than those which were before them when they reached their decision onthe22nd October, 1982,norany other facts which the annulling Judge had notbefore him when hecame to the conclusion that the decision challenged by Recourses Nos. 371/80 and 483/80 had to be annulled. 15 I, therefore, find that the respondents reached their new decision to promote the interested party to the said post on insufficient reasoning and on grounds of re-assessment ofthe interested party which were inexistent. In the result, 1findthat thedecision of the respondents must 20 beannulledandthatinthecircumstancesofthecase they should pay the costs of the applicant. Sub judice decision annulled with costs, 1222