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(1983)"(c) Promotions to the post of Assistant Headmaster. The Educational Service Committee having studied the personal and confidential files of all the teachers *A* who are entitled to be promoted to the post of Assistant Head­ master and having in mind the provisions of the Law and 5 the schemes of service and the recommendations of the Head of Elementary Education (see file 365/68/2), decides unanimously that on the basis of merit, qualifications and seniority of the candidates, the above recommendations of theHead of Department,theservicereports andtheopinion 10 which ; ts members have formed about each one of the candidates during the personal interviews, the following teachers Ά ' aie the most suitable for promotion to the post of Assistant Headmaster. Therefore, it decides to offer to them promotion to the 15 post of Assistant Headmaster Elementary Education as from 1.9.1980 ._ ". In making the sub judice promotions the respondent Com­ mission had before it a list containing the names of 74 teachers who were recommended for promotion by the Department of 20 Elementary Education. Theapplicant was not included in such list but out of such list only 25 teachers were promoted and the remaining 16 out of the 41 promoted were not persons that had been recommended for promotion. The respondent Commit­ tee did not mentionanywhere in its decision why it disregarded 25 peisons who were recommended and whose names were in­ cluded in the list and promoted others for whom there was no recommendation for promotion. Interested parties 12, 19,20 and 21 and the applicant had the same marks and seniority, buttheformer hadbeen recommended 30 for promotion whereas the applicant had not. Interested parties 8,9, 10and 11,hadthesame seniority with theapplicant. In their labt report they had the same marks with the applicant but in the last-but-one they were graded a little lower. Regarding the remaining interested parties applicant was senior to them by four >ears. Out of these interested parties Nos. 14, 15, 18,22, 23,27,28,29, 33, 34, 36, 37, 38, 39,40 and 41 were recommended for promotion and Nos. 13, 16, 17, 24, 25,26, 30, 31,32 and 35 werenot amongst those recommended. 18 35 3 C.L.R. Georghiou v. Republic Held, (afterstatingtheprinciples governing effectofseniority and the principlesgoverning judicial control of promotions): 5 10 15 20 25 30 35 Held,

(1)that it was reasonably open to the Commission to prefer interested parties 12,19,20and21instead oftheapplicant once there was not any superiority.of the applicam over them; and that, therefore, the recourse against them should fail.

(2)That though applicant has shown a slight superiority astothemarksoverinterested parties8,9,10and 11,a difference of one or two marks in one report, is not such as to amount to a striking superiority of the applicant (the onus of which was upon him) over such interested parties, as to lead to the annulment of the sub judice decision; and that, therefore, the recourse against them should fait.

(3)That though applicant was senior to interested parties 14, 15, 18,22, 23, 27, 28, 29, 33, 34, 36, 37, 38 the latter had been recommended for promotion and this goesto their credit; that,therefore,allfactorswerenotequalsoasto lettheseniority oftheapplicant prevail eventhoughinsomecasessuchseniority is four years; accordingly the recourse against them should fail.

(4)That in the absence of any cogent reasons appearing in the minutesand showing(

1. a)why inthe case ofthose of the interested parties in respect of whom all factors were more or less equal with the applicant, the seniority of the applicant was disregarded; (
2. b)why those of the interested parties who were not recommended for promotion were promoted, in lieu of others who were specially recommended for promotion; (
3. c)as to the results of the interviews and the lack of any indication as to the method adopted in such interview for the evaluation of the candidates as to enable the Court, especially in the circumstances of the present case where persons not recommended were promoted instead of those recommended, whether it was reasonably open to the respondent to act upon theresults ofthepersonal interviews,I havecometo theconclusion that concerning interested parties 13, 16, 17, 24, 25, 26, 30, 31,32and 35 the respondent Committee has not exercised its discretionary power in a valid way and that in any event its decision is wrong due to lack of due reasoning; accordingly 19 Georghiou v. Republic

(1983)the subjudice decision asfar asitconcernsthe above-mentioned interested parties must be annulled. Subjudicedecision partly annulled. Cases referred to: Michaeloudes v. Republic and Another

(1979)3 C.L.R. 56; 5 Lardis v. Republic

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

(1969)3C.L.R. 83at p. 91; Partellides v. Republic

(1969)3 C.L.R. 4S0; Thalassinos v. Republic

(1973)3 C.L.R. 386 at pp. 395, 396; Karageorghis v. Republic

(1982)3 C.L.R. 435 at p. 458; 10 Zafiridcs v. Republic

(1980)3 C.L.R. 140 at pp. 147, 148; Thcodossiou \. Republic, 2 R.S.C.C. 44 at p. 47; Saruhanv. Republic, 2 R.S.C.C. 133 at p. 136; Panayidou v. Republic

(1978)3 C.L.R. 144 at p. 153; Nissis (No. 1) v. Republic

(1967)3 C.L.R. 473; and on 15 appeal

(1967)3 C.L.R. 671; Antoniouv. Republic

(1975)3 C.L.R. 510; loannidesand Another v. Republic

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

(1980)3 C.L.R. 551 at pp. 558-561; Evangelou v. Republic

(1965)3 C.L.R. 292 at pp. 299, 300; Georghiou v. Republic

(1976)3 C.L.R. 74; Begdadesv.Central Bank ofCyprus

(1973)3 C.L.R.417at p. 428. 20 Recourse. Recourse against the decision of the respondent to promote 25 the interested parties to the post of Assistant Headmaster in preference and instead of the applicant. A. Timothi (Mrs.), for the applicant. M. Photiou, for the respondent. Cur. adv. vult. 30 SAVVIDES J. read the following judgment. The applicant and the 41 interested parties, whose promotion to the post of Assistant Headmaster of Elementary Education is contested, were prior to thesubjudice decision teachers Ά ' in theElemen­ tary Education. On 5.6.1980 the respondent Comraittee 35 decided to promote the 41 interested parties to the post of 20 3 C.L.R. Georghiou v. Republic Savrides J. Assistant Headmaster to the exclusion of the applicant. Such decision is contained in the minutes of the meeting of the re­ spondent Committee of 5.6.1980,extract of the material part of which, reads as follows: 5 10 15 20 "(c) Promotions to the post of Assistant Headmaster. The Educational Service Committee having studied the personal and confidential files of all the teachers *A* who are entitled to be promoted to the post of Assistant Head•master and having in mind the provisions of the Law and the schemes of service and the recommendations of the Head of Elementary Education (see file 365/68/2), decides unanimously that on the basis of merit, qualifications and seniority of the candidates, the above recommendations of the Head of Department, the service reports and the opinion which its members have formed about each one of thecandidates during thepersonal interviews, thefollow­ ing teachers Ά ' are the most suitable for promotion to the post of Assistant Headmaster. Therefore, it decides to offer to them promotion to the post of Assistant Headmaster Elementary Education as from 1.9.1980 . -..„·. " and then the names of the 42 teachers who wereselected for promotion, are set out. Though, according to the decision, offer for promotion was 25 made to 42 teachers, when the decision was published in the official Gazette,on 12.9.1980,only the names of the 41 teachers -the interested parties in this recourse -are mentioned. It may be the case that the one not mentioned, namely, Yianoulla Vassiliou Lazaridou, did not accept the offer for promotion. 30 35 As a result of such decision the applicant filed the present recourse whereby he prays for "A decision and/or declaration declaring as null and void and of no effect the decision and/or act of the respondent Committee which was published in the Gazette of the Republic of 12.9.1980.under No. 1617 whereby the 41 persons named below, to the exclusion of the applicant, were selected and/or promoted to the post of Assistant Headmaster Elementary Education." (Thenthelistfollows of the names of the persons so promoted). 21 Sawides J. Georghiou v. Republic (1983 Thegrounds oflawonwhichthisrecourseisbasedand which were argued before me, are as follows: "

(1)The subjudice decisionand/or act of the Respondent Committee violates in substance Law 10/69, s. 35,and the principles of Administrative Law, as the said decision and/ or act was taken 5 (

1. a)as a result of misconception of facts in that the organ which took the decision took the wrong view, that certain real and legal situations did exist and others did not exist and as a result proceeded to the act in 10 question and, wrongly considered that the persons selected and promoted are better than the applicant regarding qualifications, merit, service reports, seniority and professional qualifications, etc. (
2. b)In abuse of the discretionary power vested in the 15 Respondent Committee by law in that: (
3. aa)the contents of the said act and/or decision are manifestly contrary to common sense; (
4. bb)it is repugnant to the principles of good administration as it was not issued by proper exercise 20 of discretion which governs generally the administrative organs in theexercise of their functions; (
5. cc)the sub judice act and/or decision was taken in violation of the principle of equality and, in particular, in the exercise by the Respondent 25 Committee of its discretionary powers in that there was not equal consideration and evaluation in accordance with the law of similar legal and factual situations. The above abuse of the exercise of discretionary 30 power by the organ which took the sub judice decision is apparent by the fact that persons obviously inferior to the applicant were selected and promoted. (
6. c)There was a violation of the administrative principle 35 which requires that, in cases of promotions and/or filling of public posts, the best from the candidates 22 3.C.L.R. Georghiou v. Republic Savrldes J. are selected not only in the interests of the public service but also as a matter ofjustice to suitable candidates for public posts. 5 10 15 (
7. d)There is no reasoning and/or there isdefective reasoning and/or illegal reasoning. The subjudice decision doesnot contain as it ought full and specialreasoning. It does not mention the real circumstances and the reasons why the Respondent Committee reached its decision concerning the suitability of the candidates; it does not mention the material qualifications of the candidates and the assessment made after comparison between the candidates and, in particular, it does not mention the material qualifications of those selected for promotion and it does not make assessment of such persons as compared with the applicant and in general it leaves considerable doubt as to the correctnessofthedecision oftheRespondent Committee. (
8. e)It was taken in abuse of power." The application was opposed and the grounds of law relied 20 upon in opposition are that the sub judice decision was taken lawfully andafter proper exercise by the respondent Committee of its discretionary powers, on the basis of all material facts before itconcerningtheapplicant and eachoneoftheinterested parties individually. 25 On 31.3.81, whilst the case was at the stage of directions, the recourse was withdrawn against interested parties 1 - 7 inclusive, and it was pursued only in so far as the remaining interested parties were concerned. The gist of the argument of counsel for the applicant is that 30 the"promotions were made in contravention of the provisions of the lawand that the applicant should have beenpreferred to the interested parties. The relevant law is the Public Educational Service Law, 1969 (Law 10/69) and the material section is section 35

(3)which 35 till 29.6.1979, when amended, used to read as follows: "Section 35

(2)The claims of educational officers to promotion shall 23 Savvides J. Georghiou v. Republic

(1983)be considered on the basis of merit, qualifications and seniority.

(3)In making a promotion the Committee shall have due regard to the confidential reports of the candidates and to the recommendations made in this respect by the respective inspector." 5 Both the above sub-sections have been amended by Law 53/79, section 5(b) and (c) respectively, which was enacted on 29.6.1979. Thenewsub-sections,asamended, read asfollows:"Section 35 10

(2)In examining the claims of educational officers for promotion, the merit, qualifications and seniority shall be duly taken into consideration in accordance with the procedure defined.

(3)In making a promotion the Committee shall have due 15 regard to the service reports of the candidates and the recommendations of the respective department of Education." The amendment of the lawmust have been necessitated as a result of the decision of this Court in the case of Michaeloudes 20 & Anotherv. The Republic of Cyprus, through the Educational ServiceCommittee& Another

(1979)3 C.L.R. 56, which was delivered on 27.1.1979 and by which regulations 26,28 and29 defining the procedure to befollowed in making promotions of educational officers, werefound tobeultravirestheLaw(section 25 35 of Law 10/69). An amendment which was brought about by the amending law53/79wasto change theterm "confidential" reports,which, in fact, did not represent the true character of the report since same were made available to the persons concerned, and sub- 30 stitute same by "service" reports which means that the Comraittee will no longer consider the confidential reports of the candidates but their service reports. In the present case the decision was based on the reports appearing in the files which are entitled either "normal" or "special" reports without men- 35 tioning anywhere confidential reports. This is also clear from thephraseology of the subjudicedecision where it ismentioned that the service reports of the applicants were the ones taken 24 3 C.L.R. Georghiou v. Republic Sawides J. into consideration. I, therefore, find that in this respect there has not been any contravention of the law. The only point that poses for consideration is, whether the respondent Committee on the material before it, properly 5 exercised itsdiscretioninpromoting theinterested partiestothe exclusion of the applicant, having taken into consideration the criteria set out by section 35 of Law 10/69 and its subsequent amendments. I have before me the files of the applicant and interested parties Nos 23, 24, 36, 37, 38, 39, 40 and 41. The 10 files of the remaining applicants were made available for inspection by counsel for the applicant but their production was not deemed necessary by her. Before proceeding to examine whether, from the material before me and which the respondent Committee took into 15 consideration whenconsidering the application for promotions, the subjudice decision was properly taken, I have to make the following observationswhichhavearisenasa resultofaperusal of the exhibits and, inparticular, from a comparison of exhibit 2 (the list of teachers recommended by the Department of 20 Elementary Education for promotion) with the list of the teachers finally selected and promoted by the respondent Committee:

(1)In exhibit 2 the names of 74 teachers are included as recommended for promotion by the Department of Elementary 25 Education. The applicant was not included in such list.

(2)Out of such list only 25teachers from those recommended were promoted and the remaining 16 out of the 41 promoted were not persons that had been recommended for promotion.

(3)The respondent Committee does not mention anywhere 30 initsdecisionwhyitdisregardedpersonswhowererecommended and whose names wereincluded in the list andpromoted others for whom there was no recommendation for promotion. A list showing the dates of appointments (seniority) and the marks of the last two years (merit) of the applicant and the41 35 interested partieshas beenannexed to the opposition of counsel for respondents. Nomentionismadethereinandnoallegation has been advanced that applicant has any better qualifications than theinterested parties. InheraddresstotheCourt,counsel 25 Sawides J. Georghiou v. Republic

(1983)for applicant, conceded that a perusal of the minutes of the meeting at which the subjudice decision was taken, shows that all matters which should have been taken into consideration by the appropriate organ in reaching its decision were in fact taken into consideration. What islacking in the said decision, 5 counsel contended, is reference to comparable tables and any reasoning why certain candidates werepreferred in comparison with others. In the present case,counsel added, though in the decision reference is made as to the matters which the respondent Committee took into consideration, such matters 10 are not supported by the reports and the evaluation of the candidates as appearing in their respective files. There is nothing in the contents of thefiles, counsel contended, indicating that theapplicant isinanywayinferior totheinterestedparties. Counsel further submitted that the applicant compared to a 15 number of the interested parties, though having the same merit and qualifications, his seniority is striking over them and no reason has been given why such factor was ignored. She concluded her argument by submitting that in any event there is lack of reasoning and or that the reasoning is defective and, 20 therefore, the sub judice decision should be annulled. Counsel for therespondent inhisaddress submitted thatthere isample reasoningin thiscaseand that the applicant has failed in any case to prove that he was strikingly superior regarding merit and qualifications, and seniority by itself is not the de- 25 termining factor but part of theoverall picture of the candidate whichmust beweighed inrelation to thecontents of thereports and the performance at the interview. He contended that in the present case the respondent could legitimately give more weight to the recommendations of the Head of the Department 30 and to the contents of the report about the candidates than to their seniority when effecting the promotions and that in taking its decision the respondent Committee exercised its discretionary powers correctly. Before proceeding to examine whether the respondent in this 35 case in taking the sub judice decision paid due regard to all relevant considerations and exercised its discretion properly, I wish to refer to our Case Law regulating such matters. Seniority isone of the threefactors to betaken into consideration incaseofpromotionsundertheprovisionsofsection35

(2)ofthe 40 26 3 C.L.R. Georghiou v. Republic Sawides J. Public Educational Service Law, 1969 (Law 10/69) as amended by section 5(b)of Law 53/79,the other two factors being merit and qualifications. Ithas beenheld bythisCourt in anumberofcasesthat when 5 all other factors are equal, seniority may be a decisive factor. In Lardis v. TheRepublic

(1967)3C.L.R. 64at p. 77,Triantafyllides, J. as he then was, had this to say: 10 15 "It istheparamount duty oftheCommission,intheproper exercise of its competence under Article 125 of the Constitution, to select the candidate most suitable for the post in question (see the Theodossiou case, supra, at p.47). : Seniority is only one of the relevant factors to be taken into account in this respect, and not the decisive factor; it may be the decisive factor only if all other things are equal as between two candidates." In Vonditsianos andOthers v. The Republic

(1969)3 C.L.R. 83 at p. 91,it was held by Triantafyllides, J. as he then was: 20 25 "On thewhole of the material before the Court, and in the absenceofanyduereasons tothecontrary -which Iwould expect tofind duly recorded in the relevant minutes of the Respondent - 1 fail to seehow it was open to the Respondent, in the proper exercise of its discretionary powers, to prefer Interested Party Vovides toApplicant Constantinou, inspite of the greater seniorityand experience of the latter over the former, and there being no difference in merit in favour of the Interested Party." InPartellidesv. TheRepublic

(1969)3C.L.R. 480,the Court ofAppealfound that thediscretionary power ofthe respondent to promote the interested party in preference to the applicant 30 who had seniority of two years over the interested party, was exercised in an erroneous manner, in that once all other things weremore or lessequal, the applicant's seniority ought tohave prevailed. InThalassinosv.TheRepublic

(1973)3C.L.R.386,A.Loizou, 35 J. dealing with the question of seniority, said at pp. 395,396:"The third ground of lawdeals with the question of applicant's seniority, in the sense that he was longer in the 27 Savudes J. Georghiou v. Republic

(1983)service. On this point, 1need only repeat what has been, on a number of occasions, stressed, that seniority isnot the decisive factor which governs promotions, but one that should be.duly taken into consideration and as stated in Partellides v. TheRepublic

(1969)3 C.L.R. 480, it should only prevail if all other things were equal." 5 In Karageorghis v. TheRepublic

(1982)3C.L.R. 435, Hadjianastassiou, J. after reviewing most of the cases on the matter, concluded asfollows at p. 458:"From the above case law there emerges clearly the prin- 10 ciple that when all other factors are equal clear and cogent reasons should be given by the appointing organ for disregarding the factor of seniority. Looking at the relevant minutes of the respondent commission, I find no reasons at all why applicant's se- 15 niority was disregarded. I am, therefore, bound to hold that, all other things being more or less equal, applicant's seniority ought to prevail. Applicant has, therefore, discharged the onus ofsatisfying methat hewasaneligible candidate who was strikingly superior to the one selected 20 andtherespondenthasthusexceededtheouterlimitsofthe discretion, and, therefore, has acted in abuse of itspowers. Moreover, I am bound to hold that the respondent Commission has not exercised its discretion in a valid manner through failure to take in its exercise into account all 25 material considerations, namely the consideration of seniority. The sub-judice promotion of interested party Papaleontiou is, therefore, annulled." The need for cogent reasons to be given for disregarding seniority when all other matters are equal, was also stressed in 30 Zafiridesv. TheRepublic

(1980)3C.L.R. 140inwhichA. Loizou, J. had this to say at pp. 147, 148:"In my view the seniority of the applicant is so substantial that in the circumstances of this case more cogent reasons were called for in disregarding same, as in that way an 35 administrative Court would have been enabled to ascertain whether the administrative discretion of the appropriate organ was properly exercised and so become capable of 28 •3 C.L.R. Georghiou v. Republic Sawides J. judicial control in the sense of Article 146of the Constitution". (See, also Vonditsianos and others v. The Republic (supra)). It is well settled by our Case Law that the Public Service 5 Commission ineffecting promotionsistoselectthemost suitable candidate. The pronouncement of such principle goes as far back as 1961when our Supreme Constitutional Court inTheodossiouv. TheRepublic, 2R.S.C.C.44,had thistosayatp.47:10 "In the opinion of the Court the paramount duty of the Public Service Commission in effecting appointments or promotions is to select the candidate most suitable, in allthecircumstances ofeachparticular case,for thepost in question." The principle has been followed in Saruhan andThe Republic 15 of Cyprus, 2 R.S.C.C. 133at p. 136where it was held:- 20 " „ . that when the Public ServiceCommission hasexercised its discretion in reaching a decision, after paying due regard to all relevant considerations and without taking into account irrelevant factors, this Court will not interfere withtheexerciseofsuch adiscretion unlessitcanbeshown to thesatisfaction of the Court that suchexercisehasbeen made in disregard of any provision of the Constitution or of any law or has been made in excess or in abuse of the powers vested in the Public Service Commission." 25 Theaboveprinciplehasbeenadopted bythisCourt eversince in a number of cases one of the most recent ones being Karageorghisv. TheRepublic(supra) in which reference ismadetoa numberofcasesonthepoint. (See,also,Lardisv. theRepublic (supra), Panayidou v. The Republic

(1978)3 C.L.R. 144). 30 In Nissis(No. 1)v. The Republic

(1967)3C.L.R. 473(and on appeal at page 671 of the same volume), L. Loizou, J. said at pages 477, 478:- 35 "It is quite clear to me that the only advantage which the applicanthadoversomeofthe interestedpartieswasonthe question of seniority. Seniority is, of course, a factor alwaysto beconsidered and in case of equal qualifications and merits it may well be decisive but is not the exclusive 29 Sawides J. Georghiou v. Republic

(1983)vital factor. The recommendations of the Head of Department and the assessment of the officer's capabilities and conduct as contained in the annual confidential reports, on • the other hand, are matters that cannot lightly be disregarded. Vide *•Michael Theodossiou and the Republic, 2 R.S.C.C. p. 44." In Antoniou v. The Republic

(1975)3 C.L.R. 510 in which Partellides case (supra) was referred to and distinguished, Triantafyllides, P. in delivering thejudgment of the Full Bench, had this to say at page 515: 5 10 "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 described as an 'average officer'; one does not have to be 'exceptional' in order to enjoy the benefit of the advantage of seniority. 15 But, on the other hand, it appears that the Commission has exercised its relevant discretionary powers within the proper for the purpose limits, because it was reasonably open to it to find, on the basis of the reasons for which the Head of Department recommended the interested parties as being 20 more suitable, that the candidates before it were not otherwise more or less equal, and therefore, this was not a case where seniority ought to have been treated as a decisive factor. So, in this respect, the present case is distinguishable from that of Partellidesv. The Republic,

(1969)3C.L.R. 25 480,where there had not beenrecorded in theCommission's minutes any specific views of the Head of Department concerned which could be treated as justifying the course of overlooking the seniority of the appellant in that case; and, in any event, we should stress, while dealing with this 30 -point, that the outcome in each case of this nature must depend on its own particular circumstances and it cannot be inevitably governed by the outcome in any other case, however comparable that case may, at first sight, appear to be." 35 Seniority of one candidate by itself cannot outweigh better qualifications of others. See, inter alia, Ioannides and another v. The Republic

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

(1980)3C.L.R. 551at pp. 558-561Karageorghis 30 3 C.L.R. Georghiou v. Republic Sawides J. v. The Republic (supra), Michaeloudis v. The Republic

(1982)3 C.L.R. 963. It is also well settled that mere superiority of one candidate over others it not sufficient to lead to the conclusion that the 5 appointing Authority has acted in excess or abuse of powers (see, inter alia, Evangebu v. The Republic

(1965)3 C.L.R. 292, Panayidou v. The Republic (supra), Ioannides and Another v. The Republic(supra), Georghiou v. The Republic

(1976)3 C.L.R. 74, Karageorghis v. The Republic (supra) and Michaeloudis 10 v. The Republic (supra). In Evangebu v. The Republic(supra) at pp. 299. 300 Triantafyllides, J. (as he then was) expressed his opinion as follows:- 15 20 "In my opinion, however, any margin that might be found to exist in favour of Applicant, over the two Interested Parties concerned, could only be described as mere superiority and it could never come anywhere near to being considered as strikingsuperiority; and itisa settled principle of administrative law that mere superiority, not being of astriking nature,isnot sufficient to leadto the conclusion that the appointing authority has acted in excess or abuse of powers, (see Conclusions from the Council of State in Greece 1929-1959 p. 268 and Decision 1406/1954 of the same organ (Reports 1954 p. 1737). The following was stated by the Court in Panayidou v. The 25 Republic (supra) at p. 153:- 30 35 "It was a selection for appointment or promotion on merit, qualifications and seniority and the respondent Commission did not fail in their paramount duty to select the candidate, most suitable for the post in question and this Court, as it has been repeatedly stated, cannot interfere with, and set aside such a decision unless it is established by the applicant on whom the onus always lies that she did have striking superiority over those selected; (See Evangebu v. The Republic

(1965)3 C.L.R. 292 at p. 300 and Georghiades and another v. The Republic

(1970)3 C.L.R. 257 at p. 263). In Ioannidesand Another v. The Republic(supra), A. Loizou, J. in delivering his judgment had this to say at p. 638:31 Sawides J. Georghiou v. Republic 0983) "Bearing in mind the totality of circumstances that were before the respondent Commission, I have come to the conclusion that the sub judice decision was reasonably open to it. The exercise of its discretion in the circumstances was neither contrary to law nor arrived under 5 any misconception of fact or/in abuse or excess of power. Applicant Ioannides has failed to establish any striking superiority over the two interested parties and his fourteen months seniority could not have been a decisive factor once not all relevant circumstances were equal." 10 With the above principles in mind, I am coming now to consider whether the respondent Committee in taking the sub judice decision, has exercised its discretion properly and hasdischarged itsparamount dutyof selectingthemostsuitable candidate in the circumstances of the present case. 15 I have before me the personalfilesof eight of the interested parties which were produced as exhibits. The rest were made available for inspection by counsel for applicant, but their production was not insisted upon. All that is before me concerning those interested parties whose files have not been 20 produced, is the comparable table attached to the opposition as Annex 3, showing the marks for the last two years and the date of appointment of suchparties, as well as all other parties concerned, including the applicant. As already mentioned, the recourse against interested parties 1-7 has been withdrawn. 25 A comparison of applicant with interested parties 12, 19, 20 and21 showsthat allofthemhave the same marks and seniority. These four teachers, however, had the additional advantageovertheapplicantinthattheyhadbeenrecommended for promotion, whereas the applicant had not been recom- 30 mended. Irrespective, however, of any recommendations, once there was not any superiority of the applicant over them, it was reasonably open to the Commission to prefer any one of them instead of the applicant. Therefore, the recourse against them fails. 35 Interested parties 8, 9, 10 and 11, have the same seniority with the applicant. In their last report they have the same marks with the applicant but in the last-but-one they are graded a little lower. Though applicant has shown a slight 32 3 C.L.R. Georghiou v. Republic Sawides J. superiority as to the marks over such interested parties, a difference of one or two marks in one report; is not such as to amount to a striking superiority of the applicant (the onus of which was upon him) over such interested parties, as to 5 leadtotheannulment of thesubjudicedecision (vide Evangebu v. TheRepublic (supra)andPanayidou v. TheRepublic(supra)). Allother interested partieswereappointed after the applicant. Applicant's seniority over them ranges from one to four years. Before concluding as to whether all other factors are more 10 or less equal, I have to consider the recommendations of the Department as they appear in exhibit 2, as well as the results of the interviews, since these form part of the overall picture ofthepartiesconcerned and theygotothemerits oftheparties. If in this respect the interested parties are superior to the 15 applicant, then the question of his seniority does not arise. Certain ofsuchinterested partieswererecommended forpromotion and their names were included in the list of the persons so recommended. The persons recommended according to such list are interested parties 1,2, 3, 5, 11, 12, 14, 15, 18,19, 20 20, 21,22, 23, 27, 28, 29, 33, 34, 36, 37, 38, 39, 40 and 41. Applicant was not, as already mentioned, recommended for promotion. Most probably, this was on account of what is stated in the last report in hisfile,in that—"he had a personal problem which affected him". There is no explanation, how25 ever, and no material in hisfileas to what such problem was, and whether such problem affected the execution of his duties. On the contrary, judging from his reports and his marks, it seems that such problem did not affect his work. In anycase, the recommendation is a subjective criterion and one cannot 30 say that applicant should have been recommended or not. However, the fact remains that the Committee did not choose to follow the recommendations of the Department all theway. Out of those recommended, 74 in all, only 25 were promoted, whereas the other 16 who were promoted were teachers who 35 were not included in the list of those recommended for promotion. Therefore, special reasons should have been given by respondent why it chose to promote 16 interested parties who were not recommended for promotion as against the 49 who were specially recommended for promotion out of the 74 in 40 exhibit 2, and who were not promoted. On account of this, 33 Sawides J. Georghiou v. Republic

(1983)I would say that with regard to those of the interested parties whowererecommended for promotion, that isinterested parties 14, 15, 18,22, 23, 27, 28,29, 33, 34 36, 37, 38 39,40 and 41 this factor goes to their credit and, therefore, all factors are not equal so as to let the seniority of the applicant prevail 5 even though in some cases such seniority is four years. (Antoniouv. The Republic(supra) ). With regard however, to interested parties 13, 16, 17, 24, 25, 26, 30, 31, 32and35, they were not amongst those recommended for promotion. Therefore, such factor does not operate in their favour and a 10 comparison of those parties with the applicant shows that all factors are more or less equal. That being so, cogent reasons should have been given why applicant's seniority was disregarded. This inaddition towhatIhave already said, that cogent reasons should have been given why such parties were pre- 15 ferred to others recommended for promotion. (See, Ioannides v. The Republic (supra)). This goes to the reasoning of the decision and makes it void for lack of due reasoning. Thelastfactor toconsideristheperformance attheinterviews whichwasoneofthefactors takenintoconsideration. Nothing 20 appears in the minutes about the results of the interviews of the candidates and no record has been produced as to the performance and marking (if such system was adopted) of the candidates at the interview. In Bagdades v. TheCentral Bank

(1973)3 C.L.R. 417, the Court in dealing with such matter, 25 had this to say:"However, in the absence of any cogent reasons given in the minutes regarding what were actually the results oftheinterviews(whether arecord waskeptand thesystem of marking was adopted) as well as what were the other 30 relevant factors which the Committee said they took into consideration, and the reason why they disregarded the greater seniority of the applicant, I have reached the view that the respondent had exercised their discretionary powersina defectivemanner becauseitwasnot reasonably 35 open to them to reach such a conclusion". (per Hadjianastassiou, J. at p. 428). (see, also, Karageorghis v. The Republic(supra) where the same principle was reiterated). 34 3 C.L.R. Georghiou v. Republic Sawides J. In theabsence of any cogent reasons appearing intheminutes and showing(a)why inthecaseofthoseoftheinterestedparties in respect of whom all factors were more or less equal withthe applicant, the seniority of the applicant was disregarded; (

1. b)5 why those of the interested parties who were not recommended forpromotionwerepromoted,inlieuofotherswhowerespecially recommended for promotion; (
2. c)as to the results of the interviews and the lack of any indication as to the method adopted in such interview for the evaluation of the candidates 10 as to enable the Court, especially in the circumstances of the present case where persons not recommended were promoted instead of those recommended, whether it was reasonably open to the respondent to act upon the results of the personal interviews, I have come to the conclusion that concerning interested 15 parties 13,16, 17,24,25,26, 30,31,32and 35 the respondent Committee has not exercised its discretionary power in a valid way and that in any event its decision is wrong due to lack of due reasoning. In the result, the sub judice decision as far as it concerns 20 the above-mentioned interested parties is annulled, but in the circumstances of the case, I make no order for costs. Sub judice decision annulled. No orderas to costs. 35