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(1983)1983 March 12 [A. Loizou, J.] IN T H E MATTER OF ARTICLE 146 OF THE CONSTITUTION MYRIAN1HI C. HADJIIOANNOUAND OTHERS, Applicants, THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC SERVICE COMMISSION, Respondent. {Cases Νos. 120/81, 130/81, 133/81, and 45/81). Public Officers—Promotions—Judicial control—Principles applicable —Seniority—Not the decisivefactor—It only prevails if all other factors are equal—Which were not in view of the betterconfidential reports of the interested parties and the views of the Head of the Department regarding their performance at the interview. 5 Public Officers—Schemes of service—Provision for different age for first entry and promotion—A reasonabledifferentiation—Not amounting to unequal treatment contrary to Article 28 of the Constitution. The applicants in these recourses challenged the decision of IQ the respondent Commission to promote the interested parties to the post of Welfare Officer. Both the applicants and interested parties possessed the qua­ lifications required by the schemes of service but the interested parties were better reported upon in the confidential reports than the applicants. Two of the interested parties were senior to applicants but applicants were senior to the remaining inter­ ested parties. Held,(I)that when an administrative organ such as the Public Service Commission, selects a candidate on the basis of comparison with others, it is not necessary to show, in order to justify his selection that he was strikingly superior to the 286 jg 20 3 C.L.R. 5 10 15 20 25 30 35 40 Hadiiloannou & Others v. Republic others; that an administrative Court cannot intervene in order to set aside the decision regarding such selection unless it is satisfied, by an applicant in a recourse before it, that he was an elligible candidate strikingly superior to the one who was selected, because only in such a case the organ which hasmade the selection 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 also, in such a situation the complained of decision of the organconcernedistoberegardedaseitherlackingdue reasoning orasbasedonunlawful orerroneousorotherwiseinvalid reasoning, (see Georghiou v. Republic
(1976)3 C.L.R. 74 at p.83).
(2)That in the present case the applicants have failed to establish that there existed such striking superiority over the interested parties or any of them as to lead this Court to the conclusion that the subject decisionwastaken inexcessor abuse of power; that their seniority as against those interested parties who are somehowjunior to them cannot prevail asnot all other factors are equal; that seniority is not the decisive factor that governs promotions but one that should be duly taken into consideration and should only prevail if all other things were equal;that this,however, doesnot appear to bethe case in the light of the views expressed by the Head of the Department regarding their performance at the interview and the contents of the confidential reports; that, furthermore, the subject decision and that includes the disregard of the seniority of those applicants who are senior to certain of the interested parties, is duly reasoned; that the reasoning to be found in the minutes of the respondent Commission of the meetingat which the subject decision was taken, is duly supplemented by the rest of the material that was before them; accordingly the recourse should fail. Held, further, with regard to the question whether the provision in the schemes of service for different age limit for first entry and promotion constitutes unequal treatment contrary to Article28 of the Constitution, that reasonable differentiation is made between first entrants and those eligible for promotion whose avenues should not have been impaired in any way by age limits and no question of unequal treatment arises. Application dismissed. 287 Hadjiloannou & Others v. Republic
(1983)Cases referred to: Evangelouv. Republic
(1965)3 C.L.R. 292 at p. 300; Georghiadesand Another v. Republic
(1970)3 C.L.R. 257 at p. 269; Georghiou v. Republic
(1976)3 C.L.R. 74 at p. 83; Georghiades and Another v. Republic
(1975)3 C.L.R. 143 at p.
  1. 5 Recourses. Recourses against the decision of the respondent to promote the interested parties to thepost of Welfare Officer in preference 10 and instead of the applicants. Ch. Panayides for Λ'. Neocleous, for applicant in Case No. 45/
  2. A. Xenophontos, for the applicant. St. Amvrosiou for E. Efstathiou, for applicants in Case Nos. |5 130/81, 133/
  3. CI. Antoniades, Senior Counsel of the Republic, for the respondents. Cur. adv. vult. A. Loizou J. read the following judgment. By these four 20 recourses which have been heard together because of their nature, the applicants challenge the decisions of the respondent Commission to promote and/or second the interested parties, later to be named in this judgment, to the post of Welfare Officer as from 1st December 1980, as being null and void and 25 of no effect whatsoever. In recourse No.45/81,the applicant Andreas Papadopoullos, challenges the decision of the respondent Commission to appoint and/or second and/or promote Zoe Adamidou, Maria Dikomitou, Chryso Neophytou, Vera Paraskevopoulou, Mary Tekki. In recourse No. 120/81 the applicant Myrianthi Hadjiloannou challenges thedecision of therespondentCommission topromote and/or second Andreas Kyriakides, Ellie Saveriadou, Zoe Adamidou, Maria Dikomitou, Chryso Neophytou and Vera Paraskevopoulou. In recourse No. 130/81 Sophia Papadopoulou challenges the aforesaid decisions which interested parties, Zoe Adamidou, Chryso Neophytou, Vera Paraskevopoulou, Mary Tekki, were 288 30 35 3 C.L.R. Hadjiloannou & Others v. Republic A. Lolzou J. secondedtothetemporarypostofWelfare Officer (Dev.Budget) andthepromotion ofAvgiCharalamboustothepermanent post of Welfare Officer (Dev. Budget). By recourse No. 133/81, applicant Christina Kyriakou chal5 lenges the decision of the respondent Commission to promote to the post of Welfare Officer ZoeAdamidou, Chryso Neophytou and Vera Paraskevopoulou. The aforesaid decisions werepublished in the official Gazette of the RepubUc of the 23rd January 1981 under Notifications 10 116 and
  4. The post of Welfare Officer is, according to the relevant Schemeof Service,afirst entry and promotion post. Approval was given for the filling of seven vacancies in this post, one permanent, (ordinary) six temporary (development) and they 15 were advertised in view of their being first entry posts as well. One-hundred and threeapplications wereinall submitted but as by decision of the Council of Ministers No. 12.948 of the 20th December 1973,thesepostsweredeclaredtobespecialisedposts, the respondent Commission referred all the applications to the 20 Chairman of the appropriate Advisory Board as provided by section 35
(2)of the Public Service Law, 1967, who in his turn submitted to the respondent Commission the report of the Advisory Board, whereby they were recommended in alphabetical order 34 candidates, among which were included the 25 applicants and the interested parties. Therespondent Commissionatitsmeetingofthe 12thSeptember 1980,having takeninto consideration theviewsand recommendations of the Advisory Board decided to invite for interviewallthoserecommended byit,except Stavros Roussounides, 30 whoisamissingperson. At itsmeetingsof the6th, 23rd,24th and 27th October, with the exception of one officer who was posted at our Embassy in Athens and could not attend, all but oneof thecandidates wereinterviewed inthepresence of Linos Shakallis,Principal Welfare Officer, representingtheDirectorof 35 the Department. The relevant minutes of these interviews appear as Appendices 11, 12, 13 and 14 respectively. At its meeting of the 8th November 1980, the respondent Commission took the subject decisions. The relevant minutes 289 A. Loizou J. Hadjiloannou & Others v. Republic
(1983)after referring to the minutes of the previous meetings (Appendix 15) read as follows: "In accordance with the minutes of the Commission dated Uth November 1978, the vacancies were seven, namely that is i.e. one permanent (Ordinary Budget) and six tern- 5 porary (Development Budget). The Acting Director-General of theMinistry of Labour and Social Insurance by letter under number 4-7-02/X1 and dated 13th June 1980, informed the Commission that by the Development Budget of 1980 five permanent posts 10 ofWelfareOfficer werecreatedasagainsttheabolitionofan equalnumber oftemporaryposts. TheMinister ofFinance agreedtothefilling ofthesefivepermanentpostsandsothe vacant posts were shaped as follows: 1 permanent (Ord. Budget) 5 permanent (Dev. Budget) 1 temporary (Dev. Budget). In the meantime, one permanent post (Ord. Budget) of Welfare Officer resulted from the promotion of Mr. Andreas Ioannides to the post of Inspector of Public 20 Assistance (item 1 of the minutes of the meeting, dated 18thMarch 1980)andsothevacanciesfor filling aroseto
  1. The Acting Director-General of the Ministry of Labour and Social Insurance by letter under number 14/77 and dated 22nd October 1980, asked the suspension of the 25 fining of one temporary (Dev. Budget) post of Welfare Officer until it becamepossible to settle onecasual Welfare Officer bythe necessary legislative regulation in accordance with the agreement between PASYDY and Government for the appointment toorganic postsof casual officers who 30 did not completefive years servicebut wereinthe Government service on the 1st February
  2. So the posts for filling are twopermanent (Ord. Budget) and five permanent (Dev. Budget). > The Commission was informed of the opinion of the 35 Deputy Attorney-General under number 34(Q/61/4 and 290 15 3 C.L.R. Hadjiloannou & Others v. Republic A. Lolzou J. 10 dated 31st October 1980in accordance with which, in case the Diploma possessed by Charalambos Mahlouzarides, Assistant Welfare Officer, oneof the candidates, was found by the Public Service Commission that it is on an appropriate subject asprovided bytherelevant Schemeof Service for 'First Appointment' then the candidate might take the post although he does not satisfy the qualifications for 'Promotion' toit, and iffinally hewould beselectedfor the fillingofoneofthevacantpoststhenthereshouldbe offered to him promotion and not appointment. 15 Asregardsthesuitability oftheDiploma ofMr. Mahlouzarides the views of the Appropriate Authority and the Ministry ofEducation wererequested inwritingasfrom the 16th October 1980, but until this moment no reply has been received. 5 20 25 30 35 As the Commission observed that the Principal Welfare Officer as representative of the Director of the Department evaluated at its meeting of the 27th October 1980 the performance of Mr. Mahlouzarides at the interview before the Commission as average (metria) and the Commission itself infact considers,onthebasisofallthefacts before it, and his performance at the interview, that the said officer is not as good as other candidates, and consequently even if it was found that he satisfies all the requirements of the SchemeofServicefor appointmenttotheposthewouldnot beselected for it, itdecided not towaitfor theviewsofthe appropriate Authority and the Ministry of Education, but to proceed with the filling of the vacant post. At the assessment of the candidates the Commission did not agree fully with the assessment of the representative of Director of the Department as regards the performance at the interviews of Mr. Andreas Papadopoullos and Mrs. Sophia Papadopoulou and it observed that the Confidential Reports on them lack as against those of other candidates. The Commission, further considered that Mr. Andreas Charalambous does not possess the qualifications required by the relevant Scheme of Service. The Commission having examined all facts before it, 291 A. Lolzou J. Hadjiloannou & Others v. Republic
(1983)namely the applications with the necessary certificates, the personal files of the candidates, who are civil servants and the Confidential Reports about them and after taking into consideration theconclusionsoftheAdvisoryBoardandthe performance of each one of the candidates at the inter- 5 views with the Public Service Commission, in the light of the views and assessments of the representative of the Director of the Department of Social Welfare Services for the purpose, it decided that those on secondment to the temporarypost ofWelfare Officer areclearlysuperior tothe 10 remaining candidates and that they are the most suitable anddecided topromote them tothepost ofWelfare Officer as from 1st December 1980 as follows: (
  1. a)To the two permanent (Ord. Budget) are promoted: 1. THEOPHILOU Eleni 2. KYRIAK1DOU Koula 15 (
  2. b)To the three permanent (Dev. Budget) are promoted: 1. CONSTANTINIDOU Niovi 2. PAPADOPOULOU Stavroula 3. CHARALAMBOUS Avgi. 20 As regards the filling of the remaining two permanent (Dev. Budget) posts and the five temporary (Dev. Budget) posts of Welfare Officer which were vacated on account of the aforesaid promotions, the Commission considered that the following are on the whole superior to the remaining 25 candidates, found them suitable and decided to promote/ second them to the Post of Welfare Officer as from 1st December 1980 as follows: (
  3. i)To the two permanent (Dev. Budget) posts are promoted:· 30
(1)KYRIAKIDES Andreas,
(2)SAVERIADOU Ellie. (ii) To the temporary (Dev. Budget) posts are seconded:
(1)ADAMIDOU Zoe,
(2)DIKOMITOU Maria,
(3)NEOPHYTOU Chryso, 292 35 3 C.L.R. Hadjiloannou & Others v. Republic Λ. Lofzou J.
(4)PARASKEVOPOULOU Vera,
(5)TEKKI Mary. 5 10 The member of the Commission Mr. Loizos Christodoulou considered as best for secondment Mrs. Chrysi Adamou instead of Mary Tekki." Applicant Papadopoullos, is a graduate of a secondary school of the Pantios Highest School of Political Science and a student of the Law School of Salonica University. He entered the service as a Temporary Assistant Welfare Officer on the 16th December 1968 and he became permanent on the 15th March
  1. Applicant Myrianthi Hadjloannou became an Assistant Welfare Officer on contract, - hence the absence of any confi­ dential reports on her, - in August 1975 and remained so until 15 1976 when she left for studies abroad, and she was re-engaged on contract once more in February
  2. She is a graduate of a secondary school and she has a B.A. Degree from the Univer­ sity of Beirut on Development Psychology, a master's degree from the University of Iowa in Social Work, and a normal 20 diploma in the branch of Developmental Psychology. Applicant Sophia Papadopoulou became an Assistant Social Worker on daily wages on the 13th September 1965 and an Assistant Welfare Officer, temporary on the 1st August 1969 and permanent on the 1st July
  3. She is a graduate of a secon25 dary school and of the School for Social Welfare XEN Greece. 30 Applicant Christina Kyriakou became a temporary Assistant Welfare Officer on the 12th February 1970 and then permanent on the 15th March
  4. She is a graduate of a secondary school, also of the School for Social Services of Diakonisse, Athens. Interested party Andreas Kyriakides, was appointed temporary Assistant Welfare Officer on the 1st March 1958 and became permanent on the 1st October
  5. He graduated a secondary school in Egypt. 35 Interested party Ellie Saveriadou became a temporary Assi­ stant Welfare Officer on the 1st June 1957 and permanent on 1.8.
  6. She is a graduate of secondary school and of the 293 A. Loizou J. Hadjiloannou & Others v. Republic
(1983)Teachers'CollegeNicosia and has passed certainexams of the Cyprus Certificate of Education. Interested party Zoe Adamidou became a daily paid AssistantWelfare Officer on 15thMarch
  1. Onthe 15thOctober 1971she became temporary and permanent on the 15th March 5
  2. Sheisa graduate ofasecondary school,alsoand shehas a diploma from the Pierce American College in Social Welfare. Interested party Maria Dikomitou was first engaged as an Assistant Welfare Officer on daily wages on 3rd May 1965, temporary on 1st August 1969 and permanent on 15th March 10
  3. Sheisa graduate ofasecondary schooland sheattended the first two years studies of the Pierce College for Social Welfare. Interested party Chryso Neophytou was first appointed as a temporary Assistant Welfare Officer on the 15th October 1971 15 andshebecamepermanent on 1stApril
  4. Sheisagraduate of a secondary school, and she has a diploma from the School of Social Welfare XEN Greece. Interested party Vera Paraskevopoulou wasfirst appointed as a temporary Assistant Welfare Officer on the 15th May 1972 20 and she became permanent on the 1st April
  5. She has a diploma from the Pierce American College at Athens, B.A. in Sociology. Interested party Mary Tekki became a temporary Assistant Welfare Officer on the 1stAugust 1969,from month to month 25 onthe 15thMarch 1971 andpermanentonthe 15thMarch
  6. She is a graduate of a secondary school and shehas a diploma from Pierce American College Athens in Social Welfare. InterestedpartyAvgiCharalambouswasfirst appointed asan Assistant Welfare Officer on daily wages in September 1967, 30 wasmade temporary on the 1st August 1969,then from month to month on the 1st October 1971and permanent on the 15th March
  7. She is a graduate of a secondary school and she hasa Diplomafrom theSchoolof SocialWelfare XEN Greece. All applicants and interested parties passed also the depart- 35 mental examinations. Before proceeding any further I feel that I should stress the 294 3 CUR. Hadjiloannou A Others v. Republic A. Lotzon J. marked seniority and at that the longer service and experience which interested parties Andreas Kyriakides and Ellie Saveriadou have as against all applicants and all other interested parties. Theseniorityandthelengthofserviceoftheremaining 5 appear from the summary of their careers which I havejust set out in this judgment. As against these two applicants the provision in the relevant SchemeofServiceunder paragraph 3that for first entry theage limit of a candidate should not be less than 21 and not more 10 than 45 years of age was challenged in recourse No.120/81 as being unconstitutional, as constituting unequal treatment and/ or discrimination contrary to Article 28 on the ground that it is not applicable to all candidates in the service eligible for promotion, the applicant in that recourse being a candidate for 15 a first entry appointment. It wassubmitted on her behalf that onceit wasdecided bythedrafters of the Scheme of Service to impose an age limit restriction, such age restriction should be universal. Though this applicant was born on the 3rd April 1952,whichmakesheratthetimethesubjectdecisionwastaken 20 as being 28 years of age and therefore not excluded by this provision, yet her counsel pursued this argument on differentiation ashad itbeenuniversal,asheput it, these twointerested parties, Mr. Kyriakides and Mrs. Saveriadou should have been excluded on account of age. 25 I find no merit for this ground whatsoever. A reasonable differentiation is made between first entrants and those eligible for promotion whoseavenues should not have been impaired in anywaybyagelimits. Ineedhardly sayanythingmoreon this point. 30 Whilstdealingwiththisrecoursethereisonemorepoint tobe disposed of, namely that on her behalf an affidavit was filed before meregardingher career and qualifications, theduties she performed andherparticipation inrelevantcommunity functions and activities. Therespondentsfiled an affidavit inreplythereto. I shall not enter into the contents of these affidavits as to 35 mymind thisapplicant,whowasa candidate for first entry, had the opportunity of bringing to the knowledge of the respondent Commission everything that she.thought it might be relevant whensubmittingherapplication in Form Gen.6,whichcontains
  8. A. Loizou J. Hadjiloannou & Others v. Republic
(1983)a column for the Schools attended, the qualifications possessed and the examinations passed, as well as the professional activities of a candidate. In fact she had the opportunity to and indeedshedidsubmit allherdiplomasandcertificates includingan analytical list on her marks and letters of recommendation and testimonials in addition to her reference to her previous career. Therefore shecannot complain that everything that wasrelevant was not placed before the respondent Commission. Any omission, in that respect, and I see none, cannot be blamed on anybody else. Iturn nowtotheground arguedonbehalfofalltheapplicants against thevalidity of the subjudicedecision which are that the respondent Commissionfailed initsparamountdutytoselectthe bestcandidatefor thesaidpostcontrary tothegeneralprinciples ofAdministrative Lawand inexcessor abuseofpowerand that 15 it also failed to carry out a due inquiry, it disregarded and/or wrongly evaluated the applicants' striking superiority and/or theirseniorityinrespectofthoseasagainstwhomtheyaresenior and/or their qualifications where the applicants possess such, as against the interested parties and/or that the subject decision is 20 not duly reasoned. I do not intend to reproduce here the contents of the confidential reportsontheapplicantsandtheinterestedpartiesbuta comparison of them shows that on the whole the interested parties were better reported upon than the applicants. In 25 addition there werebefore therespondent Commission theviews expressed by the head of the Department as regards their performance at the interviews and which appear in Appendix 14, moreoverthereweretheviewsformed bythepersonalexperience of the members of the respondent Commission themselves. 30 ItisasettledprincipleofAdministrativeLawandthisprinciple appearsfrom theCaseLawinGreecewhichwasadoptedbythis Court in a number of Cases such as Evangelou v. The Republic
(1965)3 C.L.R. 292 at p. 300 and Georghiades andanother v. TheRepublic
(1970)3C.L.R.257atp. 269referred toalsobythe 35 Full Bench in Odysseas Georghiou v. The Republic
(1976)3 C.L.R. p. 74 at p. 83 that when an administrative organ "such as the Public Service Commission, selects a candidate on the basis of comparison with others, it is not necessary to show,in ordertojustify hisselectionthathewasstrikinglysuperior tothe 40 296 5 10 3 C.L.R. Hadjiloannou & Others v. Republic A. Loizou J. others. On the other hand, an administrative Court cannot intervene in order to set aside the decision regarding such se­ lection unless it is satisfied, by an applicant in a recourse before it, that he was an eligible candidate who was strikingly superior 5 to the one who was selected, because only in such a case the organ which has made theselection for thepurpose of an appoin­ tment 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; also, in such a situation the complained of 10 decision of the organ concerned is to be regarded as either lacking due reasoning or as based on unlawful or erroneous or otherwise invalid reasoning." In the present case the applicants have failed to establish that there existed such striking superiority over the interested parties 15 or any of them as to lead me to the conclusion thai the subject decision was taken in excess or abuse of power. Their seniority as against those interested parties who are somehow junior to them cannotprevail as notall otherfactors are equal. Time and again it has been said that seniority is not thedecisive factor that 20 governs promotions but one that should be duly taken into consideration and should only prevail if all other things were equal. This, however, does not appear to be the case in the light of the views expressed by the Head of the Department regarding their performance at the interview and the contents of 25 the confidential reports. See losif Georghiadesand another v. The Republic
(1975)3 C.L.R. 143 at p. 152 and the authorities therein mentioned. 30 35 Furthermore the subject decision and that includes the dis­ regard of the seniority of those applicants who are senior to certain of theinterested parties, isduly reasoned. The reasoning to be found in the minutes of the respondent Commission of the meeting at which the subject decision was taken, is duly supple­ mented by the rest of the'material that was before them. Also a proper inquiry was in the circumstances carried out and the respondent Commission took into consideration, as stated in their minutes, every relevant factor. For all the above reasons these recourses are dismissed but in the circumstances there will be no order as to costs. Recoursesdismissed. No order as to costs. 297 ν

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