clr/1983/1983_3_750.pdf

(1983)1983 August 23 [A. Loizou, J.] INTHE MATTER OFARTICLE 146OFTHE CONSTITUTION KLITOS MAKRIDES, Applicant, v.

1. THE EDUCATIONAL SERVICE COMMITTEE,
2. THE MINISTER OF EDUCATION, Respondents. (Case No. 454/80). Public (or Educational Officers)—Promotions—Head of Department —Recommendations—Principles applicable. Public (or Educational Officers)—Promotions—Mere superiority not being of a striking nature not sufficient to lead to conclusion that appointing authority acted inexcess orabuse of power—Difference of one or two marks in the reports of the applicant and the interested parties not such as to constitute striking superiority of the applicant over the interested parties. Public (or Educational Officers)—Schemes of service—Qualifications constituting an advantage thereunder—Applicant possessing additional qualifications but interested parties senior and better in merit—Not necessary for the Commission to give reasons for preferring the interested parties instead of the applicant who possessed additional qualifications—When does express reference to give such reasons arise. Public (or Educational Officers)—Promotions—Interview of candidates —Whether members of respondentCommission required to record in detail what their impressions wereas a result of the interview— Angelidou v. Republic

(1982)3 C.L.R. 520 distinguished. The applicant in this recourse, a secondary education school master, challenged the decision* of the respondent Commission * The decision is quoted at pp. 754-755 post. 750 3 C.L.R. Makrides v. Republic to promote the interested parties to the post of Assistant Headmaster of Secondary Education. Counsel for the applicant mainly contended: 5 10 15 20 25 30 35 (

1. a)That the respondent disregarded the recommendations of the Head of Department without giving any specific reasons. (
2. b)Thatthoughtheapplicantpossessedqualifications which according to the relevant scheme of service constituted an additional qualification, nevertheless these were ignored, he was not promoted and no cogent reasons weregiven for preferring other candidates,whodid not possess any such qualifications, to the applicant. (
3. c)That the Commission took into consideration "the opinion which its members formed for each of the candidates during the personal interview" without recording this opinion in the relevant minutes so that itsjudicial control may be possible (see KleriAngelidou v. The Republic

(1982)3 C.L.R. 520). Applicant and 7 of the interested parties possessed additional qualifications as provided by the scheme of service. As far as theremaininginterested partieswereconcerned theyweresenior to applicant; and though they were graded more or less the samein the confidential reports as the applicant as regards their performance, they were better graded on the subject of Organisation, Administration and Human Relations which obviously for the holder of a managerial position was a most important factor. Held,

(1)that though the recommendations of a Head of Department, or other senior responsible officer especiallywhere specialised knowledge and ability were required, was a most vital consideration not lightly to be disregarded all interested parties promoted had been recommended by the Head of Department; accordingly contention (a) must fail.

(2)That it is clear from the perusal of the personal files and confidential reports of the 7 interested parties who like the applicantpossessedadditionalqualifications, that itwasreasonably open to the respondent Commission to prefer any one of them andtopromotetheminsteadoftheapplicant; thatany differenceof one or two marksin their reports isnot such asto becon751 Makrides τ. Republic

(1983)sidered asconstitutingstriking superiority of theapplicant over the interestedparties,justifying thus, theannulment of the sub judice decision,becauseitisasettledprinciple of administrative law that mere superiority,not being of a striking nature isnot sufficient toleadtotheconclusionthattheappointing authority has acted in excess or abuse of powers. 5

(3)That, as regards the remaining interested parties, in the circumstances of this case, the subject decisionis duly andco­ gently reasoned, its reasoning being supplemented from the material in thefile in all respectsand it would have beenfutile 10 to expectmore expressreference tothe additional qualification of the applicant when there were so many factors in the file establishing overwhelming superiority on the part of the in­ terested parties thatwerepromoted insteadof him; thatthere would be expected express reference to the reasons for disre- 15 garding what is an additional qualification in cases wherethere were not so many apparent reasons in the file.

(4)That Angelidou v.Republic

(1982)3C.L.R. 520 isdistin­ guishable and consequently not applicable, as in that case the respondent Commissionfailed to record the subjective opinion 20 and personalknowledgeand information which themembersof the Commission possessed about the candidates, obviously priortotheinterviews; thatin thepresentcasenosuchpersonal element arises; that the "opinion*' of the members is the impression which they formed during and as a result of the 25 interviews and not before them; thattherespondentCommis­ sionwerenotrequired torecordindetailwhattheirimpressions wereasaresultofthe interviews,whichimpressionsinanyevent werebornoutfrom thematerialinthefile; andthat, therefore, contention (c) should fail as the sub judice decision is in this 30 respect duly reasoned. Applicationdismissed. Cases referred to: Protopapasv. Republic

(1981)3 C.L.R. 456 at pp. 459, 460; Georghiou v. Republic

(1983)3 C.L.R. 17 at p. 34; Tourpekki v. Republic

(1973)3 C.L.R. 592; Andreouv. Republic

(1979)3 C.L.R. 379 at p. 388;. 752 35 3 CUR. Makridesτ. Republic Evangelou v. Republic

(1965)3 C.L.R. 292 at p. 300; Angelidou v. Republic

(1982)3 C.L.R. 520; Frangos v. Republic

(1970)3 CL.R. 312 at pp. 335-

1. 5 Recourse. Recourse against the decision of the respondents topromote the interested parties to the post of Assistant Headmaster of Secondary Educationinpreference and instead of theapplicant. L. Papaphilippou, for the applicant. G. Constantinou(Miss), for the respondents. 10 Cur. adv. vult- A. Loizou J. read the following judgment. By the present recourse the applicant seeks a declaration of the Courtthatthe act and/or decision of the respondents which was published in the Official Gazette of the 3.10.1980 to promote the interested 15 · parties, later to be named in this judgment, to the post of As­ sistant Headmasterof Secondary Educationis null andvoid and of no legal effect whatsoever. The post of Assistant Headmaster of Secondary Education, accordingto therelevant schemeof service(Appendix *C of the 20 bundle of documents attached to the Opposition) is a first entry and promotion post and the qualifications required are; 25 30
2. At least three years service at salary scale B. 12 of the post of Master or Instructor or Service of any duration in the post of Technologist at -salary scale B.13
3. At least satisfactory service according to the last two confidential reports.
4. Good knowledge of one of the prevailing European languages.
5. Postgraduatestudiesabroadoradditionaltitle, preferably in paedagogics or subjects concerningthe administration 753 A. Loizou J. Makrides τ. Republic

(1983)of schools, is considered as additional qualification. The Educational Service Commission at its meeting of the 14.4.1980 as it appears from the relevant minutes (Appendix *D*; decided, inter alia, as follows:(

1. a)To advertise according to the Scheie of Service in force, the vacant posts of Assistan Headmaster __. (
2. b)Having studied the personal and confidential files of the Masters (Scale B.12), Technologists and Instructors 10 who are entitled topromotion to thepost of Assistant Headmaster and because the number of the said can­ didates is large, while the number of the vacant posts is limited, decides to select from these the prevailing ones on the basis of merit, qualifications, seniority 15 and to call them to a personal interview on the 28, 29 and 30 April „_ and 16 May, 1980". TheMinistry of Financegaveits approval for thefilling of the posts and on the 31.5.1980theDirector-General of theMinistry of Education gave his approval by his letter to the respondent 20 Commission of the 31.5.1980 (Appendix Έ'). On the 7.6.1980 the respondent Commission, inter aha, de­ cided as follows (Apnendix Ή ' ) : (
3. c)Promotions to ine post of Assistant Headmaster 25 The Educationa. Service Commission having studied the personal and confidential files of all the Masters, Technologists and Instructors who are entitled to promotion to the post of Assistant Headmaster and having in mind the provisions of the Law and of the 30 Schemes of Service and the recommendations of the Heads of Departme t of Hig er and Secondary Edu­ cation and Technical Education decides that on the basis of merit, qualifications and seniority of thecan­ didates, the above recommendations of the Heads of 35 Department, the service reports and theopinionwhich its members formed for each of th;candidatesduring the personalinterviews,the following Masters,Techno754 3 C.L.R. Makrides τ. Republic A. Loizon J. logists and Instructors are the most suitable for pro­ motion to the post of Assistant Headmaster ". Twenty five candidates, other than the applicant, were pro­ moted tn the post of Assistant Headmaster. 5 Hence the present recourse which is based on the following grounds of Law:1. The sub judice act or decision was taken under a mis­ conception of fact in that the respondents: 10 (
4. a)disregarded and/or did not evaluate properly or at all the fact that the applicant is superior to the interested parties inqualifications, merit,seniority andexperience; - _ (
5. b)disregarded and/or did not evaluate properly or at all the fact that the applicant is superior in merit and priority for promotiontotheinterestedparties; 15 (
6. c)disregarded and/or did not evaluate properly or at all the confidential reports in respect of the applicant; (
7. d)disregarded and/or did not evaluate properly or at all the1 postgraduate studies of the applicant; 20 (
8. e)failed tomake a due inquiry of all thefacts concerning the promotions; (
9. f)no evaluation and comparison was made of the quali­ fications of the applicant; 25 (
10. g)disregarded and/or did not evaluate properly the fact that the applicant was already exercising the duties of Assistant Headmaster at the Technical School of Limassol since 1979. 2. The respondents acted in a discriminatory manner as regards the applicant who was subjected to unequal treatment vis-a-vis the interested parties. 30 3. The sub judice decision was reached in breach of the Educational Officers (Teaching Staff) (Appointments, Postings, Transfers, Promotions and Related Matters) Regulations, 1972. 4. The sub judice decision lack any or due reasoning. 755 A. Loin» J. Mokrides v. Republic

(1981)3 C.L.R. 456 was cited, where at pages 459, 460, it was said: 5 10 15 20 " „ As far as the disregarding of the recommendations of the Head oftheDepartment and thefailure togive reasons for doing so, we have the case of Michael Theodosiou and TheRepublic, 2 R.S.C.C. p.44 where it was held that the recommendation of a Head of Department, or other senior responsible officer, especially where specialised knowledge and ability were required, was a most vital consideration not lightly to be disregarded. If the recommendation could not be acted upon then the Head of Department, or other officer concerned should be invited by the Public Service Commission to explain his views before it; and, if, nevertheless, the Public Service Commission still felt it could not act on suchrecommendation, thereasons for not so acting should be clearly recorded in the minutes of the Commission, for the protection of the legitimate interests of the candidates concerned, Arts. 151 and 146; This principle has been consistently followed by this Court in a number of cases. (See, inter alia, Evangelou v. TheRepublic

(1965)3 C.L.R. p. 292; Nissiotis v. TheRepublic

(1979)3 C.L.R. 379, at p. 388;". Also inGeorghiou v.The Republic

(1983)3C.L.R. 17atp. 34, 25 it was stated: 30 "__ 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 exhibit 2, and who were not promoted'*. From the recommendations of the Heads of Department (Appendix 'Z') it is clear that all interested parties promoted had been recommended with the exception of interested party No.21, Phoebus Miltiadou,who waspromoted without having 35 sucha recommendation, obviously through hisseniority, but as against this interested party the recourse was withdrawn and consequently this ground fails as against all other interested parties who had been duly recommended. 757 A. Loizou J. Makrides v. Republic

(1983)The second ground argued by counsel for theapphcantisthat the applicant possessed qualifications which according to the relevant schemeofserviceconstitutedanadditional qualification, nevertheless these were ignored, he was not promoted and no cogent reasons were given for preferring other candidateswho 5 did not possess any such qualifications, to the apphcant. To support his argument he has cited the cases of V. Tourpekiv. The Republic

(1973)3 C.L.R. 592; Nissiotisv. The Nepublic

(1977)3 C.L.R. 388; Andreou v. TheRepublic

(1979)3 C.L.R. 379, at p. 388. 10 From the 20 interested parties promoted, only 7 that is, in­ terested parties 6, 9, 10, 15, 17, 18 and 20, possessedadditional qualifications, i.e. post graduate studies abroad or additional title as provided by the Schemes of Service and of which in­ terestedpartiesNos.6,9and 10werealsoseniortotheapplicant. 15 As regards these seven partiesitis clear from theperusal of their personal files and confidential reports that it was reasonably open to the respondent Commission to prefer any one of them and to promote them instead of the applicant. Any difference of oneor twomarks intheirreportsis notsuchas tobeconside- 20 red as constituting striking superiority of the apphcant over the interested parties,justifying thus the annulmentof the sub judice decision. As said in Evangelou v. The Republic

(1965)3 C.L.R. 292 at p. 300: " it is a settled principle of administrative law thatmere 25 superiority, not being of a striking nature,is not sufficient to lead to theconclusion that the appointing authority has acted in excess or abuse of powers. (See Conclusions from the Council of State in Greece 1929-1959 p.268and Decision 1406/1954 of the same organ (Reports 1954Γ 3Q p.1737))". In the light of the above this ground should in any event fail as against the said seven interested parties possessingadditional qualifications, the apphcant having failed to prove striking superiority over them. There remains to examine,as it is, to my mind,relevant, the position as regards the remaining 13 interested parties, that is, Nos. 1, 2, 3, 4, 5, 7/8, 11, 12, 13, 14, 16 and 19 who do not possess additional-qualifications as required by the scheme of 758 35 3 C.L.R. Makrides v. Republic A. Loizou J. service,although interestedparty Horatas,possessesa certificate of In-Service Post-Graduate Education. Out of the aforesaid, interested parties Nos. 1,2, 5,7, 8, 11,12,14 and 16are senior totheapplicant. Interested parties 1,2,5,11,and 12,had both 5 longer serviceand werepromoted to ScaleB.12inAugust 1969, whereasinterestedparty 14hadlongerserviceandwaspromoted to Scale B.12 on 1.3.

1. Interested Parties 7, 8 and 16 are senior to the applicant though promoted to ScaleB.12 on the same day, by virtue of their previous appointment. 10 Interested party 3hasayear'slonger servicebutisjunior bya year to the applicant by virtue of his promotion toScale B.12 on 31.8.1971 and interested parties 13 and 19, though with longerservice,arejuniorbyvirtueoftheirhavingbeenpromoted to Scale B.12 on the 1st January,
2. 15 With regard to interested party 4, Georghios Droushiotis, hispresent first appointment wasmade in the year 1970and he waspromoted to ScaleB.12on 15.10.1971, but hehad resigned in
3. Hehad,however,priorservicetothatinthesecondary education since
4. When he was promoted to Assistant 20 Headmaster on the 15.9.1965andposted attheLefkara Gymnasiumwhenhewasalsoassignedtoperform thedutiesofaHeadmaster. He wasthen given an acting appointmentas aHeadmaster Class *B' under section 22

(1)of Law 10/63 as from 1.9.1968and asfrom 1.12.68 hewaspromoted tothepermanent 25. postofHeadmasterClass'B'andheheldthatpostatthe Lefkara Gymnasium until the date of his resignation. Asfar asthemeritsareconcerned, theapphcant intheschool year 1975/76wasgradedwith35marksandfor theyear1978/79, 37 marks, and on Organisation, Administration and Human 30 Relations, 8 and 9 marks respectively. Interested parties 1, 2, 8, 12, 14 were graded for the year 1975/76with 35marksandfor theyear 1977/78with 36marks. Interested parties 5and 11weregraded for the same yearswith 35 and 37marks respectively, whereas interested parties 7 and 35 16 with 34 and 35marks respectively. All of them, however, weregraded with 9marks on Organisation, Administration and Human Relationsfor both periods,exceptinterested parties11, 12and 14who are graded with 9 and 10marks for the tworespective periods. 759 A. Loizou J. Makrides ?. Republic

(1983)It is clear, therefore, that as far as the aforesaid interested parties are concerned, in addition to their seniority they are graded more or lessthe same in the confidential reports as the applicant as regardstheir performance, but better graded on the subject of Organisation, Administration and Human Relations whichobviouslyfortheholderofamanagerialpositionisamost important factor. 5 As far as interested parties 3, 13and 19are concerned, who arejunior to theapplicant byvirtue of their lastpromotion but who have longer service than him, we have 35 marks for the 10 same periods for interested party 3, 36 for interested party 13, with9marksfor bothperiodsfor Organisation, Administration, etc.,whereasinterested party 19hasbeen gradedwith 36marks for both periodsandonOrganisation,Administration, etc.,with 9 and 10 marks respectively. 15 Interested party 4, Drousiotis, was graded with 35marks for bothperiodsandwith9marksfor Organisation, Administration, etc., but the case of this interested party is unique in that, in spite of his technically beingjunior to the apphcant, hisservice and experience is such that it cannot be ignored that when the 20 apphcant was beginning his career in the Secondary Education in 1965after hisgraduation from theAthens University,hewas promoted to Assistant Headmaster having already served by then for 10 years in the Secondary Education. .It is clear, therefore, that in the circumstances of this case, 25 thesubject decisionisduly and cogently reasoned, itsreasoning being supplemented from thematerial in thefile in all respects and it would have been futile to expect more express reference to the additional qualification of theapphcant when there were somanyfactors inthefile estabhshingoverwhelmingsuperiority 30 onthepart of the interested parties that werepromoted instead ofhim. Iwould haveexpectedexpressreference tothe reasons for disregarding what is an additional qualification in cases where there were not so many apparent reasons in the file. Asafinal comment, however, onthisground,I wouldliketo 35 stress that had the reasoning of the subject decision been more elaborate on the basis of the material that was before the respondent Commission,mytaskwouldhavebeenmadeeasier as itwouldhavesavedmefrom goingthroughalltherecordsofthe 760 3 C.L.R. Makrides v. Republic A. Lota* J. case in order to find out if the reasons given for the subject decision were duly born out and warranted by such material. The third ground upon which the apphcant relied is that the Commission took into consideration "the opinion which its 5 membersformed for each ofthe candidates during the personal interview" without recording this opinion in the relevant minutes so that itsjudicial control may be possible and has cited insupport ofhiscasethecaseofKleriAngelidou v.The Republic

(1982)3 C.L.R. 520. 10 In my view, however, Angelidou case is distinguishable and consequently not applicable, as in that case the respondent Commissionfailed torecord thesubjective opinion andpersonal knowledgeand information whichthemembers of theCommission possessed about the candidates, obviously prior to the 15 interviews. In the present case no such personal element arises; the "opinion" of the members is the impression which they formed during and as a result of the interviews and not before them. Clearly the impression of the members of the respondent 20 Commission is one of the factors taken into consideration by theminreachingtheirdecisiontogetherwithasstated" merit, qualifications, seniority, the recommendations of the Heads of Department, the service reports " etc. On thisissue oftaking into account thepersonal viewsof the 25 membersofacollectiveorgan,relevantiswhathasbeenatlength said by reference to the Greek Case Law in the caseofFrangos v. TheRepublic

(1970)3 C.L.R. 312, at pages 335-338. Moreover, the passage quoted from Economou (supra) supports the view that the respondent Commission were not required to 30 record in detail what their impressions were as a result of the interviews,whichimpressionsinanyeventareborn outfrom the material in thefile and therefore this argument of the applicant shouldfail asthesubjudicedecision isinthisrespectdulyreasoned. 35 Ground of Law No.3, as set out in the application, was abandoned by the applicant's lawyer during the hearing of the recourseand grounds of Law2, 6and 7werenot argued at all. As regards grounds Nos. 2 and 6, i.e. that the respondents actedinadiscriminatory manner towardstheapphcant and that 761 -· A. Loizou J: Makrides τ. Republic

(1983)they took into account extraneous considerations, I have to dismiss them without more as the applicant has offered no evidence to support such allegations. Finally regarding ground of Law No.7 that therespondents acted inexcess and/orinabuse ofpower as regards the transfer 5 of the applicant andtherevocation of his acting appointment, thesematterscannotbedealtwithin thepresentrecourseasthey concern different acts which arenot connected orrelated to the present subjudice decision; inanycase they were not pleaded in the prayer for relief. 10 For all theabove reasons this application is dismissed but in the circumstances there will be no order as to costs. Application dismissed. No order asto costs» 762