clr/1984/1984_3_1283.pdf

(2)of the Public Educational Service Law, 1969 (Law 10/69)—// opinion of the Department is bona fide formed, after a dxie inquiry,it cannotbestruck downasdefectivemerelybecause /"/doesnot coincidewiththe objectivepicture emergingon examination of the service record of different candidates. The applicants, who were teachers of elementary education, were candidates for promotion to the post of Assistant Headmaster, elementary education. The Educational Service Commission promoted the interested parties, in preference and instead of the applicants; and hence these recourses: 1283 loannidou aud Others v. Republic

(1984)Applicant Erini Kalogirou enjoyed superiority, in terms of grades and seniority compared to 17 of the interested parties (listed in Appendix A). Applicant Demetrios Petrakis enjoyed superiority in terms of grades and seniority compared to 13of the interested parties 5 (listed in Appendix B). Both these applicants were recommended for promotion by the Department of Elementary Education. Applicants Stavroulla loannidou and Odysseas Kalogirou, unlike thefirsttwoapplicants,didnot havethe recommendation 10 of the Department of Elementary Education, though their service record, as reflected in their service reports, was very good and they enjoyed seniority over most of the interested parties. Applicant loannidou challenged, biieralia,theappointment of one interested party, namely Costas Kelepeshis, who 15 was recommended on grounds of long service. Held,(I) that all other things being equal, a better rated teacher by the educational authorities, who is senior in service as well, is glaringly superior, a superiority that was overlooked by the respondents; that notwithstanding the importance 20 attached to the merits and seniority of the candidates, the respondents say nothing about the non appointment of the applicant Erini Kalogirou; that the absence of any reasoning suggests a misconception of the facts; that, therefore, applicant Erini Kalogirou was strikingly superior i\ comparison to seven- 25 teen of the interested parties over whom she enjoyed superiority in terms ofgrades and length of service (seetable "A" attached to this judgment); accordingly her recourse succeeds in so far as the seventeen interested parties listed in Appendix "A" are concerned and fails respecting the remaining interested parties 30 over whom she failed to establish striking superiority.

(2)That applicant Petrakiswas strikingly superior to thirteen interested parties, over whom he enjoyed superiority in terms of gradesand length ofservice;andthat, therefore, hisrecourse will succeed in so far as the promotion of each of the thirteen 35 interested parties is concerned and will fail respecting the remaining interested parties.

(3)That the non inclusion of a candidate in the list ofcandidates recommended by the Department for promotion, offers ~-> 1284 3 C.L.R. 5 10 15 20 25 30 35 loannidou and Others v. Republic sufficient reason to the appointing body not to appoint such a candidate notwithstanding his service record, as shown in theservice reports and personalfiles;andthat it was reasonably open to the respondents to prefer for promotion the interested parties to applicants Stavroulla loannidou and Odysseas Kalo­ girou despite their record. Held, further, that the recommendations of the Department of Education are designed to expressthe opinion of the Depart­ ment—as in the case of heads of departments—as to the suit ability of candidates for promotion; that if this opinion is bonafideformed after a due inquiry, it cannot be struck down as defective, merely because it doesnot coincide with the object­ ive picture emerging on examination of the service record of different candidates (pp. 1293-1294 post). Held, with regardto the recourse of applicant Stavroulla loannidou against thepromotion of interestedparty Costas Kele­ peshis, that there it no basis whatever for making recommenda­ tions exclusively by reference to anyone of thecriteria specified in section 35

(2)of the Public Educational Service Law, 1969 (Law 10/69), as relevant to the assessment of the work of a candidate; that the suitability of the candidates must be judged by reference to the three criteria looked at in combination and in the order indicated therein, that is, merit, qualifications, seniority; that in making their recommendations the departmental committee must be guided by the criteria laid down in the law and the relative weightthat should be attached to each one of the three considerations; that, therefore, the submission of a separate list,based exclusively on one of thethree consider­ ations bearing on the suitability of candidates for promotion, was an arbitrary act that laid unsound foundations for the promotion of those listed therein; and that, consequently, it ought to have been ignored by the respondents; that with the disappearance of this premise for preference of Costas Kele­ peshis to applicant Stavroullaloannidou it was not reasonably open to the Educational Service Commission ίο appoint Costas Kelepeshis because she was by nine years his senior and had overallbettergrades;that,therefore, she was strikinglysuperior to him and her recoursewill succeed in so far as the promotion 1285 loannidou and Others v. Republic

(1984)of interested party Kelepeshis is concerned and will fail in relation to every other interested party. Recourses of applicants Erini Kalogirou, Petrakis and loannidousucceededinpart. Recourse of applicant Odysseas Kalogirou failed. 5 Cases referred to: Myrtiotis v. Republic

(1975)3 C.L.R. 58 at p. 68; Papadopoulhs v. Republic

(1978)3 C.L.R. 1070 at p. 1075; 10 HadjiSawa v. Republic

(1982)3 C.L.R. 76 at p. 78; Hadjiloannot, v. Republic

(1983)3 C.L.R.

1. Recourses. Recourses against the decision of the respondents to promote the interested parties to the post of Assistant Headmaster in 15 preference and instead of the applicants. /. Typographos, for the applicant in Case No. 359/
2. M. Christophides, for the applicants in Case Nos. 394'82 and 395/
3. R. Vrahimi (Mrs.), for the respondents. 20 Cur. adv. vult. PlKis J. read the following judgment. The three recourses under consideration were raised by four teachers of elementary education they are directed against the same administrative act, the decision of the Educational Service Commission of 25 14th July, 1982, whereoy 102 colleagues of the applicants were appointed Assistant Headmasters. Applicants challenge, by their recourse, the selection of only a number of the appointees those joined as interested parties. The ascertainment of the facts and, more so, their assortment, was a nearly impossible 30 task. With the assistance of counsel, after a degree of probing, we were able to establish ready guides for comparison and, hopefully, gained a comprehensive knowledge of the relevant facts, to enable us to conclude our deliberations and resolve the cases. 35 1286 3 C.L.R. loannidou and Others v. Republic Pikis J. To begin with, applications were invited on 3.5.1982 for the filling of 102 posts of assistant headmaster, a first entry and promotion post. A great number of teachers applied for promotion, 736in all. Sixteen dropped out by failing to attend 5 the appointed interviews held between 12.5.1982 and 12.6.
4. The sub judice decision was, as indicated above, taken on 14.7.
5. In the preamble to the decision, mention is made of the facts taken into consideration and the criteria by reference to which they were evaluated. Tn the body of the decision, 10 the names of the candidates are listed, together with a note attached to each name, singling out the special considerations associated with the choice of each candidate. The facts before the Commission, to which they paid heed as recorded in the preamble, were:15 (a) The personal files of the parties disclosing the several stages of their career and their qualifications. (b) The service reports giving the grading of the applicants by the appropriate educational authorities over the years and, 20 (c) the report embodying the recommendations of the Department of Elementary Education submitted in accordance with s.35

(3)of the law*. The criteria used as a yardstick for the assessment of the suitability of the candidates, were those enumerated in 05

(2)25 of the law, that is, merit qualifications and seniority. A proper inference from the remarks made in relation to individual candidates is that they attached especial importance to the overall grading of the candidates, as reflected in their service reports and, the length of their service; also to their 30 performance at the interview. The record iselliptical in lespect of the last factor for, it gives no details about the performance of the remaining candidates at the interview and does not, in any event, record that the performance of those selected was in any way better.than the performance of any of the applicants. 35 The significance of performance at an interview is a factor of variable importance, much depending on the remaining material * Public Educational Service Law 10/69, as amended by Law 53/69. 1287 Pikis J. Ioannidoa and Others v. Republic

(1984)available before the selection committee, giving an insight into the abilities of a candidate, as well as the nature and duration of an interview. In this case, the material before the committee was very vocal about every aspect of the personality and aptitudes of the candidates, bearing in mind the criteria 5 by reference to which they were evaluated. Surely, a short interview could not upset the picture conveyed by scrutiny of the performance and traits of candidates over many years, in the case of certain candidates over two or more decades. Coupled with this, the absence of a yardstick for comparison 10 because of failure to note the performance of the applicants at the interview, renders the performance of the interested parties at the interview of a neutral factor for the purposes of this review. It is appropriate to remind of the observations of Hadjianastassiou, J., in PanayiotisIoannouMyrtiotis v. 15 The Republic

(1975)3 C.L.R. 58, 68, to the effect that where importanceisattached totheimpressionsgainedataninterview, a standard for comparison must be established, casting a duty onthe appointing bodyto keeparecord about the performance of all candidates attending for an interview. 20 Now, the facts about the applicants: They were among the 720 candidates competing for promotion. All four of them had, comparatively speaking, high grades and were high up on the table of seniority. However, there was this difference between them: Two of them, namely Erini Kalogirou and 25 Demetrios Petrakis, were among the candidates recommended by the departmental committee for promotion, whereas the other two,that isOdysseasKalogirou and Stavroulla Stavridou loannidou, were not. Their complaints, making, in their submission, the appointment of the interested parties liable to 30 be set aside, may be summed up as follows: The reasoning of the decision isinadequate and the ultimate result arbitrary for, despite the professed attachment of the respondents to the criteria set by law for evaluation of the candidates, they acted in defiance thereof on examination of 35 the material before them. Notwithstanding the superiority of the applicants over many of the interested parties in terms of marks and seniority, their claims to promotion were disregarded in a manner suggesting a defective exercise of discretionarypowers. Theirsuperiorityovertheinterestedparties, 40 or most of them, was so glaring that disregardof theircandi1288 3 C.L.R. loannidou and Others v. Republic Pikis J. dature was beyond the discretion of the respondents, wide though it was. 1 took time to look into the facts of the case and marshal them to the extsnt possible in acomprehensive order—a difficult 5 task in view of the voluminous material before the Court. It is appropriate that the consideration of the recourses be divided into two parts. In the first part, we shall deal with the complaints of the two applicants who were included in the list of recommended candidates by the departmental committee 10 whose claims to promotion were on an identical plane, while in the second, we shall deal with the cases of the remaining two applicants that have features in common. The gravamen of the caseof the two recommended applicants lies in their assertion that, although strikingly superior to 15 the interested parties named in the proceedings, they were not appointed. Striking superiority must emerge on examination of the material facts of the case bearing on the candidates' merits, qualifications, seniority and service, as an indisputable fact. As Ihadoccasiontoindicate inthecasesof Papadopouhs 20 v. Republic

(1978)3 C.L.R. 1070, 1075, and RadjiSavva v. Republic

(1982)3 C.L.R. 76, 78, in order for superiority to be striking, it must be glaring, striking one at first sight; self-evident on reflection upon the material bearing on the overall merits of the candidates. This approach to the concept 25 of striking superiority was approved by the Supreme Court in Hadjioannou v. Republic

(1983)3C.L.R. 1041. The adjective "striking" is employed to denote the contrast with superiority simpliciter that does not sap the discretion of the appointing body to appoint an objectively less meritorious candidate. 30 The task facing us in the following: Were the two applicants overwhelmingly superior in comparison to theinterestedparties? The order in whichthe candidates were recommended was not a consideration to which the respondents attached importance as it emerges from the 35 order in which candidates were selected. Also, there were no noticeable differences in the qualifications of the parties as far as we may discern from the material before us and the decision under consideration. -1289 Pikis J. loannidou and Others v. Republic (19S4) Guided by the above principles and introduction to the case, we shall focus attention on the facts relevant to the recourses of Erini Kalogirou and Demetrios Petrakis. APPLICANT ERINI KALOGIROU: She was objectively one of the candidates with best claims to promotion on account 5 of her grades and seniority. One need only have a glance at the tables to notice she was one of the candidates with the highest marks. In the context of this case, especially in view of the consistency of her performance as a teacher over the years, she emerges objectively to be superior in terms of "merit" |0 compared to most candidates—the first consideration to which the respondents are enjoined by law to take into account. If this was her only advantage over a number of interested parties, her superiority would not have been striking in the sense explained; but if one adds her seniority to that advantage in 15 relation to those interested parties over whom she was senior, her superiority becomes striking. All other things being equal, a better rated teacher by the educational authorities, who is senior in service as well, is glaringly superior, a superiority that was overlooked by the respondents. Notwithstanding 20 the importanceattached to the merits and seniority of thecandi­ dates, the respondents say nothing about the non appointment of the applicant. The absence of any reasoning suggests a misconception of the facts, a real probability in view of the magnitude of their task and the confusion likely to arise in 25 such circumstances, if this was not the case, we are then con­ fronted with abuse of discretionary powers. For the reasons indicated above, Mrs. Erini Kalogirou was strikingly superior in comparison to seventeen of the interested parties over whom she enjoyed superiority in terms of grades 30 and length of service, as it appears from table Ά ' attached to thisjudgment. Her recourse succeeds in so far as the seventeen interested parties listed in Appendix Ά ' are concerned. Respecting the remaining interested parties, the applicant failed to establish striking superiority. In particular, her 35 recourse against the appointment of Andreas Demokritou and Eleni Solomonidou Anastassi is dismissed for their overall grading was better than thatof applicant. Further,her recourse must be dismissed respecting the remaining interested parties, in fact against everyone over whom ihe did not enjoy super- 40 1290 3 C.L.R. loannidou and Others v. Republic Pikfs J. iority in terms of grades and seniority as well. By the norm of "striking superiority*' established for the purposes of this case, she failed, in myjudgment, to prove striking superiority over the following interested parties, namely, G. Maratheftis, 5 A. Sophocleous, A. Aristidou, N. Antoniades, P. Kyprianou, G. Palexas, R. Karavalii, K. Vryonides and K. Violaris. The first twoweresenior tothe applicant, whiletheremainingseven had equal seniority. If the grades of the applicant, in compa-rison to the grades of the latter seven interested parties, were 10 substantially higher, a case of striking superiority might have been made ou;.. But this was not the case. APPLICANT DEMETRIOS PETRAKIS: Like Mrs. Kalogirou,Mr.Petrakiswasoneofthebestcandidatesfor promotion, in view of his grades and length of service. Going through 15 thesameexercise, asthat carried out in the caseof Mrs. Kalogirou,wearrivetothefollowingconclusions: Hewasstrikingly superior to thirteen interested parties over whom he enjoyed superiority in terms of grades and length of service, as table *B* appended to this judgment demonstrates. His recourse 20 succeeds in so far as the appointment of each of the thirteen interested parties is concerned. Hiscasefailsagainst theremaining interested parties. Three ofthem,namely,N.Pyrgou,A.Demokritouand M.GermanouDemetriade, were more highly rated and senior in service, in 25 comparison to the applicant. As compared to twenty-eight interested parties named below*, the comparison presents, as in the case of Mrs. Kalogirou, more complication for the applicant excelled over the interested parties only in relation tooneitem of rating, viz.grades,whilehehad similar or lesser 30 seniority to them. A similar result must be recorded in the G. Taangarides S. Saveriades P. Nicolaou Chr. Makis C. Makrides A. Mavresis Ph. Christodoulides Andriani Constantinou-Anastassi G. Zevedeos Ph. Elcfthcriades G. Maratheftis- · A. Aristidou N. Antoniades P. Kyprianou P. Periklos P. Pitsillidou A. Avraamides A. Markidou A. Sophocleous R. Karavalii A. Kaminaridou E. Spyrou-Antoniadou P. Stavrou Ch. Charalambides G. Palexas I. loannides K. Violaris M. Georghiadou 1291 P»kis J. loannidou and Others v. Republic

(1984)case of Eleni Solomonidou Anastassi who had higher marks than applicant. For the reasons given above, the recourse succeeds in so far as directed against the appointment of the interested parties named in table *B\ It fails respecting the remaining interested parties. 5 THE CASE OF APPLICANTS STA VROULLA STA VRIDOU IOANNIDOV AND ODYSSEAS KALOGIROU: The case of the aforementioned applicants is on a different plane ascompared to thefirsttwo,although their servicerecord, 10 as reflected in their service reports, was very good and they enjoyed seniority over most of the interested parties. Unlike the first two applicants, they did not have the recommendation of the Department of ElementaryEducation. The first question that arises is whether it was reasonably open to the respondents 15 to appoint the interested parties—all of them—in preference to the applicants, notwithstanding the superiority of the latter over many appointees, in terms of grades and seniority. The answer is directly dependent on the weight that should be attached to the recommendations of the Department, made 20 under s.35

(3)of the law. The law identifies the recommendations of the Department as a separate consideration to which the Educational Service Commission should have regard to in ascertaining the merits of the candidates and determining their claims to promotion. 25 Before the amendment of the law in 1979, the competence to make recommendations vested in the inspectors of education. One can readily contemplate the reasons that led to the substitution of the Department as the recommending authority for the inspectors of education. It seems to me the amendment 30 of the law wasmeant to establish a more impersonal mechanism for the evaluation of the services of teacheis serving in different schools and areas of the country. And in that way, form a collective opinion about the capabilities and devotion to duty of candidates for promotion. The largeness ofthe Department, 35 thegreat numbersof teachersinvolved,and thefact that teachers are gtaded by very many different inspectors of education, justified the evolution of mechanism designed to play down and possibly neutralize inevitable differences in the rating made by diffeient inspectors. , 40 1292 3 C.L.R. 5 10 15 20 25 loannidou and Others v. Republic Plkis J. The value of the departmental recommendations in the selection process is, in many respects, comparable to the recommendations of the head of a department, made under s.44

(3)of the Public Service Law. They constitute a separate element in the assessment process, meriting distinct consideration by the Educational Service Commission as a pointer to the overall merits of candidates and their suitability for appointment. I need not debate the precise implications and pondei the exact value that should be attached to recommendations made under s.35

(3)of Law 10/69, or precisely determine the amenity of the appointing body to depart therefrom. On the other hand, it is clear to me that non inclusion of a candidate in the list of candidates recommended by the Department for promotion, offers sufficient reason to the appointing body not to appoint such a candidate notwithstanding his service record, as shown in the service reports and petsonal files. Hence I conclude it was reasonably open to the respondents to prefer for promotion the interested parties to the two applicants despite their record. However, this isnot the end of the matter for the ohallenge of the applicants is not confined to the decision itself but extends to preliminary acts, in panicular the recommendations of the Department of Elementary Education. The decision embodying the recommendations is attacked for lack of due reasoning and proper inquiry and, secondly, for arbitrariness, in that, contrary to the provisions of s.35

(2), part of the recommendations rested exclusively on one of the three criteria for evaluation of the services of educationalists, namely seniority. As in the case of recommendations of departmental head, 30 the recommendations of the department of education may be coloured by the opinion of the recommending body. The recommendations are designed to express the opinion of the department—as in the case of heads of departments —as to the suitability of candidates for promotion. If this opinion 35 is bona fide formed after a due inquiry, it cannot be struck down as defective, merely because it does not coincide with the objective picture emerging on examination of the service record of different candidates. If the task of the Department was confined to an evaluationof theservicerecord of the candidates, 40 it would bea superfluous bodyfor that task could be performed with equal ease and amenity by the appointing body. In the case of teachers of elementary education, as noted above, there 1293 Pikis J. loannidou and Others v. Republic

(1984)are especially cogent reasonsfor institutionalising theformation of the collective opinion of the department. There is nothing before me to suggest that the opinion of the Department is fraught with mala fides or that it is based on any inadmissible material. The presumptionof regularity requires us to assume 5 that a bonafide efford was madetoform avalidopiniononthe suitability of differeni candidates for promotion. Conse­ quently, I cannot uphold the submission that therecommen­ dations of the Departmentof Educationin relation to the first list of recommendees are in any way defective. Therefore, 10 the recourse of Odysseas Kalogirou must be dismissed. Mrs. Stavroulla Stavridou loannidou challenges, inter alia, the appointment of one interested party, namely Costas Kele­ peshis, who was recommended on grounds of long service. There is no basi. whatever for making recommendations ex- 15 clusively by reference to anyone of the three criteria specified in s.35

(2)of the law, as relevant to the assessment of theworth of a candidate. The suitability of the candidates must be judged byreferencetothethreecriterialookedatincombination and in the order indicatedtherein, that is, merit, qualifications, 20 seniority. In making their recommendationsthedepartmental committee must be guided by the criteria laid down in the law and the relative weight that should be attached to each one of the three considerations. Therefore, the submission of a separatelist,based exclusivelyon oneof thethreeconsiderations 25 bearing on the suitability of candidates for promotion, was anarbitrary actthatlaid unsoundfoundationsfor thepromotion of those listed therein. Consequently, it ought to have been ignored by the respondents. With the disappearance of this premise for preference of Costas Kelepeshis to Stavroulla 30 Stavridou loannidou, the pertinent question is whether it was reasonably open to the Educational Service Commission to appoint Costas Kelepeshis. The answer is in the negative for Stavioulla Stavridou loannidouwas by nineyears hissenior and had overall better grades. Therefore, she was strikingly 35 superiortohim. Herrecoursesucceedsinsofar asthe appoint­ ment of interested party Costas Kelepeshis is concerned, and fails in relation to every other interested party. . In the result, the recourse of Erini Kalogirou succeeds in so far as directed against the interested parties named in table 40 Ά'. 1294 3 C.L.R. loannidou and Others v. Republic Pikis J. The recourse of Demetrios Petrakis succeeds in so far as diiected against the appointmentof the interested parties named in table 'B'. The recourse of Stavroulla Stavridou loannidou succeeds in so far as directed against the appointmentof interested party Costas Kelepeshis. The recourse of Ody>seas Kalogirou fails. Let thete be no order as to costs. Sub judice decision partly annulled. No order as to costs. 10 APPENDIX Νa m e 15 20 25 30 '/f Overall Grades Years of Service 1. S. Saveriades 2. A. Mytilineos 3. G.Vassiliades 4. M.Makrides 5. Fr.Michaelides 6. A. Gregoriou 7. A. Mavresis 8. S. Stavridou-Kyriakidou 9. EleniHadjitheophilou 10. Ph.Chiistodoulides 11. Chr.Rossidou 12. Andriani ConetantinouAnastasi 13. N.Kyprianou 14. Z. Koumoudiou 15. G.Zevedeos 16. I.Pittakas 17. Ph. Eleftheriades 78.19 78.52 82.30 81.09 81.14 76.71 1295 79.02 78.57 81.58 81.54 83.70 20 16 19 20 1711/12 18 11/12 20 18 18 11/12 20 19 82.83 78.36 83.36 79.43 81.06 79.93 20 1811/12 17 9/12 20 19 20 Pikis J. loannidou and Others v. Republic APPENDIX Name

(1984)'fl' Oveiall Grades Years of Service

1. A. Mytilineos
2. G. Vassiliades
3. M. Kei
4. A. VIamis
5. Fr. Michaelides
6. A. Gregoriou
7. S. Hadjithemistou
8. S. Stavridou-Kyriakidou
9. Kl. Symeonides
10. N. Kyprianou
11. M.Ttofis
12. I. Pittakas
13. Eleni Hadjitheophilou 78.52 82.30 79.20 81.38 81.14 76.71 81.92 78.57 81.00 78.36 81.00 ' 81.06 81.58 T296 16 19 18 19 17 18 177/12 18 19 1811/12 19 19 1811/12 10 15