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(1984)1984 November 7 [MALACHTOS, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION ADONIS CONSTANTINIDES AND TWO OTHERS, Applicants, v. THE REPUBLIC OF CYPRUS, THROUGH THE EDUCATIONAL SERVICE COMMITTEE, Respondent. (Cases Nos. 481/82, 508/82). Educational Officers—Promotions—Headmaster,SecondaryEducation —Merit—Applicants rated one point higher than interested party—Qualifications—Interested party more or less equal to one of the applicants but superior to the other applicant and, also, possessing an additionalqualification—Seniority—Interested 5 party senior to both applicants by two years and recommended for promotion whereasone of the applicantswasnot—Adifference of oneor twopoints notsuchas toamount toastrikingsuperiority —Though applicantssuperior in merit they havefailed toestablish striking superiority asagainst theinterestedparty which isessential 10 tojustify the annulment of the subjudice promotions. Administrative Law—Administrative acts ordecisions—Reasoning— Promotions to post of Headmaster, Secondary Education—Respondent Commission not requiredto record in detail what their impressions were in respect of the applicants or the interested 15 parties. EducationalOfficers—Transfers—Postings—Educational needs—Verification—Regulation 14
(1)of the Educational Officers(Teaching Personnel) (Appointments, Postings, Transfers, Promotions and Connected Subjects) Regulations of 1972. 20 The applicants in the above recourses attacked the promotion of interested party Philippides ("the interested party") to the post of Headmaster, Secondary Education. 1408 3 C.L.R. Constantioides andOthersv. Republic Counsel for the applicants mainly contended: (
  1. a)That the respondent failed to promote the best candidate and that applicants were strikingly superior to the interested party. 5 10 15 20 25 (
  2. b)That the sub judice decision lacked due reasoning becausereasonsweregivenonlyasregardstheinterested party. (
  3. c)Thattherespondent committeeinreachingthedecision to promote the interested parties, wrongly took into account the specialization of the candidates and this is evident from the fact that at the same time with the promotions, the respondent also decided for the posting of the interested parties contrary to regulation 14
(1)of the relevant Regulations, astherehad been no need verified by the appropriate authority, and no reasons were given as to why the applicants were not promoted, norwasit recorded what factorsthe respondent Committee took into consideration and what were its impressions. Regarding merit, applicant Andreas Christodoulides was rated in the last two confidential reports with one point more than the interested party and applicant Anastassios Nicolaides, was rated with one point more than the interested party in the last confidential report buthewasrated asequal inthe previous one. As regards qualifications, the interested party was superior to applicant Andreas Christodoulides as he has got, according to theschemesofservice,anadditional qualification and hewas more or less equal as regards applicant Anastassios Nicolaides. 30 On the question of seniority the interested party was senior to both applicants by two years. The interested party and applicant Anastassios Nicolaides, were recommended for promotion, whereas applicant Andreas Christodoulides, was not. 35 Held,
(1)that a difference of one or two marks in one report isnotsuchastoamounttoastrikingsuperiorityoftheapplicants over the interested party; that the fact that applicant Christo1409 Coustantinides andOthers v. Republic (1984 doulides was not recommended for promotion should not be lightly disregarded by the respondent Committee; that though theapplicants weresuperior in merit theyhavefailed to establish striking superiority as against the interested party, which is essential to justify an annulment of the sub judice decision; 5 and that, therefore, it was reasonably open to the respondent Committeetoprefertheinterestedpartyinsteadoftheapplicants.
(2)That from the decision itself it is abundantly clear tha* the reasons of the respondent Committee in promoting the interested party, are clearly recorded in it and it is, therefore, 10 duly reasoned; and that, further, the respondent Committee wasnot required to record indetailwhat their impressionswere ' in respect of the applicants or the interested parties.
(3)Thatthereisnothingto indicatethat therespondent Committeetook into consideration thespecializationof theinterested 15 party; and that regulation 14
(1)has no relevancetothe case inhand aswhat isin issuehereisnot thevalidity ofthepostings but of the promotions (Dekatrisv. Republic
(1982)3 C.L.R. 8 at p. 15 adopted). Recourses dismissed. 20 Cases referred to: Michaelides v. Republic
(1979)3 C.L.R. 56 at p. 71; Konnaris v. Republic
(1974)3 C.L.R. 377 at p. 388; Georghiou v. Republic
(1983)3 C.L.R. 17at p. 33; Nissiotis v. Republic
(1977)3 C.L.R. 388 at p. 397; 25 Dekatrisv. Republic
(1982)3 C.L.R. 8 at p. 15; Evangelou v. Republic
(1965)3 C.L.R. 293 at p.
  1. Recourses. Recourses against the decision of the respondent to promote the interested parties to the post of Headmaster, Secondary 30 Education in preference and instead of the app'icants. A.S. Angelides, for the applicants in Case No. 481/
  2. D.A. Demetriades, for the applicant in Case No. 508/
  3. Cur. adv. vult. 1410 3 C.L.R. ConstantinidesandOthersv.Republic MALACHTOS J. read the following judgment. The applicants in the present recourses, which have been heard together as they attack the same administrative decision, claim a declaration of the Court that the decision of the respondent Committee 5 dated 17.9.1982 to promote the interested parties, namely,
  4. Kleri Angelidou,
  5. Georghios Poullis,
  6. Demetrios Philippides and
  7. Christodoulos Kleopas, to the post of headmaster, secondary education, as from 1.9.1982 instead of the applicants, is null and void and of no legal effect what10 soever. The two applicants in Recourse No. 481/82, namely,
  8. Adonis Constantinides and
  9. Andreas Christodoulides, attack only the promotion of interested party No. 3 Demetrios Philippides. Theapplicant in Recourse No. 508/82,Anastassios 15 Nicolaides, originally attacked the promotion of all interested parties. In the course of the hearing of these recourses, however, recourse No. 481/82 was withdrawn by applicant No. 1 and recourse No. 508/82 was also withdrawn by the applicant against interested parties 1, 2 and
  10. Therefore, what remains 20 for consideration by the Court is the complaint of applicant No. 2 inrecourse No. 481/82 and the complaint of the applicant in recourse No. 508/82 against the promotion of interested party No. 3, Demetrios Philippides. The relevant facts of the case are as follows: 25 By two letters dated 2.6.1982 and 2.7.1982 the DirectorGeneral of the Ministry of Education informed the Chairman of the Committee of Educational Service that the Minister of Finance gave hisconsent for thefillingof four posts of headmaster in secondary education and requested him to proceed 30 with the filling of the said posts. The post of headmaster in secondary education is, according to the relevant schemes of service, a promotion post and the qualifications required are the following: 35 1, At least three years service in the post of Assistant Headmaster.
  11. At least satisfactory service on the basis of the last two confidential reports. 1411 Malachtos J. Constantinides and Othersv. Republic
(1984)3. Good knowledge of one of the prevailing European languages. 4. Post graduate studies abroad or additional title preferably in paedagogics or subjects concerningthe administration of schools, is considered as an additional qualification. 5 At its meetingof 9.7.1982the respondent Committeedecided,' inter alia, according to the relevant minutes, as follows: (
  1. a)Promotions to thepost of Headmaster of Schools of SecondaryEducation. The Committee of Educational Service having considered the personal files and confidential reports of all the Assistant Headmasters who are eligible for promotion to the post of Headmaster and having in mind the provisions of the Law and the Schemes of Service and after taking into account— 15 (
  2. a)themerit,qualifications andseniorityofthecandidates, (
  3. b)the recommendations of the Department of Education as communicated together with the document of the Directors of Secondary and Technical Education, dated 5.7.1982, and the views of the said Directors 20 who are present, (
  4. c)the service reports, finds that thefollowing Assistant Headmasters whoareincluded among those who have been recommended by the Department of Education concerned, are the most suitable for promotion 25 to the post of Headmaster for the reasons referred to herein for each one separately. 1. Kleri Angelidou, 2. Georghios Poullis, 3. Philippides Demetrios and 4. Kleopas Christodoulos. On the basis of the above the Committee of Educational 30 Service decided to offer promotion to the post of Headmaster to the above, as from 1.8.1982 and to post them as follows: (
  5. a)KleriAngelidou (
  6. b)GeorghiosPoullis — Lefkara Gymnasium — PedoulasGymnasium 1412 10 3 C.L.R. Constantinides andOthers v. Republic Malachtos J. (
  7. c)DemetriosPhilippides — Technical School Ay. Lazaros, Larnaca (
  8. d)Christodoulos Kleopas — Agros Gymnasium". Hence the present recourse. 5 10 The grounds of law, on which both recourses are based, as argued by counsel for applicants, may be summarised as follows: 1. The decision of the respondent Committee to promote the interested party Demetrios Philippides, is contrary to the provisions of section 35 of the Public Educational Service Law of 1969 (Law 10/69), as amended, since it did not select the best candidate on thebasisof the criteria of merit, qualifications and seniority. 2. The applicants are strikingly superior to the interested party. 3. The said decision is not duly reasoned. 20 4. The respondent Committee in reaching the decision complained of did not take into consideration the qualifications of the applicants as provided by the schemes of service, particularly the additional qualifications of applicant Anastassios Nicolaides, and so, the said decision was taken without due enquiry, and 5. That in promoting the interested party, the respondent Committee took into consideration his specialization and this is obvious from the fact that the promotions and postings were made at the same time contrary to Regulation 14
(1)of the Educational Officers (Teaching Personnel) (Appointments, Postings, Transfers, Promotions and Connected Subjects) Regulations of
  1. 30 The applicant, Andreas Christodoulides, who is the holder of a degree in Natural Science of the Athens University, was first appointed to the post of School Master, Secondary Education, in 1959 and was promoted to Assistant Headmaster on 15.9.
  2. In the last two confidential reports, prior to 35 the promotions, he was rated in each one with 37 points. The applicant, Anastassios Nicolaides, is the holder of a degree of the School of Philisophy of the University of Athens 1413 Malachtos J. Constantinides and Others v. Republic
(1984)and in 1979 took a post graduate course in the United States of America on Problems in Supervision and Administration. He was first appointed to the post of school master, Secondary Education, on 1.9.1959,and was promoted to the post of Assistant Headmaster on 15.9.
  1. In the last two confidential reports, prior to the promotions, he was rated with 36 and 37 points, respectively. 5 Interested party, Demetrios Philippides, is the holder of a HND Diploma in Mechanical Engineering of Borough Polytechnic, and the holder of a certificate in.Paedagogjcs of the 10 Garnet College, I960 to
  2. He was first appointed to the post of Technologist in 1961, and was promoted to the post of Assistant Headmaster on 1.9.
  3. In the last two confidential reports, prior to the promotions, he was rated in each one with 36 points. 15 Counsel for applicant in Case No. 481/82, Andreas Christodoulides, submitted that the respondent failed to promote the best candidate and he asserted that the applicant is strikingly superior to the interested party, as it appears from the personal files and the confidential reports. He further argued that the 20 sub judice decision lacks due reasoning as reasons were given only as regards the interested parties and no reasons were given asto whythe applicants werenot promoted, nor was it recorded what factors the respondent Committee took into consideration and what were its impressions. He further submitted that the 25 requirement of due reasoning is even of greater importance given that the respondent was a collective organ. His next argument was that the respondent committee in reaching the decision to promote the interested parties, wrongly took into account the specialization of the candidates and this is evident 30 from the fact that at the same time with the.promotions, the respondent also decided for the posting of the interested parties contrary to regulation 14
(1)of the relevant regulations, as there had been no need verified by the appropriate authority. He relied on Michaelides v. The Republic
(1979)3 C.L.R. 56 35 at page 71 and Konnaris v. The Republic
(1974)3 C.L.R. 377 at page 388. Counsel for applicant in Case No. 508/82, Anastassios Nicolaides, adopted the legal arguments put forward by counsel for applicant in Case No. 481/82 and further submitted that 40 1414 3 C.L.R. ConstantinidesandOthersv.Republic Malachtos J. hisclient beingstrikingly superior ought to have been promoted instead of the interested party. He also submitted that the extra school activities of his client, as well as the fact that the applicant had followed a post graduate course in Problems 5 in Supervision and Administration, which are indicative of hissuperiority,overthe interested party, weretotally disregarded by the respondent Committee. As regards merit, the applicant, Andreas Christodoulides, was rated in the last two confidential reports with one point 10 more than the interested party and the applicant Anastassios Nicolaides, was rated with one point more than the interested party in the last confidential report but he is rated as equal in the previous one. As regards qualifications, the interested party is superior 15 to the applicant Andreas Christodoulides as he has got, according to the schemes of service, an additional qualification and he is more or less equal as regards Anastassios Nicolaides. On the question of seniority the interested party is senior to both applicants by two years. 20 The interested party and applicant Anastassios Nicolaides, were recommended for promotion, whereas applicant Andreas Christodoulides, was not. It is clear from the above that it was reasonably open to the respondent Committee to prefer the interested party instead 25 of the applicants. The applicants are only slightly superior in merit to the interested party but the interested party is by two years senior to both of them. Furthermore, as regards qualifications, he is more or less equal to applicant Nicolaides but he is superior to applicant Christodoulides, as he has got 30 an additional qualification. As it is stated in Georghiou v. The Republic
(1983)3 C.L.R. 17, at page 33,"a difference of one or two marks in one report isnot such asto amount to astrikingsuperiorityof the applicant over such interested parties as to lead to the annulment of the 35 sub judice decision". Moreover, the applicant Christodoulides was not recommended for promotion, a fact which should not be lightly disregarded by the respondent Committee. 1415 Malachtos J. Constantinides and Othersv. Republic
(1984)As stated in Nissiotis v. The Republic
(1977)3 C.L.R. 388, at page 397: "In the instant case, obviously the recom­ mendations of the Director of the Department of Personnel have made the overall picture of the interested party more favourable than that of the applicant, and the recommendations of a Head of Department could not be ignored without special reasoning being given, which, apparently, the respondent Com­ mission could not find on the material before them". 5 As regards the argument that the sub judice decision is not duly reasoned, I must say that from the decision itself it is 10 abundantly clear that the reasons of the respondent Committee in promoting the interested party, are clearly recorded in it and it is, therefore, duly reasoned. In the Judicial Control of Discretionary Power in Public Administration, 1965 Edition by Economou, the following is stated at page 233: 15 "Κατά το περιεχόμενου της επαρκής είναι η αιτιολογία της ^Λεγχομένης πράξεως διακριτικής εξουσίας όταν κατά την έκδοσιν αυτής, ελήφθησαν υπ' όψιν παρά του εκδάντος οργάνου πάντα τα στοιχεία τα δυνάμεναν* ασκήσωσι επιρ- 20 ροήν τίνα επί της εν τη προσβαλλομένη πράξειουσιαστικής εκτιμήσεως, εν τη ελευθερία κρίσεως ή προκρίσεως. Ηκαθολικότης αυτή λήψεως υπ' όψιν των στοιχείων δέον ναπροκυπτη, είτε εκ της προσβαλλομένης πράξεως είτε εκ των στοιχείων του φακέλλου κατά τ' ανωτέρω μη απαιτουμένης, 25 κατά την μάλλον κρατούσαν άποψιν μνείας εκάστου των ληφθέντων υπ' όψιν και εκτιμηθέντων στοιχείων της αιτιο­ λογίας". And in English: "In its context, the reasoning of an act of discretionary 30 power under review is sufficient if, when issued, there were taken intoconsideration by theissuingorgan all theelements capable of exerting certain influence on the substantial evaluation of the sub judice act in a liberal judgment or choice. This totality of the elements taken into consider- 35 ation must be deducted either from the act under review or from the elements in the file, not requiring, according to the rather prevailing view, reference to each one of the 1416 3 C.L.R. Constantinides andOthers v. Republic Malachtos J . elements of the reasoning which was considered and evaluated". It is clear from the above that the respondent Committee was not required to record in detail what their impressions were 5 in respect of the applicants or the interested parties. As to the argument of counsel for applicants that in reaching the decision complained of, the respondent Committee took into account the specialization of the interested party, there is nothing to indicate that this is so nor can this be deducted 10 from any documents before the Court. The cases cited are distinguishable from the present case as in those cases there was clear evidence in the sub judice decision itself, that specialization was one of the factors taken into consideration in effecting the promotions in question. 15 As regards the argument of counsel in relation to regulation 14
(1), I fail to see any relevancy of this Regulation to the case inhand as what isin issuehere is not the validity of the postings but of the promotions. Nevertheless, I must repeat what was said by this Court in the case of Dekatris v. The Republic
(1982)20 3 C.L.R. 8 at page 15 in dismissing a similar argument: 25 30 "To mymind under regulation 14
(1)theappropriate authority makes submissions as to the needs of the schools in general as regards the number of the teaching personnel required for every lesson, their specialities and the like. The person who is going to fill the post and any further transfers to meet the situation created by the original transfers is entirely left with the respondent committee as provided by section 39
(1)of the Law. In the present case no verification was required from the appropriate authority for the respondent committee to make this particular transfer". Finally, I must say that the applicants have failed to establish striking superiority as against the interested party, which is essential to justify an annulment of a sub judice decision. Al35 though the applicants are found to be superior in merit, could in no way have been described as strikingly superior. In Evangelou v. The Republic
(1965)3 C.L.R. 293, at page 299, it was stated: 1417 Malachtos J. Constantinides and Others v. Republic
(1984)"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 striking superiority; and it is a settled prin- 5 ciple of administrative law that mere superiority, not being of a striking nature,isnotsufficient toleadtothe 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 10 the same organ (Reports 1954C p. 1737)". For all the above reasons, both recourses fail and are dismissed with no order as to costs. Recourses dismissed with no order as to costs. 15 1418

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