(1984)1984 May 18 [STYLIANIDES. J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION THEODOROS STYLIANOU AND OTHERS, Applicants, v.
- THE EDUCATIONAL SERVICE COMMISSION,
- THE MINISTRY OF EDUCATION, Respondents. {CasesNos. 288/82, 352/82,397/82, 410/82, 413/82). Res judicata—Annulling decision of admmistrative Court—Effect— Administration estopped from issuing an identical act on the same growuls and the same reasoning whichweredeclared invalid by the administrative Court—New decision not based on the grounds that caused the annulment of th? first act—Doctrine 5 of resjudicata not applicable—Article 146.5 of the Constitution. Educational Officers—Promotions—Recommendations of appropriate Department—Under section 35
(3)of the Public Educational Service Law, 1969 (Law 10/69 as amended by s. 5(c) of Law 53/79)—They can be made by the Head of such Department. 10 Educational Officers—Promotions—Additional qualifications nnd^r the schemes of service—Special reasoning requiredfor selecting a candidate not possessing such qualifications in preference to one possessing them—But recommendations of Head of Department constitute a verygood reasonfor not preferring a candidate 15 in spite of these postgraduate qualifications. Educational Officers—Promotions—Interview of candidates in 1980 —And subjudice decisiontaken in 1982—Performance of candidates at the interview recordedin the subjudice decision—Course followed not faulty. Educational officers—Promotions—Judicial control—Principlesappli· 776 20 3 C.L.K. 5 10 15 20 25 30 35 Stylianou and Others v. Republic cable—"Striking superiority"—Notion of—Seniority—It only prevails if all ollur factors are equal—77//Vi* of the applicants having better marks than one of the interested parties and an additional qualification under the schemes of service which such interested party was locking—None of them recommended for promotion by the appropriate Department—These applicants strikingly superior to the said inteiwtcd partν whose promotion isannulled. The applicants in these recourses challenged the validity of the promotions of the interested parties to the post of Head master in Secondary Education, which were effected by the res pondent Commission on 21.6.
- The respondent Commission on June 7,
- and August 30, 1980, filled the said posts by promotion of a number of educationalists. Those promotions were attacked by recourses and on 12.5.1982, the Supreme Court annulled the said promo tion? and left it to the Commission to reconsider the filling, in the proper manner, of the posts concerned, in accordance with t'ic relevant legislation and principles of Administrate Law. The ground of annulment was that the personal knowledge and information of the members of the Commission about thecandi dates was one of the criteria which were taken into account in the course of the exercise of the discretionary powers in connect ion with the decisions; and that such personal Knowledge or information possessed by members of the respondent-Commis sion, a collective organ, about the candidates was not recorded in detail so as to render feasible judicial control. At the meeting of the Commission of 21.6.1982 the Heads of the Department of Secondary and Technical Education were present; and they repeated the recommendations made by them for their departments in June and August, 1980, when the annul led decisions for promotion were taken. None of the applicants was recommended by the Head of his Department. The relevant schemes of service provided that a postgraduate education abroad would be considered as an additional quali fication. Five of the applicants possessed this additional qualification whereas interested parties Stassini Demctriou, Andreas Manolis, Leila Panaouri, Frosso Mourouzi and Loucas Kakoullis did not possess additional qualifications. M o n g e r 777 Stylianou and Others y. Republic
(1984)interested party Stassim Dcmetriou had no recommendations by the Department and her marks were slightly below of most of the applicants. No new interviews of the candidates were held in 1982 and the Commission relied on the impression they formed from the interviews of
- Applicant Sofocleous was 5 senior to all the interested par'ies with the exception of one of them. Applicant Stylianou was senior to the interested parties except Ellinas, Papadopoullos, Louloupis, Christoforou, Panaouri and Agathoclcous. The-other applicants were senior to 10 Stassopoulos and Kontopoulos and all applicants were senior to Gcorghios Michaelidcs. Some of the interested parties were better rated than the applicants but applicants Stylianou and Kinanishad bettermarksthansomeoftheinterestedparties, that is to say Stylianou was rated for the last two years 37-38 15 and Kinanis 37-37, whereas the marks of interested parties Michaelidcs and Cliristoforou were 35-
- Counsel for the applicants mainly contended:
(1)That the Commission was precluded from reaching the subjudicedecision bythejudgment oftheSupreme Court 20 which annulled the previous decision for promotion of the same persons and operated as res judicata;
(2)That the recommendations were made by tht Head of the Department whereass.35
(3)ofLaw 10/69, asamended by s.5(c) of Law 53/79, provides for recommendations 25 of the appropriate department;
(3)That there was no reasoning for preferring candidates who did not have the advantage of the additional qualification whereasfiveof the applicants had the additional qualification provided in the scheme of service; 30
(4)That interviews were held in 1982 and the impression of the members of the Commission from the 1980 interviews,thoughnotrecordedintheannulleddecisions>were recorded in the sub judice decision. Held, (I) that the annulling decision of the Court binds both 35 the applicant and the administration (sec Article 146.5 of the Constitution); that the Administration has a duty, however, thereafter to examine the matter afresh under the factual and 778 3 C.L.R. 5 10 15 20 25 30 35 Stylianou and Others v. Republic legal regime obtaining at the time the first act wasissued and ii estopped from issuing an identical act on the same grounds and the same reasoning which were declared invalid by the administrative Court; that it is not contrary to the doctrine of res judicata the issue of a new administrative act on the same subject and with the samecontent as the annulled one provided that.the new act is not based on the.grounds that caused the annulment ofthefirstact bytheCourt;that since inthepresent case the promotions wert annulled by the Court because they were vitiated by.non-recording the personal knowledge or information ofmembersoftheCommissionabout thecandidates andsincethenewsub judicedecisionisnotbasedonthatground (he Commission was not precluded from taking an identical one; accordingly the doctrine of rts judicata is not applicable.
(2)That the best possible representative and spokesma of a department is no other than the head thereof; that he rt presents his department and his recommendations, unless th contrary is proved or a doubt is created by the applicant, ai not his personal but the recommendations of the department and it is presumed that he conveys to the Commission the re commendations of the department; and that, therefore, ther was no contravention of s. 35
(3)of Law 10/69 (as amended b s.5(c) of Law 53/79).
(3)That though where a certain additional qualification i required under the scheme of service, special reasoning mus begiven incaseswhereapersonnotpossessingsuch qualificatioi was selected in preference to another possessing one, as to wh; such qualification was disregarded the recommendation of the Head of the Department constitutes a very good reason foi not preferring a candidate in spite of hispostgraduate qualifi cation; that since none of the applicants who possess the addi tional qualifications was recommended whereas the interestec parties who did not possess the required qualifications, wit! the exception of interested party Stassini Demetnou, wert recommended by the appropriate department of education the contention of absence of special reasoning must fail, as against all interested parties except interested party Stassini Demetnou
(4)That in the 1980decision, whichwasannulled, theimpres sion of the Commission from the interviews was not recorded 779 Stylianou and Others v. Republic
(1984)that in the sub judicedecision, however, theCommission thought proper to record the performance of the candidates and the view formed by them at the interview; and that accordingly there was no fault on the issue of the interview (Demetriades & Others v. Republic
(1983)3 C.L.R. 842 distinguished). 5
(5)That seniority counts only if all other things are equal and considering the material in the files, the recommendations of the department and all other relevant factors taken into consideration, the seniority of the applicants could not tip the scale in their favour. 10
(6)After dealing with the principles governingjudicial control of promotions and with the notion of "striking superiority— vide p. 789-790 post: That applicants Stylianou, Kinanis and T. Nicolaides were strikingly superior to interested party Stassini Demetnou in 15 the sense that with the exception of the performance at the interview they had better marks, they had the additional qualification—which Stassini Demetriou was lacking—and none of them was recommended for promotion bytheappropriate department; that with regard to all other interested parties this Court 20 was not persuaded by the applicants that the Commission exceeded the outer limits of its discretion or that the decision for their promotion is faulty in any respect; accordingly the promotion of interested party Stassini Demetriou is annulled and that the recourses with regard to the decision to promote the 25 other interested parties must fail. Promotion of interested party Stassini Demetriou annulled. Otherwise recourses dismissed. Cases referred to: Angelidcu and Others v. Republic
(1982)3 C.L.R. 520; Protopapas v. Republic
(1981)3 C.L.R. 456; Skarparis v. Republic
(1978)3 C.L.R. 106 at p. 116; Makrides v. Republic
(1983)3 C.L.R. 750; Geor^hiades and Others v. Republic
(1967)3 C.L.R. 653; Duncan v. Republic
(1977)3 C.L.R. 153; Demetriades and Others \. Republic
(1983)3 C.L.R. 842; 780 30 35 3 C.L.R. Stylianou and Others v.Republic Evangelcu v. Republic
(1965)3 C.L.R. 292 at p. 300; Georghiou v. Republic
(1976)3 C.L.R. 74 at p. 83; Hjiloannouv. Republic
(1983)3 C.L.R. 1045; HjiSawa v. Republic
(1982)3 C.L.R. 76 at D.
- 5 Recourses. Recourses against the decision of the respondents to promote the interested parties to the post of Headmaster in Secondary Education in preference and instead of the applicants. 10 L. Papaphilippou, for applicants in Case Nos. 288/82 and 352/
- A. S. Angelides,for applicants in Case No. 397/
- T. Papadopoulosfor applicant in Case No. 410/
- D.A. Demetriades, for applicant in Case No. 413/
- R. Vrahimi (Mrs.), for the respondents. 15 Cur. adv. vult. STYLIANIDES J. read the following judgment. By the present recourses the applicants challenge the promotions to the post of Headmaster in Secondary Education, which were effected by the respondent-Commission on 21.6.
- 20 The respondent-Commission on June 7, 1980, and August 30,1980,filled thesaidposts bypromotion ofa numberof educationalists. Those promotions were attacked by recourses. On 12.5.1982 Triantafyllides, P., annulled the said piomotions and left it to the Commission to reconsider the filling, in the 25 proper manner, of the posts concerned, in accordance with the relevant legislation and principles of Administrative Law. The ground of annulment was that the personal knowledge and infoimation of the- members of the Commission about the candidates was om- of the criteria which were taken into 30 account in the course of the exeicice of the discretionary powers in connection with the decisions. Such personal knowledge or information possessed by membtrs of the respondent-Commission, a collective organ, about the candidates was not recorded in detail so as to render feasible judicial control. 35 On 9th December, 1981,exhibit No. 1 was produced to the Court. That was a sweepingly and widely phrased statement that rendered impofsibie theexercice at all of anyjudicial control 781 tylianides J. Stylianou and Others v. Republic (19*4) )r the purpose of ascertaining whether the personal knowledge f members of the Commission about the various candidates 'as consistent or inconsistent, and to what extent in each part:ular case, with the other material regarding such candidates, 'hich was before the Commission. (See Kleri Angelidou and Hhers v. The Republic of Cyprus, through The Educational ervice Commission,
(1982)3 C.L.R 520). At the meeting of the Commission of 21.6.1982 the Heads f the Department of Secondary and Technical Education were resent. They repeated the recommendations made by them >rtheir departments in June and August, 1980, when theannul•4 decisions for promotion were taken. 5 10 None of the applicants was recommended by the Head of is Department. The Commission on the basis of the scheme f service in operation in June and August, 1980, considered 15 rid promoted 21 educationalists to the post of Headmaster of econdary Education. Seven persons out of those who were ot promoted filed recourses aiming at the said decision. In ie course of the hearing applicant No. 1in Recourse No. 397/82, vdonis G. Constantinides,withdrew his recourse as in the mean- 20 ime he had been promoted. Only the promotion of Christodoulos Neophytides was not hallenged by any of the applicants. The other 20 promotees /ere listed as interested parties in one or more of the recourses. As these recourses were argued on common points, at some .age in the proceedings they were taken together. 25 The material part of the sub judice decision reads as follows:" "Η 'Επιτροπή μελέτησε κα! πάλι τους προσωπικούς κσΐ εμπιστευτικούς φακέλλους δλων τών Βοηθών Διευθυντών των υποψηφίων γιά προαγωγή στη θέση Διευθυντή. *Ε- 30 χοντας υπόψη τΙς διατάξεις τοϋ Νόμου καΐ των Σχεδίων Υπηρεσίας καθώς καΐ την απόφαση τοϋ 'Ανωτάτου Δικα στηρίου καΐ μέ βάση την αξία, τά προσόντα καΐ την αρ χαιότητα των υποψηφίων, άφοΰ έδωσε σέ κάθε ένα άπό τά κριτήρια αυτά τη δέουσα βαρύτητα, την εντύπωση 35 που έσχημάτιοϊ γιά τον κάθε ενα άπό τους υποψηφίους κατά τΙςπροσωπικέςσυνεντεύξεις καΐ τΙςπιο πάνω συστάσεις τών Τμηματαρχών,ή 'Επιτροπή 'Εκπαιδευτικής 'Υπηρεσίας 782 3 C.L.R. Stylianou and Others \. Republic Stylianides .1 καταλήγει ότι οι πιά κάτω υποψήφιοι είναι οΐ καταλληλό τεροι γιά προαγωγή στή θέση Διευθυντή, γιά τους λόγους πού αναφέρονται γιά τάν καθένα ξεχωριστά". 5 10 15 ("The Committe has considered again the personal and confidential files of all the Assistant Directors candidates for promotion to the post of Director. Having in mind the provisions of the Law and the schemes of service as well as the decision of the Supreme Court and on the basis of the merit, qualifications and seniority of the candidates and after having given to each one of the criteria theproper weight, the impression formed for each one of the candi dates at the personal interviews and the above recommend ations of the Heads of Departments the Educational Service Committee comes to the conclusion that the above candidates are the most suitable for promotion to the post of Director, for the reasons stated for each one separately"). The subjudice decision in attacked on the following grounds:- 20 25 30
(1)The Commission was precluded from reaching the said decision by the judgment in Kleri Angelidou v. The Republic, through The Educational Service Commission (supra) which annulled the previous decision for promo tion of the same persons, and operates as res judica*a;
(2)The recommendations were made by the Head of the Department whereas s.35
(3)of Law 10/69, as amended by s.5(c) of Law 53/79, provides foi recommendations of the appropriate department;
(3)A short-list was used in the 1980 promotions and, a;. that short-list is presumed to have been used for the reaching of the sub judice decision, this is contrary to the principles of Administrative Law;
(4)There is no reasoning for preferring candidates who did not have the advantage of the additional qualification whereas five of the applicants have the additional qua lification provided in the scheme of service; 35
(5)No interviews were held in 1982 and the impression of the members of the Commission frcm the 1980 inter783 Stylianides J. Stylianou and Others v. Republic
(1984)views, though not recorded in the annulled decisions, were recorded in the sub judice decision;
(6)Applicant in Recourse No. 397/82 submitted that he was rated at 35 grades in 1980. It was rectified to 37 in 1981 and the Commission took into consideration the erroneous assessment; and lastly, 5
(7)The Commission failed in itsparamount duty to promote the best suitable candidates, as per their duty under ss. 26 and 35 of Law 10/69, as amended by ss. 3 and 5 of Law No. 53/79. 10 I. RES JUDICATA: The doctrine of les judicata was introduced into the legal systems foi the purpose of finality of litigation as it is in the interests of society that litigation should come to an end and not continue ad infinitum. Furtheimore it is in the interests 15 of the individual to be certain of hislegal position after the determination of an issue by a competent Court. As it has been,repeatedly said, Article 146of the Constitution introduced the Administrative Law and Jurisdiction in this country. Paragiaph 5 roads:- 20 "Any decision given under paragraph 4 of this Article shall be binding on all Courts and all organs or authorities in the Republic and shall be given effect to and acted upon by the organ or authority or person concerned". A decision annulling an administrative act extinguishes such 25 act, and the legal results purported to have been produced by such act are in general obliterated. This is the one aspect of resjudicata which isembodied in paragraph 5 of Article 146 of the Constitution. The annulling decision of the Court binds both the applicant 30 and the Administration. The Administration has a duty, however, thereafter to examine the matter afresh under the factual and legal regime obtaining at the time the first act was issued. The Administration is estopped from issuing an identical act on the same grounds and the same reasoning which were de- 35 clared invalid by the administrative Court. If the act was annulled as being contrary to law,it cannot rely on the same law and issue an identical act. If the first administrative act was 784 3 C.L.R. Stylianou and Others v. Republic Stylianides J. annulled for lack of reasorung or for deficient reasoning, the erroenous reasoning cannot be used for the issue of a new act. The Administration cannot rely on the grounds which caused the annulment of the first act. It is not, however, contrary 5 to the doctrine of resjudicata the issue of a new administrative act on the same subject and with the same content as the annulled oneprovided that the newact isnot based on the grounds that caused the annulment of the first act by the Court. (See Greek Council of State, Case No, 307/40; sec, also, Dendia— 10 Administrative Justice,
(1965)Volume ' C , pp. 364-367; Vegleri —Compliance of the Administration to the Decisions of the Greek Council of State,
(1934)pp. 29-48; Conclusions of the Greek Council of State, 1929-1959, p. 281). Inthepresent casethe promotions were annulled by the Court 15 because they were vitiated by non-recording the personal knowledge or information of members of the Commission about the candidates, one of the criteria taken into account in the course of the exercice of their discretionary power in connection with the annulled decisions of the Commission. Thenew sub judice 20 decision is not based on that ground and, theiefore, the Commission is not precluded fiom taking an identical one. The doctrine of les judicata is not applicable. 2. RECOMMENDATIONS PARTMENT: OF THE HEAD OF THE DE- 25 Section 35
(3)of Law 10/69 provided that the Commission should take due consideration of the recommendations of the appropriate inspector. Very rightly s.5(c) of Law 53/79 substituted the recommendations of the appropriate government department of education for the recommendations of the in30 spector. The recommendations in this case were made by the heads of the appropriate departments of education. It was submitted by counsel that this is contrary to law and in support of such aigument a written recommendation by the Department of 35 Elementary Education, when that department was headed by Papaxenophontos, was produced, recording therein that the views of the various sections of the department were taken into consideration in formulating that recommendation. Be that as it may, I hold the view that the best possible re785 Stylianides J. Stylianou and Others i. Republic .
(1984)prescntative and spokesman of a department is no other than the head thereof. He represents his department and his re commendations, unless the contrary is proved or a doubt is created by theapplicant,arc nothis personal buttherecommend ations of the department. It is presumed that he conveys 5 to the Commission the recommendations of the department. Though the wording of s.35
(3)of Law 10/69, as amended by s.5(c) of Law 53/79, is slightly different from the corresponding section of the Public Service Law No. 33/67 (section 44
(3)), I find that there was no contravention of the Law. This ground 10 fails.
- SHORT-LIST: Neither in the sub judice decision nor anywhere else there appears that a short-list was used or that the interest of any of the applicants was affected because of any such short-list. 15 The applicants were considered for promotion by the Commis sion.
- ADDITIONAL QUALIFICATIONS: The scheme of service provides:"
- Μετεκπαίδ=υσις εις το εξωτερικόν ή επιπρόσθετοςτίτλος 20 σπουδών, κατά προτίμησιν εις τα Παιδαγωγικά ή θέματα αφορώντα εις την διοίκηση» των σχολείων, Θεωρείται ως πρόσθετον προσόν". ("Post graduate studies abroad οι an additional title pre ferably in paedagogics or subjects related to the admi- 25 nistration of schools, is considered as an additional quali fication"). Five of the applicants had theadditional qualifications whereas interested parties Stassini Demetriou, Andreas Manolis, Leila Panaouri, Fross Mourouzi and Loucas Kakoullis did not poss- 30 ess additional qualifications. Where certain additional qualification is required under the schema of seivice, special reasoning must be given in cases where a person not possessing such qualification was selected in pre ference to another possessing one, as to why such qualification 35 was disregarded—(Protopapas v. The Republic,
(1981)3 C.L.R. 456). 786 3 C.L.R. Stylianou and Others \. Republic Stylianides J. TriantafyHides, P., pointed out in Skarparis v. The Republic,
(1978)3 C.L.R. 106, at p. 116:"The recommendation of the Ministry concerned—the Head of the Department—constitutes a very good reason for not pieferring a candidate in spite of his postgraduate qualification". 5 None of the applicants who possess the additional qualifications was recommended whereas the interested parties who did not possess the required qualifications, with the exception 10 of Stassini Demetriou, were recommended by the appiopriate department of education. This satisfies the requirement for special reasoning. In Makrides v. The Republic,
(1983)3 C.L.R. 750, at p. 758, the applicant possessed additional qualifications but the intcr15 csted parties were senior and better in merit. It was held that it was reasonably open to the respondent-Commission to prefer any of them and to promote them instead of the applicant. Stassini Demetriou had neither additional qualifications nor recommendations by the department and her marks are slightly 20 below of most of the applicants. This giound fails as against all interested parties except Stassini Demetriou to whom I shall revert later on in this judgment.
- INTERVIEWS: No new interviews of the candidates were held and the Com25 mission relied on the impression they formed from the interviews of
- The perfoimance at the interviews is not in general a decisive factor. Due regard, however, should be paid to the evaluation of the candidates made through the interview especially when 30 the relevant scheme of service makes provision for possession by candidates of organising and administrative ability, as in this case—(Georghiades & Others v. The Republic,
(1967)3 C.L.R. 653; Duncan v. The Republic,
(1977)3 C.L.R. 153). In the 1980 decision, which was annulled, the impression 35 of the Commission from the interviews was not recorded. In the sub judice decision, however, the Commission thought 787 Stylianides J. Stylianou and Others v. Republic
(1984)proper to record the performance of the candidates and the view formed by them at the interview. Counsel foi the applicants relied on thejudgment of a Judge of this Court in Demetriades &Others v. The Republic,
(1983)3 C.L.R.
- Factually Demetriadescase isdistinguishable from 5 the present case. In Demetriadescase some of the candidates were interviewed before the amendment of the scheme of service and some others after its amendment. The interviews of the one group took place 18 months after the interview of the first group and no record was kept of the performance at the first 10 interview. I see no fault on the issue of the interviews.
- MARKS OF APPLICANT IN RECOURSE NO. 397/82: The applicant in Recourse No. 397/82 was erroneously rated at 35gradesin 1980whereashisproper markwas37and thiswas 15 lectified in
- This was before the Commission at the material time that the subjudice decision was taken.
- SENIORITY: Applicant Sofocleous is senior to all the interested parties with the exception of Ellinas. 20 Interested party Stylianou is senior to the interested parties except Ellinas, Papadopoullos, Loulloupis, Christoforou, Panaouri and Agathocleous. The other applicants are senior to Stassopoulos and Kontopoulos and all the applicants are senior to Georghios Michae- 25 lides, who was posted at Pyrghos, Tyllirias, the most remote and isolated village in the Republic, a most disadvantageous post which for many years, as set out in the decision of the Commission, constituted a permanent problem for them. As it was reiterated by this Court, seniority counts only if all 30 other things are equal, and havingconsidered the material in the files, the recommendations of the department and all other relevant factors taken intoconsideration, Ifind that the seniority of the applicants could not tip the scale in their favour.
- SELECTION OF THE BEST CANDIDATE: The paramount duty of the Commission under the Law is to 788 35 3 C.L.R. Stylianou and Others v. Republic Stylianides J. promotethe bestsuitablecandidate for theinterestofeducation and thepublicin general. In doing soit hasto take into considerationthecriteriasetoutintheLaw,i.e.merit, qualifications and seniority -(Section 35
(2)of Law No. 10/69asamended by 5 Law No. 53/79). Someofthe interested partiesare better rated than theapplicants but applicants Stylianou and Kinanis have better marks than some ofthe promotees,that is to say, Stylianou was rated for the last two years 37-38 and Kinanis 37-37, whereas the 10 marks of interested parties Michaelides and Christoforou were 35-36. A difference, however, of one or two marks in their reports is not such as to be considered as constituting striking superiority oftheapplicant overtheinterested parties,justifying thus the annulment of the subjudice decision. As said in 15 Evangelou v. The Republic,
(1965)3 C.L.R. 292, at p. 300:- 20 "... it isa settled principle of administrative lawthat mere superiority, not being of a striking nature, is not sufficient to lead to the conclusion that the appointing authority has actedinexcessorabuseofpowers". (SeeConclusionsfrom the Council of State in Greece, 1929-1959, p.268). The Commission has to take into consideration all relevant factors and not rely only on one element. Thepromotion is within the competence of the Commission. This Court exercises ajudicial contiol over the decisions of the 25 Commission. The Court is not entitled to substitute its own decisionfor that oftheorgantowhichtheLawassignstheduty and responsibility to effect the promotions. The Educational Service Commission piomotes a candidate on the basis of comparison with others, and it is not necessary 30 to show, in order tojustify his selection, that he wasstrikingly superior to the others. On the other hand, an administrative Courtcannotinterveneinordertosetasidethedecisionregarding suchselection unlessitissatisfied, byan applicant ina recourse before it, that he was an eligible candidate who was strikingly 35 superiortotheonewhowasselected,becauseonlyinsuchacase the organ which has made the selection for the purpose of an appointment orpromotionisdeemedtohaveexceededtheouter limitsofitsdiscretion and, therefore, to haveactedin excessor 789 Stylianides J. Stylianou and Others \. Republic
(1984)abuse of its powers; also, in such a situation the complained of decision of the organ concerned is to be regarded as either lacking due leasoning or as based on unlawful or erroneous or otherwise invalid reasoning - (Odysseas Georghiou v. The Republic,
(1976)3 C.L.R. 74, at p. 83). 5 "Striking superiority" was dealt with by the Full Bench in Hji-Ioannou v. Tlie Republic,
(1983)3 C.L.R. 1041. It adopted the following passage from Hji-Savva v. The Republic,
(1982)3 C.L.R. 76, at p. 78:"As the expression 'striking superiority' suggests, a party's 10 superiority, to validate an allegation of this kind, must be self-evident and apparent from a perusal of the files of the candidates. Superiority must be of such a nature as to emerge on any view of the combined effect of the merits, qualifications and seniority of the parties competing for 15 promotion; in other words, it must emerge as an unquestionable fact; sotelling, asto strike oneat first sight". Having considered carefully all the aspects of the case, I hold the view that applicants Stylianou, Kinanis and T. Nicolaides are strikingly superior to interested party Stassini Demetriou in 20 the sense that, with the exception of the performance at the interview, they have better marks, they have the additional qualification -which Stassini Demetriou is lacking -and none of them was recommended for promotion by the appropriate department. With regard to all the other interested parties, I 25 was not persuaded by the applicants that the Commission exceeded the outer limits of its discretion or that the decision for their promotion is faulty in any respect. In the result the promotion of Stassini Demetriou is annulled. The recourses with regard to the decision to promote the other 30 interested parties fail and aie hereby dismissed. Let there be no order as to costs. Sub judice decisionpartly annulled. No order as to costs. 790