clr/1986/1986_3_1407.pdf

(1986)The respondents in this appeal, namely M. Maratheflis and A. Psomas filed recourses 570/83 and 79/84, whereby they impugned the validity of the appointment of the interested party St. Philippides to the post of Director of Higher and Highest Education in the Ministry of Education as from 1.1.1984. 5 The said appointment was annulled by the judgment appealed from, issued by a Judge of this Court, on the ground that the appellant Commission did not embark into details as regards the qualifications of the candidates 10 and it did not carry out a due inquiry as to whether such qualifications satisfied the requirements of the relevant scheme of service. During the hearing of the appeal there were raised additional issues relating to the validity of the sub judice appointment. The appellant. Commission selected the interested party because he was rated as "very very good" when .interviewed and had impressed the Commission with his practical aproach. Moreover, the Commission stated that he was superior to the other candidates as regards •'personality". The interviews had been held on the 15in and 16th of July 1983, but no contemporaneous records were kept. The Commission recorded its evaluation of the performance of the candidates at its meeting of the 21.12.83, that is after there had elapsed since the interviews more than five months. Respondent Maratheftis was rated "very good", and respondent Psomas as "nearly very good". The interested party was the only one of the eleven candidates, who was rated as "very very good". Held, dismissingthe appeal:<1) In the light of the arguments advanced during the hearing of the appeal this Court is of the opinion that the post-graduate qualification in paedagogics, which the interested party had obtained in Greece after studies of two years, is a post- 35 graduate qualification within the ambit of paragraph 2 of the scheme of service. In the circumstances and in the light of the arguments advanced before this Court, but not before the trial Judge, there was no need for the 1408 3 C.L.R. Republic v. Maratheftis and Another appellant Commission to conduct any special inquiry respect of such qualification of the interested party. 5 10 15 2Θ 25 in

(2)In view of the absence of any contemporaneous re­ cords relating to the evaluation of the performance of the candidates at the interviews and of the period of more than five months which intervened between the interviews and the recording of the evaluation of such performance by the Commission, there exists a strong probability that the Commission was labouring under a ma'erial misconception due to inaccuracies, which, because of the passage of time, may have crept in and distorted the evaluation of the performance of the candidates. Likewise, the views of the Commission as regards the interested party's per­ sonality are tainted with probable misconception. This Court might not have reached the same conclu­ sion, if only respondent Psomas had been a party to this proceedings, because he was rated as "nearly very good" and thus there is a greater margin of safety against error.

(3)The Commission attached disproportionate importance to the factor of the performance of the candidates at the interviews and to the related thereto element of personality.

(4)In the circumstances it was reasonably open to the Commission not to attribute any sinister significance to the fact that the interested party was rated in the last two confidential reports as regards character as only "very • good", whereas he was rated as "excellent" as regards many other respects. Appeal dismissed. No order as to costs. 30 Appeal. 35 Appeal against the judgment of a Judge of the Supreme Court of Cyprus (Demetriades, J.) given on the 27th March, 1986 (Revisional Jurisdiction Cases Nos. 570/83 and 79/84)* whereby the appointment of the interested * Reported in

(1986)3 C.L.R. 533. 1409 Republic v. Maratheftis and Another

(1986)party to the post of Director of Higher and Highest Education in the Ministry of Educat-on was annulled. N. Charalambous, Senior Counsel for the appellant. of the Republic, A. S. Angeh'des, for the respondents. 5 G. TriantafyHides, for the interested party. Cur. adv. vult. TRIANTAFYLLIDES P. read the following judgment of the Court. The appellant Public Service Commission, which was the respondent in recourses Nos. 570/83 and 79/84, 10 under Article 145 of the Constitution—which were filed, respectively, by respondents Michalakis Maratheftis and Andreas Psomas, as applicants—has appealed against the first instance judgment of a Judge of this Court by means of which there was annulled the appointment of interested 15 party Stavros Philippides to the post of Director of Higher and Highest Education, in the Ministry of Education, as from the 1st January

1. It is useful to quote the following passage from the first instance judgment, which was given on the 27th March 1986, and which contains the reasoning of the trial Judge for the annulment of the appointment, and promotion as well, of the interested party to the aforesaid post: 20 "In the relevant minutes of the respondent Commission, dated the 21st December,
2. it is stated 25 that the Commission considered that all candidates possessed the qualifications required by the scheme of service for the post concerned. In the circumstances of the present case, however. and, in particular, from the contents of the relevant 30 minutes of the Commission, it does not appear that the Commission embarked into details as regards the evaluation of the qualifications possessed by the candidates and that it carried out a due inquiry as to whether such qualifications satisfied the requirements 35 of the relevant scheme of service. A mere statement in the minutes of the Commission that the candidates 1410· 3 C.L.R. 5 10 15 20 } 5 30 35 Republic v. Maratheftis and Another Trlantafyllides P. possessed the required by the scheme of service qua­ lifications is not sufficient to satisfy me that a due inquiry was carried out into this aspect of the case or that it was reasonably open to the Commission to have come to such conclusion. The fact that the interested party was holding at the material time a post for which the same qualifica­ tion was required does not absolve the Commission from its duty to satisfy itself that in the present instance, for this particular post, the interested party was qualified for promotion. In view of the foregoing. the sub judice promotion of the interested party has to be annulled." In view of the fact that when it hears a revisional junsdiction appeal, such as the present one, this Court has to deal with the case before it as a whole, we have allowed counsel for the respondents to argue additional issues which, though they are not included in the notice of ap­ peal, they had been raised at the hearing before the trial Judge, but were not pronounced on by him in his first in­ stance judgment since he had annulled the sub judice ap­ pointment of the interested party for the reasons stated in the aforequoted passage from' such judgment. We might add, at this stage, that after we had heard counsel for appellant, as well as counsel for the inte­ rested party, in support of the appeal, and after counsel for the respondents had replied to them and had pro­ ceeded to argue the aforementioned additional issues, and after counsel for the appellant, as well as counsel for the interested party, had replied to him, counsel for the res­ 1 pondents claimed a final right of reply as regards such additional issues. We took the view that, in a proceeding of this nature, he was not entitled' as of right to a final reply but we granted to' him leave to reply only as regards 1 certain specified matters in respect of which we needed to hear him further in *he interests of justice. In the light of the detailed and lengthy oral arguments which were advanced' before us during the hearing of the present appeal, and1 which have, certainly, thrown ample l'41'ϊ Triantafyllides P. Republic v. Maratheftis and Another

(1986)light on the matter of the qualifications of the interested party, we are of the view that his post-graduate qualifica­ tion in paedagogics, which he obtained after studies for two academic years Π961/1962, 1962/1963) in Greece, is indeed, a post-graduate qualification relating to education 5 and comes fully within 'he ambit of the qualifications re­ quired by paragraph 2 of the relevant scheme of service. In the circumstances, and especially in the light of the arguments in this respect which were advanced before us. but not also before the trial Judge as well, we are of the Ό opinion that there was no need for the appellant Com­ mission to conduct any special enquiry in respect of such qualification of the interested party and that the Com­ mission was entitled to treat such qualification, on the basis of the relevant diploma, as satisfying the require- 15 ments of paragraph 2 of the scheme of service. As the possession by the interested party of the required by the scheme of service qualifications for appointment to the post in question has not been disputed in any other respect in the course of the present proceedings, we have 20 no difficulty at all in finding that the interested party was properly treated by the appellant Public Service Com­ mission as duly qualified, under such scheme of service. for appointment to such post. Had no other issues, apart from that regarding the qualifications of the interested party, been raised in this case we would have allowed this appeal and set aside the an­ nulment of the appointment of the interested party. 25 There have, however, been raised additional issues re­ garding the validity of his appointment and our attention 30 was, in particular, drawn to the reasons given by the ap­ pellant Public Service Commission for selecting the inte­ rested party as the best candidate. By means of such reasons the Commission went on to explain in detail why it had preferred the interested party and, in particular, why it 35 had selected him instead of respondent Maratheftis: It recorded in its minutes tha* the interested party had been found by the Commission to have been "very very good" (πάρα ηολύ καλός) when interviewed and had especially impressed the Commission bv his practical approach to 40 various matters. Moreover, it was stated by the Com1412 3 C.L.R. 5 10 15 20 25 30 35 40 Republic v. Maratheftis end Another Triantafyllides P. mission that the interested party was superior to respondent Maratheftis, and generally to all the other candidates, from the point of view of personality (προσωπικότητα) and the Commission stressed in its minutes that this factor was taken particularly into account by it because the post to be filled was that of a director and thus the personality of the person who would occupy such post was of great im­ portance. All the candidates had been interviewed by the Commission at two consecutive meetings on the 15th and 16th July 1983. On both occasions there was present the Di­ rector-General of the Ministry of Education who, together with the Chairman and Members of the Commission, put questions to the candidates. No contemporaneous official record was made by the Commission as regards its own evaluation of the perfor­ mance of the candidates at the interviews, but • the Com­ mission recorded in its minutes, on the 16 July 1983, the views of the Director-General of the Ministry of Education about the performance of the candidates when inter­ viewed. He rated the interested party and the respondent Maratheftis, as well as two other candidates (Michaelides and Persianis), as "very good" (πολύ καλοί) and he rated respondent Psomas as "good" (καλός). The appellant Commission reverted on the 2 August 1983 to the matter of filling the post in question but it did not record its own evaluation of the performance of the candidates at the interviews till its meeting on the 21st December 1983, that is after there had elapsed since the interviews more than five months. According to its minutes of the 21st December 1983 the Commission rated respondent Maratheftis and two other candidates (G. Christodoulides and Persianis) as having been "very good" (πολύ καλοί) at the interviews, respondent Psomas was rated as having been "nearly very good" (σχεδόν πολύ κα­ λός) and the interested party was the only one out of ele­ ven candidates who was rated as having been "very very good" (πάρα πολύ καλός). We have reached the conclusion that in view of the absence of any official contemporaneous record of the Com1413 Triantafyllides P. Republic v. Maratheftis and Another

(1986)mission regarding the performance of the candidates when interviewed and, also, in view of the period of more than five months which intervened between the interviews in July 1983 and the recording, on the 21st December 1983, of the evaluation by the Commission of the performance 5 of the candidates at such interviews, there exists a quite strong probability that the Commission, notwithstanding its undoubted good faith, was labouring under material misconceptions due to inaccuracies, which, because of the passage of time, may have crept in and distorted the eva- 10 luation of the performance of the candidates at the interviews; and the said probability is enhanced when in such evaluation there have been used only marginally different ratings such as "very good" and "very very good" in assessing the leading candidates. 15 We, likev/ise, have to treat as tainted with probable misconception the view of the appellant Commission, which must have been based on impressions formed at the interviews of the candidates, that the interested party was superior to all the others as regards "personality." 20 Consequently, we have reached the conclusion that the selection of the interested party as better, in particular. lo respondent Maratheftis, on the basis of the performance at the interviews, has to be treated as being the product of the exercise in a defective manner of the rele- 25 vant discretionary powers of the appellant Commission and, for this reason, we have decided to annul the sub judice appointment of the interested party. We might not have adopted such a course if only respondent Psomas was a party to these proceedings, because 30 he was rated by the Commission as having been only "nearly very good" when interviewed, as compared to the interested party who was rated as having been "very very good", and thus there seems to exist a greater margin of safety against error, due to passage of time. 35 Moreover, we would like to add that the appellant Commission appears to have attached disproportionate, in the circumstances of this case, importance to the factor of the performance of the candidates when interviewed, and to 1414 3 C.L.R. Republic v. Maratheftis and Another Triantafyllides P. the related thereto element of personality, and this is another reason for which we think that its relevant discretionary powers were defectively exercised and, therefore, the appointment of the interested party has to be annulled. 5 We think that, in the light of all the foregoing in this judgment, we should at this stage point out that when the appellant Commission will revert to the matter of select;ng, once again, the candidate to be appointed, on -the basis of the legal and factual situation prevailing on the 10 21 December 1983, when its just annulled decision was taken, it has to pay due regard to the present judgment and, consequently, it has to avoid accordingly any decisive importance to the evaluation in December 1983 of the performance of the candidates at the interviews in July 15 1983, since it has been found to be tainted with a grave risk of inaccuracy. ' As regards the rest of the reasons which were given by the appellant Commission for preferring the interested party we are of the opinion that it was reasonably open 20 to the Commission not to attribute any sinister significance to the fact that in the two most recent reports about him the interested party was rated as only "very good" as regards character, whereas he was rated as "excellent" in many other respects, 25 We have reached this view after perusing the confidential reports about many other candidates for the post in question and noting that their character has also been rated as "very good" only, apparently because of. an unfortunate tendency of the reporting and countersigning of30 fleers concerned in the Ministry of Education to be unduly too strict in rating character in particular, without, however, actually intending to convey a really poor view about the character of the educationalist concerned. Lastly, as regards the question whether the somewhat 35 adverse for the character of the interested party opinion which was expressed by the Director-General of the Ministry of Education, in his special report to the appellant Commission dated the 29th November 1983, might be attributed to the aforementioned too strict tendency re40 garding the rating of character in confidential reports we 1415 Triantafyllides P. Republic v. Maratheftis and Another

(1986)think that it is up to the Commission to deal with this matter together with all other relevant considerations. In the light of all foregoing reasons we have decided, as already stated, to annul the appointment of the interested party to the post of Director of Higher and Highest Education. We shall make no order as to the costs of this appeal. S Appealdismissed. 1416