clr/1986/1986_3_1705.pdf

(3)of the Public Educational Service Law JO/69, as amended by IMW 53/79—Meaning of said phrase. The appellants appealed from the first instance judgment of a Judge of this Court, by virtue of which their recourses against the validity of the promotions to the post of Headmaster in Secondary Education were dismissed as regards all interested parties, except Stassini Demetriou. Council for the appellants complained, inter alia, that the views expressed by the two Heads of Department before the respondent Commission had not been adopted by means of a collective decision of the officials of the Department concerned and, therefore, they did not comply 1705 Kinanis and Others v. E.S.C. with section 35

(3)of Law 10/69 as amended 53/79.

(1986)by Law It should be noted that the promotions of the inte­ rested parties were originally made in 1980, but as they were annuled by this Court (Angelidou v. The Republic

(1982)3 C.L.R. 520), the respondent Commission re­ considered the case and effected the sub judice promo­ tions. The interviews of the candidates were held in 1980, but as the Commission had not then recorded its im­ pressions, it proceeded to record such impressions in respect of such interviews, when deciding to make the new sub judice promotions. 5 10 Held:

(1)The submission as regards the views of the Heads of the Department cannot be accepted. The phrase "ouoraoeic οικείου τμήματος" ("recommendations of 15 ilic ;tp|nopriale Depaitmertl of Education") in (he said sectinn does nol denote iccorniueiidations adopted by means of a fniuial delibei alive process by ιhi* official of the Department, hut envisages recommciuliitions on behalf of the Department by its Head m other au'horisetl official, 20 who musi he presumed, unless the contrary is proved, to have based ihem on his knowledge as well as the views of the officials of his Department, which he had the ορροίtunity to know (tounnidou v. The Republic

(1984)3 C.L.R. 1283 cannot be read as being con'iaiy to this 25 view).

(2)Where the recorded impressions of the interviews of 1980 appear to have been treated as material considera­ tions tilting the scales in favour of any interested party, the sub judice promotion of such party has to be annulled 30 as in the absence of a contemporaneous record such im­ pressions cannot be treated as safely and accurately re­ liable. This is the case as regards interested parties, G. Michaelides and S. Kontopoulos. As regards, however, the other interested parties and as in their case there existed 35 other, much stronger, fac'ors making their selection rea­ sonably open to the Commission, the belated recording of 1706 3 CLR Kinanis and Others ν E.S C the impressions of then performance at the interviews has not resulted in any material irregularity Appeals dismissed, except as they relate to interestedparties Michaelides and Kontopoulos Sub ju­ dice promotions of Michaelides and Kontopoulos annulled No orderas to costs. 5 Cases referred to: 10 Stylianou ν The Educational Service Commission (19S4) 3 C.L.R 776), Angelidou v. The Republic

(1982)3 CL.R 520; Loaidou Papaphott ν The Educational Service Commis­ sion,

(1984)3 C.L.R 933, IS Georghiouν The Republic

(1985)3 C L R 2105, loanmdou ν The Republic

(1984)3 C L R 1283 Appeal. 20 Appeal against the judgment of a Judge of the Supreme Court of Cyprus (Styhanides, J.) given on the 18th May, 1984 (Revisional Jurisd ction Cases Nos. 352/82, 397/82 and 410/82)* whereby appellants' recourses against the promotion of the interested parties to the post of Head­ master in the secondary Education were partly dismissed. Ph Vahantis, for appellant 1. 25 AS Angelides, for appellant 2 Ν Papaefstathwu, for appellant 3 R Viahimi (Mrs), for respondent Cur adv. vult 30 TRIAKTAFYLILDES P. read the following judgment of the Court. The appellants have appealed against a first instance judgment of a Judge of this Court by means of which * Reported as Stvlianou and Others ν Educational Commission and Another

(1984)3 C L R 776 1707 Service Triantafyllides P. Kinanis and Others v. E.S.C.

(1986)there were partly dismissed three recourses of theirs under Article 146 of the Constitution (Nos. 352/82, 397/82 and 410/82). By means of such recourses the appellants had challenged promotions to the post of Headmaster in Secondary Education, which were published in the Official Gazette of the Republic on the 23rd July 1982. 5 Those whose promotions were thus challenged will be referred to hereinafter in this judgment as the "interested parties". By virtue of the first instance judgment, against which this appeal has been made, the recourses of the appellants succeeded only in so far as they related to the promotion of interested party Stassini Demetriou, and were dismissed as regards all the other interested parties. 10 15 We will not repeat the salient facts of th ; s case which are most adequately set out in the judgment of the learned trial Judge (see Stylianou v. The Educational Service Commission,

(1984)3 C.L.R. 776). It is useful to note that the interested parties had been promoted on previous occasions to the post of Headmaster in Secondary Education by decisions of the respondent Commission which were reached on the 7th June 1980 and the 30th August 1980 and that such earlier promotions were annulled by this Court on the 12th May 1982 (see Angelidou v. The Republic,

(1982)3 C.L.R. 520). Then the respondent Commission reverted again to the matter on the 21st June 1982 and effected the promotions which have been challenged by the present recourses of the appellants. We should state at this stage that we cannot accept as correct the submission of counsel for the appellants that the recommendations of two Heads of Department, namely of the Head of Department of Secondary Education and of the Head of Department of Technical Education, which 35 were stated to the respondent Commission by them and were recorded in its minutes on the 21st June 1982, had not been adopted by means of collective decisions of the officials of the Departments concerned and, therefore, they 1708 20 25 30 3 C.L.R. 5 10 15 20 25 30 35 40 Kinanis and Others v. E.S.C. TriantafyHides P. did not comply with section 35

(3)of the Public Educa­ tional Service Law. 1969 (Law 10/69), as amended by the Public Educational Service (Amendment) Law. 1979 (Law 53/79). We are, indeed, of the opinion that the phrase "συστάσεις του οικείου Τμήματος Εκπαιδεύσεως" ("recommendations of the appropriate Department of Edu­ cation") does not denote recommendations which are adopted by means of a formal collective deliberative pro­ cess by the officials of such Department, as was submitted by counsel for the appellants, but that it envisages recom­ mendations made on behalf of the appropriate Department by the Head of such Department, or other properly autho­ rized official of the Department, who, until the contrary is proved, mus' be presumed to have based his recommendations on the knowledge possessed by him as well as on views of the officials of his Department which he had the opportunity to know. In this respect we endorse as correct the approach adopted in cases such as Loizidou-Papaphoti v. The Educational Service Commission.

(1984)3 C.L.R. 933, 937-938 and Georghiou ν The Republic.

(1985)3 C.L.R.

2. and we do not consider that the judgment in Ioaiuiidou v. The Republic,

(1984)3 C.L.R. 1283, 1292-1293, can properly be read as being contrary to our above expressed view, because we read such judgment as dealing with the philosophy behind the recommendations of a De­ partment. but as not excluding the making of such re­ commendations by the Head of the Department concerned in the manner which we have already explained in this iudgment. As regards, next, the issue of the interviews of the can­ didates for promotion to the post in question we are faced with the situation that when the promotions of the inte­ rested parties were initially made, as aforesaid, in

1. there had not been recorded the impressions of the res­ pondent Commission about the performance of the candi­ dates when interviewed. Two years later, when deciding to make the now sub judice promotions, the Commission recorded its impressions about the performance of the candidates when interviewed 1709 Triantafyllides P. Kinanis and Others v. E.S C. J1S86) in
2. as part of its reasoning for preferring the inte­ rested parties instead of the appellants. What the respondent Commission has done in this res­ pect was, indeed, a ''belter late than never" cure of its failure to record contemporaneously its impressions about the performance of the candidates at the interviews two years earlier in
3. 5 After much anxious consideration we have decided that where such impressions, as recorded, appear to have been treated as material considerations which have tilled the 10 scales in favour of any one of the interested parties, espe­ cially when other considerations militated against promoting such interested parties instead of the appellants, we have to proceed to annul the promotions of the interested par­ ties concerned; and these interested parties are Georghros 15 Michaelides and Soteris Kontopoulos. It is to be noted that Michaelides was junior to the other candidates and Kontopoulos had not been recommended by his Head of Department: and it is quite clear to us that in these two instances the impressions cf the Commiss;on about the 20 performance of the interested parties concerned at the interviews two years earlier, which in the absence of any contemporaneous official written record could not be treated as safely and accurately reliable, were treated as bemg of decisive signifxance in leading up to the choice 25 for promotion of the two interested parties in question. As regards the remaining interested parties it is correct that the impressions of the Commission about their per­ formance at the interviews two years earlier were recorded in the minutes of the Commission in 1982, even though 30 they were not recorded contemporaneously in 1980, and such impressions were taken into account by the Com­ ; mission in making the now sub jud ce promotions; but there existed other, much stronger, factors on the basis of which it was reasonably open, in any case, to the respon- 35 dent Commission to choose for promotion the remaiirng interested parties and, thus, we have to find that the taking into account in relation to such promotions of the very belatedly recorded impressions of the Commission from the interviews has not resulted, in so far as the remaining 4Θ 1710 3 C.L.R. Kinanis and Others v. E.S.C. Triantafyllides P. interested parties are concerned, in any material irregularity which should now lead to the annulment of their promotions. 5 10 In the result these appeals are dismissed, except in so far as they relate to the promotions of the aforementioned interested parties Michaelides and Kontopoulos which are hereby declared to be null and void and of no effect whatsoever; but we shall not make any order as to the costs of this appeal. Appeals partly allowed. No order as to costs. 1711