(1986)1986 August 6 [TRIANTAFYLLIDES. P.] IN THE MATTER OF ARTICLE '46 OF THE CONSTITUTION ANTONIOS KALLIS AND ANOTHER, Applicants, v. THE REPUBLIC OF CYPRUS, THROUGH THE EDUCATIONAL SERVICE COMMISSION. Respondent. (Cases Nos. 561/83, 4184), Educational Officers—Promotions ^Interviews, performance at —Evaluation of, made four months after the interviews of a great number of candidates and immediately after the recommendations of the Department of Elementary Editco?ion were heard by the Commission—Sub judice pro'notions annulled. 5 Edutational Officers—Promotions—Misconception of fact— Commission labouring under impression that applicant in 561183 received 36 and 37 marks in his last two reports, whereas applicant had been finally accorded higher marks 10 —-Ground of annulment. Educational Officers —Promotions —Discretion, wrong exercise of·—Seniority treated as overriding merit and qualifications in a manner amounting to wrong exercise of the discretionary power of the Commission. 15 Educational Officers —Promotions —Interviews, performance at —Undue weight attached—Ground of annulment. Educational Officers —Promotions —-Recommendations by the two General Inspectors who, in effect, were acting jointly as Head of the Department of Elementary Education— 20 Submission that their recommendations did not convey the views of the Department rejected. 2534 3 C.L.R. 5 10 15 20 25 KalKs & Another v. Republic The applicants in these recourses challenge the promotion of the interested parties to the post of Headmaster "A" in elementary education. The relevant interviews were held by the respondent Commission on the 16th, 17th. 18th. 19th. 20th and 21st of May 1983, but no contemporaneous record regarding the evaluation of the performance of the candidates was kept. On the 16.9.83, f.hal is after four months, the Commission heard the views of the two General Inspectors of Elementary Education, who were, in effect, acting jointly as the Head of the Department and after fheir departure proceeded :o evaluate the performance of the candidates at the interview. The two applicants, who had not been recommended by the two Inspectors, were ra'ed as "good" (applicant in 561/83) and "very good'-' (applicant in 4/84) whereas the interested parties, who had been recommended by 'he two Insrjectors, were rated as "excellent". It musf. also, be noted that: (a) Applicant in 561/83 was treated as having received 36 and 37 marks respective!) in the last two confidential reports, whereas in fact he hat' been given h'ghcr marks by a Committee of Inspectors. The report of such Committee was ready by the 19.7.83. bin was not placed before the respondent Commission, lb) As regards applicant 2 the respondent Commission iccorded in its minutes of 16.9.83 that he .had additional qualificatOns and received high marks, but he was junior to those selec'ed for promotion, he had not been recommended for promotion and he was fount! to ha\e been only "very good" when interviewed. 30 Held, annulling the mo judice decision:
(1)The submission of counsel for applicants that the aforesaid recommendations could not be treated, as conveying the views of the Department of Elementary Education, cannot be accepted. 35
(2)It must have been humanly impossible for the members of the respondent Commission not to have been influenced, when evaluating the performance of a great number of candidates at the interviews which had been held four mon'hs before the evaluation, by the views of the two General Inspectors. The situation is similar to that in 40 2535 Kailis & Another v. Republic
(1986)Kinants v. The Educational Service Commission
(1986)3 C.L.R. 151. The promotions of all interested parties have to be annulled on this ground.
(3)In the case of applicant in Recourse 561/83 there is an additional ground of annulment, namely that the respondent Commission laboured under a material misconception of fact as regards the correct marks finally accorded to the applicant. 5
(4)In the case of applicant in Recourse 4/84 the sub judice promotions have to be annulled on the following ad- 10 ditional grounds namely: (
- a)That the Commission treated seniority as overriding merit and qualifications in a manner amounting to a wrong exercise of its discretion, and (
- b)that undue importance.was given to the impressions from the interviews in preference to qualifications and 15 merit. Sub judice promotions annulled. No order as to costs. Cases referred to: Kinants v. The Educational Service Commission
(1986)3 C.L.R. 151; 20 The Republic v. Maratheftis
(1986)3 C.L.R. 1407; Styltanoii v. The Educational Service Commission 3 C.L.R. 776;
(1984)Loizidou - Papaphoti v. Educational Service Commission
(1984)3 C.L.R. 933; 25 Georghiou v. The Republic
(1985)2 C.L.R. 2105; Kinanis v. The Educational Service 3 C.L.R. 1705; Commission
(1986)Tapacoudis v. The Republic
(1981)3 C.L.R, 9; 30 Hadji loannou v. The Republic
(1983)3 C.L.R. 286; Psoras v. The Public Service C.L.R. 229; Commission
(1985)3 Chrtstou v. The Republic
(1985)3 C.L.R. 2237; Republic v. Zachariades
(1986)3 C.L.R. 852; 2536 35 3 C.L.R. Kallis & Another v. Republic Llvadas v. The Republic
(1985)3 C.L.R. 506; Lakatamitis v. The Public Service Commission
(1985)3 C.L.R.
- Recourses. 5 Recourses against the decision of the respondent to promote the interested parties to the post of Headmaster A in the Elementary Education in preference and instead of the applicant. C. Clerides, for the applicant in Case No. 561/
- 10 A. S. Angelides, for the applicant in Case No. 4/
- E. Papadopoullou (Mrs.), for the respondent. N. Cleruhu (Mrs.), for interested parties A. Papalysandrou and L. Clerides. Cur. adv. vttlt. 15 TRIANTAFYLLIDES P. read the follow-ng judgment. By means of the present two recourses, which have been heard, and are being determined, together because they are closely related to each other, the applicant in case No. 561/83 (to be referred to hereinafter as "applicant 1") challenges 20 the validity of the promotion to the post of headmaster A in elementary education of four headmasters, and the applicant in case No. 4/84 (to be referred to hereinafter as "applicant 2") challenges the validity of the promotion to such post of the aforement'oned four headmasters and, 25 also, of another nine headmasters (all the headmasters whose promotions are being challeged in these two cases to be referred to hereinafter as the "interested parties"). In the course of the final hearing of these recourses case No. 4/84 was withdrawn, and consequently dismissed, in 30 so far as interested party L. Clerides was concerned. The sub judice promotions were effected by means of a decis:on taken on the 16th September 1983 by the respondent Educational Service Commission. The relevant administrative process began before 2537 the Triantafvilides P. Kallis & Another v. Republic
(1986)Commission on the 22nd April 1983 and on the 16th. 7th, 18th, 19th, 20th and 21st May 1983 the Comnission interv;ewed headmasters in elementary education *.ho were candidates for promot'on to the post of head.luster A; and among them were the applicants and the 5 nterested partie> in the present proceedings. Λ; 'he f ime no contempoiancou.s official record nadc regarding the evaluation by the Commission of ierformancc of the candidates when interviewed. was the As regards 'he conseauences which the absence of a 10 ontemporaneous officii record entn'Is in relation to the eliability of subsequent, after some time, evaluation of the mprcssions from interviews of candidates it is useful to efer *o, inter alia, Kinants v. The Educational Service Commission,
(1986)3 C.L.R. 151. and to the judgment de- 15 ivered on the 25th July 1986 in The Republic v. Marahet'is, (R.A. 575) and not yet reported." After four months, on the 16th September 1983, the ?omm'.ssion reverted to the matter when it effected the sub udice promotions to the post of headmaster A. 20 The Commission heard, f'rst, on that date, the recom mendations of two Genera1 Inspectors for Elementary Edu ction who. a* the post of Director of Elementary Educai;m was vacant were, in effect, acting jointly as the Head it* the Department of Elementary Education. 25 1 should state at this stage that I do not agree with the ubmission of counsel for the applicants that the recomuendat'ons of the two General Inspectors could not be realed, in the circumstances of th ; s case, as conveying the 'iews of the Department of Elementary Education (and 30 ee, in *his respect, inter alia, Stvlianou v. The Educational tervice Commission,
(1984)3 C.L.R. 776, 785, 786, •.oh.idou-Papaphoti v. The Educational Service Commis si,
(1984)3 C.L.R. 933, 937, 938, Georghiou v. The lepublic,
(1985)3 C.L.R. 2105, 2114, 2115, as well as 35 Ononis v. The Educational Service Commission (R. A. • reported in
(1986)3 C LR. 1407 2538 3 C.L.R. Kaltls & Another v. Republic Triantafyllides Ρ 396) in which judgment was delivered on 30th April 1986 and : s not yet reported).* Then, after the said two General Inspectors had left the meet-ng, the members of the respondent Commission, who 5 had just heard who were the candidates who were recom mended for promotion by the General Inspectors, pro ceeded to evaluate the performance of all the candidates at the interviews four months earlier on the basis of unofficial notes which the members of the Commission had kept re10 garding such interviews. All the 'nterested parties, who were among those recom mended for promotion by the General Inspectors, were evaluated by the Commission on the 16th September 1983 as having been "excellent" at the interviews, whereas the 15 two applicants, who were not among those recommended for promotion by the General Inspectors, were evaluated,. respectively, as having been "good" and "very good" when interviewed, and, then, the Commission considered the suitability of the candidates on the bas:s of the material 20 before it and decided to promote only the interested par ties, and not anv one of the two applicants. 25 30 35 in the Pght of the foregoing it seems to me that it must have been humanly impossible for the members of the res pondent Commission, whose good faith I have no reason at all to doubt, not to be somehow influenced by the re commendations of the two General Inspectors which imme diately preceded the evaluation by the Commission of the performance at the interviews, four months ago, of a great number of candidates; and, as it appears from the relevant minutes of the Commission, the performance at the inter views, coupled with the recommendations of the two Ge neral Inspectors, were treated by the Commission as de cisive factors in choosing for promotion .the interested par ties. instead of the applicants and other candidates. Jn my view the situation in the present cases is closely similar to that in Kinants v. The Educational Service Com mission.
(1986)3 C.L.R. 151. and. therefore, for the rea* Reported in (.1986) 3 C.L.R 1705 2539 Triantafyllides P. Kailis & Another v. Republic
(1936)sons given in my judgment in that case, which I adopt mutatis mutandis for the purposes of the present cases, I have decided to annul the promotions of all interested parties in these two cases; and it is to be noted that since only recourse No. 4/84 has been withdrawn as against interested party L. Clerides, and s'nce recourse No. 561/83 has not been withdrawn as against him, his promotion has to be annulled as well. 5 As far as applicant 1 (applicant in case No. 561/83) is concerned there is an additional reason for which the pro- 10 motions of the four interested parties, which are challenged by· him, should be annulled, namely that, as it appears from the material before me, he was treated by the respondent Commission as having received 36 and 37 marks out GX 40 in relation, respectively, to the last two occasions 15 on which his performance as a headmaster was evaluated, whereas it is now an admitted fact that at the material time mere was not before the Commission a special report prepared by a committee of Inspectors which had upgraded the cvaluat'on of his performance and accorded him higher 20 marks than the aforementioned. This report was ready as early as the 19th July 1983, and was countersigned on the 12th September 1983 by one of the General Inspectors for Elementary Education and, consequently, it ought to have been brought urgently to the notice of the respondent 25 Commission, especially as the General Inspector concerned knew that this applxant was at the time a candidate for promotion and might have not been recommended for promotion obviously because the recommendations were made wh:le having in mind the lower marks which were initially 30 accorded to this applicant. in these circumstances I am of the view that in selectng for promotion the mbst suitable candidates the respondent Commission exercised its discretionary powers without full knowledge of all material- facts, because it was labouring 35 under a material misconception as regards the correct marks f:na!ly accorded to applicant 1. Consequently, as already sta'ed. the promotions of the four interested parties wh'ch 2540 3 CLR Kailis & Another ν Republic Triantafyllides Ρ are challenged by the recourse of applicant 1 have to be annulled tor this reason, too. As regards applicant 2 (applicant in case No. 4/84) the Commission recorded in its minutes of the 16th September 5 1983 that he had additional qualifications and had received high marks but that he was junior to those who were se lected, instead of him, for promotion, that he had not been recommended for promotion by the two General Inspectors and that he was found to have been only "very good" 10 when interviewed In this reasoning of the Commission there are to be lound, in my opnron, the following two flaws which vitiate its sub judice decision 15 20 25 10 Hist, the Commission treated seniority as ovending qualifications and merit in a manner amountmg to a wrong exerc se of its re'evant discretionary powers (see, inter aha, in tnis respect, Tapacoudis v. The Republic,
(1981)3 CL.R. 9, 12, 13, Hadjiloannou ν The Republic,
(1983)3 C L.R 286, 297, Psoras v. The Public Seivice Commission,
(1985)3 C.LR 229, 241, Christou v. The Republic, (1986; 3 C L.R. 2237, 2242, as well as The Republic v. Zachanades, (R.A 439) in which judgment was delivered on the 13th January 1986 and is not reported yet)* Secondly, it appears cieaily that undue importance was given to the impress ons from the interviews in preference to quahf'cations and ment (see, inter aha, in this respect, Livadas ν The Republic,
(1985)3 C.LR 506, 511 and Lakalamitis ν The Public Service Commission,
(1985)3 C L R 2269, 2272) 1 find, therefore that the promot ons of the interested part es wlvch are challenged by the recourse of applicant 2 have to be annulled for the additional reasons just stated hereinbefore in this judgment * Fierorted in 11986) 3 C L R 352 2541 Triantafyllides P. Kailis & Another v. Republic
(1986)For all the foregoing reasons these two recourses succeed :»nd ihc promotions challenged by them are declared to be null and void: but I shall not make any order as to (.OStS. Sub judice decision annulled. No order as to cost*. 2542 5