clr/1986/1986_3_779.pdf

(3)and 46. 15 20 The applicant by means of the present recourseimpugns the validity of the decision, whereby the interested party was promoted to the post of Chief School Clerk (Ministry of Education). In effecung the sub judice promotion the respondeat Commission took -into consideration the confidential re­ ports for the last five years. The interested party is superior to the applicant in terms of merit and he was re­ commended .for promotion by the Head of the Depart779 Stephanou v. Republic {1986) meni. The applicant is better qualified than the interested party, but his additional qualifications are not envisaged in the scheme of service as an advantage. The applicant is senior io the interested party by 11 months The applicant complained, inter alia, that the Commission acied contiary to la\v and ihe principles of fair administration in that it took into account past confidentrial reports prejudicial io the applicant and in that it overestimated Jhe performance of the interested party at the interview. S 10 Held, dismissing the recourse. (\) In cases of this nature this Court does not intervene in order to set aside a decision unless the applicant is strikingly superior to the one selected for promotion.

(2)The submission of counsel for the applicant that 15 the Commission should have confined its examination to the confidential reports of the last two years cannot be accepted The Commission should look at past and especially at the most recent reports in order to evaluate the performance of the candidates during their careers as 20 a whole (HadjiGregoriouv. The Republic

(1975)3 C.L.R. 477 applied). Some allowance may have to be made for possible differences when the candidates have not been reported on by the same Reporting or Countersigning officer. 25 In this case it is significan' to note that the confidential report on the applicant for 1979-1980 was countersigned by the same officer who countersigned the report on the interested party for 1978-1979- There is no material before the Court indicating 'he Educational Standard 30 of the reporting officer on applicant, described by the latters counsel as "layman", but it should be noted that such reports were countersigned either by the Director of Higher and Secondary Education or the Director-General of the Ministry. 15

(3)The superiority of the interested party in terms of merit as emanates from the confidential reports is enhanced by the recommendation for his promotion by th» 780 3 C.L.R. Stephanou v. Republic Head of the Department. 5

(4)Additional qualifications to those provided in the scheme of service and which are not specified in such a scheme as an advantage do no! indicate by themselves striking superiority. Seniority prevails only if the merits and qualifications are evenly balanced.

(5)In the lighl of the above the conclusion is that the respondent Commission carried out a due inquiry. The applicant failed to prove striking superiority. 10 Recourse dismissed. No order as to costs. Cases referred to: Hadjioannou v. The Republic

(1983)3 C.L.R. 1041; Hadjisavva v. The Republic

(1982)3 C.L.R. 76; 15 Georghiou v. The Republic

(1976)3 C.L.R. 74; HadjiGregoriou v. The Republic

(1975)3 C.L.R. 477; The Republic v. Petrides

(1984)3 C.L.R. 378; Korai and Another v. C.B.C.

(1973)3 C.L.R. 546; Georghakis v. The Republic (1977J 3 C.L.R. 1; 20 HjiGeorghiou v. The Republic

(1977)3 C.L.R. 35; Cleanthous v. The Republic

(1978)3 C.L.R. 320; Papadopoullos v. P.S.C.

(1985)3 C.L.R. 405; Partellides v. The Republic

(1969)3 C.L.R. 480; Icannides v. The Republic

(1979)3 C.L.R. 628. 25 Recourse. Recourse against the decision of the respondent to promote the interested party to the post of Chief School Clerk 781 Stephonou v. Republic

(1986)(Ministry of Education) in preference and instead of the applicant. E. Efstathiou, for the applicant. M. Floreiuzos, Senior Counsel of the Republic, for the respondent. 5 Cur. adv. rw/i. Lows J. read the following judgment. The applicant by means of the present recourse impugns the decision of the respondent Public Service Commission, published in the Official Gazette of the Republic under No. 1945 of 6.4.84 to (vide ex. 1 attached to the recourse), whereby the interested party was promoted to the post of the Chief School C!erk (Ministry of Education) η preference to and instead of the applicant. The said decision of the P.S.C. is challenged by the 15 applicant as ill-founded and therefore liab'e to be set aside for abuse of power. The Commission is charged with failure to carry out a proper inquiry into the suitability of the candidates which allegedy resulted to misconception of material facts in connection with applicants seniority, 20 merit and qualifications. The Commission is further charged with having acted contrary to Law and the principles of fair administration by taking into consideration on the one hand past confidential reports prejudicial to the applicant, whilst overestimating on the other, Ihc performance of the 25 interested party at the interview. The decision of the Commission is also lack of due reasoning. impugned for Before proceeding to examine the complaints of the applicant. I feel that I should repeat at this early stage 30 what has been repeatedly emphasized and recently reiterated by the Full Bench of this Court in the case of Hadjiloannou v. 77/:' Republic

(1983)3 C.L.R. 1041 at p. 1045: "An administrative Court cannot intervene in order to set aside the dec:sion... unless it is satisfied, by 35 an applicant in a recourse before it, that he was an eligible candidate who was strikingly superior to the 782 3 C.L.R. 5 10 Stephanou v. Republic Loris J. one who was selected, because only in such a case the organ which has made the selection for the purpose of an appoiniment or promotion is deemed to have exceeded the outer limits or its discretion and, thereiorc, to have acted in excess or 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 reasoning or as based on unlawful or erroneous or otherwise invalid reasoning—(Odysseas Georghioti v. Republic Π976) 3 C.L.R. 74 at p. 83)." The notion of "'striking superiority" has been analysed by Pik's J. In HjiSawa v. The Republic

(1982)3 C.L.R. 76 at p. 78 and I fully endorse the analysis in question. Merit 15 20 25 30 It is apparent from the sub judice decision, that the respondent P.S.C. took into consideration, inter alia, the findings of the Departmental Committee set up for the purpose; it is clear from the contents of the report of the said committee (vide page 2 of the report in Appendix 4 attached to the opposition) that the Departmental Com­ mittee took into account the confidential reports of the candidates for the last five years. Although in the minutes of the meeting of the P.S.C. held on 23.1.S4 (vide page 8 of Appendix 6 attached to the opposit'

1. on)it is stated that the P.S.C. relied on the con­ fidential reports of the candidates of the last three years, yet in their final meeting of 27.2.84, when the sub judice decision was taken (vide pages 3 and 4 of Appendix 7 attached to the opposition) they say that they have "noted" the confidential reports of the candidates for the last five years. In the circumstances it may be assumed that the respon­ dent P.S.C. took into consideration the confidential reports of all candidates for the last five years. 35 The applicant in the said confidential reports was rated as follows: (
2. a)Excellent (8-3-1) for 1978-1979 (
3. b)Very good (7-5-0) for 1979-1980 783 Loris J. Stephanou v. Republic {1988) (
4. c)Excellent (10-2-0) for 1980-1981 (
5. d)Excellent (12-0-0) for 1981-1982 and 1982-1983. The interested party was rated excellent (12-0-0) for all the vears commencing from 1978 up to and including 1983. it is the submission of the applicant in this connection that the P.S.C. should confine its examination to the confidential reports of the last two years only; with respect I cannot agree with this submission. The learned President of this Court : n delivering the judgment of the Full Bench 10 in the case of HjiGregoriou v. The Republic

(1975)3 C.L.R. 477, stated the following at p. 483: "We do agree with both the learned trial Judge and counsel for the appellant that it is necessary, in deciding on the merits of candidates, to look at past 15 annual confidential reports, and especially at the most· recent ones in order to evaluate the performance of the candidates during their careers as a whole." As regards the preparation of the confidential reports by different reporting officers the following were stated in 20 the judgment of the Full Bench in Georghiou v. The Republic

(1976)3 C.L.R. 74 at p. 81: "We do agree that it is open to the Commission-— as well as to an administrative Court trying a recourse—to give due weight to the fact that different 25 Reporting Officers cannot be treated as having made their assessments by using identical standards and that, therefore, some allowance may have to be made for possible difference in the evaluation of various candidates when they have not been reported on by 30 the same Reporting or. Countersigning Officer (see inter alia Kousoulides and others v. The Republic

(1967)3 C.L.R. 438, 449 Georghiades and Another v. The Republic

(1970)3 C.L.R. 257, 267, Aristocleous and another v. The Republic

(1974)3 C.L.R. 35 321 at pp. 325-326)." In this connection I shall confine myself in making the following observations: 784 5 3 C.L.R. 5 10 15 20 Stephanou v. Republic Loris J. (

1. a)All heugh the majority of the confidential reports of the interested party were made by a different reporting officer from the one who made the reports of the appli­ cant, yet it is significant to note that the confidential report of *he interested party for the year 1979-1980 was countersigned by the same officer who countersigned the confidential icport of the appl'cant for 1978-1979 notably the then Director-General of the Ministry of Education Mr. Adamides. The said report of the interested party explaining the reasons for his rating, countersigned by the then DirectorGeneral. states the following: «Ό υπάλληλος βαθμολογείται σάν εξαίρετος με την πεποίθησιν ότι εΐνσι τέλειος από πάαης πλευράς. Πραγματικά πρόκειται γιά δημόσιον ϋπάλληλον πολύ υψη­ λού επιπέδου κσΐ πού τίμα την θέσιν του οτόν ανώτατο δυνατό βαθμό». ("The officer is rated as excellent with the con\'iction that he is perfect from every aspect. Indeed he is of a very high standard and honours his position to the highest possible degree"). The aforesaid report of the applicant explaining the reasons for his rating, countersigned as stated above by the same countersigning officer, states: 25 «Εΐναι πολύ έμπειρος και ικανός γιά την έργαοϊα τοϋ βιβλιοθηκάριου πού επιτελεί. Συνεχώς συμπληρώ­ νει τάς γνώσεις του». ("He is very experienced and capable for the job of librarian. He constantly improves his knowledge"). 3Π 35
2. fb)There is no material before me indicating the edu­ cational standard of the Chairman of the Limassol Greek School Committee, the reporting officer of the interested party who is referred to by learned counsel for the appli­ cant in his written address as "layman", the only thing I have noted from the confidential reports of the interested party is that they are countersigned either by the Director of Higher and Secondary Education or the DirectorGeneral of the Ministry of Education. 785 Loris J. Stephanou v. Republic

(1986)The recommendations of the Head of the Department, the then Director-General of the Ministry of Education appear at p. 7 of Appendix 6, the minutes of the meeting of the P.S.C. held en 23.1.84. It is a fact that the said recommendations were in favour of the interested party. And as it is provided in s. 44

(3)of Law 33/67 the P.S.C. "shall have due regard to the annual confidential reports on the candidates and to the recommendations made in this respect by the Head of Department in which the vacancy exists." 5 As regards the performance of a candidate at the inter­ view it is well settled that the "Commission in considering the merits, qualifications and experience and generally the suitability of a candidate to a given post, should also take into account the impression created by such candidate at 15 the relevant interview (vide The Republic v. Savvas Perrfdss

(1984)3 C.L.R. 378 at p. 386). Of course undue weight should not be placed on the impression created by such interviews. In the present case having gone carefully through (

1. a)20 the minutes of the last meeting held by P.S.C. on 27.2.84, when, inter alia, the interview of the candidates took place, and (
2. b)the relevant part of the sub judice decision, I am satisfied that the respondent Commission did not attach undue weight on the impression created by the aforesaid 25 interview. Qualifications In this respect it must be stated at the outset that there is no suggestion that the interested party lacked the quali­ fications envisaged by the scheme of service, which are set 30 out in appendix " 3 . Γ" attached to the opposition; nor is there any suggestion that such a scheme stipulated addi­ tional academic qualifications as an advantage. In fact no mention of additional qualifications whatever is made in the aforesaid scheme of service. 35 It is true that the applicant is better qualified than the interested party. A mere glance at the qualifications of the interested party and the applicant as they appear in Appendix 3A indicates that the Academic qualifications 786 In 3 C.L.R. 5 Stephanou v. Republic Loris J. of the applicant are extremely superior; he has inter alia a "Business Course Certificate" from the American Univers:iy of Beirut and a diploma in Literature from the University of loannina -Greece; but it is true that these additional qua'ifications are not envisaged in the said scheme of service as an advantage. In the case of Hfiloaimou v. Republic

(1983)3 C.L.R. 1041 it was held by the Full Bench of this Court (pp. 1046-1047) that "Pos?css;on of academic qualifications !0 additional '.o those required by the scheme of service, which are not specified in the scheme of service as an advantage, shou'd not weigh greatly in the mind of the Commission who should decide in selecting the best candidate on the totally of the circumstances before them. 15 Additional academic qualifications to those provided by the scheme of service do not indicate by themselves a striking superiority. (See Elli Chr. Korai and another v. C.B.C.

(1973)3 C.L.R. 546, Andreas D. Georghakis v. The RepubVc

(1977)3 C.L.R. 1, Evangelos HjiGeorghiou 20 v. The Republic

(1977)3 C.L.R. 35, Cleanthis Cleanthous v. Th? Republic

(1978)3 C.L.R. 320). 25 Tt is apparent from the perusal of the sub judice decision (vide p. 4 of Appendix 7 attached to the opposition) that the P.S.C. directed its mind to the above principles in reaching at the decision whxh is being impugned by the present rescourse. Seniority 30 35 The applicant as well as the interested party were promoted to the permanent post of Senior School Clerk on the same day i.e. the 1st October 1982. According to the provisions of s: 46

(2)of the Public Service Law 1967 (Law 33/67) "In the case of simultaneous appointment or promotion (or secondment -vide s. 5 of Law 10/83) to the particular office or grade of the same office, seniority shall be determined according to the officers' previous seniority". And according to the interpretation section (sub-section 7) of section 46 "previous seniority" means seniority of 787 Loris J. Stephanou v. Republic

(1986)the officers concerned in the grade or office held by them immediately before they entered their present grade or office..." The applicant was promoted to the post of permanent School Clerk 1st grade on 1.5.64 whilst the interested party was promoted to the same post on 1.4.65; therefore the applicant has a seniority of 11 months over the interested party. 5 Sumnrng up 1 must state that the interested party presents a better picture as regards merit than the applicant: 10 In the first place there is a difference in favour of the interested party as regards the rating in the confidential reports of the last five years. It is true that such a difference is very slight if the confidential reports for the last three years only were to be taken into consideration. 15 On the other hand, the difference in merit, however slight it may emerge from the confidential reports, it is definitely enhanced by the strong recommendations in favour of the interested party by the Head of the Department, recommendations which should be given due regard 20 by the P.S.C. as envisaged by s. 44

(3)of Law 33/67 and which constitute a most vital consideration which cannot be disregarded (Theodossiou v. The Republic, 2 R.S.C.C. 44). As regards qualifications it is a fact that applicant had 25 manifestly superior Academic qualifications than the interested party but these additional qualifications were not specified in the Scheme of Service as an advantage and they do not indicate by themselves "striking superiority" (vide Hjiloannou v. Republic (supra)—and also the ma- 30 jority decision of the Full Bench in Andrestinos Papadopoullos v. P.S.C.

(1985)3 C.L.R. 405). Tn connection with seniority the applicant has 11 months seniority over the interested party, but the seniority can have a decisive effect oniy where the merits and qualifica- 35 tions of the parties are evenly balanced, (Parrellides v. The Republic

(1969)3 C.L.R. 480, and Ioannides v. The Re788 i C.L.R. Stephanou v. Republic Loris J. public

(1979)3 C.L.R. 628), whilst in the present case the interested party is better merited, as above stated. 5 10 15 20 25 In the light of the above, I am satisfied that the respondent P.S.C. carried out due inquiry, taking into consideration all relevant criteria and properly applying the Law in reaching at the sub judice decision which was reasonably open to it. The applicant failed to prove striking superiority, as already stated; on the contrary the interested party is better merited for the reasons already explained, whilst as regards qualifications inspite of applicant's manifestly superior Academic qualifications, such qualifications do not indicate by themselves "striking superiority" as they were not envisaged by the relevant Scheme of Service as an advantage. Before concluding I feel that I should refer to the complaint that the sub judice decision was not duly reasoned: Having examined the sub judice decision I hold the view that it clearly conveys the reasoning why the interested party was preferred for the said promotion instead of the applxant; furthermore it was said time and again that the reasoning behind a decision may be legitimately supplemented from the material contained in the files; and the files before me, to which extensive reference was made in the judgment, contain more than the required material which can support the sub judice decision allowing at the same time an unhindered judicial scrutiny. In the result the present recourse fails and is accordingly dismissed; let there be no order as to its costs. 30 Recourse dismissed. No order as to costs. 789