3C.L.R. 1987 October 10 [PIKIS, J ] IN THEMATTER OFARTICLE 146 OFTHECONSTITUTION PETROS PAPAMICHAEL, Applicant, ν THE REPUBLIC OFCYPRUS,THROUGH THE PUBLICSERVICE COMMISSION, Respondent (Case No 328/86) Administrative Law— Generalpnnciples — Dismissal of recoursefor annulment — Operates in personam, whereas annulment of the act operates erga omnes 5 PublicOfficers— Promotions — Head of Department,recommendations of — Specialreasonsshould begiven fornotfollowing them Public Officers— Promotions— Qualifications—Additionalqualificabons —Of onlymarginalimportance 10 PublicOfficers — Promotions — Posts entailingvaned duties — Expenence in vanous branchesof administration andsound knowledge ofadministrative process —Importanceofsuch factors PublicOfficers—Promotions—Misconception offact—Final conclusionthatthe successful candidateswere the most suitableforpromotion contradictedby thefacts—Promotionsannulledformisconception offact 15 By means of this recourse theapplicant challenges thepromotion ofthe twointerestedpartiesto thepostofAdministrativeOfficer,Grade«A». Itmustbe noted that the subjudiceactwas,also,the subjectof reviewm another recourse by another applicant Such other recourse was finally dismissed 20 InthiscasetherespondentCommissionpromotedtheinterestedpartieson account of their additional qualifications, notwithstanding applicant's semonty and the recommendations in his favour by the Head of the Department. 1357 3C.L.R. Papamlcbaelv. Republic
(1987)Held, annulling the sub judice decision
(1)Dismissal of a recourse and consequently affirmation of the decision challenged operates in personam and leaves unaffected review of administrative action at the instance of any other aggneved party Incontrast, judicial decisions entailing the annulment of administrative action,operateerga omnes 5
(2)It is settled m administrative Law that departure from the recommendation of the Headof theDepartmentmustbespecially reasoned In this case the respondents never addressed themselves to the question whether the additional academicqualifications of theinterested parties were a sufficient reasonfordepartingfromthe recommendationof theHeadofthe 1 0 Department
(3)The respondents attached inordinate importance to the additional qualifications possessed by the interested parties It is settled, again on authonty, that additional qualifications to those required by the scheme of service arenotinthemselves adecisive factor for thechoicetobe made 15
(4)Ina position carrying such vaned duties as thatof theoost inquestion, expenence in the vanous branches of the administration and sound knowledge of the administrative process are important factors, the significance of which does notappear to have attractedthe attentionof the respondents ^"
(5)The final conclusion of the respondents that the interested parties emerged objectively on a considerationof thedata beanng upontheirworth as most suitable for promotion is contradicted by the facts relevant to their suitability Sub judice decisionannulled No orderas tocosts 25 Casesreferredto Piensv Republic(1983}3 CL R 1054, HadjiConstantmouν Republic
(1973)3 C LR 65, Makndes ν Republic
(1983)3 C LR 622, Papadopoulosv J?epubAc
(1982)3CLR 1070, Papadopoulos ν Republic
(1985)3 CLR 405, Makns ν Republic
(1985)3 C LR 1103, Spanos ν Republic
(1985)3 C LR 1826 1358 30 3C.L.R. Papamlchaelv.Republic Recourse. Recourse against the promotion of three out of the four interested parties appointed to the post of Administrative Officer Grade «A· inpreference and instead of the applicant 5 A Panayiotou, for theapplicant A Vassiliades, for therespondent Interested party C Makndes, present Cur adv vuit PIKISJ readthefollowing judgment Attheoutsettheapplicant 10 challenged thepromotionof threeof thefour partiesappointedto the position of Administrative Officer Grade Ά* Inthe course of the proceedings he confined the issue to the promotion of only twoof them,namely, C MakndesandGr Theophanides Thesub judice decision was thesubject ofreviewattheinstanceof another 15 unsuccessful candidate, namely, A Papaioannou (Recourse No 250/86). Inthatcase thechallenge was directed totheselection of all four appointees Inactual fact, the two cases were examined together The absence of consolidation made necessary the delivery of two judgments Dismissal of the recourse of A 20 Papaioannou resulting in the affirmation of the decision under para 4(a) of Art 146 does not,in any way, affect theoutcomeof this case Dismissal of a recourse and consequently affirmation of the decision challenged operates in personam and leaves unaffected review of administrative action at the instance of any 25 other aggneved party Incontrast,judicial decisions entailing the annulment of administrative action, operate erga omnes and binding vis-a-viz the world at large as decisions affecting status are* Applicant and interestedparties andmanyother Administrative 30 Officers, SecondGrade,wereamongthecandidatescompetingfor promotion to the post immediately above their position, that of Ad..unistranve Officer GradeΆ* AHthreeofthemwere amongthe 16 candidates recommended by the Departmental Committeeto be suitable for promotion. The Head of the Department of 35 Personnel, to the establishment of which the post belonged, 'See, inter alia. Conclusionsfrom the GreekCouncil of State 1929 1959 ρ 279 et seq, Dagtoglou GeneralAdministrative Law. Tome C2, 1982 Ed, ρ 107 Ptens ν Republic
(1983)3CLR ρ 1054 1359 PtkisJ. Papamlchaelv.RepubUc
(1987)recommendedtheapplicantas moresuitable for promotion than eitherofthetwointerestedparties.Whatactuallyhappenedisthat Mr. Kofteros recommended the applicant and the two other appointees, whose appointment is not challenged in these proceedings, as the candidates best suited for the filling of the 5 threefirstpostsofAdministrative Officer,GradeΆ'. Theinterested parties were among the three candidates recommended for the filling of the fourth post. The inevitable inference from the assessment oftheworkofthecandidatesmadebytheHeadofthe Departmentisthatapplicantwasmoresuitable forpromotionthan 10 eitherof thetwointerestedparties. The recommendation of the Head of the Department was founded, as he informed the respondents, on a personal appreciation of themerits of thecandidates.Otherwise thethree candidateshadinessence equalmeritstotheextentthatcouldbe 15 deducedfrom theirconfidential reports.Applicant hadoneother advantage over the interested parties; he enjoyed seniority over them. Notwithstanding the recommendation of the Head of the Department and the seniority of the applicant, the respondents 20 selected theinterested parties.Theyarrived atthisconclusionon a consideration of the totality of the material before them and guided by the statutory criteria governing the exercise of their discretion tomakepromotionsinthepublicservice. Asfarasmay be inferred from the reasoning attendant to their decision, the 25 academic qualifications of theinterested parties weresuperior to thoseoftheapplicantandthatconsiderationoutweighed boththe recommendationoftheHeadoftheDepartmentandtheseniority of theapplicant.Theydidnotspecifically reason theirdecisionin the way indicated above, butthatis thereason for preference of 30 theinterestedpartiesasfarasitmaybegatheredfromexamination oftheminutesoftherespondentsreadintheirentirety.Theynever addressed themselves to the question whether the additional academic qualifications of theInterestedparties werea sufficient reasonfordepartingfromtherecommendationoftheHeadofthe 35 Department.Itissettled inadministrative law thatdeparture from the recommendation of the Head of the Department must be specially reasoned*. On the whole they appear to have underestimated the importance of the recommendation of the *See, Interalia. HadflConstantinou v. Republic
(1973)3 C.LR. 65. 1360 3C.L.R. Papamlchaelv. Republic PtldsJ. HeadoftheDepartment asafactordistinctinitselfreflecting upon themeritsandsuitabilityofthecandidatesforpromotion*. In choosing the interested parties they attached inordinate importance totheadditionalqualifications possessed bythem.Itis 5 settled, again on authority, that additional qualifications to those requiredbytheschemeofservicearenotinthemselvesadecisive factor for the choice tobe made.What such qualifications confer isa marginal advantage the magnitude of which must necessarily be related to the particular needs of the service**. In a position 10 carrying such varied duties asthat of Administrative Officer, First Grade, experience in the various branches of the administration andsound knowledge oftheadministrativeprocessare important factors,thesignificance ofwhichdoesnotappeartohaveattracted the attention ofthe respondents. 15 The final conclusion of the respondents that the interested partiesemerged objectively onaconsideration ofthedatabearing upon their worth as most suitable for promotion is, in my judgment, contradicted bythe facts relevant totheirsuitability.In the end Ifeel constrained toannul thesubjudice decision for: 20 (a) Failure to reason specifically departure from the recommendation ofthe Head ofthe Department. (b) Attachment of inordinate importance to additional qualifications ofthe interested parties. (c) Misconception of the facts relevant to the suitability of the 25 candidates, particularly those objectively reflecting their overall worth. Therefore, the promotions of interested parties Theophanides andMakridesareherebyannulledand Isodeclarethedecision so farasitaffects theinterested partiestobewhollyvoidpursuantto 30 theprovisionsofArticle 146.4(b). Promotions ofinterested parties Theophanides and Makridesannulled. *Makndesv.Republic
(1983)3C.L.R.622;Spanosv.Republlc
(1985)3C.L.R.1826. '* Papadopoulos v. Republic
(1982)3 C.L.R. 1070;Papadopoulos v. Republic,
(1985)3 C.L.R. 405;Makrisv.Republic
(1985)3 C.L.R.1103;Spanos v.Republic
(1985)3 C.L.R. 1826. 1361