(1987)1987December12 [K0URRI5 J ] INTHE MATTEROF ARTICLE 146OF THE CONSTITUTION CHRYSOADAMOU, Applicant, ν THE REPUBLICOF CYPRUS. THROUGH THE PUBLICSERVICECOMMISSION, Respondent (Case No 539/85) Public Officers — Promotions — Whether necessary to mention each candidate specifically in the minutes — Question answered in the negative Public Officer— Promotions — Absenceofspecificcompanson between applicant and interested party — Not a ground of annulment Public Officers — Promotions — Judicial control — Principles applicable 5 By means of this recourse the applicant challenges the promotion of the interested party to the post of Welfare Officer 1st Grade The applicant is senior tothe interestedparty by 15days she has more qualifications than the interested party though both possessed the additional qualifications envisaged as an advantage in the scheme of service, but the interestedparty 1 0 issupenorin ment The mam complaint of counsel for the applicant isthat there has not been made by the respondent Commission the necessary companson of all the candidates with each other, and in particular, of the applicant with the Interested Party Held, dismissing the recourse
(1)It isnot necessary to mention specifically each candidate in the minutes, because in the absence of any indication that any candidatehasbeen excluded fromconsideration,itisto bepresumedthat all of them were duly considered 2) An administrative Court cannot interfere in order to set aside the 2 0 promotion, unless the applicant establishes that he had striking supenonty over the interested party 1720 3 C.L.R. Adamou v. Republic 3} In this case the sub judice promotion was reasonably open to the Commission. Recoursedismissed. No order asto costs. 5 Casesreferredto: Piperiv. TheRepublic
(1984)3C.LR. 1306; Michanikosv. TheRepublic
(1976)3C.L.R. 237; Nissiotis v. TheRepublic
(1977)3 C.L.R.398; loannides v.TheRepublic
(1979)3C.L.R. 628; 10 Constantinouv.TheRepublic
(1980)3C.L.R.551; Republic v. Rousos
(1987)3C.L.R. 1217. Recourse. Recourseagainst thedecision oftherespondenttopromote the interested party to the post of Welfare Officer 1st Grade, in 15 preference and instead of the applicant. M. Tsangarides, forE. Efstathiou, for the applicant. A. Vassiiiades, for the respondent. Cur. adv. vult. KOURRIS J. read the following judgment. By the present 20 recourse, the applicant seeksadeclaration thatthedecision ofthe Public Service Commission to promote the Interested Party, namely, George P. Nicolaides to the post of Welfare Officer, 1st Grade, asfrom 1stJanuary, 1985,inpreference and/orinsteadof the applicant, isnulland void and of no effect whatsoever. 25 Atthetimeofthesubjudicedecision both theapplicantand the Interested Party were holding the post of Welfare Officer, 2nd Grade. Pursuant to a request made by the Director-General of the Ministry of Labour and Social Insurance for the filling of eight 30 vacanciesinthepostofWelfareOfficer, 1stGrade,the respondent Commission referred the matter to the Departmental Committee which was set up for that purpose in accordance with the provisions of s. 36 of the Public Service Law, 1967 (Law33/67). Byitsreport which wassubmitted tothe respondent Commission 1721 Kourris J. Adamou v. Republic
(1987)by letter dated 22nd February 1984 the Departmental Committee recommended 36 candidates for promotion to the post in question in alphabetical order including the Interested Party and the applicant The respondent Commmission at its meeting of 14th December 1984 after hearing the recommendations! theHead of Department "proceeded in his absence to i^.iluate and compare the candidate after examining their confidential reports and their personal files and taking into con^ulewition the recommendations of the Head of Departmeni the Commission reached its decision which appears m Appendix 11 by virtue of which it promoted to the said post the Interested Party The promotion was published inthe Official Gazetteof theRepublic of the 8th March 1985 as a result of which the applicant filed the present recourse 5 10 ^ The main complaint of counsel for theapplicant isthatthere has not been made by the respondent Commission the necessary comparison of all thecandidates with each other and inparticular of the applicant with the Interested Party This submission of counsel for the applicant cannot succeed inviewof the principles 20 expounded in the case of Pipen ν The Republic.
(1984)3 C L R 1306 decided by the Full Bench of the Supreme Court where it was held that it is not necessary to mention specifically each candidate inthe minutes, because intheabsence of any indication that any candidate has been excluded from consideration itistobe 25 presumed that all of them were duly considered (See also Michanikos ν The Republic
(1976)3 C L R 237 Nisstotis ν Republic,
(1977)3 C L R Ί9Η, hanmdesv TheRepublic
(1979)3 C L R 628) Also in the case of Constantinou ν The Republic,
(1980)3 C L R 551 at ρ 561 itwas stated 30 «The argument advanced on behalf of the applicant that there has been a violation of theprinciple of equality because of the fact that the Head of Department did not comment expressly on all candidates but only of those mentioned inthe 35 minutes, cannot stand There cannot be, in my view, any question of unequal treatment if a Head of Department expressly comments on some and does not comment on others The inference to be drawn, especially when there is a big number of candidates, as in the present case, is that for 40 1722 3C.L.R. 5 Adamouv.Republic KourrisJ. those not commented upon there was nothing to be said in favour and it was not his intention to recommend them for promotion or in other instances there issomething tobe said to explain why and in view of certain circumstances, such as marked seniority, they are not being recommended for promotion orthattheirseniorityorotheradvantageshouldbe ignored.» Counsel for the applicant has,furthermore, contended that the applicant hasmore qualifications thatthe Interested Partyrelating 10 to the post in question. From a perusal of Appendix 3A to the Opposition stating the qualifications of the applicant and the Interested Party it becomes obvious that the applicant has more qualifications than the Interested Party i.e. she is the holder of a diploma inSocial Welfare of the school of Social Welfare «XEN» 15 Athensand acertificate ofcompletion ofadiplomacourseofearly childhood in the University of Haifa, Israel, from 1.11.79 to 29.2.
- However, both the applicant and the Interested Party have the qualifications which are considered as an advantage in accordance with the scheme ofservice forthe post in question. 20 Itshould be noted that the applicant issenior to the Interested Party by 15 days; both applicant and the Interested Party were promoted to the post of Welfare Officer, 2nd Grade on 15.3.82 from the lower grade of Assistant Welfare Officer. In the post of AssistantWelfare Officer theapplicantwaspromoted on 1.1.1978 25 and the Interested Party on 15.1.
- Consequently, the seniority of the applicant isnot substantial. Turning now to merit, it isobvious that the Interested Party is superior to the applicant because applicant was graded in the confidential reports for each of the years of 1979, 1980, 1981, 30 1982,1983and 1984as«Verygood»whereas InterestedParty for the sameyearshewasgraded as«excellent». It is a settled principle of Administrative Law that when an administrative organ such as the Public Service Commission selectsacandidate onthebasisofcomparison with others,itisnot 35 necessary to show, in order to justify his selection that he was strikingly superior to the others. On the other hand, an administrative Court cannot interfere in order to set aside the decision unless the applicant establishes that he has striking superiority overthe interested party. 1723 KourrlsJ. Adamouv.Republic
(1987)The criteria which the Public Service Commission have to take into consideration when reaching a decision have been expounded in the case of Republic v. Rousos,
(1987)3 C.L.R. 1217atpp. 1222 -1223:«Ontheotherhand, thereisnothingintheZachariadescase 5 to prevent giving effect to the dictum in the Menelaou case, supra,whichwasadopted bytheHanscase,that'meritshould carrythe most weight', solongasthisisnotmisunderstood to mean that merit should invariably be treated, in an inflexible way, as being exclusively the decisive criterion, because in 10 view oftheJudgment inthe Georghiou, lerides and Christou cases, supra, there may exist situations in the special circumstances of which, and provided that there are not overstepped the limits of the proper exercise of the relevant discretionary powers, a criterion other than merit may be 15 found to be more important than the other. Butisis, indeed, obviousthatcogent reasonsshouldbegiveninordertojustify why merit has not been treated inaparticularcase, inviewof the existence of special circumstances, as carrying the most weight.» 20 Thesum up,the applicant isseniortotheInterested Partyby 15 days,she hasmore qualifications than the Interested Partybutthe Interested Partyissuperiortotheapplicantregardingmerit.Inthe present instance it was reasonably open to the respondent Commission on the totality of the material before it and in the 25 exercise of itsrelevant discretionary powers,with which Ifind no sufficient cause to interfere, to select as being the most suitable, the Interested Party instead of the applicant notwithstanding the slightseniorityand the more qualifications ofthe applicant. In these circumstances, the recourse fails and is hereby 30 dismissed with no order for costs. Recourse dismissed. No orderasto costs. 1724