clr/1987/1987_3_2095.pdf

(1)and

(3)—Ambit ofeachofthesaid subsections— Theproviso tosubsection3 — Construction of— Itisnot in conflict nor doesit ovemde section 33(b) ^ 10 Public Officers — Appointments / Promotions — Scheme of service — Interpretation andapplication of—Judicial control — Principles applicable — ^University degree or title or equivalent degreein asuitable subject eg Public Administration, Law, Economic or Political Sciences, Business Administration etc»— Diploma inEnglishliterature — Not reasonably open totheCommission toregarditasasuitablesubject Public officers—Appointments / Promotions —Firsfentryandpromotion post— Whether the Commission haspower to call for an interview and considera person not recommended by the Departmental Committee — Question determined in the affirmative J5 20 Public Officers—Appointments / Promotions—First entryandpromotion post— Semonty — Candidates already in the service serving in widely different posts — In the circumstances, the Commission was nght in not attaching much weight tothefactor ofsemonty By letter dated N t h January, 1982, the Ministry of Finance requested the respondent to proceed with the filling of 14 vacancies in the post of Administrative Officers as well as 22 consequential vacancies in the same post 2095 Christodoulide· v. Republic

(1987)In accordance with an advice given by the Dupury Attorney-General certain candidates, who were serving either in the parmane . post of Administrative Officer on a month to month basis or in the corresponding temporary post, were treated asqualified for appointment to the sub-judice post, notwithstanding that they had not passed the special written examination required by paragraph 3

(4)of the scheme of service The basis oftheadvicewassection 31

(3)ofthePublicServiceLawasamended byLaw 31/80 Some of the interested parties in these recourses possess a Diploma in English Literature from Salomca.University The relevant partofthe scheme of service " para 3

(1)thereof,which readsasfollows 5 10 •University Degree or title or equivalent qualification ina suitable subject e g Public Administration, Law (including Bamster-at-Law) Economic or PoliticalSciences, BusinessAdministration etc») Interested party Kokkmotnmithiotou HjiProdromou was not recommended by the Departmental Committee because of her low 15 performance atthe interview before it The Director-General of the Ministry of Agriculture, where she was serving, wrote a letter to the respondent explaining the reasons for such low performance and requested the respondent to invitehertoapersonal interview before it,statingthatshe isa very good officer and deserves to be appointed in a post equivalent to her 2 0 qualifications The respondent decided to invite her to an interview, along with other public officers who satisfied the requirements of the scheme of service and were not recommended by the Departmental Committee on account oftheir performance atthe interviewbefore it Held (l)Bothsubsections(l)and

(3)ofsection31 refertofirstentryorfirst entryand promotion posts,asitisthecasehere Theprovisotosubsection

(1)refers clearly to vacancies in permanent posts, which were created in substitution oforasaresultoftheabolitionofothercorrespondingtemporary posts 25 Theprovisotosubsection

(3)concernsvacanciesinpermanentpostswhich o n became vacant for anyother reason (and not asa result of the abolition of other corresponding permanent posts and the creation of new permanent posts in substitution) The words inthe proviso of sub-section

(3)«serving inthe post either on secondment or from month to month» refer to the permanent post, in 3 5 contradistinction with the last part of the proviso which refers to corresponding temporary posts Thewords«governedbythesameschemesofservice»referonlytothelast partoftheproviso Obviously the words«governed bythesame schemesof 2096 3 C.L.R. Christodoulides v. Republic service» appiv at t--ast to those otficers holding aconesponding temporary post andcoversthe caseof thesixinterested parties concerned However the provisions of this proviso are not in conflict nor can they override the provision of section 33(c) that no person canbe appointed ina 5 IQ 15 20 25 on postunlesshepossessesthequalificationsrequiredbytheschemesofservice for the post inquestion Asaresult.;heappointment or promotion of thesix interested partiesabove mentioned ishereby annulled

(2)If the words «suitable subject» in para 3

(1)of the scheme of service appeared on their own. it would have been reasonably open to the respondent to consider the Diploma in English Literature as satisfying the requirements oi paragraphs 3

(1)of the scheme of service Having regard. however, to the nature of the subjects enumerated therein it was not reasonably open to the respondent to decide as it did in this respect The «suitable subjects· have to be related to those enumerated in the scheme of service The appointment of these two interested parties must. also, as a result be annulled

(3)Having considered the contents of the vanous appendices relevant to the matter in issue the Court sees no defect in the course followed by the respondent Itiswithinthediscretionary power ofthe Commission to inquire ,nl ° a" circumstancesinthecourseoftheexerciseof itsfunctionsandinvite to an interview any person whom it considers qualified As a result, this argument of counsel isdismissed

(4)As regards companson between candidates who were already public officers, it wasreasonably opento the respondent nottoattach much weight lo the semonty of the candidates in the circumstances Indeed these candidates were holding different posts in vanous departments which were completely unconnected with the sub judice posts The right thing to do, under the circumstances was to weigh all factors pertaining to each one of them andseewhether theapplicant isstnkingly supenor toany of them

(3)The recourses asregardsallinterested partiesother than those, whose promotion orappointment hasalreadybeenannulledshouldbedismissed,as theapplicants failed toestablishacaseof striking supenonty Order accordingly Recourses. '^5 Recourses against the decision of the respondent to appoint and/orpromote theinterestedpartiestothepostorAdministrative Officer inp. >ference and instead of the applicants. C. Loizou, for applicants in Cases Nos. 145/85, 156/83 and 279/83 2097

(1987)Christodoullde· v. Republic C Velans,for applicant inCase No 190/83 Ν Charalambous, Senior Counsel of the Republic, for the respondent A Ladas, for interested party Μ Ρ Lymbouras Chr Tnantafylltdes, for interested party Ε Tnantafyllidou 5 S Mamantopoulos, for interested party S Chnstodoulidou D.Zavalhs, for interested party Ε Rossidou Cur adv. vult DEMETRIADESJ read thefollowingjudgment. Theapplicants inRecourses Nos 145/83and 156/83 are thesame personsas the 10 applicants in Recourse No 279/83, but the appointment of a different interested party ischallenged by the latterrecourse One of these applicants, however, whose name appears as applicant 3 in Recourse No 145/83 and No 1 in Recourse No 279/83, namely Michael Tokandes, has died in the meantime, and his «c recourse was, as a result, withdrawn The remaining five applicants in Recourses Nos 145/83 and 156/83 challenge thedecision of therespondent,published inthe Official Gazetteof the Republic onthe4th March, 1983, whereby 35 persons, the interested parties whose names appear on thelist 20 attached to the application, were appointed or promoted to the post of Administrative Officer as from the 1st February, 1983, instead of and in preference tothem The applicant in Recourse No 190/83 challenges the same administrative act with the only difference that the interested 25 parties there are only 33 (theirnames appear on the listattached ο her application and they are the same as in the first two recourses with the exception of Rosana-Amphitnti Koutsiou and ElenaZachanadou) The five applicants in Recourse No 279/83 challenge the decision of the respondentpublished in theOfficial Gazetteof the Republic dated the 17th June, 1983, whereby Eva Rossidou, the interested party, was appointed to the post of Administrative Officer as from the 19th May 1983, instead of and in preference tothem 2098 30 35 Christodoulides v.Republic Demetriad. The names of all the interested parties, whose promotion is challenged by the four recourses, appear in the attached Appendix. The facts which ledtothe present proceedings are as follows: 5 Byletter dated the 14thJanuary, 1982,the Ministryof Finance requested the respondent to proceed with the filling of 14 vacancies in the post of Administrative Officer as well as 22 consequential vacancies in the same post. The vacancies were published in the Official Gazette of the Republic dated the 5th 10 February, 1982 and the matter was referred to the Departmental Committee which was set up for the purpose and which, by its report submitted by letter dated the 24th May, 1982, recommended 100candidates for the postsin question. The respondent, atitsnext meeting dated the 11thJune, 1982, 15 noticed that those candidates serving in the permanent post of Administrative Officer on a month to month basis and those serving in the corresponding temporary post had not passed the special written examination required by paragraph 3

(4)of the scheme of service and decided toseek advice astowhether they 20 couldbeconsideredasqualified candidatesforthepostsinviewof the fact that they possessed, at the time of their appointment to these posts, the qualifications required by the schemes of service which were in force at the time of their appointment, where no provision was made for success in the special examination. The 25 Deputy Attorney-General, by a letter dated the 3rd July, 1982, advised the respondent that the said candidates could be considered as qualified although they had not passed the special examinations, in view of the provisions of section 31

(3)of the PublicService Lawasamended byLaw31/80. 30 At its meeting dated the 8th July, 1982, the respondent adopting the advice of the Attorney-General's Office, decided to considertheabovecandidatesasqualified andtoinvitethemtoan interview. At some later stage the Commission decided, after examining the results of the written examinations, to call for an 35 interview also certain other candidates who were not recommended bythe Departmental Committee, amongst whom applicants Vassilia Kyrmitsi and Costas Papasawas, as well as interested parties Vassilios Vassiliou and Tasoula HadjiProdromou-Kokkinotrimithiotou, the latter after certain 40 explanations were given by her and the Director-General of the 2099 D e m e t r i a d e · J. ChrUtodoulldes v. Republic

(1987)Ministry of Agriculture, where she was serving,"regarding her psychological state at the time of her interview with the Departmental Committee. After the completion ofthepersonal interviews,the respondent heard, at itsmeeting of the 16th October, 1982,the evaluation of 5 the Director of the Department as to the performance of the candidates during the interviews, and proceeded, on the 2nd November, 1982, to itsown evaluation of the candidates and the selection for appointment of36 candidates. At its next meeting, which took place on the 2nd December, 10 1982,therespondent decidedtooffer appointment to35of those candidates, leaving the matter of the appointment of interested party Rossidou open until further information was received from theChief of Policeregarding her character. In viewof the fact that twoof the candidates did not accept the 15 offer of appointment, the respondent met again and decided to offer appointment to Charalambos Kapsos and promotion to KyprosManoullos. The appointment / promotion ofthese35 interested parties(as from the 1st February, 1983)waspublished intheOfficial Gazette 20 of the Republic dated the 4th March, 1983,as a result of which Recourses Nos. 145/83, 156/83and 190/83were filed. The respondent, at itssubsequent meetingssought information as to the character of interested party Rossidou and called her to givepersonallyexplanationsregardingheractivitieswhenshewas 25 a student of thesecondary school. Havingbeen satisfied asto her good character, the respondent finally decided to offer appointment to interested party Rossidou as from the 19th May, 1983. Her appointment was published in the Official Gazette of the Republic dated the 17th June, 1983, as a result of which 30 Recourse No.279/83was filed. All'caseswereheard together aspresentingcommon questions of lawand fact. Counsel for the applicants separated their arguments in two parts. The first part concerns certain procedural defects and the 35 other deals with the comparison of the applicants with the interested parties. Ishall follow the same order, starting with the procedural defects. 2100 3 C.L.R. Christodoulide·v. Republic Demetriades J. The first argument of counsel for the applicants is that the respondent wrongly considered as qualified certain candidates who did notsatisfy the requirements of the scheme of service, and more specifically paragraph 3

(4)thereof, which provides for 5 success in a special written examination. The respondent, in doingso, adopted the advice received from the Attorney-General's Office. The question is whether the interpretation of the Law given by the Deputy Attorney - General through his advice is the correct one. 10 15 20 25 30 35 The advice of the Deputy Attorney-General appears in Appendix 9 to the Opposition and it is based on an interpretation of subsection

(3)of section 31 of the Public Service Law as amended by section 2 of Law 31/80. Section 31, as amended, reads as follows: «31 .-

(1)Κενή θέσις Πρώτου Διορισμού ή κενή θέσις Πρώτου Διορισμού και Προαγωγής δημοσιεύεται εις την εττίσημον εφημερίδα της Δημοκρατίας. Νοείται ότι ουδεμία τ ο ι α ύ τ η δημοσίευσις γίνεται εις περίπτωσιν πληρώσεως τοιαύτης κενής μονίμου θέσεως δημιουργηθείσης έναντι ή συνεπεία καταργήσεως ή αντικαταστάσεως ετέρας αντιστοίχου προσωρινής θέσεως οπότε η Ετπτροπή πληροί την θέσιν ταύτην δια τ ο υ διορισμού ή προαγωγής, ως θα ήτο η περίτττωσις, τ ο υ υπαλλήλου τ ο υ υπηρετούντος Π^Π ε,<5τ Π ν ούτω καταργηθείσανπροσωρινήν θέσιν και οσάκις ο αριθμός των ούτω δημιουργηθεισών θέσεων είναι μικρότερος τ ο υ αριθμού των αντιστοίχων προσωρινών θέσεων τινέςτων οποίων καταργούνται η Επιτροπή πληροί τας θέσεις τ α ύ τ α ς κατ' επιλογήν μεταξύ των υπαλλήλων των υπηρετούντων εις τας προσωρινός θέσεις και οιουδήποτε ετέρου υπαλλήλου υπηρετούντος επί αποσπάσει ή από μηνός ειςμήνα εις υφισταμένην μόνιμον ιδίαν θέσιν.

(3)Δημοσίευσης κενής θέσεως παρέχει πλήρη στοιχεία τ ο υ σχεδίου υπηρεσίας και καθορίζει την ΐτροθεσμίαν υποβολής αιτήσεων. 2101 Demetriades J. Christodoulides v. Republic

(1987)Νοείται ό τ ι οσάκις η δημοσιευομένη θέσις είναι μόνιμος δεν είναι αναγκαία η υποβολή αιτήσεως εκ μέρους υπαλλήλων οίτινες, επιλεγίΛ τες και διορισθέντες υπό της Επιτροπής, υπηρετούν εις την θέσιν είτε επί αποσπάσει είτε από μηνός εις μήνα η 5 οίτινες υπηρετούν ειςπροοωρινήνθέσιν υπότ ο ν αυτόν τίτλον και διεπομένην υπό των αυτών σχεδίων υπηρεσίας.» («31 -

(1)A vacancy ina FirstEntrypost ora First Entryand Promotion post shall beadvertised intheofficial gazette of the Republic jQ Provided thatnosuch advertisement takesplace inthe case of the filling of such vacant permanent post created in the place of oras aresult of theabolition orsubstitution ofanother corresponding temporary post inwhich case the Commission 15 fills such post by the appointment or promotion, as the case may be, of theofficer already serving inthetemporary post so abolished and if the number of the posts so created is smaller than the number of thecorresponding temporary posts some of which are abolished the Commission fills these posts by 20 selection between the offices serving in the temporary posts and any otherofficer servingonsecondmentoronamonthto month basis inan existing same permanent post.

(3)An advertisement of a vacancy in a post shall give full 25 particulars of the relevant scheme of service andshall specify the date by which applications shall be submitted Provided that whenever theadvertised post isapermanent one, the submission of applications on the part of officers who, having been selected and appointed by the 30 Commission, are serving in the post eitheron secondmentor from month to month orwho are serving inatemporary post under the same title and governed by the same schemes of service is not necessary.») I think there has been some confusion in the arguments of 35 counsel regarding theabove two provisos which were introduced by Law 31/80 and I would like to clanfy the position before proceeding to consider the advice of the Deputy AttorneyGeneral. 2102 3 C.L.R. Christodonlldes v.Republic D e m e t r i a d e ·J . Both subsections

(1)and

(3)of sections31 refer tofirstentry or first entry and promotion posts,asitisthecasehere.The proviso to subsection

(1)refers clearly to vacancies in permanent posts, whichwerecreated insubstitution of orasaresultofthe abolition 5 of other corresponding temporary posts. If this is the case, then these vacancies (and the provision of the Law here seems to be imperative) are not advertised, but the posts are filled by the appointment or promotion of those officers serving in the abolished posts and if a selection isnecessary it has to be made 10 between those officers serving in the corcesponding abolished temporary posts and any other officers serving on a temporary basisinthesamepermanent post. Theprovisotosubsection

(3)concernsvacanciesin permanent posts which became vacant for any other reason (and not as a 15 resultoftheabolitionofothercorrespondingpermanentpostsand thecreationofnewpermanentpostsinsubstitution).Insuchacase the vacancies have to be advertised but those already serving in thepostsdonothavetosubmitapplicationsbutare automatically considered ascandidates forappointment or promotion. 20 The arguments of counsel for the applicants were, as I said earlier,confusing astotheapplicabilityoftheprovisos,treating on one hand thepostsinthe presentcasesashavingbeen created in substitution of other abolished temporary postsand,on the other hand, considering the proviso to subsection

(3)as applicable in 25 viewof the fact thatthevacancieswereadvertised. Ifthatwasthe case, then the respondent ought to have proceeded to fill those posts as provided by the proviso to sub section

(1)without advertizingthem.Itdoesnot,however,appearanywhere thatany of the posts advertised were created in substitution of other 30 abolished temporary posts.Inany event, itisclearthatat least 22 posts were consequential vacancies. It is also clear from the wording both of the letter of the respondent to the AttorneyGeneral's Office seeking legal advice, as well as the advice itself that the vacancies did not concern new posts created in 35 substitution of other temporary ones. Itwas,also,finallyclarified by counsel for the respondent that thiswas not the case and that subsection

(3)wastheonlyapplicable legal provision. I will now proceed to the interpretation of section 31 as amended, and the correctness of the advice from the Attomey40 Generals' Office, which was adopted and acted upon by the respondent Commission. 2103 Deroetriades J. Christodoulldes v. Republic

(1987)The advice of the Deputy Attorney-General was to the effect that the provision in the proviso to section 31

(3)that officers already serving in the post, either on secondment etc., are exempted from submitting applicationsandarethusautomatically considered as candidates,does notreconcilewiththerequirement 5 that they should also possess thequalifications for appointmentto the post. This, in the Deputy Attorney-General's view, affords a deviation tosection33 which provides thatnoperson isappointed inapost inthepublic service unless hepossessesthe qualifications enumerated inthescheme of service for thespecific post,andany 10 other interpretation of the proviso would have been unjust to those officers whose qualifications would have to be considered for a second time. Counsel for therespondentsupported theabove interpretation explaining that sometimes permanent officers, who satisfy the 15 requirements of the schemes of service for a certain post, cannot be appointed or promoted to it,unless itisa permanentpost and are, therefore, seconded to it if it is a temporary post. In his submission, a different interpretation would lead to injustice to those officers who, at the time of their secondment, satisfied the 20 requirements of the schemes of service but for technical reasons they could not have been appointed or promoted to it. He suggested that the words «και διεπομένην υ π ό των αυτών σχεδίων υπηρεσίας» (and governed by the same schemes of service) appearing in the proviso refers only tothe last part of the 25 proviso, that is «ή οίτινες υπηρετούνεις προσωρινήν θέσιν» (who are serving in a temporary post) and does not apply to the facts of this case, where the interested parties concerned were serving onsecondment. Ithinkthere has been amisunderstanding inthisrespect on the 30 partof counsel for the respondent.Theinterested parties who are affected by this ground are: 1) Yiannakis Mallourides, 2) Lenia Orphanidou,3)Michael Parellis,4)PanikkosPikrides,5)Koutsiou Amfitriti Rosana and 6) Telemachos Georghiades. These interested parties,as itappears from thelistsof officers which were 35 sent to the DepartmentalCommittee(Appendix 4B),are «officers holding the temporary post of Administrative Officer». So, therefore, even according to counsel's own interpretation, they had tosatisfy therequirementsof thescheme of service, including paragraph 3

(4). 2104 40, 3 C.L.R. Christodoulldesv. Republic Demetriades J. Reverting back to the interpretation of the proviso, Ihold the view thatthe words «serving in the post eitheron secondmentor from month to month» refer to the permanent post, in contra­ distinction with the last part of the proviso which refers to 5 corresponding temporary posts. Although Iam inclined to agree with counsel for the respondentthatthewords «governedby the same schemes of service»refer onlytothelastpartof the proviso, I donotintendtomakeafinding atthisstageinviewof thefact, as Isaid earlier, thatthe case of thesix interestedpartiesconcerned 10 fallswithinthislastpartandtaking,also,intoconsiderationthatthis proviso has, in the meantime, been repealed by Law 10/83. Obviously the words «governed by the same scheme of service» apply atleast tothoseofficers holdingacorcespondingtemporary post andcovers thecase of thesix interestedpartiesconcerned. 15 Bethatasitmay,Idonotagree withtheviewthatthe provisions of thisproviso areeitherinconflict orcanoverride theprovisionof section 33(c) thatnoperson canbe appointedina post unless he possesses the qualifications required by the schemes of services for thepost inquestion. 20 As a result, the appointmentor promotionof thesix interested parties above mentionedis hereby annulled. The next point raised by counsel for the applicants also concernstheeligibility,undertheschemesof service, of twoofthe interested parties, namely Loucas Athanassiou and Chrystalleni 25 Koutta. These interested parties possess a Diploma in English Literature from Salonica University. Counsel submitted thatthis Diploma is not within the meaning of paragraph 3

(1)of the scheme of service for the post. Paragraph 3

(1)of thesaid scheme reads as follows: 30 «Πανεπιστημιακόν Δίπλωμα ή τίτλος ή ισότιμον προσόν εις κατάλληλον θέμα π.χ. την Δημοσίαν Διοίκηοιν, τα Νομικά περιλαμβανομένου τ ο υ (Barristerat-Law), τας Οικονομικός ή Πολιτικάς Επιοτήμας, την Διοίκηοιν Επιχειρήσεων κ.λ.π.» 35 (University Degree or title or equivalent qualification in a suitable subject e.g. Public Administration, Law (including Barrister-at-Law),Economic or Political Sciences, Business Administrationetc.»). 2105 Demetriades J . Christodoulidea v. Republic

(1987)Theinterpretation andapplication oftheschemesofserviceis withinthediscretionoftheappointingorganandthisCourtcannot interfereifsuchdiscretionwasreasonablyexercised.Thequestion iswhetheritwasreasonablyopen totherespondenttoconsider the Diploma in English Literature as a «suitable subject» under 5 paragraph3

(1)oftheaboveschemeofservice. Ifthewords«suitablesubject»appeared ontheirown,I would have agreed that it was reasonably open to the respondent to consider the Diploma in English Literature as satisfying the requirementsofparagraph 3

(1)oftheschemeofservice.Having ^Q regard,however,tothenatureofthesubjectsenumeratedtherein, Ifindthatitwasnotreasonablyopentotherespondenttodecide asitdidinthisrespect.The«suitablesubjects»havetoberelated tothoseenumeratedintheschemeofservice.Theappointmentof thesetwointerestedpartiesmust,also,asaresult,beannulled. 15 Thenext point raised isthe alleged participation of interested partyParellisintheprocedureleadingtothesubjudicedecision. Thesaid interested party, beinganemployee intheoffice ofthe respondent, signed the letter of the respondent totheAttomeyGeneraFsOffice, seekingthelegaladvicementionedearlierinthis 20 judgment. Since the appointment of this interested party has alreadybeenannulled,Iseenoreasontodealanyfurtherwiththis pointbutinanyeventIseenothingwrongifanemployee,inthe courseoftheexecution ofhisduties,addressesandsignsaletter, actingoninstructionsfromhissuperiors.Nothingcontainedinthe 25 saidletteroranywhereelseleadstotheassumptionthatthisactof the said party influenced inanywaythe respondent intakingits decision. The lastpoint raisedbycounsel inthispart oftheirarguments concerns the appointment of interested party Tasoula 30 Kokkinotrimithiotou-HadjiProdromou. This officer, who was holdingthe postof Clerk 2ndGrade,wasnotrecommended by theDepartmentalCommitteebecauseofherlowperformance at the interview before it. The Director-General of the Ministryof Agriculture, where she was serving, wrote a letter to the 35 respondent explaining that her low performance at the said interview wasdue toher beinginastateofpsychological shock and stress due to serious family reasons and requested the respondent toinviteher toapersonal interviewbefore it,stating thatsheisa verygood officer anddeservestobeappointed ina 40 post equivalent to her qualifications. The respondent requested 2106 3 C.L.R. ChHstodoullde*v.Republic Demetriade· J. this interested party to give explanations as to her psychological stateandafter consideringtheexplanationsgiven,her confidential reportsand the fact thatshewasapublicofficer, decided toinvite her toan interview, along with other public officers who satisfied 5 the requirements of the scheme of service and were not recommended by the Departmental Committee on account of their performance atthe interview before it. Having considered the contents of the various appendices relevant to the matter in issue, I see no defect in the course ]() followed bytherespondent. Itiswithinthediscretionarypowerof the Commission toinquire intoailcircumstances inthe course of the exercise of itsfunctions and invite toan interviewany person whom itconsiders qualified. Asa result, thisargument of counsel isdismissed. 15 1 now come to the second part of the arguments of counsel, concerning the comparison of the applicants with the interested parties. Counsel for theapplicantssubmitted thatthe respondent failed initsparamount dutytoselectthebestcandidatesandthatitfailed 20 to take into consideration the factor of seniority between the applicants and those of the interested parties, who were holding otherpostsinthePublicService.Incomparingtheapplicantswith those of the interested parties, who were not public officers, counsel argued that since the post of Administrative Officer 25 requiresthe exercise ofadministrative duties,the applicants, who were already inthe public service, ought tohave been preferred, especiallyinviewofthefactthattheywerenotinferiorwith regard to qualifications. It was also submitted that the weight to be attached to the evaluation of the candidates, both by the ;?() Departmental Committee and the Head of the Department, should notbe a great one. Comparison of the applicants and the interested parties is a difficult task in the present case, in view of the fact that some of theinterestedparties,aswellastheapplicants,werealreadyinthe 35 publicservice and somewere not,and, also,the fact thatthosein the public service were holding different posts in various departments of the Government and were performing different duties. For this reason, much weight cannot be attached to the confidential reports. Ialso agree with the submission of Counsel 40 for the applicants that much weight cannot be attached to the 2107 Demetriades J . Christodoulldes v. Republic

(1987)evaluation ofthecandidatesbothbytheDepartmental Committee and the Head of the Department either. One must notlosesightof the principle that the paramount duty of the respondent is the selection of the best candidates and that this Coui. ^annot substitute itsown discretion inthe place of that ofthe respondent. f> provided that it was reasonably open to the respondent to reach thesubjudice decision. Lastly,itmustbe bomein mindthatforan applicant to succeed he hasto prove striking superiority over the interested parties. With the above mmind. I will now proceed to the comparison of the parties. 10 I have already found that the appointment of eight of the interested partiesmustbeannulled ontheground thattheydidnot possessthequalifications requiredbytheschemeofservice.What, therefore, remains for me todecide iswhether theappointment of \f, the remaining interested parties was correctly decided by the respondent. There is no doubt that all the applicants and the interested parties possess the qualifications required by the scheme of service and,,therefore, there isno need tostatetheirqualifications 20 and compare them.Whatshould betakenintoconsideration isthe overall picture of the parties taking all the factors pertaining to each one into consideration. Iwillstartwith Recourse No.190/83.TheapplicantisChrystalla Michaelidou and she challenges the promotion of 33 of the 25 interested parties, more specifically those appearing in the attached list, with the exemption of Rosana Amphitriti Koutsiou, Elena Zachariadou Triantafyllides and Eva Rossidou. This applicant isa Clerk 2nd Grade. She has scored 173marks in the special examination, she was evaluated as good both by the 30 Departmental Committee andthe Head of theDepartmentand as almost very good bythe respondent. Her confidential reports for the lastthreeyearsareexcellent. Comparing herwiththoseofthe interestedpartieswhowerenotpublicofficers, Ifindthatsheisnot superior to mem. All of them, with only one exception, have 35 scored more marks in the special examination and their assessment by the respondent was a better one. The only exception is the case of interested party Costakis Steliou Chrysostomou, whohasscored 169marksintheexaminationbut was assessed by the respondent as very good. In the 40 2108 3 C.L.R. Christodoulldes v.Republic DemeiriadesJ. circumstances I believe that it was reasonably open to the respondent to appoint these interested parties and this Court cannot substitute itsown discretion for that of the administration Coming now tocompare theapplicant visavisthose interested ^ parties who were already public officers, I find that it was reasonably open to the respondent not to attach much weight to the semonty of the candidates inthe circumstances Although the posts were First Entry and Promotion and the said interested parties,aswellastheapplicant were publicofficers inviewof the \0 fact that they were holding different posts invanous departments which were completely unconnected with the subjudice posts,it was reasonably open to the respondent to act as it did What I believe would be the right thingtodo,under thecircumstances, is to weigh all factors pertaining to each one of them and see ^r whether the applicantisstrikinglysuperior toanyof them Having considered carefully allthese factors I come totheconclusion that the applicant failed toprove stnkingsupenonty over any of those interested parties Although the applicant seems to be senior to some of them, most of them have scored more marks in the 20 examinations and have performed better at the interviews before the respondent Although interested party Manoulos has been assessed by the Commission as almost very good, like the applicant, he has scored 184 marks, in the special examination asagainst 173of the applicant and he also hasexcellent reports 25 In the circumstances, her semonty cannot amount to stnking supenonty Similarly, interested party HadjiProdromou has scored less marks than the applicant inthe special examination

(172)but she has been evaluated as very good by the respondent at the 30 interview Although the applicant isa littlesenior and her reports are a little better, in the circumstances, as explained before, this does not amount tostnking supenonty Asa result, Ifind that the decision of the respondent to appoint the said interested partiesinstead ofthe applicant was reasonably 35 open to itand thisCourt cannot interfere with itsdiscretion Iwill now consider the recourses of the remaining applicants, alwaysbeanng inmind the same considerations Applicants in Recourse No 145/83 are 1) Charalambos Chnstodouhdes, 2) Chnstos Chnstoudias, 3) Michael Tokandes 2109 Demetriades J. Christodoulldea v.Republic

(1987)and 4)AntonisKourouzides (tobe referred toasapplicant No.3). Asstated at the beginning of thisjudgment, applicant Tokarides has died in the meantime and his recourse was, as a result, withdrawn. There remain, therefore, only three applicants who challenge by this recourse the appointment of the interested partieswith theexception ofEva Rossidou. Recourse No. 156/83 has been filed by Vassilia Kyrmitsi and Costas Papasawas (to be referred to as applicants 4 and 5 respectively), who challenge the appointment of the same 35 interested parties as in recourse No. 145/83. 5 10 RecourseNo.279/83hasbeenfiledbythefiveapplicantsinthe above two recourses against the appointment ofinterested party No.36, namely Eva Rossidou. Ipropose to deal with all these recourses together and Iwill begin with the comparison of the applicants with those of th( 15 interested parties who are not public officers. These interested parties have been assessed by the respondent at the interviews before it as «excellent», «very -very good» or «very good». The marks which they have scored in the special examination, with onlyvery few exceptions, with which I willdeal below, are higher 20 than those of the applicants. Taking applicant No. 1, he has scored 189 marks in the examination, whilst interested party Kelverishas scored more or lessequal marks

(387).interested partyLymboura hasscored 178 marks and Costakis St. Chrysostomou 169 marks. The performance of all these three interested parties at the interview was, however, «very good», whilst that of this applicant only «good».Inthecircumstances,Ifindthatitwasreasonablyopen to the respondent to reach the sub judice decision with regard to theseinterested parties. The position is similar with regard to applicants Nos. 2 and 3 whohavesecond 193and 184marksrespectivelyand have been assessed as «almost very good»atthe interview. ApplicantNo.5, who has scored 196 marks, is also more or less in the same position, bearing in mind that his performance at the interview before the respondent wasassessed as«average». Lastly, applicant No. 4, who was assessed as «almost very good», has scored 201 marks in the examination. Interested 2110 25 30 35 3 C.L.R. Christodoulldes v.Republic Demetriades J . parties Chr. Georghiou and Chloe Milikouri have scored 199 marks,that ismoreorlessequal,and havebeen assessedas«very good» and «very - very good» respectively. Interested parties CostasA.Chrysostomou and Eva Rossidou have scored 195 and 5 194marksrespectively and havebeen assessed as«verygood»at the interview. Also, interested parties Kelveris, Sophia Christodoulldes, Lymbouraand CostakisSt.Chrysostomou have scored lessmarks (187, 181,178and 169 respectively) but have been assessedas«verygood»attheinterview.Inallothercasesthe 10 interested partieshave clearlybettermarksand better assessment than the applicants. In the circumstances, Ihave arrived at the conclusion that the decision to appoint these interested parties wasreasonably open tothe respondent. 15 Iwilllastlycompare thefiveapplicantswiththeeight interested parties who are public officers. These interested parties have scored equally high marks inthe examination and were assessed in their majority as «very good» and one of them (Georghios Papageorghiou) as «very-very good». The only exception is 20 interested party Manoulos, who was assessed as «almost very good»and hadscored 184marks.Applicants2,3 and 4have also been assessed as «almost very good» and have scored 193, 184 and 201 marks respectively. Although there seems to be a slight superiority and seniority of applicants2and 4 overthisinterested 25 party, having regard to the overall picture, his excellent reports and thereasonsgivenbytherespondentatitsmeetingofthe 11th January, 1983, for selecting this interested party, the applicants have failed toestablish strikingsuperiorityover him. Whatremainstobeconsidered isthepositionofinterestedparty 30 HadjiProdromou visavistheapplicants.Thisinterested party has scored lessmarksthananyoftheapplicants.She is,also,juniorto a number of them but has been assessed as «very good» by the respondent whilst applicants 1 and 5 have been assessed as «good» and «average» respectively. I, therefore, find that it was 35 reasonably open totherespondent toprefer thisinterested party. Applicants 2, 3 and 4 had scored more marks but have been assessedas«almostverygood»bytherespondent.Although there is a certain superiority over this interested party on their part, I would not go as far as to say that this superiority amounts to a 40 strikingonehavingregardtotheoverallpictureofthecandidates. 2111 Demetriades J. Christodoulldes v. Republic

(1987)In conclusion, Ifind that the applicants have failed to establish striking superiority over the interested parties so as to justify the annulment of the subjudice decision. In the result, the recourses succeed partly, that is as against interested parties Mallourides, Orphanidou, Parellis, Pikrides. Koutsiou, Telemachos Georghiades, L. Athanassiou and Chr. Koutta, and are dismissed as against the remaining interested parties. In the circumstances of the cases there will be no order as to costs. 10 Sub judice decision partlyannulled. No orderastocosts. APPENDIX LISTOFINTERESTED PARTIES

21. YiannakisTh. Mallourides Lenia P. Orphanidou PanikosSt. Pikrides Telemachos M. Georghiades Rosana -Amphitriti Koutsiou Georghios A.Antoniades Tasoula Kokkinotrimithiotou - HadjiProdromou Loucas Athanasiou Ekaterini Maouri -Andreou AchilleasAntoniades Nicos Antoniades MaroPaschali -Vamavidou Eleni Yereoudaki ChristoforosS. Georghiades Georghios M.Giorgalli Chloe Ioannou -Milikouri Alexandras G. Kelveris Chryso Kolokotroni Chrystalleni Koutta loanna Annita Ph. Kyprianou Marina N. Constantinou 2112 15 20 25 30 35 3 C.L.R. 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 Christodoulldesv. Republic ManaPavlidou -Lymboura Eleni Papeleontiou ElenaZachariadou-Tnantafyllidou Costakis St Chrysostomou CostasA Chrysostomou Sofia Logidou - Chnstodouhdou Charalambos Kapsos MichaelΚ Parellis GeorghiosPapageorghiou Chrysostomos HadjiVassiliou VassihosM Vassiliou KyprosManoulos Andreas Mylonas SofochsNearchou Eva Rossidou 2113 Demetriades J.