(1987)1987November12 [STYUANIDES.J.) INTHE MATTER OFARTICLE 146OFTHE CONSTITUTION MICHAEL MICHAELIDES, Applicant, v. THE REPUBLIC OFCYPRUS, THROUGH THEEDUCATIONALSERVICECOMMISSION, Respondents. (CaseNo. 341/84). PHANOS PHANOPOULOS, Applicant, v. THE EDUCATIONAL SERVICECOMMISSION, Respondents. (CaseNo. 376/84). EducationalOfficers—Promotions—HeadofDepartment—Recommendations —HeadofDepartmentrecommendingacandidate,who,later, ceasedtobe interestedin being promoted to the post in question— No further recommendationsmadeorsought—Neitheraviolationoflawnoranerror intheprocedure. Educational Officers—Promotions—Qualifications—Additionalqualifications not envisaged asan advantage in thescheme of service — Though not sufficient to establishstriking superiority,they should be taken into consideration —Strikingsuperiorityisadifferentnotionfromthenotion of *thebestsuitablecandidates». EducationalOfficers—Promotions—Merits—Servicereports—Comparisonin respectofitems,relevanttoqualitiessuitablefortheperformanceoftheduties of sub judice post — Whethersuch course permissible— In the circumstances, questionansweredintheaffirmative. 2170 3CX.R. Michaellde· v. Republic Educational Officers — Promotions — High post in the hierarchy — Width of discretion ofappointing organ. . Educational Officers—Promotions — Interviews,performance at— Weighttobe attached thereto. 5 10 Educational Officers — Promotions — The three statutory criteria, merit, qualifications andseniority —Anappointing organ, when weighing together thesaidcriteria, mayattribute, provided it exercisescorrectly, in doing so.its discretionary powers,suchsignificanceto themasit would appear proper. Educational Officers— Promotions —Qualifications —Requirement of minimum period ofservicein theimmediately lower post—Longer thanthe minimum required service— Should not begiven special importance. NaturalJustice—Bias —Principlesapplicable—Burden ofproof— Recoursesby applicant againstpastpromotions ofreporting officer— Notbyitself'sufficient todischargesuch burden. 15 Educational Officers— Promotions —Judicial control — Principles applicable. The applicants bythese recourses challenge thevalidity of the promotion of Andreas Phylachtou - interested party - to the post of General Inspector SecondaryEducation. 20 On 23.5.84 the Director of Secondary Education, apparently conveying theviewsofthedepartment,recommendedasthebestsuitablecandidate for promotionto thesaidpostMr. P.Persianis. On28.5.84thesameDirector clarifiedthatallcandidatesweresuitable for promotion, butheconsideredPersianisasthemostsuitable. 25 30 35 Persianis, however, was not interested. Notwithstanding such development, theCommission didnot callthe Director to make any further recommendations, but proceeded to complete the procedure and finally selectedtheinterestedpartyasthemostsuitable candidate. In reaching the subjudice decision the Commission noted that the other candidateswereseniortotheinterestedparty,butitstressedthefactthatthe interested party wassuperior in merit to the other candidates, especially in ' respect of items in the service reports relating to abilities, which a General Inspector, in accordance with the relevant scheme of service mustpossess. Moreover, the Commission found mat with the exception of two of the candidates, who are not parties to the proceedings, the interested party possessedbetter qualifications thantheothercandidates. Applicant in recourse 341/84 contended that the service reports for him were prepared by Mr. Philipides, who was either biassed or was propably biassed, asthe present applicant had filed in the past recourses against the promotion of Philippides. 2171 Michaelidesv. Republic
(1987)Held,dismissingtherecourses:
(1)Theappointingauthorityhasaverywide discretion when makingaselection fora postsohighintheservice. 2.Interviewsarea modeof assessingacandidate'ssuitability.Theyhelpin the evaluation of candidates, mainlyfrom thepointofviewofmerit andalso toacertainextentofqualificationsaswell.Undueweightshouldnotbegiven 5 to theperformance at the interviewsand such performance cannot be taken asaseparate factorbyitself Thereisnothingwrong,howeverinlawtoattach the necessary importance to them as such interviews reveal a candidate's ;»T*onality and abilitieswhich ininstances asthe present one are important qualities, inorder toascertain whether such candidates should be suitable in 10 the post tn question {3)An appointing authontywhen weighing together thethreecntena.laid by Law (ment. qualifications, senionty) in order to fmd the most suitable candidate, may attribute such significance to them as it may deem proper provided that it exercises correctly in the course of doing so its relevant 1 5 discretionary powers.
(4)The scheme ofserviceforthe subjudice post provided fora minimum termofyearsofserviceintheimmediatelylowerpost.Itwascontended bythe«* applicants that special weightshould have been attached to the fact of theftlongerservicetosuchlowerpost.Thiscontention isunmerited. 20
(5)In the sub judice decision the respondents stated that they took into consideration the recommendations of the department. Thispart of the sub judice decision cannot be interpreted as indicating that the Commission laboured undertheimpressionormisconception thattheinterestedpartywas recommended There isnothing inthesubjudicedecision indicatingthatthe 2 5 respondents laboured undera misconception
(6)It is not mandatory for the department or the Head thereof to make recommendations. The fact that Mr. Koullis was not called to make a companson oftheothercandidatesafter thewithdrawalofPersianisisneither a violation of the law,noran errorintheprocedure 30
(7)Additional qualifications to those provided in the scheme of service, which are not made an advantage under thescheme cannot be disregarded bythe appointingauthorityas.theyarean element forassessingtheabilityof thecandidateinthebetterperformance ofthedutiesofthepost.Theyarenot a factor bythemselves.Theymaynotconstitutestrikingsuperiority,butthey 3 5 are a consideration to which regard must be given in selecting the most suitable candidate for promotion. «Striking superiority» is a completely different notion from the notion of the «best suitable candidate» for promotion.Theselectionmustbemadeonthetotalityofallthecircumstances before the Commission. It was open to the respondents to take Into 4 0 consideration, without giving undue weight, the qualifications of the applicant. 2172 3 C.L.H. 5 10 15 20 25 30 Nlchaelldes v. Republic
(8)With regard to merit the respondents went carefully into the service reports of the candidates and they made a comparable table of the more recent service reports,i.e. thetwo last years and thenthey singled outthose items which made the candidate, having regard to the duties and responsibilities of thishigh post,asthemost suitable. Itwas judicially said thatonemark lower one mark higher doesnotrender one candidatemoresuitable than theother.In Republic v. Rousos
(1987)3 C.L.R. 1217 at p. 1224 it was said «it must not be lost sight of that it is dangerous toembark onthese numerical comparisonsindependentlyof the nature of the items in respect of which and officer is rated as 'excellent' or • 'very good' since such items do differ In significance depending on the qualities towhich theyrelated*, Having regardtothedutiesandresponsibilities andtherequirementsofthe sub judice post, the respondents singled out those items which depict the qualities that make a candidate more suitable for the performance of the duties of the post. This was permissible in view of the aforecited quotation from Rousos case.
(9)Biasof oneormore ofthoseparticipatinginthedecisiontaking process or affecting the material onwhich the decision isbased renders the decision vulnerable on the ground of unfairness. The organs participating in a particularadministrativeprocess mustappearto actwith Impartialityandthis cannotbe sowhen thereexistanyspecialties orrelationshipwhichadmittedly relatetothepersonsinvolved insuch process. The lack of impartiality by public officer Aagainst publicofficer Βmust be established with sufficient certainty, either by facts emerging from relevant administrativerecordsorbysafeinferences tobe drawn from theexistenceof such facts. The single fact that applicant Mlchaelides filed recourses against the promotion of Philippides isnotby itself proof of bias.Theapplicantfailed to discharge theburdenof proof thatiscastonhim.
(10)Seniority was duly taken into consideration. The respondents have recordedindetailtheseniorityofthecandidates.Theyhave givendue weight tothembut inviewof thesuperiority of the interestedpartyinotherrespects thesenioritycouldnottipthescalesinfavour oftheapplicantsoranyofthem. 35 40 (ll)Onthematerialbefore them,intheexercise of meirwidediscretlonaty power, itwas reasonably opentotherespondentCommissiontotakethesub judice decision for thepromotionof the interestedparty asthemost suitable candidate tothepostinquestion. Recoursesdismissed. 0rtjer as tocosts. fa 2173 Mfchaellde* v. Republic
(1987)Casesreferredto Frangosv TheRepublic {1970)3 C LR 312, lendes ν TheRepublic
(1980)3 CLR 165, Simillisv TheRepublic
(1986)3 C L R 608, Repubhcv Panayiohdes{1987) 3C LR 1081, 5 Andromkou and Othersν TheRepublic {1987)3C LR 1237, Georghiouv TheRepublic
(1976)3 CLR 74, Republic ν Zachanades
(1986)3 CLR 852. Papaleontiou ν TheRepublic
(1987)3 CL R 211. Andreouv 77ie/?epuW/c
(1979)3C L R 379, Papadopoulosv 10 TheRepublic (\98b)3 C L R 405, Michaeloudis ν TheRepublic
(1982)3 CL R 963, Soteriadou andOthers ν The Republic
(1983)3 CLR 921, /oan/wdesv 77ie/?epub/ic
(1986)3CLR 1089, The Republic ν Roussos
(1987)3 CLR 1217, 15 Ghnstouv 77ieRepuWic
(1980)3CLR 437, Georghiouv TheRepublic
(1976)3 CLR 74 Hjiloannouv TheRepublic
(1983)3 C L R 1041, K>zas and Another ν The Public Service Commission
(1986)3 CLR 1096, 2 0 HjiSawa ν TheRepublic
(1982)3 CLR 76 Recourses. Recoursesagainstthedecision of the respondents to promote the interested party tothepost of General Inspector Secondary Education inpreference and insteadofthe applicants. A. Panayiotou, forapplicantin CaseNo.341/84 Ν Papaefstathiou for Τ Papadopouhs, for applicant inCase No.376/84. 2174 25 3 C.L.R. M l c h a e l l d e · v.Republic G. Erotocritou(Mrs.), Senior Counsel of the Republic, for the respondent. A. S.Angelides, for interested party. Cur. adv. vult. 5 STYLIANIDESJ. read the following judgment. The applicants by these recourses challenge the validity of the promotion of Andreas Phylachtou - interested party - to the post of General InspectorSecondary Education. The Director-General of the Ministry of Education, after the 10 appropriate approval, proposed thefillingof the vacant post of General Inspector of Secondary Education. This is a promotion post. The respondent Educational Service Commission invited the eligible candidates to an interview in the presence of the Director of Secondary Education. At the interviews questions 15 were put to the candidates on educational matters of the inspectors and otherrelevant matters. The Commission after taking intoconsideration certain criteria which are set out in their minutes made the evaluation of the performance of the candidates. 2C On 23/5/84 the Director of Secondary Education, apparently conveying theviewsof thedepartment, recommendedasthe best suitable candidateforpromotiontothesaidpostMr. P.Persianis. On 28/5/84thesame Directorclarified thatall candidates were suitable for promotion, but he considered Persianis as more 25 suitable. At the meeting of 4/6/84 the Chairman of the respondents informed the Commission thatPersianis was notinterested inthe post, as in the meantime he had been appointed Directorof the Paedagogical Institute. 30 The respondent Commission went into a meticulous examination of theservice reports of each one of the candidates. They made a comparison of them and concluded that the interested party was strikingly superior to the others in respect of thesaid reports, for thefollowing reasons:- 35 «Η υπεροχήαυτή παρουσιάζεται πιο ουσιαστική στα σημεία των εκθέσεων που αφορούν τις ιδιαίτερες ικανότητεςπου ο Γενικός Επιθεωρητής, σύμφωνα μετά 2175 StyllanldesJ. Mlchaelldes».Republic
(1987)Σχέδια Υττήρεύίας, πρέπει να έχει: Υπευθυνότητα, Συνεργασία/Σχέσεις, Διευθυντική και Εποπτική Ικανότητα, Ικανότητα Επιλύσεως Προβλημάτων και ΗγετικήΙκανότητα.» {«Thissuperiority appears moresubstantial intheitems,which 5 concernthespecial abilities, which anInspectorGeneral should have in accordance with the Schemes of Service, i.e. responsibility, cooperation/relations,managerial and supervisory ability, ability tosolveproblems andleadership»). Then follows a comparison on these items of the candidates 10 whowere ratedgenerally excellent. Havingexaminedthequalifications oftheapplicantstheyfound that Costas Mtchaelides, Efstathios Christodoulides -who were notpartiesinthese recourses - andtheinterested party,whohad one year's post-graduate study at Oxford and M. Ed. from the 15 University of Birmingham,were superiortotheothercandidates. Theydealtindepthwiththeseniorityofthecandidatesandthey recorded in their minutes the date each candidate was promotedtothepostof InspectorA- theimmediatelower post. They ultimately reachedthesubjudice decision,whereby they 20 promoted the interested party to the post of GeneralInspector Secondary Educationwith effect from 15/6/84. Thematerialpartof theaforesaid decision readsasfollows:«Η θέση του Γενικού Επιθεωρητή που είναι η ψηλότερη στην ιεραρχία τηςδημόσιας εκπαιδευτικής 25 υπηρεσίας είναι θέση με ευρείες διοικητικές ευθύνες όττως τφοκύτΗ-ει από τα Σχέδια Υπηρεσίας και ο κάτοχος της έχει τήν εποπτεία,το συντονισμό και 0Uoi-rlpaTotrofh,oh;ΤήςεργασίαςΤω>ΕττΙθεωρήΤώνκαι τη διοργάνωση καιδιεξαγωγή συνεδρίων,σεμιναρίων, 30 επιμορφωτικών μαθημάτων κλπ. Η Επιτροπή ΕκπαιδευτικήςΥπηρεσίας αφού έλαβε ϋπόψή τήν αξία, τα ττρόσοντα και την αρχαιότητα των υποψηφίων, τις υπηρεσιακές εκθέσεις, τις συσταθείςτου οικείουτμήματοςκαιTr|vεντύπωσηπου 35 αποκόμισεOttoTrjVπροσωπική ουνέντευξη(βλ*πρακτ. 22/5/84), καταλήγει στο συμπέρασμα ότι ο κ. Α. Φυλακτού παρουσιάζεται ο πιο κατάλληλος για τή 217Θ 3 C.L.R. Mlchaelldesv.Republic Stytlanidea J. θέση λαμβανομένων υπόψη και των καθηκόντων, εκθέσεων και προσόντων όπως καθορίζονται στα ΣχέδιαΥπηρεσίας. 5 10 15 20 25 30 35 Είναι γεγονός ότι οι άλλοι υποψήφιοι είναι οι αρχαιότεροι του κ. Φυλακτού, αλλά ο κ. Φυλακτού υπερέχει από όλουςτους υποψηφίους στηναξία. Ο κ. φυλακτού υπερέχει και ως προς τα προσόντα από όλους τους υποψήφιους εκτός από τους κ.κ. Κώστα Μιχαηλίδη και Ευστάθιο Χριστοδουλίδη που παρουσιάζουν κάποια υπεροχή σταπροσόντα.Αλλά έναντιαυτώντωνδύοοκ.Φυλακτούυπερέχει εμφανώς ωςπροςτην αξία. Με βάρη τα πιο πάνω η Επιτροπή Εκπαιδευτικής Υπηρεσίας αποφασίζει ομόφωνα να προσφέρει προαγωγή στον κ. Ανδρέα Φυλακτού, στη θέση του Γενικού Επιθεωρητή ΜέσηςΕκπαίδευσηςαπό 15/6/84.» («Thepostof GeneralInspectorwhich isthehighest ofthe hierarchy of thepublic educationalservice is,as itemanates from the scheme of Service, a post with extensive administrative responsibilities and its holder has the supervision, the coordinationand thesystematisation of the work of theInspectorsandtheorganisation andoperationof congresses, seminars,further educationallessonsetc. The Educational Service Committee having taken into consideration the merit, qualifications and seniority of candidates, theservice reports,the recommendationsofthe respective departmentandtheimpression from thepersonal interviews (See Minutes 22.5.84) concluded that Mr. A. Phylaktou appears tobe the most suitable candidate,inthe light of the duties, reports and qualifications as provided by theschemeof service. It is a fact that the other candidates are senior to Mr.A. Phylaktou but Mr. Phylaktou is superior as regards qualifications to all other candidates except Mr. Costas Mifhaelides and Mr. Efstathios Christodoulides, who are somewhatsuperiorasregards qualifications. Butinrelationto bothof themMr.Phylaktou isclearly superior inmerit. InthelightoftheabovetheEducationalServiceCommittee unanimously resolves to offer a promotion to Mr. Andreas 2177 Styllanides J. Mlchaelides v.Republic
(1987)Phylaktou to the post of General Inspector Secondary Education, asfrom 15.6.84.» The applicants, being aggrieved as they were not preferred, filed these recourses.Theychallenge thevalidityofthesubjudice decision on the following grounds:- 5 That the scheme of service was erroneously and unreasonably interpreted and applied. That they followed wrong procedure by infringing the provisions of s. 35 of Law 10/69 and thus acted under a misconception of law. 10 Thatthesubjudicedecision istaintedwithmisconeption of fact. They took into consideration academic qualifications which were notrequired bythe scheme of service. Thatthe inquiry was defective. Thatthe reasoning was defective. 15 Thatthey failed to take intoconsideration the long seniorityof theapplicants. That they failed to select the most suitable candidate for the post. Each applicant contends that hewasthe mostsuitable. Applicant inCase No.341/84 contends further thatthe service 20 reportsfor himwere prepared byMr.Philippides,whowas either biassed, or was probably biassed, as the present applicant had filed in the past recourses against the promotion of Philippides; thathisreportswere notpreparedbytheappropriate officer; that therespondents attributed more weight tothe interviews. 25 The post of General Inspector Secondary Education is the highestpostinsecondary education withinthecompetence ofthe respondent Commission. As it emerges from the duties and responsibilities of the post set out in the scheme of service itisa post with wide administrative responsibilities. They include 30 supervision and coordination ofthe work of the InspectorsAand B,theorganization ofconferences, seminarsetc.Theholderofthe postisinsubstance and effect theleaderofSecondary Education, subject, however, tothe Director. The appointing authority has a very wide discretion when 35 makingaselectionforapostsohighintheservice.(Frangosv. The 2178 3 C.L.R. Mlchaelidea v. Republic Styllanldea J. Republic
(1970)3 C L.R. 312; Ierides v. The Republic
(1980)3 C.L.R. 165;Similiisv. TheRepublic
(1986)3 C.L.R.608). Promotions of educationalists are governed bythe provisionof s.35ofthePublicEducationalLaw,1969 (10/69),asamendedby 5 Law53/79. The claim of the educationalists for promotion shall be considered on the basis of merit, qualifications and seniority (s. 35
(2)).Thiscorcesponds tos.44
(2)oftheCivilServiceLaw,1967, (33/67). 10 Theappointing authority,suchastherespondent Commission, has to weigh together the aforesaid considerations, bearing in mind too the performance of the candidates when interviewed, which isaprocess helpinginthe evaluation of the candidates. Without doubt undue importance should not be given to the 15 interviews. The practice of interview of the candidates for the purpose of evaluating their suitability has received repeatedly express recognition inthe case-lawofthisCourtasacoursewhichisopen tothe Commission, butwhichisnotbound toadopt inallcases.It 20 isa mode of assessing thesuitability of candidates. The process ofperformance ofcandidateswhen interviewed is a processhelpingintheevaluation ofcandidates,mainlyfrom the pointofviewofmeritand,also,toacertainextent,of qualifications aswell.{Republicv. MichaelPanayiotides, Revisional Jurisdiction 25 Appeal No. 589, p. 5, judgment delivered on 24/7/87 not yet reported.)* Undue weight should not be given to the performance at the interviews and such performance cannot be taken as a separate factor byitself.There isnothing wrong, however, inlawto attach 30 the necessary importance to them as such interviews reveal a candidate's personality and abilities which in instances as the present one are important qualities, inorder toascertain whether such candidates should be suitable in the post in question. (See perA.Loizou,J.inAndronikou andOthersv.TheRepublic, Cases 35 Nos579/85, 622/85, 693/85 judgment delivered on 5/8/87 not yet reported.)** 'Reportedin
(1987)3CLR 1081 ·*Reportedm
(1987)3CLR 1237 2179 StyHantdea J . MIchaelldeav.Republic
(1987)Anappointingauthoritywhenweighingtogetherthesaidthree criteria,laidbyLaw,inordertofind themostsuitablecandidate, may attribute such significance to them as itmaydeem proper, provided that itexercisescorrectly, inthe course of doingso,its relevantdiscretionarypowers(Georghiouv.TheRepublic
(1976)5 3C.L.R. 74;Republicv.Zachariades
(1986)3C.L.R. 852). The first complaint isthat the scheme of service waswrongly interpreted andapplied,inthesensethattheperiodofservicein the post of Inspector Ashould have increased weight, as the scheme provides amongst its qualifications at least two year's 10 serviceinthepostofInspectorA. The Court does not interfere in a case in which the interpretation and application of the scheme of service by an appointing authority wasreasonably open to it in the particular circumstances. (See Papaleontiouv. The Republic
(1987)3 15 C.L.R. 211,atp.220, where thecase-law ofthisCourt on the subject iscited.) Itisusualinpromotionpostsfortheschemeofservicetorequire thequalification ofserviceorsatisfactoryserviceforatermofyears to the immediate lower post. This does not render any special 20 weight tothe length of the period of service other than the one attributedbyLawandthejurisprudenceofthisCourt.Haditbeen otherwise,thenitwouldbecontrarytotheLawandunreasonable. Ifindnomeritinthiscomplaint. Section 35
(3)of Law 10/69, as amended by Law 53/79 25 provides that, in making a promotion, the appointing authority shallhavedueregardtotheservicereportsofthecandidatesand to the recommendations of the appropriate department of Education. TheDirectorofSecondaryEducationMr. Koullisattendedtwo 30 meetings as spokesman of the department of Secondary Education. The Head ofthedepartment, asrepresenting the department, has the duty to make an assessment of the suitability of a candidate, on consideration of all factors relevant to his merits, 35 qualifications and seniority, and then after comparing the candidatesarriveataconclusionandthiswouldbetherespective recommendation. 2180 3 C.L.R. MIchaelldea v. Republic S H * * * * * · · J. Mr. Koullis on 23/5/84 stated that he considered as the best suitable candidate for promotion to the post in question Mr. Persianisandgavehisreasonsforthis. On 28/5/84 hi clarified that he considered allthe candidates 5 suitableforpromotion,butt*ersianiswasthemostsuitableforthe reasonshegaveoh23/5/84. InthemeantimePersianisinformed,throughtheChairman,the respondentsthathewasnotinterested inthispost. it was submitted by counsel for the applicants that the 10 Commission, after thewithdrawal of Persianis,should apply for new recommendations and, as they failed to do so, this is a contravention ofLawandanerrorintheprocedure. Inthesubjudicedecisiontherespondentsstatedthattheytook intoconsideration therecommendations ofthedepartment.This 15 partofthesubjudicedecisioncannotbeinterpretedasindicating that the Commission laboured under the impression or misconceptionthattheinterestedpartywasrecommended.There is nothing in the sub judice decision indicating that the respondents laboured under a misconception. The statementof 20 Mr.Koullisof28/5/84doesnotamounttoapreference ofanyc< the remaining candidates. The description of the candidates ;s suitablefortheparticularpostisnotequatedtorecommendatioi ofanofficerforappointment,orpromotiontoapostinpreference toothers.TherespondenthadthestatementofMr.Koullisbefo.e 25 them. The sub judice decision was taken on 4/6/84 and the statement of Mr.Koulliswasmade on 28/5/84, onlyafewdays earlier. Itisnotr^andatory forthe department orthe Headthereof to makerecommendations.ThefactthatMr.Koulliswasnotcalledto 30 makeacomparison oftheothet candidates,after thewithdrawal of Persianis,isneither aviolation of the Law,noran errorinthe procedure and, therefore, this ground fails. Itcannot be validly said that the respondents laboured under a misconception, and there is no probability mat they might have laboured under a 35 misconception,thattheinterestedpartywasrecommendedbythe bepaftrrreht. QUALIFICAITONS The scheme of service does not provide specifically for academicqualifications.Therelevantpartreads:2181 StyHanldeaJ. MIchaelldeav. Republic
(1987)«Απαιτούμενα Προσόντα:
- Διετής τουλάχιστον υπηρεσία στη θέση Επιθεω ρητή Α' (μέσηεκπαίδευση)
- Ενημερότητα π ά ν ω στα εκπαιδευτικά προβλήματα και τάσεις στη μέση εκπαίδευση στην Κύπρο και σ' 5 άλλες χώρες. 3.Ακεραιότητατ ο υ χαρακτήρα, οργανωτική και διοι κητική ικανότητα, πρωτοβουλία, υπευθυνότητα και ευθυκρισία.
- Πολύ καλήγνώση μιαςτουλάχιστοα π ότις επικρα- 10 τέστερες ευρωπαϊκές γλώσσες.» («Required qualifications:
- At least two years service in the post of Inspector A (Secondary Education)
- Acquaintance with educational problems and trends in 15 secondary education inCyprus and othercountries.
- Integrity, organisational and administrative ability, initiative, responsibility.
- Very good knowledge of at least one of the main European Languages.») 20 The scheme of service for the post of InspectorArequires post graduate education in paedagogics, or in a subject relevant with the duties of the post, of at least one academic year's duration. Triantafyllides P. inAndreou v. The Republic
(1979)3 C.L.R. 379 said at p.388:«... a scheme of service prescribes only the basic requirements for appointment or promotion to a particular post. Itis open, therefore, to an appointing authority to take intoaccountany otherqualification of acandidatewhich isof such a natureas torenderhimthemostsuitable candidatefor 30 appointment or promotion; and there cannot be excluded 1 from the notion of 'the most suitable the essential consideration of how best will be served the interests of the specific branch of thepublic service in which a vacant post is to be filled.» 2182 2 5 35 3 C.L.R. . Mlchaelidea v. Republic Styllanldea J. Triantafyllides P. in Papadopouhs v. The Republic
(1935)3 C.L.R. 405 at p.441 said- 5 10 15 «As regards their qualifications there existed a manifest difference between the appellant and the two interested parties in question, in the sense that the qualifications of the appellant were by far superior to those of interested parties Loizou and Ioannou and when such qualifications, which appear to be very relevant to the duties to be performed by somebody holding the post of 'Counsellor or Consul General B\ are weighed together withthemore orlessequal merit oftheappellant and thesaidtwointerested parties, and without losing sight of the slight seniority of such interested parties, the conclusion is inevitable, in my opinion, that the appellant wasstrikinglysuperior to them.» The passage from Andreou case above was adopted by SawidesJ.inMichaeloudisv. TheRepublic
(1982)3C.L.R. 963. InSoteriadou and Others v. TheRepublic
(1983)3C.L.R.921. at pp. 943944 itwassaid:' 20 «... in promotions qualifications beyond those required by the scheme of service, which are akin to the duties of the officer and which make him moresuitable inthe carrying out ofsuch duties,should betaken into consideration.» Inhannides v. TheRepublic
(1986)3 C.L.R. 1089 atp. 1095 itwassaid:- 25 «Additional academic qualifications to those provided in the scheme of service, though they have to be taken into consideration with all other elements, do not by themselves indicate astriking superiority.» Additional qualifications to those provided in the scheme of 30 service, which are not made an advantage under the scheme, cannot be disregarded bytheappointing authority,astheyare an element for assessing the ability of the candidate in the better performance of the duties of the post. They are not a factor by themselves. They may not constitutestrikingsuperiority, but they 35 area consideration towhich regardmustbegiveninselecting the mostsuitable candidate for promotion. 2183 StyllantdeaJ. Michaalldeaν.Republic
(1987)«Strikingsuperiority» is a completely different notionfrom the notionof «thebest suitable candidate»forpromotion. The respondentsproperly evaluated thequalifications andthe diverse complaints pf the applicants are not supported by the 5 materialinthefileandthesubjudice decision. Theinterestedpartyhadoneyearpost-graduate inOxfordand further he is the holder of M. Ed. from the University of Birmingham. The selection must be made on the totality of all the 10 circumstancesbefore theCommission. It was open to the respondents to take into consideration, withoutgivingundueweight,thequalifications of theapplicant. The qualifications is one of the criteria onwhich promotionis based. Κ the Law intended that qualifications except those 15 required by thescheme of serviceshould notbe taken atallinto consideration, then the factor of «qualifications» would be meaningless. With regard to merit, the respondents went carefully intothe service reports of the candidates and they made a comparable 20 table of themorerecentservicereports,i.e.thetwolastyearsand then they singled out those items which made the candidates, having regard tothedutiesandresponsibilities ofthishighpost,as themost suitable. Both applicants and the interested party were rated generally 25 excellent. (Applicant inCase No. 341 3-4-0,8-4-0,applicantin Case No.3768-4-(\ 9-3-0andtheinterestedparty 10*2-0,11-10.) Itwas judiaTiaJaysaidthatonemarklower onemarkhigher does no*renderojnecandMntomotesuitable thantheother. 30 In TheRepublicv.Roussos
(1987)3 C.L.R. 1217 atp. 1224 it was said «... we shouldstxetf thatwhat really mattersisthe general picture presented by the overall grade inthereport, onthe basis of the aggregate effect c4the evaluations of a public offices regarding particular rateable items, and not the 35 arithmeticalformulaofhowmanytimesasregardssuchitems 2184 3 CJ-R. 5 Michaelld·» v. Republic Styllantdee J. a candidate had been rated as 'excellent' or 'verygood', or 'good'etc.» Andfurther down«...itmustnotbetostsightofthatitisdangeroustoembark onthesenumericalcomparisonsindependentlyofthenature oftheitemsinrespectofwhichanofficerisratedas'excellent' or Very good' since such items do differ in significance dependingonthequalitiestowhichtheyrelate.» Inthiscasethe respondents, havingregardtothe dutiesand 10 responsibilitiesandtherequirementsofthepost,theysingledout thoseitemswhichdepictthequalitiesthatmakeacandidatemore suitable for the performance of the dutiesof the post. Thiswas permissibleinviewofthelastlinesoftheaforecitedquotation from Roussoscase. 15 The interested party, both generally in all the Hems and particularly in those items which make the candidates more suitable, was better rated than the applicants, tt waswithin the discretionarypoweroftheCommissionintheperformance ofits duty to select the best suitable candidate for the interest of the 20 public serviceand thepubHceducationalservice inparticularto actastheydid.Theitemstowhichsignificancewasattributedgive the picture of the merits of the candidates required in the circumstancesofthiscaseApplicantinCaseNo.341/84contendsthattheservicereports 25 forhimwerepreparedbyMr.Philippides,who,eitherwasbiassed or there wasa probability of him being biassed, as the present applicant hadtileda number ofrecoursesagainst promotionsof Philippidesinthepast. Biasofoneormoreofthoseparticipatinginthedecisiontaking 30 processor affecting thematerial on which the decision isbased rendersthedecisionvulnerableonthegroundofunfairness.The servicereportsofeducationalistsreflect toaconsiderabledegree themeritofeducationalist.TheCommissionisboundtohavedue regardtothem.Therefore, ifitisprovedthatthereporting officer 35 hadpersonalanimosityorwasmotivated byextraneous factors, then,dependingonUsnatureandcircumstancesgivingrisetoit, itistakenintoconsiderationwhetheracaseofbiasisestablished. It is a basic principle of administrative law frat the organs participatinginaparticularadministrativeprocessmustappearto 40 act with impartiality and thiscannot be so when there existany 2185 StaiUnldeaJ. MIchaelldeav. Republic
(1987)special ties orrelationshipwhich admittedly related tothepersons involved insuch process. (Soteriadou and Othersv.The Republic (supra)atpp.944, 945). The lack of impartiality by public officer Aagainst public officer Β must be established, with sufficient certainty, either by facts 5 emerging from relevant administrative records or by safe inferences tobe drawn from theexistence of such facts. InChristouv. TheRepublic
(1980)3C.L.R.437,atp.449 itwas said:«... it is not, for example, sufficient, by itself, in order to 10 prove lack of impartiality of Atowards B, the fact thatA has made, in the post, inthe course of the proper exercise of his official duties, adverse confidential reports inrespect of B,or that A has otherwise expressed officially an adverse view regarding Β with the result that Β has instituted legal 15 proceedings inthisconnectionagainst A...» Thesinglefact thatapplicantMichaelidesfiled recourses against the promotion of Philippides is not by itself proof of bias. The applicant failed to discharge the burden of proof that is cast on him. Seniority was duly taken into consideration. The respondents have recorded indetail theseniority of thecandidates.They have given due weight to them, but in view of the superiority of the interested party in other respects the seniority could not tip the scales infavour of the applicants orany of them. 25 The first duty of this Court is to see whether the Authority exercised its discretionary power in conformity with the statutory provisions and the rules and requirements of administrative law generally, including good faith. So long as the Authority acted within those limits,theCourtcannotinterfere. Itcannotsubstitute 30 its own opinion as to the merits of the candidates for that of the Authority.Anadministrative Courtcannotintervene inordertoset aside thedecision regarding such selection unless itissatisfied, by an applicant in a recourse before it, that he was an eligible candidate who was strikingly superior to the one who was 35 selected, because only insuch a case the organ which has made the selection for the purpose of an appointmentor promotion is deemed to have exceeded the outer limits of its discretion and, therefore, to have acted in excess or abuse of its power, also, in 2186 20 3 C.L.R. MIchaelldeav.Republic Stvtlanftde· J. such a situation the complained of decision of the organ concerned isto be regarded aseither lackingdue reasoning oras based on unlawful or erroneous or otherwise invalid reasoning. The onus of establishing striking superiority lies always on the 5 applicant in a recourse. {OdysseasGeorghiou v.Republic
(1976)3 C.L.R. 74 at p. 83; Hjiloannou v. Republic
(1983)3 C.L.R. 1C41; Kyzas and Another v. ThePublic Service Commission
(1986)3 C.L.R. 1096. Thisrecourse hastobe determined inaccordance with thetwo 10 basic principles set out in Republic v. Zachariades (supra). First that an administrative Court does not annul a decision of an appointing authority, which, in accordance with the law applicable to, and the facts of, a particular case, was reasonably open tosuchauthority;andsecondly,thatanadministrativeCourt 15 does not, in a case of thisnature, substitute itsown discretion as regardsthechoiceofthemostsuitablecandidateforpromotionor appointmentintheplaceofthediscretionofthecompetent organ. The applicants failed to satisfy the Court that there was any misconception of fact or law. The respondents took into 20 consideration whattheywereentitledtotakeandtheydidnotfail totake intoconsideration anything theyought tohave taken. The applicants failed tosatisfy the Courtthat they are strikingly superior to the interested party, in the sense analyzed bytheFull Bench inHjiloannou v.Republic
(1983)3 C.L.R. 1041,adopting 25 apassage from Hjisawa v. TheRepublic
(1982)3 C.L.R. 76. On thetotalityofthematerialbefore metheapplicantsfailed to establish that thesubjudice decision wastakeninexcessorabuse of power. Thesubjudicedecisionwastaken after dueinquiryand itisduly 30 reasoned. On the material before them, in the exercise of their wide discretionary power, it was reasonably open to the respondent Commission to take the sub judice decision for the promotionof the interested party as the most suitable candidate to the post in 35 question.. 2187 Stytlanldee J. MIchaelldea v.Republic
(1987)Foralltheforegoing reasonsilie&e:tucjui^'S fail.Thesubjudic** decision isconfirmed under Article 146.4(a) ofthe Constitution. Letthere be no orderas tocosts. Recourses dismissed. No orderastocosts. 2188 5