clr/1987/1987_3_597.pdf

(1984)3 C LR 1133 the respondent Commission reconsidered thematterandpromotedtothesaid post Andreas Mavrogenis andCosmas Sosilos Hence the present recourse challenging the validity of the decision to promote thetwo interested parties Mavrogenis and Sosilos 20 In reconsidenng the matter the respondent Commission ignored completely the views of the Director-Generalof the Ministry of Commerce andIndustry,which thelatterhadexpressed ontheoccasion,whichledtothe aforesaid promotion of the applicant and Mavrogenis, on the ground that such views were in conflict with the views expressed by the same person before theDepartmentalBoard 597 HjiParaskevas v. Republic

(1987)Held, dismissing the recourse-

(1)The respondent Commission was dutybound to comply with thejudgment ofthis Court in Sosilosν The Republic, supra andhad todecide thematteron thefactsandthelaw asthey existed on 14 2.83, that is on the datewhen the annulled decisionwas taken. In thelight of theabove andof thecontents of thejudgment in Sosilos' case, the 5 respondent Commission nghtly ignored the views of the Head of the Department

(2)Itappears that all the materia!asto the qualificationsand experience of the applicant were before the respondent Commission and, therefore, applicant's complaint that theCommission did not have beforeitacomplete 1 0 picture of his qualifications and experience cannot beaccepted

(3)As regardsapplicant's contentionthat theapplicant isstrikinglysuperior to Sosilos. the answer is to befound in Sosiloscast' «tipra. at page. 1135 (4} Applicant's submission that the respondent Commission might have been influenced by the fact that in its minutes of 11.7.85 Sosilos was 1 5 described as-excellent» in respect of 1982, whilst he should have been classified as«verygood» cannot be accepted,because in view ofthe matenal before the Court itisobvious thatthe letter«E» (which means Excellent)inthe said minutes isa clencal mistake.

(5)In the light ofthe judgment inSosilos' case, supra, and the material 2 0 before theCommission thisCourt isofthe opinion that the applicant failedto establish astnkingsupenonty over interested party Mavrogenis.

(6)When an administrative organ,such as the Public Service Commission. selects a candidate on the basisof comparison with other candidates,it isnot necessary to show, inorder to justify the selection, that the appointee was 2 5 strikingly supenor to the others On the other hand, an administrative Court does not intervene with a promotion, unless satisfied by an applicant in a recourse before it,that such applicant was an eligible candidate stnkingly supenor to the others The expression «stnking supenonty- was expounded in HadjiSavva v. The Republic

(1982)3 C.L.R. 76 Theapphcant 3 0 in thiscase failed to prove such supenonty Recoursedismissed. No order as to costs Casesreferred toSosilos v. The Republic

(1984)3C.L R. 1133; Georghiou v. The Republic

(1976)3 CL.R. 74; HadjiSawa v. The Republic

(1982)3 CL.R76, Hadjiloannou v. The Republic

(1983)3C.L.R. 1041. 598 •3 5 3 C.L.R. HjiParaskevas v. Republic Recourse. Recourseagainstthedecision ofthe respondenttopromote the interested partiestothepostof Senior Commercial Officer in the Ministry of Commerce and Industry in preference and instead of 5 the applicant. E.Lemonaris, for the applicant. A. Vladimirou, forthe respondent. Cur.adv. vult. K0URR1SJ.readthefollowingjudgment.Theapplicant,bythis 10 recourse, challenges the validity of the decision of the Public Service Commission to promote the interested parties, Andreas MavrogenisandCosmasSosilostothepostofSenior Commercial Officer, Ministry of Commerce and Industry, as from 1st March, 1983, inpreference toand instead ofthe applicant. 15 Historyofthe proceedings The respondent Public Service Commission decided on 14/2/ 1983 to promote the applicant and Andreas Mavrogenis to the post of Senior Commercial Officer in the Ministry of Commerce and Industry. This decision was challenged before the Supreme 20 CourtbyCosmasSosilos.BythejudgmentoftheSupreme Court, delivered on 31st October, 1984, thepromotion of the applicant and of Andreas Mavrogenis to the post of Senior Commercial Officer, was annulled (Vide Cosmas Sosilos v. The Republic

(1984)3C.L.R. 1133).Asaresultofthejudgmentofthe Supreme 25 Court, the Public Service Commission by letter dated 6th November, 1984, emplaced the applicant and his colleague Andreas Mavrogenis to the post of Commercial Officer, Grade «A»,thepostwhichtheyheld before their promotion. The Public Service Commission considered the matter at its 30 meetingof 11/7/1985inthelightofthejudgment ofthe Supreme Court inthe aforesaid recourse and took alsointoaccounta letter dated 29/3/85 written by a counsel for the Republic advising the Public Service Commission on the course to be followed in reconsidering the matter of the promotions to the post of Senior 35 Commercial Officer. Counsel for the Republic advised the respondent Authority to disregard the recommendations of the Director-General oftheMinistryofCommerce andIndustrywhile reconsidering the matter because of conflicting views expressed 599 Kourris. J . HjlParaskevas v. Republic

(1987)before the Departmental Board and the Public Service Commission. Itappears that the respondent Commission complied with the advice of counsel for the Republic and while reconsidering the matterat itsmeeting of 11/7/1985,ignored completelytheviews 5 and recommendations of the Director-General which he expressed when the applicant and Andreas Mavrogenis were promoted to the post of Senior Commercial Officer and their appointment was the subject of the recourse No. 118/83. The Public Service Commission promoted to the post of Senior 10 CommercialOfficer theInterestedPartiesinthisrecourse, namely, AndreasMavrogenisand CosmasSosilos. Legal Grounds The recourse isbased on the following groundsof law:1)Respondentsfailed intheirparamountdutytoselectthebest 15 candidate and thus, have acted contrary to s. 44

(2)of the Public Service LawNo.33/67. 2) Respondents failed to carry out due inquiry for ascertaining material facts. 3) Respondents acted under a material misconception of the 20 relevant facts, i.e. the interpretation of the relevant scheme of service and the materiality of applicant's post-graduate qualifications inregardtotheproperconstruction oftheschemeof service and 4) Respondents' decision is not duly reasoned and/or the 25 reasoningbehind same iswronginlawand/or defective. Failure tohear the viewsof theHead of Department Counsel for the applicant in his meticulous written address attacked the respondent Authority for its failure to hear the Director-General of the Ministry of Commerce and Industry 3 0 beforeeffecting thepromotionsinquestion.Hesaidthatbys.44{3) of the Public Service Law No.33/67, itismandatory to hear the recommendations and views of the Head of Department and failuretodosowasnotpermissibleandwasaflagrantviolation ofthe express provisions of s.44

(3)of the Law; such course was not 3 5 permissibleandthecourseadoptedandfollowedbytherespondent 600 3 C.L.R. HjiParaskevas v. Republic Kourris, J. AuthorityiscontrarytoLawandinabuseofpowers.He submitted thattherespondentAuthorityoughttohearthe recommendations andviewsofthe Head ofDepartment concerned and iftherewere anycontradictionsinthestatementsoftheDirector-General before 5 theDepartmentalBoardandtherespondentAuthority,theyshould have been cleared by inquiry. He contended that the respondent Authority could departfrom therecommendations ofthe Headof Department after giving strong reasonsbut they could not ignore himaltogetherbynothearinghisviewsatall. 10 There isno dispute astothe provisionsofthe Lawreliedon by learnedcounselfortheapplicant,but,Ithink,inthe circumstances of this particular case, rightly the respondent Authority did not heartheviewsoftheHead ofDepartment inviewofthe contents ofthejudgmentintheSosiloscase(supra).ThelearnedtrialJudge 15 in the Sosilos case said that the Head of Department gave conflicting views before the Departmental Committee which he chairedandbeforethePublicServiceCommissionandhealsohas been misleading astotheperformance ofSosilosduringthe year of 1982 and considered him tobe unreliable. 20 AstherespondentAuthoritywasduty-boundtocomplywiththe judgment of the Court and as they had to decide about the promotions on the facts and on the Law, as it existed on 14/2/ 1983, rightly they did not hear the views of the Head of Department and disregarded his views he expressed before the 25 respondentAuthoritywhentheydecidedtopromotetheapplicant on 14/2/1983becausethetrialCourtinthecaseofSosilos(supra) saidthathisrecommendations werecontradicting, illfounded and wereapttomisleadtherespondentAuthorityinmaterialrespects. Inow propose to deal with the complaint of the applicant that 30 the respondent Authority failed tohold a proper inquiryand that they acted under a misconception ofmaterial facts. Counsel for the applicant contended that itwas clear from the materialon recordthattherespondentAuthority failedto embark on the necessary inquiryforclearingambiguitiesand ascertaining 35 the merits of each one of the candidates. He submitted that the respondent Authority failed to hold the necessary inquiry to determine the experience and relevancy of the candidates' qualifications in relation to the duties of the post to be filled and that their failure to recall the Head of Department and hear his 601 Kourris J. HjiParaskevas v. Republic

(1987)views on the experience of the candidates and the relevancy of their academic qualifications renders their decision void and contrary tolaw for lack of the necessary inquiry inasmuch as they acted on a misconception of material facts. Hewent ontosay that hadthese facts been properly ascertained,thescaleswould turnin 5 favour of the applicant on the totality of the relevant criteria. Further, the applicant sworn an affidavit on 4/4/1987 and in paragraph 8 he states his qualifications and experience. During the hearing of this case the applicant adopted the contentsof hisaffidavit andwas cross-examined bycounsel for the 10 respondent. The complaint of the applicant is that the Public Service Commission in reaching theirdecision did not have before them the complete picture of his qualifications andexperience relevant to the post in question. 15 Ido notagree with thissuggestion because all thattheapplicant stated in his affidavit and oral evidence are contained in his personal file. Exh.2,and inthefile of theconfidential reports,exh. 1, and particularly in red 53 and red 53Γ of Exh. 2 which is an application by the applicant for the appointment as a Directorof 20 Industry in the Ministry of Commerceand Industry dated 12/11/ 1982 and in the accompanying letter of the Director-Generalof the Ministry dated 19/11/

1. Also, the qualifications and experience appear in reds 64 and 66 of Exhibit 2 which is an application by the applicant for the appointment as Director of 25 Trade dated 8/10/1983 and the accompanying letter by the Director-General dated 14/10/1983 respectively. Also, his experience andqualifications appearintheConfidential Reportof 1982 (See exh. 1). Thus, itappears thatall thematerial as tothequalifications and 30 experience of theapplicantwerebefore therespondent Authority when they took thesub judice decision. Iam of the opinion thatthesubmissions of learned counsel for the applicant are untenable. Itappears from the minutes of the meeting of the respondent Commission, Appendix 5, that the 35 Commission made a due inquiry and it examined not only the confidential reports for 1982 but also the confidential reports of the five years prior to
2. They also made inquiry as to the additional qualifications of the candidates under the relevant scheme of service. 602 3 C.L.R. HjiParaskevas v. Republic Kourris J . Lastly, counsel for the applicant attacked the decision of the respondent Authonty thatthey failed toselect thebest candidate He contended that the applicant was strikingly superior to the Interested Parties having regard to merit seniority qualifications 5 and experience He contended that the applicant as compared with Interested Party Cosmas Sosilos is that the applicant is better than the said appointee He said from 1974 till 1982 applicant s confidential reportsarebetterthan thoseof Mr Sosilos, particularly for the year 10 1982 applicant's confidential report isstrikinglybetter than thatof Mr Sosilos Both candidates he went on to say have post graduate qualifications but theapplicant's qualifications are more pertinent to theneeds of thepost having regard tothe fact thatthe applicant did his thesis on the marketing of agricultural produce 15 and his experience in the Ministry of Commerce and his specialisation on themarketing of agricultural produce makes him a moresuitable candidate ascompared with Sosilos He submitted that on the totality of the relevant criteria, the applicant was strikingly superior to Sosilos 20 25 30 35 40 With regard tohereinabove argument theanswer istobe found inthejudgment of theSosilos(supra)where thelearnedtnal Judge at ρ 1135 had thistosay «Considering the report of the Departmental Committee and comments made therein in relation to the candidates, together with their service record that was made available to the Committee the applicant emerged objectively as the candidate with the highest claims to promotion The assessment made of hisservices intheconfidential reports for the two preceding years, cited by the Departmental Committeeisindicative of hisabilities andvalueofhisservices over the two years, was better than that of Mr HadjiParaskevas and equal, if notmarginally better, tothatof Mr Mavrogenis Moreover the applicant had supenor qualifications to, at least, one of the interested parties, Mr Mavrogenis, being the holder of a post-graduate degree, an advantage inaccordance with therelevant scheme of service Thefact thathewas senior tobothInterestedPartiessealed his claim to supenonty over the two Interested Parties on each one of thethreescores specified by theLaw asmatenalfor the determination of thesuitability of a candidate for promotions 44

(2)- 33/67» 603 Kourrii J. HjiParaskevas v. Republic

(1987)With regard to the confidential report for the applicant for the year 1982 the learned trialJudge had thistosayat p. 1136:«Itmust be noted thatthe confidential reportsonthe value of the services for the parties for the year 1982 were not before the Commission. Now. the confidential report for the 5 applicant fortheyear 1982isavailableaswellasthoseofthe interested Parties and far from supporting the assessment made by Mr. Erotokritos of the value of his services for the year 1982,thereporttendstocontradicthisviews.Itisworthy ofmention thattheReportingOfficer certified thattheoverall 10 performance of the applicant was excellent. Certainly, the confidential report of the applicant for the year 1982 is at leastasgood as thatofMr. HadjiParaskevas.» Further, it appears that the respondent Authority took into consideration the confidential reports for the five years prior to 15 1982 and considered them for comparison purposes before they reached thesubjudice decision. Counsel for the applicant took up the point that in page 9 of Appendix 5 which are the minutes ofthe respondentAuthorityof 11/7/85, that the interested Party Sosilos in 1982 isclassified as 20 «excellent» whilst he should be classified as «very good» having regard to his rating. He said this might have influenced the respondent Authority inreaching their decision. I do not think that the respondent Authority overrated the interested party Sosilos because it is obvious that the letter «E» 25 which means «excellent» is a clerical mistakebecauseatpage 10 of thesameAppendix, Sosilosisratedas«verygood»fortheyear 1982.Thatthisisaclerical mistake itisobviousfrom thefact that Sosilosisratedwithten «verygood»andtwo«excellent»whichhis rating should be «very good». Furthermore, the confidential 30 reportswerebeforetherespondentAuthorityandintheyear 1982 israted «verygood» with ten «verygood» and two «excellent»,in these circumstances Ido not thinkthattherespondent Authority acted under a misconception of fact. Consequently, it appears that in view of the judgment in the 3 5 Sosilos case and the material the respondent Commission had before them, they could not, but decide that Sosilos was better than the applicant and, in the circumstances, it was reasonably open tothe respondent Commission toreach thedecision which they did. 604 40 3 C.L.R. HjiParaskevas v. Republic Kourris J. Now.with regard to the Interested Party Andreas Mavrogenis, counsel for the applicant contended that the applicant had seniority over the said appointee, better experience and postgraduate qualifications which according to the relevant schemes 5 of service,should be considered asadvantageous. He conceded, however, that the confidential reports of Mavrogenis are better than those ofthe applicant but hesubmitted that on thetotalityof the relevant criteria the applicant was strikingly superior to the Interested Party Mavrogenis. 10 15 In the hereinabove passage from the judgment of the Sosilos case, the trial Judge made a finding as to the assessment of the services of the candidates. At page 1136 he said, referring to Sosilos,as follows:«The assessment made of his service in the confidential reportsforthetwoprecedingyears,citedbythe Departmental Committee isindicativeofhisabilitiesandvalueofhisservices over the two years, was better than that of Mr. HadjiParaskevas and equal, ifnot marginally bettertothatof Mr. Mavrogenis.» 20 Thus, his finding was, that, having regard to the confidential reports of the two years that Sosilos was better than HadjiParaskevas, the applicant in the present case, and equal,if notmarginallybettertoMr.Mavrogenis,theotherInterested Party in the present recourse, the inference being that Mavrogenis was 25 alsobetter than HadjiParaskevas. Itiswellsettled that when an organ, such asthe PublicService Commission, selects a candidate on the basisof comparison with others, itisnot necessary toshow, inordertojustify his selection, that hewasstrikinglysuperior tothe others.Ontheotherhand an 30 Administrative Court cannot intervene in order to set aside the decision regarding such selection unless it is satisfied by an applicant inarecourse before it,that he wasan eligible candidate whowasstrikinglysuperior tothe one whowasselected, because only insuch acasethe organ whichhasmade theselection for the 35 purpose of an appointment or promotion, is deemed to have exceeded the outer limitsof itsdiscretion and, therefore, to have acted inexcess or abuse of itspowers (Vide Odysseas Georghiou v. TheRepublic

(1976)3 C.L.R. 74, atp.83). The expression of «striking superiority» was expounded in the 40 caseofHadjiSawa v. The Republic

(1982)3C.L.R. 76where the 605 Kourris J. HjiParaskevas v. Republic

(1987)Court at ρ 78 stated as follows · «As the expression 'striking superiority' suggestsa party's superiority to validate an allegation of thiskind,mustbeselfevident and apparent from a perusal of the files of1 the candidates Superioritymustbe of sucha natureastoemerge 5 on any fact of the combined effect of the merits, qualifications and seniority of the parties competing for promotion in other words it must emerge as an unquestionable fact, so telling as tostrike oneat first sight » (See also Hajiloannou ν The Republic

(1983)3 CLR 1041) 10 Inview of thejudgment of theCourtmtheSosilos case (supra) and in view of the totality of the material the respondent Commission had before them. I am of the opinion that the applicant failed to establish that there existed striking supenonty 15 over the Interested Party Mavrogenis, or indeed any of the Interested Parties,as to lead tothe conclusion thatthe subjudice decision was taken inexcess orabuse of power Tosum up,having taken inthepresentcase, intoconsideration every relevant factor and having duly weighed all that has been 20 put forward by counsel on both sides, I am of theopinion that the respondent Commission in promoting the Interested Parties has exercised its relevant discretionary powers in a proper manner which was reasonably open to it on the basis of all relevant matenalbefore it,andtherefore,therecoursehastobedismissed 25 Forthesereasonstherecourseisdismissed butwithnoorderfor costs Recourse dismissed No orderas to costs 606