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3 C.L.R. 1987 May9 [MALACHT05 J ] INTHE MATTER OFARTICLE 146OF THE CONSTITUTION, GEORGEPIERISANDOTHERS, Applicants, ν THE REPUBLIC OFCYPRUS, THROUGH THE PUBLICSERVICE COMMISSION, Respondent (CasesNo 184/80,190/80 & 243/80) Public Officers — Promotions — Striking supenonty — Applicant betterin ment, butjunior tointerestedparties— In thecircumstancesstnkingsupenonty was notestablished 5 10 Administrative Law — Misconception of fact — Promotions of Public officers — Commission laboured under the erroneous impression that the interested partiesweresenior to applicant — Ground of annulment Public Officers—Semonty—The PublicServiceLaw 33/67 Section 46asitstood pnor to itsamendment by Law 10/83— In calculatingsentonty the relevant date is die date of the substantive appointment and not the date of secondment toapost By means of these recourses the applicants impugn the decision to promotetheinterestedpartiestothepostofAdministrative Officer, 1stGrade 15 20 Applicant in Recourse 184/80 complains that the Commission attached undue weight to the semonty of interested party NissioUs,acted contrary to therecommendations ofthe Head of the Department by promotinghinr-and that,vis-a-vis, theotherinterestedpartiesapplicants'semontyhadtoprevail ApplicantinRecourse 190/80arguedthatthesemontyofinterestedparties Nissiotis and Georghiou ought not to have prevailed asthe applicantwas better in merit and that as regards the other interested parties the Commissionlabouredunderamisconceptionoffact,becauseapplicant was consideredas juniortothem,whilstshewasin facttheirsenior Inrespectof the last complaint counsel for the respondent argued that suchinterested partieswere in factseniortotheapplicantbecausethey hadbeen seconded to thepostofAdministrative Officer,2ndGrade,before the applicant 823 Pieris &Others v. Republic

(1987)Finally, applicant in Recourse 243/80 adopted the genera! grounds put forward bytheapplicant inRecourse 184/80. Held, annulling the sub judice decision in part· (A)As regards Recourse 184/80: The applicant failed to establish striking supenonty to Nisstotis (Demosthenousv.TheRepublic
(1973)3CLR 354atp 363adopted).The Commission gave special reasons for not following therecommendationsof theHeadoftheDepartment;they,also,gavespecialreasons,fordisregarding applicant's seniority over three of the interested parties Generally the promotionoftheinterested partieswasreasonablyopentotheCommission. 5 (B) As regards Recourse 190/80:
(1)Applicant was better in ment than 10 interested pariesNissiotisand Georghiou,but sheisjuniortoboth ofthemby 3 years and 3 months as regards Nissiotis and 2 years and 9 1/2 months as regards Georghiou. Applicant has more or less equal qualifications to Nissiotis.Georghiou hasbetterqualificationstoapplicant.Inthelightofthese facts the Court reached the conclusion that applicant failed to establish 1 5 strikingsuperiority overthese twointerested parties.
(2)In accordance with section 46 of Law 33/67 as applicable at the time whenthesubJudicedecisionwastaken,i.e.before itsamendmentbyLaw10/ 83,therelevantdate,when calculatingsemonty, isthedateofthesubstantive appointmenttoapostand notthedate ofsecondment thereto. Itfollowsthat 2 0 as the applicant was in fact senior to the other interested parties, the latters promotion would be annulled formisconception of fact. (C)Appliant in Recourse 243/80 failed to establish stnking superiority over theinterested parties. Subjudice decisionannulledin 25 part.No orderastocosts. Casesreferredto: Demosthenous v.TheRepublic
(1973)3C.L.R.354; Tourpekiv.TheRepublic
(1973)3 C.L.R.592; 77ieRepublic v.Koufettas
(1985)3C.L.R.
  1. 30 Recourses. Recourses against the decision of the respondent to promote the interested parties to the post of Administrative Officer, 1st Grade,inpreference andinsteadoftheapplicants. Chr.Tnantafyllides, for applicants in Cases Nos. 184/80 and 35 190/
  2. 824 3 C.L.R. Pieris &Others v. Republic P.Pavlou, for applicant inCase No.243/
  3. R. Gavrielides, Senior Counsel of the Republic, for the respondent. 5 M. Christofides, for interested parties in Cases Nos. 184/80 and 190/
  4. MALACHTOS J. read the following judgment. In these three recourses, which were heard together as they attack the same administrative decision, the applicants seek a declaration of the Court that the decision of the respondent to promote the 10 interested partiesto the post ofAdministrative Officer, 1stGrade, as from the 15th April, 1980, which was published in the official Gazette on 10th May, 1980, instead of the applicants, isnull and void and of no legal effect whatsoever. The factual background totheserecourses, sofaras relevant, is 15 briefly as follows: The Acting Director-General of the Ministry of Finance, by letters dated 9.2.80 and 1.3.80, requested the respondent Commission for the filling of 7posts ofAdministrative Officer, 1st Gradeandalsotwomorepostswhichwouldbevacatedasaresult 20 oftwopromotions tothe post ofSeniorAdministrative Officer. As the said post was a promotion post the respondent Commission dispatched to the Chairman of the Departmental Board a list of the candidates for promotion, their personal files and confidential reports and the relevant scheme ofservice. 25 The views and recommendation of the Departmental Board were senttothe respondent Commission bywhich30 candidates were recommended in alphabetical order, including the applicants and the interested parties. The respondent Commission metonthe28.3.80andheard the 30 viewsand recommendations ofthe DirectoroftheDepartmentof Personnel. It further met on the 3.4.80 and on that date it considered the merit, qualifications and experience of the candidates on the basis of their personal files and confidential reports, the conclusions of the Departmental Board and the 35 recommendations ofthe Directorofthe Department of Personnel anddecidedthatthefollowing candidateswereonthewhole,the best and promoted them as hereinafter stated:
  5. Georgiou Odysseas with effect as from 1.8.79, and
  6. Anastassiades 825 Malachtos J. Pleris &Others v.Republic
(1987)Georgios,
  1. Georgallides Costas,
  2. Georghiou Andreas,
  3. Efpraxias Spyros,6.IoannouChristakis,7.LazarouXenophon,
  4. Mantovani Andreas,
  5. Nissiotis Omiros,
  6. Pantelides Charalambos and
  7. Andreas Pateras, with effect as from 15.4.
  8. 5 Asagainst the above decision the present recourses were filed as follows: Applicant in Recourse No. 184/80, Georgios Pieris as against interested partiesNos.3 , 4 , 5 , 6 , 9 and 10butsubsequently inthe course of the hearing,withdrew hisrecourse asagainst interested 10 partiesNos.5 and
  9. Applicant Kika Gava filed Recourse No. 190/80 as against all persons promoted but subsequently withdrew it as against interested partiesNos.2,5, 6,7,8,and 11andproceeded onlyas against interested party Nos. 1,3, 4,9 and
  10. 15 Applicant in Recourse No. 243/80 Costas Stavrou filed his recourse against the promotions of interested parties Nos. 2,3,4, 6, 7,8,10 and
  11. Itwasarguedonbehalf oftheapplicantinRecourseNo. 184/80 that the respondent Commission by preferring interested party 20 No. 9,
  12. Nissiotis, on whose seniority undue importance was given, failed in its primary duty to select the best candidate. Moreover, itacted contrary tothe recommendations ofthe Head of Department by selecting this interested party who was not recommended. And as regards the otherthree interested parties, 25 it was contended that since they were more or less equal, the applicant'sseniorityshould haveprevailed. Asregardsmerit,heis more or lessthe same as the interested parties, except interested party No. 9Nissiotis,from whom he isbetter. Asregards qualifications, interested parties 3 and 4 are better and heismore orlessthesameasinterestedpartiesNos.9and
  13. He isjuniortointerestedpartyNo.9Nissiotis,byover3yearsand he isseniorto interested parties3,4 and 10bytwo weeks. In the sub judice decision special reference is made for not adopting the recommendations of the Directorof Personnel and for disregarding the applicant's seniority over three of the interested parties, even though Iwould consider such seniority to be too negligible tobe taken into account. 826 30 35 3 C.L.R. Pieris &Others v. Republic Malachtoa J. Asregardsinterested party Nissiotis,whowassenior, I find that the applicant failed to establish that the respondent Commission failed initsdutytoselect the mostsuitable candidates forthe post inquestion. See Demosthenous v. TheRepublic (197?) 3 C.L.R. 5 354 atp.363where itisstated that: 10 15 «Itshould beobserved thatwiththeexception of interested partyNo.3whohasthesameyearsofserviceastheapplicant, the other two interested parties have seniority over him. The case, therefore, rums on the selection of the candidate most suitableforthepostinquestionandinparticular-senioritynot being a factor in favour of the applicant - whether the applicantuponwhomtheburdenofproof lay,had discharged same byestablishing thathe had strikingsuperiority over the interested parties which was disregarded and so the sub judicedecision shouldbeannulled ashavingbeen reached in excess or abuse of power, mere superiority not being sufficient to lead to tbe conclusion that the appointing authoritieshave soacted.» Generally, I would consider that itwas reasonably open to the 20 respondent Commission toprefer theinterested partiesinsteadof this applicant who has failed to establish any striking superiority overtheminorderthatannulmentofthesubjudicedecisionmight be justified. Iam, therefore, of the viewthat thisrecourse should fail. 25 On behalf of applicant in Recourse No. 190/80, itwas argued that as regards interested parties Nos. 1, O. Georgiou, and
  15. Nissiotis, undue weight was given to their seniority which ought not to have prevailed since she wasbetter inmerit. Itwas further arguedthatasregardsinterestedpartiesNos.3,Georgallides,4.A. 30 Georghiou and
  16. Har. Pantelides, she issenior, therefore, the sub judice decision was reached under a misconception of fact sinceitisstatedtherein thattheinterested partiesareseniortothis applicant. As regards Georghiou and Nissiotis, she is indeed better in 35 merit,qualifications shehasmoreorlessthesameasNissiotis, but Georghiouhasbetterqualifications. Finally,Nissiotisisseniorby3 yearsand 3 months and Georghiou by2 years and 9 1/2 months and wasalsorecommended for promotion. This applicant, in respect of these two interested parties, has 827 Malachtos J. Pieris &Others v. Republic
(1987)failed to establish any striking superiority and I find that it was reasonably open topromote them instead of her. Asregards, however, interested parties Nos. 3, 4 and 10, asit transpiresfrom aperusal oftheirpersonal files,which were before the respondent Commission, they were not in fact senior to the applicant asisstated inthesubjudice decision. Itisstated therein: «....theCommissiontookseriouslyintoconsideration thatthesaid employee isjuniortoMr.Nissiotisand toallemployeeswhowere recommended » 5 The applicant and these three interested parties were all 10 promoted to the permanent post of Administrative Officer, 2nd Grade, on 15.7.71 and to the immediately lower post, that of Administrative Officer, 3rd Grade, as follows: the applicant on 1.2.66 (her seniority to reckon as from 1.5.62), interested party No. 3 on 1.1.67 and Nos. 4 and 10 as from 1.8.66. Itisevident, 15 therefore, that even for a few months, she issenior to them and thatthesubjudicedecisionwasreached underamisconceptionof fact and must, consequently, beannulled inrespectofthese three interested parties. Counsel for the respondent in his address claimed that applicant was indeed junior, these interested parties 20 having been seconded to the temporary post of Administrative Officer, 2ndGrade,before her.Thismaybeso,butinaccordance withsection 46 ofthe PublicService Law, 1967,Law33of 1967, asapplicable on the date when thesubjudice decision wastaken, the relevant date is that of the substantive appointment or 25 promotion, secondment not altering the substantive status of an officer. (See Tourpeki v. The Republic
(1973)3 C.L.R. 592 atp. 599 and The Republic v. Koufettas
(1985)3 C.L.R. 1950 at p. 1959-61). Subsequent to the sub judice decision, the law was amended by Law 10/83, section 5and secondment now istaken 30 intoconsideration when calculating seniority. This recourse, therefore, should partially succeed as regards interested parties3,4 and 10. Finally,in Recourse No.243/80 the addressmade on behalf of applicant in Recourse No. 184/80 was adopted on the general 35 legalpoints. Briefly thisapplicant, though wasseniortoallinterestedparties, was, however, inferior in merit and qualifications. He was not recommended by the Director of Personnel Department being 828 3 C.L.R. Pieris & O t h e r s v. R e p u b l i c Malachtos &. considered by him as inferior to the others as regards merit and that he lacked academic qualifications. In the circumstances, therefore, Ifind that thisapplicant isnot even superior, let alone strikingly superior, over the interested parties and, therefore, his 5 recourse fails. Forthe reasonsstated above, Recourse Nos. 184/80 and243/ 80failandareherebydismissed.RecourseNo. 190/80 failsandis dismissed as regards interested partiesNos. 1and9 but succeeds as against interested parties 3, 4 and 10, and an Order is made 10 varying the subjudicedecision accordingly. On the question ofcostsImake no Order. Sub judice decision partlyannulled. No order astocosts. 829

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