(1988)1988 February12 [LORIS,J.] VTHEMATTER OFARTICLE 146OFTHE CONSTITUTION EPIKTITOS PAPACONSTANTINOU, Applicant, v. THEREPUBLICOFCYPRUS,THROUGH THEPUBLICSERVICECOMMISSION, Respondent. (CaseNo. 834/85). PublicOfficers—Promotions—Merit—RecommendationsofHeadofDepartment—Anelementconcerningmerit. PublicOfficers—Promotions—Qualifications—Additionalqualifications, not envisagedasanadvantageintheschemeofservice—Weight. PublicOfficers—Promotions—HeadofDepartment—Recommendationsof— ComplaintofinfluencingCommisssioninanunwarrantedmanner. PublicOfficers—Promotions—Striking superiority—A sine qua non element for interferingwithdecision. PublicOfficers—Promotions—Merit—Better rating inonerateable item— Doesnotofitselfestablishstrikingsuperiority. JQ TheapplicantchallengesthedecisionoftherespondentPublicService Commission topromote,instead of him,tothepost of Land Officer 1st Grade,(Chartography/Photolithography), intheDepartmentofLandsand Surveys,theinterestedparty. Counselfor theapplicantarguedthattheapplicantwassuperiortothe 15 interestedpartyinmeritandqualificationsandthatthe"technical"seniority of one yearof the interested party over theapplicant should not tilt the scalesinhisfavour. 260 5 3 C.L.R. 5 Papaconstantinou v. Republic Hefurther argued that theDirector of theDepartment by stressing that theinterested party hadattendeda twoyears'courseinPhotolithography in England andby notreferring,also,tothefact thattheapplicant had attended a course inChartography and thathepossessed a Law Degree,had influenced theCommission inanunwarranted manner. Held,dismissing therecourse:
(1)The Director of theDepartment had rightlyreferred totheaforesaid qualification of theinterested party asareason for recommending him, because his certificate of attendance to such course was clearly related with hissuitability for promotion to thepost of LandOfficer 1stGrade (Chartogarphy/Photolithography). 10
(2)TheCommission was well awareof thequalifications of theapplicant,and, therefore, itcannot beaccepted that it was influenced inan unwarranted mannerin thisrespect.
(3)Theapplicant isbetterrated inonerateableitem,for each particular year;thiscannotestablish striking superiority. 15
(4)Theapplicant has morequalifications than theinterested party, but suchqualifications are notenvisaged by therelevantschemeof service as anadditional advantageanditiswell settledthatsuchqualifications do not indicatebythemselvesa striking superiority. 20 2^
(5)The seniority wasnot thedecisive factor, butwasweighed together with themerit,qualiOcations and therecommendations of theHead of the Department, thelatterbeingamostweightyconsideration affecting merit.
(6)Theapplicant failed toestablish "striking superiority"overtheinterestedparty. Recoursedismissed. No orderastocosts. Casesreferredto: HjiSawa v.Republic
(1982)3C.L.R.76; HadjiGeorghiou v.Republic
(1977)3C.L.R.35; 3Q Cleanthous v.Republic
(1978)3C.L.R.320; Hjiloannou v.Republic
(1983)3C.L.R.1041. 261 Papaconstantinou v. Republic
(1988)Recourse; Recourseagainst thedecision of therespondenttopromote the interested party to the post of Land Officer 1st Grade (Chartography/Photolithography) inthe Departmentof Lands and Surveysinpreference andinsteadof theapplicant. 5 A. Pandelides, for the applicant. R. Gavrielides, Senior Counsel of the Republic, for the interested party. X. Xenopoulos, for theinterested party. Cur. adv. vult. LORIS J. read the following judgment. By means of the present recourse the applicant challenges the decision of the respondent Public Service Commission to promote,instead of him, to the post of Land Officer 1st Grade, (Chartography/ Photolithography),intheDepartmentof LandsandSurveys, the interestedparty L.Telemachou. As the post concerned is a promotion post, a Departmental Committee was constituted, under section 36 of the Public Service Law, 1967 (Law 33/67), which met on 17 May, 1985 and recommended for promotion, in alphabetical order four candidates,including theapplicantandtheinterestedparty. Therelevant meetingof therespondentCommission was held on 21 June 1985, in the presence of the Director of the Department of Lands and Surveys Mr. A. Loizides, who recommendedfor thepromotiontheinterestedparty. TheCommission having consideredallrelevant materialplaced before it, on the basis of the established criteria as a whole, notably merit,qualifications andseniority andhaving takeninto account the recommendations of the Head of the Department 262 - Λ 3 C.L.R. Papaconstantinou v.Republic Loris J. decided that theinterested party wasthemost suitable candidate andpromoted himasfrom 1 July 1985. 5 10 25 20 25 OQ In challenging the said promotion counsel for the applicant submitted that the Commission failed in its paramount duty to select thebestcandidate, inthattheapplicant wassuperiortothe interested partyinmeritandqualifications andthatthe "technical" seniority of one year of the interested party over the applicant should nottilt thescalesinhis favour. He further argued that the Director of the Department by stressing thattheinterested party had attended atwoyears'course in Photolithography inEngland and by notreferring, also,to the fact that theapplicant had attended acourse in Chartography and he possessed a Law Degree, had influenced the Commission in an unwarranted manner and that his said recommendations are inconsistent with the overall picture presented by the qualifications andmerit andshould,therefore, bedisregarded. Dealing with this last submission of counsel I hold the view that the Director of the Department had rightly referred to the aforesaid qualification of the interested party as a reason for recommending him,because hiscertificate of attendance to such coursewasclearlyrelated with hissuitability forpromotion tothe postofLand Officer 1stGrade (Chartography/Photolithography). AstheCommission waswellawareof thequalifications ofthe applicant, appearing in his personal file, and specific reference was made, also by the applicant to his said qualifications in a letter addressed to the Commission by him on 30 May, 1985,1 cannot accept thecontention of counsel thattheCommission was influenced inanunwarranted mannerinthisrespect,northatsuch recommendations are inconsistent with the particulars in the relevant files. I find, therefore that the recommendations of the Director were rightly taken into account and acted upon by the respondent Commission. Regarding now the submission of counsel for the applicant 263 Loris J. Papaconstantinou v. Republic
(1988)that he was superior in merit andqualifications totheinterested party and should be preferred instead of him,I must stress that the applicant in order to succeed he has to establish, in this respect, that he was strikingly superior; mere superiority is not sufficient in ordertoannul thesubjudice decision. 5 As to the notion of striking superiority I will refer to the analysis made by Pikis J.in HadjiSavva v.TheRepublic,
(1982)3 C.L.R. 76, where (atp.78) he stated: "As theexpression 'striking superiority' suggests,a party's superiority, tovalidate anallegation of thiskind,must beself- 10 evident and apparent from aperusal of thefiles of the candi dates. Superiority must be of such a nature as to emerge on any view of the combined effect of the merits, qualifications and seniority of theparties competingfor promotion; inother words it must emerge as an unquestionable fact; so telling, as 15 to strike oneat first sight." From aperusal of theconfidential reportsfiles of theapplicant and the interested party it emerges that both of themare equally rated "excellent" for the years 1980, 1982, and 1983. For the years 1979, 1981 and 1984 they are,also,ratedas "excellent" but 20 theapplicantis betterrated inonerateable item,for eachparticular year; this in my view,cannotestablish striking superiority of the applicant over theinterested party. From acomparative table (enclosure9)containingparticulars of the qualifications and service of the candidates, it is evident 25 thattheapplicanthas morequalifications thantheinterestedparty, but such qualifications are notenvisaged by therelevant scheme of service as an additional advantage and it is well settled that such qualifications do not indicate by themselves a striking superiority (see, inter alia, HadjiGeorghiou v. The Republic ,Λ
(1977)3 CLR 35 and Cleanthous v. The Republic,
(1978)3 C.L.R. 320) but must be weighed togetherwith all otherrelevant considerations (vide Hjiloannou v. The Republic,
(1983)3 C.L.R. 1041, 1046). 264 3 C.L.R. 5 0 <- Q Papaconstantinou v. Republic Loris J. Both the applicant and the interested party were appointed to the immediately lower post of Land Officer 2nd Grade on 15.1.82.Bymeansof therevision of salarieseffected in 1970the interested party, who was holding the post of Senior Photolithographer, was emplaced, by means of Law 32/70, to which the applicant was posted, as Senior Draughtsman, on 1.1.71. Thus a seniority of one year of the interested party over the applicant was created. But such seniority was not, as it appears from the sub-judice decision (see reds 47-49 in the personal file of the interested party) thedecisive factor, but was weighed together with the merit, qualifications and the recommendations of theHead of theDepartment, thelatter being amostweightyconsideration affecting merit. Taking into consideration the above, it is clear that the applicant failed to establish "striking superiority" over the interested party, a sine qua non element for interfering with the sub-judice decision, which in thecircumstances was reasonably open to the respondent Commission and cannot otherwise be faulted. In the result the present recourse fails and it is accordingly dismissed.In thecircumstances Ishall make noorder astocosts. Recourse dismissed. Noorderasto costs. 265