(1988)1988March30 [TRIANTAFYLL1DES,P..MALACHTOS,SAVVIDES,STYLIAN1DES AND KOURR1S,JJ.]. INTHE MATTER OFARTICLE 146OFTHE CONSTITUTION ANDREAS Z.GEORGHIOU ANDOTHERS Applicants, v. THE REPUBLIC OFCYPRUS, THROUGH THE PUBLIC SERVICE COMMISSION, Respondents. (Cases Nos. 36/86,123/86,158/86). Public Officers—Promotions—interviews, performance at—Weight—Rating of—The taskof the Commission. Public Officers—Promotions—Seniority—-All candidates had beenappointed to present (Senior Land Officer) and previous (Land Officer 1st Grade) posts on thesame days -Seniorityof applicants by reason of havingbeen 5 appointedearlier thantheapplicanttothepostofLandOfficer2ndGradeInthecircumstancesdoesnottipthe scale. Public Officers—Promotions—Posthighinthehierarchy—Discretion ofCommission—Wide. Public Officers—Promotions -ConfidentialReports—Preparation byexHead of Department at the time when he held thepost of a Government Minister—Rightly Commission did nottakethemintoconsideration. 10 Public Officers—Appointments—Acting appointment—The Public Service Law, 33/67, section 42—Recommendationbyauthorityofaparticular person—Once such person is qualified the Commission has nodiscretion in 15 the matter—The appointment shouldbe ofaforeseeable temporary duralion. 678 3 C.L.R. . Georghiou & Others v. Republic . Bymeansof theabove recoursestheapplicantschallengethevalidityof the promotion of interested party to the post of Chief Land Officer. This postisthesecond in thehierarchy oftheDepartment ofLandsand Surveys. Itisafirstentryandpromotion post. 5 10 15 20 Theapplicantsalso,challengetheappointment of theinterested party as acting Director of thesaid Department as from 1.1.86.Theappointment of theapplicant hadbeen recommended totheCommission by the appropriate authority in viewof the vacancy of thepost stemming from the retirement oftheex Director. The applicants in cases 36/86 and 123/86and the interested party are moreor lessequal in meritand qualifications, butthough they wereall promoted to thepost of SeniorLand Officer and totheirprevious postofLand Officer, 1stGrade,theapplicants weresenior tothe interested parly asregards appointment to the post of Land Officer, 2nd Grade.The interested party was promoted to that post on 15.5.79 and to the temporary post on 1.6.78,whereas applicantGeorghiou was promoted to the permanent post on 1.6.77and to the temporary post on secondment on 1.8.73and applicant Mouzouris waspromoted tothepermanent post on 15.11.78 and was seconded tothetemporary poston 1.8.73. The reports for 1984 wereprepared by the ex Head of the Department whowas,at the lime of preparation, a Minister of the Government of the Republic.TheCommission did nottake intoconsideration such reports. TheHead of theDepartment recommended equally theapplicants incases 36/86and 123/86and theinterested parly. 25 TheCommission rated theperformance of theinterested party at theinterview as"very verygood" and theperformance ofapplicants incases36/ 86and 123/86as "very good". Held,dismissing therecourses,Sawides and Kourris,JJ. dissenting as regards recourses 36/86 and 123/86, in so far as they relate to the validity ofthepromotion of theinterested party tothepostofChief Land Officer. 30 (A)Recourse 158/86:Itisill founded.The interested party isclearly superiortotheapplicant. 35 (B) Recourses 23/86 and 123/86:
(1)It is well established that theappointing Authority hasa very widediscretion when making a selection for apost high in theservice. 679
(1988)Georghiou & Others v. Republic
(2)The appointing Authority when weighing together thethreecriteria, laid by law,inorder tofindthemostsuitablecandidate,may attributesuch significance to them as itmay deem proper,provided that itexercises correctly, inthecourseofdoing so,itsrelevant discretionary powers.
(3)TheCommission rightly did not lake intoconsideration reports preparedby apolitical person. 5
(4)Performance at the interviews isnot a separatefactor, but there is nothing wrong toattach the necessary importance toit.The assessment of theperformance isa task of theCommission. In thiscasethe Commission didnotattach undueweight toit. 10
(5)Seniority inthiscase isnotsuch astotipthescales in favour ofapplicants.
(6)Applicants failed toestablish striking superiority. (C)Asregardstheactingappointment: Onceaperson is recommended by theappropriateauthority andpossesses thequalifications of thepost the Commission has nodiscretion inthe matter (Section 42 of Law 33/67).In this case, it was clear that the appointment was for a temporary duration and,moreover, it was madeclear to theinterested party by the respondent Commission that hissuch actingappointment would notbe taken intoconsideration in thefillingof thevacancy. 15 Recourses dismissed. No orderas tocosts. 20 Casesreferredto: Frangos v.The Republic
(1970)3 C.L.R. 312; lerides v. TheRepublic
(1980)3C.L.R. 165; Similtis v.The Republic
(1986)3C.L.R. 608; Georghiou v.TheRepublic
(1976)3C.L.R. 74; Republic v.Zachariades (.1986)3C.L.R. 852; Republic v.Panayiotides
(1987)3C.L.R. 1081; 680 25 3 C.L.R. Georghiou & Others v. Republic Republic v.Koufettas
(1985)3C.L.R. 1950; Pierides v.TheRepublic
(1984)3C.L.R.341; Papadopoullos v.ThePublicService Commission
(1985)3C.L.R.405; Republic v.Mylonas
(1985)3C.L.R. 1608; Olympios v.TheRepublic
(1974)3C.L.R. 17; Tsiropoulou v.TheRepublic
(1983)3C.L.R.313; Republic v.Kyriacou
(1987)3C.L.R. 1189; Triantafyllidesand Othersv.TheRepublic
(1970)3C.L.R. 235; Duncan v.TheRepublic
(1977)3C.L.R. 153; 10 Markides andAnother v.TheRepublic
(1983)3C.L.R. 622; Papadopoulos v.TheRepublic
(1983)3C.L.R. 1423; Livadas v. TheRepublic
(1985)3C.L.R. 506; Republic v.Petrides
(1984)3C.L.R. 378; Republic v.Mylonas
(1985)3C.L.R. 1608; 15 Republic v,Saferides
(1985)3C.L.R. 183; Lambis andOthers v.TheRepublic
(1986)3C.L.R. 130; Christodoulou andAnother v. CYTA
(1978)3C.L.R.6 1 ; . Savva v.TheRepublic
(1980)3C.L.R. 675; Smyrnios v. TheRepublic
(1983)3C.L.R. 124; 681 Georghiou & Others v. Republic
(1988).Partellides v. TheRepublic
(1969)3 C.L.R.480; Republic v.VonditsianosandOthers
(1969)3C.L.R.445; Bagdadesv. TheRepublic fl973) 3 C.L.R.417; Zaferidesv. TheRepublic
(1980)3C.L.R. 140; Republic v. Rousos
(1987)3C.L.R. 1217; 5 HadjiSavvasv. TheRepublic
(1982)3C.L.R.76; Hadjiioannou v. TheRepublic
(1983)3 C.L.R.
- Recourses. Recourses against the decision of the respondents to promote the interested party to the post of Chief Land Officer in the Department of Lands and Surveys in preference and instead of the 10 applicants. K. Talarides, for theapplicant in Case No.36/
- N. Zomenis, for the applicant in Case No. 123/
- C.Loizou, for the applicant in Case No. 158/
- P. Hadjidemetriou, for therespondents. ,c A. S. Angelides, for theinterested party. Cur. adv. vult. TRIANTAFYLLIDES P.:TheJudgment of themajority of the Court (Malachtos, J., Stylianides, J., and myself) will be delivered by Mr.Justice Stylianides. STYLIANIDES J.: The applicants by theserecourses seek the 20 annulment of the promotion of Andreas Koisonis (the interested party) tothepost of Chief Land Officer inpreference toeach one of them, and further the annulment of the acting appointment of 682 3 C.L.R. Georghiou &Others v. Republic Stylianides J. the interested party to the post of Director of theDepartment of Lands and Surveys as from 1.1.
- The post of Chief Land Officer isa first entry and promotion post. 5 Inresponsetoadvertisement of thepost therewere 12applications. 10 ADepartmental Board,inpursuanceof section 36and therelevantcircularof the Council of Ministers,wasset up.The Departmental Board recommended four candidates,including theapplicants in Cases Nos.36/86,123/86 and the interested party.They, however, added in theirreport that applicant in Case No. 158/86, though hewasinferior in merit, might, also, beconsidered by the Commission. 25 The Commission interviewed sixcandidates inthe.presenceof the Head of theDepartment, theDirector of Lands and Surveys. Attheinterviews theHead of theDepartment, theChairman and the Members of the Commission put to the applicants questions ongeneral subjects and mainly on subjects related tothedutiesof the post, as they are set out in the Scheme of Service. The Head oftheDepartment, ultimately, madehisassessmentof the performance of the candidates at the interview, and, having made a comparison of allthecandidates,heequally recommended theapplicants inCases Nos.36/86, 123/86and the interested party and heleft it totheCommission toselectanyoneof the three.Heconeludedas follows:- 30 "Takingintoconsideration theperformance attheinterview, their performance in the service, qualifications and seniority, Georghiou, Mouzouris and Kotsonis are better than Panayiotou, Panayides and Pantazis, and is up tothe Commission to select any of thethree for thevacant post." 15 20 The Commission made their own assessment of the performance at the interview. The interested party was rated "very 683 Stylianides Georghiou & Others v. Republic
(1988)very good", applicants Georghiou and Mouzouris "very good" and applicantPanayiotou "good". The Commission went intotheconfidential reports of thecandidates and took into consideration, also, theperformance of the candidates during 1985,as stated to them by theDirector. They 5 dealt with the qualifications and seniority, and finally decided to promote, as the most suitable on the basis of all the established criteria,theinterested party with effect 1.1.
- Weconsider it convenient todeal first with Case No. 158/
- This is manifestly ill founded. The interested party is strikingly 10 superior to the applicant. The interested party was rated "excellent" for the last six years, whereas the applicant simply "good" for four yearsand "very good" for two years.Theinterested party wasrecommended by theHead of theDepartment whereas the applicant was not.The performance of theapplicant atthe inter- 15 view fell far short to that of the interested party, in the assessment, both of the Director and the Commission. His seniority alone does not suffice to grade him even equal tothe interested party.Thisrecourse fails. Counsel for the applicants in Cases Nos. 36/86 and 123/86 submitted that the Commission wrongly did not takeintoconsideration the confidential reports for
- They attributed undue weight to the evaluation of the performance of the candidates. They disregarded and/or they failed togivedueweight totheseniority of the applicants, and/or they gave no cogent reasons for ^ not selecting theapplicants, whowere senior totheinterested party:andtheirseniority establishes striking superiority overtheinterested party. Thepostof Chief Land Officer isthehighest inthe Department of Lands and Surveys, next to theDirector. As itemerges from ~« the duties and the responsibilities of the post - set out in the Schemeof Service -itisa post with wideadministrative responsibilities.His duties are toassist the Director in the organization, administration andproperfunctioning oftheDepartment,the for684 20 3 C.L.R. 5 1 0 15 20 2 5 Georghiou & Others v. Republic Stylianides J. mulation and application of theGovernmentpolicy in respect of the competence of the Department,as well as the application of the necessary decisions. He prepares programmes, coordinates and supervises the function of two or more branches of theDepartment. It is well established that the appointing Authority has a very wide discretion when making a selection for a post so high in the service -(Frangos ν.'The Republic
(1970)3 C.L.R. 312; lerides v. The Republic
(1980).3 C.L.R. 165; Similtis v. The Republic
(1986)3 C.L.R. 608). The claim of civil servants for promotion shall be considered on thebasis of merit,qualifications and seniority. The appointing Authority when weighing together thesaid threecriteria, laid by Law, in order to find the most suitable candidate,may attribute such significance tothem as it may deem proper, provided thatit exercises correctly, in thecourse of doing so, its relevant discre tionary powers - (Georghiou v. The Republic
(1976)3 C.L.R. 74 andRepublic v.Zachariades
(1986)'3C.L.R. 852). Thefirstcomplaint is thattherespondent Commission did not take into consideration the confidential reports for
- The Head of the Department in 1984 was Mr. Nicolaides. On 7.1.1985 he left the service and took up a political post, that of theMinister of theInterior.Whilst being a Minister,a member of theexecutive power of the State, heprepared theconfidential reports for
- In theconfidential reports for 1984 applicant Georghiou (No. 36/86) was rated "11-1-0", applicant Mouzouris (No. 123/86) "10-2-0" and Kotsonis, theinterested party, "11-1-0". 30 Certain ramarks were written by Mr.Nicolaides, which are al'most identical, with theexception thathe wrote for the interested party that he is suitable for promotion to "ανώτερες" (higher) posts and for the applicant Georghiou suitable for promotion to "ανώτατες" (highest) posts. 685 Stylianides J. Georghiou &Others v.Republic
(1988)The two applicants and the interested party were holding the post of Senior Land Officer. They were very high upon the ladder of theirdepartment and the only two posts over them were thatof theChief Land Officer and thepostof theDirector. In our view the Commission rightly, on the advice of the At- 5 tomey-General,did not takeintoconsideration theconfidential reports prepared byaperson whowasatthematerial timeapolitical person -Minister of the Interior. Even if they took this intoconsideration, there would be nodifference at all, having regard to thegrades of the applicants in theconfidential reports for 1984. Therefore this ground fails. 10 Interviews, though not provided by theLaw, they received repeatedly expressed recognition intheCase-Lawof thisCourt, as a course which is open to the Commission, for the purpose of evaluation of thesuitabilityof candidates.Theprocessof performanceof candidates when interviewed isaprocess helping in the 15 evaluation of candidates, mainly from thepointof viewof merit and, also, toacertain extent of qualifications as well - (Republic v.Michael Panayiotides,
(1987)3C.L.R.
- Theperformance of theinterviewscannot betaken asasepar- 20 ate factor by itself and undue weight should not be given to the performance. There is nothing wrong, however, in Law to attach 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 besuitable in thepost inquestion. 25 The assessment of the performance at theinterviews is within the powers and the task of the Commission and no-one else. We do not agree that therespondent Public Service Commission has attributed undue weight to theevaluation of the performance of the candidates in question; it took into account such evaluation properly aspartof theoverall assessment of thecandidates. It iscommon ground that theapplicants and theinterested par686 30 3 C.L.R. 5 10 Georghiou & Others v. Republic Stylianides J. ty were allpromoted to theprevious postof Senior Land Officer on 15.2.84 and the post of Land Officer, 1stGrade, on 1.12.
- It is only in the permanent post of Land Officer 2nd Grade that theapplicants had seniority overtheinterested party.The interestedparty was promoted tothat post on 15.5.79 andto thetemporary post on 1.6.78,whereas applicant Georghiou was promoted tothepermanent poston 1.6.77and tothetemporary postonsecondment on 1.8.73, and applicant Mouzouris was promoted to thepermanent post on 15.11.78 and was seconded to the temporaryposton 1.8.
- It may benoted that secondment isnotapromotion and it does not change the substantive status of a public officer - (Republic v. Koufettas)
(1985)3 C.L.R. 1950). Therefore, according tosection 46of theLaw, theapplicants are senior to the interested party. Seniority isone of the criteria which the appointing Authority has totake intoconsideration inreaching its decision. The seniority of the applicants was taken intoconsideration in the overall assessment of the candidates and it is expressly so stated in the subjudice decision. Their seniority in the circumstanceswas notof significant weight and could nottipthe scales in their favour. The Administrative Court does not annul adecision of an appointing Authority, such as the respondent Commission, which, inaccordance with theLaw applicable to,and thefacts of aparticularcase,wasreasonably open tosuch Authority -(seeinter alia, Georghiou v. The Republic (supra); Petrides v. The Republic
(1984)3 C.L.R. 341,350; Papadopoullos v.-The Repubic Service Commission
(1985)3 C.L.R. 405,41-3;Republic v.Zachariades(supra)). •, ·*" 35 • * The duty of this Court is to see whether the Authority exercised itsdiscretionary power inconformity with the statutory provisions and therules and requirements of AdministrativeLaw in general, including good faith. So long as the Authority acted within thoselimits,theCourtcannot interfere. Itcannot substitute its own opinion as to the merits of the candidates for that of the 687 Stylianides J. Georghiou & Others v. Republic
(1988)Authority. AnAdministrative Courtcannot interveneinordertosetaside thedecision regarding such selection, unless itis satisfied, byan applicantin arecourse before it,thathewasaneligiblecandidate who was strikingly superior to the one who was selected, be- 5 cause only in such acase theorgan which made the selection for the purpose of an appointment or promotion is deemed to have exceeded the outer limits of itsdiscretion and then, therefore, to haveacted inexcessor abuseof thispower; also,in such asituation thecomplained of decision of theorganconcerned istobere- ]Q garded as either lacking duereasoning, or as based on unlawful or erroneous or otherwise invalid reasoning. The onus of establishing striking superiority lies always on the applicant in a recourse. Considering the case asawhole we havecome totheconclusion that theapplicantsdid notdischarge theonuscaston themof satisfying theCourtthat theywerestrikingly superiortotheinterested party. Even if the applicants could argue that they were merely superior totheinterested party, becauseof theirseniority, to which reference is made above, that would not beenough for 20 this Court toconclude that therespondent Commission had acted in abuse orexcessof power. Inouropinion, inallthecircumstancesof thiscase,itwasreasonably open totherespondent Public Service Commission toselect for promotion the interested party, instead of theapplicants, on the reasoning set out in its minutes and to be derived, also, from therelevant administrative records. Applicants in Cases Nos.36/86and 158/86 seek,also,theannulment of the acting appointment of the interested party to the post oftheDirector of theLandsand SurveysDepartment. The Head of the Department was due to retire on 1.1.86.On 21.12.85, after thepromotion oftheinterested partytothepostof Chief Land Officer, the Director General of the Ministry, as the 688 25 ^ 3 C.L.R. Georghiou & Others v. Republic Stylianides J. appropriate Authority, requested theacting appointment oftheinterestedparty with effect 1.1.86asDirector of theDepartment in addition tohisduties. 5 10 15 The respondent Commission on 27.12.85, having taken into consideration that theprocess for thefillingof thepostof theDirectorwouldcommenceand becompleted inashort timeand that theinterested party,who would betheholderofthepostof Chief Land Officer as from 1.1.86, possessed the required qualificationsunder theSchemeof Service,undersection 42madethesub judiceappointment.Theappointment wasof aforeseeably temporary duration in order toremedy a necessity until in the near future the vacant post was otherwise filled. (Republic v. Mylonas
(1985)3 C.L.R. 1*608. See, also Andreas Olympios v. The Republic
(1974)3 C.L.R. 17and Tsiropoullou v. Republic
(1983)3 C.L.R. 313). Furthermore, it was made clear to the interested party by the respondent.Commission that his such acting appointment would notbetaken intoconsideration inthefilling of thevacancy. 20 jt- 30 Under section 42, sub-section 2, an acting appointment shall bemadeontherecommendation of theappropriateAuthorityconcerned.From the wording of this sub-section it isclear that once the appropriate Authority recommends anyperson, who is possessed with the necessary qualifications for the post, the Public Service Commission isbound tomake such appointment andcannot invite applications from other persons in order tomakeaselection. There isnopower under section 42for the.Commission to take that course. The recommendation does not refer only to the act of recommendation, but, also, to the person who wasrecommended. · In the present case, the acting appointment came to an end when thesubstantive appointment wasmade in June 1986. The Commission acted properly in conformity with the Law andtheappropriate Authority recommended thecivil servant who 689 Stylianides J. Georghiou &Others v. Republic
(1988)would be the holder of the post of Chief Land Officer, the one next tothe Director. For all the foregoing, the recourses fail and are hereby dismissed with noorder as tocosts. 5 SAVVIDES J.: The applicants by these recourses, which were heard by theFull Bench togetheraspresenting common questions of law and fact, challenge thedecision of the respondent Commission topromote Andreas Kotsonis (theinterested party)tothe post of Chief Land Officer in the Department of Lands and Surveys as from 1stJanuary, 1986,which waspublished in theoffi- 10 cialGazetteof the Republic of the4th January, 1986,underNotification No.
- Furthermore applicants in cases Nos. 36/86 and 158/86 challenge also the decision of therespondent for the acting appointment of Andreas Kotsonis to the post of Director of the Depart- 15 ment of Lands and Surveys as from 1st January, 1986, which was published in the official Gazette o f the Republic of the 4th January, 1986, under Notification No.
- These cases were originally referred to one of the Judges of the Supreme Court, namely, Kourris J., under the provisions of 20 s. 11
(2)of the Administration of Justice (Miscellaneous Provisions) Law, 1964 (Law 33/64). In view of the fact that an important constitutional issue, the constitutionality of the composition of the Public Service Commission, was raised, the learned Judge formed theopinion that it 25 wasmore appropriate that thesecases should bedealt with by the Full Bench under s.11of Law 33/64.The matter wasjudicially considered by theFull Bench after hearing counsel appearing for all parties and by majority (Pikis, J. dissenting) decided on 4th June, 1987, to refer the cases for trial by the Full Bench under 30 s.ll of Law 33/64. In themeantime andbefore thehearingof thesecases theques690 3 C.L.R. 5 10 ,^ 25 30 35 Georghiou & Others v. Republic Savvides J. tionof theconstitutionality ornotofthecomposition of thePublic ServiceCommission cameupforconsideration bytheFull Bench on appeal in The Republic v. Kyriacou
(1987)3 C.L.R. 1189 andin which it washeld bymajority that thetermsof servicelaid down in s.4
(3)of the Public Service Law (Law 33/67), under whichthemembersof the PublicService Commission servewere not contrary to the Constitution. As a result the present cases wereheard with regard tothe remaining issues. I need not embark on the facts of the cases which led to the subjudice decision as they have been explicitly narrated in both thejudgments of my brothers Stylianides,J. and Kourris,J. with thecontentsof which Ihad theopportunityof getting acquainted. I am also in agreement with the opinions expressed in both the aforesaidjudgments thatcase No. 158/86fails and should bedismissed.The applicant in such case, notwithstanding his seniority of twoyears over the interested party was not recommended either by the Departmental Committee or the Head of the Department. On merit,as disclosed in theconfidential reports,the interested party was by far superior to the applicant. In addition the interested party had therecommendations of,the Head of theDepartment and a betterperformance atthe interview asassessed by the Director of the Department and the Public Service Commission (subject to theprinciples emanating from our case law asto theweight tobeattached tointerviewsof candidates. (See inthis respect Triantafyllides and Others v. The Republic
(1970)3 C.L.R. 235;Duncan v. TheRepublic
(1977)3 C.L.R.153; Markides andanother v.Republic
(1983)3C.L.R. 622;Papadopoulos v. The Republic
(1983)3 C.L.R. 1423; Livadas v. The Republic
(1985)3C.L.R. 506). Bearing in mind allcriteria to betaken into consideration and inview of the superiority of theinterested partyon merit,theseniority of theapplicant byitself was not sufficient toestablish any superiority overtheinterested party, let aside that according tothe wellestablished principles emanating from our case lawwhat has tobeestablished isstriking superiority and nothing less. 691 Savvides J. Georghiou &Others v. Republic
(1988)The position however of the applicants in the remaining two cases 36/86 and 123/86 is different. The two applicants and the interested party were holding the post of Senior Land Officer. A perusal of the confidential reports of the two applicants and the interested party for the years 1979- 1983discloses that all three 5 of them were moreor lessequal on merit.Rightly the respondent did nottakeintoconsideration theconfidential reports for 1984as such reports wereprepared byaperson who was notholding any post in the Department at the time, having resigned and having been appointed as a Minister. For all these years applicant Mou- ,Q zourisandtheinterested party wereevaluated as"excellent"inrespect of each particular year. Onthe totality of thevarious items the interested party had 44 "excellent", 15"very good" and one "good". Mouzouris had 43 "excellent" and 17 "very good". Applicant Georghiou wasevaluated "excellent"for all years with the exception of theyear 1980when he wasevaluated as "very good" (six items "excellent" and six "very good") and the total for all years inquestion was40excellent and 20very good. Therecommendations of theHead of the Department were to theeffect that, allthreeof themwereexcellent inthedischargeof their duties and all of them suitable tofillthe post of Chief Land Officer. As to their performance at the interview the assessment of theHead of theDepartment wasthesameinrespect of all three of them. According to the minutes of the meeting of the respondent Commission, the Director of the Department of Lands and Surveys is recorded to have said the following in respect of the ^5 two applicants and the interested party:" In the one category areGeorghiou, Kotsonis and Mouzouris whose replies weresubstantiveandclear notonly onquestionsrelating totheirrespective Branches but also on matters concerning other Branches. All three of them werevery good." 30 The questions which wereput to them according to the aforesaid minutes were on "general matters and on mattters related to the duties of the post which arementioned in the scheme of service." 35 692 1 3 C.L.R. ·' *· Georghiou & Others v. Republic Savvides J. The assessment of the threecandidates at the interview bythe respondent Commission was."very good" in respect of the two applicants and "very very good" inrespect of theinterested party. 5 Astoqualifications therespondent Commission found thatall threecandidates werepossessing thequalifications aswellasthe additionalqualifications required bytheschemeofservice. Asto seniority itis not indisputethat thetwoapplicants have anoverall seniority of nearly five years compared with the interested party. 10 One of the factors taken intoconsideration by the respondent Commission, bearingin mind thefact that in merit and qualificatios thecandidates were moreor lessequal, was "the impression formed by theCommissionat theinterview, to which it attached theproper weight inviewof thedutiesof thepost". 15 Nothing is mentioned inits conclusions as towhy the evaluation of thecandidates attheinterviews bythe Director of theDepartment who was in a better position to assess the performance of thecandidates oncemostof thequestionsput tothem wereon matters related to the duties of the post and theoperation of the various branches of the Lands Office, which wasdifferent from the respondent's evaluation was completely ignored and therespondent solely relied on itsown evaluation towhich itgavesuch weightastobringthescalesdown infavour of theinterested party- 20 25 30 Notwithstanding the fact that it wasquite obvious that the two applicants werebyfar seniortotheinterested party.nothihg appears on therecord indicating why such seniority wasignored onceon meritandqualifications thecandidatesweremoreorlessequaland moreweightwasattached toamarginaldifference intheassessment at the interviews,by the respondent between the two applicants, having been assessed as "very good" and the interested party as "veryverygood".Asalready mentioned theassessment of theDirector of the Department was in respect of all three candidates 693 Savvides J. Georghiou & Others v. Republic
(1988)equal. Ineednotreiteratetheprinciples concerningtheweight tobe attachedtointerviews as thesematttershave beenexpounded by my brothers Judges Stylianides and Kourris in their respective judgments which Ihadtheopportunitytoperuse. 5 Onthematerial before me andinthelight of the observations already made by me Ihave come totheconclusion that there spondentcompletely disregarded thesubstantial seniority of the two applicants and failed togiveany reasoning why, bearing in JQ mindthefact thatthecandidatesweremoreorlessequal inmerit and qualifications, their seniority over the interested party was completely ignored. Furthermorefrom the whole record of the minutesof therespondentitappearsthattherespondent Commis sion gaveundueanddisproportionateweight totheimpressions ,c formed attheinterviews which led toawrong exercise of itsdis cretionary powers. Intheresult therecourses incases' Nos.36/86 and 123/86 suc ceed in this respect and thepromotionof theinterested party is herebyannulled. Finally Ishall deal briefly with theprayer for theannulmentof the acting appointmentof theinterested party as Directorof the Departmentof LandsandSurveys. Suchappointment was effect edsoonafter theappointmentof theinterestedparty tothepostof Chief LandOfficer which istheimmediately lower posttothat of -ς theDirectorof LandsandSurveys.Theacting appointmentwas of a limited duration and in fact cametoanend in June, 1986, when asubstantive appointmenttothepost was made.Suchact ing appointment was madeattherecommendationof the appro priateauthority inaccordancewith theprovisions of s. 42ofthe Public Service Law, 1967.Thissection reads asfollows: ~« "42.-
(1)Οταν θέσιςκενούται δι'οιονδήποτε λόγον ήο κάτοχοςαυτήςαπουσιαζηεπ'αδείαήτελήενανικανότητι, δύναται ναδιορισθήέτερονπρόσωπον όπωςενεργήανα694 20 3 C.L.R. Georghiou & Others v. Republic Savvides J. πληρωτικώς εντηθέσει ταύτηυπότοιούτουςόρουςωςήθελον καθορισθή.
(2)Αναπληρωτικός διορισμός γίνεταιτη συστάσει της ενδιαφερόμενης αρμοδίας αρχής." 5 And thetranslation in English: "42
(1). When a post becomes vacant for any reason or its - holderis absent onleaveorincapacitated,anotherperson may be appointed to act in that post under such terms as may be prescribed. 10 15 20 25 -Q
(2),An acting appointmentshall be madeon the recommen dation of theappropriate authority concerned." ' The power of thePublic Service Commission toeffect anact ing appointment and the question as to whether a'decision for such appointmentcan be challenged by arecourse have beencon sidered by this Courtin a series of cases. InOlympios v. TheRe public
(1974)3 C.L.R. 17 though the Courtfound that theappli cant had alegitimate interest tochallenge an actingappointment, nevertheless dismissed the recourse on its merits. Malachtos, J. had this tosay atp. 27: * ;' '" "What really matters in these acting appointmentsis only the'interest of the public service and theobject of making an acting appointmentis simply'to remedy a temporary necessity and avoid unnecessary difficulties so that'thesmooth running •of thepublic service as a result of the vacancy created in the relative post will continue. Undersection 42, subsection 2,an acting appointment shall be made on the recommendation of the appropriate'authority concerned. Fromthe wording of this subsection it is clear thatoncetheappropriateauthorityrecom mends any person who is possessed with the necessary quali fications for thepost, thePublic Service Commission is bound tomake such appointmentandcannotinvite applications from other persons inorder to make a selection. There is no power 695 Savvides J. Georghiou & Others v. Republic
(1988)under section 42for theCommission totakethatcourse." The aboveopinion was adopted byme in Tsiropoullou Kyrillou v. The Republic
(1983)3 C.L.R. 313 in which at p. 319 I said the following: 5 "It is clear from the wording of the law that an acting appointment ismade on therecommendation of the appropriate authority and the Educational Service Committee isbound to accept such recommendation and has nodiscretion inthematter.It isalsoclear that theterm 'recommendation' does notreferonlytothe actof recommendation butrefers alsototheper- io son so recommended." In the abovecase, however at pp.320,321 Imade the following observations: I share the observations of Mr. Kallis, the member of the respondent Committee whowithdrew from themeeting after he made hisobservations and before the subjudicedecision was taken,totheeffect that if thepracticeoftheMinistry ofEducation which has been described as a standing practice tomake 20 acting appointments renewable annually instead of filling the vacant posts intheproperwaycontinues,it will inevitably lead toadefeat of the discretionary power of theEducational ServiceCommittee toselect and promote themost suitable candidates for filling the vacant posts,and will turn the Committee ~s toamereorgan of confirming decisionsof theMinister whois theappropriate authority underthelaw torecommend such acting appointments. I expect that the appropriate authority should take these observations intoconsideration and discontinue such practice and when the possibility of filling vacant postsdoesexist, toproceed with thefillingof same intheprescribed way and avoid as far as possible the practice of the temporary solution of anacting appointment." Thedictain both theaforesaid cases wereapproved bytheFull 696 '3 C.L.R. Georghiou & Others v. Republic Sawides J. Bench in thecase of Republic ν: Mylonas
(1985)3 C.L.R. 1608 in which itwas heldthat: i ^ 10 15 20 25 30
(1)Theobject of an acting appointmentis toremedy a temporary necessity. Theprovisions of section 42 of Law 33/67may be used only for an acting appointmentof a foreseeable temporary duration in order to remedy a.necessity until in the foreseeable nearfuture eithertheholderof thepost resumes his duties orthe vacant post is otherwisefilled.
(2)Thenatureandscopeof an acting appointmentandthe pro vision for 'recommendation' in theabove section,notonly donot cast aduty onthePublic Service Commission tomakeaselection but,on thecontrary,it is impermisible for it todo so. Hence, no question of selection of themost suitable candidatearises. Bearing in mind theabove dictaandthefact thattheactingappointmentwas of a limited durationandcame toan end with the filling of the vacantpost I.find thattheprayer inthis respect fails. In theresult cases 36/86and 123/86succeed totheextent they challenge the promotion of the interested party to the post of Chief Lands Officer and thesubjudice decision for suchpromotion is hereby annulled. There will be no order for costs. Case 158/86is dismissed with noorderfor costs. • KOURRIS J.: Applicants in the above intituled recourses which were heard togetheras presenting commonlegal and factual issues, challenge thedecision of the Public Service Commis sion to promote the interested party, namely, Andreas Kotsonis, to the post of Principal Land Officer, ("Protou Ktimatologikou Litourgou"), in the Lands and Surveys Departmentas from 1st January, 1986, inpreference and/orinstead of theapplicants. The post is afirst entry and promotionpost andat the timeof thesubjudice decision all theapplicants and theinterested party were holding thepost of SeniorLand Officer. 697 Kourris J. Georghiou & Others v.Republic
(1988)An issue of great constitutional importance was raised, inter alia, by the applicants, challenging the constitutionality of the Public Service Commission, the appointing authority, and the Judge who had to try these cases was of the opinion that it was more appropriate to adjudicate this issue before more than one <Judgeof the Supreme Court andreferred thecases for trial bythe Full Bench under s.11of theAdministration of Justice (MiscellaneousProvisios) Law, 1964 (Law 33/64). Before the hearing of thesecases the Full Bench resolved this issueon appeal in Revisionai Appeal No.733, The Republic v. 10 Kyriakos Kyriakou,
(1987)3C.L.R. 1189). It was held by majority that the terms of service laid down in s.4
(3)of the Public Service (Law 33/67) under which themembers of thePublic Service Commission serve were not contrary to the Constitution. Consequently, the cases proceeded to hearing with regard to the remaining issues. Pursuant to a request made by the Director - General of the Ministry of Interior for thefilling of avacancy inthepostof Principal Land Officer in the Landsand Surveys Department, therespondent Commission referred the matter to the Departmental 20 Committee which was set upfor that purpose in accordance with theprovisions of s. 36of the Public Service Law, 1967 (Law33/ 67). By its report which was submitted to the respondent Commission by letter dated 29th October, 1985, the Departmental Committee recommended four candidates for promotion to the ~^ postinquestion in alphabetical order including theinterested partyand all theapplicants, Georghiou, Mouzouris and Tryfon Panaghides. Therespondent Commission atitsmeeting of 11th December, 1985,after hearing the recommendations of the Head of Depart- 30 ment,proceeded in his absence toevaluateand compare thecandidates; after examining their confidential reports and their personalfiles,and taking into consideration therecommendations of theHeadof Department and theperformance of thecandidates at the interviews, the Commission reached the decision which ap- -<pears in Appendix 9 by virtue of which it promoted to the said post, the interested party. The promotion was published in the Official Gazetteof the Republicon the4th January, 1986,asare698 ^ 3 C.L.R. Georghiou &Others v. Republic Kourris J. suitof which theapplicantsfiledthepresent recourses. 5 IQ Applicant in Case No. 36/86 is Andreas Georghiou. He was first appointed in the public service on 1.12.57as a Land Clerk, 2nd Grade, and on 1.6.68 he was seconded to the post of Land Clerk, 1st grade; and on 15.12.69 he became permanent in the post of Land Clerk, 1st Grade. On 15.5.71 he was promoted as Assistant Land Officer, and on 1.8.73 he was seconded to the post of Land Officer; and on 1.6.1977 he was promoted to the post of Land Officer and the title was changed to Land Officer 2nd Grade as from 1.1.80.On 1.12.81he was promoted toLand Officer, 1st Grade (Lands Branch) and on 15.12.84 he was promoted tothepostof Senior Lands Officer. Applicant in case No. 123/86 is Christos Mouzouris. He was ,(- first appointed in the public serviceon 15.2.54 and on 1.10.56he was promoted to the post of Land Clerk, 2nd Grade and on 1.8.1969 he was seconded to the post of Land Clerk 1st Grade and on 15.5.71 he became a permanent Land Clerk, 1st Grade. On 1.12.72hebecamean Assistant Land Officer; on 1.8.1973he was seconded to thepostof Land Officer andon 1.6.1977hebecameapermanent Land Officer. On 15.11.78 hewas promoted to the post of Land Officer and the title of this post waschanged to Land Officer 2nd Grade as from 1.1,1980. On 1.12.81 he was promoted to the post of Land Officer 1st Grade, and on 15.2.1984 he waspromoted tothe postof Senior Land Officer. 25 30 ; Applicant in Case No. 158/86 is Kyriakos Panayiotou. He wasfirst appointed in the public service on 1.12.1957asSurveyor 2nd Grade and on 1.12.1970 he was promoted to the post of Surveyor 1stGrade. On 15.5.71 he was promoted to Senior Surveyor and on 15.11.76 hewaspromoted tothe post of Land Officer and the title of this post was changed to Land Officer 2nd Grade as from 1.1.1980. On 1.12.1981 he was promoted to the post of Land Officer, 1st Grade (Survey Branch - Surveys Office) and on 15.12.1984 he was promoted to the post of Senior Land Officer. 35 699 Kourris J. Georghiou &Others v. Republic
(1988)The interested party is Andreas Kotsonis. He was first appointed in the public service on 1.4.1955as Clerical Assistant and on 1.1.1956he was promoted tothepostof Land Clerk, 2nd Grade.On 1.6.1968he was seconded tothe post of Land Clerk, 1st grade and on 1.7.1969 he became a permanent Land Clerk, 5 1stCrade.On 1.12.1977 hewaspromoted asAssistant Land Officer andon 1.6.1978 he was seconded to the post of Land Officer andon 15.11.1978 he waspromoted tothepostof Land Officer andthe title waschanged toLand Officer, 2nd Grade as from 1.1.1980. On 1.12.1981 he was promoted to the post of Lands ^ Officer, 1st Grade, (Lands Branch) and on 15.12.1984 he was promoted tothepostof SeniorLand Officer. Themain complaint of theapplicants istotheeffect that therespondent Commission attributed undue weight tothe impressions created by the candidates at the interviews and it was submitted , that such impressions became a decisive factor which brought aboutthedecision topromote theinterested party inpreference to and insteadof the applicant. I propose to deal first with applicant in case No. 158/86, namely KyriakosPanayiotou. Thisapplicant issenior totheinter- ested party by almost 2 years but he was not recommended for promotion either by the Departmental Committee or by the Head of Department, and in these circumstances, Iam of the opinion that thisapplicant failed toestablish striking superiority and itwas reasonably opentotherespondent Commission topromotetheinterested party instead of this applicant. Therefore his recourse 158/86fails. Ishall now revert and examine Case No. 123/86and case 158/ 86 with regard to applicants Andreas Georghiou and Christos Mouzouris respectively. INTERVIEWS: 3 It should be noted that there is no specific provision in the PublicServiceLaw 1967 (Law33/67)authorising thePublic Ser700 3 C.L.R. Georghiou & Others v. Republic Kourris J. viceCommission toconduct interviewsofcandidates for appointmentorpromotion and theonly directreference tointerview: ^ to befound in theproviso tos.35
(6)ofLaw 33/67 in relation toadvisory committees for specialized posts. (See R.A. 589 The Republic^. Panayiotides
(1987)3C.L.R. 1081). 5 But,itwasheld inthePanayiotides case(supra) atp.5asfollows:- 10 15 "Notwithstanding the absence of express statutory provision in Law 33/67, or in any other relevant enactment, empowering the Public Service Commission to interview candidates, there has been established a practice of the Public ServiceCommission tointerviewcandidates for thepurposeof evaluating their suitability, and this practice has received repeatedly express recognition in thecase-law of thisCourt asa course which is open to the Commission or other appointing authority, but which theCommission isnot bound toadopt in allcases." And atp.6itisstated asfollows:- 20 25 30 "It is thus overwhelmingly established, on the basis of the aforesaid case-law, that the interviews of candidates for appointment or promotion is firmly embedded and legitimate, though not an exclusive mode of assessing the suitability of candidates." Itshoud also benoted that interviewsdonotconstituteacriterion byitself separate from themerit,qualifications and experience of thecandidates but it ismerely ameans of forming an opinion andevaluating themerits notwithstanding thefact that itisnotthe safest one. See TheRepublic v. Petrides,
(1984)3C.L.R. 378. In thecase of TheRepubic v.Saferides,
(1985)3C.L.R. 163, itwasheld that impressionsformed byacollectiveorgan at interviewsof candidates donot constitute facts but theyconstitute the : subject ofevaluation connected with thepersonsof which thecol701 Kourris J. Georghiou &Others v. Republic
(1988)lective organ concerned iscomposed atthematerial time. It was further held in thatcase that findings made bytheCommission itself, subjective in that they reflect the personal reactions of members of theCommissions,and becauseof that they have noobjectivefoundation. In the case of Lambis and Others v. The Republic
(1986)3 C.L.R. 130at p. 141,it is stated:"It has been held time and again by this Court that interviewsdo not constitute acriterion by itself separate from merit, qualifications and experience of the candidates, but it is 10 merely ameans of forming anopinion andevaluating themerits, notwithstanding the fact that it is not the safest one. See Triantafyllides and Others v.The Republic,
(1970)3 C.L.R. 235; Makrides and Another v. The Republic,
(1983)3 C.L.R. 622, and Papadopoullos v. The Republic,
(1983)3 C.L.R. 1 5 1423, where it was held that although the impressions gained at theinterview as to the personality of candidates are relevant to the choice of a candidate for promotion, especially if the post carries, as the post of a District Officer does, serious administrative responsibities, theycannot bedecisive ...The fact -n that the interviews played anout-weighing factor in theassessments of the candidates is evidenced by the exclusion of the twoapplicants Lambis and Papadopoullos from consideration for the subjudice post notwithstanding the fact that both of them had higher qualifications and longer experience in the ^5 district administration. The undue weight attached by the respondent to theinterviews, taintstheexerciseof itsdiscretionary power with irregularity and lack of due inquiry. Furthermore, in the light of the substantial superiority of applicant Lambis and Papadopoullos over the interested party concern- 30 ing qualifications, seniority and longer'experience, assuming that they were equal in merit, the Commission should have stated the reasons for ignoring such factors which operate in favour of the two applicants. (Livadas v. The Republic, 35
(1985)3 C.L.R. 506). 702 5 3 C.L.R. Georghiou &Others v. Republic Kourris J. Incases where therelevant schemeof service makesprovision for possession bythecandidatesoforganizing and administrative ability and ability to supervise and guide subordinate staff, due regard should be paid to the evaluation of candidates made through the interview because their personality is an important factor tobeweighed by therespondent Commission. Thisissupported by the case of Duncan v. The Republic,
(1977)3 C.L.R. 153where atp. 163it isstated as follows. "Furthermore, therespondent Commission gavedue regard totheperformance of thecandidates at the interview and both interested parties were found to have given very satisfactory replies toquestions put to them and generally they proved to bethebestcandidates for appointment or promotion tothepost in question. This was proper, in the circumstances, because their personality wasan important factor tobe weighed bythe respondent Commission, particularly so, inview of thequalifications required under theschemes of service for possession oforganizing and administrative ability and ability to supervise and guide subordinate staff, for which the personality of the leaderismost significant." ' Again, in the case of Christodoulou and Another v. The Cyprus Telecommunications Authority,
(1978)3C.L.R. 61,it was held thatdue regard should bepaid tointerviews because thefactorof personality issomething which does count quite alot fora post such as that of a telephone supervisor, which involves the supervision of subordinate staff. It should beobserved, however, that it is well,settled that impressions created by candidates at the interview should not be given undue and disproportionate weight (TriantafyHidesv.The Republic,
(1970)3C.L.R. 235;Savva v. TheRepublic,
(1980)3 C.L.R. 675; Smyrnios v. The Republic,
(1983)3 C.L;R. 124). Inthepresent casetheHead of Department whowaspresentat theinterviews of the interested party and thetwo applicantsconducted by therespondent Commission, rated the interested party 703 Kourris J. Georghiou & Others v.Republic
(1988)and the twoapplicants concerned as "very good".The respondent Commission after thedeparture oftheHead ofDepartment, made its own assessments of theperformance of thecandidatesand rated thetwoapplicants as "very good" ("poli kalos")and the interested party as "very very good" ("para poli kalos").It should be 5 noted thatall candidates were asked questionsof ageneral nature but mainly questions about thedutiesenvisaged bythe schemeof service for thesaid post. SENIORITY: Withregard toseniority,ourcase-law forthepast27yearshas 10 been to theeffect that if all other things being more or less equal the seniority ought to prevail and that cogent reasons should be given for disregarding such seniority. See, inter alia, Partellides v. The Republic,
(1969)3 C.L.R. 480, where at p.484 it is stated: 15 "Inthe circumstances, weareof theopinion that it was not reasonably open totherespondent Commission topromote interested party Gregoriades instead of the appellant. All other things beingequal the appellant's seniorityought toprevail.It follows that the relevant discretionary powers of the respondent wereexercised in an erroneousmanner." 20 Andagaint atp.483it isstated:"Therespondent Commission has, nevertheless, promoted tothepost of Postal Officer, 2nd Grade, interested party Gregoriades instead of the appellant, in spite of the substantially greater seniority of theappellant, and without any really cogent ^ reason for disregarding such seniority." ThePartellidescase wasdecided bytheFull Bench and another casedecided by the Full Bench tackling the same point isThe Republic v. Vonditsianos and others,
(1969)3 C.L.R. 445. These cases were followed, inter alia by thecase of Bagdades v. 30 The Republic,
(1973)3 C.L.R. 417, and Zaferiades v. The Republic,
(1980)3 C.L.R.
- 704 3 C.L.R. 5 JO 15 ~« Georghiou &Others v. Republic Kourris J. In the case in hand the two applicants were promoted to the post of Land Officer on 1.8.1973, whereas the interested party waspromoted tothesame poston 1.6.
- Thus,thetwo applicantsareof equal seniority and they areby almost 5years senior totheinterested party. And thisinaccordance with the-provisions of s. 46
(2)of the Public Service Law, 1967 (Law 33/67). The seniority of thetwoapplicants over theinterested party by almost 5yearsisnotdisputed by therespondents. ' Another point raised by learned counsel for the applicants is that the respondent Commission has not exercised its discretion properly in selecting themost suitablecandidate for promotion in thattheapplicants are strikingly superior tothecandidates selected. Itis well-settled that theparamount duty of the Public Service Commission istoselect themost suitablecandidate and theCourt will not interfere with theexerciseof such discretion or substitute its own discretion if it was reasonably open to the respondent Commission toreach thedecision itdid.The Court will only interfere where theCommission exercises itsdiscretion in anerroneousmanner. Furthermore, the appointing authority in selecting themost suitablecandidatefor appointment orpromotion to high office in theadministrative structure hasquite wide discretionary powers (See Frangos v.The Republic
(1970)3 C.L.R. 312 at p. 343, and Ierides v. The Republic,
(1980)3 C.L.R. 168 at p. 183). 25 30 Thecriteria which thePublic Service Commission havetotake intoconsideration when reaching adecision havebeen expounded in thecase of Republic v.Rousos
(1987)3 C.L.R. 1217decided bytheFull Benchof theSupreme Court which at pp. 1222-1223 reads as follows: "Ontheother hand,thereisnothing intheZachariadescase toprevent givingeffect tothedictum intheMenelaoucase(supra) which was adopted bythe Chartscase that 'merit should carry themost weight', so long asthisis not misunderstood to 705 Kourris J. Georghiou & Others v. Republic
(1988)mean that merit should invariably be treated,in an inflexible way, as being exclusively the decisive criterion because in view of theJudgment in theGeorghiou,lendes andChristou cases (supra),there may exist situations in the special circum stances of which, and provided there are notover-stepped the 5 limits of the properexercise of therelevant discretionary pow ers, a criterion other than merit may be found to be moreim portant than the other But it is, indeed, obvious that cogent reasons should be given in order tojustify why merit has not been treated in a particular case, in view of the existence of ,« special circumstances,as carrying themost weight." An administrative Courtwill notinterfere with thedecision of the respondent Commission if it was reasonably open to it An applicant can succeed if he establishes striking superiority over the candidatepromoted Themeaningof sinking superiority was expounded in thecase of Ηadjisavvas ν TheRepublic,
(1982)3 C.L.R. 76, and was adopted by the Full Bench in thecase ofHftoannou ν The Republic,
(1983)3 CL.R. 1041. ,c In theHadjisavva case at p.78 it is stated "As the expression 'striking superiority' suggests, a party's 20 superiority tovalidate anallegation of this kind,must be selfevident and apparent from a perusal of thefiles of thecandi dates. Superiority must be of such a nature as to emerge on any view of thecombined effect of the merits, qualifications and seniority of the parties competing for promotion; in other ~c words, it must emerge as an unquestionable fact, so telling as tostrike one atfirst sight" TosumupThe duty of the respondent Commission is to select the best candidate and in doing so itshould take intoconsideration merit, 30 qualifications and seniority Inselecting themost suitable candi date for appointmentor promotion to high office in theadminis trative structure,as in the case in hand,it has quite wide discre706 3 C.L.R. 5 - Georghiou &Others v.Republic Kourris J. tionary powers. In cases where the scheme of service requires qualifications for organizing and administrative ability to supervise and guide subordinate staff, as in the present case, then the Commission should pay dueregard totheinterviews but it should not giveundue and disproportionate weight. Where all things are moreor lessequal, seniority ought toprevail. In thecase before us,it isnot indisputethat the qualifications and merit of thetwo applicants and theinterested party are more or less equal. It is also not indispute that the two applicants are JO senior tothe interested party by almost 5years though, the seniority wasacquired not in theimmediately lowerpost.Thetwo-applicants and theinterested party wererated bytheHeadof Department at the interviews as "very good" whereas the respondent Commission assessed the performance at the interviews of the ,c two applicants as "very good" and the performance of the interested party as "very very good". 2fl 25 ^ 35 I have perused the material which was before the Public Service Commission and which is also before us and I am of the view that the respondent Commission has not given cogent reasons for disregarding the substantial seniority of the applicants sinceallother thingswereequal. Ihave nodoubt inmy mind that the decisive factor for promoting the interested party instead of theapplicants was hisperformance attheinterviews. Inmyopinion theperformance attheinterviewsowing toits small duration and alsoowing tothefact that thecandidates areasked questions mainly with regard to their duties, the members of the Respondent Commission were not in a-position to assess the performanceof thecandidates betterthan theHead of Department who isanexpert in thefieldand heisacquainted with thedutiesenvisaged bythescheme of service. Itappears that on the basisof this marginal difference, the Commission proceeded to find that the seniority of the applicants which was very substantial was neutralized bytheslightly betterperformance oftheinterested partyat the interview. In the circumstances, Iam of the opinion that the Public Service Commission gave undue and disproportionate weight totheimpressions created bythecandidates.Further, one 707 Kourris J. Georghiou &Others v. Republic
(1988)should not forget what was rightly pointed out in Smyrnios v. The Republic,
(1983)3 C.L.R. 124, that there is an undeniable possibility that anadroitcandidate,when heisbeing interviewed, may make the Commission think more highlyof him than hedeserves, and on the other hand, atimid or nervous candidate may 5 not be ableto show hisreal merit. In view of tiie above, Iam of the opinion that the respondent Commission, in the subjudice decision, exercised its discretion in anerroneous manner. Iam satisfied that thetwoapplicantsestablished striking superiority over the interested party and thesub JQ judice decision should be annulled. The subjudice decision should beannulled for each and allof thefollowing reasons: (a)The respondent Commission failed togive cogent reasons for disregarding the substantial seniority ofalmost 5years of the 15 two applicants which operated in favour of the two applicants sinceallother things were moreor lessequal. (b) The respondent Commission gave undue and disproportionate weight to theimpressionscreated bythe interested party at theinterview which tainted theexercise of itsdiscretionary pow- 20 er, which was very wide in thecircumstances of thiscase in view of thehigh office in thestructureof the publicservice with irregularityand lackof due inquiry. In the result, case No. 158/86 fails and is dismissed. The recourse succeeds with regard to cases Nos. 36/86 and 123/86 and the promotion of the interested party is set aside, but in the circumstances, Ido not propose tomake anyorder as tocosts. Recourses dismissed by majoritywithnoorder as tocosts. 708 25 30