3 C.L.R. 1989 March15 [KOURRISJ.] INTHE MATTER OFARTICLE 146AND2SOF THE CONSTITUTION COSTAS PROTOPAPAS. Applicant. v. THE REPUBLIC OF CYPRUS.THROUGH THEEDUCATIONAL SERVICECOMMISSION, Respondent. (CaseNo.303/S6) 5 Educationalofficers— Promotions— Convictionforadisciplinaryoffence of aserious natureduring a two-yearperiodpreceding the promotions (The Public Educational Service Law. 1969,section 25(t)(d)) — Whether the disciplinary offence of promoting irregularlyapupil who was applicant's daughter contrary ιο Reg. 10 of the Elementary Education(Operation of Schools)Reg. 1976of a serious nature— As the type washeldundersection 7(Xb) of the saidLaw. the decision to exclude the applicant from the subjudicc promotion, wasreasonably open to therespondents. 10 Educational officers — Promotion — Qualifications — Candidates possessing additionalqualifications, but one of them possessing alsoa B.A..degreeinGeography— Inthecircumstances thesaidqualification shouldnot weighgreatly in themindof the Commission. 15 Educational officers — Promotions — Striking superiority — Burden to establish — Review ofauthorities. 20 By means for this recourse the applicant impugns a decision to promote the interested parties to the post of Headmaster in·the elementary education as from 1/9/1990. The applicant had been 335 Protopapas v. Republic
(1989)excluded from thepromotionsontheground thathehadbeen convicted for a serious disciplinary offence during the two-year preceding the aforesaid promotions. The Court,in dismissing therecourse, thought that it was reasonably 5 open in the circumstances for the respondents to exclude the applicant from thepromotions in question. Inany event, theCourtexamined the merits of the case and decidedthattheadditional qualification of a B.A. in Geography could not in thecircumstances weigh greatly in the scales and that,in any event, theapplicant didnotestablish striking superiority \Q vis a vis the interested parties. Recoursedismissed. No orderas to costs. \5 Casesreferred to: Meletis andOthers v.Pons Authority andAnother
(1987)3 C.L.R.1984, Panayidcs v. Republic
(1973)3 C.L.R. 378, 20 Georghiades andAnother v.Republic
(1970)3 C.L.R.257, Demosthcnous v.Republic
(1973)3 C.L.R.534, Georghiou v. Republic
(1976)3 C.L.R.74, 25 Hadjisavva v. Republic
(1982)3C.L.R. 76, ι Spanos v.Republic
(1985)3 C.L.R. 1826, 30 Kolokotronis v.Republic
(1980)3 C.L.R.
- Recourse. Recourse against the decision of the respondent to promote 35 the interested parties to the post of Headmaster in the Elementary Education in preference and instead of the applicant. A. Papacharalambous, for the Applicant. R. Petridou (Mrs), Counsel of the Republic B, for the 336 40 3 C.L.R. Protopapas v. Republic Respondent. A. S.Angelides,fortheInterestedparties. 5 Cur. adv. vult. KOURRIS,J.readthefollowingjudgment.Bythisrecourse, applicant challenges the decision of the Educational Service Commission dated 17.1.1986, and published in the Official 10 Gazette on21.2.1986,to promote theinterested partiestothe post of Headmaster in the Elementary Education as from 1.9.1980inpreference toandinsteadoftheapplicant. Before the subjudice decision the applicant and interested 15 parties were holdingthe post of Assistant Headmasters inthe elementary education. Theinterested parties are Elli Saranti, ElliG.SeppouandChrysanthosZographos. The Educational Service Committee at its meeting of 20 17.1.1986,decidedtopromotetheinterested partiesinsteadof the applicant and the applicant, feeling aggrieved, filed the presentrecourse,hisgroundsbeingfirstly thathehasadditional qualifications inaccordancewiththeschemeofserviceandthe Educational Service Commission failed tomake adueinquiry 25 andgiveduereasoningwhytheyfailedtopromotehim. The second ground is that the disciplinary conviction of applicant unders.35(l)(d)ofthePublicEducational Law1969, Law 10/69, was wrongly taken into consideration by the 30 Educational ServiceCommission becausenowherethereisany finding for a serious disciplinary offence. Applicant on 19.10.1978 was sentenced to £40 fine for the disciplinary offence of promotingirregularlyapupilwhowashisdaughter, contrarytoReg.10oftheElementaryEducation(Operationof 35 Schools)Regulations
- Counsel for the respondent alleged that applicant has no legitimate interest to file a recourse against the interested parties because at the material time, that is on 1.9.1980,the 40 periodof2yearsfrom hisconviction hasnot elapsedbyvirtue ofs.25(l)(d) of Law 10/69whichreadsasfollows:337 Kourri.s, J. Protopapas v. Republic
(1989)"35.-(I) Ουδείς εκπαιδευτικός λειτουργός προάγεται εις άλληνθέσιν,εκτός εάν(δ)δεν ετιμωοήθηδιαρκούσηςτης προηγουμένηςδιετίας 5 διαπειθαρ/ικόν αδίκημασοβαράς φύσεως". The question which poses for consideration is whetherthe disciplinary offence with whichapplicantwas charged was ofa serious natureornot. 10 Thedisciplinary offence wastriedinaccordance withs.70(b) of Law 10/69which provides forthetrial of serious disciplinary offences. 15 It was reasonably open for the Educational Service Commission to follow the procedure set out unders. 70(b)of the said law which is a provision for serious disciplinary offences because in substance this offence involves abuse of power onthepartof theapplicant. 20 In these circumstances,Iholdtheview thatthe disciplinary offence with which applicant was charged, was of a serious nature and as 2 years have not lapsed from the date of his conviction up to the moment the Educational Sen-ice 25 Commission took the sub judice decision; applicant has no legitimate interest to file the present recourse and for this reason alonethe recourse is dismissed. (Meletis and Others v. The Ports Authority and Another
(1987)3 C.L.R. 1984, Petrakis Panayides v. Republic
(1973)3C.L.R.378. 30 I propose, however, to deal with the substance of the recourse if it were heldthatapplicanthadalegitimate interest tofile thepresent recourse. 35 Now, with regard to the B.A. Degree of the applicant in Geography obtainedintheCyprus College. Applicant, as well as all the interested parties possessed qualifications additional to those required by the scheme of 40 service but the applicant possessed in addition to the qualifications required by thescheme of service aB.A. degree 338 3 C.L.R. Protopapas v. Republic Kourris, J. ingeography which the other interested parties donot possess. In my view, since all the interested parties possessed qualifications additional to those required by the scheme of service,the fact that the applicant possesses alsoa B.A. degree 5 in Geography should not weigh greatly in the mind of the Commission who should decide in selecting the best candidate on the totality of the circumstances before them. I propose to deal with the last ground to the effect that the 10 respondent Commission failed to select the most suitable candidate. The burden is upon the applicant to establish that he was strikingly superior to the interested parties in order to succeed 15 inhisrecourse. (Georghiades andAnother v.The Republic
(1970)3 C.L.R. 257 and Demosthenous v. The Republic
(1973)3C.L.R. 534). It isa well-settled principle of administrative lawthat when 20 an organ such asthe Educational ServiceCommission selectsa candidate on the basis of comparison with others, it is not necessary to show, in order to justify his selection that he was strikingly superior to others. On the other hand, an administrative Court cannot intervene in order to set asidethe 25 decision regarding such selection unless it is satisfied, by an applicant in a recourse before it, that he was an eligible candidate who was strikingly superior to the other who was selected,because onlyin such acase theorgan which has made selection for the purpose of an appointment or promotion is 30 deemed to have exceeded the outer limits of its discretion and, therefore, to have acted in excess or abuse of its powers. (Odysseas Georghiou v.TheRepublic
(1976)3 C.L.R. 74 at p. 83). 35 Thenotion ofstrikingsuperioritywasexpounded inthecase of Hadjisavva v. TheRepublic
(1982)3 C.L.R. 76 at p. 78, andalsointhecaseof Spanos v.TheRepublic
(1985)3C.L.R. 1826at p.1832. 40 From the material before the Educational Service Commission, it appears that in the light of the confidential reportsinrespect oftheinterested parties andtheapplicant for 339 Kourris,J. Protopapas v.Republic
(1989)the years 1975/76, 1977/78 and 1979/80, that applicant and interested parties Elli Seppou andChr. Zographou are equally graded, but interested party Elli Saranti is better graded than the applicant. Thus, Elli Saranti israted with 36 points for the year 1975/76 and 37 points for the years 1977/78.Elli Seppou 5 is rated with 36 points for the years 1975/76, 36 points for the year 1977/78,and 37 points for the year 1979/
- Chrysanthos Zographos is rated with 36 points for the year 1975/76, 36 points for the year 1977/78and37points for the year 1979/
- Applicant, Costas Protopapas, is rated with 36 points for the 10 years 1975/76,and 36 points for the year 1977/
- All interested parties and applicant have been promoted to the post of Assistant Headmaster in the elementary education on 1.7.1972; but Elli Saranti is 27 years in the Service, Elli 15 Seppou 26years in the Service,andChrysanthos Zographos 24 years,whereas applicant has 19years in the Service.By virtue of s.37
(2)of the Public Educational Service Law, 1969, (Law 10/69) allthe interested parties are seniorto the applicant. 20 Furthermore, all interested parties have been recommended for promotion by the departmental committee, whereas applicant has not been so recommended. Inviewoftheabove,applicantfailed tosatisfy thisCourtthat 25 he was a candidate strikingly superior to the interested parties, due to qualifications or otherwise, so that the Court could intervene in his favour and annul the sub judice promotion of the interested parties. (See Kolokotronis v. The Republic
(1980)3C.L.R. 418). In view of the foregoing, I am of the opinion that applicant has failed to discharge the burden of establishing that he was strikingly superior to the interested parties,so as to justify the intervention of the Court inhisfavour. Iwouldliketo addthat 35 in proceedings such as the present recourse this Court will not interfere with the exercise of the discretion of the respondent Commission in making promotions if the decision of the Commission was reasonably open to it inthe circumstances of the case; and that in the present instance, on the basis of the 40 material that was placed before the Commission, it was, in my view, reasonably open to it to arrive at itssubjudice decision. 340 30 3 C.L.R. Protopapas v. Republic Kourris, J. For all the above reasons, the recourse isdismissed but with no order for costs. Recoursedismissed. No orderastocosts. 341