clr/1989/1989_3A_433.pdf

(1989)Educational officers — Promotions — Striking superiority — Applicant havinganadditional qualification, butnot recommended lor promotion, whilst theinterestedpartieshadaslightlybetteroverallpictureasregards merit, were senior to the applicant and they were recommended for promotion —Applicant failedtoestablishstrikingsuperiority. 5 Educational officers — Promotions — Qualifications — Additional qualifications — Promotion of interested party with no additional qualification in preference to the applicant who had an additional qualification — Interestedpartysenior to theapplicant by one year and ]Q four months — Applicant better m merit — In the absenceof cogent reasons why applicant wasnot preferred, subjudice decisionhas to be annulled Education officers — Promotions — Qualifications — Additional 15 qualifications— Regaided as an advantage by scheme of service — Possessedby applicant, but not by interestedparty — Applicant and interested partv more or less equal m merit, but applicantsenior to interested party — In the absence of cogent reasons why applicant's additionalqualificationandsenionty weredisregarded, thedecisionhasto 2 0 be annulled. Educational officers — Promotions — Qualifications — Additional qualifications — Regarded as advantage by scheme of service — Possessedby applicant,but not by interestedpartv — Interestedparty 25 better m merit, recommended for promotion, senior by one year and fourmonths andhadperformed betterduringtheinterview—Sub judice decisionpromoting interestedparty reasonablyopen totherespondents Educationalofficers—Promotions—Confidential report—Assumed tobe 30 irregularly compiledfor years 1975-1976— It istoo distantin time m relationto thesubjudicepromotions

(1988)and, therefore,it cannotbe consideredashavmgmaterially,ifatall, affectedthe decision Educationalofficers—Promotions — Senionty — ThePublicEducational 35 Service Law, 1969(Law 10/69), section 37

(3)— All candidates in this case held the post of Assistant Headmaster either in technical or secondary education — Since the interested parties were senior as regards thedaysof theirappointment tosuchpost, therewasno need to refer to the daysof theirappointment to theprevious post, whichthey 4 0 held 434 3 CX.R. 5 10 Neocleous &Others v.Republic Educationaloificcrs— Promotions — Recommendations — Officers m secondary education serving in schools of technical education — Recommendation by the department of secondary education — In the circumstances that was the appropriate department to make the recommendations Educational officers — Promotions — Qualifications — Additional qualification regardedasadvantage by Scheme of Service — Possessed by applicant, butnot by interestedparties— Interestedparties supcnor w ment andhadbeen recommended for promotion, whereas applicant wasnot —Applicant senior to interestedparties — Interestedparties performed at the interview better than the applicant— Senionty and qualifications donot inthecircumstancesof thiscasemake theapplicant supcnor oreven equaltotheinterestedparties 15 Educationalofficers—Promotions —Sinking supcnoniy —Seniority of 2-1years—In viewof thegeneralpicture theseniority doesnot, inthis case, render the applicant stnkmgly superior over the interested parties 20 25 Educational officers — Promotions — Qualifications — Additional qualification regardedasadvantageby Scheme of Service— Possessed by applicant but not by interested parties — Both applicant and interestedpartieshad been recommended lor promotion — Applicant seniortoallinterestedparties—Moreorlessapplicant equalinment to interested parties — Special reasons should have been given for disregarding applicant's qualifications and senionty — Sub judice decision annulled 30 Recourse for annulment — Practice — Joining of acts or decisions complainedof— Challenging anactcompletely separatelyanddistinct andtotallyunconnected withotheractsimpugned by thesamerecourse — Wronglyjoined—Recourse asfarasthatactisconcerneddismissed 35 The above recourses were held together The facts and principles applied b> the Court in either dismissing some of the recourses or in annulling some of the sub judice acts or decisions appear sufficiently m the hereinabove Headnotes 40 Recourses 739/86, 756/86 and 13/87 succeedandsubjudice decisions therein annulled 435 Neocleous &Others v.Republic

(1989)Recourse 731/86 succeedsinpart only. Sub judice promotion of interested parties Contopoulos and Michaclides annulled. Recourseasagainst the otherinterested 5 partiesdismissed. Recourses 711/86, 76S/S6, 772/86, 787/86and4/87dismissed. No orderastocosts. 10 Casesreferredto: Kinanis and Others v. Educational Service Commission

(1986)3C.L.R. 151, 15 Georghiou v.Republic

(1985)3 C.L.R.

1. Recourse. Recourses against the decision of the respondents to 20 promote the interested parties to the post of Headmaster of Secondary Education in preference and instead of the applicants. Or. Papaloizou,forApplicantinCaseNo.711/
2. 25 A. S. Angelides, for Applicants in Cases Nos. 731/86 and 787/
3. Ph. Valiantis for L. Papaphilipou, for Applicants in Cases 30 Nos.739/86,756/86and4/
4. N. Clerides,forApplicant inCaseNo. 772/
5. ApplicantinCaseNo.768/87appearedinperson. 35 G.Triantafyllides,forApplicantinCaseNo.13/
6. E. Loizidou (Mrs),Counsel of the Republic B, for the Respondent. Th.Zervos, for InterestedpartyP.Nicolaou. 436 40 3 C.L.R. Neocleous &Others v. Republic M. Papapetrou, for Interested party V. Economou. E. Efstathiou, for Interested party S. Kontopoullos. 5 Cur. adv.vult. A. LOIZOU,P.readthe following judgment. Bythe present recourses which were taken over by me on the 17th February 1988, after the retirement of a fellow Judge, and which were 10 triedtogetherastheypresentcommon issuesoflawandfact,the applicants claim a declaration of this Court that the decision of the respondent Commission to promote the interested parties to the post of Headmaster of Secondary Education is null and void and of no legal effect whatsoever. 15 The respondent Commission, having received the approval of the appropriate Authority for the filling of seven posts of Headmaster of Secondary Education which is according to the relevant Scheme of Service a promotion post, decided to 20 receive for an interview, from the 25th August 1986 to and including the30thAugust 1986,allthoseAssistant Headmasters whosatisfied the requirements of the Scheme of Service. The respondent Commission having completed the 25 interviews, proceeded on the 2nd September 1986 with the evaluation of the candidates who attended the interviews by taking into consideration the following: a) Fluencv and promptness in expression of views. 30 b) Understanding of problems in the light of current educational trends and approach in salving administrative problems which come within the competency of Headmaster. 35 c) Scientific substantiation of views. d) Personality. 40 It also considered their personal files and confidential reports, the recommendations of the Departments concerned, their merit, qualifications, seniority and decided on the 19th 437 A. Loizou, P. IVeocleous&Othersv.Republic

(1989)September 1986 to offer promotion as from the 22nd September 1986.tothefollowing:

1. Kontopoulos Soterios.
2. ManolisTakis.
3. Michaelides Georghios.
4. Nicolaou Palladios.
5. Economou Vassilios.
6. Pourgourides Constantinos.
7. Handriotis Elladios. All accepted except Handriotis, therefore the respondent Commission reconsidered the matter afresh and decided to promote Andreas Papamiltiades instead, as from the 22nd September
8. 5 10 15 The present recourses werefiled asagainst thefollowing: Case No.711/S6.asagainst interested parties Nos. 1,2,3,4, 5.
9. 20 CaseNo.731/86.asagainst interestedpartiesNos. 1.3,4.and Papamiltiades. CaseNo.768/86.asagainstinterestedpartiesNos.3.4,5,and 25 Papamiltiades Case No.772/86,asagainst interested parties Nos. 1,2,3,4,
10. 6,andPapamiltiades. 30 Case No.787/86,asagainst interested parties Nos. 1, 3,
11. CaseNo.4/87.asagainst interestedpartiesNos. 1,3,4,5and Papamiltiades. 35 CasesNos.739/86and756/86,werefiled asagainst interested parties 1,
12. 3,4.5 andinterested party Roussounides. Case No. 13/87.as against interested parties Nos. 1,3,4,5 and interested party Roussounides, asagainst whom, however, 40 it wassubsequently withdrawn. 438 3 C.L.R. Neocleous &Others v.Republic A. Loizou, P. Interested party Roussounides waspromoted asaresult of a different process asfollows: The Supreme Court by means of its decision in Recourses 5 Nos. 43S/83 and 547/83 reported as Kinanis and Others v. Educational Service Commission

(1986)3 C.L.R. 151 annulled thepromotions asfrom the5th September 1983,tothe post of Headmaster in Secondary Education of A. Panayi, A. Constantinides, A. Chrysostomou and D. Roussounides. As 10 against the annulment of the promotions, the respondent Commission filed Revisional Appeal No. 517 which was later withdrawn. The respondent Commission in the light of the aforesaid decision re-examinedthefilling ofthepost onthe 18th September 1986,under the legal and factual situation as it was 15 onthe3rdSeptember 1983,whentheannulleddecisionhadbeen reached and concluded that A. Panayi, D. Roussounides, A. Constantinides. and A. Chrysostomou, were the best and decided to offer them promotion to the post as from the 5th September 1983,retrospectively. It is therefore as against this 20 decision alsothat recourses Nos.739/86.756/S6and 13/87were filed. The following arguments were put forward on behalf of the applicants. 25 In Recourse No. 711/S6, it was contended on behalf of the applicant that inadequate reasoning was given in the recommendations of the Head of the Department, which recommendations were in any case made by the "Head of the 30 Department" himself instead of the '"Department" and are therefore contrary to Law. Recommendations need not be specifically reasoned aslong as they are not contrary to the Confidential Reports or to the 35 facts of the case or are justified by the material in the files and arefounded byreference totheproperstatutorycriteria,asthey were in the present case. From the records of the meetings of the respondent Commission, it cannot be concluded that the recommendations given by the Head of the Department 40 represented hispersonal viewsandnot thoseofthe Department generally. (See Georghiou v. The Republic

(1985)3 C.L.R. 2105, at 2114-2115). 439 A. Loizou, P. Neocleous& Others v.Republic

(1989)Secondly it was argued that the respondent Commission, failed to inquire into the possession by the candidates of the qualifications as requiredby theSchemeof Service,thatis,good knowledge of one of the prevailing European languages and based this allegation on the fact that the interested parties are 5 graduates of Greek Universities. From thefiles before therespondent Commission,there was sufficient material for it to concludethatsuch interested parties did have the required knowledge of English, as required by the 10 Scheme of Service. It was next argued that the sub judice decision was reached under amisconceptionof fact astothepossession by interested party, P. Nicolaou,of the additional qualification as is required by theScheme of Service, where it is statedthat"additional title preferably in Education(Paedagogics) or in mattersconcerning theadministrationororganisation of schools,isconsideredasan additional qualification." 15 20 In view of thewording of theSchemeof Service which states "preferably", ("με προτίμηση"), I would consider that if a candidate has an additional title not necessarily in Education, (Paedagogics) hemay satisfy therequirements of theSchemeof Service. Interested party Nicolaou followed a one year course in Physical Education at the Loughborough College of Education, Leicestershire in England. The respondent Commission evaluated the situation andin the circumstances I find that it reasonably concluded that this interested party satisfied the requirements of the Scheme of Service. It was next argued that as regards interested parties 1 and3, Kontopoulos and Michaelides their confidential reports were wrongly taken into consideration as such were compiled while they were serving as Headmasters, their promotion to which post hadbeen subsequently annulledby theCourt. 40 I consider that it is not possible to disregard the confidential 440 25 3 C.L.R. Neocleous &Others v.Republic A. Loizou, P. reports of these interested parties even though their promotion to the post for which they were reported had been annulled, since such confidential reports did exist, they were not consideredasirregularandwereproperlycompiledinrespectof 5 the years in question, the interested parties being validly evaluatedfor dutiesthey performed. Finally it was submitted that the applicant was strikingly superior to the interested parties that he possessed additional 10 qualifications whereas the interested parties didnot. As regards merit thisapplicant though inhislastSpecial Report hehasbeen rated higher than the interested parties, his other reports are either the same or lower, presenting thus a slightly inferior overall picture to those promoted. He has additional 15 qualifications buthehasnot been recommended for promotion. Heisalsojuniortoallinterestedparties.Ifindthatthisapplicant has established no striking superiority over the interested parties andhis recourse must consequently fail. 20 The following further arguments were put forward by the applicant in Recourse No. 731/S6. It was contended that since three of the interested parties, did not possess additional qualifications, and the fourth Nicolaou. though he did possess such, it was not within the Scheme of Service, the respondent 25 Commission, had an obligation to give special reasoning for disregarding this applicant's additional qualification, which it tailed to do,and furthermore that theapplicant, is in any event senior and his seniority ought to have prevailed. And last he alleged that undue weight wasgiven to the interviews and that 30 lor this reason alsothe promotions ought to be annulled. As regards additional qualifications indeed, as alleged, three of the interested parties do not possess such, though as already stated above interested party P.Nicolaou does possesssame. 35 This applicant is senior to interested party Nicolaou, by eleven months, as regards interested party Michaelides. who waspromoted to thepost ofAssistant Headmaster on thesame date,applicant issenior to him by about three years, asregards 40 their promotion tothe previous post. He ishowever, junior to interested parties Kontopoullos and Papamiltiades. 441 A. Loizou, P. Neocleous &Others v.Republic

(1989)Interested party Kontopoullos is inferior in merit, has no additionalqualification butisseniortotheapplicantbyoneyear and four months. As in the circumstances I would not regard thatsuchseniority issosubstantial astorenderhimsuperiorto the applicant, in view of the latter's better merit and 5 qualifications and in the absence of cogent reasons why this partywassopreferred, Iconsiderthatsuchpromotion oughtto beannulled. In comparing the applicant with interested party 10 Michaelides, in merit they have more or less been rated the sameandbotharebeingrecommended forpromotion. Cogent reasonstherefore oughttohavebeengivenfor disregardingthe applicant's additional qualification and seniority. The promotion of this party therefore must be annulled for this 15 reason. Interested party Nicolaou. is better in merit, has additional qualifications and a recommendation for promotion, but is junior by eleven months. The reasons for preferring this 20 interested party to the applicant are evident both from the reasons oftheresponded Commission,aswellasfrom the files of the interested party and of the case and I consider that the applicant's seniority over this interested party in the circumstances does not render him strikingly superior, or 25 superioratall,inorderthat suchpromotion shouldbeannulled bytheCourt. Similarly interested party Papamiltiades.isslightly betterin merit, wasrecommended for promotion, isseniorbyone year 30 andfourmonthsbuthasnoadditionalqualification. Alsoatthe interviews theapplicant wasconsideredasVery Goodwhereas this interested party made an excellent impression. In the circumstances and from the material from the file, I would consider that it was reasonably open to the respondent 35 Commission to preferthisinterestedpartytotheapplicantand that no further reasons are required to those appearing for makingthisselection. I also find no merit in the allegationof the applicant that undueweightwasgiven totheinterviews,as interviews are a factor that must be taken into account when 40 assessinganapplicantforpromotion,andespeciallysowhenthe post in question isahigh post andsuch that thepersonalityof 442 3 C.L.R. Neocleous &Others v.Republic A. Loizou, P. thecandidates isimportant. For the above reasons this recourse succeeds as regard interested parties Kontopoullos and Michaelides but fails as 5 against the rest. In Recourse No. 768/86, it is alleged that the confidential report (special report), dated 20th December, 1976, for the applicant, is irregular in that it does not comply with the 10 Education Officers (Supervision and Evaluation) Regulations 1976, published in Part Three, of the Official Gazette of the Republic under Notification No.223/76, on the 5th November 1976. which provides that subject to the provisions of Regulation 18,in respect of every educational officer a special 15 report iscompiled at least every two years,beginning from the school year which immediately preceeds that in which he completes the educational service which is required by the relevant Schemes of Service for promotion to the post of Assistant Headmaster. 20 Since in accordance with the Schemes of Service, this applicant wouldhavebeen eligiblefor promotion, tothepostof Assistant Headmaster after the 26th September 1979, the immediately preceeding year would therefore have been 197825 1979. As it appears from the confidential report file of this applicant, which is before me, a special report was in fact compiled in respect of him in accordance with Regulation IS 30 above for theyear 1978-1979. As regards the special report compiled for the year 19751976,even if one were to hold that this report was irregularly andunnecessarily socompiled,asalleged.Iconsider ittobetoo 35 distant intime in relation to the sub judice promotions to have materially, if at all, affected the decision of the respondent Commission. Itwasnext allegedthat therespondent Commission wrongly 40 considered that the applicant was not senior to the interested parties,asinfact suchseniority ought tohavebeen calculatedas from the date of his promotion to Assistant Headmaster of 443 A. Loizou,P. Neocleous& Others v.Republic

(1989)Schools .of Secondary Education, but from the date of his promotion tothe post of Technologist,Scale Β13 as infact was done by the respondent Commission during the course of its deliberations in respect of other promotions to the post of Inspector. 5 Any conclusions as to theinterpretation of the Law reached by therespondent Commission in respect of adifferent process, underentirely different circumstances,leading tothereachingof another decision, is neither binding on the respondent 10 Commission,nor is necessarily correct,but in any case before one draws any conclusions on this, one has to examine the circumstances of thecase andthereasons of theCommission for considering the question of seniority as they did. 15 Section 37

(3)of the Public Educational Service Law, 1969, (Law No. 10of 1969), provides that: "Seniority between EducationalOfficers holding different posts with thesamesalary conditions,shall bedetermined 20 according to the dates of their appointmentto their present posts or if these dates are the same, according to their previous seniority." In the present instance all candidates held the post of 25 Assistant Headmaster either in Technical or Secondary Education, and since the interested parties were senior as regards the dates of their appointmentto such post, there is no needtorefer totheirdates of appointment to theprevious post. 30 The next allegation by this applicant that the respondent Commission failed to inquire into the possession by the interested parties of ''good knowledge of aforeign language", as is required by the Scheme of Service and that the interested parties being graduates of Greek Universities, did not in fact 35 possess such a qualification must necessarily fail, as it clearly transpires from thepersonal files of theinterested parties which were at all relevant times before the respondent Commission that they didin fact possess such a qualification. 40 It was further alleged that interested parties P.Nicolaouand V. Economou, do not have a recommendation from the 444 3 C.L.R. Neocleous &Others v.Republic A. Loizou, P. "appropriate Department", that istheDepartment ofTechnical Education, but that instead they hadsuch from the Department of Secondary Education. Both interested parties belong to the Department of Secondary Education, even though they wereat 5 the time serving in schools ofTechnical Education. It does not transpire from the files of either of these interested parties that the Department of Secondary Education was not the appropriate Department entrusted with the supervision of their duties and work. It appears from their confidential reports that 10 such were compiled by the Department of Secondary Education. Finally it was argued that the reasoning given by the respondent Commission for not selecting the applicant is 15 erroneous. It is stated in the sub judice decision that "he has excellent rating which, however, in its entirety does not make him appear superior to those selected and during the personal interviews hehasbeen considered as'Good'. He hasadditional qualifications but hisoverall picture shows himto be inferior to 20 those selected". I cannot agree with this applicant's allegation that in the above it isstated that hehas inferior rating to those selected. It isclear that what is in fact stated isthat hisexcellent ratings do 25 not render him superior, superiority at alltimesbeing the result not only of the ratings of a candidate but of the overall picture he presents bytaking intoconsideration all the relevant factors includingqualifications, seniority,impressions attheinterviews, etcetera. Fromwhathasalreadybeenstated above,itisevident 30 that thisapplicant hasfailedtoestablish any striking-superiority over the interested parties in order tojustify an interference by this Court withthesubjudice decision. Heisnot better inmerit and he isjunior to all those promoted and the mere possession by him of additional qualifications neither gives him such 35 superiority nor merits in the circumstances any further reasoning tothat alreadygiven bythe respondent Commission. His recourse therefore fails. Anadditional argument raisedinRecourseNo.772/86,isthat 40 the applicant is superior to those selected in that he has the additional qualification required by the Scheme of Service whereas none of the interested parties does and that he is also 445 A. Loizou, P. Neocleous &Others v.Republic

(1989)seniorto them. It is correct that this applicant does possess an additional qualification and is senior to the interested parties, which fact, however, not only does not render him superior to them since 5 he lacks the recommendation for promotion which they have and his confidential reports are inferior to theirs, but does not even makehimtheirequal. Moreover theyhadbeen considered asbetter at the interviews whichthough not afactor that canbe taken into consideration on its own, nevertheless is part and 10 parcel of thegeneral picture presented by a candidate,more so in this case where inview ofthe nature ofthe post involvedthe personality of the candidates was a most important factor. For these reasons this recourse fails. 15 In Recourse No. 7S7/

1. it was further contended that the applicants in this recourse are superior to the interested parties and that they ought to havebeen promoted instead. Ifind that applicant Christodouiides, as regards merit, is either slightly inferior or more orlessthesameastheinterested parties,hehas 20 no additional qualification, but has been recommended for promotion. At the interview he wasconsidered asgood. Though he issenior to theinterested parties between two to four years, his seniority does not by itself and in view of the 25 general picture of this applicant render him strikingly superior over those promoted andhisrecourse shouldtherefore fail. •As regards applicant Chrysostomis, he has no recommendation, is slightly inferior in merit to the interested 30 parties, he has no additional qualification and is senior to the interested party Nicolaou by eleven months, to Michaelides by about four years, but only as regards the date of their first appointment as Secondary School Teachers. He is junior to Kontopoullos. 35 As I find that he also has failed to establish any striking superiority over the interested parties his recourse must necessarily fail too. 40 InRecourse No.4/87,thearguments contained inthewritten addressesincaseNos.711/86and772/86,wereadopted therefore 446 3 C.L.R. Neocleous& Others v.Republic A. Loizou,P. for the same reasons they must be dismissed in the present recourse. Furthermore this applicant has no recommendation and no additional qualifications He is therefore not superior to the interested parties andhisrecourse musttail 5 In Recourse No. 13/87, it was contended that the applicant was strikingly superior to those promoted and should have therefore been promoted instead From a perusal ot the files which are before me it transpires that this applicant and the 10 interested parties as regards ment have more or less the same ratings and have all been recommended Applicant has the additional qualification required by the Scheme of Service whereas the interested parties in this recourse do not and is senior to all interestedparties. Hewas alsoratedas Very Good 15 at theinterviews Iwouldconsider therefore that inview of the above, this is apropercase where special reasoning should have been given by the respondent Commission tor disregarding this applicant's additional qualifications and senionty over the interested parties andthis recourse succeeds tor this reason 20 Finally, in Recourse Nos 739/
2. 756/
3. as already stated above, the promotion ot D. Roussounides is also challenged which was eitected on the 18th September 1986, as a result of a different process otpromotions 25 On behalf of the respondent Commission a preliminary objection was put forward to the effect that the applicants wrongly challenged two separate and distinct decisions of the respondent Commission by means of the same recourse. 30 Sincethedecision of therespondentCommission onthe 18th September 1986,is aseparate anddistinctdecision tothat of the 19th September 1986, and are totally unconnected between them. I consider that they were wrongly challenged in one 35 recourse (See Conclusions of the Case Law of the Greek Council of State 1929-1959 ρ 274, Tsatsos, Recourse for Annulment, 3rd Edition,ρ 357). 40 I shall therefore proceed to examine only the promotions effected as a result of the decision of the respondent Commission on the 19th September 1986 447 A. Loizou, P. Neocleous &Others v.Republic

(1989)Both above applicants have additional qualifications, were recommended for promotion and are senior to the interested parties, applicant Kadis in Recourse No. 739/

1. between two and four years and. Koudounas in Recourse No. 756/86, between four andeight years. Kadis wasconsidered as"Good" 5 at the interviews and Koudounas as"Very Good". In view of the picture presented by both these applicants,I consider the statement appearing in the minutes of the respondent Commission as too general to afford the special 10 reasoning required to be given in instances as the present ones for disregarding these applicants' seniority and additional qualifications. Forthis reason both these recourse succeed. For the reasons stated above Recourse Nos. 711/86,768/86, 15 772/
2. 787/86and4/87,fail andarehereby dismissed. Recourse No. 731/86 succeeds only as against interested parties Kontopoullos and Michaelides whose promotions are hereby annulled, but fails as against the rest ot the interested 20 parties and as regards these itishereby dismissed. Recourses Nos.739/86,756/S6and 13/87succeedandthesub judice decision ishereby annulled. 25 In the circumstances there willbe no order astocosts. Recourses711/S6, 768/
3. 772/86, 787/86 and 4/87 dismissed. Recourse 731/86succeeds inpart. 30 Sub judice decisionin recourses 739/
4. 756/86and 13/87annulled. No orderastocosts. 448