(1989)19S9May 15 [SAW1DES.J.] INTHE MATTER OFARTICLE 146OFTHE CONSTITUTION M1CHALISPHOTIOU, Applicant, v. THE REPUBLIC OFCYPRUS.THROUGH THE PUBLIC SERVICE COMMISSION, Respondent. (CaseNo.54/86) Publicofficers—Promotions—Strikingsuperiority—Merit, qualifications. seniority — Applicant andinterestedpartiesstronglyrecommended for promotion by Head of Department, but interestedparties had better confidential reports than applicant, whilst the latter wassenior to the interestedparties,the seniorityranging from 9months to 4years and2 5 months —Senioritynotsuchas toamount toastrikingsuperiorityinthe circumstances. Publicofficers—Promotions—Strikingsuperiority— Merit, qualifications, seniority—Applicant misamongstthecandidatesstronglyrecommended 10 forpromotion, whilsttheinterestedparties werenot—Thequalifications weremoreorlessequal, whileapplicant was-seniortotheinterestedparties by 7yearsand9months and6yearsand!Imonths respectively—During the4yearsprecedingthesubjudicepromotion the applicanthadexcellent confidential reports — The better older confidential reports of the 15 interestedparties,i.e. thosebefore 19S2, couldnot tip thescalesinfavour of applicant— Sub judice decision annulledas regardstwo interested parties by reason of undue importancegiven to sucholder confidential reports. 20 Publicofficers— Promotions —Strikingsuperioty— Merit, qualifications, seniority — Applicant senior toone of theinterestedpartiesby 5 years 560 3 C.L.R. 5 10 15 Photiou v. Republic and9months, thequalifications weremoreorlessthesame, but, whilst the interested party had excellent confidential reports in all years, the applicanthadexcellent reportstor the \cats I9S2.19S3, l9S4and I9S5 — Applicant was alio recommendedby the Headof the Department— In the circumstancesundue importance attached to the older confidential reports— Subjudicepromotions annulled The issues raised and the principles applied by the Court in dealing within therecourse appearsufficiently inthehereinabove Headnoies The Courtannulledthepromotions of threeof theinterestedparties,becausein the light of theparticular circumstances relating to themerit, qualifications and seniority of the applicant as compared with the respective mem. qualifications andseniority of thesaid interestedpanics,itwas obvious that the respondent Commission did attach undue impoitancc to older confidential reports ιelating to such interested parties,ι e had recourse in respect of periods,preceding thepromotionb>more than five years Promotion of three interested parties annulled Recoursea* regardsthe other interestedpartiesdismissed. So order as tocosts 20 Case referredto. 25 Papantomou andAnother ν Republic
(1983)3CLR (U Recourse. 30 Recourse against the decision of the respondent to promote the interested parties to the post of Ward Supervisor in the Medical and Health Services in preference and instead of the applicant. M. Tsangmdes, for the Applicant. 35 P. Hadjidemetriou, Counsel of the Republic B, tor the Respondent. A. Sofocleous tor A. Skordis, for Interested parties. 40 Cur. adv. vult. 561 Photiou v. Republic
(1989)SAWIDES,J.readthefollowingjudgment.Bythisrecourse, the applicant challenges the promotion of the interested parties to thepost of Ward SupervisorintheMedical andPublicHealth Services. 5 The interested parties are:
(1)Loizos Yiangou,
(2)Yiannis Papettas,
(3)Demetris Elia,
(4)KlementiaPavlou,
(5)Maroulla Antoniou,
(6)Georghia Demetriadou,
(7)Angeliki Geroudi,
(8)Avgi Pieridou,
(9)Ioulia Papadopoulou,
(10)Penelopi Yerou,
(11)Charoulla Demetriadou and
(12)AndroullaSawidou. 10 Although it was originally decided that this case should be dealt together with CaseNo.217/86,1decidedto issue separate judgments inview ofthe different legalissuesraisedineach one of them. 15 Thefacts relevant to thisrecourse arebriefly asfollows: In the process of filling twelvevacanciesin thepost of Ward Supervisor in the Medical and Public Health Services, the 20 Departmental Committee, which considered the matter, submitted, on the 8th November 1985, its report to the respondent by which it recommended 39 candidates, including theapplicantandtheinterestedparties.Atitsmeetingofthe28th November 1985, the respondent considered the report of the 25 Departmental Committee and on the 13th December 1985,it heard the views of the Head of the Department who recommended sixteen candidates as the most, suitable for promotion, amongst whom the applicant and the interested parties except interested party No.
- The head of the 30 Department then selected twelve candidates out of the sixteen recommended by him, as the most prevailing, amongst whom the applicant and eight of the interested parties and reported about theperformance ofthecandidates during
- 35 The respondent met again on the 14th December 1985,and after taking into consideration and comparing the merits, qualifications andseniority ofthecandidates,proceededtoselect the interested parties for promotion tothepost in question. 40 Asa result the applicant filedthepresentrecourse. 562 3 C.L.R. Photiou v. Republic Savvides, J. Counsel for applicant argued in his written address that the most decisive factor in the sub judice promotions were the confidential reports of the parties which, however, were prepared by different reporting officers. Although the applicant 5 hasbetterqualifications thaninterestedpartiesNos. 1,2,4,6,9and 11 andequaltothoseofinterestedpartiesNos.7and 10,issenior toallinterested partiesexcept No 12hasbeenrecommendedby the head of the Department and his confidential reports since 1982were excellent, the respondent, attaching undue weight to 10 theconfidential reports of thecandidatesbefore 1982 promoted theinterestedparties instead ofhim. Counsel for the respondent argued that merit is the most important of the three criteria set out in the Law and that the 15 most important factors to be taken into consideration in assessing merit are the confidential reports of the candidates even when they were prepared by different reporting officers. Thatapplicant'sconfidential reportswereinferior tothoseofthe interestedpartiesfour ofwhomhadalsobetterqualifications and 20 he wassenior to all of them except one. He further argued that the respondent gave due regard to the recommendations of the headoftheDepartment andspecialreasoningwasgivenbyitfor preferring interested party I. Papadopoulou, who was not recommended by the Head of the Department. Lastly, counsel 25 submitted, the applicant failed to establish any striking superiority overtheinterestedparties. As it hasbeen stressed in a number of cases for an applicant to succeed in his recourse against promotions, he has to show 30 striking superiority over those promoted, mere superiority not beingenough. Ineffecting promotionstherespondenthastogivedueweight to the merits, qualifications and seniority of the candidates and 35 alsotakeintoconsiderationtherecommendationsoftheHeadof the Department regardingthem. Inassessingthemeritsofthecandidatestherespondentshould take into consideration their confidential reports and also the 40 recommendations of theheadofthe Department concerned.As stated in the case of Papantoniou and Another v. The Republic
(1983)3C.L.R.64,atp. 73: 563 Suvvidcs. J. Pholiou v. Republic (19891 "... Confidential reports are an irreplaceable guide to the overall picture of the merits of a candidate,as proclaimed by the Supreme Court in Erangelou v. The Republic {\965) 3 C.L.R.
- Although greater flexibility is allowed in the comparison of confidential reports prepared by different reporting officers, confidential reports remain thefirst pointer to one's merits as revealed from hisservice record". 5 In the present case, the head of the Department recommended sixteen candidates as the most suitable for 10 promotion. Both applicant and the interested parties, except interested party I. Papadopoulou, were amongst the sixteen candidates so recommended. The head of the Department however, went on and made afurther selection of twelve out of these sixteen candidates whom he recommended again as the 15 most prevailing of the sixteen. Although all sixteen candidates have the recommendation of thehead of the Department,itcan be said tor the last twelve finally selected as prevailing that they have astronger recommendationby theheadof the Department. Those more strongly recommended are the applicant and 20 interested parties Nos. 2,3,4.5.6.7.10 and
- Interested parties Nos. l.S and 11were amongst thesixteen recommendedbut not amongst the twelve more strongly recommended candidates. whilst interested party No.9, namely I.Papadopoulou.was not amongst those recommended by thehead of the Department. 25 Ϊ will deal first with the case vis-a-vis the applicant and interested parties Nos. 2.3,45.6.7,10 and
- who were all "stroniUv" recommendedbv thehead of the Department. 30 All those interested parties have better confidential reports than the applicant and the respondent, as it appears from its minutes did not lose sight of the fact that the reports were prepared bv different reporting officers. 35 Regarding qualifications although certain interested parties appear to have a slight superiority over the applicant, who, on the otherhandis slightly superior toothers,these differences are not so material andall parties maybe regarded asbeing more or less equal in this aspect. 40 In respect of seniority theapplicant isadmittedly senior toall 564 3 C.I..R. Photiou v. Republic Savvides, J. these interested parties,except No.
- namely.A. Savvidou. His seniority ranges from ninemonthstofour years andtwomonths. Bearing in mind the above, the seniority of the applicant cannot amounttoastriking superiority inthecircumstances. As a result Ifind thatthesubjudice decision was reasonably opento the respondent and this recourse against interested parties Nos. 2.3.4.5.6.7.10and 12has to be dismissed. I will now consider the recourse against interested parties Now. 1.8 and 11who.although recommendedby theHeadofthe Department were not included, as the applicant was. amongst those more strongly recommended. All parties may be considered as more or less the same regarding qualifications, in thecase of interested party No.11 the stronger recommendation of the applicant cannot counterbalance the better confidential reports of this party and the slight seniority (nine months) of the applicant does not amount in the circumstances to superiority, even more to striking superiority, so as to entitle the Court to annul the sub judice decision. The recourse, therefore, against this interested paiiy is also dismissed. Inthecase of interestedparties Nos. 1 andS. hoverer, bearing in mind the stronger recommendation of the applicant, his outstanding seniority over the interested parties,whichamounts toseven years midninemonthsandsix years andeleven months respectively, and the fact that his confidential reports between 1982 and
- inclusive, were also excellent. I find that the weight attached to the older confidential reports οϊ the parties. before
- was an undue one in the circumstances, having regard also to the fact that they were prepared by different reporting officers. What remains to be considered is the recourse against interested party No.
- I. Papadopoulou. who was not recommended by the Head of the Department. Although this party had excellent reports in all vears. the applicant, who had also'excellent reports in 1982.' 1983.1984 and 1985 was recommended by theheadof the Departmentandhas five years and nine monthsseniority over her. In the circumstances I find 565 Savvides, J. Photiou v.Republic
(1989)that in this case, also, the respondent attached undue weight to the older reports of the parties and that therecommendation of the applicant by the Head of the Department and his seniority could not be outweighed by the difference in their past confidential reports,before 1982. 5 In theresult thisrecourse succeeds partly andthe promotion of interested parties Nos. 1,8 and 9, namely, L. Yiangou, Av. Pieridou and I. Papadopoulou is hereby annulled with no order for costs. 10 Promotion of three interested parties annulled. Recourse as regards the other interested partiesdismissed. No orderas to 15 costs. 566