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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 433
1989 April 12
[A. LOIZOU, P.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
CHRISTOS NEOCLEOUS AND OTHERS,
Applicants,
v.
THE REPUBLIC OF CYPRUS, THROUGH THE EDUCATIONAL
SERVICE COMMISSION,
Respondent.
(Cases Nos. 711/86, 731/86, 739/86, 756/86, 768/86,772/86. 787/86, 4/87, 13/87)
Educational officers - Promotions - Recommendations by department - Allegation of inadequate reasoning and that they were recommendations of the Head of the department and not the department itself - Recommendations need not be specifically reasoned as long as they are not contrary to the confidential reports or to the facts of the case or are justified by the material in the file and that founded by reference to the proper statutory criteria, as they were in the present case -The allegation that the recommendations were not those of the department remain unsubstantiated.
Educational officers - Promotions - Qualifications - Additional qualifications, regarded as an advantage - Scheme of service providing for "additional title preferably in education (paedagogics,)..."- The word "preferably" indicates that the additional title should not necessarily be in education.
Educational officers - Confidential reports - Reports made during a period that they were serving on a post - Subsequent annulment of their promotion to that post - Notwithstanding the annulment, the confidential reports for that period could properly be taken into consideration.
Educational officers - Promotions - Striking superiority - Applicant having an additional qualification, but not recommended for promotion, whilst the interested parties had a slightly better overall picture as regards merit, were senior to the applicant and they were recommended for promotion - Applicant failed to establish striking superiority.
Educational officers - Promotions - Qualifications - Additional qualifications - Promotion of interested party with no additional qualification in preference to the applicant who had an additional qualification - Interested party senior to the applicant by one year and four months - Applicant better in merit - In the absence of cogent reasons why applicant was not preferred, sub judice decision has to be annulled.
Education officers - Promotions - Qualifications - Additional qualifications - Regarded as an advantage by scheme of service - Possessed by applicant, but not by interested party - Applicant and interested party more or less equal in merit, but applicant senior to interested party - In the absence of cogent reasons why applicant's additional qualification and seniority were disregarded, the decision has to be annulled.
Educational officers - Promotions - Qualifications - Additional qualifications - Regarded as advantage by scheme of service - Possessed by applicant, but not by interested party - Interested party better in merit, recommended for promotion, senior by one year and four months and had performed better during the interview- Sub judice decision promoting interested party reasonably open to the respondents.
Educational officers -Promotions - Confidential report- Assumed to be irregularly compiled for years 1975-1976 - It is too distant in time in relation to the sub judice promotions (1988) and, therefore, it cannot be considered as having materially, if at all, affected the decision.
Educational officers - Promotions - Seniority - The Public Educational 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 the days of their appointment to such post, there was no need to refer to the days of their appointment to the previous post, which they held.
Educational officers - Promotions - Recommendations - Officers in 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 regarded as advantage by Scheme of Service - Possessed by applicant, but not by interested parties - Interested parties superior in merit and had been recommended for promotion, whereas applicant was not - Applicant senior to interested parties - Interested parties performed at the interview better than the applicant - Seniority and qualifications do not in the circumstances of this case make the applicant superior or even equal to the interested parties.
Educational officers - Promotions - Striking superiority - Seniority of 2-4 years - In view of the general picture the seniority does not, in this case, render the applicant strikingly superior over the interested parties.
Educational officers - Promotions - Qualifications - Additional qualification regarded as advantage by Scheme of Service- Possessed by applicant but not by interested parties - Both applicant and interested parties had been recommended for promotion Applicant senior to all interested parties - More or less applicant equal in merit to interested parties - Special reasons should have been given for disregarding applicant's qualifications and seniority - Sub judice decision annulled.
Recourse for annulment - Practice - Joining of acts or decisions complained of- Challenging an act completely separately and distinct and totally unconnected with other acts impugned by the same recourse - Wrongly joined - Recourse as far as that act is concerned dismissed.
The above recourses were held together. The facts and principles applied by the Court in either dismissing some of the recourses or in annulling some of the sub judice acts or decisions appear sufficiently in the hereinabove Headnotes.
Recourses 739/86, 756/86 and 13/87
succeed and sub judice decisions therein
annulled.
Recourse 731/86 succeeds in part only.
Subjudice promotion of interested
partiesContopoulos and Michaelides
annulled.
Recourse as against the other interested
parties dismissed.
Recourses 711/86, 768/86, 772/86,
787/86 and 4/87 dismissed.
No order as to costs.
Cases referred to:
Kinanis and Others v. Educational Service Commission (1986) 3 C.L.R. 151,
Georghiou v. Republic (1985) 3 C.L.R. 2105.
Recourse.
Recourses against the decision of the respondents to promote the interested parties to the post of Headmaster of Secondary Education in preference and instead of the applicants.
Cr. Papaioizou, for Applicant in Case No. 711/86.
A. S. Angelides, for Applicants in Cases Nos. 731/86 and 787/86.
Ph. Valiantis for L. Papaphiipou, for Applicants in Cases Nos. 739/86, 756/86 and 4/87.
N. Clerides, for Applicant in Case No. 772/86.
Applicant in Case No.768/87 appeared in person.
G. Triantafyllides, for Applicant in Case No. 13/87.
E. Loizidou (Mrs), Counsel of the Republic B, for the Respondent.
Th. Zervos, for Interested party P. Nicolaou.
M. Papapetrou, for Interested party V. Economou.
E. Efstathiou, for Interested party S. Kontopoullos.
Cur.adv. vult.
A. LOIZOU, P. read the following judgment. By the present recourses which were taken over by me on the 17th February 1988, after the retirement of a fellow Judge, and which were tried together as they present common issues of law and fact, 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.
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 receive for an interview, from the 25th August 1986 to and including the 30th August 1986, all those Assistant Headmasters who satisfied the requirements of the Scheme of Service.
The respondent Commission having completed the interviews, proceeded on the 2nd September 1986 with the evaluation of the candidates who attended the interviews by taking into consideration the following:
a) Fluency and promptness in expression of views.
b) Understanding of problems in the light of current educational trends and approach in salving administrative problems which come within the competency of Headmaster.
c) Scientific substantiation of views.
d) Personality.
It also considered their personal files and confidential reports, the recommendations of the Departments concerned, their merit, qualifications, seniority and decided on the 19thSeptember 1986 to offer promotion as from the 22nd September 1986, to the following:
1. KontopoulosSoterios.
2. ManolisTakis.
3. MichaelidesGeorghios.
4. NicolaouPalladios.
5. EconomouVassilios.
6. PourgouridesConstantinos.
7. HandriotisElladios.
All accepted except Handriotis, therefore the respondent Commission reconsidered the matter afresh and decided to promote Andreas Papamiltiades instead, as from the 22nd September 1986.
The present recourses were filed as against the following:
Case No 711/86, as against interested parties Nos. 1, 2, 3, 4, 5, 6.
Case No. 731/86, as against interested parties Nos. 1, 3, 4, and Papamiltiades.
Case No. 768/86, as against interested parties Nos. 3, 4, 5, and Papamiftiades.
Case No 772/86, as against interested parties Nos. 1, 2, 3, 4, 5, 6, and Papamiltiades.
Case No. 787/86, as against interested parties Nos. 1, 3, 4
Case No. 4/87, as against interested parties Nos. 1, 3, 4 5 and Papamiltiades.
Cases Nos. 739/86 and 756/86, were filed as against interested parties 1, 2, 3, 4, 5 and interested party Roussounides
Case No 13/87, as against interested parties Nos. 1, 3, 4, 5 and interested party Roussounides, as against whom, however, it was subsequently withdrawn.
Interested party Roussounides was promoted as a result of a different process as follows:
The Supreme Court by means of its decision in Recourses Nos. 438/83 and 547/83 reported as Kinanis and Others v. Educational Service Commission (1986) 3 C.L.R. 151 annulled the promotions as from the 5th September 1983, to the post of Headmaster in Secondary Education of A. Panayi, A. Constantinides, A. Chrysostomou and D. Roussounides As 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-examined the filling of the post on the 18th September 1986, under the legal and factual situation as it was on the 3rd September 1983, when the annulled decision had been 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 decision also that recourses Nos. 739/86, 756/86 and 13/87 were filed.
The following arguments were put forward on behalf of the applicants.
In Recourse No. 711/86, 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 Department" himself instead of the "Department" and are therefore contrary to Law.
Recommendations need not be specifically reasoned as long as they are not contrary to the Confidential Reports or to the facts .of the case or are justified by the material in the files and are founded by reference to the proper statutory criteria, as they 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 represented his personal views and not those of the Department generally. (See Georghiou v.The Republic (1985).3 C.L.R. 2105, at 2114-2115).
Secondly it was argued that the respondent Commission failed to inquire into the possession by the candidates of the qualifications as required by the Scheme of Service, that is, good knowledge of one of the prevailing European languages and based this allegation on the fact that the interested parties are graduates of Greek Universities.
From the files before the respondent Commission, there was sufficient material for it to conclude that such interested parties did have the required knowledge of English, as required by the Scheme of Service.
It was next argued that the sub judice decision was reached under a misconception of fact as to the possession by interested party, P. Nicolaou, of the additional qualification as is required by the Scheme of Service, where it is stated that "additional title preferably in Education (Paedagogics) or in matters concerning the administration or organisation of schools, is considered as an additional qualification."
In view of the wording of the Scheme of Service which states "preferably",("με προτίμηση") I would consider that if a candidate has an additional title not necessarily in Education, (Paedagogics) he may satisfy the requirements of the Scheme of 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 and in 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 and 3, 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 had been subsequently annulled by the Court.
I consider that it is not possible to disregard the confidentialreports 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 considered as irregular and were properly compiled in respect of the years in question, the interested parties being validly evaluated for duties they performed.
Finally it was submitted that the applicant was strikingly superior to the interested parties that he possessed additional qualifications whereas the interested parties did not. As regards merit this applicant though in his last Special Report he has been 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 qualifications but he has not been recommended for promotion. He is also junior to all interested parties. I find that this applicant has established no striking superiority over the interested parties and his recourse must consequently fail.
The following further arguments were put forward by the applicant in Recourse No. 731/86. 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 Commission, had an obligation to give special reasoning for disregarding this applicant's additional qualification, which it failed to do, and furthermore that the applicant, is in any event senior and his seniority ought to have prevailed. And last he alleged that undue weight was given to the interviews and that for this reason also the 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 possess same.
This applicant is senior to interested party Nicolaou, by eleven months, as regards interested party Michaelides, who was promoted to the post of Assistant Headmaster on the same date, applicant is senior to him by about three years, as regards their promotion to the previous post. He is however, junior to interested parties Kontopoullos and Papamiltiades.
Interested party Kontopoullos is inferior in merit, has no additional qualification but is senior to the applicant by one year and four months. As in the circumstances I would not regard that such seniority is so substantial as to render him superior to the applicant, in view of the latter's better merit and qualifications and in the absence of cogent reasons why this party was so preferred, I consider that such promotion ought to be annulled.
In comparing the applicant with interested party Michaelides, in merit they have more or less been rated the same and both are being recommended for promotion. Cogent reasons therefore ought to have been given for disregarding the applicant's additional qualification and seniority. The promotion of this party therefore must be annulled for his 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 thisinterested party to the applicant are evident both from the reasons of the responded Commission, as well as from 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 superior at all, in order that such promotion should be annulled by the Court.
Similarly interested party Papamiltiades, is slightly better in merit, was recommended for promotion, is senior by one year and four months but has no additional qualification. Also at the interviews the applicant was considered as Very Good whereas 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 Commission to prefer this interested party to the applicant and that no further reasons are required to those appearing for making this selection. I also find no merit in the allegation of the applicant that undue weight was given to the interviews, as interviews are a factor that must be taken into account when assessing an applicant for promotion, and especially so when the post in question is a high post and such that the personality ofthe candidates is important.
For the above reasons this recourse succeeds as regard interested parties Kontopoullos and Michaelldes but fails as 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 Education, Officers (Supervision and Evaluation) Regulations 1.976, 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 report is compiled 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.
Since in accordance with the Schemes of Service, this applicant would have been eligible for promotion, to the post of Assistant Headmaster after the 26th September 1979, the immediately preceeding year would therefore have been 1978-1979.
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 18 above for the year 1978- 1979
As regards the special report compiled for the year 1975- 1976, even if one were to hold that this report was irregularly and: unnecessarily so compiled, as alleged, I consider it to be too distant in time in relation to the sub judice promotions to have materially, if at all, affected the decision of the respondent Commission.
It was next alleged that the respondent Commission wrongly considered that the applicant was not senior to the interested parties, as in fact such seniority ought to have been calculated as from the date of his promotion to Assistant Headmaster ofSchools of Secondary Education, but from the date of his promotion to the post of Technologist, Scale B13 as in fact was done by the respondent Commission during the course of its deliberations in respect of other promotions to the post of Inspector.
Any conclusions as to the interpretation of the Law reached by the respondent Commission in respect of a different process, under entirely different circumstances, leading to the reaching of another decision, is neither binding on the respondent Commission, nor is necessarily correct, but in any case before one draws any conclusions on this, one has to examine the circumstances of the case and the reasons of the Commission for considering the question of seniority as they did.
Section 37(3) of the Public Educational Service Law, 1969, (Law No. 10 of 1969), provides that:
"Seniority between Educational Officers holding different posts with the same salary conditions, shall be determined according to the dates of their appointment to 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 Assistant Headmaster either in Technical or Secondary Education, and since the interested parties were senior as regards the dates of their appointment to such post, there is no need to refer to their dates of appointment to the previous post.
The next allegation by this applicant that the respondent Commission failed to inquire into the possession by the interested parties of "good knowledge of a foreign language", as is required by the Scheme of Service and that the interested parties being graduates of Greek Universities, did not in fact possess such a qualification must necessarily fail, as it clearly transpires from the personal files of the interested parties which were at all relevant times before the respondent Commission that they did in fact possess such a qualification.
It was further alleged that interested parties P. Nicolaou and V. Economou, do not have a recommendation from the"appropriate Department", that is the Department of Technical Education, but that instead they had such from the Department of Secondary Education. Both interested parties belong to the Department of Secondary Education, even though they were at the time serving in schools of Technical 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 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 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 he has been considered as 'Good'. He has additional qualifications but his overall picture shows him to be inferior to those selected".
I cannot agree with this applicant's allegation that in the above it is stated that he has inferior rating to those selected. It is clear that what is in fact stated is that his excellent ratings do not render him superior, superiority at all times being the result not only of the ratings of a candidate but of the overall picture he presents by taking into consideration all the relevant factors including qualifications, seniority, impressions at the interviews, et cetera. From what has already been stated above, it is evident that this applicant has failed to establish any striking superiority over the interested parties in order to justify an interference by this Court with the sub judice decision. He is not better in merit and he is junior to all those promoted and the mere possession by him of additional qualifications neither gives him such superiority nor merits in the circumstances any further reasoning to that already given by the respondent Commission. His recourse therefore fails.
An additional argument raised in Recourse No. 772/86, is that 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 alsosenior to 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 he lacks the recommendation for promotion which they have and his confidential reports are inferior to theirs, but does not even make him their equal. Moreover they had been considered as better at the interviews which though not a factor that can be taken into consideration on its own, nevertheless is part and parcel of the general picture presented by a candidate, more so in this case where in view of the nature of the post involved the personality of the candidates was a most important factor. For these reasons this recourse fails.
In Recourse No. 787/86, it was further contended that the applicants in this recourse are superior to the interested parties and that they ought to have been promoted instead. I find that applicant Christodoulides, as regards merit, is either slightly inferior or more or less the same as the interested parties, he has no additional qualification, but has been recommended for promotion. At the interview he was considered as good.
Though he is senior to the interested parties between two to four years, his seniority does not by itself and in view of the general picture of this applicant render him strikingly superior over those promoted and his recourse should therefore fail.
As regards applicant Chrysostomis, he has no recommendation, is slightly inferior in merit to. the interested 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.
As I find that he also has failed to establish any striking superiority over the interested parties his recourse: must necessarily fail too.
In Recourse No. 4/87, the arguments contained in the written addresses in case Nos. 711/86 and 772/86, were adopted thereforefor 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 and his recourse must fail.
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 of the files which are before me it transpires that this applicant and the interested parties as regards merit 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 interested parties. He was also rated as Very Good at the interviews. I would consider therefore that in view of the above, this is a proper case where special reasoning should have been given by the respondent Commission for disregarding this applicant's additional qualifications and seniority over the interested parties and this recourse succeeds for this reason.
Finally, in Recourse Nos. 739/86, 756/86, as already stated above, the promotion of D. Roussounides is also challenged which was effected on the 18th September 1986, as a result of a different process of promotions.
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.
Since the decision of the respondent Commission on the 18th September 1986, is a separate and distinct decision to that of the 19th September 1986, and are totally unconnected between them, I consider that they were wrongly challenged in one recourse. (See Conclusions of the Case Law of the Greek Council of State 1929-1959 p. 274, Tsatsos, Recourse for Annulment, 3rd Edition. p. 357).
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.
Both above applicants have additional qualifications, were recommended for promotion and are senior to the interested parties, applicant Kadis in Recourse No. 739/86, between two and four years and, Koudounas in Recourse No. 756/86, between four and eight years. Kadis was considered as "Good" 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 reasoning required to be given in instances as the present ones for disregarding these applicants seniority and additional qualifications. For this reason both these recourse succeed.
For the reasons stated above Recourse Nos. 711/86, 768/86, 772/86, 787/86 and 4/87, fail and are hereby 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 of the interested parties and as regards these it is hereby dismissed.
Recourses Nos. 739/86, 756/86 and 13/87 succeed and the sub judice decision is hereby annulled.
In the circumstances there will be no order as to costs.
Recourses 711/86, 768/86, 772/86,
787/86 and 4/87 dismissed.
Recourse 731/86 succeeds in part.
Sub judice decision in recourses
739/86 756/86 and 13/87 annulled.
No order as to costs.