|
ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
|
|
|
(1989) 3A CLR 513
1989 April 25
[A. LOIZOU, P.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
CHRISTOS THEOFILLIDES AND OTHERS,
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH THE EDUCATIONAL
SERVICE COMMISSION,
Respondents.
(Cases Nos. 96/87, 97/87, 112/87, 130/87)
Educational officers - Educational Service Commission - Members of - Need not possess themselves all the qualifications which are required of the candidates.
Educational officers - Promotions - Interviews - Record - Whether obligation to keep record of the questions and answers given by candidates - Question determined in the negative - The only duty is to record the findings as to the performance of each candidate and make their comment on the basis of such finding.
Educational officers - Promotions - Interviews - Questions put to candidates not the same or similar - Whether ground for annulment - Question determined in the negative - In selecting the most suitable candidate the Commission is vested with great discretion - There can be no uniform test as to the way an interview is conducted.
Constitutional Law - Equality - Constitution, Art. 28 - Different questions put to candidates for promotion at relevant interview, whether it amounts to contravention of principle of equality - Question determined in the negative.
Presumption of regularity - Notification published in the Official Gazette of 31 October 1986 that an officer was appointed to a post as from 20 October 1986 - In the absence of evidence to the contrary, the publication does not establish retrospectivity in the appointment.
Educational officers - Promotions - Qualifications - Additional to those required by Scheme of Service, but not regarded as an advantage - They must be disregarded, but must be taken into consideration so far as the general picture of the candidates is concerned.
Due inquiry - Presumption of regularity - Failure to include in a table attached to the opposition of the recourse a qualification possessed by one of the applicants - Table merely prepared by Counsel for the purposes of the recourse -.As the qualification in question appeared in the files, it cannot be said that the Commission disregarded it.
Educational officers - Promotions - Interviews, performance at - The necessary importance must be given to them, especially when the post in question is a high executive post.
Educational officers - Appointments/promotions - First entry and promotion post - Promotion post as far as all the candidates in the present case were concerned - Seniority could not, therefore, be disregarded - The Public Educational Service Law, 1969, Law 10/1969, section 35.2.
By means of the above recourses the applicants challenge the decision of the respondent commission to promote the interested party to the post of Headmaster of the Paedagogical Academy. The issues, which have been raised and the relevant principles, applied by the Court in disposing them, sufficiently appear in the hereinabove Headnotes. The Court concluded that the sub judice decision was reasonably open to the respondent Commission.
Recourses dismissed. No order as to
costs.
Cases referred to:
Hadjigeorghiou v. Cyprus Tourism Organization (1986) 3 C.L.R. 1110,
Makrides v. Republic (1983) 3 C.L.R. 750,
Hadjiantoni and Others v. Republic (1983) 3 C.L.R. 1145,
Andronikou and Others v. Republic (1987) 3 C.L.R. 1237,
Demetriades v. Republic (1988) 3 C.L.R. 1034,
Republic v. Panayiotides (1987) 3 C.L.R 1081,
Frangos v. Republic (1970) 3 C.L.R. 312.
Recourses.
Recourses against the decision of the respondents to promote the interested party to the post of Headmaster of Paedagogical Academy in preference and instead of the applicants.
K. Talarides, for the Applicant in Cases 96/87 and 97/87.
A. Markides, for Applicant in Case No. 112/87.
A. Adamides, for Applicant in Case No. 130/87.
A. S. Angelides, with Ch. Ierides, for the Interested party.
Cur. adv. vult.
A. LOIZOU, P. read the following judgment. The applicants in these recourses challenge the decision of the respondent Educational Service Commission, to promote the interested party to the post of Headmaster of the Paedagogical Academy. They involve common questions of law and. fact and for that reason they were heard together.
At its meeting of the 4th December, 1986, the respondent Commission decided to invite all the candidates for a personal interview. Thereafter at its meeting of the 18th October 1986 it decided that:
"For the evaluation of the candidates in the course of the said interviews there will be taken into consideration the following criteria:
(a) Lingual ease and readiness in the formulation of views.
(b) Grasping of problems within the framework of modem teaching. Perception and approach to organising and administrative problems, coming within the competence of the Headmaster Paedagogic Academy.
(c) Scientific documentation of views.
(d) Personality."
The respondent Committee at a series of meetings interviewed the candidates in the presence of the Head of Secondary Education. At the end of each meeting it proceeded to evaluate the performance of the candidates at the interviews. After the conclusion of the interviews the respondent Commission considered the personal and confidential reports of all the candidates.
On the 29th November t986, the Head of Secondary Education submitted the recommendations of the appropriate Department which read as follows:
"After considering the personal files and the confidential reports of all the candidates, for the post of Headmaster Paedagogical Academy and after taking into consideration their performance at the interviews, all candidates were found suitable for the said post and the Commission is requested to proceed with its selection for the filling of the post."
At the meeting of the 4th December 1986, the respondent Commission dealt with the merit of the candidates and the relevant minute reads:
"Merit. For the determination of the merit of the candidates the Commission takes into consideration.
(a) the contents of the personal and confidential report files, of each candidate and the totality of his service reports by giving special weight to the most recent.
(b) the performance of the candidates at the personal interviews.
(c) the recommendation of the appropriate Authority."
The respondent Commission further dealt with the qualifications required by the Scheme of Service and the seniority of the candidates.
Finally the respondent Commission on the basis of the provisions of the Law and of the Schemes of Service and after taking into consideration the merit qualifications, and seniority of the candidates and by evaluating together all the criteria and giving due weight to each one of them, arrived at the conclusion that Mr. Aris Georghiou, Inspector "A" (Secondary Education), "presents by comparison the best picture of all the candidates and he is the most prevailing candidate for promotion to the above post."
The respondent Commission then dealt with the qualifications and marks of the interested party in the confidential reports and concluded by adding that "at the personal interview he was described as excellent". The respondent Commission thereafter proceeded to make a comparison of the interested party with each and everyone of the candidates by reference to their qualifications, seniority, marks in the confidential reports and the performance at the interviews".
One of the grounds on which the recourses were fought was that the members of the Commission were not in a position to assess properly the performance of the candidates at the interview on the basis of the criteria which they themselves had specified by their decision of the 18th October, 1986. In particular, with regard to criteria (b) and (c) it was contended that the members of the Commission had no knowledge of "the problems within the framework of modem teaching perception et cetera" and that they were not scientifically equipped so as to evaluate "a scientific documentation of views".
Learned counsel for the applicants in Recourses 96/87, and 97/87, went a step further and submitted that since the respondent Commission had specified scientific criteria for the evaluation of the candidates, its members had therefore to be experts in matters of Education which they were not since only one of them - Mr. Tornaris - was scientifically equipped in Education.
There is no requirement in the Public Educational Service Law 1969 (Law No. 10 of 1969), or elsewhere for members of the respondent Commission to possess themselves all qualifications which may possibly be required of the candidates. They were people involved in Education, including one of them who is an expert, with vast experience in the field of work they were performing I see therefore no valid reason to question the ability of the respondent Commission to apply the test it did.
It was also submitted that in the absence of a record of the questions and answers at the interviews, the Court is today deprived of the necessary material in order to be enabled to control judicially the decision of the respondent Commission regarding the performance of the candidates at such interviews.
The desirability of keeping proper records by collective organs in order that judicial control may be possible has been stressed by the Court on numerous occasions in the past. Nevertheless there is no requirement to keep full records of the questions and answers given by the candidates but "their duty is limited to record their findings as to performance of each of the candidates at the interviews and make their comments on the basis of such findings." (See Hadjigeorghiou v. Cyprus Tourism Organization (1986) 3 C.L.R. 1110 at 1 120. Also Makrides v. The Republic (1983) 3 C.L.R. 750; Hadjiantoni and Others v. The Republic (1983) 3 C.L.R. 1145; Andronikou an Others v. The Republic (1987) 3 C.L.R. 1237 at p. 1244.)
Once there was sufficient record of their findings, as is required above, there was no further need for a more detailed record and this ground therefore must fail.
A further argument related to the matter of the interviews put forward in Recourses Nos. 96/86, 97/86, is that the questions put to the candidates were not the same or similar and that therefore the respondent. Commission had acted contrary to Article 28 of the Constitution, having thus contravened the principle of equality.
There is no such requirement when interviewing, candidates to pose to them the same or similar questions, as the purpose of the interviews generally is to ascertain the suitability of each candidate for the particular post in question, a matter to which obviously there cannot be applied any uniform test as the way an interview is conducted may depend to a great extent to each individual candidate. In any case the respondent Commission in its duty to select the most suitable candidate is vested with great discretion. See Demetriades v; The Republic (1988)3 C.L.R. 1034, where it was held that the Public Service Commission, validly examined the applicant in more subjects than the other candidates in its effort to ascertain whether anyone candidate possessed the required qualifications at the required standard and which does not amount to discrimination.
It was further contended that the attendance at the, interviews prior to the 31st, October 1986, of the Director of Secondary Education, Mr. Koullis, as the representative of the appropriate Department, was wrong in law as the appropriate officer was the Director of Secondary and Higher Education to which post Mr. Koullis was given an acting appointment, as argued; on the 31st October 1986 retrospectively as from the 20th October 1986 So it was alleged in fact that Mr. Koullis did not in fact hold the said post: prior to the 31st October 1986.
As it appears in the Official Gazette of the Republic of the 31st October 1986, under Notification No. 3098, Mr. Koullis was appointed to such post as from the 20th October 1986, but it is not stated therein that such appointment was as alleged effected on the 31st October 1986; retrospectively as from the 20th October 1986. Therefore in the absence of evidence to the contrary and on the presumption of regularity the attendance of Mr. Koullis was not contrary to law but was in such capacity as is required in the present case. The argument must therefore fail.
Another argument is that the respondent Commission disregarded the fact that the applicants possessed higher qualifications than the interested party and or failed to conduct a proper inquiry into their possession of such qualifications. It is not disputed that the applicant possessed such qualifications but as is the general principle qualifications over and above those required by the Scheme of Service, do not work to such candidate's advantage vis-a-vis the qualifications possessed by the other candidates. Undoubtedly they are not to be disregarded, but must be taken into consideration so far as the general picture of the candidate is concerned.
As regards the allegation on behalf of applicant in Recourse No. 112/87, that the respondent Commission failed to conduct the necessary inquiry into his possession of a certain qualification as such is not contained in the comparative table attached to the Opposition, in the first place I must state that such comparative table was merely prepared for the purposes of the present recourse and is therefore of no value but more important it was never before the respondent Commission at the relevant time. In any case in the present instance since all the qualifications of the candidates as contained in their personal files were before the respondent Commission they cannot be said to have either been disregarded or that the respondent Commission failed to conduct the necessary inquiry, and consequently this argument must fail.
It was finally contended on behalf of the applicants that the promotion of the interested party should be annulled as in reaching the sub judice decision the respondent Commission gave undue weight to the impressions created by the candidates at the interviews and to the interested party's seniority.
As far as the question of interviews is concerned though undoubtedly undue weight should not be given to the performance of the candidates at them, nevertheless, such performance since it may reveal the candidates' personality and abilities and to a certain extent assist in the evaluation of their qualifications, not only it must not be ignored as this would defeat the purpose of having interviews, but the necessary importance must be given to them, especially here the post to be filled is a high executive post for which such qualities are most important, as is the present case. (See Andronikou and Others v. The Republic (1987) 3 C.L.R. 1237 at p. 1244; Republic v. Panayiotides (1987) 3 C.L.R. 1081 at p. 1088.)
Therefore I find that in the circumstances the respondent Commission was justified in taking into consideration to the extent it did the performance of the candidates at the interviews and I do not consider that undue weight was in any way given to them.
As regards the contention that the respondent Commission erred in taking into consideration the seniority of the candidates, as the post was not a promotion post but a first entry and promotion post, and since the candidates came from different departments in which case no question of seniority should have arisen I find no merit in it. In the first place as far as all parties are concerned, the post of Headmaster of the Paedagogical Academy, is a promotion post within the meaning of Section 23 of the Public Educational Service Law, 1969 (Law No. 10 of 1969), and in accordance with Section 35(2) of the Law "the claims of officers to promotion shall be considered on the basis of merit, qualifications and seniority".
In the present circumstances the respondent Commission could not without valid reason have disregarded the seniority of the interested party over the applicants, in which case special reasoning would have been required to be given, as in accordance with the established principles seniority prevails when all other things are equal.
In conclusion I find that on the facts it was reasonably open to the respondent Commission to select the interested party for the post in question; I also find that it exercised its discretion properly and within the provision of the law, such discretion to select the most suitable person for the post, which in this case was a high post, in the educational hierarchy being in the circumstances very wide. (See Frangos v. The Republic (1970) 3 C.L.R. 312, at p. 343.)
For all the above reasons these recourses fail and are hereby dismissed, the sub judice decision is confirmed under Article 146(4)(a) of the Constitution, but in the circumstances there will be to order as to costs.
Recourses dismissed. No order as
to costs.