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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 560
1989 May 15
[SAVVIDES, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
MICHALIS PHOTIOU,
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC
SERVICE COMMISSION,
Respondent.
(Case No. 54/86)
Public officers - Promotions - Striking superiority- Merit, qualifications, seniority - Applicant and interested parties strongly recommended for promotion by Head of Department but interested parties had better confidential reports than applicant, whilst the latter was senior to the interested parties, the seniority ranging from 9 months to 4 years and 2 months - Seniority not such as to amount to a striking superiority in the circumstances.
Public officers - Promotions - Striking superiority - Merit, qualifications, seniority -Applicant was amongst the candidates strongly recommended for promotion, whilst the interested parties were not - The qualifications were more or less equal, while applicant was senior to the interested parties by 7 years and 9 months and 6 years and 11 months respectively - During the 4 years preceding the sub judice promotion the applicant had excellent confidential reports - The better older confidential reports of the interested parties, i.e. those before 1982, could not tip the scales in favour of applicant - Sub judice decision annulled as regards two interested parties by reason of undue importance given to such older confidential reports.
Public officers - Promotions - Striking superioty - Merit, qualifications, seniority - Applicant senior to one of the interested parties by 5 years and 9 months, the qualifications were more or less the same, but, whilst the interested party had excellent confidential reports in all years, the applicant had excellent reports for the years 1982, 1983, 1984 and 1985 - Applicant was also recommended by the Head of the Department-In the circumstances undue importance attached to the older confidential reports - Sub judice promotions annulled.
The issues raised and the principles applied by the Court in dealing within the recourse appear sufficiently in the hereinabove Headnotes. The Court annulled the promotions of three of the interested parties, because in the light of the particular circumstances relating to the merit, qualifications and seniority of the applicant as compared with the respective merit, qualifications and seniority of the said interested parties, it was obvious that the respondent Commission did attach undue importance to older confidential reports relating to such interested parties, i.e. had recourse in respect of periods, preceding the promotion by more than five years.
Promotion of three interested parties
annulled. Recourse as regards the other
interested parties dismissed. No order
as to costs.
Case referred to:
Papantoniou and Another v. Republic (1983) 3 C.L.R. 64.
Recourse.
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. Tsangarides, for the Applicant.
P. Hadjidernetriou, Counsel of the Republic B, for the Respondent.
A. Sofocleous for A. Skordis, for Interested parties.
Cur. adv. vult.
SAVVIDES, J. read the following judgment. By this recourse, the applicant challenges the promotion of the interested parties to the post of Ward Supervisor in the Medical and Public Health Services.
The interested parties are: (1) Loizos Yiangou, (2) Yiannis Papettas, (3) Dernetris Elia, 4) Kiementia Pavlou, (5) Maroulla Antoniou, (6) Georghia Demetriadou, (7) Angeliki Geroudi, (8) Avgi Pieridou, (9) Ioulia Papadopouiou, (10) Penelopi Yerou, (11) Charoulla Demetriadou and (12) Androulla Savvidou.
Although it was originally decided that this case should be dealt together with Case No. 217/86, I decided to issue separate judgments in view of the different legal issues raised in each one of them.
The facts relevant to this recourse are briefly as follows:
In the process of filling twelve vacancies in the post of Ward Supervisor in the Medical and Public Health Services, the Departmental Committee, which considered the matter, submitted, on the 8th November 1985, its report to the respondent by which it recommended 39 candidates, including the applicant and the interested parties. At its meeting of the 28th November 1985, the respondent considered the report of the Departmental Committee and 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. 9. The head of the 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 the performance of the candidates during 1985.
The respondent met again on the 14th December 1985, and after taking into consideration and comparing the merits, qualifications and seniority of the candidates, proceeded to select the interested parties for promotion to the post in question.
As a result the applicant filed the present recourse.
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 has better qualifications than interested parties Nos. 1, 2, 4, 6, 9 and 11 and equal to those of interested parties Nos. 7 and 10, is senior to all interested parties except No 12 has been recommended by the head of the Department and his confidential reports since 1982 were excellent, the respondent, attaching undue weight to the confidential reports of the candidates before 1982 promoted the interested parties instead of him.
Counsel for the respondent argued that merit is the most important of the three criteria set out in the Law and that the 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. That applicant's confidential reports were inferior to those of the interested parties four of whom had also better qualifications and he was senior to all of them except one. He further argued that the respondent gave due regard to the recommendations of the head of the Department and special reasoning was given by it for preferring interested party I. Papadopoulou, who was not recommended by the Head of the Department. Lastly, counsel submitted, the applicant failed to establish any striking superiority over the interested parties.
As it has been stressed in a number of cases for an applicant to succeed in his recourse against promotions, he has to show striking superiority over those promoted, mere superiority not being enough.
In effecting promotions the respondent has to give due weight to the merits, qualifications and seniority of the candidates and also take into consideration the recommendations of the Head of the Department regarding them.
In assessing the merits of the candidates the respondent should take into consideration their confidential reports and also the recommendations of the head of the Department concerned. As stated in the case of Papantoniou and Another v. The Republic (1983) 3 C.L.R. 64, at p. 73:
". Confidential reports are an irreplaceable guide to the overall picture of the merits of a candidate as proclaimed by the Supreme Court in Evangelou v. The Republic (1965) 3 C.L.R. 292. Although greater flexibility is allowed in the comparison of confidential reports prepared by different reporting officers, confidential reports remain the first pointer to one's merits as revealed from his service record".
In the present case, the head of the Department recommended sixteen candidates as the most suitable for 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 a further selection of twelve out of these sixteen candidates whom he recommended again as the most prevailing of the sixteen. Although all sixteen candidates have the recommendation of the head of the Department, it can be said for the last twelve finally selected as prevailing that they have a stronger recommendation by the head of the Department. Those more strongly recommended are the applicant and interested parties Nos. 2,3,4,5,6,7,10 and 12. Interested parties Nos. 1,8 and 11 were amongst the sixteen recommended but not amongst the twelve more strongly recommended candidates, whilst interested party No. 9, namely I. Papadopoulou, was not amongst those recommended by the head of the Department.
I will deal first with the case vis-a-vis the applicant and interested parties Nos. 2,3,4,5,6,7,10 and 12, who were all "strongly" recommended by the head of the Department.
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 by different reporting officers.
Regarding qualifications although certain interested parties appear to have a slight superiority over the applicant, who, on the other hand is slightly superior to others, these differences are not so material and all parties may be regarded as being more or less equal in this aspect.
In respect of seniority the applicant is admittedly senior to all these interested parties, except No.12, namely, A. Savvidou. His seniority ranges from nine months to four years and two months.
Bearing in mind the above, the seniority of the applicant cannot amount to a striking superiority in the circumstances. As a result I find that the sub judice decision was reasonably open to the respondent and this recourse against interested parties Nos. 2,3,4,5,6,7,10 and 12 has to be dismissed.
I will now consider the recourse against interested parties Now, 1,8 and 11 who, although recommended by the Head of the 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 the case 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 party is also dismissed.
In the case of interested parties Nos. 1 and 8, however, bearing in mind the stronger recommendation of the applicant, his outstanding seniority over the interested parties, which amounts to seven years and nine months and six years and eleven months respectively, and the fact that his confidential reports between 1982 and 1985, inclusive, were also excellent. I find that the weight attached to the older confidential reports of the parties before 1982, 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.9. I. Papadopoulou, who was not recommended by the Head of the Department. Although this party had excellent reports in all years, the applicant who had also excellent reports in 1982, 1983, 1984 and 1985 was recommended by the head of the Department and has five years and nine months seniority over her. In the circumstances I find that in this case, also, the respondent attached undue weight to the older reports of the parties and that the recommendation 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.
In the result this recourse succeeds partly and the 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.
Promotion of three interested
parties annulled. Recourse as
regards the other interested
parties dismissed. No order as to
costs.