CHRISTODOULIDES ν. REPUBLIC (1987) 3 CLR 2095

(1987) 3 CLR 2095

1987 December 21

[DEMETRIADES, J.]

IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION

CHARALAMBOS CHRISTODOULIDES AND OTHERS,

Applicants,

THE REPUBLIC OF CYPRUS, THROUGH

THE PUBLIC SERVICE COMMISSION,

Respondent.

(Cases Nos. 145/83, 156/83,

190/83and279/83).

Public Officers - Appointments / Promotions - The Public Service Law 33/67, as amended bylaw 31/80, sections 31(1)and (3) -Ambit of each of the said subsections - The proviso to subsection 3- Construction of - it is not in conflict nor does it override section 33(b).

Public Officers - Appointments / Promotions - Scheme of service -Interpretation and application of- Judicial control - Principles applicable - «University degree or title or equivalent degree in a suitable subject e.g. Public Administration Law, Economic or Political Sciences, Business Administration etc». - Diploma in English literature - Not reasonably open to the Commission to regard it as a suitable subject.

Public officers - Appointments/Promotions - First entry and promotion post- Whether the Commission has power to call for an interview and consider a person not recommended by the Departmental Committee - Question determined in the affirmative.

Public Officers -Appointments/Promotions -First entry and promotion post - Seniority - Candidates already in the service serving in widely different posts - in the circumstances, the Commission was right in not attaching much weight to the factor of seniority.

By letter dated 14th January, 1982, the Ministry of Finance requested the respondent to proceed with the filling of 14 vacancies in the post of Administrative Officers as well as 22 consequential vacancies in the same post.

In accordance with an advice given by the Deputy Attorney-General certain candidates, who were serving either in the permanent post of Administrative Officer on a month to month basis or in the corresponding temporary post, were treated as qualified for appointment to the sub-judice post, notwithstanding that they had not passed the special written examination required by paragraph 3(4) of the scheme of service. The basis of the advice was section 31(3) of the Public Service Law as amended by Law 31/80.

Some of the interested parties in these recourses possess a Diploma in English Literature from Salonica University. The relevant part of the scheme of service para 3(1) thereof, which reads as follows:

«University Degree or title or equivalent qualification in a suitable subject e.g. Public Administration, Law (including Barrister-at-Law), Economic or Political Sciences, Business Administration etc.»).

Interested party Kokkinotiimithiotou - HjiProdromou was not recommended by the Departmental Committee because of her low performance at the interview before it. The Director-General of the Ministry of Agriculture, where she was serving, wrote a letter to the respondent explaining the reasons for such low performance and requested the respondent to invite her to a personal interview before it, stating that she is a very good officer and deserves to be appointed in a post equivalent to her qualifications. The respondent decided to invite her to an interview, along with other public officers who satisfied the requirements of the scheme of service and were not recommended by the Departmental Committee on account of their performance at the interview before it.

Held: (1) Both subsections (1) and (3) of section 31 refer to first entry or first entry and promotion posts, as it is the case here. The proviso to subsection (1) refers clearly to vacancies in permanent posts, which were created in substitution of or as a result of the abolition of other corresponding temporary posts.

The words in the proviso of sub-section (3) serving in the post either on secondment or from month to month refer to the permanent post, in contradistinction with the last part of the proviso which refers to corresponding temporary posts.

The words «governed by the same schemes of service» refer only to the last part of the proviso. Obviously the words «governed by the same schemes ofservice» apply at least to those officers holding a corresponding temporary post and covers the case of the six interested parties concerned.

However, the provisions of this proviso are not in conflict nor can they override the provision of section 33(c) that no person can be appointed in a post unless he possesses the qualifications required by the schemes of service for the post in question. As a result, the appointment or promotion o the six interested parties above mentioned is hereby annulled.

(2) If the words «suitable subject» in para 3(1) of the scheme of service appeared on their own it would have been reasonably open to the respondent to consider the Diploma in English Literature as satisfying the requirements of paragraphs 3(1) of the scheme of service. Having regard, however, to the nature of the subjects enumerated therein it was not reasonably open to the respondent to decide as it did in this respect. The suitable subjects have to be related to those enumerated in the scheme of service. The appointment of these two interested parties must, also, as a result be annulled.

(3) Having considered the contents of the various appendices relevant to the matter in issue the Court sees no defect in the course followed by the respondent. It is within the discretionary power of the Commission to inquireinto all circumstances in the course of the exercise of its functions and invite to an interview any person whom it considers qualified. As a result, this argument of counsel is dismissed.

(4) As regards comparison between candidates who were already public officers, it was reasonably open to the respondent not to attach much weight to the seniority of the candidates in the circumstances. Indeed, these candidates were holding different posts in various departments which were completely unconnected with the sub judice posts. The right thing to do, under the circumstances was to weigh all factors pertaining to each one of them and see whether the applicant is strikingly superior to any of them.

(3) The recourses as regards all interested parties other than those, whose promotion or appointment has already been annulled should be dismissed, as. the applicants failed to establish a case of striking superiority.

Order accordingly.

Recourses.

Recourses against the decision of the respondent to appoint and/or promote the interested parties to the post or Administrative Officer in preference and instead of the applicants.

C. Loizou, for applicants in Cases Nos. 145/85, 156/83 and 279/83.

C. Velaris, for applicant in Case No. 190/83.

N. Charalambous, Senior Counsel of the Republic, for the respondent.

A. Ladas, for interested party M. P. Lymbouras.

Chr. Triantafyllides, for interested party E. Triantafyllidou.

S. Mamantopoulos, for interest party S. Christodoulodou.

D. Zavallis, for interested party E. Rossidou.

Cur. adv. vult.

DEMETRIADES J. read the following judgment. The applicants in Recourses Nos. 145/83 and 156/83 are the same persons as the applicants in Recourse No. 279/83, but the appointment of a different interested party is challenged by the latter recourse. One of these applicants, however, whose name appears as applicant 3 in Recourse No. 145/83 and No. 1 in Recourse No. 279/83, namely Michael Tokarides, has died in the meantime, and his recourse was, as a result, withdrawn.

The remaining five applicants in Recourses Nos. 145/83 and 156/83 challenge the decision of the respondent, published in the Official Gazette of the Republic on the 4th March, 1983, whereby 35 persons, the interested parties whose names appear on the list attached to the application, were appointed or promoted to the post of Administrative Officer as from the 1st February, 1983, instead of and in preference to them.

The applicant in Recourse No. 190/83 challenges the same administrative act with the only difference that the interested parties there are only 33 (their names appear on the list attached o her application and they are the same as in the first two recourses with the exception of Rosana-AmphitritiKoutsiou and Elena Zachariadou).

The five applicants in Recourse No. 279/83 challenge the decision of the respondent published in the Official Gazette of the Republic dated the 17th June, 1983, whereby Eva Rossidou, the interested party, was appointed to the post of Administrative Officer as from the 19th May.1983, instead of and in preference to them.

The names of all the interested parties, whose promotion is challenged by the four recourses, appear in the attached Appendix.

The facts which led to the present proceedings are as follows:

By letter dated the 14th January, 1982, the Ministry of Finance requested the respondent to proceed with the filling of 14 vacancies in the post of Administrative Officer as well as 22 consequential vacancies in the same post, The vacancies were published in the Official Gazette of the Republic dated the 5th February, 1982 and the matter was referred to the Departmental Committee which was set up for the purpose and which, by its report submitted by letter dated the 24th May, 1982, recommended 100 candidates for the posts in question.

The respondent, at its next meeting dated the 11th June, 1982, noticed that those candidates serving in the permanent post of Administrative Officer on a month to month basis and those serving in the corresponding temporary post had not passed the special written examination required by paragraph 3(4) of the scheme of service and decided to seek advice as to whether they could be considered as qualified candidates for the posts in view of the fact that they possessed, at the time of their appointment to these posts, the qualifications required by the schemes of service which were in force at the time of their appointment, where no provision was made for success in the special examination. The Deputy Attorney-General, by a letter dated the 3rd July, 1982, advised the respondent that the said candidates could be considered as qualified although they had not passed the special examinations, in view of the provisions of section 31(3) of the Public Service Law as amended by Law 3 1/80.

At its meeting dated the 8th July, 1982, the respondent adopting the advice of the Attorney-General's Office, decided to consider the above candidates as qualified and to invite them to an interview. At some later stage the Commission decided, after examining the results of the written examinations, to call for an interview also certain other candidates who were not recommended by the Departmental Committee, amongst whom applicants VassiliaKyrmitsi and Costas Papasavvas, as well as interested parties VassiliosVassiliou and TasoulaHadjiProdromou-Kokkinotrimithiotou, the latter after certain explanations were given by her and the Director-General of theMinistry of Agriculture, where she was serving, regarding her psychological state at the time of her interview with the Departmental Committee.

After the completion of the personal interviews, the respondent heard, at its meeting of the 16th October, 1982, the evaluation of the Director of the Department as to the performance of the candidates during the interviews, and proceeded, on the 2nd November, 1982, to its own evaluation of the candidates and the selection for appointment of 36 candidates.

At its next meeting, which took place on the 2nd December, 1982, the respondent decided to offer appointment to 35 of those candidates, leaving the matter of the appointment of interested party Rossidou open until further information was received from the Chief of Police regarding her character.

In view of the fact that two of the candidates did not accept the offer of appointment, the respondent met again and decided to offer appointment to CharalambosKapsos and promotion to KyprosManoullos.

The appointment / promotion of these 35 interested parties (as from the 1st February, 1983) was published in the Official Gazette of the Republic dated the 4th March, 1983, as a result of which Recourses Nos. 145/83, 156/83 and 190/83 were filed.

The respondent, at its subsequent meetings sought information as to the character of interested party Rossidou and called her to give personally explanations regarding her activities when she was a student of the secondary school. Having been satisfied as to her good character, the respondent finally decided to offer appointment to interested, party Rossidou as from the 19th May, 1983. Her appointment was published in the Official Gazette of the Republic dated the 17th June, 1983, as a result of which Recourse No.279/83 was filed.

AII cases were heard together as presenting common questions of law and fact.

Counsel for the applicants separated their arguments in two parts. The first part concerns certain procedural defects and the other deals with the comparison of the applicants with the interested parties. I shall follow the same order, starting with the procedural defects.

The first argument of counsel for the applicants is that the respondent wrongly considered as qualified certain candidates who did not satisfy the requirements of the scheme of service, and more specifically paragraph 3(4) thereof, which provides for success in a special written examination.

The respondent, in doing so, adopted the advice received from the Attorney-General's Office. The question is whether the interpretation of the Law given by the Deputy Attorney - General through his advice is the correct one.

The advice of the Deputy Attorney-General appears in Appendix 9 to the Opposition and it is based on an interpretation of subsection (3) of section 31 of the Public Service Law as amended by section 2 of Law 31/80. Section 31, as amended, reads as follows:

«31.-(1) Κενή θέσις Πρώτου Διορισμού ή κενή θέσις Πρώτου Διορισμού και Προαγωγής δημοσιεύεται εις την επίσημον εφημερίδα της Δημοκρατίας.

Νοείται ότι ουδεμία τοιαύτη δημοσίευσις γίνεται εις περίπτωσιν πληρώσεως τοιαύτης κενής μονίμου θέσεως δημιουργηθείσης έναντι ή συνεπεία καταργήσεως ή αντικαταστάσεως ετέρας αντιστοίχου προσωρινής θέσεως οπότε η Επιτροπή πληροί την θέσιν ταύτην δια του διορισμού ή προαγωγής, ως θα ήτο η περίπτωσις, του υπαλλήλου του υπηρετούντος ήδη εις την ούτω καταργηθείσαν προσωρινήν θέσιν και οσάκις ο αριθμός των ούτω δημιουργηθεισών θέσεων είναι μικρότερος του αριθμού των αντιστοίχων προσωρινών θέσεων τινές των οποίων καταργούνται η Επιτροπή πληροί τας θέσεις ταύτας κατ' επιλογήν μεταξύ των υπαλλήλων των υπηρετούντων εις τας προσωρινός θέσεις και οιουδήποτε ετέρου υπαλλήλου υπηρετούντος επί αποσπάσει ή από μηνός εις μήνα εις υφισταμένην μόνιμον ιδίαν θέσιν.

(3) Δημοσίευσης κενής θέσεως παρέχει πλήρη στοιχεία του σχεδίου υπηρεσίας και καθορίζει την προθεσμία ν υποβολής αιτήσεων. Νοείται ότι οσάκις η δημοσιευομένη θέσις είναι μόνιμος δεν είναι αναγκαία η υποβολή αιτήσεως εκ μέρους υπαλλήλων οίτινες, επιλεγέντες και διορισθέντες υπό της Επιτροπής, υπηρετούν εις την θέσιν είτε επί αποσπάσει είτε από μηνός εις μήνα ή οίτινες υπηρετούν εις προσωρινήν θέσιν υπό τον αυτόν τίτλον και διεπομένην υπό των αυτών σχεδίων υπηρεσίας.»

(«31 -(1) A vacancy in a First Entry post or a First Entry and Promotion post shall be advertised in the official gazette of the Republic.

Provided that no such advertisement takes place in the case of the filling of such vacant permanent post created in the place of or as a result of the abolition or substitution of another corresponding temporary post in which case the Commission fills such post by the appointment or promotion, as the case may be, of the officer already serving in the temporary post so abolished and if the number of the posts so created is smaller than the number of the corresponding temporary posts some of which are abolished the Commission fills these posts by selection between the offices serving in the temporary posts and any other officer serving on secondment or on a month to month basis in an existing same permanent post.

(3) An advertisement of a vacancy in a post shall give full particulars of the relevant scheme of service and shall specify the date by which applications shall be submitted.

Provided that whenever the advertised post is a permanent one, the submission of applications on the part of officers who, having been selected and appointed by the Commission, are serving in the post either on secondment or from month to month or who are serving in a temporary post under the same title and governed by the same schemes of service is not necessary.»)

I think there has been some confusion in the arguments of counsel regarding the above two provisos which were introduced by Law 3 1/80 and I would like to clarify the position before proceeding to consider the advice of the Deputy Attorney General.

Both subsections (1) and (3) of sections 31 refer to first entry or first entry and promotion posts, as it is the case here. The proviso to subsection (1) refers clearly to vacancies in permanent posts, which were created in substitution of or as a result of the abolition of other corresponding temporary posts. If this is the case, then these vacancies (and the provision of the Law here seems to be imperative) are not advertised, but the posts are filled by the appointment or promotion of those, officers serving in the abolished posts and if a selection is necessary it has to be made between those officers serving in the corresponding abolished temporary posts and any other officers serving on a temporary basis in the same permanent post.

The proviso to subsection (3) concerns vacancies in permanent posts which became vacant for any other reason (and not as a result of the abolition of other corresponding permanent posts and the creation of new permanent posts in substitution). In such a case the vacancies have to be advertised but those already serving in the posts do not have to submit applications but are automatically considered as candidates for appointment or promotion.

The arguments of counsel for the applicants were, as I said earlier, confusing as to the applicability of the provisos, treating on one hand the posts in the present cases as having been created in substitution of other abolished temporary posts and, on the other hand, considering the proviso to subsection (3) as applicable in view of the fact that the vacancies were advertised. If that was the case, then the respondent ought to have proceeded to fill those posts as provided by the proviso to sub section (1) without advertizing them. It does not, however, appear anywhere that any of the posts advertised were created in substitution of other. abolished temporary posts. In any event, it is clear that at least 22 posts were consequential vacancies. It is also clear from the wording both of the letter of the respondent to the Attorney- General's Office seeking legal advice, as well as the advice itself that the vacancies did not concern new posts created in substitution of other temporary ones. It was, also, finally clarified by counsel for the respondent that this was not the case and that subsection (3) was the only applicable legal provision.

I will now proceed to the interpretation of section 31 as amended, and the correctness of the advice from the Attorney40 Generals' Office, which was adopted and acted upon by the respondent Commission.

The advice of the Deputy Attorney-General was to the effect that the provision in the proviso to section 31(3) that officers already serving in the post, either on secondment etc., are exempted from submitting applications and are thus automatically considered as candidates, does not reconcile with the requirement that they should also possess the qualifications for appointment to the post. This, in the Deputy Attorney-General's view, affords a deviation to. section 33 which provides that no person is appointed in a post in the public service unless he possesses the qualifications enumerated in the scheme of service for the specific post, and any other interpretation of the proviso would have ,been unjust to those officers whose qualifications would have to be considered for a second time.

Counsel for the respondent supported the above interpretation explaining that sometimes permanent officers, who satisfy the requirements of the schemes of service for a certain post, cannot be appointed or promoted to it, unless it is a permanent post and are, therefore, seconded to it if it is a temporary post. In his submission, a different interpretation would lead to injustice to those officers who, at the time of their secondment, satisfied the requirements of the schemes of service but for technical reasons they could not have been appointed or promoted to it. He suggested that the words (και διεπομένην υπό των αυτών σχεδίων υπηρεσίας)(and governed by the same schemes of service) appearing in the proviso refers only to the last part of the proviso, that is (ή οίτινες υπηρετούν εις προσωρινήν θέσιν) (who are serving in a temporary post) and does not apply to the facts of this case, where the interested parties concerned were serving on secondment.

I think there has been a misunderstanding in this respect on the part of counsel for the respondent. The interested parties who are affected by this ground are: 1) Yiannakismallourides, 2) leniaOephanidou, 3) Michael Parellis, 4) PanikkosPikrides, 5) KoutsiouAmfitritiRosana and 6) telemachosGeorghiades. These interested parties, as it appears from the lists of officers which were sent to the Department Committee (Appendix 4B), are «officers holding the temporary post of Administrative Officer» So, therefore, even according to counsel's own interpretation, they had to satisfy the requirements of the scheme of service, including paragraph 3(4).

Reverting back to the interpretation of the proviso, I hold the view that the words «serving in the post either on secondment or from month to month» refer to the permanent post, in contradistinction with the last part of the proviso which refers to corresponding temporary posts. Although I am inclined to agree with counsel for the respondent that the words «governed by the same schemes of service» refer only to the last part of the proviso, I do not intend to make a finding at this stage in view of the fact, as I said earlier, that the case of the six interested parties concerned falls within this last part and taking, also, into consideration that this proviso has, in the meantime, been repealed by Law 10/83. Obviously the words «governed by the same scheme of service» apply at least to those officers holding a corresponding temporary post and covers the case of the six interested parties concerned.

Be that as it may, I do not agree with the view that the provisions of this proviso are either in conflict or can override the provision of section 3(c) that no person can be appointed in a post unless he possesses the qualifications required by the schemes of services for the post in question.

As a result, the appointment or promotion of the six interested parties above mentioned is hereby annulled.

The next point raised by counsel for the applicants also concerns the eligibility, under the schemes of service, of two of the interested parties, namely LoucasAthanassiou and ChrystalleniKoutta. These interested parties possess a Diploma in English Literature from Salonica University. Counsel submitted that this Diploma is not within the meaning of paragraph 3(1) of the scheme of service for the post.

Paragraph 3(1) of the said scheme reads as follows:

«Πανεπιστημιακόν Δίπλωμα ή τίτλος ή ισότιμον προσόν εις κατάλληλον θέμα π.χ. την Δημόσιον Διοίκησιν, τα Νομικά περιλαμβανομένου του (Barrister- at-Law), τας Οικονομικός ή Πολιτικός Επιστήμας, την Διοίκησιν Επιχειρήσεων κ.λ.π.»

(University Degree or title or equivalent qualification in a suitable subject e.g. Public Administration, Law (including Barrister-at-Law), Economic or Political Sciences, Business Administration etc.»).

The interpretation and application of the schemes of service is within the discretion of the appointing organ and this Court cannot interfere if such discretion was reasonably exercised. The question is whether it was reasonably open to the respondent to consider the Diploma in English Literature as a «suitable subject» under paragraph 3(1) of the above scheme of service.

If the words «suitable subject» appeared on their own, I would have agreed that it was reasonably open to the respondent to consider the Diploma in English Literature as satisfying the requirements of paragraph 3(1) of the scheme of service. Having regard, however, to the nature of the subjects enumerated therein, I find that it was not reasonably open to the respondent to decide as it did in this respect. The «suitable subject» have to be related to those enumerated in the scheme of service. The appointment of these two interested parties must, also, as a result, be annulled.

The next point raised is the alleged participation of interested party Parellis in the procedure leading to the sub judice decision. The said interested party, being an employee in the office of the respondent, signed the letter of the respondent to the Attorney- General's Office, seeking the legal advice mentioned earlier in thisjudgment. Since the appointment of this interested party has already been annulled, I see no reason to deal any further with this point but in any event I see nothing wrong if an employee, in the course of the execution of his duties, addresses and signs a letter, acting on instructions from his superiors. Nothing contained in the said letter or anywhere else leads to the assumption that this act of the said party influenced in any way the respondent in taking its decision.

The last point raised by counsel in this part of their arguments concerns the appointment of interested party TasoulaKokkinotrimithiotou-HadjiProdromou.This officer, who was holding the post of Clerk 2nd Grade, was not recommended by the Departmental Committee because of her low performance at the interview before it. The Director-General of the Ministry of Agriculture, where she was serving, wrote a letter to the respondent explaining that her low performance at the said interview was due to her being in a state of psychological shock and stress due to serious family reasons and requested the respondent to invite her to a personal interview before it, stating that she is a very good officer and deserves to be appointed in a post equivalent to her qualifications. The respondent requestedthis interested party to give explanations as to her psychological state and after considering, the explanations given, her confidential reports and the fact that she was a public officer, decided to invite her to an interview, along with other public officers who satisfied the requirements of the scheme of service and were not recommended by the Departmental Committee on account of their performance at the interview before it.

Having considered the contents of the various appendices relevant to the matter in issue, I see no defect in the course followed by the respondent. It is within the discretionary power of the Commission to inquire into all circumstances in the course of the exercise of its functions and invite to an interview any person whom it considers qualified. As a result, this argument of counsel is dismissed.

I now come to the second part of the arguments of counsel, concerning the comparison of the applicants with the interested parties.

Counsel for the applicants submitted that the respondent failed in its paramount duty to select the best candidates and that it failed to take into consideration the factor of seniority between the applicants and those of the interested parties, who were holding other posts in the Public Service. In comparing the applicants with those of the interested parties, who were not public officers, counsel argued that since the post of Administrative Officer requires the exercise of administrative duties, the applicants, who were already in the public service, ought to have been preferred, especially in view of the fact that they were not inferior with regard to qualifications. It was also submitted that the weight to be attached to the evaluation of the candidates, both by the Departmental Committee and the Head of the Department, should not be a great one.

Comparison of the applicants and the interested parties is a difficult task in the present case, in view of the fact that some of the interested parties, as well as the applicants; were already in the public service and some were not, and, also, the fact that those in the public service were holding different posts in various departments of the Government and were performing different duties. For this reason, much weight cannot be attached to the confidential reports. I also agree with the submission of Counsel for the applicants that much weight cannot be attached to theevaluation of the candidates both by the Departmental Committee and the Head of the Department either. One must not lose sight of the principle that the paramount duty of the respondent is the selection of the best candidates and that this Court cannot substitute its own discretion in the place of that of the respondent provided that it was reasonably open to the respondent to reach the sub judice decision. Lastly, it must be borne in mind that for an applicant to succeed he has to prove striking superiority over the interested parties.

With the above in mind, I will now proceed to the comparison of the parties.

I have already found that the appointment of eight of the interested parties must be annulled on the ground that they did not possess the qualifications required by the scheme of service. What, therefore, remains for me to decide is whether the appointment of the remaining interested parties was correctly decided by the respondent.

There is no doubt that all the applicants and the interested parties possess the qualifications required by the scheme of service and, therefore, there is no need to state their qualifications and compare them. What should be taken into consideration is the overall picture of the parties taking all the factors pertaining to each one into consideration.

I will start with Recourse No. 190/83. The applicant is ChrystallaMichaelidou and she challenges the promotion Of 33 of the interested parties, more specifically those appearing in the attached list, with the exemption of RosanaAmphitritiKoutsiou, Elena ZachariadouTriantafyllides and. Eva Rossidou. This applicant is a Clerk 2nd Grade. She has scored 173 marks in the special examination, she was evaluated as good both by the Departmental Committee and the Head of the Department and as almost very good by the respondent. Her confidential reports for the last three years are excellent. Comparing her with those of the interested parties who were not public officers, I find that she is not superior to them. All of them, with only one exception, have scored more marks in the special examination V and their assessment by the respondent was a better one. The only exception is the case of interested party CostakisSteliouChrysostohou, who has scored 169 marks in the examination but was assessed by the respondent as very good. In thecircumstances. I believe that it was reasonably open to the respondent to appoint these interested parties and this Court cannot substitute its own discretion for that of the administration.

Coming now to compare the applicant vis a vis those interested parties who were already public officers. I find that it was reasonably open to the respondent not to attach much weight to the seniority of the candidates in the circumstances. Although the posts were First Entry and Promotion and the said interested parties, as well as the applicant, were public officers, in view of the fact that they were holding different posts in various departments which were completely unconnected with the sub judice posts, it was reasonably open to the respondent to act as it did. What I believe would be the right thing to do, under the circumstances, is to weigh all factors pertaining to each one of them and see whether the applicant is strikingly superior to any of them. Having considered carefully all these factors I come to the conclusion that the applicant failed to prove striking superiority over any of those interested parties. Although the applicant seems to be senior to some of them, most of them have scored more marks in the examinations and have performed better at the interviews before the respondent. Although interested party Manoulos has been assessed by the Commission as almost very good, like the applicant, he has scored 184 marks, in. the special examination as against 173 of the applicant and he, also, has excellent reports. In the circumstances her seniority cannot amount to striking superiority.

Similarly, interested party HadjiProdromou has scored less marks than the applicant in the special examination (172) but she has been evaluated as very good by the respondent at the interview. Although the applicant is a little senior and her reports are a little better, in the circumstances, as explained before, this does not amount to striking superiority.

As a result, I find that the decision of the respondent to appoint the said interested parties instead of the applicant was reasonably open to it and this Court cannot interfere with its discretion.

I will now consider the recourses of the remaining applicants, always bearing in mind the same considerations.

Applicants in Recourse No. 145/83 are 1) CharalambosChristodoulides, 2) Christos Christoudias, 3) Michael Tokaridesand 4). AntonisKourouzides (to be referred to as applicant No. 3). As stated at the beginning of this judgment, applicant Tokarides has died in the meantime and his recourse was, as a result, withdrawn. There remain, therefore, only three applicants who challenge by this recourse the appointment of the interested parties with the exception of Eva Rossidou.

Recourse No. 156/83 has been filed by VassiliaKyrmitsi and Costas Papasavvas (to be referred to as applicants 4 and 5 respectively), who challenge the appointment of the same 35 interested parties as in recourse No. 145/83.

Recourse No. 279/83 has been filed by the five applicants in the above two recourses against the appointment of interested party No. 36, namely Eva Rossidou.

I propose to deal with all these recourses together and I will begin with the comparison of the applicants with those of the interested parties who are .not public officers. These interested parties have been assessed by the respondent at the interviews before it as «excellent», «very - very good» or «very good». The marks which they have scored in the special examination, with only very few exceptions, with which I will deal below, are higher than those of the applicants.

Taking applicant, No. 1, he has scored 1:89 marks in the examination, whilst interested party Kelveris has scored more or less equal marks (187), interested party Lymboura has scored 178 marks and Costakis St. Chrysostomou 169. marks. The performance of all these three interested parties at the interview was, however, «very good», whilst that of this applicant only «good». In the circumstances, I find that it was reasonably open to the respondent to reach the sub judice decision with regard to these interested parties.

The position is similar with regard to applicants Nos. 2 and 3 who have second 193 and 184 marks respectively and have been assessed as «almost very good» at the interview. Applicant No. 5, who has scored 196 marks, is also more or less in the same position, bearing in mind "that his performance at the interview before the respondent was assessed as «average».

Lastly, applicant No. 4, who was assessed as «almost very good», has scored 201 marks in the examination. Interestedparties Chr. Georghiou and Chloe Milikouri have scored 199 marks, that is more or less equal, and have been assessed as «very good» and «very - very good» respectively. Interested parties Costas A. Chrysostomou and Eva Rossidou have scored 195 and 194 marks respectively and have been assessed as «very good» at the interview. Also, interested parties Kelveris, Sophia Christodoulides, Lymboura and Costakis St. Chrysostomou have scored less marks (187, 181, 178 and 169 respectively) but have been assessed as «very good» at the interview. In all other cases the interested parties have clearly better marks and better assessment than the applicants.

In the circumstances, I have arrived at the conclusion that the decision to appoint these interested parties was reasonably open to the respondent.

I will lastly compare the five applicants with the eight interested parties who are public officers. These interested parties have scored equally high marks in the examination and were assessed in their majority as «very good» one of them (GeorghiosPapageorghiou) as «very good». The only exception is interested party manoulos, who was assessed as «almost very good» and had scored 184 marks. Applicants 2, 3 and 4 have also been assessed as «almost very good» and have second 193, 184 and 201 marks respectively. Although there seems to be a slight superiority and seniority of applicants 2 and 4 over this interested party, having regard to the overall picture, his excellent reports and the reasons given by the respondent at its meeting of the 11th January, 1983, for selecting this interested party, the applicants have failed to established striking superiority over him.

What remains to be considered is the position of interested party HadjiProdromouvis a vis the applicants. This interested party has scored less marks than any of the applicants. She is, also, junior to a number of them but has. been assessed as «very good» by the respondent whilst applicants 1 and 5 have, been assessed as «good» and «average» respectively. I, therefore, find, that it was reasonably open to the respondent to prefer this interested party. Applicants 2, 3 and. 4 had scored more marks but have: been, assessed as almost «very good» by the respondent. Although there is a certain superiority over this interested party on their part, I would not go as far as to say that this superiority amounts to a striking one having, regard to the overall picture of the candidates.

In conclusion, I find that the applicants have failed to establish striking superiority over the interested parties so as to justify the annulment of the sub judice decision.

In the result, the recourses succeed partly, that is as against interested parties Mallourides, Orphanidou, Parellis, Pikrides. Koutsiou, TelemachosGeorghiades, L. Athanassiou and Chr. Koutta, and are dismissed as against the remaining interested parties.

In the circumstances of the cases there will be no order as to costs.

Sub judice decision

partly annulled. No

order as to costs.

APPENDIX

LIST OF INTERESTED PARTIES

1. Yiannakis Th. Mallourides

2. Lenia P. Orphanidou

3. Panikos St. Pikrides

4. Telemachos M. Georghiades

5. Rosana - AmphitritiKoutsiou

6. Georghios A. Antoniades

7. TasoulaKokkinotrimithiotou - HadjiProdromou

8. LoucasAthanasibu

9. EkateriniMaouri - Andreou

10. AchilleasAntoniades

11. NicosAntoniades

12. MaroPaschali - Vamavidou

13. EleniYereoudaki

14 Christoforos S. Georghiades

15. Georghios M. Giorgalli

16. Chloe Ioannou - Milikouri

17. AlexandrosG. Kelveris.

18. ChrysoKolokotroni

19. ChrystalleniKoutta

20. IoannaAnnita Ph. Kyprianou

21. Marina N. Constantinou

22. Maria Pavlidou - Lymboura

23. EleniPapeleontiou

24. Elena Zachariadou - Triantafyllidou

25. Costakis St. Chrysostomou

26. Costas A. Chrysostomou

27. Sofia Logidou - Chnstodoulidou

28. CharalambosKapsos

29. Michael K. Parellis

30. GeorghiosPapageorghiou

31. ChrysostomosHadjiVassiliou

32. Vassilios M. Vassiliou

33. KyprosManoulos

34. Andreas Mylonás

35. SofoclisNearchou

36. Eva Rossidou.

cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο

	CyLaw \| Αναφορικά μ'εμάς \| Επικοινωνία