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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 335
1989 March 15
[KOURRIS, J]
IN THE MATTER OF ARTICLE 146 AND 28 OF THE CONSTITUTION
COSTAS PROTOPAPAS,
Applicant,
v.
THE REPUBLIC OF CYPRUS THROUGH THE EDUCATIONAL
SERVICE COMMISION
Respondent.
(Case No. 303/86)
Educational officers- Promotions - Conviction for a disciplinary offence of a serious nature during a two-year period preceding the promotions (The Public Educational Service Law, 1969, section 25(1)(d,)) - Whether the disciplinary offence of promoting irregularly a pupil who was applicant's daughter contrary to Reg. 10 of the Elementary Education (Operation. of Schools) Reg 1976 of a serious nature - As. the type was held under section 70(b) of the said Law, the decision to exclude the applicant from the sub judice promotion was reasonably open to the respondents.
Educational officers. - Promotion - Qualifications - candidates possessing additional qualifications, but one of them possessing also a B.A. degree in Geography -In the circumstances the said qualification should not weight greatly in the mind of the commission.
Educational officers - Promotions - Striking superiority - Burden to establish - Review of authorities.
By means for this recourse the applicant impugns a. decision to promote the interested parties to the post of Headmaster in the elementary education as from 119/1990. The applicant had beenexcluded from the promotions on the ground that he had been convicted for a serious disciplinary offence during the two-year preceding the aforesaid promotions.
The Court, in dismissing the recourse, thought that it was reasonably open in the circumstances for the respondents to exclude the applicant from the promotions in question. In any event, the Court examined the merits of the case and decided that the additional qualification of a B.A. in Geography could not in the circumstances weigh greatly in the scales and that, in any event, the applicant did not establish striking superiority vis a vis the interested parties.
Recourse dismissed. No order as to costs.
Cases referred to:
Meletis and Others v. Ports Authority and Another (1987) 3 C.L.R. 1984,
Panayides v. republic (1973) 3 C.L.R. 378,
Georghiades and Another v. republic (1970) 3 C.L.R. 257,
Demostheenous v. Republic (1973) 3 C.L.R. 534,
Georghiou v. Republic (1976) 3 C.L.R. 74,
Hadjisavva v republic (1982) 3 C.L.R. 76,
Spanos v. Republic (1985) 3 C.L.R. 1826,
Kolokotrionis v. Republic (1980) 3 C.L.R. 418.
Recourse.
Recourse against the decision of the respondent to promote the interested parties to the post of Headmaster in the Elementary Education in preference and instead of the applicant.
A. Papacharalambous, for the Applicant.
R. Petridou (Mrs), Counsel of the republic B, for the
Respondent.
A. S. Angelides, for the Interested parties.
Cur.adv. vult.
KOURRIS, J. read the following judgment. By this recourse, applicant challenges the decision of the Educational Service Commission dated 17.1.1986, and published in the Official Gazette on 21.2.1986, to promote the interested parties to the post of Headmaster in the Elementary Education as from 1.9.1980 in preference to and instead of the applicant.
Before the sub judice decision the applicant and interested parties were holding the post of Assistant Headmasters in the elementary education. The interested parties are Elli Saranti, Elli G. Seppou and ChrysanthosZographos.
The Educational Service Committee at its meeting of 17.1.1986, decided to promote the interested parties instead of the applicant and the applicant, feeling aggrieved, filed the present recourse, his grounds being firstly that he has additional qualifications in accordance with the scheme of service and the Educational Service Commission failed to make a due inquiry and give due reasoning why they failed to promote him.
The second ground is that the disciplinary conviction of applicant under s. 35(1)(d) of the Public Educational Law 1969, Law 10/69, was wrongly taken into consideration by the Educational Service Commission because nowhere there is any finding for a serious disciplinary offence. Applicant on 19.10.1978 was sentenced to £40 fine for the disciplinary offence of promo ting irregularly a pupil who was his daughter, contrary to Reg. 10 of the Elementary Education (Operation of Schools) Regulations 1976.
Counsel for the respondent alleged that applicant has no legitimate interest to file a recourse against the interested parties because at the material time, that is on 1.9.1980, the period of 2 years from his conviction has not elapsed by virtue of s.25(1)(d) of Law 10/69 which reads as follows:-
"35.-(1) Ουδείς εκπαιδευτικός λειτουργός προάγεται εις άλλην θέσιν, εκτός εάν-
..................................
(δ) δεν ετιμωρήθη διαρκούσης της προηγουμένης, διετίας διά πειθαρχικόν αδίκημα σοβαρός φύσεως"'.
The question which poses for consideration, is whether the disciplinary offence with which applicant was charged was of a serious nature or not.
The disciplinary offence was tried in accordance with s.70(b).of Law 10/69 which provides for the trial of serious disciplinary offences.
It was reasonably open for the Educational Service Commission to follow the procedure set out under s. 70(b) of the said law which is a provision for serious disciplinary offences because in substance this offence involves abuse of power on the part of the applicant.
In these circumstances, I hold the view that the disciplinary offence with which applicant was charged, was of a serious nature and as 2 years have not lasped from the date of his conviction up to the moment the Educational Service Commission took the sub judice decision, applicant has no legitimate interest to file the present recourse and for this reason alone the recourse is dismissed. (Meletis and Others v.The Ports Authority and Another (1987) 3 C.L.R. 1984 Petrakis Panayides v. republic (1973) 3 C.L.R. 378.
I propose, however, to deal with the substance of the recourse if it were held that applicant had a legitimate interest to file the present recourse.
Now, with regard to the B.A. Degree of the applicant in Geography obtained in the Cyprus College.
Applicant, as well as all the interested parties possessed qualifications, additional to those required by the scheme of service but the applicant possessed in addition to the qualifications required by the scheme of service a. B.A. degreein geography which the other interested parties do not possess. In my view, since all the interested parties possessed qualifications additional to those required by the scheme of service, the fact that the applicant possesses also a B.A. degreein Geography should not weigh greatly in the mind & the Commission who should decide in selecting the best candidate on the totality of the circumstances before them.
I propose to deal with the last ground to the effect that the respondent Commission failed to select the most suitable candidate.
The burden is upon the applicant to establish that he was strikingly superior to the interested parties in order to succeed in jl recourse (Georghiades and Another v. The Republic (1970) 3 C.L.R. 257 and Demosthenous v.The Republic (1(973) 3 C.L.R 534).
It is a well-settled principle of administrative law that when an organ such as the Educational Service Commission selects a candidate on the basis of comparison with others it is not necessary to Show, in order to justify his selection that he was strikingly superior to others On the other hand, an administrative Court cannot intervene in order to set aside the decision regarding such selection unless it is satisfied, by an applicant in a recourse before it, that he was an eligible candidate who was strikingly Superior to the other who was selected, because only in such a case the organ which has made selection for the purpose of an appointment or promotions deemed to have .exceeded the outer limits of its discretion and, therefore, to have acted in excess or abuse of its powers. (OdysseasGeorghiou v. The Republic (1976) .3 C.L.R, 74 at p.83).
The notion of striking superiority was expounded in the case of Hadjisavva v. The Republic (1982) 3 C.L R. 76 at p. 78, and also in the case of Spanos v. The Republic (1985) 3 C.L R. 1826 at p. 1832.
From the material before the Educational Service Commission, it appears that in the light of the confidential reports in respect of the interested parties and the applicant forthe years 1975/76, 1977/78 and 1979/80, that applicant and interested parties Elli Seppou and Chr. Zographou are equally graded, but interested party Elli Saranti is better graded than the applicant. Thus, Elli Saranti is rated with 36 points for the year 1975/76 and 37 points for the years 1977/78. Elli Seppou is rated with 36 points for the years 1975176, 36 points for the year 1977/78, and 37 points for the year 1979/80. ChrysanthosZographos is rated with 36 points for the year 1975/76, 36 points for the year 1977/78 and 37 points for the year 1979/80. Applicant, Costas Protopapas, is rated with 36 points for the years 1975/76, and 36 points for the year 1977/78.
All interested parties and applicant have been promoted to the post of Assistant Headmaster in the elementary education on 1.7.1972; but Elli Sarariti is 27 years in the Service, Elli Seppou 26 years in the Service, and ChrysanthosZographos 24 years, whereas applicant has 19 years in the Service. By virtue of s.37(2) of the Public Educational Service Law, 1969, (Law 10/69) all the interested parties are senior to the applicant.
Furthermore, all interested parties have been recommended for promotion by the departmental committee, whereas applicant has not been so recommended.
In view of the above, applicant failed to satisfy this Court that he was a candidate strikingly superior to the interested parties, due to qualifications or otherwise, so that the Court could intervene in his favour and annul the sub judice promotion of the interested parties. (See Kolokotronis v.The Republic (1980) 3 C.L. R. 418).
In view of the foregoing, I am of the opinion that applicant has failed to discharge the burden of establishing that he was strikingly superior to the interested parties, so as to justify the intervention of the Court in his favour. I would like to add that in proceedings such as the present recourse this Court will not interfere with the exercise of the discretion of the respondent Commission in making promotions if the decision of the Commission was reasonably open to it in the circumstances of the case; and that in the present instance, on the basis of the material that was placed before the Commission, it was, the my view, reasonably open to it to arrive at its sub judice decision.
For all the above reasons, the recourse is dismissed but with no order for costs.
Recourse dismissed. No order as to costs.