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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 841
1989 July 31
[SAVVIDES, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
COSTAS N. KYRIACOU,
Applicant,
v.
THE PORTS AUTHORITY OF CYPRUS,
Respondent.
(Case No. 32/86)
Reasoning of an administrative act - Promotions of officers - Failure to state reasons for selection of candidates - Ground of annulment.
By means of this recourse, the applicant impugns the promotion of the interested party to the post of Tug Master, first grade, in the respondent authority. The report by the Director General of the Authority to the Board stated that "the merit of the said two candidates reflects in their annual confidential report. Further explanation will be given in the course of the discussion of the matter before the Board".
Reference to the note of the Director General was made on the Headnote of the minutes of the Board. The minutes of the Board of the Authority at which the sub judice decision was taken are very brief. They read as follows:
"After examination of all material which was available to it the Board decided that the Authority should offer promotion to the post of Tug Master, first grade, to Mr. N. Molozian, Tug Master, second grade."
The minutes did not mention whether the Director General was present at the meeting. Neither did they give any explanations nor did they give any indication whether the General Manager gave any further explanation or recommendation about either of the two candidates.
In the light of the established principles that the reasons of a decision should be sufficiently stated; the Court reached the conclusion that in the present case, the failure to record in the minutes the matters which were taken into consideration in reaching the decision in question, renders such decision a nullity as the exercise of judicial control over such decision is impossible.
Sub judice decision annulled. Costs in
favour of applicant.
Recourse.
Recourse against the decision of the respondents to promote the interested party to the post of Tug Master, 1st Grade, in preference and instead of the applicant.
L. Papaphilippou, for the Applicant.
N. Papaefstathiou, for the Respondent.
Cur. adv. vult.
SAVVIDES, J. read the following judgment. Applicant by this recourse challenges the decision of the respondent Authority to promote to the post of Tug Master, 1st Grade, the interested party, Nazaret Molozian (hereinafter to be described as "the interested party") instead of the applicant.
It is the contention of the applicant that the sub judice decision is null and void and of no legal effect for the following reasons:
(1) The respondent acted under a misconception of fact and/or in excess of power in that: It failed to take into consideration the merit, seniority, experience and ability of the applicant which are superior to that of the interested party; it ignored the fact that the interested party lacks experience at sea; that the knowledge and abilities of the interested party have no relation with navigation;-that the interested party did not satisfy the scheme of service.
(2) The respondent was insinuated by extraneous motives.
(3) The sub judice decision lacks due reasoning.
(4) The respondent acted illegally and/or in excess of power and/or in exercise of powers which were not vested in it under sections 19 and 35 of Law 38/73 and which were vested in the Public Service Commission under Article 125 of the Constitution.
The facts of the case are briefly as follows:
As it appears from .a report by the General Manager of the respondent Authority dated 24th July, 1985, it had been decided, upon a decision of the Medical Board that Mr. Evagoras Georghiou, who was holding the post of Tug Master, 1st Grade, was about to retire for medical grounds and his post was going to become vacant as from 1st September, 1985. In the said report it was mentioned that one of the candidates, the interested party in this recourse, had failed in the examinations previously held by the respondent Authority, which are a prerequisite for promotion and suggested that "in view of the fact that in the relevant scheme of service no time limits are fixed for the success in any examination which would be carried out by the Authority it is suggested that Mr. N. Molozian be submitted to written examination, once again, on the basis of the topics which he was taught in the course approved by the Board according to its decision 5/84 and if he succeeds then to be considered (together with Mr. K. Kyriacou who has already passed the relevant examinations) as a candidate for promotion to the post of Tug Master, 1st Grade, which will be vacant as from the 1st September, 1985, due to the retirement of its holder.
The Board of the Authority is invited to approve the submission made in the previous paragraph."
As a result the respondent by its decision dated 7th August, 1985, approved the above suggestion and decided that the interested party be submitted to written examinations in connection with the requirement of the scheme of service for promotion. Such examination was carried out on the 20th September, 1985, and the performance of the interested party was considered satisfactory. In the relevant report of the Director-General of the respondent No.134/85 dated 6th October, 1985 to the Authority the following are mentioned:
"Filling of the vacant post of Tug Master, 1st Grade.
On 7.8.1985, the Board decided (decision 187/85) that Mr. Nazaret Molozian, Tug Master, 2nd Grade, be submitted again to written examinations in connection with the requirements of the schemes of service for promotion.
2.1 The relevant examinations took place on 20.9.85 and the performance of Mr. N. Molozian is considered satisfactory. It should be noted once again that these examinations have already been passed by Mr. C. Kyriacou, Tug Master, 2nd Grade.
2.2 According to the scheme of service for the post of Tug Master, 1st Grade (copy of which is attached for easy reference) Mr. C. Kyriacou and Mr. N. Molozian are the only candidates for promotion to the post in question. The merit of both these two candidates for promotion reflects in their annual confidential reports. Further explanations will be given in the course of the discussion of this matter by the Board.
4. The Board is invited to take up this matter and decide as to the person to whom promotion will be offered to the post of Tug Master, 1st Grade."
The Board of the Authority met on the 20th December, 1985, to consider the question of the filling of the vacancy and decided to promote the interested party to the said post.
The minutes of the meeting of the Authority at which the sub judice decision was taken are very brief and I shall refer to them verbatim. They read as follows:
"Filling of the vacant post of Tug Master, 1st Grade (Note 143/85).
13.1. After examination of all material which was available to it, the Board decided that the Authority should offer promotion to the post of Tug Master, 1st Grade, to Mr N. Molozian, Tug Master, 2nd Grade."
As a result of the above decision the applicant filed the present recourse challenging same.
Learned counsel for applicant in his written address expounded on the legal grounds advanced by him in support of the recourse and laid stress to the striking superiority of the applicant which was apparent from a comparison of their confidential reports both in respect of merit, qualifications and seniority. He also laid stress to the fact that there were alterations in the confidential reports of the applicant by the countersigning officer for the years 1980, 1981, 1983 and 1984 which were made in violation of circular No. 491 in that no mention is made in the said reports that the countersigning officer consulted the reporting officer before making the alterations, which is a material illegality rendering any decision based on same as a nullity in the light of the decision of this Court in the case of The Republic v. Argyrides and finally that the sub judice decision lacks due reasoning as it is apparent from the minutes of the relevant meeting at which the sub judice decision was taken.
Affidavit evidence was filed, with the leave of the Court, on behalf of the respondent Authority. Subsequently, the affiant, at the request of counsel for the applicant, gave oral evidence and was cross-examined. The evidence adduced by the respondent Authority, was that of the reporting and countersigning officers according to which the countersigning officer before making his own evaluation and effecting the alterations on the relevant reports had discussed the matter with the reporting officer and expressed his disagreement concerning certain topics. It was after the reporting officer was persuaded as to the correctness of the observations of the countersigning officer that the alterations were made and initialled by the countersigning officer. In view of the fact that the reporting officer agreed in this respect the countersigning officer did not consider it necessary to make any special entries on the reports giving any reasons for his disagreement with the reporting officer.
The remaining evidence comes from Michalis Vassiliades, Director of Personnel and Administration of the respondent Authority, who was also performing the duties of Secretary of the Board of .the respondent Authority and in such capacity he was attending the meetings of the Board. I consider it relevant to refer to the evidence of this witness as appearing in his affidavit and oral evidence before me and in particular to the following extracts, which I consider material to the present case.
"(2) The Board of the Port Authority in the course of examination of the matter of promotion to the post of Tug Master, 1st Grade, had before it .and considered the reports of the General Manager under Nos. 109/85 and 134/85, the attached list and the personal and confidential files of the applicant and the interested party.
(3) The personal and confidential files of the candidates were deposited with the Secretariat of the Board before the meeting of the Board dated.20.12.85 and were at the disposal of the members of the Board for examination before as well As after the meeting of 20.12.85 when the sub judice decision was taken."
The following is an extract from the oral evidence of this witness: -
"At the date of the meetings I take all the files in the conference room to be available to any member who wishes to examine their contents and they are before the Board at the meeting. I have them locked in my office and when a member comes to Nicosia and rings me up and wants to see something I offer him the opportunity to see whatever he wishes."
On being asked why he did not record in detail what matters were taken into consideration .by the Board his answer was that "it was not considered necessary by the Board this is the practice followed because it was an act which was not disputed in my opinion as the Board knew what it was doing."
Having briefly dealt with the evidence before me and bearing mind the arguments advanced by counsel for the applicant I shall deal first with the ground as to whether the sub judice decision is duly reasoned.
Nothing is mentioned in the said decision as to the comparison between the two candidates an whether on the basis of such comparison the interested party was the best candidate for promotion. Furthermore nothing is mentioned as to what was the material which the Board had before it and which it had taken into consideration for offering the promotion to the interested party. According to the evidence of the Secretary of the respondent part of the material which was before the Board when it took the sub judice decision was the note of the General Manager No.134/85. Reference to such note is in fact' made on the headnote of the minutes. In the said report, reference, to which has already been, made in this judgment, the Director-General mentions the following:
"The merit of the said two candidates reflects in their annual confidential reports. Further explanations will be given in the course of the discussion of the matter before the Board."
Nothing is. Mentioned in the relevant minute of the Board as to whether the General Manager was present and gave any further explanations or recommendations about either of the candidates. 'What is only mentioned in the decision is that the Board decided to promote the interested party without any explanation whatsoever as to how such decision was reached.
It is a well established principle of administrative law that the reasons as to how an Authority reaches a decision should be sufficiently stated in the minutes so that judicial control is made possible. In the circumstances of the present case no reasoning at all is given as to how the respondent Authority reached its decision and whether on a proper evaluation of the merit, qualifications and seniority of the candidates the proper decision was reached. Furthermore it is mentioned that the respondent reached its decision on the basis of all material before it without mentioning what was the material which it actually took into consideration.
In the light of the established principle that the reasons of a decision should be sufficiently stated, I have come to the conclusion that in the circumstances of the present case the failure of the respondent Authority to record in its minutes the matters which it took into consideration in reaching the sub judice decision renders such decision a nullity as the exercise of judicial control over such decision is impossible. Having reached such conclusion I find it unnecessary to deal with the other grounds raised and argued by counsel for applicant.
In the result the sub judice decision is hereby annulled and the promotion of the interested party is set aside Costs in favour of the applicant.
Sub judice decision annulled with
costs in favour of applicant.