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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1983) 3 CLR 921
1983 July 29
[STYLIANIDES, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
AVGI SOTERIADOU,
Applicant
v.
THE REPUBLIC OF CYPRUS, THROUGH
THE PUBLIC SERVICE COMMISSION,
Respondents.
(Case No. 476/81).
PHILIPPOS MICHAELIDES,
Applicant.
v.
THE PUBLIC SERVICE COMMISSION
Respondents
(Case No. 13/82).
DEMOS PISSOURIOS,
Applicant.
v.
THE PUBLIC SERVICE COMMISSION,
Respondents.
(Case No. 141/82).
Public Officers-Promotions-Judicial control-Principles applicable of Head of Department-Effect-Applicant possessing more qualifications more overall experience and seniority and better confidential reports than two of the interested parties-Respondent Commissionshould have given full reasons for preferring these interested parties to applicant-Reasons for selecting them contrary to the relevant administrative records andincompatible with the factors taken into account by them-No due inquiry carried out-Promotions of these interested parties annulled.
Administrative Law-Administrativeacts or decisions-Reasoning- Due inquiry-Public Officers-Promotions-Reasoning therefor contrary to the relevant administrative records and incompatible with the factors taken into account bythem-No due inquiry carried out-Promotions annulled.
Public Officers-Promotions-Head of Department-Recommendations before the Public Service Commission and participation in Departmental Board-Possible because there is no conflict between section 36 and section 44(3) of the Public Service Law, 1967 (Law 33/67).
Public Officers-Departmental Board-Regulations V made by the Council of Ministers under s.36 of the Public Service Law, 1967 (Law 33/67)-Construction of the proviso to regulation 1(b).
Bias-Administrative decision-Bias of those participating in the decision taking process renders the decision vulnerable-Confidential reports-Alleged bias of reporting officer-Inquiry by Court into-Does not empower it to substitute its evaluation and grading of a civil servant for that of the reporting officer.
Public officers-Confidential reports-Adverse confidential reports- Non-communication to officer concerned Effect-Section 45(4) of the Public Service Law, 1967 (Law 33/67).
Public Officers-Confidential reports-Need for improvements to the system of preparation of.
Public Officers-Promotions-Qualifications-Additional qualifications which are akin to the duties of the officer-Effect.
Public Officers-Schemes of service-Interpretation by Public Service Commission-Judicial Control-Principles applicable- "Post graduate education of one at least academic year" in the relevant scheme of service-Interpretation, as meaning a continuous academic year, a reasonable one.
The applicants in these recourses challenged the validity ofthe decision of the respondent Public Service Commission to promote to the post of Senior Agricultural Officer the interested parties in preference and instead of the applicants.
In taking the sub judice decision the respondent Commission stated in the relevant minutes that they have considered all material factors as emerging from the personal files of the candidates and the confidential reports and took into consideration the report of the Departmental Board and the recommendations of the Director of Agriculture and concluded that the 12 persons, who were promoted, were superior to all the other candidates on the basis of the totality of the established, criteria (merit, qualifications, seniority), and, having found them suitable, promoted them.
In addition to dealing with the general issues concerning the merit, qualifications and seniority of the candidates the Court, also, dealt with the following issues:
(a) Whether the Head of. Department who chaired the Departmental Board, established under section 36 of the Public Service Law, 1967 (Law 33/67), was entitled to attend the meeting of the Public Service Commission and make recommendations under section 44(3) of the Law.
(b) Whether in view of the provisions of the proviso to regulation 1(b) of the Regulations made by the Council of Ministers under s.36 of Law 33/67 the Head of the Department could participate at the meeting of the Departmental Board given that the posts which were filled were directly under him because the post of Superintendent, which was directly under him, was vacant at the material time and the posts to be filled were directly under the post of Superintendent.
(c) Whether a candidate who has attended post graduate courses or studies over various periods can be considered as possessing the additional qualifications of "successful post graduate education for one at least academic year" when the said various periods if computed together are in all longer than one academic year.
(d) Whether, possession of additional qualifications by a candidate should be considered asan advantage.
(e) Whether the confidential reports concerning applicant Soteriadou were tainted with bias.
From the administrative records before the Court it appeared that on the whole applicant Michaelides had more qualifications, more overall experience and seniority than interested parties Neocleous and Kalimeras and better confidential reports than Neocleous. The remaining applicants were not strikingly superior to the interested parties as far as merit, qualifications and seniority were concerned.
Held, after stating the principles governing judicial control of promotions and the effect of merit, qualifications and seniority, and the recommendations of the Head of Department, that since on the whole applicant Michaelideshad more qualifications, more overall experience and seniority than Neocleous and Kalimerasand better confidential reports than Neocleous this Court would have expected that the Commission should have given full reasons for preferring these two interested parties to applicant Michaelides, which they failed to do; that the whole object of the rule requiring reasons to be given by the Commission in administrative decisions is to enable the person concerned, as well as this Court on review, to ascertain in each case whether the decision is well founded in fact and in law; that the reasons given by the respondent Commission in its minutes for selecting the aforesaid two interested parties appear to be definitely contrary to the relevant administrative records and incompatible with the factors taken into account by them; that as a consequence of the above it may safely be said that the Commission did not carry out a due inquiry; accordingly the recourse of applicant Michaelides will succeed in so far as the promotion of interested party Neocleous is concerned and will fail in so far as it relates to the promotion of interested party Mareou. The recourse of applicants Soteriadou and Pissourios will fail because what was said about applicant Michaelides cannot be said about these applicants.
Held, further, on issues (a)-(e) above:
(1) That there is no conflict between section 36 and s. 44(3) of Law 33/67 (p. 930 post).
(2) That since the posts of Senior Agricultural Officer are not hierarchically directly subordinate to the Head of the Department the temporary vacancy of the post of Superintendent, to whom the holders of the post of Senior Agricultural Officer are directly subordinate, does not leave room for the application of the proviso to regulation 1(b); that this proviso applies where the holders of the post are directly subordinate, according to the structure of a department, and not where the post of the superior officer is vacant. Even if, however, the contrary view is taken, the participation of the Head of the Department. is not such as, to render the report of the Departmental Board, and ultimately the decision of the Commission, a nullity. It might have been a violation of the proviso but it would not have as a consequence the annulment either of the report of the Board or the ultimate decision of the Commission.
(3) That in deciding whether or not the Commission in a given case has conformed with the relevant scheme of service, the Court will not give to such scheme a different interpretation other than that given to it by the Commission, provided that such interpretation was reasonably open to it on the basis of. the wording of the scheme in question; that this Court is satisfied that the interpretation given by the Commission, that postgraduate education of one at least academic year means a continuous academic year, was a reasonable one on the basis of the wording of the scheme of service.
(4) That though a qualification cannot be considered as an advantage over other candidates if it is not expressly stated to be so by the relevant scheme of service, in promotions qualifications beyond those required by the scheme of service, which are akin to the duties of the officer and which make him more suitable in the carrying out of such duties, should be taken into consideration.
(5) That bias of one or more of those participating in the decision taking process or affecting the material on which the decision is based renders the decision vulnerable on the ground of unfairness; and that, therefore, if it is proved that the reporting officer had personal animosity or was motivated by extraneous factors, then, depending on its nature and circumstances giving rise to it, it is taken into consideration whether a case of bias is established; that the inquiry of this Court as to whether the reports are biassed does not empower this Court to substitute its evaluation and grading of a civil servant for thatof the reporting officer but since certain confidential reports concerning this applicant gave a gloomy picture of an irresponsible officer they ought in pursuance of s.45(4) of Law 33/67 to be communicated to her; that the material before the Court with regard to the reports of Louca is so flimsy that cannot support the charge of bias Theapplicant has not discharged the burden cast on her. The same, however, cannot be said about the reports of Papasolomontos. On the totality of the material before this Court it can safely be inferred that the reports of Papasolomontos were tainted with bias and lacked impartiality It may be noted, however, that even if the reports from 1975 onwards are taken into consideration, she is not strikingly superior, not even superior to the interested parties.
Observations with regard to the desirability of bringing about improvements to the system of preparation of confidential reports.
Recourse 141/82 succeeds Recourses 476/81
and 141/82 dismissed.
Cases referred to:
Thalassinos v. Republic (1973) 3 C.L.R. 386 at p. 391;
Theodossiou v Republic 2 R.S.C.C 44 at p 47;
Menelaou v. Republic (1969) 3 C.L.R. 36 at p. 41;
Pattichis and Another v. Republic (1968) 3 C.L.R. 374;
Georghiou v. Republic (1976) 3 C.L.R. 74 at p. 82;
Georghiades and Another v. Republic (1970 3 C.L.R. 257 at p 269;
Koussouhdes v Republic (1967) 3 C.L.R. 438;
Partellides v Republic (1969) 3 C.L.R. 480;
Smyrnios v Republic (1983) 3 C.L.R. 124;
Papapetrou v. Republic, 2 R.S.C.C. 61. at p. 69;
Petsas v Republic 3 R.S.C.C. 60 at p 63;
Kleanthous v. Republic (1978) 3 C.L.R. 320;
Bagdades v Central Bank of Cyprus (1973) 3 C.L.R. 417 at pp. 427-428;
HjiGeorghiou v Republic (1975) 3 C.L.R. 477;
Georghiou v. Republic (1975) 3 C.L.R. 153 at pp. 159-160;
Christou v Republic (1980) 3 C.L.R. 437;
Short v Poole Corporation [1926] Ch. 66 at p 91;
Smith.v. East Elloe R.D.C. [1956] 1 All E.R. 855;
Pierides v. Republic (1971) 3 C.L.R. 233 at p. 250;
Korai and Another v. C.B.C. (1973) 3 C.L.R. 546 at pp. 570,573;
Petrides .v. Republic (1975) 3 C.L.R 371;
Kyriacopoullou v. Republic (1973) 3 C.L.R. 1 at p. 12.
Recourses.
Recourses against the decision of the respondents to promote the interested parties to the post of Senior Agricultural Officer in preference and instead of the applicants.
L. N. Clerides with B. Vassiliadesfor applicant in Case No. 476/81.
K. Chrysostomides, for applicant in Case No. 13/82.
A. Markide, for applicant in Case No. 141/82.
E. Papadopouiou (Mrs.), for respondents.
P. Petrakis, for interested parties Grivas and Markou.
Cur. adv. vult.
STYLIANIDES J. read the following judgment. The Department of Agriculture was restructured and 12 posts of Senior Agricultural Officer were created. The scheme of service for the aforesaid posts was approved by Decision No. 20985 of the Council of Ministers dated 6thNovember, 1981. The Ministry of Finance authorised the filling of the said posts and on 9th November, 1981, by letter (Appendix 1) the respondent Commission was requested by the Director-General of the Ministry Of Agriculture and Natural Resources to makethe necessary arrangements for the filling of the said posts especially: in view of the fact that one of the candidates was due to retire on 1stDecember, 1981.
The Public Service Commission (hereinafter referred to as "the Commission") at its meetings of 12.11.81 and 25.11.81 (Appendices 2 and 3) decided that a list of the officers eligible for promotion be prepared by its Secretary and be forwarded together with their personal files and confidential reports as well as the scheme of service (Appendix 4) to the Chairman o the Departmental Board established under s. 36 of the Public Service Laws 1967-1980 and regulation 3 made thereunder by the Council of Ministers. Onthe same .day, 25th November,1981, the Secretary of the Commission implemented the said decision-directions.
The list of candidates contained 27 names. The Departmental Board, chaired by the Director of the Department of Agriculture, met on. 26th November, 1981 and, after consideration of the list of candidates for promotion and the qualifications required under the scheme of service, excluded three Agricultural Officers, Class 1, as lacking the prescribed qualifications Its report is Appendix 5. The material part of the said report is paragraph 5 that reads as follows:-
"Η Τμηματική Επιτροπή στη συνέχεια αφού έλαβε υπόψη ότι οι υπηρεσίες όλων των 24 υποψηφίων πού ικανοποιούν το Σχέδιο Υπηρεσίας της θέσεως Ανώτερου Γεωργικού Λειτουργού, όπως φαίνεται και από τις Εμπιστευτικές Εκθέσεις που υποβλήθηκαν γι' αυτούς, υπήρξαν πολύ ικανοποιητικές, απεφάσισε ομόφωνα να συστήσει και τους 24 υποψηφίους για επιλογή σχετικά με διορισμό στις 12 μόνιμες (Τακτ. Προϋπολ.) Θέσεις Ανώτερου Γεωργικού Λειτουργού, κατ' αλφαβητική σειρά".
("The Departmental Board further and after having taken into consideration that the services of all the 24 candidates who satisfy the Scheme of Service of the post of Senior Agricultural Officer, as it appears also from the confidential reports submitted on them, have been very satisfactory, decided unanimously to recommend all the 24 candidates for selection with regard to appointment to the 12 permanent (Ord. Est.) posts of Senior Agricultural Officer, in alphabetical order").
This report was sent to the Commission on 26th November, 1981. On 27th November, 1981, the Commission considered the report of the Departmental Board and in view of the imminent retirement of one of the candidates, Savvides, decided to take up the matter of the filling of the said posts on the following day, the 28th November, 1981, and notified the Director of the Department of Agriculture-the Head of the Department-to be present. On 28th November, 1981, the Commission met; the Head of the Department Director of Agriculture-placed before them a sketch of the new structure of the Department to assist the Commission in the filling of these promotion posts and he made his recommendations.
The respondent Commission at its meeting of 30th November, 1981-the 29th being a Sunday-took the sub judice decision for the promotion of 12 of the candidates, Appendix 8, to which reference will be made later on in this judgment. The promotion of Savvides was published in the Official Gazette on 4.12.81 and the promotion of all the others on 8.1.82.
The applicants, being aggrieved, filed these recourses. Soteriadou-applicant in Case No. 476/81-complains against the promotion of all 12 but in the course of the hearing she with-drew her complaint against the promotion of Savvides who retired prior to the filing of her recourse. Applicant in Case No. 13/82, PhilipposMichaelides, challenges the promotion of Panayiotis Kalimeras, GeorghiosNeocleous and PetrosMarcou, and applicant Pissourios in Recourse No. 141/82 attacks the promotion of GeorghiosNeocleous and PetrosMarcou, but in the written address of his counsel he withdrew his complaint against the promotion of Marcou. They seek a declaration that the sub judice decision in so far as it relates to the promotion of the interested parties is null and void and of no legal effect and they pray for the annulment of such decision by the Court.
The complaint of the applicants is the promotion of the interested parties in preference to them and the failure of the Commission to prefer each one of them instead of the interested parties. They complain that:-
(a) The Commission failed to select the most suitablecandidate having regard to seniority, merit and qualifications and the statutory provisions governing promotions;
(b) The Commission acted in excess and/or in abuse of power in the exercise of its discretionary powers and that the applicants had striking superiority over the interested parties;
(c) The Commission failed to carry out a due inquiry;
(d) The decision for promotion of the interested parties is lacking due reasoning;
(e) Undue weight was given to the recommendations of the Head of the Department which are not supported by the other material before the Commission; and,
(f) There was discrimination in the sense that comparison was made only between interested party Kyriacou and Michaelides, a candidate recommended by the Head of the Department and not promoted by the Commission, but not between the applicants and the interested parties.
Further Mr. Clerides for applicant in Case No. 476/81 submitted that as the Head of the Department chaired the Departmental Board established under s 36, he was not entitled to attend the meeting of the Public Service Commission and make recommendations as s 44(3), that provides that "the Commission shall have due regard to the recommendations made in this respect by the Head of the Department in which the vacancy exists", is rendered nugatory by the report containing the evaluation of the candidates by the Departmental Board.
Section 36 provides for the establishment of boards to advise the Commission in respect of appointments or promotions. The regulations impose on such Board to select not less than two and not more than four for each vacancy, if there are suitable persons for such recommendation The function of the Head of the Department at the, meeting of the Commission is to recommend which of the candidates already submitted to Commission by the Departmental Board should be appointed. The Departmental Board takes a preparatory decision that advises the Commission when there are many candidates. If and when the candidates for each vacancy are less than four, again the evaluation and. the report of the Departmental Board, are different in some way in nature to the recommendation envisaged by s.44 by the Head of the Department. I see no conflict between s.36 and s.44(3).
In GregorisThalassinos v. The Republic, (1973) 3 C.L.R, 386, at p. 391, we read:-
"Furthermore, a Board set up under the provisions 'of section 36, advises the Commission directly and independently of its obligation under section 44(3), that in making a promotion due regard shall be had to the recommendations made by the Head of the Department in which the vacancy exists".
It was canvassed by counsel in Recourses No. 476/8 1, and141/82 that the constitution of the Departmental Board by the inclusion therein of the Director of Agriculture was faulty in that in substance and effect at the material time the posts, which were filled, were directly under him, this being contrary to the proviso to regulation 1(b) made by the Council of Ministers under s.36 of Law 33/67.
It is common ground, and it is apparent from the sketch produced showing the structure of the Department, that the Head of the Department is the Director. Directly under him is the Superintendent and under the Superintendent are the 12 posts of Senior Agricultural Officer. The post of Superintendent was created by the supplementary budget published in the Official Gazette of 22.4.81. It was vacant at the material time. It was filled later by the promotion of Parissinos, one of the interested parties in Recourse No. 476/81.
The proviso reads as follows:-
"Νοείται ότι οσάκις πρόκειται περί πληρώσεως θέσεων οι κάτοχοι των οποίων είναι ιεραρχικώς αμέσως υφιστάμενοι του Προϊσταμένου του οικείου Τμήματος ή Υπηρεσίας, ως Πρόεδρος της Τμηματικής Επιτροπής ενεργεί ό Γενικός Διευθυντής του οικείου Υπουργείου, τα δε λοιπά μέλη αυτής, εξ ων θα είναι ο οικείος Προϊστάμενος, επιλέγονται υπό του Γενικού Διευθυντού διά την συγκεκριμένην περίπτωσιν".
("Provided that when filling posts the holders of which are' hierarchically directly subordinate to the Head of the Department or Service concerned, the Director-General of the Ministry concerned acts as Chairman of the Depart mental Board, the rest of its members, one of them being the Head of Department, being selected by the Director-General for the particular case").
The posts of Senior Agricultural Officer are not hierarchically directly subordinate to the Head of the Department. There-fore, the temporary vacancy of the post of Superintendent, to whom the holders of the post of Senior Agricultural Officer are directly subordinate, does not leave room for the application of the proviso. It is the view of this Court that this proviso applies where the holders of the post are directly subordinate, according to the structure of a department, and not where the post of the superior officer is vacant. Even if, however, the contrary view is taken, the participation of the Head of theDepartment is not such as to render the report of the Departmental Board, and ultimately the decision of the Commission a nullity. It might have been a violation of the proviso but it would not have as a consequence the annulment either of the report of the Board or the ultimate decision of the Commission.
The Public Service Commission is a most important factor for the efficient functioning of the State. The interests of the citizens in a modern State, whose activities, are expanding, are best served by qualified, experienced and efficient civil servants The paramount duty of the Commission in effecting promotions is to select the candidate most suitable, in all the circumstances of each particular case, for the post in question In doing so the Commission should decide who is the most suitable amongst the qualified candidates on the totality of the circumstances pertaining to each one of them. (Theodossiou v. The Republic, 2 R.S.C.C. 44, at p. 47).
The claim of officers to promotion should be considered on the basis of merit, qualifications and seniority. Merit should carry the most weight because the functions of a public office are better performed in the general interests of the public by a public officer better in merit than seniority or qualifications. (Menelaou v. The Republic, (1969) 3 C.L.R. 36, at p. 41).
As already said, it is the duty of the promoting authority to promote the most suitable candidate. The first duty of this Court in reviewing promotions is to see whether the Authority exercised its discretionary power in conformity with the statutory provisions and the rules and requirements of administrative law generally, including good faith. So long as the Authority acted within those limits, the Court cannot interfere; it cannot substitute its own opinion as to the merits of the candidates for that of the promoting Authority. (Pattichis and Another v. The Republic, (1968) 3 C.L.R. 374).
It is accepted as quite correct the proposition that it is open to the Commission, in trying to select the most suitable candidate, to weigh together all relevant considerations and to attribute more significance to one factor than to another, in the course of doing so, provided, however, that it exercises properly its relevant discretion; '(see the decision of the 'Greek, Council of State in Case No. 635/50); and this Court will not interfere with a decision of the Commission when it appearsthat it was reasonably open to it to select a particular officer, instead of another, for promotion. (OdysseasGeorghiou v. The Republic, (Public. Service Commission), (1976) 3 C.L.R. 74, at p. 82). The whole career of the candidate concerned has to be taken into account.
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 one who was selected, because only in such a case the organ which has made the selection for the purpose of an appointment or promotion is deemed to have exceeded the outer limits of its discretion and, therefore, to have acted in excess or abuse of its powers; also, in such a situation the complained of decision of the organ concerned is to be regarded as either lacking due reasoning or as based on unlawful or erroenous or otherwise invalid reasoning. The onus of establishing striking superiority lies always on the applicant in a recourse (Georghiou (supra) and Georghiades and Another v. The Republic, (1970) 3 C.L.R. 257, at p. 269). After annulment of a promotion the Administration has to proceed to make afresh a new and duly reasoned comparison of the candidates concerned.
It is considered pertinent to quote at this stage the material part of the scheme of service (Appendix 41), the recommendations of the Head of the Department (Appendix 7) and the decision of the Commission (Appendix 8):-
SCHEME OF SERVICE:
Qualifications:
The required qualifications under the scheme of service are:
(1) At least three years' service in the post of Agricultural Officer "A"/Agricultural Officer, 1st Class/Soil Conservation Engineer, 1st Grade;
(2) Επιτυχής μεταπτυχιακή εκπαίδευσις ενός τουλάχιστον ακαδημαϊκού έτους.
(3) Ευρεία διοικητική πείρα και οργανωτική ικανότης ως και αρίστη γνώσις των συνθηκών της Κυπριακής γεωργίας - κτηνοτροφίας.
(4) Ακεραιότης χαρακτήρος, υπευθυνότης, πρωτοβουλία και ευθυκρισία.
(5) Αρίστη γνώσις της Ελληνικής και πολύ καλή γνώσις της Αγγλικής γλώσσης.
("SCHEME OF SERVICE
Qualifications:
The required qualifications under the scheme of service are:-
"(1) At least three years' service in the post of Agricultural Officer 'A'/Agricultural Officer 1st Class/Soil Conservation Engineer, 1st Grade;
(2) Successful post graduate studies of at least one academic year's duration;
(3) Wide administrative experience and ability to organise as well as excellent knowledge of Cyprus Agriculture and stock-farming conditions;
(4) Integrity of character, responsibility, initiative and sound judgment;
(5) Excellent knowledge of the Greek and very good knowledge of the English language,"
For officers in the service at the time of the approval of this scheme the post-graduate education V is considered only as an additional qualification
The applicants and the interested parties possess the required qualifications.
RECOMMENDATIONS OF THE HEAD OF THE DEPARTMENT:
"Ούτος, άφού κατέθεσεν ενώπιον της Επιτροπής σχεδιάγραμμα της νέας διαρθρώσεως του Τμήματος Γεωργίας, δια νά βοηθηθή η Επιτροπή είς τό έργον της πληρώσεως των θέσεων, συνέστησε διά προαγωγήν τούς κ.κ. Ιούλιον Παρισινόν, Θεμιστοκλήν Φωτιάδην, Κύρον Σαββίδην, Γεώργιον Αγρότην, Σοφοκλήν Σοφοκλέους, Κωνσταντίνον Φωκάν, Γεώργιον Γρίβαν, Παναγιώτην Αριστοτέλους, Παναγιώτην Καλημέραν, Γεώργιον Νεοκλέους, Παναγιώτην Μιχαηλίδην καΐ Πετράκην Μάρκου, δια τόν λόγον ότι είναι πάρα πολύ καλοί, μεταξύ δέ αυτών οι κ.κ. Παρισινός, Φωτιάδης, Σαββίδης, Φωκάς, Γρίβας, Αριστοτέλους, Καλημέρας, Νεοκλέους καΐ Μάρκου δύνανται νά χαρακτηρισθούν ώς εξαίρετοι.
Όλοι οι υπό της Τμηματικής Επιτροπής συστηθέντες έχουν ευρείαν διοικητικήν πείραν, ως απαιτείται υπό του οικείου Σχεδίου Υπηρεσίας.
Επιτυχή μεταπτυχιακήν εκπαίδευσιν ενός τουλάχιστον έτους, ήτις θεωρείται υπό του οικείου Σχεδίου Υπηρεσίας ως πρόσθετον προσόν, έχουν οι ακόλουθοι 18:
....................................
Οι υπόλοιποι εξ υποψήφιοι δεν έχουν το εν λόγω πρόσθετον προσόν.
Κατά την κρίσιν του, λαμβανομένων υπ' όψιν των καθιερωμένων κριτηρίων εν τω συνόλω των, ήτοι της αξίας, των προσόντων και της πείρας και αρχαιότητος των υποψηφίων, οι υπ' αυτού συστηθέντες υπερτερούν των λοιπών υποψηφίων".
("He, after putting before the Commission a plan for the new structure of the Department of Agriculture, in order to help the Committee in its task of filling the posts, recommended for promotion Messrs. IouliosParisinos, ThemistoklisPhotiades, KyrosSavvides, GeorghiosAgrotis, Sofoclis. Sofocleous, ConstantinosPhokas, GeorghiosGrivas, .Panayiotis Aristotelous, Panayiotis Kalimeras, GeorghiosNeocleous, Panayiotis. Michaelides and Petrakis Markou, for the reason that they are very good, among them Messrs. Parisinos, Photiades, Savvides, Phokas, Grivas, Aristotelous, Kalimeras, Neocleous and Markou may be described as excellent.
All those recommended by the Departmental Committee have wide administrative experience, as required by the relevant scheme of service.
Successful post graduate studies of at least one year's duration which is considered by the relevant scheme of service as an additional qualification, is possessed by the following 18;
...............
The remaining six candidates do not 'have the, said additional qualification.
According to his judgment, having in mind the established criteria as a whole, i.e. merit, qualifications and experience and seniority, of candidates, those recommended by him are superior to the remaining candidates").
DECISION OF THE COMMISSION:
It reads as follows:-
"Η Επιτροπή προέβη εις αξιολόγησιν των υποψηφίων και σύγκρισιν τούτων μεταξύ των.
Η Επιτροπή εξήτασε τα ουσιώδη στοιχεία από τους Προσωπικούς Φακέλλους των υποψηφίων και τας περί αυτών Εμπιστευτικάς Εκθέσεις και έλαβεν υπ' όψιν τα πορίσματα της Τμηματικής Επιτροπής και τας κρίσεις και συστάσεις του Διευθυντού του Τμήματος Γεωργίας.
Η Επιτροπή υιοθέτησε τας συστάσεις του Διευθυντού τού Τμήματος Γεωργίας, πλην της περιπτώσεως του κ. Παναγιώτου Μιχαηλίδου, κρίνασα ως υπέρτερον αυτού τον κ. Ιωάννην Κυριάκου δια τους ακολούθους λόγους:
Η εν γένει απόδοσις του κ. Κυριακού, ως αντικατοπτρίζεται εις τας περί αυτού Εμπιστευτικάς Εκθέσεις είναι υψηλού επιπέδου, συγκεκριμένως δε κατά τα δύο τελευταία έτη ούτος εβαθμολογήθη γενικώς ως "Λίαν Καλός", ως και ό κ. Μιχαηλίδης.
Από πλευράς προσόντων τόσον ό κ. Κυριακού όσον και ό κ. Μιχαηλίδης διαθέτουν το προβλεπόμενον υπό τού οικείου Σχεδίου Υπηρεσίας πρόσθεταν προσόν, αλλ' ό κ. Κυριακού κατέχει "Degree of Master of Agriculture, University of Florida", ενώ ό κ. Μιχαηλίδης κατέχει "Diploma in Agricultural Extension Methods, University of Reading".
Από πλευράς αρχαιότητος ό κ. Κυριακού προηγείται τού κ. Μιχαηλίδη πέραν των πέντε ετών.
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Εν συμπεράσματι, η Επιτροπή κατέληξεν εις το συμπέρασμα ότι οι κάτωθι υποψήφιοι υπερτερούν των λοιπών υποψηφίων επί τη βάσει τού συνόλου των καθιερωμένων κριτηρίων (αξία, προσόντα, αρχαιότης) και ευρούσα αυτούς καταλλήλους απεφάσισεν όπως τούς προαγάγη εις τας κενάς μονίμους (Τακτ. Προϋπ) θέσεις Ανωτέρου Γεωργικού Λειτουργού εις το Τμήμα Γεωργίας:
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1. 2. |
ΑΓΡΟΤΗΣ Γεώργιος ΑΡΙΣΤΟΤΕΛΟΥΣ Παναγιώτης |
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3. 4. 5. 6. 7. 8. 9. 10. 11. 12. |
ΓΡΙΒΑΣ Γεώργιος ΚΑΛΗΜΕΡΑΣ Παναγιώτης ΚΥΡΙΑΚΟΥ Ιωάννης ΜΑΡΚΟΥ Πετράκης ΝΕΟΚΛΕΟΥΣ Γεώργιος ΠΑΡΙΣΙΝΟΣ Ιούλιος ΣΑΒΒΙΔΗΣ Κύρος ΣΟΦΟΚΛΕΟΥΣ Σοβοκλής ΦΩΚΑΣ Κωνσταντίνος ΦΩΤΙΑΔΗΣ Θεμιστοκλής" |
("The Commission proceeded with the evaluation of the candidates and the comparison between them.
The Commission considered the essential elements from the Personal Files of the candidates and the confidential reports on them and took into consideration the conclusions of the Departmental Board and the opinion and recommendations of the Director of the Department of Agriculture.
The Commission accepted the recommendations of the Director of the Department of Agriculture, except for the case of. Panayiotis. Michaelides, having considered Mr. IoannisKyriacou as superior to him for the following reasons:-
In general the performance of Mr. Kyriacou, as reflected in the confidential reports on him is of high standard, particularly so for the last two years he has been graded generally as 'very good', as Mr. Michaelides.
As far as qualifications are concerned Mr. Kyriacou as well as Mr. Michaeides possess the required by the relevant scheme of service additional qualification but Mr. Kyriacou possesses 'Degree of Master of Agriculture, University of Florida', whereas Mr. Michaelides possesses "Diploma in Agriculture Extension Methods, University of Reading'.
With reference to seniority Mr. Kyriacou precedes Mr. Michaelides by more than five years.
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In the result the Commission came to the conclusion that the undermentioned candidates are superior to the rest of the candidates on the basis of all the established criteria (merit, qualifications, seniority) and having found them suitable decided to promote them to the vacant permanent (Ord. Est.) posts of Senior Agricultural Officer in the Department of Agriculture:
1. AgrotisGeorghios
2. Aristotelous Panayiotis
3. GrivasGeorghios
4 Kalimeras Panayiotis
5. Kyriacouloannis
6. Markou Petrakis
7. NeocleousGeorghios
8. Parissinosloulios
9. SavvidesKyros
10. SofocleousSofoclis
11. PhokasConstantinos
12. PhotiadesThemistoklis").
SENIORITY:
Seniority between officers holding the same office is deter-mined by the effective date of appointment or promotion to the particular office or grade. (Section 46(1) before its repeal and substitution by s. 5(a) of Law No. 10/83). In the case of simultaneous appointment or promotion to the particular office or grade of the same office, seniority is determined according to the officers' previous seniority. (Section 46(2) before its amendment by s.5 of Law No. 10/83).
According to the scheme of service an officer was eligible for promotion if he had three years' service in the post of Agricultural Officer. "A"/Agricultural Officer, 1st Grade/Soil Conservation Engineer, 1st Grade.
Applicant Soteriadou is holding the post of Agricultural Officer, Class I; PhilipposMichaelides and Demos Pissourios hold the post of Soil Conservation Engineer, Class I, and the interested parties are Agricultural Officers, Class I.
Interested parties Parissinos, Photiades and the retired Savvides were far senior to all the candidates, including the applicants.
A list of the first date of appointment and date of promotion to these posts for the applicants and the other interested parties is given hereinbelow:-
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Date of first appointment |
Date of promotion to Class. 1 |
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Applicant in Case No. 476/81 AvghiSoteriadou |
1.7.51 |
1.8.66 |
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Applicant in Case No. 13/82 VPhilipposMichaelides |
15.6.67 |
1.8.76 |
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Applicant in ease No. 141/82 Demos Pissourios |
1.9.65 |
1.8.76 |
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GeorghiosAgrotis |
15.9.41 |
1.1.67 |
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SofoklisSofokleous |
15.6.56 |
1.7.70 |
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Costas Fokas |
1.11.62 |
1.7.70 |
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IoannisKyriacou |
1.11.62 |
1.4.72 |
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Panayiotis Aristotelous |
1.2.64 |
1.3.74 |
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Panayiotis Kalimeras |
1.9.65 |
1.8.76 |
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GeorghiosNeocleous |
15.10.64 |
1.5.77 |
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PetrosMarcou |
2.1.59 |
1.6.77 |
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GeorghiosGrivas |
1.1.57 |
1.12.73 |
From the above list it is clear that Soteriadou is by far senior to all. Michaelides is plainly senior to Neocleous and Markou. Furthermore as he was promoted to the particular grade on the same day with Kalinieras but he was by almost two years senior in the previous post-he having been promoted to the post of Soil Conservation Engineer, Class II, on 1.6.69, whereas KaliVmeras was promoted to Agricultural Officer, Class II, on 1.11.71-he is senior to Kalimeras as well.
The existence of the institution of promotion posts restricted to members of the service, safeguards adequately the interests of those in the service. Long service is rewarded by promotion as it entails acquisition of experience and qualities. It is rightly, however, well settled V that seniority is not the decisive factor which governs promotions but one that should be duly taken into consideration and it should prevail if all other things are more or less equal. (Koussoulides v. The Republic, (1967)
3 C.L.R. 438; 'Parteiides v. The Republic, (1969) 3 C.L.R. 480; NicosSmyrnios. v. The Republic, (1983) .3C.L.R. 124).
QUALIFICATONS:
Qualifications are rightly a factor that weighs next to merit. An officer with qualifications, in the usual course of events, is better armed in the execution of the duties of his office in the interests of the citizens and the organized society.
The qualifications required are set out in the scheme of service. The scheme of service provides as Qualification NO. 2 "successful post-graduate education for one at least academic year", which for those in the service is not required but is an additional qualification. The Head of the Department stated to the Commission-and the Commission accepted, as it is safely inferred from the minutes-that the applicant in Case No. 476/81 did not possess this additional qualification.
Learned counsel for this, applicant argued 'that if the various periods of post-graduate courses or studies of the applicant are computed together, they are in all longer than one academic year and, therefore, she should have been considered as possessing this additional qualification. This is not the interpretation placed on the scheme by the Commission.
It should be stated that in deciding whether or not the Commission ma given case has conformed with the relevant scheme of service,' the Court will not give to such scheme a different interpretation other than that given 'to it by the Commission, provided that such interpretation was reasonably open to it on the basis of the wording of the scheme in question. (Theodhoros G. Papapetrou v. The Republic, 2 R.S.C.C. 61, at p.69; Chr. Petsas v. The Republic, 3 R.S.C.C. 60).
The Court is satisfied that the interpretation given by the Commission, that post-graduate education of one at least academic year means a continuous academic year, was a reasonable one on the basis of the wording Of the scheme of service.
Applicant in Case No. 13/82 alleges that his qualifications are strikingly superior to those of interested parties Kalimeras, and Neocleous and that he is in some way superior to Marcou in the sense that though both are the holders of M.Sc., the applicant has two international recognitions whereas Marcou has none.
The qualifications of all the applicants and the interested parties Kalimeras, Neocleous and Marcou are:-
Applicant in Case No. 476/81:
Degree of B.Sc. in Agriculture, University of Durham, U.K.;
Post-graduate Training at the Anti-Locust Research Centre, London, from July 1951-October, 1951;
Attended a course in Pasture, Plant and Forage Crop Breeding, at the Welsh Plant Breeding Station in Wales, from June 1958-October 1958.
There is nothing of the following qualifications alleged by her in her personal files but in the written address the following qualifications, duly documented, are stated:-
Mushroom growing Darlington Farm, U.K.-July 1964 (at her own expense);
Mist propagation in Netherlands.-August 1964 (at her own expense);
F.A.O. Participation in the group Fellowship Study Tour on Improvement of Vegetable Production in the U.S.S.R.-20.6.67-20.8.67;
Participation in. the Overseas Development Conference on Tropical and Subtropical fruits, where she presented a paper on "Cyprus Melons"-15.9.69-29.9.69;
Study Tour on Potato Seed Production and Protected Cultivation sponsored by Netherlands Potato Consultative Institute-22.8.76-3.9.76;
Study Tow at Lee Valley: Horticulture Experimental Station and the Horticulture Centres in U.K. for Vegetable and Flower production and new techniques on cultivation, sponsored by the Co-operative Central Bank - November-December 1976;
Training on Orchid cultivation in Sussex, U.K.,-May-June 1977;
Study Tour on Potato growing and seed potato production in Ireland, sponsored by the Irish Potato Marketing Board-July 1978;
Study Tour to Netherlands on Potato variety growing and seed potatoes-September 1981.
Applicant in Case No. 13/82:
Diploma of the Paedagogical Academy of Cyprus.
Degree of B.Sc. in Agricultural Engineering, Technion Israel Institute of Technology;
Degree of M Sc in Agricultural Engineering (Soil and Water Option) of the University of Reading;
Associate Member of the Institution of Civil Engineers, London;
Member of the Institution of Civil Engineers, London;
Registered Civil Engineer of the Council of Architects and Civil Engineers, Cyprus;
Chartered Engineer of the Council of Engineering Institutions;
He attended an International Course on Irrigation in Israel from 14.11.76-10.12.76.
Applicant in Case No 141/82:
Diploma in Agriculture of Salonica University;
Degree of M.Sc. in Soils of the American University of Beirut;
He attended the 11th International Course on Land Drainage, in the Netherlands, from 28.8.72-15.12.72.
Kalimeras:
Diploma in Agriculture of Salonica University;
Certificate of completion of a program in the study of Irrigation Problems and Practices, Utah State University, from 6.6.66-19.8.66;
Certificate of completion of a special advanced education Program in Irrigation Problems and Practices, University of Arizona;
He attended the F.A.O. "Study Tour in Irrigation, Drainage and Water Management", in China, from 8.6.78-7.7.78;
Attended an International Course on Irrigation in Israel from 14.11.76-10.12.76;
Attended a seminar on "Agricultural Development Planning in irrigated Areas"-18 days' duration.
Neocleous:
Diploma in Agriculture of Salonica University;
Diploma in Agricultural Extension Methods of the University of Reading;
Attended the International Youth Leadership Training Course, Puerto Rico, from 14.2.66-6.5.66;
Attended the International Workshop on Post-graduate Training in Agricultural Extension, in Israel, of 19 days' duration.
Marcou:
Degree of B.Sc. in Agriculture, of Southwest Missouri State College, U.S.A.;
Degree of M.Sc. in Soils;
Honourary Award in Agriculture for Scholastic Excellence;
Attended the 4th International Post-graduate Training Course on Soil Science (Soil Fertility, Soil and Plant Analysis), in the Netherlands-one academic year, i.e. from 8.9.69-25.6.70;
He passed General Orders, Financial Instructions and First Aid Exams.
Kalimeras lacks the additional qualification of post-graduate education. Neocleous possesses a diploma an4 not an M.Sc. The Commission made a differentiation of these two different post-graduate courses between Kyriacou and Michaelides in its decision and it is one of the grounds for preferring Kyriacou to Michaelides who was recommended by the Head of the Department.
It was decided in Kleanthous v. The Republic, (1978) 3 C.L.R. 320, and Bagdades v. The Central Bank of Cyprus, (1973) 3 C.L.R. 417, at pp. 427-428, that a qualification cannot be considered as an advantage over other candidates if it is not expressly stated to be so by the relevant scheme of service. I may go a step further and say that in promotions qualifications beyond those required by the scheme of service, which are akin to theduties of the officer and which make, him more suitable in the carrying out of such duties, should be taken into consideration.
It is clear from the above that applicant Michaelides has a striking superiority in qualifications over Neocleous and Kalimeras and slight superiority over Marcou. Pissourios has superiority over Neocleous in the sense that he has an M.Sc.from A.U.B. whereas Neocleous has a diploma of the University of Reading.
MERIT:
The merit of a civil servant is judged from' his performance and achievement in the service and it is depicted, inter alia, in the confidential reports. When an officer is to be promoted to a' post, which is either the culmination of the career in his department or near the culmination, it is the, view of this Court that not only his last years' performance or his picture in the recent confidential reports should be taken into consideration but the evaluation should be made of his career as a whole. (HjiGeorghiou v. The Republic, (1975) 3 C.L.R. 477).
In OdysseasGeorghiou v. The Republic, (1975) 3 C.L.R. 153, Mr. Justice A. Loizou had this to say at pp. 159-160:-
"In determining the merits of civil servants, the whole career of a candidate has to be examined and all the factors referring to his quality,, ability, and merits as civil servant-and not those for a certain period or of a certain category have to be' taken into consideration". (See Conclusions from the Case Law of the Greek Council of State, (1929- 1959), p. 355, and the decisions of the Greek Council of State cited therein).
Bias:
It was strenuously argued by counsel for applicant in Case No. 476/81 that the confidential reports prepared for her by Papasolomontos for the years 1968-74 and AvraamLouca for the years 1976-80 were the result of personal enmity, feud, prejudice and bias against her. The sub judice decision of the Commission should be invalidated as it was based on such biassed reports.
Bias of one or more of those participating in the decision taking process or affecting the material on which the decision is based renders, the decision vulnera6le on the ground of unfairness.The confidential reports on all officers are prepared and submitted to the Commission annually in a prescribed manner. (Section 45 of Law No. 33/67). They reflect the merit to a considerable degree of the officer and the Commission is bound to have due regard to the annual confidential reports on the candidates in making a promotion. (Section 44,para. (3) of Law No. 33/67). Therefore, if it is proved that the reporting officer had personal animosity or was motivated by extrenuous factors, then, depending on its nature and circumstances giving rise to it, it is taken into consideration whether a case of bias is established.
It is a basic principle of administrative law that the organs participating in a particular administrative process must appear to act with impartiality and this cannot be so when there exist any special ties or relationship which admittedly relate to the persons involved in such process. (See, inter alia, the Decision of the Council of State in Greece in Case No. 3350/70, adopted by the Full Bench of our Supreme Court in the case of Christou v. Republic, (1980) 3 C.L.R. 437).
In Christoforos G. Petsas v. The Republic, 3 R.S.C.C. 60, the latest and current annual confidential reports in the personal files of both the applicant and Mr. Kantounas, the interested party, which were laid before the Commission, were both signed by Mr. Andreas Kantounas, brother of the interested party, as the reporting officer, who in these reports was rated higher than the applicant. The Supreme Constitutional Court said at page 63:-
"The Commission, however, would have acted improperly, if it had been influenced by biasse4 recommendations, i.e. by what the Applicant appears to call 'backing'.
It is true that the aforesaid confidential reports on both the candidates were made by Mr. A. Kantounas, the brother .of the successful candidate. Moreover, the letter of Mr. A. Kantounas dated the 3rd of April, 1961, was an attempt to belittle the service of the Applicant on the 'S/S Empire Roach' by stating, inter alia, that the Applicant's 'promotion to Chief Officer is not due to his qualifications but to the reluctance of qualified officers to serve on a small tramp'.
Had the Commission based its decision on the reportsand the letter in question, then its decision might have been invalidated. This would not necessarily, be so 'by the mere fact that an officer had made a. report about his brother. In a country of the size of Cyprus it may not always be avoidable. (even though it should' be avoided) that a person serving under a close relative and that his abilities are, consequently, assessed by such relative, though in such a case it would .be expected that the relationship will be disclosed. However, a decision 'of such nature might have been invalidated if the Commission had given undue weight to the comparison of the abilities of two public servants made by an officer who, by virtue of his relationship to one of them, could have be biassed."
Mala fides, irrelevant motives, collateral and indirect objects, and so forth, are examples of matters which, if proved to exist, might establish the ultra vires character of the act in question Bad faith should not be used to 'blur the distinction between an ultra vires act done bona 'fide and an act on the face of it regular but which 'will be held .to be null and void if mala fides is discovered and brought before the Court The division in law is 'clear and deep. (Short v. Poole corpora thin, [-1926] Ch. .66, at p. 91; Smith v. East Elloe R.D.C., [1956] 1 All E.R. 855)
At p. 449 of the report of Christou case (supra) Triantafyllides, P., said:-
"The lack of impartiality by public officer A against publicofficer B must be established, with sufficient certainty, either by facts emerging from relevant administrative records or by safe inferences to be drawn from' the existence-of such facts; it is not, for example sufficient, by itself, in order to prove lack of impartiality of A towards B, the fact 30 that A has made, in the past, in the course of the proper exercise of his official duties, adverse confidential reports in, respect of B, or that A h otherwise expressed officially an,adverse view regarding B with the result that B had instituted legal proceedings in this connection against A, or 35 that B has given in the past evidence either in a criminal trial or disciplinary proceedings against A"
The material which the Court was invited to consider on the issue of bias is:-
(a)The oral evidence of the applicant and the allegations in the written address of her counsel;
(b) The confidential reports prepared by the late R.C Michaelides and Parissinos on the one hand and Papasolomontos and Louca on the other; and,
(c) The oral testimony of witnesses A.W.1, A.W.2, A.W.3, A.W.4,A.W.5, A.W.6, and A.W.7.
It was alleged that she is the victim of persecution and careful and consistent planning to destroy her career and to humiliateher and that the confidential reports prepared by Papasolomontos and Louca were arbitrary and discriminatory.
In 1968 Mr. Papasolomontos was appointed as Acting Director of the Department and there was a keen competition between him and the applicant's late husband, ChristodoulouSoteriades, for the post of Director of the Department. In that year Mr. Papasolomontos inserted in her confidential reports, inter alia, the following:-
"She performed very good work 'on vegetable crops but her devotion and ability to co-operate with her colleaguescould be described as needing improvement".
In 1969 Mr. Papasolomontos became Director. In 1970 the applicant's husband, died of a heart' attack and the applicant attributed moral responsibility to Papasolomontos for her husband's death.
In 1970 he wrongly implicated the applicant in a scandal concerning the substitution of tenders for the sale of vegetables but she was absolved from any responsibility by the investigating officer, the retired Judge CharilaosPierides. (See pp. 132-133 in File No.4690).
On 24th September, 1970, the applicant addressed a letter to the Director-General, with copy to the Chairman of the Public Service Commission., with regard to tenders and requested that Papasolomontos's conduct be investigated by the Ministry and further applied for leave to take legal steps before a Court of law obtain redress in view of the contents of the confidential accusations of Papasolomontos against her, which apparently were not substantiated. The Commission decided on 16th September, 1970, that no prima facie case wasmade against her.Furthermore, she alleged that though she was the Head of her Section, Papasolomontos ignored her, and gave instructions directly to her assistant.
On 13th November, 1972, she addressed a letter (Red 4 in Personal File No. 4690/Il), accusing Papasolomontos of under-mining the Department by encouraging civil servants to disobey the instructions given by her Section and not to co-operate with her Section; that when she requested in writing that instructions should not be given to her subordinate over her head, she was called to the office of Papasolornontos who threatened that:"Οποτεδήποτε θέλει μπορεί να με διώξει από την κυβερνητικήν υπηρεσίαν", and she gives other instances of this attitude and conduct of Papasoloniontos towards, her and her Section.
The report of 1970is one of the lowest of her markings. She was marked as follows:-
"Reliability : Fair
Thoroughness : Fairly good,
Adaptability : Fair
Accuracy : Very good
Initiative : Good
Courtesy in. dealing with the public : Good
Competence in present Work : Good
Devotion to duty : Fair
Ability to co-operate with colleagues : Fair
General intelligence : Very goodExcellent".
The countersigning officer, however, who knew the said officer for many years, noted in the same 'report: "She is every good officer with excellent record. Her performance if lacking is due to personal grounds 'beyond her control. In spite of that she' has shown devotion to duty and interest in her work".
After 1970 there is no countersigning officer, and in the report for 1971, after the incidents of 1970 and 1971, she is assessed with 6 "Fair", one "Fairly Good" and courtesy and competence "Good". I do not refer to general intelligence .as this could not possibly be degraded from year to year. The reporting officer observed: "I have again been completelydisappointedat the performance of this officer. She has made as little an effort as possible in the performance of her duties and it is with great difficulty that even the assessment below has been made. Her whole actions and general performance can best be described as irresponsible".
In the report for the following year-1972-i.e. the report dated 27.1.1973, she was assessed with 4 "Fair", 3 "Fairly Good", and 1 "Good"; her courtesy improved from "Good" to "Very Good" but her competence dropped from "Good" to "Fairly Good". How an "excellent" in intelligence person becomes a person of "average" intelligence in two years, I fail to understand, when this assessment was made by the same person, not by different assessors. In the report for 1972 the following observations are written: "Her whole performance needs considerable improvement. She had not adequately followed orders/regulations; reports were not often submitted in time nor were well documented; and her devotion to duty has, left much to be desired". It is significant that even her intelligence from "Excellent" became "Above Average", to drop in 1974 to "Average".
RoghirosMichaelides was the reporting officer before his elevation in 1968 to the post of Director-General. He assessed her in all respects "Excellent" year after year. For the year 1975 Parissinos Ag. Director of Agriculture, the reporting officer, graded her "Very Good" and on initiative and competence "Excellent", and he noted in that confidential report that Mrs. Soteriadou was a very capable and efficient officer with considerable initiative, carrying out her duties satisfactorily.
Section 45, paragraph 4, provides that the person preparing a confidential report on a particular officer in which the latter is criticized V for negligence, failures or improper behaviour in the performance of his duties must, on the submission thereof, communicate to the officer concerned this part of the report.
Within 15 days of the communication to him, the officer is entitled to require in writing from the competent authority concerned to strike out or modify this part of the report and the competent authority shall consider the matter and decide thereon.
The reports prepared by Papasolomontos give a gloomy picture of an irresponsible officer. The report for 1971 ratesher with 6 "Fair", and contains the remarks to which reference has been made above. At least this report definitely falls within the ambit of subsection (4) of section 45. No report, and particularly the report of 1971, was communicated to the applicant .as prescribed by Law.
The question of non-disclosure of unfavourable reports and the effect of such omission was considered in a number of cases. In Pierides v. The Republic, (1971) 3 C.L.R. p. 233, at p. 250, it was said:-
"Lack of communication to the officer concerned does not make the report null and void, simply because if such a serious consequence was intended by the legislature, it ought to have been, specifically referred to in the Public Service Law, 1967. I think the view I have taken in this judgment is supported by Stassinopoulos in his textbook on the Lessons on Administrative Law, 1957; 2nd edn. at p 347".
In Kyriacopoulou v. The Republic, (1973) 3 C.L.R. 1, at p. 12, with reference to 36(3) of the Public Educational Service Law, 1969 (Law No. 10/69), which corresponds to s. 45(4) of the Public Service Law, it was said:-
".I would again say the non-communication to the applicant of such part that had to be communicated was not a reason to annul a decision subsequently taken, in view of the wording of the, section which did not provide for the annulment of a decision taken in reliance to such a report. Similar approach has been consistently taken by the Greek Council of State in relation to analogous provisions to be found in section 92 of the Code of the Civil Administrative Servants. It was found that the obligation to communicate to civil servants adverse reports has a consequence only the disciplinary liability of the person responsible for such violation, but not the annulment of the non-communicated report and the annulment of the decision based thereon".
(See also Korai and, Another v. Cyprus Broadcasting Corporation, (1973) 3 C.L.R. 546, at pp. 570 and 573; Petrides v. The Republic, (1975) 3 C.L.R. 371, and Kontemiotis case (supra) ).
Louca evaluated her for the years 1976-80. He graded her"Excellent" in courtesy in dealing with the public and professional qualifications, "Very Good" in initiative, ability, general intelligence and ability in expression in writing, and "Good" for the rest. These definitely are far better than those of Papasolomontos though they are inferior to the reports of Michaelides.
It was alleged that Louca, the successor in office of Papasolomontos and a close friend of his, due to his such friendship undertook to continue the campaign against the applicant and his reports were calculated to destroy the chances of the applicant for promotion. This was based not only on the marking but also on the remarks for 1976, that she could do more and she had some difficulty in co-operation with her colleagues; in 1977 that there was much to be desired from this officer and the fact that during her absence for a year with F.A.O. in Syria he split her Section.
Four civil servants on active service of the Agricultural Department, holding posts from Agricultural Superintendent, 3rd Grade, to. Senior Agricultural Officer (A.W.1, A.W.2; A.W.7 and A.W.9) testified on various aspects of the applicant, ranging from her devotion to duty to her courtesy in dealing with the public, initiative, reliability and co-operation with her colleagues. Two potato-growers, villagers from Xylophagou, a village situated in the centre of the potato-growing area of the country (A.W.4 and A.W.5), and Mr. Savvides, the Director-General of the Potato Marketing Board since 1965, testified on her initiative in the line of potato growing, her devotion to duty, her relationship with the public and with the Potato Marketing Board, her competence and the excellent services she had rendered to the potato growing section of agriculture of this country, including the importation, test and canvassing of new varieties of potatoes with very good and/or excellent results in production and marketing. Their evidence referred also to her initiative, devotion to duty and hard labour, especially soon after the collapse of the economy due to the tragic events of the summer of 1974, in the sphere of horticulture, she being in substance and in fact the person who introduced the cultivation of horticultural plants in greenhouses.
An impressive volume of first page covers of booklets and literature on various aspects of agriculture, and various plantsin Cyprus as well as vital problems of her profession were produced in an endeavour to disprove her evaluation by Papasolomontos and AvraamLouca and to upgrade her in the mind of the Court.
The inquiry of this Court as to whether the reports are biased does not empower this Court to substitute its evaluation and grading of a civil servant for, that of the reporting officer.
In Case No. 1041/1969 of the Greek Council of State the Board did not include the applicant in the list of those eligible for promotion. He challenged this decision on the ground that the Chairman of the Board has enmity against him due to service disputes of the applicant with another rear-admiral under whom the applicant served and that this animosity (enmity) 'was the cause 'of an' adverse transfer of the applicant in 1963 and the imposition of a disciplinary sentence by the same rear-admiral on the applicant in 1964. The Court referred to the general principles governing the matter in the following words:-
"Επειδή κατά γενικήν αρχήν του δικαίου, τα μέλη του συλλογικού οργάνου της Διοικήσεως δέον όπως παρέχουν εχέγγυα αμερολήπτου κρίσεως. Ούτω, οσάκις υφίστανται ιδιαίτερος δεσμός ή ιδιάζουσα σχέσις ή εξ έχθρας οξεία αντίθεσις προς τα πρόσωπα εις α αφορά η τιθεμένη προς κρίσιν υπόθεσις ή συμφέρον εις την έκβασιν της υποθέσεως και εφ' όσον ταύτα προκύπτουν σαφώς και ανενδοιάστως εκ των στοιχείων του φακέλλου, δημιουργείται τεκμήριον αθεμίτου επηρεασμού τού οργάνου, τω λόγω δε τούτω ή υπ' αυτού εκδιδομένη πράξις τυγχάνει πλημμελής".
(Because as a general rule of law, the members of the collective organ of the administration must afford guarantees of impartial judgment. Therefore when there is a special bond or peculiar relationship or by enmity a strong opposition towards the persons to whom the case put forward for judgment refers, or an interest in the outcome of the case and so long as they clearly and unhesitatingly appear from the material in the file, proof of illegal influence of the organ is created, and for this reason the act issued by it is defective").
And further down it stated:-
"Πλην όμως ο λόγος ούτος τυγχάνει απορριπτέος, διότι ο αιτών δεν επικαλείται συγκεκριμένα πραγματικά περιστατικά προς θεμελίωσιν της εχθρικής, ως ισχυρίζεται, έναντι αυτού διαθέσεως του ρηθέντος υποναυάρχου, ουδ' αποδεικνύει ότι αι ως άνω μνημονευόμεναι δυσμενείς δι' αυτόν υπηρεσιακαί ενέργειαι του αυτού υποναυάρχου δεν εγένοντο επί τη βάσει αντικειμενικών, υπηρεσιακών κριτηρίων, αλλ' ωφείλοντο εις έχθραν αυτού έναντι του αιτούντος".
("But this reason is dismissed because the applicant does not invoke concrete real events for establishing the -hostile, as he contends, against him, intentions of the said admiral, nor does it prove that the above referred adverse to him official acts of the said admiral, were not made on the basis of objective, official criteria, but were due to his enmity against the applicant").
The material before the Court with regard to the reports of Louca is so flimsy that cannot support the charge of bias. The applicant has not discharged the burden cast on her. The- same, however, cannot be said about the reports of Papasolomontos. On the totality of the material before this Court it can safely -be referred that the reports of Papasolomontos were tainted with bias and lacked impartiality. It may be noted, however, that even if the- reports from 1975 onwards are taken into consideration; she is not strikingly superior, not even superior, to the interested parties.
Whilst on the issue of bias in the confidential reports this Court has to place on record that the method of assessment of officers by way of confidential reports is, in the view of this Court, suffering. The officer has to be assessed annually. This is in the interests both of the officer, the service and the public. The assessment must be just, impartial and, if possible, with uniform criteria. There is a crisis with regard to the confidential reports. I subscribe to the view expressed by Iacovou, the General Secretary of PASYDY, in his oral evidence before this Court, and I could do no better than quote his own words: "As PASYDY we have observed that there is really a crisis with regard to the confidential reports, that is to say, it has been proved that the system has many defaults in the way the questionnaire is answered by reporting officers and the counter-signors as well". Mr. Iacovoustated further that the matter was raised at M.E.P. and that a sub-committee was established to study this particular problem. But it is not only the questionnaire and the way that it is answered by the reporting officer that needs consideration and change; the whole spectrum of assessment of civil servants has to be reconsidered.
It is not the task of this Court to indicate remedies or the solution of this problem. It is upon PASYDY and the Governmental side to find a solution to this thorny problem. It must be, however, placed on record that many reporting officers are conscientiously performing this, at some times, onerous duty with a sense of responsibility, fairness, justice and impartiality.
Judging from, the confidential reports, interested party Marcou is superior to all the applicants Neocleous is inferior-to Michae1ides Kalimeras is graded higher than the applicants. The Head of the Department recommended for promotion the interested parties Neocleous, Marcou and Kalimeras and described them as "Excellent".
The recommendations of the Head of the Department carry considerable weight with the Commission. The Commission, however, in discharging their duties have scrupulously and meticulously to examine all the material before them and, as they have done in the case of Panayiotis Michaelides and Kyriacou, to take their own decision, as it is not in every case that they have to adopt the recommendations of the Head of the Department. Their duty is, when acting contrary 'to his recommendations, to give reasons for so doing.
The confidential reports of interested party Neocleous for the years 1979 and 1980, to take only the two recent reports- and by this it should not be taken that only the two last reports should be taken into consideration assess him as "Very Good" and not "Excellent". The description of Neocleous as "Excellent" is not warranted either by the confidential reports or his qualifications. Kalimeras was graded "Very Good" for 1979 and "Excellent" for 1980. Marcou was graded "Excellent" both for 1979 and 1980, having been given "Excellent" in 10 items out of 12.
Applicant in Case No. 13/82, Michaelides, was in general assessed "Very Good" for 1979 and 1980. He was given, however, 6 "Excellent" out of 12. The reporting officer, who is the Head of the Department, noted: "Ο βαθμός ποσοτικής και ποιοτικής αποδόσεως ήτο άριστος, ο ζήλος προς την εργασίαν απαράμιλλος και η επιστημονική κατάρτησις και νοημοσύνη αρίστη. Είναι αμέμπτου χαρακτήρος και διατηρεί αρμονικωτάτας σχέσεις μετά των συναδέλφων του ". There is a good note for Neocleous in his report but inferior to that for applicant Michaelides.
Applicant in Case No. 141/82, Pissourios, was never graded more than, "Very Good" and he was given in 1979 one "Excellent" for co-operation relations and two "Good" for devotion to duty and responsibility. In the report for 1979 it is simply stated: "He keeps harmonious relations with all".
I went with the utmost care through the administrative files of all the other interested parties and considered their qualifications, personal files and merit as it emerges from the confidential reports.
In the confidential reports the main duties performed by each one of the litigants are recorded. I went through each one of them and more or less it cannot be said with safety that any of the litigants was assigned more responsibilities than the others. Certainly, the duties vary; they were employed in various sections. Very serious and responsible duties have been assigned to applicant Michaelides.
The term "experience" inevitably contains the notion of knowledge acquired through acting in a certain capacity. The term "wide" clearly means wide both in respect of length of time and the subjects embraced. (Papapetrou v. The Republic, (supra).
The Commission in their decision say that they have considered all material factors as emerging from the personal files of the candidates and the confidential reports and took into consideration the report of the Departmental Board and the recommendations of the Director of Agriculture and concluded that the 12 persons, who were promoted, were superior to all the other candidates on the basis of the totality of the established criteria (merit, qualifications, seniority), and, having found them suitable, promoted them.
The same stereotyped wording was used by the Director. As already stated, the weight to be attached to such recommendations does not in any way fetter or curtail the powers of the Commission that the functions of a public office should be performed, in the general interests of the public, by the public officer best suited to perform such duties. The recommendations of the Head of the Department are one of the factors to be taken into consideration and the Commission, on good reasons recorded, may act contrary to such recommendations in order to achieve its object to appoint the best suitable candidate.
Having gone through the relevant administrative records I found that on the whole applicant Michaelides had more qualifications, more overall experience and seniority than Neocleous and Kalimeras and better confidential reports than Neocleous. I would have expected that the Commission should have given full reasons for preferring these two interested parties to applicant Michaelides, which they failed to do. The whole object of the rule requiring reasons to be given by the Commission in administrative decisions is to enable the person concerned, as well as this Court on review, to ascertain in each case whether the decision is well founded in fact and in law. The reasons given by the respondent Commission in its minutes for selecting the aforesaid two interessed parties appear to be definitely contrary to the relevant administrative records and incompatible with the factors taken into account by them.
As a consequence of the above it may safely be said that the Commission did not carry out a due inquiry.
The case of interested party Marcou, for the reasons extensively referred to earlier on, is differentiated from the cases of Neocleous and Kalimeras.
What was said about PhilipposMichaelides cannot be said about the, applicants in Cases No. 476/81 and 141/82.
For the above, reasons Recourses No. 476/81 and 141/82 fail and they are hereby dismissed Recourse No. 13/82 succeed s in so far as the promotion of interested parties Neocleous and Kalimeras is concerned and fails in So far as it relates to the promotion of interested party Marcou. The decision for promotion of Neocleous and Kalimeras is declared null and void and of no effect whatsoever and it is hereby annulled.
In the circumstances of these cases no order as to costs is made.
Recourses 476/81 and 141/82 dismissed.
Recourse 13/82 succeeds in part.
No orderas to costs.