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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1985) 3 CLR 1127
1985 May 4
[STYLIANIDES, J.]
IN THE MATTER OF ARTICLE 146
OF THE CONSTITUTION
ANDREAS CHRISTOFIDES,
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH
THE PUBLIC SERVICE COMMISSION,
Respondents.
(Case No. 374/83).
Administrative Law-Administrative acts or decisions-Annulment-Reconsideration of the matter-Takes place on the basis of the factual and legal situation existing at the time the annulled decision was taken-Annulment of promotions effected on 27.6.1981-Reconsideration of the matter in 1983-Public Service Commission taking into consideration confidential reports for 1981 which were prepared in 1982-Such a course impermissible because the said reports were neither available nor in existence on 27.6.1981.
Public officers-Promotions-Confidential reports-Countersigning Officer disagreeing with reporting officer and making his own assessment-He has to give reasons for so doing-regulation 9 of the Regulations governing confidential reports-Applicant's general intelligence which was rated as "excellent" in 1978 and 1979 rated as "very good" in 1980 without any reasoning-Such a course runs contrary to the regulation 9-Confidential reports being intermediate acts, in matters of promotion, ascertainment of their invalidity brings the invalidity of all subsequent acts-Failure to conform with regulation 9 and the lack of due reasoning invalidate the intended change in the confidential reports for 1980-And since the Commissiontook into account the reports for 1980 it laboured under a misconception of fact and exercised its discretion in a defective manner-Sub judice promotion annulled.
Public Officers-Promotions-Confidential reports-They are an indivisible document-In the sense that they depict the rating of an officer for the whole calendar year and not for a certain period thereof.
Upon a recourse by the applicant the Supreme Court annulled the decision of the respondent Commission, taken on 27.6.1981, whereby four other candidates were promoted to the post of Senior Principal Assessor in preference and instead of the applicant. At its meeting which took place on 3.5.1983, the Commission reconsidered the matter and decided to promote the two interested parties. In arriving at the decision the Commission took into Consideration the confidential reports for the years 1979- 1980. All the candidates were rated as excellent for 1978 and 1979 and for 1980 the applicant was rated "very good" and the interested parties excellent. The Commission further took into consideration the confidential reports for 1981 having noted in its decision, that it could take them "indicatively into consideration as they are based and on the performance of the candidates during the 6 months preceding the material date". Though in the confidential report of the applicant for 1980 he was rated by the reporting officer, A. Strovolides, Assistant Director of the Department, of 25.1.81 as "Excellent", on 122.81 the countersigning officer-the Head of the Department- deleted the word "Excellent" for the item of "Intelligence" and marked the applicant with "Very good" on this item, and consequently he changed the general assessment from "Excellent" to "Very Good". In the 5th part of the report-the remarks-he wrote: "In the intelligence as well as in the general assessment I consider that he is Very good instead of excellent". In the reports for 1978 and 1979 the assessment for the intelligence of the applicant was "Excellent".
Under the Regulations governing confidential reports if the countersigning officer disagrees with the reporting officer he makes his own assessment in red ink, he initials it but he has to give reasons for, his own assessment.
Upon a recourse by the applicant:
Held, that on the annulment of a previously made administrative act, the Administration has to reconsider the matter on the basis of the factual and legal situation existing at the time the annulled decision was taken and it is not bound to base its new decision exclusively on the facts and circumstances on which the original decision was based; that since the confidential reports are submitted between January-March of the year following the year of assessment the confidential reports for 1981 must have been prepared sometime in 1982; that a confidential report is an indivisible document in the sense that it depicts the rating of an officer for the whole calendar year and not for a certain period thereof; that such a report was neither available nor in. existence on 27.6.81, the material date for the present case, that is to say, the date of the annulled decision; and that though if may be permissible for the Commission to have information of the merits of a candidate upto the date it takes a decision concerning such a candidate, it is impermissible, however, to take into consideration facts non-existent on such a date; that to act otherwise is tantamount to misconception of fact; and that, therefore, it was not permissible for the Commission to make use of the 1981 reports.
(2) That this Court fails to understand how the applicant with "excellent" general intelligence in 1978 and. 1979) became "very good", there is no reasoning and the rateof the countersigning officer does not satisfy the requirement of due reasoning and was contrary to paragraph 9 of the Regulations governing confidential reports; that in matters of promotion confidential reports are intermediate acts and the ascertainment of their invalidity brings the invalidity of all subsequent acts for the issue of which the act found to be illegal constitutes a legal prerequisite; that the failure to conform with the provisions of paragraph 9 of the Regulations and the lack of due reasoning, invalidate the intended change in the confidential report for the applicant for 1980; and that since the respondent Corn- mission in the present case in assessing the merit of theapplicant took into consideration that the applicant was "Very Good" in 1980 whereas the interested parties were marked "Excellent", and this appears that weighed against the applicant and influenced the Commission in taking the sub judice decision, the Commission in the circumstances laboured under a material misconception of fact and exercised its discretion in a defective manner; and that, accordingly, the sub judice decision must be annulled.
Sub judice decision annulled.
Cases referred to:
Christofides and Another v. Republic (1982) 3 C.L.R. 763;
Constantinou v. Greek Communal Chamber (1965) 3 C.L.R. 96 at p. 105;
Kyprianides v. Republic (1968) 3 C.L.R. 653 at p. 660;
Ioannides and Another v. Republic (1979) 3 C.L.R. 628;
Ioannides v. Republic (1972)3 C.LR. 318 at pp. 324-325;
Soteriadou v. Republic (1983) 3 C.LR. 921;
Republic v. Haris (1985) 3 C.L.R. 106;
Agrotis v. Electricity Authority of Cyprus (1981) 3 C.L.R. 503 at p. 513;
Georghiades v. Republic (1982) 3 C.L.R. 16
Public Service Commission v. Papaonisiforou (1984) 3 C.L.R. 370.
Recourse.
Recourse against the decision of the respondent- to promote the interested parties to the post of Senior Principal Assessor in the Department- of Inland Revenue in preference and of the applicant.
A. S. Angelides, for the applicant.
N. Charalambous, Senior Counsel of the Republic, for the respondents.
Ph. Valiantis, for interested party P. Theocharides.
Cur.adv. vult.
STYLIANIDESJ. read the following judgment. By this recourse the applicant challenges the promotion to the post of Senior Principal Assessor in the Department of Inland Revenue of Savvas E. Savvides and Paniccos Theocharides as being null and void and of no effect whatsoever.
The post of Senior Principal Assessor is a promotion post. By letter dated 19.5.8 1 the, respondent Commission was requested to fill four vacancies to the said post. The procedure prescribed by Law was followed and ultimately, on 27.6.8 1, the Commission promoted four candidates. The applicant, who was not preferred, resorted to the Supreme Court by Recourse No. 282/81, seeking the annulment of the aforesaid decision. The Court on 16.7.82 annulled the said decision as the Director of the Department of Inland Revenue made statements before the Commission regarding complaints and accusations from auditors and taxpayers, which appeared to the Court to have materially prejudiced the applicant. The said complaints and accusations had not been brought to the knowledge of the applicant and had not been departmentally investigated. The Court did not consider proper to examine the other grounds relied upon by the applicant in view of the fact that it was upon the respondent Commission to reconsider the matter afresh- (Christofides & Another. v. The Republic, (1982) 3 C.L.R. 763).
Following the aforesaid decision of the Supreme Court, the Commission on 19.10.82 requested the Head of the Department to investigate departmentally the accusations and complaints against the officers concerned, affording them the opportunity to reply, and then submit all relevant material to the Commission-(See Appendix 9).
On the following day-20th October, 1982-the Head of the Department replied to the Commission that due to lapse of time and as he has not kept any notes of the complaints lodged, he could not proceed with a departmentalinquiry; he withdrew his statements before the Commission on 27.6.81 regarding the complaints and accusations concerning the applicant, and requested that this part of his statement be not taken into consideration. Thereafter the machinery for filling the vacant posts created as a result of the annulling decision of the Court was set in motion.
A new Departmental Board was established. It recommended 5 officers, for, the filling of 3 posts. The applicant was the most senior. The Board formed a "very good impression" about the applicant and the, interested: parties. It noted, however, that the two interested parties were rated "Excellent" in the confidential reports for "1979 and 1980 whereas the applicant, was rated "Excellent" and, "Very Good", respectively. The Commission heard, the recommendations of the Director on 311.83, and on 3.5.83 issued the sub judice decision, whereby it promoted the two interested parties and Rialas.
The Commission in arriving at the sub judice decision gave due weight to the merit of the candidates as reflected in their assessment in the confidential reports. The officers considered were rated "Excellent" for 1978. For 1979, the applicant and the interested parties were rated "Excellent" (8.4.0) and for 1980 the applicant was rated "Very Good" (7.5.0) and the interested parties "Excellent" (8.4.0). The Commission further took into consideration the confidential reports for 1981 which, as the Commission noted: «.. Τις οποίες η Επιτροπή δύναται τώρα να λάβει ενδεικτικά υπόψη εφόσο αυτές στηρίζονται και στην απόδοση των υποψηφίων κατά τους έξι μήνες που προηγούνται της ουσιώδους ημερομηνίας»- (''..which the Commission may take now indicatively into consideration as they: are based and on the performance of the candidates during the 6 months preceding the material date".)
The Commission promoted the interested parties and Rialas with effect from 1.781-the effective date of the promotions annulled.
In the confidential reports for 1981, which were prepared between January-March of 1982, and which are not in the file of the confidential reports produced to the Court,as it emerges from the minutes of the Commission, the applicant was assessed "Very Good" (0.12.0 and interested parties Savvides and Theocharides "Excellent" (10.2.0 and 12.0.0, respectively).
It is a well established principle of administrative Law, reiterated in a long line of decisions o this Court, that on the annulment of a previously made administrative act, the Administration has to reconsider the matter on the basis of the factual and legal situation existing at the time the annulled decision Was taken and it is not bound to base its new decision exclusively on the facts and circumstances on which the original decision was based-Constantinou v. The Greek Communal Chamber, (1965) 3 C.L.R. 96, 105; Pantelakis Kyprianides v. The Republic, (1968) 3 C.L.R. 653, 660; Ioannides and Another v. The Republic, (1979) 3 C.L.R. 628).
The object of the confidential reports is to evaluate the performance of an officer, his suitability for promotion and to assist in the advancement of his professional career by objective criteria. The promotion of civil, servants is essential both as a reward for the services of the civil, servant and also for the interest of the public, at large who are entitled to be served by suitable and experienced civil servants.
The confidential reports are submitted between January-March of the year following the year of assessment. The confidential reports for 1981 must have been prepared sometime in 1982. It is an indivisible document in the sense that it depicts the rating of an officer for the whole calendar year and not for a certain period thereof. Such a report was neither available nor in existence on 27.6.81, the material date for the present case, that is to say, the date of the "annulled decision. Though it may be permissible for the Commission to have information of the merits of a, candidate upto the date it takes a decision concerning such a candidate, it is impermissible, however, to take into consideration facts non existent on such a date. To act otherwise is tantamount to misconception of fact. The reason put forward by the Commission for taking into consideration the confidential report for 1981, though seemingly reasonable, nevertheless, is neither convincingnor valid in Law. It is a report that did not exist at the material date. It does not even purport to be an assessment of the officer concerned for the period upto 27.6.81. It was not permissible for the Commission to make use of such a report-(Ioannides v. The Republic, (1972) 3 C.L.R. 318, 324-5).
The confidential reports are prepared by the reporting officer and signed by the countersigning officer who, if he disagrees with the rating of the reporting officer, discusses the matter with him and if there is still a disagreement, the countersigning officer makes his own assessment in red ink, he initials it but he has to give reasons for his own assessment.
In the confidential report of the applicant for 1980 he was rated by the reporting officer, A. Strovolides, Assistant Director of the Department, on 25.1.81 as "Excellent" (8.4.0). On 12.2.81 the countersigning officer-the Head of the Department-deleted the word "Excellent", for the item of "Intelligence" and marked the applicant with Very Good" on this item, and consequently he changed the general, assessment from "Excellent" to "Very Good". In the5th part of the report-the remarks-he wrote: "In the intelligence as well as in the general assessment I consider that he is very good instead of excellent".
In the reports for 1978 and 1979 the assessment for the intelligence of the applicant was "Excellent". The Court in Soteriadou v. The Republic, (1983) 3 C.L.R. 921, and The Republic bf Cyprus through the Public Service Commission v. Georghios Charis, Revisional Appeal No. 334, commented on the change of the assessment of the "General Intelligence" of a public officer. In the latter case it was said:-
"We fail to understand how, without any intervening disease or other event, a person the very good general intelligence becomes simply good".
In the present case I really fail to understand how, the applicant with excellent general intelligence became very good. There is no reasoning; the note of the countersigning officer does not satisfy the requirement of due reasoning.
In matters of promotion confidential reports are intermediate acts and the ascertainment of their invalidity brings the invalidity of all subsequent acts for the issue of which the act found to be illegal constitutes a legal prerequisite-(Stavros Agrotis v. Electricity Authority, of Cyprus, (1981) 3 C.L.R. 503, at p. 513, and the authorities referred to therein; Georghiades v. The Republic, (1982) 3 C.L.R. 16).
The act of the countersigning officer was contrary to paragraph 9 of the Regulations governing, confidential reports. (See Appendix 21). Countersigning officers have to conform strictly with the provisions of the regulations concerning confidential reports especially when any act of theirs might affect adversely the officer concerned.
The aforesaid, i.e. failure to conform with the provisions of paragraph 9 of the Regulations and the lack of due reasoning, invalidate the intended change in the confidential report for the applicant for 1980. The respondent Commission in the present case in assessing the merit of the applicant took into consideration that the applicant was "Very Good" in 1980 whereas the interested parties were marked "Excellent", and this appears that weighed against the applicant and influenced the Commission in taking the sub judice decision. The Commission in the circumstances laboured under a material misconception of fact, the effect, of which is to nullify its decision-(See Public Service Commission v. Myrianthi Papaonissiforou, (1984) 3 C.L.R. 370).
What was said about the act of the countersigning officer with regard to the confidential report of the applicant for the year 1980 can also be validly repeated in the case of the confidential reports for interested party Savvides where this officer was assessed by the reporting officer with 12 "Very Good" and the counterclaiming officer on 12.2.81 rated him with 8 "Excellent" and thus changed his "General Assessment" from "Very Good" to "Excellent".
The respondent Commission exercised its discretion in a defective manner. It laboured under misconception of fact. The intermediate act of the confidential reports was invalid for the reasons I have endeavoured to explain.
In the result the sub judice decision is declared null and void and of no effect but in the circumstances no order for costs is made.
Sub judice decision annulled.
No order as to costs.