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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1988) 3 CLR 1095
1988 May 28
[STYLIANIDES, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
SOTERIS L. PANAYIS,
Applicant,
v.
THE PORTS AUTHORTIY OF CYPRUS,
Respondents
(Cases No. 451/86).
Constitutional Law-Law of necessity-Constitution, Articles 122 and 125-Public Service Commission-Cyprus Ports Authority-The power of the Board to promote employees of the Authority-A departure from the aforesaid constitutional provisions justified by the Law of necessity.
Public Corporations-Promotions-The Cyprus Ports Authority-Interviews-Failure to hold-Not a ground for annulment.
Reasoning of an administration act-The philosophy why reasoning is required-Factors taken into consideration must be specifically mentioned-Reasoning must contain the way of thinking of the administration on the facts-What is due reasoning is a question of degree-It may be supplemented from the material in thefile-In this case, which concerns promotions, the reasoning is faulty, because it does not convey why the interested party was preferred to the applicant.
The principles .applied to the facts of this case, which concerns promotions made by the Board of the respondent Public Corporation, sufficiently appear from the hereinabove notes.
Sub judice decision annulled.
No order as to costs.
Cases referred to:
HjiGeorghiou v. The Cyprus Tourism Organisation (1986) 3 C.L.R. 1110;
The Cyprus Tourism Organisation v. HadjiDemetriou.. (1987) 3 C.L.R.780;
Republic v. Georghiades (1972) 3 C.L.R. 594;
Georghiades and Others v. The Republic (1967) 3 C.L.R. 653;
HjiSavva v. The Republic (1972) 3 C.L.R. 174;
Tsouloftas and Others v. The Republic (1983) 3 C.L.R. 426;
Marangos v. The Republic (1983) 3 C.L.R. 682;
Co-Operative Society of Alonav.The Republic (1986) 3 C.L.R. 222.
Recourse.
Recourse against the decison of the respondent to promote the interested party to the post of Port Engine Driver, 1st Grade in preference and instead of the applicant.
Ph. Valiantis, for the applicant.
N. Papaefstathiou, for the respondents.
Cur.adv. vult.
STYLIANIDES J. read the following judgment. The relief prayed by applicant in this recourse is the annulment of the promotion of Georghios G. Panayi (interested party) to the post of Port Engine Driver, 1st Grade, with effect from 15.6.1986, in preference and instead of the applicant.
The Respondents are a Corporation established by the CyprusPorts Authority Law, 1973(Law No. 38/73). The Ports Authority is administered by a Board, consisting of seven members.
It was submitted by learned counsel for the applicant that the servants of the Authority are within the ambit of the definition of Public Service in Article 122 of the Constitution and the only competent authority for appointment, promotion, etc., of them, is the Public Service Commission envisaged in Article 125 of the Constitution. The Board of the Authority has, therefore, no competence.
The Public Service Commission, set up under the Constitution, ceased to function and a substitute was established by Law 33/67 with power limited to the servants of the Government.
In KrinosIHjiGeorghiou, v. The Cyprus Tourism Organisation(1986) 3 C.L.R. 1110, where a similar contention was raisedwith regard to the Cyprus Tourism Organisation, which was establishedby Law No. 54/69, I decided that the contraventions ofthe chapter of the Constitution dealing with the public service arejustified by the law of necessity and consequently the statutoryprovisions of the Cyprus Tourism Organisation Law 1969 enabling the Cyprus Tourism Organisation to appoint and confirm, emplace, promote, etc., of its employees, were not unconstitutional.(See, also, Revisional Appeal No. 665, The Cyprus Tourism Organisation v. Agni HadjiDemetriou (1987) 3 C.L.R. 780).
The submission of counsel in view of the aforesaid judicial decisions is untenable.
The powers of the Respondents with regard to promotions are found in sections 19 and 35 of Law 38/73.
The Board by virtue of its powers made Regulations. The material Regulations for the case are the Cyprus Ports Authority (Scheme and Other Conditions of Service of Officers) Regulations, 1982.
The terms and conditions of service are assimilated to those of civil servants as set out in the Public Service Laws (1967 -1983). The promotion of the officers is decided on the basis of their merit, qualifications and seniority which is ascertained by applying mutatis mutandis the provisions of section 46 of the Public Service Law.
The Board has power to appoint an Advisory Committee. An Advisory Committee, which in effect has the duties and rights of the Departmental Board established under section 36 of the Public Service Law, was set up.
This Advisory Committee, having considered 19 applicants, recommended as suitable for promotion, in alphabetical order, four, including the applicant and the interested party.
The Board on whom the ultimate responsibility for the promotions rest reached the sub judice decision, which reads:-
Το Συμβούλιο-
(α) Αφού έλαβε υπόψη όλα τα στοιχεία που είχε στη διάθεση του και άκουσε τις απόψεις της αρμόδιας υπηρεσιακής επιτροπής, αποφάσισεν όπως προσφερθεί προαγωγή στη θέση του Λιμενικού Μηχανοδηγού, 1ης Τάξης στον κ. Γεώργιο Γ. Παναγή, Λιμενικό Μηχανοδηγό 2ης Τάξης."
("The Board-
(a) Having taken into consideration all the material before itand heard the views of the appropriate service committee, decidedto offer promotion to the post of Port Engine Driver, 1stGrade, to Mr. Georghios G. Panayi, Port Engine Driver 2ndGrade.")
This decision is challenged on the grounds that the applicantwas not heard by the Board; that it is not duly or at all reasoned;that the interested party did not have the required qualifications; and that the Board failed to select the most suitable candidate,having regard to the three established factors, i.e. merit, qualificationand seniority.
May I say that the first ground relates to interviews. Interviews,according to the case law of this Court, though they donot have a statutory cloak, are a useful process, whereby qualificationsand merit, especially for high posts in the hierarchy, are ascertained. Performance at the interview is not a factor of itsown; it much be weighed together with all other relevant considerations.It is not at all necessary for a Body to hold interview inthe promotion making process. Therefore this ground is untenable.
After an interim decision, evidence was adduced that the "material"that the Board had before it consisted of the personal filesand the files of the confidential reports of the four candidates recommendedby the Service Committee.
I have gone through their files, which are Exhibits before me,and to say the least, neither of them is strikingly superior to theother. It is not within my judicial duty in this case to make anyfurther comparison.
The Board should have made an evaluation of the material beforeit and, on the three factors that promotions are determined, torecord in its decision the reasons for preferring the promotee. TheBoard is a Public Collective Organ. They have to keep writtenrecords of their proceedings and give reasons for their decisions.
The requirement of due reasoning in administrative decisionshas been stressed on more than one occasion by Judgments ofthis Court. The philosophy behind the requirement of reasoningis that its presence excludes arbitrariness on the part of the administrative organ and protects the administration against itself bypreventing it from taking a hasty decision. The reasoning must beclear, that is to say, the concrete factors upon which the administrationbased its decision for the occasion under consideration must be specifically mentioned in such a manner as to render possibleits judicial control. It must contain the way of thinking of theadministrative organ on the relevant facts which constitute thefoundation for the decision. A reasoning which does not satisfythese conditions cannot be considered as due reasoning - (Republic(Public Service Commission) v. LefkosGeorghiades (1972) 3C.L.R. 594, at p. 690).
In the case of promotions the Promoting Body has to make anevaluation of the candidates, a comparison between the candidates,having regard to the factors that are taken into consideration,and reach a decision after such evaluation and comparison.This process must be reflected and recorded in their decision.
What is "due reasoning" is a question of degree dependent upon the nature of the decision concerned.So long as the decisionconveys, on examination of its contents and the backgroundthereto, the reasons why a given decision is taken, it cannot befaulted for lack of due reasoning. The reasoning may be ascertainedand supplemented from the material in the file of the Administration- (Athos G. Georghiades and Others v. Republic(Public Service Commission) (1967) 3 C.L.R. 653, 666;GeorghiosHjiSavva v. Republic (Council of Ministers) (1972) 3C.L.R. 174; Andreas Tsouloftas and Others v. The Republic ofCyprus (1983) 3 C.L.R. 426; Marangos v.The Republic (1983)3 C.L.R. 682; and Co-Operative Society ofAlona v.The Republicof Cyprus (1986) 3 C.L.R. 222).
The decision is faulty. The reasoning is deficient. The sub judicedecision falls short of the requirements of due reasoning. Itdoes not convey the reasons why the Respondents preferred theinterested party.
The reasoning cannot be ascertained, or supplemented from the material in the files of the applicant and the interested party.
It is not for this Court to make the necessary evaluation andgive the reasons for the decision which were not recorded. This was the task and duty of the Respondents.
In view of the foregoing, I consider it unnecessary to deal with the other grounds raised by counsel.
Sub judice decision is declared null and void and of no effect, but, in the circumstances, I make no order as to costs.
Sub judice decision annulled.
No order as to costs.