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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1988) 3 CLR 2283
1988 November 25
[SAVVIDES, J.]
IN THE MATTER OF ARTICE 146 OF THE CONSTITUTION
STAVROS PHILIPPIDES,
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH
THE PUBLIC SERVICE COMMISSION,
Respondent.
(Case No. 783/86).
Reasoning of an administrative act—Appointments to an office in the educational service—In reaching the subjudice decision the Commission noted "the seniority of those of the candidates who at the material time were public officers"—Two conflicting opinions regarding matter of seniority of applicant vis a vis that of the interested party—Commission did not mention which of the two followed—Such omission rendered the reasoning defective.
The facts of this case appear sufficiently from the judgment of the Court.
Subjudice decision annulled.
No order as to costs.
Cases referred to:
Maratheftis and Another v. Republic (1986) 3 C.L.R. 533;
Republic v. Maratheftis (1986) 3 C.L.R. 1407.
Recourse.
Recourse against the decision of the respondent to appoint the interested party to the post or Director of Higher and Highest Education in preference and instead of the applicant.
K. Talarides, for the applicant.
P. Clerides, for the respondent.
A. S. Angelides, for the interested party.
Cur. adv. vult.
SAVVIDES J. read the following judgment. The applicant challenges by this recourse the decision of the respondent dated the 3rd november, 1986, whereby Michalakis maratheftis, the interested party, was appointed to the of Director of Higher and highest Education, in the Ministry of Education, as from the 1st January, 1984.
The Vacancy in the post concerned which is a First Entry and promotion post, was advertised in the official Gazette on the 14th May, 1982. Thirteen application were submitted and the matter was referred to Department Commttee. Which by its report dated the 9the April, 1983. recommended four candidates, amongst whom the applicant the interested party. The respondent decided, at its meeting of the 24th July, 1983, to interview eleven candidates whom it considered as satisfying the requirements of the scheme of service. After the interviews the respondent heard the views of the Director-General of the Ministry of Education regarding the performance of the candidates during such interviews, who evaluated both the applicant and the interested party as very good.
Thereafter, the respondent requested the Director General of the Ministry of Education to submit in writing his veiws about the performance during the last two years of those candidates who were educational officers. By letter of the Director dated 29th November, 1983, both parties were evaluated as excellent in this respect.
At its next meeting dated the 21st December, 1983, the respondent heard also the views of the Director of Secondary Education who also evaluated both parties as excellem. The respondent then proceeded to its own evaluation of the performance of the candidates during the interviews, rating the interested party as very good and me applicant as very very good and family selected the applicant, Mr. Philipides, as the most surtable for the post in question.
The interested party, Mr. Maratheftis, field recourse No. 570/83 against the above decision. The trial judge annulled the appointment of the applicant on the ground that the repondent did not conduct a due inquiry into the matter of possession by the candidates of the qualifications required by the scheme of service. (See Maratheftis & Another v. Republic (1986) 3 C.L.R. 533). The respondent appealed against the judgment of the trial Court and the Full Bench of this Court by its judgment found that Mr. Philipides possessed the qualifications required by the scheme of service but annulled the decision on the ground that sincde more than five months had elapsed between the interviews and the recording of the evaluation by the Commission of the performance of the candidates during such interviews, there was a strong possibility that the Commission was labouring under material misconception regarding the performance of the candidates at the interviews, which misconception was enhanced in view of the marginal difference in the evaluation of the performance of the two parties concerned. (see Republic v. Maratheftis (1986) 3 C.L.R. 1407, especially at pp. 1413-1414). The Full Bench also stressed that the respondent when reconsidering the case should avoid placing decisive importance to the evaluation, in December, 1983, of the performance of the candidates at the interview in July, 1983.
Before reconsidering the matter, the respondent requested to be informed by the Ministry of Education about the salary scales of the previous posts held by the parties so as to be able to reach a decision about their seniority.The reply was given by letter dated the 12th September. 1986, in which it is indicated that Mr. Philippides is the most senior candidate, followed by Mr. Maratheftis.
The respondent sought the advice of the Attorney-General's office as to the seniority of the two candidates. Mr. Charalam-bous, Senior Counsel of the Republic, advised the respondent, by letter dated 20th September, 1986, that Mr. Philippides was senior to Mr. Maratheftis in view of the combined effect of the provisions of s.37, subsections (3), (4) and (5) of the Public Educational Service Law (Law No. 10/69).
The respondent referred the matter back to the Attorney-General's office for re-examination, stressing importance to the provisions of s. 37(3) of the Law. The Deputy Attorney-General of the Republic by letter dated the 9th October, 1986, took the view that the provisions of subsection (3) apply in the present case, with the effect that Mr. Maratheftis is senior to Mr. Philippides.
The respondent finally met on the 3rd November, 1986, and selected the interested party for appointment as from the 1st January, 1984, whereupon the applicant filed the present recourse.
Counsel for applicant basically argued that the decisive factor for the sub judice decision was seniority and that the respondent, in considering the interested party as the most senior was acting under a misconception of law. Counsel argued that the legal provision applicable is s. 37(5) and not s.37 (3) of the Law. Counsel also submitted that the sub judice decision is contrary to the contents of the previous decision of the respondent for the filling of the same post and, therefore, lacks due reasoning.
Before proceeding to consider the argument of counsel I find it necessary to make reference to the contents and certain parts of the sub judice decision. At its meeting of the 3rd November, 1986, the respondent after making reference to the judgment of the Full Bench of the Supreme Court in the case of The Republic v. Maratheftis (supra), to the letter of the Nlinistry of Education regarding the salary scales and seniority of the parties and to the two letters containing legal advice from the Attorney-General's office (referred to above) proceeded as follows:
"The Commission, in the light of the judgment of the Supreme Court in Revisional Appeal No. 575 guided also by the aforesaid advices of the Legal Department of the Republic, proceeded to the re-examination of the filling of the post of Director of Higher and Highest Education, Ministry of Education, on the basis of the legal and factual situation prevailing at the material time."
The respondent thereafter evaluated and compared the prevailing candidates taking into consideration their personal and confidential files, the evaluation and views of the Director-General of the Ministry, its own evaluation of the performance of the candidates at the interviews and continued as follows:
"The Commission also paid due regard to the qualifications of the candidates and further noted the seniority of those of the candidates who at the material time were public officers and educational officers, guided also by the aforesaid legal advices of the Legal Department of the Republic.
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After particular comparison of these three candidates and after the Commission took into consideration all the material before it, which concerned the merit, qualifications, career and experience of the candidates (including their seniority) selected Michalakis Maratheftis as the most suitable for the post."
Although it is stated in the minutes of the meeting of the respondent that it took into consideration the seniority of the parties in the light of the two advices by the Attorney-General's office, it is not stated anywhere which advice it followed and which party it considered as the most senior. Since the two advices from the Attorney-General's office were contradictory and the respondent does not state which one it followed and whom of the parties it considered as most senior, this Court is not in a position to view how the factor of seniority was evaluated by the respondent and how much it weighed into the minds of its members in reaching the sub judice decision. This renders the reasoning of the sub judice decision defective and since this Court is unable to exercise control, over it has to be annualled.
In the result this recourse succeeds and the sub judice decision is hereby annulled with no order for costs.
Sub judice decision annulled.
No order as to costs.