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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 475
1989 April 19
[A. LOIZOU, P., MALACHTOS, SAVVIDES, PIKIS, KOURRIS, JJ.]
STAVROS OTHONOS AND ANOTHER,
Appellants-Applicants,
v.
THE REPUBLIC OF CYPRUS, AND/OR THE PUBLIC
SERVICE COMMISSION,
Respondents.
(Revisional Jurisdiction Appeal No. 720)
Public Officers - Promotions - confidential reports - Nature of.
Executory act - confidential reports in respect of Public Officers - They are not of an executory nature - They are intermediate parts of a composite administrative process - Their validity has a bearing on the validity of the final act.
Public Officers - Promotions - Confidential reports - Preparation of- Circular 491/79, paras (3) and (4)-Reporting and countersigning officer one and the same person Proper in the circumstances of this case.
Public Officers - Promotions - Confidential reports - Preparation of- circular 491/79, para 7(2) - Failure to communicate an "adverse" comment - What has to be examined by the Court.
Bias - Promotion of Public Officers - Lack of impartiality by superior officers against their subordinates must be established. with sufficient certainty, either by the facts emerging from relevant administrative records or by safe inferences to be drawn from the existence of such facts.
Public Officers - Promotions - Head of department - Recommendations of - Reference therein to duties actually performed by one of the candidates and to special zeal of one of such candidates - Not improper in the circumstances.
Revisional appeal - Matter not raised before trial judge - Whether it can be raised on appeal - Principles applicable.
This is an appeal against a first instance judgment of a judge of this court dismissing appellants' recourses challenging the promotion of the two interested parties to the post of Senior Electrical Engineer (Department of Electrical and Mechanical Services) of the Ministry of Communications and Works instead of the appellants (see Othonos and Another v. The Republic (1987) 3 C.L.R. 362).
The post in question is a promotion post. The respondent commission made the sub judice promotions, having heard the views and recommendations of the Director of the Department of Electrical and Mechanical services. In his recommendations the Director described one of the interested parties as the best of all candidates and referred to the fact that he performing the duties of a co-ordinator to his fellow officers as a matter of fact. The Director referred to the second interested party as an excellent officer, who shows special zeal in the performance of his duties.
The validity of the confidential reports were put in issue by appellants, who contended that the Director did not possess direct knowledge of the performance of the officer concerned, that he acted both as reporting and countersigning officer contrary to Circular 491, that he never communicated adverse comments about the performance of the appellants.
Moreover, the appellants complained that the director was biased against the appellants.
Finally, the appellants complained that there had not been due inquiry as to the possession by one of the interested parties of the necessary qualifications. It should be noted that this point had not been raised before the trial judge.
Held, dismissing the appeal:
(1) The preparation of confidential reports is not an executory act. It is an intermediate part of a composite administrative process, which leads to an executory act. It may have a bearing on the validity of the final act.
(2) The preparation of confidential reports is regulated by Circular 491/79. From what emerges from paragraph 3 of the Circular the provision about separate reporting and countersigning officers is not an absolute one. There are instances where either because of the structure of a service or because of particular circumstances, the reporting and countersigning officer may be one and the same person.
The appellants and the interested parties were candidates for the post of Senior Electrical Engineer. At the material time there was no immediate superior to the said candidates and they were all under the direct control of the Director of the Service. In these circumstances the case falls within the exception in paragraph 3 of the Circular in that there was no irregularity in the preparation of the confidential reports by the Director as reporting and countersigning officer.
The Court also, agrees with the trial Judge that there has been no violation of paragraph 4 of the Circular. The Director had a general. supervision of the service and he must have sufficient knowledge about the performance of his immediate subordinate officers, and he was well acquainted from various sources about the manner in which the works in his service were executed.
(3) Failure of communicating to the officers concerned any adverse comments does not necessarily lead to annulment of sub judice promotion. What has to be examined by the Court is whether or not such failure deprived the Commission from conducting a due inquiry into a material aspect of the case. In the circumstances of this case no such conclusion can be drawn.
(4) Bias should 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. In this case bias has not been established.
(5) The Court, when hearing a revisional appeal, approaches the matter as a complete re-examination of the case. Its power however is limited to the grounds of appeal or to the extent that issues have been left undetermined by the trial Judge or to issues, which can be raised ex proprio mow by the Court, i.e. whether an act is executory or whether a question of legitimate interest exists. As in the present case the argument relating to lack of due inquiry as to possession of qualifications by one of the interested parties was never raised before the trial Judge, this Court cannot examine such an issue.
Appeal dismissed.
Cases referred to:
Othonos and Another v. Republic (1987) 3 C.L.R. 362,
Geoighiades v. Republic (1982) 3 C.L.R. 16,
Agrotis v. Electricity Authority of Cyprus (1981) 3 C.L.R. 503,
Savva v. Republic (1985) 3 C.L.R. 694,
Charalambides v. Republic (1985) 3 C.L.R. 992,
Tantas v. Republic (1983) 3 C.L.R. 1430,
Christou v. Republic (1985) 3 C.L.R. 2237.
Christou v. Republic (1980) 3 C.L.R. 437,
Kontemeniotis v. Cyprus Broadcasting Corporation (1982) 3 C.L.R. 1027,
Nissis v. Republic (No. 2) (1967) 3 C.L.R. 671,
Tasmania [1890] 15 A.C. 223,
Karunaratne v. Ferdinandus [1902] A.C. 405,
Connecticut Fire Insurance Company v. Kavanagh [1892] A.C. 473,
Warehousing & Forwarding Co. of East Africa Ltd. V. Jafferali & Sons Ltd. [1964] A.C. 1,
Linou-Flasou-Petra Co. Ltd. v. Republic (1976) 3 C.L.R. 25,
Republic v. Maratheftis and Another (1986) 3 C.L.R. 1407,
Republic v. Georghiades (1972) 3 C.L.R. 594.
Appeal.
Appeal against the Judgment of a Judge of the Supreme Court of Cyprus (Demetriades, J.) reported in (1987) 3 C.L.R. 362, whereby the appellants' recourse against the promotion of the interested parties to the post of Senior Electrical and Mechanical Engineer was dismissed.
A.S. Angelides, for the Appellants.
G. Erotocritou (Mrs), Senior Counsel of the Republic, for the Respondents.
Cur. adv. vult.
A. LOIZOU, P.: The judgment of the Court will be delivered by Mr. Justice Savvides.
SAVVIDES, J.: This is an appeal against the judgment of a Judge of this Court sitting in the first instance dismissing appellants' recourse challenging the decision of the respondent to promote Georghios Christodoulides and Lazaros Savvides, the interested parties, to the post of senior Electrical Engineer (Department of Electrical and Mechanical Services) of the Ministry of Communications and Works instead of the appellants. The judgment appealed from is reported as Othonos and Another v. The Republic (1987) 3 C.L.R. 362.
The facts of the case are briefly as follows:
The post in question is a promotion post. As there were two vacant posts for which the Ministry of Finance had given its approval for their filling a departmental committee was set up in order to recommend to the Public Service Commission for promotion candidates that possessed the required under the relevant scheme of service qualifications. The committee met on the 10th June, 1982 and after it examined the qualifications of the seven candidates who were eligible for promotion to the said post decided that only the two appellants and the two interested parties possessed the required by the scheme of service qualifications. The committee, after evaluating the qualifications of the four candidates, their confidential reports for the previous two years and their seniority, recommended all four in alphabetical order for promotion.
On the 6th July, 1982, the respondent commission met and after hearing the views and recommendations of Mr. Ph. Ectorides, the Director of the Department of Electrical and Mechanical Services, proceeded to make, in his absence, their own assessment of the candidates. The Commission then after comparing the candidates amongst themselves and evaluating them and after having considered all relevant material from the personal and confidential reports files of the candidate, the report of the Departmental committee and the views and recommendations of the Director of the Electrical and Mechanical Services, found that on the basis of the established criteria as a whole, namely, merits, qualifications and seniority, the interested parties were superior to the appellants and decided to promote them to the permanent post of Senior Electrical Engineer as from the 15th July, 1982.
As the views and recommendations expressed by the Director of the Electrical and Mechanical Services are material in the case we find it necessary to refer to same as recorded in the minutes of the meeting of the respondent Commission. Mr Ectorides said the following about the candidates:
"Georghios Christodoulides and Lazaros Savvides are recommended as the most suitable for promotion. Mr Christodoulides is the best. He has been working near the Director for many years and he performs duties of a Senior Engineer i.e. he performs duties of a higher level than those of the post he is occupying. In fact, he performs the duties of a co-ordinator to the others and he is very productive and performs such duties fully satisfactorily. He possess the necessary academic qualifications. Certain importance is attached to qualifications but more importance is attached to the performance at work of the officers.
Mr. Savvides is an excellent officer with excellent abilities and performance. He works at home at his own will. As soon as he finds out that there is an impediment in the office he takes work home which he completes and returns. He is distinguished for his responsibility, hard work and enthusiasm for the Department. His performance is indeed something unbelievable and the quality and quantity of his work something really beyond imagination.
Mr. Stavros Othonos, compared to Mr. Savvides lacks considerably concerning yield, devotion to his work, responsibility in handling matters and in expression in writing.
Mr. Michael Hadjiroussos possesses the abilities required but comparatively he follows in merit Mr. Savvides and is superior to Mr. Othonos. He is inferior to the recommended ones in yield and devotion to duty. More could be expected from him because of his higher qualifications."
Both recourse were dismissed by the learned trial Judge who came to the conclusion that the sub judice decision was reasonably open to the respondent commission on the material before it and affirmed the promotion of the interested parties.
As a result counsel for appellants filed the present appeal.
The arguments advanced by counsel for appellants in support of his grounds of appeal may be summarized as follows:
(a) The validity of the confidential reports. Counsel contended in this respect that the Director of the Department of Electrical and Mechanical Services Mr. Ectorides:
(i) Had no direct or indirect supervision of their work and therefore he could not possess direct knowledge of their performance enabling him to make a report in accordance with the provisions of paragraph 4(a) of Circular No. 491 which regulates the preparation of confidential reports.
(ii) He acted both as reporting and countersigning officer in contravention of sub-paragraphs (b) and (c) of paragraph 4 of Circular 491.
(iii) Though he made some adverse comments about the performance of the appellants in some of the confidential reports he never communicated to them any omissions and failed to caution them of any omission or default contrary to regulation 7(2) of Circular 491.
(b) The recommendations of Mr. Ectorides before the respondent Commission were tainted with partiality and were conflicting. Council submitted that he gave undue weight to the performance by interested party Christodoulides of duties as co-ordinator, which were illegally assigned to him as he had never been appointed to the post of co-ordinator. Furthermore he described in a striking way the excellent discharge of duties by interested party Savvides, which is not reflected in any similar comments in his confidential reports.
(c) The respondent commission failed to carry a due inquiry as to the possession by interested party Savvides of the necessary qualiflcations for promotion contemplated by the Scheme of service. Counsel contended in this respect that interested party Savvides did not satisfy that part of paragraph 1 of the scheme which requires "at least 8 years postgraduate experience..."
We shall deal first with the arguments under paragraph (a) hereinabove.
The preparation of confidential reports is an act which by itself is not executory and as such cannot be challenged by a recourse. It is well settled however, that such reports being intermediate parts of a composite administrative process which leads to an executory administrative act, their validity has a bearing on the validity of the final act. In Georghiades v. The Republic (1982) 3 C.L.R. 16 at p. 28 it was held that:
"In matters of promotion and in particular those made under the proviso to section 44(1)(a) of the Law, 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." (See Stavros Agrotis v. Electricity Authority of Cyprus (1981) 3 C.L.R. 503, at p. 513, and the authorities referred to therein).
The preparation of confidential reports is regulated by administrative circular 491/79. Under paragraph (3) the confidential reports are prepared by reporting officers and are countersigned by countersigning officers except in cases in which the reporting and the countersigning officer is one and the same person (the underlining is ours). Under paragraph (4) the confidential reports must be prepared by a reporting officer who, because of his duties, has, a direct knowledge of the performance and the abilities of his subordinate officer and could express a responsible opinion about him in that respect (sub-paragraph (a)) and is immediately superior in rank (su-paragraph (b)). Further that the countersigning officer must be the supervising officer immediately superior of the reporting officer and that in Ministries, Independent Offices or Services in which the Head thereof has a direct knowledge of the work of the officer concerned, the reporting officer may be the Head thereof.
From what emerges from paragraph (3) of the Circular the provision about separate reporting and countersigning officers is not an absolute one and there may be instances in government Departments, Ministries or Independent offices where either because of their structure or particular circumstances which may exist, the reporting and countersigning officer may be one and the same person.
It is common ground in the present case that appellants and interested parties were holding the post of Electrical Engineer 1st Grade and they were candidates for the post of Senior Electrical Engineer, to which the immediately superior post is that of the Director of the Service. At the material time there was no immediate superior to the appellants in the service and they were all under the direct control of the Director of the Service.
The learned trial Judge on the material before him concluded as follows at pp. 367-368:
"From all relevant material which was placed before me, I am of the opinion that the Director of the Service had a general supervision of the service, that he must have sufficient knowledge about the performance of his immediate subordinate officers, that he was well acquainted, from various sources, about the manner in which the works in his service were executed and that he was in a position to prepare the confidential reports in respect of them. Strict compliance with the provisions of paragraph (4) of the circular could not have been observed because of the structure of the Department and the position held, at the material time, by the applicants in the present case.
In this respect useful reference may be made to the cases of Savva v. The Republic (1985) 3 C.L.R. 694, 707 and Charalambides v. The Republic (1985) 3 C.L.R. 992, 1002 - 1005."
In Charalambides case (supra) it was held at p. 1005, that:
"....Mr. Aristidou had a direct knowledge of the work of the applicant and the interested party, that he had a general supervision over all officers of such Department and that he could act as a reporting and countersigning officer being in a position satisfying the circular to make a confidential report about them."
We are in agreement with the conclusion of the learned trial Judge in this respect and we find that the contention of counsel that there has been a violation of paragraph 4 of the Circular is untenable. We also find that the present case is a proper one, to fall under the exception in paragraph 3 in that there was no irregularity in the preparation of the confidential reports by the Director of the Department both as reporting and countersigning officer.
We come next to consider the contention that there has been violation of paragraph 7(2) which provides that for the purpose of a just and impartial evaluation the evaluating officers should, during the year of evaluation note the excellent performance, omissions or defaults of the officers whom they are to evaluate, drawing their attention to omissions or defaults which may effect unfavourably their evaluation.
The learned trial Judge had this to say in this respect at pp. 368-369:
"Nor can I accept that the alleged non communication to the applicants, by Mr. Ectorides of an adverse view, in respect of their performance, or his failure to caution them about possible omissions or defaults, prejudiced the interests of the applicants to such an extent and constituted on the part of him a violation of the provisions of the relevant circular with the result that the confidential reports prepared by him should have been ignored because of partiality and prejudice against them.
In a number of cases of this Court it has been decided that non communication of an 'adverse' report cannot lead to the annulment of the sub judice decision (see, inter alia, Kontemeniotis (supra) 1033, 1034; Tantas v. The Republic (1983) 3 C.L.R. 1430, 1436, 1437 and Christou v. The Republic (1985) 3 C.L.R. 2237, 2242).
In the Christou case, supra, it is stated (at p. 2243) that what has to be examined by the Court in respect of the failure of a Head of Department to communicate to a candidate for promotion an adverse comment about him, is whether or not such failure deprived the Commission from conducting a due inquiry into a material aspect of the case.
This is not so in the present case and I dismiss the grounds for annulment of the sub judice decision based on the aforesaid allegations of counsel for the applicants."
We agree with the above approach of the trial Court and on the basis of the dicta in Christou case (supra) we find that any failure by the Director to communicate to the appellants any adverse comment has not, in the circumstances of the present case, deprived the respondent Commission from conducting a due inquiry in the case.
We shall next embark on the argument of counsel for appellants under paragraph (b).
Regarding the allegation of impartiality, it is well settled that lack of impartiality or bias on the part of a superior officer against his subordinates must be established with sufficient certainty to the satisfaction of the Court from facts emanating from official records or by safe inferences drawn from such facts. (See, inter alia, Christou v. The Republic (1980) 3 C.L.R. 437, 449; Kontemeniotis v. The Cyprus Broadcasting Corporation (1982) 3 C.L.R. 1027, 1034; Charalambides (supra) 1006). In this respect, we agree with the learned trial Judge that once the allegation of the applicants against Mr. Ectorides for lack of impartiality or prejudice had not been substantiated with the certainty required, not could they be safely inferred from the facts referred to by counsel for appellants such allegation should be disregarded.
We do not find anything wrong in the way the recommendations of the Director were made before the Public Service Commission. Concerning his reference to the duties performed by interested party Christodoulides, it was in fact reference to a factual situation. Also reference to the special zeal of interested party Savvides in the discharge of his duties was a matter on which he could express his opinion. Also his opinion about 'the appellants and the interested parties was not in any way contrary or inconsistent with his assessment in their confidential reports.
We come lastly to consider the argument of counsel for appellants about lack of due inquiry as to the possession by interested party Savvides of the required, under the scheme of service qualifications. This matter was not raised before the trial Court and was advanced for the first time before us.
The guide lines as to when matters not raised before the trial Court can be raised on appeal were set out by the Full Bench of this Court in the Case of Christodoulos Nissis No.2 v. The Republic (1967) 3 C.L.R. 671 at pp. 674, 675:
"No material of any kind was placed before the trial Court establishing the alleged close relationship of Mr. Seraphim to two of those who were promoted; even, at this stage, on the fact of the notice of appeal, the degree of such relationship is not clear.
Under rule 2 of the Supreme Court (Revisional Jurisdiction) Appeal Rules, 1964, the provisions of Order 35 of the Civil Procedure Rules - governing civil appeals - are applicable, mutatis mutandis, to an appeal such as the present one.
As the corresponding provisions in England are closely similar to our own, it is useful to bear in mind how the proper approach of an appellate tribunal to a ground raised for the first time on a civil appeal has been laid down by Lord Herschell in The Tasmania [1890] 15 A.C. 223, at p. 225:
'My Lords, I think that a point such as this, not taken at the trial, and presented for the first time in the Court of Appeal, ought to be most jealously scrutinised. The conduct of a cause at the trial is governed by, and the questions asked of the witnesses are directed to, the points then suggested. And it is obvious that no care is exercised in the elucidation of facts not material to them.
It appears to me that under these circumstances .a Court of Appeal ought only to decide in favour of an Appellant on a ground there put forward for the first time, if it be satisfied beyond doubt, first, that it has before it all the facts bearing upon the new contention, as completely as would have been the case if the controversy had arisen at the trial; and next, that no satisfactory explanation could have been offered by those whose conduct is impugned if an opportunity for explanation had been afforded them when in the witness box.'
Lord Herchell's view was repeatedly upheld, as correct, in subsequent jurisprudence (see, for example, Karunaratne v. Ferdinandus [1902] A.C. 405).
In line with the foregoing, it has been held that if it is only a question of law which is raised for the first time before an appellate Court, and this is done upon facts either admitted or proved beyond controversy after full investigation, then such a plea may properly be entertained (see relevant dicta in Connecticut Fire Insurance Company v. Kavanagh [1892] A.C. 473, and Warehousing & Forwarding Co. of East Africa Ltd. v. Jafferali & Sons Ltd. [1964] A.C.1).
Similar principles are applicable to appeals, in Greece, From decisions of first instance administrative courts to the Council of State (see Conclusions from the Jurisprudence of the Greek, Council of State 1929-1959 pp. 292-293).
In the present case the new - and only -ground of appeal relied upon by the Appellant does not amount, merely, to a question of law based upon facts admitted, or clearly proved, before the trial Court."
In Linou-Flasou-Petra Co. Ltd. v. The Republic of Cyprus (1976) 3 C.L.R. 25 the following appears in the judgment of Triantafyllides, P., at p. 29:
"In the course of the proceedings before us some of the issues have been propounded by arguments which were not advanced before the trial Judge; in view of the latitude which this Court has sometime afforded to parties in proceedings of this nature, we have allowed such arguments to be advanced, but we must, on the other hand, stress that it is essential that all issues arising in a recourse should, as a rule, be raised and fully argued before the trial Judge."
The matter was considered further in the case of Republic v. Maratheftis and Another(1986) 3 C.L.R. 1407 at p.1411 where we read the following in the judgment of Triantafyllides, P.:
"In view of the fact that when it hears a revisional jurisdiction appeal, such as the present one, this Court has to deal with the case before it as a whole, we have allowed counsel for the respondents to argue additional issues which, though they are not included in the notice of appeal, they had been raised at the hearing before the trial Judge, but were not pronounced on by him in his first instance judgment since he had annulled the sub judice appointment of the interested party for the reasons stated in the aforequoted passage from such judgment."
The present case is distinguishable from the case of Republic v. Maratheftis (supra) as in Maratheftis case the issues were raised before the trial Court but were not pronounced upon since the judgment had been annulled on other grounds.
The approach of this Court when hearing an appeal from a judgment of one of its members may be briefly expressed in the words of A. Loizou, J. (as he then was) in Revisional Appeal case Republic v. Lefkos Georghiades (.1972) 3 C.L.R. 594 at p. 690 is:
"This Court, when hearing an appeal from a judgment of one of its members, approaches the matter as a complete re-examination of the case, with due regard to the issues raised by the parties on appeal, or to the extent that they have been left undetermined by the trial judge or in case of a successful appeal in addition to the above, to the extent of the cross-appeal."
It has been the practice of this Court either ex proprio motu or on appeal to decide matters touching the question of jurisdiction arising from the application of Article 146 as to whether an act is executory or whether a question of legitimate interest entitling a person to file a recourse exists.
We wish however, to stress once again that it is essential that all issues arising in a recourse to the extent a party wishes to pursue should, as a rule, be raised and fully argued before the trial Court and, that the power of the supreme Court in the exercise of its appellate jurisdiction of complete re-examination of the case is limited to the grounds of appeal or to the extent that issues have been left undetermined by the trial Judge or, they are issues which can be raised ex proprio motu by the Court as above.
In the present case not only the contention as to possession of necessary qualifications was not raised before the trial Court but no material of any kind was placed before the trial Court establishing the alleged lack of qualifications so that interested party Savvides could be afforded the opportunity to render an explanation in this respect.
We, therefore, have come to the conclusion that, though counsel for appellants has raised this question before us, in the circumstances of the case and bearing in mind the nature of the question raised once counsel has not raised this matter before the trial Court he was not entitled to raise it on appeal.
Having concluded as above we find that the appeal should be dismissed and is hereby dismissed with no order for costs and the sub judice decision of the respondent Commission is affirmed.
Appeal dismissed. No order as to
costs.