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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 672
1989 June 16
[A. LOIZOU, P., MALACHTOS, STYLIANIDES, HADJITSANGARIS, CHRYSOSTOMIS, NIKITAS, ARTEMIDES, JJ.]
YIANNOULLA LOUCA,
Appellant - Interested Party,
v.
MICHALAKI SAVVA AND OTHERS,
Respondents-Applicants.
AND
THE PUBLIC SERVICE COMMISSION AND OTHERS,
Respondents.
(Revisional Jurisdiction Appeals Nos. 777, 780)
Public officers - Promotions - Confidential reports - circular 491 - contravention of - Renders report irregular - Irregularity does not lead to annulment, unless it is of a material nature - The extent of the irregularity and the effect of the confidential report on the final decision depends always on the circumstances and facts of the case.
Public officers - Promotions - confidential reports - Head of Department holding post in an acting capacity - Not precluded from signing such reports relating to a time during which he did not hold such post, provided it was practically impossible for his predecessor to do so-Length of time during which one is Head of Department has no bearing on acquiring sufficient knowledge concerning the officers serving under him - Not imperative for his knowledge to be acquired through direct contacts with such officers-Entitled to obtain information from any other proper source.
Public Officers - Promotions - Confidential reports - Disregard of views of newly appointed acting Head of Department, who had signed them as countersigning officer - Disregard due to cautious attitude - Though the Head of the Department entitled to countersign the report, in the circumstances of the case the sub judice decision should not have been annulled.
Bias - Objective bias arising from the relationship between reporting officer and the officer reported upon - Issue should be examined in the context of social realities in Cyprus - Lack of impartiality must be established with sufficient certainty from facts emanating from official records or by safe inferences drawn from such facts - The fact that a person may make a report in respect of a close relation or even his brother, does not per se invalidate the process, though it should be avoided - In a country of the size of Cyprus that may not always be possible - As in this case the assessment made for the years in question by the close relative of the appellant was more or less similar to that made by other reporting officers, it cannot be said that the reports in question were in any way biased.
Public officers - Promotions - Head of Department-recommendations of - So long as they tally with the material in the personal files of the candidates, he has no obligation to give a separate recommendation in respect of every single candidate.
The issues raised in these appeals and cross - appeals and the principles applied by the Court, in allowing the appeals and dismissing the cross - appeals, appear sufficiently in the hereinabove Headnotes.
Appeals allowed. Cross-appeals dismissed.
Sub judice decision affirmed. No order as to
costs.
Cases referred to:
Sekkides v. Republic (1988) 3 C.L.R. 2136,
Payiatsos v. Republic (1987) 3 C.L.R. 321,
Chrysohos v. Republic (1985) 3 C.L.R. 78,
Haris v. Republic (1989) 3 C.L.R. 147,
Argyrides v. Republic (1989) 3 C.L.R. 380,
Theoklitou and Another v. Republic (1988) 3 C.L.R. 1271,
Christou v. Republic (1980) 3 C.L.R. 437,
Othonos v. Republic (1989) 3 C.L.R. 475,
Petsas v. Republic 3 R.S.C.C. 60.
Appeals.
Appeals against the judgment of a Judge of the Supreme Court of Cyprus (Pikis, J.) given on the 30th January, 1988 (Revisional Jurisdiction Cases Nos. 88/86, 160/86, 174/86 184/86 and 230/86) (1988) 3 C.L.R. 160, whereby the promotion of the interested parties to the post of Nurse, Psychiatric Services was annulled.
Chr. Triantatyllides, for Appellants in R.A. 777.
A. Vassiliades, Counsel of the Republic B,for Appellants in R.A. 780.
A. S. Angelides, for Respondent - applicant in Case No 160/86.
I. Typographos, for Respondent - applicant in Case No. 174/86
A Markides for Respondent - applicant in Case No. 230/86.
A. Erotokritou, for Respondent - applicant in Case No. 184.
Respondent - applicant in Case No. 88/86 absent No appearance.
Cur. adv. vult.
A. LOIZOU, P. read the following judgment. These appeals are directed against the judgment of a judge of this Court in the exercise of the original jurisdiction of the Court annulling the decision of the respondent Public Service Commission, appellant in present appeal R.A. 780, to promote to the post of Nurse, Psychiatric Services the appellant in R.A. 777 and ten other persons.
The grounds upon which these appeals are filed may be summed up as follows:
(1) The trial Court wrongly annulled the decision of the respondent Commission on the ground that the respondent Commission erred in taking into consideration, during the process of promotions, the confidential reports for the year 1982 since these had been signed only by the reporting officer but not by the countersigning officer.
(2) The trial Court wrongly annulled the decision of the respondent Commission for the reason that during the relevant process it took into consideration only the evaluation of the reporting officer for the confidential reports of 1982.
(3) The trial Court wrongly annulled the decision of the respondent Commission concerning appellant in R A 777 interested party Yiannoulla Louca for the reason that the confidential reports for this interested party for the years 1983 to 1984, had to be ignored because they were tainted with bias arising from the relationship between her and the reporting officer and which was by itself sufficient to create objective bias.
Cross-appeals were filed by applicants in cases Nos. 160/86 and 174/86 to the effect that:
1. The trial Court wrongly dismissed the remaining grounds of the recourses.
2. The trial Court wrongly accepted:
(a) As regards the recommendations of the Head of Department that they were objective and in accordance with the Law, that is merit, qualifications, seniority.
(b) That the confidential reports were impartially compiled.
(c) That the respondent Commission conducted a due inquiry.
(d) That the qualifications of the applicants were duly taken into consideration.
It was submitted on behalf of the appellants, as regards grounds of appeal (1) and (2) that the conclusions of the trial Court to the effect that the respondent Commission wrongly took into consideration the confidential reports for the year 1982, were wrong.
It is stated by the trial Court in respect of this:
"The respondents were right to treat the confidential reports for the year 1982 as irregular. What is at issue is the validity of their decision to accept them as proper material for the evaluation of the candidates albeit stripped of the views of the countersigning officer."
And concluded that:
"The unavoidable conclusion is that the reports on the candidates for the year 1982 were incomplete and as such did not qualify as confidential reports within the meaning of the Circular. It was in the power of the Public Service Commission to take steps for their completion by referring the reports back to the administration with the request that they be countersigned by the officer who was exercising supervision at the time over the candidates. In the absence of this complement the respondents were duty-bound to disregard the reports. By taking them into consideration they allowed extraneous material to influence their decision and on that account their decision is liable to be set aside."
It was submitted by the appellant that to the contrary the respondent Commission was legally correct, when considering the confidential reports for the year 1982, to consider only the views of the reporting officer and to disregard those of the countersigning officer, since the countersigning officer, Dr. Neophytou had wrongly acted as such, as at the relevant time he did not have the supervision of such officers.
It was further submitted that such irregularity as explained above did not render such reports wholly irregular to the extent that they had to be entirely disregarded, as decided by the trial Court, but that such part which was not tainted with any irregularity could still be taken into consideration.
It is to be noted at this stage that the until then responsible countersigning officer had been interdicted and was thus unable to countersign the reports at the time these were being compiled, that is the beginning of 1983. Hence they were countersigned by his replacement, who though had taken over his duties as acting Director of Psychiatric Services he had no knowledge of their performance, et cetera.
The matter of the regularities in confidential reports had been considered by the Full Bench of this Court in the recent case of Sekkides v. The Republic (1988) 3 C.L.R. 2136, were it was held that failure to observe the provisions of circular No. 491 of the 26th March, 1979 which regulates their preparation, inevitably renders such report irregular. Such irregularity, however, must be of a material kind in order to lead to the annulment of the decision taken. The extent of the irregularity and the effect such confidential report had on the decision always depends on the circumstances and facts of the case.
In the present case Dr. Neophytou as acting Head of Department countersigned the confidential reports in question in view of the fact that it was not possible for the officer who was Head of Department at the time to which the reports related to countersign such reports, as stated above, since he had been interdicted. We do not consider that this amounted to an irregularity because the Head of Department irrespective of whether one is holding a substantive post or is merely serving in an acting capacity, is not precluded from signing confidential reports relating to a time during which he did not hold such post, if it is practically impossible for his predecessor to do so, as was the case here. Moreover we consider that the length of time during which one is Head of Department, is not related to his acquiring sufficient knowledge concerning the officers serving under him. It is not imperative for such knowledge to have been acquired through direct contact with such officers nor is it always possible, but such information may be obtained from any other proper source as is also the case where such subordinate officers do not work within the same premises but are spread out in different areas due to the nature of their work (See Payiatsos v. The Republic (1987) 3 C.L.R. 321 at 328, Chrysohos v. The Republic (1985) 3 C.L.R. 78 at 87.)
The circular of 1979 does not make any provisions as to the time a Head of Department must hold his post before he may be able to carry out his duties such as preparing or countersigning confidential reports.
It may also be worth noting here that section 44(3) of the Public Service Law, 1967 (Law No. 33 of 1967), does not impose any condition as to time before a Head of Department may give his recommendations in respect of any promotion of any of his subordinates. (See the judgment of the Full Bench in Haris v. The Republic (1989) 3 C.L.R. 147.
Irrespective of the above the respondent Commission obviously out of caution decided to disregard such part of the reports which related to the countersigning by the newly appointed acting Head of Department, though in our view it could have considered them as a whole. This it may, in certain circumstances be able to do whenever it considers that any confidential report before it suffers from any irregularity, of a non material kind, that is to exclude such part of the report it considers irregular. See Argyrides v. The Republic (1989)3 C.L.R. 380. Also in the case of Theoklitou and Another v. The Republic (1988) 3 C.L.R. 1271, it was stated by the Court referring to the present judgment under appeal as follows:
"in Michalakis Savva we did observe that when confidential reports are excluded, it is in the power of the Public Service Commission to request the Administration to fill the gap. This is not a mandatory course and every case must depend on its own facts. Development in the psychiatric department made it difficult, if not impossible, to fill the gap by referring the matter back to the Administration. It was open to the Public Service Commission to adopt the course they followed and evaluate the merits of the candidates by reference to admissible confidential reports, after exclusion of those considered inadmissible."
Though without doubt we feel that Dr. Neophytou was competent and able to have countersigned the confidential reports in question, nevertheless we consider, in the circumstances, that the trial Court wrongly annulled, the decision of the respondent Commission for having taken into consideration the aforesaid confidential reports, as it did, and these ground of appeal therefore succeed.
As regards the third ground of appeal it was submitted that the findings of the trial Court to the effect that the confidential reports for the years 1983-1984, of interested party Yiannoulla Louca were tainted with bias due to the fact that the reporting officer who had compiled such reports was a close relation of hers, were wrong.
In this respect the trial Court stated that:
".....the suggestion that the confidential report on interested party Yiannoulla Louca for the year 1983-84 ought to have been disregarded for reasons of bias. Here the complaint is not one of subjective bias on the part of the reporting officer but one of objective bias arising from the relationship between the reporting officer and Yiannoulla Louca. It would be difficult to discern any disposition of personal favour on the part of Mrs. v. Christou towards Yiannoulla Louca considering that her assessment of the worth of her services was on the whole similar to that made by other reporting officers. However, bias may be inferred from the existence of such a relationship between the parties as would normally preclude an administrative organ from exercising powers assigned to it by law."
And further down concluded that:
"...given Cyprus social realities, particularly the close bond that unites families, the class should also include relations of the first degree by consanguinity, that is, brother and sisters in-law. That being my decision, the confidential reports on Yiannoulla Louca for the years 1983-84 were tainted with bias and ought to have been disregarded."
The general principle is that the organs participating in any particular administrative process must appear to act impartially which cannot be said to be the case when there exists any special tie or relationship which relates to the persons involved in the process or to its outcome. (See Christou v. The Republic (1980) 3 C.L.R. 437 at 449).But any lack of impartiality must be established with sufficient certainty from facts emanating from official records or by safe inferences drawn from such facts. (See Othonos v. The Republic (1989) 3 C.L.R. 475) and invariably bias always depends on the facts of the case. The fact that a person may make a report in respect of a close relation or even his brother, does not per se invalidate the administrative process and even though it should be avoided, in a country of the size of Cyprus it may not always be possible to avoid the possibility of a person serving under a close relative, though in such a case it would be expected that the relationship will be disclosed. (See Petsas v. The Republic 3. R.S.C.C. 60 at p. 63).
In any event it is clear from the facts that the assessment made for the years in question by her close relative is, as is also stated by the trial Court "on the whole similar to that made by other reporting officers" therefore it cannot be said that such reports were in any way biased since the assessment contained therein does not differ from the general picture presented by this interested party throughout her career and in any case as also found by the trial Court, "it would be difficult to discern any disposition of favour on the part" of the reporting officer towards this interested party. As we have found therefore no evidence of bias, this ground of appeal succeeds.
Coming now to the cross-appeals, it was argued that the recommendations of the Head of Department, were wrongly considered by the trial Judge to be objective and in accordance with the Law; in this we find no merit. The function and duty of the Head of Department when appearing before the respondent Commission is to give his recommendations as regards the candidates which he considers to be the most suitable for the post. And so long as his recommendations tally with the material in the personal files of the candidates and their confidential reports, he has no obligation to give a separate recommendation in respect of every single candidate. This does not in any way amount to preferential treatment, it is not contrary to Law and does not render his recommendations without reasoning. One must not also lose sight of the fact that the personal files and confidential reports of the candidates which contain all the relevant material concerning them were at all times before the respondent Commission. It would therefore not have been possible for the Head of Department to either mislead the respondent Commission or to present a different picture as regards any particular candidate without putting the respondent Commission into inquiry, since the merit, qualifications and seniority of the candidates were before it, and on the basis of which the respondent Commission selected the most suitable candidates for the post.
Finally, as regards the allegations of bias against certain of the candidates on the part of the then Head of Department when countersigning their reports before 1983, from the material before the trial Court we consider that it was reasonably open for it to decide that the evidence before it was not sufficient to establish such allegation which was therefore correctly dismissed.
For the above reasons the cross-appeals fail and are hereby dismissed.
In the result the appeals succeed and the sub judice decision is affirmed under Article 146(4)(a) of the Constitution. In the circumstances, however, there will be no order as to costs in the appeals or the cross-appeals.
Appeals allowed. Cross-appeals
dismissed. Sub judice decision
affirmed. No order as to costs.