1965 Sept. 13, Oct. 1, 1966 Mar. 12 JACOVOS L. JACOVIDES, [TRIANTAFYLUDES, J.] IN T H E MATTER OF ARTICLE 146 O F T H E CONSTITUTION JACOVOS L. JACOVIDES, and T H E REPUBLIC OF CYPRUS T H R O U G H TH

, ako, herebelow. Public Service Commission—Discretion—Abuse and excess of powers—Commission's conclusion that, on the basis of the confidential reports, Applicant would "never" have been promoted to the post of Land Clerk 1st Grade, Lands and Surveys Department—Conclusion could not have reasonably been reached—Commission, therefore, has not exercised its discretion in a valid manner and has, consequently, acted in abuse and excess of powers—

, also, hereabove; and under the headings herebelow. Administrative Law—Administrative decisions—Annulment of administrative acts or decisions—A case in which an administrative Court has to annul the subjudice administrative act or decision because the reasoning stated therein is shown to be erroneous, through being contradicted by the relevant administrative records—

, also, hereabove. Constitutional Law—Principle of equality—Safeguarded by Article 28 of the Constitution—It is a principle of proper administration, enshrined also, in our Constitution (

Article 28

) that equality of treatment should be accorded to persons who are in substantially equal position vis-avis the administration in one and the same matter—

, ako, under Public Officers, above. 212 Proper administration—Principle of equal treatmentConstitutional Law above. •

under Equality—Principle of—Article 28 of the Constitution—It is also a principle of proper administration—

above under Constitutional Law. Equal treatment—

above. Unequal treatment—

above. The applicant in this recourse complains against the decision of the respondent—Public Service Commission dated the 20th May, 1963, not to promote him to the post of Land Clerk, 1st Grade from the post of Land Clerk 2nd Grade. Applicant first applied for promotion on 30.5.61 and having not succeeded he wrote again on the 22nd March, 1963 and drew attention to the fact that he had qualified in the meantime for such promotion by passing the relevant examinations and that the matter was urgent as he was already on leave prior to retirement, which was due to take place on the 31st May,

1. He also referred to the case of his ex-colleague Michael Angeli, who had been promoted to Land Clerk, 1st Grade, during leave prior to retirement. The relevant decision of the Commission dated 20.5.63 challenged by this recourse reads as follows:"Application by Mr. J.L. Jacovides, Land Clerk, 2nd Grade, for promotion to the 1st Grade, prior to his retirement on 31.5.
2. The Commission examined the above application and Mr. Jacovides (sic) confidential reports and decided that the Commission would have never promoted him, even if the question of filling the vacancies in the post of Land Clerk, 1st Grade, was taken up by the Commission before the date of retirement of Mr. Jacovides. The Commission decided that in view of the confidential reports submitted on him, Mr. Jacovides should not be promoted". The reasoning which has been given in relation to this decision of the Respondent as found in the decision itself and repeated in the letter of the 10th June, 1963 was that on the strength of the confidential reports on him, applicant was not found fit to be promoted. 213 1965 Sept. 13, Oct.1, 1966 Mar. 12 JACOVOS L. JACOVIDES, and T H E REPUBLIC O F CYPRUS THROUGH THE PUBLIC SERVICE COMMISSION 1965 Sept. 13, Oct.1, 1966 Mar. 12 JACOVOS L. JACOVIDES, and T H E REPUBLIC OF CYPRUS THROUGH THE PUBLIC SERVICE COMMISSION T o a letter dated the 6th June, 1963 from counsel acting on behalf of the applicant requesting to be furnished with the reasons of the above quoted decision the Chairman of the Commission replied on the 10th June, 1963 stating that " in spite of the fact that the general question of the filling of the vacancies in the post of Land Clerk, ist Grade was not taken up by the Commission, Mr. Jacovides' application for promotion was carefully considered by the Commission. After a careful examinanation of the totality of circumstances pertaining to Mr. Jacovides, namely, merit, abilities, official qualifications and seniority as depicted in his confidential reports submitted on him. by his Head of Department, the Public Service Commission decided that it would have never promoted him, even if the question of filling the vacancies in the post of Land Clerk, ist Grade, was taken up by the Commission before the date of Mr. Jacovides' retirement". And to a further letter from the same Counsel dated the 12th July, 1963 requesting to know what were the reasons for which the Commission "would have never promoted" applicant, the Chairman of the Respondent Commission replied:" . . . .the reason why Mr. Jacovides could not be promoted to the post of Land Clerk, ist Grade, even if promotions to that post were made before he retired, is that there were other Land Clerks, 2nd Grade, who were considered by the Commission as having, on the whole, stronger claims for promotion to the existing vacancies in the ist Grade. As the number of the Land Clerks, 2nd Grade, who had stronger claims than Mr. Jacovides was greater than the number of"existing vacancies, it was clearly impossible to promote Mr. Jacovides". Evidence was given by respondent to the effect inter alia that the Commission examined the qualifications and abilities of applicant, in relation to those of other persons whom the Commission had in mind as eligible for promotion to Land Clerk, ist Grade, and the Commission reached the conclusion that applicant was not entitled to be promoted. Moreover the confidential reports on applicant starting from 1955 and goind up to 1962 were produced as exhibits. In granting the application and annulling the sub judice decision, the Court:214 Held, (ι) on the face of the most recent of the confi­ dential reports and in the absence of any valid explanation or reason to the contrary—which does not exist on the ma­ terial before me—I, with due respect to the Commission, really fail to

how it could have reasonably reached the conclusion that, on the basis of the confidential reports, applicant would "never" have been promoted. It has not, therefore, exercised its descretion in a valid manner and has, consequently acted in abuse and excess of powers.

Article 28), that equality of treatment should be accorded to persons who are in substantially equal positions vis-a-vis the admini­ stration in one and the same matter.

the confidential report on Applicant in respect of 1962), and that it has not been suggested that the course followed in Angeli's case was a wrong one from any point of view, I find that Applicant has been deprived of equal treatment by being told that he could not be likewise promoted. Decision complained of declared null and void. 215 1965 Sept. 13, Oct. 1, 1966 Mar. 12 JACOVOS L. JACOVIDES, and T H E REPUBLIC OF CYPRUS THROUGH THE PUBLIC SERVICE COMMISSION 1965 Sept. 13. Oct. I 1966 Mar. 12 JACOVOS L. JACOVIDES. and T H E REPUBLIC OF CYPRUS THROUGH THL PUBLIC SERVICE COMMISSION Cases referred to:Kyprianides and the Republic

how it could have reasonably reached the conclusion that, on the basis of the confidential reports, Applicant would "never" have been promoted. It has not, therefore, exercised its discretion in a valid manner and has, consequently, acted in abuse and excess of powers. This isindeed one of those cases in which an administrative Court has to annul the subjudice administrative act or decision because the reasoning stated therein is shown to be erroneous through being contradicted by the relevant administrative records (videConclusions from the Jurisprudence of the Council of State in Greece 1929-1959 p. 188); and indeed the reasoning in exhibit 18, the decision of the Commission, is completely contradicted by the-material records 221 1965 Sept. 13, Oct.

1. 1966 Mar. 12 JACOVOS L. JACOVIDES, and THE REPUBLIC OF CYPRUS THROUGH THE PUBLIC SERVICE COMMISSION 1965 Sept. 13, Oct. 1, 1966 Mar. 12 JACOVOS L. JACOVIDES, and T H E REPUBLIC OF CYPRUS T H R O U G H THE PUBLIC SERVICE COMMISSION in exhibit 19, i.e. the recent confidential reports on Applicant. As I am certainly not prepared to presume that the Commission in acting as it did has acted simply capriciously, I have sought to find what in exhibit 19 could have led the Commission to adopt the course it has taken in this matter. The only possible explanation I could think of is that the Commission attributed to the old unfavourable reports existing in exhibit 19—in relation to years prior to 1959— undue weight, and it did not give due weight to the reports in exhibit 19 relating to more recent years. Such approach constitutes, in my opinion, a grave error of principle rendering the manner of the exercise of the discretion of the Commission in the relevant matter defective and leading to the annulment of its decision. It would be, of course, correct to say that the whole series of confidential reports on a public officer is useful because it presents a picture of his entire service. But there can be no doubt, either, that a public officer is to be promoted or not on the basis of his merit at the material time and cannot be deprived of promotion, to which he would be entitled on the basis of the merit then possessed, because of lack of such merit four years earlier, as in this Case. Even if the expression "confidential reports" in the relevant minutes of the Commission (exhibit 18) were to be stretched so as to include in it, in this particular Case, the letter of the 22nd November, 1961,(exhibit 17),in which the Acting Chief Lands and Surveys Officer did not appear to recommend the promotion of Applicant, then again I would not have reached a different conclusion about the propriety of the Commission's sub judice decision, because this letter only related to the situation as existing at the time it was written, when Applicant had not yet completed passing the relevant Departmental examinations—a thing which he did subsequently; and, in any case, little weight could be attributed to the absence of recommendation for promotion in the said letter, in view of the express recommendation to that effect contained in the subsequent confidential report for
2. The Chairman of the Public Service Commission, in his letter of the 18th July, 1963,(exhibit 6) gaveanother collateral reason why Applicant was not promoted. He stated that 222 Applicant was not entitled to promotion because there were others who were eligible to be promoted and who had, in the opinion of the Commission, stronger claims to promotion than Applicant, and in view of the fact that their number was greater than the existing vacancies in the post of Land Clerk, 1st Grade, it was "clearly impossible" to promote Applicant. This reason isechoed in the evidence of Mr. Protestos, too. I regret to saythat Ifind,also,this reasoning not to bewellfounded, in view of the fact that Applicant was retiring on the 31st May, 1963, and so in case he were to be promoted, this could not affect the promotion of any other eligible Land Clerk, 2nd Grade, after such date. In this connection it is to be borne in mind that, from the material before the Court, it appears that the qualifying examinations for promotion to the post of Land Clerk, 1stGrade were, at the time of the sub judice decision, already fixed for the 30th May, 1963, i.e. the day previous to the retirement of Applicant— who had already passed such examinations earlier—and so nobody qualifying for promotion at the said examinations would have been a candidate for promotion together with Applicant, who would have retired already. As stated already, earlier on, in thisjudgment, at the time when the Commission decided to refuse to promote Applicant, i.e. on the 20th May, 1963,the existing vacancies in the post of Land Clerk, 1st Grade, were more than those qualified for appointment thereto; thus, no question of the candidates being more than the vacancies could arise at the time when the sub judice decision (exhibit 18) was taken. Later on, however, after Applicant's retirement, the ratio of vacancies to candidates was apparently reversed due to the results of the qualifying examinations which were held on the 30th May, 1963; actually the list of qualified candidates was forwarded by the Lands Department to the Commission in June, 1963, i.e. after the retirement of Applicant, and the existing vacancies were filled on the 9th July,
3. It

ms that on the 20th May, 1963, when Applicant's promotion was refused, those about to sit for their examinations on the 30th May, 1963, were wrongly treated by the Commission as eligible candidates, though they were not yet so; otherwise, it cannot be explained how the Chairman of the Commission spoke on the 18th July, 1963(exhibit 6) of the existence at the material time of more candidates than the 223 1965 Sept. 13, Oct. I. 1966 Mar. 12 JACOVOS L. JACOVIDES, and THE REPUBLIC OF CYPRUS THROUGH THE PUBLIC SERVICE COMMISSION 1965 Sept.13, Oct. 1, 1966 Mar. 12 JACOVOS L. JACOVIDES, and T H E REPUBLIC OF CYPRUS T H R O U G H THE PUBLIC SERVICE COMMISSION available vacancies, when this was not in fact so in May,

1. In my opinion it was not proper for the Commission in reaching its decision exhibit 18 to base itself on the situation as it was anticipated to develop, after Applicant's retirement, by regarding as eligible and comparable candidates those who had yet to qualify by passing the examinations of the 30th May,
2. There is, yet, a further reason why Applicant is entitled to succeed:— I am satisfied that his case and that of Angeli were, more or less,on an equal footing; and, yet, he has been refused promotion whereas Angeli has been promoted. It is a principle of proper administration, enshrined also in our Constitution (

Article 28

), that equality of treatment should be accorded to persons who are in substantially equal positions vis-a-vis the administration in one and the same matter. Bearing in mind that Angeli was promoted to the 1st Grade while being on leave prior to retirement—as Applicant was on the 20th May, 1963—that, according to the evidence of Mr. Protestos, Angeli was not in any way a brilliant officer and that his case was similar to that of the Applicant, that he had been recommended for promotion prior to retirement, like Applicant had been (

the confidential report on Appli­ cant in respect of 1962), and that it has not been suggested that the course followed in Ageli's case was a wrong one from any point of view, I find that Applicant has been deprived of equal treatment by being told that he could not be likewise promoted. For all the above reasons I find that the sub judice decision is unconstitutional and in abuse and excess of powers and Ϊ hereby declare it to be null and void and of no effect whatso­ ever. The Commission has now to re-examine the matter, in the light of this judgment. The fact that Applicant has retired in the meantime is no obstacle to such a course, (

Kyprianides and The Republic,