THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC SERVICE COMMISSION, Respondent. (Revisional Jurisdiction Appeal No. 10.) Public Service—Public Officers—Promotions—Annual confidential reports—A minister cannot make such reports—Appeal from dismissal ofappellant's-applicant'srecourseagainst respondent's decision topromotefour persons to the post of Senior Welfare Officer inpreference to or exclusion of theapplicant—Decision of the respondent Commission {thePublic Service Commission) materially affected by observations, adverse to applicant, of the Minister of Labour
Social Insurance contained in the last annual confidential report made by him,
not by the Head of the Welfare Department of the Ministry of Labour
Social insurance—Decision complainedofannulled as having been taken under a misconception of the legal position of the Minister regarding Annual Confidential Reports in the Public Service—
, also, as having been taken without considering the proper confidential reports containing the views of the Head of Department or the officerduly actingfor him— Constitution of the Republic, Article 59, paragraph 2,
1112.3, 11/2.9and 11(2.11—See, also,herebelow. Constitutional
Administrative Law—Ministers—Public Service— Promotions—Annual confidential reports on Public Officers on Form Gen. 90—A minister cannot assume the duties
responsibilities of the Head of Department in the Public Service for the purposes of such reports concerning officers serving in such department under his Ministry—The reasons for that view are to befound in Article 59, paragraph 2,
of the Constitution tsupra)—
in the Service Regulations (supra)—
, also, in the structure of the Public Service Commission in oar Constitution (see Articles 122 to 125 inclusive)—Which structure is to keep apart the political office of a Minister
the office of profit in thepublic service as per Article 59, paragraph 2.
of the Consti- 676 tution (supra)—-
, moreover, to keep all matters pertaining to the competence of the Public Service Commission {such as appointments, promotions, transfers, etc.) outside the influence ofthepoliticalgovernment,of which theMinister isanimportant part. \ Public Service Commission~~lts structure underArticles 122 to 125 inclusive of the Constitution—Is to keep apart the political office of a Minister
that of an office in thepublicservice—
, moreover, to keep thecompetence of thesaid Commission viz. appointments, transfers, promotions etc. in the public service outside the influence of the political government. Minister—Public Officer in the public service—Incompatibility between the two offices—Practical reasons of such incompatibility—See (supra). Government—Public Service Commission—Latter's competence is outside the influence of the political government—See (supra). Confidential Reports—Annual Confidential reports regardingpublic officers—See (supra). Excess of zeal—Minister's excess of zeal deprecated. The appellant-applicant, as well as the " interested parties '* in these proceedings were at the material times holding the post of .Welfare Officer in the Welfare Department of the Public Service, which came under the Ministry of Labour
Social Insurance. The respondent Commission (the Public Service Commission) decided on January 24, 1963 to fill all the existing vacancies in the post of Senior Welfare Officer,
promoted to that post the persons referred to as " interested parties ", to the exclusion of
in preference to the appellant-applicant. This is the decision challenged by the recourse whereby the respondent-applicant claimed relief in the form of a declaration that the said decision of the respondent-Commission to promote four other Welfare Officers (the " interested parties ") to the post of Senior Welfare Officer, in preference to
instead of, the appellant-applicant isnullandvoidana ofno effect whatsoever. After a long litigation the appellant's recourse was dismissed for the reasons given by the learned trial Judge, who dealt with the matter at first instance, in his decision reported in this Part at p. 20 ante. The applicant now appeals against that decision. It is common ground in this case that the decision of the respondent Commission, subject matter of 677 1966 May 12, June 30 CHARILAOS FRANGOULIDES (No. 2)
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T H E REPUBLIC OF CYPRUS, THROUGH T H E PUBLIC SERVICE COMMISSION the recourse, was materially affected by the contents of a confidential report on government Form Gen. 90, particularly the adverse observations of the Minister in his assumed capacity of countersigning officer as Head of the Department. This appeal falls to be determined on the short question of whether a confidential report asaforesaid, which obviously decided the fate of the appellant's-applicant's promotion. could, or could not have been made by the Minister, acting in the capacity of Head of the Welfare Department, which (capacity) the Minister had assumed
had actually performed for about a year prior to the report in question. Article 59, paragraph 2, of the Constitution provides : " 2. The office of a Minister shall be incompatible with that of or with a public or municipal office or For the purposes of this paragraph 'public office' has the same meaning as in Article 41."
The office of For the purposes of this Article ' public office ' means any office of profit in the public service of the Republic or of the emoluments of which are under the control either of the Republic or of ,
includes any office in any public corporation or public utility body". On the other hand as far as Service Regulations (usually referred to as General Orders) are concerned, the position is equally clear. In chapter 11/2 of the 1955 issue of the general orders, under the heading : Annual Confidential Reports, one may see the machinery, the importance,
the effect of these reports, in the Public Service. " All promotions, transfers, granting of scholarships. etc., depend on the contents of the confidential reports of the officer concerned ", the Regulations expressly provide (General Orders II/2.3). Furthermore, they provide that " confidential reports on all staff will be completed between the 1st April
30th June of each year" (General Orders II/2.11):
that "reports not prepared by the Head of Department will be countersigned by him if he knows the officer concerned well enough to have formed an opinion of his capabilities
conduct. If not—
particularly in larger departments which are 678 dispersed overithe island—the Head of Department will delegate countersigning authority to a responsible senior officer who knows the officer concerned well enough to perform this function usefully
with competence". (General Orders II/2.9). The Supreme Court in allowing the appeal :— Held
in actual practice, that we find it unnecessary to elaborate at length on the point. See Articles 59, paragraph 2,
the office of profit in the public service (v. Article 59, paragraph 2,
The one is an office of a political nature ; the other is the office of a specially qualified
well experienced permanent officers in the public service, in this case the office of the principal Welfare Officer, who is the Head of the Welfare Department, Ministry of Labour
Social Insurance. The very structure of the Public Service Commission in our Constitution (see Articles 122 to 125 inclusive) is to keep the two offices apart,
independent of each other. To keep moreover 679 1966 May 12, June 30 CHARILAOS FRANGOULIDES ( N O . 2)
THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC SERVICE COMMISSION May 12. June 30 CHARILAOS FRANGOULIDES ( N O . 2)
THE REPUBLIC OF CYPRUS, THROUGH T H E PUBLIC SERVICE COMMISSION all matters pertaining to the competence of the said Commission (viz. appointments, promotions, transfers, etc.) outside the influence of the political government of which the Minister is an important part.
under the Service Regulations (General Orders). We are unanimously of opinion that a Minister cannot assume the duties
responsibilities of the Head of Department in the Public Service, for the purposes of the annual confidential reports on Form Gen. 90 of the Service Regulations (supra) concerning officers serving in such departments.
progress in the service, by different officers
different countersigning officers. His promotion should depend on these.
yet none of these confidential reports was considered by the respondent Commission when dealing with his case in these promotions ; none, except for this " ad hoc " report. completed by a rival candidate for the same vacancy who signed as reporting officer, prepared well out of the time prescribed by the Service Regulations (v. General Orders II/2.11, supra). No other confidential reports relating to the appellantapplicant were made available, or considered by the Commission ;
no explanation whatever for their absence appears on the record. As already stated, the Minister acted as countersigning officer in section III of the report, in his assumed responsibilities as Head of the Welfare Department of the Ministry inhischargeand hisadverse observations in his aforesaid assumed capacity affected materially the decision subject matter of the recourse.
was taken without considering the proper confidential reports containing the views of the'Head of Department in the Ministry ; or the officer duly acting for him.
judgment in the recourse be entered for the applicant with a declaration accordingly. Appeal allowed. Each party to bear his own costs. Per curiam: We do not feel any doubt regarding the genuineness of the Minister's plausible interest in the Welfare Department;
his zeal in its progress
efficiency. This case is still one more example of how easily excess of zeal can lead into illegality,
to the consequences following therefrom. Appeal. Appeal from the judgment of a Judge of the Supreme Court of Cyprus (Munir J.) given on the 7th January 1966, (Case No. 75/63) whereby Appellant's recourse against the decision of the Respondent Commission not to promote him to the post of Senior Welfare Officer was dismissed. A. Triantafyllides for the Appellant. L. Loucaides, Counsel of Republic, for the Respondent. Cur. adv. vult. The Judgment of the Court was delivered b y : VASSILIADES, J.: The President of the Court has asked me to explain his absence from the Bench to-day;
to say that having fully discussed the case with the other members of the Court he agrees with the substance of the Judgment which I am about to deliver as the Judgment of the Court. This is an appeal under Section 11
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T H E REPUBLIC OF CYPRUS, THROUGH T H E PUBLIC SERVICE COMMISSION that the decision of the Respondent-Commission to promote four other Welfare Officers named in the recourse, "or any one of them", to the post of Senior Welfare Officer, in preference
instead of Appellant, is "null
void
of no effect whatsoever". There is a further prayer in the recourse-apparently to supplement the principal prayer—for a declaration that thedecision of the Respondent-Commission not to promote the Applicant to the post in question, is likewise null
void. The recourse was based on seven different grounds which for the purposes of this Judgment may be classified in two categories: (a) grounds going to the legality of the decision;
(b) grounds founding the contention that the decision in question, was taken in excess or abuse of power. After a long
strongly contested litigation over a period of more than two
a half years (May, 1963 to January, 1966) Appellant's recourse was dismissed for the reasons given in the careful
well considered decision of the learned trial Judge who dealt with the matter at first instance. The facts are fully stated in the Judgment
show that the Respondent-Commission having agreed at their meeting of September 14, 1962, to consider the filling of vacancies in the post of Senior Welfare Officer in the Public Service of the Republic, decided to call 14 candidates. including the Appellant, for interview, (vide page 102 H-l of the record). Eventually by their decision of January 24, 1963, (Exhibit 28) the Commission "decided to fill all the existing vacancies" in the post of Senior Welfare Officer,
promoted to that post the persons referred to as "interested parties" in the Judgment appealed from, to the exclusion of the Applicant. This is the decision challenged by the recourse. The Applicant, as well as the "interested parties'* in these proceedings, were at the material time holding the post of Welfare Officer in the Welfare Department of the Public Service, which came under the Ministry of Labour
Social Insurance. We find it unnecessary for the purposes of this Judgment, to go into detail regarding Appellant's merits,
hisservice, as compared to that of the officers selected for promotion in preference to him, which (details) appear fully in the decision of the trial Judge, as wetake the view that this appeal 682 falls to be determined on the short question of whether a confidential report on Government Form Gen. 90, which obviously decided the fate of Appellant's promotion, could, or could not have been made by the Minister, acting in the capacity of Head of the Welfare Department which (capacity) the Minister had assumed
had actually performed for about a year prior to the report in question. After hearing able argument on the point, from both sides, the position appears to us sufficiently clear at this stage, both under the provisions of the Constitution,
under the Service Regulations. We are unanimously of opinion that a Minister cannot assumethe dutiesand responsibilities of the Head of Department in the Public Service, for the purposes of the annual confidential reports on form Gen. 90of the Service Regulations,concerning officers serving in such Department. We are only concerned with such a report in this case; we are not concerned here with other functions of the Head of Department; or of the Minister in charge of the Ministry where the Department belongs. The learned trial Judge on the other hand, decided the case upon the view that "there was nothing improper in the Minister himself acting as the counter-signing officer on a confidential report concerning an officer coming under his Ministry particularly where, as in this case, according to the evidence, the post of the Head of Department in question was vacant at the time". (Vide page 107 H-I of the record). While it may well be that in certain circumstances a Minister could, perhaps, place hisviews regarding the candidates for a post in a Department of the Ministy in his charge, before the Public Service Commission, (which -we do not purport to decide in these proceedings) there is no doubt in our mind that he cannot do so in substitution of the views of the Head of Department, (or the Officer acting for him) as reflected in the annual confidential reports concerning a subordinate officer. The difference between the nature of the office of a Minister
that of a superior officer in the permanent public service, who is the Head of a Department, is soclear under the relative provisions of the Constitution; under the Service Regulations;
in actual practice. that wefindit unnecessary to elaborate at length on the point. .683 1966 May 12. June 30 CHARILAOS FRANGOULIDES (No. 2)
THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC SERVICE COMMISSION 1966 May 12, June 30 CHARILAOS FRANGOULIDES (No. 2)
T H F REPUBLIC OF CYPRUS, THROUGH T H E PUBLIC SERVTCF COMMISSION Article 59
well experienced permanent officer in the public service. The very structure of the Public Service Commission in our Constitution (Articles 122-125 inclusive) is to keep the two apart,
independent of each other. To keep moreover, all matters pertaining to the competence of the Commission (appointment, promotion, transfer etc.)outside the influence of the political Government, of which the Minister is an important part.
as far as Service Regulations (usually referred to as the General Orders) are concerned, the position is equally clear. In Chapter 11/2 of the 1955 issue of the General Orders, under the heading: Annual Confidential Reports, one may see the machinery, the importance,
the effect of these reports, in the Public Service. "All promotions. transfers, granting of scholarships, etc..depend onthecontents of the confidential reports of the officer concerned", the Regulations expressly provide (G.O. 11/2.3). Furthermore. they provide that "confidential reports on all staff will be completed between the 1st April
30th June of each year" (G.O.II/2.1I);
that "reports not prepared by the head of department will be countersigned by him if he knows the officer concerned well enough to have formed an opinion of his capabilities
conduct. If not—particularly in larger departments which are dispersed over the island— 684 the head of department will delegate countersigning authority toa responsible senior officer who knows theofficer concerned well enough to perform this function usefully
with competence". (G.O. II/2.9). We are clearly of opinion that these duties cannot be assumed in the present framework of the Republic of Cyprus, by a Minister. In this case, the Appellant was an officer in the public service since October 8, 1951;
held his present post of Welfare Officer since May 1. 1955, (vide Judgment at p. 102, Β of the record). He worked as officer in charge of the District Welfare Office, Kyrenia, for four years (p.107,E);
was posted as District Welfare Officer, Famagusta, from August 22, 1960, to May 1, 1.962 (p.33;
p.107, D). In April, 1958,a DepartmentalSelection Board recommended the Appellant for appointment to the post of Temporary Senior Welfare Officer (Emergency)
, in fact, he was seconded to that post with effect from the 1st January, 1958,
served until the 31st December, 1958, when the second ment was terminated as the post was not revoted in the 1959 Estimates. As was stated in the letter, dated 16th April, 1958 (exhibit 30), of the Director of Social Development to the then Establishment Secretary, recommending the promotion of theAppellant, "This will not mean any addition to our staff,
of course when the need for this temporary post is over, Mr. Frangoulides would revert to Welfare Officer unless by then there is a vacancy in the permanent establish ment". This very material fact was never placed before, or considered by. the Public Service Commission when they were considering the filling of the.vacancies in the post of Senior Welfare Officer between September, 1962
January, 1963. During the whole of his service the Appellant regularly filled in section Iof form Gen.90
duly handedsuch form to his reporting officer for the next step in the process (p:93, E) ; the last Chief Welfare Officer who would normally be the countersigning officer to fill in
sign section II of the form, went off-duty in October, 1961,
resigned as from January, 1962 (p. 94, A); so in the personal file of this officer, theremust have been notless than ten confidential reports, containing the evaluation of his personality
progress in the service, by different reporting officers,
different countersigning officers. His promotion should depend on these (G.O. II/2.3). ' ( 685 1966 May 12. June 30 CHARILAOS FRANGOULIDES ( N O . 2)
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yet none of these confidential reports was considered by the Commission when dealing with his case in these promotions (p. 69, C-D); none, except for this "ad hoc" report, completed by a rival candidate (Chr. Michael) for the same vacancy, who signed as reporting officer, as described by the learned trial Judge (p. 106, A), prepared well out of the time prescribed by the Service Regulations (G.O. II/2.11), apparently for the purposes of the proceedings following the decision of the Commission "on the 14th September, 1962, to consider on the 20th September, the filling of vacancies in the post of Senior Welfare Officer
to call 14 candidates for interview, including the Appellant " (p. 102, H-I). No other confidential reports relating to the Applicant were made available, or considered by the Commission (p. 73, F);
no explanation whatever for their absence appears on the record. Wehavealready saidthat for the purposes ofthisJudgment, we find it unnecessary to enter into the contents of the report in question (exhibit 21); or into matters other than those arising from the fact that the Minister acted as countersigning officer in section III of the report, in his assumed responsibilities as Head of the Welfare Department of the Ministry in his charge which we have already dealt with. It is common ground in this case, that the decision of the Commission, which is the subject matter of the recourse, was materially affected by the contents of the confidential report in question; particularly the observations of the Minister in his assumed capacity of countersigning officer as Head of the Department. The Commission's decision was. therefore, taken under a misconception of the legal position of the Minister regarding Annual Confidential Reports in the PublicService;
wastaken without considering the proper confidential reports containing the views of the Head of Department; or the officer duly acting for him. "There seems to be no doubt (the learned trial Judge says in his Judgment at p. 107, F) that what has ultimately weighed with the Commission in deciding to promote the Interested Parties in preference to the Applicant, were the contents of the Applicant's confidential report (exhibit 21), in section III of which the Minister of Labour
Social Insurance has personally made certain observations concerning the Applicant,
which need not, in view of their nature 686
in fairness to the Applicant, be set out in this Judgment". Indeed there can be no doubt that this is so.
in the circumstances we think that this is sufficient to vitiate the Commission's decision in question. The Appellant is therefore entitled to the declaration sought. Before concluding this case, however, we should like to add that in arriving at our conclusion wedo not feel any doubt regarding the genuineness of the Minister's plausible interest in the Welfare Department;
his zeal in its progress
efficiency. This case is still one more example of how easily excess of zeal can lead into illegality,
to the consequences following therefrom. In the result, this appeal must be allowed;
Judgment in the recourse beentered for the Applicant with a declaration accordingly. Each party to bear own costs. Appeal allowed. Each party to bear own costs. 687 1966 May 12. June 30 CHARILAOS FRANGOULIDES (No. 2)
THE REPUBLIC OF CYPRUS, THROUGH • THE PUBLIC SERVICE COMMISSION
AI explanation based on the official legal text. Indicative, not a substitute for legal advice.