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clr/1975/1975_3_467.pdf

[A. Loizou, J.] 1975 Nov. 29 IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION PANAYIOTIS ANDREOU PANAYIOTIS ANDREOU, v. Applicant, CYPRUS BROADCA^NO and CORPORATION THE CYPRUS BROADCASTING CORPORATION, Respondent. (Case No. 37/74). 5 10 15 20 25 Administrative Law—Misconception offact—Promotions inthe Cyprus Broadcasting Corporation—Advisory Selection Committee—Minutes of relating to the possession by the applicant of the qualifications of "accounting experience"—Respondents acted under no misconception offact as to the possession by applicant of the said qualification in viewof the contents of the said minutes when taken as a whole and the otherfacts of the case. AdministrativeLaw—Administrative decision—Duereasoning—Decision concerning promotions tothepost ofAccounts Clerk 2ndj\st Grade in the Cyprus Broadcasting Corporation—Taken by the Board of the Corporation by adopting thereportsof anAdvisory Selection Committee—A duly reasoned one—Moreover its reasoning is supplemented by the material in the relevant file and inparticular the minutes of the said Selection Committee. Administrative Law—Administrative decision—Misconceivedreasoning —When does a reasoning appear to be misconceived. Public officers—Appointments and promotions—Paramount duty of an appointing organ to select the candidate most suitable in all thecircumstancesof eachparticular casefor thepost inquestion —Burden on applicant to establish that he possesses striking superiority over interested party—Not established by applicant that he possesses such striking superiority. This recourse was directed against the validity of the promotion of the interested party to the post of Accounts Clerk 2nd/ 1st Grade in the Cyprus Broadcasting Corporation. The promotion in question was effected by the Board of the respondent corporation after adopting the reports of the Advi467 1975 Nov. 29 PANAYIOTIS ANDREOU V. CYPRUS BROADCASTING CORPORATION sory Selection Committee. Thesaid Committee after examining the applications for the said post came to the conclusion that four candidates, one of whom being the applicant were "on principle, suitable as possessing the required qualifications under the scheme,and it wasdecided that theyshould beinvited for an oral interview ". When the interview took place all candidates were examined and the minutes of the selection Committee in respect of the applicant read as follows: " He has the advantages and the examinations contained in the scheme of service, he has not, however, accounting experience, although certain of the duties of the post which he holds have some relation with accounting". 10 Regarding the interested party the Committee stated that though "he does not possess exactly and fully the advantages oftheschemeofservice hepossesses,however, moreaccoun- 15 ting experience than all the candidates ". Counsel for the applicant contended: (

  1. a)That the respondent Corporation acted under a misconception of fact, to the effect that the applicant was considered by them as not possessing experience in 20 accounting work, whereas in fact he did possess such experience. (
  2. b)That the subjudice decision is not duly reasoned. (
  3. c)That the reasoning of the sub judice decision was misconceived. (
  4. d)That the respondent corporation failed in their paramount duty to select the best candidate. Held, (I) withregard to contention (
  5. a)above: Taking the minutes of the Selection Committee as a whole it can besafely deduced that theapplicant wasinfact considered 30 as possessing also experience in accounting work (see pp.473474 of the judgment post). The reference in the minutes that the interested party "possesses, however, more experience in accounting than all the candidates" and the use of the word "more", suggests that the others, including the applicant, were 35 treated as possessing less experience in accounting. Therefore, it cannot be said that the subjudice decision was taken under any misconception of fact. The Advisory Selection Committee 468 25 had madea study of thecandidates,madea comparison between them and made its recommendation to the Board which was, by law, the competent Authority to make the selection for promotion. 5 Held, (II) withregard to contention (
  6. b)above: The subjudice decision is duly reasoned and its reasoning is supplemented by the material in the file, and in particular, the minutes of the Advisory Selection Committee which are duly adopted by the Board. Its reasoning is clear and it contains the concrete factors upon which the Administration based its decision for the occasion under consideration, in such a manner as to render possible itsjudicial control. Furthermore, the reasoning for the sub judice decision is fully supplemented from the material in the relevant file. 10 15 Held,(III) withregard to contention (
  7. c)above: Thejudicial control of misconception of fact is done through the reasoning of the administrative act, whether such reasoning is found in the body of the act or in thefileof the case. The reasoning appears misconceived, whenthereismaterial ignorance or wrong knowledge regarding the existence or non-existence of factual circumstances which were not taken into consideration in thefirstcase or taken intoconsideration in the second. Mis­ conceived reasoning is identical in substance and in form with misconception of fact. Therefore, 'my findings regarding the absence of any misconceptionof fact apply equally totheground of misconceived reasoning which also fails. 20 25 Held, (IV) withregard to contention (
  8. cf)above:

(1)It is a cardinal principle of administrative law that it is theparamountduty of an appointing organ in effecting appointments or promotions, to select the candidate most suitable in all the circumstances of each particular case for the post in question. (See, inter alia, Theodossiou and The Republic,2 R.S.C.C. 44 at p. 47). 30 ι 35
(2)The burden, however, is on the applicant to establish that he possesses striking superiority over the interested party, and in the case in hand,it has notbeen established by the appli­ cant that he possesses such striking superiority (p.476 post). Application dismissed. 469 1975 Nov. 29 PANAYIOTIS ANDREOU V. CYPRUS BROADCASTING CORPORATION 1975 Nov. 29 Cases referred to: Theodossiou and The Republic, 2 R.S.C.C. 44 at p. 47; PANAYIOTIS ANDREOU Phylactou v. The Republic
(1973)3 C.L.R. 444 at p.455; v. CYPRUS BROADCASTING CORPORATION Koraiand Another v. C.B.C.
(1973)3 C.L.R. 546 at p.
  1. Recourse. 5 Recourse against the decision of the respondent to promote the Interested Party to the post of Accounts clerk 2nd/1st Grade in the Cyprus Broadcasting Corporation in preference and instead of the applicant. P. Demetriou, for the applicant. 10 K. Chrysostomides, for the respondent. Cur. adv. vult. The facts sufficiently appear in the judgment of the Court delivered by:A. Loizou, J.: By the present recourse the applicant chal- 15 lenges the validity of the promotion of Andreas Nicolaou (hereinafter referred to as " The interested party") to the post of Accounts Clerk 2nd/lst Grade. The applicant was first appointed in 1964 on an entirely temporary and casual basis for general duties with any division 20 of the respondent Corporation. His appointment was being terminated at intervals of six months and each time reappointed on the same terms and conditions until the 1st August, 1967, when he was appointed to the temporary post of storeman. His duties during the first period of his employment with the 25 respondent Corporation were those of stores clerk. On the 3rd June, 1968 he applied for promotion to thepost of clerk 2nd Grade and Mr. Evripidou, the Chief Accountant, stated that the applicant performed his duties as storeman rather satisfactorily. On the 16th April, 1970 he was appointed as clerk 30 2nd Grade in the Administration Department. The post of accounts clerk 2nd Grade isa combined establishment with accounts clerk 1stGrade. Therequired qualifications under the relevant scheme of service (exhibit 1 "/)") are—• "Leaving Certificate of a Secondary School. A good know- 35 ledge of Greek and English. Experience in accounting work and possession of the certificate of the Intermediate examina470 tion of the L.C.C. in book-keeping or other equivalent qualification will be considered an advantage". .According to the evidence of Mr. Evripidou, between the 1st July, 1969 to the 10th March, 1970, a period of about eight 5 months, some of the duties performed by the applicant were of an auxiliary nature, as far as accounting work was concerned. Between the 10th March, 1970 to the date of his transfer to the Administration Section, namely, the 16th April, 1970, the applicant was performing accounting duties of minor 10 nature. As from the 16th April, 1970 till October, 1973 when the deliberations in respect of the subjudice decision took place, the applicant was not performing accounting duties. According to the same witness, the applicant had acquired little accounting experience during the period he served in the Accounts Depart15 ment under him, but could not say whether at the time the Advisory Committee considered the subjudice promotions, the applicant still possessed such experience, whereas the interested party had been performing accounting duties of somehow more major nature and over a longer period. 20 The interested party was first engaged by the respondent Corporation on the 1st July, 1971 and as from that day he was performing duties of accounting nature in the Accounts Department. According to Mr. Evripidou, after a few weeks of general training and practice, the duties of the interested party 25 included the following which were of a purely accounting nature: Maintenance of the T.V. films, register and contracts files for every distributor; checking all invoices relating to films and prepare the payment vouchers; checking the T.V. films contracts before submission for signature; preparation of 30 payment vouchers and local purchase orders, which were duties performed in the past by more senior officers than the officer holding the post of the interested party at the time. In other words, the interested party had pure accounting experience during the period of his service with the respondent Corporation 35 until the date of his selection for promotion. TheAdvisory Committee whichiscomposed of representatives of the respondent Corporation and the Employees Union, met on the 29th September, 1973 and the 4th October, 1973 under the chairmanship of the Director-General for the purpose of 40 examining the applications for the post of accounts clerk 2nd/ 1st Grade in the Accounts Department. It had before it, six applications, including those of the applicant and the interested 471 1975 Nov. 29 PANAYIOTIS ANDREOU v. CYPRUS BROADCASTING CORPORATION 1975 Nov. 29 PANAYIOTIS ANDREOU V. CYPRUS BROADCASTING CORPORATION party. The applicant was No. 6 on the list of candidates and the interested party No. 1 and the relevant minutes (exhibit 1"C"), read: " After considering the applications in conjunction with the qualifications required by the scheme of service for the post, it has been ascertained that applicants under Nos. 1, 4, 5 and 6, are, on principle, suitable as possessing the required qualifications under the scheme, and it was decided that they should be invited for an oral interview on the 4th October,
  2. 5 10 For the remaining two, Miss Eve Nicolaou and Nicos Nicolaou, the representatives of the staff expressed the view that they should also be invited to the oral interview as possessing the minimum required qualifications for the post. 15 It was, however, maintained by the chief accountant, that so long as there were candidates who were possessing in addition the advantages of the scheme of service for the post, the aforesaid two candidates should be excluded from the procedure, at this stage. 20 In spite of that, it was decided that the said two candidates be invited for oral interview like the rest, as possessing the minimum requirements of the scheme of service". On the 4th October, 1973, the interview took place and all the candidates were examined and on the basis of the 25 collected material, namely, qualifications, experience and the performance ofthecandidates at the oral interview, the Advisory Committee, after referring to each one of the candidates, says the following, in respect of the applicant: " He has the advantages and the examinations contained in the scheme of service, he has not, however, accounting experience, although certain of the duties of the post which he holds have some relation with accounting". Then they give his qualifications which include the L.C.C., Book-keeping Elementary and Intermediate, since
  3. Regarding the interested party Andreas Nicolaou, an employee in the Stores and Accounts Department, the minute reads: 472 30 35 10 15 " He does not possess exactly and fully the advantages of the scheme of service, namely, he has not passed the Intermediate Examinations of the L.C.C. in.Book-keeping, but he has passed the Elementary in Book-keeping and the Intermediate of Elements of Commerce and Arithmetic which partly relate to the L.C.C. Book-keeping (Intermediate). He possesses, however, more accounting experience of all the candidates, given that as from the date of hisemployment with the respondent Corporation (1.7.1971), he performs duties of accounting nature in the Accounts Department". On the 20th December, 1973 the Board, having considered the suggestions of the Advisory Selection Committee and having examined the case of each candidate and having heard the Director-General, adopted the reports of the Advisory Selection Committee and appointed the interested party to the post of accounts clerk as from the 16th November,
  4. The main ground of law relied upon on behalf of the applicant in support of the present application, is that the respondent 20 Corporation acted under a misconception of fact, to the effect that the applicant was considered by them as not possessing experience in accounting work, whereas in fact he did possess such experience. The short answer to this is that the applicant was in fact 25 considered by the Advisory Committee as possessing also experience in accounting work. This is apparent from the relevant minute of the Advisory Selection Committee which has already been quoted verbatim. It transpires therefrom, that the Committee grouped the six candidates, into two cate30 gories. The first one, which included the applicant and the interested party, consisted of those candidates who were found to be, on principle, suitable as possessing the required qualifications under the scheme of service. The second group which consisted of two candidates, were not to be invited for oral 35 interview, and it wasonly on the suggestion of the representatives of the staff that they should also be invited to the oral interview, as possessing the minimum required qualifications for the post. In the end, it was decided that the two candidates shoulJ likewise be invited as the rest, in spite of the stand maintained by 40 the Chief Accountant to the effect that so long as there were "candidates who were possessing", and I stress this, "in addition 473 1975 Nov. 29 PANAYIOTIS ANDREOU v. CYPRUS BROADCASTING CORPORATION 1975 Nov. 29 the advantages of the scheme of service for the post", the said two candidates should be excluded. PANAYIOTIS It is in view of this comparison and distinction made between the two groups that it can be safely deduced that the first group was composed of those possessing not only the minimum 5 required qualifications, but the advantages which consisted of experience in accounting work and possession of the certificate, etc. or other equivalent qualification. Consequently, by being placed in the same category as the interested party, the applicant was considered to have experience in accounting. Furthermore, 10 from the very opening words of the remarks to be found in the minutes, (exhibit 1"C") in relation to himself, " He has the advantages and the examinations which are contained in the scheme of service " i t can be safely said that the advantages to which the Advisory Selection Committee was referring, was 15 the experience in accounting work as the examinations which he passed were specifically referred to by name, in addition to the word "advantages". In my view, the reference thereafter to the fact that he does not possess, however, accounting experience although some of the duties of his post which he possesses 20 have some relation to accounting, must have been a reference to the degree of his experience and not to the complete absence of same. Otherwise, he would not have been placed in the category of those possessing experience in accounting, but would have been treated as Eve Nicolaou who was described as not 25 possessing any accounting experience and therefore was considered unsuitable for the post; also, like Nicos Nicolaou who was found not to be suitable as not possessing the required accounting experience and the advantages of the scheme of service. Therefore, when it is said that the applicant had little 30 accounting experience, according to the witness, it must be taken that it was that experience which the Advisory Committee considered as giving him the advantages under the scheme taken together with the examinations and not that they were considering him as devoid of any accounting experience. The 35 minute should also be taken as a whole, because when they come to the interested party, they conclude their remarks to which we have already referred, by saying, "He possesses, however, more experience in accounting from allthe candidates", and the use of the word "more", suggests that the others, in- 40 eluding the applicant, were treated as possessing less experience in accounting. Therefore, it cannot be said that the subjudice decision was taken under any misconception of fact. The ANDREOU V. CYPRUS BROADCASTING CORPORATION 474 Advisory Selection Committee had made a study of the candidates, made a comparison between them and made its recommendation to the Board which was, by law, the competent Authority to make the selection for promotion. 5 This decision is duly reasoned and its reasoning is supplemented by the material in thefile,and in particular, the minutes of the Advisory Selection Committee which are duly adopted by the Board. Its reasoning is clear and it contains the concrete factors upon which the Administration based its decision 10 for the occasion under consideration, in such a manner as to render possible itsjudicial control. Furthermore, the reasoning for thesubjudicedecision isfully supplemented from the material in the relevant file. Connected with the ground of misconception of fact and the 15 lack of due reasoning, is the ground that the reasoning was misconceived, as the judicial control of misconception of fact is done through the reasoning of the administrative act, whether such reasoning is found in the body of the act or in the file of the case, the reasoning appears misconceived, when there is 20 material ignorance or wrong knowledge regarding the existence or non-existence of factual circumstances which were not taken into consideration in the first case or taken into consideration in the second. Misconceived reasoning isidentical in substance and in form with misconception of fact. 25 Therefore, my findings regarding the absence of any misconception of fact apply equally to the ground of misconceived reasoning which also fails. Aperusal oftherelevantmaterial that wasbefore the Advisory Selection Committee and the Board of the respondent Corpora30 tion, as well as of the relevant minutes, leave no room for the contention that the respondent Corporation failed to carry out a due inquiry reasonably necessary, in the circumstances, for the purpose of ascertaining the correct facts. The last ground of law relied upon on behalf of the applicant, 35 is that the respondent Corporation failed in their paramount duty to select the best candidate. It is indeed a cardinal principle of administrative law that it is the paramount duty of an appointing organ in effecting appointments or promotions, to select the candidate most 40 suitable in all the circumstances of each particular case for the 475 1975 Nov. 29 PANAYIOTIS ANDREOU v. CYPRUS BROADCASTING CORPORATION 1975 Nov. 29 PANAYIOTIS ANDREOU v. CYPRUS BROADCASTING CORPORATION post in question. This was first set out in the much quoted case of Theodossiou and TheRepublic, 2 R.S.C.C., p. 44 at p.47 and reiterated in a long series of cases. (Vide, inter alia, Phylactou v. The Republic
(1973)3 C.L.R. 444 at p. 455 and Korai and Another v. The C.B.C.
(1973)3 C.L.R. 546 at p. 5 566). The burden, however, is on the applicant to establish that he possesses striking superiority ever the interested party, and in the case in hand, it has not been established by the applicant that he possesses such striking superiority. The subjudice decision was reached in a proper exercise of 10 administrative discretion, inasmuch as all relevant factors were taken into account and there has been no misconception of fact, no insufficient or misconceived reasoning, and the respondents did not fail in their paramount duty to select the best candidate. As it is well established, this Court will not 15 interfere with a decision of an administrative organ by substituting its own discretion, so long as a decision was reasonably open to it on the material before it, even if, in exercising its own discretion on the merits, it could have reached a different conclusion. 20 For all the above reasons, the present recourse fails and the sub judice decision is confirmed in accordance with Article 146
(4)(a) of the Constitution, but, in the circumstances, I make no order as to costs. Application dismissed. No 25 order as to costs. 476

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