clr/1977/1977_3_61.pdf

(1965)3 C.L.R. 292 at p. 297), in the present case comparison of their respective confi­ dential reports was necessary in view of what was stated by the Commission in their said letter namely that the Director 35 stated that the interested parties were the best and that the Commission found that that statement was in agreement with their respective annual confidential reports; that this sta­ tement was inconsistent with the overall picture presented by the confidential reports of the applicant and 12 of theinterest- 40 ed parties; and that, therefore, the recourse of the applicant against these interested parties succeeds, as the Commission actedunder a misconception of fact. 62

(2)That lack of clarity in the minutes of a collective organ may deprive the decision reached of due reasoning (see Kyprianou and Others (No. 2) v. Republic

(1975)3 C.L.R. 187 at pp. 193-194); that the reasoning in .the said letter of the Commission that the interested parties were the best, cannot be supplemented from the annual confidential reports of 12 of -the interested parties; that having in mind the minutes of the Commission, the said letter and the annual confidential re­ ports of the parties, the decision of the Commission was also not duly reasoned; that the vague reasoning which has been recorded in an omnibus manner in the minutes and in the said letter appear to be contradicted by the relevant administrative records in the cases of 12 of the interested parties; and that, accordingly, the recouse of the applicant against these interest­ ed parties succeeds for .thisreason too. Sub judice decision partly annulled. Cases referred to: Hji Gregoriou v. The Republic

(1975)3 C.L.R. 477; Aristocleous v. The Republic

(1974)3 C.L.R. 321 at p. 326; Evangelou v. The Republic

(1965)3 C.L.R. -292 at p. 297; Petrondas v. The Attorney-General

(1969)3 C.L.R. 214; Kyprianou and Others (No. 2) v. The Republic

(1975)3 C.L.R. 187 at pp. 193-194. Recourse. Recourse against the decision of the respondent Public Service Commission to promote the interested parties to the post of Clerk 2nd Grade in preference and instead of the applicant. P. Theodorou, for the applicant. CI.Antoniades,Counsel of the Republic, for there­ spondent. Cur. adv.vult. The following judgment was delivered by:HADJIANASTASSIOU, J.: By the present recourse the 35 appUcant seeks a declaration that the decision of thePub­ lic Service Commission to promote 23 officers listed in Schedule "A" attached to the application to the post of Clerk Grade B, General Clerical Staff, in preference to 30 and instead of the applicant is null and void and of no effect whatsoever. 63 1977 Mar. IS Νπα IOANNOU v. REPUBLIC (PUBLIC SERVICE COMMISSION) 1977 Mar. 15 NIKI IOANNOU v. REPUBLIC (PUBLIC SERVICE COMMISSION) It is convenient to state at this early stage that during the hearing of the case, the recourse against six of theinterested parties, namely O. Hadjipanayiotou, S. Myrianthi, I. Karaniki, E. PhiUppou, E. Selipa and L. Michael was withdrawn and therefore, therecourse stands against theremaining 17officers only. From the comparative table showingparticulars of Government Service and qualifications of the applicant and the interested parties it appears that the appUcant was first appointed in the Public Service as Assistant School Clerk and served as such from 1957 to 13.8.63.Between 14.8.63 and 31.3.65, she served as Clerical Assistant on an unestabUshed basis and from 1.4.65 until today on an estabUshed basis. As it appears from the appUcation, when the appUcant wasfirst appointed in 1957,shewasposted in theDepartment of Education.After independence, i.e.after the 16th August, 1960,that post cameunder theGreek Communal Chamber. In 1964 because the functions of the Greek Communal Chamber were taken over by the Ministry of Education, the applicant continued serving under thesaid Ministry. On October 25, 1971,shewastransferred tothe District Office of Nicosia where she is still serving until today. 15 Under the relevant schemeof service, thepost of Clerk, 2nd Grade, is a promotion post from the lower post of Clerical Assistant. Officers should have a minimum of 6 years' servicein thepost of ClericalAssistant of which at least two in an estabUshed capacity and should havepassed the exams in General Orders or Financial Instructions in the case of officers employed mainly on accounting duties. 25 On April 20, 1972,theCommission metin order to fill the existing vacancies in the post of Clerk 2nd Grade— approval for such filling having previously been obtained 35 from the Minister of Finance, and the said minute of the Public Service Commission reads as foUows:".. .The Commission considered thoroughly themerits, qualifications, experience and length of service of all eUgible Clerical Assistants as reflected in their 40 64 30 personal files and in their annual confidential reports. Bearing in mind'all theabove, aswell as theviews expressed by theDirector of the Department of Personnel as regards the candidates' actual merit and abilities, and having regard to the totaUty of circumstances pertaining to each candidate, the Commission decided that the following officers were on the wholethe best and that they bepromoted to thepermanent post of Clerk 2nd Grade w.e.f. 1.5.72. ..". Then the names of the 29 officers, including those of the interested parties who had been selected for appointment were given; and the minute further reads:"The claims of the remaining candidates were considered by the Commission but they were not found to be so strong as those of the officers selected for promotion". The appUcant, feeUng aggrieved, claims that (

1. a)having regard to the totality of circumstances and especially the superior seniority, experience, merit and qualifications of. appUcants vis-a-vis theinterested parties, the said decision was taken in excess and/or abuse of powers; and'(
2. b)the decision of the Public Service Commission was not duly reasoned. The ground of seniority was abandoned by counsel during the hearing of the case. I think I shouldstateat thisstagethat thepoint thatthe decision was not duly reasoned arose during the second hearing of the case. Counsel for the applicant admitted that hedidnot specifically plead it, but heargued that the ground of law that the decision was taken in excess or in abuse of power included lack of due reasoning. This contention of counsel was not challenged by the other side. During the same hearing, the question arose also as to what were the views expressed by the Director of Personnel asregards "the candidates' actual merits and abilities" as stated in the minutes of the PubUcService Commission (exhibit19).As aresult of this,counsel for therespondent wrote to thePublic ServiceCommission asking them what were the views of the Director of the Department of Personnel.The answer of the Commission,.dated February 1, 1974 (marked exhibit 1)was in theseterms:65 1977' Mar. 15 NIKI IOANNOU v. REPUBLIC (PUBLIC SERVICE COMMISSION) 1977 Mar. 15 NIKI IOANNOU v. REPUBLIC (PUBUC SERVICE COMMISSION) "I refer to your letter regarding Recourse No. 216/ 72, andinform you asfollows:(
3. a)The PubUc Service Commission at its meeting dated 20.4.72 examined theappUcation of the74 candidates, including that of the appUcant, for appointment to the post of Clerk, 2nd Grade, General Clerical Staff. (
4. b)The President and the members of the Commissionregret that they areunable torecalltheexact words which the Director of the Department of the Personnel used during the meeting of the Commission dated 20.4.72 in relation to the appUcant and the interested parties. However, they remember that the said Director, in giving reasons, recommended the interested parties for promotion havingpreviouslysaid that theywerethebest of thecandidates. The Commission accepted the recommendations of the Director which were consistent with the contents of the relevant annual confidential reports, and decided not to promote the appUcant who in any event, was not recommended for promotion". Counsel for the appUcant argued that neither the minutes of the PubUc Service Commission (exhibit 19) nor the aforementioned letter (exhibit 1) amounts to duereasoning of the said decision. Moreover, counsel argued that exhibit 1 stressesmorethepoint that thejsaid decision wasnotdulyreasoned, and that theCommission actedunder amisconceptionof fact. Counsel for the respondent, on the other hand, conceded that the minutes of the PubUc Service Commission alone (exh. 19) do not provide sufficient reasoning, but argued that sinceexhibit 19 refers to the views of theDirector of theDepartment of Personnel, thisreference links exhibit 1, which exhibitprovides the reasoning to thesaid decision. In the recent case of HjiGregoriouv. The Republic,

(1975)3 C.L.R. 477, it was stated in relation to the annual confidential reports at p. 483 that "it is necessary, in deciding on the merits of candidates, to look at past annual confidential reports, and especiaUy at the mostrecent ones, in order to evaluate the performance of the 66 candidates during their careers as a whole". And in the case of Aristocleous v. The Republic,

(1974)3 C.L.R. 321 at p. 326, it was stated that "different reporting officers inevitably use different standards in their evaluation of the performance of the various officers serving under them". It is a fact that appUcant and interested parties were posted at various departments and had different reporting officers. But it is necessary in this particular case in order to examine whether the Commission acted under a misconception of fact in view of its statement contained in exh. 1, i.e. that the view of the Director that theinterested parties werebetter than the applicant was inagreement with their respective annual confidential reports, to make a comparison between their annual confidential reportsandthatof theappUcant. Starting with the applicant, it appears that for the year 1966-1967, she was given a special confidential report (commonly known as abluereport) containing favourable comments with regard to her work by her reporting offi20 cer Mr. Georghiades. Her general assessment appears on the high side and she has a recommendation for promotion. The countersigning officer Mr, Adamides, however, was of the view that the grading was too generous. In 1967-1968 the applicant again has a blue report by 25 the same reporting officer with favourable comments about her work and arecommendation for promotion, but Mr. Adamides again statesthat hewasnot convinced that a bluereportwaswarranted. For 1968-1969 the appUcant has another blue report 30 by the same reporting officer with a recommendation for promotion and favourable comments, but again Mr. Adamides stated that in his opinion thegrading was toogenerous. In 1969 thereporting officer Mr. Georghiades stressed that "this officer is qualified to handle and carry out 35 duties bigger than her present post. Sheis rather difficult to co-operate with her colleagues but this is partly due to her feeling of doing work lower to her capabUities". Then under the heading "General Assessment" she is rated as "very good" in four items, "very thorough" in one, "sa40 tisfactory" in two items, "exceUent" in one, very devoted to duty, and her general inteUigence is described as "very 67 1977 Mar. 15 NIKI IOANNOU v. REPUBUC (PUBUC SERVICE COMMISSION) 1977 Mar. 15 NIKI IOANNOU v. REPUBLIC (PUBLIC SERVICE COMMISSION) high". The counter-signing officer agrees, and no recommendation for promotion appears in that year. In 1970 again the same reporting officer states that "sheisaverycompetent officer undertaking dutiesbeyond her post as Clerical Assistant 3rd grade. I suggest she be 5 promoted to a higher grade". Her reliabihty is described as "very reUable", her thoroughness as "very good", adaptability as "satisfactory", accuracy as "very good", her initiative as "very good", courtesy in dealing with the pubUc "very good", competence in present work "very 10 high", devotion to duty "very good", abiUty to co-operate with colleagues "good", and general intelUgence "very high". The counter-signing officer agrees with this assessment. Thereisnoreport inher file for theyear 1971.In 1972 15 after she wastransferred to theDistrict Office of Nicosia, Mr. Kythreotis, the reporting officer, states in her report that "during theshort time shehas been in this office she has done good work. Sheis anxious to bepromoted either in the clerical staff or in another post. I have not, how- 20 ever, during the short time I have known her, been able to assess her abiUties and express a considered opinion". Therefore, from 1967-1969 the applicant has threespecial reports with recommendation for promotion; no recommendation for promotion appears in 1969; in 1970 25 she is again recommended for promotion; and no report appears in

1. Looking at the confidential reports of interested party No. 4, Nitsa Kyza (exh. 7) it appears that from the year 1967 to the year 1971 her general assessment appears to 30 be very good, but she has neither a recommendation for promotionnor abluereport. Interested party No. 6, Iro Kontolemi (exh. 8) has no blue report, and from 1967-1971 has one recommendationfor promotiononly,in
2. 35 Interested party No. 11,Lenia Alkiadou again has no blue report or any recommendation for promotion in any year. From thegeneral assessment it appears that sheis a very good officer, but nevertheless, the overall pictureof theappUcant appearstobebetter. 40 68 Interestedparty No. 12, Aphrodite Phylactidou, has no blue report or recommendation for promotion in her tile. Interested party No. 13 (exhibit 12) Alexandra Kyriacou has no blue report in any of the years of her service 5 or recommendation for promotion. Before thepromotion in question, i.e. in the year 1971, she was rated as "ex­ cellent" in five ratable items, "very good" in three items, she is described as "adaptable" and her general intelli­ gence is "above average". In 1970, her reporting officer 10 Mr. Savvides stated that she is "a competent, hardwork­ ing andrehable officer". Interestedparty No. 16, Irene PhiUppidou (exhibit 13) before thepromotion in question was attached to theMi­ nistry of Education. From the year 1968 till 1971 her re15 porting officer was Mr. MichaeUdes, who states in 1969 and 1970 that "she is a very good officer in aUrespects". In the year before the promotion, she is rated under the general assessment as "exceUent" or "very good", and her ι general intelligence "above average". 20 Interested party No. 19, StavrouUa Riga (exhibit 15) from 1964 untiljust before thepromotionin question was attached to the Nicosia General Hospital. In theyear be­ fore the promotion she is rated under general assessment as "very good" and "excellent" and "intelligent". Dr.Fes25 sas stated inher report that "Miss Riga is an efficient and conscientious officer". The countersigning officer states "I agree with the above". Norecommendation for promo­ tion and noblue report appears in thefile of this interest­ ed party. 30 Interested Party No.22 (exhibit 17) is Andreas Kouis. Before the promotion in question, that is in 1971 he was rated as "very good" in eight ratable items and"exceUent" in two. Hisreporting officer states that "he is a very good and active employee. He is reUable and progressive". 35 Going though his confidential report and comparing it with that of the applicant, I observe that norecommenda­ tion for promotion or a blue report appear therein. Interested Party No. 23, Andreas Aristides, (exhibit 18) has been described by his reporting officer Mr. Ky40 threotis for the years 1965 to 1970 as "an average offi69 1977 Mar. 15 NIKI IOANNOU v. REPUBLIC (PUBLIC SERVICE COMMISSION) 1977 Mar. 15 NIKI IOANNOU v. REPUBLIC (PUBLIC SERVICE COMMISSION) cer". For 1971 he has a different reporting officer, Mr. Papadopoullos, who states that "the officer is always trying his best, to the maximum of his abiUties to carry out the work assigned to him in a satisfactory manner". No recommendation for promotion and no blue report appears. Interested Party No. 17, Andreas Georghiou (exhibit 14)doesnot appear tobebetter thantheappUcanthaving regard to their respective confidential reports for the following reasons:In 1968 the appUcant obtained a bluereport whilst theinterestedparty's assessment is"verygood" in four items, "good" in three, accuracy "exceUent", initiative "fair" and general intelUgence "average". In 1969 the appUcant's general assessment appears tobebetter.In 1970noreport appearsfor thisinterestedparty.AppUcant has a very good report in respect of 1970 with a recommendation for promotion. Applicant does not have a report in respect of 1971 in her file whilst the interested party's report for this year appears to be agood one,with a recommendation for promotion byhiscountersigning officer. It is true thatin thecaseof Evangelou v.TheRepublic

(1965)3 CX.R. 292 at p. 297, it was stated that such confidential reports should be regarded as constituting part of the overall picture of the merits of each candidate 25 which theCommissionhadto weigh asawhole;butinthe present case comparison of their respective confidential report was necessary in view of what was stated by the Public Service Commission in their letter dated 1st January, 1974,thatistosaythat theDirector stated that the 30 interested parties were the best and that the Commission found that that statement wasin agreement with theirrespective annual confidential reports. Having in mind the above, I have reached the conclusion that this statement wasinconsistent with the overaUpicture presented by the 35 confidential report of the appUcant and these interested parties and, therefore, the recourse of the appUcant against the above interested party succeeds, as the Commission acted under a misconception of fact. Anna Georghiou, interested party No. 9 (exhibit9) ap- 40 pears to be a verygood officer. For theyear 1971 shehas 70 an exceUent report, under general assessment sheis rated as "exceUent" under aUitems, whilst her countersigning officer states that "she definitely deserves promotion". In her report dated January 20, 1970, to January 20, 1971, her reporting officer states "I suggest that sinceshe is a very efficient officer her case should be considered with the utmost consideration"; and under allitems of the general assessment she is again rated as "exceUent". In her reports for previous years she appears again to be a very good officer, her rating being on the high side. So, inspiteof thefact that thisofficer doesnot have,abluereport, nevertheless, because her overaUpictureis such that one finds it difficult to state that the PubUcServiceCommission acted under a misconception of fact when it preferred thisinterestedpartytotheappUcant. Interested party No. 20,Maria Georghiou (exhibit16), before thepromotion in question, was attached to theDepartment of the Ministry of Agriculture. Her reporting officer Mr. MichaeUdes recommended her in the year 1971 for promotion and she is rated as "exceUent" in all items.For theyear 1970sheisrated as"verygood"in all items, and the same reporting officer comments that she is "very good"; for the year 1969, and under general assessment she is rated as "excellent" in all items. Furthermore, very good comments and rating on the high side appears also in her confidential reports of previousyears. I shall now deal with interested parties T. Boyadjian, (exhibit4), I. Partaki (exhibit6) and Liza Kalogery (exhibit 5) together. These interested parties have ablue report for accelerated promotion for the year 1971,i.e.exactly the year previous to thepromotion. They are posted at different departments and had different reporting officers. Their performance in the previous years was very good. So regarding the last five interested parties, it does not appear that the PubUc Service Commission acted under a misconception of fact, and, therefore, the recourse againsttheseinterestedparties fails. Having had the opportunity of going through the annual confidential reports of the candidates, I observe that 40 the reasoning in the letter of the P.S.C. (exh.-1) that the interested parties were the best, cannot be supplemented from the annual confidential reports of the interested par71 1977 Mar. 15 NIKI IOANNOU v. REPUBLIC (PUBUC SERVICE COMMISSION) 1977 Mar. 15 NIKI IOANNOU v. REPUBLIC (PUBLIC SERVICE COMMISSION) ties in the cases where the recourse of the appUcant succeeds. Having in mind exhibit 19 and exhibit 1 and the annual confidential reports of the parties, I hold that the decision of the PubUc Service Commission was also not duly reasoned, and that the vague reasoning which has 5 been recorded in an omnibus manner in the minutes of 20.4.72 (exhibit 19) and in exhibit 1 appear to be contradicted by the relevant administrative records in the cases where the recourse succeeds. (Vide Christos Petrondas v. Attorney-General,

(1969)3 C.L.R. p. 214). 10 Furthermore, this verypoint wastouched in thecaseof Kyprianou andOthers(No. 2) v. The Republic (P.S.C),

(1975)3 C.L.R. 187,in which I said at pp. 193-194:"That clarity in theminutes of proceedings of anadministrative organ is of theutmost importance,ithas 15 been stated time after time, and I need only repeat that lack of clarity of such minutes and records of proceedings may deprive the decision reached of due reasoning as claimed by counsel. Of course, the absenceof clarity, onjudicial review,makes the task of 20 this Court very difficult indeed, particularly sowhen another Court has lucidly said so over the same topic. I am aware, of course, that the absence of proper records of proceedings is not necessarily byitself a ground for annulment, and the Court may proceed 25 to examine the nature of the inquiry carried out by the administration before the taking of its relevant decision. It seems that in the absence of any legislative provision regulating the matter, the non-keeping of 30 minutes.by a collective organ does not always (a question to be decided on the merits of each case) vitiate a particular administrative decision, except, I repeat, if the absence of such minutes or clarity in the minutes tends to deprive the decision of due rea- 35 soning. Having gone into the decided cases, it appears that mainly the requirement of keepingwritten records isprimarily for purposes of good administration. (See HadjiLouca v. The Republic,

(1969)3 C.L.R. 570 atp.574;and KoraiandAnother v.The 40 Cyprus Broadcasting Corporation,

(1973)3 C.L.R. 546 at pp. 564-565; also KyriakopouUos on 72 Greek Administrative Law, 4th edn. Vol. 2 p. 26 and Stassinopoullos on the Law of Administrative Acts,

(1951)223, as weU as the Decisions of the Greek CouncU of State, in Cases 166

(29)and 107

(36). From the totaUty of the material before me, in­ cluding the observations of the trial Court in the cases to which I have referred to earlier in this judg­ ment, I have reached the conclusion that non-clarity of the minutes deprives the decision of the Commis­ sion of due reasoning and I find myself in agreement with counsel that the Commission has failed to con­ sider the appUcant. Having reached this conclusion that the Commis­ sion has acted in abuse of their powers, I am also inclined to state for the guidance of the administra, tion that although there is a presumption in favour of the correctness of the findings of fact by the ad­ ministration, in this case/once counsel has succeed­ ed in rendering possible the existence of misconcep­ tion of fact on the part of the Commission, I have a doubt in my mind even about the correctness of the findings of fact by the administration. Therefore, as I have already indicated earlier, I feel that the proper way was to direct production of further evidence, but because counsel on behalf of the respondent assured me that the Commission, because of lapse of time were unable to add anything further, I decided to annul the sub judice decision so that the administra­ tion may ascertain the actual circumstances in a way not leaving doubts. (Pierides v. The Republic,

(1969)3 C.L.R. 274 at p. 290; also Stassinopoullos on the Law of Administrative Acts, 1951 ed. at p. 305)". Before concluding this case, it is necessary to state that although this case was reserved on October 27, 1975, ne­ vertheless, the case was re-opened on March 15, 1977, because counsel for the Republic expressed the view that by inadvertence two confidential reports, that of interest­ ed parties AndrouUa Loiza, and Evanthia Christodoulou, exhibits 20 and 21, were not produced before the Court. The Court, having re-opened the case heard further argu­ ment. 73 1977 Mar. 15 ΝΓΚΙ IOANNOU v. REPUBLIC (PUBUC SERVICE COMMISSION) 1977 Mar. 15 NIKI IOANNOU v. REPUBLIC (PUBUC SERVICE COMMISSION) Having gone through the confidential reports of these two interested parties, I have reached the conclusion that as in their files there was neither a recommendation for promotion nor a special confidential report, the recommendations of the Head of the Department were not consistentwith their administrative reports and, therefore, the recourse succeeds in relation to these two interested parties also. For the reasons I have given at length, I have come to the conclusion that the recourse succeeds with regard to the interested parties already referred to in this judgment, anditisdismissed against interestedparties A.Georghiou, M. Georghiou, T. Boyadjian, I. Partaki, L. Kalogery. In the circumstances of this case, I am not prepared to make an order for costsin favour of the applicant. Sub judice decisionpartly annulled. No orderasto costs. 74