3 C.L.R. 1981 October 14 [MALACHTOS, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION LOUCAS HAVIARAS, Applicant, THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF INTERIOR AND DEFENCE, Respondent. (Case No. 458/80). 5 10 15 20 Natural Justice—Rules of—Police Force—Promotions—Applicant not promoted though, suitablefor promotion, because of information about his loyalty and his activities during the Coup d'etat— No disciplinary or criminal proceedings instituted against him— And not given opportunity to defend himself—Said information ought not to be taken into account—Rules of natural justice violated—Sub judice promotion annulled. Administrative Law—Public or Police Officers—Promotions—Information about theirloyalty—Whether it canbe taken intoconsideration in considering them for promotion in the absence of criminal or disciplinary proceedings against them. The applicant was a candidate for promotion to the post of Chief Superintendent in the Police Force and was recommended for promotion by the Chief of Police. The respondent Minister, however, has not approved his promotion to the said .post "in view of reservations about his loyalty and his activities during the Coup d'etat", and proceeded to promote two other Police Officers in preference and instead of the applicant. Upon a recourse against the validity of these promotions counsel for the applicant mainly contended that in considering the applicant as a candidate for promotion the respondent Minister was not entitled to take into account the accusations 415 Havfaras v. Republic
(1981)based on information as to his loyality and activities during the Coup d'etat since no disciplinary or criminal proceedings were ever instituted against him to substantiate such accusations; and that by acting as he did the Minister acted contrary to the general principles of administrative law and the rules of natural justice. Held, that since no criminal or disciplinary proceedings were instituted against the applicant in order to be given the chance to defend himself the respondent Minister ought not to have taken into account any information regarding his loyalty and his activities during the Coup d'etat; accordingly the recourse should succeed and the sub judice decision should be declared null and void (Tsangarides and Others v. Republic
(1981)3 C.L.R. 117and Tzavellas and Another v. Republic
(1975)3 C.L.R. 490 at pp. 501 and 502 followed). 5 10 15 Sub judice decision annulled. Cases referred to: Tsangarides and Others v. Republic
(1981)3 C.L.R. 117; Tzavellas and Another v. Republic
(1975)3 C.L.R. 490 at pp. 501, 502. 20 Recourse. Recourse against the decision of the respondent to appoint and/or promote the interested parties to the rank of Chief Superintendent in the Police Force. K. Koushios with A. Haviaras, for the applicant. 25 R. GavrielideSy Senior Counsel of the Republic, for the respondent. Cur. adv. vult. MALACHTOS J. read the following judgment. The applicant in this recourse claims a declaration of the Court that the act 30 and/or decision of the respondent to appoint and/or promote to the rank of Chief Superintendent the two interested parties, namely, Charalambos Spyrou and Stelios Menelaou, in preference and instead of the applicant, which was published in the Weekly Police Orders of 29/9/80, under No. 39/80, is null 35 and void and of no legal effect whatsoever. The relevant facts of the case shortly put are the following: The applicant and the two interested parties were at the 416 3 C.L.R. Haviaras v. Republic Malacbtoe J. material time gazetted Officers in the Police Force holding the rank of Superintendent. Under section 13
(1)of the Police Law,Cap.285, asamendedbyLaw29of 1966,Gazetted Officers are appointed, promoted and discharged by the Minister of 5 Interior. In thepresent case the relevant recommendations for promotion were made by the Chief of Police in his letter dated 19th August, 1980addressed to the Minister of Interior. This letter reads as follows: 10 15 20 "1. Promotion to Chief Superintendent. In this rank there exist today four
(4)vacant posts i.e. two
(2)regular and two
(2)consequential. The last are held by those two who are on leave prior to retirement, C.Orphanopoullos(Nicosia)andCh.Panayiotou(Larnaca), and they can befilledaccordingto the existingregulations.
- For thefillingof these four vacant posts there have been already submitted the relevant recommendationssee E/16/6 dated 29/10/79, which have been approved, except that of L. Haviaras who hasfileda recourse in the Supreme Court. Recommendation has been submitted subsequently for Mr. H. Spyrou see E/16/6 of 22/1/1980 which was also not approved—see P(P) 210 of 26/1/
- Please reconsider these two cases and, particularly, the second one, for which, as I believe, no obstacle exists 25 For thefillingof the other two vacant posts in this rank they are recommended:
(1)St. Menelaou (Police Headquarters) who is about to retire shortly and, xxx xxx . xxx" It isclearfrom theaboveletter oftheChief ofPolicethat the 30 applicant in this recourse was recommended for promotion prior to the recommendation of the interested parties. It is further not disputed that the applicant, who is by five years senior to the interested parties, was, on the whole, the best candidate. The reasonfor whichhewasnot promoted appears 35 in paragraph 3 of the opposition and is as follows: "The Minister did not approve the promotion of the 417 Malachtos J. Hariaras v. Republic
(1981)applicant in view of reservations about his loyalty and his activities during the Coup d'etat". The main argument of counsel for applicant is that the Minister in considering theapplicant as a candidatefor promo tion,was not entitled to take intoaccounttheaccusations based 5 on information as to his loyalty and activities during the Coup d'Etat since no disciplinary or criminal proceedings were ever instituted against him to substantiate such accusations. He submitted that mere rumours are not sufficient and that the Minister in acting in the way he did, he acted contrary to the 10 general rules of administrative law and the rules of natural justice. In a recent case, namely,KyriakosTsangarides andOthers v. The Republic
(1981)3 C.L.R. 117, Ihad theopportunity todeal with a similar matter. That was a case for promotion to the 15 rank of Sergeant in the Police Fire Service; and though they were recommended for promotion by the Chief Fire Officer and the appropriate Selection Board, they were not promoted to the above rank for "reasons of loyalty". The information regarding their loyalty was supplied to the respondent 20 Chief of Police by the Central Information Service known as ΚΥΡ and was to the effect that their loyalty was doubted. It was held that the Chief of Police ought not to have taken into account the report of the Central Information Service as tothedoubts thatexisted regarding theloyalty of theapplicants; 25 and that, therefore, the recourse must succeed and the decision complained of must be declared null and void. Reference is also made in the above case to the case of Tzavellasand Anotherv. The Republic
(1975)3 C.L.R. 490 at pp. 501 and 502. At page 501 we read: 30 "Now, the only point that falls for consideration in the case of applicant No.2 is whether the report of the investi gating officer Supt. Demetriou, as well as the minute of the Attorney-General, could be taken into account by the Selection Board and the Chief of Police in considering 35 this applicant for promotion in view of the fact that no criminal or disciplinary proceedings were taken against him. If any such proceedings were instituted against this 418 3 C.L.R. 5 Haviaras v. Republic Malachtos J. applicant then he would be given the chance to defend himself and deny the allegations against him as he did in his statement to the investigating officer. There can be no doubt that if the aforesaid elements were not taken into account by the Chief of Police, applicant No. 2, to say the least, stood a chance to be promoted instead of the interested parties". And further down at page 502 we read: 10 15 20 "It is a fundamental principle of administrative law that when an enquiry against a public officer is carried out but on advice no disciplinary or other proceedings are taken against him, or when such proceedings are taken but the officer is at the end acquitted, such facts should not in case of his being considered for promotion, be taken into account. Furthermore, the fact that disciplinary proceedings are pending against a public officer without any substantial criteria as regards the basis of the imputed accusations against him, are also not taken into account in cases of promotion". Needless to say that I still maintain the views expressed in the above two cases and for these reasons this recourse succeeds and the decision complained of is declared null and and void and of no legal effect whatsoever. On the question of costs, the respondent authority is adjudged 25 tojpay to the applicant £25.—against his costs. Sub judice decision annulled. Order for costs as above. 419