(1981)1981 December 19 [A. Loizou, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION, COSTAS PROTOPAPAS AND OTHERS, Applicants, v. THE REPUBLIC OF CYPRUS, THROUGH THE EDUCATIONAL SERVICE COMMITTEE, Respondent. (Cases Nos. 319/80, 320/80, 346/80). Public Officers—Promotions—Head of Department—Recommendations—Disregarded without giving reasons for so doing—Sub judice promotions annulled. Public Officers—Promotions—Qualifications—Constituting an advantage under the relevant scheme of service—Need for special 5 reasoningif candidatepossessingthem isnotselectedfor promotion. Administrative law—Administrative acts or decisions—Reasoning— Public Officers—Promotions—Recommendations of Head of Department—Disregarded without giving reasonsfor so doing— Officer possessing qualifications, which constituted an advantage 10 under the schemes of service, not selected without giving special reasoning—Sub judice promotions annulledfor lack of due reasoning. The applicants, whowereAssistant Headmasters in Elementary Education, challenged the validity of the decision of the respo- 15 ndent Committee to promote the interested parties to the post of Headmaster in the Elementary Education. One of the grounds in support of the recourses was that there was lack of due and cogent reasoning in the sub judice decision. Counsel for the respondent Committee conceded that the sub judice decision 20 was defective for lack of due reasoning inasmuch as in the case of the applicant in recourse No. 320/80 the recommendations 456 \ 3 C.L.R. 5 10 15 20 25 30 35 \ \ Protopapas v. Republic of the Head of the Department were disregarded and no specific reasons were given for so disregarding them. Moreover this applicant possessed qualifications, which according to the relevant schemes of service constituted an additional qualification and no cogent reasons were given for disregarding them. Held,
(1)that the recommendation of a Head of Department, or other senior responsible officer, especially where specialised knowledge and ability are required, is a most vital consideration not lightly to be disregarded; that if the recommendation cannot be acted upon then the Head of Department, or other officer concerned should be invited by the respondent Committee to explain hisviewsbefore it; that, if, nevertheless, the Committee still feels it cannot act on such recommendation, the reasons for not so acting should be clearly recorded in the minutes of the committee, for the protection of the legitimate interests of the candidates under Articles 151 and 146 of the Constitution (see, inter alia, Theodosiou v. The Republic 2 R.S.C.C. 44); that when an applicant possesses qualifications, which in accordance with the relevant scheme of service are considered an additional qualification, there arises the need for special reasoning if the candidate possessing them is not selected for promotion in spite of them (see, inter alia, Vasso Tourpekki v. The Republic
(1973)3 C.L.R. p. 592); that the legal position being so and in view of the relevant to these issues facts of the case which are not disputed this Court agrees that the sub judice decision should be annulled for lack of due reasoning which renders it contrary to the well established principles of administrative law and thus contrary to Law in the sense of Article 146.1 of the Constitution.
(2)That in the light of this result the two other recourses, under No. 319/80 and 346/80 tried together with this one were not proceeded with and with the leave of the Court were withdrawn and dismissed accordingly with no order as to costs, Recourse No. 320/80 succeeds; Recourses 319/80 and 346/80 withdrawn and dismissed. Cases referred to: Theodossiou v. The Republic, 2 R.S.C.C. 44; Tourpeki v. The Republic,
(1973)3 C.L.R. 592. 457 Protopapas τ. Republic
(1981)Recourses. Recourses against thedecision of therespondent Educational Service Committeeto promotetheinterested parties to the post of Headmaster in the Elementary Education in preference and instead of the applicants. 5 A. S. Angelides with Ch.Ierides, for the applicants in Case Nos. 319/80 and 320/
- /. Typographos, for theapplicant in case No. 346/
- G. Constantinou (Miss), Counsel of the Republic, for the respondent. 10 L. Kythreotis,for interested party M. Vrionides. X. Sylburis, for interested party Elli G. Sepou. Cur. adv. vult. A. Loizou J. read the following judgment. The applicants are all Assistant Headmasters in the Elementary Education 15 and they challenge by theserecourses thepromotionsof Michael Vrionides, Chrysanthos Zographos, Ellie Saranti, Kyriaki Papaleontiou, and Ellie Sepou, (hereinafter to be referred toas theinterested parties),to Headmastersinthe ElementaryEduca tion. 20 These three recourses have, by direction of the Court made with the consent of the parties, been heard together as they present common questions of law and fact. The post of Headmaster in ths Elementary Education is a promotion post from that of Assistant Headmaster. The 25 filling of these posts was approved by the Ministry of Finance and its approval was forwarded to the respondent Committee by letter of the Director General of the Ministry of Education, dated 27th March
- (See Appendices (D) and (C) respe ctively attached to the Opposition.) 30 The respondent Committee interviewed the candidates on the 5th June 1980 and promoted to the post in question the interested parties. The relevant minutes r^ad as follows: "Promotions to the post of Headmaster. The Educational Service Committee having studied 35 the personal and confidential files of all the Assistant Headmasters who are eligible for promotion to the post of Headmaster and taking intoconsideration the provisions 458 \ 3 C.L.R. 5 10 » Protopapas v. Republic A. Loizou J. of the Law and the schemes of service and the suggestions of the Head of the Department (See file 365/68/2) decides unanimously that on the basis of the merits, qualifications and seniority of the candidates, the aforementioned recommendations of the Head of the Department, the service reports and the opinion which its members formed for each one of the candidates during the personal interviews, the following Assistant Headmasters are the more suitable for promotion to the post of Headmaster, hence it decides to offer them promotion to the post of Headmaster in the Elementary Education as from the 1st September 1980..." Counsel for the applicants have argued the cases of their respective clients on a number of grounds. One of them being the lack of due and cogent reasoning. 15 With regard to this ground counsel for the respondent Committee had conceded that the subjudice decision is indeed defectivefor lack of due reasoning inasmuch asinthecaseof Christos Theophilides, applicant in Recourse Number 320/80, the recommendations of the Head of the Department were disregarded 20 and no specific reasons were given for so disregarding them. Moreover this applicant possessed qualifications, which according to the relevant Scheme of Service constituted an additional qualification and yet no cogent reasons were given for disregarding them. 25 Counsel for the interested parties have not disagreed with this stand taken on behalf of the respondent Committee. The aforesaid approach is a correct one and is born out from what was held in a number of cases by this Court. As far as the disregarding of the recommendations of the Head of the 30 Department and the failure to give reasons for doing so, we havethecat,eof Michael Theodosiouand TheRepublic,2R.S.C.C. p. 44 where it was held that the recommendation of a Head of Department, or otter senior responsible officer, especially where specialised knowledge and ability were required, was 35 a most vital consideration not lightly to be disregarded. If the recommendation could not be acted upon then the Head of Department, or other officer concerned should b? invited by the Public Servics Commission to explain his views before it; and, if, nevertheless, the Public Service Commission still felt it could 459 A. Loizou J. Protopapas v. Republic
(1981)not act on such recommendation, the reasons for not so acting should be clearly recorded in the minutes of the Commission, for the protection of the legitimate interests of the candidates concerned, Arts. 151 and 146;" This principle has been consistently followed by this Court 5 in a number of cases. (See,interalia,Evangelouv, The Republic
(1965)3C.L.R. p.292; Nisiotisv. The Republic
(1977)3C.L.R. 388, at p. 397; Andreou v. The Republic
(1979)3 C.L.R. 379, at p. 388). With regard to the question of an applicant possessing quali- 10 fications, whichinaccordancewiththerelevantschemeofservice are considered an additional qualification and the need for special reasoningif the candidate possessingthemisnot selected for promotion in spite of them, reference may be made to the cases of Vasso Tourpeki v. The Republic
(1973)3 C.L.R. p. 15 592; and Nisiotis v. The Republic (supra). Thelegalposition beingsoandinviewofthe relevantto these issues facts of the case which are not disputed Iagreethat the subjudicedecision should beannulled for lack of due reasoning which renders it contrary to the wellestablished principles of 20 administrative Law and thus contrary to Law in the sense of Article 146.1 of the Constitution. In the result recourse No. 320/80 succeeds but in the circumstances there will be no order as to costs. In the light of this result the two other recourses, under No. 25 319/80and 346/80triedtogetherwiththisonewerenotproceeded withand withtheleave oftheCourtwerewithdrawnanddismissed accordingly with no order as to costs. Sub judice decision inrecourse 320/80 annulled. Recourses319/ 30 80 and346/80 withdrawn and dismissedwithno orderas to costs. 460