(1982)1982 February 22 [A. Loizow, J] IN THE MATTER OF ARTICLE 146OF THE CONSTITUTION ANDREAS GEORGHIADES, Applicatt, THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC SERVICE COMMISSION, Respondent. {CaseNo. 248/80). Public Officers—Promotions—Combined establishment—Not made after comparison of the merits of the various candidates—But only on the basis whether officer concerned satisfies the requirementsof thegeneral directions madeby the Council ofMinisters undertheproviso to section44(l)(
- o)of the PublicService Law, 5 1967 {Law 33/67)—Decision not to promote applicant because of contentsof confidential report which wasfound tobe invalid— Annulled. Administrative Law—Discretionary powers—Vested by legislation in an administrativeorgan—Cannot be assumed or regulated, 10 except withregardto legality, by a hierarchically superior organ —Public Officers-—Confidential reports—Within theunfettered discretion of the reporting andcountersigning officers—Repcrtirig officerin assessing performance of applicant influenced by d'rectives or instructionsfrom his superiors to use stricter criteria \5 in the evaluationof officers—Said directives extraneous matters which could not and ought not to be taken into consideration bythereportingofficer—Andbysodoingheexercisedhisdiscretion in a defectivemannerthus actingcontraryto law and in abuse ofhispowersrenderingthe confidentialreportinquestioninvalid— 20 Section 45 of the Public Service Law, 1967 {Law 33/67). Administrative Law—Administrative acts or decisions—Composite administrativeact—Intermediate act—Us invalidityleadsto the 16 3 CL.R. Georghlades τ.Republic 5 invalidity of all subsequent actsfor the issue of which the invalid act constitutes a prerequisite—Public Officers—Promotions—• Non-promotion of applicant due to contents of confidential report —Said confidentialreportfoundtobeinvalidlyprepared—Decision not to promoteapplicant annulled. 10 Public Officers—Confidential reports—Preparation—Evaluation of performance of officers—-Within unfettered discretion ofreporting aruicountersigning officers—Exercise of this discretion cannot be regulated by any directives or instructions of a hierarchically superior organ. 15 20 25 30 35 Theapplicant,a Secretary Grade*B'in theDiplomaticService was recommended by the Director-General of the Ministry of ForeignAffairs, together with otherofficers whowere holding the same post, for promotion to the post of secretary Grade Ά* or Consul. Thesetwo offices are with acombined establish ment and under the proviso to section 44(l)(a)* of the Public Service Law, 1967 (Law 33/67) promotions to ths higher office of Secretary Grade *A* or Consul may be made irrespecitively of whether there is a vacancy in the higher office or grade and in accordance with any general directions given by theCouncil of Ministers in this respect. Under these directions** officers serving in the lower office or grade may be promoted to the higher office or grade only if they are of exceptional merit and ability and in such a case there has been given proof for the immediateprecedingtwo years of their service. Therespondent Committee decided that seven of the above officers fulffled the prerequisites laid down by the above general directions and promoted trum to the higher office but applicant and another Officer were found not to fulfil the said prerequisites; and in respect of theapplicantthe reason was thatfor the>ear1978he was ratedas"very good" in all ratable items of the confidential report. The Director-General of the Ministry of Foreign Affairs requested*** theCommission to re-examine thequestion of the promotion of applicant because in 1978 he was rated morestrictly than appropriately for the reason thatthereporting Officer was influenced by directives orinstructionsof theMinistry * Section 44(l)(
- a)is quoted at p. 20 post. ** The directions are quoted at p. 20 post. '** See the relevant correspondence at pp. 21-26 post. 17 Georghfades v. Republic
(1982)for the use of stricter criteria in the evaluation of officers. This was confirmed, also, by the reporting Officer for the year 1978. The respondent Commission did not accede to the request of the Director-General; and hencethis recourse whereby appli cant challenged the validity of the decision of the respondent Commissionnottopromotehimandatthesame timethe validity of the promotion of the other seven officers who were duly promoted at that time. 5 Sincetheyear 1975 boththe reporting and the countersigning Officer, in relation to applicant were the same; andfor theyears 10 1975, 1976, 1977 the assessment of the reporting officer on the applicant in respect of all ratable items in the confidential reports was that he was of "excellent degree" ("αρίστου βαθμοΰ"). The countersigning officer agreed with this assess ment and expressed no views of his own. For the year 1978, 15 the assessment of the reporting officer on the applicant was "very good" on all ratable items and the countersigning officer agreed with this assessment with no views of his own. By then the reporting officer had known the applicant for six and the countersigning Officer for eight years. 20 Held,
(1)thatthelegality ofthedecisionregarding theapplicant has no relation whatsoever with the promotion of these other officers, as promotion in respect of combined establishments is not made after comparison of the merits, qualifications, etc., of the various candidates in respect of an existing vacancy but 25 only of the basis whether the.officer concerned satisfies the requirements of the general directions made by the Council of Ministers in that respect; and that, therefore, there is no need tomake an examination of thepromotions of these officers. 30
(2)(a) That the report for the year 1978 was clearly influenced by the oral directives or instructions given by the Ministry to the Heads of Diplomatic Missions regarding the assessment of the performance of Diplomatic Officers, as there appears no other explanation for this sudden change of the assessment of the applicant; that undersection45 of thePublic Service Law, 35 1967 and the relevant General Orders an unfettered discretion is given to both the reporting and countersigning Officers in relation to the preparation of confidential reports; that this is a discretionary power vested by legislation in these two admi18 3 C.L.R. 5 10 15 20 25 Georghiades v. Republic nistrative organs and itsexercise cannot be assumed or regulated except with regard to legality by any hierarchically superior organ unless there exists express provision to that effect (see Araouzos & Others v. The Republic
(1968)3 C.L.R. p. 287); that, consequently, directives and instructions as to assessments of the performance of officers being more strict are extraneous matters which could not and ought not to have been taken into consideration by the officers entrusted with the task of their preparation under section 45of the Law and the relevant General Orders; that by taking them, therefore, into consideration and allowing themselves to be influenced thereby, the reporting officer has exercised his discretion in a defective manner and in my view he has acted contrary to Law and in abuse of his powers which renders the confidential report for the year 1978 invalid.
(2)(
- b)That in matters of promotion and in particular those made under the proviso to section 44(l)(
- a)of the Law, confidential reports are intermediate acts and the ascertainment of their invalidity brings the invalidity of all subsequent acts for the issue of which the act found to be illegal constitutes a legal prerequisite (see Stavros Agrotis v. Electricity Authority of Cyprus
(1981)3 C.L.R. 503, at p. 513, and the authorities referred to therein); and that, therefore, the sub judice decision must be annulled. Sub judice decision annulled. Cases referred to: Araouzos and Others v. The Republic
(1968)3 C.L.R. 287; Agrotis v. Electricity Authority of Cyprus
(1981)3 C.L.R. 503 at p. 513. 30 35 Recourse. Recourse against the decision of therespondent not lo promote the applicant to the post of Secretary Grade " A " or Consul from the post of S e c t a r y Grads " B " in the Diplomatic service of the Republic. S. Yiordamlis, for the applicant. M. Kyprianou, Senior Counsel of the Republic, for the respondent. Cur. adv. vult. A. Loizou J. read the following judgment. The complaint 19 A. Loizou J. Georghiades τ. Republic
(1982)of the applicant in this case is that the respondent Commission failed to promote him to the post of Secretary Grade "A" or Consul from the post of Secretary Grade " B " in the Diplomatic Service, which he held and which are offices with a combined establishment and in respect of which under the proviso of ssction 440)(
- a)of the Public Service Law 1967, Law No. 33 of 1967: (To be referred to as (he Law). 5 " _ „ _ i n the case of offices wiih a combined establishment, promotion from the lower to the higher office or grade of that office may be made irrespectively of whither there 10 is a vacancy in the higher office or grade or not, and in accordance with any general directions given by the Council of Ministers in this respect;" The general directions given by the Council of Ministers are contained in paragraph (
- b)of the Schedule lo the circular 15 of the Ministry of Finance under No. 372, dated 12th June, 1975 (Appendix 3 in the bundle of documents attached to the opposition), which to the extent that is relevant in this case reads as follows: "(
- b)The promotion of officers holding combined offices or grades in the Public Service will be made on the basis of the established principles which are as follows: 20 (
- i)Subject to the provisions of the relevant Schemes of Service, officers serving in the lower office or grade may be promoted to the higher office 25 or grade only if they are of exceptional merit and ability and in such a case there has been given proof for the immediate preceding two years of their service". The facts of the case are as follow^: 30 The Director-General of the Ministry of Foreign Affairs by letter dated 9th January 1980, informed the respondent Committee that the services of ten officers in the Foreign Office who were servingin the post of Secretary Grade" B " as from the 1st September 1977, among whom the applicant, were in all 35 respects satisfactory and that they were officers of exceptional merit and ability and recommended that they be promoted to the combined office of Secretary Grade " A " or Consul, on the basis of the regulations applicable in such cases. 20 3 CX.R. 5 10 15 20 Georgbiades τ. Republic Λ. Loizou J. After obtaining the confidential reports for the year 1979, in respect of all these officers, the respondent Commission bearing in mind all relevant considerations contained in the aforementioned circular of the Ministry of Finance, as well as their merit,service and experience on the basis of the personal filesand confidential reports,decided that seven of them fulfilled the prerequisites of the general directions of ihe Council of Ministers and decided to promote them to the post of Secretary Grade "A" orConsul,asfrom 15th March, 1980. The applicant and anotherofficer werefound notto fulfill the said prerequisites and in respect of the applicant the reason was that for the year 1978 he was rated as very good in all rateable items of the confi dential repori. The Director-Generalof theMinistry of Foriign Affairs by his letter dated 14th April 1980, requested the respondent Committee to re-examine the question of the promotion of the applicant mentioning therein that he had been lated for theyear 1978 more strictly than appropriately, for the reason that the reporting officer was influenced by recommendations of his Ministry for the use of stricter criteria in the evaluation of officers. That was confirmed also by the Ambassador in Athens in his capacity as the reporting officer foi the year 1978, by his letter dated 28th March 1980. Both these letters are Appendices 8 and 9 respectively in the bundle of documents attached to ihe opposition. 25 30 35 40 Ιΐ is pertinent to reproduce here in full both letters: "Λαμβάνω την τιμήν νά αναφερθώείς τήν ύπόθεσιν της προ αγωγής τοϋ κ. 'Ανδρέα Γρωργιάδη, Γραμματέως Β' ε!ς το 'Υπουργείου 'Εξωτερικών. *Ως γνωρίζετε, ή έυ λόγω προ αγωγή δέν κατέστη δυνατή λόγω τοΰ ότι μία έκ των δύο τελευταίων εμπιστευτικών έκθέοεων συνταχθείσα Οπό τοΰ προϊσταμένου Πρέσβεως του εις Μόσχαν, έχαρακτήριζε τήν άπόδοσίι του μεβαθμολογίαν 'Λίαν Καλώς1. Ό ΓΤρέοβυς έβαθμολόγησε του κον Γεωργιάδην αυστηρότερα τοϋ δέοντος επηρεασθείς άπό συστάσεις τοΰ Υπουργείου προς όλους τ01 ^5 'Αρχηγούς Διπλωματικών 'Αποστολών νά χρησι μοποιούν τά αυστηρότερα δυνατά κριτήρια. Δέν είχε δέ ύπ' όψιν του οτι τό 'Λίαν Καλώς* αποτελεί έμπόδιον δια προαγωγήν. Λόγω τούτου ό Πρέοβυς έγραψε τήν ουνημμένην έττιστολήν δια της οποίας διορθώνεται ή βαθμολογία. Είναι δίκαιο νά εϊπω ότι παρηκολούθησαέκ τοϋ πλησίον 21 Λ. Lafzou J. Georghiades v. Republic
(1982)τήν έπίδοσιν τοΰ κ. Γεωργιάδη, τόσον δια μεταβάοεών μου είς Μόσχαν πολλάκις, δσον και δια τών αναφορών τάς οποίας ούτος ήτοίμαζε κατά τήν διάρκειαν πού έΕετέλει χρέη 'Επιτετραμμένου πέραν τών 10μηνών κατά τήνδιάρκειαν της θητείας του είς Μόσχαν. Ώς προσυπογραφών προϊστά- 5 μ^νος δύναμαινάεΐπω ότιπρόκειταιπερίέίαιρέτου υπαλλήλου πού χωρίς δισταγμούς, θά τόν έχαρακτήριζα, έάν Θά τόν έκρινα έγώ, ' 'Εξαίρετου'. Λόγω της έϋαιρέτου επιδόσεως του είς Μόσχαν, τά τελευταία δύο έτη Ιδιαιτέρως, όταν άυέλαβεν ύπηρεσίαν είς το κέντρον, ιτα^' όλον τόν μικρόν 10 βαθμού του είς τήν ίεραρχίαν, τοΰ άνετέθησαν υπό τοΰ κ. Ύπουργοΰ καθήκοντα προϊσταμένου τοΰ Τμήματος Οικο νομικών 'Υποθέσεων. Διά τους ανωτέρω λόγους, παρακαλώθερμώς και έκ μέρους τοΰ κυρίου 'Υπουργού καΐ τού Πρέσβεως κ. Χατζημιλτη, 15 όπως ασκούντες τήν έγνωσμένην άκριβοδικαίαν κρίσιν σας, λάβετε τά αναγκαία μέτρα προς δικαίωσιν ενός αρίστου και έΐαιρέτου υπαλλήλου". And in English it reads: "I have the honour to refer to the question of the promotion 20 of Mr. Andreas Georghiades, Secretary B*, in the Ministry of Foreign Affairs. As you know, the said promotion was not icndcred possibb becaus^ one of the two rcc:nt confidential reports prepared by his reporting Office*, ihc Ambassador at Moscow, di-scribed his performance 25 as 'vjry good'. The Ambassador graded Mr. Georghiades more strictly 'han necessary having been influenced by directions of the Ministry ΊΟ all ihe Heads of Diplomatic Missions to make. use of as strict criteria as possible. Aid he did not have in mind that 'very good' constitutes an 30 impediment to promotions. For this reason the Ambas sador wrote the attached letter whereby the grading is corrected. !t is fair to say that 1 have followed closely the per formance of Mr. Georghiades, both through my going to Moscow on many occasions, as well as through the reports which he was preparing in the course of his term of office as Charge d' Affaires for a period of more than ten months in Moscow. As a countersigning Officer 1 22 35 3 C.L.R. 5 10 15 20 Georghiades v. Republic A. Loiiou J. can say that he is an excellent Officer whom, without hesi tation, if I were to grade him, I would have described him as 'excellent'. Duetohis excellent performance in Moscow, particularly during the last two years, when he assumed duty at the Central Service, notwithstanding his inferior grade in the hierarchy he was assigned by the Minister the duties of the Head of the Department of Financial Affairs. For the above reasons, I warmly request both on behalf of the Minister and Ambassador Mr. HadjiMiltis that in the exercise of your known fair judgment, you take the necessary steps to dojustice to an excellent and exceptional officer". " 'Αναφερόμενος στο θέματης ετήσιας εμπιστευτικήςέκθέοεως διά τόν κ. Α. Γεωργιάδη, Γραμματέα Β', δια το έτος 1978, πληροφορώ ότι ή βαθμολόγηση τοϋ h λόγω λειτουργού είς 'Λίαν Καλώς'έγένετο κατόπιν συστάσοων ύπότοΰ 'Υπουρ γείου περί χρησιμοποιήσεως αΟοτηροτάτων αγιολογικών κριτηρίων. Ώς έκ τούτου, στην περίπτωση τοϋ κ. Γεωργιάδη,οΰδεμίαν ενσταοη εχω νά μετατροπή το "Λίαν Καλώς' είς * 'Εξαίρετος', γιά σκοπού*, προαγωγής,λαμβανομένων υπ' όψη τών ρηθέντων αυστηρών κριτηρίων μέ τσ όποια αρχικώς είχε κριθή". And in English it reads: 25 30 "Referring to the question of the annual confidential report for Mr. A. Georghiades, Secretary B\ for the year 1978, I would inform you that the grading of the said officsr a? 'very good' was made uponthe directions of ihe Ministry for the use of very strict grading criteria. In vi;w of this, in the case of Mr. Georghiades, I have no objection to the 'very good' being altered to 'excellent' for purposes of promotion, taking into consideration the said strict criteria with which he had originally been graded". Theie uponreceipt of these letters the Chairmanof the respor35 dent Commission, wrote on the 22nd April 1980 (Appendix 10) to ths Attorney-Geneial of the Republic for his advice, which is to be found in Appendix 11. In effect he advises that once the respondent Commission had decidtd that the applicant couldnol be described as exceptional onthsbasis of th^ material 23 A. Loizou J. Georghiades v. Republic
(1982)which they had in mind at the stage of their decision they could revoke such valid decision, so long as that was justified from a new inquiry which was caused alter ;he submission of new material and that it was not permissible to revoke an admi nistrative act only on the ground of a different evaluation of 5 the same factual circumstances. Furthermore it was Siated in the said opinion thatthi decision which the respondent Com mittee was ask;d lo take on the basis of the aforesaid legal principles about revocation was more a factual than a legal matter, namely whether thi facts which had been placed before 10 it come to an appreciation of the factual circumstances which lead lo the decision of the Commission, not to consider the applicant as exceptional or whether they constitute new and substantial different facts which change the factual basis of the said decision so as to justify its revocation. 15 The respondent Commiuee at its meeting of the 19th June 1980, the minutes of which are to be found in red 63,of exhibit 1, decided to ask from the Director General of the Ministry of Foreign Affairs a suplementary information and clarificatiors which weie communicated to him by ihcir letter of the 4th 20 July 1980, Appendix
- On the 4th October 1980, the Director Geneial of the said Ministry wrote (exhibit 1, Red66),thefollowing totheChairman of the respondeni Committee. "Θέμα: Προαγωγή τοϋ κ. 'Ανδρέα Γεωργιάδη Γραμματέως Β' είς το Ύττουργεΐον ΈΕωτερικών 25 "Εντιμε Κ. Πρόεδρε, 3 'Αναφέρομαι είς την έπιστολήν σας ΰπ σρ. Π- 14782 της 4ης "Ιουλίου 1980, σχετικά με το ανωτέρω θέμα και σας πληροφορώ ώς ακολουθώ?:(α) Αί συστάσεις τοΰ Υπουργείου προς τους 'Αρχηγούς τών Διπλωματικών 'Αποστολών, έν σχέσει προ;τήνάΕιολόγησιν τώυ διπλωματικώνυπαλλήλων, έδόθηοαν δια προφο ρικών οδηγιών. (β) Ό ΠροσυπογραφώνΛειτουργός δεν προέβη, έκ παρα δρομής, είς -παρατηρήσεις είς το Μέρος IIIτης 'Ετησία; 'Εμπι στευτική; 'Εκθέσεως τοϋ
- 24 30 35 3 C.L.R. Georghiades v. Republic A. Loizou J. (γ) Κατά τό Οπό κρίσιν έτο·. 1978, ό κ. Α. Γεωργιάδης ήτο όμόνοςδιπλωματικός Λειτουργόςτηςέν ΜόσχαΠρεσβείας της Δημοκρατίας, πλην τοΰ Πρέσβεως. 5
- θ ά ήθελα νά επαναλάβω στι ή προαγωγή τοϋ κ. Γεωργιάδη είναι δι* έμέ θέμα δικαιοσύνης." And in English it reads: "Re: Promotion of Mr. Andreas Georghiades, Secretary B* in the Ministry of Foreign Affairs. 10 . 15 Hon. Mr. Chairman, I refer to your letter No. P. 14782 of the 4th July, 1980, in connection with the above matter and I inform you as follows:(a) The directions of the Ministry to the Heads of Diplo matic Missions in relation to the grading of the diplomatic officers were given orally. (b) The Countersigning Officer has not by inadvertence made observations in Part III of the Annual Confidential Report for
- 20 (c) During the year in question, 1978, Mr. A. Georghiades was the only diplomatic officer of the Moscow Embassy of ihe Republic, besides the Ambassador.
- I would like to repeat rhat the promotion of Mr. Georghiades is for me a matter of justice". The respondent Committee then wrote on the 27th October 1980, to the Director-General of the said Ministry (exhibit 1 red 67), observing that the question put in paragraph (b) in the letter of the 4th July 1980, which corresponds to question (b) inthe minute of the respondent Committeeoi the 19th June 1980 (exhibit 1, red 63(A)) remained unanswered and asked 30 that the question be communicated to Ambassador HadjiMiltis in order to answer same. Question (b) reads as follows: 25 35 "(β) Επειδή εΐ; τήν ως άνω έπιστολήν του ό Πρέσβυς αναφέρει οτι Όύδεμίαν ένσταση'έχει ι νά μετατραπεί ή βαθμο λογία από 'Λίαν Καλός*είς *'Εξαίρετος',για ο'κοπούς προαγωγής'καϊ επειδήτό θέμαδέν είναι έάνό'Αξιόλογων Λειτουρ γός δέν εχη ενσταοιν νά αλλαγήή βαθμολογία διάσκοπούς 25 Λ. Loizou J- Georghiades v. Republic
(1982)προαγωγής, άλλαέάνούτοςζητήνάτοϋεπιτροπή νά τροπο ποίηση τήν βαθμολογίαν, νά διευκρινισθή κατά πόσο;, ώ$ αποτέλεσματών συστάσεων τοΰ 'Υπουργείου *γιάχρησι μοποίηση αυστηρότατων αγιολογικών κριτηρίων', ό 'Αξιό λογων Λειτουργός έπλανήθη είς τήν κρίσιν του και ήδίκησε 5 τόν Οπάλληλον μέ τήν δοθεϊσαν βαθμολογίαν,καθώς επίσης καΐ κατά πόσον 5ιά λόγους ίσης μεταχειρήσεως ζητή τό Τδιονκαι διά τους λοιπούς υπαλλήλους,τουςοποίους έβαθμολόγησε κατά τό ίδιον έτος". And in English it reads: 10 "(b) As the Ambassador in his above letter states that he 'hasnoobjection whatsosver' tothe'alleration of the grading from 'very good* to 'excellent' for purposes of promotion* and as the question is not whether the reporting officer has noobjection tothealteration of ths grading for purposes 15 of promotion, but whether he is applying to be allowed to amend the grading, to be clarified, whether, as a result of the directions of the Ministry for the use of very strict grading criteria the reporting officer was misled in h : s judgment and did injustice to th; officer w'th the grading 20 he gave, as well as whether for purposes of equal treatment he is applying to do the same in relation to the remaining officers who were graded by him during the same year". Ambassador HadjiMikis, replied by his letter of the 9th January 198],(exhibit 1, red 69),that he considered thecontents 25 of his letter, dated 28th March 1980, to the Chairman of the Public Service Commission, sufficiently clarifying. Theie followed other correspondence bur 1 am of the;view that there has been sufficient material given in this judgment rendering a detailed reference to it unnecessary. 30 The applicant filed the present recourse and challenges the validity of the decision of the respondent Commission not to promote him and at the same time the validity of thepromotion of the other seven officers who were duly promoted at that time. J may say here and now that this is one of the cases where the 35 legality of the decision regarding the applicant has no relation whatsoever with the promotion of ihesi other officers, as promo tion in respect of combined establishments is not made after comparison of the merits, qualifications, etc., of the various 26 3 C.L.R. Georghiades v. Republic A. Loizou J. candidates in respect of an existing vacancy but only on the basis whether the officer concerned satisfies the requirements of the general directions made by the Council of Ministers in that respect. Therefore I need not make an examination of 5 the promotions of these officers. Relevant to the issues raised in this recourse are also the contents of the confidential reports on the applicant, and for that purpose I shall deal with the more recent ones, as since the year 1975,both thereporting and thecountersigning officer 10 arethesame,namely Ambassador HadjiMiltis andthe Director General of the Ministry Mr. G. Pelaghias. Fortheyears 1975, 1976, 1977 theassessment of thereporting officer on the applicant in respect of all ratable items in the confidential reports is that he is of "excellent degree" "apt15 στου βαθμοΰ". The countersigning officer agrees with this assessment and expresses no views of his own. For the year 1978,the assessment of thereporting officer on theapplicant is "very good" on all ratable items andthecountersigning officer agrees with this assessment with no views of his own. By 20 then the reporting officer had known the applicant for six and the countersigning officer for eight years. An assessment that he is "excellent" on all ratable items except on inlelligence, which is ratedas "very good" is to be found inthe confidential report for the year 1979 which is prepared in this case by Mr. 25 Psiloinis, Headof the Section of Economicand Cultural Affairs at theMinistry and with which assessment also agrees vhesame Director General. What transpiresfrom thecontentsoftheseconfidential reports viewed in the light of the subsequent correspondence between 30 the Director-General and Ambassador HadjiMiltis and the Chairman of the respondent Commission, is that the report for the year 1978 was clearly influenced by the oral directives orinstructionsgivenby theMinistrytotheHeadsofDiplomatic Missions regarding the assessment of the performance of 35 Diplomatic Officers, as there appears no other explanation for this sudden change of the assessment on the applicant. In fact, it has not been attributed to any other factor and in no way to any change in the conduct and the performance of theduties of the applicant during that particular year, ascompared 40 with same during the preceding and subsequent years. 27 Λ. Loizou J. Georghiades τ. Republic
(1982)In fact, the countersigning officer clearly admits in paragraph (
- b)of the letter of the 4th October, 1980, (exhibit 1, red 66) that he did not make the appropriate observations in Part III of the Annual Confidential Report for the year 1978, by mere oversight; this coupled with his concluding remark that the promotion of Mr. Georghiades was for him a matter of justice and also the tenor of the letters of Ambassador HadjiMiltis support this conclusion of mine regarding the matter that influenced the different assessment for the year 1978. The question, therefore, that poses for determination is whether under the provisions of the Public Service Law and the general principles of Administrative Law, such directives or instiuctions could legitimately be taken into consideration by the reporting officer or whether this is an interference with the exercise of his discretion in the matter. 5 10 15 Section 45 of th» law and the relevant general orders regulate the matter of confidential reports and an unfettered discretion is giventhereby toboth thereportingandcountersigning officers. It is a discretionary power vested by legislation in these two administrative organs and its exercise cannot be assumed or 20 regulated except with regard to legality by any hierarchically superior organ unless there ex:sts express provision to that effect (se3 Araouzos & Others v. The Republic (.1968) 3 C.L.R., p. 287). Consequently, directives and instructions as to assess ments of theperformance of officers being mor^ strict are extra- 25 neous matters which could not and ought not to have been taken into consideration by the officers entrusted with the task of their preparation under section 45 of the Law and the relevant general orders. By taking them, therefore, into consideration and allowing themselves to be influenced thereby, the reporting 30 officer has exercised his discretion in a defective manner and in my view he has acted contrary to Law and in abuse of his powers which renders the confidential report for the year 1978 invalid. In matters of promotion and in particular those made under 35 the proviso to section 44(l)(
- a)of the Law, confidential reports are intermediate acts and the ascertainment of their invalidity brings the invalidity of all subsequent acts for the issue of which the act found to be illegal constitutes a legal prerequisite (see Stavros Agrotis v.Electricity Authority of Cyprus
(1981)3 C.L.R. 40 p. 503, at p. 513, and the authorities referred totherein). 28 3 C.L.R. 5 Georghiades v. Republic A. Loizou J. Therefore,thedecisionoftherespondent Commissionwhereby the applicant was not promoted because of the contentsofthe confidential report of the year 1978found to be invalid for the reasonsgiveninthisjudgment,isnull and void and ofno effect whatsoever. For all the above reasons this recourse succeeds, as far as the applicant himself is concerned, but the acts relating lo theseveninterested partiesremain validastheyshouldnot have been challenged by this recourse for the reasons that I have 10 already explained and in the circumstances there will be no ordei as to costs. Subjudicedecision annulled. No order as to costs. 29