(1982)1982 October 19 [SAVVIDES, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION STAVROS EVRIPIDES, Applicant, v. THE ELECTRICITY AUTHORITY OF CYPRUS, Respondent. (Case No. 387/79). Administrative Law—Administrative act or decision—Validity— Administrative process requiring action by two distinct organs —A collective organ empowered to express a formal opinion and another organ empowered to take the final decision after examining correctness of such opinion—Organ responsible for 5 reaching final decision should, unless a law otherwise provides, be different from, and should not participate in the functioning of, the organ which expresses the formal opinion—Promotions by Board of respondent Electricity Authority, after considering recommendations of Sub-Committee which was composed, inter 10 alia, of the Chairman and two members of the Board—SubCommittee not an independent collective organ outside the Board empowered to take adecisioncorrectness of which had to examined by the Board as a separate organ but waspart and parcel of the Board^Participation at meeting of Board, which took subjudice 15 decision, of the above members of Sub-Committee not amounting to a material irregularity vitiating the administrative process which resulted in the sub judice promotion. The applicant in this recourse challenged the validity of the respondent authority to promote the inteieited party to the post 20 of Engineer's Assistant, Giade II, in preference and instead of the applicant. All applications for the above post were considered by the joint Advisory Committee for Promotions and Regradings which recommended for promotion three 850 3 C.L.R. 5 10 15 20 25 30 35 40 Evripides τ. E.A.C. candidatts, including the applicant and the interested party. The report of this Committee was submitted by the Board of the respondent Authority to the standing Sub-Committee on Staff Matters which was composed of the Chaiiman and two members of the Board of the respondent Authority and the General Manager. Thestanding Sub-Committee after consider ing theleport of theAdvisory Committeedecided to lecommend theinteiested party as thebestcandidatefor thepost inquestion. The sub judice promotion was made by the Board of the respondent Authority, after considering the report of theAdvi sory Committee and the above recommendationof the standing Sub-Committee. Counsel for the applicant contended that the participation at the meeting of theBoard at which thesubjudice decision was taken, of the three members of the Board who as members of the standing Sub-Committee on Staff Matters examined the repoit of the Joint Advisory Committee for Promotions and Regradings and made recommendations to the Board on the subject matter, amounts to a violation of one of the principal rules of natural justice in that they acted as Judges in their own cause. Counselfor therespondentcontended thatthe Sub-Committee of theBoardwas notabodytotakeafinaldecisiononthe matter but it was only a section of theBoard of theAuthority towhich the Full Board had delegated thetask of considering therecom mendations of the Joint Advisory Committee for Piomotions and Regradings, which was the appropriate body under the schemes of service to make the recommendations and seltct three candidates for each post and put themin a short list,"and of submitting their recommendations to the Board. Held, that though it is a principle of administrative law that where the administrative process concerned lequires action on the part of two distinct organs—(one of them being a collective organ empowered to expiess a foimal opinion and the other of them being the organ which takes the final decision after examining the correctness of such opinion)—the organ which is responsible for reaching the final decision should, unless a Law otherwise provides, be different from, and should notparti cipateinthefunctioning of theorgan whichexpressesthe formal opinion, so that the organ taking the final decision can reach 851 Evripides v. E.A.C.
(1982)its own independent conclusion in the present case, the following distinction has to be drawn: The Sub-Committee on Staff Matters was not an independent collective organ outside the Board empowered to take a decision the correctness of which had to be examined by the Board as a separate organ, but was 5 part and parcel of the Board, a section of it, to which the Board entrusted the task of considering and scrutinizing the report and the recommendations of the Joint Advisory Committee for Promotions and Regradings; that the preliminary examination by this Sub-Committee of the applications and of the 10 recommendations of the Joint Advisory Committee for Promotions and Regradings was a matter of internal arrangement of the Board of the respondent Committee foi the carrying out in a mote effective and expedient way the administration of the Authority; that the recommendation of the Sub- 15 Committee came befoiethefull session of the Board for consideration and exhaustive discussion as it appears from the minutes of the meeting at which the final decision was taken and at which each member was free to \ott in the light of such discussion; and that, therefore, the participation at the meeting 20 of the Board at which the sub judice decision was taken of the Chairman and the two members of the Board who were membeis of the Standing Sub-Committee on Staff Matters,did not amount to a material irregularity \itiating the administiative process which resulted in the promotion challenged by this recourse; 25 accordingly the recourse must fail. Application dismissed. Cases referred to: Kanda v. Government of Malaya [1962] A.C. 322 at p. 337; Kazamias v. Republic
(1982)3 CX.R. 239; 30 Mitidou v. C.Y.T.A.
(1982)3 C.L.R. 555; Savoulla and Others v. Republic
(1973)3 C.L.R. 706 at pp. 712,
- Recourse. Recourse against the decision of the respondent to promote the interested party to the post of Engineer's Assistant, Grade II, in preference and instead of the applicant. 35 L. Clerides with N. Clerides, for the applicant. G. Cacoyannis, for the respondent. Cur. adv. vult. 852 40 3 C.L.R. 5 Evrlpides τ.E.A.C. SAWIDES J. read the following judgment. The applicant seeks by this recourse a declaration that the decision ofthe respondent to promote Georghios Marneros to the post of Engineer's Assistant, Grade II, as from the 1st September, 1979in preference to andinstead of theapplicant, should be declared null and void and of no effect whatsoever. The grounds of law on which therecourse was based asset out in the application were as follows: 10 15 20 "It is contended that having regard to the qualifications, merit, ability, experience, recommendations of Head of Department, aswell asallthe other relevant considerations, respondents failed in their paramount duty to choose the best candidate available for promotion, i.e. the applicant, and hence by promoting theinterested party in preference andinstead of the applicant, respondents acted in circum stances amountingtoanabuse of power and their decision should in consequence be declared null and void andof no effect whatsoever." The respondent Authority opposed the application and the following grounds of law are set out in support thereof: " 1 . The Respondents have acted lawfully throughout. 25
- The decision complained of in the present recourse is intra vires theRespondents' powers andhasbeen exerci sed according to therequirements of the service in their absolute discretion.
- The Respondents' discretion has been exercised in a valid manner after all relevant considerations had been taken into account anddueweight hadbeen given toall material facts. 30
- The Respondents have not acted in abuse or in excess of their power butinthe proper exercise of such powers.
- The application disclosed no grounds justifying the revocation of the decision complained of." In the course of the hearing, counsel for applicant abandoned 35 hisoriginal ground oflaw and advanced a new ground on which he sought to rely in support of his prayer for thecancellation 853 Sflvrides J. Evripides τ. E.A.C.
(1982)of the promotion of the interested party. Counsel for respon dent Authority did not object to such course. Such new ground was that the participation of three members of the Board of the respondent Authority, which made the promotion, in the Standing Sub-Committee on Staff Matters, which made the recommendations as to the candidates for promotion, amounts to a violation of the rules of natural justice and in consequence renders the sub judice decision null and void. 5 The facts of the case are, briefly, as follows: The applicant is an employee of the respondent Authority 10 holding the post of Engineer's Technical Assistant since 1st June, 1971. In the summer of 1979 there was a vacancy in the post of Engineer's Assistant, Grade II at Moni Power Station. Such vacancy was published in the Staff Vacancy Notice No. 8/79 on 24.5.1979 and applicant was one of the candidates for 15 promotion to such post. All applications were considered by the Joint Advisory Committee for Promotions and Regradings and its recommendations are contained in a submission sent to the Board of the Authority, copy of which was attached to the Opposition as exhibit *A*. By such submission the Joint 20 Advisory Committee recommended as the best candidate for promotion to such post the applicant and two other candidates, namely, Michael Hj.Antoniou and Georghios Marneros (the interested party in this recourse). In the report of the Joint Advisory Committee for Promotions and Regradings, all three 25 candidates are described as possessing the same ability and experience for promotion to such post and as being equally fit for promotion, but in the case of Georghios Marneros the following additional statement appears in comparison with the other two candidates: "He has acquired experience in the 30 control room of the station of Dhekelia." The Board of the respondent Authority submitted such report to the Standing Sub-Committee on Staff Matters which was composed of the Chairman and two members of the Board of the respondent Authority and the General Manager and at 35 the meeting of which the Deputy General Manager, the Chief Personnel Officer and the Secretary of the Authority were in attendance. The Sub-Committee met on the 5th September, 1979 and according to the minutes of their meeting they con sidered the report of the Joint Advisory Committee for Pro- 40 854 3 C.L.R. Evripides v. E.A.C. Sawides J. motions and Regradings and after an exchange of views and having considered all applications, and all matters relevant thereto, decided to recommend Georghios Marneros as the best candidate for promotion to such post. 5 The Board of the respondent Authority considered the report of the Joint Advisory Committee for Promotions and Regradings and, also, the recommendations of the Standing Sub-Committee on Staff Matters at its meeting of the 26th September 1979, at which the legal adviser of the Board, the 10 General Manager,the Secretaryand the Chief Personnel Officer were in attendance, and according to the minutes of such meetingcopy ofwhichwasattached to theopposition asAnnex *C "after an exchange of views and having ^considered all applications submitted in response to Staff Vacancy Notice No. 15 8/79, except item 5(b) and having taken into consideration the applicants' experience, merit, ability, years of service with the Authority, seniority in the present post, qualifications in accordance with the relevant schemes of service, conduct, age, general record and having compared the above criteria for 20 promotion with the same criteria of those recommended for promotion and after takinginto consideration the recommendations of the Heads of the Departments, the recommendations of the Chief Engineer & General Manager, the unanimous proposal of the Joint Advisory Committee for Promotions & 25 Regradings in respect of the filling of the above-mentioned vacancies and the recommendations of the Standing SubCommittee on Staff Matters " resolved unanimously to promote Georghios Marneros, to the post of Engineer's Assistant, Grade II, MoniPower Station. Itisagainst suchdecision 30" that this"recourse-is directed. The main ground on which counsel for applicant argued the case was the new ground advanced at the hearing, that the participation at the meeting of the Board at which the sub judice decision was taken, of the three members of the Board 35 who as members of the Standing Sub-Committee on Staff Matters examined the report of the Joint Advisory Committee for Promotions and Regradings and made recommendations to the Board on the subject matter, amounts to a violation of one ofthe principal rules of naturaljustice in that they acted as 40 Judges in their own cause. Counsel for the respondent contended that the Sub-Com855 Sawides J. Evripides v. E.A.C.
(1982)mittee of the Board was not a body to take a final decision on thematter but it wasonlyasection ofthe Board ofthe Authority to which the Full Board had delegated the task of considering the recommendations of the Joint Advisory Committee for Promotions and Regradings, which was the appropriate body 5 under the schemes of service to make the recommendations and select three candidates for each post and put them in a short list, and of submitting their recommendations to the Board. Sitting as members of the Board, they were free to change their minds and decide in the light of exchange of views and other 10 matters put before the meeting of the full session of the Board of the Authority before the final decision was taken. The rules of natural justice which may, briefly, be expressed in the words that "no man shall be ajudge in his own cause and both sides shall be heard" have been interpreted by the Courts 15 to mean impartiality and fairness on the part of a judge in the exercise of his judicial function or on the part of an administrator in the exercise of hisjudicial or quasi judicial function. In Kanda v. Government of Malaya [1962] A.C. 322, Lord Denning at p. 337 summarised such rules as follows: 20 "The Romans put them in the two maxims; Nemo judex in causa sua: and Audi alteram partem. They have recently been put in the two words, Impartiality and Fairness." In two recent cases before this Court (see Kazamias v. The Republic
(1982)3 C.L.R. 239, and Mitidou v. C.Y.T.A.
(1982)3 C.L.R. 55) I had the opportunity of dealing extensively and reviewing a number of cases and legal authorities on the rules of natural justice which I need not repeat in my deliberation in the present recourse. In Savoulla and others v. The Republic
(1973)3 C.L.R. 706 at pp. 712, 713 (per Triantafyllides, P.) it was said: "It is correct that it isa principle of administrative law that where the administrative process concerned requires action on the part of two distinct organs - (one of them being a 35 collective organ empowered to express a formal opinion and the other of them being the organ which takes the final 856 25 30 3 C.L.R. 5 Evripides v. E.A.C. Sanities J. decision after examining the correctness of such opinion) the organ which is responsible for reaching the final decision should, unless a Lawotherwise provides,be different from, and should not participate in the functioning of the organwhichexpressestheformal opinion, sothat the organ taking the final decision can reach its own independent conclusion (see, inter alia, the decisions of the Council of State in Greece in Case 2764/1964 and 2517/1967)." In thepresentcase,thefollowing distinction hasto bedrawn: 10 The Sub-Committee on Staff Matters was not an independent collectiveorgan outsidetheBoardempowered totake adecision the correctness of which had to be examined by the Board as a separate organ, but was part and parcel of the Board, a section of it, to which the Board entrusted the task of considering and 15 scrutinizing the report and the recommendations of the Joint Advisory Committee for Promotions and Regradings. The preliminary examination by this Sub-Committee of the applications and of the recommendations of the Joint Advisory Committee for Promotions and Regradings was a matter of 20 internal arrangement of the Board of the respondent Committee for the carrying out in a more effective and expedient way the administration of the Authority. The recommendation of the Sub-Committeecamebefore thefull session ofthe Board for consideration and exhaustive discussion as it appears from the 25 minutesofthemeetingatwhichthefinal decision wastaken and at which each member was free to vote in the light of such discussion. - The fact that a"Board for the purpose of efficient and expedient carrying out of its duties entrusts to a sub-committee of 30 its members the task of considering a particular topic and report or make recommendations to the full Board, does not constitute such sub-committee a distinct organ, participation in which disentitles the members so participating from attending themeeting of theBoard at whichafinal decision on thematter 35 is to be taken. In the circumstances of the present case, I have reached the conclusion that the participation at the meeting of the Board at which the subjudicedecision wastaken ofthe Chairman and the two members of the Board who were members of the 857 Savvides J. Evripides v. E.A.C.
(1982)Standing Sub-Committee on Staff Matters, did not amount to a material irregularity vitiating the administrative processwhich resulted in the promotion challenged by this recourse. In the result, this recourse fails and is hereby dismissed but in the circumstances I make no order for costs. 5 Recoursedismissed. No orderas to costs. 858