clr/1983/1983_3_465.pdf

(1)of the Army of the Republic (Composition, Enlistment and Discipline) Laws,1961— 1975, approved the promotion of the interested parties who were 465 Tootfas v. Republic OM3) namedinasubmission totheCouncilby the Ministerof Defence, with effect from the 1st September, 1980. The Ministerial submission whichwas conveyed tothe Council of Ministers for approval, embodied thedecision of the Minister to promote the interested parties in purported exercise of the powers delegated or assigned to the Minister, by a decision of the Council of Ministers dated 18.3.1965 whereby the Council delegated to the Minister of Defence its powers under s.5(l) viz., to appoint officers in the army subject to the approval of the Council of Ministers. 5 The decision of the Minister was laconically expressed for it only stated thatthe Minister after examining eachcase approved ("ενέκρινε") the promotion of the interested parties. The decision of the Council of Ministers was almost as brief as the decision of the Minister. For the respondents it was submitted \5 that the Minister approved a suggestion for the promotion of the interested parties that originated from the Army Head­ quarters but no record of this recommendation was traced. Alsoneither theCouncil of Ministers nor the Ministerattempted an evaluation' of the merits of those officers who were eligible 20 for promotion. Thoughatthetimeof thesubjudicepromotions there was a legislativeprovision inforce empowering the Council of Ministers to make promotions<s.16of Law 8/61 as amended by s.5 of Law 16/62), whereby it was laid down thatpromotions would be effected in accordance with Regulations to be enacted 25 by the Council of Ministers, such Regulations were introduced in 1981, that is after the sub judice promotions. Counsel for the respondents submitted that the sub judice promotions were madeonthebasisof absolute discretion vested in the Council of Ministers, in part delegated to the Minister 30 of Defence. Held,

(1)that it is a settled principle of administrative law that freedom of choice is not absolute, even where the widest possible discretion is vested in the appointing body which is the case where discretion is bestowed to make appointments 35 "κατ* εκλογήν"' (selection at the discretion); that certain rules must invariably be observed, one being that a comparison must be made of the claims to promotion of eligible officers, with 466 10 3 C.L.R. Tooulias v. Republic a corresponding dutytopromote thoseappearingon comparison to be best suitable for promotion, 5 10

(2)That the subjudice promotions were taken in defiance of almost every notion of proper administration; both the decision of the Council of Ministers and that of the Minister, are unreasoned; the promotions were made without inquiry into the merits of those eligible for promotion and such material as mightfillsomeofthegapsnamelytherecommendationsofArmy Headquarters, is nowhere found; accordingly the sub judice promotions must be annulled. Held, further, that no promotions could be made in the army pending the establishment of the machinery envisaged by law for effecting such promotions. Subjudice promotions annulled. 15 Recourses. Recourses against the decision of the respondents to promote the interested parties to the post of lieutenant-colonel in the Cyprus Army in preference and instead of the applicants. M. Christofides, for the applicant in Case No. 440/

1. 20 N. Pelidesy for the applicant in Case No. 459/
2. A. Ladas, for the applicant in Case No. 462/
3. A. Vassiliades, for the respondents. Cur. adv. vult. PIKIS J. read the following judgment. The Council of 25 Ministers purporting to act in exercise of the powers conferred by s.5(l) of the Army of the Republic (Composition, Enlistment and Discipline) Laws, 1961-1975 decided, on 20.11.1980 to "approve the promotion of the officers _. " named in a submission to the Council bythe Minister of Defence dated 30 14.11.
4. By virtue of this decision, the twenty-two interested parties, officers of the Cyprus Army then serving with the rank of major, were promoted to lieutenant-colonels as from 1.9.
5. The minute of the decision of the Council of Ministers suggests the submission of the Minister was adopted 35 without further inquiry into the suitability of the recommendees for promotion or examination of the merits of any other officer of the Cyprus Army eligible for promotion. The Ministerial submission conveyed to the Council of 467 Pikis J. Tooulias v. Republic

(1983)Ministers for approval, embodied the decision of the Minister to promote the interested parties in purported exercise of the powers delegated or assigned to the Minister, by a decision of the Council of Ministers dated 18.3.1965 - No.4545, gazetted on 5.6.1981, whereby the Council delegated to the Minister of 5 Defence its powers under s.5(

1. l)viz., to appoint officers in the army subject to the approval of the Council of Ministers. The delegation was made under the provisions of s.3(
2. l)of the Delegation of Powers Entrusted by Law- Law 23/62,entitling the Council to delegate powers vested in the Council by law to a 10 Minister or another authorised person. I have advisedly used the word "purported" referring to the powers exercised for, it is the case for the applicants that no power vested in the Council of Ministers under s.5(
3. l)to make promotions in the army and none could, therefore, bedelegated 15 totheMinisterofDefence oranybodyelseforthatmatter. The powers vested in the Council of Ministers under s.5(
4. l)- so this argument ran - were confined to the appointment of officers to the ranks of the Cyprus Army. The delegation to the Minister of Defence was subject to the same qualification; the 20 power delegated subject to the approval of the Council of Ministers, was the power to appoint officers under s.5(
5. l)of the basic law. The power of the Council of Ministers to make promotions in the army, if any, did not derive from any specific provisions of the law but emanated from the residual 25 powers of the Council of Ministersto man the Cyprus Armyin a comprehensive and acceptable manner. Consequently, the assumption of power in this case by the Minister in the first place and, the Council of Ministers in the second, to make promotions in the Cyprus Army, was an act in excess of the 30 powers vested in them, either bylawor an abuse of the powers vested in them by s.5(
6. l)of Law 8/61,asmodified by the aforementioned delegation to the Minister of Defence. To understand the issues raised for determination in the present proceedings, it is necessary to make detailed reference 35 to the facts of the cases in order to elicit the legal and factual background to the promotion of the interested parties. The factual background to the cases is the subject-matter of the statement offacts accompanyingtheapplication and opposition thereto and is evidenced by the material before the Court or 40 468 3 C.L.R. Tooulias v. Republic Pikis J. the absence of it. To start with, there is the decision of the Minister of Defence embodied in his submission to the Council of Ministers, laconically expressed, almost as brief as the de­ cision of the Council of Ministers on the subject. Para.l of 5 the statement of facts supporting the opposition, refers to the background and the context in which the decision was taken. The decision to promote the interested parties was taken by the Minister after examining each case (the cases considered are not specified); following this examination he approved (ένέ10 κρίνε) the promotion of the interested parties. The word "ενέκρινε" (approved), connotes in its ordinary acceptation a course proposed by someone other than the person sanction­ ing the proposal. (See, Λεξικόν τηξ Δημοτικής Εταιρείας 'Ελληνικών 'Εκδόσεων,p.200). Any suggestion that the word 15 "ενέκρινε" was used in any sense other than approval, would be untenable in view of the very statement of the respondents in para.l of the opposition, that the Minister approved a sugges­ tion for the promotion of the interested parties that originated from another quarter, notably the Army Headquarters 20 (Γ.Ε.Ε.Φ.) Consequently, the word "ενέκρινε" was used in its ordinary meaning to signify approval or ratification of a course of action recommended by someone else. No record of this recommendation was traced and, apparently, novnote of its contents was kept by anyone. Surprising as it may appear, 25 the document setting in motion the machinery for promotions and establishing the basis upon which they were made, is now­ here to be found. How and in what circumstances it was lost, is a matter of conjecture. To speculate about its contents, particularly its reasoning, is totally unprofitable. Evidently, 30 it was not placed before the Council of Ministers, a fact leading to the inference that the Council of Ministers approved the decision of the Minister of Defence without acquainting them­ selves as to the basis upon which the decision was reached and the reasons in support thereof. Neither the decision of the 35 Council of Ministers, nor that of the Minister is reasoned in any way. And in the absence of the recommendations of the ^ Army General Staff, neither.decision can be supplemented in terms of reasoning by recourse to thefiles either of applicants or interested parties. The inescapable conclusion is that both 40 decisions are devoid of reasoning. And as such cannot stand the test of judicial review. 469 Pikis J. Tooulias v. Republic

(1983)A factor that complicates the cases further and enlarges th e mantle of darkness cast over the decisions, is a note in the file of the interested parties, brief as it could be, suggesting the promotions were made after a report submitted to the Minister of Defence on the performance of the interested parties in the army. Whether this report is the same as that coming from Army Headquarters or another report, it is not known. If it is not the same report, it is missing like the report of the Army Headquarters. 5 At the time the promotions were made, there were 46 officers 10 servingwith therank ofmajor, prima facie eligiblefor promotion to the post of lieutenant-colonel, a rung higher in the army establishment. The hierarchy of commissioned officers in the Cyprus Army is specified in s.4

(2)of the basic law. The files of the interested parties and applicants werepro- 15 duced in the course of the hearing and a table was prepared charting the merits of eligible officers from a variety of viewpoints for purposes of comparison. Notwithstanding the assertions in the opposition, set out in paras. 2 and 3 that, promotions were made after examination of the records of the 20 parties, presumably implying thereby comparison of the competing merits of majors to promotion, there is nothing to indicate that either the Council of Ministers or the Minister of Defence attempted any comparison whatever or for that matter examined the files of anyone other than the interested parties. 25 The Council of Ministers had before it nothing other than the submission of the Minister. The impression one is apt to form is that they approved, without further inquiry, the submission of the Minister. No inquiry whatever was made to ascertain who were eligible for promotion and the rival claims to promot- 30 ion of those eligible. One isdriven to a similar conclusion with regard to the premises upon which the Minister rested his decision. Whether the General Army Staff attempted a comparison, is an unknown fact. In the absence of a record of the recommendations or be it a note reproducing the substance of 35 its contents, one cannot predicate what it contained. The one fact that emerges with certainty is that neither the Council of Ministers nor the Minister of Defence attempted an evaluation of the merits of those officers who were eligible for promotion to the rank of lieutenant-colonel. AC 470 3 C.L.R. 5 10 15 20 25 30 35 40 Tooelho τ. Repatdk Pikb J . From the facts detailed above, the inescapable inference is thattheallegations containedinparas.2and3of theopposition, averring the decisions were taken after comparison of the mertis of those eligible, is ill-founded, in fact inconsistent with the facts of the cases. Counsel appearing for the respondents did not seek to suggest otherwise in addressing me. He must have felt constrainedby thematerials before theCourtasindeed they constrained him from suggesting that the sub judice de­ cision was taken after a comparison of themerits of the officers servingwiththerank ofmajor intheCyprus Army. Instead, he soughttoresthiscase onabasisdifferent from thatelicitedinthe statement of facts accompanying the opposition. He sub­ mitted that the appointments or promotions,whatever the case may have been, of the interested parties, were made on the basis of absolute discretion vested in the Council of Ministers, in part delegated to the Minister of Defence. Assuming that as wide a discretion as suggested, vested in the Council of Ministers, there were still insurmountable obstacles in the way of respondents supporting the decision. The submission, if I understood it correctly, is that unfettered discretion was con­ ferred on the Council of Ministers to make promotions in the army,unfettered inthesense thatthey coulddo as they pleased. Sucha proposition,if accepted,would neutralisejudicial control aswellas theduty cast oneverypublic authority toobserve the rules of sound administration, principles enshrined in Article 146of theConstitution,forming anaspect of therule of law that permeates every aspect of our legal system. It is a settled prin­ cipleof administrative law thatfreedom ofchoiceisnotabsolute, even where the widest possible discretion is vested in the appointing body which is the case where discretion is bestowed to make appointments "κατ' ίκλογήυ" (selection at their discretion). Certain rules must invariably be observed, one being that a comparison must be made of the claims to pro­ motionof eligibleofficers, with acorrespondingdutytopromote those appearing on comparison to be best suitable for pro­ motion. (See, Conclusionsfrom Jurisprudence of Greek Council of State 1929-59, p.350). Without this rule,the door would be cast wide open to by-passing the norm of legality, as well as ignoring the principles of sound administration. In my judgment, the sub judice promotions are, in the light of the facts analysed above, vulnerable to be set aside. They 471 Pikis J. Tooulias v. Republic

(1983)were taken in defiance of almost every notion of proper administration. Both the decision of the Council of Ministers and that of the Minister, are unreasoned; the promotions were made without inquiry into the merits of those eligible for promotion and suchmaterial asmight fill someofthegaps,namely 5 themuch talked-about recommendation ofArmy Headquarters, is nowhere to be found. But, in the submission of applicants, the subjudice acts are void for more ponderous reasons still. The section of the law, s.5(l), under which the promotions were made, conferred no 10 power on the Council of Ministers to make promotions in the armyand, ifnopowervested inthem tomakepromotions under s.5(l), they could delegate none to the Minister of Defence. Section 19of the Interpretation Law -Cap.l, layingdown what ''power to appoint" imports, isof no assistance to the respon- 15 dents for, evidently, power to appoint does not include power to promote. The concept of promotion is, as they argued, a wholly different one from that of appointment. Therefore, we cannot infer power to promote in virtue of empowerment to appoint. The legislature wasaware of this difference and made 20 in s.16 of Law 8/61 (as amended by s.5 of Law 16/62) separate provision for promotions, laying down that promotions would be effected in accordance with regulations to be enacted by the Council of Ministers. Such regulations were introduced in 1981, gazetted on 5th June of the same year under the style 25 "Regulations providing for the Hierarchy and Promotions of Permanent Commissioned and Non Commissioned Officers." It is instructive to note that two of the applicants were promoted, under the new regulations, to lieutenant-colonels. in accordance with these regulations, the procedure for the 30 promotion of permanent officers isdifferent from that provided for in s.5 for the appointment of officers to the ranks of the Cyprus Army. Theconcept of promotion signifies ascension of the ladder of hierarchy. Accordingtosettledprinciplesofadministrativelaw, 35 ascendance must be made step by step, in the absence of an indication tothecontrary. Therefore,evenifweweretoassume that residual power vested in the Council of Ministers under Law 8/61 to make promotions in the army pending the intro472 3 C.L.R. Tooulias v. Republic Pikis J. duction of regulations, a highly questionable view, such promotions should be effected in accordance with settled principles of administrative law regulating promotions. They require examination of the ability, qualifications, seniority and general 5 performance of all officers eligible for promotion - in this case of all officers serving with the rank of major - with a duty to select those most suitable for promotion. (See, inter alia, Conclusionsfrom Jurisprudence of Greek Council of State192959, p.349 et seq.). In the cases under consideration, not even 10 an attempt was made to peruse the service records of those eligible, let alone evaluate their suitability for promotion. Had this exercise been undertaken, one or more of the applicants might have been found entitled to promotion, bearing in mind the material placed before the Court. I shall not probe 15 further intothisaspectofthecasesfor, itisnotfor theCourtbut for the appropriate organ of administration to judge their suitability for promotion. All this has been said by way of parenthesis for, as presently advised, I incline to the view that nopromotionscouldbemadeinthearmypendingtheestablish20 ment of the machinery envisaged by lawfor effecting suchpromotions. For all the above reasons, the subjudice decisions are set aside. There will be no order as to costs. Subjudicedecisions annulled. No order as 25 to costs. 473