clr/1983/1983_3_763.pdf

(1983)meantime, differently composed from the Public Service Commission which on 22nd September 1977had initially decided to effect the subsequently annulled promotion of the interested partytothepostconcerned; andatitsmeetingon 12.8.80,when the new sub judice decision was taken the Commission, after 5 deciding not to interview the candidates, took into account the performance of the applicant and of the interested party at the interviewson22ndSeptember 1977asa materialfactor militating in favour of the selection for promotion of the interested party instead of the applicant. 10 Held, that the evaluation of a candidate, when interviewed byacollectiveorgan suchas,inthiscase,thePublicServiceCommission, isnecessarily a subjective processinseparably connected with the persons of which the collective organ concerned is composed at the particular time; that, therefore, since the res- 15 pondent Commission decidednot tointerview thecandidates on the 12thAugust 1980it could not, in theproper exercise on that occasion of its relevant powers, use, as one of the criteria for selecting for promotion the interested party, the impressions regarding the candidates - including the apphcant and the said 20 interested party - which were formed at interviews of the candidates by a differently composed Commission on the 22nd September 1977 and which were recorded then in the minutes of the Commission; that, consequently, the respondent Commissionhason the 12thAugust 1980adopted acoursewhich was 25 not open to it in the proper exercise of its relevant powers, in that it was incompatible with the requirements of the correct functioning of a collective organ and of good administration generally, with the result that the process of selecting for promotion the interested party is vitiated by a material irregularity 30 andhastobeannulled onthisground,withouttherebeingnecessary to deal with any other reason for its annulment which has been put forward by counsel for the applicant. Sub judice decision annulled. Cases referred to: Zafirides v. Republic

(1980)3 C.L.R. 140 at pp. 147-

1. Recourse. Recourse against the decision of the respondent to appoint the interested party to the post of Occupational Therapist (Psychiatric) in preference and instead of the applicant. 764 35 40 3 C.L.R. Safirides τ. Republic Μ. Christophides, for the applicant. G. Constantinou {Miss), Counsel of the Republic, for the respondent. E. Efstathiou, for the interested party. 5 Cur. adv.vult. TRIANTAFYLLIDES P. read the followingjudgment. By means of the present recourse the applicant challenges the decision of therespondentPublicService CommissiontopromoteK.Koukkouris (to be referred to hereinafter as the "interested party") 10 to the post of OccupationalTherapist (Psychiatric) as from 1st December
2. This promotionwas published in the Official Gazette of the Republic on 19th September
3. The said decision,which is subjudice in thepresentproceed­ ings,was reachedby theCommission inrelation tothefilling of 15 the post in question after a previous promotion thereto of the interestedparty hadbeenannulledby thejudgment inarecourse which the applicant in thepresent case had filed against it (see Zafirides v. The Republic,

(1980)3 C.L.R. 140). It is pertinent to quote, at this stage, the following passages 20 from thejudgment of A. Loizou J. in the Zafiridescase, supra (at pp. 147, 148): 25 30 35 "In the present case the applicant has, as compared with the interestedparty about 13years of seniority and 15years of longer service. Inspite of this substantial seniority and greater experience the respondent Commission preferred the interested party. It is true that in its minutes it is stated thatduring the interview the interestedparty proved to be, together with Antigoni Petridou the best candidates for appointmentorpromotiontothepostinquestion. Also the representatives of the Departmentare recorded to have stated that the services of the said two officers had been very satisfactory and that they considered them very suit­ able for the post, but there is nothing in that opinion to suggestclearly a comparisonwith, or if thatamountedto a preference as against, the other candidates. In myviewtheseniority of the applicantis so substantial that in the circumstances of this case more cogent reasons 765 Triaotafyliides P. Safirides v. Republic

(1983)were called for in disregarding same, as in that way an administrative Court would have been enabled to ascertain whether the administrative discretion of the appropriate organ was properly exercised and so become capable of judicial control in the sense of Article 146 of the Consti- 5 tution. For all the above reasons the sub judice decision is annulled ontheground oflackofduereasoningasonaccount of itscircumstances samecould not beascertained from the 10 material in the file". The decision for the promotion which was annulled as above had been reached by the Public Service Commission on 22nd September

1. After thedelivery of thejudgment intheZafirides case,supra, 15 the respondent Commission, at its meeting on 17th April 1980, decided that the interested party should be notified that he reverted tohispreviouspostofAssistant OccupationalTherapist and that thematter offilling thethusvacatedpostofOccupational Therapist would be re-examined later. 20 It is indisputable common ground that the Public Service Commission which took the above decision on 17th April 1980 was, due to its reconstitution in the meantime, differently composed from the Public Service Commission which on 22nd September 1977had initially decided to effect the subsequently 25 annulledpromotionoftheinterestedpartytothepostconcerned. As it appears from the relevant minutes of the respondent Commission, on 12th August 1980, when it re-examined the filling of the post in question it had before it written advice by counsel for the Republic (who had appeared in the previous 30 proceedings,that istheZafiridescase,supra,and who,also,has appeared for therespondent inthepresent case)inwhichitwas stated that the candidates should be interviewed once again. The Chairman of the Commission stated, however, that after discussing the matter with the Attorney-General of the Re- 35 publicthelatterhadadvisedorallythatthecandidatesshouldnot be interviewed afresh and that they should be evaluated on the basis of the material which existed at the time when the earlier, 766 3 C.L.R. Safirides v. Republic Trianlafyllides P. and later annulled by the Supreme Court, decision to promote the interested party was taken. Then the Commission proceeded to hear theviewsabout the' candidatesof theDirectorof theDepartmentof MedicalServices 5 and of the Director of the Psychiatric Institutions,who referred to, among other things, theperformance of the candidates when interviewed by the Commission on 22nd September
2. Particularly the Director of Psychiatric Institutions stated that he remembered well that at the interviews in question the 10 performance of the applicant was much inferior to that of the interested party; and as it is recorded in the minutes of its meetingon 12thAugust 1980theCommissiontook special notice of what was stated at that meeting, as aforesaid, about theper­ formance of thecandidateswhen interviewed on22nd September 15 1977 by the Commission. Then,theCommission proceeded torecord in its saidminutes ot 12th August 1980 that in making on that date its evaluation of ιhe candidates it took into account, also, the impression formed by the Commission when the candidates had been in20 terviewed previously,as such impressions are to be found inthe minutesof themeetingoftheCommissiononthe22ndSeptember 1977; and as it can be seen from such minutes, which are quoted in thejudgment in the Zafirides case, supra (at pp. 143, 144), the Commission on 22nd September 1977 found that the 25 interested party, together with another candidate who is not involved in the present proceedings, were the best candidates. It follows, from all the'foregoing, that at its meeting on 12th August 1980 theCommissiontook intoaccounttheperformance of theapplicant and of the interested party at the interviews on 30 22nd September 1977 as a material factor militating in favour of the selection for promotion of the interested party instead of the applicant. As has already been stated in thisjudgment the composition of the Commission on the 22nd September 1977 was different 35 from thecomposition of the Commission onthe 17thApril 1980 and, later, on the 12th August 1980 when the now sub judice decision to promote the interested party was reached. 767 Triantafyffides P. Safirides v. Republic

(1983)Inmyopiniontheevaluation ofacandidate,wheninterviewed by a collective organ such as, in this case, the Public Service Commission, is necessarily a subjective process inseparably connected with the persons of which the collective organ concerned is composed at the particular time. 5 In my view, therefore, since the respondent Commission decided not tointerview thecandidates on the 12thAugust 1980 itcouldnot,intheproperexerciseonthatoccasionofitsrelevant powers,use,asoneofthecriteriafor selectingfor promotionthe interested party, the impressions regarding the candidates - 10 including the apphcant and the said interested party - which were formed at interviews of the candidates by a differently composed Commission on the 22nd September 1977 and which were recorded then in the minutes of the Commission. Consequently, the respondent Commission has on the 12th 15 August 1980adopted a course which was not open to it in the properexerciseofitsrelevantpowers,inthatitwasincompatible with the requirements of the correct functioning of a collective organ and of good administration generally, with the result that the process of selecting for promotion the interested party is 20 vitiated by a material irregularity andhasto beannulled onthis ground, without there being necessary to deal with any other reason for itsannulment whichhasbeenput forward bycounsel for the applicant. So, this recourse succeeds; but, in the circumstances, I will 25 make no order as to its costs. Subjudicedecision annulled. No order as to costs. 768