clr/1983/1983_3_921.pdf

(1983)should have given full reasons for preferring these interested parties to applicant—Reasons given for selecting them contrary to the relevant administrative records and incompatible with the factors taken into accountby them—No due inquiry carried out— Promotions of these interested parties annulled. 5 Administrative Law—Administrative acts or decisions—Reasoning— Due inquiry—Public Officers—Promotions—Reasoning therefor contrary to the relevant administrative records and incompatible with the factors taken into account by them—No due inquiry carried out—Promotions annulled. 10 Public Officers—Promotions—Head of Department—Recommendations before the Public Service Commission and participation in Departmental Board—Possible because there is no conflict between section 36 and section 44

(3)of the Public Service Law, 1967 (Law 33/67). 15 Public Officers—Departmental Board—Regulations made by the Council of Ministers under J . 3 6 of the Public Service Law, 1967 (Law 33/67)—Construction of the proviso to regulation 1(b). Bias—Administrative decision—Bias of those participating in the decision taking process renders the decision vulnerable—Confidential reports—Alleged bias of reporting officer—Inquiry by Court into—Does not empower it to substitute its evaluation and grading of a civil servantfor that of the reporting officer. 20 Public officers—Confidential reports—Adverse confidential reports— Non-communication to officer concerned—Effect—Section 45

(4)of the Public Service Law, 1967 (Law 33/67). 25 Public Officers—Confidential reports—Need for improvements to the system of preparation of. Public Officers—Promotions—Qualifications—Additional qualifications which are akin to the duties of the officer—Effect. 30 Public Officers—Schemes of service—Interpretation by Public Service Commission—Judicial Control—Principles applicable—"Postgraduate education of oneat least academic year" in the relevant scheme of service—Interpretation, as meaning a continuous academic year, a reasonable one. 35 The applicants in these recourses challenged the validity of 922 \ 3 C.L.R. Soteriadou and Others v. Republic the decision of the respondent Public Service Commission to promote to the post of Senior Agricultural Officer the interested parties in preference and instead of the applicants. 5 10 15 20 25 30 35 In taking the subjudice decision the respondent Commission stated in the relevant minutes that they have considered all material factors as emerging from the personal files of the candidates and the confidential reports and took into consideration the report of the Departmental Board and the recommendations oftheDirector ofAgricultureandconcluded thatthe 12persons, who were promoted, were superior to all the other candidates on the basis of the totality of the established criteria (merit, qualifications, seniority), and, having found them suitable, promoted them. In addition to dealing with the general issues concerning the merit, qualifications and seniority of the candidates the Court, also, dealt with the following issues: (a) Whether the Head of Department who chaired the Departmental Board,establishedundersection36of the Public Service Law, 1967(Law 33/67),was entitled to attend the meeting of the Public Service Commission and make recommendations under section 44

(3)of the Law. (

1. b)Whether in view of the provisions of the proviso to regulation 1(b)oftheRegulations madebythe Council ofMinistersunders.36 of Law33/67 the Head of the Department could participate at the meeting of the Departmental Board given that the postswhich were filled were directly under him because the post of Superintendent, which was directly under him, was vacant at the material time and the posts to be filled were directly under the post of Superintendent. (
2. c)Whether a candidate who has attended post graduate courses or studies over various periods can be considered as possessing the additional qualifications of "successful post graduate education for one at least academic year" when the said various periods if computedtogether areinalllongerthan oneacademicyear. (
3. d)Whether possession of additional qualifications by a candidate should be considered as .an advantage. 923 Soteriadou and Others v.Republic

(1983)(

1. e)Whether the confidential reports concerning applicant Soteriadou were tainted with bias. From the administrative records be]ore the Court it appeared that onthewholeapplicant Michaelideshad more qualifications, more overall experience and seniority than interested parties Neocleous and Kalimeras and better confidential reports than Neocleous. The remaining applicants were not strikingly superiorto theinterested partiesas far as merit, qualifications and seniority were concerned. 5 Held,after stating theprinciples governing judicial control of 10 promotionsand the effect of merit, qualifications andseniority, and the recommendations of the Head of Department, that sinceonthewholeapplicant Michaelideshadmore qualifications, more overall experience and seniority than Neocleous and Kalimeras and better confidential reports than Neocleous this 15 Court would have expected that the Commission should have given full reasons for preferring these two interested parties to applicant Michaelides, which they failed to do; that the whole object of the rule requiring reasons to be given by the Commissioninadministrativedecisionsistoenablethepersonconcerned, 20 aswell asthisCourt on review,to ascertain in eachcasewhether thedecisioniswellfounded infact andinlaw; that thereasons given by the respondent Commission in its minutes for selecting the aforesaid two interested parties appear to be definitely contrary to the relevant administrative records and incompatible 25 with the factors taken into account by them; that as a consequence of the above it may safely be said that the Commission did not carry out a due inquiry; accordingly the recourse of applicant Michaelides will succeed in so far as thepromotion of interested party Neocleousisconcerned andwillfail in sofar as 30 it relates to the promotion of interested party Marcou. The recourse of applicants Soteriadou and Pissourios will fail because what was said about applicant Michaelides cannot be said about these applicants. Held, further, on issues (
2. a)- (
3. e)above:

(1)That there isno conflict between section 36and s.44

(3)of Law 33/67 (p. 930 post).

(2)That since the posts of Senior Agricultural Officer are not hierarchically directly subordinate to the Head of the Depart924 35 3C.L.R. 5 10 15 20 25 30 35 40 Soteriadooand Others*.Republic \ment the temporary vacancy of the post of Superintendent, to whom the holders of the post of Senior Agricultural Officer aredirectly subordinate,doesnot leaveroom for the application of the 'proviso to regulation 1(b); that this proviso applies wheretheholdersofthepost aredirectly subordinate, according to the structure of a department, and not where the post of the superior officer isvacant. Even if, however, the contrary view istaken, the participation of the Head of the Department isnot such as to render the report of the Departmental Board, and ultimately the decision of the Commission, a nullity. It might have been a violation of the proviso but it would not have as a consequence the annulment either of the report of the Board or the ultimate decision of the Commission.

(3)That indeciding whether or not theCommission inagiven case has conformed with the relevant scheme of service, the Court will not give to such scheme a different interpretation other than that given to it by the Commission, provided that such interpretation wasreasonably open to it on thebasis of the wording of the scheme in question; that this Court is satisfied that the interpretation given by the Commission, that postgraduate education of one at least academic year means a continuous academic year, wasa reasonable one on the basis of the wording of the scheme of service.

(4)That though a qualification cannot be considered as an advantage over othercandidates ifit isnot expressly stated to be sobytherelevant schemeofservice,inpromotions qualifications beyond those required by the scheme of service,which are akin to the duties of the officer and which make him more suitable in the carrying out of such duties, should be taken into consideration.

(5)That bias of one or more of those participating in the decision taking process or affecting the material on which the decision isbased renders thedecision vulnerable on the ground of unfairness; and that, therefore, if it is proved that the reporting officer had personal animosity or was motivated by extraneous factors, then, depending on its nature and circumstancesgivingriseto it, it istaken into consideration whether a case of bias isestablished; that the inquiry of this Court as to whether the reports are biassed doesnot empower thisCourt to substitute its evaluation and grading of a civil servant for that 925 Soteriadou and Others v. Republic

(1983)of the reporting officer but since certain confidential reports concerning this applicant gave a gloomy picture of an irresponsible officer they ought in pursuance of s.45

(4)of Law 33/67 to becommunicated to her; that the material before the Court with regard to the reports of Louca is so flimsy that cannot 5 support the charge of bias. The applicant has not discharged the burden cast on her. The same, however, cannot be said about the reports of Papasolomontos. On the totality of the material before this Court it can safely be inferred that the reports of Papasolomontos were tainted with bias and lacked 10 impartiality. It may benoted, however, that even if the reports from 1975 onwards are taken into consideration, she is not strikingly superior, not even superior, to the interested parties. Observations with regard to the desirability of bringingabout improvements tothesystemofpreparation ofconfidential reports. 15 Recourse 141/82 succeeds. Recourses 476/81 and 141/82dismissed. Cases referred to: Thalassinos v. Republic

(1973)3 C.L.R. 386 at p. 391; Theodossiouv. Republic, 2 R.S.C.C. 44 at p. 47; 20 Menelaouv. Republic

(1969)3 C.L.R. 36 at p.41; Pattichis and Another v. Republic

(1968)3 C.L.R. 374; Georghiouv. Republic

(1976)3 C.L.R. 74 at p. 82; Georghiades and Another v. Republic

(1970)3 C.L.R. 257 at p. 269; 25 Koussoulides v. Republic

(1967)3 C.L.R. 438; Partellides v. Republic

(1969)3 C.L.R. 480; Smyrnios v. Republic

(1983)3 C.L.R. 124; Papapetrou v. Republic, 2 R.S.C.C. 61 at p. 69; Petsas v. Republic, 3 R.S.C.C. 60 at p. 63; 30 Kleanthous v. Republic

(1978)3 C.L.R. 320; Bagdades v. Central Bank of Cyprus

(1973)3 CL.R. 417 at pp. 427-428; HjiGeorghiou v. Republic

(1975)3 C.L.R. 477; Georghiouv. Republic

(1975)3 C.L.R. 153 at pp. 159-160; 35 Christou v. Republic

(1980)3 CL.R. 437; Short v. Poole Corporation[1926] Ch. 66 at p. 91; 926 \ 3 C.L.R. \ 5 Soteriadou and Others v. Republic Smith v. East Elbe R.D.C. [1956] 1 All E.RV855; Pieridesv. Republic

(1971)3 C.L.R. 233 at p. 250; ,KoraiandAnother v. C.B.C.

(1973)3C.L.R. 546at pp.570,573; Petrides v. Republic

(1975)3 C.L.R. 371; Kyriacopoullou v. Republic

(1973)3 C.L.R. 1 at p.

1. Recourses. Recourses against the decision of the respondents to promote the interested parties to the post of Senior Agricultural Officer in preference and instead of the applicants. 10 15 L. N. Clerides with B. Vassiliades for applicant in Case No. 476/
2. K. Chrysostomides, for applicant in Case No. 13/
3. A. Markides, for applicant in Case No. 141/
4. E. Papadopoullou (Mrs.), for respondents. P. Petrakis, for interested parties Grivas and Markou. Cur. adv. vult. STVLIANIDES J. read the following judgment. The Department of Agriculture was restructured and 12 posts of Senior Agricultural Officer were created- The scheme of service for 20 the aforesaid posts was approved by Decision No.-20985 of the Council of Ministers dated 6th November,
5. The Ministry of Finance authorised the filling of the said posts and on 9th November, 1981, by letter (Appendix 1) the respondent Commission was requested by the Director-General of the Ministry 25 of Agriculture and Natural Resources to make the necessary arrangements for thefilling of the said postsespecially in-view of the fact that one of the candidates was due to retire on 1st December,
6. The Public Service Commission (hereinafter referred to as 30 "the Commission") at its meetings of 12.11.81 and 25.11.81 (Appendices 2 and 3) decided that a list of the officers eligible for promotion be prepared by its Secretary and be forwarded together with their personal files ,and confidential reports as well as the scheme of service (Appendix 4) to the Chairman of 35 the.Departmental Board,established under s.36 of the Public Service Laws 1967-1980 and regulation 3 made thereunder by the Council of Ministers. On the'same day, 25th November, 927 StjBanides Λ. Soteriadou nnd Others r. Republic

(1983)1981, the Secretary, of the Commission implemented the said decision-directions. The list of candidates contained 27 names. The Depart­ mental Board, chaired by the Director of the Department of Agriculture, met on 26th November, 1981 and, after considerationof thelistofcandidatesfor promotionandthe qualifications required under the scheme of service, excluded three Agri­ cultural Officers; Class 1, as lacking the prescribed qualifica­ tions.' Its report is Appendix

1. The material part of thesaid report is paragraph 5 that reads as follows:· 5 10 " Ή Τμηματική'Επιτροπήστη συνέχεια άφοΰ ίλαβευπόψη δτι ο! υπηρεσίες όλων των 24 υποψηφίωνπού Ικανοποιούν το Σχέδιο Υπηρεσία* της θέσεως 'Ανώτερου Γεωργικού Λειτουργού, όπως φαίνεται καΐ άπό τΙς 'Εμπιστευτικέ? 'Εκθέσεις πού υποβλήθηκαν γΓ αυτούς, υπήρξαν πολύ 15 Ικανοποιητικές, απεφάσισε ομόφωνα νά συστήσει καΐ τους 24 υποψηφίους για επιλογή σχετικά μέ διορισμό στϊς 12 μόνιμες (Τακτ. Προϋπολ.) Θέσεις 'Ανώτερου Γεωργικού Λειτουργού, κατ* αλφαβητικήσειρά". ("The Departmental Board further and after having taken 20 into consideration that the services of all the 24 candidates who satisfy the Scheme of Service of the post of Senior Agricultural Officer, as it appears also from the confiden­ tial reports submitted onthem,have been very satisfactory, decided unanimously to recommend all the 24 candidates 25 for selection with regard to appointment to the 12 per­ manent (Ord. Est.) posts of Senior Agricultural Officer, in alphabetical order"). This report was sent to the Commission on 26th November,
2. On 27th November, 1981, the Commission considered 30 the report of the Departmental Board and in view of the im­ minent retirement of one of the candidates, Sawides, decided to take up the matter of the filling of the said posts on the following day, the 28th November, 1981, and notified the Director of the Department of Agriculture - the Head of the 35 Department - to be present. On 28th November, 1981, the Commission met; the Head of the Department - Director of Agriculture - placed before them a sketch of the new structure of the Department to assist the Commission in the filling of these promotion posts and he made his recommendations. 40 928 \ 3 C.L.R. Soteriadou and Others v. Republic Styll&nldes J. y The respondent Commission at its meeting of 30th November, 1981- the 29th being a Sunday - took the subjudicedecision for thepromotion of 12of the candidates, Appendix 8, to which reference will be made later on in this judgment. The promotion of Sawides was published in theOfficial Gazetteon 4.12.81 and the promotion of all the others on 8.1.
3. The applicants, being aggrieved, filed these recourses. Soteriadou - applicant in Case No. 476/81 - complains against the promotion of all 12but in the course of the hearing she withdrew her complaint against the promotion of Sawides who retired prior to the filing of her recourse. Applicant in Case No. 13/82, Philippos Michaelides, challenges the promotion of Panayiotis Kalimeras,Georghios Neocleousand Petros Marcou, and applicant Pissourios in Recourse No. 141/82 attacks the promotion of Georghios Neocleous and Petros Marcou, but in the written address of his counsel he withdrew his complaint against the promotion of Marcou. They seek a declaration that the subjudice decision in so far as it relates to the promotion of the interested parties is null and void and of no legal effect and they pray for the annulment of such decision by the Court. The complaint of the applicants is the promotion of the interested parties in preference to them and the failure of the Commission toprefer each oneofthem instead of the interested parties. They complain that:(a) The Commission failed to select the most suitable candidate having regard to seniority, merit and qualifications and the statutory provisions governing promotions; (b) The Commission acted in excess and/or in abuse of power in the exercise of its discretionary powers and that the applicants had striking superiority over the •interested parties; (c) The Commission failed to carry out a due inquiry; (d) The decision for promotion of the interested parties is lacking due reasoning; (e) Undue weight was given to the recommendations of the Head of the Department which are not supported by the other material before the Commission; and, 929 Stylianides J. Soteriadou and Others v. Republic .

(1983)(f) There wasdiscrimination in the sense that comparison was made only between interested party Kyriacou and Michaelides, a candidate recommended by the Head of the Department and not promoted by the Commission, but not between the applicants and the interested 5 parties. Further Mr. Clerides for applicant in Case No. 476/81 submitted that as the Head of the Department chaired the Departmental Board established under s.36, he was not entitled to attend the meeting of the Public Service Commission and make 10 recommendations as s.44

(3),that providesthat"theCommission shall have due regard to the recommendations made in this respect by the Head of the Department in which the vacancy exists",is rendered nugatory by the report containing theevaluation of the candidates by the Departmental Board. 15 Section 36provides for the establishment of boards to advise the Commission in respect of appointments or promotions. The regulations impose on such Board to select not less than two and not more than four for each vacancy, if there are suitable persons for such recommendation. The function of 20 the Head of the Department at the meeting of the Commission is to recommend which of the candidates already submitted to the Commission by the Departmental Board should be appointed. The Departmental Board takesapreparatory decision that advises the Commission when there are many candidates. 25 If and when the candidates for each vacancy are less than four, again the evaluation and the report of the Departmental Board are different in some way in nature to the recommendation envisaged by s.44 by the Head of the Department. Isee no conflict between s.36 and s.44

(3). 30 In Gregoris Thalassinos v. The Republic,

(1973)3C.L.R. 386, at p. 391, we read:"Furthermore, a Board set up under the provisions of section 36, advises the Commission directly and independently of its obligation under section 44

(3), that in 35 making a promotion due regard shall be had to the recommendations made by the Head of the Department in which the vacancy exists". It was canvassed by counsel in Recourses No. 476/81 and 930 3 C.L.R. 5 Soteriadou and Others v. Republic Stylianides J. 141/82 that the constitution of the Departmental Board by the inclusion therein of the Director of Agriculture was faulty in that in substance and effect at the material time the posts* which were filled, were directly under him, this being contrary to the proviso to regulation 1(b) made by the Council of Minis­ ters under s.36 of Law 33/

1. It is common ground, and it is apparent from the sketch produced showing the structure of the Department, that the Head of the Department is the Director. Directly under him 10 is the Superintendent and under the Superintendent are the 12 posts of Senior Agricultural Officer. The post of Superinten­ dent was created by the supplementary budget published in the Official Gazette of 22.4.
2. It was vacant at the material time. It was filled later by the promotion of Parissinos, one of the 15 interested parties in Recourse No. 476/
3. The proviso reads as follows:- 20 25 30 "Νοείται ότι οσάκις πρόκειται περί πληρώσεως θέσεων ol κάτοχοι τών οποίων είναι ίεραρχικως αμέσωςυφιστάμενοι τοΰ Προϊσταμένου τοϋ οΙκείου Τμήματος ή Υπηρεσίας, ώς Πρόεδρος της Τμηματικής 'Επιτροπής ενεργεί ό Γενικός Διευθυντής τοϋ οίκείου Υπουργείου, τα 5έ λοιπάμέλη αΰτης, έξ ών θά είναι ό οίκείος Προϊστάμενος, επιλέγονται ύπό τοϋ Γενικοΰ Διευθυντού διά τήν_συγκεκριμένην περίπτωσιν". ("Provided that when filling posts the holders of which are hierarchically directly subordinate to the Head of the Department or Service concerned, the Director-General of the Ministry concerned acts as Chairman of the Depart­ mental Board, the rest of its members, one of them being the Head of Department, being selected by the DirectorGeneral for the particular case"). The posts of Senior Agricultural Officer are not hierarchical­ ly directly subordinate to the Head of the Department. There­ fore, the temporary vacancy of the post of Superintendent, to whom the holders of the post of Senior Agricultural Officer are 35 directly subordinate, does not leave room for the application of the proviso. It is the view of this Court that this proviso applies where the holders of the post are directly subordinate, according to the structure of a department, and not where the post of the superior officer is vacant. Even if, however, the 40 contrary view is taken, the participation of the Head of the 931 Stylianides J. Soteriadou and Others v. Republic

(1983)Department is not such as to render the report of the Departmental Board, and ultimately the decision of the Commission a nullity. It might have been a violation of the proviso but it would not have as-a consequence the annulment either of the report of theBoard or theultimate decision of theCommission. 5 The Public Service Commission is a most important factor for the efficient functioning of the State. The interests of the citizens in a modern State, whose activities are expanding, are best served by qualified, experienced and efficient civil servants. The paramount duty of the Commission in effecting 10 promotions is to select the candidate most suitable, in all the circumstances of each particular case, for the post in question. In doing so the Commission should decide who is the most suitable amongst the qualified candidates on the totality of the circumstances pertaining to each one of them. (Theodossiou v. 15 The Republic, 2 R.S.C.C. 44, at p. 47). The claim of officers to promotion should be considered on the basis of merit, qualifications and seniority. Merit should carry the most weight because the functions of a public office are better performed in the general interests of the public by a 20 public officer better in merit than seniority or qualifications. (Menelaou v. The Republic,

(1969)3 C.L.R. 36, at p. 41). As already said, it is theduty of the promoting authority to promote the most suitable candidate. The first duty of this Court in reviewing promotions is to seewhether the Authority 25 exercised its discretionary power in conformity with the statutory provisions and the rules and requirements of administrative law generally, including good faith. So long as the Authority acted within those limits, the Court cannot interfere; it cannot substitute its own opinion as to themerits of the can- 30 didates for that of the promoting Authority. (Pattichis and Another v. The Republic,

(1968)3 C.L.R. 374). It is accepted as quite correct the proposition that it is open to the Commission, in trying to select the most suitable candidate, to weigh together all relevant considerations and to 35 attributemore significance toone factor than to another, in the course of doing so, provided, however, that it exercises properly its relevant discretion; (see the decision of the Greek Council of State in Case No.635/50); and this Court will not interfere with a decision of the Commission when it appears 40 932 3 C.L.R. 5 Soteriadou and Others v. Republic Styllanldes J. that it was reasonably open to it to select a particular officer, instead of another, for promotion. (Odysseas Georghiou v. The Republic,(Public Service Commission),

(1976)3 C.L.R. 74, at p. 82). The whole career of the candidate concerned has to be taken into account. An administrative Court cannot intervene in order to set aside the decision regarding such selection unless it is satisfied, by an applicant in a recourse before it, that he was an eligible candidate who was strikingly, superior to the one who was 10 selected, because only in such a case the organ which has made the selection for the purpose of an appointment or promotion is deemed to have exceeded theouter limits of its discretion and, therefore, to have acted in excess or abuse of its powers; also, in such a situation the complained of decision of the organ 15 concernedis to be regarded as either lacking due reasoning or as based on unlawful or erroenous or otherwise invalid reasoning. The onus of establishing striking superiority lies always on the applicant in a recourse. (Georghiou (supra) and Georghiades and Another v. The Republic,

(1970)3 CL.R. 257, at p. 269). 20 After annulment of a promotion the Administration has to pro­ ceed to make afresh a new and duly reasoned comparison of the candidates concerned. 25 It is considered pertinent to quote at this stage the material part of the scheme of service (Appendix 4Γ). the recommendations of the Head of the Department (Appendix 7) and the de­ cision of the Commission (Appendix 8):SCHEME OF SERVICE: Qualifications: The required qualifications under the scheme of service are:30

(1)At least three years* service in the post of Agricultural Officer "A"/Agricultural Officer, 1st Class/Soil Con­ servation Engineer, 1st Grade;

(2)'Επιτυχής μεταπτυχιακή έκπαίδευσις ενός τουλάχιστον ακαδημαϊκού έτους. 35

(3)Ευρεία διοικητική πεΤρα καΐ οργανωτική Ικανότης ώς καΐ αρίστηγνωσιςίων συνθηκώντης Κυπριακής γεωργίαςκτηνοτροφίας.

(4)Άκεραιότης χαρακιήρος, ύπευθυνότης, πρωτοβουλία καΐ ευθυκρισία. 933 Slylianides J. Soteriadou and Others v. Republic

(5)'Αρίστη γνωσις της 'Ελληνικής καΐ πολύ καλή γνώσις της 'Αγγλικής γλώσσης. ("SCHEME OF SERVICE: Qualifications: , The required qualifications under the scheme of service are:- 5 "

(1)At least three years' service in the post of Agriculture Officer 'A'/Agricultural Officer 1st Class/Soil Conser­ vation Engineer, 1st Grade;

(2)Successful post graduate studies of at least one academic year's duration;

(3)Wide administrative experience and ability to organise as well as excellent knowledge of Cyprus Agriculture and stock-farming conditions;

(4)Integrity of character, responsibility, initiative and sound judgment;

(5)10 15 Excellent knowledge of the Greek and very good know­ ledge of the English language." For officers in the service at the time of the approval of this scheme the post-graduate education is considered only as an additional qualification. 20 The applicants and the interested parties possess the required qualifications. RECOMMENDATIONS MENT: OF THE HEAD OF THE DEPART­ "Ούτος, άφοΰ κατέθεσεν ενώπιον της Επιτροπής σχέδια- 25 γράμμα της νέας διαρθρώσεως τοϋ Τμήματος Γεωργίας, δια νά βοηθηθή ή Επιτροπή είς το έ*ργον της πληρώσεως τών θέσεων, συνέστησε δια προαγωγήν τους κ.κ. Ίούλισν Παρισινόν, Θεμιστοκλήν Φωτιάδην, Κϋρον Σαββίδην, Γεώργιον Άγράτην, ΣοφοκλήνΣοφοκλέους, Κωνοταντϊνον Φωκαν, 30 Γεώργιον Γρίβαν, Παναγιώτην 'Αριστοτέλους, Παναγιώτην Καλημέραν, Γεώργιον Νεοκλέους, Παναγιώτην Μιχαηλίδην καΐ Πετράκην Μάρκου,δια τον λόγον δτι είναι πάρα πολύ καλοί,μεταξύ6έαυτών οϊκ.κ.Παρισινός,Φωτιάδης,Σαββίδης, Φωκάς, Γρίβας, 'Αριστοτέλους, Καλημέρας, Νεοκλέους καΐ 35 Μάρκου δύνανται νά χαράκτηρισθοϋν ώς εξαίρετοι. "Ολοι οϊ υπό τής Τμηματικής 'Επιτροπής συστηθέντες 934 3 C.L.R. Soteriadou and Others v. Republic Stylianides J. έχουν εΰρεϊαν διοικητικήν πεΤραν, ώς απαιτείται υπό τοϋ οίκείου Σχεδίου Υπηρεσίας. 5 'Επιτυχή μεταπτυχιακήν έκπαίδευσιν ενός τουλάχιστον έτους, ήτις θεωρείται ΰπό τοϋ οίκείου Σχεδίου Υπηρεσίας ώς πρόσθεταν προσόν, έχουν οι ακόλουθοι 18: Otυπόλοιποιέξυποψήφιοι δένέχουντό Ινλόγωπρόσθετον προσόν. 10 15 20 25 Κατά τήυκρίσιν του, λαμβανομένων ύπ' όψιν των καθιερωμένων κριτηρίων έντ φ συνόλω των, ήτοι τήςαξίας, των προσόντων καΐτήςπείραςκαί αρχαιότητος τωνυποψηφίων, οί υπ* αύτοϋσυστηθέντες υπερτερούν των λοιπών υποψη­ φίων". ("He, after putting before the Commission a plan forthe new structure of the Department of Agriculture, in order to help the Committee in its task of filling the posts, recommended for promotion Messrs. Ioulios Parisinos, Themistoklis Photiades,Kyros Sawides, Georghios Agrotis, Sofoclis Sofocleous, Constantinos Phokas, GeorghiosGriy as, Panayiotis Aristotelous, Panayiotis Kalimeras, Geor­ ghios Neocleous, Panayiotis Michaelides and Petrakis Markou,forthe reason thatthey arevery good, amongthem Messrs. Parisinos, Photiades, Sawides, Phokas, Grivas, Aristotelous, Kalimeras, Neocleous and Markou may be described as excellent. All those recommended by theDepartmentalCommittee have wide administrative experience, as required by the relevant scheme of service. 30 Successful post graduate studies of at least one year's duration which is considered by the relevant scheme of service as an additional qualification, is possessed by the following 18; The remaining six candidates do nothave the said ad­ ditional qualification. 35 According to his judgment, having in mind the establi­ shed criteria as a whole, i.e. merit, qualifications and experience andseniority of candidates, those recommended by him are superior to the remaining candidates"). 935 Slylianides J. DECISION Soteriadou and Others v. Republic OF THE

(1983)COMMISSION: It reads as follows:" Ή 'Επιτροπή προέβη εϊς άξιολόγησιν των υποψηφίων καΐ σύγκρισιν τούιων μεταξύ των. Ή 'Επιτροπή έξήτασε ι ά ουσιώδη στοιχεία άπό τους Προσωπικούς Φακέλλους τών υποψηφίων καϊ τάς περί αυτών *Εμπιστευτικός 'Εκθέσεις καΐ Ιλαβεν υπ' όψιν τά πορίσματα τής Τμηματικής "Επιτροπής καϊ τάς κρίσεις καϊ συστάσεις τοΰ Διευθυντού τού Τμήματος Γεωργίας. 5 Ή 'Επιτροπή υϊοθέτηοε τάς συστάσεις τοΰ Διευθυντού 10 τού Τμήματος Γεωργίας, πλην τής περππώσεως τού κ. Παναγιώτου Μιχαηλίδου, κρίνασα ώς ύπέρτερον αυτού τόν κ. Ίωάννην Κυριακού διά τους ακολούθους λόγους: Ή έν γένει άπόδοσις τοΰ κ. Κυριακού, ώς αντικατοπ­ τρίζεται είς τάς περί αυτού Εμπιστευτικός "Εκθέσεις είναι υψηλού επιπέδου, συγκεκριμένως δέ κατά τά δύο τελευταία έτη ούτος έβαθμολογήθη γενικώς ώς "Λίαν Καλός", ώς καϊ ό κ. Μιχαηλίδης. 15 "Από πλευράς προσόντων τόσον ό κ. Κυριακού όσον καϊ ό κ. ΜιχαηλίΒης διαθέτουν τό προβλεπόμενον 20 Οπό τού οίκείου Σχεδίου Υπηρεσίας πρόσθεταν προσόν, αλλ* 6 κ. Κυριακού κατέχει "Degree of Master of Agriculture, University of Florida", ένώ 6 κ. Μιχαη­ λίδης κατέχει "Diploma in Agricultural Extension Methods, University of Reading". 25 Ά π ό πλευράς αρχαιότητος ό κ. Κυριακού προηγείται τού κ. ΜιχαηλΙδη πέραν τών πέντε ετών. Έν συμπεράσμαη, ή Επιτροπή κατέληξεν εϊς τό συμπέ­ ρασμα δτι οϊ κάτωθι υποψήφιοι υπερτερούν τών λοιπών υποψηφίων επί τη βάσει τοΰ συνόλου τών καθιερωμένων 30 κριτηρίων (αξία,προσόντα, άρχαιότης) καϊεύροΰσα αυτούς καταλλήλους άπεφάσισεν όπως τους προαγάγη είς τάς κενάς μονίμους (Τακτ. Προϋπ) θέσεις 'Ανωτέρου Γεωργικού Λειτουργού είς τό Τμήμα Γεωργίας:

1. ΑΓΡΟΤΗΣ Γεώργιος
2. ΑΡΙΣΤΟΤΕΛΟΥΣ Παναγιώτης 936 35 3 C.L.R. Soteriadou and Otbers v. Republic SlyJiankk» J.
3. ΓΡΙΒΑΣ Γεώργιος
4. ΚΑΛΗΜΕΡΑΣ Παναγιώτης
5. ΚΥΡΙΑΚΟΥ Ιωάννης
6. ΜΑΡΚΟΥ Πετράκης 5 7 ΝΕΟΚΛΕΟΥΣ Γεώργιος
7. ΠΑΡ1Σ1ΝΟΣ 'Ιούλιος
8. ΣΑΒΒΙΔΗΣ Κΰρος 10 ΣΟΦΟΚΛΕΟΥΣ Σοβοκλής 11 ΦΩΚΑΣ Κωνσταντίνος 10
9. ΦΩΤΙΑΔΗΣ Θεμιστοκλής". ("The Commission proceeded with the evaluation of the candidates and the comparison between them. 15 20 25 30 35 The Commission considered the essential elements from the Personal Files of the candidates and the confidential reports on them and took into consideration the con­ clusions of the Departmental Board and the opinion and recommendations of the Director of the Department of Agriculture. The Commission accepted the recommendations of the Director of the Departmentof Agriculture, except for the case of Panayiotis Michaelides, having considered Mr. loannis Kyriacou as superior to him for the following reasons:In general the performance of Mr. Kynacou, as refleeted in the confidential reports on him is of high standard, particularly so for the last two years he has been graded generally as 'very good*, as Mr.Michae­ lides. As far as qualifications are concernedMr. Kyriacou as well as Mr. Michaelidespossess therequired by the relevant scheme of service additional qualification but Mr. Kyriacou possesses 'Degree of Master of Agri­ culture, University of Florida', whereas Mr. Michae­ lides possesses 'Diploma in Agriculture Extension Methods, University of Reading*. With reference to seniority Mr. Kyriacou precedes Mr. Michaelides by more than five years. 937 Styllanides J. Soteriadou and Others τ. Republic

(1983)In the result the Commission came to the conclusion that theundermentionedcandidatesare superior tothe rest of thecandidates on thebasis of all theestablished criteria (merit, qualifications, seniority) and having found them suitable decided to promotethem to thevacant permanent 5 (Ord. Est.) posts of Senior Agricultural Officer in the Department of Agriculture:

12. Agrotis Georghios Aristotelous Panayiotis Grivas Georghios Kalimeras Panayiotis Kyriacou loannis Markou Petrakis Neocleous Georghios Parissinos Ioulios Sawides Kyros Sofocleous Sofoclis Phokas Constant!nos Photiades Themistoklis") SENIORITY: Seniority between officers holding the same office is deter­ mined by the effective date of appointment or promotiontothe particular office or grade. (Section 46

(1)before its repeal and substitution by s.5(a) of Law No. 10/83). In the case of si­ multaneous appointment or promotion to the particular office or grade of thesame office, seniority is determinedaccordingto the officers' previous seniority. (Section 46

(2)before itsamen­ dment by s.5 of Law No. 10/83). 20 25 According to the scheme of service an officer was eligible for promotion if he had three years' service in the post of Agri- 30 cultural Officer "A''/Agricultural Officer, 1st Grade/Soil Con­ servation Engineer, 1st Grade. Applicant Soteriadou is holding the post of Agricultural Officer, Class I; Philippos Michaelides and Demos Pissourios hold the post of Soil Conservation Engineer, Class 1, and the 35 interested parties are Agricultural Officers, Class I. 938 3 C.L.R. Soteriadou and Others τ. Republic Stylianldes J. Interested parties Parissinos, Photiades and the retired Sawi­ des were far senior toall thecandidates, including theapplicants. 5 10 A list of the first date of appointmentand date of promotion to these posts for the applicants and the other interested parties is given hereinbelow:Date of first appointment Dateof promotion to Class 1 Applicant in CaseAto.476/81 Avghi Soteriadou 1.7.51 1.8.66 Applicant in CaseNo. 13/82 Philippos Michaelides 15.6.67 1.8.76 1.9.65 15.9.41 15.6.56 1.11.62 1.11.62 1.2.64 1.9.65 15.10.64 2.1.59 1.1.57 1.1.77 1.1.67 1.7.70 1.7.70 1.4.72 1.3.74 1.8.76 1.5.77 1.6.77 1.12.73 Applicant in CaseNo. 141/82 Demos Pissourios Georghios Agrotis Sofoklis Sofokleous 15 Costas Fokas loannis Kyriacou Panayiotis Aristotelous Panayiotis Kalimeras Georghios Neocleous 20 Petros Marcou Georghios Grivas 25 From the above list it is clear that Soteriadou is by far senior to all. Michaelides is plainly senior to Neocleous and Markou. Furthermore as he was promoted to the particular grade on the same day with Kalimeras but he was by almost two years senior in the previous post - he having been promoted to the post of Soil Conservation Engineer, Class II, on 1.6.69, whereas Kali­ meras was promoted to Agricultural Officer, Class II, on 1.11.71 - he is senior to Kalimeras as well. 30 The existence of the institution of promotion posts restricted to members of the service, safeguards adequately the interests of those in the service. Long service is rewarded by promotion as it entails acquisition of experience and qualities. It is right­ ly, however, well settled that seniority is not the decisive factor 35 which governs promotions but one that should be duly taken into consideration and it should prevail if all other things are more or less equal. (Koussoulides v. The Republic,

(1967)939 StyllanJdes J. Soteriadou and Others v. Republic

(1983)3 C.L.R. 438; Partellides v. The Republic,

(1969)3 C.L.R. 480; Nicos Smyrnios v. The Republic,

(1983)3 C.L.R. 124). QUALIFICATONS: Qualifications are rightly a factor that weighs next to merit. An officer with qualifications, in the usual course of events, is 5 better armed in the execution of the duties of his office in the interests of the citizens and the organized society. Thequalifications requiredaresetoutintheschemeofservice. The scheme of service provides as Qualification No. 2 "successful post-graduate education for one at least academic year", 10 whichfor thoseintheserviceisnot required butisan additional qualification. The Head oftheDepartment stated to theCommission - and the Commission accepted, as it is safely inferred from the minutes - that the applicant in Case No. 476/81 did not possess this additional qualification. 15 Learned counsel for this applicant argued that if the various periods of post-graduate courses or studies of the applicant are computed together, they are in all longer than one academic yearand, therefore, she should havebeenconsidered aspossessing this additional qualification. This is not the interpretation 20 placed on the scheme by the Commission. It should be stated that indeciding whether or not the Commission ina givencasehasconformed with the relevant scheme of service, the Court will not give to such scheme a different interpretation other than that given to it by the Commission, 25 provided that such interpretation was reasonably open to it on thebasisofthewordingoftheschemeinquestion. (Theodhoros G. Papapetrou v. The Republic, 2 R.S.C.C. 61, at p.69; Chr. Petsas v. The Republic, 3 R.S.C.C. 60). The Court is satisfied that the interpretation given by the 30 Commission, that post-graduate education of one at least academicyearmeansa continuousacademicyear,wasa reasonable one on the basis of the wording of the scheme of service. Applicant in CaseNo. 13/82alleges that hisqualifications are strikingly superior to those of interested parties Kalimeras and 35 Neocleousand that he isinsomewaysuperior to Marcou inthe sense that though both are the holders of M.Sc., the applicant has two international recognitions whereas Marcou has none. 940 3 CUR. Soteriadou and Others v. Republic StyUanldes J. The qualifications of all the applicants and the interested parties Kalimeras, Neocleous and Marcou are:Applicant in Case No. 476/81: Degree of B.Sc. in Agriculture, University of Durham, 5 U.K.; Post-graduate Training at theAnti-Locust ResearchCentre, London, from July 1951 - October, 1951; Attended a course in Pasture, Plant and Forage Crop Breeding,atthe WelshPlantBreedingStationinWales, 10 from June 1958 - October 1958. 15 20 25 30 35 There isnothing of the following qualifications alleged byher in her personal files but in the written address the following qualifications, duly documented, are stated:Mushroom growing Darlington Farm, U.K. - July 1964 (at her own expense); Mist propagation in Netherlands - August 1964 (at her own expense); F.A.O. Participation in the group Fellowship Study Tour on Improvement of Vegetable Production in the U.S.S.R. - 20.6.67 - 20.8.67; Participation in the Overseas Development Conference on Tropical and Subtropical fruits, where shepresented a paper on "Cyprus Melons" - 15.9.69 - 29.9.69; Study Tour on Potato Seed Production and Protected Cultivation sponsored by Netherlands Potato Consultative Institute - 22.8.76 - 3.9.76; Study Tour at Lee Valley Horticulture Experimental Station and the Horticulture Centres in U.K. for Vegetable and Flower production and new techniques on cultivation, sponsored by the Co-operative Central Bank - November - December 1976; Training on Orchid cultivation in Sussex, U.K. - May June 1977; Study Tour on Potato growingand seedpotato production in Ireland, sponsored by the Irish Potato Marketing Board - July 1978; 941 Stylianides J. Soteriadou and Others v. Republic

(1983)Study Tour to Netherlands on Potato variety growing and seed potatoes - September

1. Applicant in Case No. 13/82: Diploma of the Paedagogical Academy of Cyprus. Degree of B.Sc. in Agricultural Engineering, Technion Israel Institute of Technology; 5 Degree of M.Sc. in Agricultural Engineering (Soil and Water Option) of the University of Reading; Associate Member of the Institution of Civil Engineers, London; 10 Member of the Institution of Civil Engineers, London; Registered Civil Engineer of the Council of Architects and Civil Engineers, Cyprus; Chartered Engineer of the Council of Engineering Institutions; 15 He attended an International Course on Irrigation in Israel from 14.11.76 - 10.12.
2. Applicant in Case No. 141/82: Diploma in Agriculture of Salonica University; Degree of M.Sc. in Soils of the American University of 20 Beirut; He attended the Ilth International Course on Land Drainage, in the Netherlands, from 28.8.72 - 15.12.
3. Kalimeras: Diploma in Agriculture of Salonica University; 25 Certificate of completion of a program in the study of Irrigation Problems and Practices, Utah State University, from 6.6.66 - 19.8.66; Certificate of completion of a special advanced education program in Irrigation Problems and Practices, Univer- 30 sity of Arizona; He attended the F.A.O. "Study Tour in Irrigation, Drainage and Water Management", in China, from 8.6.78 7.7.78; 942 3 C.L.R. Soteriadou and Others v. Republic Stylianides J. Attended an International Course on Irrigation in Israel from 14.11.76 - 10.12.76; Attended a seminar on "Agricultural Development Planning in Irrigated Areas" - 18 days* duration. 5 Neocleous: Diploma in Agriculture of Salonica University; Diploma inAgricultural Extension Methods of the University of Reading; Attended the International Youth Leadership Training 10 Course, Puerto Rico, from 14.2.66 - 6.5.66; Attended the International .Workshop on Post-graduate Training in Agricultural Extension, in Israel, of 19 days' duration. Marcou: 15 Degree of B.Sc. in Agriculture, of Southwest Missouri State College, U.S.A.; Degree of M.Sc. in Soils; Honourary Award in Agriculture for Scholastic Excellence; Attended the 4th International Post-graduate Training 20 Course on Soil Science (Soil Fertility, Soil and Plant Analysis), in the Netherlands - one academic year, i.e. from 8.9.69 - 25.6.70; He passed General Orders, Financial Instructions and First Aid Exams. 25 Kalimeras lacks the additional qualification of post-graduate education. Neocleous possesses a diploma and not an M.Sc. The Commission made a differentiation of these two different post-graduate courses between Kyriacou and Michaelides in its decision and it isone of thegrounds for preferring Kyriacou to 30 Michaelides whowasrecommended bythe Head ofthe Department. It wasdecided in Kleanthous v. The Republic,

(1978)3 C.L.R. 320, and Bagdades v. The CentralBank of Cyprus,

(1973)3 C.L.R. 417, at pp. 427-428,that a qualification cannot be con35 sideredasanadvantageoverothercandidatesifitisnotexpresslystated to besobytherelevant schemeofservice. Imay goa step further and say that in promotions qualifications beyonp those required by the scheme of service, which are akin to the 943 j Stylianides J. Soteriadou and Others v. Republic

(1983)duties of the officer and which make him more suitable in the carrying out of such duties, should be taken into consideration. It is clear from the above that applicant Michaelides has a striking superiority in qualifications over Neocleous and Kalimeras and slight superiority over Marcou. Pissourios has superiority over Neocleous in the sense that he has an M.Sc. from A.U.B.whereas Neocleoushasadiploma of the University of Reading. 5 MERIT: Themeritofacivilservantisjudgedfrom hisperformance and 10 achievement in the service and it is depicted, inter alia, in the confidential reports. When an officer is to be promoted to a post, which is either the culmination of thecareer inhis department or near the culmination, it is the view of this Court that not only his last years' performance or his picture in the recent 15 confidential reports should be taken into consideration but the evaluation should be made of his career as a whole. (HjiGeorghiou v. The Republic,

(1975)3 C.L.R. 477). In Odysseas Georghiou v. TheRepublic,

(1975)3 C.L.R. 153, Mr. Justice A. Loizou had this to say at pp. 159-160:20 "In determining the merits of civil servants, the whole career ofa candidatehasto beexamined and allthe factors referring to his quality, ability and merits as civil servant and not those for a certain period or of a certain category have to be taken into consideration". (See Conclusions 25 from the CaseLaw of the Greek Council of State,

(19291959), p. 355, and the decisions of the Greek Council of State cited therein). Bias: It was strenuously argued by counsel for applicant in Case 30 No. 476/81 that the confidential reports prepared for her by Papasolomontos for the years 1968-74 and Avraam Louca for the years 1976-80 were the result of personal enmity, feud, prejudice and bias against her. The subjudice decision of the Commission should be invaUdated as it wasbased on such bias- 35 sed reports. Bias of one or more of those participating in the decision takingprocess or affecting thematerial on which thedecision is based renders the decision vulnerable on the ground of un944 3 CL.R. Soteriadou and Others v. Republic Stylianides J* fairness. The confidential reports on all officers are prepared and submitted to the Commission annually in a prescribed manner. (Section45ofLawNo.33/67). Theyreflect themerit to a considerable degree of the officer and the Commission is 5 bound to havedue regard to the annual confidential reports on the candidates in making a promotion. (Section 44, para.

(3)of Law No. 33/67). Therefore, ifit isproved that the reporting officer had personal animosity or was motivated by extrenuous factors, then, depending on its nature and circumstances giving 10 rise to it, it istaken into consideration whether a case of biasis established. It is a basic principle of administrative law that the organs participating in a particular administrative process must appear to act with impartiality and this cannot be so when there exist 15 any special ties or relationship which admittedly relate to the persons involved in such process. (See,inter alia, the Decision of the Council of State in Greece in Case No. 3350/70, adopted bythe Full Bench of our SupremeCourt in thecase ofChristou v. Republic,

(1980)3 C.L.R. 437). 20 In Christoforos G.Petsasv. TheRepublic, 3 R.S.C.C. 60, the latest and current annual confidential reports in the personal files of both the applicant and Mr. Kantounas, the interested party, which werelaid before theCommission, wereboth signed by Mr. Andreas Kantounas, brother of the interested party, as 25 thereporting officer, who inthese reportswasrated higher than the applicant. The Supreme Constitutional Court said at page 63:"The Commission, however, would have acted improperly, if it had been influenced by biassed recommendations, i.e. 30 by what the Applicant appears to call 'backing*. 35 40 It is true that the aforesaid confidential reports on both thecandidatesweremadebyMr.A.Kantounas,thebrother of the successful candidate. Moreover, theletterof Mr.A. Kantounas dated the 3rd ofApril, 1961, wasan attempt to belittle the service of the Applicant on the *S/S Empire Roach' by stating, inter alia, that theApplicant's 'promotion to Chief Officer isnot due to his qualifications but to the reluctancy of qualified officers to serve on a small . tramp'. Had the Commission based its decision on the reports 945 Stjlianldes J. Soteriadou and Others v. Republic

(1983)and the letter inquestion, thenits decision might have been invalidated. This would not necessarily be so by themere fact thatanofficer hadmadeareportabouthisbrother. In a country of thesizeof Cyprus it may notalwaysbe avoid­ able (even though it should be avoided) that a person is 5 serving undera close relative and that his abilities are, con­ sequently, assessed by such relative, though in such a case it would be expected that therelationship will be disclosed. However, a decision of such nature might have been in­ validated if the Commission had given undueweight to the 10 comparison of the abilities of two public servants made by an officer who,by virtue of his relationship to oneof them, could have been biassed." Mala fides, irrelevant motives, collateral and indirect objects, and so forth, are examples of matters which, if proved to exist, 15 might establish the ultra vires character of the act in question. Bad faith should not be used to blur thedistinction between an ultra vires act done bona fide and an act on the face of it re­ gular but which will be held to be null and void if mala fides is discovered and brought before the Court. The division in law 20 is clear and deep. (Short v. PooleCorporation, [1926] Ch. 66, at p. 91; Smith v. East Elbe R.D.C., [1956] 1All E.R. 855). At p.449 of the reportof Christoucase(supra) Triantafyllides, P., said:"The lack of impartiality by public officer A against public 25 officer Β must be established, with sufficient certainty, either by facts emerging from relevant administrative re­ cords or by safe inferences to be drawn from the existence ^ of such facts; it is not,for example, sufficient, by itself,in order toprove lack of impartiality of A towards B,thefact 30 that A has made, in the past, in the course of the proper exercise of his official duties,adverse confidential reportsin respect of B,or thatA has otherwise expressed officially an adverse view regarding Β with the result that Β had in­ stituted legal proceedings in this connection against A, or 35 that Β has given in the past evidence either in a criminal trial or disciplinary proceedings against A". The material which the Court was invited to consider on the issue of bias is:946 3 CL.R. Soteriadou and Others v. Republic Stylianides J. (

1. a)The oral evidence of the applicant and the allegations in the written address of her counsel; 5 (
2. b)The confidential reports prepared by the late R.C. Michaelides and Parissinos on the one hand and Papasolomontos and Louca on the other; and, (
3. c)Theoral testimony ofwitnesses A.W.I, A.W.2,A.W.3, A.W.4, A.W.5, A.W.6, and A.W.7. It wasalleged that sheisthevictim ofpersecution and careful and consistent planning to destroy her career and to humiliate 10 her and that the confidential reports prepared by Papasolomontos and Louca were arbitrary and discriminatory. In 1968 Mr. Papasolomontos was appointed as Acting Director of the Department and there was a keen competition between him and the applicant's late husband, Christodoulos 15 Soteriades, for the post of Director of the Department. In that year Mr. Papasolomontos inserted in her confidential reports, inter alia, the following:- 20 "Sheperformed very good work onvegetablecrops buther devotion and ability to co-operate with her colleagues could be described as needing improvement". In 1969 Mr. Papasolomontos became Director. In 1970the applicant's husband died of a heart attack and the applicant attributed moral responsibility to Papasolomontos for her husband's death. 25 In 1970 he wrongly implicated the applicant in a scandal concerning the substitution of tenders for the sale of vegetables but shejwasabsolvedfrom anyresponsibilitybytheinvestigating officer, the retired Judge Charilaos Pierides. (See pp. 132-133 in File No. 4690). 30 On"24th September, 1970,the applicant addressed a letter to the Director-General, with copy to the Chairman of the Public Service Commission, withregard to tenders and requested that Papasolomontos's conduct be investigated by the Ministry and ^ further applied for leave to take legal steps before a Court of 35 lawto obtain redress inview of thecontents of the confidential accusations of Papasolomontos against her, which apparently werenot substantiated. TheCommission decided on 16thSeptember, 1970, that no prima facie case was made against her. 947 Stylianides J. Soteriadou and Others v. Republic

(1983)Furthermore, she alleged that though she was the Head of her Section, Papasolomontos ignored her and gave instructions directly to her assistant. .On 13th November, 1972, she addressed a letter (Red 4 in Personal File No.4690/11), accusing Papasolomontos of under- 5 mining theDepartmentby encouraging civil servants to disobey the instructions given by her Section and notto co-operate with her Section; that when she requested in writting that in­ structions should notbe given toher subordinate over herhead, she was called to the office of Papasolomontos who threatened 10 her that: "'Οποτεδήποτεθέλει μπορεί νά μέ διώξει άπό τήν κυβερνητικήν ύπηρεοίσν", and she gives other instances of this attitude and conduct of Papasolomontos towards her and her Section. The report of 1970 is one of the lowest of her markings. 15 She was marked as follows:"Reliability : Fair Thoroughness : Fairly good Adaptability : Fair Accuracy : Very good Initiative : Good Courtesy in dealing with the public : Good Competence in present work : Good Devotion to duty : Fair Ability to co-operate with colleagues : Fair General intelligence : Very goodExcellent". 20 25 The countersigning officer, however, who knew the said officer for many years, noted in the same report: "She is a very good officer with excellent record. Her performance if 30 lacking is due to personal grounds beyond her control. In spite of that she has shown devotion to duty and interest in in her work". After 1970 thereis nocountersigning officer and in thereport for 1971, after the incidents of 1970 and 1971, she is assessed 35 with 6"Fair", one"Fairly Good"andcourtesy andcompetence "Good". I do not refer to general intelligence as this could not possibly be degraded from year to year. The reporting officer observed: "I have again been completely disappointed 948 3 C.L.R. Soteriadou and Others τ. Republic Stylianides J. at the performance of this officer. She has made as little an effort as possible in the performance of her duties and it is with great difficulty that even the assessment below has been made. Her whole actions and general performance can best 5 be described as irresponsible". In the report for the following year—1972—i.e. the report dated 27.1.1973, she was assessed with 4 "Fair", 3 "Fairly Good", and 1 "Good"; her courtesy improved from "Good" to "Very Good" but her competence dropped from 10 "Good"to "Fairly Good". How an "excellent" in intelligence person becomes a person of "average" intelligence intwo years, I fail tounderstand,whenthisassessment was madeby thesame person, not by different assessors. In the report for 1972 the following observations are written: "Her whole perform15 anceneedsconsiderable improvement. Shehad not adequately followed orders/regulations; reports were not often submitted in time nor were well documented; and her devotion to duty has left much to be desired". It is significant that even her intelligence from "Excellent" became "Above Average", to 20 drop in 1974 to "Average". Roghiros Michaelides was the reporting officer before his elevation in 1968 to thepost of Director-General, He assessed her in all respects "Excellent" year after year. For the year 1975 Parissinos, Ag. Director of Agriculture, the reporting 25 officer, graded her "Very Good" and on initiative and competence"Excellent", andhenotedinthatconfidential report that Mrs. Soteriadou was a very capable and efficient officer with considerable initiative,carrying outherduties satisfactorily. 30 Section 45, paragraph 4, provides that the person preparing confidential report on a particular officer in which the latter a is criticized,for negligence, failures or improper behaviour in the performance of his duties must, on the submission thereof, communicate to the officer concerned this part of the report. Within 15 days of the communicationto him, the officer is 35 entitled to require in writing from the competent authority concerned to strike out or modify this part of the report and the competent authority shall consider the matter and decide thereon. The reports prepared by Papasolomontos give a gloomy 40 picture of an irresponsible officer. The report for 1971 rates 949 Stylianiaes J . Soteriadou and Others v. Republic

(1983)her with 6 "Fair" and contains the remarks to which reference has been made above. At least this report definitely falls within the ambit of subsection

(4)of section 45. No report, and particularly the report of 1971, was communicated to the applicant as prescribed by Law. 5 The question of non-disclosure of unfavourable reports and the effect of such omission was considered in a number of cases. In Pierides v. TheRepublic,

(1971)3 C.L.R. p. 233, at p. 250, it was said:"Lack of communication to the officer concerned does 10 not make the report null and void, simply because if such a serious consequence was intended by the legislature, it ought to have been specifically referred to in the Public Service Law,1967.1think theviewIhavetaken inthisjudgment is supported by Stassinopoulos in his textbook on 15 the Lessons on Administrative Law, 1957, 2nd edn. at p. 347". InKyriacopoulou v. The Republic,

(1973)3C.L.R. 1,at p.12, with reference to s. 36

(3)of the Public Educational Service Law, 1969 (Law No. 10/69), which corresponds to s. 45

(4)of 20 the Public Service Law, it was said:" I would again say that the non-communication to the applicant of such part that had to be communicated was not a reason to annul a decision subsequently taken, inviewofthewording of thesectionwhichdid not provide 25 for the annulment of a decision taken in reliance to such a report. Similar approach has been consistently taken by the Greek Council of State in relation to analogous provisionsto befound insection92oftheCodeoftheCivil Administrative Servants. It was found that the obligation 30 to communicate to civil servants adverse reports has a consequence only the disciplinary liability of the person responsible for such violation, but not the annulment of the non-communicated report and the annulment of the decision based thereon". 35 (See also Koraiand Another v. CyprusBroadcasting Corporation,

(1973)3 C.L.R. 546, at pp. 570 and 573; Petrides v. The Republic,

(1975)3 C.L.R. 371, and Kontemeniotis case (supra) ). Louca evaluated her for the years 1976-

1. He graded her 40 950 3 C.L.R. Soteriadou and Others v. Republic Stylianides J. "Excellent" in courtesy in dealing with the public and professional qualifications, "Very Good" in initiative, ability, general intelligence and ability in expression in writing, and "Good" for the rest. These definitely are far better than those of Papa5 solomontos though they are inferior to the reports of Michaelides. It was alleged that Louca, the successor in office of Papasolomontos and a close friend of his,duetohissuch friendship undertook to continue the campaign against the applicant and 10 his reports were calculated to destroy the chances of the applicant for promotion. Thiswasbasednotonlyonthemarking but also on the remarks for 1976, that she could do more and shehad somedifficulty inco-operation withhercolleagues; in 1977that there wasmuch to bedesired from this officer and 15 the fact that during her absence for a year with F.A.O. inSyria he split her Section. Four civil servants on active service of the Agricultural Department, holding posts from Agricultural Superintendent, 3rd Grade, to Senior Agricultural Officer (A.W.1, A.W.2, 20 A.W.7 and A.W.9) testified on various aspects of the applicant, ranging from her devotion to duty to her courtesy in dealing with the public, initiative, reliability and co-operation with her colleagues. Two' potato-growers, villagers from Xylophagou, a village situated in the centre of the potato-growing 25 area of the country (A.W.4 and A.W.5), and Mr. Sawides, the Director-General of the Potato Marketing Board since 1965, testified on her initiative in the line of potato growing, her devotion to duty, her relationship with the public and with the Potato Marketing Board, her competence and the excellent 30 services she had rendered to the potato growing section of agriculture of this country, including the importation, test and canvassing ofnewvarietiesof potatoes withverygood and/ or excellent results in production and marketing. Their evidence referred also to her initiative, devotion to duty and 35 hard labour, especially soon after the collapse of the economy due to the tragic events of the summer of 1974, in the sphere of horticulture, she being in substance and in fact the person who introduced the cultivation of horticultural plants in greenhouses. 40 An impressive volume of first page covers of booklets and literature on various aspects of agriculture and various plants 951 Stylianides J. Soteriadou and Others v. Republic (1983 in Cyprus as well as vital problems of her profession werepro­ duced in an endeavour todisprove her evaluation by Papasolo­ montos and Avraam Louca and to upgrade her in the mind of the Court. The inquiry of this Courtas towhether thereports arebiassed 5 does not empower this Court to substitute its evaluation and grading of a civil servant for that of the reporting officer. In Case No. 1041/1969 of the Greek Council of State the Board did not include the applicant in the list of those eligible for promotion. Hechallenged this decision onthe ground that 10 theChairmanof theBoardhasenmity against himduetoservice disputes of the applicant with anotherrear-admiral underwhom the applicant served and that this animosity (enmity) was the cause of an adverse transfer of the applicant in 1963 and the imposition of a disciplinary sentence by the same rear-admiral 15 on the applicant in
2. The Court referred to the general principles governing the matter in the following words:" Επειδή κατά γενικήν αρχήν τοΰ δ'καίου, τά μέλη τοϋ συλλογικού οργάνου τής Διοικήσεως δέον όπως παρέχουν εχέγγυα αμερόληπτου κρίσεως. Ούτω, οσάκις υφίστανται 20 Ιδιαίτερος δεσμός ή Ιδιάζουσα σχέσις ή έξ έχθρας όξεΐαάντίθεσις προς τά πρόσωπαεϊς α άφορςίή τιθεμένηπροςκρίσιν ύπόθεσις ή συμφέρον ε!ς τήν έκβασιν της υποθέσεως καϊ έφ* δσον ταύτα προκύπτουν σαφώς καϊ άνενδοιάσπως έκ ίων στοιχείων τοΰ φακέλλου, δημιουργείται τεκμήριον αθεμίτου 25 επηρεασμού ιού οργάνου,τφ λόγω δέ τούτω ή ύπ'αύτοϋ εκδιδομένη πραξις τυγχάνει πλημμελής**. (Because as a general rule of law, the members of the collective organof theadministrationmustafford guarantees of impartial judgment. Therefore when there is a special 30 bond or peculiar relationship or by enmity a strong opposition towards the persons to whom the case put forward for judgment refers, or an interest in theoutcome of the case and so long as they clearly and unhesitatingly appearfrom thematerial inthefile,proof of illegalinfluence 35 of the organ is created, and for this reason the act issued by it is defective**). And further down it stated:'ΤΤλήν δμω* ό λόγος ούτος τυγχάνει απορριπτέος, διότι 952 3 C.L.R. 5 10 Soteriadou and Others v. Republic Stylianides J. ό αϊτών δέν επικαλείται συγκεκριμένα πραγματικά περιστα­ τικά προς θεμελίωσιν της εχθρικής, ώς Ισχυρίζεται, έναντι αύτοΰ διαθέσεως τοϋ ρηθέντος υποναυάρχου,ουδ* άποδε·κνύει ότι αϊ ώς άνω μνημονευόμενοι δυσμενείς δι* αυτόνύπηρεσιακαΐ ένέργειαι τοΰ αΰτοΟ υποναυάρχου δέν έγένοντο έπ! τη βάσει αντικειμενικών, υπηρεσιακών κριτηρίων, αλλ* ώφείλοντο είς έχθραν αύτοΰ έναντι τοΰ αίτοΰντος". ("But this reason is dismissed because the applicant does not invoke concrete real events for establishing the hostile, as he contends, against him, intentions of the said admiral, nor does it prove that the above referred adverse to him official acts of the said admiral were not made on the basis of objective, official criteria, but were due to his enmity against the applicant*'). 15 The material before the Court with regard to the reports of Louca is so flimsy that cannot support the charge of bias. The applicant has not discharged the burden cast on her. The same, however, cannot be said about the reports of Papasolo­ montos. On the totality of the material before this Court"it 20 can safely be inferred that the reports of Papasolomontos were tainted with bias and lacked impartiality. It may be noted, however, that even if the reports from 1975 onwards are taken into consideration, she is not strikingly superior, not even super­ ior, to the interested parties. 25 Whilst on the issue of bias in the confidential reports this Court has to place on record that the method of assessment of officers by way of confidential reports is, in the view of this Court, suffering. The officer has to be assessed annually. This is in the interests both of the officer, the service and the public. 30 The assessment must be just, impartial and, if possible, with uniform criteria. There is a crisis with regard to the confident­ ial reports. I subscribe to the view expressed by Iacovou, the General Secretary of PASYDY, in his oral evidence before this Court, and I could do no better than quote his own words: 35 "As PASYDY we have observed that there is really a crisis with regard to the confidential reports, that is to say, it has been proved that the system has many defaults in the way the questionnaire is answered by reporting officers and the countersignors as well". Mr. Iacovou stated further that the matter 40 was raised at M.E.P. and that a sub-committee was established to study this particular problem. Butit is not only the question953 Stylianides J. Soteriadou and Others v. Republic

(1983)naire and the way that it is answered by the reporting officer that needs consideration and change; the whole spectrum of assessment of civil servants has to be reconsidered. It rs not the task of this Court to indicate remedies or the solution of this problem. Itis uponPASYDY andtheGovern- 5 mental side tofinda solution to this thorny problem. Itmust be, however, placed on record that many reporting officers are conscientiously performing this, at some times, onerous duty with a sense of responsibility, fairness, justice and impart­ iality. Judging from theconfidential reports,interestedpartyMarcou is superior toall theapplicants. Neocleousisinferior to Micha­ elides. Kalimeras is graded higher than the applicants. The Head of the Department recommended for promotion the interested parties Neocleous, Marcou and Kalimeras and des- 15 cribed them as "Excellent". The recommendations of the Head of the Departmentcarry considerable weight with the Commission. The Commission, however, in discharging their duties have scrupulously and meticulously to examine all the material before them and, as 20 they have donein the case of Panayiotis Michaelides and Kyri­ acou, to take their own decision, as it is not in every case that they have to adopt the recommendations of the Head of the Department. Their duty is,when actingcontrary tohisrecom­ mendations, to give reasons for so doing. 25 The confidential reports of interested party Neocleous for the years 1979 and 1980, to take only the two recent reports— and by this it should notbetaken that only thetwo last reports should be taken into consideration assess him as "Very Good" and not "Excellent". Thedescription of Neocleous as "Excel- 30 lent" is not warranted either by the confidential reports or his qualifications. Kalimeras was graded "Very Good" for 1979 and "Excellent" for

1. Marcou was graded "Excel­ lent" both for 1979 and 1980, having been given "Excellent" in 10 items out of
2. 35 Applicant in Case No. 13/82, Michaelides, was in general assessed "Very Good" for 1979 and
3. He was given, however, 6 "Excellent" out of
4. The reporting officer, who is the Head of the Department, noted: " Ό βαθ­ μός ποσοτικής καϊ ποιοτικής αποδόσεως ήτο άριστος, 6 40 ζήλος προς τήν έργασίαν απαράμιλλος καϊ ή επιστημονική 954 10 3 C.L.R. Soteriadou andOthersv.Republic Stylianides J. κατάρτησις καϊ νοημοσύνη αρίστη. Είναι άμέμπτου χαρακτήρος καϊ διατηρείάρμονικωτάτας σχέσεις μετάτών συναδέλφωντου". There is a good note for Neocleous in his report but inferior to that for applicant Michaelides. 5 Applicant in Case No. 141/82, Pissourios, was never graded more than "Very Good" and he was given in 1979 one "Excellent" for co-operation relations and two "Good" for devotion to duty and responsibility. In the report for 1979 it is simply stated: "Hekeeps harmoniousrelations with all". 10 I went with the utmost care through the administrativefiles of all the other interested parties and considered their qualifica­ tions,personalfilesand merit as it emerges from the confidential reports. In the confidential reports the main duties performed by 15 each one of the litigants are recorded. 1 went through each one of them and more or less it cannot be said with safety that any of the litigants was assigned more responsibilities than theothers. Certainly,thedutiesvary; they wereemployed in various sections. Very serious and responsible duties have 20 been assigned to applicant Michaelides. The term "experience" inevitably contains the notion of knowledge acquired through acting in a certain capacity. The term "wide" clearly means wide both in respect of length of time and the subjects embraced. (Papapetrou v. The Republic, 25 (supra). The Commission intheir decision say thatthey have consider­ ed all material factors as emerging from the personal files of the candidates and the confidential reports and took intocon­ sideration the report of theDepartmentalBoard and the recom30 mendations of the Director of Agriculture and concluded that the 12 persons, who were promoted, were superior to all the other candidates on the basis of the totality of the established criteria (merit, qualifications, seniority), and, having found them suitable, promoted them. 35 The same stereotyped wording was used by the Director. As already stated, the weight to be attached to such recom­ mendations does not in any way fetter or curtail the powers of the Commission that the functions of a public office should be performed, in the general interests of the public, by the 40 public officer best suited to perform such duties. The recom955 Stylianides J. Soteriadou and Others v. Republic

(1983)mendationsoftheHeadoftheDepartmentareoneofthefactors to be taken into consideration and the Commission, on good reasons recorded, may act contrary to such recommendations in order to achieve its object toappoint the best suitablecandidate. 5 Having gone through the relevant administrative records» I found that on the whole applicant Michaelides had more qualifications, more overall experience and seniority than Neocleous and Kalimeras and better confidential reports than Neocleous. 1 would haveexpected that the Commission should 10 havegivenfull reasonsfor preferring thesetwointerested parties to applicant Michaelides, which they failed to do. The whole object of the rule requiring reasons to be given by the Commission in administrative decisions is to enable the person concerned, as well as this Court on review, to ascertain in each 15 case whether the decision is well founded in fact and in law. Thereasons given by the respondent Commission in itsminutes for selecting the aforesaid two interessed parties appear to be definitely contrary to the relevant administrative records and incompatible with the factors taken into account by them. 20 As a consequence of the above it may safely be said that the Commission did not carry out a due inquiry. The case of interested party Marcou, for the reasons extensively referred to earlier on, is differentiated from the cases of Neocleous and Kalimeras. What was said about Philippos Michaelides cannot be said about the applicants in Cases No. 476/81 and 141/82. For the above reasons Recourses No. 476/81 and 141/82 fail and they are hereby dismissed. Recourse No. 13/82 "succeeds in so far as the promotion of interested parties Neo- 30 cleousand Kalimeras isconcerned and fails insofar asitrelates to the promotion of interested party Marcou. The decision for promotion of Neocleous and Kalimeras is declared null and void and of no effect whatsoever and it ishereby annulled. In the circumstances of these cases no order as to costs is 35 made. Recourses 476/81 and 141/82dismissed. Recourse13/82 succeeds in part. Noorder as tocosts. 956 25