clr/1983/1983_3_995.pdf

(1983)line suitable for promotion and comparing him with interested party lacovides he expressed clear preference to the applicant having stated "that he was a very good officer, he possessed an additional academic qualification and was leading in seniority"; and that, also, interested party lacovides and applicant 5 "are considered as very good officers but on the basis of the whole criteria" applicant is better. The respondent Commission decided to disregard the recommendations of the Head of Department in favour of applicant having observed that "generally the confidential reports at the material time present 10 the applicant inferior to the interested party lacovides" and that this interested party "surpasses in qualifications the applicant". Asfar astheconfidential reports ontheapplicant for theyears 1975 and 1976 were concerned the countersigning officer 15 disagreed with the observations of the reporting officer and the Head of Department went to the extent of writing to the Commission on 24.2.1976 that the evaluation of the reporting officer of the performance and qualities of the applicant was unfair from all points of view and it had to be substituted with 20 the words "very good". The confidential report of applicant for the year 1977 was prepared by a different reporting officer, than the one who reported for the years 1974, 1975 and

1. The 1977 report rated applicant with 3 "excellent" and 7"very good". The relevant report of interested party lacovides for 25 1977 rated the latter with 4 "Excellent" and 6"very good" and it wasprepared bya different reporting officer than the onewho reported for applicant. Counsel for the applicant mainly contended: (a) That the respondent Commission was labouring under 30 a misconception of law whilst reconsidering on 23.
2. 81 its earlier decision of 27.5.1978, which was annulled by the Court, as it inquired into, or accepted, facts which did not existsat the timeofthe original decision. (b) That the disregard of the recommendation of the 35 Director of Agriculture by the respondent Committee without clear reasoning amounted to abuse of power. The facts referred to in (a) above related to the recommendations of the Head of Department. 996 3 C.L.R. 5 10 15 20 25 30 35 40 Charts v. Republic Held,

(1)that oncethe decisionwasannulled andthe respondent had to reconsider the case it was perfectly legitimate for them to take into account all facts which existed at the time of the original decision irrespective of whether the decision annulled was in effect based on such facts or not, and they were not bound to base their new decision exclusively on the facts and circumstances on which the original decision was based; (see Kyprianides v. Republic

(1966)3 C.L.R. 653 at p. 660); trat the Head of Department having been properly instructed on the Law applicable in the circumstances, evaluated the services of the candidates as he did, having in mind facts in connection with the services of the candidates which existed at the time of the original decision; that it was quite proper for the Commission to take into consideration such evaluation by the Head of Department inspite of the fact that no such evaluation was before it when the original decision was taken once the evaluation by the Head of Department who was the same person on both occasions, was based on facts existing at the time the original decision was taken "irrespective whether the decision annulled was in effect based on such facts or not", accordingly contention (a) should fail.

(2)That the recommendation of a Head of Department and especially so in cases where specialized knowledge and ability are required for the performance of certain duties, and the present case falls within such category, is a most vital consideration which should weigh with the P.S.C. .in coming to a decision;that iftheP.S.C.comestotheconclusionnot to follow the recommendations in question the reasons for taking such an exceptional course should be clearly recorded in the relevant minutes of the P.S.C; that the confidential reports, of the applicant for the years 1975and 1976 have created an unsatisfactory state of affairs rendering their value next to nil so that no administrative organ can depict therefrom with the required certaintytherealpictureofIhemerit ofthecandidate concerned; that the latest confidential reports (for 1977) of the applicant and the interested party lacovides are almost similar taking into consideration the fact that they were submitted by different reporting officers (see Aristotelous v. Republic

(1974)3 C.L.R. 321 at pp. 325-326); that the recommendations made by the Head of Department in the instant case were clear and unambiguous; that as against the confused and unsatisfactory 997 -*Sfc Chads v. Republic

(1983)material presented by the confidential reports the P.S.C. had before it the clear recommendations of the Director; that in the circumstances it was not open to it to disregard them as they had no other solid soilto step on; and that, therefore, this Court cannot subscribe, to their reasoning, which is not quite . 5 clear and succinct; accordingly the recourse will succeed in respect of interested party lacovides for lack of due reasoning. Promotion of interested party lacovides annulled. Otherwise recourse dismissed. 10 Cases referred to: Demetriou& Sons v. Republic

(1968)3 C.L.R. 444; Christodoulidou v. Republic

(1968)3 C.L.R. 57; Kyprianides v. Republic

(1966)3C.L.R. 653;affirmed on appeal

(1970)3 C.L.R. 176; 15 Theodossiou v. Republic,2R.S.C.C. 44 at p. 48; Evangelou v. Republic

(1965)3 C.L.R. 292; HjiGeorghiou v. Republic

(1975)3 C.L.R. 477 at p.483; Aristotelous and Another v. Republic

(1974)3 C.L.R. 321 at pp. 325-326; 20 Demosthenous v. Republic

(1973)3 C.L.R. 354; HjiGeorghiouv. Republic

(1974)3 C.L.R. 436; Andreou v. C.B.C.

(1975)3 C.L.R. 647; Papazachariou v. Republic

(1972)3 C.L.R. 86; Michanicos v. Republic

(1976)3 C.L.R. 237; 25 Phylaktou v. Republic

(1973)3 C.L.R. 445; Georghiades and Othersv. Republic

(1967)3 C.L.R. 656 at p. 666; HjiSavvav. Republic

(1972)3 C.L.R. 174-at p.205; Petrides v. Republic

(1983)3 C.L.R. 216. 30 Recourse. Recourse against the decision of the respondent to promote the interested parties to the post of Agricultural Officer 2nd Grade in preference and instead of the applicant. A. Haviaras, for the applicant. 35 R. GavrielideSySenior Counsel of the Republic, for the respondent. Cur. adv. vult. 998 3 C.L.R. Charts v. Republic Loms J. read the following judgment. The applicant impugnes, bymeans of the present recourse, thedecision of the Public Service Commission, published in the Official Gazette of the Republic under No. 1749 dated 22.1.1982, whereby the 5 four interested parties referred to in this recourse, were in preference to the applicant, promoted and/or seconded to the post of Agricultural Officer. 2nd Grade, with retrospective effect as from 15.6.1978 as follows: Int. P. (

1. a)(Charalambos Ipsarides) promoted to perm. (Dev.) post Int. P. (
2. b)(Iacovos Yiakoumettis) seconded to temp. (Dev.) post Int. P. (
3. c)(Georghios Xistouris) seconded to temp. (Dev.) post 15 , Int. P. (
4. d)(Andreas lacovides) seconded to temp. (Dev.) post 10 The aforesaid decision of the P.S.C. was taken on 23.11.1981 (vide appendix 3 to the opposition) and was published in the Official Gazette of the Republic on 22.1.1982,having also been 20 communicated to the applicant by letter dated 28.1.1982 (vide red 43 in the personal file of the applicant—ex. 1A). This decision was the result of reconsideration by the P.S.C. of its earlier decision of 27.5.1978 which was annulled by the Court in cases: lacovidesv. Republic

(1981)3 C.L.R. 305 25 and Koudounas v. Republic

(1981)3 C.L.R. 46, on a common ground,notablytheexclusionoftheapplicantsinboth aforesaid cases from promotion and/or secondment in the post of AgriculturalOfficer 2ndGradeinspiteoftheirselectionbytheP.S.C. in thefirstplace, dueto thecontents of an adversereport from 30 the Central Information Service, concerning the loyalty of the said applicants; it may as well be added here that in neither of the said two cases did the Court deal with any other issue having accepted submission of counsel "not to deal with the qualifications and/orwiththecomparison betweentheinterested 35 parties and the applicant" (vide Koudounas case—supra—at p. 55, lines 38-39). The Scheme of Service for the post of Agricultural Officer -2nd Grade, which is a promotion post, appears in Appendix 1, attached to the opposition. 999 Loris J. Charts v. Republic

(1983)Particulars of the service of the applicant and the interested parties with the Government, as well as their respective qualifications, appear in Enclosure No. 4 attached to the opposition. In connection with Government Service it may be noted: (

1. i)that the applicant was appointed in the temporary 5 post of Assistant Agricultural Officer as early as 15.8.1964 whilst all four interested parties were so appointed on 1.9.1965; (
2. ii)that the applicant as well as all the interested parties were holding the permanent post of Assistant Agri- 10 cultural Officer as from the same date (1.6.1969); (iii) that the promotion of interested party under (
3. a)above tothepermanent postofAgriculturalOfficer 2ndGrade asfrom 15.6.1978,andthesecondment oftheremaining interested partiesto thetemporary postof Agricultural 15 Officer 2nd Grade as from 15.6.1978, is the result of the sub judice decision of the P.S.C. by virtue of which all the interested parties were promoted and/or seconded as above in preference to the applicant who thus remained in thepost he washoldingprior to this 20 decision i.e. the permanent post of Assistant Agricultural Officer. (It should be noted that the title of this latter post was by virtue of the provisions of Law 20/81, replaced bythetitle"Agricultural Officer", as from 1.1.1981). 25 The reconsideration by the P.S.C. of its earlier decision as aforesaid, waseffected in twomeetingsheld bythe Commission on 21.10.1981 and 23.11.1981 respectively; the relevant minutes of these meetings appear inAppendices 2and 3attached to the opposition. At ths meeting of the P.S.C. held on 21.10.1981 the Director of the Department of Agriculture who was present (vide Appendix 2 to the opposition) made his recommendations aboutallcandidatesgradingtheapplicantafter interested parties (
4. a)(
5. b)and (
6. c)as fourth in line suitable for promotion; 35 comparing the applicant with interested party (
7. d)namely Andreas lacovides, the Director expressed his preference to the applicant giving reasons for his opinion. I shall have the 1000 30 3 C.L.R. Claris v. Republic Loris J. opportunity ofrevertingtotherecommendations oftheDirector later on in the present judgment. The P.S.C.reached itsdecision on 23111.1981(videAppendix 3totheopposition),thesubjudicedecision,whichwaspublished 5 in the Official Gazette of the RepubUc under No. 1749 dated 22.1.1982, and communicated to the applicant by letter dated 28.1.1982 (vide: red 43 in ex. 1A);by virtue of thisdecision all four interested parties were promoted and/or seconded, as stated at the beginning of the present judgment whilst the 10 applicant was neither promoted nor seconded. The applicant obviously feeling aggrieved, filed the present recourse praying for a declaration of this Court to the effect that the decision in question is"null and devoid of any legal effect". 15 20 ThegroundsofLawonwhichthepresent application isbased are thus stated: "1. Theactand/or decision impugnedwasreached in contraventionoftheprovisions oftheConstitution, the General Principles of Administrative Law and the provisions of thePublicServiceLawand/orinexcessorabuseofpower. 2. The respondents did not exercise properly their duty, emanating from the Law and the case law, to select the most suitable candidate. 25 3. The respondents did not take into consideration and/or did not assess correctly the seniority, qualifications and experience of the applicant. 4. By appointing and/or promoting the interested parties insteadoftheapplicant(therespondents)failedtoexercise properly their discretionary powers. 30 35 5. The act impugned is not sufficiently reasoned and/or the reasoning thereof is insufficient and/or defective. 6. The act impugned was reached in circumstances amounting to misconception of facts and/or wrong assessment of the existing actual state of facts in particularwiththequalifications andthereports ofthecandidates". 1001 Loris J. Charts τ. Republic

(1983)The respondent Public Service Commission in its opposition maintains that "the decision impugned was taken lawfully on the basis of all facts and circumstances of this case and in the course of the correct exercise of its discretionary powers". Together with the opposition the following documents were appended theretoand/orproduced shortly after thefilingof the opposition. 5 A. Copy of the Scheme of Service of the post of Agri­ cultural Officer 2nd Grade (Appendix 1) B. Copy of the minutes of the meeting of the P.S.C. 10 held on 21.11.1981 (Appendix 2) C. Copy of the minutes of the meeting of the P.S.C. held on 23.11.1981 (Appendix 3) D. Table showing particulars of the Govt. Service and qualifications of the applicant and the interested 15 parties (Enclosure No. 4) Pursuant to the directions of this Court the parties filed written addresses; on 31.3.1983 when this case was fixed for clarification and evidence, learned counsel for applicant stated that he was neither calling any evidence not did he wish to 20 add anythingtothewrittenaddress (includingthewritten address in reply) already filed on behalf of the applicant. Learned counsel for the respondent Commission confined himself in producing the files (

1. a)of Confidential Reports (
2. b)Personal files, of the applicant as well as those of all four interested 25 parties which were marked as follows: Name Applicant Int. P. (
3. a)(Charalambos Ipsarides) Int. P. (
4. b)(lacovos Yiakoumettis) Int. P. (
5. c)(Georghios Xistouris) Int. P. (
6. d)(Andreas lacovides) Fileof Personal file Conf. R. Ex. 1 Ex. 1A Ex. 2 Ex. 2A 30 Ex. 3 Ex. 3A Ex. 4 Ex. 4A Ex. 5 Ex. 5A Thecomplaints of theapplicantsetoutinthepresentrecourse, examined inthelight of his written address, may beconveniently 35 grouped mainly under two heads as follows: A. Misconception of Law: The respondent P.S.C.—it is maintained—was labouring under 1002 3 C.L.R. Charts τ. Republic Loris J. a misconception of law whilst reconsidering on 23.11.1981 its earlier decision of 27.5.1978 (the latter was annulled by the Court) as it inquired into, or accepted, facts which did notexist at the time of the original decision: the recommendations of 5 the Director of the Department of Agriculture before the respondent Commission on 21.11.1981—it was submitted— which were at variance with his recommendations of 17.3.1978, as regards the applicant, constituted in effect new material not existing at the time of the original decision. 10 B. Abuse of Power: It was submitted by learned counsel for applicant, that the dis­ regard of the recommendation of the Director of Agriculture by therespondent Committeewithout clear reasoningamounted to abuse of power; inspite of the fact—he argued—that at the 15 meeting of the P.S.C. held on 21.10.1981, the Director in his recommendations graded applicant fourth in line suitable for promotion and comparing him with interested party (d)namely Andreas lacovides expressed clear preference to the applicant, yet the respondent Commission failed to adopt such a 20 recommendation of the Director without stating clearly its reasons for the disregard of the recommendation in question. I shall nowproceedtoexaminethecomplaintsof theapplicant in the order they have been grouped above: A. Misconception of Law 25 30 It is well established principal of Administrative law that a decision takenundera misconceptionof Law "vitiates the admi­ nistrative act" (Demetriou & Sons v. Republic

(1968)3 C.L.R. 444). • "A decision taken under a misconception of law amounts to a decision without proper legal basis; it is therefore null and void" (Christodoulidou v. Republic

(1968)3 C.L.R. 57). The legalbasisin cases such as thepresent oneis to be found ' in the case of Pantelakis Z. Kyprianides v. Republic

(1966)3 C.L.R. 653 (affirmed on appeal

(1970)3 C.L.R. 176) where at 35 p. 660 my brother judge L. Loizou J. stated the following: "I am of theview that once the decision was annulled and the Respondent had to reconsider the case it was perfectly 1003 Loris J. Charts v. Republic

(1983)legitimate for them to take into account all facts which existed at the time of the original decision irrespective ofwhetherthedecisionannulledwasineffect based onsuch facts or not, and they were not bound to base their new decision exclusively on the facts and circumstances on which the original decision was based". 5 Let us now examine the material taken into consideration by the P.S.C. and the allegations of applicant in connection withmatters takenintoconsideration bytheCommission,which ought not to have been so taken. 10 - Onmereperusal oftheminutesofboth meetingsoftheP.S.C. (Appendices 2 and 3) one will notice that the P.S.C. was well conversantwiththelegalpositionapplicableinthecircumstances and on repeated occasions they have directed their minds properly to the material which ought to have been taken into 15 considerations: Thus at page 3(paragraph 3)of Appendix 2 we read: "The Commission examined all the elements before it, which were in force at the material time " Again at page 2 (paragraph2) of Appendix 3 we read: 20 "In conclusion the Commission, having examined the elements at the material time ". The complaint of the applicant in this respect is limited to the recommendations of the Director of the Department of Agriculture; it is maintained that at the meeting of the P.S.C. 25 on 17.3.1978 the applicant was graded "first" by the Director (reference is made to the recommendation of the Director appearing at p. 50—lines 10to 15—of Koudounas case—supra) whilstatthemeetingof21.11.1981hewasgradedbytheDirector "fourth" (Appendix 2 page2). 30 I have considered the recommendations of the Director made on 17.3.1978,astheyappearnot only inKoudounas case(supra) but in red 33D of ex. 1Aas well, and I hold the view that the Director never graded the applicantas"first";inhissaidrecommendation, the Director simply referred the names of eleven 35 candidates whom he considered "as the best" compaired with the remaining; there is nothing on record indicating that the 1004 3 C.L.R. Charts v. RepubUc Loris J. Director evaluated each one of the candidates and compared them between themselves; he simply distinguished them from the remaining. It is true, though, that at the meeting of the P.S.C. held on 21.11.1981, the Director evaluated the services of the candidates and graded the applicant fourth in line after interested parties (

1. a)(
2. b)and (c); the said evaluation of the director appears at page 2 of Appendix 2; and it is significant to note what is stated in the first paragraph thereof immediately before the recom10 mendations of the Director: 5 15 20 " 'Υπό το φως τών ανωτέρω κσΐ λαβών ύπ* δψιν επίσης τα στοιχεία, τα όποϊα ίσχυον κατά τον ουσιώδη χρόνον, δτε ελήφθη ή ακυρωθείσαϋπό τοϋ 'Ανωτάτου Δικαστηρίου απόφαση της προηγουμένης Επιτροπής, 6 Διευθυντής^ τοΰ Τμήματοςδιετύπωσε τάς ακολούθουςκρίσεις καΐ συστά- " σεις". ("In the light of the above and having taken also into consideration the facts which existed at the material time when the decision of the previous Commission annulled by the Supreme Court was taken, the Head of the Depart­ ment expressed the following opinion and recom­ mendations")- From the above extract of the minutes, as well as from the beginning of the record in question (vide page 1 of Appendix 25 2) it is abundantly clear that the Director having been properly instructed on the Law applicable in thecircumstances, evaluated the services of the candidates as he did, having in mind facts in connection with the services of the candidates which existed at the time of the original decision; and it was quite proper for 30 the Commission to take into consideration such evaluation by the Director inspite of the fact that no such evaluation was before it when the original decision was taken once the evaluation by the Director, who was the same person on both occasions, was based on facts existing at the time the original 35 decision was taken "irrespective whether the decision annulled was in effect based on such facts or not". (Vide Kyprianides v. The Republic—supra). Therefore, the complaints of the applicant, grouped under the above head, fail and are accordingly dismissed. 1005 Loris J. Charls v. Republic

(1983)I shallnowproceed toexamine thecomplaints grouped under head (B) above: It was submitted by counsel for applicant, that the disregard of the recommendations of the Director of Agriculture by the respondent Commission without clear reasoning amounted to abuse of power. The legal position on this subject was authoritatively stated as early as 1961 by the then Supreme Constitutional Court inthecaseof Theodossiouv. TheRepublic, 2R.S.C.C.44 at p.48 (letters D-H): "In the opinion of the Court the recommendation of a Head of Department or other senior responsible officer, and especially so in caseswhere specialized knowledge and ability are required for the performance of certain duties, is a most vital consideration which should weigh with the 15 Public Service Commission in coming to a decision in a particular case and such recommendation should not be lightly disregarded. If the Public Service Commission is of the opinion that for certain reasons such recommendation cannot be adopted then as a rule such Head 20 of Department or other officer concerned should beinvited by the Public Service Commission to explain his views in order that the Public Service Commission may have full benefit thereof, a course which has not been followed in this case. If, nevertheless, the Public Service Commission comes to the conclusion not to follow, the aforesaid recommendation it is to beexpected for the effective protection of the legitimate interests, under Article 151 in conjunction with Article 146oftheConstitution, ofthecandidatesconcerned, 30 that the reasons for taking such an exceptional course would be clearly recorded in the relevant minutes of the Public Service Commission. Failure to do so would not onlyrender theworkofthisCourtmoredifficult inexaminingthevalidityoftherelevantdecision ofthePublicService 35 Commission but it might deprive such Commission of a factor militating against the inference that it has acted in excess or abuse of power". In the case under consideration it is clear from the minutes 1006 5 10 25 3 C.L.R. 5 10 15 20 25 30 35 Charis v. Republic LorisJ. of the meeting of the'P.S.C. held on 21.10.1981 (Appendix 2 para. 2) that the Head of the Department i.e. the Director of Agriculture in his recommendation before the P.S.C. graded applicant fourth in line suitable for promotion and comparing him with interested party (

1. d)namely Andreas lacovides expressed clear preference to theapplicant; thus in paragraphs 6 and 8 of Appendix 2, page 2 we read the following: **Ώς τέταρτον είσηγήθη τόνκ. Γεώργιον Χσρήν (applicant) ό όποιος ωσαύτως ήτο πολύ καλός υπάλληλος, διέθετεν επιπρόσθετου άκαδημαϊκόν προσόν καΐ προηγεΐτο είςαρχαι­ ότητα τώυ άλλων. Ό κ. 'Ανδρέας Ίακωβίδης (interested party-δ) θεωρείται πολύ καλός υπάλληλος. "Εχει καΐαυτός επιπρόσθετου προ­ σόν πλην όμως θεωρείται ώς κατώτερος τωνκ.κ.Ύψαρίδη, Ξυστούρη και Γιακουμεττη. 01 κ.κ. Ίακωβίδης (interested party-δ) καΐ Χαρής (applicant) θεωρούνται ώς πολύ καλοί υπάλληλοι, άλλαέντ φ συνόλωτώυκριτηρίωνεΐυαικαλύτερος ό κ. Χαρής (applicant). ("As fourth he recommended Mr. Georghios Charis (applicant) whowas also a very good officer, possessedan additional academic qualification and preceded the others in seniority. Mr. Andreas lacovides (interested party-
2. d)is considered a very good officer. Healso has an additional qualification, but he is considered as inferior to Messrs. Ipsarides, Xistouris and Yiakoumettis. Messrs. lacovides (interested party-
3. d)and Charis (applicant) are considered as very . good officers, butonthetotality of the criteria Mr.Charis (applicant) is better". The P.S.C. in arriving at the sub judice decision recorded its reasons in preferring interested party lacovides from the applicant as follows: " Ή 'Επιτροπήένπροκειμένωέξήτασε μέΙδιαιτέρανπροσοχήν τήν περίπτωσιν τοϋ κ. Γεωργίου Χαρή (applicant) όόποιος έχει συστηθη ΰπό τοϋΔιευθυντού τοϋΤμήματος διάπροαγωγήν καΐ παρετήρησεν ότι αϊ έν γένει περί αύτοϋ Έμπιστευτικαΐ Εκθέσεις (κατά τόν ουσιώδη χρόνου) παρουσιάζουν αυτόν κατώτερον τοϋ κ. Ίακωβίδη (interested party-δ). 1007 Loris J. Charis v. Republic

(1983)Ή Επιτροπή παρετήρησε ωσαύτως ότι αμφότεροι έχαρακτηρίσθησαν ύπό τοϋ Διευθυντού τού Τμήματος ώς πολύ καλοί, παρ' όλον ότι ούτος συνέστησε τόν κ. Χαρήν, καΐ ότι ό κ. Ίακωβίδης υπερτερεί είς προσόντα του κ. Χαρή ". ("The Commission in this respect examined with special attention the case of Mr. Georghios Charis (applicant) who has been recommended by the Head of the Department for promotion and observed that in general the confidential reports about him (at the material time)present him inferior to Mr. lacovides (interested party (d). The Commission also observed that both have been described by the Head of the Department as very good, even though he recom­ mended Mr. Charis, and that Mr. lacovides is superior as regards qualifications to Mr. Charis"). The above reasoning of the P.S.C. for disregarding the recommendations of the Head of Department, as I understand it, is based on two observations made by the Commission which touch merit and qualifications. 5 10 15 Thus the Commission says that: (a) Generally the confidential reports at the material time 20 "present the applicant inferior to the interested party lacovides". (b) The interested party lacovides "surpasses in quali­ fications" the applicant. 1 intend to examine as briefly as possible the factual sub- 25 stratum of these two observations made by the Commission in order to test their correctness. I shall commence with the confidential reports bearing in mind what was stated in the case of Evangelou v. The Republic

(1965)3 C.L.R. 292 at p. 297: 30 The confidential reports on the candidates for promotion "must be regarded only as constitutingpart of the overall picture of the merits of each candidate, which the Commission had to weigh as a whole". A mere glance at the confidential reports of the applicant for the years 1975 and 1976 will prove beyond any doubt the un1008 35 3 C.L.R. Charis v. Republic LorisJ. satisfactory position—to say the least—in connection with the said confidential reports; Thus (

1. a)in the 1975 confidential report the reporting officer —who was the same for the years 1974 to 1976—rates 5 the applicant with 2 "fairly good" 7 "good" and one "very good"; The countersigning officer "disagrees with the above assessments" and states: "That Mr. Haris is a very likeable and courteous officer and has considerable competence in his work particularly as regards olive tree culture in which he has 10 specialized. The above assessment is rather unfair in all respects". 1feel it my duty to add here that the reporting officer reduced inter alia the rating of the "General intelligence" of the applicant from "very good" in 1974 to "good", in 1975. 15 (
2. b)After a complaint of the applicant in writing on 6.2.1976 addressed to.the acting Director-General of Agriculture and Natural Resourses in connection with his confidential report (vide relevant file ex. 1)theAg. Director-Generalof the Ministry· on 24.2.1976 addressed a letter to the Chairman of the Public 20 Service Commission (vide file ex. 1) transmitting, pursuant to the provisions of s. 45

(3)of Law 33/67, the confidential report of the applicant to the Commission together with the views of the Ministry to the effect "ότι ή γενομένη Οπό τού Άξιολογήσαντος Λειτουργού αξιολόγηση επί της επιδόσεως και ίδιοτή25 των τού κ. Χαρή είναι από όλας τάς απόψεις άδικος και 6ά αντι­ κατασταθούν αύται μέ την λέξιν "λίαν καλώς". ("that the evaluation made by the reporting officer on his performance and qualities of Mr. Charis is in any view unjust and will be replaced by the word 'very good' " ) . 30 (c) In spite of the above the same reporting officer rates the applicant in the confidential report of 1976 with 6 'good" and 4 "very good". The countersigning officer, this time, modestly observes: "1 feel that he is better than he has been assessed". 35 In the case of Andreas HjiGeorghiou v. The Republic

(1975)3 C.L.R. 477 it was held by the Full Bench of this Court (at p. 483) 1009 Loris J. Charis v. Republic

(1983)" That it is necessary, in deciding on the merits of candidates, to look at past annual confidential reports and especially at the most recent ones, in order to evaluate the performance of the candidates during their careers as a whole . ". 5 In the case under consideration the most recent confidential report which could be taken into consideration by the P.S.C. was the report of 1977 which was submitted to the Commission in respect of the applicant and the interested parties as well, as early as February 1978 i.e.3monthspriortothe27.5.1978, the 10 material time for the reconsideration by P.S.C. of its annulled decision. The confidential report of applicant for the year 1977 was prepared by a different reporting officer, than the one who reported for the years 1974, 1975 and 1976; the 1977 report 15 rated applicant with 3 "excellent" and 7 "very good". The relevant report of interested party lacovides for 1977 rated the latter with 4 "Excellent" and 6"very good" and it was prepared by a different reporting officer than the one who reported for appUcant. Inthis connectionImay repeat heretheobservation 20 in Aristocleous and Anotherv. The Republic

(1974)3 C.L.R. 321 referred to at pp. 325-326. "Different reporting officers inevitably use different stand­ ards in their evaluation of the performance of the various officers serving under them". 25 Havingdealt,asbriefly aspossible, with thefactual substratum in connection with the confidential reports I shall now proceed to the other leg of the observations made by the P.S.C. in the sub judice decision notably qualifications of applicant and interested party lacovides. 30 According to the Scheme of Service which is set out in Appendix 1 the required qualifications for the post of Agri­ cultural Officer 2nd Grade are the following: **ΑπαιτούμεναΠροσόντα (α) Τριετής τουλάχιστον πείρα είς την θέσιν Βοηθού Γεωρ- 35 γικοΰ Λειτουργού, ΜεταπτυχιακαΙ ΣπουδαΙ εϊς καταλ­ λήλους εϊδικότητας θα θεωρούνται ώς έπιπρόσθετον προσόν. (β) (

1. y)" 1010 3 C.L.R. 5 Charis v. Republic Loris J. ("Required qualifications (
2. a)At least three years' experience in the post of Assist­ ant Agricultural Officer, Post-graduate Studies in appropriate specialities will be considered as an additional qualification. (
3. b)(
4. c)_ „ _ . "). Theapplicant was appointed in the temporary post of Assist­ ant Agricultural Officer on 15.9.1964 (vide red 6 in ex. 1A) whilst interested party lacovides was so appointed on 1.9.1965. They were both appointed in the permanent post of Assistant 10 Agricultural Officer on the same date i.e. 1.6.1969. The applicant possesses a certificate to the effect that "he has participated in the complete course on Improvement of OliveProductionTechniques" held from 15.10.1970to 15.4.1971 in Cordova, Spain (vide red 39 in ex. 1A). 15 Interested party lacovides posseses (
5. a)a diploma in Comprehensive Regional Development Planning, Israel, having successfully completed his studies in this course from 18.5.71 to 6.4.72 (vide Red 32 in ex. 5A). (b)a certificate that "he participated intheInternational Course 20 in Fertihzer Use and Extension Methods held in Israel from 19.7.70 - 5.10.70 (vide Red 30 in ex. 5A). It is significant tonote(i)thatfor thepurposes of theScheme of Service as inAppendix 1set out "Post-GraduateStudies"are considered as "additional qualification." 25 (ϋ) that the Director of the Department of Agriculture having in mind the above Post-Graduate Studies of the applicant and the interested party lacovides stated clearly before the P.S.C. that 30

(1)the applicant "had an additional academic qualification",

(2)the interested party lacovides "has an additional qua­ lification as well." The Director has never stated that the interested party Iaco1011 Loris J. Charis v. Republic

(1983)vides "surpasses in qualifications the applicant" and 1cannot see where does the P.S.C. base such a finding. For disregarding the recommendation of the Director there remains,therefore, onlythereasoningto theeffect that generally the confidential reports at the material time "present the appli- 5 cant inferior to the interested party lacovides". Section 44

(3)of the PublicService Law 1967(Law No.33/67) provides that "in making a promotion, the Commission shall have due regard to the annual confidential reports on the candidates and to therecommendations madein thisrespect by the 10 Head of Department in which the vacancy exists. The recommendations made by the Head of Department in the instant case are clear and unambiguous; he graded applicant fourth in line suitable for promotion and comparing the applicant with interested party Andreas lacovides stated that 15 they areboth considered asverygood officers, but "on thetotality of the criteria the applicant isbetter." It is thus apparent that the Head of Department did not expressarbitrarily hispreference to the applicant over interested party lacovides; he gavehis reasons for such recommendation: "on the totality of 20 the criteria the applicant isbetter." And the Head of Department wasir thebest positionto knowthe"criteria" inquestion. Accordingto thecaseof Theodossiou v.The Republic(supra)the recommendation of a Head of Department and especially so in cases where specialized knowledge and ability are required for 25 the performance of certain duties (and I hold the view that the present case falls within such category) is a most vital consideration which should weigh with the P.S.C. in coming to a decision. If, nevertheless, the P.S.C. comes to the conclusion not to 30 follow the recommendations in question the reasons for taking such an exceptional course should be clearly recorded in the relevant minutes of the P.S.C. Asindicated abovethereasonsgiven bytherespondent Commission for disregarding the recommendations of the Director 35 arenot quiteclear and succinct; they boildowntoa generality that "confidential reports at the material time present the applicant inferior to the interested party lacovides." 1012 3 C.L.R. Charis \. Republic Loris J. 1 have had the opportunity of examining the factual substratum on this matter earlier on in the present judgment. I may as well repeat here: 5 10 15 20 (

1. a)the latest confidential reports (for 1977) of the applicant and the interested party lacovides are almost similar taking into consideration the fact that they were submitted by different reporting officers and as stated in Aristocleous case (supra). "Different reporting officers inevitably use different standards in their evaluation of the performance of the various officers serving under them." (In the confidential report for 1977 the applicant was rated with 3 "excellent" and 7 "very good" whilst interested party lacovides was rated with 4 "excellent" and 6 "very good"). (
2. b)As regards the confidential reports of the applicant for the years 1975 and 1976, 1 shall confine myself in saying this much: they have created an unsatisfactory state of affairs rendering their value next to nil; no administrative organ can depict therefrom with the required certainty the real picture of the merit of the candidate concerned. As against this confused and unsatisfactory material presented by the aforesaid confidential reports the P.S.C. had 25 before it the clear recommendations of the Director; in the circumstances it was not open to it to disregard them as they had no other solid soil tostepon; inviewof theabove 1 cannot subscribe, with respect, to their reasoning. I shall now proceed to examine the remaining complaints of 30 the applicant including the complaint that the sub judice decision is not duly reasoned as a whole. It was held as early as 1961 in the case of Theodossiouv. The Republic (supra) that the paramount duty of the P.S.C. in effecting appointments or promotions is to select the candidate 35 most suitable, in all the circumstances of each particular case for the post in question. This principle has been reiterated subsequently in a number of cases (Demosthenous v. The Re1013 Loris J. Charts v. RepubUc

(1983)public

(1973)3 C.L.R. 354, HjiGeorghiouv. TheRepublic

(1974)3 C.L.R. 436, Andreou v. C.B.C.

(1975)3 C.L.R. 467). In so doing they have to decide on the totality of the circumstances pertaining to each one of the candidates and should not adopt any ready-made rigid rule (Theodossiou v. The Republic - supra). 5 "This is a matter of exercise by an administrative organ of its discretion, and so longas sameisexercised in a valid manner, all material circumstances taken into account, due weight given to material facts and there is no misconception of law or fact, 10 this Court will not interfere with the exercise of such discretionary powers and will not substitute its own discretion for that of the appropriate organ" (Papazachariou v. The Republic

(1972)3 C.L.R. 486). In the present case the P.S.C. which was reconsidering its 15 earlier decision of 27.5.78, which was annulled by the Court, held two meetings for the purpose, on 21.10.81 and 23.11.81; in thefirst occasion, as already stated, they had the opportunity of hearing the recommendations of the Head of Department. They directed their minds properly to the Law applicable in the 20 circumstances and as Ihavealready held earlier on in the present judgment they did not act under a misconception of Law. InreachingthesubjudicedecisiontheP.S.C.took into account the facts whichexisted at the material time as they emerged from the Personal Files and theconfidential reports of the candidates; it has also taken into consideration the recommendations of the Head of Department (with the above exception) and exercising its discretion in the fight of the established criteria (merit, qualifications, seniority) reached the sub judice decision (vide Appendix 3). The applicant complains that his seniority and experience were not taken into consideration therefore the Commission acted under a misconception of fact. It is abundantly clear from the minutes (Appendix 2 and Appendix 3) that the P.S.C. considered the seniority of the applicant over all the other can- 35 didates; in this respect there is a minor error in the 2nd page of Appendix 3,to the effect that the applicant was appointed as Assistant Agricultural Officer on 15.10.64; the correct date 1014 25 30 "χ "χ. 3 C.L.R. Charis v. Republic Loris J. should be 15.9.64as it appears inred 6inex. 1A. in any event seniority is not by itself the determining factor but part of the overall picture of each candidate(Michanicos v.Republic

(1976)3 C.L.R. 237), which should be taken intoconsideration and it 5 should only prevail where all other things are equal(Phylaktou v. Republic

(1973)3 C.L.R. 445).' It is clear from theminutes that theP.S.C.didtakeintoconsiderationthattheapplicanthad about a year's seniority over the remaining"candidates but pre­ ferred the interested parties to him on the ground of merit. 10 With the exception of interested party lacovides (as I have already found earlier on the present judgment) the P.S.C. was perfectly entitled to reach the sub judice decision which is war­ ranted by the facts contained in the personal files, the confi­ dential reports and in particular the recommendations of the 15 Headof Department inconnection with theremaininginterested parties. Under the circumstances the sub judice decision in respect of theinterested parties (with theexception of interested party lacovides) was reasonably open to the P.S.C. which has exercised its discretionproperly andinnocasedid act under the 20 dictation of the Head of Department as alleged by counsel of applicant in his written address; therefore this Courtcannot interfere substituting his own discretion for that of theCom­ mission. Finally Iintendtodealverybriefly with thecomplaintthat the 25 sub judice decision is not duly reasoned. It is well settled that administrative decisions have to be duly reasoned: what is due reasoning is a question of degree de­ pendent upon the nature of the decision concerned (Athos Georghiades &Others v. The Republic

(1967)3C.L.R. 653 at p. 30 666). Reasoning behind an administrative decision may be found either inthedecision itselforintheofficial records relatedthere­ to(Georghios HjiSavva v.The Republic

(1972)3C.L.R. 174atp. 205, Petridesv. The Republic

(1983)3 C.L.R. 216). 35 .Having examined thesubjudice decision and thebackground thereto as appearing from thefiles before meIam satisfied that the sub judice decision in respect of all interested parties with the exception of interested party lacovides is duly reasoned. 1015 J^oris J. Charis v. Republic

(1983)In the result the present recourse against interested parties lpsarides, Yiakoumettis andXistourisfails forthe reasons stated above and it is accordingly dismissed. The present recourse succeeds in respect of interested party Andreas lacovides for lack of due reasoning by the respondent 5 Commission indisregardingtherelevant recommendation of the Director of the Department of Agriculture as stated above. The secondment of interested party Andreas lacovides is accordingly declared null and void and of no effect whatsoever and it is hereby annulled. 10 Havinggiventothiscasemybestconsideration 1 havedecided to make no order as to the costs thereof. Recourse succeeds against interested party lacovides. Recourse against theotherinterestedparties dismissed. No order as to costs. 15 1016