clr/1984/1984_3_1391.pdf

(1984)—merit, qualifications and seniority—the interested parties did not qualify as more suitable for promotion compared to the applicant, the respondents repeated the annulled decision in evident disregard of the findings of the Court. Hence this recourse. ' 5 Held,that the judgments of Courts of revisionaijurisdiction are binding upon all organs and authorities of the Republic (see Article 146.5 of the Constitution); that, therefore, every operativefindingoftheCourtisbindingupontheadministration which is no longer at liberty to take a contrary view of a given 10 set of facts; that judicial pronouncements, irrespective of their precise juridical effect, should be duly observed by the Administration as a potent force for ensuing sound administration and they should not be lightly by-passed as seemsto have been thecasehere;andthat, therefore, thisCourt isbound todeclare 15 the sub judice decision invalid for breach of the provisions of Article 146.5. Held,further, that even if the pertinent findings were not operative, this Court would again be compelled to annul the subjudicedecisionfor failureto reasondeparturefrom theview 20 taken by the Court of the material facts of the case. Subjudicedecision annulled. Cases referred to: Gavav. Republic

(1981)3 C.L.R. 476; Pieris v. Republic

(1983)3 C.L.R. 1054at pp. 1064-1067; 25 Karageorghis v. Republic

(1983)3 C.L.R. 1211; Constantinou v. CY.T.A.

(1972)3 C.L.R. 116. Recourse. Recourse against the decision of the respondents to promote the interested parties to the post of Administrative Officer 30 First Grade in preference and instead of the applicant. Chr. Triantafyllides, for the applicant. R. Gavrielides, Senior Counsel of the Republic, for the respondents. Cur. adv. vult. 35 1392 3 C.L.R. Gava v. Republic PIKIS J. read the following judgment. The history of the proceedings goes back to 1978 when the Public Service Commission decided to promote the interested parties to the post of Administrative Officer First Grade. Recitation of the salient 5 facts is essential in order to resolve the questions calling for an answer, especially the submission that the decision under consideration in the present proceedings was taken in breach of or defiance to the doctrine of res judicata, prohibiting administrative action in contravention to a judgment of a Court 10 of revisionai jurisdiction. Tobeginwiththedecision of 1978,the Public Service Commission was required to make promotions to the post of Administrative Officer first grade. It was a difficult task considering that the eligible candidates served in different departments of 15 government and were assessed by different reporting officers. The applicant and the interested parties were among the candidates competing for promotion. Eventually, they promoted the interested parties, an action disputed as invalid by the applicant. She challenged it as ill founded, resting on a baseless 20 recommendation of the Director of the Personnel Department and as self-contradictory in that the decision defied the criteria of selection they purported to follow in the light of thematerial bearing on the candidates. The Court vindicated the complaint of the applicant—Gava 25 v. Republic

(1981)3 C.L.R. 476—and annulled the decision. Need arises to examine the reasons for the discharge of the decision to be able to ascertain whether the decision currently under review defies the operative part of the judgment of the Court, that is, the reasons for annulment. On examination 30 of thejudgment it emerges,thedecision topromote theinterested parties was discharged for two separate.reasons, each justifying of itself the annulment of the decision:- 35 40 (a) Reliance on the ill founded recommendations of the Director of the Department of Personnel vitiating the factual substratum of the decision. Whereas the Director of Personnel had no personal knowledge of the candidates and made no inquiries to ascertain their capabilities and suitability for appointment, he ventured an opinion that had no factual basis. Certainly, it did not reflect the objective picture of 1393 Pikis J. Gava v. Republic

(1984)the candidates, as disclosed in their confidential reports. (b) Defective reasoning: The decision defied the criteria of suitability for promotion—merit, qualifications, seniority—that the Public Service Commission pur- 5 ported to follow. Following the decision of the Court the respondents became seized anew of the matter, dutybound to re-examine the issue by reference to the factual and legal situation obtaining at the time the revoked decision was taken. As the minutes of their 10 meetingof 25th January, 1982indicate,therespondents,guided bythedecision of the Court, excluded, at the outset, from consideration the recommendations of the Director of the Department of Personnel. In so doing, they acted in conformity with the decision of the Court, bound as they were, to give 15 effect to it by the exclusion of material declared inadmissible. They confined their inquiry to the remaining material before them, that is, the confidential reports and personalfilesof the candidates. In effect, they proceeded to re-assess, with the exception of the inadmissible recommendation of the depart- 20 mental head, theselfsamematerial theyhad taken intoaccount in arriving at the annulled decision. Notwithstanding thedecision of the Court on the effect of such material, particularly the fact that by the application of the statutory norm of suitability—^merit,qualificationsandseniority—theinterestedparties 25 did not qualify as more suitable for promotion compared to the applicant, the respondents repeated the annulled decision in evident disregard of the findings of the Court. Weare not here concerned with the soundnessof the finding of the Court, in the first case, but with the existence of the 30 finding anditsimpact uponreconsiderationof thematter bythe PublicServiceCommission. Judgmentsof Courtsof revisionai jurisdiction are, in accordance with para. 5 of Article 146, binding upon all organs and authorities of the Republic. The implications of the aforementioned article of the Constitution 35 were examined by the Full Bench in Pierisv. The Republic

(1983)3 C.L.R. 1054, 1064-1067; it introduces the doctrine of resjudicata in the spirit itfindsexpression inother countries practising administrative law as a separate jurisdiction and 11394 3 C.L.R. 5 10 15 20 25 30 Gava τ. Republic Pikis J. has many similar features to the doctrine of res judicata in the form it is encountered in civil law. <Sr Everyfindingof aCourtof revisionai jurisdiction uponwhich the judgment is founded, which, may appropriately be termed an operative finding, is binding upon the Administration, no longer at liberty totake a contrary view of a given set of facts. They are required to act upon the findings premised by the judgment, unless new facts surface in the course of a fresh inquiry that cast adifferent complexion onthefactual situation. Upon re-examinationof acase,theAdministration is precluded from making a different assessment of the facts covered by an operative finding unless they conduct a fresh inquiry and new facts emerge in thecontextthereofjustifying such reassessment. A good illustration of the binding effect of operativefindings is afforded by the case of Karageorghis v. Republic

(1983)3 C.L.R. 1211, declaring unsustainable a new decision repetitive of an annulled onetaken in disregard of the operative findings of the Court. Apart from operative findings that must be heeded by the Administration as a condition for remedying the illegality of earlier action, other judicial pronouncements bearing on the evidential value of material before the Administration mustalsobenoticedandbegiveneffect to,unlessspecialreasons minuted in the decision otherwise justify. The point is aptly made,if Imaysay sowithrespect,inthejudgment ofA.Loizou, J.,in Constantinouv. CY.T.A.

(1972)3C.L.R. 116. The learned Judge ruled that peripheral judicial pronouncements should nonethelessexercise decisive influence upontheappointingbody charged with re-examination of a case; departure therefrom must be specially reasoned in the decision itself. The underlying principle appears to be thatjudicialpronoun­ cements, irrespective of their precise juridical effect, should be duly observed by the Administration as a potent force for ensuring sound administration. They should not be lightly 35 by-passed as seems to have been the casehere. In the light of the above analysis of the implications of the decision of the Public Service Commission and its conflict with the operativefindingsof the Court, I am constitutionally bound to declare the sub judice decision invalid for breach 1395 Pikis J. Gata τ. Republic

(1984)of the provisions of Article.146.5. Even if the pertinent findings were not operative, in the sense explained, I would again be compelled to annul the decision for failure to reason departure from the view taken by the Court of the material facts of the case. 5 The remaining objections to the validity of the decision going to its retrospectivity, the abolition of the post and its replace­ ment with a new one in the context of the re-organization effected by Law 45/80, areless cogent and I remain unpersuaded about their soundness. In view of the outcome of the case, 10 I consider it unnecessary todiscuss them in anydetail. Further, I shall refrain from pronouncing on the submission that aside from thedecision of the Court in thefirst case the applicant was strikingly superior to the interested parties for this issue is bound up with the assessment of the facts made by the trial 15 Court in the first action. Therefore, I consider it imprudent to go into the matter at all. For the reasons indicated above, the recourse succeeds. The sub judice decision is annulled. Let there be no order as to costs. Sub judice decision annulled. No order as to costs. 1396 20