(1984)1984 January 26 [L. Loizou. J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION ELPIDOROS ALVANIS, Applicant. v. THE CYPRUS TELECOMMUNICATIONS AUTHORITY, Respondent. {Case No. 491/82,). Xdminhtrative Law—Inquiry—Sufficiency of—Promotions to povt of Deputy Director Cyprus Telecommunications Authority— Personalfilesand confidentialreportsof candidatesnotconsidered by respondentBoard—Inquiry carriedoutby theBoardinsufficient because it acted in disregardand/or in ignoranceof most material 5 facts pertaining to the criteria upon which promotions should be made—Promotions annulled. The applicant in this recourse challenged the validity of the promotion of the interested parties, who have been promoted in preference to him, to the post of Deputy Director of the 10 respondent Authority. Counsel for the applicant mainly contended that at the meeting of the board when the decision was taken the members of the board did not have before them nor did they perusethe personal files and confidential reports noi even a comparative table showing details of the service and qualifications of the candidates. 15 Held, that in the light of all the circumstances of this case it does not seem that the conclusion reached by the board can be said to be an independent decision reached after due inquiry; that on the contrary il is clear that the inquiry was quite insufh- 20 cient due to the fact that the respondents acted in disregard and/or in ignorance of most material facts pertaining to the criteria upon which promotions should be based; and that, there- 42 3 C.L.R. Alvanis v. CYTA "fore, the sub judice decision must be annulled and it is now up to the respondents to'reconsider the matter in a manner war ranted by law and the principles -of good administration. Sub judice decision annulled. 5 Cases referred to. Zinieris (No. 2) ν Republic
(1975)-3 C L.R. 224; losifv. CY.T.A.
(1975)3'C.'L.R. 261, Evripides v. *E.-A.C.
(1982)3 C.L.R. 850. Recourse. 10 Recourse against the decision of the respondent tOipromot* •the'interested '.parties to the post of Deputy Director of th< Cyprus Telecommunications Authority in preference and instea of the applicant. A. Ladas, for -the applicant. 15 A. Hadjiloannou, for the respondent. Cur. adv. vul L. Loizou, J. read the following judgment. The applicar by this recourse challenges the validity of the promotion < the interested parties, chosen in preference to him, to the po· 20 cf Deputy Director of the respondent Authority. The post of Deputy Director is a promotion post from th immediately lower post of Section Head except in exceptiom circumstances which do not arise in the present case as all'th candidates held the post of Section Head. 25 'Provision for the promotions of members of the staff of th Authority is made in the Cyprus Telecommunications Authorit (Personnel) (General) -Regulations, 1982 and particularl regulation 10 thereof. In the case of the highest personnc (anotaton prosopikon) which comprises the post of Directc 30 and Deputy Director the promotions are effected by the adm; nistrative board of the Authority and in the case of all othe grades of the staff by the Personnel Committee. Thi Committee also expresses its opinion to the Board in cases c promotions of Section Heads which is the highest post of th 43 [.. Loizou J. Ahanis v. CYTA
(1984)second grade or category of personnel i.e. higher personnel (anoteron prosopikon). In effecting a promotion the board of the Authority also hears the recommendations of the General Manager. In the present case the vacant posts which had to be filled 5 were two posts of Deputy Director. In accordance with the provisions of regulation 10 the Personnel Committee met on the 10th September, 1982 and considered all members of the staff holding the post of Section Head who were eligible for promotion to the post of Deputy Director and, after taking into 10 consideration all relevant factors, expressed the opinion that the most suitable were the two interested parties, A. Kyprianou and S. Mourouzides. The minutes of the meeting of this Committee are exhibit 3. The meeting of the board at which the decision challenged 15 was taken took place on the 27th October, 1982. Present at this meeting was also the General Manager of the Authority, Mr. Stylianides. The minutes of the meeting of the board have been produced in the course of the hearing and are exhibit 2. The grounds of law upon which the application is based, as 20 set out in the Application itself, are the following:
(1)The subjudice decision was taken under a misconception of facts and/or without taking into consideration material facts and/or by a wrong exercise of the discretionary power of the competent administrative organ. 25
(2)The sub judice decision is not duly or at all reasoned.
(3)In addition and/or in the alternative the sub judice decision was taken by an incompetent organ or persons and/ or in contravention of the relevant regulations and/or the established principles of administrative law. 30 In the course of the hearing learned counsel for the applicant based applicant's case virtually on the ground i.e. that at the meeting of the board when the decision was taken the members of the board did not have before them nor did they peruse the personal files and confidential reports not even a comparative 35 table showing details of the service and qualifications of the candidates. Learned counsel, at a later stageoftheproceedings, 44 3 C.L.R. Ahanls ΐ. CVTA L. Loizou J :•) made a similar allegation regarding the meeting of the Personnel Committee but did not pursue this latter ground. Counsel's allegation as to the meeting of the board \\a*· initially based on the wording of the minutes of the meeting 5 (exhibit 2). Itis, in fact, therein recorded that at the commence ment of the meeting the General Manager placed before the members of the board the minutes of the meeting of the Person nel Committee and no mention is made that anything else wa* placed before them. Furthermore, although such minute* 10 purport to explain how thedecision was arrived at and what wa; taken into consideration in selecting the candidates promotet nowhere is it stated that the members of the board eithci considered or had before them anything else other than tin minutes of the meeting of the Personnel Committee and tin. 15 recommendations of the General Manager who. in fact, \v; also the person who kept the minutes. 20 25 30 35 40 I do not propose to dwell on this issue in any detail becaii' eventually it was resolved by evidence adduced by both side Learned counsel for the respondent called the General Managi of the Authority as a witness who, very frankly and fairl stated in evidence that the relevant files were not, in fact, befoi the members of the board at the meeting in question but wei in a cabinet in the Personnel Department. He added that I" had told the members that the Personnel Manager was availab in his office and that if the members required anyfile he woul be requested to fetch it and place it before them. The witne* did not remember if, any member of the board asked for c inspected any file. Counsel for theapplicant,on the otherham called as a witness a member of the respondent board. Μ Efstathios Kittis, who was present and, in fact, acted as sccret.ii at that particular meeting. He confirmed that the person. filesand confidential reports of the candidates were not befoi the members of the board and went on to say that no memb< had requested the production of any file and that the decisic was taken on the basis of the minutes of the meeting οι ih Personnel Committee and the recommendations of the Gener. Manager. It is significant to note that this witness was in cross-examined by learned counsel for the respondent. In the light of the uncontested evidence before the CVu. learned counsel for the respondent altered the course of h 45 L. Loizou J. Alvanis >. CYTA
(1984)defence and submitted in .his final address that it was not necessary for the members of the board to examine thefills themselves"but that they could appoint some committee or other organ to make the necessary inquiries and they could utilize the conclusions reached by such committee or organ in reaching their decision and this in view of the provisions of paragraph 9 of regulation .10. 5 This -paragraph 'reads as follows: "
(9)Αϊ προς προαγωγήν κρίσεις διενεργούνται εν όψει της υπηρεσιακής επιδόσεως και -αποδόσεως και της έυ γένει 10 ουσιαστικής καταλληλότητος έκαστου, ελεγχομένων έκ τώυ στοιχείων τοΰ άτομικοϋτου-φακέλλαυ, έκ τών φύλλων ποιό τητος και τών φύλλων προαγωγής αύτοΰ έν συνδυαΘμω προς την προσωπικήν άντίληψιυ τών μελών τοΰ οικείου Συμβουλίου irsp't τοΰ (κρινόμενου". 15 ("
(9)The decisions to promote are taken in view of the service record and performance and in general the sub stantial suitability of each, as appearing on the particulars in his personal file, from the quality sheets and promotion shests in conjunction with the personal viewof the members 20 of the particular Council of ,thc candidate"). 1 am clearly of .the view that this paragraph cannot be construed in the way submitted by counsel. Such construction would, in effect, mean thatthe assessment of the relevant criteria relating to promotions and moreover the actual decision would not be the decision of the board which is the competent organ but of someotherorgan which hasno competenceunder the law. 25 Jn the light of all the circumstances of this case it does not seem to me that the conclusion reached by the board can be said to be an independent decision reached after due inquiry. 30 On the contrary it is clear that the inquiry was quite insufficient due to the fact that they acted in disregard and/or in ignorance of most material facts pertaining to the criteria upon which promotions should be based. (See, inter alia, Zinieris (No.2) v. The Republic
(1975)3 C.L.R. 224; losif v. CYTA
(1975)35 3 C.L.R. 261; Exripidesv. E.A.C.
(1982)3 C.L.R. 850). In the result 1feel bound to annul the decision and it is now 46 3 C.L.R. Ahanis \. CYTA L. Loizou J. up to the respondents to reconsider the matter in a manner warranted by law and the principles of good administration. Mr. Ladas: I claim my costs. 5 Court: Respondents are adjudged to pay £45 towards applicant's costs. Sub judice decision annulled. Order for costs as above. 47