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clr/1984/1984_3_48.pdf

(1984)1984 February 22 [PIKIS, J.] Ν THE MATTER OF ARTICLE 146 OF THE CONSTITUTION NICOLAOS ARSALIDES, Applicant. v. THE CYPRUS TELECOMMUNICATIONS AUTHORITY, Respondents. (Case No. 115/83). Ulministrative Law—Administrative inquiry—Object of—Incomplete­ ness of the inquiry is not in itself independently of its effect upon the decision of the administrativebody, a groundfor annulment. Cyprus Telecommunications Authority—Officers of—Promotions —Qualifications—Regulation 8 of the PersonnelGeneral Regula- 5 tions of 1982—Application of, is made subsect to theprovisions of regulation 56
(7)(c)—Tourpekki v. Republic
(1973)3 C.L.R. 592 distinguished. 1 Jie applicant in this recourse challenged the validity of the promotions of the interested parties to the post of Head of B* 10 Personnel Service. Counsel for the applicant mainly contended: (a) That it was not competent for the respondent Author­ ity to promotethe interested parties in view of theexist­ ence of a candidate such as the applicant, possessing 15 the qualifications envisaged by reg. 8 of the Personnel General Regulations of 1982; and that only in the face of special reasons, to be recorded in the decision itself, could a candidate possessing the qualifications laid down in reg. 8, be turned down for one possessing the 20 lesser qualifications tolerated by reg. 56
(7). (
  1. b)That the enquiry held was defective on account of the 48 3 C.L.R. Arsalides v.CYTA fact that the respondents did not examine the personal files of the applicant. 5 10 15 20 25 30 Regarding contention (
  2. b)above the respondents had before them the record cards of the candidates that recorded some but not all the facts appearing in their files. Held.
(1)that reg. 8 does not contemplate possession of the qualifications provided therein as an additional advantage: that the application of reg. 8 with regard to qualifications is specifically made subject to the transitional provisions of reg. 56
(7)exempting, by virtue of para, (c),candidates for promotion whojoined the service prior to 1.1.1955which was the case with the interested parties; accordingly contention (a) should fail. (Tourpeki v. Republic
(1973)3 C.L.R. 592 distinguished).
(2)That though the object of every administrative inquin is to enable the administration to exercise its discretion in a manner lightened by the facts of the case, the incompleteness of the inquiry is not in itself, independently of its effect upon the decision of the administrative body, a ground for annulment: that if the facts are properly conceived and appreciated upon a correct factual perspective, the decision will be sustained notwithstanding absence of consideration of the sources wherefrom those facts emerge: that so long as the reasoning rests on sound factual premises, the decision is sustainable: that the main complaint of the applicant was that the respondents overlooked hisqualifications andthisallegation isunfounded became his qualifications were recorded on his record card which was before the respondents: that nothing -n the tiles contradicts theevaluation made bythe respondentsthat the interested parties were, on account of their successful performance at work and long service with the Authority, the most suitable candidates for promotion: accordingly the recourse must fail. Applicationi/iwu/m </ Cases referred to: Protopapus v. Republic
(1981)3 C.L.R 456: 35 Tourpeki v. Republic
(1973)3 C.L.R. 592; Decisionsof the Greek Council of State \'o.\: 1688/
  1. 1056/62, 1845/63, 2148/66, 2809/
  2. 254/61, 2619/
  3. 1005-
  4. 1186/70 and 1571/70, 49 Arsalides \. CYTA
(1984)Recourse. Recourse against the decision of the respondents to promote the interested parties to thepost of Head of B' Personnel Service in preference and instead of the applicant. A. Eftychiou, for the applicant. 5 A. Hadjioannoit, for the respondents. Cur.adv. vult. PIKIS J. read the following judgment. The general manager of the respondents in exercise of the powers vested in him by regulations 10 and 24 of the Personnel General Regulations of 10 1982, approved the promotion of the interested parties to the post of Head of B' Personnel Service (27.10.82). He confirmed the decision of the Personnel Committee of the Authority taken about a fortnight earlier, on 10.9.
  1. The interested parties, namely, Georghios Minas, Panikos Ioannou and Aris Pavlides, 15 were holding, like the applicant, the post of Inspector of Telecommunications. The applicant objected to the decision of the General Manager and moved the Board of the respondents to reverse it. He complained that he was wrongly excluded from the list of promotces. The respondents dealt with his objection 20 in their meeting of 12.1.
  2. They dismissed it, finding that the promotions of the interested parties were warranted and ought to be sustained. The recourse is directed against the dismissal of his objection, and questions the propriety of the decision to promote the interested parties, anyone of them, in preference to 25 him. The annulment of the decision is sought on grounds of form and substance. The decision was reached on an insufficient enquiry and was allegedly taken in excess or abuse cf the power of the Authority. Their authority was abused, inter alia, 30 because the superior merits of the applicant were disregarded. In his contention, applicant enjoyed superiority over the interested parties on all scores - merit, qualifications, as well as seniority. The complaints are detailed in the address of applicant, as well as the principles of law that were infringed in the 35 process of appointment of the interested parties. Prominent among the complaints made, is the allegation that, contrary to what is minuted in the decision of the Board, the personal file of the applicant was not examined. In fact, it was not available 50 3'CL.R.. ArsalidcsM.. CYTA Pikis·J? atiallL Counsel'for the;respondents'-conceded-that the:enquiry did'notextend,toexamination>of the:personal'files«of'the-parties; instead, they consulted their record·- cards- that reproducedmaterial·facts- from. the-files. of the-parties: Ths-omission did' 5 notmislead-the respondents-as tothesuitabilityof thecandidates for promotion
  3. The.enquiry was,·on-the*whole, sufficient-and resulted', in-·a1 valid-decision·, warranted' by the-'overall factual situation"bearing-on1·the:suitability ofJthe' parties. In·,order'to examine the:substancco6 this' complaint-the* respondents, pro10' duced; at.the'-requestTof; the^Gourt-,. the-files; off the-applicant, aswell· asr those: of the: interested'- parties: Uis-the*case.for'the'-appIicant..that it was not.competent· for thexAuthority to*promote^the interested parties, in-viewof the existence'oft a1, candidate, such as the;applicant,-possessing the 15 qualifications envisaged- by. reg:.
  4. If such a?right' existed; it ought,to»be;excrc^scdί with*great-circumspection. Only in.the face- of.' special reasons, to· Be- recorded'- in>the-decision itself cou!dr, a;-candidate-possessing-the;qualifications. Hud-down,in reg;- 8; be· turnedf down1 for-"one-possessing; the-lesser qualifi20 cations;tolerated by regr56
(7)*. In'support-of this proposition. he>citedithe;decision!of"A.-Loizou- J1., iniP'rotvpapas v..The Re­ public
(4981)'.3:G.1LRV456,". wliere: the-principles explaining' the need'.fon'speciaKreasoningron. the."part.oft'tlie·appointing.Autho­ rity; iruthe-event of'd'epartureifionv the recommendations-ofa1 25 departmental'head', were reviewed'.. The recourse-also-touched' upon:tne-principletcspoused1 inT Vasso1· Tlntrpckr r: The Republic(<1973) 3-G.L.R1.-592*,.that-"convincingireasons*must· be-furnished by^th"erappothtingiBody^for'not'"choosingTa candidate who pos­ sesses·. an< academic-qualification- postulated-by the-schemes of* 30- service- as- an- advantage;. Unlike- Towpek-i. reg.8' docs» not' contemplate.'possession, of. the;qualifications;- provided*thereintas: an: additional· advantage; Tilie- application- οΐ- reg: 8- withregardvtorqualificatibns.. is-specifically'made-suBject- to"thc-tran-sitional' provisions. ofi'reg"56(*7)· exempting: by· virtue'of para'. 35- (c),.candidates*for.· promotion-who joined!·the-scrvicc prior to» kl\55. wliich.wos.the··case^witfr-the-ihterestedlpartieSi In'-their' case;.allUhattwas«required1,-was thaMheyslwuld'beMnuho.opinionof·' tlic. Authority, in". a-position' to-perform; satisfactorily, the' duties"of the;new-post'. Manifestly; thVAuthority tookthV1 40 viewas.it-emerges*from: theidecision under*question*; and'-tKbsc" 1 of-'thc:General*Manager and-Personnel'Committee'that prece51? Piltis J. Arsalides *. CVTA
(1984)ded it. Hence the interested parties, like the applicant, had the qualifications necessary for promotion. The duty of the Authority was to promote the candidates best suitable for appointment to the vacant posts. Regulation 10
(9)incorporates the principles of administrative law that the Authority 5 should choose the candidate best qualified for appointment to the new post. As specifically laid down, performance in the service is a principal guide to a candidate's suitability for appointment. As in every case of appointment by a body operating in the domain of public law, merit is the most significant 10 factor. Academic qualifications are also relevant but by no means decisive. Seniority, on the other hand, particularly judged in combination with performance at work, is a pointer to one's devotion to duty. On a consideration of the decision in hand, it clearly emerges that the performance of interested 15 parties was highly rated and proven over a long period of time. Each one of them had substantial seniority over the applicant contrary to what is alleged in the statement of facts accompanying the application. The contention that the decision is not duly reasoned, is 20 unfounded. The reasoning of the decision, as well as the reasons given by the General Manager and the Personnel Committee for selecting the interested parties, clearly indicate the factors that led them to choose the interested parties. They had a longand successful career with theAuthority thatjustified 25 their promotion in preference to other candidates. One of the interested parties, namely, Georghios Minas, has retired in the meantime. In my judgment, the subjudice decision does not lack in reasoning. There remains to consider whether the enquiry held was 30 defective on account of the absence of the personal files of the candidates. As earlier indicated, they had before them their record cardsthat recorded somebut not all thefacts appearingin their files. Regulation 10
(9)enjoins the Authority to have regard to the personal f'les of the candidates in making an 35 ippraisa! of their claims for promotion. The object of every administrative enquiry is to ascertain the factual background of a case as a pre-condition for the exercise of thepowers vested in thebody by law. The object isto enable the Administration to exercise its discretion in a manner l'ghte- 40 52 3 C.L.K. 5 10 15 20 Arsalides v. CYTA Pit's J. ned by the facts of the case. A proper conception of the facts is essential for a sound decision. A material misconception of the facts, it has often been held, vitiates the decision. The premises upon which it is based are unsound. Ttcannot stand the test of scrutiny. In those circumstances, it rests on unfounded premises. On the other hand, the incompleteness of the enquiry is not in itself, independently of its effect upon the decision of the administrative body, a ground for annulment. If the facts are properly conceived and appreciated upon a correct factual perspective, the decision will be sustained notwithstanding absence of consideration of the sources wherefrom those facts emerge. (See. inter alia, the following Decisions o! the Greek Council of State: 1688/
  1. 1056/62, 1845/63, 2148/ 66, 2809/69). The Greek Council of State has subscribed to the proposition that, so long as the reasoning of the decision rests on sound factual premises, the decision is sustainable (see, Decisions of the Greek Council of State -254/61, 2619/64 1005/
  2. 1186/70, 1571/70). The main complaint of applicant here, is that respondents overlooked his qualifications. This allegation is unfounded for, such qualifications were recorded on his record card, before the respondents. I have gone through the files of applicant and interested parties in order to determine whether the evaluation made by the respondents of the suitability of the candidates for promo25 tion, rested on unsound premises. The answer is in the negative. Nothing in the files contradicts the evaluation made by the respondents that interested parties were, on account ol their successful performance at work and long service with the Authority, the most suitable candidates for promotion. 30 In my judgment, the recourse fails. It is dismissed. Lei there be no order as to costs. Recoursedismissed withno orderas to costs, 53

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