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(1984)1984 February 15 [HADJIANASTASSIOU, J.] IN THE MATTER OF ARTTCLE 146 OF THE CONSTITUTION LOLNZA CHR. KONTEMENiOTOU AND OTHERS, Applicants, r. THE REPUBLIC OF CYPRUS, THROUGH THE EDUCATIONAL SERVICE COMMISSION, Respondent. (Cases Nos. 407/82, 409/
  1. 434/82, 451/82, 469/82 and 494/82). Administrative Law—Administrative acts or decisions—ReasoningsDue reasoning—Promotions in the educational service—Based, inter alia, on the impression formed about the candidates in the course of their personal interview which had been held two years before the subjudice decision—Minutesof respondent Commission 5 containingevaluationfor eachof theinterested parties but making no reference to the applicants—And they do not explain why applicants with higher grades, more qualifications and seniority than the interested parties were not.preferred—Judicial control not possible in the absence of any reference in the reasoning 10 to the applicants—Sub judice promotions annulled. Res judicata—Annulment of promotions in the educational service —In reconsidering the matter respondent Commission hasacted in breach of the principle of resjudicata because it has not taken into consideration thefindingsof the Supreme Court on the quest- 15 ion of the personal interview of the candidates. Educational Officers—Promotions—Candidate abroad for a postgraduate course—His rights to promotion not affected. On the 17th May, 1982 the Supreme Court upon a recourse bythe applicants,annulled thepromotion oftheinterested parties to the post of Headmaster in the Elementary Education. The 58 20 3''C.U.R:. 5-
  2. 15- 20^ 25' 30 35 Kontemeniotou.v.. Republic. main grounds?1 on which; the said,promotions- were, annulled was-lack of reasoning-,and-because the:members-·of the-Comrnission·resorted.tO'their-own:personal,knowledge-about the candidates·for the-purpose.of reaching their-decision-., Following;the· annulment- of the promotions^ the: respondent. Committee- at its.meeting'.of-the 22nd-June,· 1982'reconsidered'the-question· of the- promotions;and1,after-taking.into; consideration- inter-alia, the-merit; qualifications,, seniority,,the:recommendations-of theHead1.off Department·,and:.the'impression',formed:ins the.course: ofithe.personal.interviewsdecided'.to-promoteiagain,the.interested. parties: and1, hence· this, recourse;. The.·,interviews·- were: Held' in·January,and.November,-.1980;i.e..more:than- two years, before: the:taking; of. the:new. decision-., At. its;-above:meeting; of-'the. 22nd' June;. 1982:the,-respondent·. Commission;, in. its.-minutes cited1its.-evaluatibniforreachi one.of "the-ihterested!parties;individually but. with· regard to-the·,applicants there was no note o f the-opinion· of the-Commission, relating to their oral, personal' interview. Hetd'y.iY) that'the reasons: for which the first, decision:was:annulled'were-very substantial and"the judicial'pronouncement: did1 not-only rest- on-the absence:·ofv'the requisite formalities;: that, therefore; the-addition of some: reasons-at some later: stage,· regarding-the,interested parties- only, is not·, enough to, reinstate-the;legality and.thenew decision suffers with the same: illegality as-the-onerwhich;was,declared-null*and void; that, im reality;,it amounts to breach:of the- principle o f res judicata,. since it· has-not taken: into*consideration the-findings of the Supreme Court on the:matter, of"their personal'interview; in r stead'of being'Ied.by them; that the reasoning for the sub-judicc. decision-isnot theproper reasoning that,is·required by legislative: provisions, because it does~not-disclose the-reason behind:the.; decision'of the Committee;-that;-, further, it-does not explain. why applicants,- with higher-grades-.than the.interested parties*were disregarded-_or-why others-with highen seniority or additional'.qualificationswere not:preferred;that the:abscnce:ofrany.' reference.'inrtherreasoning-to.Uhe;applicants;deprives?-the;possir-bility.ofanyjudicial.controli.accordingly-the^ubo'iidiceidecisiont must, be, annulled.. ** The-grounds oPannulment-are quoted at pp. 63-64'post. 59,» Kontemeniotou v. Republic
(1984)Held,further, that the defective reasoning covers also the case of applicant Theofilides for whom the committee has made a special reference; that the fact that Theofilides who, as the Committee admit, is superior in merits and qualifications, was for the time abroad, for a post-graduate course does not justify the decision of the Commitee which is arbitrary and in breach of s. 35
(2)of Law 10/69 as amended by Law 53/79, and which provides that the promotions of the educationalists are decided on the basis of their merits, qualifications and seniority. 5 Sub judice decision annulled. Cases referred to: Angelidou and Others v. Republic
(1982)3 C.L.R. 520; Tornaris v. Republic
(1983)3 C.L.R. 1292: Korai and Another v. C.B.C
(1973)3 C.L.R. 546 at p. 555; Kyriacouand Others v. Republic
(1983)3 C.L.R. 974 at pp. 986987; 10 15 Nissiotou v. Republic
(1983)3 C.L.R. 974 at pp. 986-
  1. Recourse. Recourse against the decision of the respondent to promote the interested parties to the post of Headmaster, Elementary Education, in preference and instead of the applicants. 20 A.S. Angelides, for applicants in Cases Nos. 409/82, 451/82 and 494/
  2. E. Odysseos with A.S. Angelides, for applicant in Case No. 407/
  3. 25 P. Angelides, for applicant in Case No. 434/
  4. A. Papacharalambous, for applicant in Case No. 469/
  5. R. Vrahimi (Mrs.), for respondents. Cur. adv. vult. HADJIANASTASSIOU J. read the following judgment. The 30 first applicant, as well as the rest of the applicants, seek almost the same relief:
(1)a declaration of the Court that the decision of the respondents which was published in the official Gazette of the Republic under notification 1971 dated 17th September,
  1. in accordance with which the interested persons were 35 60 3 C.L.R. Kontemenlotou v. Republic Hadjianastassiou.
  2. promoted to the post of Headmaster as from the 1st January, 1981, instead of the applicant, is null and void and of no effect whatsoever;
(2)a declaration of the Court that the omission of the respondent to promote the applicant to the post of Head5 mistress ought not to have been made and the applicant ought to have been promoted to that post. The present application is based on the following facts :- 10
(1)Theapplicant is a schoolmistress, and has been appointed on 1.9.1950 as Assistant Headmistress of the elementary education from 1.7.1972 till today.
(2)The applicant claimed that she had all the necessary qualifications, merit, seniority and all the requirements for promotion to the post of Headmistress in preference and instead of the following interested parties: 15 (
  1. a)Vasos Vassiliades (P. 1677) (
  2. b)Kyriakos B. Tamboukaris (P. 1997) (
  3. c)Andreas Protopapas (P. 2162) (
  4. d)Har. Kasparis (P. 2195) 20 (
  5. e)Minas Hadjicostas (P. 2622) (
  6. f)Charalambos I. Mouzouris (P. 3110) (
  7. g)Demitris Papadopoullos (P. 2743) (
  8. h)Despo Kaim. Mbaka (P. 2674) (
  9. i)Georghios Mouskos (P. 3236) 25 (
  10. j)Georghios Sorianos (P. 3770)
(3)The promotion of the interested parties to the post of Headmaster was published in the official Gazette of the Republic under No. 1802 dated 17.9.82 D.P. 1971. 30
(4)The said interested parties have been promoted previously by a decision which was published in the official Gazette of the Republic dated 6.2.81 No. EE 1661 and D.P.223. The promotion was valid as from 1.1.81.
(5)The applicantappliedtotheSupremeCourtin accordance with a recourse 148/82, and the said earlier promotion of 61 Hadjianastassiou J. Kontemeniotou-v. Republic
(1984)the·interested,persons-was annulled,byj a:decision ofthe· Supreme Court dated 1.7.5:82.
(6)The new promotion of the, interested',parties, was. made. onceagainrin.spite-of the decision-of the;Supreme Court, with' retrospective.- effect, as from- Γ.Γ.8Γ. 5 The; present application was based on these: legal· points:. (l·)- The-sub'judice decision of the respondent",was; taken:in contravention of the.express; provisions of: tfie^ relevant law· and the regulations made thereunder.'
(2)The: sub judice^decision- was taken:o r made;in abuse; of 10 power becauserwhereas, applicant:was;strikingly superior' to the.·interested1,parties asrfaras> seniority, qualifications; capabilities;and1 merit"weretxoncerned,. she:was;not pro­ moted'and the-interested:parties-were,promoted'instead".
(3)The subjudice decision,was.taken in.contravention of the 15" principles,o fgood,administration,and/or.the principles of administrative law because the.respondent acted,under a. misconception.regarding,,the.1actual',merit,, qualifications;. capabilities; and seniority o f the. applicant",which were wrongly assessed, or not assessed1,at;all'or not assessed 20 adequately:.
(4)The;sub judice.· decision? was taken1 unlawfully andv un­ justifiably Because:th>respondenfctook'.ihto'consideration factors-and facts^foreign to'what'is-prescribed' by the.law and;.the;regulations*for-~the'promotion:of candidates'and' 25 especially of applicant.
(5)The.subjudice. decision.constitutes.a. manifest.contraven­ tion.of the.rules of good..administration,in:as much as it. was>given:retrospective,effect, froml.1.81" whenia-previous. decision:of the-respondent,, with the subject matter"was: 30 annulled-by the Supreme Court,in:recourse.No.. 148/
  1. and^such judgment has created.a-rcs>judicata, estopping. the-respondent.from.taking-the subjudice decision Basedom thersame,, previous facts. The legal points.on'which the applicant relies are-more.or-less thesame-Jegal arguments,andxomplaints.as to.why the;rest of the; applicants-- have· not been promoted..
  2. 35" 3 C.L.R. Kontementotou v. Republic Hadjianastassiou J. The first and main question which arises before the Court is whether there was a compliance by the administration with the judgment ofthe Court dated 12.5.
  3. The relevantextract ofthe said judgment reads as follows:5 10 "For the reason given in the saidjudgment (Angelidou and othersv.TheRepublic,
(1982)3C.L.R. p. 520)and especially in view of the passage in the minutes of the respondent commission dated December 9, 1981 (exhibit 2 in the present cases) regarding the manner in which members of the commission resorted to their own personal knowledge about the candidates before them, I have to annul all the promotions which are challenged by the present recourse." The extract of the judgment delivered in Angelidou case (supra) in which reference is made reads as follows:- 15 20 25 30 35 "It can be clearly derived from the contents as a whole of theaforesaid minutes of December 9,1981,that the personal knowledge of members of the Commission about the candidates was one of the criteria which were taken into account in the course of the exercise of their discretionary powers in connection with the sub judice decisions of the Commission. It appears to be a well established principle of administrative law which in other countries such as Greece has been eventually incorporated, too, into relevant legislation (see for example Article 101 of the Public Officers Code in Greece) that personal knowledge or information possessed by members of a collective organ, such as the Respondent Commission, about a candidate, constitutes material which can in the absence of any express statutory provision to the contrary, be lawfully taken into account for the purpose of reaching a decision about such candidate provided that if such knowledge or information isnot taken into account in order merely to strengthen the view formed on the basis of other material before the said organ about the candidate concerned, but as an independent element which is not in accord with the said other material. It should be recorded in detail so as to render feasible judicial control in this connection." And at p. 529: 63 Hadjianastassiou J. Kontemeniotou 1. Republic
(1984)"In the light of all theforegoing Ihave, as already indicated reached the conclusion that the effect of the aforesaid minutes of December 9, 1981 on the outcome of all these recourses as regards all the promotions and acting pro­ motions which are challenged by them is that their afore- 5 quoted contents vitiate completely in a decisive manner, the administrative process leading upto the said promotions and acting promotions, in the sense that personal know­ ledge of members of the commission was relied on in selecting the candidates to be promoted permanently or in 10 an acting capacity in a mode incompatible with the afore­ said relevant principle of Administrative Law, and also in a way which is inconsistent with the proper functioning of a collective organ such as the respondent commission." The decision of the committee dated 22.6.82 which consists the compliance with the judgment of the Court and the sub judice decision states amongst others the following: 15 "The committee re-examines the filling of the said posts under thelegal status which was in existence on the30.12.80 and on the basis of theelements which existed on that date 20 as well as with the relevant enrolment of the Supreme Court which the Committee studied exhaustively." The Educational Service Committee after studying the per­ sonal files and confidential reports of all the candidates and having in mind (
  1. a)the provisions of the law and the schemes of 25 service; (
  2. b)the recommendations of the Head of Department which were submitted on the 20.11.80 and (
  3. c)the impression formed by the Committeeduring thepersonal interview with the candidates, finds that on the basis of merit, qualifications and seniority, the recommendation of the Head of Department the 30 service reports and the impression formed by the Committeein the course of the personal interviews, the following Assistant Headmasters are the most suitable for promotion for reasons which are stated for each one individually. The original Greek text has as follows:" Η Ετπτροττή επανεξετάζει το θέμα της πληρώσεως των εν λόγω θέσεων υπό το νομικό καθεστώς που ίσχυε στις 30.12.1980 και με βάοητα στοιχεία που υπήρχαν κατά την ημερομηνίαν αυτή και ενόψει της σχετικής αποφάσεωςτου 64 35 3 C.L.R. Kontemeniotou v. Republic Hadjianastassiou J. Ανωτάτου Δικαστηρίου την οποία εμελέτησε διεξοδικά 5 10 Η Επιτροπή αφού εμελέτηοε τους προσωπικούς και εμπι­ στευτικούς φακέλλους όλων των υποψηφίων και έχοντας υπόψη (α) τις διατάξεις του Νόμου και των Σχεδίων Υπηρεσίας (β) τις συστάσεις του οικείου τμηματάρχη που είχαν υποβληθεί στις 20.11.1980 (σημ. 12) στο φάκελλο 365/68
(2)τ ν (γ) Ά εντύπωση την οποίαν εσχημάτισε κατά τις προσω­ πικές συνεντεύξεις με πους ενδιαφερομένους, ευρίσκει ότι οι ακόλουθοι Βοηθοί Διευθυντές με βάση την αξία, τα προσόντα και την αρχαιότηια, τις συστάσεις του οικείου Τμηματάρχη, τις υπηρεσιακές εκθέσεις και την εντύπωση της Επιτροπής κατά τις συνεντεύξεις είναι οι καταλληλότεροι για π ρ ο α γ ω γ ή γ ι α τους λόγους που ανα­ φέρονται για τον καθένα ξεχωριστά". 15 ("The Committee re-examines the subject of the filling of the said ports under the legal status in force on 30.12.80 and on the basis of the particulars existing on that date and in view of the relative decision of the Supreme Court which it studied in detail 20 The committee after having studied the personal and confidential files of all the candidates and having in mind (a) the provisions of the law and the Schemes of Service (b) the recommendations of the Head of Department which had been submitted on 20.11.80 (note 12) in file 365/68
(2)(c) the impression formed at the personal interviews of the candidates, finds that the following Assistant Headmasters on the basis of merit, qualifications and seniority, the re­ commendations of the Head of Department the service reports and the impression formed at the interviews are the most suitable for promotion for the reasons stated for each one separately.") 25 30 35 The names of the interested parties are mentioned below with the comments of the committee and the opinion derived from the personal interview held in January, 1980 and in November, 1980, i.e. more than two years before the taking of the new decision. Regarding the way by which these interviews were held and were evaluated by the Committee, we have the explanation which 65 Hadjianastassiou J. Kontemeniotou v. Republic
(1984)the Committee itself gives in its minutes dated 9.5.81 which is attached on the address of Mr. E. Odysseos as exhibit C5. The Committee states: "As regards thematterof theimpression which the members of the committee have formed during the interviews in respect of each one of the candidates, the committee con­ firms that such opinion or impression, which is formed not only during the interview but is also the product of the personal knowledge of each member from his long service in the public educational service as an educationalist (and this concerns the Chairman and 3 of the members) cannot be recorded in terms of numbers nor has it been recorded till now. The evaluation of this criterion is clearly subjecti­ ve and is expressed by the vote of each member." It is reminded that the second decision of the Committee is based also on the same interview. 5 10 15 The opinion of the Courtas regards this type of procedure has already been expressed by the President of the Supreme Court in the case of Angelidou and others v. The Republic,
(1982)3 C.L.R. p. 520 and has been adopted in the judgment dated 20 11.5.82 by which the first promotions were declared null and void. From Angelidoucase (supra) again I quote these observations made by TriantafyHides, Ρ:"In my opinion, the performance of a candidate when he 25 is being interviewed is anindependentcriterion which is not to be coloured by what is already known in advance about him by those interviewing him. Had it been otherwise it would have been to a large extent unnecessary to interview candidates about whom the majority of the members of the 30 Commission possessed knowledge of their own due to past experiences of them." The reaction of the respondents after the aforementioned judgment was delivered appears in their new decision after the re-examination of the case. The respondents construed the decision of the Court and the meaning of their compliance of it as a case of simple lack of reasoning and therefore basing themselves on the same situation all they did was merely to give 66 35 3 C.L.R. Kontemeniotou >.'Republic Hadjianastassiou J- a few reasons tojustify theirdecision to re-promotetheinterested •parties. But thejudgment-of the Court by which the promotions were declared null and void has a deeper and more substantial 5 meaning. It-does not-only deal with the lack of-reasoning but also with the way by which the members of the committee formed their views and made their(evaluation, which according to the-judgment was done in-breach ofthe law and the-principles of. Administrative Law. That is to say the reasons Tor-which 10 the first decision was annulled were very substantial-and ,the judicial pronouncementjdid not onlyTest-on the-absence Of the requisite formalities. Therefore, jthe.addition-of .some treasons at some later stage, regarding the-interested-parties only,-is not enough sto reinstate the legality .and the mew -decision :suffers 15 with the same illegality as the-one which was declared .null and void. And"in reality, it.amounts with .breach of.the principle of res judicata,^since it has not taken into consideration the find­ ings of the Supreme Court on the matter of their personal interview, instead of being led by them. 20 On this matter Pikis J.had this so say in his very recent judg­ ment in Tornarisv. The Republic,-(notyet reported)*""_ -Ifthe respondents disputed ithis finding, Ahe only course open to them was to challenge it -by way of appeal. Certainly they 'had no power todisregard it on a re-evaluation of the self same material. 25 By so doing they acted in breach of .their-duties under Article 146.5. They deviated from the course of 'legality. As we stressed in Pieris v. Republic, '
(1983)3 C.l.R. ,ρ. Ί054 res ju­ dicata is an important doctrine of public policy that aims to inject certainty in the legal process and make fruitful the en30 joyment of the rights of citizens." The reasoning of the decision 35 The reasoning of the administrative :acts has repeatedly brought ibefore the Supreme Court which in<agreat number of cases has stressed.thenecessity.of dueTeasoning as a.precondition of the judicial control. In the case of 'Etti Chr. Korai and Another v. The C.B.C.
(1973)3-C.L.R. p. 546, this Court had the.opportunity to note at page 555: Now reported in
(1983)3 C.L.R. 1292. 67 Hadjianastassiou J. Kontemeniotou v. Republic
(1984)'The whole object of the rule requiring reasons to be given for administrative decisions is to enable the person concerned as well as this Court on review to ascertain in each case whether the decision is well founded in fact and in law. The reasons therefore must be stated clearly and 5 unambiguously must be expressed in the sense in which reasonable persons affected thereby would understand them and must be stated in terms fulfilling the object of the rule. The mere fact of course that some doubt however little, 10 so long as it is not merely fanciful is possible as to the meaning of the reason behind an administrative decision is sufficient to vitiate such decision". And in thd case of Kyprianou and Others v. The Republic,
(1975)3 C.L.R. p. 187, 1 had this to say:- 15 "That clarity in the minutes of proceedings of an administrative organ is of an utmost importance it has been stated time after time and I need only repeat that lack of clarity of such minutes and records of proceedings may deprive the decision reached of due reasoning as claimed by 20 counsel. Having gone into the decided cases it appears that mainly the requirement of keeping written records is primarily for purposes of good administration." See also the judgment of Pikis, J. in case of Nissiotou v. Republic,
(1983)3 C.L.R. 974 at pp. 986 - 987, 25 The Committee, on its second try, as appears in the minutes dated 22.6.82 after it referred to the elements which were taken into consideration, cited its evaluation for each one of the interested parties individually, and in addition for the candidates Kattirtjis and Theophilides, who had on their side the vote of 30 the President of the Committee instead of the interested parties Mouskos and Sofianos. For the applicants thereisnot any note, neither of the opinion of the Committee during their oral personal interview. This reasoning is not the proper reasoning that is required 35 by legislative provisions, it does not disclose the reason behind the decision of the Committee. In fact, it does not explain why 68 3 C.L.R. Kontemeniotou v. Republic Hadjianastassiou J. applicants, with higher grades than the interested parties were disregarded or why others with higher seniority or additional qualifications were not preferred. And the absence of any reference to the applicants, under the 5 circumstances, deprivss the possibility of any judicial control. The defective reasoning covers also the matter of applicant Theofilides for whom thecommittee hasmadea special reference. The fact that Theophilides who, as the Committee admit, is superior in merits and qualifications, was for the time abroad, 10 for a post-graduate course does not justify the decision of the Committee which is arbitrary and in breach of s.35
(2)of Law 10/69 as amended by Law 53/79, and which provides that the promotions of the educationalists are decided on the basis of their merits, qualifications and seniority. 15 In the result, the decision is declared null and void. The respondents are adjudged to pay the costs. Sub judice decision annulled. Respondents to pay costs of applicants. 69

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