(1986)1986 August 18 [A. Loizou, J.] IN THE MA1TER OF ARTICLE 146 OF THE CONSTITUTION NICOS LOFITIS AND ANOTHER, A pplkants, v. THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC SERVICE COMMISSION, Respondents. (Cases Nos. 13/85, 253J85). Public Officers—Promotions—Qualifications—Scheme of service requiring "Very good knowledge of Greek" and "Administrative and Organizing ability"—Due inquiry as to such qualifications—Meaning of "ability". Public Officers—Promotions—Confidential reports—The Ciicu· 5 lar ,of 1979—Regulation 4—Whether Reporting Officer. not having continuous supervision over the officer, whom he evaluates, should consult other officers, under whom such officer, also, serves—Reg. 9—Corrections in red ink—Failure to comply with such requirement—Not a !0 material irregularity. Administrative Law—General principles—Irregularity—Only a material one leads to the annulment of an administrative act. Each of the applicants in the above recourses challenges the validity of the promotion of the interested party to Jhe post of Senior Weather Forecaster in the Meteorological Service of the Ministry of Agriculture and Natural Resources as from 1.5.85. 15 The complaints of applicant in recourse 13/85 are that: (
- a)There was failure of due inquiry concerning the qualifications of the interested party as regards the require- 20 1318 3 C.L.R. 5 10 15 20 25 30 35 Lofitis and Another v. Republic ments of "Very good knowledge of Greek" (the interested party was a graduate of English School) and "'Administrative and Organising Ability", (
- b)The Confidential reports of the interested party were invalid because contrary to the circular of 1979 about confidential reports the reporting officer rated him on her own without having continuous and immediate supervision on him during the whole of his yearly service, (
- c)some of the ratings of the confidential report on the applicant for 1979 were changed by the Countersigning Officer without this being recorded in red ink and without special reasoning being given contrary to the said circular and, as regards the report of 1983, the Countersigning Officer persuaded the Reporting Officer to change his report. Some of the complaints of the applicant in recourse 253/85 were directed against the applicant in recourse 13/85. The complaint directed agaist the promotion of the interested' party was that the conclusion of the respondent Commission that the interested party had the best confidential reports from all the applicants was erroneous. In support of this complaint counsel for the applicant referred to the fact that the Reporting Officer for the applicant was always consulting other officers under whom he was also working, whereas the Reporting Officer for the interested party did not consult such other officers. Held, dismissing the recourse: f!) As regards the complaint about lack of due inquiry concerning the qualification of "very good knowledge" of Greek, applicant, in recourse 13/85 ignored, apart from the fact that the interested party is a Greek Cypriot, that the interested party had stated in his original application for appointment— and there is nothing to disprove the accuracy of this statement—to have had excellent knowledge of Greek and that he passed the General Certificate of Education in modern Greek at advanced level. The aggregate effect of the above establishes a "very good knowledge of Greek", As regards the complaint about lack of due inquiry as to the qualification of "Administrative and Organizing Ability" it should be stressed that the applicant does not 1319 Lofitis and Another v. Republic
(1986)claim to have had any different experience trom ιhe interested party, but he only bases his claim on the fact that he has a diploma in Political Science and Pu blic Administration from Athens University. -'Ability'' presupposes performance and practical expression of a 5 person's capabilities and not just a mere theoretical and academic knowledge of a matter. Moreover, there are in the relevant confidential reports of all candidates a num ber of rateable items, such as "Managerial/Supervising ability," "Ability of leadership," "Ability to solve pro- 10 blems" and "Co-operation/Relations" on which their abi lity and performance was evaluated that establish the qua lification of the candidates as regards the said requirement of the scheme of service.
(2)In the light of Regulation 4* of the Circular of 15 1979 abdut confidential reports, in so far as relevant and as no other relevant provision could be traced in the said circular, the second complaint of the applicant is not justified.
(3)There is no material irregularity regarding the reports to which the third complaint of the applicant re lates. Failure to comply with the requirement of Reg. 9 of the Circular to make corrections in red ink does not vitiate the report. As only an irregularity of a material nature leads to an annulment of an administrative act, the third complaint of applicant in recourse 13/85 also fails. 20 25
(4)There is no need to examine the complaints of the applicants in recourse 253/85, in so far as they are directed against applicant in recourse 13/85. As regards his complaint against the promotion of the interested party it should be noted that it is similar in nature with the second complaint of applicant in recourse 13/85 and. therefore, it has to be dismissed for the same reasons. 30
(5)On the totality of the material before the respondent Commission the sub judice decisions were reasonably open to it. 35 Recourse dismissed. No order as to costs. * Quoted at o.1328. 1320 3 C.L.R. Lofltis and Another v. Republic Cases referred to: Georghiades v. The Republic
(1982)3 C.L.R. 16; Agrotis v. Electricity Authority
(1981)3 C.L.R. 503; Christofidesv. The Republic
(1985)3 C.L.R. 1127; Livadhas v. P.S.C.
(1985)3 C.L.R.
- 5 Recourses. Recourses against the decision of the respondents to promote the interested party to the post of Senior Weather Forecaster in the Meteorological Service of the Ministry of Agriculture and Natural Resources in preference and 10 instead of the applicant. A. S. Angelides, for applicant in Recourse No. 13/
- P. Petrakis, for applicant in Recourse No. 235/
- A. Papasavvas, Senior Counsel of the Republic, for the respondents. 15 Cur. adv. vult. A. Loizou J. read the following judgment. The two applicants, with their respective recourses challenge the validity of the decision of the respondent Commission of which Ioannis Andreou, (hereinafter to be referred to as 20 the interested party) was promoted to the post of Senior Weather Forecaster in the Meteorological Service of the Ministry of Agriculture and Natural Resources as from the 1st January, 1985, instead of either of them. Hence the direction of the Court that they be tried together as 25 presenting common questions of law and fact. In accordance with the scheme of service the post in question is a promotion post and so the respondent Commission, on the basis of the Regulatory Orders that govern the establishment, competence and the function of De30 partmental Boards in accordance with s. 36 of the Public Service Law, sent all relevant material to the Chairman of the Board. On the 1st November, 1984 the Chairman of the said Board transmitted their report (Appendix 4) to the res1321 A. Loizou J. Lofitis and Another v. Republic
(1986)pondent Commission recommending therein four of the five candidates, among whom were included the two ap plicants and the interested party. On the 14th December, 1984, the respondent Com mission took the sub judice decision. The relevant minutes (Appendix 6) read as follows: Present at the meeting, was also the Head of the Mete orological Service Mr. Kleanthis Philaniotis. He mentioned the following·: ID The general performance of the cand'dates for 1984 until to-day is about the same with that of 1983 with very slight re-adjustments. Hadji Jovanni Michael continues to lack behind in comparison to the rest in a general manner. Among the 15 four candidates they are in a position of their own, An dreou Ioannis and Lofitis Nicos. Between the two candi dates Andreou is slightly superior in merit from Lofit-s, whereas Lofitis is superior in qualifications. From the point of view of seniority Andreou is ahead by one year in the post of Weather Forecaster, as regards the whole service Lofitis is ahead. These two can be con sidered as of equal merit (ισότιμοι και ισάξιοι). Lofitis has special training in Public Law which must be taken into consideration. At this point the Head of the withdrew from the meeting. Meteorological 20 25 Service Thereafter the Commission was engaged with the evalua tion and comparison of the candidates. The Commission examined the material factors from the file for the filling of the post as well as from the Per sonal Files and the confidential reports of the candidates and took also into consideration the conclusion of the De partmental Board and the assessment and recommendations of the Head of the Meteorological Service. 1322 30 35 3 C.t.R. Lofitis and Another v. Republic A. Loirou J. The Commission took into consideration the Confidential Reports en the candidates and noted that on the totality of the confidential reports since 1979 when the newform of confidential reports was adopted, Andreou is 5 presented as better. Indicalivcly it is mentioned hereinafter, the rating of all candidates in the confidential reports of the last three years: HadjiJovannis Michael 1981 "V.G." (3-9-0) 1982 "V.G." (3-9-0) 10 1983 "V.G." (3-8-1) Josephides Elias 1981 "V.G." (3-9-0) 1982 "V.G." (5-7-0) 1983 "V.G." (6-6-0) Maryiannis Georghios 15 1981 "V.G." (2-10-0) 1982 "V.G." (3-9-0) 1983 "V.G.'" (6-6-0) Andreou Ioannis 1981 "V.G." (2-10-0) 1982 "V.G." (4-8-0) 1983 "E." 2U Lofitis Nicos (8-4-0) 1981 "V.G." (1-11-0) 1982 "V.G." (4-8-0) 1983 "V.G." (6-6-0) As regards seniority, the Commission noted that HadjiJovanni, Josephides, Maryiannis and Andreou, were ap25 pointed to the post of Weather Forecaster, on the same date, that is, on the 1st February, 1978, whereas Lofitis was seconded to the same post en the 1st February, 1979. The seniority of the first four is ascertained on the basis of their age. 30 The Commission took into consideration the qualifications of the candidates and noted the fact that Lofitis has a University Diploma in Political Science and Public Administration of Athens University. 1323 A. Loizou J. Lofrtis and Another v. Republic
(1936)The Commission, taking into consideration all material factors that were before them, considered on the basis of the established criteria in their totality (their qualifications, seniority) that Ioannis Andreou is superior to all candidates and decided to promote him as the most suitable to the 5 permanent (Dev. Budget) post of Senior Weather Forecaster in the Meteorological Service as from the 1st January, 1985." With the exception of Nicos Lofitis, applicant in recourse No. 13/85, all the other four candidates were fully 10 qualified Weather Forecasters before they joined the service, first on contract, on 1.2.76 and, then, by appointment on 1.2.78. Until, then, they were working as Weather Forecasters in the British Royal Air Force, at Nicosia Airport and since the Turkish Invasion of Cyprus in 1974, 15 at Akrotiri. To qualify as Weather Forecasters they had to possess, (
- a)The Certificate of the Initial Training Course of the British Meteorological office and (
- b)the necessary experience and training. All the candidates acquired their academic qualification in England. 20 Applicant Lofitis was working with the Cyprus Meteorological Office which at the time did not have a comprehensive Weather Forecasting service of its own. It suffices to say that until 1974 Weather Forecasting Services to the Civil Aviation of the Republic were provided by 25 R.A.F. who had a branch office at Nicosia airport. The applicant and the other candidates, Lofitis excepted, formed the team which provided these services. It was claimed by applicant HadjiJovannis that for this reason, alone, if nothing else, Lofitis could not acquire 30 the relevant practical experience necessary for a Weather Forecaster even though he possessed the certificate of the Initial Training Course. At about the end of 1975 and beginning of 1976 the International Airport of Larnaca was completed and the need for a Weather Forecasting Service for the Civil Aviation of Cyprus became obvious. The Republic, in consultation, with the R.A.F. Authorities arranged for the recruitment of applicant HadjiJovanni and the other three candi1324 35 3 C.L.R. 5 "i 15 20 25 30 35 Lofitis and Another v. Republic A. Loizou J. dates as Weather Forecasters, for the Civil Aviation at Larnaca Airport. Applicant Lofitis was not a Weather Forecaster, 'hen. and began his training as Forecaster as alleged b\ applicant HadjiJovannis much later, under his supervision and that of the other three candidates. In support of this contention counsel for the applicant referred to n copy of π letter dated 10.3.77 from the Director of the Cyprus Meteorological Office attached to his written address as speak ng for itself. He was finally appointed a Weather Forecaster on 1.2.79. Applicant. HadjiJovannis. was appointed in the R.A.F. as a Meteorological Assistant in 1957 and in 1969 he be came a Weather Forecaster after obtaining the Certificate of Initial Training Course of the Meteorological Office of the United Kingdom, the interested party, was appointed to the R.A.F. as a Meteorological Assistant in 1963-64 and he hecame η Weather Forecaster in 1970-71 after acquir ing the Certific.ite in Initial Training. Thereafter like applicant HadjiJovann's he was appointed as Weather Forecaster as from 1.2.78. In 1979 applicant HadiiJovann^ won π scholarship from the British Council and ho obtained 'he Diploma in Advanced Forecasting Course. A complete picture of the qualifications and careers of all candidates is set. in tabulated form in Appendix " V . and Τ need not repeat them here. Suffice it to say that all candidates were found both h> the Departmental Board and by the respondent Commission to possess a'l the lequired qualifications under the relevant scheme. The first argument advanced on behalf of applicant Lo fitis was 'hat the respondent Commission failed to carry out a proper inquiry as to whether the interested party possessed the required qualifications namely as to whether he had "Very good knowledge of Greek" and "Admini strative and organizing ability." It was urged that as at the earlier stages of his career this matter was not relevant as there were no such require ments in the Scheme of Service for the lower post the 1325 A. Loizou J. Lofitis and Another v. Republic (1986} matter had to be inquired into at this stage of promotion. In this respect counsel argued thai the interested parly appeared to have attended only the English School hence the qualification of "Very good knowledge of Greek'* should have been inquired into by the respondent Com5 mission. He ignored, however, that apart from the obvious thing that the interested party is a Greek Cypriot he had in his original application for appointment, stated, and there is nothing to disprove its accuracy, to have had ex cellent knowledge of Greek to read, write and speak and 10 furthermore that in the list of his qualifications he appears to have passed the General Certificate of Education in Modern Greek at Advanced Level. The aggregate effect of this is undoubtedly established a "Very good knowledge of Greek" as required by the Scheme of Service. 15 As regards the question of the qualification of "Admini strative and organizing ability" counsel for the applicant based his argument on the fact that at a meeting of the Head of the Meteorological Service and Meteorological Officer "A" Miss E'iana Eliadou, Officer in charge at 20 Larnaca Airport and the Branch Committee of the Staff, the applicant raised the question of including in the new Scheme of Service which was being prepared, a qualifica tion regarding "Administrative work" and that at thai meeting the Head of the Meteorological Service Mr. Phila- 25 niotis is recorded to have disagreed because, as he said; this does not apply, such qualification applying only ίο Administrative Staff (See Appendix "D"). This does not, in my view, carry the case any further as both the De partmental Board and the respondent Commission examined 30 the question of qualifications—they say so in the relevant minutes—and found all the candidates to possess same and the applicant does not claim to have had any different ex perience relating to administrative and organizing ability but he only bases his claim to the fact that he has a 35 Diploma in Political Science and Public Administration from Athens University. In my view, however, this does not prove him to possess anything beyond the "Administrative and Organizing Abi lity" which the other candidates were found to possess as 40 1326 3 C.L.R. Lofitis and Another v. Republic A. Loizou J. ability presupposes performance and practical expression of a person's capabilities and not just mere theoretical and academic knowledge of a matter which, if not possessed does not preclude a person from possessing such ability. 5 But apart from this an examination of the confidential reports of all candidates shows that there are a number of rateable items on which their ability and performance was evaluated that establish the qualification of the candidates regarding Administrative and Organizing AbUity. Leaving " ' aside all other rateable items, item 10 calls for assessment on "Managerial/supervising ability" which is explained therein as being "The ability to manage and to supervise staff, to co-ordinate and organize the work and utilise beneficially and wi'h good results the manpower at his 15 disposal. A'so rateable item 11 which is for "Ability of leadership" and which is explained to be therein as "The ability to inspire confidence, lead and promote harmonious relations and the encouragement by one's own example of increased productivity." These rateable items together with 20 such other rateab'e items as item 7 for "Co-operation/Relat'Ons" and rateable item 9 "Ability to solve problems" compose the qualification of Administrative and Organizing Ability. All this material was before the respondent Commission 25 as well as the Departmental Board and this ground of law, which has unnecessarily been raised in this case, fails. The next ground relied upon on behalf of this applicant is the question of the validity of the confidential reports. It was claimed that once they are found to be defective. 30 then, the ascertainment of their invalidity brings the invalidity of all subsequent acts for the issue of which the acts found to be illegal constitutes a legal prerequisite (See Georghiades v. The Republic
(1982)3 C.L.R. p. 16 at p. 28 where reference >s made also to Agrotis v. Electricity 35 Authority of Cyprus
(1981)3 C.L.R. p. 503 at 513. The alleged irregularity in fhe confidential reports on the interested party is claimed to stem from the fact that the Reporting Officer Eleni Eliadou, Officer in charge at Larnaca Airport, rated him on her own without having 40 continuous and immediate supervision on him during the 1327 A. Loizou J. Lofitis and Another v. Republic
(1986)whole of his yearly service and without consulting other Officers under whom he was working for the rest of the year. More concretely she was supervising him during shifts and she had immediate supervision on him to an extent of 26 -36 per cent of his whole service and so she 5 acted contrary to the Circular about Confidential Reports of 1979 (Appendix E). What the relevant regulation 4 in so far as having bearing in this case provides is the following: any «
- Οι ΑΕιολογούντες και οι Προσυηογοάφοντες Λει- 10 τουργοί εις έκσστον Υπουργείον, Ανεξάρτητον Γραφείον ή Υπηρεσίαν, ορίζονται υπό του οικείου Προϊ σταμένου, εις την Υπηρεσίαν του οποίου υπηοέτησαν οι αξιολογούμενοι υπάλληλοι λαμβανομένων υπ' όψιν των ακολούθων παραγόντων:15 (α) Ο ΑΕιολογών Λειτουργός δέον απαραιτήτως να είναι λειτουργός όστις, λόγω των καθηκόντων αυ τού. έχει απ' ευθείας γνώσιν της εργασίας του αξιολογουμένου υπαλλήλου και δύναται ως εκ τού του να έκφραση υπεύθυνον και έγκυρον γνώμην 20 επ* της εργασίας και των ικανοτήτων του υπαλ λήλου. κανονικώς δε ο ΑΕιολογών Λειτουργός δέον να είναι ο εποπτεύων τον υπάλλπλον λει τουργός». In English it reads:- 25 "
- The Reporting and Countersigning Officers in each Ministry, Independent Office or Service are designated by the respective Head of the Service in which the Officer to be reported upon served taking into consideration the following factors:(a) The Reporting Officer must necessarily be an Officer who on account of his duties has d'rect know ledge of the work of the assessed Officer and may on account of this, express responsible and valid opi nion on the work and the abilities of the Officer and 35 normally the Reporting Officer must be the one super vising the Officer". 1328 30 3 C.L.R. 5 Lofitis and Another v. Republic A. Loizou J. It is obvious from the aforesaid provision that none of the duties claimed by counsel for the applicant are cast on a Reporting Officer nor could I trace any other provision in the Circular referred to by him. The fact that other Reporting Officers have recorded in the relevant confidential reports that they consulted others, does not affect the validity of the confidential report on the interested party. The other Reporting Officers did so for reasons given by them in the reports themselves. 10 Moreover, the reports on the interested party lor the years 1981 and 1982 were made by the said Reporting Officer in co-operation, as stated therein, with Mr. Loizos Stephanou, a Meteorological Officer, Grade "A" for the year 1982 and for the year 1981 wh;ch was made by Mr. 15 Stephanou in consultation with Miss Eliadou. 20 What is significant is that the Head of the Meteorological Services countersigned these reports and in particular that of 1983 for which the complaint was made having found it to be objective and correct. And further confirmed that the performance of the interested party and the rest of the candidates during 1984 was more or less the same as rated in
- The second point about irregularity in the confidential reports is that in thai of 1979 there are instances 25 of reduction of assessment made on the applicant by the countersigning officer without this being recorded in red ink and without special reasoning being given contrary to the aforementioned Circular. Reference' in this respect was made to the judgment in Christofides v. The 30 Republic (as yet unreported delivered on 4.5.85).* 35 Connected with this is the point that for 1983 the countersigning officer is claimed to have persuaded the reporting officer to change his report that is, to reduce the ratings for the applicant again contrary to the provisions of the Circular. As regards the 1979 report the only initials appear in items 3 and 7 in the square for "Very Good" and the rating appears to be "Good". * Reported in (1985} 3 C.L.R.
- 1329 A. Loizou J. Lofitis and Another v. Republic
(1986)In the 1983 report there appears to have been a reduction from "Excellent" to "Very good" in rateable item 5 which is for ability for "Written expression" but v.'hich does not, in any way, change the general average of "Very good." *-> In the 1979 report there is no comment whereas in the report for 1983 there is the following comment by the Reporting Officer:- "He performs at the greatest possible degree, he assumes fully his responsibilities and he is completely qualified to assume any work that is assigned to him. 10 He has great capabilities in manag'ng and supervising subordinate staff as well as in·solving problems that arise in the course of his work". This report was countersigned by the Head of the Department and certified to be objective and correct except for any corrections or observations made 15 and monographed by him. There is to my mind, no material irregularity whatsoever regarding these reports nor does the fact that any correction was made in blue and not in red ink vitiates the report. Failure to comply with the requirement of Re- 20 gulation 9 to make corrections in red ink does not vitiate in any way the report. I must, however, say that in any event it is not clear that there has been any change in the ratings of this applicant by the Countersigning Officer. In any event there has been no material irregularity and 25 on the authorities only an irregularity of a material nature could affect the validity of an administrative act (See Vias Livadas v. Public Service Commission
(1985)3 C.L.R. 506. This ground, therefore, also fails. It has been submitted on behalf of applicant HadjiJovanni that the respondent Commission was wrong in concluding that the interested party had the best confidential reports from all the applicants. It was claimed that this may appear so on the face of them but had the Com- 35 mission made a proper inquiry it would have seen that this was not so and that there existed a different picture. Counsel for this applicant referred in this respect to the work of the Forecasters done in shifts and the fact that 1330 30 3 C.L.R. 5 Lofitis and Another v. Republic A. Loizou J. the Reporting Officer for this applicant was always consulting the o'het Weather Forecasting Officers with whom the applicant was working whireas for the interested parly the Reporting Officer concerned did so without consultation with any other officer under whom like the applicant he worked during the shifts. The answer to this argument is to be found on what was said in relation to a somehow similar argument advanced on behalf of applicant Lofitis and there is nothing to be 10 added to that. I need not deal with the further arguments advanced on behalf of this applicant as they are really directed oa the unsuccessful candidate applicant Lofitis and not as against the selection of the respondent Commission. 15 20 25 Having given the matter my best consideration I have come to the conclusion that on the totality of the material before the respondent Commission the sub judice decision was reasonably open to it and it was reached in accordance with the general principles of administrative law and there has been neither misconception of fact or law nor any failure on its part to carry out the proper and due enquiry required >n the circumstances. For all the above reasons these recourses are dismissed and the sub judice decision affirmed but in the circumstances there will he no order as to costs. Recourses dismissed. No order as to costs. 1331