clr/1986/1986_3_2493.pdf

(1983)3 C L R *<• Reoublic ν Hans

(1985)3 C L R 106 2W 995 H a m v. Republic

(1986)It must be noted that in compliance with the annulling decision of the Supreme Court the Commission in re­ examining the matter treated the applicant and the inte­ rested party as equal in qualifications and that it ignored those confidential reports on the applicant, which, in accordance with such decision were tainted with bias. 5 The Commission concluded that the interested party is better in merit than the applicant and based such conclu­ sion on comparison of the relevant confidential reports other than those, which were tainted with bias as afore- 1β said. The Commission further concluded that such su­ periority in merit of the interested party outweighs ap­ plicants seniority of 11 months over the interested part\. The Commission gave various reasons why it should not follow the recommendations of the Head of the De- 15 partment in favour of the applicant.* As a result the Commission selected the interested patty for secondment to the temporary post of Agricultural Of­ ficer Second Grade retrospectively as from 15.6.78. The Commission, then, in accordance with section 44

(1)(a) of 20 the Public Service Law and the General Orders of the Council of Ministers seconded the interested party re­ trospectively as from the date of the revoked secondment, i.e. 15.3.82, to the combined post of Agricultural Officer First Grade and, finally, after examining all relevant ma- 25 terial and the confidential reports of the candidates for the filling of the permanent post of Agricultural Officer First Grade promoted the interested party to the post, which became vacant by reason of the said revocation, re­ trospectively as from 15.11.82, i.e. the date of the re- 30 voked promotion, on the ground that the interested party was superior to all other candidates. Hence the present recourse said three decisions. directed against the afore­ * It must be noted that one of the reasons fo." annulling the first decision was the lack of special reasoninq for not following such recommendations. 2494 3 C.L Γι. Haris v. Republic Held, dhmis^ng the recourse:

(1)The respondent ga\j special reasons" why it disregarded the recommendations of the Head of the Department.

(2)In the circumstance:,, the selection of the interested party was reasonably open to the respondent Commission. it is duly reasoned and there is no defect, which would justify annulment. 5 Recourse dismissed. Vf? order as to costs. 10 15 Recourse Recourse against the decision of the respondents to se­ cond the interested party to the temporary post of Agri­ cultural Officer 2nd Grade as from 15.6.

1. to the tem­ porary noM of Agricultural Officer 1st Grade as from 15.3.1982 and to promote the interested party to the per­ manent post of Agncu'tural Officer 1st Grade as from 15.
2. !982 in preference and instead of the applicant. •(. Haviaras, for the applicant. R. Gavrielides. Senior Counsel the respondents. 20 of the Republic, for Cut 25 30 tldv 1 'lit Λ. Loizoi J. read the follow ins judgment. B\ the picsent recourse the applicant seeks a declaration of the Court f that " he secondment of the interested part\ Andreas Μ lacovides to the temporary post of Agricultural Officer Second Grade as from 15th June.
3. h's secondment to the temporary post of Agricultural Officer First Grade as from 15th March.
4. and his promotion to the per­ manent post of Agricultural Officer First Grade as from 15th November
5. instead of the applicant is contrary to law mi11 and vo'd and with no legal effect." The Sup'vme Court by its judgment of the 16th Septeirs Such reasons .apnear in the relevant minuted o i the Commis.'iO" which are ciuoted at pr> 2502-2503 Dost 2495 A. Loizou J. Haris v. Republic

(1986)ber 1983., in recourse No. 74/82, reported as Georghios Haris v. The Republic

(1983)3 C.L.R. 995, annulled the decision of the respondent Commission, by which Andreas Iacovides, interested party in that recourse also, was seconded as from 15th June, 1978, to the Temporary (Development Budget) post of Agricultural Officer Second Grade in the department of Agriculture. The respondent Commission at its meeting of the 23rd September 1983, in discharging its obligations to reinstate things to the situation that existed before its aforesaid annulled decision informed about it the said interested party. Moreover, acting in accordance with an advice of the legal services of the Republic given in a similar case decided that the annulment of the aforesaid secondment affected his subsequent secondment to the temporary post of Agricultural Officer First Grade as from 15th March, 1982, as well as his promotion to the permanent post of Agricultural Officer First Grade as from 15th November, 1982, and decided to revoke its respective decisions. Consequently the interested party reverted to the post he held before the judgment, that is the post of Assistant Agricultural Officer, which was renamed on 1st January 1981 to Agricultural Officer and informed the interested party accordingly. In the meantime the Attorney-General of the Republic filed an appeal against the aforesaid first instance judgment of this Court which the Full Bench dismissed, however, on the 24th January 1985. This judgment is reported as the Republic v. Georghios Haris

(1985)3 C.L.R. p. 106. In response to a request of the respondent Commission, the office of the Attorney-General advised the respondent Commission by letter dated 25th February 1985, Appendix 2, that they should re-examine the matter on the basis of the facts which existed at the time of the annulled deci- 35 sion. Moreover it advised that at the re-examination in compliance to the annulling decision of the Supreme Court, the respondent Commission should: "(

1. a)consider that from the point of view of qualifica2496 15 25 30 3 C.L.R. Haris v. Republic A. Loizou J. tions the applicant and the interested party were equal (pp. 8 and 9 of the judgment); 5 10 15 20 (
2. b)ignore the confidential reports of the applicant for which the Court decided that they were the product of bias against him; (
3. c)consider that the plain statement of the Head of the Department that the applicant 'on the totality of the criteria is better' than the interested parly constitutes a reasoned recommendation (p. 12 of the judgment), a fact which, however, does not prevent the Commission to invite the Head of the Department to give further and better par­ ticulars on his view as to which of the two of­ ficers is better since in the same judgment (p. 5) the Court clearly explains what constitute: 'recommendations' in accordance with Sectior 44

(3)of Law No. 33 of 1967." For the sake of convenience 1 shall quote herein the re levant passages referred to in the aforesaid advice as re ported in the Cyprus Law Reports giving the corresponding pages thereof. Republic v. Haris

(1985)3 C.L.R. p. 106: (a) Page 115: 25 30 35 "In Myrianthi Hji loannou v. The Republic, (1983 3 C.L.R. 1041, a Full Bench case, in delivering th» unanimous judgment of the Court, I said:'Possession of academic qualifications additona to those required by the scheme of service, whici are not specified in the scheme of service, as ai advantage, should not weigh greatly, in the mind ο the Commission who should decide in selecting th best candidate on the totality of the circumstance before them.' In this case, however, having regard to the quulifi cations of the respondent and the interested party, w are of the view that their qualifications are equal an 2497 A. Loiiou J. Haris v. Republic

(1986)the interested party was not superior." (b) Pages 117-118. 'Triantafyilides, P. ; in Christou v. The Republic

(1980)3 C.L.R.

1. nt p. 449, observed:"The lack of impartiality by public officer A against public officer Β must be established, with sufficient certainty, either by facts emerging from relevant administrative records or by safe inferences to be drawn from the existence of such facts.* 5 From the administrative files before us we safely infer, as the trial Judge did, that the reports of Agrotis for the years to which the Commission d'rectcd its m ; nd on 21.10.81 and on which they based the sub judice decision are tainted with bias. 10 The trial Judge said the following about 'hese ports:- re- 15 'As regards the confidential reports of the appli­ cant for the years 1975 and 1976, I shall confine myself in saying this much: they have created an unsatisfactory slate of affairs rendering their value next to nil: no administrative organ can depict there­ from with the required certainty the real picture of the merit of the candidate concerned. 20 As aga'nst this confused and unsatisfactory ma­ terial presented by the aforesaid confidential re- 25 ports the P.S.C. had before it the clear recommen­ dations of the Director; in the circumstances it was not open to it to disregard them as they had no other solid soil to step on; in view of the above f cannot subscribe, with respect to their reasoning.' 30 We share the view of the trial Judge. The reports for the years to which we have referred are nullifcd for the reasons we have endeavoured to explain and which emerge clearly from the file." Whilst here, useful reference may be made to what the 2498 35 3 C.L.R. Haris v. Republic A. Loizou J. respondent Commission stated in its minutes Appendix 3, about this point: 5 "At the comparison of the merit of the two candi­ dates the Commission did not take into consideration the confidential reports on Haris for the years 1974, 1975, 1976, which in accordance with the decision of the Supreme Court were the product of bias. 10 The Public Service Commission on the basis of the totality of the confidential reports of the candidates (without naturally taking into consideration the afore­ said reports on Haris), considered that Iacovides pre­ sents evident superiority as against Haris." Then it goes on to give a detailed analysis of their comparison as evidenced by the confidential reports 15 20 ( C ; Page
2. "In the present case the Comm'ssion had the op­ portunity of hearing the reasoned recommendations of the Head of the Department. They disregarded them without due reasoning and the trial Judge rightly .innulled the decision for the promotion'secondment in respect οϊ interested party Iacovides." Page
3. 25 30 J5 " 'Recommendations' in the context of this section has to be g'ven its popular meaning rather than taken as being used in any narrow legal or technical sense. It carries with it the duty on the Head of the Depart­ : ment to g ve a description of the merits of the candi­ dates and by comparing their respective merits and de­ merits to suggest who is more qualifed for the post. He has to make an assessment of the suitability of every candidate on a consideration of all factors re­ 1 levant to his merits, qualification ; and seniority, and then make a comparison of the candidates by re­ ference thereto—(Evangelou v. The Republic, (supra); Georghios Gavriel v. The Republic.

(1971)3 C.L.R. 186, at p. 199: Mxtules & Anotiur v. The Re­ public. (supra)). 2499 A. Loizou J. Haris v. Republic (Ί98Θ) The recommendations of a Director, when he gives reasons for such recommendations, are subject to ju­ dicial review by this Court. The Commission, certain­ ly, is not a rubber-stamp of the recommendations of the Director but it should not lightly disregard them 5 as if they decide not to act in accordance with such recommendations, they have to give specific reasons for so disregarding them and such reasons are sub­ ject to scrutiny by the administrative Court—(See, in­ ter alia, Protopapas v. The Republic,

(1981)3 C.L.R. 10 456)." The respondent Commission at its meeting of the 12th March, 1985, (Appendix 5) in the light of the judgment of the Supreme Court—the relevant passages from which have already been quoted above—and the aforementioned 15 legal advice, proceeded to re-examine the matter. For that purpose it summoned before it Mr. Avraam Louca, Di- · rector of the Department of Agriculture as from 1st Au­ gust 1976, and the Acting Director-General of the Mini­ stry of Agriculture and Natural Resources, as from 1st 20 February, 1985. The Commission having heard the views of Mr. Louca, examined all the substantial elements as at the material time and on the basis of the established criteria in their totality (merit, qual:fications, seniority) considered that the 25 interested party Andreas lacovides was superior at the ma­ terial time to a'l other candidates and decided to second him as the most suitable to the Temporary (Development Budget) post of Agricultural Officer Second Grade re­ trospectively from 15th June 1978, that is the same date 30 as from which his secondment which was annulled by the Supreme Court, had been made. After tfvs decision the respondent Commission re­ examined all the questions of his subsequent promotion by secondment to the combined post of First Grade and de- 35 :ided by virtue of the proviso to section 44

(1)(a) of the Public Service Laws and in accordance with the General Orders of the Council of Ministers, to promote him by neans of a secondment to the temporary post of Agrijulttire Officer. First Grade retrospectively from the 15th 40 2500 3 C.L.R. Haris v. Republic A. Loizou J. March, 1982, that is the same date as from which his promotion on secondment had been made and which was later revoked by the respondent Commission by its decision of the 23rd September

1. 5 Subsequent to the above the quest'on arose of the reexamination and the filling of a permanent post of Agricultural Officer. First Grade which had been f'lled together with six other posts at the meeting of the respondent Commission of the 4th November, 1982, which had be10 come vacant as a result of the decision of the respondent Commission, dated 23rd September
2. by virtue of which the promotion of the interested party to that post had been revoked. The respondent Commission examined all relevant material from the File for the Filling of the 15 post as well as the personal files and the confidential reports of the candidates and also took into consideration the ccnc!us:ons of the departmental Board and the views and recommendations that the Director of the Department of Agriculture had then expressed. 20' The Commission having taken into consideration uM the material elements before it considered on the basis of the established criteria in their totality (merit. qi>al:fication. seniority) that the interested party was superior to a'l other candidates and decided to promote him as the most suitable 25 to the permanent (Development Budget") post of Agricultural Officers First Grade, in the department of Agriculture rctrospect:vc!y as from 15th November
3. that i·on the same date from which he had been promoted and which had been revoked by the aforementioned decision of 30 the respondent Commission. The aforementioned is taken from the relevant minuU". of the respondent Commiss'on of the 12th March. 19S
4. Appendix
5. It has already been seen 'hat the Full Bench of this 35 Court concluded that both the applicant and the interested party had the add'tional qualification and none was superior to the other in qualifications. In fact the respondent Commission in examining the matter did stress this fact in its minutes. 2501 A. Loizou J. Haris v. Republic

(1986)Also the respondent Commission in compliance with the judgment of the Court ignored completely the confidential reports wh;ch were found by it, to be tainted with bias. In its relevant minutes at p. 10 of Appendix

1. as clearly seen from the relevant passage quoted earlier, it explicitly states that it did not take into consideration the confidential reports on Haris for the years 1974, 1975,
2. 5 As regards the comparison then made on the basis of the rest of the confidential reports the minute reads as follows: 10 "The Public Service Commission on the basis of the totality of the confidential reports of the candidates (without naturally taking into consideration the aforesaid reports on Haris), considered that Iacovides presents evident superiority as against Haris. More 15 concretely since 1969 when these two officers were promoted to the post of Agricultural Officer, it is observed that with the exception of the first year when Haris was superior slightly, with a grading of 4-4-2 as against 2-5-3 of Iacovides, the remaining years la- 20 covides was continuously superior. In 1970 he had slight superiority 2-8-2, as against 1-7-
3. During the next three years,
4. 1972, 1973, the superiority of Iacovides as against Haris was evident. For the years
5. 1975, 1976, the confidential reports 25 for Haris are not taken into consideration and so no comparison is made. For
6. the two candidates had about the same confidential reports with Iacovides, however, slightly superior. More concretely his grading was 4-6-0, whereas that of Haris was 3-7-
7. 30 The Commission has now before it and the reports for 1978 which are of equal merit with slight superiority of Haris. More concretely in them Haris has a ""v* grading of 7-3-0 as against 6-4-0 of Iacovides. S:nce, however, the material time was May 1978, and they 35 cover the whole year they are taken only indicatively into consideration. The Commission further noted that Mr. Louca himself contributed to the preparation of the last confidential reports both for Haris and Iacovides, 2502 *0 3 c.L.n. 5 10 15 20 25 30 35 40 Haris υ. Reiublic A. Loizou J. The Commission has of course before it the state­ ment of Mr. Louca that Haris was a better off'cer than Iacovides. This view, hewever. of Mr. Louca was based, as it appears from what he himself said on the period as from 1st August 1976 when he as­ sumed duties for the first time at the Department of Agriculture when he was appointed Director, until the material time. Before that he was serving ^n an­ other section. It must on the other hand be noted that Mr. Louca himself, adopted as a countersigning of­ ficer the assessment of the reporting officer for Iaco­ vides for the year
8. which was in all respects va'id. in accordance with which Iacovides was 'excellent'' on n;ne out of ten items and "ver\ good' on the other. Of course it is not permissible to take into considera­ tion in accordance with the judgment of the Supreme Court the report on Haris for 'he same year and in­ deed it is not taken at a!' into consideration by the Commission. Also on the t'o!!ow:n2 year.
9. Mr. Louca. as vj countersigning officer adopted the assess­ ment of the reporting officer (different from that o\ the previous years) in accordance with which Iaowides was excellent' on four items of the grading and "very »ood" on six items. That same year
10. Mr. Louca acting as reporting and countersigning officer graded Haris as "excellent" on three items and 'verv good' on seven. Although the Commission in accordance with the judgment of the Court does not take into consideration the contidentia1 reports on Haris for the years
12. 197η and so no comparison whatsoever is possible for vhis period, vet it does not omit to note that Iacovides had during those years also, high confidential reports. a fact which confirms that he had sfeady hish peiformance in his service." The aforesaid passage speaks, for -tself ΆΙ\(\ there is very little to be added by me. except to highlight the statement : contained there n that the reference to the -reports for the interested party Iacovides for the years 1974 to 1976 \v;e, made as indicating his steady hieh performance. Further­ more in this extract one can find the cogent reasoning that ->MH A. Loizou J. Haris v. Republic

(1986)it had to give for disregarding the recommendation of the Head of the Department in add'tion of course to what is stated in other parts of its minutes. In a way satisfy'ng the principles laid down by a line of authorities. As regards the seniority of the applicant and the intere- 5 sted party, the respondent Commission notes that Haris is senior by eleven months, his seniority, however, emanating from the fact that he entered first in the service from the interested party and goes on to say that "on the other hand material is the fact that these two officers had parallel 10 evolution in their service; they were appo'nted together from month to month in the permanent post of Assistant Agricultural Officer as from 1st October 1966 and later to the permanent post as from 1st June 1969. On the basis of the above, the Commission considered that the seniority of Haris vis a vis Iacovides is not such as possibly to reverse the general picture of evaluation of the candidates as it emerges from their confidential reports." 15 In this passege there is the reasoning of the respondent Commiss:on for ignoring the applicant's seniority, relying in coming to that conclusion on the overall picture of the candidates regarding their merits as same emerges from the confidential reports. It is clear from the aforesaid that the sub judice decision was reasonably open to the respondent Commission and that it could on the material before it reach the conclusion it did. It is a duly reasoned decision and there is no defect which would have been a ground for its annulment. 20 25 For all the above reasons the recourse is dismissed but in the circumstances there will be no order as to costs. 30 Recourse dismissed. No order as to cost·;. 2504