(1987)1987June 11 [TRIANTAFYLUDES Ρ MALACHTOS SAW1DES, PIKIS. KOURR1S JJ ] THE REPUBLIC OFCYPRUS, THROUGH 1 THEMINISTER OFHEALTH, 2 THE PUBLIC SERVICE COMMISSION, Appellants, ν RENOSARGYRIDES, Respondent (Revtsional Junsdichon Appeal No 678) PublicOfficer—Promotions—Confidential reports—Circular491/79containing the regulationsfor thepreparation ofconfidentialreports—Reg 9—Breach of, by the countersigningofficer— Tantamounts toillegality Constitutional Law — Equality — Constitution, Art 28 — Circular 491/79 containing die regulationsgoverningpreparationof confidentialreportsfor publicofficers—Application ofsuchregulationsmadifferentmanner meach particularcaseconstitutesa violation of thepnnciple of equality—Breach of Reg 9 by countersigningofficer— Sub judice promotion annulled on this groundaswell 5 The promotion of the interested party in the recourse hied by the 10 respondent in this appeal to the post of Senior GovernmentAnalyst was annulledby aJudge of thisCourtonthegroundof infringement ofReg 9 ' of Circular 491/79, that is the circular containing the Regulations concerning preparation of confidentialreports Indeed, it is common ground that there was a difference of opinion 1 5 between the reporting and the countersigning officer concerning the evaluation of thetwo candidatesfor thesaid post inanumberof confidential reports In breach of the procedure set out in Reg 9, the countersigning officer proceeded tomake hisown assessments, some mordinaryandsome inred ink,without having previously discussed thematterwith thereporting 2 0 officer andwithoutgivingreasonsforhisown assessments intheappropnate column 'Quotedatρ 1096post 1092 3C.L.R. 5 Republicv. Argyridea Held*, dismissing the appeal
(1)Circular 491/79 replaced theGeneral Orders concerning preparation of confidential reports, which had been enacted ata time, when Cyprus wasa Bntish colony and had continued to remaininforce untilsoreplaced invirtueofsection86
(1)ofthePublicService Law33/67
(2)Perusal of the case law concerning breach of the regulations for the preparationofconfidential reportsshowsthat(heargumentinallcasesturned on thequestion whetherthe breach inquestionwasamaterial irregulanty or not 10 15 0) Theregulations mquestion weremadebytheCouncilofMinistersand though they donot constitute subsidiary legislation inthe strict sense, they havetobestnctlycompliedwith Deviationbythecountersigningofficer from theexpress provisionsofsuch regulations tantamount toanillegality
(4)Moreover, any application of the Regulations in a different manner in each particular case violates the pnnciple thata person is entitled toequal treatment,which issafeguarded byArt 28oftheConstitution Itfollowsthat thesubjudice decision mustbeannulledonthisground aswell Appeal dismissedNo orderas tocosts 20 Casesreferredto Georghiouν Republic
(1976)3CLR 74, Uvadasv TheRepublic
(1985)3CLR506. Themistocleousν TheRepublic
(1985)3CLR 2652 LotitisandAnother ν TheRepublic{1986)3C LR 1318, 25 Chnstofidesv TheRepublic(1985J3C LR 1127, Hjilosifv CVTA
(1986)3CLR 1353, Ahams ν CYTA
(1985)3 CLR 2695, Karpasitev ffepu6//c
(1986)3C LR 1617 *77iejudgment ofthe Court wasdelivered bySawides J Pihs J delivered a separate judgment, ruling, inagreement with thejudgment ofSawides, J, that breach ofReg9 constitutesanIllegalactionand.furthermore,entaibseparatetreatmentofamemberofaclass ofpublicofficerscontrarytoArt28oltheConstitutionsafeguardingequablybeforethelaw andtheadministration 1093 Republicv. Argyridea
(1987)Appeal. Appeal against thejudgment of aJudge of theSupreme Court of Cyprus (Demetriades, J.) given on the 25th October, 1986 (Revisional Jurisdiction Case No 342/83)* whereby the promotion of interested partyto the post of Senior Government Analystwasannulled. 5 N. Charalambous, Senior Counsel oftheRepublic withA. Vassiliades, forthe appellant. AS. Angelides, for the respondent. M.Papapetrou, fortheinterested party. Cur.adv. vuit. 10 TR1ANTAFYLLIDESP..ThemainjudgmentoftheCourtwillbe delivered byMr.Justice Sawides. SAWIDESJ.:ThisisanappealbytherespondentsinRecourse No. 342/83,against the judgment of a Judge of this Court in the exercise of the original jurisdiction of the Court whereby he 15 allowed the recourse oftheapplicantagainsttherespondents and annulled the promotion of the interested party to the post of Senior Government Analyst. The respondents filed the present appeal challenging the decision ofthe teamed trialJudge on thegroundsthat:20 (
- a)The trial Judge wrongly interpreted the regulations concerning the preparation of confidential reports. (b)The trialJudge wrongly concluded that the amendment by the countersigning officer of the confidential reports of the applicant and the interested party amounted to a material 25 irregularity. (
- c)The trial Judge wrongly concluded that the respondent Commission in reachingthe subjudice decision didnot take into consideration the fact that one of the persons mentioned as referee inthe application of theinterested party wasthe Director 30 ofthe Department. (
- d)The trial Judge wrongly found mat the fact that the . amendment of the annual confidential reports by the countersigning officer which were made by the Director who 'Reported in
(1986)3C.L.R. 1488. 1094 3C.L.R. Republicv.Argyride* SawldeeJ. happened tobe thereferee of theinterested party might have influenced thedecision ofthe respondentCommission. Counsel for the appellants and the interested party argued before us thatthedecisionofthePublicService Commission was 5 reasonably opentoitand thatanyirregularity which was disclosed as a result of a different assessment of the parties in the confidential reportsby thecountersigningofficer which was notin compliancewith theregulationsas containedinCircularNo.491/ 79was animmaterialirregularity andcouldnotaffect theoutcome 10 ofthe case. Counsel for therespondent, ontheother hand, advanced a two-legged argument in support ofthe decision ofthe trialCourt that thesubjudice promotion should be annulled. Thefirstlegwas thatthefailure bythecountersigning officer to 15 comply with the regulations concerning the preparation of confidential reportsand inparticularregulation 9,ascontained in Circular491/79taintstheactwithillegalityleading tothevitiation of thesub judice decision which was based on it. The second legofhis argumentwas thatifthe Courtfinds that 20 thecontraventionofRegulation9doesnotamounttoanillegality, it is inanyevent a material irregularity which should affect the outcomeofthesub judicedecision oftherespondents. Regulation9ofCircular491/79provides asfollows: 25 30 «Part V of type Β should befilledby the Countersigning Officer after careful considerationoftheassessments oneach item by the Reporting Officer. Ifthe Countersigning Officer disagrees ontheassessment onanyitem by theReporting officer, he discusses the matter with him and if the disagreement continuestoexist,hegiveshisown assessment inredinkandinitials same, giving thereasons forhisown assessment inthecolumnforremarks». Itiscommonground inthiscase thattherewas adifference of opinion between the reporting officer andthe countersigning officer intheevaluation of thetwocandidates ina numberof 35 confidential reports. The countersigning officer, instead of complying with theprocedure set outin regulation 9, proceeded to make hisown assessments some inordinary ink,and some in red, on certain items, without previously having discussed the 1095 S a w i d e s J. Republicv.Argyridee
(1987)matterwiththereportingofficer and withoutgivingreasonsforhis own assessments intheappropriate column. The provisions concerning annual confidential reports were previously contained in the General Orders which were in force during the Colonial rule when Cyprus was a British Colony and 5 continued to remain so inforce byvirtue of section 86
(1)of Law 33/67 tillMarch, 1979, when they were repealed by the Council ofMinisters,theorgantowhichthepowersVestedintheGovernor were transferred, and were substituted by the new regulations which were embodied in Circular 491/79 which was 10 communicated to all Government Departments by letter of the Director of the Department of Personnel of the Ministry of Finance. AstothevalidityoftheGeneralOrders,useful referencemaybe made to the case of Odysseas Georghiou v. Republic
(1976)3 15 C.L.R.74inwhichTriantafyllides, P.indeliveringthejudgmentof the FullBench, had thistosayatp.82:«Ithas been argued during the hearing of thisappeal that since the coming into operation of Law 33/67 the 'special confidential reports' have lost most of, if not all, their 20 significance, as no express provision exists in Law 33/67 about such reports.Wecannot acceptthisargument asbeing correct. Asitappears from the General Orders (AppendixA. II/2.5
(5)(b)) the 'special confidential reports' are indicativeof particularly meritoriousservicesand therelevantprovision in 25 the General Orders has been kept in force, as established practice, bymeans ofsection 86
(1)of Law33/67.» The effects of non-compliance with regulation 9 and a similar regulation of PublicAuthoritiescame upfor consideration before members of thisCourt inthe exercise of itsoriginaljurisdiction in 30 a numberofcasessince1979tomostofwhichreference hasbeen made by counsel on both sides in support of their respective arguments. In Livadas v. The Republic decided on 3rd April, 1982, and reported in
(1985)3C.L.R.506,Triantafyllides, P.indealingwith 35 the preparation of confidential reports for a particular year in relation to two officers who at the material time had been seconded toanother Department, concluded atp.510,that:«In the light of the legislative provisions I do not think mat 1096 3C.L.R. 5 Republicv. Argyrldes Sawides J. Mr.Constantinouwas excluded from making the confidential reports inrelationtothetwo interested parties for 1976. Even if, however,J hadfound thatthemakingofsuchreportsbyMr. Constantinou was anirregularity Iwould have held thatit was not of material nature vitiating the promotions of the interested parties. Useful reference, in this respect, may be made tothecase of Christou v. TheRepublic,
(1980)3 C.L.R. 437, 448.» In Themistocieous v. The Republic
(1985)3 C.L.R. 2652, A. 10 Loizou, J. in dealing with a conflict between the Reporting and Countersigning officer on the assessments on the applicant's confidential reports andthe failure of thecountersigning officer to discuss his difference of opinion with the reporting officer, held thatsuch irregularity isnotofa materialnatureanddoes notvitiate 15 theadministrative actor decision inwhich itoccurs. The same view was expressed by A. Loizou, J. in Lofitis and Another v. The Republic
(1986)3 C.L.R. 1318 in which he held that «failure to comply with Regulation 9 of the Circular to make corrections in red ink does not vitiate the report» and thatthere 20 w a s n o material irregularity concerning thereports. Theaspectofillegality was touchedinthecase of Christofidesv. The Republic
(1985)3 C.L.R. 1127 where it was held by Stylianides, J. atp. 1135,that:25 30 35 «In matters of promotion confidential reports are intermediate acts and the ascertainment of their invalidity brings the invalidity of all subsequent acts for the issue of which that act found to be illegal constitutes a legal prerequisite — (Savros Agrotis v. Electricity Authority of Cyprus,
(1981)3 C.L.R. 503, at p. 513, and the authorities referred to therein; Georghiades v. The Republic,
(1982)3 C.L.R. 16). The act of the countersigning officer was contrary to paragraph 9 of the Regulations governing confidential reports. (See Appendix 21). Countersigning officers have to conform strictly with the provisions of the regulations concerning confidential reports especially when any act of theirsmight affect adverseIυthe officer concerned. Theaforesaid, i.e. failure to conform with the provisions of paragraph 9of the Regulations andthelack ofdue reasoning, 1097 SawtduJ. Republicv.Aigyride·
(1987)invalidate the intended change in the confidential report for the applicant for 1980. The respondent Commission in the present case in assessing the merit of the applicant took into consideration that the applicant was 'Very Good' in 1980 whereas the interested parties were marked 'Excellent', and 5 thisappearsthatweighedagainsttheapplicantand influenced the Commission in taking the sub judice decision. The Commission in the circumstances laboured under a material misconception of fact, the effect of which is to nullify its decision» — (See Public Service Commission v. Myrianthi 10 Papaonissiforou,
(1984)3 C.L.R. 370). In Hjilosif v. CYTA
(1986)3 C.L.R. 1353, Stylianides, J., in considering a deviation from the provisions of the regulations of the respondent Authority concerning nomination of reporting officers and preparation ofreports,concluded thatsuch deviation · 15 amounted to a material irregularity affecting the validity of the service reports. Also that any decision taken on the basis of an invalid service report isin law defective. In Alvanis v. CYTA
(1985)3 C.L.R. 2695, Pikis, J. after he reached the conclusion that the confidential reports in that case 20 hadbeen preparedoutsidetheframework oftheRegulations,held thatthepreparation ofsuchreportswasanessentialformalitytobe complied withand asinthatcasemuch weighthadbeen attached tosuch reports, the decision had tobe annulled. Aperusal of all the above cases showsthatthe argument inall 25 cases turned on the question as to whether non compliance with the Regulations concerning confidential reports was a material irregularity or not and theyweredecided mainly on thatbasis. As already explained earlier in this judgment, the regulations concerning the preparation of confidential reports which have 30 been embodied in Circular 491/79 and which replaced the General Orders which were inforce priorto 1979 inthis respect, were made by the Council of Ministers in the exercise of the powers vested in itunder the Constitution and Law33/67. Such regulations are not subsidiary legislation in the strict sense but 35 have to be strictly complied with. The deviation by the countersigning officer from the express provisions of such regulationsistantamounttoanillegality.Moreover,thesubjudice decision should be annulled as violating Article 28 of the Constitution. Every public officer is entitled to expect that the 40 1098 3CUR. Republicv.Argyrtde· Sawide»J. procedure inthepreparation ofconfidential reportscontemplated bytheRegulationsapprovedbytheCouncilofMinistersshouldbe strictly adhered {o in all cases without any differentiation. Any application of the Regulations in a different manner in each 5 particular case violates the principle that a person is entitled to equal treatment which is safeguarded under Article 28 of the Constitution.Wehave,therefore, reached the conclusion thatthe subjudice decision should be annulled on thisground aswell. Intheresult,theappealisdismissedbutinthecircumstanceswe 10 make noorder for costs. PIKISJ.: In agreement with my brethren Irule that Reg.9 has theforceoflaw(s.45
(1),Law33/67)and on thataccount breach of itsprovisions constitutes illegal action. Furthermore, failure to adhere to its dictates in an individual case entails separate 15 treatmentofamember ofaclassofpublicofficers inbreach ofthe principle of equality before the law and the Administration safeguarded as a fundamental right by Art. 28.1 of the Constitution. Thus Reg. 9 defines the framework within which confidential 20 reportsshouldbe providinga uniform measure forthe evaluation oftheservicesofpublicofficers. Itisanessentialaspectofthelegal regime governing the assessment of the worth of civil servants. Breach of its provisions in any material respect invalidates confidential reports, as well as any other administrative action 25 founded thereon. ThisI had occasion toexplain insomedetailin Karpasitis v. Republic*. Confidential reports, it was stressed, constitute the most consequential consideration for the assessment of the meritsof candidates competing for promotion. Necessarily breach of the provisions of Reg. 9 in any material 30 respectrendersaction founded thereon invalid. The interests of legalitywarrant that the Administration should unfailingly adhere to every formality prescribed by law or regulations made thereunder as a condition for the validity of its action. Every departure from the legal norms is treated as 35 consequential unless it is made to appear that the breach was inessential inthe sense that itcould have no noticeable effect on the essence of the act or that ithad none inthe circumstancesof •(19e6)3C.L.R,1617. 1099 PikUJ. Republicv.Aruyrides
(1987)theparticularcase.Inthiscasebreachoftheregulationaffected a materialpartthereof andassuchinvalidatedadministrativeaction founded whollyorinpartthereon. Conditionsdesignedtoensureuniformityoftreatmentofaclass of persons similarly circumstanced should, as a rule, be 5 meticulously observed in the interest of equality of treatinent safeguarded byArt.28.1oftheConstitution.Lackofuniformityin thetreatment ofmembersofclassofpersonsunavoidablyresults ininequalityoftreatmentinbreachofthefundamentalrightofthe citizentoequalitybefore thelawandtheAdministration. 10 Forthe above reasons I associate myself withtheorderforthe dismissaloftheappeal. Appealdismissed. Noorderastocosts. 1100