(1987)1987July 24 [SAWIDES J ] INTHE MATTER OF ARTICLE 146 OF THE CONSTITUTION ZACHARIASNICOLAOU, Applicant, ν THE PORTS AUTHORITY OF CYPRUS, Respondent (CaseNo 141/86) Administrative Law — Generalpnnciples — Collectiveorgans— Need to keep proper minutes of theirproceedings — Review of caselaw Reasoning of an administrative act — Promotionof officers ofpubliccorporation — Absence of reasoning as to what was the matenal before the respondent and what matters were taken intoconsideration — Sub judice promotion annulled By means of this recourse the applicant challenges the validity of the promotion of the interestedpartytothepostof Boatman, 1stGrade The relevant part of the minutes of the meeting of the Board of the Authority reads as follows 10 «Having considered all thematenalwhichwas atitsdisposal, decided to offer promotion to the post of Boatman, 1st Grade to Mr G Theocharous, Boatman2ndGrade» The respondent metagain on28 186 andthe following isapassage from itsminutes 'Minutes of 266th meeting 15 1 1 The minutesof the266th meeting were approved by the Board andsigned by theChairmanwith thefollowing amendments ic)Paragraph 14 l{a) tobe replaced with the following (a)Having examined all matenalwhich was atitsdisposal itdecided, by majonty, tooffer promotiontothepostof Boatman, 1stGradetoMr G Theocharous,Boatman2ndGrade» Nothingelse ismentionedintheminutesof the Boardof therespondentas towhatwas thematenalwhichwasatitsdisposal orastothemajontydecision 1106 20 3C.L.R. Nicolaouv.Ports Authority taken and noreasons weregiven forthe disagreement ofitsmembers. The Court, after refemng to the case law, relating to the need for public collective organs to keep proper wntten records in respect of their proceedings, 5 Held, annullingthesubjudice decision,thataperusaloftheminutesofthe respondentCommissionshowsnoreasoningatallastowhatwasthematerial before it in making its assessment and what matters it has taken into consideration inreaching thesubjudice decision Subjudice decision annulled Cosisagainstrespondents. 10 Casesreferredto: Medcon Construction andOthersv.TheRepublic
(1968)3 C.L.R 535; Kypnanou &Others(No.2)v.TheRepublic
(1975)3 CL.R. 187, Eliinasv.TheRepublic
(1975)3C L.R.248, 15 losifv. CyprusTelecommunicationsAuthority
(1975)3C L.R.261; Republicv.Lefkos Georghiades
(1972)3C.L.R.594. Recourse. Recourseagainstthedecision oftherespondenttopromote the interested party to the post of Boatman 1st Grade in preference 20 and instead of the applicant. A.S. Angelides, forthe applicant. N. Papaefstathiou, forthe respondent. Cur.adv. vult. SAWIDES J. read the following judgment. The applicant 25 challenges the decision of the respondent dated 20.12.1985, to promote to the post of Boatman the interested party, namely George Theocharous, instead of and inpreference tohim. The respondent is a public corporation exercising the powers vestedinitbythePortsAuthorityLaw(No.38/73)assubsequently 30 amended. The applicant as from the 15th July, 1968tillthe 1st October, 1977 wasservingasa Boatman inthe Department of Portsofthe Republic. On the 1st October, 1977 as a result of an agreement and/or provisions of the Law he was seconded to the post of 1107 Savvldes J. Nlcolaou v.PortsAuthority
(1987)Boatman 2nd Grade in the Ports Authority. InOctober, 1985, a vacancy occurred in the post of Boatman, 1st Grade in the respondent Authority. The appropriate Service Selection Committee found that 20 candidates were eligible for promotion to the post and selected four out of them whom itrecommended 5 asthebest, amongst whomtheapplicantandtheinterested party. The respondent Authority met on 20.12.1985 and decided to promote the interested party to the vacant post in question. The minutesof the Authority read as follows: «TheBoard: (
- a)Having considered all the material which was at its disposal decided to offer promotion to the post of Boatman, 1stGrade to Mr. G.Theocharous, Boatman 2nd Grade. 10 » The respondent met again on 28.1.1986 and the following is 15 recorded initsminutes: «Minutesof266th meeting. 1.1. The minutes of the 266th meeting were approved by the Board and signed by the Chairman with the following amendments: (c)Paragraph 14.1.(
- a)tobe replaced withthe following: (a)Having examined allmalarial which wasatitsdisposalit decided, by majority, to offer promotion to the post of Boatman, 1st Grade to Mr. G. Theocharous, Boatman 2nd Grade.» Nothing else is mentioned in the minutes of the Board of the respondent astowhatwasthematerialwhichwasatitsdisposal or as to the m^tQiity decision taken or any reasons given for the disagreemeni between itsmembers. Asa result, the applicant filed the present recourse challenging 30 the said decision on the ground that it was taken contrary to the law, in violation of vested rights of the applicant, under a misconception of facts 3 ^1 law,contrarytotheestablished criteria and that itlacksdue reasoningand due inquiry. By his opposition counsel for the respondent supported the 35 decision of the respondent as lawful and correct, duly reasoned andwithintheproperexerciseofthediscretionofthe respondent. Byhiswritten address counsel for the applicant in expounding on hisgrounds of lawsubmitted that(
- a)No reason whatsoever is given by the Board of the 40 respondentastohowitevaluated thecriteriasetoutbythelawor 1108 20 25 3C.L.R. Nicolaouv.PortsAuthority S a w i d e s J. how it reached the conclusion that the interested party was the bestcandidate forpromotion andalso,astohowandwhythe first decision wassubsequently amended. Incounsel'ssubmission the subjudice decision doesnotsatisfy the minimum requirementsof 5 due reasoningso asto makejudicial control possible. (b)The respondent failed tocarryoutanyinquiryasto whether the interested party possessed the required by the scheme of service knowledge of English, which cannot be inferred from the material in the file. Counsel also contended that the applicant is 10 equal in merit, better qualified and senior to the interested party and shouldhave been preferred. ByleaveoftheCourtthe partiesalsofiled affidavit evidence.In the affidavit of Andreas Theofanous, Assistant Ports Inspectorof therespondentAuthority,dated8.12.1986, itisstated thathe was 15 the person supervisingtheapplicantand theinterested party and responsible for assessing their work. In his opinion the applicant wassuperior inmerittothe interested partyand wasgivinghima higher assessment. He then goes on to explain that he used to deliver his assessment to the Port Manager who used to disagree 20 partly.Regarding hisassessment of the two parties duringthe last twoyearshestatedthatitwasnotacceptedbythePortMasterwho ordered himtodoitagain.Theaffiant, accordingtohisstatement, again arrived at the same conclusion and his assessment was thereafter change totheadvantage oftheinterested party and the 25 disadvantage of the applicant. Byaffidavit swornonbehalf oftherespondentbyI.Ghighis,the PortManagerof Limassolport, dated 30th April, 1987,the affiant states that he was, by decision of the Board of the Authority, appointed and was acting at the material time in question, asthe 30 reportingofficer bothoftheapplicantandtheinterestedparty,and that he was evaluating them in accordance with the Regulations governing the preparation of confidential reports of the employeesoftheAuthority.Heconcludedhisaffidavit asfollows:35 40 •Byvirtue of myabove capacity and before proceeding to the evaluation of the applicantand the interested partyinthe preparation of the relevant reports I used to invite Mr. Theofanous to express his views in connection with the performance of the aforesaid employees but he was not personally the competent officer tomaketheassessment and in facthe neverproceeded tosuch assessment.» 1109 SawldesJ. Nlcolaouv. PortsAuthority
(1987)Before proceeding to deal with the various points raised by counsel for the applicant, I find it necessary to deal with the confidential reportsoftheapplicantandtheinterestedpartyinthis case. Theconfidential reportsofthetwocandidateswere,since 1979, 5 prepared by Mr. Ghighis, as reporting officer and countersigned byMr.G. Mavroyiangos ascountersigning officer. Ina numberof these reports there appears to be a disagreement in the assessments on certain items between the reporting and the countersigning officer. On the items on which he did not agree \Q withthereportingofficer, thecountersigningofficer madehisown evaluation inred and initialled same.The affiant Mr. Theofanous, does not appear to have taken any part in the preparation of the reports, except in giving orallyhisown opinion about the officers concerned. Ishall now proceed to consider the grounds raised by counsel fortheapplicant. Inthe Case ofMedcon Constructionand Others v. The Republic
(1968)3 C.L.R. 535 at p. 543, we read the following:«It is essential for the propriety of proceedings of public 20 collectiveorgansthattheyshouldkeepsuchwrittenrecordsof such proceedings as are required for purposes of good and proper administration. This was stressed in relation to the Tender Board in Petriv. ThePolice
(1968)2 C.L.R. 40 atp. 80); and in Georghiades and the Republic
(1966)3 C.L.R. 25 252 atp. 283itwasheld thatthe total absence ofanywritten record regarding a step in the handling of a matter by the Public Service Commission was 'so inconsistent with the minimum of essential requirement of proper proceedings before apubliccollectiveorgan' that itsrelevantdecisionwas 30 vitiated bya basic defect and had to be annulled.» InKyprianou &Others (No. 2) v. TheRepublic
(1975)3 C.L.R. 187, Hadjianastassiou J. had thistosayatpp. 193,194:«It seems that in the absence of any legislative provision regulating the matter, the non-keeping of minutes by a 35 collective organ doesnotalways(aquestion tobedecided on the merits of each case) vitiate a particular administrative decision, except, Irepeat, if the absence of such minutes or clarity in the minutes tends to deprive the decision of due 1110 15 3C.L.R. Nlcolaouv.PortsAuthority S a w i d e s J. reasoning. Havinggoneintothedecidedcases,itappearsthat mainlytherequirementofkeepingwrittenrecordsisprimarily for purposes ofgood administration. (See HadjiLouca v.The Republic
(1969)3 C.L.R. 570, at p. 574; and Korai and 5 Another v. The Cyprus Broadcasting Corporation
(1973)3 C.L.R. 546 at pp. 564-565; also Kyriacopoullos on Greek Administrative Law,4thed.Vol.2p.26,and Stassinopoullos on the Lawof Administrative Acts,
(1951)223,aswellasthe DecisionsoftheGreekCouncilofState,inCases 166/29and 10 107/36.» The above dictum was reiterated by A. Loizou, J. in EUinas v. TheRepublic
(1975)3 C.L.R.248 atpp. 253-254. Inlosifv. CyprusTelecommunication Authority
(1975)3C.L.R. 261, HadjianastassiouJ.had thistosayatp.275:15 « I would liketo make itquite clear that inthe absence of sufficient material before thisCourt, thisCourt isleft inthe dark and isseriously handicapped in carrying out effectively itsduties which isnothing more than carrying out effectively itsjudicialcontrolovertheadministrativeactofan appointing 20 organ, in order to see whether they have exercised their discretionary powersproperly and lawfully.» 25 30 35 40 IntheRepublic v. Lefkos Georghiades
(1972)3C.L.R.594atp. 690, itwasheld that: «The requirement of due reasoning in administrative decisions, has been stressed on more than one occasion by judgmentsofthisCourt (Seeinteralia,P.E.O.v.TheBoardof Cinematograph FilmsCensors&Another
(1965)3 C.L.R.27 and Sofocleous (No. 1)v.The Republic (reported inthisPart at p. 56, ante, at p. 60)). The philosophy behind the requirement of reasoning is that its presence excludes arbitrariness on the part of the administrative organ and protectsthe administration against itselfbypreventingitfrom taking a hasty decision. At the same time it protects the persons affected by such decision. The reasoning must be clear, that is to say, the concrete factors upon which the administration based its decision for the occasion under consideration must be specifically mentioned in such a manner as to render possible its judicial control. It must containthewayofthinkingoftheadministrativeorganonthe relevantfactswhichconstitutethefoundation forthedecision. Areasoningwhichdoesnotsatisfytheseconditionscannot be considered asdue reasoning.» 1111 S a w i d e s J. Nlcolaou v.PortsAuthority
(1987)AperusaloftheminutesoftherespondentCommissionshows noreasoningatallastowhatwasthematerialbeforeitinmaking itsassessmentandwhatmattersithastaken intoconsiderationin reachingthesubjudicedecision.I find thatthisground succeeds andthatthesubjudicedecisionhastobeannulledonthisground. 5 Having found so, Ifind it unnecessary todeal with the other groundsraisedbycounselforapplicant. Intheresult,thisrecoursesucceedsandthesubjudicedecision isannulledwithcosts. Subjudicedecision 10 annulledwithcosts. 1112