clr/1987/1987_3_1123.pdf

(1987)As a result theCommission reached thesub judice decision It must be noted that applicant was rated for 1982 as excellent by the reporting officer on all rateable items, but the present Accountant-General changed therating onthreeitemstooneof «verygood» As regards 1983, thereporting officer rated theapplicantas «excellent» on t all itemsexcept one,onwhich he rated himas«verygood», but,once again. the same countersigning officer changed therating on three items toonpof «verygood» 5 The aforesaid changes do .not appear to have been brought to the knowledge and discussed with the reporting officer JQ Held, annullingthesubjudice decision, that in the light of thedecision of the FullBenchof thisCourtintheRepublicν Argyndes(1987}3 C LR 1092 the sub judice decision has to be annulled,as there has been a deviation by the countersigning officer from the express provision of the regulations conceming preparation of confidential reports*, which is tantamountto an illegality, moreover, and in the light of the same authonty the sub judice decision violates Art 28 of the Constitution 15 Subjudicedecisionannulled No orderastocosts 20 Casesreferredto Republic ν Argyndes

(1987)3 CLR 1092 Recourse. Recourseagainstthedecisionoftherespondenttopromotethe interestedparty tothepost of SeniorAccountantintheTreasury Department,inpreference andinsteadoftheapplicant. 25 A. S.Angelides, fortheapplicant. A. Vassiliades, fortherespondents. Cur. adv. vult. A. LOIZOU J. read the following judgment. By the present recoursetheapplicantchallenges thepromotionoftheinterested 30 partyFrixosDrakostothepostof SeniorAccountant. •Circular491/79oftheCouncilofMinister» 1124 3C.L.R. Styfianidesv.Republic A.Loizou J. The facts of the case are briefly these. The post of Senior Accountantisapromotionpostfromtheimmediatelyloweroneof Accountant. In accordance with the prescribed procedures the matter was referred to a departmental board, which ultimately 5 recommended the applicant and the interested party as the candidates satisfying the qualifications required bythe schemeof service for the post and recommended themfor promotion. The respondent Commission at its meeting of the 21st May, 1985,examinedthereportofthedepartmentalboardanddecided 10 toholdanothermeetingsothattheAccountant-General would be invitedtobe present. Initsminutesofthesaidmeeting {Appendix 7)itisstated: 15 «Reference to item 3 of the minutes of the meeting of the Commission dated 14th March, 1985 and to item 2, of the minutes of the meeting of the Commission dated 21st May,

1. Atthe meeting the Accountant General Mr.RogirosKyrris whowaspresent mentioned the following: 20 'It is about two excellent from every point of view candidates. Frixos Drakos is recommended, who is clearly superiorasregardsservice.' At this point the Accountant-General withdrew from the meeting. 25 30 35 Following that the Commission considered the evaluation and comparison of the Candidates. The Commission examinedthematerialelementsfrom theFilefortheFillingof thePostaswellasfrom thepersonal filesandthe confidential reportsofthecandidatesand took alsointoconsideration the conclusions of the departmental Board and the views and recommendations ofthe Accountant-General. The Commission noted that the two candidates have remarkable confidential reports for the recent years. Indicativelyitismentionedthatduringthelastthreeyearsthey were both excellent with analytical gradings:Drakos9-3-0in 1982, 12-0-0, in 1983 and 10-2-0 in 1984 and Stylianides 9-3-0 in 1982,8-4-0 in 1983 and 11-1-0in
2. EspeciallyasregardsDrakos,theCommissiondidnotomit tonotethatthepreviousAccountant-General oftheRepublic 1125 A.LoteouJ. StyUanldesv.Republic

(1987)considered in general this officer as of a lesser ability from what he appears to be during the recent years under the present Accountant-General. In one in particular, instance, inthe confidentiall reportfor 1980hewasgradedincertain paragraphs of the analytical grading as average. From the 5 contents of the confidential reports it emanates that the problemsofDrakosstemfromthepeculiarconductandstand towardshiscolleaguesandothers,thelackonhispartofspirit of cooperation and his weakness to adapt, as it can be deduced from the views expressed in 1977 by the then 10 Director-General of the Ministry of Communications and Workswherethe officer wasserving.Butthe qualifications, andintelligence oftheofficer werealwaysrecognisedinthe confidential reports and itis now clear that under the new Accountant-General his performance made impressive 15 progresssothatduringthelastthreeyearstobeassessedvery highandbepraisedbyhissuperiorasbeing'inallrespectsan excellentofficer' andthat'thequalityofhisworkisexcellent and qualitative,superiorfromthatofanyotherofficer ofthe Accountant-General'sOffice'. 20 TheviewofthepresentAccountant-Generalthattheofficer was in the past the victim of intrigues and unfounded accusationsasregardstheperformanceofhisdutieshasbeen noted,buttheelementsbeforetheCommissionarenotsuch thatpermitittoquestiontheobjectivityandcorrectnessofthe 25 assessments,inrelationtootherofficers, whichweremadein previousyears.Thefact,however,remainsthatduringthelast threeyearstheofficer madeanexcellentperformance. FromthepointofviewofseniorityDrakosisaheadwitha greatdifference.Comparativelyhehasbeenpromotedtothe 30 presentpost(AccountantFirstGrade)asfrom15thJuly1968, whereasStylianideswaspromotedtothesamepostasfrom 15thDecember

1. The Commission gave also the proper weight to the qualificationsofthecandidates. The Commission having taken into consideration the above, as wellasthe recommendation of theAccountantGeneral,dedcteathatDrakosisnowsuperiorforpromotion 1126 35 3C.L.R. StyUanldesv. Republic A.LolzoaJ. although Stylianides is also an excellent officer with higher confidential reports from Drakos during the three previous years(1979-1981)andaboutequallyhighwithDrakosduring the lastthreeyears. 5 10 Consequentially the Commission takinginto consideration alltheaforesaid materialelementsdecidedonthebasisofthe established criteria in their totality (merit, qualifications, seniority)thatFrixosDrakosissuperiortotheothercandidates and decided topromote himasthe most suitableforthe post of (Ordinary Budget) Senior Accountant in the AccountantGeneral's office asfrom 15thJune, 1985.» The service, career of the applicant and the interested partyas well as their qualifications appear in Appendix 4 and 1 need not repeatthemhere.Suffice ittosaythattheinterestedpartyisbyten 15 and a half years senior to the applicant considering the date of appointment to the previous post and has had an overall longer service ofthreeand a half years. It was argued on behalf of the applicant that there was a violation of the Regulations contained in Circular No.491 of the 20 26thMarch, 1979andassupplemented onthe 11thJanuary 1983 and inparticularviolation of Regulations4,5 inconjunction with Regulation
2. Since the filing of this recourse the Full Bench of this Court delivered on the 11th June 1987,itsjudgment inthe case of The 25 Republic v. Argyndes Revisional Appeal No. 678*. in which regarding the compliance with the Regulations conceming the preparation of Confidential Reports, itwasheld that: 30 35 «Suchregulationsare notsubsidiary legislation inthestrict sense but haveto be strictlycomplied with.Thedeviationby thecountersigning officer from theexpressprovisionsofsuch regulations istantamount toan illegality. Moreover, thesub judice decision should be annulled asviolating Article28of the Constitution. Everypublicofficer isentitledtoexpectthat the procedure in the preparation of confidential reports contemplatedbytheRegulationsapprovedbytheCouncilof Ministersshouldbestrictlyadheredtoinallcaseswithoutany differentiation. Any application of the Regulations in a different mannerineachparticularcaseviolatestheprinciple that a person is entitled to equal treatment which is •Reportedin

(1987)3CLR.1092 1127 A-LoizouJ. Stylianides v. Republic

(1987)safeguarded under Article 28 of the Constitution. We have, therefore, reachedtheconclusion thatthesubjudice decision should beannulled on thisground aswell.» Aconsideration of theposition of the confidential report of the applicant isrelevanttotheissueraisedbythisgroundofLaw.The 5 applicant,anAccountantFirstGradewasservingintheMinistryof , Healthduringtheyear1981.Hewasratedbythe Director-General of that Ministry as «Excellent» on all rateable items and with that rating the Accountant-General of the time was in agreement. During the year 1982 he continued serving in the Ministry of 10 Healthandhewasagainratedasexcellentonallrateableitemsbut the present Accountant-General changed the rating on three rateable items to one of «Very Good». They are item 1, «Performance», item 5,«Abilityto express inwriting»and item 8, «Intelligence».The changeswere initialled inblue inkand do not 15 appeartohavebeen discussedorbroughttotheknowledge ofthe Director-General oftheMinistryof Healthwhohad alsoprepared the confidential reportforthe previousyear

1. Inthe confidential report for the year 1983the same DirectorGeneral rated the applicant as «Excellent» on all rateable items. 20 The Accountant-General agreed on all rateable items except on item 5, «Ability to express in writing» on which he was rated as «Very Good». The Accountant-General changed the rating on three rateable items, to «Very Good», namely item 7, «Cooperation/Relations», item 8, «Mental Ability/Intelligence» 25 (noimosini/effiia) and item 10 «Managerial/Supervisor Ability». Again these changes do not appear to have been brought to the knowledge and discussed with the reporting officer. Fortheyear 1984thesamereportingofficer ratedtheapplicant as «Excellent» on all rateable items but the Accountant-General 30 changed the rating on item 8 «Intelligence» to «Very Good». On thisoccasionunderpart5,ofthereportheaded«Observationsand certifications of the countersigning officer» there appear in addition to the signature of the counter-signing officer that isthe Accountant-General whose signature is dated the 4th March, 35 1985, the signature ofthe reporting officer which isdated the 8th March
2. FromthewaythetwosignaturesareappendedsidebysideIam led to conclude that the change effected by the AccountantGeneral on this occasion was brought to the knowledge of the 40 reporting officer. This, however, does not change the position 1128 3C.L.R. Stylianidcs v. Republic A. LoizouJ. regarding the noncompliance with the relevant regulations regarding the preparation of confidential reportsin respect ofthe previousyearshereinabove referred to. Inthe light of the decision of the Full Bench inArgyndes Case 5 (supra) from which Iquoted the relevant passage Ifeel bound to conclude that the sub judice decision should be annulled on the ground that there has been a deviation by the countersigning officer from the express provisions of such regulations which is tantamount to an illegality and that moreover the sub judice 10 decision should be annulled as violating Article 28 of the Constitution. Foralltheabove reasonsthesubjudicedecision isannulled but inthe circumstances there willbe no order as tocosts. Sub judice decision annulled. No order 15 astocosts. 1129