clr/1987/1987_3_1591.pdf

(1986)3 CLR 1407distinguishedandexplained—Inthecircumstancesofthiscase thedelayinmakingtherecorddoes not constituteaground of annulment PublicOfficers—Appointments/Promotions—Interviews — Weight—Pnnaples applicable—Whengreaterweightjustified Junsprudence—Precedent, doctnneof— Thebindingpartofajudicialdecision 10 15 Collective organs—Records—Needtokeep proper records— Wherea record ismadesubsequentiy totheevent theassesmentofitsaccuracyandreliability isaquestion offact PublicOfficers—Appointments —First entrypost — Candidatesin temporary government service competing withcandidatesfrom outside the service— Weighttobeattachedtotherecordofserviceof thecandidatesm temporary service—Constitution, Art 28 Public Officers—Appointments—Head ofDepartment—Recommendations — Weightof 20 25 The applicantsand the Interested parties inthe recourse wereamong the seventy-sevencandidates,whowerefoundbytheDepartmentalBoardtobe eligible forappointment tothepostofPress andInformation Officer,afirst entrypost ThePublicServiceCommisionheldinterviewsasbetweenthe 14683and the 25783 TheCommission recorded theresultsof theinterviewsin its minutes on2983 1591 P.S.C.v. P o t o u d e s & Others

(1987)The trial Judge annulle -tlie relevant appointments (See Potoudes and Othersν ThePublicService Commission

(1986)3 C L R 1985),becausein the absence ot any official contemporaneous record of the Commission regarding ine performance of the candidateswhen interviewed and beanng in mind thatmore than two monthshad elapsed from the interviews except 5 thelastone, thereexistsasinMaratheftisandAnother ν TheRepublic

(1986)3 CLR 533 a good strong probability that the Commission was labounng under Λirntenal misconception due to inaccuracies which, because of the passage of time, might have crept in and distorted the evaluation of the performance of thecandidatesattheinterviews, whichamountstoadefective 10 way of exercise of its discretionary power Hence thisappeal Held, allowing the appeal (A)PerA Loizou,J Malachtosand KoumsJJ concurring

(1)Two factors distinguish thecase ofMarathems,supra,fromthis case The time elapsed from the interviews until the recording of the evaluation of the performance of the candidateswas morethan fivemonths in Marathems, whereas in this case it was ranging between thirty-nine to seventy-nine days 15

(2)Though undue importanceshould notbe given totheinterviews, there is nothingwrong in law to attachthe necessary importanceto themas such 2 0 interviews reveal a candidate's personality and abilities, which in instances such as thepresent oneare importantqualities, inordertoascertain whether such candidates would be suitable for the post in question {Andronicou and Othersν Republic

(1987)3 C LR 1237 adopted) Interviews constitute one of the methods of carrying out a due inquiry 2 5 which a collective organ has to carry They have more significance in instancesof first appointment,orfirst appointmentandpromotion,whennot alltherelevant factors arebefore theadministrativeorgan,orwhen thefactors whichtheremaybebefore thecompetentorgancanbeidenticalasinthecase of candidateswho all are graduatesof secondary schoolsandailhave passed 3 0 the one or other examination Moreover they are useful in cases of appointmenttothehigherpostsinthehierarchyoftheService orinsuch posts where the personality of-the candidates plays a significant role in the successful discharge of theirduties B)Per Lons,J Thepresentcase isdistinguishable from Maratheftiscase In the case under consideration not only the interval of tame that elapsed between the interview andtherecordmadeof thoseresults was considerably shorter than inMaratheftis case,butthematenalplaced before theappellant Ρ S C on the suitability of the candidates interviewed was favounng those appointed Furthermore,inthepresentinstance,thereexisted therecommendationof the Directorof the Department, which coincidedwith the assessment of the 1592 35 40 ^^ 3C.L.R. 5 P.S.C.v. Potoudes & Others Commission It is well settled that such recommendation is a most vital consideration, which should weigh with the Public Service Commission in coming to a decision ina particular case and such recommendationshould not be lightly disregarded (Theodossiouν TheRepublic,2 R S C C 44 atρ 48 followed) 15 C)PerPikis,J , Koums,J concumng

(1)Thetnaljudgetreatedthecaseof Maratheftis as establishing the rule that inordinate delay in recording inthe minutes the result of an interview makes thelikelihood of error unavoidable andonthataccountthedecisionwas vulnerable tobe setaside Thedecision inMaratheftisdoes notestablish anysuch pnncipleofadministrative law The decision in Maratheftisis but a species of the application of the broader pnnciple that the absence of proper records pertaining to the decision of an administrative body makes the decision, depending on the impactof that absence onthedecision, liable tobe set aside Theoutcomeof the case inMaratheftiswas inextncablyconnectedwiththeparticularfactsofthatcase 20 2)Thefacts of thepresentcasearedistinguishable from thoseinMaratheftis manumberofrespects Notonlytheinterval oftimethatelapsed betweenthe interviews andtherecordmadeofthoseresults was muchshorterthanthatin Maratheftis, but the matenalbefore the respondentson thesuitability of the candidatesinterviewed favoured thoseappointed 10 3)Inaccordancewiththeruleofprecedent{staredecisis) theratioofacase, that is,thebindingpartof it,is thepnncipleorpnnaples of law founding the judicial determination The pnnciple as such must be distinguished from the results of itsapplicationindiverse circumstances £> 30 35 4)Thepnncipleoflaw denving from thecaseofMaratheftisisthat collective organsmustkeepproperrecordsoftheirproceedingsanddeliberationsinthe interestof the efficient transactionof administrativebusiness ontheonehand and effective judicial control on the other The accuracy and reliability of recordsisinevitably connectedwith thecontemporaneityof the recordswith theevent Where arecordismadesubsequently totheevent,the assessment of itsaccuracyandreliability isaquestion of fact 5)Thereference madeby theDirectortotheworth of theservicesof those candidates already in the service in the Ρ Ι Ο should, of course, on no accountbetreatedasdecisive forthefillingofafirstentrypost Equality before theAdministrationrequiresequaltreatmentofeverybody competingfora first entry post The record of the performance of candidates in temporary governmentserviceismerelyrelevantasafactor beanngontheoverall worth of thecandidates Appealallowed 1593 P.S.C.v.P o t o u d e s & Others

(1987)Cases referred to Potoudes and Others ν ThePublic Service Commission

(1986)3 C L R 1985, Maratheftisand Another ν TheRepublic(\9S6)3 CLR 1407, Andronikou and Others ν TheRepublic{1987)3 CLR 1237 5 Theodosiou ν The Republic, 2 RS CC 44, Republic(Ministerof Finance)andAnother ν Demetnades

(1977)3 C L R 213, ChanceryLane Safe Deposit&Offices Co Ltd ν InlandR Comrs(1966] 1A1IER 1 ( H L ) , 10 OgdenIndustriesPty Ltd ν Lucas (1969] 1All ΕR 121(PC), Miiiangosν GeorgeFrank(Textiles)Ltd [1975] 3 All ΕR 801 {HL ) Appeal. Appeal against thejudgment of aJudge of the Supreme Court of Cyprus (Sawides, J.) given on the 3rd November, 1986 15 (Revisional Junsdiction Cases Nos 44/84-46/84, 78/84, 96/84, 106/84 and 113/84)* whereby theappointmentof theinterested parties to the post of Press and Information Officer (English and French)was annulled A Vladimerou,for the appellant 20 A S. Angehdes with A Ladas and Ν Papaefstathiou, for the respondents L Papaphihppou, for theinterested parties Cur adv vult The following judgments were read A. LOIZOU J.: At the conclusion of the heanng of this appeal, and having in the meantime given several rulings to a numberof objections raised in the course of the heanng, we allowed the appeal and indicated that we would be giving our reasons for doing so to-day *ReportedIn

(1986)3 CLR 1985 Note Thejudgmentof theCourtwasdeliveredon20 71987, thereasonsforthejudgment weregivenon 1310 1987 1594 25 30 3 C.L.R. P.S.C.v.Potoudes &Others A. Lolzou J. The facts ofthe caseappear inthejudgment of thelearned trial Judge reported as MarinaPotoudes and Others v. The Public Service Commission

(1986)3C.L.R. 1985.1neednotrepeatthem here. Suffice it to say than on the 21st May, 1982, a number of 5 vacancies in the post of Press and Information Officer which, isa first entry post, were advertised in the Official Gazette of the Republic. The applications of 208 candidates who applied for appointment were considered bythe Departmental Board which wassetupundertheprovisionsofSection36ofthePublicService 10 Law 1967.Itsreportdatedthe4thMarch, 1983,contained alistof seventy-seven candidates, found by it to possess the required qualifications. Amongst them were the applicants and the interested parties. The Public Service Commission having concluded the examination of the eligibility of the candidates 15 interviewed those found by it as eligible, amongst whom the applicants and the interested party. The interviews took place between the 14thJune and the 25th July 1983. The respondent Commission recorded the results of the interview in itsminutes of the 2nd September when itheard the 20 views of the head of the Department with regard to the performance of the candidates atthe interview and attheirwork, inthecaseofthosealreadyintheservice eitheron contractoron secondment. Itthen proceeded tomake itsown evaluation ofthe candidatesastotheirperformance atthe interviewonthebasisof 25 the material before it and selected seventeen candidates with knowledge of the English language, two with knowledge of the Russian language, one with knowledge of the Arabic language, one with knowledge of the Turkish language, three with knowledge of the German language, one with knowledge of the 30 Spanish language and five with knowledge of the French language, as the most suitable to the vacant post of Press and Information Officer. The learned trialJudge after referring tothe case ofMaratheftis andAnother v. The Republic

(1986)3 C.L.R. 533,concluded as 35 follows: «Notwithstandingthefactthattheperiodwhichhaselapsed was not so long as in the case of Maratheftisand Another, nevertheless, bearinginmind the fact that inMaratheftiscase the Commission had to deal with eleven candidates only in 1595 A. Loizou J. P.S.C.v.Potoudes &Others

(1987)respect ofa particularpost, whereasinthe presentcaseithad to deal with 66 candidates in a post which, though similar, nevertheless, it was grouped under separate headings for a number of languages, 1 have come to the conclusion that in the absence of any official contemporaneous record of the 5 Commission regarding the performance of the candidates when interviewed and beanng in mind that more than two months had elapsed from the interviews, except the lastone, there exists, as in Maratheftis case, a good strong probability that the Commission was labounng under a matenal 10 misconception due to inaccuracies which, because of the passage of time, might have crept in and distorted the evaluation of the performance of the candidates at the interviews, which amountstoadefective wayofexerciseofits discretionary power 15 For this reason I have come to the conclusion that the sub judice decision hastobeannulled» Asagainst thisjudgment the respondent Commission filed the present appeal and I do not think that itisessential inthiscase to pronounce on the correctness of the pnnciples enunciated in 20 Maratheftis case, as the following facts of the present case differentiate thisone from thecase ofMaratheftis (a)Unlikewhathappened intheMaratheftiscasewherethetime that elapsed between the interviews and the evaluation of the performance of the candidates atsuch interviews was more than 25 five months, inthiscase suchtime wasranging from seventy-nine tothirty-nine days (b) In the evaluation in the Maratheftis case there have been used only marginally different ratings such as «very good» and «very very good» in assessing the leading candidates, whereas in 30 thiscase the ratings used were substantially different because the interested partieswereingeneralassessedas«verygood»(withthe exception of three who were assessed as «veryvery good»), and three of the applicants were assessed as «nearly very good» and the remaining four as«good» 35 Therefore only on their facts the present case isdistinguishable from Maratheftis,Ihavecometotheconclusion thatthesubjudice promotions should not have been annulled as the respondent Commission exercised itsdiscretion ina proper manner 1596 3 C.L.R. P.S.C.v. Potoudes & Others A. Loizou J. As regards the question of the interviews and their significance to be attached to them I had occasion to pronounce on these issues ina number of judgments and my views are containedin the case of Androntkos Andromkou and Others ν The Republic 5 judgment delivered on the5th August 1987 notyet reported,*in which I had the following to say 10 15 20 25 «In the first place, independently of whether notes were taken down by the individual members of the respondent Commission or not at the time of the interviews it is not necessary torecord indetail theviews of individual members intheminutesof therespondentCommission (See Markides ν Republic

(1983)3 C LR 750 atρ 761 citedwith approval in Hadjiantoni and Others ν The Republic

(1983)3 C L R 1145 at ρ 1153-54 )Moreover unlike the facts inthe case of Maiatheftis ν The Republic

(1986)3 C LR 1407, the time that lapsed between the interviews held by the Commission and the sub judice decision is not that long as to have distorted the evaluation of the performance of candidates at such interviews so as to create strong probability of the Commissionlabouring underamatenalmisconceptiondueto inaccuracies Furthermore though without doubt undue importance should not be given to the interviews, there is nothing wrong in law to attach the necessary importance to them as such interviews reveal a candidate's personality and abilities which m instances as the present one are important qualities, inordertoascertain whethersuch candidates would be suitable for thepost inquestion » I abide by the aforesaid pnnciples and I would like to avail myself of thisopportunityandaddthattheinterviews thoughthey 30 may notbe referred tobytheLaw asbeing oneofthecntenatobe bom in mind by the Public Service Commission, yet, they constitute one of themethodsof carrying outadue inquiry which a collective organ hastocarry and therefore interviews are useful and must be used as methods of discovenng the relevant factors 35 on which the discretionary power of an administrative organ will be exercised They have, in my view, more significance in instancesof firstappointment,orfirstappointmentandpromotion •Reportedm

(1987)3CLR 1237 1597 A. Loizou J. P.S.C.v. Potoudes &Others

(1987)when not all the relevant factors are before the administrative organ, or the factors which there may be before the competent organ can be identical as in the case of candidates who all are graduates of secondary schools and all have passed the one or otherexamination. Thepersonalitytherefore, ofthecandidatesor 5 those other factors which will help the administrative organ to choose, willbe revealed interalia and from a personal interview. Moreover they are useful inselections incasesof appointment to the higher posts in the hierarchy of the Service or in such posts where the personality of the candidates plays asignificant role in 10 the successful discharge of theirduties. With this I conclude my reasons for having arrived at the conclusion to allow the appeal and set aside the first instance judgment. MALACHTOS J.: Ialso agree with the reasons given by the 15 presiding Judge in the present case and Iam of the opinion that Maratheftiscase has to be distinguished from the present case.In other words in general lines I agree with the reasoning of the judgment of the presiding Judge, and I have nothing else to add. LORIS J.:Wehave alreadyallowed the appeal.The factswere 20 stated extensively and I do not intend repeating them. I shall confine myself in saying that it is obvious that the first instance Judge annulled the sub-judice decision in the first instance relying on the case of The Republic v. Maratheftis

(1986)3 C.L.R. 1407. Theratiodecidendi inMaratheftiscase(supra)appearsat pages 1413 and 1414 of the report where the following are set out verbatim: «We have reached the conclusion that in view of the absence of any official contemporaneous record of the 30 Commission regarding the performance of the candidates when interviewed and, also, in view of the period of more than five months which intervened between the interviewsin July 1983and the recording, on the 21st December 1983, of the evaluation by the Commission of the performance of the 35 candidates at such interviews, there exists a quite strong probability that the Commission, notwithstanding its undoubted good faith, was labouring under material misconceptions due to inaccuracies, which, because of the 1598 25 3 C.L.R. 5 P.S.C. v.Potoudes &Others LorisJ. passage of time, may have crept in and distorted the evaluation of the performance of the candidates at the interviews;andthesaidprobability isenhanced when insuch evaluation there have been used only marginally different ratingssuch as«verygood»and«veryverygood»inassessing the leading candidates.» The present case is distinguishable from Maratheftis case (supra);inthat case the interval of timethat elapsed between the interviewsand the relevant record ofthe results,coupled withthe 10 marginal difference in the performance of the candidates as eventually recorded, created a strong probability that the Commission waslabouring under material misconceptions. Inthe appeal under consideration not only the interval of time that elapsed between theinterview andtherecord made of those 15 results, was considerably shorter, but the material placed before the appellant P.S.C. on the suitability of the candidates interviewed wassubstantially favouring those appointed. Furthermore, in the present instance, there existed the recommendation of Mr.Psillidesthe Director of the Department, 20 whichcoincidedwith the assessment ofthe Commission; anditis wellsettledthat«therecommendation ofaHeadofDepartmentor other senior responsible officer... is a most vital consideration, which should weigh with the Public Service Commission in coming to a decision in a particular case and such 25 recommendation should not be lightly disregarded.» {Theodossiou v. TheRepublic, 2 R.S.C.C.44atp. 48) PIK1SJ.: Agood number of appointments made tothepostof Press and Information Officer at the Public Information Office (P.I.O.) were annulled for the reason that the Public Service 30 Commission failed oromitted tomakecontemporaneousnotesof theperformance ofthecandidatesattheinterview;remedying the omission after thelapse ofaperiodoftimedidnotremove doubts inherent in the course followed about the accuracy of the recollections of members of the Commission respecting the 35 perforrncace of the candidates at the interview. Hence the possibility of misconception of the facts relevant to the suitability of the candidates for appointment could notbe ruled out. And as 1599 PiklsJ. P.S.C.v.Potoudes &Others

(1987)the interview was one of the key factors relied upon for the selection made, the misconception was material and on that account the decision was setaside for material misconception of the facts. The learned trialJudge derived support for hisappreciation of 5 the implications of the absence of a contemporaneous minute about theperformance ofthecandidatesatthe interviewfrom the decision of the Full Bench in Republic v. Maratheftis*. In the opinion of the trial Court the ratio of the above case was conclusive for the fate of the sub judice decision making the 10 nullification of the act inevitable. Toappreciate the implications ofthe case ofMaratheftisor.the outcome of thiscase itisessential to refer tothe facts relevant to theappointment of the interested parties.The P.S.C. interviewed a largenumber ofcandidatesforthepurposeoffillinganumberof 15 firstentrypostsatthevarioussectionsoftheP.I.O.The candidates were interviewed between 14th June and 25th July, 1983. The P.S.C. recorded the results of the interview inthe minutes of the Commission of2nd September of thesameyearinthe contextof the decision-making process. According to the judgment of the 20 trial Court the delay that occurred in making a note of the impressions gained by members of the respondents about the performance of the various candidates made the likelihood of an erroroccurring withregardtoasignificant factarealpossibilityand guided by the decision in Maratheftisproceeded to annul the 25 appointments made. Aside from the possibility of error creeping inio the deliberationsoftherespondentsonaccountofthe aforementioned delay,thefactsbeforethemrelevanttothesuitabilityofthevarious candidates for appointment made it, as we can surmise from the 30 facts before them, reasonably open to choose the interested parties.Notonlytheresultsoftheinterviewasultimatelyrecorded favoured those selected, but the assessment of the Commission largely coincided with that of Mr. Psillides, the Director of the Department, whowaspresentattheinterview.Moreover, manyof 35 the candidates were in the employment of the P.I.O. on a temporary basis and the assessment of their work, to whatever extent that factor wasrelevantto the process of filling afirst entry •

(1986)3C.LR.

1. 1600 3 C.L.R. P.S.C. v.Potoudes &Other . PifcisJ. post, again favoured the appointment of ihose selected.The sole ground upon which the appointments vsre set aside, we repeat, was the absence of a contemporanec us record reflecting the performance of the candidates atthe interviews,an omission that 5 was found not to have been remedied by the note made on 2nd September,
2. The learned Judge treated the case of Maratheftis as establishing the rule that inordinate delay in recording in the minutes the results of an interview makes the likelihood of error unavoidable and on that account the decision 10 was vulnerable to be set aside. With great respect tothe teamed trialJudge, the decision inMaratheftisdoesnotestablish anysuch principle ofadministrative law.Thedecision inMaratheftisisbuta speciesoftheapplication ofthebroaderprinciplethattheabsence of proper records pertaining to the decision of an administrative 15 body makes the decision, depending on the impact of that absenceon thedecision,liabletobesetaside.Theoutcomeofthe case inMaratheftiswasinextricably connected with the particular facts of that case. In Maratheftisthe interval of time that elapsed between the interviews and the record made of the results, 20 considered in conjunction with the marginal differences between theperformance ofthecandidatesaseventuallyrecorded, created a real possibility of an error having occurred in the process of selection. For that reason and the additional one that the Public ServiceCommission attributed undue importancetotheresultsof 25 theinterview,thedecisionwasvoided.Thecandidatesinthatcase were members of the public service of long standing. Insufficient attention was paid to their service record compared to the interview, a factor, undoubtedly, of lesser importance to the service record of candidates. 30 The facts of the present case are distinguishable from those in Maratheftis in a number of respects. Not only the interval oftime thatelapsed between theinterviewsandtherecord madeof those resultswasmuch shorterthan thatinMaratheftis, butthe material before the respondents on the suitability of the candidates 35 interviewed favoured thoseappointed. Inotherwords,the results of the interviews did not conflict with the remaining matenal before theCommission. Inaccordance with the ruleof precedent (stare decisis) deeply rooted in our system of law Republic (MinisterofFinance)andAnother v.Demetnos Demetriades *,the *

(1977)3C.LR 213 1601 PikisJ. P.S.C.v.Potoudes&Others

(1987)ratio of a case, that is, the binding part of it, is the principle or principles of law founding the judicial determination*. It is that principle of law that can be depicted as definitive of the outcome ofa case;and wheretwoormoreprinciplesoflawarerelied upon inthealternative asjustifying thespecific result,each one ofthose 5 principles forms part of the ratio of a case** .The principle as such must be distinguished from the results of its application in diverse circumstances. Theprincipleoflawderiving from the caseofMaratheftisisthat collective organs must keep proper records of their proceedings 10 and deliberations in the interest of the efficient transaction of administrative business on the one hand and effective judicial control on the other. The interview of candidates forthe purpose of making appointments in the public service being a matter referrable totheir deliberations should be thesubject of a record. 15 Theaccuracyand reliabilityofrecordsisinevitablyconnectedwith the contemporaneity of the records with the event. Where a record is made subsequently to the event, the assessment of its accuracy and reliability is a question of fact. The decision in Maratheftis does not lay down that failure to keep a 20 contemporaneous record necessarily exposes the record subsequently made to error. So to hold would be elevating the assessmentmadebytheCourtinMaratheftisoftheimplicationsof the omission to keep a contemporaneous note inthat case intoa ruleoflaw.Inmyjudgmenttheeffect ofthecaseofMaratheftiswas 25 misconceived. Neither the interval of time that elapsed between the interviews and the record made nor any other fact before us creates a real likelihood of the record kept having been fraught with error. Reading through the lines of the assessment of the candidates 30 madebytheDirectoroftheDepartmentoneisleftinnodoubtthat he considered those selected as the candidates best suited for appointment. The reference made bythe Directortothe worthof their services at the P.I.O. should, of course, on no account be treated asdecisiveforthefillingofafirstentrypost.Equalitybefore 35 *Chancey Lane Safe Deposit & OfficesCo. Ltd. v. Inland R. Comrs 11966)1 All E.R. 1 (H.L). I had occasion to discuss the subject of binding precedent in Cap. VIIof the EnglishCommon Lawand theDoctrinesofEquityandtheirapplicationinCyprus. **Ogden IndustriesPty Ltd. v. Lucas 11969)1All E.R. 121 (P.C.)• Miliangos v. George Frank(Textiles)Ltd.[1975}3AllE.R. 801,803 (H L). 1602 3C.L.R. P.S.C.v.Potoudes &Others Puds J. the Administration requires equal treatment of everybody competing for a first entry post.The record ofthe performance of candidates intemporary government se-vice ismerely relevantas a factor bearing on the overall worth of the candidates. For 5 example, ifa candidate outside government service emerges, on an objective view of the material bearing on his worth, as better thansomeone intheservice,theservicerecordofthelatterwillnot beallowedtooutweighthepreferencetowhichheisentitledtoon account of the objective implications of his qualifications in the 10 widersense. In the end Iremain unpersuaded as to the existence of a real likelihood that an error occurred inrecording the performance of the various candidates at the interview. Therefore, Ishall join in the order proposed that the appeal be allowed. 15 KOURRIS J.: Ihave had the advantage of reading in advance the judgment of Pikis J., and Iagree with the reasons given in support. Ialsoagreeingenerallineswiththereasonsgivento-day bythepresidingJudge HisHonour, A.Loizou. Ihave nothing useful toadd and I would allowthe appeal. 20 COURT:We must now proceed to try the recourses on the remaining grounds. For that purpose they will be fixed for directionsindue course. Orderaccordingly. 1603