(1987)1987October17 [PIK1SJ I INTHE MATTER OF ARTICLE 146 OF THE CONSTITUTION RONIS SOTERIADES AND OTHERS, Applicants, ν THE REPUBLIC OFCYPRUS, THROUGH THE PUBLIC SERVICE COMMISSION, Respondent (Consolidated Cases Nos 671/85, 777/85, and 782/85) PublicOfficers—Appointments —Retrospective effect of froma datepnor tothe scheme ofservice — Whetherpossible— Intheface ofanexpressstatutory sanctionsuchanappointmentcanbe made AdministrativeLaw— Generalprinciples—Retrospective appointments toPublic Service — By way ofan exception to thegeneral rule thisispossibleinthe 5 faceof anexpress statutorysanction Legitimateinterest— PromotionsofPublicOfficers— Scheme ofservice requmng a particularqualification,but providing that in the absence ofcandidates possessing it, other candidatesmay be considered—Candidates whodo not possess such qualification,but possess the qualificationsof the proviso, 10 cannot compete withother candidatespossessing thequalification Public Officers — Promotions — Confidential reports — Circular 491/79 — Regulation 9— Whethercountersigning officerbound to furnish reasons forhit disagreement,ifafterdiscussion withthereportingofficer, aconsensus is achieved between the two — Question answered m the negative — 1 5 Regulations 3(1} and 4(c) — When a report can be prepared and countersigned byone andthesame officer Public Officers — Promotions — Head of Department — Lack of personal knowledge concerning candidates — Whether disentitled from making recommendations — Question answered in the negative — The Public 2 0 Service Law33/67, s 44
(3)By means of these recourses the applicants impugn thevalidity of the promotionofthefourinterestedpartestothepostofSeniorIndustnalOfficer inthe MinistryofLabour andSocial Insurance 1604 3 C.L.R. 5 Soterlacfcs and Others v. Republic The relevant scheme 01 service postulated asa necessary qualification for promotion three years service in the post of Industrial Training Officer However, the proviso to the scheme provided that in the absence of candidates possessing theaforesaid qualification there may beconsideredfor promotioncandidates possessingthequalificationsenvisaged intheρ JVISO Inthiscase,interestedpartiesAvraamidesandAngelides were piomotedto the aforesaid post as being the only candidates who possessed the aforesaid qualification of three years' service in the post of Industnal Training Officer Interestedparties Pastos and Panayideswere promotedunder the proviso 10 Μ Avraamides and Chr Angelides joined the government service in the year 1978 on a temporary basis, the terms and conditions of their service being regulated by their contract They were assigned duties in the appropnate department of the Ministry of Labour corresponding to those subsequently associated with the duties of Industnal Training Officers 15 Law 32/81 provided for the creation of the post of Industnal Training Officer Law 33/81 amended the Ordinary and Development Budgetswith a view to making appropnate financial provision for the allocation offundsfor the filling of the posts specified therein, including that of Industnal Training Officer 20 The Temporary Civil Servants (Appointment to Public Positions) (Amendment) Law (Law 15/82),provided for theappointmentof temporary government personnel to positions in the public service broadly corresponding to the duties they had temporanly performed The law expressly empowered the Public Service Commission in making appointmentsregulatedthereundertogive retrospective effecttothemgoing backto thedateof theenactmentof thebasic law 25 30 On 12 8 1982, Μ Avraamides and Chr Angelides were appointed to the post of Industrial Training Officer with effectfrom 10 7 1981, that is,the date on which the laws making provision for the post (32/81 and 33/81) were promulgatedin the officialGazette Counsel fortheapplicants contendedthiswas wrong asthe Public Service Commission lackedthenecessary legaljustificationin 1982togive retroactive effect to the appointments of Μ Avraamidesand Chr Angelides 35 The promotionof theothertwo interestedparties,who, like theapplicants, qualified under the proviso to the scheme of service, was challenged on the following grounds, namely breach of rule 9 of the Regulations concerning preparationofconfidentialreports(Circular 491/79),someoftheconfidential reportson one of the interestedparties were preparedand countersignedby one and the same officer, lack of personal knowledge of the candidates 1605 Soteriades and Others v. Republic
(1987)disentitlingtheHeadofthe -Departmentfrom makingarecommendation,and failure on thepart ofthe respondentstoappraiseinacorrectperspective the factsbefore them. 1leid,dismissingtherecourses:
(1)Theprincipleofadministrativelawisthat by way of exception to the general rule itispermissible to make retroactive 5 appointmentstoa postinthefaceofexpressstatutorysanction.Inthelightof the e g r e s s provision to thiseffect by Law 15/82, the decision of 12.8.82, whereby Avraamides andAngelideswereappointed tothepost of Industrial Training Officer with retrospective effect, was a legitimate exercise of the discretion ofthe respondents. *•" Aschemeofservice,nodoubt,isaprerequisiteforthefillingofthepost,but in no way seals the operative date from which appointment to a particular position may be effected. And in the face of explicit statutory authority an appointment toa positioncanbe madefrom adatepriortotheapprovalofa scheme ofservice. 15 Since interested partiesAngelidesandAvraamidessatisfied theschemeof service, whereas the applicants were only qualified under the proviso, the applicants were not entitled to compete withthe said interested partiesand, therefore, lack legitimate interest to challenge their promotion. The Commissionrightlyavoided comparison of these twointerested partieswith 2 0 the other candidates.
(2)Itisnowsettled thatthe provisions of Reg.9must be strictlycomplied with asa condition for thevalidityofconfidential reports.Reg.9castsaduty upon the countersigning officer to reason hisdisagreement witha reporting officer ifafter discussionofthe matterbetween thetwo,differences between 2 5 thempersist.Therewasnoneinthiscaseandforthatreasonnodutywascast onthe countersigning officer tofurnish any further reasons.
(3)The preparation and countersigning of a report by one and the same officer is permitted by the regulations (Reg. 3
(1)and 4(c)), whenever the hierarchical exigencies of the service make it unavoidable. This occurs 3 0 whenever the reporting officer is also the Head or Acting Head of the Department.
(4)The application ofs.44
(3)of the PublicService Lawisnot dependent on the possession on the part of the Head of the Department of personal knowledge of the candidates competing for promotion. It is part of the 3 5 supervisory duties of a Head of a Department to acquaint himself through official channels of the competency of the personnel of the department and of theirdevotion toduty;asindeed Mr.Christodoulou appearstohavedone in thiscase, resting h<srecommendations primarilyon the service recordof the candidates. 1606 40 3 C.L.R. Soteriades and Other· v. Republic
(5)In the light of the matenal before them it was certainly open to the respondentstochoose theinterested parties inpreference tothe applicants Recoursesdismissed Casesreferredto 5 Panayides ν Republic
(1973)3 C LR 378. Afxentiouv PSC (1973J3CLR 309, Republic ν Argyndes
(1987)3 CLR 1092 Karpasihsv Republic
(1986)3 CLR 1617, Charalambousν Republic
(1985)3 C LR 992, 10 Mettas ν Republic
(1985)3 C LR 250. HadjiVassiliouand Othersν TheRepublic
(1974)3 C LR 130 Recourses. Recourses against the decision of the respondent to promote the interested parties tothe post of Senior IndustrialOfficer inthe 15 Ministryof LabourandSocial Insuranceinpreference andinstead of theapplicants. _ A. S. Angelides, for applicants in Cases Nos. 671/85 and 777/
- N.Papaefstathiou,for applicant inCase No. 782/
- 20 P.Hadjidemetnou, for respondent. Cur. adv. vult. PIKISJ.readthefollowing judgment.Thethreerecoursesunder review raise separate challenges to the same administrative act whereby thefour interested parties, namely, M. Avraamides. Chr 25 Angelides, S. Pastos and Ph. Panayides, were promoted to the post of Senior Industnal Officer After receiving the report and recommendations of the Departmental Committee and hearing the views of the Head of the Department, namely, Mr. Christodoulou,theDirector-General oftheMinistryofLabour,the 30 respondents appointed: (a) M. Avraamides and Chr. Angelides as the only candidates who satisfied the scheme of service and were by the terms of it entitled topreference tothe exclusion of everybody else; and 1607 Pikis J. Soteriades and Others v. Republic
(1987)(b)S Pastos and Ph Panayides by reference to the proviso to the scheme of service entitling the respondents to fill any vacant posts resulting from theabsence of qualified candidates underthe scheme of srivice as best qualified compared toother candidates entitled to consideration under the proviso, including the three applicants 5 The promotion of Μ Avraamides and Chr Angelides is questioned on the ground that the Public Service Commission misconceived the facts relevant to their service in the post of Industnal Training Officer The scheme postulated as a necessary 10 qualification for promotion three years service in the post of Industnal Training Officer Only in the absence of candidates possessing that qualification could consideration be given to candidates having the qualifications envisaged in the proviso thereto If it is found that the two interested parties satisfied the 15 scheme of service the applicants, each one of them, were ineligible to compete with them and on that account would lack legitimate interest tochallenge theirpromotion The Public Service Commission nghtly avoided a companson between Μ Avraamides and Chr Angelides and the remaining 20 candidates considenng the scheme of service and the exclusive provisions of the pnncipal part of it Therefore, in relation to the promotion of the afore-mentioned interested parties, the only question that anses for determination iswhether they satisfied the scheme of service andwhether thedecision of the respondentsto 25 that end was a valid exercise of their discretionary powers Questions of comparative worth andissuesaffecting thevalidity of the confidential reports on interested party Pastos anse only in connection with the challenge of the promotion of the other interested parties We shall proceed first with an examination of 30 the eligibility of interested parties Μ Avraamides and Chr Angelides under the first part of the scheme of service and then address ourselves to questions affecting the validity of the appointment of the othertwo interested parties Μ Avraamides and Chr Angelides joined the government 35 service in the year 1978 on a temporary basis, the terms and conditions of theirservice being regulated by theircontract They were assigned dutiesintheappropnatedepartmentoftheMinistry of Labour corresponding to those subsequently associated with the duties of Industnal Training Officers In 1981 a law was 40 1608 3 C.L.R. Soterlades andOthers v.Republic PlklsJ. enacted, notablyLaw32/81,wherebyprovision wasmadeforthe creation ofthepostofIndustrialTrainingOfficer. Anotherlawwas promulgated on the same day designed to amend the ordinary and development budgets with a view to making appropriate 5 financial provision for the allocation of funds for the filling of the postsspecified therein,includingthatofIndustrialTraining Officer. Inthiswaythegroundwaspaved fortheadoption ofthe measures necessary to fillthe ;ost once provision fortheirfilling was made inthe Budget. 10 In the year following a law was enacted, the Temporary Civil Servants (Appointment to Public Positions) (Amendment) Law (Law 15/82),wherebyprovisionwasmadeforthe appointmentof temporary government personnel to positions in the public servicebroadly corresponding tothe dutiesthey had temporanly 15 performed. The law expressly empowered the Public Service Commission in making appointments regulated thereunder to give retrospective effect to them going back to the date of the enactment of the basic law. The object of this provision was to confer discretion upon the Public Service Commission to give 20 retroactive effect to appointments made pursuant to the provisionsofthe lawfrom thedateon whichprovision wasmade fortheestablishmentofthepoststobefilled.Providedalwaysthat theappointeeswereattheparticulartimeinthepublicserviceand performed dutiescorrespondingtothoseoftheposttowhich they 25 would be appointed. Sequentiallytotheabovelegislativedevelopments,theCouncil of Ministersapproved on 17thJune, 1982, thescheme ofservice wherebyappointmentscouldbemadetotheposition ofIndustrial Training Officer. Shortly afterwards, on 12.8.1982, M. 30 Avraamides and Chr. Angelides were appointed to the post of Industrial TrainingOfficer with effect from 10.7.1981.that is,the date on which the lawsmakingprovision for the post (32/81 and 33/81) were promulgated in the official Gazette. Reverting tothe sub judice decision, the respondents accepted the decision 35 relevant to their appointment on its face value and treated the service of the interested parties at the position of industnal TrainingOfficer ascommencing on 10thJuly, 1981.Counsel for the applicants contended this was wrong as the Public Service Commission lacked the necessary legal justification in 1982 to 1609 Pikls J. Soteriades and Others v. Republic
(1987)giveretroactive effect totheappointmentsof M. Avraamides and Chr. Angelides. Detailing the submission it is to the effect thatit was incompetent for the Public Service Commission to make a retrospective appointmenttoapostpriortoitsformalization bythe adoption of an appropriatescheme of service. Inan indirectway 5 we are required to review the validity of a decision of the Public Service Commission in thecontext of the fact finding process of ascertaining the length of service of interested parties at the position of Industrial Training Officer. Assuming this is at all possible, a proposition Ishould not be deemed as affirming, the 10 submission isill-founded andboundtofail inviewof theprinciple of administrative law thatby wayof exception tothe general rule itis permissible tomake retroactive appointmentstoapost inthe face of express statutory sanction*. Legislativeauthorizationfor theretroactive filling of thepost of 15 Industrial Training Officer was explicitly given by Law 15/82. Consequently the decision of the Public Service Commission of 12th August, 1982, supposing, Irepeat, if it is at all open tothis Courttoquery itsapparenteffect, was alegitimate exercise oftheir discretionary powers. A scheme of service, no doubt, is a 20 prerequisite for the filling of the post, but in no way seals the operative date from which appointment to a particular position may be effected. And intheface of explicit statutory authorityan appointment to a position can be made from a date prior to the approval of a scheme of service. All the more the retroactive 25 appointmentcould be made inviewof theactualdischarge byM. Avraamides and Chr.Angelides of thedutiesof IndustrialTraining Officer from the date of their effective appointment. In my judgment itwas attheleast reasonably opentotherespondentsto concludethatM.Avraamides and Chr.Angelides qualified under 30 thefirstleg of theschemeofservice andonthataccountthey were eligible for promotiontotheexclusion of anybody intheposition of theapplicants who did notsatisfy thatpart of thescheme. The promotion of theothertwo interested parties who like the applicants qualified underthe proviso tothescheme of service, is 35 challenged on the following grounds:- •Petnhs Panayides v.Republic {1973)3 C.L R.378 (FB);Afxenhou ν P.SC.
(1973)3 CLR309(A.Louou,J) 1610 3C.L.R. Soteriade·and Othersv.Republic PiLUJ. (a) Failure of respondents to address themselves tothe implicationsofalleged breach ofRule9ofthe Regulations*. (b)Failuretogivedue consideration tothefact thatsome ofthe confidential reportsononeoftheinterestedpartieswereprepared 5 and countersigned by oneandthesame person. (c)Incompetenceon be! alfof Mr.Christodoulou,theDirectoi of theMinistry,tomake recommendationsinthecapacityofHead of the Department. Lack of personal knowledge onhis partol candidates disentitling him,according to the contention oi 10 applicants, from making a recommendation.And, (d)Abuse and excessofpowers arising from failure on thepart of the respondents to appraise in a correct perspective the facts before themrelevanttothesuitability ofcandidatesforpromotion. The first two grounds enumerated above relate solely to the 15 appointment of Mr. Pastos, whereas the other twoaffect the validity of the decision toappoint both interested parties. The factual background isthat the confidential reports on interested party Pastos forthe year 1983 and 1984, the years immediately preceding the sub judice decision, though amended by the 20 countersigning officer, the fact was notexplicitly recorded onthe reports and more consequently no reasons were- given in explanation thereof as warranted byReg. 9. Itisnow settledthat the provisions of Reg. 9 must be strictly complied with asa condition for thevalidityofconfidential reports. This is the effect 25 ofthe recent decision ofthe FullBenchofthe Supreme Court in Republic v.Argyrides** acknowledging, inter alia, constitutional importance to Reg. 9 pertaining to equality of treatment Moreover, confidential reports are,as often pointed out,aprime pointer to the definition of the merits of an officer and 30 performance in the public service and as such cast as amatterof substance acorresponding duty on the Administration to adhere strictly to the provisions of the regulations relevant to their preparation. Evidence before the Court coming from Mr. Kapetanios, the 35 reporting officer, andMr.Demetriades, thecountersigning officer, *Qrcular491of2631979 "RA. 678 decided on 1161987, reported in
(1987)3CLR 1092 See alsoKarpasitis ν Republic
(1986)3CLR. 1617 1611 PikJs J. Soteriades and Others v. Republic
(1987)established thatthealterations of theassessment of theservicesof Mr Pastosweremadeafter anexchange ofviewsbetween thetwo and more significantly, agreement as to the justification of the alterations made. In those circumstances the ultimate rating recorded in the confidential reports reflected the consensus 5 between the two and made the reports the product of their combined assessment Inthose circumstances itwas unnecessary to provide reasons for the alterations for we are not truly concernedwith alterationsbutwithare-assessment of thevalueof the services of the party reported upon A duty is cast upon the 10 countersigning officer to reason disagreement with a reporting officer if after discussion of the matter between the two, differences between thempersist Therewas noneinthiscaseand for that reason no duty was cast on the countersigning officer to furnish any further reasons 15 Equally unsuccessful is the case for the applicants concerning thepreparationo*thereportsonMr Pastosfortheyears 1979 and 1980 The reports for both years were prepared and countersigned by one and the same officer This course is permitted by the regulations (Reg 3
(1)and 4(c)),whenever the 20 hierarchical exigencies of the service make itunavoidable* This occurs whenever the reporting officer is also the Head or Acting Head of the Department Nothing was placed before the respondents orthe Courtfor thatmattertosuggestthatthe officer who acted inthe dual capacity lacked authontytodo so. In view of the above, Iconclude that the respondents did not misconceive the facts relevant to the confidential reports on interested party Pastos, consequently, they could properly have regard to them in the discharge of their duty to fill the posts in question Objection was raised to the Director of the Ministry, Mr Chnstodoulou, imparting • his views and making a recommendationon thesuitability ofthecandidatesonaccountof lack of personal knowledge on his part and generally lack of adequate infomnation about the functioning of the Ministry He 35 had been ne.vly appointed to the position of a director and his knowledge about the personnel of the Ministry and their worth *Chara'smbousν Republic(1c>85) 3CLR 992 1612 30 3 C.L.R. Soteriadesand Others v.Republic PlklsJ. could notbutbe limited inviewof theshortness of theduration of hisserviceasdirectorof theMinistry Theapplication ofs 44
(3)of thePublicService Law isnotdependentonthepossession onthe partofthe Head of theDepartmentofpersonal knowledge ofthe 5 candidates competing for promotion Itispart ut the supervisory duties ofa Head ofa Department toacquaint himself through official channels of the competency of the personnel of the department and their devotion to duty, as indeed Mr Chnstodoulou appears to have done in this case restinghis 10 recommendations pnmanly on the sen.ice record ofthe candidates* Another objection to the participation ofMr Chnstodoulouin the selection process is that he uas notthe Head of the Department Itappears from thematenalbefore theCourtthatthe 15 Departmentwaswithout a Head atthe time onaccount ofthe retirement ofMr Protopapas and asfaraswe may gatherthe Director of the Ministry assumed direct responsibility for the managementotthatdepartmentforas longasthepostwas vacant Neitheroftheabove objections can succeed either 20 Lastly thevalidityofthe decision was questioned by reference tothementsof thecandidates Inthecontention of counsel forthe applicants the respondents overlooked the seniority of the applicants inthe service ordid not paysufficient heed to that factor Examination of the minutes of therespondents does 25 disclose that the seniority ofthe applicants was duly noticed but found insufficient totip the scales intheir favour in view ofthe mentsof theinterested partiesasemerging from their confidential reports In the light ofthe matenal before them, itwas certainly open totherespondents to choose theinterested partiesin 30 preference to the applicants Their decision isnot fraught either with a misappreciation or misconception ofthe facts relevantto the ments,qualifications orsenionty of thecandidates The three consolidated recourses fail and are dismissed The sub judice decision isaffirmed pursuant to the provisions ofArt 35 146 4(a) Recoursesdismissed *Metlasv Republic
(1985)3CLR 250DemetnosHadii Vassiliou& Others,ν IheRepuNn
(1974)3CLR 130 1613