(1987)1985June22 ITRIANTAFYLUDES,P.) INTHEMATTEROFARTICLE146OFTHECONSTITUTION ANTONISKOUFETTAS, Applicant, v. THEREPUBLICOFCYPRUS,THROUGH THEPUBLICSERVICECOMMISSION, Respondent. . (CaseNo. 489/82). NaturalJustice—Bias—PublicOfficers—Promotions—Confidentialreports— Allegation thatreportingofficerwasbiased—Principlesapplicable—Filing ofrecoursesbyapplicantagainstpastpromotionsofreportingofficerdoesnot automaticallyestablishbias. Public Officers — Promotions — Qualifications — Applicant had higher 5 qualificationsthan theinterestedparty, butthelatterhadbetterconfidential reportsandwasseniortotheapplicantandwasrecommendedforpromotion bytheHeadoftheDepartment—In thecircumstancessubjudicedecision wasreasonablyopen totherespondent.' Theapplicantchallengesthepromotionoftheinterestedpartytothepost 10 ofLandsOfficer, 1stGrade{SurveyBranch)intheDepartmentofLandsand Surveysonthefollowinggrounds,namely: (a)The preparation of confidential reports abouthimbyA.Pantazis,as reporting officer, and byA.Christofis, the Director of the Department, as countersigningofficer,wastaintedbybiasagainsthim. 15 1 (b)FilingbytheapplicantofrecourseagainstpastpromotionsofPantazis automaticallymakesthelatterabiasedreportingofficer. (c)The Commission rejected the complaints about biaswithouthaving heardtheapplicantandwithouthavinggivensufficientreasonsforitsdecision torejecthiscomplaints. (d)Pantazis,whosignedapplicant'sconfidential reportfor 1980,wasnot applicant'ssuperior,becausehispromotiontothepostofSeniorSurveyor wasannulledon22.5.80. 1614 2U 3 C.L.R. Koufettas v. Republic (e)Applicant'squalifications weresupenortothoseoftheinterestedparty 5 Held, dismissing the recourse
(1)In the light of the matenal before the Court and of the dicta mChnstou ν TheRepublic
(1980)3 C LR 437 this Court cannot interfere with the Commission's conclusion relating to the complaintsof bias Themeretiling by theapplicantof recoursesagainst past promotions of Pantazisdoes notautomatically make hima biased reporting officer 10
(2)The Commission was notbound to hear theapplicant,because ithad before it applicant's letters expounding on his complaints The rejection of such complaintswas duly reasoned 15
(3)When Pantazissigned the report for 1980 (8 181) he was onceagain holding the post of Senior Surveyor, because, following the annulmentof 22 5 80, thematterwas reconsidered by the Commission andby adecision takenbefore theendof 1980 hewas onceagainpromotedtothesaid postas from 1 1 78
(4)The higher qualifications of the applicant did not tilt the scales in his favour because of the interested party's senionty. his better confidential reports and the recommendationsof the Headof the Department The sub judice actwas reasonably open tothe Commission 20 Recoursedismissed No orderastocosts Casesreferredto Chnstouν Republic
(1980)3 CLR 437 Recourse. 25 Recourse against thedecision of therespondent topromotethe interested party to the post of Lands Officer, 1st Grade (Survey Branch) in the Department of Lands and Surveys, in preference and instead of the applicant C.Loizou, for the applicant. 30 /V. Charalambous, Senior Counsel of the Republic, for the respondent. Cur adv vult TRIANTAFYLUDESP.readthefollowingjudgment. By means of thepresent recourse theapplicantchallenges thedecision of the respondent Public Service Commission to promote, instead of 35 him,M.Kyprianou (tobe referred tohereinafter as the «interested 1615 Trlantafyllides P. Koufeltas v. Republic
(1987)party») tothepost of LandsOfficer, 1st Grade(Survey Branch),in theDepartentofLandsandSurveys, asfrom the1stAugust
- The sub judice decision of the respondent Commission was reached on the 16th July
- In the process of reaching such decision the Commission 5 considered a written complaint of the· applicant that the preparation of confidential reports about him by A. Pantazis as reporting officer, and by A. Christofis, the Director of the Department, as countersigning, officer, were tainted by bias against him. The Commission, however, having examined the 10 material which was placed before it,reached the conclusion that thesaid complaintshadnotbeen substantiated. In Chnstou v. TheRepublic,
(1980)3 C.L.R.437, the following were stated (atpp. 449,450): «Itis a basic principle of administrative law thatthe organs 15 participating in a particular administrative process must appear to act with impartiality and this cannot be so when there exist any special ties or relationship which admittedly relate to the persons involved in the said process or to its outcome (see, interalia, the Decision of the Councilof State 20 in Greece incase 3350/1970). The lack of impartiality by public officer A against public officer Β must be established, with sufficient certainty, either by facts emerging from relevant administrative records or by safe inferences tobedrawn from theexistence of such facts, it 25 is not,for example, sufficient, by itself, in order toprove lack of impartiality ofAtowards B, thefactAhasmade,inthepast, in the course of the proper exercise of his official duties, adverse confidential reports in respect of B, or that A has otherwise expressed officially an adverse view regarding Β 30 with the result that Βhas instituted legal proceedings inthis connection against A,orthatΒhasgiven inthepast evidence eitherin a criminal trial or disciplinary proceedings againstA (see, interalia, the Decisions of theGreekCouncilof Statein Cases 2905/1965, 1014/1969 and 975/1970, as well as 35 Soiea v. TheRepublic,
(1974)3 C.L.R.498». Inthe light of the above dicta and of all the materialbefore me Iam of the opinion that Ishould not interfere with the aforesaid conclusion of the Commission. In particular, Icannotaccept,in 1616 3 C.L.R. 5 Koufettas v.Republic Triantafyllides P. the absence of any facts actually substantiating the allegation of biason the partofPantazis,thatthe merefiling bytheapplicantof recoursesagainst pastpromotions ofPantazisautomatically made him a biased reporting officer in so tar as the applicant was concerned. Counsel for the applicant has argued that the Commission rejected the applicant's complaints about bias on the part of his superiors without having heard the applicant and without having givensufficient reasonsfor itsdecision toreject hiscomplaints. 10 Inview of the fact that the Commission had before itlettersof theapplicant inwhich hehad expounded fully hissaid complaints I do not think that the Commission was bound to hear the applicant, too. Furthermore, I am of the view that from the contents of the relevant minutes of the Commission, as 15 supplemented by relevant administrative records, there can be derived adequately the reasons of the Commission for rejecting the applicant's complaints. Anotner argument which was put forward by counsel for the applicant is that the confidential report about the applicant for 20 1980 could notbe lawfully signed byPantazis,asasuperior ofthe applicant,sincehisownpromotion tothepostofSeniorSurveyor, from the post ofSurveyor, 1stGrade,whichwasthepostatwhich the applicant was at the material time, wasannulled on the 22nd May 1980 as a result of a recourse filed by the applicant (see 25 Koufettas v. The Republic
(1980)3 C.L.R. 226). From the material before me it appears that the Commission reconsidered the matter of the annulment of the promotion of Pantazis and decided, before the end of 1980, to promote him again, retrospectively, asfrom the 1stJanuary 1978,tothepostof 30 Senior Surveyor. So, when Pantazissigned asareporting officer, on the 8th January 1981, the confidential report about the applicant forthe year 1980he washoldingonce again thepostof Senior Surveyor and could lawfully act as a reporting officer in relation tothe applicant. 35 Counsel for the applicant has submitted that, in view of the higherqualifications oftheapplicant,therespondent Commission bypromotingtheinterestedpartyfailedtoselectforpromotion the best candidate. 1617 Trlantafylllde· P. Koufettas v.Republic
(1987)Thequalifications ofthecandidatesareamongthecriteriatobe taken into account, inaccordance withsection 44
(2)ofthe Public Service Law, 1967 (Law33/67),ineffecting promotions and,asit appearsfrom therelevantminutesoftherespondent Commission particular reference was,indeed, made tothe qualifications ofthe 5 applicant; but, apparently, due to the seniority of the interested party (asfrom the 1stJune 1968) over the applicant (asfrom the 15th May 1979) in the post ofSenior Surveyor, from which both ofthem were promoted togethertothepostofLandsOfficer, 2nd Grade (as from the 15th January, 1982), due to the better 10 confidential reportsoftheinterested partyand due tothe fact that he was recommended for promotion by the Director of the Department, the higher qualifications of the applicant did not tilt the scales in hisfavour. Iam quite satisfied, inthe circumstances, that the sub judice decision to promote the interested party was 15 reasonably open to the respondent Commission and that the applicant has not discharged the burden of satisfying this Court thatthe Commission hasfailed initsparamount dutytoselectthe mostsuitable candidate. The present recourse, therefore, fails and has to be dismissed; 20 butwith no order astoitscosts. Recourse dismissed. No orderasto costs. 1618