(1987)1987November4 IPIKIS J ] INTHE MATTEROFARTICLE 146OF THE CONSTITUTION ARGYROA PAPATRYPHONOS Applicant ν T H E REPUBLIC O F CYPRUS T H R O U G H T H E P U B L I C SERVICE C O M M I S S I O N Respondent (Case No 702/cib) Public Officers — Promotions — Confidential reports Cmulir 491/7'/ governing their preparation - Pules J{1) and 9 Head cl Department acting asa countersigning officer, failed to fill part V of the report, but filled Part VI thereof — Part VIshould only befilled by theHead ι>t tin· Department if he is not the countersigning officer As the Head <>l the Department Γ) disagreed with the reporting officet there has been a hie,uh t>l Heii '> Therefore the report is tainted with illegality and ι·> contain.'UiAit JSut the Constitution - In the absenceofan indication to the contmiv the p<'nihility that the report was in fact taken into consideration cannot be excluded Whether taking into account a reportprepared in breachof Reg 9inevitably 10 leads to the annulment of the final actofpromotion — Question answered in the negative — In each case the Court should consider the impact of the impropriety on the final decision By means of this recourse the applicant challenges the promotion ol the interested party to the post of Industrial Officer A 1Γϊ fhe «ipplictint was not amrincj those recommended l>y lh.' Deportment,il Board She complains that the decisionof theBoard isnotduly reasoned,and that her confidential report for 1979 was prepdied in a manner contrary to Circular 491/79 The countersigningofficer,whowas. also,theHead ofthe(Department did not fill part V of the report for that year, but he made observations in part VI. expressing the view that applicant should have been rated as «good- instead of -very good» a rate given to her bythe reportingofficer The Court having foundthat thedecisionof the Boardw«r»duly rvtismn .1 1882 20 3 C.L.R. c ^ Papatryphonoa v. Republic Held, dismissing the recourse
(1)Rule 3
(1)of Circular 491 of 1979 governing the preparation and submission of confidential reports, requires that every confidential report should be filled by the reporting and the countersigning officer As thespecimen form of confidential reportsattached tothecircularspecifically states, columnVIshould only be filled by theHead of theDepartment if hedoes nothappentobethecountersigningofficer The inevitable inference is that the relevant provisions of the circular were not heeded The omission of the countersigning officer to make an assessment in his suchcapacity coupled with hiscommentsinPartVIresulted inbreach of Reg 9. laying down a stnct procedure to be followed in case of disagreement between thecountersigning and thereporting officer
(2)It follows that the report for 1979 is tainted with illegality and contravenes the provisions of Art 28 of the Constitution {Republic ν Argyndesi 1987J3CLR 1092)
(3)Intheabsence of aspecific recordtothecontrary thepossibility thatthe Departmental Board or the Public Service Commission were influenced by thecommentsof thecountersigning officer cannotbe ruledout
(4)However on thetotalityof thematenalbefore theCourt,the inference isthatthetaking intoaccountof thesaid reportwas immatenalinviewof the overall effect of therecord of theapplicantand thatof the interested party 2.Z3 The decision in Argyndes (supra) does not compel the Court to set aside every decisionof the PublicService Commission,where aconfidential report was improperlyprepared,independentlyof the impactof thatimpropnetyon thefinal decision Sotoholdwould leadtheCourttoannullingeverydecision of theappointingbody irrespective of the remoteness in point of time,of an irregulanty thatoccurred inthepreparationof aconfidential report Recourse dismissed Casesreferredto Republic ν Argyndes [\987) 3 CLR 30 1092. Papantomou andAnother ν TheRepublic
(1983)3C LR 64. PSC ν Papaonisirbrou
(1984)3CLR 370 Recourse. Recourse against the decision of the respondents to promote theinterestedpartytothepostof Industnal Officer Ain preference 35 and instead of theapplicant. K.Stavrinou, for the interested party. P.Hadjidemetriou, for therespondent. 1883 Papatryphonos v. Republic
(1987)G. Triantafyllides, for the interested party. Cur. adv. vult. PIKIS J. read the following judgment. The applicant, the interested party and four other Industrial Officers were candidates . for promotion to the post of Industrial Officer Ά'. The 5 Departmental Committee, chaired by the Director-General of the Ministry and manned by senior officers of the Department of Industry, recommended the interested party Y. Kontos and V. Lambrou asthe candidates bestqualified forappointment.Two of the six candidates were excluded as ineligible for promotion for 10 lackofthe necessary qualifications,whereastheapplicantand one other candidate, though qualified, were not recommended upon consideration of the relative merits of the four candidates. The Public Service Commission adoptedthe recommendations of the Departmental Committee on review of the data bearing on 15 the worth of the candidates and thereafter confined the selection process to the interested party and V. Lambrou. Ultimately, they chose the interested party whose service record was, on an objective view, better than that of the other contestant. Applicant challenges the promotion of the interested party for 20 two reasons: (
- a)Lack of due reasoning of the decision of the Departmental Committee pertaining to the recommendation of the interested party and the exclusion of the applicant; and (
- b)Impropriety or illegality attendant to the preparation of the 25 confidential report on the applicant for theyear 1979 vitiating the decision of both the Departmental Committee and that following thereon of the Public Service Commission. On the initiative of counsel for the Republic an ambiguity relevant to the confidential report on the interested party for the 30 year 1983 was clarified by the evidence of Mr. Paschalis who countersigned the report on Y. Kontos for that year. He testified that before expressing his disagreement to the evaluation of the services of the reportee by the reporting officer and making the comments appearing under column V of the confidential report, 35 he had a consultation with the reportingofficer,an exchange that did not bridge differences in the assessment of the two officers. Differences in the assessment of the two officers persisted and 1884 3 C.L.R. Papatrvphonoa v. Republic PUde J. were duly reflected in the confidential report I accept that the eventsnarrated byMr Paschahsrepresent an accurateaccountof what had preceded the report of the countersigning officer In their report the Departmental Committee minuted the 5 reasonsthatledtotherecommendation oftheinterestedpartyand V Lambrou They turned on an evaluation oftheir service record and the statutory critena for the evaluation of the suitability of candidates for promotion They had personal knowledge too of the performance of the candidates atwork, aview that coincided 10 withthe objective data beanng onthecandidates Inmyjudgment theirrecommendation cannotbefaulted forlackofdue reasoning What remains to decide iswhether their recommendation and subsequently the decision of the Public Service Commission is liabletobe set aside for the evident irregulanty inthe preparation 15 of the confidential report of the applicant for the year 1979 The reporting officer made an overall assessment oftheservicesof the applicant as «verygood» The countersigning officer, namely,Mr Ehades, the then Director-General of the Ministry of Commerce and Industry, omitted to fill the column reserved for the 20 countersigning officer which remained blank Instead he made certain commentsandsignedpartVIofthereportreserved for the Head of the Department Mr Tnantafyllides for the interested party submitted that as Mr Ehades was both the countersigning officer and the Head of the Department, he was under no 25 obligation to fill column Vof the report Idisagree Rule 3
(1)of Circular 491 of 1979, governing the preparation and submission of confidential reports, requires that every confidential report should be filled by the reporting and the countersigning officer Subsequent provisions of the circular indicate who those officers 30 should be The Head of the Department may, if he is not the countersigning officer makeasupplementary report, though one would expect that such report would normally be of a general character reflecting circumstances of work in hisdepartment and the contnbution of the particular section to the attainment of the 35 objectives of the Ministry As the specimen form of confidential reports attached to the circular specifically states, column VI shouldonlybefilled bytheHead oftheDepartment ifhedoes not happen tobe the countersigning officer The inevitable inference isthat the relevant provisions of the circular were not heeded Of 40 still greater significance are the comments made by the countersigning officer under column VI He expressed the view 1885 Piki*j. Papatryphonoa v. Republic
(1987)that theassessment oftheapplicant waslenientandthatinhisview his work should be graded as «good», not «very good». The omission of Mr.Eliadestomakean assessment oftheapplicantin the capacity of a countersigning officer, coupled with the comments made under column VIinevitably resulted inbreach of 5 Regulation 9ofthecircularlayingdownan inflexible procedure to be followed in every case where the countersigning officer disagrees with the assessment made by the reporting officer concerning the value of theservices of the person reported upon. In Republic v. Argyrides* the Full Bench decided that strict 10 observance of the provisions of Regulation 9 of the circular pertaining to confidential reports isa condition precedent to their validity and that any departure therefrom taints the report with illegality and results in breach of the provisions of Art. 28 safeguarding equality before theadministration. Andinasmuch as 15 the confidential report wasamaterialfactor forthedecision of the appointing body, the decision wasannulled for misconception of the facts recorded in the confidential report. Time and again Courts took pains to stress that confidential reportsare a principal sourceof information about themeritsofa 20 candidate and devotion todutyandareinmanyrespects definitive of the claims of a candidate to promotion. As I explained in a separate concurringjudgment inthe case ofArgyrides (supra) the invalidity of a confidential report must invariably be correlated to the impact the invalid report had onthedecision oftheappointing 25 body.Mr.Hadjidemetriou suggested that inthiscaseitcould have had no impact considering that the evaluation of the reporting officer was not formally modified. Icannot agree with that for in the absence of a specific record that this isthe view taken of the confidential reportontheapplicantfortheyear1979,eitherbythe 30 Departmental Committee or the Public Service Commission, I cannot rule out the possibility that they were influenced by the comments of the countersigning officer. Likewise I consider the decision in Papantoniou and Another v. Republic** and the decision affirming it on appeal P.S.C. v. Papaonisiforou***, as 35 having no bearing on the outcome of this case. In that case the countersigning officer instead of recording his evaluation of the servicesof the person reported upon, he madea comment to the effect that the reporting officer had a tendency tobe lenientinhis •(I987)3C.L.R.1092. ··
(1983)3C.L.R64. **·
(1984)3C.L.R.370. 1886 3 C.L.R. Papatryphonoa v. Republic Pikla J. evaluations In this case the effect of the comment of Mr Ehade* waswholly different hevoiced disagreement with the assessment of the reporting officer taking the view that it was lenient and proceeded torecord hisown assessment diffenng from that of the 5 reporting officer The ultimate question not an easy one. turns on the implications stemming from breach of Reg 9 of the circular governing the preparation of confidential reports (Circular 491of 1979) Inthe light of our caselaw the report had been improperly 10 prepared and on thataccount oughttohavebeen ignored, atleast thatpart ofitthat disclosed theviewsofthecountersigning officer Inthe absence of any indication to that end in the minutes of the Departmental Committee and later inthose of the Public Service Commission. Icannotpresume thattheyignored thecommentsof 1^ Mr Ehades Therefore, thereport wastainted withillegalityanda-. such ought tohave been ignored The next question we must resolve concerns the implications stemming from taking into account the confidential report of the applicant for the year 1979 On a consideration of the material 20 before methe inevitableanswer isthat itwasimmatenal inviewof the overall effect of the record of the applicant and that of the interested party The Public Service Commission founded its decision on aconsideration oftheservicerecordofthe candidates for the post Assuming that the report for the year 1979 was not 30 fraught with illegality and the rating of the applicant was not diminished by the remarks of the Director-General, the picture with regard to the applicant as compared to the interested party wouldremainunaffected Theinterestedpartywasoverwhelmingly better in terms of ment and enjoyed seniority over her in the 25 service aswell Acomparison of the assessment of the servicesof the applicant for the years following her appointment to the position immediately preceding that to which she was seeking promotion with the corresponding reports of the interested party. leaves no doubt that the interested party performed considerably 35 better than her at work It is clear from the decision of the respondents thattheyattached, asthey were entitledto. particular importance torecent reportson the parties, a fact that made their decision topromote the interested party inevitable The decision inArgyndes (supra)does not compel theCourt to 40 set aside every decision of the Public Service Commission where a confidential report was improperly prepared independently of 1887 POd» J. Papatryphonos v.Republic
(1987)the impact of that impropriety·on the final decision. So to hold wouldleadtheCourttoannullingeverydecisionoftheappointing body irrespective of the remoteness in point of time, of an irregularity that occurred in the preparation of a confidential report. That is not the spirit of the effect of the decision in 5 Argyrides. The misconception of the facts relevant to the performance oftheapplicantintheyear 1979wasintheeventan inconsequential factorforthedecisionoftherespondentsandon thataccountthemisconception oftherelevantfactsonthepartof theP.S.C.wasimmaterial. Therecourseisdismissed.Thesubjudicedecisionisconfirmed pursuant totheprovisionsofArt.146.4(a)oftheConstitution. Recoursedismissed. Noorderastocosts. 1888 10