(1987)1987March 21 [DEMErRIADESJ] INTHEMATTER OFARTICLE 146 OFTHECONSTITUTION STAVROSOTHONOS ANDANOTHER, Applicants, ν THEREPUBLICOFCYPRUS,THROUGH THEPUBLICSERVICECOMMISSION, Respondents (CasesNos 335/82and347/82) PublicOfficers—Promotions —Confidentialreports— Instanceswheretherepor tingandcountersigningofficercanbeone andthesameperson —Theadmi nistrativeCircular491/79 PublicOfficers—Promotions—Bias—Allegation inrespectof,onpart ofsupenor officer —Must beestablishedwithcertaintyto thesatisfaction ofthe Court andmust emanatefromfactsmofficialrecordsorinferencesdrawnfromsuch facts 5 Public Officers — Promotions — Confidential reports — <Adverse* —Non communication toofficer concerned—Effect PublicOfficers—Promotions—Head ofDepartment—Recommendations of— HeadofDepartment actingbothasareportingandasacountersigningofficer —Stillentitledtomakehisrecommendabon totherespondent Commission 10 Public Officers—Promobons —DepartmentalCommittee —Recommended in alphabeticalorder bothapplicantsandtheinterestedparties—Allegation of failureto takeintoaccountwhole careerofcandidates—Even,ifaccepted, J 5 theirregulantyisinthecircumstancesofanimmaterialnature Publicofficers—Promobons—Qualifications—Higher qualificationsnotrequir ed byscheme ofservice —Inthecircumstancesdonotoutweigh seniontyof interestedparty PublicOfficers—Promobuns—Senionty—Six byItselftoleadto annulment months'senionty—Not sufficient PubbcOfficers—Promotions—Judicial control—Pnnciples applicable The two applicants inthis recourse challenge thepromotions ofthe two interestedpartiestothepostofSeniorElectricalEngineerintheElectricaland 362 20 3C.L.R. 5 10 15 20 25 Othonoa a\Another v. Rep«bHc Mechanical Service of the Ministry of Communications and Works on the following grounds,namely {a)Invalidity oftheconfidential reportsinthatthe reportingandcountersigning officer was oneandthesameperson,having no direct or indirect knowledge of their performance and being prejudiced against themandwho,also,asHeadof theDepartmentrecommendedtothe respondentsthepromotionof theinterested parties, (b)Failureonthepartof the same officer to communicate to the applicants an «adverse» view in respect of their performance, (c) Failure on the part of the Departmental Board totake intoconsideration thewhole career of thecandidates,and(d) Supenonty of the applicants over the interested parties, inparticular onac count of higher qualifications than interested party Chnstodouhdes and six months' senionty tointerested party Sawides Held, dismissing the recourses
(1)It is clear that paragraph 3 of the administrative circular 491/79. governing the preparation of confidential reports, envisages instances where either by reason of the structure of a Ministry, Departmentor Office or by reason of particular circumstances ata giventime,thereportingandcountersigning officer may beoneandthesame person In the circumstances of this case, where there was no immediate supenor to theapplicants and there could notbe such one,the Headof the Departmentactedproperly andinaccordancewithpara 4ofthesaidcircular He had general supervision of the service and sufficient knowledge of applicants' performance Interested party Chnstodouhdes, who, at the matenaltime,was exercisinghigherdutiesassignedtohimby theHeadofthe Department, could not have acted as reporting officer as he was himself a candidatefor promotiontothesub judice post
(2)The Head of the Department was entitled to appear and make his recommendations before the respondents 30
(3)An allegation of lack of impartiality and bias on the part of a supenor officer must be established with sufficient certainty to the satisfaction of the Courtfrom facts emanating from official recordsorby safe inferences drawn from such facts The allegations of the applicants inrespect of biaswerenot thus substantiated 35
(4)Non communication to the officer concerned of an «adverse» report cannot lead to the annulment of promotions As stated in Christouν The Republic
(1985)3 CLR 2237 the question in each case is whether such failure depnved the Commission from conducting a due inquiry The isnot the case here
(5)The DepartmentalCommitteerecommended both the appbcantBand the Interestedparties inalphabetical order,and,therefore,any irregulartly in 363 Otboflto* ft Another v. Republic
(1987)not taking,as alleged, thewhole career of the candidates intoaccountisnot of a matenalnature
(6)The possession of higher qualifications, which, however, were not required under the scheme of service, could not outweigh the senionty of interested party Chnstodouhdesover theapplicants 5
(7)The senionty of applicants to interested party Sawides was comparatively short and cannot lead to annulment,the more so because of Sawides' supenonty in the last two confidential reports and the recommendations of the Headof the Departmentinhis favour
(8)Inthe light of all circumstances thesub judice decision was reasonably 1 0 open totherespondents ThisCourtcannotsubstitute itsdiscretion tothatof the respondents, unless thelatterexceeded theouterlimitsof theirdiscretion or wrongly exercised it Recoursedismissed No orderas to costs 15 Casesreferredto Georghiadesv TheRepublic[1982)3C LR 16, Themistocleous ν TheRepublic
(1985)3 C L R 2652; Sawa ν TheRepublic
(1985)3 C LR 694, Charalambidesν TheRepublic
(1985)3 C LR 992, 20 Chnstouv TheRepublic
(1980)3 C L R 437, Kontememotisν CBC
(1982)3C LR 1027, Tantasv TheRepublic
(1983)3 C L R 1430, Chnstouv TheRepublic
(1985)3 CLR 2237 Recourses. 25 Recourses against thedecision of therespondents topromote the interested parties to the post of Senior Electrical and MechanicalEngineerinpreference andinsteadof theapplicants. A. S.Angelides, fortheapplicants. G.Erotocritou(Mrs.), SeniorCounselof theRepublic,for the 30 respondents. Cur. adv. vult, 364 3 C.L.R. Othonoe tt Anotherv. Republic DEMETRIADESJ. readthefollowingjudgment. Bytheirabove intituledrecoursesthetwoapplicantsarechallengingthedecision of the respondents by which Mr. G. Christodoulou and Mr. L. Sawides (hereinafter referred to as «the interested parties») were 5 promoted, instead of them, to the post of Senior Electrical Engineer, inthe Electrical and Mechanical Service of the Ministry ofCommunications andWorks. The post withwhich we are concerned isa promotion post. As there were two vacant posts, for which the Ministry of 10 Finance had given its approval for their filling, a Departmental Committee was set up in order to recommend to the Public Service Commission forpromotion candidates that possessed the required,undertherelevantschemeofservice,qualifications.This Committeewassetupinviewoftheprovisionsofsection36ofthe 15 PublicService Law, 1967 (Law33/67). The Committee met on the 10th June, 1982 and, after it examined the qualifications of the seven candidates that had applied for promotion to the post, decided that only the two applicants and the two interested parties possessed the required 20 bythescheme ofservicequalifications.TheCommitteethen, after evaluating the qualifications of the four candidates, their confidential reportsfor theprevious twoyearsandtheir seniority, recommended all four of them, in alphabetical order, for promotion. 25 On the 6th July, 1982, the respondent Commission met and after hearing the views and recommendations of Mr. Phedias Ectorides, the Director of the Electrical and Mechanical Service, proceeded to make, in his absence, their own assessment of the candidates. The Commission then, after they compared the •30 candidates amongst them and evaluated them and after having considered all relevant material from the personal and confidential report files of the candidates, the report of the DepartmentalCommittee,theviewsand recommendations ofthe Director of the Electrical and Mechanical Service, found that, on 35 the basis of the established criteria as a whole, namely merits, qualifications andseniority,theinterestedpartiesweresuperiorto the applicants and decided to promote them to the permanent postof Senior Electrical Engineer asfrom the 15thJuly, 1982. 365 Demetriades J . Otfaonoe & Another v. Republic
(1987)Counsel for the applicants contended that the confidential reports of the applicants were invalid as they were irregularly prepared and, therefore, the sub judice promotions which were based, amongst other criteria,onthecontentsofsuch confidential reports,should be annulled. It is well settled that the confidential reports are intermediate acts and that the ascertainment of their invalidity leads to the annulment of anysubsequent administrative action ofwhich they form a legal prerequisite (see, inter alia, Georghiades v. The Republic,
(1982)3 C.L.R. 16, 28 and Themistocleous v. The 10 Republic,
(1985)3 C.L.R. 2652,2664). The submissions of counsel for the applicantsonthisissue may be summarized as follows: That the Director ofthe Electrical and Mechanical Service Mr. Ectorides could not have prepared the confidential reports in that he did not have direct or indirect 15 supervision of their work and, therefore, he could not possess direct knowledge of their performance; that besides being the reporting officer he was, also, the countersigning officer and the person who appeared before the PublicService Commission and made the recommendations about the candidates; and thatthere 20 was, on his part, lack of impartiality and prejudice against the applicants. Counsel further submitted that Mr. Ectorides was biased against the applicants and that because of his bias the confidential reports prepared by him, as well as his recommendations before theCommission,shouldbedisregarded 25 (because they lead to the invalidity of the whole administrative process and the annulment of thesubjudice promotions). Regarding the manner and the procedure which has to be followed by various departments, ministries and independent services inthe preparation of the confidential reports, reference 30 .was made by counsel for the applicants to administrative circular 491/79, under the provisions of paragraph
(4)of which the confidential reportsmustbepreparedbyareportingofficer whois superiorinranktothe person concerned and who,becauseofhis duties, is supervising his work and has, therefore, direct 35 knowledgeoftheperformance and theabilitiesofhissubordinate officer and could express aresponsible opinion about him inthis 366 5 3CUR. Othonos &Another v. Republic Demetrladea J. respect Further that the countersigning officer must be the immediatesupenorofthereportingofficersupervisingofficer, and that in ministnqs, independent offices or services in which the Head thereof has direct knowledge of the work of the officer 5 concerned, the reporting officer may be the Head thereof In accordance with paragraph
(3)of the aforesaid circular, the confidential reports are prepared by reporting officers and are countersigned by countersigning officers except incasesinwhich thereportingofficer and thecountersigning officer isone and the 10 same person From the contents of paragraph
(3)of this circular, it emerges clearly that there may be instances in government departments, ministnes or independent offices where either because of their structure or of particular circumstances which may exist in the 15 service dunng a given penod, the reporting and countersigning officer maybe one and thesame person What has, therefore, to be decided in the present case is whether the Head of the Electncal and Mechanical Service had acted properly and inaccord with the provisionsof paragraph
(4)20 oftherelevant circular It appears from the evidence adduced, oral and affidavit, and from the addresses of counsel on both sides, that at the matsnal time there was no immediate supenor to the applicants in the service and, actually, there could not be such one because the 25 applicantswereholdingthepostof Electncal Engineer 1stGrade and they were candidates for the post of Senior Electncal Engineer, to which the immediate supenor post is that of the Director ofthe Service Interested party Chnstodouhdes, who had direct knowledgeof 30 the work of the applicants, because, at the matenal time,he was exercisinghigherdutiesassigned tohimbytheDirector, inthat he wasthe co-ordinator of the Electrical Department and the liaison between the other three candidates and the Director, could not have prepared the confidential reports in respect of the other 35 interested party and the two applicants, because he was holding the same post with them and he washimself tooa candidate for promotion tosuch higher post Fromallrelevant matenalwhichwasplaced before me,Iamof the opinion that the Director of the Service had a general 367 DemetrladesJ . Othoooe & Another v.Republic
(1987)supervision of theservice,that he must havesufficient knowledge about the performance ofhisimmediatesubordinate officers, that he was well acquainted, from various sources, about the manner inwhich the worksinhisservicewere executed and that hewasin a position to prepare the confidential reports in respect of them. 5 Strict compliance with the provisions of paragraph
(4)of the circularcould nothave been observed because ofthestructureof the Department and theposition held, atthematerial time, bythe applicants in the present case. In this respect useful reference may be made to the cases of 10 5aiVa v. The Republic,
(1985)3 C.L.R. 694, 707 and Charalambidesv. TheRepublic,
(1985)3C.L.R. 992,1002-1005. Mr.Ectorides,astheDirectoroftheService,wasfully entitledto appear before the PublicService Commission, expresshis views and make hisrecommendations about the candidates concerned. 15 Therefore, I find that the confidential reports were rightly prepared byhim,thathecould,atthesametime,actasareporting and countersigning officer andthathewastheperson responsible toappearbeforetheCommissionastheHeadofhisDepartment. Regarding now the allegation put forward by counsel for the 20 applicants that Mr. Ectorides was prejudiced and biased against them, ithasbeen judicially established that thelackof impartiality and bias on the part of a superior officer against his subordinates must be established with sufficient certainty to the satisfaction of the Court from facts emanating from official records or by safe 25 inferences drawn from such facts (see, inter alia, Christou v. The Republic,
(1980)3C.L.R.437,449, Kontemeniotis v.The Cyprus Broadcasting Corporation,
(1982)3 C.L.R. 1027, 1034 and the Charalambides case, supra, 1006). Inthe present case thesubmission of counsel fortheapplicants 30 that Mr.Ectorideswasprejudiced orbiased againstthe applicants isnotsubstantiated or established with the certainty required, nor can it be safely inferred from the facts and instances to which counsel hasreferred. Therefore, theallegationthatthecontentsof the confidential reports, as well as his recommendations before 35 the Commission, should have been disregarded, fails. Nor canI accept that the alleged non communication to the applicants, by Mr.Ectorides of an adverseview,inrespect oftheir performance, orhisfailure tocautionthemaboutpossibleomissionsordefaults, prejudiced the interests of the applicants to such an extent and 40 368 3 C.L.R. Othonos &Another v.Republic Demetrlades J. constituted on the part of him a violation of the provisions of the relevant circular with the result that the confidential reports prepared by him should have been ignored because of partiality and prejudice against them. 5 Ina number of cases ofthisCourt ithasbeen decided that non communication of an «adverse» report cannot lead to the annulment of the sub judice decision (see, inter alia, Kontemeniotis, supra, 1033,1034, Tantasv. TheRepublic,
(1983)3 C.L.R. 1430,1436,1437 and Christouv. TheRepublic,
(1985)10 3 C.L.R. 2237,2242). In Christoucase, supra, itisstated (atp. 2243) that what has to be examined by the Court in respect of the failure of a Head of Department to communicate to a candidate for promotion an adverse comment made about him,iswhether or not such failure 15 deprived the Commission from conducting a due inquiry into a material aspect of the case. This isnot so in the present case and Idismissthe grounds for annulment of the sub judice decision based on the aforesaid allegationsof counsel forthe applicants. 20 Another complaint of counsel for the applicants isto the effect thatthe DepartmentalCommittee,inpreparingitsreport, wrongly tookintoaccountonlythelasttwoconfidential reportsandnotthe whole career ofthecandidates.EvenifIacceptthatthe complaint of counsel for the applicants iswellfounded, hisargument could 25 not be driven any further because the Departmental Committee recommended theapplicantsaswellandtheirinterests, therefore, were not at allprejudiced by anyirregularity which,inany event, isnot a material one inthe circumstances. Lastly, it was submitted that the conclusion of the respondent 30 Commission that the interested parties were, on the basis of the established criteria as a whole, superior to the applicants, is not supported by the report of the Departmental Committee and the materialinthe filesand, therefore, theCommission acted under a misconception offact, itfailedtoconductadue inquiryanditssub 35 judice decision isnot duly reasoned. Inparticular, counsel for the applicants pointed out that the applicants possess higher 369 Demetriades J. Othonos &Another v.Republic
(1987)qualifications than interested party Chnstodouhdes and were, by sixmonths, senior tointerested party Sawides. As regards qualifications, interested party Christodoulides possesses the required, under the relevant scheme of service, qualifications and the possession by the applicants of higher, but 5 not required, under the scheme of service, qualifications, could not outweigh his seniority over them, his better rating in the last two confidential reports and the more favourable recommendations of the Director ofthe Service. As far as their seniority to interested party Sawides is 10 concerned, it is well settled that comparatively small seniority cannot lead to annulment, more so because thisinterested party had byfarbetterconfidential reportsforthelasttwoyearsthan the applicants and was more favourably recommended by the Director of hisService. 15 The Public Service Commission, in the exercise of its discretionary power for thepurpose ofselectingthe mostsuitable candidates for the post concerned, could have attributed more significance to one factor than to another, and thisCourt cannot substitute itsown discretiontothatoftheCommission unlesssuch 20 discretion waswrongly exercised orthe Commission, in reaching itsdecision, exceeded the outerlimitsof such discretion. The onus of proof that the Commission acted under a misconception of fact or failed to carry out a due inquiry was on the applicants who have failed todischarge it. 25 Onthematerialbefore itthesubjudicedecisionwasreasonably open to the respondent Commission and such material, together withthe subjudice decision itself, constitute the reasoning for the subjudice promotions. I have considered the basic issues raised by counsel for the 30 applicantsasgroundsfortheannulmentofthesubjudicedecision and any other minor argument not referred to particularly has to betreated asnotmeritingspecific consideration butascoveredby what hasalreadybeen stated above. 370 3 C.L.R. Othonoe &Another v.Republic Demetriades J. In view of the aforesaid, the present recourses fail and are accordingly dismissed with no orderastocosts. Recoursesdismissed. No order astocosts. 371