(1987)1987April22 [SAWIDES,J.] INTHEMATTEROFARTICLE 146OFTHECONSTITUTION FLORENTIADEMETRIOU, Applicant, v. THETHEATRICALORGANIZATIONOFCYPRUS, Respondent. (CaseNo. 252/83). The Theatrical Organization of Cyprus — Promotions — The Theatrical OrganizationofCyprusLaw 71/70asamended byLaws36/72 and 68/79— Section 5 —Artistic Committee —Functionsof— Recommendations of— Cannot be disregardedwithoutspecialreasons—Section 4(7}—Personnel Committee — Its views should not outweigh the views of die Artistic Committee. 5 By means of this recourse the applicant challenges the decision of the respondentstopromotethe interestedpartiesPhaedrosStasinosandAJkistis Pavlidou tothepostof SeniorActorinstead of her. The applicant and interested party Stasinos were included in the list of thoserecommended forpromotionbytheArtisticCommittee,setupinvirtue of section 5 of Law 71/70 as amended by Law 68/79. Interested party Pavlidouwasnotamongthose recommended. TherecommendationsoftheArtisticCommitteeweresenttothePersonnel Committee of the Organization. This Committee was set up in accordance with section 4
(7)introduced bysection 2(d) of Law36/72. Bom interested partieswere includedinthe listofthose recommended forpromotion bythis Committee,whereastheapplicantwasnot. Finallythe Board of the respondent selected for promotion the interested parties. Held,
(1)Itisclearfrom theprovisionsofsub-section
(4)ofsection5ofLaw 71/70 as amended by Law 68/79 that the Board of the respondent when dealing with matters touching the appointment, the evaluation and the dismissaloftheartisticandtechnicalstaffhastoseektheopinionoftheArtistic 504 \Q 15 20 3 CX.R. Demetrfou v. Theatrical Organization Committee which, notwithstanding itsadvisory nature, hasto be taken into consideration and begivendue weight. 5 10
(2)Special reasons should have been given by the respondent for not adopting the recommendations of the Artistic Committee. Nosuch reasons weregiveninmiscaseastowhyinterestedpartyPavlidou,whohadnotbeen recommended by the Artistic Committee was promoted instead of the applicant, who had been so recommended. The recommendations of the Personnel Committee should not, in any event, outweigh the views of the ArtisticCommittee.
(3)Inthelightoftheabovethepromotion ofinterestedpartyPavlidouhas tobe annulled.
(4)The selection of interested party Stasinos was reasonably open to the respondent. 15 Subjudice promotion ofinterested partyPavlidouannulled. Recourseasagainstinterestedparty Stasinosdismissed. Noorder astocosts. Recourse. 20 Recourseagainstthedecisionoftherespondenttopromotethe interested party to the post of Senior Actor in preference and instead ofthe applicant. C.Anastassiades,forthe applicant. M.Photiou, for the respondent. 25 Cur.adv. vult SAWIDES J. read the following judgment. The applicant by this recourse challenges the decision of the respondent to promote the interested parties, namely, Phaedros Stasinos and AlkistisPavlidou tothe post ofSenior Actorinstead of her. 30 The respondent is the Cyprus Theatrical Organization, a statutory body set up under Law 71/70, charged with the promotion of the theatrical art including, inter alia, the organization andoperation ofone ormoretheatressponsored by it.Anumber ofactorsand actressesare employed on contractual 35 basis for fixed periods of time which, as a matter ot practice, are renewed insuch a wayasa number ofsuch actorsaretreated as 505 Savvides J. Demetriou v. Theatrical Organization
(1987)theregular theatricalpersonnel of theorganization. The sub judice decision was taken by the respondent on 12.4.1983, to give effect to a previous decision taken for the promotionof 13outofthe20ActorsA'tothepostofSeniorActor. Boththeapplicantandtheinterestedpartieswereamongstthe20 5 candidates considered. Interested party Phaedros Stasinos was amongst those unanimously selected for promotion. Interested party Alkistis Pavlidou was selected byfivevotes in favour and threeagainst, whereas theapplicantwasamongstthosewhowere unanimously rejected. As a result, theapplicantfiled thepresent 10 recourse challenging thesubjudice decision. Itisthecontentionof counsel for applicantthattherespondent inreachingitsdecision,actedinabuse and/orinexcessof powers; thedecision was takenunderamisconceptionoffact,inviolation of thelaw andinfailure by therespondenttodischarge itsdutyto 15 select thebest candidateforpromotioninviewofthefact thatthe applicant compared tothe interested parties isby far betterthan them. By his written address counsel for applicant contended that since the applicant was amongst those recommended by the 20 Artistic Committee set up under the Law whilst interested party Pavlidou was notrecommended,therespondenthadtogivedue weighttothe recommendations of thesaidCommitteeandgive properreasons fornotactinguponthem,athingwhich itfailedto do. 25 Undertheprovisions of theoriginal section 5of Law 71/70 an Artistic Committee (Καλλιτεχνική Επιτροπή) was set up, appointed for the purpose of advising the Board of the Organization on matters touching the selection of actors, the programming of shows and the appointment, evaluation and 30 dismissal of theartistic and technicalpersonnel.Any opinionon such matterswould only be ofanadvisory nature.Section5 was repealedbysection3ofLaw36/72. Law71/70 wasamendedby Law68/79bytheintroductionofanewsection5forthesettingup of an Artistic Committee with advisory powers, consisting of a 35 chairmanandfourmembersappointedbytheCouncilofMinisters from persons of higher education andknowledge, experience or ability intheatrical and artisticmattersand of the Directorof the Organization and onerepresentative of theBoard, aswellasthe regular producers, as ex officio members.Thefunctions of such 40 506 3 C.L.R. Demetriou v. Theatrical Organization Sawldes J . Committee are set out in sub-section
(4)of the new section 5, as follows: 5 «
(4)Η Επιτροπή έχει καθήκον όπως συμβουλεΰη τ ο Διοικητικόν Συμβούλιον, είτε αυτεπαγγέλτως είτε κατόπιν αναφοράς τ ο υ Διοικητικού Συμβουλίου προς την Επιτροπήν, επίπαντός καλλιτεχνικού ζητήματος: Νοείται ότι επί παντός θέματος αφορώντος εις καλλιτεχνικά ζητήματα 10 15 και τηςπροσλήψεως αξιολογήσεως και απολύσεως τ ο υ καλλιτεχνικού και τ ο υ δια τ α ς καλλιτεχνικός εργασίας τεχνικού προσωπικού τ ο Διοικητικόν Συμβούλιον προ πάσης αποφάσεως α υ τ ο ύ δέον να ζητή την επί τ ο υ θέματος γνώμην της Επιτροπής, ήτις συνιστά θαρύνουσαν γνώμην καίτοι συμβουλευτικού χαρακτήρος.» («
(4)TheCommitteehasadutytoadvisethe Administrative Board, eitheronitsown initiative or uponreference from the Administrative BoardtotheCommitteeonanyartisticmatter: 20 25 Providedthatforanyquestionregarding artisticmatters and the appointment, evaluation anddismissal oftheartisticandtechnicalfor artistic work personnel the Administrative Board must, before any decision, seek the opinion of the Committee on the matter, which isweighty although of an advisory character.») Itisclear from theprovisions of sub-section
(4)thatthe function of such Committee is not merely of an advisory nature but the Board of the respondent when dealing with matterstouchingthe appointment, the evaluation and the dismissal of the artistic and 30 technical staff has to seek the opinion of such Committee which notwithstanding its advisory nature has to be taken into consideration andbe given due weight. In the case under consideration the Advisory Committee held several meetings to evaluate the candidates for promotiontothe 35 post of SeniorActor. After evaluating eachoneof thecandidates, the Committee selected 13 out of the 20 candidates whom it recommended for promotion.Theapplicantandinterested party Stasinos were amongst those selected and recommended, 507 Sawldes J. D e m e t r l o u v. TheatricalOrganization
(1987)whereas interested party Pavlidou was amongst theseven actors whowerenotselected. Therecommendationsinrespect ofeach one of the candidates appear in the minutes of the Artistic Committeewhich weresubmitted totheBoard. The recommendations of the Artistic Committee were 5 submitted by therespondent tothe Personnel Committee of the Organization, acommitteesetupbytherespondentundersection 4
(7), introduced by section 2(d) of Law 36/72, chaired by a member of the Board and consisting alsoof another member of the Board, the Director-General of the Organization and the 10 Administrative Secretary Sub-section
(7)of section 4provides asfollows: «
(7)Ανεξαρτήτως της γενικότητος τ ο υ εδαφίου
(6)τ ο Διοικητικόν Συμβούλιον κέκτηται εξουσίαν, τ η εισηγήσει τ ο υ Προέδρου,όπως καταρτίζη εκτων μελών 15 α υ τ ο ύ τ ο ι α ύ τ α ςεπίτροπος συνιστάμενος εκ τ ο ι ο ύ τ ο υ αριθμού μελών και υπό τοιούτους όρους ως ήθελε κρίνει πρέπον δι'οιονδήποτε σκοπόν οοποίος κατά την κρίσιν τ ο υ Διοικητικού Συμβουλίου θα προήγετο μέσω επιτροπής. Εκάστη τ ο ι α ύ τ η επιτροπή ρυθμίζειτ α των 20 εργασιών αυτής, την κατά τ α ς συνεδριάσεις αυτής ακόλουθουμένην διαδικασίαν και την τήρησιν των πρακτικών, και υποβάλλει εις την ολομέλειαν τ ο υ Διοικητικού Συμβουλίου προς λήψιν αποφάσεως τ α ς εισηγήσεις αυτής. 25 Εις οιανδήποτε τοιαύτην επιτροπήν δύναται όπως, κατόπιν αποφάσεως τ ο υ Διοικητικού Συμβουλίου, συμμετέχη και ο Διευθυντής.» («
(7)Notwithstanding the generality of sub-section
(6)the Administrative Board isempowered, ontherecommendation 30 oftheChairman,tosetupfromitsmemberssuchcommittees, composed of such number of members and on such conditions which he would deem fit for any purpose which would according to the opinion of theAdministrative Board be promoted through a committee. Each such committee 35 regulates itsproceedings,theproceduretobefollowedduring the proceedings and thekeeping of minutes,andsubmits its recommendations to the Administrative Board in its full constitution for thetaking of a decision. 508 3 C.L.R. Demetrlou v. Theatrical Organization S a w l d e s J. The Director may also take part in any such committee,if the Administrative Board sodecides»). The Personnel Committee at its meeting of 11.4.83, adopted the recommendations of the Artistic Committee concerning the 5 first nine candidates, in which interested party Phaedros Stasinos was included, and expressed its doubts as to whether it was necessarytofilltheremainingfourposts,andnottopostpone such filling atthe beginning of the new theatrical season in September next. Notwithstanding the doubts expressed, the said Committee 10 selected another three candidates who were not amongst those recommended, by the Artistic Committee and also one of the candidates recommended, namely, Neophytos Neophytou, and submitted a listofthe namestothe Board of the respondent. The applicant who had been selected by the Artistic Committee was 15 not included in such list, whereas interested party Pavlidou who had not been selected bythe ArtisticCommittee wasincluded in the list. The decision of the Personnel Committee concludes as follows: 20 25 «The Committee on the basis of the same criteria which have been used forthe evaluation oftheactors,referred toin paragraph
(3),findsthattheactorswhom ithasselectedasthe more suitable and who are referred to inparagraphs
(3)and
(4)are clearly superior to actors Florentia Demetriou, Nicos Shafkalis and Stavros Louras {who were selected by the Artistic Committee) and Annita Santorineou, Andreas Marangos and Maria Miha (who were not selected by the ArtisticCommittee either).» Atitsmeetingdated 12.4.1983,therespondent had before it- (
- a)the minutes of the meetings of the Artistic Committee at 30 which it selected the 13 candidates which it recommended for promotion; (b)Afull statement of allthe candidates recommended or not; (
- c)the minutes of the meeting of the Artistic Committee containing its reasoned recommendations and evaluation of the 35 candidates; and (d)theminutesofthemeetingofthePersonnelCommittee.The Board, after considering the matter, decided to fill allthe vacant posts. 509 S a w l d e s J. Demetrlou v. Theatrical Organization
(1987)The minutesthen proceed as follows: «TheBoard havingconsidered therecommendations ofthe Artistic Committee andthe Personnel Committee and having heard the Director of the Organization Mr. Gavrielides who read his views to the Council concerning the artistic 5 evaluation of each candidate separately and after the Board had taken into consideration the artistic ability and experience of the candidates as actors in the Organization, their professional devotion and their qualifications as well as their performance in various parts which they have played 10 during the lastyears,decided as follows:
(1)The Board unanimously approves the recommendations of the Artistic Committee and the Personnel Committee forthepromotion tothepostofSenior Actor of the Following actors A who are included in the 15 attached statement under serial No. 1-9 whom it finds superiortotheother candidates.» (thenthenamesofthe ninecandidatessoselectedaresetout. The name of interested party Phaedros Stasinos appears as No. 8 on the list). 20 After that, according to the record, one of the members of the Boardleftthemeetingandtherestproceededtovoteforeach one of the other candidates. The result of such voting was that interested party Pavlidou, who was not amongst those recommended by the Advisory Committee was selected by five 25 votes in favour and three against, whereas the applicant was not selected. Noreasonsweregivenbytherespondentastowhythe opinion of the Artistic Committee, a body entrusted by law with the function ofevaluatingand selectingcandidatesforpromotion was 30 notadopted with regard totheapplicant whowas recommended and interested party Pavlidou, though not recommended, was promoted instead. Whatemanates from theminutesoftherespondentisthatitwas influenced to some extent by the recommendations of the 35 Personnel Committee in preferring interested party Pavlidou to theapplicantand didnotgivedueweighttothe recommendations oftheArtisticCommittee towhichitwasboundbylawtogivesuch weight. The recommendations of the Personnel Committee should not, in any event, outweigh the recommendations of the 40 510 3 C.L.R, Demetrlou v. Theatrical Organization S a w l d e s J. ArtisticCommitteeandspecialreasonsshouldhavebeengivenby therespondent fornotadopting itsrecommendations. Before however concluding on the matter, I wish to draw a distinction between the case of the applicant vis-a-vis interested 5 party Stasinos and the applicant vis-a-vis interested party Pavlidou. Interested party Stasinos was amongst those selected and recommended by the Artistic Committee, together with the applicant. Therefore, from the point of view of recommendation theapplicanthasnoreasontocomplainagainstsuchpartyand on 10 the material before me, which wasbefore the respondent, itwas reasonably open to itto select this interested party. Concerning, however, interested party Pavlidou who was not recommended by the Artistic Committee, the failure of the respondent to give special reasons for not following the recommendation of thesaid 15 Committee rendersitsdecision vulnerable. Forthe above reasons 1 find that the recourse concerning the promotion of interested party Stasinos fails but succeeds with regard to interested party Pavlidou and the subjudice decision is herebyannulled tothat extent. 20 There willbe no order for costs. Sub judice decision partlyannulled. No orderastocosts. 511