clr/1987/1987_3_715.pdf

(1987)Savva v. Ports Authority As a result both the reporting ofticer and the countersigning officer submitted to the Board of the respondent written explanatory reports and appeared before the Board for further oral explanations as well as for ev^banon of the applicant and the interested party in respect of their performanre in 1983 ** On 2 ! 3 i>4the Board of therespondent decidedtopromotetheinterested party to the aforesaid post Hence the present recourse It must be noted that on 28 8 84 the Board of the respondent decided to give retrospective effect to the sub judice promotion as from 1 183 This decision is the subject of a new recourse by the applicant (see Sawa ν The 1 0 PurtsAL/i/ionryofCyprus

(1987)3CLR 722) Held, dismissing the recourse (1} The decision of 28 8 84 only amended the sub judice decision and therefore, it cannot be treated as abrogating entirely the sub judice decision which, consequently, retained its executory character 15

(2)The course adopted by the Board in respect of the confidentialreports was clearly required and fully compatible with the basic pnnciple of administrative law with regardto the need ofdue inquiry in order to ascertain the correctfacts

(3)When the sub judice decision was taken the General Manager of the 2 0 respondent was under interdiction and therefore, the Board could not and ought not toask hisviews As regardstheGeneralManager'sviews expressed before his interdiction in the confidential reportsof the candidates, it must be taken on the strength of the presumption of regularity that such views were before the Board 25 {4)The factthat lateron itwasdecided togiveretrospectiveeffecttothesub judice decision does not alter the situation that the Board had a paramount duty to take into account all material information as on 2 1 3 84 and, therefore, it correctly took into account the evaluation of the performance of the candidates in 1983 30

(5)The reporting officer was the immediate supenor of the candidates It was reasonably open to the Board to attach to hisviewsmore weight than to the views of the countersigningofficer

(6)In any event the applicant failed to establish sinking supenonty to the interestedparty Recourse dismissed No order asto costs Recourse. Recourse against the decisionofthe respondenttopromotethe 716 35 3 C.I..R. S a w a v. Ports Authority interested party to the post of Accounting Officer 1st Grade in preference and instead of theapplicant A S Angehdes, for the applicant Ν Papaefstathiou,for the respondent 5 Chr Tnantafylhdes, for the interested party Cur adv vult TRIANTAFYLLIDESΡ read thefollowingjudgment By means of thepresent recourse theapplicantischallenging thedecision of the Board of the respondent Ports Authority on the 21st March 1Q 1984, to promote, instead of her, to the post of Accounting Officer 1st Grade, V Zannetti, who, therefore, is an «interested party» inthese proceedings 15 20 25 30 35 Subsequently, on the28th August 1984, itwas decided togive retrospective effect, as from the 1st January 1983, to the sub judice promotion of the interested party and the applicant filed recourse No 621/84* against such decision, and thejudgment in that case is tobe given today, too,after thedelivery of the present judgment Ithasbeen contendedthatasaresultof thesubsequent decision regarding the retrospectivity of the promotion of the interested party the sub judice in the present case decision to promote her has lost its executory natureby merging inthe said later decision but I do not agree that this is so because, in my opinion, the subsequent decision only amendedtheinitialdecision topromote the interested party as regards the date on which herpromotion was to take effect and, consequently, it cannot be treated as abrogating totally the initial decision to promote the interested party The process of filling the post concerned was set in motionon the 26th August 1983 and on the21st October 1983 theBoard of therespondentdecided topromotetheapplicant,but,lateron,at its meeting on the31st October 1983, the Board annulled its said decision because it was informed that the proper procedureenvisaged by relevant regulations - for the preparation of confidential reports regarding the applicant and the interested party hadnotbeen followed After the Board had,on the30th November 1983, dealt further withthematterofthepreparationoftheconfidential reportsabout *See(W7)3CLR 722 717 Triantafyllldes P. S a w a v. Ports Authority

(1987)the two candidates in question, the Senior Accountant of the respondent, as thereporting officer, andtheFinancialManagerof the respondent, as the countersigning officer, submitted to the Board written explanatory reports dated the 8th December 1983 and 21st December 1983, respectively, about the manner in which the confidential reports in respect of 1982 about the applicant and the interested party had been prepared. 5 The Board, also, called the said two officers to give before it further oral explanation and to submit, too, their evaluation in respect of 1983 regarding theapplicant and the interested party. 10 The two officers supported orally the contents of their written explanatory reportsandinrespectof 1983 theSeniorAccountant, as reporting officer, placed first the interested party, and the FinancialManager,as countersigning officer, thoughhe improved his evaluation of the interested party for 1982, placed first in 15 respect of 1983 the applicant. After having received, too,legal advice that in case of conflict between thereporting officer and the countersigning officer more weight was to be given to the evaluation of the officer who had direct supervision of, and responsibility for, the work of the 20 candidatesconcerned-whointhepresentinstancewas theSenior Accountant,who was also thereporting officer -theBoard,onthe basisof all relevant materialbefore it,and having inmindthatthe reporting officer inrespect of 1981,1982and 1983 had evaluated theinterested party as being thebest, reachedthe conclusion that 25 the interested party was themost suitable for promotionand,on the 21st March 1984, decided to promote her to the post concerned as from thatdate. Theinterestedpartyacceptedherpromotionwithreservation of herrighttoclaimthatitshould be maderetrospectively asfrom the 30 1st January

1. Her claim was based on the terms of an agreement which was entered into between the Ministry of CommunicationsandWorks- underν'Mencomestherespondent Authority - and the trade union of the employees of the respondent. On the 28th August 1984 the Board of therespondent decided to make the promotion of the interested party retrospective as from the 1st January 1983, on the condition that recourse No. 289/84 which had been filed in the meantime by the interested 718 35 3 C.L.R. S a n a v.Ports Authority TriantafylHdes A. party against the non-retrospectivity of her promotion would be withdrawn; and such recourse was withdrawn on the 17th September
2. 5 Counsel for the applicant submitted that the Board of the respondent wasnot empowered tointervene in the matter of the preparation of the confidential reports and give directions which resulted inthe submission of explanatory reportsbythe reporting officer and countersigning officer. The course adopted by the Board in this respect was, in my 10 view, clearly required by, and fully compatible with, the basic principle of administrative law that the Board had to carry out a due inquiry in order to ascertain the correct facts and to avoid actingunderany misconception. Counsel for the applicant has argued, also, that the 15 recommendations of theGeneral Managerofthe respondent, Mr. Payiatas, ought to have been sought by the Board, especially in view of the conflict between the evaluations of the reporting officer and of the countersigning officer, and he has pointed out, too, that no reference has been made by the Board to the views 20 expressed byMr.Payiatasaboutthetwocandidatesinquestion in the relevant confidential reports about them; and counsel for the applicant has argued that his shows that the Board did not carryouta due inquiry intothisaspect of the matter. When the sub judice decision to promote the applicant was 25 taken on the 21st March 1984 the General Manager of the respondent wasunder interdiction, asfrom the 1stJuly 1983,and was notperforming hisduties,because of an investigation which had been set in motion against him for alleged disciplinary offences. 1 do not think, therefore, that at the material time the 30 Board could, or ought to, have sought his recommendations as regardsthecandidate tobepromoted. Itiscorrectthatbythe28th August 1984, when the decision as regards the retrospectivityof thepromotionoftheinterestedpartywastaken,theinterdictionof theGeneral Managerhadceased,butitwasnotopentotheBoard 35 to seek on that occasion the recommendations of the General Manager about itsdecision toselect forpromotion the interested party which had been taken on the 21st March 1984 when the General Managerwas,asalreadystated, under interdiction. Regarding the views expressed prior to his interdiction by the 40 General Managerinconfid?..tial reportsabout thetwo candidates 719 Triantafyllldes P. Savva v. Ports Authority

(1987)concerned itmustbeobserved that,intheabsence ofanyproof to the contrary, and onthestrength ofthepresumption ofregularity, itmust be taken that the said viewsof the General Manager were before the Board with all other relevant material and must have been dulyconsidered;anditistobepointed out,inanyevent,that 5 these views of the General Manager regarding the applicant and theinterested partywereonthewholeofsuchnaturethatitcannot be said that they ought to have tilted the scales in favour of the applicant and againstthe interested party as regardssuitability for promotion. Counsel fortheapplicanthascomplained thatthe performance of the candidates in 1983 ought not to have been taken into account as itwas subsequent to the promotion which was made retrospective as from the 1stJanuary 1983;and, counsel for the applicant has, furthermore, contended that the past services as 15 a whole of both candidates concerned ought to have been duly considered. In myviewsincethepersonal filesand the confidential reports files of the candidates containing all relevant material regarding their services were before the Board it must be taken that the 20 Boardinarrivingattheconclusionthatthemostsuitablecandidate for promotion was the interested party had before itall necessary information regarding herservice and that of the applicant. Also, I am of the opinion that there was rightly taken into account by the Board the performance of the candidates in 1983 25 when, on the 21st March 1984, it decided whom out of them to selectasthemostsuitableforpromotion; and, inmyview,the fact that later on it was decided to make the promotion of the interested party retrospective as from the 1stJanuary 1983 does notalterthesituationthattheBoardhad aparamountdutytotake 30 into account all material information about the candidates which was available on the 21st March 1984 when it reached its sub judice decision to select theinterested party for promotion. Lastly,itwasarguedbycounselfortheapplicantthatthe Board ought not to have undertaken the task of assessing the weight of 35 the evaluations of the candidates by the reporting officer and by the countersigning officer and it ought not, eventually, have placed greater weight on theviews ofthe reporting officer. In my opinion it was perfectly legitimate for, and reasonably 720 10 3 C.L.R. Savva v. Ports Authority Triantafyllldes P. open to,theBoardtoplace greaterweightontheevaluation ofthe Senior Accountant, as reporting officer, who was the immediate superiorof thecandidatesandwhowas fully aware oftheir abilities and performance;andthe propriety of thecourse adoptedbythe 5 Board inthisrespect is notvitiated by the fact thattheBoard had. also, received legal advice indicating that such course was a correcι one, in any event, from a perusal of the confidential reports files as they were originally prepared, as well as on the basis of ihe 10 evaluations of thecandidateswhich were made laterby meansof the aforementioned explanatory reports,and,also, in thelight of all other relevant material which was placed before this Court, 1 have not been persuaded that the applicant was a candidate strikinglysuperior totheinterestedpartyandthat,therefore,itwas 15 notreasonably opentotheBoard toselect theinterestedparty for promotion instead of her. Itwas withinthediscretionary powers of the Board tochoose themostsuitable candidatefor promotion to the post concerned and it has not been shown to my satisfaction thatsuchpowers wereexercised inadefective mannerinany way. 20 Inthelight of all theforegoing this recourse fails and has to be dismissed; butwith no orderas toits costs. Recourse dismissed. No orderas to costs. 721