clr/1987/1987_3_725.pdf

(4)— Whatmattersisnot theactualamount drawn by theofficers concenmed, butthe^salaryconditions oftherespectiveofficers»— Theholder ofapost on salaryscaleA16 isseniortotheholder ofapostonscaleA15, notwithstanding thatatthematenal timein thiscasethelatterwaspaid more money than the former. Public Officers — Confidential reports — Reporting officers — Appointee to an office entailing themaking of confidential reports — Deemed to have been 725 Stavrou v. Republic

(1987)found responsible, expenenced and reliable enough to make accurate confidential reports Public Officers — Promotions — Confidential reports — Bias — Must be established with certainty — Fact thatreporting officer wassomeyearsagoa candidate together with applicant for the office to which he was promoted does not by itselfsupport bias 5 Reasoning of an administrative act — Brevity of decision — Not indicative oflack of reasoning — Required reasoningmay besupplemented from the matenal m the file Public officers — Promotions — Presumption of regulanty — Allegation that academic qualifications of applicant were not taken into account — In this case fails, becauseof the presumption Public Officers — Promotions — Sinking supenonty — An administrative Court does not interfere with apromotion unlessapplicant isan eligible candidate, who wasstnkingly supenor to theone selected \0 15 Public Officers — Promotions — Ment— Carries the more weight Public Officers — Promotions — Qualifications — Academic qualifications, additional to thoserequired, butnot envisagedasanadvantagein thescheme ofservice — Not by themselvessufficient to establishsinking supenonty The applicant challenges by meansof thisrecourse thedecision,whereby the interestedparty was promoted to thepostofDirector General, Ministry of Defence, asfrom31 12 83 20 The grounds,on which the applicant relied in support of his case,may be bnefly summansed as follows (A)The respondent Commission acted hastily as the sub judice decision was taken on 30 12 83, whilst on the same day at 1145 ρ m they were still interviewing the applicant In support of his submission as to the «hastiness» allegedly exhibited by the Commission, applicant's counsel stated that «ail that it appears from the minutes of the Respondents that they took into consideration were the marks of the candidates for the last threeyears» 25 30 (B) The respondent Commission ought to have interrupted the whole procedure of filling of the vacant post in question, because on 15 12 83 the Council ofMinisters approved anew scheme ofservice forthesubjudicepost as from 1 1 84 It must be noted that the aforesaid procedure began on 26 10 83 and that, the first meeting,at which the Commission examined the applications ofcandidatesandeverythingsubmittedintheirsupport,was held on 14 12 83 Further meetings with view to interview the candidates were held on 23 12 83, 29 12 83 and30 12 83 (C) The respondent Commission erred as regards the senuuty of the applicant and the interested party Counsel for the applicant submitted that 726 35 40 3 C.L.R. Stavrou v. Republic theapplicantwas senior totheinterested party In-.upportof hisargument he referred, interalia,tothefact thatatthematerialtimeapplicantwas drawing a salary of £7,217,whereas the interested party asalary of £7,073 5 1*J D(i)Absence of safeguards establishing theaccuracy tnthecompilationof theconfidential reports absence of countersigning officer, who mightcheck the absolute discretion of the reportingofficer, notablytheDirector- General of theMinistry ofFinance (ιι)Biasonthepartof thereporting officer Insupport of thislastcontention counsel for theapplicantreferred tothefact thatin 1979 theDirector-Generai was a candidate together with the applicant for the post of the DirectorGeneral of theMinistry ofFinance (in) Absence of knowledge by the Director General of the Ministry of Finance,concerning applicant's activities (E)Thesub judice decision lacks due reasoning *** 20 25 30 35 40 Held,dismissing therecourse (I)(a) Fromthematenalbefore theCourtitis clear that the Commission examined the applications and everything else submitted insupport theretoaswellas thepersonal files andthe confidential reportsof all candidatesintheserviceatits meeting dated 14 12 83,andthat on 23 12 83, 29 12 83 and 30 12 83 it earned out interviews of the candidates Thetask of the Commission after the last interview, which ended at 11 45 a m on 30 12 83, was to assess the performance of the 15 candidates, who were interviewed, and to make a general assessment and comparethecandidateson facts already known tothe Commission There isnoevidence thatthesubjudice decision was taken before closing ( 2 p m ) TheCommission mighthave continueditsdeliberations after 2 ρ m Thatdoes notimply thatthisCourtisprepared tohold that2 hoursand 15 minutes would nothave been enough for their deliberations Inthe light of the above the submission that the Commission acted hastily to the detriment of due inquiry fails (Theymopoulos and Others ν The Municipal Committee of Nicosia

(1967)3 CLR 588 at pp 608, 609 andHjiMschael and Othersν TheRepublic

(1972)3 CLR 246 distinguished) time (

1. b)The whole career of the candidates concerned should be taken into account,butitisnotwrong togivedueweight tothemostrecent confidential reports Inthis case the relevant minutes do notsupport the contentionthat theCommission took intoaccountonlythethreelast confidential reports (
2. c)Applicant's submission raised the question of the power of the appointing authority inappointing a Director-General of the Ministry Inthis respectitmustbeobserved thatinmakinganappointmenttohighoffice inthe administrative structure, the appointing authonty is vested with quite wide administrative powers (Frangosv TheRepublic(\970)3C LR 312atp 343 adopted) 727 Stavrou v. Republic

(2)ThisCourtcannotagree with theaforesaid submission (B)ofcounsel for theapplicant,which isdevoid of authonty ThisCourtholdstheviewthatthe Commission acted in the public interest, when itproceeded tocompletethe task of filling thepost before thecoming intooperation of the new schemeof service, because it thus saved public time and money Itmust be borne in mind that «it is a cardinal pnnciple of administrative law that the legality of administrative actsisgoverned bythelegislation inforce atthetimethey were made (Lordou and Others ν TheRepublic

(1968)3 C LR 427 at ρ 433 adopted) 5 3)From thematerialbefore theCourtitisclearthateversince 15 11 77the 10 applicant was holding the post of «Director of the Department of Stores», which was and still is on salary scale A15, whereas as from 1 7 81 and until 30 12 83 the interested party held the office of «Director of Public Administration and Personnel», which was on scale A16 It follows thatin accordancewith section 46

(4)of Law33/1967theinterestedpartywas senior 15 totheapplicant, because what mattersindeterminingsenionty thereunderis not the actual amount of money drawn by the officers concerned, but «the salary conditions of the respective officers»

(4)(i)As ithasbeen held in Georghiou ν TheRepublic

(1976)3 C LR 74 atρ 81 «a public officer who has been appointedtoapost amongtheduties 20 of which is the making of confidential reports about subordinate officers has to be regarded as having been found, by the appointing authonty, to be responsible, experienced andreliable enough tomake,moreorless,accurate assessments of such subordinates» (n)Lackof impartiality mustbeestablished with sufficient certainty Thefact thatthereporting officer was acandidatetogetherwithapplicantfor the office of Director-General cannot by any stress of imagination support by itself bias (ill)Fromthematerial before theCourt, theconclusion isthattheDirectorGeneral was ina position tohave anopinion regarding theapplicant 25 30 5) The brevity of a decision is not in itself indicative of lack of due reasoning Thereasoning ofanadministrative decision maybesupplemented by the matenal in the official files Applicant's complaint for lack of due reasoning has not been substantiated, moreover, his other complaint that «academic qualifications of applicant were notconsidered infull» cannotbe accepted inviewof the presumption of regulanty 35 6) As it has been repeatedly emphasized an administrative Courtcannot intervene in order to annul a decision relating to promotions, unless the applicant was an eligible candidate,who was stnkingly supenor to the one promoted The appbcant in this case failed to establish such stinking 40 superiority Recoursedismissed No orderas to costs 728 3 C.L.R. Stavrou v. Republic Casesrefened to: Thymopoulos and Othersv. TheMunicipal Committee of Nicosia

(1967)3 C.L.R.588; HiMichaelandOthersv.TheRepublic

(1972)3C.L.R. 246; 5• Georghiouv. TheRepublic

(1976)3C.L.R. 74; GeorghiadesandAnother v.TheRepublic(\97S)3C.L.K, 143; Jacovides v.TheRepublic

(1966)3C.L R.212; Frangosv.TheRepublic

(1970)3 C.L.R.312; leridesv.TheRepublic

(1980)3 C.L.R. 165; 10 Lordou and Others v.TheRepublic

(1968)3 C.L.R. 427; Christouv.TheRepublic

(1980)3 C.L.R. 437; HjiSawav. TheRepublic

(1972)3C.L.R. 174; Petridesv.TheRepublic

(1983)3C.L.R.216; Marangosv.TheRepublic

(1983)3C.L.R.682; 15 77ieRepublic v. Ekkeshis

(1975)3C.L.R.548, PiperiandOthersv.TheRepublic

(1984)3C-L.R. 1306; HjUoannou v.TheRepublic

(1983)3C.L.R.1041; Menelaou v.TheRepublic

(1969)3C.L.R.36; Theocharousv.TheRepublic

(1969)3 C.L.R.318; 20 Papadopoulos v. P.S.C

(1985)3C.L.R.405. Recourse. Recourseagainstthedecisionoftherespondenttopromotethe interested party to the post of Director-General, Ministry of Defence inpreference andinsteadoftheapplicant. 25 Chr. Triantafyllides,fortheapplicant. R. Gavrieiides,Senior Counsel of the Republic, for the respondent. Cur.adv. vult LORISJ. readthefollowingjudgment.Theapplicantimpugns 729 LorU J · Stavrouv.Republic

(1987)bymeans of the present recourse,the decision ofthe respondent P.S.C., dated30.12.1983 (published intheOfficial Gazette of the Republicdated 13.1.1984),wherebytheinterested party, namely George Anastassiades, was promoted to the permanent post of Director-General, Ministry of Defence, as from 31.12.1983, in preference toand instead ofthe applicant. 5 Theapplicantisrelyingonninegroundsoflaw,appearinginthe body of the recourse; in his written address, learned counsel for the applicant reshuffled these grounds and elaborated on them under five heads. I consider it convenient to examine the 10 complaints aslisted down inthe written address. Ground 1:Thecomplaintunderthisheadistotheeffect thatthe respondent commission acted hastilyasthey proceeded tofillthe postinquestion on30.12.83whilstonthesamedayat 11.45a.m. they were still interviewing the applicant; it was maintained that 15 due to their haste their examination could not have been a thorough one and it was submitted that this state of affairs establishes at least a probability that a misconception has lead to the taking of the decision complained of. The cases of (a) Thymopoulos & Others v. The Municipal Committee of Nicosia 20

(1967)3 C.L.R. 588atpp 608,609 and (b)HjiMichaeland others v. TheRepublic

(1972)3 C.L.R. 246were cited insupport of this submission. The case of Thyrnopoulos (supra) was a recourse against the validityofplansprepared bythe Municipal Committee ofNicosia 25 under s. 12of the Streets and Buildings Regulation LawCap.96, with the object of widening and straightening a street in Nicosia. The relevant extract at pp. 608 and 609 of the judgment of Triantafyllides J. (ashe then was)reads as follows: «So, with the exception of the Chairman of the Municipal 30 Committee, the remaining members of the Committee - which hadtoactasacollectiveorgan-hadnotrealopportunity, through access toany written record, otherthan the relevantsurvey map, to study in advance the merits of the scheme concerned. Their examination of the matter waslimited only to what transpired at 35 that one meeting of the 16thApril,

1. It is quite clear, thus, that the examination made by the MunicipalCommittee,assuch,oftheschemecouldnothavebeen a really thorough one;» and the learned President of this Court 730 3 C.L.R. Stavrou v. Republic LortaJ. went on toadd:«thisfact maynot,perhapsbebyitself a sufficient reason fortheannulment of thesaidscheme but itisafactorto be borne in mind in evaluating the significance of other elements relevanttothemannerinwhichtheMunicipalCommittee decided 5 on the matter at itsrelevant meeting.» In Hji Michael and others (supra), an appeal challenging the dismissal ofthe recourses made bythe applicants challenging the validityofa requisition order inrespect of land, itwasheldby the FullBench of thisCourt (atp.252) that: 10 15 «Accordingtothe principlesofadministrative lawthere exists a presumption thatanadministrative decision isreached after a correct ascertainment of relevant facts; but such presumption can be rebutted if a litigant succeeds in establishing that there exists at least a probability that a misconception has lead to the taking of the decision complained of. (See inter alia, Stassinopoulos - The Law of AdministrativeActs 1951p.304 etseq.)» Revertingtothematerialbefore meitisabundantly clear(a)that therespondent P.S.C.atitsmeetingof14.12.83(vide appendix5) 20 examined «the applications of all candidates and everything submitted in support therewith»; in this connection it must be borne inmindthatred 115inthepersonalfileoftheapplicantwas submitted together with his application dated 28.11.83, it was therefore before the P.S.C. and must have been examined 25 together with his application according to the presumption of regularity. (b) that the respondent P.S.C. at its meetings of 23.12.83 (Appendix 6),29.12.83 (Appendix 7)and 30.12.83 (Appendix8) interviewed the applicantsand reached itsdecision on30 12.
2. 30 From the above it isclear that the respondent P.S.C. had the opportunity toexamine theapplications ofallapplicants together with everything else submitted in support thereto as well as the personal files and confidential reports of all candidates in the service -asthe post inquestion isafirstentry andpromotion post 35 - On 23.12.83, 29.12.83 and 30.12.83 the respondent P.S.C. carried outinterviewsof the candidates. It is clear from Appendix 5 that the P.S.C. examined the applicationsofallapplicantstogetherwitheverythingsubmittedin support therewith as earlyasthe 14.12.83;and the result of their 731 LorieJ. Stavrou v. Republic

(1987)aforesaid examination was that three out of the 25 candidates were excluded as they were not satisfying the qualifications envisaged bypara (b)ofthescheme ofserviceinforce atthetime. In the circumstances the submission of learned counsel for the applicant cannot be accepted. What the P.S.C. say in the sub- 5 judice decision isthat after the completion of the interviews they proceeded to assess the performance of the candidates at the interview and following that «they occupied themselves with general assessment and comparison of the candidates». Fromthe contentsofAppendix5attached totheopposition itis 10 clear that the respondent P.S.C. was well acquainted at least as early as 14. 12.83, with the applications of all candidates and everythingsubmitted insupporttherewith, which mustbetaken to include all confidential reports and personal files of those in the service. Therefore their task after the last interview, which was 15 admittedly held on 30.12.83 at 11.45, was to assess the performance of the 15candidates atthe interview and tomake a general assessment and compare those candidates onfacts which were already known tothe Commission. The applicant giving evidence viva voca before me clearly 20 stated that his interview by the respondent commission was completed at 11.45 hours of the 30.12.83; and he was the last candidate to be interviewed. He was not cross-examined and I have no reason todisbelieve him. Although Ido not think that an administrative Court should go 25 as far as computing the hours and the minutes an administrative body has taken for its deliberation with a view to reaching its decision Iam not ready to hold that the respondent Commission acted hastilytothe detriment ofa due inquiry, assubmitted. After allthere isno material toindicatethatthesub-judice decision was 30 reached before closing time (i.e. at 2 p.m.) on 30.12.83 as submitted bylearned counselfor applicant atthefinal stageofthe hearing of this recourse. The respondent commission which has taken steps to expedite the processof filling the post in question, after the 15th December 1983 when the new scheme of service 35 was published, by meeting day in day out, 23.12.83 - Christmas Holidays - 29.12.83, 30.12.83, they might have continued their deliberations even after 2 p.m. of 30.12.83 before reaching their decision. Not that I imply that 2 hours and a quarter would not have been enough for their deliberations but itmust be bome in 40 mind (

1. a)that there was nothing to prevent them from having 732 3 C.L.R. Stavrou v. Republic Lorfs J. deliberations after 2 p.m. and (
2. b)that there is no material indicating that in fact their decision was reached up to 2 p.m, of 30.12.83. Havingconsidered thematerialbefore meI holdtheview(i)that 5 the present case has no similarity whatever with Thymopoulos case (supra) where the Municipal Committeeas collective organ had a single opportunity - on 16.4.65 - to acquaint themselves with adifficult andcomplicatedmatternotably thestreet widening scheme and its repercussions on Nicosia Town. 10 (
3. ii)that in the present case no propability was established tending to rebut the presumption thatthe administrative decision in question was reached after the correct ascertainment of the relevant facts {videHjiMichael and others - supra-). Learned counsel for the applicantinsupport of hisargumenton 15 Ground1andhisrelevant submission as tothehastiness allegedly exhibited by the respondent Commission stated the following in his written address: 20 «Irestrict myself at this stage to say that all that it appears from the minutes of the Respondents that they took into consideration were the marks of the candidates in the last three years. Isubmitthatforapostsuch as theoneinissuethis is hardly enough....» Having held on ground 1, as I did, it might have been considered superfluous to deal with the latter submission; 25 nevertheless I feel duty bound to deal specifically with it as it touches two issues of immense importance, notably the confidential reports and the «Post in question» which is really a High Office intheadministrative structure: In the first place I agree with thesubmission of learned counsel 30 for the respondent that the P.S.C. do not say in the sub-judice decision that they took into consideration only the confidential reportsofthelast3years;theysimply mention «ενδεικτικά»(vide page 3ofAppendix 8)theratingof thecandidates forthelastthree years whilstintheparagraph immediatelybefore thattheysay that 35 thecommission tookintoconsiderationthemeritofthecandidates as it transpires from the material before it... «including the Confidential Reports of the candidates who are civil servants.» And itis clear that the confidential reports of the applicant which date back to 1958 and they are ExlA, as well as the confidential 733 LortaJ. Stavrouv.Republic (19S7) reportsoftheinterested person,whichdatebackto 1965andthey areEx.2Abefore me,werebefore therespondentP.S.C.aswell. Asregardsconfidential reportstheposition hasthusbeen stated by the Full Bench of this Court in the appeal of Odysseas Georghiou v. The Republic

(1976)3 C.L.R. 74 atpage 82: «We 5 areinagreement withthelearned trialJudge thatthewhole career of the candidates concerned had to be taken into account; this view has been propounded in, inter alia, Georghiades and Another v. The Republic

(1975)3 C.L.R. 143, 150; but in the judgment in that case itisstated (atp. 151)that itisnot wrong to 10 give due weight to the more recent confidential reports; and the importance of the more recent of such reports has been, also, recognised in Jacovides v. The Republic

(1966)3 C.L.R. 212, 221, and may be derived, too, from the provisionsof paragraphs (c)and (d)of sub-section

(1)of section 44 of Law33/67». 15 As the question of the power of the appointing authority in appointing a Director-General ina Ministrywasinawayraisedby the aforesaid submission, Ifeel that Ishould refer to the caseof Frangosv. The Republic

(1970)3 C.L.R. 312, acase inwhich the appointment to the post of Director-General Ministry of Interior 20 wasimpugned, whereTriantafyllides J. (ashethenwas)statedthe following at p. 343: «Before concluding Imight refer also in this respect, tocase2338/64whichwasdecided bytheGreekCouncil of State; it was stressed therein that inselecting the most suitable candidate for appointment to high office in the administrative 25 structure the appointing authority is vested with quite wide discretionary powers.» And the above principle was adopted by the Full Bench of this Court in lerides v. The Republic

(1980)3 C.L.R. 165atp.

1. Forallthe above reasonsground 1isdoomed tofailure. 30 Ground
2. On 26.10.83 (vide appendix 1 attached to the opposition) the respondent was asked to fill the vacant post of Director-General MinistryofDefence c ·?''oralstepsweretakenby the Respondent Commission to which reference will be made later on indealing with present ground and on30.12.83 the sub- 35 judice decision wasreached filling thevacant post in question. On 15.12.83 the Council of Ministersapproved a new Scheme of Service for the post of Director-General with effect from the 1.1.
3. 734 3CX.R. Stavrouv.Republic LorlaJ. Thecomplaint of thenpplicnnt istwofold: (a)The respondents ought tohavetaken cognisance of the fact that the Scheme of Service for the post inissue had changed and taken theappropriate decision. 5 (b)The respondents in viewof the Scheme ofService ought to haveinterruptedthewholeprocedureandcommenceditfrom the beginning; allegedly their failure to start afresh with the new scheme of Service rendered their procedure in reaching the subjudicedecision defective. 10 Asalreadystatedtherespondentcommissionwasrequested on 26.10.83 to take the necessary steps to fill the vacant post of Director-General Ministryof Defence. Asthe post in question isa first entry and promotion post, the respondent P.S.C, decided on 3.11.83 to cause a relevant 15 publication in the Official Gazette inviting applications within 3 weeks (videappendix 2 attached tothe opposition). The relevant publication was in fact made on 11.11.83 (vide Appendix3). Twenty-five applicants submitted applicationsfor appointment 20 inthesaid post (videAppendix4). On 14.12.83 a meeting of the respondent P.S.C. was convened; the applications of all candidates and everything submitted insupport therewith wasexamined bythe respondent (videappendix 5).Asa resultofthesaidexamination 3 candidates 25 were excluded by the respondent as not possessing the qualifications envisaged bypara (b)of theScheme ofService. Theaforesaid meetingoftherespondent P.S.C.was adjourned with a view to interviewing the remaining 22 applicants who possessed the required qualifications by the scheme of service 30 then in force. Meetingstothateffect wereheldbytherespondentas aforesaid on23.12.83,29.12.83and30.12.83(videAppendices6,7 and8). The sub-judice decision was reached on 30.12.83 and the interested partywasappointed with effect from 31.12.
4. 35 InthemeantimetheCouncilofMinisterson 15.12.83approved a new Scheme of Service for the Post of Director-General with effect from 1.1.
5. The aforesaid new Scheme of Service was 735 LorisJ. Stavrou v. Republic

(1987)forwarded by the Secretary of the Council of Ministers to the Chairman of the Respondent Commission on 27.12.83 and it was received at the offices of the Respondent Commission on 29.12.1983 (vide Exhibit 1attached to the written address of the Respondent). Itis clear from the facts stated above that the Chairman of the respondent P.S.C. was requested bythe appropriate authority as earlyas26.10.83totakeallnecessary stepsthatthevacantpostof the Director-General, Ministry of Defence, be filled in at the earliestpossible date afterthe 1.11.1983. According to the provisions of s.l0

(4)of Law 33/67 «The Chairmanshallinsertintheagenda,withinoneweekofthereceipt of a request therefor, any subject referred to him by the appropriate authority». Asalready seen the respondent Commission wasconvened on 15 3.11.83 and a publication for the post in question was made on 11.11.83. Asstated by learned counsel of applicant inhiswritten address the post to be filled in isthe most important and the highest post in the civil service; therefore itcould not remain vacant for long. 20 The respondent P.S.C. taking into consideration the significance of the post to be filled in, as well as the relevant request of the appropriate authority was proceeding expeditiously towards the achievement of thisend as requested. On the 14.12.83 at itsmeeting examined the application of all 25 applicants excluding 3 out of the 25 for not possessing certain qualifications envisaged bythe scheme ofservicethenin force. The new scheme of service was approved by the Council of Ministerson 15.12.83.Independently ofthefactthatitcametothe knowledge of therespondent Commission aslateasthe29.12.83 30 manystepsweretaken bytherespondentCommissionpriortothe approval of the new scheme of service. If the submission of learned counsel forapplicantwerecori&ci,allthesestepsoughtto have been set aside and new steps ought to have been taken afresh on thebasisof the newscheme after the 1.1.84,asthenew 35 scheme of service was effective as from 1.1.84; I find myself unable to agree with thissubmission which isdevoid ofauthority. Ihave not examined the criteriaof the newscheme ofservice and the allegation of the applicant that he «might have faired better 736 5 10 3CI.lt. 5 10 Stavrouv.Republic Lori«J. than what he did under the old scheme of service», is something irrelevant to the concern of the Respondent Commission. I hold the view that it was in the public interest that respondent P.S.C. proceeded to complete its task as they did: prior to the coming into operation of the new scheme, savingthus public time and money which would not have beensaved had the respondent interrupted a well advanced procedure which was leading up to the fillingofthe postinquestionwhichwasurgently needed for the proper functioning of the Ministry of Defence. The respondent Commission took cognisance of the new scheme of service, which wasoperative asfrom 1.1.84.a n d ; : ' fact theyrefer to itverbatim inthe lastparagraph of the minutesor their meeting held on 30.12.1983 (vide Appendix 8). Concluding on this ground I repeat that the new scheme ol 1 5 service wasapprovedby the Council ofMinisterson 15.12.83 and itbecameoperative on the 1stJanuary 1984.Needlessto add that the sub-judice decision was reached on the basisof the scheme of service in force at the time the decision was made: in this connection it mustbe borne in mind that «itiscardinal principle of 2 0 Administrative law that the legality of administrative acts is governed by the legislation in force at the time they were made». (vide Lordou and Others v. The Republic

(1968)3 C.L.R. 427 at p. 433.). Forall the above reasons ground 2 fails as well. 25 30 Having considered grounds 1 and 2 above. I intend, for convenience sake, to proceed now with the examination of grounds 4 and 5. which refer to specific issues (Senionty Confidential reports), leaving ground 3 to be determined thereafter. Ground 4 Ground 4 refers t o the «Seniority» of the applicant and the interested party and revolves on the construction to be placed on sub sections

(4)and

(5)of s. 46 of the Public Service Law 1967 (Law 33/67) as amended. 35 Section 46

(4)of Law 3 6 / 3 7 reads as follows: «Seniority between officers holding offices with different salary condition*;shall be determined according to the salary conditions o i the respective offices.» Section 46

(5)as amended by s. 5(d) of Law 10/83 reads as 737 · • LorisJ. Stavrou v. Republic

(1987)follows: «The seniority of officers holding the same office (ή τάξιν της αυτής θέσεως - Άρθρον 5

(5)Νόμου10/83)the salary and title of which have been changed as a result of a salary revision or reorganization, shall be determined according to the officers' seniority immediately prior to such revision or reorganization.» 5 Learned counsel for applicant contests the finding of the respondentP.S.C.totheeffect thattheinterestedpartyisseniorto the applicant and maintains that on the contrary the applicant is senior tothe interested party. 10 He submitted that in the case under consideration the provisions of s. 46

(5)of Law 33/67 should apply as allegedly «previously to 1.1.82 both the applicant and the interested party were on salary scale A15. It is after this date that due to re­ organisation thatboththetitleandthesalaryscale oftheinterested 15 party changed.» And the teamed counsel proceeds with another submission which as I comprehend it is an alternative one to his first submission - as follows: «Going back now to s. 46

(4)of Law 33/67 and in view of 20 the provisions of s. 46

(5)of Law 33/67, I submit that the applicantisnotonlyjuniortotheinterestedparty,butisin fact his senior because on the 31.12.83 the basic salary of the applicant was £7,217, while that of the interested party was £7,073...» In order to decide on the submissions of learned counsel for applicant we have to examine the factual substratum of these submissions andascertain theactualfacts asthey emerge from the material before me which was also before the respondent Commission atallmaterial times. Thus as it is apparent from Enclosure No. 9 attached to the opposition (I)the applicant was holding ever since 15.11.77 his present post which is that of «Director of the Department of Stores». This permanentpost was and still ison Salary Scale A15 (£6002x243-7217). · (Π) (a)The interested party was holding as from 1.12.1975the permanent post of «Director of the Department of Personnel» 738 25 30 35 3 C.L.R. Stavrou ν Republic Loris J. (vide red 79 in Ex 2) (b)The post of «Director of the Departmentof Personnel» was abolished by Law 45/80 and a new post was created that of «Directorof PublicAdministration andPersonnel» (vide Appendix 5 to the FirstSchedule of Law 45/80at ρ 991 -Copy of which is attached ίοthewnttenaddress of therespondentas Exhibit2) The new post created was onscale A16 (£6,587 χ 243-£7,802) (

1. c)The interested partywas promotedtothepermanentpostof «Directorof PublicAdministration andPersonnel» on 1 7 81 (vide 10 red 94 in Ex 2 and EnclosureNo 9 attachedtothe opposition) (
2. d)The interested party was holding the aforesaid post of «Directorof PublicAdministration andPersonnel(ScaleA16) from 1 7 81 up to 30 12 83 when he was promoted to the post of Director-General, Ministry of Defence by virtue of thesub judice 15 decision, itisperhaps necessary toadd thatinvirtue of Law 5/82 (TheBudget of theRepublic -vide ρ 222) thepost of «Directorof Public Administration and Personnel» was simply renamed as from 1 182 to 'Director' without any other repercussions on the post orthesalary scale which remainedthesame ιe A16 20 The renaming of the Post as aforesaid from 1 1 82 was communicatedtotheinterested party (vide red 105inhispersonal file Ex 2 - before
3. me)From the facts stated above which clearly emerge from the matenal before me -which matenal was before the respondent 25 ΡS C -itis abundantly clear thattheapplicant was and still ison salary scale A15 (£6002 x 243-7217) whilst the interested party was onsalary scale A16 (6587 χ 243-7802) ever since 1 7 81until 30 12 83 when he was promoted in virtue of the sub-judice decision 30 From the aforesaid it is clear that s 46

(4)of Law 33/67 is applicable to the case under consideration and the respondent Ρ S C nghtly held that the interested party was senior to the applicant Itisclear from theabove thatthefirst submission was based on 35 a misconceived factual substratum, the applicant and the interested party where holding offices with different salary conditions at the matenal time,they were noton thesame salaa' scale A 15as alleged, theapplicantwas onsalary scale A15 whilst 739 Loris J. Stavrou v. Republic

(1987)the interested party wason salary scale A16.as indicated above. Withregardtothesecond submission 1 find myself unabletoagree with learned counsel for the applicant. It is immaterial whether actually on the 31,12.83 the applicant was drawing a salary of £7,217 - (being on the top scale of salary scale A15) and the 5 interested party was drawing a salary of only £7,073 (having received only 2 increments on the salary scale A16). What subsection 4 of s.46 provides isthat the seniority willbe determined «according to the salary conditions of the respective offices» and not the actual amount of money drawn at the matenal time;and 10 the salary condition of the office held bythe applicant atthe time wassalaryscaleA15whilstthesalaryconditionoftheoffice ofthe interested party wassalary scaleA

1. Forallthe above reasonsground 4cannot succeed. Ground 5:This ground constitutes an all out attack against the compilation of confidential reports. 15 The attack, asI wasabletocomprehend it,is threefold: (a) Absence of safeguards establishing the accuracy in the compilation of confidential reports: the complaint extends to the absence of countersigning officer who mightcheckthe «absolute 20 discretion and freedom» of the reporting officer notably the Director-General of theMinistryof Finance. (b)Presence of bias:Ageneral allegation ismade inthe written address of the applicanttothe effect thatthe Director-Generalof the Ministry of Finance who prepared the confidential reports for 25 the applicant, and was until 1979juniortohim, wasa candidate together with the applicant for the post of Director-General, Ministry of Finance, when the post inquestion wasvacant some yearsago.Therelevantportioninthewrittenaddressconcludesas follows: «Mr. HjiPanayiotou ended up being appointed (as 30 Director-General of the Ministry of Finance) and as such having exclusive, sole and uncheckedrighttojudgethe applicant...» (c)Absence of means ofknowledge bythe Director-Generalof the Ministry of Finance, concerningthe activitiesof the applicant, «headingan independent Department with over 150employees 35 spread allover Cyprus.» Asregardsallegation under (a)above, Ishall confine myself in repeating what was stated by the Full Bench of this Court in the caseof Odysseas Georghiou (Supra)at p.
2. «.. Inour opinion a publicofficer whohasbeen appointed toapostamongtheduties 40 740- 3CL.R Stavrou v. Republic LorisJ . of which is the making of confidential reports about subordinate officers has to be regarded as having been found, by the appointing authonty, to be responsible expenenced and reliable enough to make, more or less, accurate assessments of such 5 subordinates » In connection with allegations of bias of the reporting officer contained in the wntten address of the applicant which are somewhat diminished by the wntten address in reply it must be stated at the outset that «the lack of impartiality must be 10 established with sufficient certainty, eitherby facts emerging from relevant administrative records or by safe inferences tobe drawn from the existence of such facts »Chnstou ν Republic

(1980)3 CLR 437 atρ 449 Inthe case under consideration neitheran allegation of bias was ever placed before the respondent Public 15 Service Commission norsuch alleged bias was ever proved The merefact thatthereportingofficer inthecaseof theapplicant, was around 1979 a competitorwith him for the office of theDirectorGeneral cannotby any stress of imagination support by itself bias or impartiality against theapplicant 20 As regards allegation 3 above I hold theviewthatthe reporting officer who istheDirector-Generalof theMinistryunderwhichthe department headed by applicant comes was in a position to express properly a judgment and have an opinion regarding the applicant, as the applicant himself stated on oath before me, he 25 (theapplicant)himself was making reportstotheDirector-General of the Ministry of Finance although very rarely -once or twice a year Apart from thesereportscertainly therearemanyotherways other than personal contact with a subordinate, enabling the reporting officer to form an opinion and express an appropnate 30 judgment inrespect of theperformance of his subordinate For the reasons Ihave endeavoured toexplain above. Ground 5 fails aswell Reverting now to ground 3, notably thecomplainttothe effect thatthesub-judice decision lacks due reasoning 35 In the first place I am not ready to subscribe to the view advanced by the applicant that the sub-judice decision is bnef; same appears in Appendix 8 attached to the opposition and speaks foritself It mustalsobeborne inmindalwaysthat«reasoningbehindan 741 Loris J. Stnvrou v. Republic

(1987)administrative decisionmaybefound eitherinthedecisionitselfor intheofficial recordsrelatedthereto.»[GeorghiosHjiSawa v.The Republic

(1972)3 C.L.R. 174atp. 205). Furthermore the brevity of an administrative decision isnot in itself indicative oflackofduereasoning. (Petridesv.TheRepublic

(1983)3 C.L.R.216 -Marangos v. TheRepublic

(1983)3C.L.R. 682). 5 Thecomplaint oftheapplicantrelatedtoreasoningtothe effect that«academicqualificationsoftheapplicantwerenot considered in full» cannot be supported in view of the presumption of 10 regularity which isapplicable inrelation to administrative actions (The Republic v. Ekkeshis,

(1975)3 C.L.R. 548, 556 - Piperi& Others v. The Republic

(1984)3 C.L.R. 1306, 1310).And there isnothing before me tending to rebut such presumption; on the contrary itiscrystalclearthatalltheacademicqualifications ofthe 15 applicantaswellasthoseoftheinterestedpartyappearingintheir personal files, which arebefore me andtheywerealsobefore the respondent Commission at the material time, as already stated earlier on in the present judgment, were adequately taken into consideration by the respondent in reaching the sub-judice 20 decision. Before concludingIfeelthatIshouldlaystresstowhathasbeen repeatedly emphasized andrecently reiterated bythe Full Bench ofthisCourt inHjiloannou v.TheRepublic

(1983)3C.L.R. 1041 atp. 1045: «An administrative court cannot intervene in order to set aside the decision ...unlessitissatisfied, byan applicant ina recourse before it,thathe wasan eligiblecandidate who was strikinglysuperiortotheone whowasselected,because only insucha case the organwhichhasmadetheselection forthe 30 purpose of an appointment orpromotion isdeemed to have exceeded the outer limits of its discretion and, therefore, to have acted inexcessorabuse of itspowers ...» Inthecaseunderconsideration theapplicantfailed todischarge theburdenofestablishing«strikingsuperiority»overtheinterested 35 party. Both applicant and the interested party are public officers; it is clear that in the relevant confidential reports the Interested partyisbetterrated than theapplicant; atleastinthemore recent confidential reports(those of the last3 years)the interested party 742 25 3 C.L.R. Stavrou v.Republic Loris J. is rated «excellent» (12-0-0) whilst the applicant is rated «very good»(0-9-3)for 1980(1-9-2)for 1981and(0-9-3for 1982).And it isclear that in cases of promotion merit should carry the most weight (Menelaou v. The Republic

(1969)3 C.L.R. 36 at p.445 Theocharous v. TheRepublic

(1969)3 C.L.R. 318atp.322.) The qualifications of the applicant and the interested party are more or less equal; even if I were to hold that the applicant possesses an additional Academic qualification -which isnot the case - such an additional qualification is not envisaged by the 10 scheme of service under consideration as an advantage, and cannot byitself, constitute strikingsuperiority over the interested party (vide Hjiloannou v. The Republic - supra - and also the majority decision ofthe FullBench inAndrestinos Papadopoulos v.P.S.C.

(1985)3 C.L.R. 405). 15 For the reasons stated in dealing with Ground 3 above, the respondent P.S.C.rightlyheldthattheinterestedpartyisseniorto the applicant. In the light of the above, I am satisfied that the respondent P.S.C. carried out due inquiry taking into consideration all 20 relevant criteria and properly applying the law inreaching at the sub-judice decision whichwasreasonably open toit. Finally I may repeat that having examined the sub-judice decision inthe lightofthe materialbefore me I am satisfied thatit clearly conveys the reasoning why the interested party was 25 preferred for the promotion in question instead of the applicant; and asamatterof fact the filesbefore me,whichwerealso before therespondent P.S.C.contained morethan therequired material which can support the sub-judice decision allowing at the same timean unhindered judicial scrutiny. 30 Inthe resultpresent recoursefailsand isaccordingly dismissed; letthere be no orderastoitscosts. Recourse dismissed. No orderastocosts. 743