clr/1987/1987_3_751.pdf

(1987)Theapplicant by meansofthisrecoursechallengestheappointment ofthe inieiested partytothepostofDirectorPrimaryEducation,whichisafirstentry and promotion post On 26.11.83 a Judge of this Court annulled the decision, whereby the present applicant had beenpromoted with effect asfrom 1.11 80 tothepost 5 of General Inspector of Primary Education (See Karayiorghis v. The Republic

(1983)3 C L R 1211). The present applicant, feeling aggneved, filed Revisional Appeal No 350. On 30 1183 another Judge of this Court annulled the decision whereby the interested party in this recourse Papadopoulos.had. also,beenpromotedwitheffectfrom 1.11,80tothesaid 1 0 post of General Inspector (See Tornaris v. The Republic

(1982)3 C.L.R. 1165). On22.12 83-5daysbeforethefilingofthesaidappealandlongbeforethe expiration of the time prescnbed for appeal - the respondent Commission reconsidered the matter of the promotions to the said post of General 1 5 Inspector and decided to promote to the said post retrospectively as from 1.11.80the interestedparty inthisrecourse andthesaidTomans. Notwithstandingarequestinwntingbycounselforthepresentapplicant for postponement of the decision relating to the sub judice post of Director Primary Education until determinationofRevisionalJunsdictionAppeal350, 2 0 the respondent Commission decided to proceed and finally appointed interested party Papadopoulos to the post of Director Pnmary Education In reaching the subjudice decision the respondent Commission took into consideration the senionty oftheapplicant.Theapplicant wasconsideredas themostjunior because he wasdeemed«Inspector B»,Generalsubjects,i e 2 5 to the post to which he reverted by reason of the said annulment of his promotion to the post of General Inspector of Elementary Education. The Full Bench of this Court allowed Revisional Jurisdiction Appeal 350 (See Papaleontiou v. The Republic

(1987)3 C.L.R 211) and confirmed the present applicant's promotion with effect as from 1.11.80 to the post of 3 0 General Inspector of Elementary Education The sub judice decision is challenged on two grounds, namely that the Commission laboured under amisconception of fact asregards applicant's seniority andthat the evaluation of the performance of the candidates atthe interview almost 10 months after the interview vitiates the process of the 3 5 takingof thedecisionandthe evaluation by theCommission. Held, annulling the subjudice decision-

(1)An Administrative act isvalid until itsannulment by theSupreme Court Section9oftheAdministration of Justice (MiscellaneousProvisions) Law33/64 vestsintheSupremeCourtthe junsdictions of the Supreme Constitutional Court and of the High Court of 4 0 Justice. In dealing with arevisionaljurisdiction appealthe Full Bench of this Court approaches itbywayofcomplete re-examination ofthecase,thebasic 752 3 CL.R. 5 10 15 20 25 Papaleontiou v. Republic '^sue continuing to be the validity of the act decision or omission in respect of which a recourse under Art 146 of the Constitution was made and in relation to which there has decided inthefirst instance oneof theJudges of this Court (PerTnantafyllides Ρ in Papaleontiouν The Republic

(1986)i C L R 1238atpp 1240- 1241 ) Fromthejunsprudenceof thisCourtonthe interpretation and application of Section 11

(1)and

(2)it is settled thai the litigants are entitled totheopinionof the FullBench of theSupreme Court in a c.-'se coming within the revisional jurisdiction vested in the Supreme CjpstituiiOnal Court under Article 146 Therefore where an appeal is filed against a judgment of a Judge of this Court exercising junsdiction under paragraph

(2)of s 11.the only final judgment and effective one with regard tothelegality of anact ordecision is thejudgment of theFullBench

(2)Therecanbe nodoubtthattheseniority of thecandidatesinfluenced the respondent Commission in taking the sub judice decision The Commission considered the applicant as the holder of the po»t of lnspec*or Β General Subject This was an error of fact because in the light of the aforesaid pnnciples and the outcome of Revisional Junsdiction Appeal 350 the Commission took into account a non existing fact and did not take into account the correct fact namely that the applicant held the post of General Inspectorof Pnmary Educationas from 1 11 80

(3)Inview of the absence of any official contemporaneous lecord ol the Commission regarding the performance of the candidatesand inview of the penod of almost 10 months which elapsed between the interviews and the evaluation by the Commission of the performance of thecandidatesat such interviews there exists a probability that notwithstanding the undoubted good faith of the Commission because of thepassage of time mistakes have creptin Itishumanlyimpossible toreacha reasonably correctevaluation 10 months after an interview (41 Forthe foregoing reasons thisrecourse succeeds 30 Subjudice decision annulled No orderas to costs Casesreferredto Karagiorghis ν TheRepublic

(1983)3 C LR 435 Tomans ν TheRepublic

(1982)3 CLR 1165 35 Karagiorghis ν TheRepublic

(1983)3 C L R 1211, Tormansv TheRepublic

(1983)3 CLR 1292 Papaleontiouν TheRepublic

(1986)3 C LR 1238 Papaleontiouν TheRepublic

(1986)3 C LR 1233, Kmawsand Othersν Repulic

(1986)i C LR 151 753 Papaleontiouv. Republic

(1987)TheRepublic v.Maratheftis andAnother

(1986)3C.L.R.

1. Recourse. Recourse againstthedecision oftherespondentstoappointthe interested party to the post of Director of Primary Education in preference and instead of theapplicant. 5 A.S. Angelides, for the applicant. A. Vassiliades, forthe respondents. A. Pandelides, forthe interestedparty. Cur.adv. vult. STYLIANIDES J. read the following judgment. The applicant 10 by means of this recourse challenges the appointment of the interested party to the post of Director Primary Education. Another relief prayed is a declaration that the refusal of the respondents tosuspend the procedure of fillingthesaidpost until the determination of Revisional Appeal No. 350 isnulland void 15 and with no legal effect. The request for the filling of the post of Director Primary Education wasmade byletter21.7.82.Thepostisafirstentryand promotion post. Itwasadvertised intheOfficial GazetteNo. 1693 dated 6.8.
2. The last date for submitting applications was 20 28.8.
3. Seven educationalists intheservice oftheMinistryof Education applied for the post. A Departmental Board was formed. It submitted itsreport tothe respondent Commission on 9.11.
4. On 9.12.82 clarifications were asked under Reg. 6 for the 25 establishment and functioning ofthe Departmental Boards,which were furnished on 28.12.
5. The Public Service Commission interviewed the four candidates, including the applicant and the interested party, recommended by the Departmental Board, and on their request 30 also the other candidates. The interview in the presence of the Director-General of the Ministry took place on 13.7.83 and 14.7.83.Questions wereputtothecandidatesonget^ral subjects mainly concerning the dutiesof the post, which are setout in the scheme of service.Atthe meeting oftherespondent Commission 35 of 16.7.83theDirector-General oftheMinistrystatedhisviewson the performance of the candidates at the interview - (Appendix 754 3 C.L.R. Papaleontiou v. Republic Stylianlde· J. 12} He proceeded and made recommendations. On the same day the respondent Commission, as all the candidates were in the Educational Service of the Republic, decided toinquireof theMinistryastotheirseniority.On 19.7.83 5 a table indicating the seniority of the candidates was furnished to theCommission.Theinterestedpartyandtheapplicantweretopin the li?i PSthey were General Inspectors as from 1.11.80, having been promoted to that post on 22.10.
6. That promotion of the applicant was annulled by Judge Hadjianastassiou in Recourses 10 No.371/80 and 483/80 on 5th May, 1982 -(Karayorghis v. The Republic,

(1982)3C.L.R. 435).ThesameJudge on21st October, 1982, annulled the promotions of applicant Papaleontiou and interested party, Papadopoulos, tothesaid post -(Tornarisv.The Republic,

(1982)3 C.L.R. 1165). 15 On 11th May, 1982, and on 25.10.82 applicant Papaleontiou and Papadopoulos were respectively promoted tothe same post retrospectively asfrom 1.11.

1. The newpromotions were challenged inRecourse No. 258/82 byone ofthecandidates, namely. Karayorghis.Thisrecourse was 20 pending on 2.8.83 when the respondent Commission took cognizance of the table of seniority furnished by the Ministry of Education. On that day it was decided to «ask for legal advice whether amongst the factors that should be taken into consideration forthe general evaluation ofthecandidateswasthe 25 seniority of these two candidates according to their second promotion to the post of General Inspector or if that should be ignoredinviewofthefactoftheannulmentoftheoriginaldecision of the Educational Service Commission and the further impeachment of the second promotion before the Supreme 30 Court»."The legal advice, on which, it appears, that the Commission acted, iscontained inAppendix 16dated 15.12.
2. Theywereadvised totakeintoconsideration theseniorityofthese two officials according to their second promotion to the post of Inspector-General. Itisfurther stated inthisappendixthatthe final 35 actofthe PublicService Commission would belegallyfaulty ifthe Commission took into consideration their seniority to the post of General Inspector, had such promotion been annulled shortlyby the Supreme Court inthe pending recourse asthe Administration hastoactonthefactual and legalsituation existingatthe timethat 40 adecision istaken. 755 Stylianldes J. Papaleontiou v. Republic

(1987)Recourse No 258/82 was determined by a first instance judgment of aJudge of this Courton 26th November 1983. with the result that the decision of this promotion was annulled (Karayorghis ν The Republic

(1983)3 C L R 1211) The promotion of interested party Papadopoulos was annulled in Recourse No 27/83 by another Judge of this Court on 30th November 1983 - (Tomans ν The Republic,

(1983)3 C L R 1292) The present applicant, Papaleontiou being aggneved filed Revisional Appeal No 350 against the decision in Recourse No 258/82 5 1 0 On 22nd December. 1983 - 5 days before the filing of the said appeal and long before the expiration of the time prescribed for appeal - the Educational Service Commission reconsidered the matter of the filling of the two posts of General Inspector of Elementary Education and promoted Papadopoulos and 15 Tomans On 14 4 84 the Director-General of the Ministry sent to the respondentCommission anewrevised tableshowing thesenionty of the candidates, in which the present applicant was the last, ιe 6th, as holder of the post of Inspector«B», GeneralSubjects, and 20 drawing salary in the scale A 12 whereas Tomans and Papadopoulos were given thefirst places as holders of thepostof General Inspector and drawing salary in the scale of A 14 Inhis letterof 14 4 84 a further evaluation of the candidates is made by the Director-General On 30 4 84 the respondent Commission considered the senionty of the candidates according to this new table and the contents of the letter of the Director-General of 14 4 84 On 4 5 84 Commission considered thescheme of service ofthe post of General Inspector, Inspector «A» and Inspector «B», of 30 Primary Education, ι e the scheme of service of the posts the candidates were holding On the same day they considered a letter from counsel for the applicant dated 2 5 84 whereby he prayed that the Commission postponed reaching a decision until after the determination of 35 Revisional Appeal No 350 whereby theapplicant challenged the judgment of the first instance Judge annulling his promotion to General Inspector and Recourse No 565/83 whereby he impugned the new promotionsdecided on 22 12 83 756 25 3 C.L.R. Papaleontiou v. Republic Stylianides J . TheCommission declinedtoacceptthisrequestand proceeded to evaluate the performance of the candidates at the interviews . havingregard tothe opinionsoftheDirector-General After doing so, itproceeded tothe general evaluation and companson of the 5 applicants it took into consideration the senionty of the candidates as set out in the letter and the table of 144 84 The applicant was recorded as the most junior as he was deemed Inspector «B»,General Subjects Then they took pains tomake a particular comparison between Papadopoulos, the interested 10 party and Tomans, who were in order of senionty, according to that table, Nos 1 and 2, and finally reached the sub-judice decisionwhereby Papadopouloswasselectedandappointed with effect from 155 84 The Supreme Court in Revisional Appeal No 350 allowed the 15 appeal and confirmed underArticle 146 4of the Constitution the decision of 115 82 of the Educational Service Commission whereby the applicant waspromoted with effect from 1 1180 to the post of General Inspectorof Pnmary Education The legality of the sub-judice decision is challenged on a 20 mumber ofgrounds, including - 25 30 (a) That it was taken under a misconception of fact in the sense that the respondent Commission took into consideration the senionty of the applicant as holder of the post of Inspector «B»and not General Inspector and that the promotion ofeithertheinterested partyorTomanstothesaid poston22 1283wasuntenableinviewoftheconfirmation of the promotion ofthe applicant, and, (b)Thattheevaluationoftheperformance ofthecandidates at the interview almost 10 months after the interview vitiates theprocessofthetakingofthedecision andtheevaluation by the Commission An administrative act is valid until its annulment by the Supreme Court under Article 1464(b) of the Constitution The junsdiction vested in the Supreme Constitutional Court under 35 Article 146 is exercised by the Supreme Court under the Administration of Justice (Miscellaneous Provisions) Law, 1964 (No 33of 1964) Section 9 of the Administration of Justice (Miscellaneous Provisions) Law, 1964 (No 33 of 1964), which defines the 757 Stylianides J . Papaleontiou v. Republic

(1987)jurisdictiontobeexercisedunderSection 11,vestsinthe Supreme CourtthejurisdictionsoftheSupreme Constitutional Courtandof the High Court ofJustice. In particular, the Supreme Court isvested, inter alia, with the revisionaljurisdiction oftheSupreme Constitutional Court,under Article 146oftheConstitution,andwiththeappellate,originaland revisional jurisdictions of the High Court of Justice, under Article 155of the Constitution. 5 Section 11 provides:«11. (!) Anyjurisdiction, competence or powers vested in 10 the Court under section 9shall,subject tosubsections

(2)and

(3)and to any Rules of Court, be exercised bythe full Court.

(2)Any original jurisdiction vested in the Court under any law in force and any revisional jurisdiction, including jurisdiction on theadjudication ofarecoursemadeagainstan act or omission of any organ, authority or person exercising executive or administrative authority as beingcontrary tothe lawinforce orinexcessorabuseofpower, maybe exercised, subject to any Rulesof Court, bysuchJudge orJudges asthe Court shall determine: 15 20 Provided that, subject toany Rules of Court, there shall be an appeal tothe Court from hisortheir decision.

(3)Any appellate jurisdiction vested in the Court shall, subject to any Rules of Court, be exercised by at least three Judges nominated bythe Court. Each such nomination shall be made inrespect ofa period of four months at the beginning ofsuch period». The nature and scope of a revisional jurisdiction appeal was aptly described by TriantafyHides, P., in Georghios Papaleontiou v. The Republic,

(1986)3 C.L.R. 1238, at pp. 1240-41, as 30 follows:«Itiswellsettled(see,interalia, Vassiliadesv.The Republic,

(1967)3 C.L.R. 82, 83) that a revisional jurisdiction appeal, such astheone withwhichweare nowdealing,isintended to ensure tothepartiestoitthebenefit oftheopinion ofthe Full 35 Bench of the Supreme Court in a case coming within the revisional jurisdiction which was vested in the Supreme Constitutional CourtunderArticle146oftheConstitution and 758 25 3 C.L.R. Papaleontiou v. Republic Stylianides 4. which isnow exercised inthe first instancebyaJudge of the Supreme Court under section 11

(2)of the Administration of Justice (Miscellaneous Provisions) Law, 1964 (Law33/64). 5 10 15 20 In dealing with a revisional jurisdiction appeal the Full Bench of this Court approaches itby way of a complete reexamination of the case (see, inter alia, The Republic v. Georghiades,

(1972)3 C.L.R. 594, 690, ThePresidentof the Republic v. Louca,

(1984)3 C.L.R. 241, 249, and Ayios Andronikos Development Co.Ltd. v.The Republic,

(1985)3 C.L.R. 2362,2373). Insuchanappealthebasicissuecontinuestobethevalidity of the administrative act, decision or omission in respect of which a recourse under Article 146 of the Constitution was made and in relation to which there has decided, in the first instance, one oftheJudgesofthisCourt(see,interalia,inthis respect, Pikis v. The Republic,

(1968)3 C.L.R. 303, 305, Constantinides v. The Republic,

(1969)3 C.L.R. 523, 530, 77ieRepublic v. Pericleous,

(1972)3 C.L.R. 63,68, Christou v. The Republic,

(1982)3 C.L.R. 634, 639, the Louca case, supra, 265,Ethnikos v.K.O.A.,

(1984)3 C.L.R. 1150,1154, andZachariades v. The Republic

(1984)3 C.L.R. 1193, 1218).Thus,ineffect, the FullBench oftheCourtisseizedof the matter 'ab initio'.» From thejurisprudence of thisCourt on the interpretation and 25 applicationofSection 11

(1)and

(2),itissettledthatthelitigantsare entitled to theopinion ofthe FullBench of the Supreme Courtin a case coming within the revisional jurisdiction vested in the Supreme Constitutional Court under Article 146. Therefore, whereanappealisfiledagainstajudgmentofaJudgeofthisCourt 30 exercising jurisdiction under paragraph 2 of section 11,the only final judgment and effective one with regard to the legalityof an act ordecision isthejudgment of the FullBench. Theapplicantexercisedhisrightofappealwithinthe prescribed time. Revisional Appeal No. 350 was pending before the Full 35 Bench. This was brought to the knowledge of the respondent Commission by the letter of hiscounsel.The onlyfinaljudgment in the case is the judgment confirming, the promotion of the applicant with effect from 1.11.80 to the post of General Inspector. The fact that the Educational Service Commission did 40 notappealagainsttheaforementionedfirstinstancejudgmenthas nobearing on thiscase. 759 Stylianides J. Papaleontiou v. Republic <j o(J7) Itis noteworthy thatthe Full Bench in anotherinterim decision in Revisional Appeal No 350 - (Papaleontiou ν 77ie Republic, <1986)3CLR 1233, atρ 1237)-had thistosay «In the present instance, however if the appeal of the appellant issuccessful, theannulmentof hispromotionby the 5 first instance judgment will be set aside and the decision to promote him, which was taken by the respondent Commission, as aforesaid, on the 11th May, 1982, will preserve its executory nature and there will have then to be examined the validity of the aforementioned subsequent JO decision of the Commission, on the 22nd December, 1983, which was taken ontheassumption thattheearlierpromotion of the appellant had been annulledjudicially» Itis plain that the respondent Commission in reaching the sub­ judice decision took into consideration the senionty of the 15 candidates according to the table presented to itby theDirectorGeneral of the Ministry on 14 4 84 in which theapplicant is listed last andtheinterested party second,being theholdersof the posts of Inspector «B» and General Inspector of Pnmary Education, respectively That this senionty influenced their decision is 20 undoubted and it is borne out plainly from the contents of the decision itself Throughout theprocess of theirdeliberations and theirinquires they took pains tofind out this senionty In view of the decision of the Full Bench of this Court in Revisional Appeal No 350, the factor of senionty as taken into 30 consideration by the Commission is erroneous If the actual fact that it should have been taken into consideration is as it finally resulted from the decision of theFullBench inRevisional Appeal No. 350, which reversed the first instance judgment in Recourse No 258/82, then the Commission laboured under a 35 misconception of fact in the sense that they took into consideration a non-existing fact and they did not take into account the correctfact The Commission took intoconsideration erroneous factors The position of the applicant crystallized in Revisional Appeal No 350 The promotion of the applicant on 40 11 5 82 with effect from 1 11 80 preserved its executory nature and itwas continuously validandwas confirmed by theCourt «Court» in the context of the Administration of Justice, as established by s 11 of Law No.33/64, is thefirst instanceCourt, one Judge of this Court, but if an appeal is filed, then the Full 45 760 3 C.L.R. Papaleontiou v. Republic Stylianides J . Bench, asthe jurisdiction isvested inthe Full Bench. The sub-judice decision is,therefore, faulty and cannot survive thejudicial scrutiny. -. The evaluation by the Commission of the performance of the 5 candidates at the interview was preceded by the evaluation and the recommendations ofthe Director-General oftheMinistrywho thought itfittosend manymonthslater, inApril, 1984,inthe form of clarification further recommendations. ThePublicServiceCommission isaverybusybody. Ithashigh 10 responsibilities;itinterviewsmanycandidatesforappointmentand promotion inallsectors of thepublicservice.The interviewinthe present case for a post that carries serious administrative responsibilities isnot to be deemed as an ordinary interview for which the Courts have imposed certain limitations with regard to 15 theirscope.Itisnoteworthyfurther thattheDirector-General rated theinterested partyas«VeryGood».Heratedalsotheapplicantas «VeryGood» but the «VeryGood» of the one was unequal to the «Very Good» of the applicant. He said that the first was Papadopoulos who was «Very Good» and then he listed three 20 others as «Very Good», including the applicant. Itistrue that the respondent Commission rated both as «Very Good», but itisnot clear whether the «Very Good» of the one is different from the «VeryGood»oftheotheroriftheyhadbeen influenced bytheoral evaluation and the written communication ofthe Director. Ileave 25 that issue open. I have reached the conclusion, however, that in view of the absence of any official contemporaneous record of the Commission regarding the performance of the candidates and in view of the period of almost 10 months which elapsed between 30 the interviews and the evaluation by the Commission of the performance of thecandidates atsuchinterviews,thatthereexists a probability that, notwithstanding the undoubted good faith of the Commission, because of the passage of time mistakes have crept in. Itis humanly impossible to reach a reasonably correct 35 evaluation 10monthsafter aninterview. Itisclearfrom the record placed before me that the evaluation was not made shortly after the interviewsbutrecordswerekeptandinserted intheirdecision at such late time. Had it been so, the matter would have been different. 761 Stylianides J. Papaleontiou v. Republic

(1987)With regard to the belated evaluation at the interviews, useful reference may be made, inter alia, to Kinanisand Others v. The Republic,

(1986)3 C.L.R. 151, 157, and The Republic v. M. Maratheftisand Another,

(1986)3 C.L.R. 1407. For the foregoing reasons this recourse succeeds. The subjudice decision is declared null and void and of no' effect whatsoever under Article 146.4(b). 5 Letthere be no order astocosts. Subjudice decision annulled. No order 10 asto costs. 762