(1987)1987 May5 [PIKI5 J I INTHEMATTER OFARTICLE 146 OFTHECONSTITUTION GEORGHIOSTILLIRIDES, Applicant, ν THECYPRUS TELECOMMUNICATIONS AUTHORITY, Respondent (Case No 483/86) Reasoningofanadministrativeact—Promotion ofofficersofPublicCorporations —Absence ofreference tothecandidatesortheresultsof comparison—Gap withregardtotheprocessofcompanson difficulttobndge byreferencetothe matenalm thefile Public Corporations — Promotions —Cyprus TelecommunicationsAuthority— 5 Service reports — The Personnel Regulations of Cyprus Telecommunications Authonty General Regulations 1982, Reg 23
(4)— Service reports foryears 1982-1985not prepared inaccordance with said regulation— Ought to have been disregarded — Service reports foryears 1970 1982 prepared outside theframeworkofthelawthenmforce,notably 1 0 sechon 3 of the PublicCorporations (Regulation of PersonnelMatters)Law 61/70— Ought tohave been disregarded Public Corporations —Promotions — Cyprus TelecommunicationsAuthority — ThePersonnel Regulations of Cyprus TelecommunicationsAuthority 1982 — Regulations 10
(7)
(8)
(9)
(10)and
(13)— Failure to compile yearly 1 5 promotion tables— Intheabsence ofevidence to thecontrary, theomission isconsequential By means of this recourse theapplicant challenges thepromotion of the interested partes to the post of Section Leader Itmust be noted thatthe respondentsmadenospecific referencetothecandidatesortheresultsofthe 2 0 companson thatledthem tothesubjudiceselection Held, annullingthesubjudice decision
(1)Atitshighestthe reasoningof the sub judice decision is sketchy Though it may, to an extent, be supplemented by the matenal inthefiles thegap isdifficult tobndge with regard to the absence of any record of the processof comparison Such 2 5 details, as are given, leave question marksabout thecntena followed For 920 3C.L.R. Tilliridcs *.CY.T.A. example a statement in respect of interested party Serghiou indicates attachmentof undueimportance tothefactor ofseniority,whereasas regards interestedparty Kynacou senionty isnotevenmentioned 5
(2)The service reports for the years 1982-1985 were not prepared in accordance with Reg 23
(4)of the aforesaid Regulations Adopting the reasoninginAlvamsv CYTA
(1985)3CLR 2695,thisCourtfinds thatthe said reports ought to have been disregarded The service reports of the previous years 1970-1982 oughtalsotohave been disregarded asthey were prepared outsidethelaw then inforce, notably section3 of Law 61/70 10 Inevitably the sub judice decision, which to a large measure rested on inadmissible facts, ιe thesaid reports,mustbeannulled Relianceonthesaid reports made the decision vulnerable for misconception of facts and consideration of matenal extraneous to the discretionary powers of the respondents 15
(3)In the absence of evidence that the failure to heed the relevant provisions (paragraphs
(7)
(8)
(9)
(10)and
(13)of Reg 10, relating to the compilation ofyearly promotion taoies,nadnoιioticeab!e effects on. *>esub judice decision, the omission to compile such tables must be treated as consequential and the decision is liable to be set aside on this additional ground as well (Hjilosif ν CYTA
(1986)3 C L R 1353 explained and distinguished) 20 Subjudice decision annulled No orderas tocosts Casesrefened to 25 Alvamsν CY ΤA
(1985)3C LR 2695, Hjilosifv CYTA
(1986)3 CLR 1353, Frangosand Othersν TheRepublic
(1982)3 CLR 53, ArsahdesandAnother ν CYTA
(1983)3 C LR 510, Ploussiouv CentralBank
(1983)3 CLR 398, 30 Sofocleous ν ΕAC
(1985)3 CLR 1089, Sawav CEA (1986J3CLR 80 Recourse. Recourseagainstthedecisionoftherespondenttopromotethe interested partiestothepostofSectionLeaderinpreference and 35 insteadof theapplicant A. S Angehdes, for theapplicant 921 TUIiridJesv. C Y T A .
(1987)A. Hjiloannou, for the respondent. Cur.adv. vult. PIKISJ. read the following judgment. Georghios Tillirides, the applicant, challenges the promotion of two of his colleagues formerly fellow Sub-Section Leaders, to the post of Section ° Leader. The decision topromote the interested partieswastaken bythe Personnel Committee atitsmeeting of28th May, 1986and approved by the General Manager on 31st May, 1986; the two authorities of the Corporation entrusted with the promotion of personnel at that level of the hierarchy. In the decision of the 10 Personnel Committee it isminuted that in making their selection theytookintoconsiderationtheservicerecordofthecandidatesas reflected in their files, their qualifications and generally their contribution to the service. No specific reference is made to the candidates or the results ofthecomparison that ledthem toselect 15 theinterested parties.Atitshighestthereasoningofthedecisionis sketchy. Of course it may, to an extent, be supplemented by reference toadministrative records,butthegapismoredifficult to bridge with regard to the absence of any record ofthe processof comparison. Such details, as are given in the decision for the 20 choice of the interested parties, leave question marks about the criteria relied upon for their choice. For example, in the case of interested party Costas Serghiou, emphasis islaid on the fact that he wasthe mostsenior ofthecandidates eligibleforpromotion, a statement apt to give the impression that they attached undue 25 importance to that consideration; whereas in the case of the second interested party, Christos Kyriacou,nospecific mention is made of the factor of seniority. Applicant challenges the validity of the selection for lack, inter alia, of due regard to his striking superiority. The nature of the 30 complaint brings immediately to the fore the absence of proper record of the claimsof competing candidates topromotion. That, however, is not the only ground upon which the sub judice decision ischallenged. Itiscontested on other equally important, if not more consequential grounds that concern the substratum 35 and framework within which the decision was taken. These objections may besummarised and recounted as follows:(a) Invalidity of confidential reports considered by 922 3 C.L.R. TUIlrldes v.CY.T.A. Pikis J . respondents for lack of compliance with the provisions of Reg.23
(4)*. (b)Failuretocompile promotion tables inaccordance with the provisionsof Reg. 10{7),
(8),
(9),
(10)and
(13). 5 (c) Breach of the provisions of Reg. 24(A)
(3)in the composition of the Personnel Committee, resulting in the assumption ofpowertomakepromotionsbyan incompetent organ. Inthe courseoftheproceedings one otherobjection wastaken 10 referable to the validity of the scheme of service under which ChristakisKyriacou was promoted. Evaluation reports -Reg.23
(4): Counsel forthe respondentsacknowledged thatthe evaluation reports, that is the reports on the worth of the services of the 15 candidates, were not prepared or submitted in accordance with the provisions of Reg. 23
(4). As a matter of fact upto 8th November, 1985,the respondent Authority neveradverted tothe exercise of itsrule making power and failed todefine the content and related matters to which reports should conform. On at least 20 two occasions, namely, Alvanis v. CYTA** and Hjilosif v. CYTA*** the Supreme Court ruled that evaluation reports prepared and submitted outside the framework of Regulation 23
(4)are invalid and for that reason inadmissible material for consideration for purposes of promotion. 25 Counsel for the respondents submitted that neither decision is binding on this Court and should, on that account, not be followed. But no persuasive arguments were advanced casting doubts on the reasoning on which the decision were founded. Although thisCourt isnot strictly bound by decisions of courtsof 30 co-ordinate jurisdiction, they are, as a rule, followed unless the Courtispersuadedthattheyareclearlywronginlaw.****Notonly I am not that way persuaded but on further reflection I am reinforced intheviewthatthey embody a correct appreciation of the law, in no way fraught with error or disregard of binding 35 precedent. Therefore, I am content to adopt the reasoning in * PersonnelRegulationsofCyprusTelecommunications Authonty GeneralRegulations, 1982 -Official Gazette,Part 111
(1), No 220 **
(1985)3 C L R . 2695. * ' *
(1986)3 C L R . 1353 " "
(1982)3 C L R 53,Frangos& Othersv. Republic 923 PiklsJ. Tillirides v. CV.T.A.
(1987)Alvanis and forsimilar reasons I find thatthereports submitted on the candidates for the years 1982-1985, the crucial period immediately preceding the selection, ought to have been disregarded. Previous reports, those submitted between the years 1970- 5 1982 should also have been ignored, as they had likewise been prepared outside the framework of the lawthen inforce notably section 3 of thePublic Corporations (Regulation on Personnel Matters) Law, 1970. No Regulations were inforce atthe timeof the enactmentof the above law, asnone had been promulgated 10 under the InlandTelecommunicationsService Law, Cap.302,as the Court held inArsalidesand Another v.CYTA. *Earlier, inthe case ofPloussiou v. CentralBank** the Courtdecided no ruleor regulation and generally no act having legislative attributes acquires the force of lawwithout prior publication inthe official 15 Gazette. This principle was applied in Sofocleous v. E.A.C.*** resulting ina decision toinvalidate pertinent regulations of the Electricity Authority forlack ofpublication. Recently the caselaw onthesubject was reviewed bySawides, J.inSawa v.C.E.A.**** Inevitably thesub judice decision must be annulled because it 20 rested, inlarge measure, on inadmissible facts, viz. the evaluation reportsonthecandidateseligibletopromotion.Relianceonthose reports made the decision vulnerable for misconception of relevant facts and consideration of material extraneous to the discretionary powers oftherespondents. 25 Promotion Tables —Regulation 10
(7),
(8),
(9),
(10)and
(13). The Regulations envisage the compilationofyearly promotion tables eliciting the claims of personnel to promotion. The importance of those tables and the priorities established thereby are evident from therightgiven tothose affected toobject totheir 30 contentandtheprocedureofhierarchicalreviewdesigned toheed those objections. Ναpromotion tables were prepared inthis case relevant tothe expectation ofeligible candidatesto promotion, a fact that rendered thepromotions effected in absence of them, abortive. InHji.losif(supra), Stylianides, J. ruled thatomission to 35 compile the tables envisaged bythe rules,was notofitself fatal to •
(1983)3CLR, 510. "
(1983)3CLR. 398. ***
(1985)3-C.LR., 1089 ••"
(1986)3CLR., 80. 924 3 C.L.R. PikisJ- TilKrldeu v. C Y T A . the validity of the promotions reviewed in that case As I comprehend thejudgment ofthe Court itisfastened tothe effects of the absence of tables inthat particular case Itwasnot decided thatfailure toheed theprovisionsoftherelevant Regulations, that 5 is,Regulation 10(V),
(8),
(9),
(10)and
(13)would, ineverycase,be inconsequential Tomycomprehension, therelevantprovisionsofRegulation 10 aim to establish an essential prerequisite for the valid exercise of the power to promote, intended to forewarn personnel of their 10 chances of promotion and safeguard their nght to object m time with a view to eliminating errors or abuse of power in the compilation ofthetables Intheabsence ofevidence thatfailure to heed the relevant provisions of Regulation 10 had no noticeable effects on thesubjudice decision,the omission mustbetreated as 15 consequential and the decision is liable to be set aside on that additional ground as well Failure of the Personnel Committee to detail theeffect ofcompanson ofthenvalmentsofthecandidates, makesthefailure toobserve therelevantprovisionsof Regulation 10 more prominent still rendenng the decision vulnerable to 20 annulment In the light of the grounds indicated above exposing the decision to invalidity, it is unnecessary to probe the remaining complaints, especially those pertaining to the ments of the candidates Theneed for certainty,however, compelsmetodraw 95 attention to the absence of publication of the scheme of service under whichinterestedparty ChnstosKynacou waspromoted, an omission thatpnma facie seemstorender itinvalidin accordance with the decisions in Pioussiou and Sawa (supra) On the other hand, I make littleof the complaintthatthe Personnel Committee 30 wasill-composed on account of therank of its members In the result thesubjudice decision isannulled No order as to costs Sub judice decision annulled No order asto costs 925