3 C.L.R. '·''•-· •'*'· l <J 1 Λ 1988July 14' · — ι [A.LOIZOU, P.] INTHE MATTER OF ARTICLE 146OFTHECONSTITUTION KYRIACOS KAPITANIS, Applicant, v. ., . . THE REPUBLICOF CYPRUS,THROUGH THEPUBLIC SERVICECOMMISSION, •„ •y - , , „ Respondent. (CaseNo. 373186). NaturalJustice—Bias—Promotionsofpublic officers—Confidential reports— Strainedrelationsbetweenreportingofficerandofficerreportedupon stem mingfrom thepoor viewtakenbytheformer of theperformanceorconduct of the latter—They cannot establish a case of bias—Personal animosity •stemmingfrom anextraneousfactor-^Depending onthe circumstances', it mightbe taken intoaccountindeterminingwhetherthereexistsbias. ' Public Officers—Promotions—Confidential reports—Preparatory acts—If void, theysweep with themto annulmentevery act thatfollows, including thefinalact. , r J _ 10 Generalprinciples ofadministrative law—Preparatoryacts—Consequences of thesebeingnullandvoid. 15 Public Officers-lPromotions—Candidates comingfrom different'branches of - adepartment—Each one's performance in one's section should betaken •>-'into consideration,without considering whichof thesections was themost important., , ., '."**. . ; ... 1413 Kapitanis v. Republic (198«) Thefactsofthiscasesufficiently appearintheJudgmentoftheCourt. Recoursedismissed. Noorderastocosts. Casesreferredto: Christouv.TheRepublic
(1983)3C.L.R.437; 5 Kontemeniotis v.C3.C.
(1982)3C.L.R.1032; Masourav.TheRepublic
(1984)3C.L.R.631; Charalambidesv.TheRepublic
(1983)3C.L.R.992; Republicv. Harts
(1985)3CJL.R.106; Agrotisv.ElectricityAuthority
(1981)3C1.R. 503; 10 Michaeloudisv.TheRepublic
(1979)3CX.R.56. Recourse. Recourse against thedecision oftherespondent topromote the interested partytothepostofSeniorTechnicianintheDepartment of Antiquities inpreference andinsteadoftheapplicant. 15 St. Kittis withA.S. Angelides, for the applicant. L. Koursoumba (Mrs.), for the respondent. Cur. adv. vult. A. LOIZOU P.read the following judgment. By the present recourse theapplicantseeksadeclaration oftheCourt thattheact 20 or decision of therespondent Commission bywhich itpromoted Gregoris Christou tothepostof SeniorTechnician intheDepartment of Antiquities as from the 1stApril 1986is null and void 1414 3 C.L.R. Kapitanis v.Republic andwithnolegaleffect. 5 • n "' A.Loizou P. - Therelevantfacts arethese:The saidpost isapromotion post and according to the Law and the Regulations a Departmental Board was set up which recommended four of the candidates whohadtherequiredqualifications for selection forpromotion to thesaidpostincluding theapplicant.Therespondent Commision upon receiving thereport of theDepartmental Board decided to takeintoconsideration threemorecandidates whose confidential reports werehigherthan thethoserecommended.* 10 The Respondent Commission atitsmeetingofthe20th March, 1986heard theviewsaridrecommendations ofthe Acting Director of the Department of Antiquities Having invited him to take intoconsideration thecandidates addedtothoserecommended by the Board. In making hisrecommendations, which appear in the 15 minutes of the respondent Commission (Appendix 6), he stated that the various candidates come from different branches of the Department, performing different types of duties. He went on thentodescribeeachonetothe sevencandidates.Hegaveanoutline of each one's personality, abilities and experience, and con2Q eluded by saying that only one who has experience in the management of personnel wasXenophon Michael whom herecommended. y- ™ The respondent Commission then examined the confidential reports in theirtotality andindicatively setout in itsminutes the ratingsofthecandidatesduringthelastsixyears.Italsogavedue weight tothequalifications of the candidates.From the point of view of seniority it said Kapitanis wasleading having been promoted tothe post of Technician 1stGrade asfrom the 15thFebruary 1983andthere werefollowing him in that order Christou, Papadopoulos, Michael,Zachariou, Socratous and Constantinou andit noted that itcame tothat orderof seniority on thebasis oftheirprevious seniority andwherethatwasthesameon the basis oftheirage. The respondent Commission then gave reasons why it could 1415 A. Loizou P. Kapitanis v. Republic
(1988)not adopt the recommendationof theActing Directorof the De partment and instead it selected theinterested party pointing out that the latter had on the whole higher confidential reports and seniority in a previous post as against Xenophon Michael. Itob served that each one of them was serving in the branch in which 5 he had been posted but both hadbeen reported uponby the same reporting andcountersigning officers. Under the circumstances and inspite of the statement of the Acting Directorthattheonly oneof thecandidates who had expe rience in the management of personnel was Xenophon Michael, JQ the Commission taking intoconsideration thatthe"officers donot choose themselves their duties butperform those duties that are assigned to them", came to the conclusion on the basis of the three objective criteria thatGregoris Christou was superior tothe other candidates anddecided topromotehimtothesaid post. ,^ This statement of theLaw is acorrectone andconsistent with the Case Law. It has been held that it cannot be considered against anofficer thefact thathehas been exclusively engaged in certain duties; thekindof work which theofficer performs onin struction by his superiors; the fact that he had not applied to be ~η given certain kind of work so long as there does not emanate from the law such obligation, but such posting is up to the Ad ministration.Northattheofficer didnotadministercertaindepart ment so thathis ability therefrom could be determined as the Ad ministration must afford toits officers theopportunity to develop their abilities assigningtothemtheexercise of competenceanalo gous totheirstatus. Yet itcanlawfully betaken intoconsideration the fact thattheofficer has not assumed service analogous to his grade having frustrated same, by efforts outside the service, as well as thefact thatby outside theserviceefforts hehas frustrated 30 the decision regarding his transfer. Furthermoreit does notcon stitute a lawful element for adverse decision thefact thatthe offi cer has comeby transfer from arelative branchof theservicenor for thelong time secondmentof theofficer toanotherservicelaw fully effected. As regards thelatterprincipletherehave been how- 35 ever laterdecisions of theGreek Council of State tothecontrary, 1416 3C.L.R. -Kapitanisv.Republic A. LoizouP. (SeeConclusions of theGreekCouncilofState1929- 1959p. 357. r ThefirstgroundofLawrelieduponbytheapplicantrefersto thepreparationoftheconfidential'reports bythereporting officer 5 withwhomtheapplicanthad"misunderstandings"and/or"differences"whichled thereportingofficer nottohavefriendlyrelations with him. In the case of Christouv. Republic
(1983)3 CL.R.437,itwasheldthatbiasandgenerallytheabsenceofobjectivity towards a subordinate officer has tobeestablished by 10 concretefacts.Inviewofthisauthorityanaffidavit wasfiledby theapplicant himself aimingatestablishing groundsof biasand theincorrectnessoftheratingofthereportingofficer ontheapplicant. Anaffidavit inreplywasfiled bytheTechnical Inspector, whoatthematerialtimewasSeniorTechnicianintheDepartment ,c of Antiquities and whostatestherein that was supervising the workofeverybodyworkingwithhimincludingthatoftheapplicantandthathewasbriefingthereportingofficer Mr.Louloubis anddiscussingwithhimtheprogressoftheworkoftheapplicant andtheotherofficers atanygivenmomentandthereporting officerhadonaccountof thataclearpictureandfull knowledgeof theperformanceoftheapplicant,thequalityandlevelofhiswork andthathehasbeenratedveryfairlyintheconfidentialreports. . Onthetotalityofthecircumstancesandbearinginmindtheargument advanced onbehalf of theapplicant byreference tothe contentsoftheconfidential reportsandthevariations thatareto befoundtherein,Ihavecoriietotheconclusionthat'thisground cannotsucceed. · •> ' ' · ' '* ' • Byhavingreferred tothecontentsoftheaffidavit ofChryssiliosPolycarpou IcoveralsothesecondgroundofLawreliedupon onbehalfoftheapplicanttotheeffect-that Mr,Louloubis,thereporting officer, did not have direct knowledge of the work or contributionoftheapplicantandthereforetheconfidentialreports were made in violation of Regulation 4(a) of Circular 491/79 whichgovernsthepreparationofconfidentialreports. 1417 A.LoizouP. Kapitanisv. Republic
(1988)ReferencemaybemadeheretoourCaselawonthe.matterof bias. In Kontemeniotis v. CMC.
(1982)3 CL.R. 1032 at p. 1035theFullBench held that theexistenceofstrainedrelations between asuperiorandasubordinateemanatingfromtheirrelationsatwork,stemmingfromthepoorviewtakenbythesuperior 5 of the services or conduct of his subordinate can never found bias.Ifthiswerethecase,superiorswould,inmostcasesbeexcludedfromtheevaluationoftheservicesof thosesubordinates of whomtheytakeapoorview.It would beotherwise if itwas provedthattherewaspersonalanimosityonaccountofanyextra- ,« neous factor, then, depending on its natuio and circumstances giving rise toit, it might be taken into account in determining whetheracaseofbiaswasestablished.Relevantonthisissueare alsothecasesofMasourav.Republic
(1984)3CL.R.631atp. 634,Charalambidesv.Republic
(1983)3CL.R.992atp.1006. I5 Republicv. Haris
(1985)3CL.R. 1Q6atp. 117(FullBench).. Complaintsthatthereportingofficer did notdiscusstheperformanceoftheapplicantwiththeofficers havingimmediatesupervision of theapplicant donotalsostandinviewof thecontents of the affidavit hereinabove referred to. The complaint, 20 therefore,oftheapplicantthattherespondentcommissionhadbefore itirregularlyandillegallypreparedreportdoesnotstand.Itis truethat aconfidential reportisapreparatoryactandthat,ifitis found tobenullandvoid,itsweepswithittoannullmentevery actwhichfollowsitincludingthefinalact.SeeNtinosAgrotisv. 25 ElectricityAuthority
(1981)3CL.R. 503atp.513. Michaeloudis v. TheRepublic (1979>3CL.R. 56 atpp. 71 -72; butthat situationdoesnotarisefromthecircumstancesofthiscase. The.thirdgroundofLawreliedupononbehalfoftheapplicant isthattherecommendationsoftheActingHeadoftheDepartment 30 Mr.Papageorghiou weremisleadingandledtherespondentCommission toamisconceptionoffact.Moreconcretelyitwasurged that there werecontradictionsbetween thevariousremarkscontainedin therecommendationofthesaidofficer andtheywerein conflict withthematerialinthefileandthesestatementsmisled 35 therespondentCommissionandledittowrongconclusionsatthe 1418 3 CL.R. Kapitanisv.Republic A.LoizouP. expenseoftheapplicant Nodoubtall thecandidatesarefrom different sectionsofthe Antiquities Department.Thatwas borneinmindby the respon dentCommissionandoncethey-werealleligiblefor promotion therespondentCommissionhadtodecidewhowas thebestin the circumstances/judging theperformance of eachoneinhis own field mainlyandnotby consideringwhichof thesectionswasthe mostimportant ·.^( . .> The last ground of Law relied upon is that therespondent Commissionfailedand/orommittedtocarryoutdueinquiry.This is notborneoutby thematerialbefore meas setoutinthe min utesof therespondent.Commission.Whafcithad before itinclud edeverything whichcouldlawfully betakenintoconsiderationby the RespondentCommission,,that is the personal files of each candidatewhichdisclosetheprofessional qualifications, postings andcareers of eachoneof them,theconfidential reportswhich supplementthematerialasregards thecareerandpostings asstat ed by theofficer himself and theactivities of theyear, and set moreoverthefoundationsfor ascertaining themeritof eachcandi dateandlastbutnotleasttherecommendationsof theHeadofthe Departmentthatroundupthepicture'ofeachcandidate.; /';••' ' ' ι.'Ί •"• > ' .''. ι ι •'& •' . ·•' * >' · ,''-ι.· ι Onthewhole thisrecoursemustfail andisherebydismissed. Thesubjudicedecision was takeninaccordance with thegeneral principlesof administrative Law pertainingtothematterandthe statutory provisions regulating thevarious issuesraised andwas reached,.after aproperinquiry andisdulyreasonedandthe appli cant has failed toestablish striking superiority, as to lead this CourttotheconclusionthattherespondentCommissionfailedto exerciseitsadministrativediscretiononthematterproperly.'. 'J Forall-theabovereasonstherecoursefailsanditisherebydis missedbutinthecircumstancestherewillbeorderastocosts. '•-• ?• · ' '*' 1419 : Recourse dismissed. **- ' Noorderds'tocosts.