(1988)1988July14 [A.LOIZOU,P.] INTHEMATTER OFARTICLE 146OFTHE CONSTITUTION CONSTANTINOS POURGOURIDES ANDOTHERS (No.1), Applicants, v. THE REPUBLIC OFCYPRUS, THROUGH THEEDUCATIONALSERVICECOMMISSION, Respondent. (CasesNos. 723/86,732/86, 771/86, 789/86). Educational Officers—Promotions—Head of Department—Recommendations—Inadequate recording of, in the minutes—Effect—Mere listing of candidates recommended by the Department—Should not be given any weight. Educational Officers—Promotions—Misconception offact—impression that interestedparty hadbetter marksinhisconfidentialreportsthanapplicant, · whereasintruth theapplicant wassuperior byonemark—Subjudice promotionannulled. 5 Educational Officers—Promotions—Misconception of fact—Seniority— Wrongimpression thatinterestedparty seniortoapplicant—Groundofan- 10 nulment. Thefacts and legalprinciplesemanatingfrom thiscaseneed notbesummarisedbecausetheycan beadequatelysurmisedfrom theheadnotehereinabove. Subjudice decision annulled. No orderasto costs. 1434 3 CL.R. Pourgourides (No.l) y, Republic ,,.,,, _ Casesreferredto: ι. ..'•·• - . - t r ., ! : · ,,,, , -·.•.' ·,- , ;/" ·*.', ; -^ .· · ! / ••> . c . i u Ϊ . , PartellifcsyJke Republic (\969) 3C.L.R. 4W; : • : ' - . ' •*- • , . • - . . . , : . '. . » : - • • .. • . " . : Constantinidesy.TheRepublic
(1973)3CL.R·.508;· -,. .- -- ; · ' · . , ' ' ' . . ' - • ,Trimiklinwtisv,TheRepubticil91\) 3C.L.R, 293; Eleftheriouv.CentralBank
(1980)3CL.R. 85;., ; ' < : . .rn' . .'. Iossifv. CYTA
(1975)3CL.R. 261; , ·,· , Ellinas v.TheRepublic
(1975)3 CL.R. 248; Yenakritou andOthers^. TheRepublic
(1985)3.CL.R. 2731; ' Ioannidouand Othersv. TheRepublic
(1984)3CL.R.
- Recourses. ' , Recourses against the decision of the respondent topromote the interested parties tothepost.of Headmasterin theSecondary Education inpreference andinsteadof the applicants. AS. Angelides, for applicants in Cases Nos.723/86, 732/
- and 789/
- · • .N.derides, for applicant in Case No. 771/86.• E.Loizidou (Mrs.), for the respondent. N: Papaefstathiou for T..Papadopoulos, for interested party > Ch.Onoufriou in Recourses Nos. 723/86 and 732/
- • E. Evripidou,for interested party L. Philippides. • .
- ι Cur. adv.vult. Pourgourides (No.l) v. Republic
(1988)A.LOIZOU P.read thefollowingjudgment.By thepresent recourses which were tried togetherastheypresentcommonissuesof law and fact and which were taken over bymeon the 17thFebruary, 1988after theretirement ofHisHonourLoris,J. theapplicantsseekadeclarationoftheCourtthatthedecisionof 5 therespondentCommission topromotetheinterested partiesCh. Onoufriou andD.Philippides tothepostofHeadmasterinSecondaryEducationretrospectively asfrom the 1stSeptember1980 isnullandvoidandofnolegaleffect whatsoever. Thebackground totheserecoursesisasfollows: JQ The Supreme Court by meansof its Judgment in Recourses Nos.332/80etc.,reported asKleriAngelidouandothers v.Republic
(1982)3CL.R. 520annulled thepromotions tothepost of Headmaster in SecondaryEducation which wereeffected by therespondent Commission onthe 30th August, 1980.Asare- 15 suit,therespondent Commission re-examined thematter onthe 21st June 1982 and effected new promotions which were also challengedandwhichwereannulledbytheSupremeCourtonthe 30thApril 1986byitsjudgment in R.A.396.(SeeKinanis and others v. Educational Service Commission
(1986)3 CL.R. 20 1705).It was held therein that theimpressions of theCommissionabouttheperformance oftheinterestedpartiesconcernedat theinterviewstwoyearsearlier,whichintheabsenceofanycontemporaneousofficial writtenrecordcouldnotbetreatedassafely andaccuratelyreliable,werewronglytreatedasbeingofdecisive significance inleading uptothechoiceforpromotionofthetwo interestedparties. Inthelightofthisdecision therespondentCommissiondecided at its meeting of the 8th September 1986to re-examine the matteronceagain.Atitsmeetingofthe 17thSeptember 1986,the ^0 respondent Commission havingexamined thepersonal files and confidential reportsofallcandidatesforpromotion andthematter athandunderthelegal andfactual situation asapplicableonthe 30th August 1980 when the original annulled decision was reached, but,asstated therein, without taking intoconsideration 35 1436 ί3'CL.R. 5 . ' Pourgourides (No.l)-v. Republic AZ-Lbizou P. •atthere-examination theperformance of thecandidatesattheper sonal interviews and bearing in mind theprovisions of the Law and therequirements of theSchemeof Service as atthe30th Au gust 1980 and also the merit, qualifications and'seniority of the candidates arid therecommendations'of theirDepartments.'concluded thattheinterested parties were the most suitable for pro.motion.As aresult thepresent recourses were.filed. * •· jV iv * • ' J . ' . -· . · - The subrjudice decision so far as is relevant reads as follows: ' Ί" 15 '20 ~r 30 *\ ' , < · · > ·•" · . - . · , • • "The Commission having in mind the provisions of the Law and theSchemes of Service as in force on the 30th August 1980, as well as theaforesaid judgment of the Supreme Courtand after taking intoconsideration, v . (
- a)The merit, qualifications and seniority of the candidates, >• andevaluating together all.these criteria and giving toeachone *of themdue weight and ι' (b)Therecommendationsof the appropriate Departments,ar rives at the conclusion that Messrs Demetrios Philippides and Charalambos Onoufriou are themost suitable candidates for pro motion totheabove posts. ' Mr.'DemetriosPhilippides is oneof themost senior candidates (he has been promoted to thepost of Assistant Headmaster since 1st September 1971 and to the post of Technologist on scale B.13,which was the same as the scale of Assistant Headmaster, as from 31st August 1969), he has excellent marks/additional qualifications and has been recommended tothepost of Assistant Headmaster since the 15th September 1973,andpossesses atotal of Educational Service of 26 and 8/12 years as at 31st August 1980. Though he is notrecommended by the appropriateDepart ment,theCommission considers him as being superior totherec ommended candidates, who have notbeen promotedbecause they are,not,superior toNtr. Onoufriou, neitnerin merit,norin qualifi cations, nor in seniority and he is the most suitable than all the candidates because on thebasisof thelawful criteria he presents 1437 A. Loizou P. Pourgourides (No.
- l)v. Republic
(1988)on thewhole abetter picture than them,as also,emanating from the following: Withregard tocandidates whohavenotbeen selected theEducational Service Commission observes the following: (b) The following have been promoted to the post of Assistant Headmaster on the same date as Mr. Onoufriou but they lack behind in seniority in comparison with Mr. Philippides (AssistantHeadmaster from 15th September 1973).
(1): 10
(2)
(3)Andreas Christodoulides, (applicant in recourse No. 789/ 86): He is not superior in marks and lacks behind Mr. Onoufriou regarding the total of the service (seniority, at firstappointment.).Hehasnoadditional qualifications. He hasnot been recommended". 15
(4)Constatinos Pourgourides, (applicant inrecourse No.723/ 86). He is not superior in marks. He lacks behind Mr. Onoufriou with regard tothe total of the service (seniority at first appointment). He is slightly superior in qualifica- 20 lions.He has not been recommended. Learnedcounselfor theapplicantsargued:1. Recourse No.723/86 This recourse isdirected against thepromotion of both interested parties. 25 (a)In therecommendation listof theappropriate Department therewereincluded only those whowereperforming thedutiesof Acting Assistant Headmaster during the school year 1979-1980, and thosewhohave been recommended for anactingappointment 30 1438 3 CL.R. g· 15 2Q 30 A. Loizou P. to the post of Headmaster for the*following school year
(19801981). Applicant who was'absent on leave since 1973-1974,and returned to Cyprus in'1979-1980 and thus could notbe aslced'to perform duties on an acting capacity, was not recommended in spite of his superior merit, quialificatioris, seniority, and his unique experience. The recommendations in question is a mere listingof therecommendedcandidates without any explanation at all. lO Pourgourides (No.l) v. Republic - ,, . (J •* r.· (b)Thestatementof therespondent Commission thattheapplicantis notsuperior in marks is erroneous..Heis superior because hehas thirty-seven marks whereas thetwo interested parties thir ty-six.Therefore, theEducational Service Commission actedun der a misconception, or it did not inquire fully into the files in spite of its general reference thatitexamined thefiles,Ί • ... -ι · (c)The statementof therespondent Commission thattheappli cant lacks behind Mr.Onoufriou with regard tothetotality of the service (seniority at.first appointment.),is erroneous.Inthecom parative table (Appendix E,) totheOpposition Mr.Onoufriou is stated to have 26 and 8/12 years of service as at 31st-August 1980, and applicant 21. Mr. Onoufriou was initially an elemen tary schooll teacher (from 1st September 1953 until 7th January 1965) and subsequently he became a secondary education Schoolmaster. What is of significance in his previous post and not the total of his service in view of section 37
(2)of Law 10/ 1969. Undersection 37
(2)incase of Schoolmasters'appointment on promotion to a particular post.'..?.. " Seniority is judged by reference totheprevious seniority of educational officers." Under section 37
(2),theapplicant who was appointed as Secondary Ed ucation Schoolmaster in 1959, is senior to interested party who was appointedon the7th January 1965. » .ι
(2)Recourse No. 732/86. nc The aboverecourse was directed only against thepromotionof interested party Onoufriou. Learned counsel 'for<the applicant adopted his address in Recourse No^723/86, and particularly his contentionsabouttherecommendationsof theappropriateDepart1439 A. Loizou P. Pourgourides (No.l) v. Republic
(1988)ment. Hefurther submitted thatin theminutes of the respondents noreference atall ismadetotheapplicant and thatthough ageneralreference that thefiles of thecandidates ismade intheminutes, itis not clear whether applicant wasconsidered for promotion. 5
(3)Recourses Nos.771/86 and789/86. Bothaboverecourses weredirected onlyagainst thepromotion ofinterestedparty Philippides. Learned counsel relied mostly on the above conclusion about therecommendations of theHeadof Department. _ Looking at the subjudice decision one can be driven to the safe conclusion thatoneof thefactors that led tothepreference of interested party Philippides was the recommendation of the appropriate Department: and one of the factors that led to the nonselection of applicants in Recourses Nos. 723/86, and 789/86, .,. was the absence of such recommendation. Regarding the applicants in Recourses Nos.732/86 and 771/86, therelevant minute of theComission does not makeany reference tothem and sowe are in thedark as to thereasons thatled totheir non-selection.In view of the above it is clear that the existence or absence of the 20 saidrecommendations played adecisiverole intheselection process. What istheeffect in law of theabsence of adequate recording of therecommendations. As far back as 1969,the Full Bench of this Coun in Partellides v. The Republic
(1969)3 CL.R. 480 25 disapproved theinadequate recording of therecommendations of the Head of Department. Triantafyllides, J. , as he then was in delivering theJudgment of theFull Bench isreported tohavesaid thefollowing atp.484; "While on this point let it be stated that we have, indeed, 30 noted a general statement, in the relevant minutes of the Respondent, that the decisions asto the promotions concerned including the subjudice one - were reached bearing in mind, 1440 3 CL.R. 5' ,Q 15 2Q Pourgourides (No.l) v. Republic Λ. Loizou P. inter alia, the "recommendations" of Mr. Hajioannou (which were made orally at the particular meeting of theRespondent on the3rd July, 1968); but,in theopinion of the Court,with out these recommendations being adequately recorded in the said minutes, so as to enable this Court to examine how and why it was reasonably open to the Respondent to act upon them, notwithstanding the greater seniority of the Appellant andtheequally good confidential reports,such a general state ment in the minutes of the Respondent, as aforesaid, cannot have theeffect of rendering thepromotionof Interested Party Gregoriades one which can be treated as having been properly decided upon in the exercise of the particular powers of the Respondent." (See also Constantinides v. The Republic
(1973)3 CL.R. 508; Trimikliniotis v. The Republic
(1971)3 CL.R. 293; Eleftheriou v. Central Bank
(1980)3 CL.R. 85; lossif v. CYTA
(1975)3 CL.R. 261; Ellinas v. The Republic
(1975)3 CL.R. 248.)' In a rather recent case that of Yenakritou and Others v. The Republic
(1985)3 CL.R. 2731,Pikis, J., dealing with the same matter said thefollowing atpp.2741- 2742: "Recommendations of theDepartmentof Elementary Educa : tion: 25 OQ The submission thatthebasis upon which these reports were compiled is nowhere revealed, is correct. Inloannidou and Oth ers v. Republic
(1984)3 CL.R. 1283 I explained in detail the implications of s. 35
(3)- Law 10/69 (as amended by Law 53/79), andtheimpactof adepartmentalrecommendationon the selection process. The law aimed toset upa collective andimpersonal procedure for the assessment of thesuitability of teachers serving in different parts of thecountry. The process followed for arriving atthedepartmentallistis notstated noris itmade known whether it is to any extent founded on the impressions of Mr.Papaleontiou of theperformance of thecandidates attheinterview. Even if 1441 A. Loizou P. Pourgourides (No.l)v. Republic
(1988)we were toassume that this vacuum could be filled by thepre sumption of legality, therecommendationswere wholly unrea soned. And as such cannotstand the test of judicial review.Not only final but every preliminary administrative act,too,must be reasoned inaway making possible judicial review. L.Loizou,J., 5 dealt specifically with theduty toreasonrecommendations,under s. 35
(3), in Themistodeous and Others v. Republic
(1985)3 CL.R. 1070, 1081, 10: 2. The following passage from his judg mentis indicative of the needfor reasoning andtheform itshould taketomakepossible its reviewbyjudicial action:,ft "In thepresent case thedepartmentconcernedconfined it self to merely listing thenamesof thosecandidateswhom it recommended for promotion without stating why and on what criteriait chose torecommendthem " The list of recommmended candidates may be regarded as a bare recommendationthatshould carry noweight with the Educa tional Service Commission. Itis evident from theirdecision that they attached specific weight toit as a guide to the suitability of candidates andtothatextent theirdecision is liable tobe set aside for misconceptionof material facts." 15 Further the sub judice decision is so far as it concerns appli cant in Recourse No. 723/86, is liable tobe set aside onanother ground, namely in that the respondents in taking the sub judice decision were labouring underthemisconception that he is not "superior in marks" totheinterestedparty whereas in fact andin 2 ^ truth hewas superior by onemark. Also they were labouringun der themisconception thatinterested party Onoufriou was senior to applicant in so far as the previously held by them post was concerned,whereas in fact this was notso. In theresultall theabove recourses succeed and thesubjudice ΛΛ decision is annulled,but in thecircumstancestherewill benoor der as to costs. Subjudice decision annulled. No order as to costs. 1442 ~η