(1988)1988 JanuarySO [PIKIS, I] INTHEMATTEROFARTICLE146OFTHECONSTITUTION MICHALAKISSAWAANDOTHERS, Applicants, v. THEREPUBLICOFCYPRUS,THROUGH, THEPUBLICSERVICECOMMISSION, Respondents. (ConsolidatedCasesNos.88186,160/86, 174186,184186and230!86). PublicOfficers—Promotions—HeadofDepartment—Recommendationsof— Noting thatthequalifications of certain candidates arelikelyto prove helpfulinthedischarge of theduties of thesubjudicepost—Does not connote thatsuchqualifications areanadvantage under thescheme of service. Bias—Promotion ofpublicofficers—Confidentialreports—Subjectivebias— Absenceofevidence—Effect. Bias—itisastateofmind—Itisinferredeitherfromcircumstancialevidence orfrom theexistence offacts depriving apersonfrom theattributes of impartiality—In theformer case,a contention must, in theabsence of evidence, bedismissed. Bias—Promotionofpublicofficers—Confidentialreports—Closerelationship betweenreportingofficerandtheofficerunderevaluation—Theclassthat leads to inference of bias includesrelations of the first dergee by consanguinity(BrothersandSisters-in-law). Public Officers—Promotions—Confidentialreports—Circular491/79 containing theRegulationsoftheirpreparation—BreachofReg. 4
(6)that CountersigningOfficershouldbeanofficerhavinginhissupervisionthe 160 3 C.L.R. Savva and Others v. Republic functioning of the service in charge of the reporting officer—Effect— Commissiontookintoconsiderationsuchareport,butignoredtheviewsof thecountersigning officer—TheCommission should have ignored it in its entirety. 5 10 15 20 These recourses arc directed against the decision to promote the interested parties tothepost of Nurse,Psychiatric Services.The interested parties wererecommended for promotion by the Head of the Department. In making his recommendations he noted in particular that two of the interested parlies possessed qualifications, which were likely lo prove of aid tothedischargeof thedutiesof thesubjudicepost. Theconfidential reports for 1982wereprepared inamannercontrary to Circular 491/79, which contains the rules for their preparation. The irregularity wasthat,contrary toReg.4(c),theCountersigning Officer was nottheOfficer, whoexercised supervision of thefunctioning of the service under the charge of the reporting officer. The respondent Commission decided totakethesaid reports intoconsideration, but not the viewsof the countersigning officer. The applicants further contended that the reports for the years 1979, 1980and 1981weretainted with biasby thecountersigning officer. They, also, challenged the reports for 1983 and 1984 for interested party YiannoullaLouca inthatthereporting officer wasacloserelation. Havingreached theconclusion that theapplicants'contention for lackof dueinquiry remained unsubstantiated, theCourt, Held, annullingthe subjudicedecision: 25 30
(1)The contention that the recommendations of the Head of the Department were misleading cannot be accepted. The reference to qualifications especially helpful for the performance of the duties, envisaged by the scheme of service, possessed by two candidates, in no wayconnoted that suchqualifications werean advantage under thescheme ofserviceorentitled theholderstopreferential treatment.
(2)Bias is a state of mind. It isdifficult and often impossible to prove biasby directevidence.Itis usually inferred from circumstantial evidence or from theexistence of facts thatobjectively deprive theperson exercising power of the attributes of imparliality. Here, we are concerned with the former case.Intheabsenceofevidence thecontention mustbedismissed. 35
(3)Confidential reports are sanctioned by law as material definitive of 161 ;/ Savva and Others v. Republic
(1988)theworth,capabilities anddevotion toduty of public servants. Itis difficult to overstate their importance for the careet.of civil servants and, more importantly, for the manning of the civil service in the interest of meritocracy. A confidential report is an integral documentthatcannotbe segregated into component parts. The countersigning of theconfidential reportsby competentofficer isnota mereformality^*vjtan essential attribute for the validity of the report. Intheabsence,of vain! ctintersigning of the reports they do notqualify as confidential.reports und^r herules governing their preparation. By taking the reports fgfl982 in consideration the respcndentsallowed extraneous material tojnfluence the'irdecision andon thataccounttheirdecision is liable tobeset aside. 5 10
(4)The complaint as regards the reports for 1983 and 1984 for Yiannoulla Louca is notoneof subjective,^but of objective bias. The case law acknowledged that close relationship.Jfcietween the decision-making organ and thesubject of thedecision,maygfye riseto an inference of bias. ]5 Without attempting todefine theclass ot relatioships thatmay give rise to the inference, certainly, a relatioship oPthe first degree between two persons, such as parents and children,and brothers and sisters, falls in this class. And given Cyprus social realities, particularly the close bond that unites families, theclass should also include'felations of thefirst degree by consanguinity, thatis, brothersand sistcrs-irt-law. 20 Subjudice decision annulled. Noorderas to costs. Casesreferredto: Kontemeniotis v.Republic
(1982)3C.L.R.=i027; 25 Soteriadouand Others v.Republic (I985) 3^C.L.R. 300; Republic, v.Argyrides
(1987)3C.L.R. 1092; Hadjivassiliou v.Cyprus OrganisationofAtJiletics
(1987)3C.L.R. 2142; Christou v. Republic
(1983)3 C.L.R.
- '/. -Ύ Recourses. 30 Recourses against thedecision of therespondentsto promote the interested parties to thepost Nurse,Psychiatric Services in preferenceandinsteadof theapplicant. 162 3 C.L.R. Savva and Others v. Republic L. Papaphilippou, for applicant inCase No.88/
- A. S.Angelides, for applicant in Case No. 160/
- I.Typographos, for applicant in Case No. 174/
- A. Erotokritou, for applicant in Case No. 184/
- A. Markides, for applicant inCase No.230/
- A. Vassiliades, Counselof theRepublic, for respondents. Chr.TriantafyllideSy for interested party Y. Louca. Cur. adv. vult. 10 15 2Q 2c PIKIS, J. read the following judgment.This is an application for the judicial review of a decision of the respondents dated 20.12.85 (gazetted on 14.2.86), whereby the eleven interested parties were promoted to the position of Nurse, Psychiatric Services. The machinery for filling the posts had been set in motion on 31.8.85 by the Director-General of the Ministry of Health requesting thefilling of acorresponding numberofvacant positions. Shortly afterwards, adepartmental committee was set up toscreen theforty-nine applications,consider theeligibility of the candidates and evaluate their suitability for promotion. On 2.12.85 they submitted their report, recommending thirty-one of the candidates as qualified and suitable for promotion; the remaining eighteen were turned down for lack of the required qualifications. On 20.12.86 the Public Service Commission convened to consider thefilling of the posts.Preliminarily, they heard at their request the views of Dr. Malikkides, the Director of the Department of Psychiatric Services,inorder tobeapprised of the viewsof theadministrative side. All the candidates were, in his opinion, both qualified and 163 Pikis J. Savva and Others v. Republic
(1988)suitable for theperformance of theduties carried by thepost due to be filled. He noted thatthequalifications possessed by two of them, namely C. Olympios and Y. Louca,were likely toprove of help and an aid for the discharge of their new duties. On an overall assessment of the rival merits of the candidates, the interested parties were best suited for promotion and on that account hegave his recommendationfor their selection. 5 The Public Service Commission made a lengthy inquiry into the merits,qualifications andseniority of the interested parties,as they emerged from the material before them,thatis,confidential JQ reports and personal files on the candidates. Suggestive of the breadth of their inquiry is the tabulation in the minutes of the respondents of the effect of the confidential reports on the candidates for the three years immediately precedingpromotion; no doubt themost crucial years for anup-to-dateindicationof the ,^ capabilities and performance of thecandidates at work. Subject ίο three exceptions, the overall rating of the candidates was the same, notably "Very Good". Noticeabledifferences existed inthe case of interested party Efthymiades whose general rating for the last three years was uniformly "Excellent", and interested party ^U Olympios who had an Excellent rating for theyear 1983. Onthe other side of thedivide was applicantTsianis whose rating for the year 1982 was "Good". Before making their selection, thePublic Service Commission decided to disregard aspects of the confidential reports on the ^5 candidates for theyear 1982 onaccountof an irregularity intheir preparation. The irregularity consisted of failure to heed the provisions of Regulation 4(c) of the Circular governing the preparation of confidential reports,in particular,therequirement that the countersigning officer should be the officer who exercised supervision of the functioning of theservice under the •*" charge of the reporting officer. The reports were countersigned by Dr. Neophytou who did not at the time exercise such supervision. That being the case the respondents were right to treat theconfidential reports for theyear 1982 as irregular. What 35 is atissueis thevalidity of theirdecision toaccept themasproper 164 3C.L.R. Savva and Others v. Republic Pikis J. material for theevaluation of thecandidates albeit stripped of the viewsof thecountersigning officer. 5 10 15 Another setof confidential reports on thecandidates that were doubted, but for adifferent reason, were thereports for the years 1979, 1980 and 1981.Their validity was disputed for lack of impartiality on thepart of thecountersigning officer, namely Mr. Matsas, the Director of the Department at the time. Lack of impartiality surfaced in the course of disciplinary proceedings raised against Mr. Matsas. Of these facts the Public Service' Commission oughttohavetaken notice,asthey had tried thecase themselves and became awareof thecircumstances givingriseto bias. The respondents refused to upset their decision in the absence of concrete information establishing bias; their request for particulars remained essentially unanswered. In sum the grounds allegedly rendering the decision invalid are(A) Invalidity of confidential reportson thecandidates for the years 1979-1981 for lack of impartiality on the part of the countersigning officer. 20 25 30 (B) Improper reliance on the confidential reports on the candidates for theyear 1982,stemming from their countersigning byan incompetent officer. (C) Improper reliance on theconfidential reports on interested party Yiannoula Louca for the years 1983-84 deriving from the fact that the reporting officer, namely Mrs. Valentini Christou, wasacloserelation. (D) Failure to scrutinize the recommendations of Mr. Malikkides and appreciate that they were fraught witherror so far as reference was made to interested parties C. Olympios and Y. Louca. The submission is that his recommendations were misleading. (E) Lack of an adequate inquiry into the facts relevant to the Pikis J. Savva and Others v. Republic
(1988)merits andqualifications of theparties. We may begin with answering the last ground affecting the range of the inquiry of the respondents into the subject for decision. Asearlier indicated,theinquiry intothefacts relevant to the candidates was, if anything, far reaching, a fact evidenced, 5 inter alia,by thereproduction of salient facts in theminutesof the Commission. Examination oftherecord reveals that respondents had before them allthematerial throwinglighton the performance of thecandidates,their qualifications and lengthof service.Ifind nosubstancein thiscomplaintofapplicants.Equally untenableis 10 the charge that the recommendations of Mr. Malikkides were in any sense misleading. Reference to qualifications especially helpful for the performance of the duties, envisaged by the scheme of service, possessed by two candidates, in no way connoted that such qualifications were an advantage under the 15 schemeof serviceorentitled theholders topreferential treatment. It was a relevant fact that theDirector was perfectly entitled to bring to the notice of those charged with decision-making. His recommendation, on the otherhand,of theinterested parties was founded on his personal appreciation of their worth and as such 20 could beimparted to the Commission pursuant tothe provisions of s.44
(3)of the Public Service Law 33/
- This ground, too, remains unsubstantiated. The existence of bias on the part of an administrative organ may render abortive the exercise of administrative power. The 25 exclusion of the offspring of the biased exercise of power is a necessary incident of the provisions of article 28 of the Constitution safeguarding equality before theAdministration,and an article of faith to the rules of natural justice requiring impartiality on the part ofeveryoneexercising power in virtueof 30 and in the name of the law. Bias is a state of mind. It is difficult and often impossible to prove bias by direct evidence. It is usually inferred from circumstantial evidence or from the existence of facts that objectively deprive theperson exercising power of the attributes of impartiality. Here, we are concerned 35 . with theformer case, that is, theprejudice that the then Director of the Department allegedly harboured against some of the 166 3 C.L.R. 5 Savva and Others v. Republic Pikis J. candidates. No evidence was adduced to substantiate the existenceof such astateofmind on thepartof Mr. Matsas. Inthe absenceof such evidence wecannot entertain thecomplaint. This was affirmed in Kontemeniotis v.Republic*; the mere existence of strained relations at work between superior and subordinates does not of itself ground a complaint of bias. The case of Soteriadou and Others v.Republic** exemplifies the evidence necessary to make out a case of bias. In the absence of any evidence tosubstantiate allegations of biaswecannot but dismiss them as unfounded. The remaining two grounds merit lengthier consideration. First, we shall deal with the confidential reports for the year
- 15 20 25 30 Confidential reports are sanctioned bylaw(section 44
(3)-Law 33/67) as material definitive of the worth, capabilities and devotion todutyof public servants. Itisdifficult tooverstate their importance for thecareerof civil servants and, more importantly, for themanningof thecivil service in theinterest of meritocracy. Rules have been evolved for the preparation of confidential reports designed to give an objective picture of the worth of individual civil servants.Therulesareembodied inCircular No. 491 of 26.3.79. They are based on a two-tier system of assessment: By theofficer having direct knowledge of the work of the reportee and, by the countersigning officer, the officer higher in rank than the reporting officer exercising supervision over the branch ordivision of the service (Regulation 4(a), 4(b) and4(c)). Only reportsprepared inaccordance with theprovisionsof the Circular qualify asconfidential reports within themeaning of the Regulations. This is made clear from the imperative words of Reg.3(l) predicating thatconfidential reportsareprepared byre- *
(1982)3C.L.R. 1027. **
(1989)3CL.R 300. 167 Pikis J. Savva and Others v. Republic
(1988)porting officers and countersigned by those having an overview of the service. Aconfidential report isan integral document that cannot besegregated intocomponent parts.Thecountersigning of the confidential reports by the competent officer is not a mere formality but anessential attributefor thevalidity of thereport. In 5 the absence of valid countersigning of the reports they do not qualify as confidential reports under the rules governing their preparation. The need toadhere strictly totherequirements of the Circular governing the preparation of the reports, was stressed in very 10 certain terms by theFull Bench of theSupremeCourtin thecase of Republic, v. Argyrides* Compliance with the conditions of the Circular is a condition precedent to their admissibility as a matter of legality and constitutional duty. The provisions of the Circular are inpari materia with the statutory requirements and as 15 such ought to be heeded without exception. More importantly, public officers are entitled to similar treatment in so far as their assessment is concerned, arightderiving from theprovisions of article 28.1 of the Constitution. In a separate judgment in the abovecase,Ialsodrew attention totheimportanceofconfidential 20 reports as a guide to the worth of public officers. However, I added ariderthat,asin every actof theAdministration, the effect of an impropriety must necessarily beexamined by reference to its impacton thedecision. The unavoidable conclusion is that the reports on the 25 candidates for the year 1982were incomplete and as such did not qualify asconfidential reportswithin themeaningof the Circular. It was in the power of the Public Service Commission to take steps for their completion by referring the reports back to the Administration with therequest thatthey becountersigned by the 30 officer who was exercising supervision at the time over the candidates. In the absence of this complement the respondents were duty-bound to disregard the reports. By taking them into consideration they allowed extraneous material toinfluence their decision and on that account their decision is liable to be set ~<aside. * (J987)3C.L.R.J092. 168 3 C.L.R. 5 ,« 20 25 ,Λ Savva and Others v. Republic Pikis J. Lastly, the suggestion that the confidential reports on interested party Yiannoula Louca for the years 1983-84 ought to have been disregarded for reasons of bias. Herethecomplaint is not oneof subjective bias on the part of thereporting officer but one of objective bias arising from the relationship between the reporting officer and Yiannoula Louca. It would be difficult to discern any disposition of personal favour on the part of Mrs. Christou towards Yiannoula Louca considering that her assessment of theworth of her services was onthe whole similar to that made by otherreporting officers. However, bias may be inferred from the existence of such a relationship between the parties as would normally precludean administrative organ from exercising powers assigned toit by law. Thesubject is discussed, inter alia, in arecentdecision of this Court,inA. Hadjivassiliou v.TheCyprusOrganisationofAthletics*. In Christou v. Republic ** it was acknowledged that close relationshipbetween thedecision-making organ and thesubject of the decision, may give rise to an inference of bias. Several tests have beenpropoundedfor thedefinition of thecircumstances that m a y give rise to bias. The common denominator is the need to ensure theimpartiality of theAdministration and thefaith of the public in its deeds. How close the relatioship should be to give rise objectively toan inference of bias, has notbeen thesubject of any decision.Formyself Ishall notattempttodefine theclass of relationships that may give rise to the inference. Certainly, a relationship of the first degree between two persons, such as parents and children,and brothers and sisters, falls in this class. And given Cyprus social realities, particularly theclose bondthat unites families, theclass should also include relations of the first degree by consanguinity, that is, brothers and sisters-in-law. That being my decision, theconfidential reports on Yiannoula Louca for the years 1983-84 were tainted with bias and ought to have been disregarded. This is anadditional reason for annulling her *
(1987)3 C.L.R. 2142. **
(1983)3 C.L.R. 437 ai 449. 169 PikisJ. Savva and Others v. Republic
(1988)appointment. On re-examination of thecase, it is again up to the Public Service Commission tosee how besi tofill thegap in the confidential reports of Yiannoula Louca for the aforementioned years. In thelight of theabove thesub-judicedecision issetaside and 5 declared to be wholly void pursuant to theprovisions of article 146.4(b)of theConstitution. Let therebe noorderastocosts. Subjudice decisionannulled. Noorderas tocosts. 170