(1988)1988August8 [DEMETRIADES.J.] INTHEMATTER OFARTICLE 146OFTHE CONSTITUTION ELENIP. KOULIA, Applicant, v. THEREPUBLIC OFCYPRUS,THROUGH THEPUBLICSERVICECOMMISSION, Respondents. (CasesNo.338185). Public Officers—Promotions—Public Service Commission—Composition— Absence ofa memberfrom a vitalmeeting—Participation ofsuchmember in subsequent meetings—During such subsequent meeting theprocess at theprevious meetings was not repeated-Sub judice promotion annulled, notwisthstanding thattheminutesofsuchprevious meetingswerebeforeall -* members duringthesubsequent meetings. Collective organ—Composition of—Several meetings inrespect of the same subject—Absence of memberfrom a vitalmeeting—Participation of such memberin subsequent meetings—Processatprevious meetingnotrepeated ab initio insuch subsequent meetings—Subjudice decision annulled,not- *-U withstanding that the minutes of suchprevious meetings were before all members duringthesubsequentmeetings. Thefacts ofthiscasearesufficient]y indicated in thehereinaboveheadnote. Subjudice decisionannulled. Casesreferredto: Pouagare v.TheRepublic
(1970)3 C.L.R.1; 1602 15 3 C.L.R. Koulia v. Republic , Panaiiotouv. TheRepublic(W2) 3 c£H:'33Tt . Sawa v. TheRepublic
(1985)3 C.L.R?694; • ^ '. - i' " ' : ' * " . ' Vivardiv. VineProductsCouncil
(1969)3 C.L.R.486. Recourse. * Recourse against thedecision of therespondents topromote theinterested parties tothepost of SeniorMedical Officer inpre ference andinsteadof theapplicant. Chr. Mitsides,for theapplicant. P. Hadjidemetriou,for therespondents. ΙΟ 15 20 25 Cur. adv. yult. DEMETRIADESJ.read thefollowingjudgment. Onthe 18th January, 1985,it was published in theOfficial Gazetteof the Re public thatMessrs Andreas Zachariou, Andreas S.Vrahimis, De•metriosPoyiatzis andGeorghios Chr.Elia,hereinafter referred to as theinterested parties,hadbeen promotedby therespondents to the post of Senior MedicalOfficer intheDepartmentof Medical and Public Health Services. The applicant,who was acandidate for promotion.to this post, is now by her present recourse chal lenging thedecision of therespondents. At thematerialtimebefore thesubjudice promotionstheappli cant and theinterested parties were holding thepost of Medical Officer 1stGradeintheMedical andPublic HealthServices. Pur suanttoarequest for thefilling of four thenexistingvacancies in thepost of SeniorMedical Officer, which is apromotionpost,the respondent referred the matter to the DepartmentalCommittee which was set upfor thepurpose. Onthe 15th September, 1983, theDepartmentalCommitteesubmitted itsreportby which itrec ommended for promotion 14 candidates, amongst whom theap plicantandtheinterested parties. 1603 Demetriades J. Koulia v. Republic
(1988)Asitappears from therecord before me,therespondents, after they considered thereport of theDepartmental Committee,decided to ask the Departmental Committee tore-examine the matter and totakeintoconsideration allcandidates holding theimmediately lower post, including those who stated that they did not 5 wish tobe promoted. By its new report, which was submitted by letter dated the 16th October, 1984,th; Departmental Committee recommended 12 candidates for promotion to the post in question, amongst whom theapplicant and theinterestedparties(Appendix 17tothe opposition). At their meetingon the 25th October, 1984,there^ spondents considered thereport of theDepartmental Committee and decided that oneof thecandidatesrecommended byitought tobeexcluded as not possessing thequalifications required bythe schemes of service,whilst twoothersnotrecommended, whodid possess the said qualifications, ought to be considered for pro- 15 motion (Appendix 18totheopposition). At their last meeting, which was held on the 22nd November, 1984, therespondents, after hearing theviewsof theHead of the Department whorecommended the interested parties,proceeded to promote them to the post ofSenior Medical Officers as from 20 the 1st December,
- The promotions were published in the Official Gazetteof theRepublicdated the 18thJanuary, 1985,as a result of which thepresent recoursewasfiled. The grounds of law raised by counsel for the applicant are that: 25
- The composition of the respondent Commission was defective.
- The respondents failed tocarryout adue inquiry as topossession, by two of theinterested parties,of thequalifications required bytheschemesof service.
- One of the interested parties had been convicted of adiscipli- 30 naryoffence ofa seriousnatureduring theperiodof twoyears preceding thesubjudice decision. 1604 3 C.L.R. Koulia v.Republic Demetriades J. 4.Therecommendationsof theHeadof theDepartment wereimproperly madeandbiasedagainstthe applicant. 5.Therespondent acted underamisconception of fact. . 6.Thereislackofduereasoning. 5 . ; 7.Theapplicant has.been treated indiscriminatory manner,and
- The applicant is better than the interested parties and should havebeenselectedinsteadof them. ™ 15 20 25 30 Regarding the first ground, counsel for the applicant argued that the composition of the respondents was defective in that whileduring theirmeetingof the25th October, 1984,which was oneof themostvitalmeetings,oneoftheirmembers,namely Mr. HadjiProdromou, was absent, this member waspresent and took part in the final meeting of the respondents, dated the 22nd November, 1984,in which the subjudice decision was taken, without theprocedurebeingrepeated abinitio. Counsel for therespondents argued that since the minutes of all thepreviousmeetingsof therespondents werebefore themat theirfinalmeeting andreference wasmadetothem,itis deemed thatthewholeprocedurehasbeenrepeated abinitioand sinceMr. HadjiProdromou, who was present during the last meeting, did notdisagree with thepreviousminutes,itispresumed that hehas adopted them.He also argued that themeeting of the25th October, 1984,was notof vitalimportance and in any event the new reportof the Departmental Committee was the same as itsprevious one,during theconsideration of which Mr. HadjiProdromou was present. The relevant principles of administrative law on the matter . have been stated in a number of cases (seePouagare v.The Republic,
(1970)3C.L.R. 1;Panayiotou v.TheRepublic,
(1972)3 C.L.R. 337; Savva v. The Republic,
(1985)3 C.L.R. 694). In, thecaseof Panayiotou v.TheRepublic, (supra),thefollowing is 1605 DemetriadesJ. Kouliav.Republic
(1988)statedatpp.339-340:"Inrespectofthesecondpartofthisgroundoflaw,learned counsel for therespondent fairly andproperlyconceded that thedeliberaionsextended totwomeetingsof therespondent Commission andthatwhenthedecision wastakenatthesec- 5 ondmeetingthematterwasnotexaminedabinitio;therebeing a change in the composition of the respondent through the presenceofamemberwhodidnottakepartatapastmeeting onthematter,therespondentcouldnottakeavaliddecision. In thisrespecthereferred metotheConclusionsof theJuris- JQ prudenceof theGreek Council of State 1929- 1959,p.112. Therelevantprinciplesofadministrativelawonthematterare statedtobeineffect thattheprocess,beforeanycollectiveorgan,regardingdiscussingaboutanddecidingon,anymatter, hastotakeplacefrom beginningtoendwhiletherearepresent ,,the same members of such an organ, in order toensure the knowledgeandevaluation byeachmemberofallfactorswhich come to light during such process.If thisprocess extendsto morethanonemeeting,thenthecompositionofthecollective organ atanymeeting,throughthepresenceofamemberwho didnottakepartatapastmeetingonthematter,theorgancannottakeavaliddecisionatitslastrelevantmeeting,exceptifat such meetingthewholeprocessisrepeatedfully abinitio,so thattheconsiderationofthelaw,takenfromanumberofdecisionsoftheGreekCouncilofState,namely,Decisions 1753/ 25 56, 103/57, 1128/58, wasadopted in thecase of Vivardi v. The Vine Products Council
(1969)3C.L.R.486.Infindthat theseprinciplesareapplicabletothefactsofthepresentcase. In thecircumstances,therefore, thesubjudicedecision isannulled." In thepresentcase,thedeliberationsfor thefillingof thesub judicepostsstartedasearlyasthe3rdMay,1983.Thefirstmeetingsoftherespondents,however,dealtwiththepreparatorystagesoftheprocessand,inanyevent,allthememberswerepresent. The question arises whether themeeting of the 25th October, 35 1984, at which oneof the membersof therespondents wasab1606 30 v3C.L.R. Kouliav.Republic
(1988)sent,is avital one, orwhether'it forms part of thepreparatory stagesoftheprocess. ' r • • il, Asitisapparentfromtheminutesoftherespondentsdatedthe 25thOctober, 1984,atthatmeetingthenewreportoftheDepart5 menalCommitteewasnotonlyread,but,alsoconsideredbythe respondentsandconclusions werereachedconcerningtheeligibilityofcertainofthecandidates.Duringtheirlastmeetingofthe 22nd November, 1984, the respondents proceeded to consider themeritsof those considered by them aseligible during their 10 previous meeting and selected theinterested parties forpromotion,withoutrepeatingtheprocesswhichtookplaceduringtheir meetingofthe:25thOctober, 1984,abinitio'.'Themeetingofthe 25th October is,in my view, avital one and forms part of the processfor thefillingof thepostsinquestion, bearing inmind , , thecircumstancesofthecaseandespeciallythefactthatdecisions weretakenatsuchmeetingregardingtheeligibilityofcertaincandidatesand,also,thefact thatthesettingupof theDepartmental CommitteeisprovidedbytheLaw(section36ofLaw33/67)and formspartoftheprocessfor thefilling ofvacancies.Asaresult, . thesubjudicedecisionhastobeannulled. 'Inviewofmyfindingasabove,Ifinditbothunnecessary,and undesirabletodealwiththemeritsofthecasesasanyfindingof minemightinterfere withtheexerciseofthediscretionbytherespondentsinreconsideringthecase. 25 In theresult, thisrecourse succeeds and thesubjudicedecisionisannulled. .* ; , • • ' ' , . • . · · ' . . . ,. • · . * ' ' ' Subjudicedecisionannulled. 1607