(1988)1988October31 [KOURRIS,J.] INTHE MATTER OFARTICLE 146OFTHE CONSTITUTION ARGYROULLA VASSILIOU, Applicant, v. THEREPUBLIC OFCYPRUS,THROUGH THEPUBLIC SERVICE COMMISSION, Respondents. (CaseNo. 394/86). Public Officers—Promotions—Head ofDepartment—Recommendations of— Whethertheycanbemadeorally—Whetherheisentitledtoobtain informationregardingcapabilitiesofcandidatesfrom hissubordinates—Bothquestions determined in the affirmative—Whether Commission entitled to inquire astosubordinates' views—Question determinedinthenegative. *> Pulbic officers—Promotions—Head ofDepartment—Recommendations of— Inconsistent withoverallpicture ofcandidatesasemanatingfrom theconfidentialreports—Principlesapplicable. Theapplicant'scomplaintsmaybesummarizedthus: (A)TheCommission should nothavereliedon therecommendations of the Head of the Department, because they weremade orally and because, beforemakingthem,theHeadof theDepartmentobtained information from his subordinates. 10 (B)The recommendations of theHead of the Department should have beendisregarded asbeingcontrarytothepicturerelating tomerit,asemerg- 15 ing from therelevant confidential reports. Itmustbe noted thatcomparison of theconfidential reportsleadsto the conclusion thattheapplicant wasbetterinmeritthantheinterestedparties. 1992 3 C.L.R. Vassiliou v. Republic . 4Held,annullingthesubjudicedecision: j
(1)OralrecommendationsbytheHeadoftheDepartmentarenotcontrarytoanylaworregulation.TheHeadoftheDepartmentisentitledtoobtaininformation from hissubordinatesinordertoappraisehimself ofthe capabilitiesofcandidates.TheCommissionrightlyrefrained frominquiring whatsuchviewswere. 5 r
(2)WhentherecommendationsoftheHeadoftheDepartmentarenot consistentwiththeoverallpicturepresentedbytheconfidential reportsthey shouldbedisregardedorgiven limited weightdependingontheextentof inconsistency. 10 15 f '-
(3)Inthiscasetherecommendationswereinconsistentwiththepicture emanatingfrom theconfidential reports."ByrelyingonsuchrecommendationstheCommission acted underamisconception offact. Moreover,for ,thesamereasonitisobviousthattheCommission failed tomakeaduein, , ,. , f ' quiry. Subjudicedecisionannulled. Noorderastocosts. , ' . . • . * Casesreferredto: Gavrielv. TheRepublic
(1971)3C.L.R. 185; 20 :A MettasV.TheRepublic
(1985)3C.L.R.250;'' Georghiadouv. TheRepublic
(1988)3 C.L.R. 1181; ' *Republic v. Koufettas
(1985)3C.L.R.1959;. ' . Christodoulou v.CYTA
(1978)3C.L.R. 61. Recourse. • 25 '· * ' Recourse against the decision of the'respondents to promote the interested party to thepost of Sisterin theDepartment of Medical and'Health Service in preference and instead of the applicant. A.S, AngelideSy for the applicant. 1993 > Vassiliou v. Republic
(1988)A. Papasavvas, Senior Counsel of theRepublic, for there spondents. Cur,adv. vult. KOURRISJ. read thefollowing judgment. By thisrecourse, theapplicantchallenges thedecisionof thePublicServiceCom- 5 mission topromotetheinterestedparties tothepostof "Sister"in theDepartmentof MedicalandPublicHealthServicesasfrom15/ 3/1986inpreference andinsteadof the applicant. Originally theinterestedpartieswere24butcounselfor the ap plicantduringthehearingwithdrew therecourseagainstallthein- 10 terested parties except interestedparty
(1)MariaNicolaidou, in terested party
(2)Eftychia A. Neophytou,interested party
(8)Andriani Nissioti,interestedparty
(14)MariaKyriacou and inter ested party
(17)Anastassia Charalambous.Consequently,the re courseproceededtohearinginconnectionwiththesaidinterested 15 parties whereas the recourse against the otherparties was dis missedwith no orderfor costs. Thepostinquestion is apromotionpostandbefore thesubju dicedecisiontheapplicantandtheinterestedpartieswereholding thepostof Staff Nurse, 1st Grade. 20 Pursuanttoarequest madebytheDirector-Generalof the Min istry ofHealth tothePublicServiceCommissionfor thefillingof 33 vacant posts in thepost of "sister" (Αδελφή)/8βηίθΓNurse, therespondentcommission referred themattertothedepartmental committeewhich was set upfor thatpurposeinaccordancewith 25 the provisions of Section 36 of the Public Service Law 1967 (Law 33/67)toinvestigate andadviseonthequalifications and suitability of candidates for promotiontotheabove post inthe MedicalDepartmentof theCivil Service. Thedepartmental com mitteeby itsreport,which was submittedtotherespondentcom- 30 mission byletterdated25/2/1986recommended33candidatesout of 105 including theapplicant andall theinterestedparties.The departmental committee stated that 69 possessed the required 1994 3 C.L.R. 5 ΙΟ 15 2Q 2 ^ 0 -* 35 .ι Vassiliou ν: Republic Kourris J. qualifications envisaged by theschemeof service andthattherest 36 did notpossess therequired qualifications. Thedepartmental committee also stated that they were in doubt whether
- candi dates possessed therequired qualifications for the post in question and they left the matter to be decided by the Public Service Commission. Therespondentcommission atits meeting of 3/3/1986consid ered thereport of thedepartmentalcommitteeanddecided thatthe 7 candidates possessed therequired qualifications for promotion andincluded themin thelist for promotion together with thecan didates' recommended as eligible for promotion,to the post in question. \ The final meeting of therespondent commission took placeon 10/3/
- The head of the department was present-and was asked by therespondentcommission.to take intoconsideration,in expressing his recommendations,in addition to the candidates which thedepartmentalcommitteerecommended,the7 candidates which thedepartmentalcommitteefailed torecommend.Thehead of the department made his recommendations and left: After the departure of thehead of thedepartment,therespondent commis sion having assessed thematerial before them,including thecon fidential reports of thecandidates, theirpersonal files, their seni ority, and in the light of theviews expressed by the head of the department, they decided topromote33 candidates tothepost of "Sister" as from 15.3.
- Theapplicant was notpromoted,and feeling aggrieved,filed thepresent recourse. Ipropose todeal with therecommendationsof thehead of the department wliich were challenged by counsel for the applicant. The complaintof counsel for theapplicant is, thatthehead of the departmentwhen he appeared before therespondent commission on the 10th of March, 1986, made oral representations which were of avery general natureand thatnodetails were given as to why theapplicant was notrecommendedfor promotion.Further, hecontended,thatheobtainedinformation from thesenior sisters with regard totheperformance of.the candidates as staff nurses 1995 Kourris J. Vassiliou v. Republic
(1988)andhefailed toreporttheopinionsoftheseniorsisters. I examined these points in Georghiadouv. TheRepublic
(1988)3C.L.R. 1181,andIheldtheviewthatthereisnoviolationofthelaworof theregulationswhentheheadofthedepartmentmadeoralrecommendationsbeforetherespondentCommis- 5 sion (see GeorghiosGavrielv.TheRepublic
(1971)3C.L.R. 185). There hasbeen noviolation of thelaworof any regulations with regard toobtaining information about thecandidates from hissubordinatesinordertoappraisehimselfofthecapabilitiesof 10 thecandidatesintheabsenceofpersonal knowledge(seeMettas v.TheRepublic
(1985)3C.L.R.250atpage256). Therespondentcommissionrightlydidnotasktheheadofthe department whatweretheviewsoftheseniorsistersandputtheir viewsandrecommendations downinwriting.Thereisnolawor 15 regulation entitling the respondent commission to regard the views of the subordinates of the head of the department from whomheobtains information. Withregardtotherecommendationsoftheheadofthedepartment,itisrecorded in theminutesof 10/3/1986 (seewritten ad- 20 dressofcounsel for therespondentpage 10)thathemadehisrecommendations withregardtotherecognized criteriaintheirtotality,thatismerit,qualifications,seniority. But,themaincomplaintofcounselfortheapplicantisthatalthoughtheapplicant wassuperiorinmeritfromtheinterestedpar- 25 ties yet the head of the department did not recommend her for promotion.Hesubmittedalistofthecandidateswhomherecommendedforpromotion andhedidnotincludetheapplicantandhe gavenoreasonswhyhedid notrecommendher.Counselforthe applicantwentontosaythatthesubjudicedecisionisliabletobe 3Q setasidebecausetherecommendationsoftheheadofthedepartmentarenotsupported bythecontentsoftherelevantannualconfidential reports,asituationthatmakesthereasoningofthedeci1996 3 C.L.R. Vassiliou v. Republic Kourris J. sioninadequate. 5 10 ,c The respondent commission inevaluating themeritsof theapplicant andtheinterested parties haveconsidered the confidential reports of theyear 1979till 1985,notingalso that they havebeen prepared by different reporting officers, that is, the last seven yearsbefore thedateof appointment. Applicantisrated asexcellentfor alltheyears whereas interested party
(1)Maria Nicolaidou is rated "good:' for 1979, "very good" for 1980 and 1981 and '.'excellent" for the years 1982, 1983, 1984 and 1985.Interested party
(2)Eftychia A. Neophytou is rated as "good" for 1979, "very good" for 1980 and 1981 and "excellent" for 1982, 1983, 1984 and 1985. Interested party
(8)Andriani Nissioti is rated as "good" for 1979/"very good" for.1980 and 1981 and "excellent" for 1982, 1983,1984 and 1985.Interested party
(14)Maria Kyriacou is rated as "good" for 1979, "very good" for 1980 and 1981 and "excellent",for 1982,-1983, 1984 and 1985. Lastly,interested party
(17)Anastassia Charalambousisrated as "good"for 1979,"very good" for 1980and 1981and "excellent" for 1982,1983,1984 and 1985.Itshould benoted that alltheinterestedpartiesareseniortothe applicant. • Therespondent commission accepted therecommendations of theheadofthedepartment andtookthemintoconsideration inassessing the various candidates before it (see written address of counsel for therespondent page 14). ^c 30 InaseriesofcasesoftheSupremeCourtit hasbeen stated that when therecommendations of theheadof thedepartment arenot consistent with the overall picture presented by the confidential reports they should be disregarded or given limited weight depending on.the extent of inconsistency (seeinter alia thecaseof The Republic v.Koufettas
(1985)3C.L.R. 1959 decided by the Full Bench). InthecaseofKoufettas(supra)itisstated atpage 1962: "It is well established, however, that when the recommen1997 Kourris J. Vassiliou v. Republic
(1988)dationsof theHeadof aDepartmentareinconsistent withthe overall picture presented by the confidential reports, they should be disregarded or begiven limited weight,depending ontheextentof inconsistency-... TheCourt intheexerciseof itsjudicial controlandconsi- 5 dering thevalidityof apromotionscrutinizes thereasonsgiven for therecommendationsof theHeadof theDepartmentin or der to ascertain whether they are consistent with the overall picturepresented by theconfidential reports of the applicant andtheinterested parties." 10 Thepictureappearingfromaperusalof theconfidential reports of theapplicant andthefiveinterestedparties for theyears 1979 till 1985,which was thematerial timetobetakenintoconsidera tion,doesnotsupporttherecommendationsof theheadof thede partmentatthemeeting of thePublicServiceCommission on 10/ 15 3/1986when thesubjudice decision was reached anditis clear thathisrecommendationsareinconsistentwiththeoverall picture presentedby theconfidential reportsof theapplicantandthe inter ested parties andastherespondentcommission relied onthe rec ommendationsof theheadof thedepartmentitis apparentthatthe commission acted underamaterial misconceptionof fact, which justifies the annulmentof anadministrative act (see, inter alia, Christodoulou v. CYTA
(1978)3 C.L.R. 61). Italsofollows thatinthecircumstancesof thepresentcasethe respondent Commission failed tomake dueenquiry with regard to themeritsof thecandidates because hadit madeaproperen quiry theywould have found outthattherecommendationsofthe headofthedepartmentwereinconsistentwiththeconfidentialre portsof theapplicant andtheywould havedisregarded hisrecom mendations. Forall theabovereasons the recourse is allowedandthe pro motionof theinterested parties is set aside withoutany order for costs. As the matterwill be re-examined by thePublic Service Commission I do not propose to examine the point raised by 1998 2 ς ν 3'C.L.R. Vassiliou v. Republic counsel for theapplicant that the theinterested parties. Kourris J. applicant is strikingly superior to Subjudice decisionannulled. No orderas to costs. 1999